Kent v. Ohio House of Representatives Democratic Caucus

• Decision Date: 09 May 2022
• Docket Number: 21-3884
• Citation: 33 F.4th 359
• Parties: Bernadine Kennedy KENT, former State Representative, Plaintiff-Appellant, v. OHIO HOUSE OF REPRESENTATIVES DEMOCRATIC CAUCUS; Emilia Sykes, Minority Leader; Fred Strahorn, State Representative, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

33 F.4th 359

Bernadine Kennedy KENT, former State Representative, Plaintiff-Appellant,

v.OHIO HOUSE OF REPRESENTATIVES DEMOCRATIC CAUCUS; Emilia Sykes, Minority Leader; Fred Strahorn, State Representative, Defendants-Appellees.

No. 21-3884

United States Court of Appeals, Sixth Circuit.

Decided and Filed: May 9, 2022

ON BRIEF: Nicholas R. Owens, THE LAW OFFICE OF NICHOLAS R. OWENS, Georgetown, Ohio, for Appellant. Andrew D. McCartney, Julie M. Pfeiffer, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellees.

Before: SUTTON, Chief Judge; MOORE and GILMAN, Circuit Judges.

SUTTON, C.J., delivered the opinion of the court in which GILMAN, J., joined. MOORE, J. (pp. 367–70), delivered a separate opinion concurring in the judgment only.

OPINION

SUTTON, Chief Judge.

Absolute immunity protects lawmakers from lawsuits for their legislative acts. At issue is whether the Ohio House Democratic Caucus performed a legislative act when it expelled a representative from its ranks and barred her from accessing party resources. We conclude that it did and affirm the district court's decision dismissing this lawsuit against Caucus members.

I.

In 2016, the voters of the 25th District of Ohio elected Bernadine Kent to represent them in the Ohio House of Representatives. A Democrat, Kent became a member of the House Democratic Caucus under its rules.

Kent took an interest in the policies and accountability of the Columbus Police Department. In March 2018, she distributed a press release that accused the Chief of Police of wrongdoing. A week later, her office prepared a second press release that accused the Police Department of failing to take child-abuse reports seriously. She attached a letter from the Ohio Legislative Black Caucus to the mayor to similar effect. Kent's legislative aide submitted the documents to the House Democratic Caucus for public distribution. At that point, Fred Strahorn, then the Minority Leader, and his Chief of Staff prohibited the communications team from posting the press release online. Strahorn blocked any publication of the release because the attached letter to the mayor included unauthorized signatures.

Kent objected to Strahorn's actions, first in an email then in a series of formal complaints. At the end of April 2018, Strahorn gave an interview to the Columbus Dispatch , in which he justified his decision to block the release by explaining that he would not "tolerate a member of the caucus using staff and tax-payer funded resources to fake, forge or fabricate any claim, request or document to further their own political interest or personal vendetta." R.1 at 6. In May, Kent earned the Democratic nomination to run for reelection.

In June 2018, Strahorn called for a vote on Kent's membership in the Caucus. The members voted to remove her. As a result, Kent lost access to Caucus resources, including policy aides, communications professionals, lawyers, and administrative staff. The Caucus also barred her from attending its meetings. Through it all, Kent retained her seat in the House, and voters reelected her that fall.

In January 2019, after the new session of the House convened, the Democrats selected Emilia Sykes as the Minority Leader. Several months later, when Kent attempted to attend a Democratic Caucus meeting, staff members "obstructed" and "prohibited" her from entering. Id. at 10. After the altercation, Sykes reminded Kent that the Caucus voted to remove her in 2018 and, removing all doubt, reaffirmed its decision in the new session.

Kent did not run for reelection in 2020. But that did not end the conflict.

In December 2020, Kent filed a § 1983 claim, alleging that she suffered retaliation for speech protected under the First and Fourteenth Amendments to the Federal Constitution. She sued Strahorn and Sykes as well as the "House Democratic Caucus," meaning "all persons duly-elected or appointed as a Member of the Ohio House of Representatives under the affiliation of the Democratic party." Id. at 2. The district court dismissed her complaint on the ground that legislative immunity barred it. This appeal followed.

II.

When the Colonies broke from Britain in 1776, America got a fresh start in some ways but not in others. American legislative immunity does not turn on a fresh start. Its origins emerge from a multi-century struggle between the English Crown and Parliament. United States v. Johnson , 383 U.S. 169, 177–78, 86 S.Ct. 749, 15 L.Ed.2d 681 (1966). In England's earliest days, "all powers were royal," including the power to legislate, and it was only "over time, as a result of specific struggles," that Parliament assumed "various of those powers." Michael W. McConnell, The President Who Would Not Be King 74 (2020).

The 1600s cemented Parliament's legislative supremacy. A.F. Pollard, The Evolution of Parliament 130 (2d ed. 1926); Nathan S. Chapman & Michael W. McConnell, Due Process as Separation of Powers , 121 Yale L.J. 1672, 1684 (2012). That century saw a series of clashes between those who viewed the King's powers as absolute and those who believed the King must yield to Parliament in certain matters. Chapman & McConnell, supra , at 1686–88. Efforts to constrain the Crown produced the Petition of Right, which imposed "institutional checks" designed to "wrest lawmaking ... power from the King." Id. at 1688. The struggles culminated in the Glorious Revolution of 1688, which "confirmed" the sovereignty and supremacy of Parliament, Jack N. Rakove, The Origins of Judicial Review: A Plea for New Contexts , 49 Stan. L. Rev. 1031, 1055–56 (1997), and gave rise to the English Bill of Rights in 1689, Alexander J. Cella, The Doctrine of Legislative Privilege of Freedom of Speech and Debate , 2 Suffolk Univ. L. Rev. 1, 4 (1968).

Legislative immunity tracks the arc of Parliament's evolution. The immunity, oddly enough, owes its existence to the original "conception of Parliament as a judicial body." Robert J. Reinstein & Harvey A. Silverglate, Legislative Privilege and the Separation of Powers , 86 Harv. L. Rev. 1113, 1122 (1973). Lower courts could not hear "actions challenging the propriety of deliberations in a higher court," and Parliament was the "highest court of the land." Id. Members therefore enjoyed protection for the speeches and debates that they gave in Parliament. Id. But these freedoms were still considered "an act of grace on the part of the King." Leon R. Yankwich, The Immunity of Congressional Speech—Its Origin, Meaning and Scope , 99 U. Pa. L. Rev. 960, 963 (1951).

As Parliament flexed its legislative muscles, it found this partial privilege inadequate. The Crown resisted Parliament's newfound legislative role, especially in areas like royal succession and religion. Cella, supra , at 5; Reinstein & Silverglate, supra , at 1134. It pushed back by prosecuting members for "seditious" or "licentious" speech. Reinstein & Silverglate, supra , at 1126. In 1629, John Eliot, a member of the House of Commons, was sentenced to imprisonment "during the king's pleasure" for criticizing the war with France. Id. at 1127–28. Other members were prosecuted for statements of their own, and each tried to invoke the legislative free-speech privilege in response. Thomas P. Taswell-Langmead, English Constitutional History 527 (London 1875). But the convictions stood. The House later declared that the convictions violated Parliament's immunity and issued a resolution claiming an absolute privilege of speech and debate. Id. at 298; Reinstein & Silverglate, supra , at 1128. After the Glorious Revolution "definitively established" Parliament's authority over legislative matters, the English Bill of Rights provided a home for the privilege, declaring that "the freedom of speech, and debates or proceedings in Parliament, ought not to be impeached or questioned in any court or place out of Parliament." Taswell-Langmead, supra , at 624, 630.

The United States adopted England's legislative privilege "as a matter of course." Tenney v. Brandhove , 341 U.S. 367, 372, 71 S.Ct. 783, 95 L.Ed. 1019 (1951). Before independence, many colonial assemblies had already recognized it. Yankwich, supra , at 965; Steven F. Huefner, The Neglected Value of the Legislative Privilege in State Legislatures , 45 Wm. & Mary L. Rev. 221, 231 & n.22 (2004). After independence, the States followed course. A decade before the Convention in Philadelphia in 1787, the Maryland Declaration of Rights provided "[t]hat freedom of speech and debates, or proceedings in the Legislature, ought not to be impeached in any other court or judicature." Md. Const. Declaration of Rights of 1776, art. VIII. In 1780, Massachusetts adopted a longer version, specifying: "The freedom of deliberation, speech, and debate, in either house of the legislature, is so essential to the rights of the people, that it cannot be the foundation of any accusation or prosecution, action, or complaint, in any other court or place whatsoever." Mass. Const. of 1780, pt. I, art. XXI. New Hampshire copied most of Massachusetts’ clause, but dropped the word "accusation." N.H. Const. of 1784, art. I, § XXX. New Jersey and South Carolina took a different path to immunity through state constitutional provisions that incorporated English common law. N.J. Const. of 1776, art. XXII; S.C. Const. of 1776, art. XXIX; Huefner, supra , at 231 n.25.

The federal charters did the same. Even though some of the Framers feared "legislative excess," they likewise "carefully protected" legislative immunity at the federal level. Tenney , 341 U.S. at 375, 71 S.Ct. 783. The Articles of Confederation lifted the protection from the English Bill of Rights nearly word for word. Articles of Confederation of 1781, art. V, para. 5. The Federal Constitution followed closely, providing that "for any Speech or Debate in either House, [the Senators and Representatives] shall not be questioned in any other Place." U.S. Const. art. I, § 6, cl. 1. Delegates at the Convention approved the Clause "without discussion...