Take the Fifth

Designated for publication

• Jones v. King, 23-50850, appeal from W.D. Tex.
  • Willett, J. (Higginbotham, Willett, Ho), Ho, J., dissenting; judicial immunity, sec. 1983, appellate jurisdiction
  • Reversing denial of judicial immunity for defendants on claims arising from prevailing over jury proceedings, and dismissing plaintiffs’ appeal from grant of judicial immunity over other sec. 1983 claims as that ruling was at the interlocutory stage.
  • Loving County, Texas—the least-populous county in the continental U.S.—sits atop vast oil and gas reserves, making it a hotbed of political tension despite its small population. Long-standing rivalries among prominent families have fueled contentious local politics, especially over control of the lucrative tax base. In this environment, three local voters claim they were targeted by county officials—Justice of the Peace Amber King, Sheriff Chris Busse, and Constable Brandon Jones—for their political opposition. After appearing for jury duty, the plaintiffs were arrested on accusations of falsely claiming residency in the county. Officials framed this as voter-eligibility enforcement; plaintiffs called it retaliatory “lawfare” aimed at suppressing dissent in an environment where every vote can sway the outcome.
  • The case brought by the plaintiffs centers on alleged constitutional violations under 42 U.S.C. § 1983, including abuse of judicial power and conspiracy to punish political adversaries. However, the court’s focus is narrower—on whether Judge King is entitled to judicial immunity for her role in the so-called sham jury proceeding. The district court had denied immunity for her conduct in assembling and questioning the jury pool but granted it for her contempt orders, while also affording quasi-judicial immunity to the sheriff and constable. Both sides appealed: the officials to reverse the immunity denial, and the plaintiffs to challenge the immunity granted.
  • On appeal, the Fifth Circuit reversed the lower court, holding that Judge King’s actions in presiding over the general assembly of prospective jurors were indeed judicial in nature. Applying a well-established four-factor test for judicial immunity, the court emphasized that even though the proceeding was not tied to a specific case, Judge King was exercising discretionary judgment typical of a judge qualifying jurors and hearing excuses for exemption. The court concluded that such acts are protected by absolute judicial immunity, regardless of whether her actions were allegedly retaliatory or politically motivated. Consequently, the plaintiffs’ conspiracy claims based on the jury proceeding also failed, as no conspiracy claim may stand when the underlying conduct is shielded by immunity.
  • The plaintiffs’ cross-appeal, which sought review of the immunity granted for contempt-related actions, was dismissed for lack of jurisdiction. The appellate court found that this was not the type of “rare and unique” circumstance warranting pendent appellate jurisdiction. The issues on appeal—judicial immunity for presiding over the jury proceeding—and the cross-appeal—immunity for issuing and executing contempt orders—involved distinct factual and legal considerations. Because these issues can be addressed after final judgment, immediate interlocutory review was not appropriate. In closing, the court acknowledged the troubling allegations but reaffirmed that judicial immunity, even in the face of alleged abuse, is absolute for judicial acts. The appropriate remedy, it emphasized, lies in the democratic process, not in § 1983 litigation.
  • Judge Ho issued a brief dissent. He opined that Judge Amber King is not entitled to judicial immunity for allegedly abusing the juror qualification process to arrest and jail three political adversaries, an act described as “lawfare.” While the majority grants King immunity, Judge Ho contends that her actions were administrative, not judicial, because she merely confirmed juror eligibility—tasks typically performed by clerks without judicial discretion. Citing precedent that limits immunity to acts inherently judicial in nature, Judge Ho concludes that King’s conduct falls outside that scope and the case against her should proceed to trial.

Unpublished decisions

• U.S. v. Mercado, 24-10810, appeal from N.D. Tex.
  • per curiam (King, Haynes, Ho), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Williams, 24-11049, appeal from N.D. Tex.
  • per curiam (Wiener, Willett, Wilson), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Hernandez, 24-11053, appeal from N.D. Tex.
  • per curiam (Elrod, Jones, Smith), criminal
  • Affirming conviction of distribution and possession with intent to distribute 40 grams or more of fentanyl, but remanding for correction of clerical errors in written judgment.

• U.S. v. Whitehead, 24-11089, appeal from N.D. Tex.
  • per curiam (Smith, Wiener, Wilson), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Rodriguez, 24-20385, appeal from S.D. Tex.
  • per curiam (Wiener, Ho, Ramirez), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Carroll, 24-30556, appeal from W.D. Tex.
  • per curiam (Wiener, Ho, Ramirez), criminal, sentencing
  • Affirming career-offender-enhanced sentence on conviction of conspiring to possess a controlled substance with the intent to distribute it.

• Thomas v. Fontenot, 24-30671, appeal from W.D. La.
  • per curiam (Haynes, Higginson, Douglas), appellate jurisdiction
  • Dismissing appeal as not an appeal from a final judgment, on determination that three defendants not affected by the judgment had been properly served and were still in the case.

• Thomas v. West, 25-40085, appeal from E.D. Tex.
  • per curiam (Stewart, Willett, Wilson), prisoner suit
  • Dismissing as frivolous Texas state prisoner’s appeal from dismissal of sec. 1983 claims.

• U.S. v. Torres, 24-40639, appeal from S.D. Tex.
  • per curiam (Smith, Wiener, Wilson), criminal, sentencing
  • Affirming 210-month sentence on conviction of conspiracy to possess with intent to distribute 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine.

• Cano-Osorio v. Bondi, 25-60097, petition for review of BIA order
  • per curiam (Higginbotham, Engelhardt, Ramirez), immigration
  • Denying in part and dismissing in part Guatemalan citizen’s petition to review BIA order upholding the immigration judge’s (IJ) denial of her motion to reopen.