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Stallworth v. Bryant

United States Court of Appeals, Fifth Circuit

August 21, 2019

JEFFERY A. STALLWORTH, Plaintiff,
v.
GOVERNOR DEWEY PHILLIP "PHIL" BRYANT; et al., Defendants,
v.
JOSH HARKINS; DEAN KIRBY; PHILLIP MORAN; CHRIS CAUGHMAN; NICKEY BROWNING; JOHN A. POLK; MARK BAKER; ALEX MONSOUR, Respondents-Appellants,
v.
JACKSON MUNICIPAL AIRPORT AUTHORITY; BOARD OF COMMISSIONERS OF THE JACKSON MUNICIPAL AIRPORT AUTHORITY, each in his or her official capacity as a Commissioner on the Board of Commissioners of the Jackson Municipal Airport Authority; DOCTOR ROSIE L. T. PRIDGEN, in her official capacity as a Commissioner on the Board of Commissioners of the Jackson Municipal Airport Authority; REVEREND JAMES L. HENLEY, JR., in his official capacity as a Commissioner on the Board of Commissioners of the Jackson Municipal Airport Authority; LAWANDA D. HARRIS, in her official capacity as a Commissioner on the Board of Commissioners of the Jackson Municipal Airport Authority; VERNON W. HARTLEY, SR., in his official capacity as a Commissioner on the Board of Commissioners of the Jackson Municipal Airport Authority; EVELYN O. REED, in her official capacity as a Commissioner on the Board of Commissioners of the Jackson Municipal Airport Authority; DOCTOR ROSIE L. T. PRIDGEN, individually as citizens of the City of Jackson, MS, on behalf of themselves and all others similarly situated; LAWANDA D. HARRIS, individually as citizens of the City of Jackson, MS, on behalf of themselves and all others similarly situated; VERNON W. HARTLEY, SR., individually as citizens of the City of Jackson, MS, on behalf of themselves and all others similarly situated; EVELYN O. REED, individually as citizens of the City of Jackson, MS, on behalf of themselves and all others similarly situated; JAMES L. HENLEY, JR., individually as citizens of the City of Jackson, MS, on behalf of themselves and all others similarly situated, Intervenors-Appellees.

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

          Before HIGGINBOTHAM, SMITH, and SOUTHWICK, Circuit Judges.

          JERRY E. SMITH, CIRCUIT JUDGE.

         This is a discovery dispute stemming from a challenge to recent changes to the governance of the Jackson-Medgar Wiley Evers International Airport ("airport") via Mississippi Senate Bill 2162 ("S.B. 2162"). The Jackson Municipal Airport Authority ("JMAA"), the Board of Commissioners of JMAA ("Board"), and each member of the Board, in their official and individual capacities, sued the Governor, Lieutenant Governor, and the two counties in which the airport is located, claiming that S.B. 2162 violates, inter alia, the Fourteenth Amendment's Equal Protection Clause and the equal protection component of the Mississippi Constitution.

         Plaintiffs served document subpoenas on eight state legislators (the "Legislators") who are not parties to the case, seeking communications between the Legislators "and any person, including members of the Mississippi legislature and any governmental agency, body or its representative(s)" about S.B. 2162 or the airport. Claiming legislative privilege, the Legislators refused to comply. The magistrate judge ("MJ") granted in part the plaintiffs' motion to enforce the subpoenas, ordering the Legislators to produce a privilege log and any relevant information previously shared with third parties. The district court affirmed. Because the plaintiffs lack standing, we vacate and remand with instruction to dismiss the equal protection claim.

         I.

         A.

         In April 2016, the Mississippi Legislature enacted S.B. 2162, [1] amending the Airport Authorities Law, Miss. Code Ann. §§ 61-3-1 et seq., and transferring control of the airport from the five-member JMAA to a new nine-member board, the Jackson Metropolitan Area Airport Authority.[2] Under the new arrangement, Jackson officials appoint only two commissioners; the other seven are appointed by state officials and officials from neighboring counties.[3]That structure is unique: Mississippi law grants every other municipality exclusive authority to create an airport authority and appoint its commissioners.[4] Defendant Governor Bryant signed S.B. 2162 on May 4, 2016.

         Shortly before the bill took effect, JMAA, its Board, the JMAA Commissioners, the Jackson Mayor, and the Jackson City Council intervened in a suit filed by a Jackson resident to enjoin enforcement of S.B. 2162. The only pertinent count of the intervenor complaint is Count VII, in which the members of the JMAA Board-suing in their individual capacities "on behalf of themselves and all others similarly situated"-assert that S.B. 2162 violates the Fourteenth Amendment's Equal Protection Clause and the equal protection component of the Mississippi Constitution's Due Process Clause.[5]

         Urging that S.B. 2162 effects "an illegal dilution of voting and other rights of the citizens of Jackson, Mississippi," the plaintiffs claim a representational injury. They posit that Jackson "officials, including the Mayor and the City Council, currently select the JMAA Board," but "[S.B.] 2162 strips those officials of control" of their airport, leaving "the City's Mayor and Council . . . with a single appointee each to the new, nine[-]person board." The plaintiffs opine that "every other municipality in the State of Mississippi" retains the exclusive "discretion to create a municipal airport authority to manage, control, and operate any airports owned by those municipalities." In other words, Jackson's "governing officials have less opportunity and ability as compared to the other appointing officials to exercise discretion in matters of appointing an airport authority." The plaintiffs conclude that S.B. 2162 "has the practical effect of foreclosing the City's electorate from exercising their right to elect governing officials with unencumbered discretion to create a municipal airport authority and appoint commissioners to manage, control and operate [it]."

         The plaintiffs further contend that S.B. 2162 altered governance of the airport for race-based reasons. Before S.B. 2162, all five commissioners were black, which, the plaintiffs aver, made the airport "the only airport in the State of Mississippi managed and operated by a Board comprised solely of African Americans." They further allege that the City of Jackson is approximately 79% black and 18% Caucasian, which roughly matched the racial composition of Jackson officials when S.B. 2162 was enacted.[6] The State of Mississippi, however, is 37% black and 59% Caucasian.[7] Under the new arrangement, the Governor and Lieutenant Governor select five of the nine commissioners. Two more are selected by Madison County and Rankin County officials, and both of those counties are majority Caucasian.[8] Taking control of the airport away from Jackson, the intervenors conclude, "demonstrates the City and its citizens and taxpayers have been invidiously excluded because of race, in whole or in part, from any control of its Airport by [S.B.] 2162."

         B.

         During discovery, the JMAA and its five commissioners, suing in their official capacities ("JMAA plaintiffs"), served document subpoenas on the eight Legislators. Additionally, four of the five commissioners suing in their individual capacities ("individual plaintiffs") served identical subpoenas on four of the same Legislators.[9] The subpoenas requested, in relevant part, communications between the Legislators "and any person, including members of the Mississippi legislature and any governmental agency, body or its representative(s)" about S.B. 2162 or the Airport.[10] The plaintiffs averred that the subpoenas sought information relevant to "establishing an equal protection violation under federal law."

         The Legislators refused to comply, specifically objecting to Request 3. They first asserted that any responsive information would be relevant only to the equal protection claim brought by the individual plaintiffs and not to the JMAA plaintiffs' claims. The Legislators secondly maintained the requested "communications between members of the Mississippi Legislature and government officials regarding [S.B.] 2162's consideration and passage . . . pertain[ing] to the Legislators' thought processes or the communications they had"-would be protected by the legislative privilege.

         The JMAA plaintiffs and the individual plaintiffs moved to enforce the subpoenas, and the MJ partially granted the motion. Observing that "motivations behind [an] allegedly discriminatory law are relevant in determining whether an [equal protection] violation has occurred," the MJ found that Request 3 "appears reasonably tailored to seek documents which may shed light on the Legislators' motivations in drafting and passing [S.B.] 2162." The MJ did not distinguish between the relevance of the information sought by the JMAA plaintiffs' and the individual plaintiffs' subpoenas.

         Regarding the privilege claim, the MJ determined that any applicable privilege was waived for "documents or information otherwise protected by the legislative privilege . . . shared with third parties" and ordered the Legislators to produce such materials. The MJ also faulted the Legislators for invoking legislative privilege "without producing an accompanying privilege log," as Federal Rule of Civil Procedure 26(b)(5)(A)(ii) requires. He ordered them to "produce a privilege log identifying" documents responsive to Request 3 but withheld under a claim of privilege so that the plaintiffs could challenge privilege claims over particular documents. The district court upheld the discovery order[11] but, predicting this interlocutory appeal, ruled that "the [L]egislators will not have to comply with the [MJ's] opinion until the mandate issues from New Orleans or Washington, D.C."

         II.

         We generally review a subpoena enforcement order for abuse of discretion. United States v. Zadeh, 820 F.3d 746, 750 (5th Cir. 2016). We review de novo a district court's determination of controlling law, In re Avantel, S.A., 343 F.3d 311, 318 (5th Cir. 2003), as well as questions of subject-matter jurisdiction, Houston Ref., L.P. v. United Steel, Paper & Forestry, Rubber, Mfg., 765 F.3d 396, 400 (5th Cir. 2014).

         III.

         The parties agree that the subpoenas seek information relating to the equal protection claim brought as Count VII. As we have explained, that count was brought by only the individual plaintiffs-that is, the JMAA board members suing in their individual capacities. Thus, to the extent the order required the Legislators to comply with Request 3 in the subpoenas issued by the JMAA plaintiffs, the district court abused ...


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