Legislative Immunity Covers Local Member Discipline, But Not Gratuitous Third‑Party Defamation: Brooks‑Buck v. Wahlstrom

Court: Supreme Court of Virginia

Date: October 16, 2025

Author: Justice Teresa M. Chafin

Disposition: Affirmed and remanded

Introduction

In Brooks‑Buck v. Wahlstrom, the Supreme Court of Virginia addressed the interplay among three powerful immunity doctrines—common law legislative immunity, sovereign immunity, and Virginia’s anti-SLAPP statutory immunity (Code § 8.01‑223.2)—in the context of a defamation suit arising from internal disciplinary proceedings within a local school board. The appellants, School Board members Judith Brooks‑Buck and Tyron Riddick, challenged the circuit court’s refusal to dismiss Deborah Wahlstrom’s defamation and defamation per se claims at the demurrer stage.

The case arises from disciplinary charges pursued by Brooks‑Buck and then‑chair Riddick against another School Board member, Dawn Marie Brittingham. As part of that internal process, Brooks‑Buck authored a narrative—attached by Riddick to a formal notice—that accused Wahlstrom, a private citizen who regularly commented at public School Board meetings and had previously prevailed in VFOIA litigation against the Board, of committing perjury. Wahlstrom sued, alleging that the statements were defamatory. The defendants responded with demurrers asserting legislative immunity, sovereign immunity, and statutory immunity under Code § 8.01‑223.2.

The Supreme Court affirms the circuit court’s refusal to sustain the demurrers. It clarifies and refines Virginia law in several respects: (1) disciplining a local legislator is a legislative act protected by the sphere of legislative immunity; (2) absolute legislative immunity does not automatically extend to statements about third parties that are not integral to that legislative act; (3) school board members sued in their individual capacities for intentional torts are not shielded by sovereign immunity; and (4) at the pleading stage, well‑supported allegations of falsity, retaliatory motive, and ill will are sufficient to defeat statutory immunity under Code § 8.01‑223.2.

Summary of the Opinion

Procedural posture: On interlocutory appeal under Code § 8.01‑670.2, the Court reviewed the circuit court’s order overruling demurrers grounded in immunity.
Legislative immunity: The Court expressly holds for the first time in Virginia that a local legislative body engages in a legislative act when it disciplines one of its members. Nonetheless, whether absolute legislative immunity protects particular statements depends on whether those statements are “integral to the sphere of legitimate legislative activity.” At the demurrer stage, the complaint plausibly alleged that the accusations about Wahlstrom—a non‑party private citizen—were gratuitous and not integral to the disciplinary proceeding, so dismissal was improper.
Sovereign immunity: Because Wahlstrom sued the Board members in their individual capacities for intentional torts, sovereign immunity does not apply. Code § 15.2‑1405 and Fox v. Deese govern this result.
Statutory (anti‑SLAPP) immunity: Code § 8.01‑223.2 can immunize statements made to governing bodies about matters properly before them, but the statute excludes statements known to be false or made with reckless disregard for falsity. The complaint’s allegations of “baseless accusations,” “ill will,” “extreme animosity,” and “retaliation” suffice, at this stage, to invoke the statutory exception and defeat dismissal.

Detailed Analysis

Procedural Posture and Standard of Review

The defendants raised immunity by demurrer. The Court reiterates that a demurrer generally is not the proper vehicle to assert affirmative defenses such as legislative, sovereign, or statutory immunity. Those are ordinarily raised by a plea in bar. See Givago Growth, LLC v. iTech AG, LLC; A.H. v. Church of God in Christ, Inc.; California Condo Ass’n v. Peterson; Our Lady of Peace, Inc. v. Morgan. That said, when an immunity plea turns solely on the face of the complaint and no evidence is taken, appellate review mirrors de novo review of a demurrer. See Massenburg v. City of Petersburg; Lostrangio v. Laingford.

The Court therefore proceeds to the merits, applying the demurrer standard: accept as true all well‑pleaded facts and reasonable inferences in favor of the plaintiff. See Assurance Data, Inc. v. Malyevac; Coward v. Wellmont Health Sys.

Common Law Legislative Immunity

Legislative immunity exists to protect the independence of legislators and the integrity of the legislative process, enabling free debate and deliberation without fear of civil liability. See Board of Supervisors v. Davenport & Co. LLC; Isle of Wight County v. Nogiec. It confers an absolute privilege against defamation claims, but only for conduct within the “sphere of legitimate legislative activity.” See Davenport; Baker v. Mayor of Baltimore; May v. Cooperman; Miles‑Un‑Ltd v. Town of New Shoreham; Edwards v. Vesilind; Fields v. Office of Johnson.

The Court squarely holds that disciplining a local legislator is a legislative act. Adopting the Fourth Circuit’s reasoning in Whitener v. McWatters, the Court explains that member discipline is “core” to maintaining institutional integrity and the orderly operation of legislative bodies. While not directly the “creation of legislation,” discipline is nevertheless “integral” to the legislative process.

Crucially, however, the Court separates the act of conducting discipline from the scope of immunity for particular statements. The absolute privilege covers communications that are integral to the disciplinary function. Here, the allegedly defamatory statements concerned a private, non‑party citizen (Wahlstrom) and were included in a narrative attached to the disciplinary notice. No evidence yet shows that those statements were necessary to or integral within the disciplinary proceeding against Brittingham. Indeed, School Board policy required a formal notice, but did not require a detailed narrative (see Policy § 2‑2.6:1(C)), a fact that can support an inference that extraneous statements about third parties were not essential to the legislative act. Taking the complaint’s allegations and reasonable inferences as true, the Court concludes a fact‑finder could determine those statements were gratuitous and thus outside the immunity’s protective scope. As a result, the demurrer based on legislative immunity was properly overruled.

Sovereign Immunity

The opinion reaffirms foundational sovereign immunity principles: school boards, acting in governmental capacity, are immune from tort liability, including for intentional torts. See Newport News Sch. Bd. v. Z.M.; Kellam v. School Bd. And when government actors are sued in their official capacities, they share the sovereign’s immunity. See Hinchey v. Ogden; Kentucky v. Graham; Monell.

But this suit targets Brooks‑Buck and Riddick in their individual capacities for intentional torts (defamation and defamation per se). In that posture, sovereign immunity does not apply. Code § 15.2‑1405 expressly withholds immunity for “intentional or willful misconduct or gross negligence,” and Fox v. Deese makes clear that individual‑capacity claims for intentional torts proceed “irrespective of whether [the employees] acted within or without the scope of their employment.” The circuit court therefore correctly rejected sovereign immunity at the demurrer stage.

Statutory Immunity: Code § 8.01‑223.2 (Virginia’s anti‑SLAPP framework)

Code § 8.01‑223.2(A)(ii) provides that a person “shall be immune from tort liability” for statements “made at a public hearing before, or otherwise communicated to, the governing body” of a local governmental entity “concerning matters properly before such body.” However, subsection (B) removes protection for statements “that the declarant knew or should have known were false or were made with reckless disregard for whether they were false.”

Assuming arguendo that the statements here were “communicated to” the School Board about a matter “properly before” it (the Brittingham discipline), the complaint’s allegations defeat statutory immunity at the pleading stage. Wahlstrom alleged “baseless accusations,” “ill will,” “extreme animosity,” and “retaliation” connected to her prior criticisms and her victory in the VFOIA case. Read as a whole and with inferences drawn in her favor, those allegations plausibly imply knowledge of falsity or, at minimum, reckless disregard for the truth—the very exceptions that disqualify a defendant from Code § 8.01‑223.2 immunity. Consequently, dismissal on statutory immunity grounds was properly denied.

Precedents Cited and Their Influence

Board of Supervisors v. Davenport & Co. LLC, 285 Va. 580 (2013): Defines the scope and purpose of legislative immunity for local legislators, emphasizing protection for acts within the legislative sphere and the independence of the legislative process. Used to anchor the “sphere of legitimate legislative activity” test.
Isle of Wight County v. Nogiec, 281 Va. 140 (2011): Affirms that legislative immunity confers an absolute privilege against defamation when the conduct is legislative, and balances public interest in free legislative deliberation against protection of individual reputation.
Edwards v. Vesilind, 292 Va. 510 (2016): Clarifies that immunity attaches to acts “integral” to legislative functions, not merely those occurring in formal proceedings, and instructs courts to assess “the function [the act] serves.” This functional lens guides the Court’s analysis of whether the statements about a private citizen were integral to discipline.
Whitener v. McWatters, 112 F.3d 740 (4th Cir. 1997): Persuasive federal authority adopted by the Court to hold that disciplining a legislator is a “core” legislative act, crucial to preserving institutional integrity and order.
Newport News Sch. Bd. v. Z.M., 304 Va. ___, 915 S.E.2d 56 (2025): Recent precedent confirming school boards themselves enjoy sovereign immunity, while delineating limits on immunity for individual‑capacity suits.
Fox v. Deese, 234 Va. 412 (1987): Governs that government employees sued in their individual capacities are not immune from intentional tort claims.
Code § 15.2‑1405: Statutorily codifies immunity for local officials exercising discretionary authority while expressly removing protection for intentional or willful misconduct and gross negligence.
Code § 8.01‑223.2 (anti‑SLAPP): Grants immunity for speech to governing bodies on matters before them, but excludes statements known or recklessly made as false; referenced alongside Fairfax v. CBS Corp., which recognizes the provision as Virginia’s anti‑SLAPP statute.
Demurrer/Plea in Bar Authorities: Givago Growth; A.H. v. Church of God; Assurance Data; Concerned Taxpayers; California Condo Ass’n; Our Lady of Peace; Massenburg; Lostrangio. Together, these cases clarify that affirmative defenses should be raised via plea in bar, but may be resolved on the pleadings when no evidence is offered, with de novo review.

Legal Reasoning: How the Court Reached Its Decision

Scope of legislative immunity turns on function, not form. The Court synthesizes Davenport, Nogiec, Edwards, and Whitener to define the legislative sphere. It concludes member discipline is a legislative activity because it safeguards institutional integrity—a functional necessity for the legislative process. But the immunity protects only communications that are “integral” to that function. Statements about a private citizen unrelated to the disciplinary question can fall outside the immunity even when attached to a disciplinary document.
Pleading‑stage deference preserves fact development. On a demurrer, the Court accepts well‑pleaded facts and reasonable inferences. With allegations suggesting a history of acrimony and retaliatory motive, and with Board policy not requiring a detailed narrative, the Court cannot conclude as a matter of law that the third‑party statements were integral to discipline. Thus, discovery must proceed.
Sovereign immunity is capacity‑sensitive. The Court distinguishes between suits against the entity or officials in their official capacities (which would implicate sovereign immunity) and suits against officials in their individual capacities for intentional torts (which do not). Code § 15.2‑1405 and Fox v. Deese remove immunity here.
Anti‑SLAPP immunity is lost if falsity is knowingly or recklessly alleged. The complaint’s allegations—“baseless,” “ill will,” “extreme animosity,” “retaliation”—are sufficient to infer knowledge of falsity or reckless disregard, fitting within Code § 8.01‑223.2(B)’s carve‑out. At this early stage, that is enough to defeat statutory immunity.

Impact and Practical Implications

For local legislative bodies and their members

Confirmed protection for member discipline: The Court brings Virginia in line with Whitener by treating internal discipline as a legislative act. This solidifies an important privilege for maintaining decorum and integrity within local bodies.
But immunity is not boundless: Absolute legislative immunity will not automatically cloak all statements made during disciplinary processes. Communications about private third parties must be demonstrably integral to the disciplinary function to be protected.
Drafting discipline documents: Keep to the essentials. Where policy mandates a notice but not a narrative, including extraneous commentary—especially about non‑party citizens—amplifies litigation risk and undermines an immunity defense.

For litigators and trial courts

Choose the right procedural vehicle: Immunity is an affirmative defense. Raise it via a plea in bar and, where appropriate, develop an evidentiary record to show communications were integral to a legislative act or to negate malice/falsity under Code § 8.01‑223.2.
Pleading strategy matters: Plaintiffs can survive early dismissal by alleging concrete facts supporting falsity, retaliatory motive, and ill will. Defendants seeking anti‑SLAPP immunity at the pleading stage face a high bar when the complaint plausibly alleges knowledge or reckless disregard.
Interlocutory review preserved: Orders granting or denying immunity that would otherwise compel participation in litigation remain eligible for immediate appellate review under Code § 8.01‑670.2.

For citizens engaging with local government

Reputational protections persist: While legislators enjoy robust protections when acting legislatively, the Court underscores the enduring right to reputation; gratuitous or retaliatory accusations about private citizens do not enjoy absolute protection.

Doctrinal trajectory

New Virginia precedent: This decision establishes, as a matter of Virginia law, that local legislator discipline is a legislative act. It also refines the “integral to the legislative function” test for applying absolute privilege to particular statements.
Alignment with anti‑SLAPP carve‑outs: The opinion reinforces that Code § 8.01‑223.2’s immunity is conditioned on the absence of knowledge or reckless disregard of falsity, and that allegations of retaliatory animus can be sufficient at the pleading stage to invoke the carve‑out.

Complex Concepts Simplified

Demurrer vs. Plea in Bar: A demurrer tests whether the complaint states a claim on its face. A plea in bar raises an affirmative defense (like immunity) that, if proved, defeats the claim. If a plea in bar rests only on the complaint’s allegations, courts can resolve it similarly to a demurrer; otherwise, evidence may be taken.
Legislative Immunity (absolute privilege): Shields legislators from liability for statements and acts that are part of or integral to the legislative process. It promotes free debate and independence, but does not cover administrative tasks or statements unrelated to legislative functions.
“Integral to the legislative function”: The touchstone is the function served by the act or statement, not the setting. If a statement is necessary to performing a legislative act (like disciplining a member), immunity applies; if it is extraneous or gratuitous (e.g., attacking a non‑party citizen without necessity), immunity may not apply.
Sovereign Immunity: Protects the government and, in official‑capacity suits, its officers, from many tort claims. It does not protect officials sued in their individual capacities for intentional torts like defamation.
Anti‑SLAPP (Code § 8.01‑223.2): Offers immunity for speech to government bodies about matters before them, but not if the speaker knew the statement was false or recklessly disregarded its truth. Allegations of retaliatory motive and “baseless” claims can support an inference of such knowledge or recklessness at the pleading stage.
Defamation vs. Defamation Per Se: Both involve false statements harming reputation. “Per se” claims involve categories of statements (such as accusing someone of serious criminal conduct) that are especially injurious; here, the perjury accusation is the focal statement supporting the claim.

What Remains for the Circuit Court on Remand

Legislative immunity nexus: Whether the statements about Wahlstrom were integral to the disciplinary function—i.e., necessary to explain or adjudicate Brittingham’s alleged misconduct—will be a fact‑intensive inquiry.
Falsity and state of mind: Evidence bearing on the truth of the perjury accusation, and on the defendants’ knowledge or recklessness (including motive and context), will shape both liability and the availability of statutory immunity under Code § 8.01‑223.2.
Damages and defenses: If liability is established, the usual defamation defenses (truth, privilege, opinion) and damages issues will come to the fore; nothing in the opinion pre‑judges those questions.

Conclusion

Brooks‑Buck v. Wahlstrom clarifies Virginia law in two important ways. First, it adopts the view that disciplining a member of a local legislative body is itself a legislative act, reinforcing robust protections for internal governance and institutional integrity. Second, it establishes meaningful limits: absolute legislative immunity does not insulate statements about private third parties that are not integral to the disciplinary function, sovereign immunity does not shield individual‑capacity intentional tort claims, and statutory anti‑SLAPP immunity yields at the pleading stage when the complaint plausibly alleges falsity known or recklessly disregarded.

The decision preserves space for vigorous legislative self‑governance while reaffirming Virginians’ reputational rights and the careful, function‑focused application of immunities. It also offers practical guidance: keep disciplinary communications tethered to what is necessary, raise immunity via the proper procedural vehicles, and recognize that allegations of retaliatory motive and “baseless” accusations can defeat early dismissal under both common law and statutory immunities.

Legislative Immunity Covers Local Member Discipline, But Not Gratuitous Third‑Party Defamation: Commentary on Brooks‑Buck v. Wahlstrom