First Amendment retaliation claim under 42 USC § 1983; Legislative immunity; Tenney v Brandhove; Whether legislative immunity extends to caucus membership & party resource allocation; McCann v Brady (7th Cir); “Discretionary”; Bogan v Scott-Harris

Holding that defendant-Ohio House Democratic Caucus performed a legislative act when it expelled plaintiff-former state representative from its ranks and barred her from accessing party resources, the court affirmed the district court’s dismissal of this lawsuit against caucus members. Plaintiff sued the Caucus along with the minority leader and another state representative under § 1983 claiming she suffered retaliation for protected speech. The district court dismissed her complaint on the basis that legislative immunity barred it. On appeal, the court found that legislative immunity extended to this dispute “over a vote to remove a legislative member from the” Caucus. The Caucus is “inextricably bound up in the legislative process.” It can 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” 85% of a quorum “must vote to do so. In these ways, the makeup of the Caucus is ‘integral’ to Caucus members’ ‘deliberative and communicative processes.’” As such, excluding a representative “is ‘part and parcel’ of that process and enjoys protection as well.” The same was true for allocating Caucus resources. The court rejected plaintiff’s argument that the Caucus removed her for trying to circulate a press release, not for a legislative act, and that her removal fell “outside the sphere of immunity because the Caucus does not have ‘discretionary legal authority’” to remove her. “‘[D]iscretionary,’ as used in Bogan and the cases that rely on it, distinguishes a discretionary exercise of judgment like adopting an ordinance, even an illegal one, from a ministerial duty like complying with a court order.” The Caucus’s decision to oust her “remained discretionary under that meaning, even if it allegedly violated state law.” Her argument failed to take her “expulsion and its consequences outside the legislative sphere.” In reaching this conclusion, the court did not pass judgment on the merits of plaintiff’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.’ Whatever the lawmakers’ motives, principles of immunity fence us out of the legislative sphere.”