Whitener v. McWatters

Anderson, 641, 107 483 U.S. at S.Ct. at 3039- record, we are unable to find

40. this On objective reasonableness

that the standard public

applied to the actions of officials has transgressed.

been

III. reasons, foregoing

For the we conclude qual-

that the DSS defendants are entitled to immunity.

ified Because the district court denying summary motion

erred for

judgment, hereby reverse.

REVERSED. WHITENER, D.

Steven Plaintiff-

Appellant, McWATTERS, County

David Loudoun Su

pervisor, District; Run Broad Scott K.

York, County Supervisor, Loudoun Ster

ling District; Rokus, Joan G. Loudoun

County Supervisor, Leesburg District; Towe,

Eleanore C. Loudoun Su

pervisor, District; Ridge Blue James G.

Burton, County Supervisor, Loudoun District; Beerman,

Mercer Lawrence S.

II, County Supervisor, Loudoun Dulles

District; Myers, Dale Polen Chairman Large; Markum, Helen A. Loudoun Henry Partridge, ARGUED: John Hern-

County Supervisor, District, don, Virginia, Catoctin Appellant. Joseph William Defendants-Appellees. Carter, Carr, Goodson, Warner, Lee & D.C., Washington, Appellees. ON

No. 96-1515. Smith, Jr., Carr, BRIEF: Samuel J. Good- son, Warner, D.C.; Appeals, Washington, United Lee & States Court of John Grad, Grad, Klewans, P.C., Logan Fourth David & Circuit. Alexandria, Virginia, Appellees. Argued Jan. 1997. MURNAGHAN, NIEMEYER, Before April Decided MOTZ, Judges. Circuit by published Judge opinion. Affirmed majority opinion, NIEMEYER wrote the Judge joined. Judge which MURNAGHAN dissenting opinion. wrote a MOTZ complained to the Rokus and Towe When OPINION unseemly Whitener’s behav- full Board about NIEMEYER, Judge. Circuit punished requested and that Whitener be ior County (Virginia) Loudoun When appoint- language, the Board his abusive of its disciplined one Supervisors of Board committee ad hoc ethics ed a three-member members confronting other members complaint make recom- investigate the and mem- disciplined language, the abusive with January The committee met mendations. 42 U.S.C. court under suit federal ber filed and, meeting after a contentious his alleging that the Board violated § arguments testimony given and where pro- due procedural and Amendment First made, 2-1 that Whiten- to recommend voted dismissed rights. The district court cess formally period [one for a of censured er “be concluding that the Board mem- complaint, changed be year] and that the rules of order immunity. legislative enjoyed absolute bers standing him from all committees to remove body’s legislative that a we hold Because assignments and Board as well as all [the] of is a core discipline of one of its members committees, commis- appointments to outside act, legislative we affirm. sions, ad hoc etc.” On consideration recommendation, Board vot- committee’s strip I 5-4 to to censure Whitener and ed 8-1 peri- assignments for a him his committee of Following on November their election year. of one od Loudoun members of the the nine its rec- ad hoc committee made anticipa- After the County Supervisors met Board before the full Board term, ommendation but four-year which was to tion of their it, on Whitener filed 1,1996. Supervisors had acted During the meet- January begin on eight members of the against the other suit vote” to deter- ing, they conducted a “straw 1983, alleging, § under U.S.C. they gave Board membership, and committee mine violated among things, that the Board other at the first official assurances that each other procedural due Amendment and January his First meeting the Board on court rights. requested that the process the straw in accordance with they would vote him. The enjoin disciplining from reasons, the Board at the Janu- unexplained vote. For a motion to members filed including defendant Board ary meeting certain dismiss, immunity, asserting legislative and Towe, voted differ- Rokus and Eleanore Joan motion. It granted court the district ently vote with the result from the straw chairmanships given concluded: were certain committee by the than had been indicated to others immunity involving lo- eases legislative In vote. straw challenged ac- jurisdictions where cal administrative, firing as the such tion is Whitener, adversely af- a member Steven immunity legislative employee, an and be- change, was shocked fected However, challenged ac- apply. when After the with the breach. came incensed function, tivity a core concerns pri- Rokus January meeting, he confronted immunity apply. does her, reprimanded questioning her vately and vote of the Likewise, concerns the two This case integrity and trustworthiness. its own ethics Supervisors policing later, reprimand her. days he called Towe violations, legislative ac- obviously a core that Whitener’s Both Rokus and Towe claim an action complains of tivity. plaintiff The them exceeded conversations with him committee strip by the board decency civility. Rokus re- bounds assignments for his conduct say commission that “she shouldn’t ported Whitener (the of the board confronting other members had hon- Supervisors who have let us vote) language. Plaintiff his use of abusive straw commitments from the ored their voting or in- challenge legislative may not up f—ed her when we all sit there be why made. votes were quire as to counting keep her word.” on her were enjoin the asking the making plaintiff deny And Whitener does not ways voting in he believes from defendants statement. brings being provisions to him. from are detrimental This the mune sued under the directly § ease into the bar of of 1983.” Id. immunity. contends, however, that the dis- n McWatters, 96-117-A, slip No.

Whitener v. cipline imposed by (E.D.Va. 8, 1996). op. at 4 Mar. was not be- general, it prospective cause neither nor was

II judicial but rather administrative or because applied retrospectively specifical- it both contends that he harbored an Whitener ly only to him and him. To maintain that his unpopular opinion “regarding voting the con- legislative discipline was not a act and there- members; expressed that duct” of Board he protected by immunity, not fore he relies members; opinion such to two and that “he heavily in on our decisions Alexander and punished expressing ... was his minori- Mullins, (4th Roberson v. 29 F.3d 132 Cir. ty guise opinions, under the that he had 1994). In both Alexander and Roberson engaged speech’.” in somehow ‘abusive He county employees, who had been dismissed argues “precisely type that this of the sce- boards, county their sued their boards for nario that the First and Fourteenth Amend- improper employ- termination of their designed prevent, ments were to and to cases, In discharg- ment. both we held that legislative which of im- the doctrine absolute ing county employee a was an administrative munity applied.” Arguing has never been engage or executive act which did not particularly that the district court erred in county’s legislative function and therefore case, applying legislative immunity to this he protected by legislative immunity. was not (1) maintains that the Board of legislative typically that We noted action in- legislative capacity, in did not act a but rath- promulgation prospective, gen- volves the of one, judicial er in an administrative rules, against eral rather than actions taken (2) that, event, any legislative immunity in Alexander, specified individuals. See 66 F.3d apply protect legislators acting does not to 66; Roberson, at F.3d at 29 directly abridges in a manner that his con- rights. stitutional The resolution of these In contrast to the factual circum issues a of is matter law that we consider de presented stances in Alexander and Rober Holden, 62, novo. Alexander v. 66 F.3d son, however, challenged action before us (4th Cir.1995). 65 legislative body disciplining involves a local members, parties appears challenge employee. None of the one its elected not an legal principle though upon threshold that absolute Even relied Whitener Roberson legislative immunity applies similarly argue to fed and Alexander to eral, state, and local In bodies. Board had not acted in a Brandhove, 367, 376, Tenney capacity, distinguishing 341 U.S. 71 address facts 783, 788, (1951), , appears 95 L.Ed. argue of this case he Board, legislators held that in disciplining Court state one of its immunity judicial states, capacity. were cloaked with absolute functioned in a actions, and the “Appellees’ punish Appellant ex decision to protection tended that to members of a re the basis of the content of his gional political Country judicial in argument, subdivision Lake more like a ... act.” This Estates, however, Regional Planning Inc. v. provides Tahoe with no comfort Agency, judicial protected U.S. 99 S.Ct. because functions are also v, analogously immunity. 59 L.Ed.2d 401 We absolute See Butz Econo mou, applied principles legislative immunity 511-12, (1978) county (finding members of a council Bruce v. ad Riddle, (4th Cir.1980). judge 631 F.2d As ministrative law within executive de Bruce, legislators partment immunity); we “if summarized entitled to absolute (8th Griesenauer, any political subdivision of a state function in Brown F.2d 431 Cir.1992) legislative capacity, they absolutely legislators a im- (giving are local absolute im- judicial holding impeach- munity questioned any action of place court or out of against mayor). parliament. proceedings ment persuasive While Whitener derive 1689,1W. Bill Rights M., & sess. c. Roberson, support from Alexander Sources, art. quoted in (empha- at 246-47 legislative body question remains whether a added). establishing sis In that members’ disciplining one of its members acts questioned should not be any “in legislative capacity enjoy so as to absolute place court or parliament,” out Parliament immunity in courts of law. Because the na- simultaneously denied the authority crown’s scope legislative immunity ture and “has power and asserted its own mem- taproots Parliamentary struggles [its] Indeed, speech. bers’ primary “[t]he func- Centuries,” of the Sixteenth and Seventeenth tion privilege of the juris- had been to limit Tenney, 341 at U.S. punish.” diction Bogen, Origins, at 437. development immunity can review the Parliamentary privilege did not relieve a to inform our conclusion. accountability member of speech, for because colleagues his could censure him for abuses. English the As House Commons ma- Instead, Id. at 436. privilege thé was intend- body, empowered only tured from a meek “prevent ed to by intimidation the executive petition king, body responsi- a into itself accountability and possibly before a hostile laws, ble for the text of debate within the Johnson, judiciary.” United States v. increasingly important. House became With U.S. 15 L.Ed.2d debate, Speaker increased of the House (1966). changed “plea king] forgive- his for [to uttering displeasing ness” for words to the Colonial assemblies followed Parliament’s king general peti- into a and more assertive successfully lead and asserted the freedom of parliamentary speech. tion for free See legislative speech as so understood. See Bo- Bogen, Origins David S. The Freedom of gen, Origins, Clarke, (citing at 433 M. Parli- Press, Speech and 42 Md.L.Rev. 432 amentary Privilege in the American Colo- time, At the same House of Const, (1971)); see, e.g., nies 62 Mass. began punish Commons its members who (“The Part art. XXI freedom of parliamentary interfered with functions. See deliberation, speech, debate, and in either time, id. Over members of Parliament legislature, house of the is so essential to the right speech during parli- claimed the of free rights people, of the that it cannot be the amentary right sessions and the exclusive any foundation of prosecution, accusation or punish speech, king such while the continued action, complaint, any or in other court or protection speech to maintain that the in added)). place (Emphasis whatsoever.” In- merely royally dispensed Parliament was a deed, Virginia, County in where the Loudoun privilege. id. at 432-33. He continued sits, Board of “the assemblies right punish to claim the “seditious” parli- up strong had legis- built tradition of [the] id.; amentary speech. See Sources Our privilege long lative before the Revolution.” (Richard ah, eds., Perry Liberties L. et Tenney, 341 U.S. at 374 n. at 787 (1991) (hereafter Sources)). Const, 3; IV, § see also Va. art. 9. When together the several colonies came under the supremacy Parliament When attained after Confederation, privilege Articles of was Revolution, many the Glorious it clarified language restated in similar to that of the points English Rights of law with the Bill- English Rights: ofBill Sources, Among of 1689. See at 223. clarifications, Congress Freedom of and debate spiritual temporal,

the said impeached lords and and shall questioned not be or (as Court, place any commons ... do in the first place Congress, their or out and done) usually ancestors in like congress protect- cases have the members of shall be ... declare ... 9. That persons ed in their from im- arrests and freedom of speech, proceedings par- prisonments, and debates or during going the time of their liament, ought from, impeached congress, to be or to and and attendance on treason, legislative acts, felony, legislative bodies of the are

except for breach police peace. left to their own members. Absent circumstances, truly exceptional it would be Perpetual Un- Articles of Confederation strange self-policing is that such itself hold added). V, (emphasis ion art. cl. 5 actionable in a court. the ratification of the Consti- Finally, with any tution, “for again confirmed that it was long practice history This confirm House, rep- Speech [the in either or Debate disciplinary that the action taken the Lou ques- senators] shall not be resentatives Supervisors against doun Const, art. any Place.” other U.S. tioned legislative of its one members was nature. added). I, (emphasis § Constitu- cl. And contentions confirm Whitener’s own Congress power, tion also enumerates alleges legislative. his conduct Parliament, “punish its long asserted position unpopular voting he harbored an Behavior, and, disorderly with Members Board; position expressed his that he thirds, expel of two a Mem- the Concurrence using language; and that the abusive Const, I, § art. cl. Com- ber.” U.S. disciplined argu him it. he was for While power to menting on the ably disciplined speech, it was Story Joseph said: speech, or, protected which is from executive the propriety can doubt person No States, judicial interference, in the United provision authorizing each house to deter- body’s judgment. but not from the proceedings. its own If mine the rules of voting protected As exist, utterly not it would power did be the immunity, absolute the exercise of self- transact of impracticable to the business disciplinary protected. power is likewise all, nation, at at least with the either deliberation, and The decency, order. Ill assembly men is understood humblest of Whitener that if the power; and it would be contends even Board possess this to Supervisors’ “legis- nation taken in a deprive to the councils of the action were absurd authority. power capacity,” immunity But the to make lative absolute should of a like apply nugatory, not Board’s censure him be unless it was because the rules would “directly punish abridge[d] to ... coupled power [his] with a disor- constitutional for behavior, rights.” support or disobedience to those claims for this broad derly Floyd, assertion 385 from Bond U.S. rules. 87 S.Ct. The Joseph Story, on the Commentaries Consti- Bond, however, holding in apply does not so § (emphasis United States 419 tution the and, indeed, broadly does not undermine the added). legislatures principle that well-established Thus, founding at the after Americans may discipline members for with the power to members as understood the corollary judicial immunity from executive or legislative power a inherent even in “the reprisal doing so. assembly pow- of men.” Id. This humblest er, power power to did than the exclude those Bond not even address the rather members, elected, power by legis- legislatures discipline but primary the which to rather question their in- involved a preserve Georgia “institutional of whether the lative bodies tegrity” compromising principle legislature to seat without the could refuse members- may representa- place. in the at choose eleet first See id. that citizens McCormack, Georgia legislature at Powell v. 395 U.S. S.Ct. 341. The re- tives. See Bond,- 23 L.Ed.2d 491 fused to seat Julian based on 89 S.Ct. the (1969) Congress’ power judge perception to (holding to that he was not able swear sincerely qualifications uphold of members-eleet limited to to the state federal at qualifications); see also U.S. constitutions. id. at 87 S.Ct. 343. enumerated Const, I, (granting power Supreme § The concluded that art. cl. to Court the re- vote). Further, expel quirement taking only by two-thirds be- an oath “does autho- legislators legislators majority not sue rize a of state test the cause. citizens sincerity duly message treaty with which another elected President’s on a to the legislator uphold press). can the Constitu- swear holding in Bond establishes

tion.” Id. Finally, expansive interpreta- Whitener’s exhaustively analyzed principle more tion of Supreme Bond flies in the face of the McCormack, years three later Powell in Tenney Court’s decision v. Brandhove. In 486, 89 23 L.Ed.2d S.Ct. 491 Tenney, applied absolute (1969), that must be seated if members-elect legislative immunity though even Brandhove they constitutionally quali- meet enumerated alleged hearings in question were at at fications. See id. 1980 intended “to intimidate and silence [him] and J., Bond). (Douglas, concurring) (citing n. 7 prevent deter and him from effectively exer- Powell, surveying English history, In after cising rights his constitutional of free experience, the colonial the constitutional petition and to Legislature redress convention, debates, ratification and the grievances.” 341 U.S. at at post-ratification practice, the Court conclud- alleges similarly that the Loudoun legislative power, judge ed that the County retaliated qualifications permits of members-elect ex- against speech. him for his To allow.Whiten- only qual- clusion on the basis of enumerated proceed er’s ease require in court would us ifications. See id. at ignore body’s exclusive 1963-78. right, Tenney. as articulated in Whitener seeks to transform the narrow if, level, Even at some there is a holdings imply of Bond and Powell to judicially enforceable First Amendment con if censure is unconstitutional moti- legislature’s straint power discipline by something the member said. But vated one of its certainly do not provides authority proposition, he no for the approach it in this ease. Whitener was disci long practice indicates otherwise. “Con- plined decorum, for his lack of not for ex gress frequently conducts committee investi- pressing policy. his view on We cannot con gations adopts condemning resolutions clude that approving or of the conduct of elected and Supervisors power regulate was without officials, appointed groups, corporations, and behavior, uncivil though even it did not occur so, individuals. Members often vote to do during meeting. an official Such abusive part, in target least because of what the of ness, it even when occurs “behind the investigation or resolution has said.” scenes,” can pro threaten the deliberative (6th 359, Longo, Zilich v. 34 F.3d Cir. Indeed, greatest cess. concern “[t]he over 1994). Indeed, as the well-documented histo- speech body within a deliberative is that ry reveals, privilege and debate might engage personal members invective privilege legisla- anwas assertion of the or other offensive remarks that would un jurisdiction ture’s exclusive personal hostility leash and frustrate deliber speeches made the course of Bogen, ative Origins, consideration.” at 436 Indeed, power, business. that which exists Clarke, (citing Parliamentary Privilege M. protect public reputation (1971)). in the American Colonies 190-94 orderly operation possi- bodies and to make ble, has been exercised on at least two occa- IV sions to censure United States Senators for Because we conclude that inappropri- that the Senate deemed Supervisors legis acted in a Byrd, ate. See IV Robert C. The Senate: capacity discipline lative when it voted to (1993) (recalling Timothy 1789-1989 671 that Whitener, protected by its action is absolute Pickering reading was censured 1811 for legislative immunity. We therefore affirm “injunc- documents in the Senate before an judgment of the district court.* secrecy” Benja- tion was removed that Tappan leaking min censured 1844 for AFFIRMED.

* order, By separate party argued point we have the Board's denied below in their briefs on appeal appeal, only during motion to dismiss this as moot. Neither and the issue arose oral Senate, Alejandrino sought MOTZ, Philippine Judge, Circuit

DIANA GRIBBON injunction against and an mandamus dissenting. expelled year. body he had been for one after Whiten- I Because Respectfully, dissent. Whitener, accused of Ironically, like he was assignments committee from his er’s removal legislator confronting another after angrily 7, 1997, appeal this is February ended on proceedings outside the cham- I it. Accordingly, would dismiss now moot. found appeal, the bers. On of the United States III Article Under moot, reasoning: the case may Constitution, courts consider federal can consider this do not think We v. See S.E.C. controversies. only cases or period that the question, for the reason Rights, Human 404 U.S. Com. Medical suspension fixed in the resolution has ex- 579-80, 577, 30 L.Ed.2d 560 403, 407, 92 S.Ct. advised, and, far as we are Ale- pired, so Inc., (1972) Jafco, v. 375 U.S. (citing Liner exercising as jandrino is now his functions 391, 3, 11 394 n. It therefore in a member of the Senate. is (1964)). appeal be Once an L.Ed.2d 347 question a moot whether lawful- this Court longer presents any it no comes moot—when way in ly suspended in the he could be jurisdiction over it. lack “live” issues —we was. which he McCormack, 486, 496, 89 395 U.S. Powell v. Alejandrino, 271 U.S. at 46 S.Ct. at 601. 23 L.Ed.2d 491 conclusion must be reached The same courts that “federal It well-established already has received the here. Whitener upon questions moot opinions ‘give ” namely, sought, that he reinstate- redress v. propositions.’ Calderon or abstract — standing to Board committees. His U.S.-,-, ment Moore, 116 S.Ct. (1996) appeal suggestion that his is not moot be- (quoting Mills L.Ed.2d 453 assignments differ 651, 653, 132, 133, cause his new committee Green, 16 S.Ct. 159 U.S. (1895)). previously meritless in from those he held is it sufficient that Nor is 40 L.Ed. 293 that, the fact as Whitener conceded view of a “live” case or contro may have been there ability argument, has the at oral the Board case was before the lower versy when Barnes, standing yearly reconstitute committees on a 479 U.S. Burke v. court. (1987) it basis as chooses. L.Ed.2d 732 107 S.Ct. Iowa, (citing Sosna Similarly, ap- that his Whitener’s assertion (1975)). Here, “there peal should not be found moot because enjoin the Board sought to expectation probabili- exists a reasonable one-year partic on his enforcing a bar from complained ty that the violations this standing committees. As that ipation in its persuasive. appeal will recur” is no more February one-year expired on bar absolutely nothing in There is the record dispute longer has a “live” with no impose indicate that the Board will another the case or contro that satisfies Whitener; just one-year and punishment on versy requirement. Alejandrino chose as the jurisdic- Quezon, speculate not to on future bases of 271 U.S. Alejandrino v. tion, really (1926), directly ad- so should we. What Whitener L.Ed. 1071 other, recently litigate to want is to A member of seems situation. dresses Whitener’s tees, inquiry he asserts that he "has still not been rein- argument from the court. While on an chairmanships, previous fully developed, in his committee stated therefore is not the record assignments county and commis- events have not committee agree Whitener that interim with sions,” having only "in a irrevocably been allowed to serve completely eradicated the effects and capacity County’s of Loudoun discipline. Los minor on several of the Board’s Davis, standing claims influential committees.” He Angeles less compensa- not been awarded also that he "has legal fees” he has formally tion for the court costs and be censured Board voted that Whitener finally, stigma ability of formal cen- stripped and vote on incurred. And of his to serve and purposes mo- County’s standing For of the Board's any committees sure remains. tion, of Loudoun therefore, only effects period we can assume that county for a of one commissions yet completely discipline and ir- year. year passed Whit- have been has now While the revocably eradicated. of some commit- ener has been made member by occurring, allegedly wrongful conduct open That is not to him

Board. course appeal on make claims nev-

here —he cannot existing this suit pled

er or even when and considered the district court.

filed

Moreover, “new” violations these asserted ongoing litiga-

can and will be addressed

tion that has been initiated the Board through Virginia

against Whitener state system.

court jurisdiction

Finally, lack to con- since we claim, parties fact

sider a moot that'the

did not address mootness initial

briefs, only making responding but grounds,

a motion to dismiss on mootness any way prevent not in us from ad-

does Powell,

dressing mootness. See 395 U.S. at (observing at 1951 n. 9 Alejandrino parties did not brief

mootness). reasons, all of I believe

For these Whiten- appeal is moot should be dismissed

er’s ground. America,

UNITED STATES of

Plaintiff-Appellee,

Henry ACHIEKWELU, Defendant-

Appellant.

No. 95-5765. Appeals,

United States Court

Fourth Circuit. 7,,

Argued March 1997. 1,May

Decided

Case Details

Case Name: Whitener v. McWatters

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Apr 30, 1997

Citation: 112 F.3d 740

Docket Number: 96-1515

Court Abbreviation: 4th Cir.