Court Keeps Age Suit Against Campbell Alive

Posted June 3, 2005 at 5:33pm

A federal appeals court ruled last week that ex-Sen. Ben Nighthorse Campbell’s retirement at the end of the 108th Congress does not prevent an age-discrimination lawsuit against the Colorado Republican from proceeding.

The three-judge panel for the 10th U.S. Circuit Court of Appeals explicitly did not rule out the possibility that a lower court could come to that conclusion and dismiss the case, however.

In January, Campbell’s taxpayer-funded lawyers asked the 10th Circuit to vacate its December 2004 decision on grounds that the Senator’s office — the defendant in the lawsuit — no longer existed. Rita Bastien, Campbell’s former state director who sued in 2001 following her forced transfer and later termination, strenuously disagreed, telling the court that just because Campbell left office doesn’t mean the liability simply dissolves. An array of unions and public interest groups filed “friend of the court” briefs supporting Bastien’s ability to take Campbell’s office to court.

Even more than the merits of this particular case, at issue is whether the Constitution shields lawmakers from suits brought under the 1995 Congressional Accountability Act, as Campbell had claimed. At the end of last year, the 10th Circuit determined that it did not and sent the case back to district court for trial.

In denying Campbell’s motion to vacate that decision, however, the court used relatively narrow language. The three judges essentially said that at the time of their judgment, Campbell was still in office, and therefore their ruling stands.

“There is no contention that the case was moot when we handed down our decision,” Judges Stephanie Seymour, Bobby Baldock and Harris Hartz wrote in their order.

Left unresolved for now is the larger question of whether lawmakers can avoid their offices’ liability under the CAA simply by leaving office. The issue could come up again in two years when Sen. Mark Dayton (D-Minn.) retires in January 2007. He has announced he will not seek re-election in 2006. Dayton is currently fighting a disability discrimination suit in the U.S. Court of Appeals for the D.C. Circuit.

The issues on appeal in the Dayton case — the same Constitutional questions that have bogged down Bastien’s suit against Campbell for three years — were recently combined by the appellate court with a virtually identical appeal in yet another suit, this one brought against Rep. Eddie Bernice Johnson (D-Texas). Like Campbell, the Members in both of those cases have claimed the Constitution invalidates the part of the CAA that allows staffers to sue them for violations of the 12 civil rights and anti-discrimination laws Congress applied to itself for the first time in 1995.

The D.C. Circuit will hear the Dayton and Johnson appeals together sometime this fall.

Although the immunity written in Article I of the Constitution applies to “Speech or Debate” in each chamber, courts have long interpreted the clause more broadly and have understood it to protect decisions they make in their legislative capacity from questioning in court.

The big question, and one most observers believe will be eventually decided by the Supreme Court, is whether personnel decisions are “legislative acts,” and thus protected, or administrative acts, and presumably not protected.