Ronald Therriault, Rhonda Swaney, Charles Morigeau, Michaelt. Pablo, and the Kootenai Tribes of the Flatheadreservation, Montana, Plaintiffs-appellants, v. Alan Mikkelsen, Charles Stipe, Roger Detert, and Walterschock, Defendants-appellees, 145 F.3d 1341 (9th Cir. 1998)

MEMORANDUM^* 

Individual landowners Ronald Therriault, Charles Morigeau, Rhonda Swaney, Michael T. Pablo, and the Confederated Salish and Kootenai Tribes (collectively, the "Landowners") appeal the district court's dismissal of their complaint. The Landowners are required to pay yearly administrative fees to their respective irrigation districts, which are together governed by the Flathead Joint Board of Control (the "Board"). The Landowners contend that the defendants, the chief executive officer and three members of the Board (collectively, the "Commissioners"), used the Landowners' administrative fees to finance improper lobbying and litigation in violation of the Landowners' First and Fourteenth Amendment rights under 28 U.S.C. § 1983. The Landowners also contend that the Commissioners' collection of the administrative fees constitutes a violation of the Racketeer Influenced and Corrupt Organization Act ("RICO"). The district court held that the Commissioners were entitled to, inter alia, qualified immunity and absolute legislative immunity and therefore dismissed the 1983 claim pursuant to Fed. R. Civ. P. 12(b) (6).¹  The district court dismissed the RICO claim for failure to plead the predicate acts of wire and mail fraud pursuant to Fed. R. Civ. P. 9(b) and for failure to plead the predicate act of extortion pursuant to Fed. R. Civ. P. 12(b) (6). Finally, the district court also dismissed the complaint for lack of standing pursuant to Fed. R. Civ. P. 12(b) (1).² 

If the law is not clearly established, or, if the Commissioners could have reasonably believed that their conduct was lawful, they are entitled to qualified immunity. Thompson v. Souza, 111 F.3d 694, 698 (9th Cir. 1997). Neither Keller v. State Bar of Cal., 496 U.S. 1, 110 S. Ct. 2228, 110 L. Ed. 2d 1 (1990), nor Abood v. Detroit Bd. of Educ., 431 U.S. 209, 97 S. Ct. 1782, 52 L. Ed. 2d 261 (1977), on which appellants primarily rely, clearly indicates that an entity with powers similar to those of the Board would implicate a taxpayers' First or Fourteenth Amendment rights when the Board or its Commissioners participate in lobbying or litigation on matters unrelated to the entity's statutory powers.³  Indeed, under the principles set forth in Keller, the Board appears to resemble a "traditional government agenc [y]" that would not be subject to First Amendment challenges arising from any type of lobbying or litigation activity because the Board's powers as set forth by Montana state law are neither advisory nor intermediary with respect to water distribution. See, e.g., Mont.Code Ann. § 85-7-1907 (1997) (irrigation districts may perform "any and every lawful act necessary to be done in order that sufficient water may be furnished for irrigation purposes"); Love v. Harlem Irrigation Dist., 245 Mont. 443, 802 P.2d 611, 613 (Mont.1990) (finding irrigation district to have "governmental entity" status); cf. Keller, 496 U.S. at 11 (distinguishing State Bar of California from traditional government agency in part because "services are essentially advisory in nature"); Goehring v. Brophy, 94 F.3d 1294, 1303 (9th Cir. 1996), cert. denied, --- U.S. ----, 117 S. Ct. 1335, 137 L. Ed. 2d 495 (1997) (noting that important factor under Keller was intermediary nature of state bar association).⁴  Accordingly, because the complaint fails to allege the violation of a clearly established constitutional right, qualified immunity applies as to the request for monetary damages in connection with the § 1983 claim.

More important, absolute legislative immunity applies with respect to all requests for relief under the § 1983 claim. See Supreme Court of Va. v. Consumers Union of the United States, 446 U.S. 719, 732, 100 S. Ct. 1967, 64 L. Ed. 2d 641 (1980) (applying legislative immunity to declaratory and injunctive relief). All of the Commissioners' allegedly improper acts arise from the expenditure of funds on lobbying and litigation alleged to be outside their legislative authority. The Landowners' only argument on appeal is that legislative immunity does not apply if the approved expenditures are beyond a legislative body's authority. Whether legislative immunity applies, however, turns on whether the act was legislative in nature, see, e.g., Chateaubriand v. Gaspard, 97 F.3d 1218, 1220 (9th Cir. 1996), not on the scope of the legislative body's powers. Because the Commissioners' budgetary decisionmaking was legislative in nature, see Bogan v. Scott-Harris, --- U.S. ----, 118 S. Ct. 966, --- L. Ed. 2d ---- (1998), and because the scope of the Board's authority does not affect the availability of legislative immunity, we hold that the district court correctly dismissed the § 1983 claim on this ground.⁵ 

Finally, we note that there are considerable problems with respect to both standing and the indispensable party rule. There may be little or no likelihood that the Landowners' injuries would be redressed by a favorable decision. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992). Although the complaint requests injunctive and declaratory relief with respect to the improper use of Board funds, the Board is not a defendant. Further, there is no allegation that the four defendants, all members or officers of the Board, have acted without the approval of a majority of its twelve elected members or of those required for any particular action. Accordingly, even if this court were to enjoin the named defendants from the allegedly improper conduct, there might be little likelihood that it would cease.

The RICO claim is predicated on mail and wire fraud and extortion. The district court properly dismissed the mail and wire fraud allegations pursuant to to Fed. R. Civ. P. 9(b) for the failure to allege, inter alia, what false statements were made. See In re Glenfed Inc. Sec. Litig., 60 F.3d 591 (9th Cir. 1995). The district court also properly dismissed the extortion claim pursuant to Fed. R. Civ. P. 12(b) (6) because the complaint fails to allege that the fees were "induced by wrongful use of actual or threatened force, violence, or fear." See Rothman v. Vedder Park Management, 912 F.2d 315, 317 (9th Cir. 1990) (citations omitted). The Commissioners' collection of fees through the regular process of law cannot give rise to an extortion claim. Accordingly, the district court was correct to dismiss the RICO claim.

AFFIRMED