PRESENT: All the Justices
JUDITH BROOKS-BUCK, ET AL. OPINION BY v. Record No. 250246 JUSTICE TERESA M. CHAFIN OCTOBER 16, 2025 DEBORAH WAHLSTROM
FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK
The appellants, Judith Brooks-Buck and Tyron Riddick, contend that the Circuit Court of
the City of Suffolk erred by overruling their demurrers to Deborah Wahlstrom’s amended
complaint. Relying on common law and statutory immunity principles, Brooks-Buck and
Riddick maintain that the allegations of the complaint establish that they are immune from
Wahlstrom’s defamation and defamation per se claims. For the following reasons, we affirm the
circuit court’s judgment and remand this case for further proceedings.
I. BACKGROUND
Wahlstrom, an educator and former school administrator, frequently attended public
meetings of the Suffolk City School Board, where she provided comments addressing
educational and administrative issues. In 2021, Wahlstrom was escorted from school property
by police officers after she refused to leave a school board meeting. Wahlstrom subsequently
sued the school board and school officials (including Brooks-Buck, a school board member who
was serving as the chairperson of the school board at that time), asserting violations of the
Virginia Freedom of Information Act (“VFOIA”). Wahlstrom prevailed in the litigation. See
Suffolk City Sch. Bd. v. Wahlstrom, 302 Va. 188, 224 (2023).
In 2023, Brooks-Buck filed an internal disciplinary complaint against Dawn Marie
Brittingham, a school board member who valued Wahlstrom’s input. Brooks-Buck alleged that
Brittingham violated certain norms and protocols of the school board. Significantly, Brooks- Buck submitted a written “narrative” addressing Brittingham’s alleged misconduct. The
narrative contained several statements about Wahlstrom. Among other things, the narrative
stated that Wahlstrom committed perjury in the prior VFOIA litigation. 1
Riddick, the school board member who was then serving as the chairperson of the school
board, issued a “notice” addressing Brittingham’s alleged disciplinary violations. The notice
itself did not directly reference Wahlstrom. Riddick, however, attached Brooks-Buck’s narrative
to the notice. Riddick circulated the notice and attached narrative to the members of the school
board and the superintendent of schools. Wahlstrom initially received a copy of the notice and
narrative from an unnamed individual. She later obtained copies of these documents through a
VFOIA request.
Wahlstrom filed a civil complaint asserting defamation and defamation per se claims
against Brooks-Buck and Riddick. With leave of the circuit court, Wahlstrom filed an amended
complaint setting forth additional factual allegations. After detailing the contentious history
between the parties, the amended complaint alleged that Brooks-Buck and Riddick made several
defamatory statements about Wahlstrom in the notice and narrative that initiated the disciplinary
proceedings against Brittingham.
Brooks-Buck and Riddick each filed demurrers to the amended complaint. In pertinent
part, the demurrers asserted that the allegations of the amended complaint established that
Brooks-Buck and Riddick were immune from Wahlstrom’s defamation and defamation per se
claims. The demurrers claimed that the allegations of the amended complaint established that
1 Although the narrative contained other statements about Wahlstrom, the circuit court determined that these statements did not support Wahlstrom’s defamation and defamation per se claims. This ruling is not at issue in the present appeal.
2 Brooks-Buck and Riddick were entitled to legislative immunity, sovereign immunity, and
statutory immunity under Code § 8.01-223.2.
The circuit court overruled the demurrers in part, concluding that the allegations of the
amended complaint did not establish that Brooks-Buck and Riddick were immune from
Wahlstrom’s claims. Acting pursuant to Code § 8.01-670.2, 2 Brooks-Buck and Riddick sought
interlocutory review of the circuit court’s decision. We granted their petition for review.
II. ANALYSIS
On appeal, Brooks-Buck and Riddick contend that the allegations of Wahlstrom’s
amended complaint establish that they are immune from Wahlstrom’s defamation and
defamation per se claims. We disagree.
A. THE STANDARD OF REVIEW
We review a circuit court’s decision to sustain or overrule a demurrer de novo. Givago
Growth, LLC v. iTech AG, LLC, 300 Va. 260, 264 (2021). “A demurrer tests the legal
sufficiency of the facts alleged in a complaint assuming that all facts alleged therein and all
inferences fairly drawn from those facts are true.” Id. (quoting Mansfield v. Bernabei, 284 Va.
116, 120-21 (2012)). When reviewing a circuit court’s decision on a demurrer, “we accept as
true all factual allegations expressly pleaded in the complaint and interpret those allegations in
the light most favorable to the plaintiff,” accepting any reasonable inferences that may be fairly
drawn from the factual allegations of the complaint. A.H. v. Church of God in Christ, Inc., 297
Va. 604, 613 (2019) (quoting Coward v. Wellmont Health Sys., 295 Va. 351, 358 (2018)); see
2 In pertinent part, Code § 8.01-670.2(A) states that “[w]hen, prior to the commencement of trial, the circuit court has entered in any pending civil action an order granting or denying a plea of sovereign, absolute, or qualified immunity that, if granted, would immunize the movant from compulsory participation in the proceeding, the order is eligible for immediate appellate review.”
3 also Assurance Data, Inc. v. Malyevac, 286 Va. 137, 143 (2013) (“[W]e consider as true all the
material facts alleged in the . . . complaint, all facts impliedly alleged, and all reasonable
inferences that may be drawn from such facts.” (quoting Concerned Taxpayers v. County of
Brunswick, 249 Va. 320, 323 (1995))).
B. THE PROCEDURAL PROPRIETY OF THE DEMURRERS
This case comes before us in an unsound procedural posture. In general, an affirmative
defense may not be raised in a demurrer. See Givago Growth, LLC, 300 Va. at 264. “[A]
demurrer . . . tests only the facial validity of the allegations in a complaint rather than the validity
of affirmative defenses.” Id. at 264-65 (quoting A.H., 297 Va. at 638 n.23). An affirmative
defense instead should be raised in a plea in bar, which “does not point out the legal
insufficiency of allegations [in a complaint] but rather demonstrates their irrelevance because of
some other dispositive point.” California Condo Ass’n v. Peterson, 301 Va. 14, 20 (2022)
(quoting Our Lady of Peace, Inc. v. Morgan, 297 Va. 832, 847 n.4 (2019)).
In some circumstances, however, a plea in bar is similar to a demurrer. See id. “A plea
in bar can raise an affirmative defense targeting solely the allegations of the complaint (assumed
arguendo to be true), thus obviating any need for an evidentiary hearing.” Id. at 20-21.
“[W]here no evidence is taken in support of a plea in bar, the trial court, and the appellate court upon review, consider solely the pleadings in resolving the issue presented. In doing so, the facts stated in the plaintiff’s [complaint] are deemed true.” This approach results in functionally de novo review of the trial court’s judgment.
Massenburg v. City of Petersburg, 298 Va. 212, 216 (2019) (quoting Lostrangio v. Laingford,
261 Va. 495, 497 (2001)).
Brooks-Buck and Riddick asserted affirmative defenses in their demurrers, including
legislative, sovereign, and statutory immunity. We underscore that an affirmative defense should
4 ordinarily be raised in a plea in bar rather than a demurrer. See California Condo Ass’n, 301 Va.
at 20; Givago Growth, LLC, 300 Va. at 264. Given the analytical similarity between a demurrer
and a plea in bar relying solely upon the allegations of a complaint, we will address the substance
of the arguments presented in this appeal—notwithstanding the procedural posture of the case.
C. LEGISLATIVE IMMUNITY
Brooks-Buck and Riddick’s first appellate argument involves the application of common
law legislative immunity. Brooks-Buck and Riddick contend that disciplining a school board
member is a legislative act. As the allegedly defamatory statements at issue were made in the
documents that initiated internal disciplinary proceedings against Brittingham, Brooks-Buck and
Riddick claim that they are immune from Wahlstrom’s defamation and defamation per se claims.
Local legislators, such as members of school boards or other governing bodies, are
protected by common law legislative immunity when performing legislative functions.3 Board
of Supervisors v. Davenport & Co. LLC, 285 Va. 580, 588 (2013). In the context of defamation,
common law legislative immunity provides an absolute privilege. Isle of Wight Cnty. v. Nogiec,
281 Va. 140, 152 (2011). A legislator who makes a statement that falls within the scope of
common law legislative immunity is accorded “complete immunity from liability” for that
statement. Id.
Common law legislative immunity serves the public interest. Id. at 154. It “encourages
individuals who participate in [legislative] proceedings to speak freely on issues relating to ‘the
operation of the government.’” Id. (quoting Krueger v. Lewis, 834 N.E.2d 457, 464 (Ill. Ct. App.
3 Another form of legislative immunity arises from Article IV, Section 9 of the Constitution of Virginia. By its express terms, this provision applies to “Members of the General Assembly.” See Va. Const. art. IV, § 9. This opinion does not address the scope of constitutional legislative immunity.
5 2005)). Furthermore, it “protect[s] the integrity of the legislative process by [e]nsuring the
independence of individual legislators.” Davenport, 285 Va. at 588 (quoting Miles-Un-Ltd. v.
Town of New Shoreham, 917 F. Supp. 91, 98 (D.N.H. 1996)).
Nevertheless, the public interest served by common law legislative immunity “must be
balanced against ‘the right of an individual to enjoy his reputation free from defamatory
attacks.’” Isle of Wight Cnty., 281 Va. at 154 (quoting Krueger, 834 N.E.2d at 464). Common
law legislative immunity only applies to legislators when they are “acting [with]in the sphere of
legitimate legislative activity.” Davenport, 285 Va. at 589 (quoting Baker v. Mayor of
Baltimore, 894 F.2d 679, 681 (4th Cir. 1990)). It “will not ‘protect [legislators] when they step
outside the function for which their immunity was designed.’” Id. at 590 (quoting May v.
Cooperman, 578 F. Supp. 1308, 1317 (D.N.J. 1984)).
Common law legislative immunity applies “when the legislative body is acting in its
legislative capacity . . . rather than in its supervisory or administrative capacity.” Isle of Wight
Cnty., 281 Va. at 154. “[T]he creation of legislation is the nexus that supports the application of
the privilege.” Id. at 155.
While common law legislative immunity is centered on the creation of legislation, it
applies to a range of legislative activity. We have explained that “[l]egislative actions include,
but are not limited to, ‘delivering an opinion, uttering a speech, or haranguing in debate;
proposing legislation; voting on legislation; making, publishing, presenting, and using legislative
reports; authorizing investigations and issuing subpoenas; and holding hearings and introducing
material at [those] hearings.’” Davenport, 285 Va. at 589 (quoting Fields v. Office of Johnson,
459 F.3d 1, 10-11 (D.C. Cir. 2006)).
6 The “sphere of legitimate legislative activity” is “not necessarily tied to official
legislative proceedings, but to essentials of the legislative process.” Edwards v. Vesilind, 292
Va. 510, 527-28 (2016). When determining whether an act falls within the scope of common
law legislative immunity, a court is required “to assess, on the whole, the function [that the act]
serves.” Id. at 530. Common law legislative immunity applies to “communications or acts” that
are “integral to the sphere of legitimate legislative activity.” Id. at 529.
We have not addressed whether the act of disciplining a local legislator for misconduct
constitutes a legislative act that falls within the scope of common law legislative immunity. The
United States Court of Appeals for the Fourth Circuit, however, has held that it is a “core”
legislative act. Whitener v. McWatters, 112 F.3d 740, 741 (4th Cir. 1997). The Fourth Circuit
observed that disciplinary proceedings are the primary method “by which legislative bodies
preserve their ‘institutional integrity,’” id. at 744, explaining that disciplinary proceedings
“protect the public reputation of legislative bodies and make orderly operation possible,” id. at
745.
This reasoning is compelling. Although disciplinary proceedings do not directly
encompass the creation of legislation, they are integral to the legislative process. As noted by the
Fourth Circuit, disciplinary proceedings preserve the institutional integrity of local legislative
bodies and help maintain order during local legislative proceedings. See id. at 744-45.
Accordingly, we hold that a local legislative body engages in a legislative act when it disciplines
one of its members.
This conclusion does not end our analysis. We agree that Brooks-Buck and Riddick were
engaged in a legislative act when they initiated disciplinary proceedings against Brittingham,
another member of the school board. Nonetheless, we conclude that the allegations of
7 Wahlstrom’s amended complaint are sufficient to overcome Brooks-Buck’s and Riddick’s
assertions of common law legislative immunity at the demurrer stage of these proceedings.
Although Brooks-Buck and Riddick may have been immune from defamation claims based on
their statements about Brittingham (at least to the extent that those statements pertained to the
pending disciplinary proceedings), it is unclear whether that immunity extends to their
statements about Wahlstrom.
Significantly, the narrative authored by Brooks-Buck and attached to the notice issued by
Riddick made allegedly defamatory statements about Wahlstrom, a private citizen who was a
third party to the disciplinary proceedings. At this point in the litigation, Brooks-Buck and
Riddick have not presented any evidence to establish whether their statements about Wahlstrom
were integral to the disciplinary proceedings against Brittingham.4
Viewing the allegations of the amended complaint in the light most favorable to
Wahlstrom, including the allegations detailing the contentious history between the parties, a
reasonable jurist could determine that the statements about Wahlstrom in Brooks-Buck’s
narrative were gratuitous and nonessential to the disciplinary proceedings. Therefore, the circuit
court did not err by overruling Brooks-Buck’s and Riddick’s demurrers to the extent that they
asserted common law legislative immunity from Wahlstrom’s defamation and defamation per se
claims.
4 While school board policy required Riddick (or another school board member) to issue a formal notice to Brittingham concerning her alleged disciplinary violations, the pertinent policy section does not expressly require a detailed narrative describing the misconduct at issue. See Suffolk City School Board Policy § 2-2.6:1(C).
8 D. SOVEREIGN IMMUNITY
Brooks-Buck and Riddick contend that they made the statements at issue while acting in
their official capacities as school board members. Consequently, Brooks-Buck and Riddick
claim that they are entitled to sovereign immunity from Wahlstrom’s defamation and defamation
per se claims.
“Sovereign immunity is a rule of social policy, which protects the state from burdensome
interference with the performance of its governmental functions and preserves its control over
state funds, property, and instrumentalities.” Newport News Sch. Bd. v. Z.M., 304 Va. ___, ___,
915 S.E.2d 56, 57-58 (2025) (quoting City of Va. Beach v. Carmichael Dev. Co., 259 Va. 493,
499 (2000)). “The doctrine that the State and its governmental agencies, while acting in their
governmental capacities, are immune from liability for tortious personal injury . . . has long been
recognized and applied in Virginia.” Kellam v. School Bd., 202 Va. 252, 254 (1960).
“School boards are covered by sovereign immunity.” Z.M., 304 Va. at ___, 915 S.E.2d at
57. A school board itself is immune from tort liability, “whether the claims involve simple
negligence, gross negligence, or even intentional torts.” Id. at ___, 915 S.E.2d at 59. School
board members are entitled to the same degree of immunity when they are sued in their official
capacities. See, e.g., Hinchey v. Ogden, 226 Va. 234, 238 (1983) (“[A government employee],
sued in his official status, enjoys whatever immunity the sovereign may be entitled to claim.”).5
The same degree of immunity does not extend to school board members who are sued in
their individual capacities. When sued in their individual capacities, school board members are
5 When a school board member is sued in his official capacity, the lawsuit is functionally against the school board itself. See, e.g., Kentucky v. Graham, 473 U.S. 159, 165 (1985) (“Official-capacity suits . . . ‘generally represent only another way of pleading an action against an entity of which an officer is an agent.’” (quoting Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658, 690 n.55 (1978))).
9 not immune from gross negligence claims. See Z.M., 304 Va. at ___, 915 S.E.2d at 59. They are
also not immune from intentional tort claims. See Fox v. Deese, 234 Va. 412, 424 (1987)
(explaining that government employees are not immune from intentional tort claims when they
are sued in their individual capacities, “irrespective of whether they acted within or without the
scope of their employment”).
Code § 15.2-1405 addresses the sovereign immunity of members of local governmental
entities. The statute recognizes that these officials are “immune from suit arising from the
exercise or failure to exercise their discretionary or governmental authority as members of the
governing body.” Code § 15.2-1405. The statute, however, expressly clarifies that these
officials are not immune from gross negligence and intentional tort claims. In pertinent part,
Code § 15.2-1405 states that the “immunity granted by this section shall not apply to conduct
constituting intentional or willful misconduct or gross negligence.”
In the present case, Wahlstrom asserted intentional tort claims (i.e., defamation and
defamation per se) against Brooks-Buck and Riddick in their individual capacities. The amended
complaint did not state that Wahlstrom was suing Brooks-Buck and Riddick in their official
capacities as school board members. To the contrary, the amended complaint requested that the
circuit court enter judgments against Brooks-Buck and Riddick rather than the school board.
The school board was not named as a party to the litigation.
In their individual capacities, Brooks-Buck and Riddick are not entitled to sovereign
immunity from Wahlstrom’s intentional tort claims. See Code § 15.2-1405; Fox, 234 Va. at 424.
Accordingly, the circuit court did not err by overruling Brooks-Buck’s and Riddick’s demurrers
on this ground.
10 E. STATUTORY IMMUNITY UNDER CODE § 8.01-223.2
In their final argument, Brooks-Buck and Riddick claim that they are immune from
Wahlstrom’s defamation and defamation per se claims under Code § 8.01-223.2. Brooks-Buck
and Riddick emphasize that they made the statements underlying Wahlstrom’s claims to a
governing body (i.e., the school board) concerning a matter properly before it (i.e., Brittingham’s
alleged disciplinary violations).
Code § 8.01-223.2 provides statutory immunity to individuals who make statements to
governing bodies. 6 In pertinent part, Code § 8.01-223.2 states:
A person shall be immune from tort liability if the tort claim is based solely on statements . . . made at a public hearing before, or otherwise communicated to, the governing body of any locality or other political subdivision, or the boards, commissions, agencies and authorities thereof, and other governing bodies of any local governmental entity concerning matters properly before such body[.]
Code § 8.01-223.2(A)(ii). The immunity granted by Code § 8.01-223.2, however, does not
“apply to any statements that the declarant knew or should have known were false or were made
with reckless disregard for whether they were false.” Code § 8.01-223.2(B).
Assuming that the statements at issue fall within the scope of Code § 8.01-223.2, the
allegations of the amended complaint are sufficient to preclude Brooks-Buck’s and Riddick’s
claims of immunity under the statute. When viewed in the light most favorable to Wahlstrom,
the allegations of the amended complaint imply that Brooks-Buck and Riddick either: (1) knew
that the statements at issue were false, or (2) recklessly disregarded the falsity of the statements
at issue.
6 Code § 8.01-223.2 has been referred to as “Virginia’s anti-SLAPP (strategic lawsuit against public participation) statute.” See Fairfax v. CBS Corp., 2 F.4th 286, 296 (4th Cir. 2021).
11 The amended complaint did not expressly allege that Brooks-Buck and Riddick knew that
the statements at issue were false. Nonetheless, the complaint asserted that Brooks-Buck and
Riddick made “baseless accusations” concerning Wahlstrom’s alleged perjury. Moreover, the
complaint alleged that Brooks-Buck and Riddick made the statements with “ill will.” After
detailing the parties’ contentious history, the complaint asserted that Brooks-Buck and Riddick
had “extreme animosity” toward Wahlstrom. The complaint claimed that the statements
concerning Wahlstrom’s alleged perjury were made in “retaliation” for Wahlstrom’s prior
criticism of Brooks-Buck and Riddick and Wahlstrom’s success in the VFOIA litigation.
At the demurrer stage of these proceedings, the allegations of Wahlstrom’s amended
complaint must be taken as true and all reasonable inferences flowing from those allegations
must be drawn in Wahlstrom’s favor. See, e.g., A.H., 297 Va. at 613. When the complaint is
read as a whole, it implies that Brooks-Buck and Riddick intentionally made false statements
about Wahlstrom based on their “ill will” and “extreme animosity” toward her. Alternatively,
the allegations of the amended complaint imply that Brooks-Buck and Riddick recklessly
disregarded the falsity of their “baseless” statements accusing Wahlstrom of perjury. Under
these circumstances, the circuit court did not err by overruling Brooks-Buck’s and Riddick’s
demurrers to the extent that they asserted statutory immunity under Code § 8.01-223.2.
III. CONCLUSION
For the reasons stated, we affirm the circuit court’s judgment and remand this case for
further proceedings.
Affirmed and remanded.