Harness et al v. Hosemann

Filing 89

ORDER granting 44 Motion to Certify Class as set out in the Order. Signed by Chief District Judge Daniel P. Jordan III on February 13, 2019. (SP)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
ROY HARNESS, ET AL.

PLAINTIFFS

V.

CIVIL ACTION NO. 3:17-CV-791-DPJ-FKB

DELBERT HOSEMANN, SECRETARY OF STATE
OF MISSISSIPPI

DEFENDANT

CONSOLIDATED WITH
DENNIS HOPKINS, ET AL.
V.

PLAINTIFFS
CIVIL ACTION NO. 3:18-CV-188-DPJ-FKB

DELBERT HOSEMANN, SECRETARY OF STATE
OF MISSISSIPPI

DEFENDANT

ORDER
This consolidated action to restore the voting rights of convicted felons is before the
Court on the Hopkins Plaintiffs’ motion for class certification under Federal Rule of Civil
Procedure 23 [44]. Defendant Secretary of State Delbert Hosemann acknowledges that Plaintiffs
meet all of Rule 23’s stated requirements but argues that certification is unnecessary and
therefore opposes it. Because Plaintiffs satisfy the plain text of Rule 23, the Court finds that the
motion for class certification should be granted but the description of the class should be
modified.
I.

Facts and Procedural History
The Hopkins Plaintiffs seek class certification to challenge two sections of the

Mississippi Constitution––sections 241 and 253. Under section 241, individuals who have been
“convicted of murder, rape, bribery, theft, arson, obtaining money or goods under false pretense,
perjury, forgery, embezzlement[,] or bigamy” are ineligible to vote. And section 253 allows the

legislature to restore an individual’s suffrage by “a two-thirds vote of both houses, of all
members elected.”
Plaintiffs say the lifetime voting ban violates the Eighth Amendment’s prohibition of
cruel and unusual punishment and the Fourteenth Amendment, which only permits states to
temporarily “abridge” an individual’s right to vote based on participation in a crime. Compl. [1]
(filed in 3:18-CV-188-DPJ-FKB) at 4–5. They also contend that the mechanism to restore
voting rights violates the Equal Protection Clause of the Fourteenth Amendment and the First
Amendment. Id. at 5.
As relief, Plaintiffs generally seek (1) class-wide declarations that sections 241 and 253
are unconstitutional; (2) class-wide injunctions effectuating those declarations; (3) an order
requiring the Secretary of State to provide notice to all class members and otherwise educate the
public regarding the restored rights; and (4) reasonable costs and attorney’s fees. Id. at 43–45.
In the present motion, Plaintiffs seek to certify a class they now define as including:
Any person who (a) is or becomes disenfranchised under Mississippi state law by
reason of a conviction of a crime that the Secretary of State contends is
disenfranchising under Section 241 of the Mississippi Constitution, Miss. Code
§ 23-15-11 and/or Miss. Code § 23-15-19, and (b) has completed the term of
incarceration, supervised release, parole and/or probation for each such
conviction.
Pls.’ Mem. [45] at 11.
II.

Analysis
Class certification is a two-step process. First, Rule 23 provides four prerequisites to

class certification: (1) numerosity; (2) commonality; (3) typicality; and (4) adequacy of
representation. Fed. R. Civ. P. 23(a); see Ibe v. Jones, 836 F.3d 516, 528 (5th Cir. 2016).
Although Hosemann says Plaintiffs’ claims are substantively meritless, he agrees Plaintiffs have
satisfied these four procedural criteria.
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Second, “[a] class action may be maintained” if “the party opposing the class has acted or
refused to act on grounds that apply generally to the class, so that final injunctive relief or
corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P.
23(b)(2). Again, Hosemann preserves his merits-based opposition to Plaintiffs’ claims but
acknowledges that they “dovetail with Rule 23(b)(2)’s expressed requirements.” Def.’s Mem.
[50] at 8.
Accordingly, there is effectively no dispute Plaintiffs’ motion satisfies all technical
requirements for class certification under Rule 23. Nevertheless, Hosemann asks the Court to
deny class certification because it is unnecessary. Alternatively, Hosemann urges the Court to
re-define the class if it is certified. The balance of this Order will separately examine the
suggested necessity requirement and the class definition.
A.

Necessity

Hosemann reasons that because success on Plaintiffs’ constitutional claims “will
simultaneously benefit” the proposed class, class certification “lacks utility” and should be
denied. Def.’s Mem. [50] at 8. His argument has practical appeal, but it finds no foothold in
Rule 23’s text.
Still, some courts have suggested that class certification may be rejected if the class is
unnecessary. One such case is United Farmworkers of Florida Housing Project, Inc. v. City of
Delray Beach, where the district court refused to allow class certification because the plaintiff
failed to satisfy Rule 23’s requirements. 493 F.2d 799, 812 (5th Cir. 1974). The plaintiff
appealed, saying the district court abused its discretion by denying certification. Id. On appeal,
the Fifth Circuit held:
We find it unnecessary to determine the answer to this question, however, for
whether or not appellants are entitled to class action treatment, the decree to
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which they are entitled is the same. . . . [T]he very nature of the rights appellants
seek to vindicate requires that the decree run to the benefit not only of the named
plaintiffs but also for all persons similarly situated. For racial discrimination is by
definition class discrimination. Even with the denial of class action status, the
requested injunctive and declaratory relief will benefit not only the individual
appellants and the nonprofit corporation but all other persons subject to the
practice under attack.
Id. (internal citations omitted).
Hosemann understandably construes this language as suggesting that courts must deny
unnecessary certifications—even when Rule 23 is satisfied. But the Fifth Circuit has not read
United Farmworkers as adopting a necessity requirement. See Johnson v. City of Opelousas,
658 F.2d 1065, 1069–70 n.5 (5th Cir. 1981) (considering United Farmworkers yet stating that
Fifth Circuit “has not confronted the [necessity] question directly”); see also Pederson v. La.
State Univ., 213 F.3d 858, 867 n.8 (5th Cir. 2000) (observing that Fifth Circuit “has, in the past,
declined to decide whether necessity can play a role in class certification decisions” and “again
declin[ing] to decide this question”); Mitchell v. Johnson, 701 F.2d 337, 345 n.11 (5th Cir. 1983)
(“Since this Court concludes that class certification was ‘necessary,’ we need not decide whether
lack of need is a valid basis for denial of class certification.”).
Even assuming United Farmworkers had judicially created an additional requirement not
present in Rule 23’s text, the decision would not withstand Justice Scalia’s analysis of Rule 23 in
Shady Grove Orthopedic Associates, P.A. v. Allstate Insurance Co., 559 U.S. 393 (2010). There,
the Supreme Court held:
The question in dispute is whether Shady Grove’s suit may proceed as a
class action. Rule 23 provides an answer. It states that “[a] class action may be
maintained” if two conditions are met: The suit must satisfy the criteria set forth
in subdivision (a) (i.e., numerosity, commonality, typicality, and adequacy of
representation), and it also must fit into one of the three categories described in
subdivision (b). [Fed. R. Civ. P.] 23(b). By its terms this creates a categorical
rule entitling a plaintiff whose suit meets the specified criteria to pursue his claim
as a class action. (The Federal Rules regularly use “may” to confer categorical
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permission, see, e.g., [Fed. R. Civ. P.] 8(d)(2)–(3), 14(a)(1), 18(a)–(b), 20(a)(1)–
(2), 27(a)(1), 30(a)(1), as do federal statutes that establish procedural entitlements,
see, e.g., 29 U.S.C. § 626(c)(1); 42 U.S.C. § 2000e-5(f)(1).)
...
Allstate asserts that Rule 23 neither explicitly nor implicitly empowers a federal
court “to certify a class in each and every case” where the Rule’s criteria are met.
[Br. For Resp’t] at 13–14. But that is exactly what Rule 23 does: It says that if
the prescribed preconditions are satisfied “[a] class action may be maintained”
(emphasis added)—not “a class action may be permitted.” Courts do not
maintain actions; litigants do. The discretion suggested by Rule 23’s “may” is
discretion residing in the plaintiff: He may bring his claim in a class action if he
wishes.
559 U.S. at 398–400 (emphasis in original).
In other words, Rule 23’s plain text “unambiguously authorizes any plaintiff, in any
federal civil proceeding, to maintain a class action if the Rule’s prerequisites are met.” Id. at 406
(emphasis in original). They are met in this case; class certification is therefore appropriate. See
Gayle v. Warden Monmouth Cty. Corr. Inst., 838 F.3d 297, 310 n.14 (3d Cir. 2016) (noting that
“requiring ‘necessity’ over and above Rule 23’s enumerated criteria would create conflict with
Shady Grove”).1
B.

Definition of the Class

In their opening brief, the Hopkins Plaintiffs offered the following class definition:
Any person who (a) is or becomes disenfranchised under Mississippi state law by
reason of a conviction of a crime that the Secretary of State contends is
disenfranchising under Section 241 of the Mississippi Constitution, Miss. Code
§ 23-15-11 and/or Miss. Code § 23-15-19, and (b) has completed the term of
incarceration, supervised release, parole and/or probation for each such
conviction.

Plaintiffs say that even if the Court should consider necessity, it exists in this case primarily
because some claims could become moot and the relief they seek regarding notice implicates the
need for a class. These arguments are only somewhat compelling, but coupled with the Shady
Grove analysis, they offer further support for certifying this class.
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Pls.’ Mem. [45] at 11. Hosemann suggests two alterations. First, he proposes that subsection (a)
be revised to specify disenfranchisement “by reason of a conviction of a disenfranchising
offense.” Def.’s Mem. [50] at 15–16. Plaintiffs agree. Pls.’ Reply [52] at 9.
Second, Hosemann proposes that subsection (b) should include only felons who have
completed “all terms of their full sentence” including “payment of fines or restitution.” Def.’s
Mem. [50] at 16. Plaintiffs oppose this revision, characterizing it as a “fundamental merits
question that goes to the heart of this litigation: when should individuals convicted of
disenfranchising offenses regain the right to vote?” Pls.’ Reply [52] at 19 (emphasis in original).
The Court agrees; the issue encompasses the merits. So for now, the class should be
broadly defined to include individuals who have not yet paid all fines and restitution. See In re
Sheffield, 281 B.R. 35, 35 (Bankr. S.D. Ala. 2001) (finding that broad definition of class was
appropriate until trial). If this definition is proven to be overly broad, the Court has authority to
modify it. See Fed. R. Civ. P. 23(c)(1)(C) (“An order that grants or denies class-certification
may be altered or amended before final judgment.”); McNamara v. Felderhof, 410 F.3d 277, 280
n.8 (5th Cir. 2005) (noting a district court can reconsider or modify its class-certification ruling).
Defendant’s request to modify the class definition to exclude those who have not satisfied their
fines and restitution is denied without prejudice.
III.

Conclusion
The Court has considered all arguments raised by the parties; those not addressed would

not have changed the outcome. For the reasons given, Plaintiffs’ motion for class certification is
granted. The class is defined as follows:
Any person who (a) is or becomes disenfranchised under Mississippi state law by
reason of a conviction of a disenfranchising offense, and (b) has completed the
term of incarceration, supervised release, parole, and/or probation for each such
conviction.
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There are, however, a few loose ends the parties will need to address. First, the Court
must appoint class counsel under Rule 23(g). In their proposed order, the Hopkins Plaintiffs
named themselves as class representatives and their attorneys as counsel. But this case was
consolidated with Harness v. Hosemann, and the Court is unsure how the Rule 23(g)
designations affect the Harness Plaintiffs and attorneys. Second, the Court needs input on how
notice should be addressed under Rule 23(c)(2)(A). Finally, the parties must provide guidance
on whether class certification and Rule 23’s notice provisions (or any others) impact the pending
summary-judgment motions and/or the remaining course of litigation. A joint status report
outlining the parties’ positions on these issues should be filed within 14 days of this Order.
SO ORDERED AND ADJUDGED this the 13th day of February, 2019.
s/ Daniel P. Jordan III
CHIEF UNITED STATES DISTRICT JUDGE

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