Whitener v. McWatters

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

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

No. 96-1515

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.

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Claude M. Hilton, District Judge.

(CA-96-117-A)

Argued: January 27, 1997

Decided: April 30, 1997

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 dis-

senting opinion.

_________________________________________________________________

COUNSEL

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, Vir-

ginia, for Appellees.

_________________________________________________________________

OPINION

NIEMEYER, Circuit Judge:

When the Loudoun County (Virginia) Board of Supervisors disci-

plined one of its members for confronting other members with abu-

sive language, the disciplined member filed suit in federal court under

42 U.S.C. § 1983, alleging that the Board violated his First Amend-

ment 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 disci-

pline of one of its members is a core legislative act, we affirm.

I

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 offi-

cial meeting of the Board on January 3, 1996, they would vote in

accordance with the straw vote. For unexplained reasons, at the Janu-

ary 3 meeting certain members, including Joan Rokus and Eleanore

Towe, voted differently from the straw vote with the result that cer-

2

tain 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, ques-

tioning her integrity and trustworthiness. Likewise, two days later, he

called Towe to reprimand her. Both Rokus and Towe claim that Whit-

ener'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 count-

ing on her to keep her word." And Whitener does not deny making

the statement.

When Rokus and Towe complained to the full Board about Whit-

ener'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 recommenda-

tions. The committee met on January 26, 1996, and, after a conten-

tious 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 con-

sideration 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 Amend-

ment and procedural due process rights. He requested that the court

enjoin the Board from disciplining him. The defendant Board mem-

bers 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

3

firing of an employee, legislative immunity may not apply.

However, when the challenged activity concerns a core leg-

islative function, immunity does apply.

This case concerns the vote of the Board of Supervisors

in policing its own ethics violations, obviously a core legis-

lative activity. The plaintiff complains of an action by the

board to strip him of committee and commission assign-

ments 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 defen-

dants 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).

II

Whitener contends that he harbored an unpopular opinion "regard-

ing the voting conduct" of Board members; that he expressed such

opinion to two members; and that "he was punished. . . for express-

ing 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 dis-

trict 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 princi-

ple that absolute legislative immunity applies similarly to federal,

state, and local legislative bodies. In Tenney v. Brandhove, 341 U.S.

4

367, 376 (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 sub-

division in Lake Country Estates, Inc. v. Tahoe Regional Planning

Agency, 440 U.S. 391, 405 (1971). 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 judi-

cial 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 deci-

sions 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 abso-

lute immunity. See Butz v. Economou, 438 U.S. 478, 511-12 (1978)

5

(finding administrative law judge within executive department enti-

tled to absolute immunity); Brown v. Griesenauer , 970 F.2d 431 (8th

Cir. 1992) (giving local legislators absolute immunity for judicial

action of holding impeachment proceedings against mayor).

While Whitener may not derive persuasive support from Alexander

and Roberson, the question remains whether a legislative body disci-

plining 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,

we can review the development of the immunity to inform our con-

clusion.

As the English House of Commons matured from a meek body,

empowered only to petition the king, into a body itself responsible for

the text of laws, debate within the House became increasingly impor-

tant. With increased debate, the Speaker of the House changed his

"plea [to the king] for forgiveness" for uttering words displeasing to

the king into a general and more assertive petition for parliamentary

free speech. See David S. Bogen, The Origins of Freedom of Speech

and Press, 42 Md. L. Rev. 429, 432 (1983). At the same time, the

House of Commons began to punish its members who interfered with

parliamentary functions. See id. Over time, members of Parliament

claimed the right of free speech during parliamentary sessions and the

exclusive right to punish such speech, while the king continued to

maintain that the protection of speech in Parliament was merely a roy-

ally dispensed privilege. See id. at 432-33. He continued to claim the

right to punish "seditious" parliamentary speech. See id.; Sources of

Our Liberties 234 (Richard L. Perry et al., eds., (1991) (hereafter

Sources).

When Parliament attained supremacy after the Glorious Revolu-

tion, it clarified many points of law with the English Bill of Rights

of 1689. See Sources, at 223. Among the clarifications,

the said lords spiritual and temporal, and commons .. . do

in the first place (as their ancestors in like cases have usu-

ally done) . . . declare . . . 9. That the freedom of speech, and

debates or proceedings in parliament, ought not to be

6

impeached or questioned in any court or place out of

parliament.

Bill of Rights of 1689, 1 W. & M., sess. 2, c. 2, art. 9, quoted in

Sources, at 246-47 (emphasis added). In establishing that members'

speech should not be questioned "in any court or place out of

parliament," Parliament simultaneously denied the crown's authority

and asserted its own power to punish members' speech. Indeed, "[t]he

primary function of the privilege had been to limit jurisdiction to pun-

ish." Bogen, Origins, at 437. The Parliamentary privilege did not

relieve a member of accountability for speech, because his colleagues

could censure him for abuses. Id. at 436. Instead, the privilege was

intended to "prevent intimidation by the executive and accountability

before a possibly hostile judiciary." United States v. Johnson, 383

U.S. 169, 181 (1966).

Colonial assemblies followed Parliament's lead and successfully

asserted the freedom of legislative speech as so understood. See

Bogen, Origins, at 433 (citing M. Clarke, Parliamentary Privilege in

the American Colonies 62 (1971)); see, e.g., Mass. Const. of 1780,

Part 2, art. XXI ("The freedom of deliberation, speech, and debate, in

either house of the legislature, is so essential to the rights of the peo-

ple, that it cannot be the foundation of any accusation or prosecution,

action, or complaint, in any other court or place whatsoever."

(Emphasis added)). Indeed, in Virginia, where the Loudoun County

Board of Supervisors sits, "the assemblies had built up a strong tradi-

tion of [the] legislative privilege long before the Revolution." Tenney,

341 U.S. at 374 n.3; see also Va. Const. art. IV, § 9. When the several

colonies came together under the Articles of Confederation, the privi-

lege was restated in language similar to that of the English Bill of

Rights:

Freedom of speech and debate in Congress shall not be

impeached or questioned in any Court, or place out of

Congress, and the members of congress shall be protected

in their persons from arrests and imprisonments, during the

time of their going to and from, and attendance on congress,

except for treason, felony, or breach of the peace.

Articles of Confederation and Perpetual Union art. V, cl. 5 (emphasis

added).

7

Finally, with the ratification of the Constitution, it was again con-

firmed that "for any Speech or Debate in either House, [the represen-

tatives and senators] shall not be questioned in any other Place." U.S.

Const. art. I, § 6, cl. 1 (emphasis added). The Constitution also enu-

merates for Congress the power, long asserted by Parliament, to "pun-

ish its Members for disorderly Behavior, and, with the Concurrence

of two thirds, expel a Member." U.S. Const. art. I, § 5, cl. 2. Com-

menting on the power to punish members, Joseph Story said:

No person can doubt the propriety of the provision authoriz-

ing each house to determine the rules of its own proceed-

ings. If the power did not exist, it would be utterly

impracticable to transact the business of the nation, either at

all, or at least with decency, deliberation, and order. The

humblest assembly of men is understood to possess this

power; and it would be absurd to deprive the councils of the

nation of a like authority. But the power to make rules

would be nugatory, unless it was coupled with a power to

punish for disorderly behavior, or disobedience to those

rules.

Joseph Story, Commentaries on the Constitution of the United States

§ 419 (emphasis added).

Thus, Americans at the founding and after understood the power to

punish members as a legislative power inherent even in "the humblest

assembly of men." Id. This power, rather than the power to exclude

those elected, is the primary power by which legislative bodies pre-

serve their "institutional integrity" without compromising the princi-

ple that citizens may choose their representatives. See Powell v.

McCormack, 395 U.S. 486, 548 (1969) (holding Congress' power to

judge qualifications of members-elect limited to enumerated qualifi-

cations); see also U.S. Const. art. I, § 5, cl. 2 (granting the power to

expel only by two-thirds vote). Further, because citizens may not sue

legislators for their legislative acts, legislative bodies are left to police

their own members. Absent truly exceptional circumstances, it would

be strange to hold that such self-policing is itself actionable in a court.

This history and long practice confirm that the disciplinary action

taken by the Loudoun County Board of Supervisors against one of its

8

members was legislative in nature. And Whitener's own contentions

confirm that his conduct was legislative. He alleges that he harbored

an unpopular voting position on the Board; that he expressed his posi-

tion using abusive language; and that the Board disciplined him for

it. While he was arguably disciplined for speech, it was legislative

speech, which is protected from executive or, in the United States,

judicial interference, but not from the legislative body's judgment. As

legislative speech and voting is protected by absolute immunity, the

exercise of self-disciplinary power is likewise protected.

III

Whitener contends that even if the Board of Supervisors' action

were taken in a "legislative capacity," absolute immunity should not

apply because the Board's censure of him "directly abridge[d] . . .

[his] constitutional rights." He claims support for this broad assertion

from Bond v. Floyd, 385 U.S. 116 (1966). The holding in Bond, how-

ever, does not apply so broadly and, indeed, does not undermine the

well-established principle that legislatures may discipline members

for speech with the corollary immunity from executive or judicial

reprisal for doing so.

Bond did not even address the power of legislatures to discipline

members, but rather involved a question of whether the Georgia legis-

lature could refuse to seat members-elect in the first place. See id. at

118. The Georgia legislature refused to seat Julian Bond, based on the

perception that he was not able to swear sincerely to uphold the state

and federal constitutions. See id. at 123. The Supreme Court con-

cluded that the requirement of taking an oath "does not authorize a

majority of state legislators to test the sincerity with which another

duly elected legislator can swear to uphold the Constitution." Id. The

holding in Bond establishes the principle more exhaustively analyzed

three years later in Powell v. McCormack, 395 U.S. 486 (1969), that

members-elect must be seated if they meet constitutionally enumer-

ated qualifications. See id. at 553 n.7 (Douglas, J., concurring) (citing

Bond). In Powell, after surveying English history, the colonial experi-

ence, the constitutional convention, the ratification debates, and the

post-ratification practice, the Court concluded that the legislative

power to judge the qualifications of members-elect permits exclusion

only on the basis of enumerated qualifications. See id. at 521-48.

9

Whitener seeks to transform the narrow holdings of Bond and

Powell to imply that legislative censure is unconstitutional if moti-

vated by something the member said. But he provides no authority for

the proposition, and long practice indicates otherwise. "Congress fre-

quently conducts committee investigations and adopts resolutions

condemning or approving of the conduct of elected and appointed

officials, groups, corporations, and individuals. Members often vote

to do so, at least in part, because of what the target of their investiga-

tion or resolution has said." Zilich v. Longo , 34 F.3d 359, 363 (6th

Cir. 1994). Indeed, as the well-documented history of the speech and

debate privilege reveals, the privilege was an assertion of the legisla-

ture's exclusive jurisdiction to punish speeches made in the course of

legislative business. Indeed, that power, which exists to protect the

public reputation of legislative bodies and to make orderly operation

possible, has been exercised on at least two occasions to censure

United States Senators for speech that the Senate deemed inappropri-

ate. See IV Robert C. Byrd, The Senate: 1789-1989 671 (1993)

(recalling that Timothy Pickering was censured in 1811 for reading

documents in the Senate before an "injunction of secrecy" was

removed and that Benjamin Tappan was censured in 1844 for leaking

the President's message on a treaty to the press).

Finally, Whitener's expansive interpretation of Bond flies in the

face of the Supreme Court's decision in Tenney v. Brandhove. In

Tenney, the Supreme Court applied absolute legislative immunity

even though Brandhove alleged that the hearings in question were

intended "to intimidate and silence [him] and deter and prevent him

from effectively exercising his constitutional rights of free speech and

to petition the Legislature for redress of grievances." 341 U.S. at 371.

Whitener alleges similarly that the Loudoun County Board of Super-

visors retaliated against him for his speech. To allow Whitener's case

to proceed in court would require us to ignore the legislative body's

exclusive right, as articulated in Tenney.

Even if, at some level, there is a judicially enforceable First

Amendment constraint on a legislature's power to discipline one of

its members, we certainly do not approach it in this case. Whitener

was disciplined for his lack of decorum, not for expressing his view

on policy. We cannot conclude that the Loudoun County Board of

Supervisors was without power to regulate uncivil behavior, even

10

though it did not occur during an official meeting. Such abusiveness,

even when it occurs "behind the scenes," can threaten the deliberative

process. Indeed, "[t]he greatest concern over speech within a delibera-

tive body is that members might engage in personal invective or other

offensive remarks that would unleash personal hostility and frustrate

deliberative consideration." Bogen, Origins , at 436 (citing M. Clarke,

Parliamentary Privilege in the American Colonies 190-94 (1971)).

IV

Because we conclude that the Loudoun County Board of Supervi-

sors acted in a legislative capacity when it voted to discipline Whit-

ener, its action is protected by absolute legislative immunity. We

therefore affirm the judgment of the district court.*

AFFIRMED

DIANA GRIBBON MOTZ, Circuit Judge, dissenting:

Respectfully, I dissent. Because Whitener's removal from his com-

_________________________________________________________________

*By separate order, we have denied the Board's motion to dismiss this

appeal as moot. Neither party argued the point below or in their briefs

on appeal, and the issue arose only during oral argument on an inquiry

from the court. While the record therefore is not fully developed, we

agree with Whitener that interim events have not completely and irrevo-

cably eradicated the effects of the Board's discipline. See County of Los

Angeles v. Davis, 440 U.S. 625, 630 (1979). The Board voted that Whit-

ener be formally censured and stripped of his ability to serve and vote

on any of Loudoun County's standing committees and county commis-

sions for a period of one year. While the year has now passed and Whit-

ener has been made a member of some committees, he asserts that he

"has still not been reinstated in his previous committee chairmanships,

committee assignments and county commissions," having only been

allowed to serve "in a minor capacity on several of Loudoun County's

less influential standing committees." He claims also that he "has not

been awarded compensation for the court costs and legal fees" he has

incurred. And finally, the stigma of formal censure remains. For pur-

poses of the Board's motion, therefore, we can only assume that effects

of discipline have not yet been completely and irrevocably eradicated.

11

mittee assignments ended on February 7, 1997, this appeal is now

moot. Accordingly, I would dismiss it.

Under Article III of the United States Constitution, federal courts

may consider only cases or controversies. See S.E.C. v. Medical Com.

for Human Rights, 404 U.S. 403, 407 (1972) (citing Liner v. Jafco,

Inc., 375 U.S. 301, 306 n.3 (1964). Once an appeal becomes moot --

when it no longer presents any "live" issues-- we lack jurisdiction

over it. Powell v. McCormack, 395 U.S. 486, 496 (1969). It is well-

established that "federal courts may not `give opinions upon moot

questions or abstract propositions.'" Calderon v. Moore, 116 S. Ct.

2066, 2067 (1996) (quoting Mills v. Green, 159 U.S. 651, 653

(1895)). Nor is it sufficient that there may have been a "live" case or

controversy when the case was before the lower court. Burke v.

Barnes, 479 U.S. 361, 363 (1987) (citing Sosna v. Iowa, 419 U.S. 393

(1975)). Here, Whitener sought to enjoin the Board of Supervisors

from enforcing a one-year bar on his participation in its standing com-

mittees. As that one-year bar expired on February 7, 1997, Whitener

no longer has a "live" dispute with the Board that satisfies the case

or controversy requirement.

Alejandrino v. Quezon, 271 U.S. 528 (1926), directly addresses

Whitener's situation. A member of the Philippine Senate, Alejandrino

sought mandamus and an injunction against that body after he had

been expelled for one year. Ironically, like Whitener, he was accused

of angrily confronting another legislator after legislative proceedings

and outside the chambers. On appeal, the Supreme Court found the

case moot, reasoning:

We do not think that we can consider this question, for the

reason that the period of suspension fixed in the resolution

has expired, and, so far as we are advised, Alejandrino is

now exercising his functions as a member of the Senate. It

is therefore in this Court a moot question whether lawfully

he could be suspended in the way in which he was.

Alejandrino, 271 U.S. at 532.

The same conclusion must be reached here. Whitener has already

received the redress that he sought, namely, reinstatement to Board

12

standing committees. His suggestion that his appeal is not moot

because his new committee assignments differ from those he previ-

ously held is meritless in view of the fact that, as Whitener conceded

at oral argument, the Board has the ability to reconstitue standing

committees on a yearly basis as it chooses.

Similarly, Whitener's assertion that his appeal should not be found

moot because "there exists a reasonable expectation and probability

that the violations complained of in this appeal will recur" is no more

persuasive. There is absolutely nothing in the record to indicate that

the Board will impose another one-year punishment on Whitener; and

just as the Supreme Court in Alejandrino chose not to speculate on

future bases of jurisdiction, so should we. What Whitener really

seems to want is to litigate other, recently occurring, allegedly wrong-

ful conduct by the Board. That course is not open to him here -- he

cannot on appeal make claims never pled or even existing when this

suit was filed and considered by the district court. Moreover, these

asserted "new" violations can and will be addressed in ongoing litiga-

tion that has been initiated by the Board against Whitener through the

Virginia state court system.

Finally, since we lack jurisdiction to consider a moot claim, the

fact that the parties did not address mootness in their initial briefs, but

only in making and responding to a motion to dismiss on mootness

grounds, does not in any way prevent us from addressing mootness.

See Powell, 395 U.S. at 497 n.9 (observing that in Alejandrino the

parties did not brief mootness).

For all of these reasons, I believe Whitener's appeal is moot and

should be dismissed on that ground.

13