Take the Fifth

Designated for publication

• Hopkins v. Hosemann, 19-60662, c/w 19-60678, appeal from S.D. Miss.
  • Dennis, J. (King, Jones, Dennis), Jones, J., dissenting, voting rights, Eighth Amendment, Equal Protection, standing, sovereign immunity, Ex parte Young
  • Reversing district court’s dismissal of plaintiff class’s Eighth Amendment challenge to Mississippi constitution’s permanent disenfranchisement of certain felons; affirming dismissal of plaintiff class’s Equal Protection claim against the Mississippi Secretary of State arising from the permanent-disenfranchisement clause of the Mississippi constitution; reversing district court’s holding that plaintiff class had standing to challenge to Mississippi constitutional provision that gives Mississippi legislature a discretionary power to re-enfranchise disenfranchised felons and had raised a genuine issue of material fact to survive summary judgment dismissal of that claim; and remanding to district court with order to grant relief declaring the permanent-disenfranchisement provision unconstitutional and barring the Secretary of State from enforcing it.
  • The Court summarized: “In the last fifty years, a national consensus has emerged among the state legislatures against permanently disenfranchising those who have satisfied their judicially imposed sentences and thus repaid their debts to society. Today, thirty-five states plus the District of Columbia disavow the practice embodied in Section 241, a supermajority whose size is dispositive under controlling Supreme Court precedent. Mississippi stands as an outlier among its sister states, bucking a clear and consistent trend in our Nation against permanent disenfranchisement. And in our independent judgment—a judgment under the Eighth Amendment that the Supreme Court requires we make—Section 241’s permanent disenfranchisement serves no legitimate penological purpose. By severing former offenders from the body politic forever, Section 241 ensures that they will never be fully rehabilitated, continues to punish them beyond the term their culpability requires, and serves no protective function to society. It is thus a cruel and unusual punishment.”
  • As to standing, the Court held that the plaintiff class’s disenfranchisement injuries are fairly traceable to the Secretary of State’s administration of the state’s voter rolls. “Because of these duties, the Secretary is also in a position to redress Plaintiffs’ alleged injuries. Were the Secretary enjoined from enforcing Section 241, as Plaintiffs seek, he could amend Mississippi’s voter registration form to allow disenfranchised class members to register, cease entering the names of citizens disqualified under Section 241 into SEMS or, alternatively, train local election officials to disregard that information in SEMS in maintaining their local voter rolls.” However, as to the challenge to the Legislature’s discretionary authority to re-enfranchise felons under section 253, the Court held there was no fair traceability to the Secretary of State’s powers.
  • The Court held that the plaintiff class’s claims for prospective declaratory and injunctive relief against the Secretary of State in his official capacity satisfied the Ex parte Young exception to sovereign immunity.
  • The Court held that the plaintiff class’s Equal Protection claims against the permanent disenfranchisement provision could not hurdle Richardson v. Ramirez, 418 U.S. 24 (1974).
  • The Court held, however, that Richardson‘s holding as to Equal Protection challenged to permanent disenfranchisement did not foreclose the plaintiffs’ Eighth Amendment challenge as an incorporated right under the Fourteenth Amendment. “The Supreme Court has made clear that the substantive rights contained in the Bill of Rights—including those of the Eighth Amendment—are not diluted or somehow lesser in content by virtue of their being incorporated through the Fourteenth Amendment.” The Court held that the Mississippi Readmission Act made clear that the Mississippi disenfranchisement provision was seen by the Mississippi constitutional convention as a mode of punishment, and that it was therefore subject to an Eighth Amendment analysis.
  • The Court concluded, “Mississippi denies this precious right [to vote] to a large class of its citizens, automatically, mechanically, and with no thought given to whether it is proportionate as punishment for an amorphous and partial list of crimes. In so excluding former offenders from a basic aspect of democratic life, often long after their sentences have been served, Mississippi inflicts a disproportionate punishment that has been rejected by a majority of the states and, in the independent judgment of this court informed by our precedents, is at odds with society’s evolving standards of decency.”
  • Judge Jones dissented. Turning to Richardson, Judge Jones noted, “In other words: go and convince the state legislatures. Do the hard work of persuading your fellow citizens that the law should change. Today, the court turns that advice on its head. No need to change the law through a laborious political process. The court will do it for you, so long as you rely on the Due Process Clause, rather than the Equal Protection Clause. With respect, this is not a road that the Constitution—or precedent—allows us to travel.”

• Crown Castle Fiber, L.L.C. v. City of Pasadena, 22-20454, appeal from S.D. Tex.
  • Smith, J. (Smith, Higginson, Willett), preemption, standing
  • Affirming district court’s summary judgment and injunction in favor of developer of 5G network, enjoining municipality from enforcing spacing and undergrounding requirements in an effort to curb the installation of 5G facilities, as preempted under the Federal Telecommunications Act and the rulings of the Federal Communications Commission.
  • The Court held that, although the FTA did not provide a private right of action, the 5G developer’s preemption claim presented a justiciable controversy to support Article III standing. “Even though § 253 does not confer a private right, a plaintiff is not prevented from gaining equitable relief on preemption grounds.”
  • The Court held that the plaintiff developer of 5G facilities was a “telecommunications provider” under the FTA, even though it did not itself sell telecommunications services to consumers. “It is evident that Crown Castle sells its services to the public by establishing the infrastructure to enable T-Mobile to provide wireless service and to transmit T-Mobile’s voice and data signals across its network. T-Mobile is undoubtedly a common carrier, and Crown Castle, through its network and infrastructure contract, fits neatly within the protective umbrella of § 253(a).”

• U.S. v. Financial Times, 23-20097, appeal from S.D. Tex.
  • Smith, J. (Higginbotham, Smith, Engelhardt), First Amendment
  • Affirming denial of media intervenor’s motion to unseal records in criminal proceeding involving criminal trial regarding defendant energy consultant executives’ international bribery scheme.
  • The Court held that, while it was concerned by procedural irregularities in the district court’s sealing of a portion of the sentencing hearing, those irregularities did not rise to the level of reversible error.
  • On the merits of unsealing, the Court noted, “To determine whether there is a First Amendment right to access a given proceeding, courts consider two factors: experience and logic. The experience factor requires courts to determine whether the place and process have historically been open to the press and general public. The logic factor involves assessing whether public access plays a significant positive role in the functioning of the particular process in question.” (Internal quotation marks and citations omitted).
  • The Court held that the district court committed procedural irregularities by not providing any advance notice of a determination to seal part of the sentencing hearing, but then noted, “The problem is that we have nothing on the docket to reverse. There is no motion to close proceedings, no order granting any such motion, and no order—even under seal—to conduct any closed proceedings. The most we can do regarding the decision to close part of Saman’s sentencing is to note the procedural deficiencies and stress to this district court and all our trial courts the importance of providing applicable procedural safeguards.”
  • As to the unsealing of certain transcripts and documents, the Court held that there are still compelling interests justifying the sealing, including “a need to protect the safety of the defendants and their families and to maintain the integrity of governmental investigations.”

Unpublished

• U.S. v. De Leon, 21-40291, appeal from S.D. Tex.
  • per curiam (Jones, Southwick, Ho), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Teague, 22-11228, appeal from N.D. Tex.
  • per curiam (Wiener, Stewart, Douglas), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Cariaga, 22-11243, appeal from N.D. Tex.
  • per curiam (Wiener, Stewart, Douglas), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Valle, 22-50128, appeal from W.D. Tex.
  • per curiam (Willett, Duncan, Wilson), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Smith v. Terry, 22-50999, appeal from W.D. Tex.
  • per curiam (Clement, Elrod, Willett), bankruptcy
  • Affirming bankruptcy court’s judgment.

• Kassomi v. Garland, 22-60336, petition for review of BIA order
  • per curiam (Clement, Elrod, Willett), immigration
  • Granting Tanzanian citizen’s petition to review BIA order of removal in part, vacating BIA decision in part, and remanding for further proceedings.

• U.S. v. Sidon, 23-10123, appeal from N.D. Tex.
  • per curiam (Willett, Duncan, Douglas), criminal, compassionate release
  • Affirming denial of motion for compassionate release.

• U.S. v. Juarez, 23-20055, appeal from S.D. Tex.
  • per curiam (Jones, Southwick, Ho), criminal
  • Affirming sentencing on revocation of supervised release, with limited remand to correct clerical error in the judgment.