After Supreme Court decision, how far can elected bodies go in censuring members?

An elected official does something that deeply offends fellow board or council members, who feel compelled to respond. What can they do?

Expulsion of the offending official is not an option. In our constitutional system, only voters can remove someone from office.

When a local official provokes the ire of fellow members, rather, the only remedy is some form of public reproval. Historically, this has occurred through a formal action known as a censure. This is a motion or resolution, approved by a governing body, disapproving an official's statements or actions.

Not surprisingly, elected officials don't always take kindly to censures. But can censures violate their First Amendment rights, as they sometimes contend? What if the censures carry penalties, such as removal from committees or suspension of privileges?

The Supreme Court weighs in

In its last term, the United States Supreme Court addressed the first question. In Houston Community College System v. Wilson (DJ DAR 2859), the Court held censures generally do not deprive officials of their right to free speech.

In Wilson, the Court considered the plight of a community-college trustee, David Wilson. The Court described Wilson's tenure on a community-college board as a "stormy one." Persistently at odds with fellow trustees, Wilson was not one to let things go. He pursued lawsuits against his agency (at a cost of more than $250,000 to defend), arranged for "robocalls" to be placed with constituents, and even had one trustee surveilled.

Wilson's fellow trustees responded by censuring him. The censure not only expressed their disapproval of Wilson's actions, but imposed penalties that included making Wilson ineligible for officer positions, precluding reimbursement for official travel, and restricting access to discretionary board funds.

The Court accepted certiorari to consider only whether the verbal component of this censure - the express statement of disapproval, as distinct from the penalties - violated Wilson's First Amendment right. On this issue, a unanimous Court found no violation.

Writing for the Court, Justice Neil Gorsuch noted at the outset that Wilson's challenge confronted the considerable pedigree of the legislative censure, whose use dates to colonial times. Justice Gorsuch detailed several applications of the censure throughout the nation's history, including notable examples against President Thomas Jefferson and Senator Joseph McCarthy. He also observed censures have long been a practice of state and local governments.

Justice Gorsuch next observed such historical practice is consistent with Court precedent. Characterizing Wilson's claim as one for retaliation, Justice Gorsuch stated Wilson was required to show the censure effected some "adverse action" that prevented him from doing his job or deprived him of the privileges of his office. The verbal component of the censure at issue was alleged to have no such effects. Context was essential. Wilson was an elected official who should expect criticism not only from the public, but his peers, whose right to speak freely about Wilson was as equally protected as his right to speak about them.

Yet, in ruling against Wilson, the Court was careful to limit its holding. Justice Gorsuch described the case as a "narrow one" involving only "a censure of one member of an elected body by other members of the same body," without any "form of punishment."

Are punitive censures lawful?

Wilson affirms the right of governing bodies to publicly reprove their members. But often, censures do more than express disapproval of conduct or statements. Many censures impose penalties, such as stripping the offending member of committee assignments, restricting her right to officially speak on the agency's behalf, or denying reimbursement for official travel or other purposes. Are these penalties lawful?

Fortunately, for California local agencies, Ninth Circuit Court of Appeals precedent provides guidance where Wilson does not.

In Boquist v. Courtney (9th Cir. 2022) 32 F.4th 764, decided a month after Wilson, the Ninth Circuit held that an elected official states a retaliation claim only when an agency action, such as a censure, prevents the official "from doing his job," deprives him of authority "enjoyed by virtue of his popular election," or prevents him from enjoying "the full range of rights and obligations that came with having been publicly elected."

Factually, Boquist involved an effort to preclude a state legislator from entering a state capitol without advance notice. The Ninth Circuit found these facts plead a valid retaliation claim. Although not a local-agency case, the court derived the rule it stated from prior precedent involving a local censure, Blair v. Bethel School Dist. (9th Cir. 2010) 608 F.3d 540. Boquist can be reasonably read to preclude censures from limiting a local official's ability to attend public meetings or accessing buildings where he performs official duties.

Blair, in contrast, upheld a censure that had only removed the plaintiff from serving as vice president of his governing board. Echoing the Supreme Court's reasoning in Wilson, the Ninth Circuit held this removal honored the right of the plaintiff's fellow board members to counter the plaintiff's speech, allowing them to select an officer who represented the majority view.

How far is too far?

Even with Ninth Circuit precedent filling in some of the gaps left by Wilson, questions remain about how far censures can go in penalizing offending officials.

Consistent with Blair, censures intended to effectuate a board or council's majority views are unlikely to be construed as retaliation. Thus, the common practices of removing a censured member from committee assignments or from representing the agency before other agencies or organizations are likely to be upheld, as these ensure an agency's views - as expressed by a majority of its governing body - are represented. So long as restrictions on travel or discretionary funds are intended to serve a similar purpose, these measures are also likely to be upheld.

In short, censures are apt to be upheld when they are intended to protect a majority's right to express agency positions or accomplish its prerogatives. Agencies should be careful to ensure any punitive measures their censures include serve only these purposes.