Appellate Circuit

Fifth Circuit Judges Spark Noticable Split in First Amendment En Banc Case.

Trump Judges: Fifth Circuit Judges Kyle Duncan, Jim Ho, Don Willett and Andy Oldham are the minority in this en banc decision.

LIT COMMENTARY

Trump judges at the Court of Appeals for the Fifth Circuit under the microscope shouldn’t come as a surprise. The 4-ball below along with Judge Edith ‘Diva’ Jones made some noise in a ripping dissent, not joined by the remaining 3 judges who voted for rehearing, namely Owen (chief judge), Elrod and Higginson. It seems they are not happy that the 3-panel referenced two judicial cases (one which LIT highlights on the front page, Jenevein v. Willing, 493 F.3d 551 (5th Cir. 2007) and the other, Scott v. Flowers, 910 F.2d 201 (5th Cir. 1990). It would appear, based on their animated and exclamation pointed dissent(s), these judges are fearsome of the repercussions.

“We conclude that the Commission has failed to carry that burden. Neither in its brief nor at oral argument was the Commission able to explain precisely how Scott’s public criticisms would impede the goals of promoting an efficient and impartial judiciary, and we are unpersuaded that they would have such a detrimental effect. Instead, we believe that those interests are ill served by casting a cloak of secrecy around the operations of the courts, and that by bringing to light an alleged unfairness in the judicial system, Scott in fact furthered the very goals that the Commission wishes to promote.”

Scott v. Flowers, 910 F.2d 201, 213 (5th Cir. 1990) Judge Jerry Smith authored the opinion.

DUNCAN, STUART K.

HO, JAMES C.

OLDHAM, ANDREW “ANDY” S.

WILLETT, DON R.

Trump Judges Try to Reverse Ruling Against First Amendment Retaliation

Originally Published: 17 Aug. 2020

Trump Fifth Circuit judges James Ho, Don Willett, Kyle Duncan, and Andy Oldham tried to get the full court of appeals to reconsider a decision allowing an elected member of a public board to pursue a claim that he was improperly censured in violation of his First Amendment rights. The court declined to rehear the case in the July 2020 decision in Wilson v. Houston Community College System.

David Wilson was an elected member of the Board of Trustees of the Houston Community College System (HCC). Beginning in 2017, Wilson began to criticize, first privately and then publicly, a number of Board actions that he thought violated the Board’s bylaws and were not in the best interests of HCC. These included funding a campus in Qatar and allowing voting by videoconference. Wilson maintained a website where he discussed his concerns.

In mid-January 2018, the Board voted to publicly censure Wilson for his actions, stating that this was the “highest level of sanction available” since Wilson was an elected official and warning him to “cease and desist” his conduct. Wilson then amended a pending state court lawsuit to contend that the Board had violated his First Amendment rights and to seek damages. The Board removed the case to federal court, where a judge dismissed the case for lack of standing, claiming that Wilson could not demonstrate injury in fact to him as a matter of law. Wilson appealed.

A three-judge panel consisting of judges Davis, Smith and Stewart of the Fifth Circuit unanimously reversed. The court explained that the lower court had erred because in the primary decision it relied upon, a Tenth Circuit ruling where the court dismissed a similar challenge by a public community college board member, the court had in fact held that the plaintiff did have standing because he claimed that a censure had tarnished his reputation.

The court went on to point out that both the Supreme Court and the Fifth Circuit had held that “allegations of retaliatory censure” of a public official that a plaintiff claims give “rise to a reputational injury is an injury in fact.”

Although Wilson’s requests for declaratory and injunctive relief were now moot since he had left the Board, the court continued, his claim for damages “continues to present a live controversy” and he should have an opportunity to prove his case.

The full Fifth Circuit then determined to decide whether to rehear the case. Eight judges on the court voted in favor of vacating the panel opinion and rehearing the case, including Trump judges Ho, Willett, Duncan, and Oldham.

Eight others, however, voted against rehearing, including Reagan nominee Jerry Smith, George W. Bush nominees Leslie Southwick and Catherine Haynes, and Trump nominee Kurt Engelhardt. As a result, rehearing was denied.

The four dissenting Trump judges joined a harsh dissent by Judge Edith Jones, and Ho also filed his own dissent. The dissenters wrote that the panel decision was “out of step” with the decisions of four other circuit courts, which had supposedly ruled that a legislature’s “public censure of one of its members” could not give rise to a First Amendment claim.

The dissenters also argued that Fifth Circuit precedent “respects the lack of a constitutional remedy” for “intra-legislative squabbling” and that cases concerning “official reprimands” of elected Texas state judges did not apply. Ho commented that the panel ruling violated the principle that the First Amendment “guarantees freedom of speech, not freedom from speech.”

The panel decision, however, had already responded to such arguments by HCC. The panel explained that both the Supreme Court and the Fifth Circuit had recognized the importance under the First Amendment of ensuring that elected officials be “allowed freely to express themselves on matters of public concern” and that they not be punished or deterred by improper official censures.

The panel went on to note that the Fifth Circuit had held that there is “no doubt” that formal reprimands for speech by elected officials, which go far beyond simple criticism, can lead to a First Amendment violation.

The court specifically pointed out that the fact that some of these cases involved elected judges “matters not,” and that if anything, judges are accorded “less protection” than legislators like Wilson.

After a “close review,” moreover, the court concluded that the cases from other circuits that the dissenters also relied upon were distinguishable, either because they involved claims only against individual members of a governing body like HCC or “did not involve censures.”

The panel recognized that although Wilson had raised a “plausible claim,” he would need to prove his contention that HCC’s retaliatory censure against him actually caused the damages he sought.

If it had been up to Trump judges Ho, Willett, Oldham, and Duncan, however, he would not even have had that opportunity and the court would have ruled that the First Amendment does not protect against retaliatory censures of public officials for their speech.

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 19-20237

United States Court of Appeals Fifth Circuit

FILED; April 7, 2020

DAVID BUREN WILSON,

Plaintiff – Appellant

v.

HOUSTON COMMUNITY COLLEGE SYSTEM,

Defendant – Appellee

Appeal from the United States District Court for the Southern District of Texas

Before DAVIS, SMITH, and STEWART, Circuit Judges.

EUGENE DAVIS, Circuit Judge:

Plaintiff David Wilson appeals the district court’s judgment dismissing his 42 U.S.C. § 1983 complaint for lack of subject matter jurisdiction under Rule 12(b)(1). Wilson, a former trustee of the Board of Trustees (“Board”) of Defendant Houston Community College System (“HCC”), asserts that HCC violated his First Amendment right to free speech when the Board publicly censured him.

Because, under our precedent, Wilson’s allegations establish standing and state a claim for relief under § 1983 for a First Amendment violation, we REVERSE the district court’s judgment and REMAND Wilson’s 1983 claim for damages for further proceedings.

As the parties agree, however, Wilson’s claims for declaratory and injunctive relief are moot, as Wilson is no longer a Board trustee. Therefore, we GRANT HCC’s motion for partial dismissal of Wilson’s appeal and instruct the district court to dismiss Wilson’s claims for declaratory and injunctive relief after remand.

I.      BACKGROUND

HCC is a public community college district1 that operates community colleges throughout the greater Houston area.2 HCC is run by its Board, which is made up of nine trustees.3 Each trustee is elected by the public from single- member districts to serve a six-year term without remuneration.4 Through the resolutions and orders it passes, the Board shapes HCC’s policy, enhances the institution’s public image, and preserves institutional independence.5 On November 5, 2013, Wilson was elected to the Board as the trustee for HCC District 2.

Beginning in 2017, Wilson voiced concern that trustees were violating the Board’s bylaws and not acting in the best interests of HCC. After disagreeing with HCC’s decision to fund a campus in Qatar, Wilson made his complaints public by arranging robocalls regarding the Board’s actions and interviewing with a local radio station. When HCC allowed one trustee to vote via videoconference, Wilson contended that the bylaws prohibited such voting. He subsequently filed a lawsuit against HCC and the individual Board trustees in state court seeking a declaratory judgment that the videoconference vote was illegal under the bylaws and requesting an injunction. After the Board allegedly excluded Wilson from an executive session, he filed a second lawsuit

1 Under Texas law, a community college district is a “school district,” and a school district is considered a “governmental agency,” along with municipalities and other political subdivisions of the state. TEX. LOC. GOV’T. CODE ANN. §§ 271.003(4), (9).
2 TEX. EDUC. CODE ANN. §§ 130.0011, 130.182.
3 Id. § 130.084.
Id. § 130.082.
5 Id. § 51.352.

against HCC and the trustees in state court asserting that his exclusion was unlawful and again seeking declaratory and injunctive relief.6

Additionally, Wilson hired a private investigator to confirm that one of the trustees did in fact reside within the district in which she was elected. He maintained a website where he published his concerns, referring to his fellow trustees and HCC by name. Wilson also hired a private investigator to investigate HCC.

On January 18, 2018, the Board voted in a regularly-scheduled session to adopt a resolution publicly censuring Wilson for his actions. In the censure resolution, the Board chastised Wilson for acting in a manner “not consistent with the best interests of the College or the Board, and in violation of the Board Bylaws Code of Conduct.” The censure, the Board emphasized, was the “highest level of sanction available,” as Wilson was elected and could not be removed. The Board directed Wilson to “immediately cease and desist from all inappropriate conduct” and warned that “any repeat of improper behavior by Mr. Wilson will constitute grounds for further disciplinary action by the Board.”7

Upon being censured, Wilson amended his first state-court petition to include claims against HCC and the trustees under 42 U.S.C. § 1983, asserting that the censure violated his First Amendment right to free speech and his Fourteenth Amendment right to equal protection. Wilson asserted that the Board’s bylaws were overly broad and unconstitutional as applied to him and were subject to “strict scrutiny” review. He therefore requested that HCC and

6 Wilson ultimately amended his first lawsuit to include the claims asserted in his second lawsuit and voluntarily dismissed the second lawsuit.
7 The Board also resolved to impose the following sanctions as part of its censure:
(1) Wilson would be ineligible for election to Board officer positions for the 2018 calendar year, (2) Wilson would be ineligible for reimbursement for any college-related travel for the 2017-18 college fiscal year, and (3) Wilson’s requests for access to the funds in his Board account for community affairs would require Board approval.

the trustees be enjoined from enforcing the censure. Wilson also sought

$10,000 in damages for mental anguish, $10,000 in punitive damages, and reasonable attorney’s fees.

HCC and the trustees subsequently removed Wilson’s state-court proceeding to federal district court on the basis of federal question jurisdiction. Wilson filed a motion for remand, which the district court denied. Wilson thereafter amended his complaint naming only HCC as a defendant and dropping his claims against the individual trustees.

HCC moved to dismiss Wilson’s suit pursuant to Rule 12(b)(1) for lack of jurisdiction and Rule 12(b)(6) for failure to state a claim. The district court granted HCC’s motion to dismiss under Rule 12(b)(1) for lack of jurisdiction, determining that Wilson could not demonstrate an injury in fact and therefore lacked Article III standing. Wilson timely appealed.

In August 2019, Wilson resigned as trustee for HCC’s District 2. In the November 2019 election, Wilson ran as a candidate in the race for trustee of HCC’s District 1. He was ultimately defeated in the December 2019 run-off election.

II.     DISCUSSION

A. Standard of Review

This court’s review of dismissals under Rule 12(b)(1) for lack of jurisdiction and dismissals under Rule 12(b)(6) for failure to state a claim is de novo.8 When a party files multiple Rule 12 motions, we must consider the Rule 12(b)(1) jurisdictional attack before considering the Rule 12(b)(6) merits challenge.9 The party responding to the 12(b)(1) motion bears the burden of

8 Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001) (per curiam).
9 Id.

proof that subject matter jurisdiction exists.10 A district court may find a lack of subject matter jurisdiction on either: “(1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court’s resolution of disputed facts.”11

To survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.”12 “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”13

B.     Standing

Under Article III of the Constitution, federal courts can resolve only “cases” and “controversies.”14 In line with this requirement, a plaintiff must have standing—that is, a showing of (1) an injury in fact (2) that is traceable to the defendant’s conduct and (3) that can be redressed by the court.15 An injury in fact is “an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.”16 In the context of free speech, “the governmental action need not have a direct effect on the exercise of First Amendment rights . . . [but] must have caused or must threaten to cause a direct injury to the plaintiffs.”17

10 Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir. 1980).
11 Voluntary Purchasing Groups, Inc. v. Reilly, 889 F.2d 1380, 1384 (5th Cir. 1989) (quoting Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981)).
12 Edionwe v. Bailey, 860 F.3d 287, 291 (5th Cir. 2017) (quoting Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009)).
13 Iqbal, 556 U.S. at 678.
14 U.S. CONST. art. III, § 2.
15 Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992).
16 Id. (cleaned up).
17 Meese v. Keene, 481 U.S. 465, 472 (1987).

In dismissing Wilson’s complaint under Rule 12(b)(1), the district court, relying on the Tenth Circuit’s decision in Phelan v. Laramie County Community College Board of Trustees, held that Wilson had not suffered any injury in fact.18 Specifically, the district court concluded that Wilson could not show an invasion of a legally protected interest because the Board’s censure did not forbid Wilson from performing his official duties or speaking publicly.19 The district court erred in relying on Phelan to determine that Wilson lacked standing, however, because the Phelan court held that the plaintiff in fact had standing, noting that the plaintiff had alleged the Board’s censure tarnished her reputation.20

In this case, Wilson alleges that the censure was issued to punish him for exercising his free speech rights and caused him mental anguish. Under our precedent, Wilson’s allegation of retaliatory censure is enough to establish an injury in fact.21 Additionally, the Supreme Court has held that a free speech violation giving rise to a reputational injury is an injury in fact.22 A censure is defined as an “official reprimand or condemnation; an authoritative expression

18 Wilson v. Houston Cmty. Coll. Sys., No. 4:18-CV-00744, 2019 WL 1317797, at *3 (S.D. Tex. Mar. 22, 2019); see also Phelan v. Laramie Cty. Cmty. Coll. Bd. of Trustees, 235 F.3d 1243 (10th Cir. 2000).
19 Wilson, 2019 WL 1317797 at *3.
20 235 F.3d at 1247 n.1.
21 See Colson v. Grohman, 174 F.3d 498, 508 (5th Cir. 1999) (noting that “at least twice, this court has granted relief to elected officials claiming First Amendment retaliation”) (citations omitted). Our sister courts agree that a retaliatory action resulting in a chilling of free speech constitutes an injury in fact. See, e.g., Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc) (“[T]he harm suffered is the adverse consequences which flow from the . . . constitutionally protected action.”); Hines v. Gomez, 108 F.3d 265, 269 (9th Cir. 1997) (“The injury asserted is the retaliatory accusation’s chilling effect on [plaintiff’s] First Amendment rights We hold that [plaintiff’s] failure to demonstrate a more substantial injury does not nullify his retaliation claim.”). See also Ibanez v. Fla. Dep’t of Bus. & Prof’l Regulation, Bd. of Accountancy, 512 U.S. 136, 139 (1994) (holding, in commercial speech case, that state board of accountancy’s censure of accountant violated First Amendment, thereby assuming that a censure alone constitutes an injury in fact).
22 Meese v. Keene, 481 U.S. 465, 473 (1987).

of disapproval or blame; reproach.”23 Wilson alleges that a public censure has caused him mental anguish. That injury stemming from his censure, like a reputational injury, is enough to confer standing.24

Though not precisely a matter of standing, Wilson’s claims for declaratory and injunctive relief run up against a jurisdictional problem. Wilson is no longer a Board trustee; consequently, the HCC’s Code of Conduct no longer governs him. Therefore, his claims seeking declaratory and injunctive relief that the Code of Conduct, and as applied to him through the resolution of censure, is an unconstitutional prior restraint are moot. We grant HCC’s motion for partial dismissal of Wilson’s appeal of those claims and instruct the district court to dismiss those claims as moot after remand. Wilson’s claim for damages continues to present a live controversy.25

C.     First Amendment Claim

As we have noted, if “constitutional rights were violated, and if that violation ‘caused actual damage,’ then [the plaintiff] has ‘stated a live claim under § 1983.’”26 Wilson argues that the censure he suffered is an actionable First Amendment claim under § 1983. Although the district court did not technically reach this issue, having dismissed the case for lack of standing under Rule 12(b)(1) and not for failure to state a claim under Rule 12(b)(6), it

23 Censure, BLACK’S LAW DICTIONARY (11th ed. 2019).
24 In Sims v. Young, 556 F.2d 732, 734 (5th Cir. 1977), a firefighter brought a First Amendment claim under § 1983 against city officials after being suspended for twenty days. We held that the plaintiff had satisfied the injury-in-fact requirement of standing despite the fact he had since been reinstated because the suspension remained “a blot on his record.” Id. A censure, like a suspension, can be characterized as a “blot.”
25 See Boag v. MacDougall, 454 U.S. 364 (1975) (per curiam) (although respondent complaining of solitary confinement had since been transferred, “the transfer did not moot the damages claim”); Morgan v. Plano Indep. Sch. Dist., 589 F.3d 740, 748 (5th Cir. 2009) (claim for nominal damages avoids mootness); Pederson v. La. State Univ., 213 F.3d 858, 874 (5th Cir. 2000) (graduation mooted claims for injunctive relief, not damages).
26 Wilson v. Birnberg, 667 F.3d 591, 595–96 (5th Cir. 2012) (quoting Henschen v. City of Houston, 959 F.2d 584, 588 (5th Cir. 1992)).

effectively concluded that Wilson’s censure did not give rise to a First Amendment claim.27 The district court followed Phelan, which dismissed the plaintiff’s claim on summary judgment, determining that the censure did not infringe on the plaintiff’s free speech rights because the censure did not punish her for exercising those rights nor did it deter her free speech.28 Wilson argues that the district court improperly endorsed the Tenth Circuit’s decision in Phelan, ignoring Fifth Circuit precedent and failing to recognize the protection afforded to an elected official’s political speech. We agree.

The Supreme Court has long stressed the importance of allowing elected officials to speak on matters of public concern.29 We have echoed this principle in our decisions, emphasizing that “[t]he role that elected officials play in our society makes it all the more imperative that they be allowed freely to express themselves on matters of current public importance.”30 As a result, and as described below, this court has held that censures of publicly elected officials can be a cognizable injury under the First Amendment.

We first visited whether a censure can constitute a First Amendment violation in Scott v. Flowers.31 There, a plaintiff was elected to a four-year term as a justice of the peace in Texas.32 Concerned that the state was dismissing the majority of  traffic-offense  ticket  appeals, the judge published  an   “open

27 See Wilson v. Houston Cmty. Coll. Sys., No. 4:18-CV-00744, 2019 WL 1317797, at *3 (S.D. Tex. Mar. 22, 2019) (“[The Tenth Circuit in Phelan] has established that a majority’s decision to censure a member of a political body does not give rise to a First Amendment violation claim. While not binding, the court’s reasoning in Phelan, is instructive here.” (internal citation omitted)).
28 Phelan v. Laramie Cty. Cmty. Coll. Bd. of Trustees, 235 F.3d 1243, 1247 (10th Cir. 2000).
29 See, e.g., Bond v. Floyd, 385 U.S. 116, 135–36 (1966) (“The manifest function of the First Amendment in a representative government requires that legislators be given the widest latitude to express their views on issues of policy.”).
30 Rangra v. Brown, 566 F.3d 515, 524 (5th Cir.) (citation omitted), dismissed as moot en banc, 584 F.3d 206 (5th Cir. 2009).
31  910 F.2d 201 (5th Cir. 1990).
32 Id. at 203.

letter” to county officials criticizing the district attorney’s office and county court.33                         The   Texas    Commission    on   Judicial    Conduct   (“Commission”) subsequently issued a formal, public reprimand to the judge for being “insensitive” in his statement, thereby “cast[ing] public discredit upon the judiciary.”34 The reprimand was a “warning,” cautioning him to be “more restrained and temperate” in the future.35 The judge filed suit under § 1983, arguing the public censure violated his First Amendment right of free speech.36 This court applied the Supreme Court’s two-step inquiry to assess public employees’ claims of First Amendment violations set forth in Pickering v. Board of Education.37 First, we determined that the judge’s speech addressed a matter of public concern and therefore was protected speech.38 Second, we balanced         the              judge’s       free         speech         rights against               the      Commission’s countervailing interest in promoting the efficient performance of its normal functions.39 We underscored that the judge was “not hired by a governmental employer. Instead, he was an elected official, chosen directly by the voters of his justice precinct, and, at least in ordinary circumstances, removable only by them.”40 The state consequently could not justify its reprimand “on the ground that it was necessary to preserve coworker harmony or office discipline.”41 While we recognized that the state may proscribe the speech of elected judges more so than other elected officials, the censure touched upon “core first

33 Id. at 204.
34 Id.
35 Id. at 205 n.6.
36 Id. at 205.
37 Id. at 210; see Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968).
38 Id. at 211.
39 Id.
40 Id. at 212.
41 Id.

amendment values.”42 We concluded that the state’s “concededly legitimate interest in protecting the efficiency and impartiality of the state judicial system” could not outweigh the judge’s First Amendment rights, and we expunged the censure.43

In Colson v. Grohman, this court reiterated there is “no doubt” that formal reprimands are actionable under § 1983.44 Reaffirming Scott, we explained that “a formal reprimand, by its very nature, goes several steps beyond a criticism or accusation and even beyond a mere investigation.”45 “It is punitive in a way that mere criticisms, accusations, and investigations are not.”46

We again held that elected officials are entitled to be free from retaliation for constitutionally protected speech in Jenevein v. Willing.47 That case, like Scott, centered on the Commission’s public censure of an elected judge, this time a state district court judge.48 The judge had given a press conference and sent a mass email to explain that he was filing a complaint against a lawyer for comments made about him in pleadings and that he therefore had to recuse himself.49

Breaking from Scott, we held that the Pickering balancing test did not apply to elected employees of the state.50 Instead, we adopted strict scrutiny to assess the government’s regulation of an elected official’s speech to his

42 Id. (quoting Morial v. Judiciary Comm’n of State of La., 565 F.2d 295, 301 (5th Cir. 1977)).
43 Id. at 212–13.
44 174 F.3d 498, 512 (5th Cir. 1999).
45 Id. at 512 n.7.
46 Id. In Colson, by contrast, the court found that the plaintiff had failed to state a claim; she was “never arrested, indicted, or subjected to a recall election[,] [n]or was she formally reprimanded.” Id. at 511 (internal footnote omitted).
47 493 F.3d 551 (5th Cir. 2007).
48 Id. at 556.
49  Id. at 553–55.
50  Id. at 557–58.

constituency.51 Noting that a state’s interest in suppressing the speech of an elected official is weak, we held that even though the order was “entered in good faith effort to pursue the public interest . . . [t]o the extent that the commission censured Judge Jenevein for the content of his speech, shutting down all communication between the Judge and his constituents, we reverse and remand with instructions to expunge that part of the order.”52

The above precedent establishes that a reprimand against an elected official for speech addressing a matter of public concern is an actionable First Amendment claim under § 1983. Here, the Board’s censure of Wilson specifically noted it was punishing him for “criticizing other Board members for taking positions that differ from his own” concerning the Qatar campus, including robocalls, local press interviews, and a website. The censure also punished Wilson for filing suit alleging the Board was violating its bylaws. As we have previously held, “[R]eporting municipal corruption undoubtedly constitutes speech on a matter of public concern.”53 Therefore, we hold that Wilson has stated a claim against HCC under § 1983 in alleging that its Board violated his First Amendment right to free speech when it publicly censured him.

51 Id. at 558. In Rangra v. Brown, this court later clarified that the Pickering balancing test did not apply to elected officials’ First Amendment retaliation claims, despite its earlier use in Scott, because of intervening Supreme Court precedent (specifically, Republican Party of Minn. v. White, 536 U.S. 765, 774–75 (2002)). 566 F.3d 515, 525 n.26 (5th Cir.), dismissed as moot en banc, 584 F.3d 206 (5th Cir. 2009). The court highlighted other instances in which strict scrutiny was used to protect free speech concerning public matters. Id. at 525 n.25.
52 Jenevein, 493 F.3d at 560–62.
53 Harmon v. Dall. Cty., 927 F.3d 884, 893 (5th Cir. 2019), as revised (July 9, 2019) (per curiam). See also Lane v. Franks, 573 U.S. 228, 241 (2014) (“[C]orruption in a public program and misuse of state funds [] obviously involve[] a matter of significant public concern.”); Garcetti v. Ceballos, 547 U.S. 410, 425 (2006) (“Exposing governmental inefficiency and misconduct is a matter of considerable significance.”).

HCC tries to distinguish Scott and Jenevein, arguing that the cases concerned judges, not local legislators. But the fact that these cases dealt with judges matters not. The Jenevein court emphasized that elected judges are, ultimately, “political actors”—if anything, judges are afforded less protection than legislators.54 HCC also contends that, unlike here, the Texas Commission on Judicial Conduct could order judges to undergo additional education, suspend them, or remove them from office. Even if true, the Commission’s censure did not draw upon such authority in either case.55

HCC also argues that it had a right to censure Wilson as part of its internal governance as a legislative body and that Wilson’s First Amendment rights were not implicated. It cites to numerous cases from our sister circuits, purportedly supporting its argument. A close review of those cases, however, reveals that those cases either did not involve censures, or involved claims against only the individual members of a governing body (and not the governing body itself) who were entitled to assert legislative immunity. For example, Blair v. Bethel School District did not involve a public censure but a vote by a public school board to remove a fellow board member as vice president of the board.56 Zilich v. Longo also did not concern a censure, but a city council

54 493 F.3d at 560. See Scott v. Flowers, 910 F.2d 201, 212 (5th Cir. 1990) (“[W]e have recognized that the state may restrict the speech of elected judges in ways that it may not restrict the speech of other elected officials.”).
55 HCC is correct that the additional measures taken against Wilson—(1) his ineligibility for election to Board officer positions, (2) his ineligibility for reimbursement for college-related travel, and (3) the required approval of Wilson’s access to Board funds—do not violate his First Amendment rights. A board member is not entitled to be given a position as an officer. See Rash-Aldridge v. Ramirez, 96 F.3d 117, 119 (5th Cir. 1996) (per curiam) (a city council member did not have a First Amendment claim after the council removed her from a board following her public disagreement with the council majority). Second, nothing in state law or HCC’s bylaws gives Wilson entitlement to funds absent approval. As for travel reimbursements, we have held that a failure to receive travel reimbursement is not an adverse employment action for a public employee’s First Amendment retaliation claim. Benningfield v. City of Houston, 157 F.3d 369, 376 (5th Cir. 1998).
56 608 F.3d 540, 542 (9th Cir. 2010). The Ninth Circuit’s decision in Blair that the school board was entitled to remove a board member from a titular position is consistent with resolution declaring that a former council member had violated the residency requirement and a council ordinance authorizing suit to be filed to recover the former member’s salary.57 Consequently, these cases are inapposite.

The remainder of the cases relied upon by HCC involved claims against only the individual members of a governing body.58 As we have noted, under Supreme Court precedent, absolute legislative immunity is a “doctrine[] that protect[s] individuals acting within the bounds of their official duties, not the governing bodies on which they serve.”59 “Thus, even if the actions of the [state agency’s] members are legislative, rather than administrative, the [state agency] itself as a separate entity is not entitled to immunity for violation of the [plaintiff’s] constitutional rights.”60 Wilson has filed his claims against only HCC, which is not entitled to legislative immunity from Wilson’s § 1983 suit.

Lastly, HCC argues that Wilson’s conclusory statements that he suffered emotional harm are insufficient support for mental anguish damages. “To survive a Rule 12(b)(6) motion to dismiss, a complaint ‘does not need detailed factual allegations,’ but must provide the plaintiff’s grounds for entitlement to relief—including factual allegations that when assumed to be true ‘raise a right to relief above the speculative level.’”61 As explained, Wilson has alleged our decision in Rash-Aldridge that an elected official does not have a fundamental right to an appointed leadership position. 96 F.3d at 119.

57 34 F.3d 359, 361 (6th Cir. 1994).
58 See Rangel v. Boehner, 785 F.3d 19, 21 (D.C. Cir. 2015) (claim by United States congressman against fellow congressmen and other individuals for violating his constitutional rights in issuing “a punishment of censure”); Whitener v. McWatters, 112 F.3d 740, 741 (4th Cir. 1997) (claim by county board member against fellow board members for violating his First Amendment rights in censuring him for using abusive language); Romero- Barcelo v. Hernandez-Agosto, 75 F.3d 23, 34 (1st Cir. 1996) (claim by former governor of Puerto Rico against individual legislators for violating his constitutional rights during legislative hearings investigating governor’s role in a political scandal).
59 Minton v. St. Bernard Par. Sch. Bd., 803 F.2d 129, 133 (5th Cir. 1986); see also Owen v. City of Independence, Missouri, 445 U.S. 622, 657 (1980).
60 Minton, 803 F.2d at 133.
61 Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). See also 5 Charles Alan Wright et al., FED. PRAC. &

 

a plausible violation of his First Amendment rights under § 1983. He contends that, stemming from the defendant’s unlawful acts, he has suffered mental anguish that warrants $10,000 in damages.62 Based on the allegations set forth in his pleadings, Wilson has alleged a plausible claim supporting mental anguish damages.63

III.      CONCLUSION

Based on the foregoing, we REVERSE the district court’s judgment dismissing Wilson’s complaint for lack of jurisdiction and REMAND Wilson’s 1983 claim for damages for further proceedings consistent with this opinion. Wilson’s claims for declaratory and injunctive relief are moot, as Wilson is no longer a trustee on the Board of HCC. Therefore, we GRANT HCC’s motion for partial dismissal of Wilson’s appeal and instruct the district court to dismiss Wilson’s claims for declaratory and injunctive relief after remand.

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION; MOTION FOR PARTIAL DISMISSAL GRANTED.

62 Wilson will still need to support such a claim properly in order to prevail after remand. See, e.g., Hitt v. Connell, 301 F.3d 240, 250–51 (5th Cir. 2002) (detailing the evidence needed to support compensatory damages for mental anguish stemming from a § 1983 free speech jury verdict).PROC. § 1202 (3d ed. 2019) (“[Rule 8(a)] requires the pleader to disclose adequate information regarding the basis of his claim for relief as distinguished from a bare averment that he wants relief and is entitled to it.”).
63 Although Wilson also seeks $10,000 in punitive damages, punitive damages are not available against HCC. See City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 270–71 (1981) (holding that municipalities and other government entities are immune from punitive damages under § 1983).

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

DAVID BUREN WILSON,

                               _

No. 19-20237

                               _

Filed: 15 July, 2020

United States Court of Appeals Fifth Circuit

Plaintiff – Appellant

v.

HOUSTON COMMUNITY COLLEGE SYSTEM,

Defendant – Appellee

Appeal from the United States District Court for the Southern District of Texas

ON PETITION FOR REHEARING EN BANC

(Opinion April 7, 2020, 5 Cir.,                    ,                    F.3d                     )

Before DAVIS, SMITH, and STEWART, Circuit Judges. PER CURIAM:

( ) Treating the Petition for Rehearing En Banc as a Petition for Panel Rehearing, the Petition for Panel Rehearing is DENIED. No member of the panel nor judge in regular active service of the court having requested that the court be polled on Rehearing En Banc (FED. R. APP. P. and 5TH CIR. R. 35), the Petition for Rehearing En Banc is DENIED.

( X ) Treating the Petition for Rehearing En Banc as a Petition for Panel Rehearing, the Petition for Panel Rehearing is DENIED. The court having been polled at the request of one of the members of the court and a majority of the judges who are in regular active service and not disqualified not having voted in favor (FED. R. APP. P. and 5TH CIR. R. 35), the Petition for Rehearing En Banc is DENIED.

In the en banc poll, eight judges voted in favor of rehearing

Chief Judge Owen, Judge Jones, Judge Elrod, Judge Higginson, Judge Willett, Judge Ho, Judge Duncan, and Judge Oldham,

and eight voted against rehearing

Judge Smith, Judge Stewart, Judge Dennis, Judge Southwick, Judge Haynes, Judge Graves, Judge Costa, and Judge Engelhardt.

 

ENTERED FOR THE COURT:

    /s/ W. Eugene Davis                            _ UNITED STATES CIRCUIT JUDGE

EDITH H. JONES, Circuit Judge, joined by WILLETT, HO, DUNCAN, and OLDHAM, Circuit Judges, dissenting from the denial of rehearing en banc.

Axiomatic to the First Amendment is the principle that government “may interject its own voice into public discourse.” Phelan v. Laramie Cty. Cmty. Coll. Bd. of Trustees, 235 F.3d 1243, 1247 (10th Cir. 2000) (citing Meese v. Keene, 481 U.S. 465, 480–82, 107 S. Ct. 1862, 1870–72 (1987)).1 According

to the panel opinion, however, the “government,” i.e. Houston Community College’s Board, does not enjoy First Amendment protection to “speak” by issuing a censure against this gadfly legislator. In so holding, the panel opinion exacerbates a circuit split, threatens to destabilize legislative debate, and invites federal courts to adjudicate “free speech” claims for which there are no manageable legal standards. The First Amendment was never intended to curtail speech and debate within legislative bodies. I respectfully dissent from the denial of rehearing en banc.

The facts of this case are straightforward. David Wilson, then a trustee of the Board of Trustees for Houston Community College Systems (“HCC”), publicly alleged that fellow Board members were violating the Board’s bylaws and not acting in HCC’s best interests. He hired a private investigator to check on the alleged residency of one member, produced robocalls, and gave interviews voicing his criticisms. The Board responded by censuring him for acting in a manner “not consistent with the best interests of the College or the Board, and in violation of the Board Bylaws Code of Conduct.” Wilson countered with a lawsuit against HCC, which alleged that the censure violated

1 See also Pleasant Grove City v. Summum, 555 U.S. 460, 467, 129 S. Ct. 1125, 1131 (2009) (“A government entity has the right to speak for itself. [I]t is entitled to say what it wishes, and to select the views that it wants to express.”) (alteration in original) (internal quotation marks and citations omitted); Johanns v. Livestock Mktg. Ass’n, 544 U.S. 550, 553, 125 S. Ct. 2055, 2058 (2005) (“[T]he Government’s own speech . . . is exempt from First Amendment scrutiny.”).

his free speech rights and injured his reputation.2 HCC moved to dismiss for lack of jurisdiction and failure to state a claim, and the district court granted that motion. A panel of this court reversed, concluding that “a reprimand against an elected official for speech addressing a matter of public concern is an actionable First Amendment claim under § 1983.” Wilson v. Houston Cmty. Coll. Sys., 955 F.3d 490, 498 (5th Cir. 2020).

First, the panel’s holding is out of step with four sister circuits, all of them in agreement that a legislature’s public censure of one of its members, when unaccompanied by other personal penalties, is not actionable under the First Amendment.3 Decisions from the Tenth and Sixth Circuits are particularly compelling. In Phelan, the Tenth Circuit held—on facts strikingly similar to the case at bar—that a college board’s censure did not infringe a board member’s free speech rights because it did not punish her for exercising those rights nor deter her future speech. 235 F.3d at 1247. As the court explained, “[t]he crucial question is whether, in speaking, the government is compelling others to espouse or to suppress certain ideas or beliefs.” Id. (emphasis in original). “In order to compel the exercise or suppression of speech, the governmental measure must punish, or threaten to punish, protected speech by governmental action that is ‘regulatory, proscriptive, or compulsory in nature.’” Id. (quoting Laird v. Tatum, 408 U.S. 1, 11, 92 S. Ct.

2 The Board took away certain of Wilson’s perks of office but did not otherwise act against him or his personal property.
3 See, e.g., Werkheiser v. Pocono Twp., 780 F.3d 172, 181–83 (3d Cir. 2015); Blair v. Bethel Sch. Dist., 608 F.3d 540, 543–46 (9th Cir. 2010); Phelan v. Laramie Cty. Cmty. Coll. Bd. of Trustees, 235 F.3d 1243, 1247 (10th Cir. 2000); Zilich v. Longo, 34 F.3d 359, 363–64 (6th Cir. 1994); see also Romero-Barcelo v. Hernandez-Agosto, 75 F.3d 23, 34 (1st Cir. 1996) (concluding there is “no First Amendment protection for a politician whose rights to freedom of speech, freedom of association, and freedom to disassociate [oneself] from unpopular views have been injured by other politicians seeking to undermine his credibility within his own party and with the electorate”) (alteration in original) (internal quotation marks and citation omitted).

2318, 2324–25 (1972)). Such action could include imprisonment, fines, injunctions, or taxes, but “[a] discouragement that is ‘minimal’ and ‘wholly subjective’”—such as a censure resulting in reputational injury—“does not. . . impermissibly deter the exercise of free speech rights.” Id. at 1247–48 (quoting United States v. Ramsey, 431 U.S. 606, 624, 97 S. Ct. 1972, 1982 (1977)). Fellow legislators may strike hard verbal blows, and all’s fair when they exercise corporate authority to censure or reprimand one of their members; such actions are not a violation of the First Amendment, but its embodiment in partisan politics. As Phelan explained, hurt feelings or reputational injuries are “not enough to defeat constitutional interests in furthering ‘uninhibited, robust’ debate on public issues.” Phelan, 235 F.3d at 1248 (quoting New York Times v. Sullivan, 376 U.S. 254, 270, 84 S. Ct. 710, 721 (1964)). The panel opinion here failed to confront Phelan on its merits.

Zilich v. Longo, 34 F.3d 359 (6th Cir. 1994), is also exemplary.4 There, a former city councilman sued the council members who passed a resolution, after he left office, challenging whether he ever resided in his district and urging legal action for disgorgement of his official salary. As in Phelan, the Sixth Circuit concluded that resolutions condemning or approving the conduct of elected officials “are simply the expression of political opinion.” Id. at 364. “They do not control the conduct of citizens or create public rights and duties like regular laws,” id., and thus do not infringe on censured policymakers’ free speech rights. Zilich reveals a very practical grasp of the squabbles that legislative politics involve:

The First Amendment is not an instrument designed to outlaw partisan voting or petty political bickering through the adoption of

4 The panel opinion mistakenly suggests that Zilich is distinguishable because it involved a “resolution” against the dissenting member rather than a “censure.” Wilson, 955 F.3d at 499–50. Query what difference this semantic distinction, even if accurate, would make? But the panel neglects that the Board here actually passed a “resolution of censure”!  —> note the exclamation mark.

legislative resolutions. . . . This principle protects Zilich’s right to oppose the mayor without retribution and it also protects defendants’ right to oppose Zilich by acting on the residency issue which was left unresolved for over two years.

34 F.3d at 363.

These cases’ application of true First Amendment principles put the reasoning of our court’s panel to shame.

Second, on its own terms, the Wilson panel misplaced its reliance on circuit precedent, principally cases concerning official reprimands against elected Texas judges. See Scott v. Flowers, 910 F.2d 201 (5th Cir. 1990); Jenevein v. Willing, 493 F.3d 551 (5th Cir. 2007).

These decisions stand on insecure legal footing and are otherwise clearly distinguishable.

Scott originated in the body of law that protects First Amendment rights of ordinary government employees and used to be characterized by the Connick/Pickering balancing test. Whether this analogy was ever appropriate to evaluate judicial impropriety is dubious, so much so that the Jenevein court essentially abandoned it in favor of a classic First Amendment strict scrutiny standard.

But even if these decisions remain sound,5 this court had and has sufficient familiarity with judicial ethics to determine the extent to which a judge’s (constitutionally protected) statements on a matter of public concern comport with (the compelling governmental interest in) assuring the courts’ integrity and impartiality.

We have no adequate background to determine how, in the hurly-burly political world of a legislative body, either elemental First Amendment principles or background ethical standards apply to “balance” the

5 Pursuant to Garcetti v. Ceballos, 547 U.S. 410, 126 S. Ct. 1951 (2006), the scope of First Amendment protection from discipline by governmental employers has been narrowed. See Anderson v. Valdez¸ 845 F.3d 580, 592–93 (5th Cir. 2016) (“[W]hen public employees [speak] pursuant to their official duties, [they] are not speaking as citizens Such [j]ob- required speech is not protected, even when it irrefutably addresses a matter of public concern.”) (second, third, fourth, and fifth alterations in original) (internal quotation marks and citation omitted). Application of such case law to elected judges has thus become even more tenuous.

public statements of one official against the retaliatory statements of his co-legislators in their capacity as “the government.”

Scott and Jenevein are distinguishable for another reason.

Judicial discipline is incommensurable with legislative debates.

The body meting out discipline in the judicial cases was the Texas Commission on Judicial Conduct, which has authority to impose progressive discipline up to and including a recommendation to the state Supreme Court of the judge’s removal from office. TEX. CONST. art. V, § 1-a.

HCC’s Board lacks authority to remove its own members, whose ultimate discipline resides in the ballot box.

Further, judges, even elected judges, are not equivalent to legislators when it comes to participating in the public square.

Judges must submit our extrajudicial “speech” to institutional discipline for the sake of public confidence in the impartiality of our judicial work.

In contrast, the duty of legislators is precisely to “speak” on matters of public concern, either individually or in their capacity as the majority, without inhibition. Such “speech” includes addressing the (mis)conduct of the legislative body’s own members.

Indeed, “[v]oting on public policy matters coming before a legislative body is an exercise of expression long protected by the First Amendment.” Camacho v. Brandon, 317 F.3d 153, 160 (2d Cir. 2003).

As the Supreme Court observed in Bond v. Floyd, 385 U.S. 116, 135–36, 87 S. Ct. 339, 349 (1966), “[t]he manifest function of the First Amendment in a representative government requires that legislators be given the widest latitude to express their views on issues of policy.”

Because the sanction of fellow Board members generally lies with the voters, policymakers—like HCC’s Board of Trustees—must be able to “speak” by issuing official resolutions, censures, or reprimands.

Otherwise, as in this case, the First Amendment becomes a weapon to stifle fully protected government speech at the hands of a fully protected speaker.

Our own case law actually respects the lack of a constitutional remedy for ordinary intra-legislative squabbling. In Colson v. Grohman, 174 F.3d 498 (5th Cir. 1999), this court denied First Amendment relief to a city councilwoman who asserted that the city and other public officials engaged in retaliatory criticism, false accusations, and investigations because of her political views and votes. Id. at 500.

While acknowledging the Scott decision’s framework for actionable First Amendment conduct against an “elected public official,” this court nevertheless found the hardball tactics employed against the plaintiff insufficient to withstand summary judgment.

This court concluded that “the defendants’ allegedly retaliatory crusade amounted to no more than the sort of steady stream of false accusations and vehement criticism that any politician must expect to endure.” Id. at 514. Colson stands as a practical rebuke to this Wilson panel’s insistence on judicializing legislative disputes.

Finally, although it makes no attempt to explain what happens next, the panel opinion also raises serious questions about how to apply strict scrutiny in a novel context and an already muddled area of the law.

What judicially manageable tests are there for deciding when a body’s censure of one of its members’ speech violates a “compelling interest” and isn’t “narrowly tailored”?

See Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2327 (2016) (Thomas, J., dissenting) (“If our recent cases illustrate anything, it is how easily the Court tinkers with levels of scrutiny to achieve its desired result.”). The panel leaves that question for an uninstructed district court on remand. But I am skeptical that any cogent judicial response is possible.

Given the increasing discord in society and governmental bodies, the attempts of each side in these disputes to get a leg up on the other, and the ready availability of weapons of mass communication with which each side can tar the other, the panel’s decision is the harbinger of future lawsuits.

It weaponizes any gadfly in a legislative body and inflicts an immediate pocketbook injury on the censuring institution. Political infighting of this sort should not be dignified with a false veneer of constitutional protection and has no place in the federal courts.

I respectfully dissent.

JAMES C. HO, Circuit Judge, dissenting from denial of rehearing en banc:

Holding office in America is not for the faint of heart. With leadership comes criticism—whether from citizens of public spirit or personal malice, colleagues with conflicting visions or competing ambitions, or all of the above. Those who seek office should not just expect criticism, but embrace it.

Tough scrutiny is not a bug, but a defining feature of our constitutional structure. In America, we trust our citizens to determine for themselves what is right—and to count on vigorous, unrelenting debate to guide them. As Benjamin Franklin once wrote,

“a free constitution and freedom of speech have such a reciprocal dependence on each other that they cannot subsist without consisting together.”

Benjamin Franklin, On Freedom of Speech and the Press, in 2 THE WORKS OF BENJAMIN FRANKLIN 310 (Sparks ed., 1882).

Of course, no one enjoys being booed.1  But as de Tocqueville observed nearly two centuries ago, “[t]he social state naturally disposes Americans not to be easily offended in little things,” and “the democratic freedom they enjoy makes this indulgence pass into the national mores.”

2 ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 541 (Mansfield ed., 2000) (1840).

And because our citizens don’t fear criticism, it is only natural to insist that officials don’t either. We expect officials in every branch of government to rise to the challenge—not wilt under the pressure.

Churchill once wrote:

“Courage is rightly esteemed the first of human qualities, because, as has been said, ‘it is the quality which guarantees all others.’”

1 Studies show, for example, that in sports, fear of being booed causes “referee bias” toward the home team: “[F]aced with enormous pressure—say, making a crucial call with a rabid crowd yelling, taunting, and chanting a few feet away—it is natural to want to alleviate that pressure.” TOBIAS J. MOSKOWITZ & L. JON WERTHEIM, SCORECASTING: THE HIDDEN INFLUENCES BEHIND HOW SPORTS ARE PLAYED AND GAMES ARE WON 159, 165 (2011).

WINSTON CHURCHILL, GREAT CONTEMPORARIES 211 (Muller ed., 2012) (1937).

Judge Ho’s Translation: Leaders lead. They listen to reason. But they won’t be cowed by the mob.

No one would confuse the typical public officeholder today for Churchill. But whatever fortitude an official may happen to possess, we know this to be true: The First Amendment guarantees freedom of speech, not freedom from speech. It secures the right to criticize, not the right not to be criticized.

The panel here took a different view, holding that public officials have a right not to be censured for engaging in speech critical of others.2 Our court has previously found such rights for judges. See Scott v. Flowers, 910 F.2d 201, 209 (5th Cir. 1990); but see id. at 215–16 (Garwood, J., dissenting); see also Jenevein v. Willing, 493 F.3d 551, 562 (5th Cir. 2007). So the panel understandably applied those precedents to officials outside the judiciary.

But our sister circuits have found no such right. See, e.g., Phelan v. Laramie Cty. Cmty. Coll. Bd., 235 F.3d 1243, 1248 (10th Cir. 2000) (“[C]ensure is clearly not a penalty that infringes Ms. Phelan’s free speech rights.”) (citing Zilich v. Longo, 34 F.3d 359, 364 (6th Cir. 1994)).

As then-Judge Scalia once wrote, “[w]e know of no case in which the [F]irst [A]mendment has been held to be implicated by governmental action consisting of no more than governmental criticism of the speech’s content.” Block v. Meese, 793 F.2d 1303, 1313 (D.C. Cir. 1986).

After all, the First Amendment does not “consider[] speakers to be so timid, or important ideas to be so fragile, that they are overwhelmed by knowledge of governmental disagreement.” Id.

Leaders don’t fear being booed. And they certainly don’t sue when they are. I join Judge Jones’s excellent opinion dissenting from the denial of rehearing en banc.

2 Plaintiff also complained about certain “additional measures,” beyond the words of censure, that have been taken against him. But the panel allowed him to proceed based on words alone. See Wilson v. Houston Cmty. Coll. Sys., 955 F.3d 490, 499 n.55 (5th Cir. 2020).

No. 89-2491

United States Court of Appeals, Fifth Circuit

Scott v. Flowers

910 F.2d 201 (5th Cir. 1990)

Decided Aug 20, 1990

No. 89-2491.

202 August 20, 1990. *202

Bruce V. Griffiths, Houston ACLU, Houston, Tex., for plaintiff-appellant. Robin Sanders, Austin, Tex., for defendants-appellees.

Appeal from the United States District Court for the Southern District of Texas.

Before KING, GARWOOD, and SMITH, Circuit Judges

JERRY E. SMITH, Circuit Judge:

Today we are asked to decide whether an elected judge may constitutionally be reprimanded for making truthful public statements critical of the administration of the county judicial system of which he is a part. Concluding (1) that such statements address matters of legitimate public concern and (2) that the state’s interest in promoting the efficiency and impartiality of its courts does not, under the circumstances of this case, outweigh the plaintiff’s countervailing first amendment right to air his views, we reverse the judgment of the district court and remand for further proceedings.

I. A.

In 1982, plaintiff James M. Scott, Jr., was elected to a four-year term as justice of the peace in Fort Bend County, Texas. As in many states, justices of the peace in Texas occupy the lowest rung of the judicial  hierarchy. Their courts have jurisdiction to hear only petty criminal prosecutions (such as traffic violations), actions for forcible entry and detainer, and other civil cases in which the amount in controversy does not exceed $2,500. See Tex. Const. Art. V, § 19; Tex.Gov’t Code Ann. § 27.031. In most Texas counties, Fort Bend among them, justice courts are not courts of record, and parties appealing from their judgments are entitled to a trial de novo in a higher court.

Soon after taking office, Scott became concerned about what he perceived to be an injustice in the administration of the county court system. Apparently, the great majority of defendants who appealed their traffic offense convictions from justice or municipal courts to the Fort Bend County Court-at-law during Scott’s term in office succeeded in having the charges against them dismissed or the fines sharply reduced.1 This practice, Scott believed, unfairly allowed those “in the known” to violate the traffic laws repeatedly and with impunity while penalizing less sophisticated individuals who committed the same

  1. The truth of these allegations has never been contested in this litigation.

In September 1983, Scott took his concerns to the local government and the citizenry by writing an “open letter” to county officials. In the letter, Scott attacked the district attorney’s office and the county court-at-law for dismissing so many traffic ticket appeals and called upon the county officials to offer suggestions to remedy the problem. If the county refused to change this practice, Scott concluded, the public at least should be made aware of it, and the court-at-law “would be really busy then.”2

2. The letter states, in its entirety, as follows:
Dear County Officials:
In the nine months that I have been Justice of the Peace of Precinct Four in Fort Bend County, I have learned of a practice in our County Court at Law Court, and the District Attorney’s Office, that I believe adversely affects justice in our county. Almost all of the cases appealed to this court are dismissed totally and the few cases that are not dismissed are `plea bargained’ down to very low fine amounts.
Of the 123 decisions made through the end of August, 1983, all but 17 were completely dismissed; i.e., more than 86% were dismissed after being found guilty by the Justice or Municipal Courts of Fort Bend County. Of the few cases decided, most all had only `token’ fines of $10.00 or less. The average fine per case appealed to the County Court at Law Court is only $4.05.
Until now, only a few people represented by local attorneys `knew’ that an appeal was really a dismissal. This allows those few people to violate the law repeatedly and never develope [sic] a bad driving record. If it is the policy of the County to not prosecute appeals from the Justice of the Peace Courts and the Municipal Courts, then everyone should be made aware of it; the County Court at Law Court and the District Attorney’s Office would really be busy then.
Please contact me and offer your suggestions and opinions.
Respectfully,
James M. Scott, Jr. Justice of the Peace Precinct Four Fort Bend County

The letter was circulated to the local press and prompted several newspaper articles. It also attracted the attention of Thomas Culver, one of the judges of the court-at-law, who wrote Scott an angry letter criticizing him for not raising his concerns privately. Eventually, both the newspaper articles and Culver’s letter found their way into the files of the Texas Commission on Judicial Conduct (the “Commission”).3

3. The Commission is empowered by the Texas Constitution to discipline state judges for “willful violation of the Code of Judicial Conduct, or willful and persistent conduct that is clearly inconsistent with the proper performance of his duties or casts public discredit on the judiciary or on the administration of ” See Tex. Const. Art. V, § 1-a(6)A.

In November 1983, the Commission’s executive director, defendant Robert C. Flowers, advised Scott by letter that he had been the subject of several complaints received by the Commission.4 Scott responded to the complaints both in writing and in person, having been invited by Flowers to appear informally before the Commission.

4. Some of those complaints concerned the open letter; others dealt with unrelated matters not at issue in this litigation.

On March 19, 1984, the Commission issued a formal public reprimand of Scott. After first acknowledging that Scott’s intentions were good and his personal integrity was not at issue, the Commission then chided him for being “insensitive” in certain “written and oral communications” addressed both to the litigants in his courtroom and to the public at large. Such “insensitivity,” the Commission stated, was inconsistent with the proper performance of Scott’s duties as justice of the peace and served only to “cast public discredit upon the judiciary.” The Commission concluded the reprimand with a warning, advising Scott to be “more restrained and temperate in written and oral communications in the future.”

Although the Commission failed to cite any examples of Scott’s alleged insensitivity *205 to litigants,5 it was quite specific in identifying the public comments it found to be objectionable. The Commission criticized Scott both for his statement in the open letter that the county court-at-law “would be really busy” if the public realized that an appeal of a traffic ticket was tantamount to a dismissal and for his comment to a reporter, in connection with the letter, that “the county court system is not interested in “6

5. The reprimand does, however, refer to an alleged threat Scott made to certain peace officers who were pursuing a grievance against him through legitimate Although Scott denies making such a threat, he concedes that such threats are outside the ambit of the first amendment’s protections and thus does not assert that that portion of the reprimand is a violation of his constitutional rights.
6. The reprimand states, in its entirety, as follows:
State Commission on Judicial Conduct Public Reprimand of James M. Scott, Jr., Justice of the Peace Precinct of Fort Bend County, Texas.
As you are aware, at its regularly scheduled meeting on March 9, 1984, the State Commission on Judicial Conduct reviewed several complaints which had been filed against you by various individuals with whom you have had dealings with [sic] in your official capacity as Justice of the Peace, Precinct 4, Fort Bend County.
You had previously been advised, in writing, of the complaints, and had submitted written responses thereto. You had also been invited by the Commission to appear informally at the regularly scheduled meeting, and did so appear.
It is apparent that your intentions have been to be scrupulously faithful to the law, and your personal integrity was not questioned. However, it is also apparent that there have been instances when you have been very insensitive to the effects of your written and oral communications on the litigants in your court. It was the Commission’s conclusion that your insensitivity in written and oral communications, related to the complaints filed with the Commission, has cast discredit upon the judiciary and the administration of justice. Your insensitivity in communication appears to be a common thread in each of the complaints against you and can be exemplified by an incident in which Department of Public Safety Officers interpreted certain of your representations as a serious threat of retaliation against them for their pursuit, through legitimate channels, of a grievance against you.
Additionally, it was the Commission’s conclusion that certain public statements by you were inconsistent with the proper performance of your duties as a justice of the peace and cast public discredit upon the judiciary.
Certainly, judges may make public statements in the course of their official duties or explain for public information the procedures of the court. However, judges must also conduct themselves at all times, in a manner that promotes public confidence in the integrity and impartiality of the judiciary. Exemplifying an improper statement which the Commission considers to be destructive of public confidence in the judiciary is the statement attributed to you by a reporter, published in a paper, and acknowledged by you during your appearance before the Commission, to the effect that, `It seems the county court system is not interested in justice.’ Another statement the Commission considered as destructive to public confidence in the judiciary is the penultimate sentence in your open letter of September 27, 1983, to county officials concerning county court at law appeals. After impinging on, `… the policy of the County not to prosecute appeals …’ the sentence somewhat maliciously concludes that the public should be made aware and the County Court at Law `would really be busy then.’
The Commission condemns your conduct described above and hopes that this action will cause you to be more restrained and temperate in written and oral communications in the future.
Accordingly, pursuant to the authority contained in Article V, Section 1-a, Subsection ( 8) of the Texas Constitution, it is ORDERED that the conduct heretofore outlined is made the subject of a public reprimand by the State Commission on Judicial Conduct.
Issued this 19th day of March 1984. Robert C. Flowers, Executive Director
Acting for and On Behalf of the State Commission on Judicial Conduct with Full Authority so to Act

B.

In March 1986, Scott filed this 42 U.S.C. § 1983 action against the members of the Commission, both individually and in their official capacities. He alleged that his open letter, and his comments to reporters in connection with it, were protected speech for which he could not constitutionally be subject to discipline. Scott’s complaint sought a declaratory judgment that portions of the reprimand violated his first amendment rights, an injunction ordering the Commission to expunge those offending portions from his record, and attorneys’ fees pursuant to 42 U.S.C. § 1988, but did not request any monetary damages.

After the parties had completed discovery, both sides moved for summary  In support of its motion, the Commission7 introduced identical affidavits from nine (a majority) of its members, each stating that while Scott’s open letter had been a “substantial factor” in the affiant’s decision to vote in favor of reprimand, it had been “by no means the controlling factor.” The affidavits were uncontroverted, and, unlike the reprimand itself, listed specific examples of Scott’s “insensitivity” to the litigants in his courtroom and explained that those incidents, along with the open letter, had prompted the reprimand.

7. Except where it is necessary to distinguish them, the individual defendants, all of whom are members or former members of the Commission, are referred to collectively simply as “the ” Commission.

The Commission argued that the summary judgment record established that Scott would have been reprimanded even if he had not written the open letter or shared his views with reporters and therefore that, under the analysis set forth in Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977), he was entitled to no relief even if his public comments were in fact protected speech. Scott responded that Mt. Healthy was inapplicable because he, unlike the plaintiff in that case, did not seek to be placed in a better position because of his constitutionally protected conduct. Moreover, he contended that the summary judgment record amply demonstrated that his statements addressed matters of public concern and that his right to make them was not outweighed by the Commission’s asserted interest in maintaining the integrity of the state’s judicial system.

C.

The district court granted summary judgment in favor of the Commission. Without citing Mt. Healthy, but apparently relying upon it, the court concluded that Scott would have been reprimanded even if he had not written the open letter and therefore that he was entitled to no relief. The court thus found it unnecessary “to reach the issue of whether Plaintiff’s conduct in writing the letter is in fact constitutionally protected activity.”

II.

Before addressing the merits of this appeal, we must examine the basis of federal jurisdiction, on our own motion8 if necessary. Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir. 1987). Although none of the parties has directed our attention to it, we of course are aware of the rule proscribing federal district court review of state court judgments,9 and of its implications for this case in light of Thomas v. Kadish, 748 F.2d 276 (5th Cir. 1984), cert. denied, 473 U.S. 907, 105 S.Ct. 3531, 87 L.Ed.2d 655 (1985). There, we extended that rule to deprive the federal district courts of jurisdiction over the claims of individuals who are aggrieved by the judicial acts of state agencies controlled by state courts and who deliberately bypass available channels of state court review.

8. Although none of the parties raised this jurisdictional issue, they filed letter briefs that we requested following oral argument.
9. Final judgments of a state’s highest court are not subject to federal district court review; instead “[r]eview of such determinations can be obtained only in … [the Supreme] ” District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 476, 103 S.Ct. 1303, 1311, 75 L.Ed.2d 206 (1983) (following Rooker v. Fidelity Trust Co., 263 U.S. 413, 416, 44 S.Ct. 149, 150, 68 L.Ed. 362 (1923), and hence called the ” Rooker-Feldman doctrine”). Accord Howell v. Supreme Court of Tex., 885 F.2d 308, 311 (5th Cir. 1989), cert. denied, U.S.       , 110 S.Ct. 3213, 110 L.Ed.2d 661 (1990).

Accordingly, we must decide in this case whether the Commission’s reprimand of Scott was a judicial act, whether the Commission is the agent of the state courts, and finally, whether Scott intentionally refrained from seeking state court review of the Commission’s decision. We begin our discussion of these questions with a review of the facts and rationale of Thomas and its predecessor, Feldman.

In Feldman, an applicant who was denied admission to the District of Columbia bar on the ground that he had not graduated from an accredited law school petitioned the District of Columbia Court of Appeals for a waiver of that requirement in his case. When his petition was denied, Feldman brought suit in federal district court, seeking (1) a declaratory judgment that the denial of his application violated the fifth amendment and the federal antitrust laws and (2) an injunction ordering the defendants to admit him to the The court dismissed Feldman’s claim for lack of subject matter jurisdiction, reasoning that the denial of a waiver by the District of Columbia Court of Appeals was, in effect, a judicial determination by a state’s highest tribunal. The United States Court of Appeals for the District of Columbia Circuit reversed and remanded on the ground that the waiver proceedings at issue were not judicial, but rather administrative, in nature. Feldman v. Gardner, 661 F.2d 1295, 1315-19 (D.C. Cir. 1981).

On review, the Supreme Court concluded that the waiver proceedings were in fact judicial, since their purpose was to “investigate, declare, and enforce `liabilities as they [stood] on present or past facts and under laws supposed already to exist.'” District of Columbia Court of Appeals v. Feldman, 460 U.S. at 479, 103 S.Ct. at 1313 (quoting Prentis v. Atlantic Coast Line Co., 211 U.S. 210, 226, 29 S.Ct. 67, 69, 53 L.Ed. 150 (1908)).

Accordingly, the Court reversed and ordered Feldman’s claims dismissed.10

10. Feldman was, however, allowed to proceed with those of his claims that attacked the facial validity of the District of Columbia’s bar admissions rules. As the Court explained, “United States district courts … have subject-matter jurisdiction over general challenges to state bar rules, promulgated by state courts in nonjudicial proceedings, which do not require review of a final state-court judgment in a particular case. They do not have jurisdiction, however, over challenges to state-court decisions in particular cases arising out of judicial proceedings even if those challenges allege that the state court’s action was Review of those decisions may be had only in this Court.” 460 U.S. at 486, 103 S.Ct. at 1317. See Howell, 885 F.2d at 311-12.

In Thomas, we applied the Rooker-Feldman doctrine to a case that differed from Feldman in only one important respect — unlike Feldman, Thomas did not seek state court review of the denial of his bar application; instead, he proceeded directly to federal district court and brought a section 1983 claim alleging that he had been denied admission because of his race and religious beliefs. Thomas contended that the Texas Board of Law Examiners (the “Board”), which had denied his application, was not a court but rather an administrative agency, and, accordingly, that under Patsy v. Board of Regents, 457 U.S. 496, 102 S.Ct. 2557, 73 L.Ed.2d 172 (1982),11 he was not required to exhaust state remedies before bringing a constitutional claim in federal court.

11. Patsy holds that “exhaustion of state administrative remedies should not be required as a prerequisite to bringing an action pursuant to 1983.” 457 U.S. at 516, 102 S.Ct. at 2568.

Although we found those contentions “substantial,” Thomas, 748 F.2d at 278, we nevertheless concluded that the Rooker-Feldman doctrine precluded federal district court review of Thomas’s claims, for two reasons: First, the Board was essentially the agent of the Texas Supreme Court, which had promulgated the rules governing the Board’s activities and appointed the Board’s nine members. And second, Thomas had failed to pursue available channels of state court review:

[T]he Texas state supreme court has itself provided for a method of judicial review of the Board’s denial of fitness. A rejected applicant’s deliberate bypass of those procedures that envisioned (ultimately) a reviewable final state-court judgment, itself under Feldman not subject to federal district-court review, should not, it would seem, entitle the applicant to a review of his constitutional claims by a federal district court that would have been unavailable to him if he had pursued his claim to final state court judgment. Under Feldman, `a petitioner’s failure to raise his constitutional claims in state court does not mean that a United States District Court should have jurisdiction over the claims,’ 460 U.S. at 483 n. 16 [ 103 S.Ct. at 1315 n. 16] …, and `by failing to raise his claims in state court a plaintiff may forfeit his right to obtain review of the state court decision in any federal court,’

 Id. at 282.

With this background in mind, we now proceed to answer the three questions posed earlier in our discussion. We have little difficulty in concluding that the Commission’s reprimand of Scott was a judicial act. As the Court explained in Feldman, a proceeding is judicial when it “investigate[s], declare[s], and enforce[s] liabilities … on present or past facts and under laws supposed already to exist.” 460 U.S. at 479, 103 S.Ct. at 1313. Here, the Commission investigated the complaints lodged against Scott, declared him in violation of the then-existing Code of Judicial Conduct, and enforced its determination by issuing a public reprimand.

Despite the judicial nature of its actions, however, the Commission cannot be regarded as the agent of the state court system. Unlike the Board in Thomas, the Commission is constitutionally established and is endowed with a measure of independence from the courts. Whereas the Board’s nine members all are appointed directly by the Texas Supreme Court, the Commission’s eleven members are chosen in three different ways: five are appointed by the Texas Supreme Court (three of those with the advice and consent of the Texas Senate), two are appointed by the State Bar of Texas with the advice and consent of the Senate, and four (who must be non- lawyers) are appointed by the governor with the advice and consent of the senate. Tex. Const. Art. V, § 1-a( 2). Thus, not even a majority of the Commission’s members are chosen by the Supreme Court, and three of the commissioners nominated by the court must be confirmed by an independent body.12

12. In First Amendment Coalition Judicial Inquiry Review Bd., 501 Pa. 129, 460 A.2d 722 (1983), the court held that Pennsylvania’s Judicial Inquiry and Review Board (a constitutionally established nine-member body, five of whose members are appointed by the state supreme court and four of whose members are appointed by the governor, and whose functions are virtually identical to those of the Commission) was an independent agency, rather than a court, and therefore could not be issued a writ of mandamus. Because a majority of that board’s members are appointed by the state supreme court (without the advice and consent of the state senate), it is less independent of the state court system than is the Commission in the instant case.

Moreover, whereas the licensing of lawyers and the regulation of the state bar traditionally have been regarded as functions of the state’s highest court, the discipline of judges (at least in Texas) is not exclusively or even predominantly the province of that court. The Texas Constitution provides five methods for the removal of judges, only three of which involve the courts at all and none of which gives the Texas Supreme Court the power to remove or sanction a judge on its own initiative.13 In sum, both the structure and functions of the Commission make it largely independent of the state courts; accordingly, it cannot be viewed as their agent.

13. Those five methods are as follows: Article XV, 2 provides for removal of judges by the senate. Article XV, § 6 provides for removal of district judges by the supreme court upon the sworn presentment of ten lawyers practicing before the judge whose removal is sought. Article XV, § 8 provides for removal of judges by the governor upon a resolution of two-thirds of each house of the legislature. Article V, § 1-a(8) empowers the Commission to recommend removal to a review tribunal composed of judges of the state courts of appeals. And finally, Article V, § 24 provides for the removal of county judges and justices of the peace by state district judges.

Finally, Scott, unlike Thomas, did not bypass channels of state court review provided for by the Texas Supreme Court. As the Commission concedes, no appeal from its reprimands was available until 1987, one year after Scott had filed the instant lawsuit in federal district court. In addition, the 1987 statute allowing such appeals explicitly provides that it does not apply to reprimands issued before its effective date. Tex. Gov’t Code Ann. § 33.034.

Thus, Scott had no vehicle other than a civil rights suit by which to challenge the Commission’s allegedly unconstitutional reprimand. Although he could have elected to bring such an action in either state or federal court, his choice of the federal forum does not in any way suggest a deliberate circumvention of state court

review. We thus conclude that we have jurisdiction to consider Scott’s first amendment claims, and we now proceed to evaluate their merits.

III.

We must first revisit the district court’s threshold determination that Mt. Healthy precludes Scott from obtaining any relief even if his constitutional rights were violated. In Mt. Healthy, plaintiff Doyle, a schoolteacher who had been fired shortly after criticizing school policy in a telephone call to a local radio station, sued the school board for reinstatement and back pay, claiming that his discharge was in violation of the first amendment. The district court held that Doyle’s telephone call was protected speech and that, because it had played a  “substantial part” in the school board’s decision to terminate him, Doyle was entitled to the relief he sought. The Sixth Circuit affirmed in an unpublished per curiam opinion.

On review, the Supreme Court accepted the district court’s finding that Doyle’s telephone call was protected speech but not its conclusion that Doyle was entitled to reinstatement and back pay simply because that speech had been a “substantial factor” in the board’s decision to terminate him. Instead, the Court reasoned that the board should be given the opportunity to prove that it would have discharged Doyle even if he had not made the telephone call.14 As the court explained,

14 Apparently, Doyle had also aroused the anger of the school board by (1) arguing with cafeteria workers over the amount of spaghetti they had served him, (2) referring to students against whom he had taken disciplinary measures as “sons of bitches,” and (3) making an obscene gesture to two female students. 429 U.S. at 281-82, 97 S.Ct. at 573-74.

A rule of causation which focuses solely on whether protected conduct played a part, `substantial’ or otherwise, in a decision not to rehire, could place an employee in a better position as a result of the exercise of constitutionally protected conduct than he would have occupied had he done nothing. The difficulty with the rule enunciated by the District Court is that it would require reinstatement in cases where a dramatic and perhaps abrasive incident is inevitably on the minds of those responsible for the decision to rehire, and does indeed play a part in that decision — even if the same decision would have been reached had the incident not occurred. The constitutional principle at stake is sufficiently vindicated if such an employee is placed in no worse a position than if he had not engaged in the conduct. A borderline or marginal candidate should not have the employment decision resolved against him because of constitutionally protected conduct. But that same candidate ought not to be able, by engaging in such conduct, to prevent his employer from assessing his performance record and reaching a decision not to rehire on the basis of that record, simply because the protected conduct makes the employer more certain of the correctness of its decision.

429 U.S. at 285-86, 97 S.Ct. at 575-76. Simply stated, the rule of Mt. Healthy is that a public employee who is discharged or otherwise disciplined for engaging in constitutionally protected conduct is not entitled to any relief if the employer can prove that it would have taken the same action absent that conduct.

The Commission has not, and indeed, cannot on the facts of this case, make the showing required by Mt. Healthy. 15 The pertinent paragraph of the reprimand deals solely with Scott’s open letter and with his comments to a reporter in connection with that Although the Commission might have reprimanded Scott for other reasons, had he not written the letter, it could not then have based any portion of the reprimand upon that letter. And since Scott seeks only to have that part of the reprimand dealing with the allegedly protected conduct expunged from his record, he will not be put into a better position than he otherwise would have occupied if that relief is granted. We thus conclude that the district court erred in its application of Mt. Healthy to the facts of this case and now proceed to evaluate the merits of Scott’s claim.

15 The Commission correctly points out that recently we have applied the Mt. Healthy analysis in cases not involving retaliatory discharge. See North Miss. Communications, Inc. v. Jones, 874 F.2d 1064 (5th Cir. 1989). This argument, however, is completely beside the point. Mt. Healthy is inapplicable to this case not because it does not involve retaliatory discharge, but rather because the relief Scott seeks will not put him in a better position than he would have occupied but for the allegedly protected conduct.

IV. A.

Public employees, in their capacity as such, occupy a unique position in first amendment jurisprudence. The Supreme Court has always recognized that the state as employer may restrict the speech of its employees in ways in which the state as sovereign may not restrict the speech of its citizens. Indeed, the Court for many years adhered to the position that public employees could be fired for expressing their views, notwithstanding the fact that they had a constitutional right to do so — that is, that “[a policeman] may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.” See Rankin v. McPherson, 483 U.S. 378, 395, 107 S.Ct. 2891, 2902, 97 L.Ed.2d 315 (1987) (Scalia, J., dissenting) (quoting McAuliffe v. Mayor of New Bedford, 155 Mass. 216, 29 N.E. 517, 517 (1892) (Holmes, J.)).

More recently, however, the Court has rejected that approach in favor of one recognizing that public employees do not shed constitutional protection when they enter the workplace16 but nevertheless balancing those employees’ rights against the “interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Pickering v. Board of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968). In Pickering, the Court enunciated the two-step inquiry to be used in evaluating claims of first amendment violations by public employees. First, the court17 must determine, in light of the “content, form, and context” of the speech in question, see Moore v. City of Kilgore, 877 F.2d 364, 369 (5th Cir.), cert. denied,            U.S.      , 110 S.Ct. 562, 107 L.Ed.2d 557 (1989), whether it addresses a “matter of legitimate public concern.” Pickering, 391 U.S. at 571, 88 S.Ct  at 1736.18 If it does not, the inquiry ends, for ” [w]hen employee expression cannot be fairly considered as relating to any matter of political, social, or other concern to the community, government officials should enjoy wide latitude in managing their offices, without intrusive insight by the judiciary in the name of the First Amendment.” Connick, 461 U.S. at 146, 103 S.Ct. at 211 1690.

16 See Keyishian v. Board of Regents, 385 U.S. 589, 605-06, 87 S.Ct. 675, 684-85, 17 L.Ed.2d 629 (1967) (“[T]he theory that public employment which may be denied altogether may be subjected to any conditions, regardless of how unreasonable, has been uniformly rejected.”).
17 “The inquiry into the protected status of speech is one of law, not ” Connick v. Myers, 461 U.S. 138, 148 n. 7, 103 S.Ct. 1684, 1690 n. 7, 75 L.Ed.2d 708 (1983); see also Kirkland v. Northside Indep. School Dist., 890 F.2d 794, 798 (5th Cir. 1989), cert. denied, U.S.      , 110 S.Ct. 2620, 110 L.Ed.2d 641 (1990).
18 Although the courts have not developed a precise definition of “matters of public concern,” they have found such matters in a teacher’s public criticism of the school board’s allocation of funds between academics and athletics, Pickering, 391 U.S. at 571, 88 S.Ct. at 1736; a teacher’s private complaints (raised in a conversation with the school principal) regarding allegedly racially discriminatory school policies, Givhan Western Line Consol. School Dist, 439 U.S. 410, 415-16, 99 S.Ct. 693, 696-97, 58 L.Ed.2d 619 (1979); and in a firefighter’s public attack on the alleged inadequacy of the fire department’s level of manpower, Moore, 877 F.2d at 370-71; but not in a teacher’s disagreement with a prescribed reading list, Kirkland, 890 F.2d at 800.
Public employees do not address matters of public concern, however, when their statements deal only with the conditions of their own employment. Thus, an assistant district attorney who circulates a questionnaire in order to elicit the views of her fellow employees on office morale and transfer policies is not entitled to first amendment protection. Connick, 461 U.S. at 148-49, 103 S.Ct. at 1690-91.

If the court determines that the employee’s speech addresses a matter of public concern, it then must balance the employee’s first amendment rights against the governmental employer’s countervailing interest in promoting the efficient performance of its normal functions. In assessing the strength of the governmental interest, the court should consider such factors as “whether the statement impairs discipline by superiors or harmony among coworkers, has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, or impedes the performance of the speaker’s duties or interferes with the regular operation of the enterprise.” Rankin, 483 U.S. at 388, 107 S.Ct. at 2899 (citing Pickering, 391 U.S. at 570-73, 88 S.Ct. at 1735-37).

B.

We have no difficulty in concluding that Scott’s open letter, and the comments he made in connection with it, address matters of legitimate public concern.19 Scott raised his criticisms of the court-at-law and the district attorney’s office in a manner calculated to attract the attention of the public — the body with the ultimate power to change county policy by voting the responsible officials out of office. The public indeed was interested in Scott’s views, as evidenced by the attention given his letter by the local media. See Moore, 877 F.2d at 371 (citing media attention given to public employee’s speech as evidence that it addressed a matter of public concern).

19 Indeed, the Commission, in its brief, does not argue that Scott’s public statements did not address issues of legitimate public concern. Instead, it rests its argument upon Healthy and upon the second prong of the Pickering balancing test, asserting that its interest in preserving the integrity of the state’s judicial system outweighs Scott’s first amendment rights.

Moreover, Scott’s criticisms had nothing to do with his own conditions of employment. Instead, they dealt with the administration of the county justice system by county officials, a matter about which Scott, as an elected judge from that county, was likely to have well-informed opinions. The facts of this case thus make it quite similar to Pickering, in which the Court had this to say in determining that a teacher’s criticism of the school board’s funding decisions raised issues of public concern:

[T]he question whether a school system requires additional funds is a matter of legitimate public concern on which the judgment of the school administration, including the School Board, cannot, in a society that leaves such questions to popular vote, be taken as conclusive. On such a question, free and open debate is vital to informed decision-making by the electorate. Teachers are, as a class, the members of a community most likely to have informed and definite opinions as to how funds allotted to the operation of the schools should be spent. Accordingly, it is essential that they be able to speak out freely on such questions without fear of retaliation.

391 U.S. at 571-72, 88 S.Ct. at 1736-37.

In sum, we conclude that in airing his views on the administration of the Fort Bend County justice system, Scott was speaking not as an employee about matters of merely private interest, but rather as “an informed citizen regarding a matter of great public concern.” Moore, 877 F.2d at 371. We now proceed to determine whether, under the circumstances of this case, Scott’s right to speak is outweighed by the state’s asserted interest in promoting the efficiency and impartiality of its judicial system.

C.

We begin by noting that the state’s interest in suppressing Scott’s criticisms is much weaker than in the typical public employee situation,20 as Scott was not, in the traditional sense of that term, a public employee. Unlike the teacher in Pickering, the assistant district attorney in Connick, and the firefighter in Moore, Scott was not hired by a governmental employer. Instead, he was an elected official, chosen directly by the voters of his justice precinct, and, at least in ordinary circumstances, removable only by them.

20 Of course, if Scott were a private citizen, the state would have no justification for suppressing his criticisms of the county justice It has long been settled that speech critical of the courts may not be suppressed unless it presents a “clear and present danger” to their operation. See, e.g., Wood v. Georgia, 370 U.S. 375, 82 S.Ct. 1364, 8 L.Ed.2d 569 (1962) (overruling contempt conviction of sheriff who criticized, as racist, judge’s order that grand jury investigate “an inane and inexplicable pattern of Negro bloc voting”); Pennekamp v. Florida, 328 U.S. 331, 66 S.Ct. 1029, 90 L.Ed. 1295 (1946) (overruling contempt conviction of newspaper editor who published editorials and cartoons attacking judge as soft on gamblers).

As such, it was not unexpected that Scott not only would exercise independent judgment in the cases brought before him but would be willing to speak out against what he perceived to be serious defects in the administration of justice in his county. Thus, the state cannot justify the reprimand of Scott, as it could the discipline of an ordinary government employee, on the ground that it was necessary to preserve coworker harmony or office discipline.21

21 Moreover, although Scott probably had some contact with the district attorneys and the judges of the court-at-law, he did not work with them on a day-to-day basis, and his relationship with them was not the sort of close working relationship that requires personal confidence and loyalty.

As the Commission correctly points out, we have recognized that the state may restrict the speech of elected judges in ways that it may not restrict the speech of other elected officials. In Morial v. Judiciary Comm’n of La., 565 F.2d 295, 305 (5th Cir. 1977) (en banc), cert. denied, 435 U.S. 1013, 98 S.Ct. 1887, 56 L.Ed.2d 395 (1978), we upheld a state statute requiring judges to resign from the bench before declaring their candidacy for an elective non-judicial office and explained that the state may regulate the speech of judges in order to preserve the impartiality of the judicial branch:

Because the judicial office is different in key respects from other offices, the state may regulate its judges with the differences in mind. For example the contours of the judicial office make inappropriate the kind of particularized pledges of conduct in office that are the very stuff of campaigns for most non- judicial offices. A candidate for the mayoralty can and often should announce his determination to effect some program, to reach a particular result on some question of city policy, or to advance the interests of a particular group. It is expected that his decisions in office may be predetermined by campaign commitment. Not so the candidate for judicial office. He cannot, consistent with the proper exercise of judicial powers, bind himself to decide particular cases in order to achieve a given programmatic result.

We were careful to note, however, that our holding in Morial was a narrow one, turning on the fact that the resign-to-run statute, and restrictions on judicial campaign promises, were fairly limited intrusions into the political speech of elected judges. That is, “Louisiana’s resign-to-run requirement does not burden the plaintiff’s right to vote for the candidate of his choice or to make statements regarding his private opinions on public issues outside a campaign context; nor does it penalize his belief in any particular idea. These are core first amendment values.” Id. at 301 (emphasis added).

Unlike the statute upheld in Morial, the reprimand of Scott does infringe upon the right “to make statements … on public issues outside a campaign context” and thus touches upon “core first amendment values.”22 Accordingly, the Commission must carry a very difficult burden in order to demonstrate that its concededly legitimate interest in protecting the efficiency and impartiality of the state judicial system outweighs Scott’s first amendment rights.23

22 See also Connick, 461 S. at 145, 103 S.Ct. at 1689 (“the Court has frequently reaffirmed that speech on public issues occupies the `highest rung of the hierarchy of First Amendment values,’ and is entitled to special protection” (quoting NAACP v. Claiborne Hardware Co., 458 U.S. 886, 913, 102 S.Ct. 3409, 3425, 73 L.Ed.2d 1215 (1982))).
23 See Rankin, 483 S. at 388, 107 S.Ct. at 2898 (“The State bears a burden of justifying … [its action] on legitimate grounds.”)

We conclude that the Commission has failed to carry that burden. Neither in its brief nor at oral argument was the Commission able to explain precisely how Scott’s public criticisms would impede the goals of promoting an efficient and impartial judiciary, and we are unpersuaded that they would have such a detrimental effect.

Instead, we believe that those interests are ill served by casting a cloak of secrecy around the operations of the courts, and that by bringing to light an alleged unfairness in the judicial system, Scott in fact furthered the very goals that the Commission wishes to promote.

Accordingly, we hold that the Commission could not constitutionally reprimand Scott for making public statements critical of the court-at-law and the district attorney’s office, and we remand so that the district court may direct the Commission to expunge the third paragraph of the reprimand, dealing with those statements, from Scott’s record and for entry of an appropriate declaratory judgment.24

24 We emphasize that our holding is limited to the narrow question before us, which is whether a judge can be reprimanded for publicly commenting upon the administration of justice as it relates to cases that pass through his court. Restrictions are regularly placed upon judges’ expression of views on issues of public concern that do not involve the legal system, e.g., nuclear proliferation, the budget deficit, and environmental quality, and we intimate no opinion as to the permissible extent of such proscriptions.

We remand also in order that the court may consider an award of attorneys’ fees pursuant to section 1988. Any such award, however, must be paid by the state and cannot be assessed against the defendants in their individual capacity, as the injunctive relief sought and won by Scott can be obtained from the defendants only in their official capacity as commissioners.25

25 There is, of course, no eleventh amendment obstacle to the award of attorneys’ fees against a state pursuant to § 1988. Hutto Finney, 437 U.S. 678, 693-700, 98 S.Ct. 2565, 2574-79, 57 L.Ed.2d 522 (1978). In this regard, we very much question the inclusion of the commissioners as defendants in their individual capacity. Here, no monetary damages, but only equitable relief, was sought. The commissioners can expunge the subject language from the reprimand only while acting in their official capacity. Hence, there is no basis for suit against them as individuals.
When questioned on this matter at oral argument, Scott’s attorney stated that suit was brought against the individuals “out of an abundance of caution” to ensure the availability of attorneys’ fees. However, as we have stated, Hutto undeniably authorizes attorneys’ fees against the state where officials are sued in their official capacity. Thus, suit against individuals without basis can be abusive, in some cases, and, where appropriate, could subject plaintiffs and their counsel to sanctions under Fed.R.Civ.P. 11, especially where such defendants are forced to hire separate counsel in their individual capacity or are subjected, as individuals, to vexatious litigation.
No such inconvenience was visited upon the instant defendants, however. And we do not wish unduly to chastise plaintiffs’ counsel in this case, who have prosecuted this matter with professionalism and skill. Heretofore, such suits against defendants in both capacities, presumably out of “an abundance of caution,” have not been uncommon. But we caution future litigants and their attorneys that defendants should not be sued individually unless there is a good-faith basis for liability against them in that capacity.

The judgment is REVERSED and REMANDED for further proceedings consistent herewith.

[45] GARWOOD, Circuit Judge, dissenting:

I respectfully dissent from the majority’s holding that this case is not governed by Thomas v. Kadish, 748 F.2d 276 (5th Cir. 1984), cert. denied, 473 U.S. 907, 105 S.Ct. 3531, 87 L.Ed.2d 655 (1985).26 The majority distinguishes Thomas on two grounds. In my opinion, neither is substantial.

26 Following oral argument, we asked the parties to brief that issue, and in their brief appellees have contended that this suit is barred under the doctrine of Thomas.

First, the majority contends that in Thomas, the Texas Board of Law Examiners (the Board) was essentially anagent of the Texas Supreme Court, while here the Texas Commission on Judicial Conduct (the  Commission), according to the majority, is “largely independent of the state courts” and “cannot be viewed as their agent.” In this respect, however, the majority ignores the intimate relationship of the Commission to the Texas Supreme Court specifically and to the Texas judiciary in general. The Commission is provided for by Article V, § 1-a, of the Texas Constitution, Article V being the article of the Texas Constitution devoted to “the judicial department.” The only business of the Commission is dealing with the State’s judiciary; it has no other function. Further, its relationship to the Texas Supreme Court is extremely close. Section 1-a(11) provides that “[t]he Supreme Court shall by rule provide for the procedure before the Commission” and section 1-a(9) provides that any public censure, retirement, or removal decision is subject to ultimate review by the Texas Supreme Court. Of the Commission’s eleven members, five are judges appointed by the Texas Supreme Court, and two are lawyers appointed by the Board of Directors of the State Bar of Texas. Art. V, § 1-a(2). The State Bar of Texas is, itself, in large measure controlled by the Texas Supreme Court.27

27 Texas Gov’t Code Ann., § 81.011, provides:
“(a) The state bar is a public corporation and an administrative agency of the judicial department of government.
“(b) This chapter is in aid of the judicial department’s powers under the constitution to regulate the practice of law, and not to the exclusion of those powers.
“(c) The Supreme Court of Texas, on behalf of the judicial department, shall exercise administrative control over the state bar under this chapter.”
See also id, § 81.024(a) (“The supreme court shall promulgate the rules governing the state bar… “).

Moreover, it is questionable whether Thomas can properly be understood as resting on the proposition that the Board’s there complained of decision was in substance the decision of the Texas Supreme Court. It evidently was not that Court’s decision, because under Texas law the plaintiff there had the right to “obtain judicial  review by filing suit in a specified [state] district court.” Thomas, 748 F.2d at 280. If the complained of decision in Thomas had in substance been that of the Texas Supreme Court, it obviously would not have been subject to review in the state district court.

The majority concedes that the Commission in this instance was acting in a judicial capacity, and that its reprimand of Scott “was a judicial act.” Given this, and the nature of the Commission, it seems to me that the Commission here in substance functioned as a court. See Prentis v. Atlantic Coast Line Co., 211 U.S. 210, 29 S.Ct. 67, 69, 53 L.Ed. 150 (1908) (assuming, arguendo, that State Corporation Commission could be a court if its action had been judicial in nature, in which event it “would be protected from interference on the part of courts of the United States”); New Orleans Public Service, Inc. v. Council of City of New Orleans,  U.S.     , 109 S.Ct. 2506, 2519-20, 105 L.Ed.2d 298 (1989) (discussing Prentis and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983)). See also North Pacific S.S. Co. v. Industrial Accident Commission, 23 F.2d 109 (D.Cal. 1918) (State Industrial Accident Commission is a court).

The other ground on which the majority relies to distinguish Thomas is that here there was no express statutory or constitutional provision for review of the Commission’s reprimand,28 while in Thomas the relevant State Bar rule expressly allowed review by suit in a specified state district court. The majority takes the view that Scott had no vehicle other than a suit (in federal or state court) under 42 U.S.C. § 1983 to challenge the  Commission’s action. This is incorrect, inasmuch as Texas law provided Scott with an implied right of appeal to the Texas district courts (with review in the state appellate courts) to raise any state (or federal) constitutional challenge to the action in question. See, e.g., City of Amarillo Hancock, 150 Tex. 231, 239 S.W.2d 788 (1951).29 Accordingly, Scott, just like the plaintiff in Thomas, had available to him, but chose not to utilize, a state law-based suit in the state district court, not under section 1983, to challenge the complained of action. Thus, the majority’s second ground for distinguishing Thomas is insubstantial. Further, in any event, it would appear that, even if a Hancock action were not available or were to be viewed as collateral in nature, nevertheless the Commission in the instant case was acting as a court and review of its decision could be had directly in the United States Supreme Court.

28 Had the action against Scott been a formal public censure or order for suspension, removal, or retirement, it would have been subject to express provision for various stages of review, ultimately culminating in the Texas Supreme Tex. Const. Art. V, § 1-a( 6), ( 8), ( 9).
29 Scott admits the availability of review under Hancock, as he states in his initial brief in this Court:
“He [Scott] could have brought that challenge in state court, either under 42 U.S.C. § 1983, … or under the Texas state court’s inherent right to review the constitutionality of administrative actions, Hancock v. City of Amarillo [City of Amarillo v. Hancock, 150 Tex. 231], 239 S.W.2d 788 (Tex. 1951)……………………. ” (Emphasis added.)

Accordingly, I conclude that Scott’s section 1983 suit was barred under the rationale of Thomas.

As the majority reaches the merits, I will briefly comment in that respect also. It must be understood that as this case comes to us, Scott does not challenge the Commission’s reprimand. All he wants is a portion of the reasons for that reprimand deleted. When the district court decided this case, Scott no longer held any judicial, or other public, office whatever, nor has he at any time since then.30 It is undisputed that neither the Commission’s reprimand nor the challenged portion thereof had any legal effect whatever on Scott, either individually or in his position as justice of the peace. It did not in any way restrict any of his personal or official rights or powers, or put him under any legal disability whatever. It did not affect his conditions of employment. The Commission did not order Scott to do or refrain from doing anything. It did not make him eligible for other action by the Commission that he would not have been legally eligible for or subject to had this reprimand not been entered or had it not included the complained of language. The Commission’s complained of action amounted in substance to nothing more than the expression of its opinion that what Scott did was “improper” because it tended to be “destructive of public confidence in the judiciary.” As the majority points out, Scott was an independent, elected public judicial officer, and was not an employee of the Commission or of any other state official, agency, or court.

30 Scott went out of office sometime before April 1986. Scott has advised us, however, that he intends to be an independent candidate for judge of a Texas court of appeals in the 1990 general As of the time that Scott so informed this Court, he had not yet qualified as such a candidate, and whether he has done so since then is unclear. Under the circumstances, Scott has no standing to seek declaratory or injunctive relief in respect to his future conduct as an appellate judge, see Brown v. Edwards, 721 F.2d 1442, 1446-47 (5th Cir. 1984), and in any event this suit in its present posture does not seek such relief. Scott seeks no damages.

I would not reach the question of whether Scott’s First Amendment rights would have been violated had the Commission taken some action which materially and adversely altered Scott’s conditions of employment or which placed Scott, individually or in his former position as justice of the peace, under some legal disability, or caused him in either capacity to lose legal rights he would otherwise have had, or to be legally subject to some sort of adverse consequence of which he would otherwise have been legally free. Clearly, if stated by a private individual, the challenged portion of the Commission’s reprimand would have been that character of pure expression of opinion which the First Amendment protects against libel and slander claims. See Milkovich v. Lorain Journal Co., U.S., 110 S.Ct. 2695, 2706, 111 L.Ed.2d 1 (1990).31 Scott does not claim that in this respect the Commission made or in any way implied any misstatement of fact. He merely quarrels with its opinion that his undisputed conduct was “improper” because it tended to be “destructive of public confidence in the judiciary.” Even a factually false libelous official statement by a governmental actor does not invade a liberty interest where it has no legal consequences and is not made in connection with termination of (or similar adverse change in conditions of) governmental employment. Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 1161-64, 47 L.Ed.2d 405 (1976). Whether or not the rule of Paul v. Davis would carry over to First Amendment claims need not be resolved for, as noted, here there is in substance nothing but the expression of opinion, which itself would be constitutionally protected on the part of nongovernmental actors.

31 In Milkovich, the Court recognized “that a statement of opinion relating to matters of public concern which does not contain a provably false factual connotation will receive full constitutional protection,” as will also “statements that cannot `reasonably [be] interpreted as stating actual facts’ about an ” Id. U.S. at      , 110 S.Ct. at 2706 (footnote omitted).

Whether one views Scott as not having been legally “injured” or suffered a “deprivation” under section 1983, or whether one reads the First Amendment as not forbidding governmental actors from merely stating their opinion, with no factually false connotations, concerning the impropriety of the way in which some other governmental official may have previously exercised his First Amendment rights, is not important in the present context. One approach or the other is called for here, and under either Scott’s present section 1983  claim should fail.32

32 I am aware of the passage in footnote 8 of Rutan Republican Party of Illinois, U.S., n. 8, 110 S.Ct. 2729, 2738 n. 8, 111 L.Ed.2d 52 (1990), where the Court observed:
“Moreover, the First Amendment, as the court below noted, already protects state employees not only from patronage dismissals but `even an act of retaliation as trivial as failing to hold a birthday party for a public employee … when intended to punish her for exercising her free speech rights.'”

In this passage, the Supreme Court was quoting from the decision below of the Seventh Circuit in Rutan v. Republican Party of Illinois, 868 F.2d 943, 954 n. 4 (7th Cir. 1989), where the Seventh Circuit in turn was characterizing its decision in Bart v. Telford, 677 F.2d 622 (7th Cir. 1982). Actually, Bart held no such thing. To the contrary, Bart clearly implied that such trivial action as failing to hold a birthday party would not of itself be actionable under section 1983, even if taken in retaliation for the exercise of First Amendment rights. Bart, at 625. Rather, Bart held that the complaint was sufficient because it alleged “an entire campaign of harassment which though trivial in detail may have been substantial in gross. It is a question of fact whether the campaign reached the threshold of actionability under section 1983.” Id. I believe it would be a serious mistake to take literally the Supreme Court’s apparently offhand dicta about birthday parties in footnote 8 of Rutan. In the body of the opinion in Rutan, the Court stressed that the case before it involved “significant penalties . . . imposed for the exercise of rights guaranteed by the First Amendment.”  U.S. at 110 S.Ct. at 2736. Nothing of that kind is involved here.

Accordingly, I respectfully dissent.

Fifth Circuit Judges Spark Noticable Split in First Amendment En Banc Case.
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