Hand v. Scott, 18-11388-G

• Decision Date: 25 April 2018
• Docket Number: No. 18-11388-G,18-11388-G
• Citation: 888 F.3d 1206
• Parties: James Michael HAND, et al., Appellees, v. Rick SCOTT, in his official capacity as Governor of Florida and member of the State of Florida’s Executive Clemency Board, et al., Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

888 F.3d 1206

James Michael HAND, et al., Appellees,

v.Rick SCOTT, in his official capacity as Governor of Florida and member of the State of Florida’s Executive Clemency Board, et al., Appellants.

No. 18-11388-G

United States Court of Appeals, Eleventh Circuit.

April 25, 2018

Michelle Kanter Cohen, Jonathan Lee Sherman, Fair Elections Legal Network, Washington, DC, Theodore Jon Leopold, Diana L. Martin, Poorad Razavi, Cohen Milstein Sellers & Toll, PLLC, Palm Bch Gdns, FL, for Plaintiffs–Appellees.

Amit Agarwal, Jonathan Alan Glogau, Lance Neff, Jordan E. Pratt, Edward Mark Wenger, Attorney General's Office, Tallahassee, FL, for Defendants–Appellants.

Before MARCUS, WILLIAM PRYOR, and MARTIN, Circuit Judges.

MARCUS, Circuit Judge:

Appellants Rick Scott, in his official capacity as Governor of the State of Florida, and the other three members of Florida’s Executive Clemency Board (Pam Bondi, Adam H. Putnam, and Jimmy Patronis) (collectively, the "State Executive Clemency Board") have appealed from the district court’s orders entered in favor of appellees James Michael Hand and eight other convicted felons who have completed their sentences and seek to regain their voting rights in Florida. In the underlying lawsuit, the appellees facially challenged, under the Fourteenth Amendment’s Equal Protection Clause and the First Amendment, Florida’s scheme of voter reenfranchisement for convicted felons, claiming that the State Executive Clemency Board exercised "unbridled discretion" to deny voter reenfranchisement in the absence of any articulable standards. The district court granted summary judgment in favor of appellees, entering a declaratory judgment, permanently enjoining the State Executive Clemency Board from "enforcing the current unconstitutional vote-restoration scheme" and "ending all vote-restoration processes," and commanding the State Executive Clemency Board to "promulgate specific and neutral criteria to direct vote-restoration decisions" along with "meaningful, specific, and expeditious time constraints" on or before April 26, 2018.

Currently before this Court is the State Executive Clemency Board’s time-sensitive Motion for Stay Pending Appeal, seeking provisionally to stay the district court’s injunctions, until this appeal is heard. The parties agree that four factors are relevant to granting a stay: "(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies." Nken v. Holder, 556 U.S. 418, 426, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009) (quoting Hilton v. Braunskill, 481 U.S. 770, 776, 107 S.Ct. 2113, 95 L.Ed.2d 724 (1987) ). The first two factors are the "most critical." Id. at 434, 129 S.Ct. 1749. We are satisfied that the State Executive Clemency Board has made a sufficient showing under Nken to warrant a stay, and, accordingly, we stay the district court’s entry of injunctive relief until this appeal is resolved by a panel of the Court. The Fourteenth Amendment expressly empowers the states to abridge a convicted felon’s right to vote. U.S. Const. amend. XIV, § 2. Binding precedent holds that the Governor has broad discretion to grant and deny clemency, even when the applicable regime lacks any standards. And although a reenfranchisement scheme could violate equal protection if it had both the purpose and effect of invidious discrimination, appellees have not alleged—let alone established as undisputed facts—that Florida’s scheme has a discriminatory purpose or effect. And the First Amendment provides no additional protection of the right to vote.

I.

First, the State Executive Clemency Board has shown it will likely succeed on the merits of the Equal Protection claim. The appellees have claimed that Florida’s "standardless" voter reenfranchisement regime facially violates the Equal Protection Clause of the Fourteenth Amendment. They do not say that the defendants actually discriminated against any of them on the basis of race or any other invidious grounds. Rather, the heart of their claim is that the State Executive Clemency Board’s unbounded discretion will yield an unacceptable "risk" of unlawful discrimination.

For starters, we are bound to follow Supreme Court precedent in Beacham. Beacham v. Braterman, 300 F.Supp. 182 (S.D. Fla. 1969), aff’d 396 U.S. 12, 90 S.Ct. 153, 24 L.Ed.2d 11 (1969). The case stands for the proposition that Florida did not violate the Equal Protection or Due Process Clauses of the Fourteenth Amendment in denying a petitioner’s application for pardon and reenfranchisement, even though the Governor and selected cabinet officers did so in the absence of any articulable or detailed standards. Id. at 184. It establishes the broad discretion of the executive to carry out a standardless clemency regime.

In Beacham, a convicted felon in Florida challenged the refusal to grant him a pardon and the concomitant restoration of his civil rights, including the right to register to vote. Id. at 182–83. He claimed that since there were no "established specific standards to be applied to the consideration of petitions for pardon," the plenary denial of that right violated both the Equal Protection Clause and the Due Process Clause of the Fourteenth Amendment. Id. at 183. A three-judge district court panel squarely rejected the claim, holding that state officials may constitutionally exclude from the franchise convicted felons and that Florida’s standardless scheme did not violate the Fourteenth Amendment. The court reasoned that the discretionary pardon power, which included within its ambit the restoration of civil rights, "has long been recognized as the peculiar right of the executive branch of government," and that the exercise of that executive power was free from judicial control. Id. at 184. Accordingly the district court denied the relief sought in the complaint and dismissed the cause. The Supreme Court, in a summary decision, affirmed the holding of the three-judge district court. 396 U.S. 12, 90 S.Ct. 153.

The district court concluded that, "[u]nlike a fine wine, [ Beacham ] has not aged well," but it remains binding precedent that cannot, as the district court suggested, simply be ignored. We are bound by the Supreme Court’s summary determinations. See Picou v. Gillum, 874 F.2d 1519, 1521 n.3 (11th Cir. 1989) ("The Supreme Court’s summary dispositions are of course entitled to full precedential respect."). A summary disposition affirms the judgment and that which is essential to the judgment. Ill. State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 182, 99 S.Ct. 983, 59 L.Ed.2d 230 (1979) ("[T]he precedential effect of a summary affirmance can extend no farther than the precise issues presented and necessarily decided...." (quotations omitted) ); see also id. at 182–83, 99 S.Ct. 983 ("A summary disposition affirms only the judgment of the court below, and no more may be read into our action than was essential to sustain that judgment." (citations omitted) ). The Supreme Court has since cited Beacham approvingly, observing, "we have summarily affirmed two decisions of three-judge District Courts rejecting constitutional challenges to state laws disenfranchising convicted felons."

Richardson v. Ramirez, 418 U.S. 24, 53, 94 S.Ct. 2655, 41 L.Ed.2d 551 (1974) (citing Beacham, 300 F.Supp. 182, aff’d 396 U.S. 12, 90 S.Ct. 153 ).

Other precedents confirm the broad discretion of the executive to grant and deny clemency. In Connecticut Board of Pardons v. Dumschat, 452 U.S. 458, 101 S.Ct. 2460, 69 L.Ed.2d 158 (1981), the Supreme Court held that a state was entitled to vest the Board of Pardons with "unfettered discretion" to grant pardons based on "purely subjective evaluations ... by those entrusted with the decision," leaving inmates with only a "unilateral hope" for pardon. Id. at 464–66, 101 S.Ct. 2460. Still again, in Ohio Adult Parole Authority v. Woodard, 523 U.S. 272, 118 S.Ct. 1244, 140 L.Ed.2d 387 (1998), the Supreme Court reaffirmed that, because clemency decisions are "matter[s] of grace" by which the executive may consider "a wide range of factors not comprehended by earlier judicial proceedings and sentencing determinations," the state could allocate pardons in a purely discretionary manner without procedural safeguards under the Due Process Clause. Id. at 281, 118 S.Ct. 1244. Finally, in Smith v. Snow, 722 F.2d 630 (11th Cir. 1983), a panel of this Court addressed Due Process and Eighth Amendment claims attacking Georgia’s purely discretionary pardon regime. First, we ruled that Smith’s Due Process claim was foreclosed by Dumschat. Id. at 631–32. Next, the Court held that the failure of Smith’s Eighth Amendment claim necessarily followed. Id. at 632. If a state pardon regime need not be hemmed in by procedural safeguards, it cannot be attacked for its purely discretionary nature. Id. ("If one has no right to procedures, the purpose of which is to prevent arbitrariness and curb discretion, then one clearly has no right to challenge the fact that the decision is discretionary.").

Perhaps of even greater importance, we are obliged to recognize that § 2 of the Fourteenth Amendment expressly empowers the states to abridge a convicted felon’s right to vote. It reads this way:

Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United

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