Court rules that commonality of political purpose allows officials to bypass First Amendment protections for certain volunteer appointments
The United States Court of Appeals for the Ninth Circuit issued a memorandum on February 26, 2026, affirming the dismissal of a lawsuit brought by a volunteer board member against San Diego Mayor Todd Gloria. The court determined that the mayor acted within his authority when he refused to reappoint the volunteer following public religious statements regarding “transgenderism”.
Dennis Hodges, a correctional officer and religious pastor, served as a voluntary member on the City of San Diego Police Advisory Board. Mayor Gloria vetoed the reappointment of Hodges after Hodges made repeated public comments stating that he considered “transgenderism” a sin comparable to adultery and fornication. Hodges challenged this decision in the United States District Court for the Southern District of California. He alleged that the veto violated his First Amendment rights to free speech and the free exercise of religion.
The district court dismissed the complaint, and the Ninth Circuit panel agreed with that assessment. The appellate court relied on the “policymaker exception,” which originates from a line of Supreme Court and circuit precedents. This legal principle holds that government officials may dismiss or refuse to appoint volunteers for statements that would normally receive First Amendment protection if a “commonality of political purpose” is required for the role.
The court found that the San Diego Municipal Code establishes the Advisory Board as an extension of the Mayor. Because the Mayor appoints these members to further specific policy goals, he may legally require them to share his political purpose. The court noted that Hodges provided no legal authority to suggest that First Amendment protections for current employees extend to the discretionary process of reappointment to a committee. Furthermore, the court observed that the San Diego Municipal Code gives the Mayor the discretion to appoint or reappoint individuals without cause.
A concurring opinion by District Judge J. Campbell Barker noted that current circuit law requires this outcome but suggested that the current test might conflict with other First Amendment principles. Barker pointed out that this circuit applies a single test to association, speech, and religious exercise claims in public employment, whereas other circuits use different balancing tests for each.
Hodges also raised a free exercise of religion claim, arguing the veto discriminated against his sincerely held religious beliefs. The court rejected this because Hodges failed to show how his religious motive changed the legal evaluation of the Mayor’s right to ensure political commonality on the board. The court affirmed the grant of the motion to dismiss and the denial of a motion for reconsideration.
Legal Commentary
This case highlights a tension in how the law treats the speech of public volunteers versus private citizens. When a person accepts an appointment to a government board, they enter a “policymaker” category. In this category, the government’s interest in having a cohesive team often overrides the individual’s right to speak their mind without consequence. The court is saying that if you are the “face” of an administration on a board, the Mayor does not have to keep you if your public comments contradict his administration’s goals.
The ruling relies heavily on the idea that these boards are extensions of the executive branch. If a Mayor cannot choose who represents his office on an advisory level, his ability to govern according to his mandate is hindered. However, the concurring opinion suggests that the Ninth Circuit may be casting too wide a net. By grouping religious exercise, speech, and association into one “policymaker” bucket, the court avoids the more difficult task of balancing the volunteer’s religious rights against the city’s operational needs.
For religious individuals in public service, this decision serves as a reminder of the “at-will” nature of many advisory positions. If a local ordinance grants a Mayor broad discretion to appoint and remove board members without cause, the First Amendment provides a very thin shield. The court viewed the religious nature of the speech as secondary to the fact that the speech created a political misalignment with the appointing authority.
The legal landscape now has a clear divide between different parts of the country. Some circuits might have required the city to prove that Hodges’s comments actually interfered with the board’s work. In the Ninth Circuit, the mere lack of “political commonality” is enough. This makes it easier for elected officials to purge boards of members who hold dissenting religious or social views, provided those members are classified as policymakers or advisors.
Case Information
Caption: Dennis Hodges v. Todd Gloria
Case Number: No. 24-7093
Date Filed: February 26, 2026
Court: United States Court of Appeals for the Ninth Circuit
Original URL: https://cdn.ca9.uscourts.gov/datastore/memoranda/2026/02/26/24-7093.pdf
TLDR (Too Long / Didn’t Read Summary)
The Ninth Circuit Court of Appeals upheld San Diego Mayor Todd Gloria’s decision to veto the reappointment of Dennis Hodges to the city’s Police Advisory Board. Hodges, a pastor, argued the veto violated his First Amendment rights after he publicly characterized “transgenderism” as a sin. The court applied the “policymaker exception,” ruling that the Mayor has the authority to ensure board members share a common political purpose. Because the board serves as an extension of the Mayor’s office, he may refuse to reappoint volunteers whose public statements conflict with his policy positions. A concurring judge noted that this broad application of the exception might conflict with rulings in other circuits, but current Ninth Circuit precedent bound the panel. The decision affirms that voluntary advisors have limited speech protections when their views diverge from the appointing official’s agenda.
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AI Disclaimer
This article was generated with the assistance of artificial intelligence. All facts, dates, and citations have been derived from the provided court memorandum.
Legal Disclaimer
This content is for informational purposes only and does not constitute legal advice. Readers should consult with a licensed attorney regarding their specific legal situations.
Citations
Hodges v. Gloria, No. 24-7093 (9th Cir. Feb. 26, 2026). https://cdn.ca9.uscourts.gov/datastore/memoranda/2026/02/26/24-7093.pdf
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Holding: Government officials may dismiss or refuse to appoint volunteers for statements that would normally receive First Amendment protection if a commonality of political purpose is required for the role.
