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Fowler-Nash v. Democratic Caucus of the Pennsylvania House of Representatives

November 29, 2006


On Appeal from the United States District Court for the Western District of Pennsylvania District Court No.: 05-cv-01672 District Judge: The Honorable Arthur J. Schwab.

The opinion of the court was delivered by: Smith, Circuit Judge.


Argued on October 26, 2006

Before: SMITH, WEIS, and NYGAARD, Circuit Judges


Amy Fowler-Nash ("Fowler-Nash") brought suit pursuant to 42 U.S.C. § 1983 against the Democratic Caucus of the Pennsylvania House of Representatives ("the Caucus"), state representative Ted Harhai, and Scott Brubaker, Director of Staffing and Personnel for the Caucus. Fowler-Nash alleged that she was discharged from her position as a legislative assistant to Harhai in violation of her First and Fourteenth Amendment rights. The Caucus filed a motion for judgment on the pleadings on the basis of common law legislative immunity. FED. R. CIV. P. 12(c). The Caucus argued that it was entitled to absolute legislative immunity as Fowler-Nash was employed as a legislative assistant, and her firing was therefore necessarily "within the sphere of legitimate legislative authority." Tenney v. Brandhove, 341 U.S. 367, 376 (1951).

The District Court denied the Caucus's Rule 12(c) motion, holding that the Caucus did not exercise a legislative function when it terminated Fowler-Nash. The Caucus contends that application of a functional test, derived from the Supreme Court's opinion in Forrester v. White,484 U.S. 219 (1988), was error. The Caucus argues for an "alter ego" test that would look to the duties of the discharged employee, not to the nature of the personnel action taken.

We reject the Caucus's argument. We will apply Forrester's functional test to claims of absolute legislative immunity, and will affirm the District Court's decision that the Caucus is not entitled to immunity in this case. The "alter ego" test lacks precedential support from the Supreme Court, from our own Court, or from other courts of appeals. Its adoption would open a circuit split. The "alter ego" approach is also a poorer reflection of the purposes of legislative immunity than the functional approach. Though this is a question of first impression before this Court, our own jurisprudence regarding municipal personnel actions strongly suggests that the Caucus should not be shielded by legislative immunity. We will affirm the District Court's denial of the Caucus's Rule 12(c) motion.

I. Facts and Procedural History

Ted Harhai is an elected Democratic Representative in the Pennsylvania House of Representatives. John J. Harhai, Representative Harhai's brother, ran for a seat on the City Council of Monessen, Pennsylvania in the 2005 Democratic primary. John Harhai lost by seven votes to Jeffery Gagatko, then filed a Petition to Recanvass in the Court of Common Pleas of Westmoreland County, Pennsylvania. Pursuant to Pennsylvania law, the Petition included 39 affidavits from qualified electors alleging fraud or irregularities. Each of these affidavits was notarized pursuant to state law. Recanvassing yielded a nine vote victory for Harhai.

Fowler-Nash was working at the time as a legislative assistant to Representative Harhai. Fowler-Nash informed counsel for Gagatko that many of the electors' affidavits had been improperly notarized in the electors' absence, in violation of state law. Gagatko filed an Emergency Petition to Set Aside the Recanvass. Fowler-Nash was subpoenaed to testify at a hearing on the Emergency Petition. She informed Gagatko's counsel that many of the electors were meeting with the notary in Representative Harhai's office so that they would be able to identify the notary at the hearing and falsely state that the notary had been present when the affidavits were signed.

Before the hearing was held, however, the parties agreed to a stipulation that the 39 affidavits were not signed in the presence of the notary. The trial judge by an order dated July 11, 2005 then vacated its initial June 22, 2005 order that provided for a recanvassing of the votes. John Harhai appealed. One week after John Harhai's appeal was decided against him, Brubaker terminated Fowler-Nash, informing her that Representative Harhai could no longer trust her. Fowler-Nash filed suit against the Caucus, Representative Harhai, and Brubaker in federal district court, pursuant to 42 U.S.C. § 1983. The Caucus moved for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). The Caucus stated in its Rule 12(c) motion that Fowler-Nash had been terminated for "excessive telephone usage, internet privilege abuses and overall job performance." The District Court denied the motion. The Caucus filed the instant appeal.*fn1

II. Discussion

The doctrine of legislative immunity flows from English common law and the many centuries of struggle between the English Crown and Parliament. See Tenney v. Brandhove, 341 U.S. 367, 372 (1951). Various English monarchs condemned parliamentarians to prison for proposing or supporting bills they found unhelpful. Id. The Glorious Revolution ended this practice by codifying legislative immunity--"[t]hat the Freedom of Speech, and Debates or proceedings in Parliament not to be impeached or questioned in any Court or Place out of Parliament"--in the English Bill of Rights of 1689. Id.

A century later, the Framers included a similar clause in the Articles of Confederation, and then in Article I, Section 6 of the United States Constitution: "[F]or any speech or debate in either house [the members] shall not be questioned in any other place." U.S. Const. art. I, § 6, cl. 1; see Tenney, 341 U.S. at 372. The Tenney Court aptly summed up the purposes of the Speech and Debate Clause, stating that legislators must be "immune from deterrents to the uninhibited discharge of their legislative duty, not for their private indulgence but for the public good." 341 U.S. at 377.

The Speech and Debate Clause does not, by its terms, extend any protection to state legislators or officials. Nevertheless, the Tenney Court extended legislative immunity to state legislators and officials as federal common law, extensively referencing the immunity's deep common law origins. Id. at 372. The Supreme Court has similarly extended common law legislative immunity to local legislative officials, see Bogan v. Scott-Harris, 523 U.S. 44 (1998) (extending legislative immunity to members of a city council), and to non-legislators legitimately engaged in a legislative function. See Supreme Court of Va. v. Consumers Union of the United States, 446 U.S. 719, 732 (1980) (extending legislative immunity to Virginia Supreme Court justices in promulgating a code of professional responsibility).

The Supreme Court has often stated that the purpose of common law legislative immunity is to reinforce the separation of powers and safeguard legislative independence. See, e.g., Eastland v. U.S. Servicemen's Fund, 421 U.S. 491, 502 (1975); United States v. Brewster, 408 U.S. 501, 507 (1972). Legislative immunity may protect an official exercising a legislative function "from inquiry into legislative acts or the motivation for actual performance of legislative acts," Brewster, 408 U.S. at 508, "from the burden of defending" certain suits, Dombrowski v. Eastland, 387 U.S. 82, 85 (1967), and "from the consequences of litigation's results." Id.

The Supreme Court rejected in Brewster the view that the Speech and Debate Clause protects "all conduct related to the due functioning of the legislative process." Brewster, 408 U.S. at 513. The Court stated that, "[w]e would not think it sound or wise, simply out of an abundance of caution to doubly insure legislative independence, to extend the privilege beyond its intended scope, its literal language, and its history, to include all things in any way related to the legislative process." Id. at 516. On the same day that it decided Brewster, the Court took a broad view in Gravel v. United States of who could invoke legislative immunity, holding that a legislative aide could invoke immunity if a legislator could invoke the immunity under the same circumstances. 408 U.S. 606, 608-10 (1972). As to what actions were protected by legislative immunity, the Court took a narrow view, stating that the "heart of the Clause is speech or debate in either House," and that "[i]nsofar as the Clause is construed to reach other matters, they must be an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to 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." Id. at 625.

This Court has held that the federal common law immunity is "coterminous" with the federal constitutional legislative immunity, see Larsen v. Senate of the Commonwealth of Pa., 152 F.3d 240, 249 (3d Cir. 1998), though the Supreme Court has expressed particular reluctance about extending a common law immunity. See Forrester v. White,484 U.S. 219, 220 (1988) (describing the Court's "absolute official immunity" jurisprudence as "quite sparing").

The Pennsylvania Constitution contains a Speech and Debate Clause that tracks the federal clause, but it cannot shield a legislator from a violation of ...

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