Shayna Lathus v. City of Huntington Beach ( 2023 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SHAYNA LATHUS, an individual, No. 21-56197
Plaintiff-Appellant,
D.C. No.
v. 8:21-cv-00808-
SB-DFM
CITY OF HUNTINGTON
BEACH, a municipal entity,
Defendant-Appellee. OPINION
Appeal from the United States District Court
for the Central District of California
Stanley Blumenfeld, Jr., District Judge, Presiding
Argued and Submitted October 17, 2022
Pasadena, California
Filed January 5, 2023
Before: Paul J. Watford and Andrew D. Hurwitz, Circuit
Judges, and Eric N. Vitaliano, * District Judge.
Opinion by Judge Hurwitz
*
The Honorable Eric N. Vitaliano, United States District Judge for the
Eastern District of New York, sitting by designation.
2 LATHUS V. CITY OF HUNTINGTON BEACH
SUMMARY **
Civil Rights
Affirming the district court’s dismissal of a complaint for
failure to state a claim, the panel held that the First
Amendment does not protect a volunteer member of a
municipal advisory board from dismissal by the city
councilperson who appointed her and who is authorized
under a city ordinance to remove her.
While serving as a Huntington Beach City
Councilperson, Kim Carr appointed plaintiff Shayna Lathus
to the city’s Citizen Participation Advisory Board
(“CPAB”). Each councilperson appoints one member to the
seven-person CPAB and may remove that member without
cause. See Huntington Beach, Cal., Mun. Code §§ 2.97.020,
2.100.100. After being appointed to the CPAB, Lathus was
photographed at an immigrants’ rights rally standing near
individuals whom Carr believed to be “Antifa.” After
determining that Lathus’s public denouncement of Antifa
was insufficient, Carr removed Lathus from the CPAB,
citing lack of shared values.
The panel held that given the statutory structure and
duties of the CPAB, the public could readily infer that a
CPAB member’s actions and statements while serving in the
role reflected the current views and goals of the appointing
councilperson. Like each of her fellow board members,
Lathus was the “public face” of her appointor. She could
therefore be dismissed for lack of political
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
LATHUS V. CITY OF HUNTINGTON BEACH 3
compatibility. The panel further rejected Lathus’ compelled
speech claim and held that an elected official can compel the
public speech of her representative because that speech will
be perceived as the elected official’s own. Finally, given the
structural features of the CPAB, which taken together make
its members public surrogates of the appointing
councilperson, the district court did not abuse its discretion
by denying Lathus leave to amend her complaint.
COUNSEL
Andrea R. Bird (argued), Manatt Phelps & Phillips LLP,
Costa Mesa, California; Jerold D. Friedman, Huntington
Beach, California; for Plaintiff-Appellant.
Mark J. Austin (argued), Burke Williams & Sorensen LLP,
Santa Ana, California; Stephen A. McEwen, Burke Williams
& Sorensen LLP, Irvine, California; Michael J. Vigliotta,
Office of the City Attorney, Huntington Beach, California;
for Defendant-Appellee.
4 LATHUS V. CITY OF HUNTINGTON BEACH
OPINION
HURWITZ, Circuit Judge:
The issue for decision is whether the First Amendment
protects a volunteer member of a municipal advisory board
from dismissal by the city councilperson who appointed her
and is authorized under a city ordinance to remove her.
Because the advisory board member is the “public face” of
the elected official who appointed her to the body, we hold
that she “can be fired for purely political reasons.” Hobler
v. Brueher, 325 F.3d 1145, 1150 (9th Cir. 2003) (cleaned
up).
I.
While serving as a Huntington Beach City
Councilperson, Kim Carr appointed Shayna Lathus to the
city’s Citizen Participation Advisory Board (“CPAB”) after
Lathus lost a 2018 election for a seat on the City Council.
Each councilperson appoints one member to the seven-
person CPAB and may remove that member without cause.
See Huntington Beach, Cal., Mun. Code §§ 2.97.020,
2.100.100. The CPAB’s mandate is to “provide citizen
participation and coordination in the City’s planning
processes” related to a federal Department of Housing and
Urban Development block grant program, with an emphasis
on addressing issues faced by “low and moderate income
households.” Id. § 2.97.030. It holds regular open meetings
to “assess the needs of the community,” “evaluate and
prioritize projects,” “obtain citizen input,” and “provide
specific recommendations” to the City Council. Id. §§
2.97.030, 2.97.070.
LATHUS V. CITY OF HUNTINGTON BEACH 5
After being appointed to the CPAB, Lathus was
photographed at an immigrants’ rights rally standing near
individuals whom Carr believed to be “Antifa.” Carr then
instructed Lathus to write a “public statement on social
media denouncing Antifa,” and Lathus did so, believing that
continuing in her “position on the . . . CPAB depended” on
it. Carr deemed the statement insufficient and removed
Lathus from the CPAB, stating that “[t]hose that do not
immediately denounce hateful, violent groups do not share
my values and will not be a part of my team.”
Lathus sued the City of Huntington Beach, claiming
retaliation for exercising her First Amendment rights to free
speech, association, and assembly, and alleging Carr’s
demand for a public statement amounted to
unconstitutionally compelled speech. Lathus sought various
remedies, including reinstatement to the CPAB.
The district court dismissed the complaint, holding that
under Blair v. Bethel School District, 608 F.3d 540, 543 (9th
Cir. 2010), “Carr was not politically powerless to
disassociate herself from Plaintiff’s public actions through a
process that authorized appointment and removal in Carr’s
sole discretion.” The court held that “Carr was permitted to
consider the political ramifications not only when she
decided to appoint Plaintiff but also when she later elected
to remove her from the public position.”
Lathus timely appealed. We have jurisdiction under 28
U.S.C. § 1291 and review de novo the district court’s
dismissal under Federal Rule of Civil Procedure 12(b)(6) for
failure to state a claim. See Faulkner v. ADT Sec. Servs.,
Inc., 706 F.3d 1017, 1019 (9th Cir. 2013). We accept as true
all well-pleaded allegations of material fact in the operative
complaint and construe them in favor of Lathus, the non-
6 LATHUS V. CITY OF HUNTINGTON BEACH
moving party. See id.We agree with the district court that the critical issue is
whether Lathus was effectively “a political extension” of
Carr on the CPAB. Concluding that, under this particular
statutory scheme, Lathus was effectively Carr’s “public
face” on the CPAB, we affirm. See Hobler, 325 F.3d at1150–55.
II.
In attending the rally, Lathus plainly engaged in activity
protected by the First Amendment. See Hudson v. Craven,
403 F.3d 691, 695–96 (9th Cir. 2005). Citing Blair, the
district court held that the First Amendment did not,
however, insulate her from dismissal that was the outcome
of “the regular functioning of the political process.” Blair,
608 F.3d at 545. Although Blair is instructive, unlike the
district court, we do not find it controlling.
Blair was elected as vice president of a school board by
its members. See id. at 542. After Blair made statements
critical of the district superintendent to a reporter, the other
board members removed him from the position. See id. at
543. We found no First Amendment violation in that
removal of an elected official “from a titular position . . . by
the very people who elected him to the position in the first
place,” noting that Blair “retained the full range of rights and
prerogatives” that otherwise came with being a publicly
elected board member. Id. at 544. We saw “little difference
between what the Board’s internal vote against Blair
accomplished and what voters in a general public election
might do if they too were disaffected by Blair’s advocacy.”
Id. at 545. And, we viewed Blair’s fellow board members as
exercising their own “right to replace Blair with someone
who, in their view, represented the majority view of the
LATHUS V. CITY OF HUNTINGTON BEACH 7
Board.” Id. at 546.
This case presents a different scenario. As we have
noted, our statement in Blair that “more is fair in electoral
politics than in other contexts,” id. at 544, is best understood
as pertaining to the “retaliatory acts of elected officials
against their own,” Boquist v. Courtney, 32 F.4th 764, 776
(9th Cir. 2022) (cleaned up). Lathus was not an elected
official, but rather an appointed volunteer in public service.
Her volunteer status does not by itself remove First
Amendment protection. See Hyland v. Wonder, 972 F.2d
1129, 1135 (9th Cir. 1992). Moreover, in contrast to Blair,
Lathus neither gained nor lost her appointment through a
vote by her fellow board members, nor was her dismissal
simply the result of an “internal political leadership
election.” Blair, 608 F.3d at 544.
III.
But, even if Blair does not control the day, it makes clear
that the First Amendment rights of government officials are
not absolute. It is settled, for example, that an appointed
public official can be removed for engaging in otherwise
protected First Amendment activity if “political affiliation is
an appropriate requirement for the effective performance of
the public office involved.” Hobler, 325 F.3d at 1154. The
Supreme Court so recognized in Elrod v. Burns, in which the
three-justice plurality held that employees in “policymaking
positions” may be dismissed for engaging in activities
protected by the First Amendment so that “policies which
the electorate has sanctioned are effectively implemented.”
8 LATHUS V. CITY OF HUNTINGTON BEACH
427 U.S. 347, 372 (1976). 1 The Court later clarified that “the
ultimate inquiry is not whether the label ‘policymaker’ or
‘confidential’ fits a particular position; rather, the question
is whether the hiring authority can demonstrate that party
affiliation is an appropriate requirement for the effective
performance of the public office involved.” Branti v. Finkel,
445 U.S. 507, 518 (1980).
In reviewing dismissals under the Elrod–Branti
framework, we have sometimes analyzed whether a position
is “policymaking,” Bardzik v. County of Orange, 635 F.3d
1138, 1144 (9th Cir. 2011), or “confidential,” Hobler, 325
F.3d at 1151. But Branti makes plain that “a position may
be appropriately considered political even though it is
neither confidential nor policymaking in character.” 445
U.S. at 518. We must therefore determine whether
“commonality of political purpose” with Carr is an
appropriate requirement for Lathus’s service on the CPAB.
Walker v. City of Lakewood, 272 F.3d 1114, 1132 (9th Cir.
2001) (cleaned up); see also Fazio v. City & County of San
Francisco, 125 F.3d 1328, 1332 (9th Cir. 1997) (stating that
the relevant inquiry is whether “political considerations are
appropriate requirements for the effective performance of
the job”) (cleaned up).
“[W]here a statute establishes a position, the statute is
likely to provide the best foundation for classifying it for . . .
First Amendment purposes.” Hagan v. Quinn, 867 F.3d 816,
827 (7th Cir. 2017); see also Underwood v. Harkins, 698
1
Two justices concurred, stating that a “nonpolicymaking,
nonconfidential government employee” cannot “be discharged or
threatened with discharge from a job that he is satisfactorily performing
upon the sole ground of his political beliefs.” Elrod, 427 U.S. at 375(Stewart, J., concurring).
LATHUS V. CITY OF HUNTINGTON BEACH 9
F.3d 1335, 1344 (11th Cir. 2012) (“[W]e look at the position
in the abstract and at what state or local law allows a person
in that position to do, and not at a snapshot of the position as
it is being carried out by a given person at a given point in
time under a given elected official.”). The CPAB consists of
seven members, each appointed by a separate councilperson,
Huntington Beach, Cal., Mun. Code § 2.97.020, who can
also remove that member without cause, see id. § 2.100.100.
Because each member of the CPAB, an entity that advises
on matters of policy and solicits public feedback, is
appointed and removable by a particular councilperson,
board members speak to “the public and to other
policymakers on behalf of the official” who appointed them,
Hobler, 325 F.3d at 1155, a factor that indicates
“responsiveness to partisan politics and political leaders,”
Fazio, 125 F.3d at 1334 n.5 (cleaned up). In other words,
because the public could readily infer that a CPAB
member’s actions and statements while serving in the role
reflect the current views and goals of the appointing
councilperson, Lathus was Carr’s “public face” on the board,
and the public was entitled to assume that she spoke on
Carr’s behalf. See Hobler, 325 F.3d at 1154–55; see also
Walker, 272 F.3d at 1133 (concluding that a contractor was
a policymaker despite the absence of legal authority to speak
on behalf of a city because of the public perception that it
would have official authority as the “sole agency in the City
addressing fair housing concerns”).
Moreover, “the provision of housing to low and middle
income city residents is a vital political issue,” Jimenez
Fuentes v. Torres Gaztambide, 807 F.2d 236, 243 (1st Cir.
1986) (en banc), and the CPAB is designed to influence
policy decisions by the Council on such programs, see Fazio,
125 F.3d at 1334 n.5. The CPAB is a conduit between the
10 LATHUS V. CITY OF HUNTINGTON BEACH
community and City Council; its directive is to “assess the
needs of the community,” “evaluate and prioritize projects,”
“obtain citizen input,” and “provide specific
recommendations” to the City Council. Huntington Beach,
Cal., Mun. Code § 2.97.030. It conducts “regular monthly
meetings” open to the public. Id. § 2.97.070. Because a
CPAB member is thus “an adviser [who] formulates plans
for the implementation of broad goals,” Elrod, 427 U.S. at
368, a councilperson is entitled to an appointee who
represents her political outlook and priorities.
This case thus presents a different situation than those in
which we have held that retaliation against officeholders for
their exercise of First Amendment rights is forbidden. For
instance, we have found that First Amendment protections
extend to those who “did not have authority to speak to the
media without prior approval of higher-ranking officials,” or
did not “formulate or substantially influence plans to
implement the broad goals” of the appointing authority.
Hunt v. County of Orange, 672 F.3d 606, 610, 614 (9th Cir.
2012). In contrast, Lathus’s role on the CPAB required her
to speak to the public and plan low- and middle-income
housing and development. Cf. DiRuzza v. County of
Tehama, 206 F.3d 1304, 1310–11 (9th Cir. 2000) (reversing
grant of summary judgment to defendants because deputy
sheriffs “appear to be the lowest ranking peace officers in
the department” and plaintiff was “limited to her prescribed
custodial duties” in a jail); Thomas v. Carpenter, 881 F.2d
828, 832 (9th Cir. 1989) (reversing dismissal of the
complaint of a sheriff’s lieutenant because tasks did “not
involve the formulation of departmental policy”).
Given the statutory structure and duties of the CPAB,
Lathus, like each of her fellow board members, was the
“public face” of her appointor. Hobler, 325 F.3d at 1154.
LATHUS V. CITY OF HUNTINGTON BEACH 11
Lathus could plainly “undermine [Carr’s] credibility and
goals,” and therefore could be dismissed for lack of political
compatibility. Bardzik, 635 F.3d at 1149. Cases from our
sister Circuits reach the same conclusion. See, e.g., Garza v.
Escobar, 972 F.3d 721, 731–32 (5th Cir. 2020) (affirming
dismissal of the political retaliation claims of a Crime Victim
Unit Coordinator because she “represented the DA’s office
to crime victims” and to “other members of the law
enforcement community”); Hagan, 867 F.3d at 828 (holding
that appointed workers’ compensation arbitrators can be
dismissed as “the face of the administration”); Walsh v.
Heilmann, 472 F.3d 504, 505–06 (7th Cir. 2006) (upholding
dismissal of administrative hearing officer because he
decided local vehicular, housing, and zoning matters on
which “political careers may turn” and elected officials “may
insist that the holders of the delegated power be reliable
implementers” of their agendas); Hoard v. Sizemore, 198
F.3d 205, 214–15 (6th Cir. 1999) (holding that road foremen
are “inherently political” because of “the central importance
of road maintenance in a rural county” and because they
“may be called upon to serve as the executive’s liaison with
the public as far as road conditions are concerned”); Flynn
v. City of Boston, 140 F.3d 42, 46 (1st Cir. 1998) (noting “it
is enough that the official be involved in policy, even if only
as an adviser, implementer, or spokesperson”) (cleaned up);
Brown v. Trench, 787 F.2d 167, 170 (3d Cir. 1986) (finding
no First Amendment violation because a dismissed county
employee’s “principal duty was to act as spokesman for the
Commissioners and help promote county projects”). 2
2
We need not separately balance Lathus’s interests “in commenting
upon matters of public concern” against the City’s interest “in promoting
12 LATHUS V. CITY OF HUNTINGTON BEACH
IV.
Our analysis of Lathus’s retaliation claim also dictates
the outcome of her compelled speech claim. Cf. Walker, 272
F.3d at 1131 (noting that “an employee’s status as a
policymaking or confidential employee is dispositive of any
First Amendment retaliation claim”) (cleaned up). The
central “constitutional issue” in compelled speech cases is
whether the “State forced one speaker to host another
speaker’s speech.” Agency for Int’l Dev. v. All. for Open
Soc’y Int’l, Inc., 140 S. Ct. 2082, 2088 (2020). Lathus’s
complaint asserted that a “coerced” statement about her rally
attendance was “a condition of . . . retaining her status.” But
an elected official can compel the public speech of her
representative because that speech will be perceived as the
elected official’s own. Just as Carr was entitled to political
loyalty from her appointee to the CPAB, she was also
entitled to compel that appointee to espouse her political
philosophy.
V.
The remaining issue is whether the district court abused
its discretion in denying Lathus leave to amend her
complaint. See Cervantes v. Countrywide Home Loans, Inc.,
656 F.3d 1034, 1041 (9th Cir. 2011). Although leave to
amend should be given freely, see Fed. R. Civ. P. 15(a),
denying leave is not an abuse of discretion if “it is clear that
granting leave to amend would have been futile,” Thinket Ink
the efficiency of the public services it performs through its employees,”
Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968), because “where the
Branti exception applies the employee can be fired for purely political
reasons without any Pickering balancing,” Hobler, 325 F.3d at 1150(cleaned up).
LATHUS V. CITY OF HUNTINGTON BEACH 13
Info. Res., Inc. v. Sun Microsystems, Inc., 368 F.3d 1053,
1061 (9th Cir. 2004). That is the case here.
Three structural features of the CPAB, taken together,
legally make its members public surrogates of the appointing
councilperson. First, each councilperson appoints one
member to the board. Second, that councilperson can
remove her appointee at her discretion. Third, the CPAB’s
purpose is to advise about public policy—its legal duty is to
interface with the City Council’s constituents and make
recommendations concerning an important government
function. Under these circumstances, which flow directly
from the municipal code, an elected official is allowed to
“distance” herself from an appointee who might be a
political liability. Blair, 608 F.3d at 545. That conclusion
would not be altered by an amendment to Lathus’s
complaint. Even if Lathus were to assert in an amended
pleading that her actual duties varied from the role of the
CPAB as described in the municipal code, “the relevant
focus of analysis is the inherent duties of the position in
question, not the work actually performed by the person who
happens to occupy the office.” Biggs v. Best, Best &
Krieger, 189 F.3d 989, 997 (9th Cir. 1999) (cleaned up).
AFFIRMED.