Kent v. Ohio House of Representatives Democratic Caucus

[[COURTLISTENER_SUBOPINION {"id":"10378680","type":"100trialcourt","part":"other","author":null,"source_field":"html_with_citations"}]]
IN THE UNITED STATES DISTRICT COURT                        
              FOR THE SOUTHERN DISTRICT OF OHIO                         
                      EASTERN DIVISION                                  


BERNADINE KENNEDY KENT,                                                   

        Plaintiff,                                                      
                                  Case No. 2:20-cv-6419                 
   v.                            JUDGE EDMUND A. SARGUS, JR.            
                                 Magistrate Judge Kimberly A. Jolson    

THE OHIO HOUSE OF REPRESENTATIVES                                         
DEMOCRATIC CAUCUS, et al.,                                                

        Defendants.                                                     

                     OPINION AND ORDER                                  

   This matter is before the Court on the Motion to Dismiss Plaintiff’s Complaint for Failure 
to State a Claim and Lack of Jurisdiction under Federal Rules of Civil Procedure 12(b)(6) and 
12(b)(1) filed by Defendants Minority Leader Emilia Strong Sykes, Representative Fred Strahorn, 
and the Ohio House of Representatives Democratic Caucus.  (“Def.’s Mot.,” ECF No. 7.)  Plaintiff 
Bernadine Kennedy Kent filed a response in opposition (“Pl.’s Resp.,” ECF No. 8) and Defendants 
replied (“Def.’s Reply,” ECF No. 9).  For the following reasons, the Court GRANTS Defendants’ 
Motion to Dismiss.                                                        
                         I. Background                                  
   This case arises out of the Ohio House of Representatives Democratic Caucus’ vote to 
remove Plaintiff Bernadine Kennedy Kent from the Democratic Caucus and deny her access to 
Democratic Caucus resources.                                              
   Plaintiff  served  as  a  representative  for  the  25th  District  in  the  Ohio  House  of 
Representatives for two terms from January 2017 to January 2021.  (Compl. ¶ 4; Def.’s Mot. at 2.) 
On April 2, 2018, Plaintiff’s Legislative Aid submitted a press release to the House Democratic 
Caucus Communications Director to be distributed to the media and posted on her official 
representative website.  According to the plaintiff, the press release was titled “Child rape reports 
routinely go to Columbus Police Division’s junk mail” and included a video of a Columbus Police 
Commander allegedly stating in a deposition that he sends child abuse reports to his “junk mail.”  

In  her  press  release,  Plaintiff  expressed  concern  that  law  enforcement  did  not  address  the 
Commander’s statements in the video.  Plaintiff attached to her press release a letter to Columbus 
Mayor Andrew Ginther that included unauthorized signatures from Ohio Legislative Black Caucus 
(OLBC) members.  (Id. ¶¶ 15, 27, 33.)                                     
   Fred Strahorn (then Minority Leader) and the House Democratic Caucus Chief of Staff 
allegedly prohibited the Communications Director from posting Plaintiff’s press release on her 
official website.  Plaintiff emailed Minority Leader Strahorn and the Chief of Staff criticizing their 
decision to block her press release. Two days later, on April 4, 2018, Plaintiff submitted a formal 
complaint to the Speaker of the Ohio House of Representatives against Minority Leader Strahorn 
and the Chief of Staff for denying her access to Democratic Caucus communications and media 

support services.  On April 23, 2018, Plaintiff emailed Minority Leader Strahorn requesting he 
resign from his position as Minority Leader.  (Id. ¶¶ 16, 17, 18.)        
   Plaintiff avers that Minority Leader Strahorn refused to post her press release because he 
disagreed with her “tactics and strategies.”  (Id. ¶ 23.)  In a Columbus Dispatch Article, Minority 
Leader Strahorn allegedly explained his decision, stating, “I will never tolerate a member of the 
caucus using staff and tax-payer funding resources to fake, forge or fabricate any claim, request or 
document to further their own political interest or personal vendetta. I won’t apologize for 
safeguarding taxpayer resources from being used to fuel the political circus of one individual 
lawmaker.”  (Id. ¶ 21.)                                                   
   On June 7, 2018, Minority Leader Strahorn called for a vote in the House Democratic 
Caucus to remove Plaintiff from the Caucus.  (Id. ¶ 27.)  The Caucus voted to remove her. (Id. ¶ 
27.)  Thereafter, Plaintiff was allegedly denied access to House Democratic Caucus resources 
including legislative policy aides, communications and media professionals, legal counsel, and 

administrative staff.  (Id. ¶ 29.)  She was also barred from attending House Democratic Caucus 
meetings.  (Id. ¶ 30.)                                                    
   Plaintiff was reelected to represent the 25th District in the Ohio House of Representatives 
in November 2018.  (Id. ¶ 32.)  After she was sworn in, the Chief of Staff emailed her stating, “The 
House Democratic members voted to remove you from the Democratic Caucus. You are not 
entitled to vote on Democratic caucus officers in a caucus meeting since you are not a part of the 
caucus. You are entitled to vote for minority caucus leadership on the House floor just like any 
matter that comes before the chamber.”  (Id. ¶ 35.)  On May 22, 2019, Plaintiff attempted to attend 
House Democratic Caucus meeting but was physically blocked from entering the room.  (Id. ¶ 38.)  
A month later, on June 12, 2019, the new Minority Leader, Emilia Strong Sykes, emailed Plaintiff 

stating that the House Democratic Caucus had reaffirmed its decision as to Plaintiff’s removal on 
June 6, 2019.  (Id. ¶ 41.)                                                
   Although Plaintiff retained her ability to vote and participate in House proceedings, she 
alleges that her removal and exclusion from the House Democratic Caucus diminished her ability 
to represent constituents. (Id. ¶ 59.) After she was blocked from entering the House Democratic 
Caucus meeting, Plaintiff did not return to the Ohio Statehouse or the Riffe Center due to her 
alleged fear of “retaliation, retribution, depression, violence, post-traumatic stress, and anxiety.”  
(Id. ¶ 39.)  For the same reasons, she alleges that she did not seek re-election to the House for a 
third term.  (Id. ¶ 60.)  Plaintiff avers that Defendants’ actions caused her to seek medical treatment 
for depression, anxiety, post-traumatic stress, high blood pressure, and several other physical and 
mental ailments.  (Id. ¶ 61.)                                             
   Plaintiff filed this action on December 16, 2020, against Defendants Minority Leader 
Emilia Strong Sykes, Representative Fred Strahorn, and the Ohio House of Representatives 

Democratic Caucus (collectively, “Defendants”) alleging retaliation in violation of the First 
Amendment to the United States Constitution under
42 U.S.C. §1983
and conspiracy to retaliate 
under
42 U.S.C. §1985
.                                                    
                      II. Standard of Review                            
   To survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain sufficient 
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”  Ashcroft 
v. Iqbal,
556 U.S. 662
, 677–78 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570
(2007)).  “A claim has facial plausibility when the plaintiff pleads factual content that allows the 
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Id.
In determining this, a court must “construe the complaint in the light most favorable to the 

plaintiff.” Inge v. Rock Fin., Corp.,
281 F.3d 613
, 619 (6th Cir. 2007).  Furthermore, “[a]lthough 
for purposes of a motion to dismiss [a court] must take all the factual allegations in the complaint 
as true, [it][is] not bound to accept as true a legal conclusion couched as a factual allegation.”  Id. 
at 677–79 (quoting Twombly,
550 U.S. at 556
) (internal quotations omitted).   
                          III. Analysis                                 
   Defendants raise several arguments in support of dismissal beginning with a claim of 
legislative immunity.  Because legislative immunity bars this suit the Court declines to address 
Defendants’ remaining arguments.                                          

   Defendants assert that legislative immunity applies as voting to remove Plaintiff from the 
House Democratic Caucus and barring Plaintiff’s access to caucus resources were “legislative 
actions.”  (Id.)  Plaintiff responds that Defendants are not entitled to absolute immunity because 
(1) Defendants’ actions were not legislative, and (2) Defendants’ actions violated the House 
Democratic Caucus Rules, the Ohio Revised Code, and the Ohio Constitution.  (Pl.’s Resp. at 11–
13.)                                                                      
A.  Legislative Activity                                                
   “State legislators…are immune from suit for ‘all actions taken in the sphere of legitimate 
legislative activity.’”  Gamrat v. McBroom,
822 F. App’x 331
, 333 (6th Cir. 2020) (quoting Bogan 
v. Scott-Harris,
523 U.S. 44, 54
(1998)).  Legislative activity includes actions that are “integral” 

to the legislative process, Bogan,
523 U.S. at  55
, but also actions that are integral to the 
“deliberative and communicative processes."  Gamrat v. McBroom,
822 F. App’x 331
, 333 (6th 
Cir. 2020) (quoting Gravel v.  United States,
408 U.S. 606, 625
(1972)). This includes not only 
speech and debate, but also voting, circulation of information to other legislators, and participation 
in the work of legislative committees. See Gamrat, 822 F. App’x at 334 (voting); Doe v. McMillan,
412 U.S. 306
, 312–13 (1973) (circulation of information to other legislators); Gravel,
408 U.S. at 
624
(participation in legislative committees).  Legislative immunity does not attach, however, to 
actions that are “casually or incidentally related to legislative affairs” such as performing errands 
for constituents, making appointments with government agencies, securing government contracts, 
preparing news releases, and delivering speeches outside the House.  Youngblood v. DeWeese,
352 
F.3d 836
, 838–840 (3rd Cir. 2003) (quoting United States v. Brewster,
408 U.S. 501, 528
(1972)). 
The Supreme Court has held that "whether an act is legislative turns on the nature of the act, rather 
than on motive or intent.”  Bogan,
523 U.S. at 54
.                        

   Defendants  are  entitled  to  absolute  legislative  immunity,  even  when  viewing  all  of 
Plaintiff’s allegations as true and drawing all reasonable inferences in her favor, because voting to 
remove Plaintiff from the House Democratic Caucus and denying her access to resources are 
legislative actions.  Legislative immunity protects legislators who take disciplinary actions against 
other legislators.  See Whitener v. McWatters,
112 F.3d 740, 741, 744
(4th Cir. 1997) (holding that 
“a legislative body’s discipline of one of its members is a core legislative act” and affirming 
dismissal based on legislative immunity where plaintiff was disciplined for his “unpopular” 
speech).  Thus, the House Democratic Caucus’ act of disciplining Plaintiff for sending a letter with 
unauthorized signatures to the Mayor is legislative activity.  Additionally, Defendants’ vote to 
expel Plaintiff from the House Democratic Caucus was a legislative activity.  See Gamrat, 822 F. 

App’x at 334 (“the House’s vote to expel the plaintiff from the House of Representatives was 
legislative activity, regardless of any bad faith, and the plaintiff cannot sue the House Defendants 
for participating in that process.”).                                     
   In an analogous case, McCann v. Brady, the Seventh Circuit found that a Minority Leader’s 
actions leading to the expulsion of a legislator from the Senate Republican Caucus was protected 
by legislative immunity.
909 F.3d 193, 197
(7th Cir. 2018).  In that case, the plaintiff senator was 
expelled from the caucus and subsequently denied access to caucus resources including staff 
analysis of bills, the coordination and movement of active bills, drafting assistance for a senator's 
own bills, detailed status reports and schedules, help with communications, photography, in-
district events, and other constituent services.
Id. at 195
. The plaintiff claimed that without access 
to a wide array of resources provided by his party, he could no longer effectively perform his duties 
as a senator.
Id. at 196
.  The Court determined that access to caucus resources is “intimately…tied 
to the legislative process” and therefore the determination about who receives those resources is a 

“quintessentially legislative activity.”
Id. at 197
.  It is 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.”
Id. at 198
. Other courts have reached similar 
conclusions.  See,  e.g.,  Youngblood,
352  F.3d  at  837
(granting  legislative  immunity  to  two 
defendant representatives’ allocation of district office funds from the legislative appropriation 
because it was a legislative act).                                        
   Consistent with McCann and Gamrat, Defendants’ vote to remove Plaintiff from the House 
Democratic Caucus is a legislative activity.  Disciplining a legislator and expelling her from the 
caucus is a “core legislative activity” protected by absolute legislative immunity.  See Whitener,
112 F.3d at 744
.  Moreover, Defendants’ decision to deny Plaintiff access to caucus resources 

including legislative policy aides, communications and media professionals, legal counsel, and 
administrative  staff  is  legislative  activity  because  those  caucus  resources  are  integral  and 
“intimately…tied to the legislative process.”  See McCann, 909 F.3d at 197–198.  
B.  Violation of Caucus Rules, Ohio Revised Code, and Ohio Constitution 
   Plaintiff also argues that Defendants are not entitled to legislative immunity for expelling 
her from the Democratic Caucus because the House Democratic Caucus Rules and the Ohio 
Revised Code do not contain a provision for expelling caucus members.  (Pl.’s Resp. at 8.)  House 
Democratic Caucus Rule III (A) provides that “[a]ll persons duly elected or appointed as a Member 
of the Ohio House of Representatives under the Affiliation of the Democratic Party are hereby 
afforded the rights and privileges associated with these Caucus rules and as such are deemed 
Members of the Ohio House Democratic Caucus.”  (Compl. ¶ 51, Exh. 1.)  The Ohio Revised Code 
defines “Caucus” to mean “all members of [the] house of representatives…who are members of 
the same political party.  Ohio Rev. Code §§ 101.15(A)(1), 3517.01(A)(14). Plaintiff argues that, 

as a House Representative affiliated with the Democratic Party, she was entitled to be a member 
of the House Democratic Caucus.  (Pl.’s Resp. at 8.)  Even if her allegation is true and Defendants 
violated the House Democratic Caucus Rules and the Ohio Revised Code, Defendants are still 
entitled to legislative immunity.                                         
   McCann is again, instructive.  The plaintiff in that case offered the Senate rules defining 
“minority caucus” to include “that group of Senators from other than the majority caucus.”  
McCann,
909 F.3d at 194
.  Even though this definition technically indicated that he was entitled 
to minority caucus membership, the Court determined that legislative immunity still applied.
Id. 
at 198
.  Legislative leadership has discretion to block certain legislators from their internal 
deliberations—including analyses of legislative proposals and strategies discussions—“without 

straying outside the bounds of legislative immunity.”
Id.
More importantly, legislative immunity is absolute.  Bogan,
523 U.S. at 49
.  It is not 
qualified and does not disappear if a legislator breaks an internal caucus rule or creates a group 
that no longer conforms to a definition provision of a law.  If a state legislator is performing a 
legislative activity, she is immune from all civil actions challenging her conduct.  See Tenney v. 
Brandhove,
341 U.S. 367, 377
(1951).  Since the Court has concluded that Defendants’ conduct 
was legislative activity, they are entitled to absolute legislative immunity regardless of whether 
they violated the House Democratic Caucus Rules or the Ohio Revised Code. 
   Plaintiff also points to Article 2 Section 6 of the Ohio Constitution, which reads: “Each 
House may punish its members for disorderly conduct and, with the concurrence of two-thirds of 
the members elected thereto, expel a member.”  This provision of the Constitution does not apply 
because it guides Representatives’ removal from the House itself, not the House Democratic 

Caucus.  The parties do not dispute that Plaintiff remained a member of the House and retained 
her ability to vote and participate in House proceedings.  (Compl. ¶ 59.) 
   Moreover, in Pennhurst State Sch. v. Halderman,
465 U.S. 89
(1984), the Supreme Court 
held that a federal court is barred by the 11th Amendment from ordering a state official to comply 
with state law, rather than federal.  This Court is without jurisdiction to consider Plaintiff’s claims 
under state law.                                                          
   Consequently, Defendants are entitled to absolute legislative immunity for voting to 
remove Plaintiff from the House Democratic Caucus and denying her access to House Democratic 
Caucus resources.                                                         
                         IV. Conclusion                                 

   For the foregoing reasons, the Court GRANTS Defendants’ Motion to Dismiss Plaintiff’s 
Complaint.  (ECF No. 7.) The Clerk is directed to close this case.        
   IT IS SO ORDERED.                                                    

9/27/2021                     s/Edmund A. Sargus, Jr.                     
DATE                          EDMUND A. SARGUS, JR.                       
                            UNITED STATES DISTRICT JUDGE