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