It is not at all clear what the Supreme Court would do if the scope of immunity for local government legislators was presented for review. Tenney involved state legislators and the Court compared the historical functions of state legislators and congressmen. Also, according to Judge Magruder in Cobb, the common law rule regarding the immunity of local legislators from liability is that it is qualified, not absolute. Further, even if this were not so, later Supreme Court decisions have made it clear that while common law immunity rules for governmental officials may be relevant, they are not dispositive of 1983 immunity.48 On the other hand, Tenney may be read as functionally emphasizing the need for absolute immunity for legislators, regardless of governmental level.49 Additionally, the common law immunity rules may not have been correctly interpreted by Judge Magruder in Cobb. It has been stated50 that only a "scant majority" of the states accord a qualified immunity for defamation. For other torts the general rule seems to grant absolute immunity for inferior legislative bodies and for state and national legislators.
What the Court should do when confronted with this issue depends in part on whether expansion or limitation of absolute legislative immunity under 1983 is considered preferable. On balance, local legislators should not be accorded absolute immunity. Unlike state legislatures, local legislatures are creations of the states and do not possess that independence which is to be furthered by an absolute immunity rule. Thus, the Speech or Debate Clause analogy is not applicable to local legislators. Also, because they frequently exercise a mix of legislative and administrative powers, local legislators are more akin to state and local administrative agency members who are entitled only to a qualified immunity.51 Furthermore, it must be remembered that an expansion of the category of absolutely immune defendants flies in the face 1983's "person" language. Additional expansion requires weighty justification, justification which is not present for local legislators. Finally, in contrast to the settled common law absolute immunity of state legislators, the common law immunity rules for local legislators are, as noted, somewhat unclear.
It should be noted that legislative immunity, even for state legislators, is limited to damages and does not extend to prohibitory injunctive relief. As the Fourth Circuit recently stated:
"we have found [no case] which holds that the immunity doctrine insulates a public official or public employee from injunctive relief to prevent what would otherwise be an illegal act on his part."52This is also the clear implication of a Supreme Court decision53 which permitted injunctive relief under 1983 against certain members of the Georgia State Legislature. Furthermore, limiting legislative immunity in this way follows from the emphasis in Tenney and the decisions in the circuits on avoiding the chilling effect of' potential 1983 damages litigation upon legislative independence. At least one circuit court has been reluctant, however, to issue a mandatory injunction with the apparent effect of forcing legislators to vote in a certain way.54 The court said: "Quite simply, it would have been a violation of the separation of powers with the court acting as a legislature."55 A comparable reluctance to issue mandatory injunctions interfering with judicial discretion appears in several judicial immunity cases.56
