Grizzle v. Kemp

• Citation: 634 F.3d 1314
• Decision Date: 08 March 2011
• Docket Number: No. 10–12176.,10–12176.
• Parties: Lamar GRIZZLE, Kelvin Simmons, Plaintiffs–Appellees,v.Honorable Brian KEMP, in his official capacity as Secretary of State of Georgia and Chairperson of the Georgia State Election Board, Defendant–Appellant,The State Election Board of the State of Georgia, et al., Defendants.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

634 F.3d 1314

265 Ed. Law Rep. 895

22 Fla. L. Weekly Fed. C 1867

Lamar GRIZZLE, Kelvin Simmons, Plaintiffs–Appellees,

v.Honorable Brian KEMP, in his official capacity as Secretary of State of Georgia and Chairperson of the Georgia State Election Board, Defendant–Appellant,The State Election Board of the State of Georgia, et al., Defendants.

No. 10–12176.

United States Court of Appeals, Eleventh Circuit.

March 8, 2011.

Peter R. Olson, Robert L. Walker, Jenkins, Olson & Bowen, P.C., Cartersville, GA, for Plaintiffs–Appellees.

Ann S. Brumbaugh, Samuel Scott Olens, Stefan Ernst Ritter, Attorney General's Office, Atlanta, GA, for Defendant–Appellant.Appeal from the United States District Court for the Northern District of Georgia.Before TJOFLAT, ANDERSON and ALARCÓN,^* Circuit Judges.ALARCÓN, Circuit Judge:

In this appeal, we must determine whether the District Court erred in applying the strict scrutiny standard in reviewing the Plaintiffs' claims under the First and Fourteenth Amendments in issuing a preliminarily injunction against the Honorable Brian Kemp, the Secretary of State of Georgia (the “Secretary of State”), in his official capacity, and the County Executive Committee of the Bartow County Republican Party (the “Republican Party”), enjoining the enforcement or application of the portion of Georgia Code Ann. § 20–2–51(c)(2) (2009) that precludes relatives of certain employees of a school system from serving as members of that district's board of education. We must also decide whether the District Court erred in holding that a case or controversy exists with regard to the Secretary of State.

We reverse the order granting a preliminary injunction because we conclude that the District Court erred in reviewing the Plaintiffs' First and Fourteenth Amendment claims under the strict scrutiny standard. As the Secretary of State is the chairperson of the State Election Board and the State Election Board is charged with enforcing Georgia's election code under state law, we conclude that the Secretary of State is a proper party in this action for injunctive and declaratory relief pursuant to Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908).

I

A

The facts in this matter are undisputed. Plaintiffs Lamar Grizzle and Kelvin Simmons are both Georgia residents who served on school boards in their respective communities at the time this action was filed. Grizzle is a member and currently Chairman of the Board of Education of Bartow County, Georgia, a position to which he was first elected in November 2002 and re-elected in 2006. ¹ Grizzle's daughter is an assistant principal at Pine Log Elementary School, which is located within the Bartow County school district.

Simmons was a member of the Board of Education of the City of Gainsville, Georgia from 1991 through 2009. His wife is an assistant principal at Gainsville Middle School. Although he intended to run for re-election in November 2009, he was disqualified due to the passage of 2009 Georgia Laws 164 (“HB 251”).

HB 251 was enacted by the State of Georgia and went into effect on May 5, 2009. HB 251 amended Georgia Code Ann. § 20–2–51 by adding the following as subsection (c)(2):

No person who has an immediate family member sitting on a local board of education or serving as the local school superintendent or as a principal, assistant principal, or system administrative staff in the local school system shall be eligible to serve as a member of such local board of education. As used in this paragraph, the term “immediate family member” means a spouse, child, sibling, or parent or the spouse of a child, sibling, or parent. This paragraph shall apply only to local board of education members elected or appointed on or after July 1, 2009. Nothing in this Code section shall affect the employment of any person who is employed by a local school system on or before July 1, 2009, or who is employed by a local school system when an immediate family member becomes a local board of education member for that school system.

Ga.Code Ann. § 20–2–51(c)(2) (2009), amended by Act of May 25, 2010, 2010 Ga. Laws 468.²

B

On January 11, 2009, the Plaintiffs filed an action in the District Court for the Northern District of Georgia against the Honorable Brian Kemp, Secretary of State of Georgia, in his official capacity,³ the Election Board of the State of Georgia,⁴ and the County Executive Committee of the Bartow County Republican Party,⁵ alleging, inter alia, that the “nepotism provision” of section 20–2–51(c)(2), as applied and on its face, violates the equal protection guarantee of the Fourteenth Amendment. They additionally alleged that that provision violates their right of free association, both as voters and as candidates for office, under the First Amendment. Plaintiffs requested, inter alia, that the court declare section 20–2–51(c)(2) unconstitutional; that it grant a preliminary injunction against enforcement of that section prior to the fourth week of April 2010, the deadline for candidate qualification for party primary elections; and that the Court also grant a permanent injunction against the section's enforcement.

On January 30, 2010, Plaintiffs requested that the District Court enter an Order to Show Cause scheduling a hearing for a preliminary injunction. The Court denied their request on January 21, 2010. On the same day, the Plaintiffs filed a motion for a preliminary injunction and requested a hearing on their motion prior to the candidate qualifying period of April 26 to 30, 2010.

The Republican Party, on February 5, 2010, filed a motion to be excused from the case. It indicated that it would “abide by the statute as written or by any injunction entered by the Court.” Mot. to be Excused at 2. The District Court granted the Republican Party's motion on February 12, 2010.

On February 12, 2010, the Secretary of State and the State Election Board jointly filed a motion to dismiss them from this action. In an order issued on March 15, 2010, the District Court granted the State Election Board's motion to be dismissed from this action, and denied the motion to dismiss the Secretary of State as a party.

The Secretary of State filed an answer to the complaint on March 29, 2010. On April 21, 2010, the District Court issued an Order granting in part and denying in part Plaintiffs' motion for a preliminary injunction. The District Court preliminarily enjoined the Secretary of State and the Republican Party “from enforcing or applying the portion of [Georgia Code Ann.] § 20–2–51(c)(2) that precludes relatives of certain employees of a school system from running for election to the school board governing that system, and from precluding Plaintiff Grizzle or any other otherwise qualified individual from running for election to a school board position within Georgia.” Id. at 60–61. It denied relief as to Plaintiffs' other claims, not pertinent to this appeal, and again rejected the Secretary of State's contention that he is not a proper party in this action.

The Secretary of State timely appealed from the District Court's April 21 order. This Court has jurisdiction over this interlocutory appeal pursuant to 28 U.S.C. § 1292(a)(1).

II

The Secretary of State contends the District Court erred in holding that he is a proper party in this action, and, accordingly, in entering a preliminary injunction against him. He additionally argues that the District Court erred in applying strict scrutiny to the Plaintiffs' claims under the First and Fourteenth Amendments in its assessment of the Plaintiffs' Motion for Preliminary Injunction. Because the case-or-controversy requirement is jurisdictional in nature, we address that issue first.

A

The Secretary of State asserts that, because he cannot qualify, challenge or certify candidates for local boards of education under Georgia's election code, he is not a proper party in this lawsuit. He maintains that, under Georgia's election code, in partisan elections such as those for local boards of education,⁶ a candidate's party is charged with determining the qualifications of aspirants for office. Ga.Code Ann. § 21–2–153.1(a). ⁷ Challenges to candidates to local office may be mounted only by electors or the elections superintendent. § 21–2–6(b).⁸ The elections superintendent then certifies the election results to the Secretary of State as well as to the State School Superintendent. § 20–2–53.⁹

The Secretary of State contends that, “[b]ecause he must accept, and cannot alter, the qualifications and certification of Grizzle and Simmons [under Georgia's election code], he cannot be sued over a statute designed to prevent such occurrence.” Appellant's Br. 11.

Pursuant to the Eleventh Amendment, a state may not be sued in federal court unless it waives its sovereign immunity or its immunity is abrogated by an act of Congress under section 5 of the Fourteenth Amendment. Kimel v. Florida Bd. of Regents, 528 U.S. 62, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000); Seminole Tribe of Florida v. Florida, 517 U.S. 44, 55–57, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996); Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890). Under the doctrine enunciated in Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714, however, a suit alleging a violation of the federal constitution against a state official in his official capacity for injunctive relief on a prospective basis is not a suit against the state, and, accordingly, does not violate the Eleventh Amendment. Id. at 168, 28 S.Ct. 441; Frew ex rel. Frew v. Hawkins, 540 U.S. 431, 437, 124 S.Ct. 899, 157 L.Ed.2d 855 (2004).

A state official is subject to suit in his official capacity when his office imbues him with the responsibility to enforce the law or laws at issue in the suit. See Young, 209 U.S. at 161, 28 S.Ct. 441. In Ex Parte Young, the Supreme Court held that, as the duties of the attorney general of Minnesota under both common law and statute included “the right and the power to...