Whitener v. McWatters
| Decision Date | 30 April 1997 |
| Docket Number | No. 96-1515,96-1515 |
| Citation | 112 F.3d 740 |
| Parties | Steven D. WHITENER, Plaintiff-Appellant, v. David McWATTERS, Loudoun County Supervisor, Broad Run District; Scott K. York, Loudoun County Supervisor, Sterling District; Joan G. Rokus, Loudoun County Supervisor, Leesburg District; Eleanore C. Towe, Loudoun County Supervisor, Blue Ridge District; James G. Burton, Loudoun County Supervisor, Mercer District; Lawrence S. Beerman, II, Loudoun County Supervisor, Dulles District; Dale Polen Myers, Chairman at Large; Helen A. Markum, Loudoun County Supervisor, Catoctin District, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Fourth Circuit |
ARGUED: John Henry Partridge, Herndon, Virginia, for Appellant. William Joseph Carter, Carr, Goodson, Lee & Warner, Washington, D.C., for Appellees. ON BRIEF: Samuel J. Smith, Jr., Carr, Goodson, Lee & Warner, Washington, D.C.; John David Grad, Grad, Logan & Klewans, P.C., Alexandria, Virginia, for Appellees.
Before MURNAGHAN, NIEMEYER, and MOTZ, Circuit Judges.
Affirmed by published opinion. Judge NIEMEYER wrote the majority opinion, in which Judge MURNAGHAN joined. Judge MOTZ wrote a dissenting opinion.
When the Loudoun County (Virginia) Board of Supervisors disciplined one of its members for confronting other members with abusive language, the disciplined member filed suit in federal court under 42 U.S.C. § 1983, alleging that the Board violated his First Amendment and procedural due process rights. The district court dismissed the complaint, concluding that the Board members enjoyed absolute legislative immunity. Because we hold that a legislative body's discipline of one of its members is a core legislative act, we affirm.
Following their election on November 17, 1995, the nine members of the Loudoun County Board of Supervisors met in anticipation of their four-year term, which was to begin on January 1, 1996. During the meeting, they conducted a "straw vote" to determine committee membership, and they gave each other assurances that at the first official meeting of the Board on January 3, 1996, they would vote in accordance with the straw vote. For unexplained reasons, at the January 3 meeting certain members, including Joan Rokus and Eleanore Towe, voted differently from the straw vote with the result that certain committee chairmanships were given to others than had been indicated by the straw vote.
Steven Whitener, a member adversely affected by the change, was shocked and became incensed with the breach. After the January 3 meeting, he confronted Rokus privately and reprimanded her, questioning her integrity and trustworthiness. Likewise, two days later, he called Towe to reprimand her. Both Rokus and Towe claim that Whitener's conversations with them exceeded the bounds of decency and civility. Rokus reported Whitener to say that "she shouldn't have let us (the Supervisors who had honored their commitments from the straw vote) all sit up there and be f--ed by her when we were counting on her to keep her word." And Whitener does not deny making the statement.
When Rokus and Towe complained to the full Board about Whitener's unseemly behavior and requested that Whitener be punished for his abusive language, the Board appointed a three-member ad hoc ethics committee to investigate the complaint and make recommendations. The committee met on January 26, 1996, and, after a contentious meeting where testimony was given and arguments made, voted 2-1 to recommend that Whitener "be formally censured for a period of [one year] and that the rules of order be changed to remove him from all standing committees of [the] Board as well as all assignments and appointments to outside committees, commissions, etc." On consideration of the ad hoc committee's recommendation, the Board voted 8-1 to censure Whitener and 5-4 to strip him of his committee assignments for a period of one year.
After the ad hoc committee made its recommendation but before the full Board of Supervisors had acted on it, Whitener filed suit against the other eight members of the Board under 42 U.S.C. § 1983, alleging, among other things, that the Board violated his First Amendment and procedural due process rights. He requested that the court enjoin the Board from disciplining him. The defendant Board members filed a motion to dismiss, asserting legislative immunity, and the district court granted the motion. It concluded:
In legislative immunity cases involving local jurisdictions where the challenged action is administrative, such as the firing of an employee, legislative immunity may not apply. However, when the challenged activity concerns a core legislative function, immunity does apply.
This case concerns the vote of the Board of Supervisors in policing its own ethics violations, obviously a core legislative activity. The plaintiff complains of an action by the board to strip him of committee and commission assignments for his conduct in confronting other members of the board and his use of abusive language. Plaintiff may not challenge legislative voting or inquire as to why votes were made. The plaintiff is asking the Court to enjoin the defendants from voting in ways he believes are detrimental to him. This brings the case directly into the bar of legislative immunity.
Whitener v. McWatters, No. 96-117-A, slip op. at 4 (E.D.Va. Mar. 8, 1996).
Whitener contends that he harbored an unpopular opinion "regarding the voting conduct" of Board members; that he expressed such opinion to two members; and that "he was punished ... for expressing his minority opinions, under the guise that he had somehow engaged in 'abusive speech'." He argues that this is "precisely the type of scenario that the First and Fourteenth Amendments were designed to prevent, and to which the doctrine of absolute legislative immunity has never been applied." Arguing particularly that the district court erred in applying legislative immunity to this case, he maintains (1) that the Board of Supervisors did not act in a legislative capacity, but rather in an administrative or judicial one, and (2) that, in any event, legislative immunity does not apply to protect legislators acting in a manner that directly abridges his constitutional rights. The resolution of these issues is a matter of law that we consider de novo. See Alexander v. Holden, 66 F.3d 62, 65 (4th Cir.1995).
None of the parties appears to challenge the threshold legal principle that absolute legislative immunity applies similarly to federal, state, and local legislative bodies. In Tenney v. Brandhove, 341 U.S. 367, 376, 71 S.Ct. 783, 788, 95 L.Ed. 1019 (1951), the Supreme Court held that state legislators were cloaked with absolute immunity for their legislative actions, and the Court extended that protection to members of a regional political subdivision in Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 405, 99 S.Ct. 1171, 1179, 59 L.Ed.2d 401 (1979). We analogously applied principles of legislative immunity to members of a county council in Bruce v. Riddle, 631 F.2d 272, 279 (4th Cir.1980). As we summarized in Bruce, "if legislators of any political subdivision of a state function in a legislative capacity, they are absolutely immune from being sued under the provisions of § 1983." Id.
Whitener contends, however, that the discipline imposed by the Loudoun County Board of Supervisors was not legislative because it was neither prospective nor general, but rather administrative or judicial because it applied both retrospectively and specifically to him and only him. To maintain that his discipline was not a legislative act and therefore not protected by immunity, he relies heavily on our decisions in Alexander and Roberson v. Mullins, 29 F.3d 132 (4th Cir.1994). In both Alexander and Roberson county employees, who had been dismissed by their county boards, sued their boards for the improper termination of their employment. In both cases, we held that discharging a county employee was an administrative or executive act which did not engage the county's legislative function and therefore was not protected by legislative immunity. We noted that legislative action typically involves the promulgation of prospective, general rules, rather than actions taken against specified individuals. See Alexander, 66 F.3d at 66; Roberson, 29 F.3d at 135.
In contrast to the factual circumstances presented in Alexander and Roberson, however, the challenged action before us involves a local legislative body disciplining one of its elected members, not an employee. Even though Whitener relied upon Roberson and Alexander to argue that the Loudoun County Board had not acted in a legislative capacity, to address the distinguishing facts of this case he appears to argue that the Board, in disciplining one of its members, functioned in a judicial capacity. He states, "Appellees' decision to punish Appellant on the basis of the content of his speech was more like a judicial ... act." This argument, however, provides Whitener with no comfort because judicial functions are also protected by absolute immunity. See Butz v. Economou, 438 U.S. 478, 511-12, 98 S.Ct. 2894, 2913-14, 57 L.Ed.2d 895 (1978) (); Brown v. Griesenauer, 970 F.2d 431 (8th Cir.1992) ().
While Whitener may not derive persuasive support from Alexander and Roberson, the question remains whether a legislative body disciplining one of its members acts in a legislative capacity so as to enjoy absolute immunity in courts of law. Because the nature and scope of legislative immunity "has [its] taproots in the Parliamentary struggles of the Sixteenth and Seventeenth Centuries," Tenney, 341 U.S. at 372, 71 S.Ct. at...
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