In determining the breadth of federal common law immunities, the Supreme Court has accommodated two competing interests. The first, asserted by defendants, is the interest in having governmental officials exercise their judgment free of the fear of burdensome and potentially ruinous personal litigation. The second, asserted by plaintiffs, is the interest in checking improper official conduct and in providing wronged individuals with adequate remedies for their injuries. See, e. g., Butz v. Economou, 438 U.S. 478, 501-03, 98 S.Ct. 2894, 2907-09, 57 L.Ed.2d 895 (1978); Imbler v. Pachtman, supra, 424 U.S. at 422-29, 96 S.Ct. at 991-94; Wood v. Strickland, 420 U.S. 308, 319-21, 95 S.Ct. 992, 999-1000, 43 L.Ed.2d 214 (1975); Scheuer v. Rhodes, 416 U.S. 232, 242-47, 94 S.Ct. 1683, 1689-92, 40 L.Ed.2d 90 (1974). See also Note, The Proper Scope of the Civil Rights Acts, 66 Harv.L.Rev. 1285, 1295 n.54 (1953).
The Supreme Court emphasized the first of these interests in advancing a rationale for absolute legislative immunity in Tenney v. Brandhove: Legislators are immune from deterrents to the uninhibited discharge of their legislative duty, not for their private indulgence but for the public good. One must not expect uncommon courage even in legislators. The privilege would be of little value if they could be subjected to the cost and inconvenience and distractions of a trial upon a conclusion of the pleader, or to the hazard of a judgment against them based upon a jury's speculation as to motives. 341 U.S. at 377, 71 S.Ct. at 788. With respect to this "public good" rationale, we perceive no material distinction between the need for insulated legislative decisionmaking at the state or regional level and a corresponding need at the municipal level. Indeed, the nature of municipal government may make the need to quell a legislator's fear of personal retribution particularly compelling. Because municipal legislators are closer to their constituents than either their state or federal counterparts, they are, perhaps, the most vulnerable to and least able to defend lawsuits caused by the passage of legislation. Particularly in the area of land use, where decisions may have an immediate quantifiable impact on both the value and development of property, local legislators should be free to act solely for the public good without the specter of personal liability with the passage of each zoning ordinance. Ligon v. Maryland, 448 F.Supp. 935, 947 (D.Md.1977).
Appellants argue, however, that civil liability for city directors is necessary to deter improper official conduct. Appellants emphasize that the Fort Smith Board of Directors consists of only seven persons, is unicameral rather than bicameral, and exercises the executive as well as the legislative authority of the city. Appellants contend that because municipal government in Fort Smith thus lacks some of the inherent restraints that customarily operate at the state level of government, municipal legislators should not receive the absolute immunity accorded their state counterparts.
The Supreme Court rejected a similar argument in Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, supra. Absolute legislative immunity, the Court held, does not depend "on any particular set of state rules or procedures available to discipline erring legislators." 99 S.Ct. at 1179. Nor, we conclude, should the immunity depend on a particular system of institutional checks and balances.
What is important instead is whether there are effective checks on unconstitutional conduct, whatever particular form those checks may take. Without attempting to assess their relative effectiveness, we list some of the checks that are available in a case such as this. First, rezoning may be attacked on direct judicial review as being arbitrary, capricious, or unreasonable. Wenderoth v. City of Fort Smith, 251 Ark. 342, 472 S.W.2d 74, 76 (1971). Moreover, an unconstitutional zoning ordinance may be declared invalid in federal court. See, e.g., Park View Heights Corp. v. City of Black Jack, 467 F.2d 1208, 1213 (8th Cir. 1972). Further, willful deprivations of constitutional rights under color of state law are punishable under 18 U.S.C. s 242, the criminal analog of section 1983. Imbler v. Pachtman, supra, 424 U.S. at 429, 96 S.Ct. at 994; see United States v. Gillock, 445 U.S. 360, 100 S.Ct. 1185, 1193, 63 L.Ed.2d 454 (1980) (official immunity cases have drawn the line at civil actions). Finally, the city directors of Fort Smith are elected officials "subject to the responsibility and the brake of the electoral process." Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, supra, 99 S.Ct. at 1181 (Blackmun, J., dissenting). The Supreme Court has considered control by the electorate to be an important restraint on legislative conduct, Tenney v. Brandhove, supra, 341 U.S. at 378, 71 S.Ct. at 789. In this respect the case for absolute immunity is stronger here than it was in Lake Country Estates, where the Court held that absolute legislative immunity covered the legislative acts of a ten-member regional land planning commission despite the fact that the members were appointed rather than elected. See 99 S.Ct. at 1180-81 (dissenting opinions of Justices Brennan, Marshall, and Blackmun).
The case for absolute immunity becomes stronger still when viewed in light of Owen v. City of Independence, supra, which re-interpreted section 1983 to make a municipality liable in damages for all of its unconstitutional conduct. 100 S.Ct. at 1409-12.[FN7] The absence of any immunity for city government not only provides an additional check on unlawful behavior by municipal legislators,[FN8] but also provides an effective remedy for wronged individuals.
FN8. The knowledge that a municipality will be liable for all of its injurious conduct, whether committed in good faith or not, should create an incentive for officials who may harbor doubts about the lawfulness of their intended actions to err on the side of protecting citizens' constitutional rights. Owen v. City of Independence, 100 S.Ct. 1398, 1416 (1980).
For the contrary proposition that persons enacting municipal legislation are entitled to only qualified immunity appellants cite Wood v. Strickland, supra, 420 U.S. 308, 95 S.Ct. 942, 43 L.Ed.2d 214, Rodgers v. Tolson, 582 F.2d 315 (4th Cir. 1978), and Chase v. McMasters, 573 F.2d 1011 (8th Cir. 1978). In none of these cases, however, were the acts complained of legislative rather than executive or administrative in character. Wood involved school board officials who expelled students from school, Rodgers involved town commissioners who placed sewer lines and assessed fees for them, and Chase involved a town's councilmen and mayor who refused to connect a homeowner's sewer and water lines. The authority that does support appellants' position, e.g., Nelson v. Knox, 256 F.2d 312, 314-15 (6th Cir. 1958) (stating in dictum that municipal legislators have only qualified immunity from damages with respect to allegedly unconstitutional licensing ordinance and parking regulations), is no longer tenable, in our view, in light of Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, supra, and Owens v. City of Independence, supra.
Appellants also sought to have civil liability fastened on the Fort Smith residents who, with their attorney, prevailed upon the Board of Directors to enact the allegedly unconstitutional zoning amendment. Appellants' theory of liability seems to be that the individual defendants acted under color of state law for purposes of section 1983 by participating in a conspiracy with municipal officers. See generally Adickes v. Kress & Co., 398 U.S. 144, 152, 90 S.Ct. 1598, 1605, 26 L.Ed.2d 142 (1970).
The individual defendants advance several reasons for affirming the district court's dismissal of the claim against them. They urge we adopt the district court's holding that the individual defendants have derivative immunity stemming from the absolute immunity of the city officials, see Harley v. Oliver, 404 F.Supp. 450, 454 (W.D.Ark.1975), aff'd on other grounds, 539 F.2d 1143, 1145-46 (8th Cir. 1976); but see White v. Bloom, 612 F.2d 276, 281 (8th Cir. 1980) (declining to adopt a per se rule of derivative immunity). Defendants suggest we could also affirm on the basis that the complaint fails to allege defendants' conspiratorial behavior with sufficient specificity. See, e.g., White v. Bloom supra, at 281; Grow v. Fisher, 523 F.2d 875, 878-79 (7th Cir. 1975). We do not reach either of these possible grounds of affirmance, however, for we adopt the district court's holding that the private citizens and their lawyer were absolutely privileged by the First Amendment to petition for the zoning amendment that caused plaintiffs' damages.
This holding follows from principles recognized in Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961). The Noerr Court held that mere attempts to influence the enforcement or passage of legislation are not actionable under the Sherman Act. The Court relied in large part on the desirability of avoiding the "important constitutional questions" that would arise if it imputed to Congress an intent to regulate activity covered by the First Amendment's guarantee of the right to petition government for redress of grievances. Id. at 138, 81 S.Ct. at 530. Lower federal courts have adopted this deference to the right to petition not only in antitrust cases but in other cases involving civil liability. In various contexts, these courts have held individual defendants constitutionally immune from liability for exercising their right to petition. E.g., Stern v. United States Gypsum, Inc., 547 F.2d 1329, 1342-46 (7th Cir. 1977) (42 U.S.C. s 1985(1)) (sending to governmental employee's superiors complaints that are known to be false); Sawmill Products, Inc. v. Town of Cicero, 477 F.Supp. 636, 642 (N.D.Ill.1979) (section 1983) (protesting presence of plaintiff's sawmill which was then shut down by town ordinance); Weiss v. Willow Tree Civic Association, 467 F.Supp. 803, 816-18 (S.D.N.Y.1979) (section 1983) (lobbying town officials en masse and filing groundless judicial and administrative complaints to oppose zoning permit); Aknin v. Phillips, 404 F.Supp. 1150, 1153 (S.D.N.Y.1975) (section 1983) (urging officials to enforce unconstitutionally vague noise ordinance against plaintiff's discotheque); Sierra Club v. Butz, 349 F.Supp. 934, 938-39 (N.D.Cal.1972) (contractual interference) (filing lawsuit and administrative appeals to halt complainant's logging operation; filings constitutionally privileged even if motivated by malice).
Noerr and its progeny indicate that liability can be imposed under section 1983 for activity ostensibly designed to influence public policy only if the real purpose of the policy is not to induce governmental action but to injure the plaintiff directly. Even then, of course, the activity is not actionable under section 1983 unless taken under color of state law. These principles exonerate defendants from section 1983 liability for their conduct here, which consisted of demanding a zoning amendment and participating in the spread of false derogatory rumors about appellants' proposed housing project. The genuineness of defendants' lobbying effort is manifested by its success; demonstrably it was not a sham. And to the extent that the individual defendants' efforts and remarks were not reasonably designed to influence legislation, they were not made under color of state law for they involved no misuse of official authority.[FN9] This is not a case, then, like California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 92 S.Ct. 609, 30 L.Ed.2d 642 (1972), where antitrust defendants had allegedly injured their competitors by engaging in a pattern of baseless administrative and judicial claims that had effectively barred plaintiffs' access to agencies and courts. Appellants here did not allege the individual defendants abused the legislative process by, for example, buying votes with bribes. Nor did appellants allege that they were prevented from answering defendants' charges or making lobbying efforts of their own. We are loathe to interpret section 1983 to proscribe what we thus understand to be traditional political activity.
Appellants would also predicate liability on the alleged conspiracy to have the city directors decide to bar issuance of a building permit. Denial of a permit, appellants point out, is of an administrative rather than a legislative nature, e.g., Kinderhill Farm Breeding Associates v. Appel, 450 F.Supp. 134, 136 (S.D.N.Y.1978), and with respect to it the implicated public officials would have only qualified immunity. See Butz v. Economou, supra, 438 U.S. at 511-17, 98 S.Ct. at 2913-17 (type of immunity depends not on the defendant-official's particular location in government but on the nature of the governmental function he is performing).
We do not share appellants' view of the significance of the alleged building permit decision. The complaint does not allege that appellants ever prosecuted a building permit application that Fort Smith officials then denied. Nor is there an allegation that appellants were harmed by a prospective denial of the permit. Insofar as the complaint reveals, appellants' injury flowed from enactment of the zoning amendment, not from a secret administrative decision arrived at the month before. As to any official acts that appellants can complain of, then, the public official defendants had absolute immunity from personal liability.
We affirm the district court's dismissal of appellants' lawsuit, including the pendent defamation claim. "Where the federal element which is the basis for jurisdiction is disposed of early in the case, as on the pleadings, it smacks of the tail wagging the dog to continue with a federal hearing of the state claim." McFaddin Express, Inc. v. Adley Corp., 346 F.2d 424, 427 (2d Cir. 1965).