Hand v. Scott, Case No. 4:17cv128–MW/CAS

• Decision Date: 27 March 2018
• Docket Number: Case No. 4:17cv128–MW/CAS
• Citation: 315 F.Supp.3d 1244
• Parties: James Michael HAND, et al., Plaintiffs, v. Rick SCOTT, in his official capacity as Governor of Florida and member of the State of Florida's Executive Clemency Board, et al., Defendants.
• Court: U.S. District Court — Northern District of Florida

315 F.Supp.3d 1244

James Michael HAND, et al., Plaintiffs,

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

Case No. 4:17cv128–MW/CAS

United States District Court, N.D. Florida, Tallahassee Division.

Signed March 27, 2018

Diana L. Martin, Theodore Jon Leopold, Poorad Razavi, Cohen Milstein Sellers Etc PLLC, Palm Beach Gardens, FL, Brittnie R. Baker, Jonathan Lee Sherman, Michelle E. Kanter Cohen, Fair Elections Legal Network, Washington, DC, for Plaintiffs.

Amit Agarwal, Edward M. Wenger, Jonathan Alan Glogau, Jordan E. Pratt, Lance Eric Neff, Office of the Attorney General, Florida Department Of State - S. Bronough St., Tallahassee, FL, for Defendants.

ORDER DIRECTING ENTRY OF JUDGMENT

Mark E. Walker, United States District Judge

This Court is not the Vote–Restoration Czar. It does not pick and choose who may receive the right to vote and who may not. Nor does it write the rules and regulations for the Executive Clemency Board. Instead, this Court possesses the well-known and unsurprising "province and duty ... to say what the law is." Marbury v. Madison , 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60 (1803). And this Court possesses the unremarkable discretion to find a means for the Board to comply with the law.

In its Order on Cross–Motions for Summary Judgment, this Court applied longstanding precedent from the Supreme Court and the Eleventh Circuit that invalidated unfettered-discretion schemes to a novel context; namely, that of felon re-enfranchisement. See generally ECF No. 144. And, as it has done in the past, this Court invited the parties to recommend appropriate remedial action. Defendants essentially repackage the current scheme into proposed remedies permitting the Governor and Board to do, as the Governor described, "whatever we want" in denying voting rights to hundreds of thousands of their constituents. ECF No. 144, at 2 (citation omitted). This will not do. And Defendants' proposed remedy to abandon the whole vote-restoration scheme does not pass constitutional muster.

If binding precedent spanning decades is to guide this Court—as it must—then an injunction must ensue to prevent further infringement. Florida's vote-restoration scheme can no longer violate Plaintiffs' fundamental First Amendment rights. Accordingly, as even Defendants acknowledge, "this Court may direct the Board ‘to find a means of bringing the [State's] scheme into compliance with federal law.’ " ECF No. 149, at 14 (quoting Strahan v. Coxe , 127 F.3d 155, 170 (1st Cir. 1997) ).

I

Plaintiffs would have this Court restore the right to vote to any former felon who has completed her whole sentence and a uniformly imposed five- or seven-year waiting period. ECF No. 147, at 2–3. But such relief is beyond the scope of this Court's authority. The people of Florida—either through ballot initiatives or through their legislative acts—may cure any perceived policy weaknesses with Florida's restoration scheme.¹ This Court's task today is to remedy Florida's current scheme by cabining government officials' unfettered discretion.

II

While Defendants oppose any relief and claim the current scheme is all sunshine and rainbows, they agree with Plaintiffs that this Court may provide declaratory relief.² See, e.g. , ECF No. 157, Ex. A (outlining Plaintiffs' proposed declaratory relief), and ECF No. 158, at 15 ("Here, a declaratory judgment would provide an adequate remedy for the specific concerns identified by the Court."). And this Court grants declaratory relief consistent with its prior order.

III

The parties disagree on the propriety and extent of injunctive relief, which is the primary purpose of this Order. This Court finds injunctive relief is appropriate to ensure that Florida's vote-restoration scheme is no longer based on unfettered discretion.

A

To succeed on a permanent injunction, Plaintiffs "must satisfy a four-factor test." Monsanto Co. v. Geertson Seed Farms , 561 U.S. 139, 156, 130 S.Ct. 2743, 177 L.Ed.2d 461 (2010) (internal quotation marks omitted). Plaintiffs must show (1) "irreparable injury"; (2) that "remedies available at law, such as monetary damages, are inadequate to compensate for that injury"; (3) that, "considering the balance of hardships between the plaintiff[s] and defendant[s], a remedy in equity is warranted"; and (4) that the "public interest would not be disserved by a permanent injunction." Id. at 156–57, 130 S.Ct. 2743 (internal quotation marks omitted).

Plaintiffs have satisfied the elements for a permanent injunction. First, Plaintiffs have suffered an irreparable injury.³ Their right to free association and right to free expression were denied under a fatally flawed scheme of unfettered discretion that was contaminated by the risk of viewpoint discrimination. The Board will revisit some of their decisions at some unknown future date—if at all—based on nebulous criteria, such as the Governor's comfort level. See, e.g. , ECF No. 102, at 41. "[I]n the unique context of first amendment challenges upon the facial validity of licensing statutes, it is the very existence of official discretion that gives rise to a threat of injury sufficient to warrant an injunction." Miami Herald Publ'g Co. v. City of Hallandale , 734 F.2d 666, 674 n.4 (11th Cir. 1984). Plaintiffs, then, have established "an imminent likelihood" that their First Amendment rights to free association and free expression "will be chilled or prevented altogether." Siegel v. LePore , 234 F.3d 1163, 1178 (11th Cir. 2000) ; see also Elrod v. Burns , 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) ("The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.").

Second, because Plaintiffs suffered an irreparable harm, remedies at law are inadequate. See Barrett v. Walker Cty. Sch. Dist. , 872 F.3d 1209, 1229 (11th Cir. 2017) (citing Deerfield Med. Ctr. v. City of Deerfield Beach , 661 F.2d 328, 338 (5th Cir. Unit B Nov. 1981) ("An injury is ‘irreparable’ only if it cannot be undone through monetary remedies.") ).⁴

Third, the balance of the hardships favors Plaintiffs. Defendants need only redraft rules that align the vote-restoration scheme within the boundaries of the law by cabining official discretion and providing meaningful time constraints for the Board's decision-making. Plaintiffs, meanwhile, are deprived of a voice in directly choosing their elected leaders. They are also deprived of associating with the political party, if any, of their choice. Both are essential First Amendment rights, as this Court described in its prior order. ECF No. 144, at 9–17. Balancing the hardships between protecting First Amendment rights and having a government board that meets four times a year redraft their rules to conform with the United States Constitution weighs unsurprisingly in favor of the former.

Finally, Plaintiffs easily satisfy the fourth factor. "[T]he public interest is always served in promoting First Amendment values." Suntrust Bank v. Houghton Mifflin Co. , 268 F.3d 1257, 1276 (11th Cir. 2001). There are few greater interests than free association and free expression to choose public officials to lead, to represent all people in their jurisdictions, and to advance policy for the common good. These interests are why Americans launched a revolution against perceived unfettered discretion in the hands of one high-ranking official, King George III.

B

The question turns to the nature and extent of a permanent injunction. "Injunctive relief against a state agency or official must be no broader than necessary to remedy the constitutional violation." Knop v. Johnson , 977 F.2d 996, 1008 (6th Cir. 1992) (quoting Toussaint v. McCarthy , 801 F.2d 1080, 1086 (9th Cir. 1986) ). This Court does not re-enfranchise otherwise eligible citizens. This Court does not operate as a legislature. This Court is not a fifth member of the Board, drafting specific rules and regulations for it, unless it is forced to do so.⁵ "Once a right and a violation have been shown, the scope of a district court's equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies." Swann v. Charlotte–Mecklenburg Bd. of Educ. , 402 U.S. 1, 15, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971).

While this Court again recognizes the novelty of Plaintiffs' claims,⁶ this Court's permanent injunction does not surface out of some swamp. Federal courts have regularly held—including other circuits and the Supreme Court—that cabining state officials' discretion so they may not violate First Amendment rights is an appropriate task for federal courts. See, e.g. , City of Lakewood v. Plain Dealer Publ'g Co. , 486 U.S. 750, 757, 108 S.Ct. 2138, 100 L.Ed.2d 771 (1988) (listing a "long line of precedent" outlining the Supreme Court's discomfort with government officials' unfettered discretion over First Amendment rights); Forsyth Cty. v. Nationalist Movement , 505 U.S. 123, 133, 112 S.Ct. 2395, 120 L.Ed.2d 101 (1992) ("The First Amendment prohibits the vesting of such unbridled discretion in a government official."); Gannett Satellite Info. Network, Inc. v. Berger , 894 F.2d 61, 69 (3d Cir. 1990) (invalidating scheme that "failed to establish any parameters for the exercise of its authority to regulate a broad category of speech"). The incongruence of officials' unfettered discretion with the First Amendment extends to executive-clemency schemes implicating constitutional rights.

The Eleventh Circuit has previously addressed other unconstitutional unfettered-discretion schemes, which guides this Court on the scope and nature of appropriate injunctive relief. In Sentinel Communications Co. v. Watts , the Eleventh Circuit struck down a scheme that gave a Florida official "standardless, unfettered discretion" in distributing newspaper racks at interstate rest areas. 936 F.2d 1189, 1197 (11th Cir. 1991). "Unaided (or...