Campaign for S. Equality v. Miss. Dep't of Human Servs.

• Decision Date: 31 March 2016
• Docket Number: CIVIL ACTION NO. 3:15cv578-DPJ-FKB
• Citation: 175 F.Supp.3d 691
• Parties: Campaign for Southern Equality, et al., Plaintiffs v. Mississippi Department of Human Services, et al., Defendants
• Court: U.S. District Court — Southern District of Mississippi

175 F.Supp.3d 691

Campaign for Southern Equality, et al., Plaintiffs

v.Mississippi Department of Human Services, et al., Defendants

CIVIL ACTION NO. 3:15cv578-DPJ-FKB

United States District Court, S.D. Mississippi, Northern Division.

Signed March 31, 2016

Alexia D. Koritz, PHV, Andrew J. Ehrlich, PHV, Jacob H. Hupart, PHV, Joshua D. Kaye, PHV, Roberta A. Kaplan, PHV, Paul, Weiss, Rifkind, Wharton & Garrison, LLP, New York, NY, Dianne Herman Ellis, Ellis Law Firm, PLLC, Ocean Springs, MS, Jacob W. Howard, Robert B. McDuff, Sibyl C. Byrd, McDuff & Byrd, Jackson, MS, Meghann K. Burke, PHV, Brazil & Burke, PA, Asheville, NC, for Plaintiffs.

Tommy D. Goodwin, Justin L. Matheny, Douglas T. Miracle, Mississippi Attorney General's Office, Jackson, MS, for Defendants.

ORDER

Daniel P. Jordan III

, UNITED STATES DISTRICT JUDGE

Plaintiffs seek a declaration that Mississippi Code section 93–17–3(5)

—which prohibits adoption by married gay couples—violates the Due Process and Equal Protection Clauses of the United States Constitution. They named as defendants the Mississippi Department of Human Services (“DHS”), DHS's Executive Director, three chancery courts, nine chancellors from those three courts, and Mississippi's Governor and Attorney General.

Defendants have offered a tepid defense of the statute itself, focusing instead on Plaintiffs' right to sue them. They argue that even assuming section 93–17–3(5)

is unconstitutional, Plaintiffs lack Article III standing and cannot overcome Eleventh Amendment immunity. The Governor, Attorney General, and Executive Director further contend that there is no injury because those Defendants either lack authority to enforce the ban or would not enforce it to impede an otherwise valid gay adoption. For the reasons that follow, the Court finds that Plaintiffs have standing as to DHS's Executive Director but no other defendant. And finding a justiciable claim, Plaintiffs' motion for preliminary injunction is granted.

I. Background and Procedural History

Mississippi Code section 93–17–3(5)

states simply: “Adoption by couples of the same gender is prohibited.” Four lesbian couples residing in Mississippi and two advocacy groups now challenge that statute under the Due Process and Equal Protection Clauses of the United States Constitution. Two of the couples seek a private adoption involving the biological child of one of the partners. The others desire adoption through Mississippi's foster-care system.

After Plaintiffs initiated this suit, the parties filed the following motions that are now before the Court: (1) the Motion for Preliminary Injunction [13] filed by four of the individual plaintiffs; (2) the Motion to Dismiss for Lack of Subject Matter Jurisdiction [15] filed by Defendants DHS; John Davis, its Executive Director¹ ; Governor Phil Bryant; and Attorney General Jim Hood (“the “Executive-Branch Defendants”); (3) the Motion to Dismiss for Lack of Subject Matter Jurisdiction and Failure to State a Claim [52] filed by Defendants the Tenth, Fourteenth, and Twentieth District Chancery Courts and Judges Dawn Beam, M. Ronald Doleac, Deborah J. Gambrell, Johnny L. Williams, Kenneth M. Burns, Dorothy W. Colom, Jim Davidson, John Grant, and John C. McLaurin, Jr. (the “Judicial Defendants”); and (4) the Executive-Branch Defendants' Motion to Dismiss the Plaintiffs' First Amended Complaint for Lack of Subject Matter Jurisdiction [55].

The Court conducted an evidentiary hearing on these motions on November 6, 2015. The issues are ripe for decision, and the Court is prepared to rule. This Order will first address Defendants' various motions to dismiss before turning to the motion for preliminary injunction.

II. Motions to Dismiss

All Defendants seek dismissal under Rule 12(b)(1) of the Federal Rules of Civil Procedure

and have submitted record evidence to support their motions.

In determining whether the court has subject matter jurisdiction, we must accept as true the allegations set forth in the complaint. The court is also empowered to consider matters of fact which may be in dispute. Therefore, a trial court has the power to dismiss for lack of subject matter jurisdiction on any one of three separate bases: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts. The party invoking federal jurisdiction bears the burden of establishing standing.

Crane v. Johnson , 783 F.3d 244, 250–51 (5th Cir.2015)

(citation and internal quotation marks omitted). During the hearing, the parties agreed that this standard applies. Accordingly, the Court has considered the First Amended Complaint, the parties' record evidence, and the testimony presented during the hearing.

A. DHS and the Chancery Courts

Plaintiffs conceded that DHS and the chancery courts are entitled to Eleventh Amendment immunity. Accordingly, those parties are dismissed without prejudice to refiling in state court.

B. Article III Standing

The Executive-Branch and Judicial Defendants contend that Plaintiffs lack standing to bring suit in federal court. While Plaintiffs attempt to marginalize this argument as a mere technicality, standing is a threshold matter to the justiciability of claims in federal court under Article III of the Constitution. Indeed, it is a “basic proposition that the Constitution limits our jurisdiction to ‘Cases' and ‘Controversies.’ ” Contender Farms, L.L.P. v. U.S. Dep't of Agric. , 779 F.3d 258, 264 (5th Cir.2015)

(citing U.S. Const. art. III, § 2). Significantly,

[t]he judicial power of the United States defined by Art. III is not an unconditioned authority to determine the constitutionality of legislative or executive acts. The federal courts are not empowered to seek out and strike down any governmental act that they deem to be repugnant to the Constitution. Rather, federal courts sit “solely, to decide on the rights of individuals,” Marbury v. Madison , 1 Cranch 137, 170, 2 L.Ed. 60 (1803)

, and must “ ‘refrai [n] from passing upon the constitutionality of an act ... unless obliged to do so in the proper performance of our judicial function, when the question is raised by a party whose interests entitle him to raise it.’ ”

Hein v. Freedom From Religion Found., Inc. , 551 U.S. 587, 598, 127 S.Ct. 2553, 168 L.Ed.2d 424 (2007)

(some citations and internal quotation marks omitted).

“At bottom, ‘the gist of the question of standing’ is whether the parties invoking standing have ‘such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination.’ ” Mass. v. Envtl. Prot. Agency , 549 U.S. 497, 517, 127 S.Ct. 1438, 167 L.Ed.2d 248 (2007)

(quoting Baker v. Carr , 369 U.S. 186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962) ). Standing is not, therefore, a mere technicality, and its applicability differs in this case with respect to the various Plaintiffs and the officials against whom they bring this suit. SeeFontenot v. McCraw , 777 F.3d 741, 746 (5th Cir.2015)

(“The court must evaluate each plaintiff's Article III standing for each claim; ‘standing is not dispensed in gross.’ ”) (quoting Lewis v. Casey , 518 U.S. 343, 358 n. 6, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996) ).

1. The Judges

Plaintiffs did not initially sue the Judicial Defendants. But when the Executive-Branch Defendants argued that only judges are empowered to apply section 93–17–3(5)

, Plaintiffs amended their complaint to assert claims against them. The problem is that the judges are not the Plaintiffs' adversaries.

Bauer v. Texas

is directly on point. 341 F.3d 352 (5th Cir.2003). In that case, a woman who had been involuntarily subjected to guardianships challenged the constitutionality of the Texas laws creating them, naming as a defendant the judge who had previously placed her in one. The Fifth Circuit noted that the “case or controversy requirement of Article III of the Constitution requires a plaintiff to show that he and the defendants have adverse legal interests.” Id. at 359. And when a judge acts in his or her adjudicatory capacity—as opposed to administrative capacity—no such adversity exists. Id. Thus, “[o]rdinarily, no case or controversy exists between a judge who adjudicates claims under a statute and a litigant who attacks the constitutionality of the statute.” Id. at 361 (citing In re Justices of The Supreme Ct. of P.R. , 695 F.2d 17, 19 (1st Cir.1982) ).

In their briefs, Plaintiffs assert that judges in Mississippi deciding adoption petitions are not acting in an adjudicatory capacity, but that argument is not persuasive and was essentially abandoned during argument.² A petition for adoption initiates a pending case that is brought in chancery court and falls within the chancellor's statutorily defined judicial functions. Even with respect to section 93–17–3(5)

, state-court judges possess the power of judicial review. The Court concludes that the chancellors act in an adjudicative capacity when hearing adoption petitions.

Finally, Plaintiffs offered an alternative argument that the judges should remain in the case as nominal parties to aid in enforcement of any relief they may obtain. There is some non-binding support for such steps when no other party is properly before the court. See generally In re Justices of Supreme Ct. of P.R. , 695 F.2d at 22

(discussing issue while finding plaintiffs lacked standing). But even assuming the argument has merit, which is not apparent, this is not such a case. The claims against the judges are dismissed with prejudice.

2. Executive-Branch Defendants

To establish standing with respect to the Executive-Branch Defendants, Plaintiffs must demonstrate three elements: “(1) an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent; (2) a causal connection between the injury and the conduct complained of; and (3) the likelihood that a...