NASW of RI v. Harwood
Case Date: 11/13/1995
Court: United States Court of Appeals
Docket No: 95-1090
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UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT FOR THE FIRST CIRCUIT _________________________ No. 95-1090 NATIONAL ASSOCIATION OF SOCIAL WORKERS, ET AL., Plaintiffs, Appellees, v. JOHN B. HARWOOD, ET AL., Defendants, Appellants. _________________________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND [Hon. Raymond J. Pettine, Senior U.S. District Judge] __________________________ _________________________ Before Selya, Cyr and Lynch, Circuit Judges. ______________ _________________________ John A. MacFadyen for appellants. _________________ Jeffrey B. Pine, Attorney General, and Alan M. Shoer, _________________ _______________ Special Assistant Attorney General, on brief for State of Rhode Island, amicus curiae. Amy R. Tabor, with whom Hardy Wood Tabor & Chudacoff was on _____________ ____________________________ brief, for appellees. _________________________ November 13, 1995 _________________________ SELYA, Circuit Judge. Over a century ago, Charles SELYA, Circuit Judge. _____________ Dudley Warner, a nineteenth-century Connecticut journalist, earned a sliver of immortality by coining the phrase "politics makes strange bedfellows." This appeal, which forges an improbable alliance among such disparate groups as the National Association of Social Workers, the Rhode Island State Rifle and Revolver Association, the Rhode Island Affiliate of the American Civil Liberties Union, the Rhode Island State Right to Life Committee, Inc., the Coalition to Preserve Choice, the National Education Association, and Ocean State Action, proves that the aphorism still has force. Here, the improbable allies (all private, non-profit organizations) banded together with others to bring an action in Rhode Island's federal district court against John B. Harwood, Speaker of the Rhode Island House of Representatives (the House) and Guido Petteruti, the House's head doorkeeper.1 The plaintiffs challenged the constitutionality of House Rule 45 a rule that purports to ban both lobbyists and lobbying from the floor of the House while the House is in session on its face and as applied. The district court found for most of the plaintiffs and ordered the House to desist from continuing its prevailing practices with regard to the interpretation and ____________________ 1Other plaintiffs in the underlying action included several individuals registered as lobbyists for non-profit organizations (Kate Coyne-McCoy, Harvey Press, Scott Nova, Barbara Baldwin, Susan Closter-Godoy, Steven Brown, Barbara Colt, Donn Dibiasio, Anna Sullivan, and Marti Rosenberg), and three elected members of the House (Edith Ajello, Barbara Burlingame, and Francis Gaschen). 2 enforcement of Rule 45. See National Ass'n of Social Workers v. ___ ________________________________ Harwood, 874 F. Supp. 530 (D.R.I. 1995) (Social Workers).2 _______ _______________ Given the benefit of briefing and argument on the doctrine of legislative immunity a benefit denied to the distinguished district judge, since the defendants inexplicably neglected to raise the issue in the lower court we reverse. I. BACKGROUND I. BACKGROUND We recount the facts "in the light most hospitable to the verdict-winner, consistent with record support." Cumpiano v. ________ Banco Santander P.R., 902 F.2d 148, 151 (1st Cir. 1990). ____________________ In January 1993, the House, under fresh leadership that had pledged procedural reform, adopted several new rules. Among them was Rule 45 (the full text of which is reproduced in the appendix). On its face, Rule 45 banishes all lobbyists from the floor of the House (and the House lounge) while the House is in session. Nonetheless, the rule permits members of the public to be on the House floor while the House is in session, provided that "they remain seated along the sides of the chamber, refrain from conversation, and maintain the decorum of the House," and provided further that they do not "directly or indirectly engage in the practice of lobbying." Rule 45(b). ____________________ 2The district court nonetheless rebuffed the legislator- plaintiffs, who claimed that Rule 45 violated their First Amendment right to receive political information. The court ruled that, even if the legislators had been denied some level of access to lobbyists, the denial did not "rise[] to the level of a constitutional deprivation." Social Workers, 874 F. Supp. at ______________ 542. The legislator-plaintiffs have not appealed and, accordingly, we confine our discussion to the claims brought by the other plaintiffs. 3 Although Rule 45 does not define the term "lobbyist," it incorporates the statutory definition of "lobbying" contained in the Rhode Island Lobbying Act, R.I. Gen. Laws 22-10-1 to 22-10-12 (the Act). The Act defines "lobbying" as "acting directly or soliciting others to act for the purpose of promoting, opposing, amending, or influencing in any manner the passage by the general assembly of any legislation or the action on that legislation by the governor." Id. 22-10-2. The Act ___ requires lobbyists for private organizations and interests to register with the Secretary of State, see id. 22-10-5 & 22-10- ___ ___ 6, and to wear identifying badges, see id. 22-10-8. Government ___ ___ officials who lobby are given considerably more leeway. The Act grants safe passage to many elected officials, see id. 22-10- ___ ___ 3(1), and other public employees, while required to register, are otherwise exempt from the Act's provisions. See id. 22-10-4.1. ___ ___ Neither elected officials nor other public employees are required to wear identification badges. The district court found that, prior to the adoption of Rule 45, the House provided two galleries overlooking the chamber which were accessible to all members of the public, lobbyists included. In addition, "representatives of both private and governmental organizations were allowed to be present on the floor of the House." Social Workers, 874 F. Supp. at 535. These ______________ lobbyists typically occupied seats on the periphery, in an area ranged alongside the two outermost aisles of the House floor. They communicated with legislators in a variety of ways, such as 4 by whispered conversations on the perimeter of the House floor, written notes, physical gestures, and other assorted signals. See id. This buzznacking took place even while the members were ___ ___ debating floor amendments. After the adoption of Rule 45, access to the overhead galleries remained unchanged. But from that point forward, the House excluded private lobbyists (easily recognized by their obligatory identification badges) from the House floor while the House was in session. The district court found that, in contrast, "agents or employees of governmental bodies [were] allowed to be present on the floor of the House while it [was] in session, as [were] members of the general public." Id. ___ Moreover, the "defendants permitted agents of governmental organizations to be present, to speak, to respond to questions, to provide information, and to confer with legislators on the House floor during House sessions on frequent occasions," notwithstanding the apparently unconditional text of Rule 45. Id. at 537. ___ The plaintiffs struck back on April 27, 1993. On that date, they filed a civil action under 42 U.S.C. 1983 (1988) against Messrs. Harwood and Petteruti (as the individuals purportedly responsible for enforcing the House's rules) charging that Rule 45, on its face and as applied, violated the plaintiffs' rights under the First and Fourteenth Amendments. The defendants denied the allegations. Following a four-day bench trial, the judge found for the plaintiffs. See National ___ ________ 5 Ass'n of Social Workers v. Harwood, 860 F. Supp. 943 (D.R.I. _________________________ _______ 1994). The defendants then moved to alter the judgment. While that motion was under advisement, we decided AIDS Action Comm. v. _________________ Massachusetts Bay Transp. Auth., 42 F.3d 1 (1st Cir. 1994). The ________________________________ judge then issued the opinion that is now before us, 874 F. Supp. 530, modifying the original rescript in certain particulars. In substance, the court found that the presence of the general public on the perimeter of the House floor a presence expressly permitted by Rule 45 constituted "communicative and expressive activity," id. at 540; that, due to the communicative ___ possibilities inherent in physical presence, the public's access to the perimeter of the House floor rendered the floor itself a limited-purpose public forum, see id.; and that, therefore, both ___ ___ Rule 45's exclusion of lobbyists and its proscription against lobbying on the House floor constituted impermissible time, place, and manner restrictions on expressive activity, see id. at ___ ___ 540-41.3 On this basis, the court held that Rule 45, on its ____________________ 3In the court's view, the rule did not "leave open ample alternative means of communication for the lobbyists," Social ______ Workers, 874 F. Supp. at 541, because "representatives elected to _______ the Rhode Island House of Representatives are part time legislators . . . [who] lack legislative office quarters in the State House or elsewhere, [and who] lack legislative staffs, and [who] generally have full time jobs in addition to their legislative duties." Id. This meant, the court reasoned, that ___ exclusion of the lobbyists denied them the opportunity to communicate with hard-to-find legislators by way of silent presence. See id. ___ ___ In condemning the ban on lobbying on the House floor during House sessions, the court took a similar tack. It found that, "with regard to floor amendments, which are often proposed and voted on in the same House proceeding, the only timely and useful communication that can take place is that which occurs on the floor of the House, during the debate on the amendment." Id. ___ 6 face, violated the plaintiffs' First Amendment rights. See id. ___ ___ at 541. The court also found that the House haphazardly enforced Rule 45, allowing lobbying by government officials while prohibiting others from lobbying. See id. at 535-37. Predicated ___ ___ on this finding, the court concluded that "the application of Rule 45 amounts to a content based restriction on speech." Id. ___ at 541. Because the court could discern no "compelling government interest" that justified the exclusion of private lobbying while sparing governmental lobbying, it held the interpretation and enforcement of Rule 45 invalid under the First Amendment. Id. at 541-42. ___ In constructing a remedy, the judge, presaging an issue not yet raised by the parties, voiced concerns about judicial interference in legislative affairs. See id. at 542. He ___ ___ therefore declined the plaintiffs' invitation to "require defendants to return to the pre-1993 practice of admitting all lobbyists, public and private, onto the floor of the House on a first-come, first-served basis." Id. Instead, he opted to ___ declare "the current interpretation and enforcement of Rule 45 unconstitutional," and to order the House to refrain from "continuing its current practices with regard to this issue." Id. at 543.4 The House leadership responded on two levels: the ___ ____________________ 4For reasons that are not readily apparent to us, the plaintiffs never sued the House as a body and, therefore, the district court plainly lacked jurisdiction to enjoin the House. The plaintiffs now concede that, insofar as the lower court purported to do so, its order cannot stand. Withal, the 7 House itself passed a new rule barring all persons except legislators and legislative aides from the House floor, and the named defendants launched this appeal. II. PROCEDURAL DEFAULT II. PROCEDURAL DEFAULT On appeal, the defendants, having engaged new counsel, advance a point that, for some unfathomable reason, they neglected to raise below: the claim that, with regard to the defendants' actions anent Rule 45, they are safeguarded from judicial interference under the federal common law doctrine of absolute legislative immunity. The State of Rhode Island, through its Attorney General, as amicus curiae, lends its support. It is very late in the day to bring a new argument to the fore. Ordinarily, an appellant who has not proffered a particular claim or defense in the district court "may not unveil it in the court of appeals." United States v. Slade, 980 F.2d _____________ _____ 27, 30 (1st Cir. 1992). This rule is deeply embedded in our jurisprudence, see, e.g., Teamsters, Chauffeurs, Warehousemen and ___ ____ _______________________________________ Helpers Union, Local No. 59 v. Superline Transp. Co., 953 F.2d ____________________________ ______________________ 17, 21 (1st Cir. 1992) ("If any principle is settled in this circuit, it is that, absent the most extraordinary circumstances, legal theories not raised squarely in the lower court cannot be broached for the first time on appeal."), and we have invoked it ____________________ plaintiffs argue that the court's underlying ruling that Rule 45 is unconstitutional may endure, as the court had jurisdiction over the individuals charged with the rule's enforcement. For reasons which more clearly appear infra, we _____ need not unsnarl this tangle. 8 with a near-religious fervor, see, e.g., McCoy v. Massachusetts ___ ____ _____ _____________ Inst. of Technology, 950 F.2d 13, 22 (1st Cir. 1991) (collecting ____________________ cases), cert. denied, 504 U.S. 910 (1992). Nor can this variant _____ ______ of the raise-or-waive principle be dismissed as a pettifogging technicality or a trap for the indolent; the rule is founded upon important considerations of fairness, judicial economy, and practical wisdom. See, e.g., Sandstrom v. Chemlawn Corp., 904 ___ ____ _________ ______________ F.2d 83, 87 (1st Cir. 1990); United States v. Miller, 636 F.2d _____________ ______ 850, 853 (1st Cir. 1980). Thus, parties must speak clearly in the trial court, on pain that, if they forget their lines, they will likely be bound forever to hold their peace. This is as it should be: the rule fosters worthwhile systemic ends and courts will be the losers if they permit it to be too easily evaded. But foolish consistency is reputedly the hobgoblin of little minds, see Ralph Waldo Emerson, "Self Reliance," in ___ __ Essays: First Series (1841), and in the last analysis, this _______________________ articulation of the raise-or-waive principle, though important, is a matter of discretion. See United States v. La Guardia, 902 ___ _____________ __________ F.2d 1010, 1013 (1st Cir. 1990) (holding that "an appellate court has discretion, in an exceptional case, to reach virgin issues"); accord Singleton v. Wulff, 428 U.S. 106, 121 (1976); United ______ _________ _____ ______ States v. Mercedes-Amparo, 980 F.2d 17, 18-19 (1st Cir. 1992); ______ _______________ United States v. Krynicki, 689 F.2d 289, 291-92 (1st Cir. 1982). ______________ ________ Thus, this rule (like most rules) admits of an occasional exception. "Occasional" is the key word. Since exceptions must be few and far between, an appellate court's discretion should 9 not be affirmatively exercised unless the equities heavily preponderate in favor of such a step. In the La Guardia and Krynicki opinions, we set forth __________ ________ guidelines that suggest when it may be appropriate to invoke the exception, and we need not rehearse the litany. Instead, we explain why those criteria are satisfied here, and, in the process, explicate the criteria themselves. First, this is not a case in which, by neglecting to raise an issue in a timely manner, a litigant has deprived the court of appeals of useful factfinding. The court below made a number of findings as to the appellants' conduct in interpreting and enforcing Rule 45, and addressing the omitted issue requires only that we determine whether the described conduct, giving full deference to these factual findings, falls within the established boundaries of legislative immunity. Thus, it can fairly be said that the omitted issue is purely legal in nature, and lends itself to satisfactory resolution on the existing record without further development of the facts. These attributes ease the way for invoking the exception. See La Guardia, 902 F.2d at 1013; ___ __________ Krynicki, 689 F.2d at 291-92. ________ Second, appellants' belated proffer "raises an issue of constitutional magnitude," a factor that favors review notwithstanding the procedural default. La Guardia, 902 F.2d at __________ 1013. Third, the omitted argument is "highly persuasive," Krynicki, 689 F.2d at 292, a circumstance that "often inclines a ________ court to entertain a pivotal argument for the first time on 10 appeal," La Guardia, 902 F.2d at 1013, particularly when ___________ declining to reach the omitted argument threatens "a miscarriage of justice," Krynicki, 689 F.2d at 292.5 Fourth, we see no ________ special prejudice or inequity to the plaintiffs. The omitted defense is law-based, not fact-based. In addition, the parties have joined issue; the claim of legislative immunity was made in full in the appellants' opening brief in this court, the plaintiffs responded to it in extenso, and both sides addressed __ _______ the point during oral argument. The absence of unfairness has a definite bearing on a decision to overlook this type of procedural default. See United States v. Doe, 878 F.2d 1546, ___ ______________ ___ 1554 (1st Cir. 1989); cf. Singleton, 428 U.S. at 120 (discussing ___ _________ importance, in determining whether to reach the merits of an omitted issue, of ensuring that the opposing party "ha[s] the opportunity to present whatever legal arguments he may have" to the court of appeals). Fifth, the omission seems entirely inadvertent rather than deliberate; although withholding the argument had the regrettable effect of blindsiding the district ____________________ 5In this context, "miscarriage of justice" means more than the individualized harm that occurs whenever the failure seasonably to raise a claim or defense alters the outcome of a case. Rather, courts ordinarily will relax the raise-or-waive principle on this basis only if a failure to do so threatens the frustration of some broadly important right. See Schlesinger v. ___ ___________ Councilman, 420 U.S. 738, 743 (1975) (holding that, when __________ "jurisdictional and equity issues . . . [are] sufficiently important," courts may consider issues on appeal that were not raised below); Krynicki, 689 F.2d at 292 (explaining that the ________ interest at stake must be "legitimate and significant"). For this reason, courts often are more prone to make the infrequent exception in cases that involve a discernible public interest, and less prone to do so in disputes between private parties. 11 judge and needlessly prolonging the litigation, it yielded no tactical advantage to the defendants. Sixth and perhaps most salient the omitted issue implicates matters of great public moment, and touches upon policies as basic as federalism, comity, and respect for the independence of democratic institutions. Courts must be sensitive to such concerns. See Stone v. City and County of San ___ _____ _______________________ Francisco, 968 F.2d 850, 855 (9th Cir. 1992) (explaining the _________ court's election to address a matter first raised on appeal because "[i]ssues touching on federalism and comity may be considered sua sponte"), cert. denied, 113 S. Ct. 1050 (1993). _____ ______ We believe that this sensitivity is appropriately expressed by a frank recognition that, when institutional interests are at stake, the case for the favorable exercise of a court's discretion is strengthened, and waiver rules ought not to be applied inflexibly.6 See, e.g., Hoover v. Wagner, 47 F.3d 845 ___ ____ ______ ______ (7th Cir. 1995) (suggesting that "when matters of comity are involved, the ordinary doctrines of waiver give way"); Jusino v. ______ ____________________ 6Our belief that the defendants should not be strictly held to a waiver of their absolute legislative immunity in this case is fortified by our recognition that a primary purpose of the immunity is to prevent courts from intruding into precincts that are constitutionally reserved to the legislative branch. Overlooking a waiver in order to further this policy of non- interference is analogous to our settled rule that, because federal courts are courts of limited jurisdiction, the absence of federal subject matter jurisdiction can be raised on appeal even if the issue was not raised below. See, e.g., American ___ ____ ________ Policyholders Ins. Co. v. Nyacol Prods., Inc., 989 F.2d 1256, _______________________ ____________________ 1258 (1st Cir. 1993), cert. denied, 114 S. Ct. 682 (1994). In _____ ______ both situations, looking past the waiver has the salutary effect of ensuring that federal courts do not poach on preserves that the Constitution reserves to other forms of oversight. 12 Zayas, 875 F.2d 986, 993 (1st Cir. 1989) (discussing court's _____ reluctance to apply waiver rules concerning "a line of defense that calls into play the Commonwealth's Eleventh Amendment immunity"); cf. Granberry v. Greer, 481 U.S. 129, 134 (1987) ___ _________ _____ (explaining that, when a state fails to raise a nonexhaustion claim in a federal habeas proceeding, the federal tribunal nonetheless should consider "whether the interests of comity and federalism will be better served . . . by requiring [exhaustion]"). Here, an important issue of public concern confronts us. It is presented belatedly, but in a posture that permits its proper resolution on the existing record and works no unfair prejudice to the opposing parties. Failure to address the issue may well result in an unwarranted intrusion by a federal court into the internal operations of a state legislature. Under these exceptional circumstances, we follow the course of perceived duty and proceed, in the exercise of our discretion, to weigh the legislative immunity argument.7 See La Guardia, 902 F.2d at ___ __________ ____________________ 7The dissent's principal response to this reason seems to be that overlooking the waiver "eliminates any incentive" for legislators to raise the immunity defense in a timely manner. Post at 39-40. This reasoning strikes us as triply flawed. In ____ the first place, that argument can be used with equal force as to virtually all omitted defenses; its logical extension is that all waivers should rigorously be enforced. That view has much to commend it as a matter of case management, but, as La Guardia, ___________ Krynicki, Mercedes-Amparo, Hoover, and Stone illustrate, it is ________ _______________ ______ _____ simply not the law. In the second place, the argument underestimates the capabilities of appellate courts. There is no hint of a deliberate bypass in this case the belated tender of the defense is the product of a change in counsel (coupled with the appearance of Rhode Island's Attorney General as an amicus) 13 1013 ("Rules of practice and procedure are devised to promote the ends of justice, not to defeat them.") (quoting Hormel v. ______ Helvering, 312 U.S. 552, 557 (1941)). _________ III. THE MERITS OF THE OMITTED DEFENSE III. THE MERITS OF THE OMITTED DEFENSE We bifurcate our analysis of the legislative immunity defense, first discussing the general nature and scope of the doctrine and then addressing the specific contours of the appellants' claim. A. Legislative Immunity: In General. A. Legislative Immunity: In General. _________________________________ The Speech or Debate Clause commands 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 Clause is, by its terms, limited to members of Congress. See Lake County Estates v. Tahoe Regional Planning ___ ____________________ ________________________ Agency, 440 U.S. 391, 404 (1979). Nevertheless, state ______ legislators and their surrogates enjoy a parallel immunity from liability for their legislative acts. While this immunity is derived from federal common law, it is similar in scope and object to the immunity enjoyed by federal legislators under the Speech or Debate Clause. When the Justices initially recognized state legislative immunity as a ____________________ rather than a change in tactics or a reassessment of political costs and, if sandbagging were to occur, we have confidence that this court would see it for what is was, and decline to exercise discretion in favor of the sandbagger. Finally, if we assume that the dissent is correct and that our ruling today may encourage legislator-litigants to withhold immunity defenses for political reasons, that is still the lesser evil, far preferable in our view to the unwarranted insertion of the federal court's nose into the state legislature's tent. 14 component of federal common law, they turned to the Speech or Debate Clause for guidance anent the contours of the doctrine. See Tenney v. Brandhove, 341 U.S. 367, 376-79 (1951). Later, the ___ ______ _________ Court acknowledged that the immunities enjoyed by federal and state legislators are essentially coterminous. See Supreme Court ___ _____________ of Va. v. Consumers Union of the U.S., Inc., 446 U.S. 719, 732-33 ______ _________________________________ (1980). Hence, our exploration of the appellants' legislative immunity claim begins with a distillation of principles extracted from federal constitutional jurisprudence. The Speech or Debate Clause has its roots in a similar provision found in the English Bill of Rights of 1689.8 See ___ United States v. Johnson, 383 U.S. 169, 177-78 (1966); Tenney, _____________ _______ ______ 341 U.S. at 372. The Clause is modeled to ensure that the Legislative Branch will be able to perform without undue interference the whole of the legislative function ceded to it by the Framers. See Eastland v. United States Serviceman's Fund, ___ ________ ________________________________ 421 U.S. 491, 502 (1975). To that end, the Clause operates to shelter individual legislators from the distractions and hindrance of civil litigation, see id. at 503, and "immunizes ___ ___ [them] from suits for either prospective relief or damages," Consumers Union, 446 U.S. at 731. _______________ While the core protection conferred by the Clause concerns speech or debate by a member of Congress on the floor of ____________________ 8The British version provides: "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." 1 Wm. & Mary, Sess. 2, ch. II (1689). 15 either the Senate or the House, see Gravel v. United States, 408 ___ ______ _____________ U.S. 606, 625 (1972), the penumbra of the Clause sprawls more broadly. This breadth of application, which draws its essence from the Supreme Court's espousal of a "practical rather than a strictly literal reading" of the Clause, Hutchinson v. Proxmire, __________ ________ 443 U.S. 111, 124 (1979), is made manifest in two ways. For one thing, the Clause's prophylaxis extends to any act "generally done in a session of the House by one of its members in relation to the business before it." Kilbourn v. Thompson, 103 U.S. 168, ________ ________ 204 (1880). So read, the Clause protects not only speech and debate per se, but also voting, see id., circulation of ___ ___ information to other legislators, see Doe v. McMillan, 412 U.S. ___ ___ ________ 306, 312 (1973), participation in the work of legislative committees, see Gravel, 408 U.S. at 624; Tenney, 341 U.S. at 378- ___ ______ ______ 79, and a host of kindred activities. For another thing, because the applicability of the Speech or Debate Clause necessarily focuses on particular acts or functions, not on particular actors or functionaries, the prophylaxis of the Clause also extends to legislative acts performed by non-legislators. See Eastland, 421 U.S. at 507 ___ ________ (refusing to draw a distinction between the members of a congressional subcommittee and the subcommittee's counsel when the latter's actions were within the sphere of legitimate legislative activity); Gravel, 408 U.S. at 618 (holding that "the ______ Speech or Debate Clause applies not only to a Member but also to his aides insofar as the conduct of the latter would be a 16 protected legislative act if performed by the Member himself"). This extension evinces a recognition that, as a practical matter, legislators cannot be expected to perform their constitutionally allocated tasks without staff support. This is not to say that the protections afforded by the Speech or Debate Clause are limitless. They are not. See ___ Gravel, 408 U.S. at 625. Although the Court has read the Clause ______ generously, its protections must match its purposes. See ___ Eastland, 421 U.S. at 501-02. When all is said and done, the ________ absolute immunity conferred by the Clause is not afforded "simply for the personal or private benefit of Members of Congress, but to protect the integrity of the legislative process by insuring the independence of individual legislators." United States v. ______________ Brewster, 408 U.S. 501, 507 (1972). ________ The key limitation which applies both to members of Congress and to congressional staffers is that the Clause protects "only purely legislative activities." Id. at 512. If a ___ legislator (or his surrogate) undertakes actions that are only "casually or incidentally related to legislative affairs," id. at ___ 528, or which fall outside the "legitimate legislative sphere," Eastland, 421 U.S. at 503 (citation omitted), no immunity ________ inheres. By the same token, the mere fact that a legislator or a legislative aide performs an act in his official capacity does not automatically confer protection under the Speech or Debate Clause. See Gravel, 408 U.S. at 625. For example, when a member ___ ______ of Congress disseminates press releases to the public, the Clause 17 does not attach because such documents are "primarily means of informing those outside the legislative forum." Hutchinson, 443 __________ U.S. at 133. So, too, activities that are more political than legislative in nature do not come within the legislative sphere, and, hence, do not implicate the Speech or Debate Clause. See ___ Brewster, 408 U.S. at 512. These activities include such ________ familiar fare as "legitimate `errands' performed for constituents, the making of appointments with Government agencies, [and] assistance in securing Government contracts." Id. ___ B. Legislative Immunity: In Particular. B. Legislative Immunity: In Particular. ____________________________________ We now turn to the merits of appellants' assertion that, under federal common law, the instant action founders on the shoals of absolute legislative immunity. The plaintiffs brought suit, as we have said, under 42 U.S.C. 1983. In actions invoking federal civil rights statutes, federal courts customarily "equate[] the legislative immunity to which state legislators are entitled . . . to that accorded Congressmen under the Constitution." Consumers Union, 446 U.S. at 733. Viewed _______________ against this backdrop, it is unsurprising that the courts of appeals historically have relied on Speech or Debate Clause precedents to define the doctrinal boundaries of state legislative immunity under the federal common law. See, e.g., ___ ____ Schlitz v. Commonwealth of Va., 854 F.2d 43, 45-46 (4th Cir. _______ ____________________ 1988); Agromayor v. Colberg, 738 F.2d 55, 58-59 (1st Cir.), cert. _________ _______ _____ denied, 469 U.S. 1037 (1984); Colon Berrios v. Hernandez Agosto, ______ _____________ ________________ 18 716 F.2d 85, 89-90 (1st Cir. 1983) (per curiam); Green v. DeCamp, _____ ______ 612 F.2d 368, 371-72 (8th Cir. 1980). Thus, our mode of analysis dovetails with the Speech or Debate Clause cases. At the heart of our inquiry lies the question of whether appellants' acts in respect to Rule 45 are "part and parcel of the legislative process." Gravel, 408 U.S. at 626. If ______ so, appellants are protected. See id. To answer this question, ___ ___ we must understand the nature of the acts.9 We can look at them in one of two ways. In a general sense, the defendants the Speaker and the head doorkeeper did nothing more or less than to interpret and enforce Rule 45. Where, as here, a legislative body adopts a rule, not invidiously discriminatory on its face, see infra pp. ___ _____ 26-28, that bears upon its conduct of frankly legislative business, we think that the doctrine of legislative immunity must protect legislators and legislative aides who do no more than carry out the will of the body by enforcing the rule as a part of ____________________ 9In certain types of cases, the legislative immunity analysis centers on function, attempting to ascertain whether an action by one or more legislators is administrative or legislative in nature. See, e.g., Negron-Gaztambide v. ___ ____ _________________ Hernandez-Torres, 35 F.3d 25, 27-28 (1st Cir. 1994) (holding that ________________ legislators' decision to discharge librarian was administrative in nature, and did not give rise to legislative immunity). Here, however, we are dealing with a procedural rule adopted by a house of the legislature as a whole for the management of its own business. Hence, we are not concerned with whether the adoption of the rule comprises a legislative act that is transparently clear but, rather, with whether that act is more than "casually or incidentally related" to core legislative functions. Brewster, 408 U.S. at 528. ________ 19 their official duties.10 See Consumers Union of the U.S. v. ___ _____________________________ Periodical Correspondents' Ass'n, 515 F.2d 1341, 1348-50 (D.C. _________________________________ Cir. 1975) (holding congressional employees' actions in enforcing Congress's internal seating regulations immune under Speech or Debate Clause), cert. denied, 423 U.S. 1051 (1976); see also _____ ______ ___ ____ Davids v. Akers, 549 F.2d 120, 123 (9th Cir. 1977) (dismissing ______ _____ action challenging internal rules for committee assignments brought by members of the Arizona House of Representatives against the Speaker); cf. R.I. Const. art. VI, 7 (expressly ___ authorizing the House to "determine its rules of proceeding"). The short of it is that the doctrine of legislative immunity, like the Speech or Debate Clause, attaches when solons' actions are "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 [committed to their jurisdiction]." Gravel, 408 U.S. at ______ 625. In a more specific sense, it might be said that the ____________________ 10We reject the plaintiffs' attempt to differentiate the Speaker from the doorkeeper, based on the fact that the latter is not a legislator. The case law teaches that, as long as an aide's conduct would be covered by legislative immunity were the same conduct performed by the legislator himself, the aide shares the immunity. See Eastland, 421 U.S. at 507; Gravel, 408 U.S. at ___ ________ ______ 616; Consumers Union of the U.S. v. Periodical Correspondents' _____________________________ __________________________ Ass'n, 515 F.2d 1341, 1348-50 (D.C. Cir. 1975), cert. denied, 123 _____ _____ ______ U.S. 1051 (1976). Petteruti's actions in keeping the House floor unsullied were performed by virtue of an express delegation of authority to him as part of the House's staff support apparatus, under the auspices of the Speaker and the legislative body as a whole. No more is exigible. 20 district court granted relief because it found Rule 45 to be fatally deficient in three particulars: (1) on its face, Rule 45 transgressed the First Amendment by banning lobbying on the floor of the House while the House is in session; (2) on its face, Rule 45 transgressed the First Amendment by banishing all lobbyists from the perimeter of the House; and (3) the appellants interpreted, applied, and enforced Rule 45 to allow governmental lobbyists onto the House floor while denying comparable access to private lobbyists. Assuming for argument's sake that this narrower perspective is relevant, the question of whether the appellants are entitled to legislative immunity would be reduced to a question of whether the acts which the district court found problematic fell within or without "the legitimate legislative sphere." Eastland, 421 U.S. at 503. ________ The first area of inquiry can celeritously be dispatched. We think it is beyond serious dispute that enforcing a duly enacted legislative rule which prohibits lobbying on the House floor during House sessions is well within the legislative sphere. Such a restriction necessarily affects the manner in which the House conducts its most characteristic legislative functions, e.g., debating and voting. A rule that colors the ____ very conditions under which legislators engage in formal debate is indubitably part and parcel of the legislative process, and the acts of House officials (whether or not elected members) in enforcing it are therefore fully protected against judicial interference by the doctrine of legislative immunity. See id.; ___ ___ 21 see also Doe, 412 U.S. at 312-13; Tenney, 341 U.S. at 378-79. ___ ____ ___ ______ At first blush, the next area of inquiry whether the exclusion of all lobbyists from the perimeter of the House is within the legislative sphere appears more murky. Seating arrangements for non-legislators arguably are less integral to the legislative process than the regulation of lobbying during House sessions. As the trial testimony in this case amply demonstrates, however, when lobbyists are present on the House floor (even on the perimeter), they often become embroiled in the legislative process either through self-initiated or legislator- initiated contacts. And, even if lobbyists are able to maintain stoic silence on the perimeter, their mere presence affects the legislative environment.11 We conclude, therefore, that regulation of admission to the House floor comprises "an integral part of the deliberative and communicative processes by which Members participate in . . . House proceedings with respect to the consideration and passage or rejection of proposed legislation." Gravel, 408 U.S. at 625. Consequently, the ______ doctrine of legislative immunity pertains. We are not alone in our view of a legislature's House ____________________ 11The plaintiffs themselves have argued, in the context of their First Amendment claim, that they should at least be given the opportunity to sit silently on the perimeter of the House floor so that they may communicate through their physical presence. The district court accepted this argument, and made it a cornerstone of the ensuing First Amendment analysis. See ___ Social Workers, 874 F. Supp. at 539-41. The importance that the ______________ plaintiffs attach to admittance to the perimeter indicates their own recognition that, by mere physical presence, they can influence ongoing legislative business. 22 as its castle. In Periodical Correspondents', the court reached __________________________ a similar conclusion. There, the Periodical Correspondents' Association, which issues credentials to the press galleries of Congress, denied accreditation to a particular periodical, Consumer Reports, on the ground that it had ties to an advocacy organization. Consumers Union sued the sergeants-at-arms of the House and Senate, among other defendants, alleging that the exclusion violated the First Amendment. The court held that the sergeants-at-arms were immune under the Speech or Debate Clause because arrangements for seating the press in the House and Senate galleries were "integral" to "the legislative machinery." 515 F.2d at 1350. In a later case, the court elaborated its rationale, explaining that the seating "immediately concerned House consideration of proposed legislation" because the arrangements "were intended to shield members of Congress from press members' use of their House access to lobby legislators." Walker v. Jones, 733 F.2d 923, 930 (D.C. Cir.) (discussing ______ _____ Periodical Correspondents'), cert. denied, 469 U.S. 1036 (1984). __________________________ _____ ______ Like the seating arrangements at issue in Periodical __________ Correspondents', the seating arrangements dictated by Rule 45 _______________ involve the "regulation of the very atmosphere in which lawmaking deliberations occur." Walker, 733 F.2d at 930. Moreover, if ______ there is a distinction between Periodical Correspondents' and the __________________________ instant case, it does not advantage the present plaintiffs; the Rhode Island House is seeking to regulate access to its own floor, rather than to galleries located above the floor. 23 We come now to the third area of inquiry, involving the significance, if any, of the plaintiffs' claim that the appellants interpreted and enforced Rule 45 in a manner that allowed lobbying on the House floor by governmental, but not private, lobbyists. This as-applied exclusion of private lobbyists, at its most primitive level, involves regulating the |