Bernadine Kent v. Ohio House of Representatives

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 22a0099p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
┐
BERNADINE KENNEDY KENT, former State
│
Representative,
│
Plaintiff-Appellant, │
> No. 21-3884
│
v. │
│
OHIO HOUSE OF REPRESENTATIVES DEMOCRATIC │
CAUCUS; EMILIA SYKES, Minority Leader; FRED │
STRAHORN, State Representative, │
Defendants-Appellees. │
┘
Appeal from the United States District Court for the Southern District of Ohio at Columbus.
No. 2:20-cv-06419—Edmund A. Sargus, Jr., District Judge.
Decided and Filed: May 9, 2022
Before: SUTTON, Chief Judge; MOORE and GILMAN, Circuit Judges.
_________________
COUNSEL
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.
SUTTON, C.J., delivered the opinion of the court in which GILMAN, J., joined.
MOORE, J. (pp. 13–16), 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
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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.
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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 (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
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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.
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The United States adopted England’s legislative privilege “as a matter of course.”
Tenney v. Brandhove, 341 U.S. 367, 372 (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. 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 and without
opposition.” Johnson, 383 U.S. at 177.
The pattern continued in the States after ratification of the U.S. Constitution. In the next
few years, Pennsylvania, Delaware, and Georgia included immunity provisions in their own
constitutions. Del. Const. of 1792, art. II, § 11; Pa. Const. of 1790, art. I, § 17; Ga. Const. of
1789, art. I, § 14. Connecticut and Rhode Island, which operated under royal charters
immediately after independence, included protections for legislators’ speech and debate in their
No. 21-3884 Kent v. Ohio House of Representatives, et al. Page 6
first post-Revolution constitutions. Conn. Const. of 1818, art. III, § 10; R.I. Const. of 1842, art.
IV, § 5. New York and Virginia recognized the privilege in colonial times, Mary Patterson
Clarke, Parliamentary Privilege in the American Colonies 64–66 (1943), and codified it by
statute, Tenney, 341 U.S. at 374 n.3; Edwards v. Vesilind, 790 S.E.2d 469, 477 (Va. 2016). Both
States formally incorporated the privilege during nineteenth-century constitutional conventions.
Va. Const. of 1870, art. V, § 11; N.Y. Const. of 1846, art. III, § 12. For the most part, each of
these original States opted for the Massachusetts model, later largely duplicated in the federal
language providing that “for any speech or debate in either house,” legislators “shall not be
questioned in any other place.” Rhode Island added a twist, replacing “speech or debate” with
“speech in debate.” R.I. Const. of 1842, art. IV, § 5. Georgia introduced a new formulation,
specifying that legislators not “be liable to answer for” their speech rather than that they not “be
questioned” for it. Ga. Const. of 1789, art. I, § 14.
The first state-court cases dignify the immunity. An influential case arose in
Massachusetts in 1808. In an opinion that the U.S. Supreme Court later described as “perhaps[]
the most authoritative case in this country” on legislative immunity, Kilbourn v. Thompson, 103
U.S. 168, 204 (1880), Chief Justice Parsons of the Massachusetts Supreme Judicial Court
construed the state constitutional provision “liberally,” Coffin v. Coffin, 4 Mass. 1, 27 (1808).
For the legislative privilege to realize its “full design” of enabling representatives “to execute the
functions of their office without fear of prosecutions,” the state court extended it not only to acts
like “delivering an opinion, uttering a speech, or haranguing in debate,” but also “to the giving of
a vote, to the making of a written report, and to every other act resulting from the nature, and in
the execution, of the office.” Id. Other state court cases at the outset embraced similar
interpretations of the common-law privilege for state and local legislators. See, e.g., Jones v.
Loving, 55 Miss. 109, 111 (1877); Dunham v. Powers, 42 Vt. 1, 8–9 (1869); Baker v. State, 27
Ind. 485, 488–89 (1867); Comm’rs of Anne Arundel Cnty. v. Duckett, 20 Md. 468, 476 (1864);
Wilson v. New York, 1 Denio 595, 599–600 (N.Y. 1845) (described as a “leading case regarding
legislative immunity” in Bogan v. Scott-Harris, 523 U.S. 44, 49–50, 50 n.4 (1998));
O’Donaghue v. M’Govern, 23 Wend. 26, 29 (N.Y. 1840).
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In 1880, the U.S. Supreme Court’s first legislative-immunity case followed these
footsteps in construing the federal guarantee. See Kilbourn, 103 U.S. at 203–04. It declined to
take a “narrow view” and “limit” the Clause “to words spoken in debate.” Id. at 204. If “a
report,” “a resolution,” and “a vote” are not covered, the Court reasoned, “of what value is the
constitutional protection?” Id. at 201. “In short,” it continued, the Clause’s logic applies to all
of the “things generally done in a session of the House by one of its members in relation to the
business before it.” Id. at 204.
After Kilbourn, still more States fell in line. By 1950, 41 of 48 States had expressly
protected legislative immunity in their constitutions. Tenney, 341 U.S. at 375 & n.5. Twenty-six
States adopted the Massachusetts language or the largely similar federal version. Others put
their own twist on it. Twelve States protected “words spoken,” “words uttered,” or “words used”
in debate. And Maine and Illinois followed Georgia in ensuring legislators would not be “liable”
or “held to answer.” Huefner, supra, at 236–37, 237 n.53. Despite these variations, courts in
States across these linguistic camps followed Kilbourn and Coffin, echoing the refrain that the
privilege sweeps as broadly as the scope of a representative’s legislative duties. See, e.g., Van
Riper v. Tumulty, 56 A.2d 611, 614 (N.J. Sup. Ct. 1948); Bigelow v. Brumley, 37 N.E.2d 584,
589–90 (Ohio 1941); Cole v. Richards, 158 A. 466, 467 (N.J. 1932); Houghton v. Humphries,
147 P. 641, 642 (Wash. 1915); Commonwealth v. Kenneday, 82 S.W. 237, 238 (Ky. 1904);
McGaw v. Hamilton, 184 Pa. 108, 115–16 (1898); Lewis v. Denver City Waterworks Co., 34 P.
993, 994 (Colo. 1893); State v. Elder, 47 N.W. 710, 715–16 (Neb. 1891) (Maxwell, J.,
concurring); Canfield v. Gresham, 17 S.W. 390, 392–93 (Tex. 1891); Dunham, 42 Vt. at 8–9.
That brings us to Tenney v. Brandhove, decided in 1951. The defendants were members
of the California Senate. Tenney, 341 U.S. at 369. Unlike the federal defendants in Kilbourn,
the Federal Speech or Debate Clause did not apply to them. And because § 1983 provides a
federal cause of action, they could not invoke any state-law version of the Clause. See Martinez
v. California, 444 U.S. 277, 284 & n.8 (1980); cf. Tenney, 341 U.S. at 375 n.5. Yet the Court
still held that the state legislators enjoyed immunity. Even though the text of the statute creates a
cause of action against “[e]very person” acting under color of state law, the Court held that this
“general language” was not clear enough to indicate that Congress meant to abandon “a tradition
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so well grounded in history and reason” as legislative immunity. Tenney, 341 U.S. at 369–76.
Because the defendants “were acting in the sphere of legitimate legislative activity” when they
convened a hearing and called Brandhove to testify, Brandhove could not sue them for that
conduct. Id. at 376–79.
Later cases added refinements. The Supreme Court now “generally . . . equate[s]” the
scope of state legislators’ statutory immunity under § 1983 with federal legislators’ constitutional
immunity under the Speech or Debate Clause and uses the relevant case law interchangeably.
Sup. Ct. of Va. v. Consumers Union of U.S., 446 U.S. 719, 733 (1980). Regional legislators,
local legislators, even non-legislative officials who act in a legislative capacity, enjoy immunity
in § 1983 actions. Id. at 734; Lake Country Ests. v. Tahoe Reg’l Plan. Agency, 440 U.S. 391,
405 (1979); Bogan, 523 U.S. at 53–55. These principles hold true for lawsuits for monetary
damages as well as for prospective relief. Eastland v. U.S. Servicemen’s Fund, 421 U.S. 491,
502–03 (1975).
Broad though the ambit of protection for the “legislative sphere” has become, it does not
cover everything lawmakers do. Gravel v. United States, 408 U.S. 606, 624–25 (1972).
Tenney’s “sphere of legitimate legislative activity” remains the touchstone. Echoing Kilbourn,
the Supreme Court continues to explain that the “legislative sphere” reaches things “generally
done in a session of the [legislature] by one of its members in relation to the business before it.”
Gravel, 408 U.S. at 623–24 (quotation omitted); see Kilbourn, 103 U.S. at 202–04. That
includes those matters “integral” to legislators’ “deliberative and communicative processes” for
evaluating bills, voting, or performing other tasks within their “jurisdiction.” Gravel, 408 U.S. at
625. The privilege immunizes lawmakers from lawsuits that would “indirectly impair” their
freedom to engage in tasks that are “indispensable ingredient[s] of lawmaking.” Eastland, 421
U.S. at 505. Federal courts have applied the immunity to tasks ranging from voting on bills,
Bogan, 523 U.S. at 55, to holding committee hearings, Doe v. McMillan, 412 U.S. 306, 311–12
(1973), to issuing subpoenas, Eastland, 421 U.S. at 505, to making a budgetary decision to
eliminate an alternative school, Smith v. Jefferson Cnty. Bd. of Sch. Comm’rs, 641 F.3d 197,
216–19 (6th Cir. 2011) (en banc).
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The States, for what it is worth, have largely moved in the same direction. See, e.g.,
Mesnard v. Campagnolo in & for Cnty. of Maricopa, 489 P.3d 1189, 1193–94 (Ariz. 2021);
Olson v. Lesch, 943 N.W.2d 648, 653–55, 653 n.5 (Minn. 2020); Edwards, 790 S.E.2d at 522–
23, 529 (Virginia); State v. Babson, 326 P.3d 559, 581–83 (Or. 2014); Baker v. Fletcher,
204 S.W.3d 589, 593–95 (Ky. 2006); Whalen v. Hanley, 63 P.3d 254, 258 (Alaska 2003); Brock
v. Thompson, 948 P.2d 279, 287–88, 287 n.26 (Okla. 1997); State v. Neufeld, 926 P.2d 1325,
1332 (Kan. 1996); Colo. Common Cause v. Bledsoe, 810 P.2d 201, 208–09 (Colo. 1991); People
v. Ohrenstein, 565 N.E.2d 493, 501 (N.Y. 1990); Holmes v. Farmer, 475 A.2d 976, 980–81 (R.I.
1984); Sweeney v. Tucker, 375 A.2d 698, 703 (Pa. 1977); Keefe v. Roberts, 355 A.2d 824, 826
(N.H. 1976) (per curiam).
This uniformity is not universal. The Hawaii Supreme Court has held that delegates to
the State’s constitutional convention “purposefully intended to broaden the scope of . . .
legislative immunity” beyond the federal model. Abercrombie v. McClung, 525 P.2d 594, 600
(Haw. 1974). Florida’s courts have recognized a legislative privilege, distinct from legislative
immunity, that protects representatives from testifying, even though the Florida Constitution
lacks a clause of its own. League of Women Voters of Fla. v. Fla. House of Representatives, 132
So. 3d 135, 143–46, 147 n.11 (Fla. 2013). And the Wisconsin Supreme Court has suggested that
the State’s Clause may apply differently, though without providing specifics. See State v. Beno,
341 N.W.2d 668, 675 (Wis. 1984). But any post-1951 defectors do not alter our course in this
case. The meaning of legislative immunity under § 1983, a question of federal law, has not
deviated from Tenney and its offspring.
Measured by these requirements and these applications of the privilege, it extends to
today’s dispute—over a vote to remove a legislative member from the Democratic Caucus. The
Caucus is inextricably bound up in the legislative process. The Caucus Leader assigns
representatives to committees, directs debate and strategy for the House Floor, and “generally
guide[s] the Caucus in its legislative strategy.” R.7-1 at 7. The Whip executes the nuts and bolts
of that legislative strategy and does everything from determining Caucus policy priorities to
maintaining a count of where representatives stand on key legislation to answering questions for
representatives about House policy or procedure. The committee ranking members assume
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similar roles in their respective committees. The Caucus can even choose to take legislative
positions and require members to vote a particular way on an initiative.
Control of Caucus membership directly affects these functions. The members select the
Leader and the Whip, and the Leader in turn designates committee ranking members. Before the
Caucus takes a position that binds its members, at least eighty-five percent of a quorum of the
Caucus must vote to do so. In these ways, the makeup of the Caucus is “integral” to Caucus
members’ “deliberative and communicative processes.” Gravel, 408 U.S. at 625. It follows that
excluding a representative is “part and parcel” of that process and enjoys protection as well. Id.
at 626.
The same is true for allocating Caucus resources. Determining how to distribute limited
resources is a key lever that Caucus leadership may use to direct legislative strategy. Judicial
intervention in such decisions would necessarily frustrate the representatives’ ability to structure
the deliberative process as they see fit.
Kent’s arguments confirm the point. She acknowledges, indeed claims, that one of her
lost benefits was access to legislative resources. She alleges that the Caucus blocked her from
accessing its legislative policy staff; barred her from its meetings, some of which presumably
involved legislative strategy; and prohibited her from participating in “substantive discussions
regarding proposed legislation and policy matters” with Caucus members. R.1 at 8. Each
resource is tied to the legislative process and the Caucus’s strategy for navigating it. Kent shows
how instrumental the Caucus’s services were to her own legislative tasks when she asserts that
their withholding “vastly diminished her effectiveness” and hindered her ability to “perform her
official duties and functions” “adequately.” Id. at 14–15. Addressing her claims would require
us to assess how the Caucus makes its strategic decisions about those resources and how much
weight that autonomy deserves in the face of a member’s free speech rights, a cost-benefit
analysis that legislative immunity pushes outside our reach.
We have company in reaching this conclusion. Other courts of appeals have addressed
caucus membership and party resource allocation and have held that legislative immunity
extends to both. McCann v. Brady, 909 F.3d 193, 194 (7th Cir. 2018); Youngblood v. DeWeese,
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352 F.3d 836, 842 (3d Cir. 2003); cf. Gamrat v. McBroom, 822 F. App’x 331, 333–34 (6th Cir.
2020) (holding that legislative immunity insulated the Michigan House’s decision to expel one of
its members); Whitener v. McWatters, 112 F.3d 740, 745 (4th Cir. 1997) (holding that a county
board of supervisors was protected by legislative immunity when it voted to discipline one of its
members). We agree that it is “emphatically not [the] job” of federal courts to “micro-manage
exactly which resources, and in what amount, the legislative leaders of the two major political
parties dole out to their members.” See McCann, 909 F.3d at 198; see Youngblood, 352 F.3d at
842.
Kent offers two responses.
She argues that the Caucus removed her for trying to circulate a press release, not for a
legislative act. This argument trains its aim at the wrong target. Our focus is not on whether
Kent’s conduct qualifies as legislative activity; it is whether the conduct of the representatives
she has sued does. Kent, to be sure, alleges that the Caucus blocked her from relying on its
“communications” and “media professionals.” R.1 at 8. And the Court has noted that legislative
immunity does not cover preparing “news letters to constituents, news releases, and speeches
delivered outside” the House chamber. United States v. Brewster, 408 U.S. 501, 512 (1972).
But the act of publishing a newsletter is different from denying a representative access to
professional staff who could assist in the task. It is this last act, which the Minority Leader could
use to influence legislative strategy and is interwoven with the legislative process, that gave rise
to this lawsuit. McCann, 909 F.3d at 197.
Kent also contends that her removal falls outside the sphere of immunity because the
Caucus does not have “discretionary legal authority” to remove her. Appellant’s Br. 22. It is
true that the Court has observed that a “discretionary, policymaking decision” bears “hallmarks
of traditional legislation.” Bogan, 523 U.S. at 55. But it is far from clear that to fall within the
legislative sphere, an action must resemble legislation. Id. Remember, the Supreme Court has
applied legislative immunity to tasks like issuing a subpoena in a congressional investigation,
Eastland, 421 U.S. at 504–06, and participating in a committee investigation, Doe, 412 U.S. at
312. And in any event, “discretionary,” as used in Bogan and the cases that rely on it,
distinguishes a discretionary exercise of judgment like adopting an ordinance, even an illegal
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one, from a ministerial duty like complying with a court order. 523 U.S. at 51. The Caucus’s
decision to oust Kent remained discretionary under that meaning, even if it allegedly violated
state law. See Smith, 641 F.3d at 218 (observing that even if officials “did not have the power to
abolish the alternative school under Tennessee law,” they “may still enjoy legislative immunity
as individuals in federal court for their legislative actions, sound or unsound”). This argument
fails to take Kent’s expulsion and its consequences outside the legislative sphere.
In reaching this conclusion, we do not pass judgment on the merits of Kent’s claim that
the representatives retaliated against her for speaking freely on a matter of public concern. Even
if her allegations are true, our system relies on “[s]elf-discipline and the voters,” not the federal
courts, “for discouraging or correcting such abuses.” Tenney, 341 U.S. at 378. Whatever the
lawmakers’ motives, principles of immunity fence us out of the legislative sphere.
We affirm.
No. 21-3884 Kent v. Ohio House of Representatives, et al. Page 13
_____________________________________
CONCURRING IN THE JUDGMENT
_____________________________________
KAREN NELSON MOORE, Circuit Judge, concurring in the judgment. I concur in the
judgment. Absolute legislative immunity protects the Ohio House Democratic Caucus’s decision
to remove Bernadine Kent from its ranks.
I. THE DOCTRINE OF LEGISLATIVE IMMUNITY
Legislative immunity derives from the federal Constitution’s Speech or Debate Clause,
which states in relevant part that, “for any Speech or Debate in either House, [Senators and
Representatives] shall not be questioned in any other Place.” U.S. Const. Art. I, § 6, cl. 1. The
Supreme Court has long interpreted this Clause to grant legislators “absolute immunity from
liability under § 1983 for their legislative activities.” Bogan v. Scott-Harris, 523 U.S. 44, 49
(1998) (citing, inter alia, Kilbourn v. Thompson, 103 U.S. 168, 202–04 (1880)). The Court held
in Tenney v. Brandhove that this absolute legislative immunity applies to state legislators. 341
U.S. 367, 376 (1951).
The Supreme Court has instructed courts to interpret this grant of absolute immunity
“broadly to effectuate its purposes.” United States v. Johnson, 383 U.S. 169, 180 (1966). As the
Court has recognized, the Clause “is framed in the broadest terms,” and so does not “prevent
only prosecutions based upon the content of speech.” Id. at 182–83 (internal quotation omitted).
Rather, “[a]bsolute legislative immunity attaches to all actions taken ‘in the sphere of legitimate
legislative activity.’” Bogan, 523 U.S. at 54 (quoting Tenney, 341 U.S. at 376).
The Court has lived up to that language. Legislators have been held immune from suit
for a host of actions, including deciding to include private information in a report submitted to a
congressional committee, Doe v. McMillan, 412 U.S. 306, 312–13 (1973); revealing classified
information while participating in legislative committees, Gravel v. United States, 408 U.S. 606,
609, 616 (1972); and performing various other activities that are “clearly a part of the legislative
process” including making a speech on the House floor, subpoenaing records for committee
hearings, and voting for resolutions, United States v. Brewster, 408 U.S. 501, 515–16 & n.10
No. 21-3884 Kent v. Ohio House of Representatives, et al. Page 14
(1972). Lower courts have not hesitated to apply these cases to state legislators. See, e.g.,
McCann v. Brady, 909 F.3d 193, 196–97 (7th Cir. 2018); Youngblood v. DeWeese, 352 F.3d 836,
840 (3d Cir. 2003).
This absolute immunity does not extend, however, to every act that a legislator may take.
The Speech or Debate Clause provides protection for only those acts which are “an integral part
of the deliberative and communicative processes.” Gravel, 408 U.S. at 625. The protection
extends beyond covering the content of legislators’ speeches and debates “only when necessary
to prevent indirect impairment of such deliberations.” Id. (quoting United States v. Doe,
455 F.2d 753, 760 (1st Cir. 1972)). Thus, the Supreme Court has placed various legislative
“errands”—preparing constituent newsletters, making speeches outside of Congress, appointing
individuals to government agencies, and the like—beyond the Clause’s protection. Brewster,
408 U.S. at 512. By instructing courts to contain the privilege within “its intended scope, its
literal language, and its history,” the Supreme Court has sought to avoid transforming legislators
into “super-citizens.” Id. at 516.
II. THE CAUCUS’S CONDUCT
I now evaluate the Caucus’s conduct under our law. As discussed above, the Supreme
Court has taken a broad view of what qualifies as part of the legislative process. The Caucus’s
use of staff and resources to advance its interests falls within that broad definition, and the
Caucus is therefore absolutely immune from Kent’s suit.
Ohio law recognizes the existence of party caucuses in the houses of its general
assembly. Ohio Rev. Code Ann. § 101.15(A)(1). Ohio law also recognizes these caucuses’
political nature, exempting them from the state’s open-meetings requirement and allowing them
to engage in political strategizing and goal-setting in private. Id. at § 101.15(F)(2). By explicitly
referencing party caucuses and the role that they play in Ohio’s political ecosystem, the Ohio
Revised Code suggests that state caucuses are engaged in “the consideration and passage or
rejection of proposed legislation or with respect to other matters which the Constitution places
within the jurisdiction of either House.” Gravel, 408 U.S. at 625. This strongly implies that the
No. 21-3884 Kent v. Ohio House of Representatives, et al. Page 15
discretionary decisions made by party caucuses fall within the protection of the Speech or Debate
Clause. See McCann, 909 F.3d at 197–98.
Evaluating the actions that the Caucus takes on a day-to-day basis confirms that the
Caucus engages in the sort of deliberative and communicative legislative work that the Speech or
Debate Clause protects. To advance the legislative and political interests of the Ohio Democratic
Party, the Caucus marshals professional resources including legal counsel, communications staff,
and policy aides. R. 1 (Compl. at ¶¶ 28–30) (Page ID #8). The Caucus determines how to
distribute those institutional resources—including “office-staffing request[s]” and the “selection
of committees”—through a series of discretionary decisions. See R. 7-1 (Rules of the Ohio
House of Representatives Democratic Caucus at 4) (Page ID #50). The Caucus’s rules explain
that those decisions will be informed by factors such as “involvement in the Caucus[ and] active
participation in Caucus activities.” Id.
The Caucus takes these actions with the end goal of advancing the interests of the Ohio
Democratic Party. How the Caucus chooses to distribute its resources to achieve this end goes to
an “integral part of the deliberative and communicative processes” of legislating. Gravel,
408 U.S. at 625. So, too, do the Caucus’s decisions to discipline those whom it perceives, rightly
or wrongly, as acting to subvert its ends or impede its cohesion. Here, the Caucus decided to
remove Kent pursuant to these legislative ends, so the decision falls within “the sphere of
legitimate legislative activity.” Tenney, 341 U.S. at 376.
Separation-of-powers principles strengthen this conclusion. “The Speech or Debate
Clause, and the doctrine of legislative immunity on which it rests, essentially tells the courts to
stay out of the internal workings of the legislative process.” McCann, 909 F.3d at 198. This
case demonstrates the wisdom of keeping political disputes out of the courthouse. Were our
court to adjudicate this matter, we would have to resolve a dispute between two essentially
political positions: Kent’s desire to use the “bully pulpit of her office as State Representative” to
“advoca[te for] children and crime victims,” Appellant Br. at 17 (internal quotation omitted), and
the Caucus’s determination of “who to include in their party caucus and how to allocate caucus
resources,” Appellee Br. at 2.
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To review Kent’s suit against the Caucus, we would be forced to evaluate whether the
Caucus’s decision to expel Kent reasonably furthered the Caucus’s goal of promoting the
Democratic Party’s interests. Or perhaps we would just ask whether Kent’s expulsion plausibly
advanced those ends. Maybe, on the other hand, a more-stringent standard would be needed:
whether Kent’s expulsion clearly facilitated those goals. Given the thorny political issues
involved, even picking a standard is fraught. The court should not go down this path. To do so
“would compromise the independence of the legislative branch, the very principle legislative
immunity is intended to protect.” Youngblood, 352 F.3d at 842.
Buttressing my conclusion, our sibling circuits have applied the legislative privilege in
similar circumstances. The Fourth Circuit concluded that “a legislative body’s discipline of one
of its members is a core legislative act.” Whitener v. McWatters, 112 F.3d 740, 741 (4th Cir.
1997). The Seventh Circuit insulated from judicial scrutiny the decision to remove a member of
the Illinois Senate from the Illinois Senate Republican Caucus, framing the expulsion as a
“decision[] about how to allocate the staff resources available to Illinois’s Republican senators.”
McCann, 909 F.3d at 197. The Third Circuit held that the Pennsylvania House Democratic
Caucus’s decision to deny one member “an adequate budget allocation” also fell within
legislative immunity. Youngblood, 352 F.3d at 838, 841. And this court categorized the
expulsion of a state representative from the Michigan House of Representatives as “within the
legislature’s sole jurisdiction.” Gamrat v. McBroom, 822 F. App’x 331, 334 (6th Cir. 2020).
These only strengthen the conclusion that legislative immunity applies to the Caucus’s decision.
The Caucus’s decision falls within absolute legislative immunity’s broad parameters. I
concur in the judgment to affirm the district court.