Texas Cases September 13, 2023: Jones v. King

Case Description

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REPORT AND RECOMMENDATION OF THE U.S. MAGISTRATE JUDGE

DAVID B. FANNIN UNITED STATES MAGISTRATE JUDGE

Table of Contents

I. Background ..................................................................................................................................... 2

II. Legal Standard ............................................................................................................................ 4

A. Federal Rule 12(b)(6) ................................................................................................................. 4

B. Federal Rule 12(b)(1) ................................................................................................................. 5

III. Analysis ......................................................................................................................................... 5

A. Propriety of Considering Defendants' Exhibits .......................................................................... 6

B. Section 1983 Claims ................................................................................................................... 7

1. Absolute Judicial Immunity: Judge King ............................................................................... 8

2. Quasi-Judicial Immunity: Sheriff Busse & Constable Jones ................................................ 31

3. Qualified Immunity .............................................................................................................. 36

C. Voting Rights Act Claim .......................................................................................................... 65

1. Standing ................................................................................................................................ 65

2. Mootness ............................................................................................................................... 73

IV. Recommendation ....................................................................................................................... 75

BEFORE THE COURT is Defendants Amber M. King (“King”), Brandon W. Jones (“Jones”), and Chris H. Busse's (“Busse”) Motion to Dismiss Second Amended Complaint (hereafter, “Motion to Dismiss”). (Doc. 19). This case is before the undersigned United States Magistrate Judge through a standing order of referral pursuant to 28 U.S.C. § 636, and Appendix C

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of the Local Court Rules for the Assignment of Duties to United States Magistrate Judges. After due consideration, the undersigned RECOMMENDS that the Motion to Dismiss be GRANTED IN PART and DENIED IN PART . (Doc. 19).

I. Background

In perhaps no § 1983 case has there been as convoluted a consanguinity mesh as this one. The Second Amended Complaint alleges as follows.

Loving County, Texas, has 57 residents. Plaintiff Matthew Jones (“Jones”) is the son of incumbent Loving County Judge Skeet Jones. Plaintiff Ysidro Renteria (“Renteria”) has been a Loving County Commissioner. Plaintiff William L. Jones Carr's (“Carr”) mother is Mozelle Carr, the current Loving County Clerk. Judge Skeet Jones is Plaintiff Carr's uncle. All Plaintiffs were registered to vote in Loving County before the events described in this suit, as they regularly stay overnight in the county.

Defendant Jones is the Constable for Loving County. He is the cousin of Plaintiffs Jones and Carr. His father, Richard Jones, is Judge Skeet Jones' brother. His wife, Holly Jones, announced her intent to run for Loving County Clerk against Mozelle Carr, Plaintiff Carr's mother. Defendant Jones at some point approached Renteria and requested his support for the employment of two additional deputies, which Renteria denied. Defendant Busse is the Loving County Sheriff. Defendant King is the Loving County Justice of the Peace. Her husband, Raymond King, is another Loving County Commissioner alongside Renteria. Defendant King “has filed multiple baseless grievances” against Judge Skeet Jones.

After Defendant Jones' deputy request was denied, Renteria was asked to serve on the Loving County Appraisal Board (“Appraisal Board”) with Defendants Busse and King. Defendants King and Busse then told Renteria that they believed he did not live on his Loving County property and should resign from the board. They then voted for a resolution seeking his resignation.

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Defendants Busse and King caused the Appraisal Board to file suit against Renteria on these same grounds. Around this time, Defendant King's husband unsuccessfully moved for Renteria's resignation in the Loving County Commissioners Court.

Enter the flashpoint of the courthouse. In April 2022, Defendant King convened a group of “prospective jurors” which included Plaintiffs. Plaintiffs appeared in a group in the annex of the Loving County Courthouse on May 25, 2022. In the annex, King initiated a “juror qualification” proceeding. She stated that any of the group's members who were not “qualified jurors” could leave, and that any unqualified jurors remaining would be charged with perjury and held in contempt of court. Plaintiffs remained. A Sheriff's deputy requested each individual to swear to tell Defendant King the truth about their qualifications as a juror. King then asked the group inter alia whether they were residents of Loving County, to which Plaintiffs responded affirmatively. “Immediately thereafter,” King stated that “there are several jurors who are not residents of [Loving County].” King identified each Plaintiff by name and ordered them arrested, jailing them in the Winkler County jail for approximately five hours. King later released written orders citing “direct contempt” as the basis for their arrest.

In June 2022, King directed the Loving County Clerk via email to remove Plaintiffs “from the list of eligible jurors,” citing their non-Loving County residency status. Plaintiffs claim they are no longer eligible to serve on juries in the county, and that Defendants used Texas Senate Bill 1111 (“SB 1111”) to justify their actions.

Plaintiffs thereafter filed a petition for writ of mandamus challenging the contempt orders in state court. A Texas state district court granted the writ and vacated the contempt orders, finding that King had “clearly abused her discretion and failed to comply with due process.”

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Plaintiffs filed the live pleading on May 22, 2023. Plaintiffs argue Defendants' actions unduly deprived them of liberty and burdened their freedoms of speech and association in violation of Amendments One, Four, and Fourteen of the United States Constitution; violated 42 U.S.C. §§ 1983 and 1988; conspired to violate their constitutional rights; and contravened the Voting Rights Act, codified at 52 U.S.C. § 10307(b). On December 2, 2022, Defendants filed their Motion to Dismiss, asserting in large part the defenses of judicial and qualified immunity as to the § 1983 claims, as well as standing and mootness challenges. Plaintiffs have timely filed a Response, and Defendants a Reply. Accordingly, this matter is now ripe for disposition.

II. Legal Standard

A. Federal Rule 12(b)(6)

When a defendant files a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the trial court must assess whether a complaint states a plausible claim for relief. The court must accept “all well-pleaded facts in the complaint as true and viewed in the light most favorable to the plaintiff.” “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

On the other hand, if the complaint only offers “labels and conclusions” or “a formulaic recitation of the elements of a cause of action,” dismissal is appropriate. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” The court should dismiss a complaint if the court can only infer the mere possibility of misconduct, or if the

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plaintiff has only alleged that he is entitled to relief rather than stating a claim that is “plausible on its face.”

B. Federal Rule 12(b)(1)

Federal courts are courts of limited jurisdiction. The courts possess only the powers authorized by the Constitution and statutes of the United States. Motions filed under Federal Rule 12(b)(1) allow a party to challenge the subject matter jurisdiction of the district court to hear a case.

Lack of subject matter jurisdiction may be found in any one of three instances: (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. “[A]ll uncontroverted allegations in the complaint must be accepted as true.” “Thus, unlike a motion to dismiss under [Federal] Rule 12(b)(6), when examining a motion to dismiss for lack of subject matter jurisdiction under [Federal] Rule 12(b)(1), the district court is entitled to consider disputed facts as well as undisputed facts in the record.”

The burden of proof for a Federal Rule 12(b)(1) motion to dismiss is on the party asserting jurisdiction. In fact, “there is a presumption against subject matter jurisdiction that must be rebutted by the party bringing an action to federal court.”

III. Analysis

This case only ostensibly turns on the issue of whether Plaintiffs are eligible to vote in Loving County by virtue of their citizenship. In fact, however, regardless of their voting eligibility,

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the true primary consideration is whether Defendants' actions as alleged were improper. Defendants challenge Plaintiffs' claims on three general grounds: immunity, standing, and mootness. The undersigned will consider the issues of judicial and qualified immunity prior to engaging in the standing and mootness analyses.

A. Propriety of Considering Defendants' Exhibits

As a preliminary matter, the parties dispute whether certain “orders” and letters-affixed to Defendants' Motion to Dismiss-are properly considered in evaluating the motion at this stage. The Court's consideration at this stage is “limited to the complaint, any documents attached to the complaint, and any documents attached to the motion to dismiss that are central to the claim and referenced by the complaint.” If documents are accordingly central and referenced, a defendant may attach the documents to a motion to dismiss to “assist[] the plaintiff in establishing the basis of the suit.”

The undersigned finds that the proffered exhibits should be considered in evaluating the Motion to Dismiss. In this instance, Plaintiffs do not dispute that the proffered exhibits are Judge King's “contempt orders” issued in relation to the courthouse contempt findings, or that the orders reference statutes on which Judge King apparently based her decision. Plaintiffs reference the “contempt orders” several times in the Second Amended Complaint, having themselves obtained copies of them “only” after filing Freedom of Information Act requests. The written orders are additionally central to Plaintiffs' claims-Plaintiffs argue that Judge King's findings of contempt were unjustified and violated their civil rights. Certainly, the specific statutory authority Judge King supposedly relied on in issuing the arrest and contempt orders would be informative as to whether Judge King's actions extended beyond the scope of her authority and therefore impinged upon

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Plaintiffs' constitutional rights. It is not obvious that the orders should inherently be excluded from consideration due to having been allegedly released “after-the-fact” of the courthouse proceedings. Therefore, the written contempt orders are central and referenced in the live Complaint and will be considered.

A similar analysis applies to the voter registrar letters. Plaintiffs again do not dispute that the attached exhibit is an example of one of the letters sent by Busse as Loving County Voter Registrar. They reference the letters in the Second Amended Complaint. The letters are central to their claim that Busse “continued voter suppression efforts after their arrests,” thereby constituting a violation of the Voting Rights Act. Plaintiffs' contention that Busse and the other Defendants conspired to intimidate them and suppress their vote is indubitably supported by the existence of allegedly intimidating, vote-suppressing letters. Plaintiffs, beyond merely lodging an “objection” to the consideration of Busse's letter, do not provide any reason as to why or how such letters are not central to their claims.

B. Section 1983 Claims

Plaintiffs' primary substantive claims are alleged under 42 U.S.C. §§ 1983 and 1988.

Section 1983 allows for recovery against “[e]very person who . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws.” Generally, to state a claim under § 1983, a plaintiff must “(1) allege a violation of rights secured by the Constitution or laws of the United States and (2) demonstrate that the alleged deprivation was

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committed by a person acting under color of state law.” In doing so, a plaintiff “must enunciate a set of facts that illustrate the defendants' participation in the wrong alleged.”

The bulk of Plaintiffs' claims concern Defendants' activities at the Loving County courthouse. Defendants' alleged conduct can be categorized as (1) courthouse activities (i.e., the qualification proceeding and contempt orders) and (2) all other activities. Defendants contend that the doctrine of judicial immunity and, in the alternative, the doctrine of qualified immunity, shield their actions. Thus, Defendants move for dismissal under both Federal Rules 12(b)(1) and 12(b)(6). Although judicial immunity is traditionally addressed under Federal Rule 12(b)(6), because there is some disagreement as to whether such immunity is most appropriately raised under Federal Rule 12(b)(1), this purported immunity will be addressed first.

1. Absolute Judicial Immunity: Judge King

Defendants argue that Plaintiffs' § 1983 courthouse activities claims are barred by absolute judicial immunity. Generally, the doctrine of judicial immunity shields a judge from actions for damages. As a nation with a “well-ordered system of jurisprudence,” judicial immunity continues to flourish. The Supreme Court of the United States has long described the objectives and purposes of the doctrine:

For it is a general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, shall be free to act upon his own convictions, without apprehension of personal consequences to himself. Liability to answer to every one who might feel himself aggrieved by the action of the judge, would be inconsistent with the possession of this freedom, and would destroy that independence without which no judiciary can be either respectable or useful.

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Judicial immunity extends “even when the judge is accused of acting maliciously and corruptly.” This is because the protection “is not for the . . . benefit of a malicious or corrupt judge, but for the benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions with independence, and without fear of consequences.” The immunity thus also applies where the judge's action “was in error . . . or was in excess of his authority.”

“Two narrow exceptions exist to this immunity: (1) if the actions are not taken in the judge's judicial capacity, and (2) if judicial action is ‘taken in the complete absence of all jurisdiction.'” Defendants argue that neither exception applies in this case.

i. Judicial Acts

Sheriff Busse and Constable Jones' quasi-judicial immunity depends on whether Judge King herself receives it. Thus, Judge King's immunity will be discussed first.

To determine whether a judge's conduct involved judicial acts, four factors are considered:

(1) whether the precise act complained of is a normal judicial function; (2) whether the acts occurred in the courtroom or appropriate adjunct spaces such as the judge's chambers; (3) whether the controversy centered around a case pending before the court; and (4) whether the acts arose directly out of a visit to the judge in his official capacity.

The factors are to be “broadly construed in favor of immunity.” Understanding the policies set forth above, “immunity should not be denied where the denial carries the potential of raising more than a frivolous concern in a judge's mind that to take proper action might expose him to personal liability.” Thus, immunity is sometimes afforded notwithstanding the fact that one or more of the factors does not favor the judge.

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Plaintiffs contend that the jury qualification proceedings and the issuance of the contempt orders both were non-judicial acts. Because the latter three factors produce the same result for each set of conduct, these factors will be addressed first.

Starting off with the second factor, the undersigned finds that it favors Defendants. Plaintiffs assert that they were summonsed to a meeting room in the annex of the Loving County courthouse. However, as Defendants point out, Texas law provides that counties with low populations such as Loving County “may hold court in the county courthouse or another facility provided under [§] 292.002(a) [of the] Local Government Code.” Plaintiffs do not dispute that this is the case. An annex of the courthouse reasonably would also be considered part of the courthouse itself, or at least an “appropriate adjunct space.” That this non-trial proceeding took place in a meeting room of the annex of the courthouse itself does not alone transform the events into something extrajudicial. This factor favors Defendants.

The third factor benefits Plaintiffs. Plaintiffs maintain that King did not call any case set for trial. Nor was there defense counsel present. Plaintiffs therefore believe there was no pending case over which a “jury” would have presided. Defendants have not controverted this statement. Thus, construing all undisputed facts in Plaintiffs' favor, the third factor weighs in favor of Plaintiffs.

The fourth factor somewhat favors Defendants. Plaintiffs allege they were summonsed to the courthouse on King's orders for a purported appearance as potential jurors. It was at this time that the alleged events occurred. Thus, as alleged by Plaintiffs, the acts at the courthouse directly arose from Plaintiffs' visit to King's courthouse in her official capacity as justice of the peace.

As to the first factor, a more holistic approach is needed. To determine whether the relevant conduct constitutes a “normal judicial function,” a court should examine the “‘nature and function' of the act, not the act itself.” Thus, a court is to consider “the particular act's relation to a general

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function normally performed by a judge.” The “touchstone” of the doctrine is the “performance of the function of resolving disputes between parties, or of authoritatively adjudicating private rights.” An important line, however fine, is to be drawn “between judicial acts and the administrative, legislative, or executive functions that judges may on occasion be assigned by law to perform.”

Here, beginning with the qualification proceeding, the parties agree that the preparation of a “jury list” is indeed a non-judicial act, and that selecting a petit jury is indeed a judicial function. But Defendants distinguish the former action from the act of “determining whether the persons who appear in response to a jury summons meet the statutory qualifications to serve on a jury.” Whether King's qualification proceedings were judicial therefore depends on the character of the “jury qualification proceedings.” Classifying these proceedings correctly is accordingly of utmost importance.

a. General Assembly/Venire versus Voir Dire

The proceedings, at base, allegedly entailed King asking the summonsed “juror” pool if they were qualified for jury service. No specific case was at hand, and no petit “jury panel” was being selected. Instead, as Plaintiffs note, King was ruling on whether Plaintiffs were “eligible to serve on a venire.”

The Fifth Circuit has recognized a “vast difference in function and purpose between selection for a venire and selection for a jury.” A “venire” is a “panel of persons selected for jury duty and from among whom the jurors are to be chosen.” The selection of a venire involves the

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determination of the fitness of individuals to “try any case,” as opposed to a particular case. In Texas, where a “venire” is sometimes referred to as a “general assembly,” the judge “presiding over the general assembly is assigned for that purpose only at that time and has no given case in mind.” As Texas courts have put it,

[m]embers of the general assembly are qualified on their ability to serve and exemptions and excuses are heard and ruled on by the judge presiding over the general assembly. Prospective jurors who are not disqualified, exempt, or excused are divided into trial panels and sent to the individual courts trying the cases. At that point, attorney voir dire will result in the jury that will ultimately hear the case.

Thus, “voir dire examination” instead refers not to the general summonsing and qualification for jury service, but instead to the “examination of prospective jurors after they have been assigned to a particular court and case from the general assembly.” If the presiding judge has announced the type of case for which the jurors were summonsed, the panel will most likely be rightfully considered a voir dire panel as opposed to a general assembly.

In this case, there was allegedly no case before King's court, no defendant or other parties present, and no specific jury panel to be selected. It is alleged that King has testified in state court that her purpose in summonsing Plaintiffs was to determine their “eligibility” to serve on a jury. Defendants' motion also appears to concede that King summonsed a general assembly. They do not otherwise controvert the conclusion that King's proceedings were a general assembly selection. It must therefore be concluded that the proceedings most closely resembled venire selection as opposed to a voir dire jury panel.

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b. General Assembly/Venire as a Judicial Act

At this time, the undersigned must answer the question of whether conducting juror qualifications at a general assembly is a judicial act. The undersigned finds that, in this scenario and under these particular facts, King's “jury qualification proceedings”-i.e., her general assembly- were non-judicial acts.

The undersigned has located no prior Texas or Fifth Circuit precedent discussing the judicial quality of qualifying and determining the eligibility of potential jurors summonsed for a general assembly, and the parties have not pointed to any specific case or statute on the point. The issue is novel and will be considered against the backdrop of the standard “judicial acts” framework.

The substantive “distinction between ministerial, and judicial . . . acts, [is] that where the law prescribes and defines the duty to be performed, with such precision and certainty as to leave nothing to the exercise of discretion, or judgment, the act is ministerial.” But “where the act to be done involves the exercise of discretion or judgment in determining whether the duty exists, it is not . . . merely ministerial.” Such “discretion” can be broadly defined as

the option which a judge may exercise either to do or not to do that which is proposed to him that he shall do; choosing between the doing and not doing of a thing, the doing of which cannot be demanded as an absolute right of the party asking it to be done; the exercise of the right legally to determine between two or more courses of action.

Thus, “discretion” can also be distinct from de facto mandatory actions. Alternatively, the Texas Supreme Court has observed another indicator of judicial nature, which is where the Texas

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Constitution vests all judicial power exclusively in judicial officers. It follows that if a law allocates to a non-judicial officer some authority or responsibility, the power is non-judicial.

The undersigned concludes that King's courthouse actions were ministerial and therefore nonjudicial. The undersigned addresses this issue of first impression with an eye towards pragmatism. As noted above, the parties do not materially dispute that, if King had empaneled the summonsed jurors at a voir dire petit jury selection, she would be shielded by judicial immunity. And she would. But at the general assembly or venire stage, in Texas, the undersigned concludes that King's alleged actions were instead ministerial, involving the summonsing of Plaintiffs and others for a general assembly.

In making this determination, the undersigned begins by observing that the relevant Texas statute expressly “disqualifies” non-residents from serving. Each potential juror must be a Texas resident, and in this case, also a resident of Loving County. Indeed, the statute states that “[a] person is disqualified to serve as a petit juror unless the person . . . is a resident of [Texas] and of the county in which the person is to serve as a juror.” By the statute's plain language, there is no room for a judge's discretion. For example, the statute does not say that a person “may” or “can” be disqualified if he does not satisfy the residency requirement. This is distinct from a related Texas statute which provides additional guidelines for judges presiding over voir dire selections.

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Contrasting general assembly proceedings with voir dire, the latter takes place after the general assembly is settled and the prospective panels are sent off for different cases. At this stage, there is little disagreement that this qualification involving specific cases and parties is judicial. In particular, attorneys lodge their challenges based on personality, beliefs, and general understanding of jury service, not commonly for unmet statutory requirements. The presiding judge then decides whether a given juror should be struck for cause or upon motion. Put differently, a judge presiding over a voir dire panel selection has discretion to remove a juror based on excuses and the parties' challenges. But at the general assembly stage, the judge simply verifies whether a prospective juror is, among other things, a resident of the relevant county. Such determinations at the general assembly stage prevent the individuals from serving on any venire pool in the jurisdiction, or on any voir dire panel. Yet no expertise or legal knowledge is needed to determine one's county residency, and certainly no discretion is required to determine which county a prospective juror resides in. Considering all four factors, the determination must be made that a general assembly qualification proceeding screening for statutory compliance is a nonjudicial act.

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The arbiter in this scenario is therefore not the presiding judge, court clerk, or otherwise. Instead, it is, as statutory guidance, the Texas Legislature. There is no conceivable discretion in eliminating individuals from the general assembly who do not fit the minimum statutory requirements for jury service. Nothing in the statute leaves the disqualification of jurors who do not meet the statutory requirements to the “option of the judge.” Thus, it is the nature of the act of removing ineligible jurors from possible consideration for any voir dire panel that is non-judicial. This determination “might as well have been committed to a private person”; here, in fact, it was. This is true regardless of the title or identity of the individual performing the act. In other words, whether a justice of the peace or instead a 1950s milkman is personally evaluating each potential juror's eligibility, ineligible individuals must be removed from the general assembly. The lack of discretion in this scenario signifies that the general assembly eligibility evaluations are a ministerial task.

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This conclusion is buttressed by other provisions of the Texas Government Code. The initial duty of qualifying individuals for jury service via a general assembly in non-justice courts are often times assigned to clerks and other non-judicial personnel. Specifically, county clerks and the sheriff are to draw names of prospective jurors from a jury wheel. This jury wheel is composed of individuals named on the county's voter registration list as well as on a Texas Department of Public Safety (“DPS”) list. Individuals who are disqualified from jury service for minority and non-American citizenship are to be excluded from the DPS list. The DPS as well as the Texas Secretary of State furnish a list providing this information, including the individual's county of residence. It is from this list in part that the jury wheel is constituted. Various state employees, including the clerk of the court, maintain a list containing names of the jurors disqualified due to nonresidency.

Texas statutes have historically provided for the selection of juries in the courts of justices of the peace-also known as justice courts-to be done via the “pick-up” jury method. This involves the justice of the peace issuing a writ commanding the sheriff or constable to summon a venire “from which qualified persons are to be selected to serve as jurors.” Jury panels may be selected either by the pick-up method or instead the jury wheel method. Both instances involve a pool of potential eligible jurors from which panels are to be selected and against which jurors can be disqualified. Nevertheless, the precise method used in justice courts has less to do with whether King's general assembly proceedings were a judicial act than the nature of the act itself.

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By Defendants' own admission, it would be difficult to consider any of these activities to be anything other than non-judicial. Many of the qualifications to be placed on the jury wheel are derived directly from the same statute that requires all jurors to be residents of the relevant county. Yet before the summons are released, several indisputably non-judicial actors filter out potential jurors for lack of qualification. This statutory selection scheme bodes in favor of holding that the determination of individuals' county residency is non-judicial. That the determination took place in this case post-summons at a general assembly does not swaddle the proceedings in a judicial cloak. Likewise, that justices of the peace may be tasked for selecting voir dire jury panels does not recast non-judicial general assembly selection into something judicial. While this function may be viewed as a judicial act in some cases, in this situation, King's general assembly was administrative and ministerial.

Accordingly, the undersigned RECOMMENDS that the Motion to Dismiss be DENIED as to King's general assembly proceedings for being a non-judicial act.

c. Contempt Orders

Defendants also assert judicial immunity for King's contempt orders.

Plaintiffs assert that, at the qualification meeting, King forewarned all summonsed jurors that any unqualified jurors who were dishonest in giving their responses would be “held in contempt of

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court.” Each juror swore to tell the truth as to their qualifications. After all members answered the qualification questions, King announced that she believed several jurors were not Loving County residents and stated that they would “be held in contempt of court” and remanded to the local jail.

It was not until July 2022 that Plaintiffs received copies of the written orders. According to the orders issued by Judge King on May 25, 2022, the day of the general assembly qualification, each Plaintiff was found to have “refused to comply with th[e] court's order.” Ostensibly pursuant to Texas Government Code § 21.002(c), King charged each Plaintiff with “direct contempt” and remanded them to the local jail for 24 hours with a $100.00 fine. King later modified the orders to note a release of 5:00 P.M. on May 25, 2022. Whether King is entitled to judicial immunity for the contempt orders firstly requires an analysis of the four-factor judicial acts test.

Turning to the four-factor test, three of the factors have already been addressed and are the same as those for the general assembly qualification proceedings above. Therefore, only the judicial nature of citing for contempt remains to be considered.

It is generally well established that citing someone for contempt is an act normally performed by a judge. Judges normally and traditionally issue contempt citations in the same vein as they do arraignments, convictions, and sentences. So too do they order law enforcement to arrest and jail offenders in the courthouse setting.

Furthermore, judges such as justices of the peace are equipped with plentiful discretion to cite individuals for contempt. Plaintiffs do not assert that some provision or principle of law makes

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it incumbent upon justices of the peace to issue contempt orders for suspected perjury. Citations for contempt are typically “normal judicial functions.”

Additionally, the Texas Government Code expressly allocates to justices of the peace the ability to sentence an individual for contempt. King's contempt orders in this case cite to the relevant provision. With all of these considerations, King's act of ordering Plaintiffs be arrested for contempt of court may appear judicial.

But a predicament is present. The parties here dispute whether the Fifth Circuit case of Harper v. Merckle is applicable. In Harper , the Fifth Circuit encountered a plaintiff who visited a state judge's chambers to deliver a child support payment check to his former wife, a court employee. The judge met with the plaintiff, and after a brief conversation about where the plaintiff lived, asked from behind his secretary's desk for the plaintiff to raise his right hand to be sworn in. The plaintiff left the office, and the judge instructed a deputy to apprehend the plaintiff. The plaintiff, after leaving the courthouse on foot, was soon apprehended by bailiffs. The judge then initiated a “‘contempt proceeding' of sorts” against the plaintiff.

The court found that a judge's finding of contempt of an individual in a courthouse was not a “judicial act,” even though it was a “normal judicial function.” The Fifth Circuit carved out a narrow exception to the judicial act exception, holding that, “when it is beyond reasonable dispute that a judge has acted out of personal motivation and has used his judicial office as an offensive weapon to

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vindicate personal objectives, and it further appears certain that no party has invoked the judicial machinery for any purpose at all, then the judge's actions do not amount to ‘judicial acts.'”

Plaintiffs' contentions of conspiracy and malice appear to echo the holding in Harper , and Plaintiffs here beg the Court to find the instant case analogous to Harper . As Defendants note, the Fifth Circuit expressly cabined its holding, cautioning that it is “exceedingly narrow and . . . tailored to . . . the rarest of factual settings.” Additionally, Defendants cry that the instant case can be distinguished by the fact that the Harper plaintiff did not have the “expectation that judicial matters were at hand when he entered [the judge's] office on nonjudicial business.” In this case, Plaintiffs were summonsed to King's courthouse for the purported purpose of jury service. This may indicate to a reasonable person that they would encounter a judge in a judicial setting over a courthouse matter, even if the matter was involved a non-judicial act. Given Harper 's self-admonition against strict reliance upon it and the fact that it has since been afforded very little controlling weight, the undersigned finds it difficult to circumvent judicial immunity on this case alone.

Another case, however, could be considered Harper 's progenitor. In Zarcone v. Perry , a traffic court judge told a sheriff's deputy to purchase coffee from a coffee vendor. The deputy and judge tasted the coffee, concluding that it was “putrid.” The judge ordered the vendor to be handcuffed and brought to his court. At the following proceeding, the judge threatened to file criminal charges against the vendor for selling the “putrid” coffee. The judge furthermore subjected the vendor to twenty minutes of him “screaming at him, threatening him and his livelihood . . . and thoroughly scaring him.” The vendor was then brought in later for a similar encounter before the judge. On these facts, but without analysis, the United States Court of Appeals for the Second Circuit

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affirmed the denial of the judicial immunity defense and upheld a punitive damage jury award for his actions.

Most recently, the United States Court of Appeals for the Eighth Circuit declined to grant immunity to a judge for his actions. In Rockett v. Eighmy , the Eighth Circuit encountered a divorced couple who initially shared custody of their two children. One of the parents filed a case for sole custody in Missouri, before the judge-defendant. The children were instructed to live with the filing parent for a month before living with the other parent. The children were displeased with this situation and voiced their concerns within earshot of the judge-defendant. The judge-defendant tried to intervene, but after the children refused, he took them to a conference room and he scolded them. With the children continuing to protest, the judge-defendant personally escorted them to jail. The other parent sued the judge-defendant in relevant part for placing his children in jail. The judge-defendant claimed judicial immunity.

Relying on Harper and Zarcone , the Eighth Circuit became perhaps the third instance of a court finding a judge to be liable for “what would otherwise [have] be[en] a judicial act.” The court acknowledged a judge's general ability to order law enforcement to escort unruly litigants to jail and pull parties into a conference room. But the Eighth Circuit found the judge to have “crossed the line” when he “personally escorted the kids to jail, stood there while they removed their clothes and belongings, and personally came back an hour later to release them.” Even if the judge “could have ordered someone else to take the kids to jail, he could not put them there himself .” The judge's jailing of the children seemed all the more non-judicial because the children “were never parties,” “never

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stepped foot in the courtroom,” and the judge-defendant “personally locked them up himself.” The court could not locate a case to have extended judicial immunity “so far.”

Many a court have distinguished Harper and Zarcone , and few cases have found judicial immunity to be defeated on these grounds. This may appear to indicate that, as Defendants contend, the Harper - Zarcone doctrine is forever contained to only the three above cases. To the contrary, they are not. Most, if not all, of the cases distinguishing Harper and Zarcone do so expressly on the basis of the accused violator having encountered the aggrieved party on a legitimate, uncontrived premise. These cases place heavy emphasis on the judge's intent and motives. In effect, these cases explicitly recognize that Harper and Zarcone , while limited and narrow holdings, prescribe liability for those who would otherwise be immune where the alleged constitutional violations occurred as the result of a contrived set of circumstances not motivated by any legitimate objective, but rather by personal or political animus.

In this case, as the undersigned has concluded, Defendants are accused of just that- conjuring false pretenses for Plaintiffs' summons, all for the exclusive extra-judicial and illegitimate purpose of arresting them for aggravated perjury and to suppress their political freedoms. King in particular is alleged to have admitted to organizing the general assembly proceeding for the sole purpose of voter suppression. These facts detail such a unique and pernicious environment only in which illegitimate political attacks and the abuse of the judiciary and its offices could occur. With just the slightest legitimacy to Defendants' proceedings could they fall outside of the Harper - Zarcone

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exception. Here, however, Defendants do not even attempt to counter that the proceeding was legitimate, motivated by a genuine need to select a venire, or otherwise. To be sure, Harper was unique. But the Fifth Circuit has apparently not dealt with a case rising to the level of Harper since Harper itself. This alone is not a reason to permanently cabin the doctrine in light of its spread to other circuits.

Essentially, Harper and Zarcone established an unwritten exception to the general judicial acts exception: if an otherwise protected judicial act is so wrought with personal animus, and the judge exclusively uses his judicial office offensively for no other legitimate reason, the act is not judicial. As it has been alleged, Plaintiffs were brought to court for a sting operation from which they had no chance of escaping. The supposedly “direct contempt” orders were pre-drafted and Defendants summonsed Plaintiffs with the plan of arresting them for perjury before they even had the chance to perjure themselves. Most cases will be unlike this one: the claimant will have expected to be part of a legitimate judicial matter, the judge will have merely made a mistake, and/or the contempt finding will be ad hoc. Defendants' only argument to the contrary is, essentially, King had the authority to do it, and law enforcement had to follow her orders, so it cannot be questioned. But Harper and Zarcone exist for the purpose of encompassing those individuals who attempt to use their official offices as shields for their wholly wrongful conduct. In a different case on different facts, Defendants may very well be entitled to immunity for Plaintiffs' claims. In this one, however, they are not. King went “too far” and is not judicially immune for her non-judicial act.

King's general assembly qualification was a non-judicial act. And although ordering Plaintiffs' arrest for contempt might ordinarily be judicial, the extreme and unique nature of King's conduct brings it outside the realm of immunizing judicial acts. Neither King nor any other judge can weaponize the Texas judiciary to vindicate her personal political objectives by dressing all the

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proceedings in a robe of immunity. Therefore, King is not entitled to judicial immunity for either the qualification proceedings or the contempt orders. Accordingly, the undersigned RECOMMENDS that the Motion to Dismiss be DENIED as to judicial immunity for the general assembly proceedings and contempt orders.

ii. Complete Absence of All Jurisdiction

Should the Court conclude that King's courthouse activities were judicial, Plaintiffs' only recourse in the face of judicial immunity would be that the actions were taken without jurisdiction. A judge can only lose his immunity if an act that was otherwise judicial “occurred in the complete absence of all jurisdiction.” Thus, if King, as justice of the peace, “in the case of [qualifying a general assembly or] contempt . . ., had jurisdiction, [her] judgment cannot be impeached or inquired into [even if] the judge may have been influenced by wrong motives in rendering it.” The Court accordingly must determine whether King had “some subject-matter jurisdiction” to (1) hold the qualification proceedings and (2) issue the contempt orders.

“Where a court has some subject-matter jurisdiction, there is sufficient jurisdiction for immunity purposes.” The proper inquiry “is not whether the judge actually had jurisdiction, or even whether the court exceeded its jurisdictional authority, but whether the challenged actions were obviously taken outside the scope of the judge's power.” Thus, whether a judge has or does not have judicial immunity for actions taken in the complete absence of jurisdiction is a separate inquiry from whether a judge's actions should be reversed or vacated for want of subject matter

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jurisdiction. For immunity purposes, the scope of jurisdiction is to be “broadly construed to effectuate the policies of guaranteeing a disinterested and independent judicial decision-making process.” There is a distinction between “acts ‘in excess of jurisdiction,' for which immunity from civil liability applies[,] and acts taken in ‘the clear absence of all jurisdiction,' for which there is no legal protection.” An example of an act done in the “clear absence” of jurisdiction is a “probate judge who tries a criminal case,” while a “judge presiding over a criminal court” who “convict[s] a defendant of a non-existent crime” merely acts “in excess of his jurisdiction.” In any event, “[i]t is the [j]udge's actions alone, not intent, that . . . must [be] consider[ed].”

a. General Assembly/Venire

Plaintiffs argue that King lacked jurisdiction to conduct the general assembly proceedings. “The focus is not on whether a judge's specific act was proper or improper, but on whether the judge has the jurisdiction to perform an act of the kind performed.” Thus, the jurisdictional question with regards to qualification relates to King's authority or lack thereof in holding the general assembly proceeding and determining who is eligible for jury service.

The undersigned holds that King had some authority to hold the qualification proceeding or call a general assembly of potential jurors. The Texas Government Code empowers justices of the peace to qualify jurors to serve on jury panels. Thus, there is authority on the books for judges such as King to hold jury qualification proceedings.

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Further, § 62.015(a) of the Texas Government Code, cited by Defendants, provides that the judge shall select those names “if jury trials have been set.” While Plaintiffs imply in only a single instance that King's failure to “call a case that was set for trial” constituted error, Plaintiffs also note that King informed the Loving County Clerk “that she needed a jury for an upcoming trial.” These are seemingly contradictory allegations and need not be accepted in Plaintiffs' favor. Plaintiffs' pleadings offer no alternative factual allegations which may support their conclusion that King's general assembly qualification proceeding was clearly not statutorily authorized.

In any event, King's action in holding the proceeding was not “obviously taken outside the scope” of her power. She was allocated statutory authority to qualify potential jurors. To the extent that she was unable to qualify general assembly jurors, this modification would be but an excess of her authority to already qualify and determine the eligibility of jurors for jury service. She is undisputedly authorized to qualify a voir dire panel; while the judicial quality of that act may differ from that of a general assembly qualification, any difference in authorization is not so distinct as to make one conclude she has no authority to do the latter. The proceedings here, as Plaintiffs note, were “unprecedented,” so it is difficult to discern how this first-instance scenario suggests a clear or obvious absence of power. This is further amplified considering that the only meaningful difference between this circumstance and one which would likely be within King's authority is whether a jury trial had been set. If King was slightly in excess of her authority, as it would appear she was, the broad confines of judicial immunity would still encompass the general assembly actions.

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Therefore, Plaintiffs have not demonstrated that the extra-jurisdictional exception to judicial immunity applies to the general assembly proceedings. Accordingly, the exception does not apply to the general assembly conduct.

Plaintiffs' other minor argument must be rejected. They maintain that King's qualification hearing was an “election challenge.” It is not obvious to which argument in the Motion to Dismiss this refers. It is also unclear how King, who supposedly was running a conspiracy hellbent on punishing and imprisoning her political opponents, could have been “hearing an election challenge” by having Plaintiffs arrested for allegedly lying about their residency status in court. Further, this contention conflicts with Plaintiffs' other allegation that King refused to hear any argument from Plaintiffs before having them arrested for contempt, for she could not have been hearing and also refusing to hear argument at the same time. While Texas law does allocate only to district courts, and not justice courts, the initial authority to review election challenges, Plaintiffs allege no facts indicating that King was actually hearing an election challenge. Thus, Plaintiffs have not demonstrated that King lacked all subject matter jurisdiction in qualifying the general assembly or allegedly hearing an election challenge.

b. Contempt Orders

The second action Plaintiffs challenge as extra-jurisdictional is King's contempt orders. This conduct is most clearly within King's authority. Section 21.002 of the Texas Government Code permits justice courts to issue punishments for contempt. This punishment is “a fine of not more than $100 or confinement in the county or city jail for not more than three days, or both.” In this case, King purportedly remanded Plaintiffs to the county jail for one day at most, eventually instead

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releasing them that evening, and fined them $100.00 each. Under Texas law, King possesses the “power to hold a contempt hearing, find a person in contempt, and issue a sentence of confinement for contempt.” She allegedly did just that here. Whether it was all a ruse for other nefarious purposes is not part of this exception's inquiry. These allegations do not clear the ever-higher threshold of being in the complete absence of all jurisdiction.

Plaintiffs assert that the contempt orders were instead “prosecutions for perjury” during which King “act[ed] as the prosecutor, judge, and jury.” As impressive a statement as this is, Plaintiffs' contention can be reduced to one stating that King held them in contempt without due process. Specifically, Plaintiffs believe that the “perjury” prosecution “cannot provide a basis for contempt without due process.” Construing Plaintiffs' characterization of the contempt orders as “prosecutions for perjury,” the undersigned still finds that King had some subject matter jurisdiction to order Plaintiffs' arrests for contempt.

Defendants do not provide any statutory authority granting a justice of the peace jurisdiction to prosecute perjury charges. But Plaintiffs' argument is misplaced. Even if it is true that perjury cannot constitute contempt absent due process, the Fifth Circuit has held that insufficient due process is on its own not enough to uproot all jurisdiction in a given proceeding.

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In this case, Plaintiffs argue that due process was not given before they were cited for contempt or prosecuted for perjury. The undersigned has found above that justice courts are empowered to cite for contempt up to heretofore un-surpassed limits. Justice courts furthermore have express jurisdiction to issue contempt orders. To the extent some ambiguities exist, the Fifth Circuit's guidance sways the undersigned toward a broad interpretation of the justice court contempt power. Judicial immunity is not circumvented merely because King failed to observe procedural or statutory requirements in engaging in certain conduct. That any statutory authority grants King some tangible jurisdiction is all that is sufficient to invoke the protections of judicial immunity. Thus, King, in ordering Plaintiffs' arrest for contempt, even allegedly without due process, was acting within some feasible sense of her jurisdiction.

Therefore, Plaintiffs have not met their burden of showing that King was without authority to issue the contempt orders. Accordingly, the exception does not apply to this conduct.

Plaintiffs however have not met their burden of demonstrating that the qualification proceedings or contempt orders were conducted or made in the complete absence of all jurisdiction. As the Harper judicial act exception applies, however, King is still not entitled to absolute judicial immunity. Accordingly, the undersigned RECOMMENDS that the Motion to Dismiss be DENIED as to judicial immunity concerning the general assembly proceedings and contempt orders.

iii. Malice/Corruption Exception

In the event the Court concludes that King's courthouse activities were judicial acts, Plaintiffs appear to pose an end-run to their alleged exceptions to judicial immunity. Specifically, Plaintiffs litter their live Complaint with allegations of malice and conspiracy, suggesting that King's

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attempts to upend their political rights will overpower King's assertion of judicial immunity. This argument is unpersuasive.

As Defendants observe, “[a]llegations of bad faith, malice, or corruption do not overcome judicial immunity.” Nor do allegations of a far-flung conspiracy involving the judge. The only two possible pathways to circumvent the protections of judicial immunity are the aforementioned judicial act and clear absence of jurisdiction analyses. Furthermore, as Plaintiffs contend, King's contempt orders may have indeed been vacated on appeal. But this does not overcome the absolute judicial immunity afforded to judges for actions that are judicial and done with some tangible jurisdiction. Put simply, allegations of malice, corruption, or conspiracy are insufficient to remove a judge to a place outside the scope of the jurisdiction he otherwise enjoys.

In sum, Plaintiffs have met their burden of demonstrating that King's actions in qualifying a general assembly and issuing contempt orders were non-judicial. Therefore, the claims against King are not precluded by judicial immunity to the extent that they relate specifically to this conduct. Accordingly, the undersigned RECOMMENDS that the Motion to Dismiss be DENIED as to judicial immunity concerning the general assembly proceedings and contempt orders.

2. Quasi-Judicial Immunity: Sheriff Busse & Constable Jones

Defendants Busse and Jones also assert the defense of quasi-judicial immunity for the contempt orders and subsequent arrests.

Where a judge is absolutely immune from suit for judicial actions taken pursuant to their jurisdiction, quasi-judicial immunity “protects government officials who perform functions that

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require them to act in accordance with a judge's direct orders.” Quasi-judicial immunity thus protects the “quasi-judicial acts of government servants-official acts involving policy discretion but not . . . adjudication.” To deny this protection to government officials executing their orders “would render the officials lightning rods for harassing litigation aimed at judicial orders.” Further, government officials “should not be required to make the Hobson's choice between disobeying the court order or being haled into court to answer for damages.” “Enforcing a court order . . . is intrinsically associated with a judicial proceeding.” If the court's will could be challenged by threats of litigation against its officers, “the officers might neglect the execution of their sworn duties.” Where an official “charged with enforcing a facially valid” judicial order, such as police officers, sheriffs, and other court officers, executes it, judicial liability extends to him. Thus, courts routinely find that sheriffs and constables acting within their authority and enforcing facially valid orders are entitled to quasi-judicial immunity.

In this case, the undersigned finds that neither Busse nor Jones are entitled to quasi-judicial immunity. Because the undersigned concludes above that King's contempt orders were not judicial acts, Judge King is not entitled to judicial immunity. Since quasi-judicial immunity is a derivative immunity, Busse and Jones cannot enjoy any such immunity if King herself does not. The order that an officer executes “must be one for which the judge [herself] is absolutely immune from suit.” Accordingly, Busse and Jones as a matter of law are not entitled to judicial immunity.

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If the Court concludes that Judge King is entitled to judicial immunity for the contempt orders, further analysis is required. Plaintiffs allege that, at the qualification proceeding, a Sheriff's deputy acting “under the direction of Busse and the other Defendants” swore each prospective juror in. Following King's oral contempt and arrest orders minutes later, Defendant Jones and a Sheriff's deputy escorted Plaintiffs out of the room and ordered them to empty their pockets. Deputy Boyd then handcuffed Plaintiffs and drove them to the Winkler County jail. Defendants' primary assertion of quasi-judicial immunity therefore pertains to Busse's deputy and Jones, having personally arrested and searched Plaintiffs.

Busse and Jones are alleged to only have followed King's orders to arrest Plaintiffs for contempt. Certainly, transportation to the local jail would be part of these orders. Further, each of the contempt orders are facially valid-they cite the correct Texas Government Code contempt section, 21.002(c); remand each Plaintiff for less than the maximum of three days; and assign a fine of the statutory maximum of $100.00. This order calling for the arrest of individuals for contempt of and “disrespect” to the court, may appear to be a facially valid order for contempt. Therefore, if King herself is entitled to judicial immunity for the facially valid contempt orders, Busse and Jones would appear to be likewise entitled to quasi-judicial immunity for their actions in enforcing them.

However, the parties dispute whether the present allegations of conspiracy, or otherwise knowledge of the order's invalidity, alter the analysis. Plaintiffs claim that Busse and Jones' participation in the conspiracy, even if King herself is judicially immune, removes their own derivative immunity. Defendants, on the other hand, contend that sheriffs still have derivative

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judicial immunity for executing orders even though they might know “there was no legal cause for the writ of attachment.” Plaintiffs in turn allege that Busse and Jones “knew that King's order to arrest Plaintiffs was not valid.” Defendants claim the Fifth Circuit has rejected this approach.

The undersigned finds that, even if the Court believes that King is entitled to judicial immunity for her contempt and arrest orders, Defendants Busse and Jones are not entitled to quasi-judicial immunity for their role in the alleged conspiracy. To begin, Defendants are correct in their assertion that the cases Plaintiffs cite in support of their proposition that co-conspirators with a judge are not entitled to the same immunity the judge enjoys involve only private parties, not government officials.

However, Defendants' contention that the Fifth Circuit, in Mays v. Sudderth , forecloses Plaintiffs' argument is misplaced. Plaintiffs argue that, essentially, an order by a judge is not facially valid where its enforcers are aware that the order itself is invalid or are conspiring in its genesis. In Mays , the Fifth Circuit observed that the plaintiff failed to cite cases denying quasi-judicial immunity to “government officials complying with facially valid court orders.” The Fifth Circuit also found that the plaintiff made “no claim that [the sheriff] was in possession of any information that was not known by the judge” and that would have made the order appear facially invalid. Mays did not address directly whether knowledge or awareness of the legal baselessness of a judicial order would make it invalid. The Mays court instead opted to focus on the plaintiff's failure to provide authority for her position, and therefore the case does not support Defendants' position.

The undersigned has not located, and the parties have not provided, any binding authority explaining the confines of “facially valid” orders. A review of the case law from around the country

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reveals that most courts to touch on the issue might consider an enforcer's knowledge or awareness that a judicial order is without legal validity to make the legal document facially invalid. The undersigned has no reason, even considering Mays , to diverge from these other courts' implications.

Using this as a benchmark, the undersigned concludes that Plaintiffs' allegations make Defendants Busse and Jones unable to claim quasi-judicial immunity, even if Judge King herself enjoys the protection. Plaintiffs state multiple times throughout their Second Amended Complaint that Busse and Jones were aware of King's lack of jurisdiction or authority to not only conduct the general assembly proceedings, but also to issue the contempt and arrest orders. In particular, Plaintiffs allege that Busse and Jones were aware that the ground on which King was finding them in contempt-perjury for non-Loving County residency-was entirely fabricated and falsified. Moreover, Plaintiffs' assertion that Busse and Jones conspired with King pre-summons to arrest them for “aggravated perjury,” essentially regardless of the veracity of Plaintiffs' response, speaks to their knowledge that the contempt orders were a mere ruse. These allegations illustrate a picture of a hijacking of the judicial process for solely personal motives. It cannot be said at this stage that Busse and Jones were “just following orders” or were merely enforcing what otherwise reasonably appeared to be facially valid orders when Busse and Jones are alleged to have known that they were invalid.

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Plaintiffs have alleged sufficient facts either obviating King's own judicial immunity, or else divesting Busse and Jones of their own derivative immunity. Accordingly, the undersigned RECOMMENDS that the Motion to Dismiss be DENIED as to quasi-judicial immunity for Busse and Jones' arrests of Plaintiffs for contempt.

3. Qualified Immunity

In the alternative to judicial immunity, Defendants assert variously the defense of qualified immunity. Qualified immunity “shields government officials from ‘liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'” “Qualified immunity balances two important interests- the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” The doctrine applies to “all but the plainly incompetent or those who knowingly violate the law.” “Qualified immunity represents the norm,” so “courts should deny a defendant immunity only in rare circumstances.” Accordingly, the defense mostly protects “officials performing discretionary functions.”

In determining whether qualified immunity applies at the motion to dismiss stage, courts generally follow a two-step process, inquiring (1) “whether the facts that a plaintiff has alleged or shown make out a constitutional violation”; and (2) “whether the violation was objectively unreasonable in light of law that was clearly established at the time of the alleged misconduct.” “To defeat qualified immunity, a plaintiff must demonstrate that it would be clear to a reasonable

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officer that his conduct was unlawful in the situation he confronted.” To be “clearly established,” there must exist “controlling authority-or a robust consensus of persuasive authority-that defines the contours of the right in question with a high degree of particularity.”

The plaintiff ultimately has the burden to negate the assertion of qualified immunity.

i. Contempt Orders & Arrests

Defendants Busse and Jones assert qualified immunity for the arrests for contempt. In particular, they dispute only the second prong of qualified immunity concerning whether Plaintiffs have alleged a violation of a clearly established right.

“[L]aw enforcement officers have absolute immunity for enforcing the terms of a [facially valid] court order, but only qualified immunity of the manner in which they choose to enforce it.” Thus, “whether particular actions of government officials fit within a common-law tradition of absolute immunity, or only the more general standard of qualified immunity, [courts] have applied a functional approach, . . . which looks to the nature of the function performed, not the identity of the actor who performed it.” The undersigned believes Busse and Jones are not entitled to quasi-judicial immunity for King's conduct; therefore, this derivative immunity does not proscribe their liability for their method of enforcing the orders. Additionally, because the undersigned concludes that the contempt orders, being ancillary to Defendants' allegedly admitted conspiracy and plot against Plaintiffs, were facially invalid, on this reason alone, qualified immunity should not apply for the contempt arrests. The undersigned, however, will proceed with the analysis as though they are not facially invalid for this reason alone.

Plaintiffs bring three separate constitutional claims under the First, Fourth, and Fourteenth Amendments against Busse and Jones: (1) unreasonable search and seizure; (2) undue burden on the

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freedom of speech and association; and (3) violation of due process. To plead a § 1983 claim, Plaintiffs must allege facts showing that both Defendants violated the United States Constitution or federal law, and that Defendants were acting under color of state law while doing so. For these three constitutional claims, the parties agree that Busse and Jones were acting under color of their state law-provided authority as law enforcement officers. Thus, the qualified immunity defense turns on whether Plaintiffs allege facts demonstrating that they violated Plaintiffs' clearly established federal rights.

a. Fourth Amendment: Search and Seizure

Plaintiffs' search and seizure claim mentions in many places that they were arrested and searched without probable cause. These allegations appear therefore to assert a false or wrongful arrest claim. The Fourth Amendment, applied to the States through the Fourteenth Amendment, guarantees “the right of the people to be secure in their persons . . . against unreasonable searches and seizures . . . and [that] no [w]arrants shall issue, but upon probable cause.” For Plaintiffs to prevail on a Fourth Amendment unreasonable search-and-seizure or a false arrest claim, they must demonstrate that Defendants lacked an arguable probable cause for their arrest. “The Supreme Court has defined probable cause as the ‘facts and circumstances within the officer's knowledge that are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense.'” Qualified immunity will shield law enforcement from suit for wrongful arrest if “a reasonable officer could have believed the arrest at issue to be lawful, in light of clearly established law and the information the arresting officers possessed. Even law enforcement officials who

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reasonably but mistakenly conclude that probable cause is present are entitled to immunity.” Thus, “[i]f officers of reasonable competence could disagree” on whether probable cause was present, “immunity should be recognized.” This is because law enforcement is inherently expected to abide by orders of the presiding judge, for to do otherwise would be to act as a “pseudo-appellate court.”

Here, viewing the factual allegations in the light most favorable to Plaintiffs, the undersigned finds that Busse and Jones are not entitled to qualified immunity for the Fourth Amendment claim. Plaintiffs assert that, after King ordered their arrests for contempt, Jones and a Sheriff's deputy escorted them out of the meeting room and into a hallway, searched them, detained them, and transported them to jail. Assuming the warrant was otherwise facially valid, there is no case in the Fifth Circuit case directly addressing whether law enforcement's compliance with an arrest order by a presiding judge indicates probable cause. The undersigned therefore turns to other courts for guidance.

Probable cause can exist when law enforcement officers follow a judicial officer's order to arrest. Indeed, an oral order to arrest a present individual for contempt of court “is analogous to a court issued arrest warrant and raises a presumption of probable cause.” So too is the finding of contempt, as it is “the equivalent of an indictment.” In this scenario, where the contempt orders are presumed facially valid, only if the Plaintiffs demonstrate that the orders were “improperly procured by the arresting officer” can the probable cause presumption be rebutted.

In this case, the undersigned concludes that Plaintiffs meet their burden of demonstrating that the arrest was in contravention of their clearly established rights. Conducting an arrest without

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probable cause certainly presents a potential constitutional violation. Yet as Defendants focus the majority of their arguments on the “clearly established” prong of qualified immunity, Defendants' arguments appear to myopically examine the requirement. Satisfaction of this prong is not to be pleaded so narrowly that every issue would present a new case or so broadly that every conceivable case would have precedential support. Rather, the right is to be defined at instead a higher level so that precedent can still be established.

Thus, Plaintiffs possess the burden of pointing to some case law or other authority indicating that defines the contours of their alleged right with a high degree of particularity. That right is best framed here as the right of a summonsed individual to be free from arrest for contempt of court by law enforcement without probable cause even if the presiding judge orders said arrest.

In this case, Plaintiffs have alleged sufficient facts demonstrating that Busse and Jones violated clearly established law. It is clearly established that arrests for contempt must be made with probable cause, as noted above. If Plaintiffs had only alleged that Busse and Jones followed King's order to arrest them, perhaps the requisite probable cause would exist and Plaintiffs would fail at this stage. Indeed, several courts have concluded or implied that a bailiff or other judicial officer following a presiding judge's order to remove or arrest individuals based on contempt does not pose a constitutional threat.

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But there is more to this case. Jones and the Sheriff's deputy allegedly “witnessed” King admonished all the summonsed jurors from being dishonest about their residency status in Loving County. They also reportedly witnessed King ask them the residency questions, the answers to which King found incorrect and thereafter ordered Plaintiffs arrested for contempt. Even though Texas law permits perjury as a basis of contempt of court, the Constitution still requires probable cause.

Plaintiffs also assert, however, that Busse was personally aware that “persons who stay overnight in Loving County at least ‘a week or two' a year could be eligible to vote in Loving County.” If these allegations presumed true, the analysis changes significantly. Taken together with Plaintiffs' allegations that they “regularly stay” in Loving County every night, it can be inferred that Busse should have been aware that there was no probable cause to arrest Plaintiffs for “perjury” based on their residency status in Loving County. Busse and his deputy, Deputy Boyd, were in the courtroom at the time of the arrests, and Busse's deputies apparently had “advance notice of the arrests.” Additionally, King's contempt orders were presented to her for immediate signature after King ordered their arrests. These allegations together indicate that Busse should have known that Plaintiffs did not perjure themselves by affirmatively answering King's residency question. Yet, Busse allowed the baseless arrests to occur. Busse's conduct in allowing arrests knowingly devoid of probable cause to occur violated Plaintiffs' Fourth Amendment clearly established rights to be free from such arrests.

Jones is also without qualified immunity. Jones in this case is alleged to have discussed a plan with King to arrest Plaintiffs ahead of time for “aggravated perjury.” Some conspiration in this plot is buttressed by Jones' father who, at the meeting room just before the arrests, asked Plaintiff Carr if he thought he was “getting what he deserved.” Following the arrests, Jones allegedly

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conferred with King and Busse. During this conversation, Jones allegedly covered up his body camera and “obscure[ed] both video and audio recording.” These allegations illustrate a premeditated plot to arrest Plaintiffs, one of which Jones was aware possessed little legal basis. It appears that Jones knew that any violation of Plaintiffs' Fourth Amendment or other rights would be illegal and unsubstantiated. Because the undersigned concludes elsewhere that Plaintiffs have alleged a violation of their Fourth Amendment rights, it can also be said that Jones' alleged participation in the arrests precludes his own qualified immunity.

As a last resort, Defendants also assert that Sheriff Busse cannot be held liable in his individual capacity for these alleged violations since he was not alleged to have been personally present. It is true that Plaintiffs only contend that Sheriff Busse's deputies participated in their arrests, not Busse himself. “An official cannot be held liable in his individual capacity merely because a subordinate committed some constitutional violation; [§] 1983 does not impose vicarious or respondeat-superior liability.” If the supervisor was not involved in his subordinate's actions, he cannot be personally liable. Thus, a defendant must either be “personally involved in the constitutional violation” by affirmatively participating in it or commit “acts that are causally connected to the constitutional violation alleged.” In the law enforcement context, a plaintiff can alternatively make this showing by alleging that the officer implemented policies that caused the alleged constitutional injury.

In this case, Plaintiffs' arrest-related allegations against Sheriff Busse fail. In their briefings, Plaintiffs do note that Busse stood by and watched “his deputies . . . carry out an arrest that he knew

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to be unlawful.” However, the live complaint and the Response are devoid of factual allegations indicating that Busse himself was present for the qualification proceedings. This single-line diktat is insufficient to demonstrate Busse participated in Plaintiffs' arrest. Therefore, there are insufficient factual allegations to impute liability to Busse for personally participating in the arresting conduct of his deputies.

On a different note, Busse, as the undersigned concludes elsewhere, is alleged to have committed multiple acts that are causally connected to the alleged constitutional violation. For example, Busse allegedly conspired with King and Jones to arrest Plaintiffs, was aware that the contempt orders lacked probable cause and were unconstitutional, and could have but refused to prevent their arrests. If Busse and his deputies had not conspired, even if Busse had still appeared at the general assembly proceeding, he could have prevented Plaintiffs' arrests from occurring without probable cause. Therefore, Busse is sufficiently alleged to have participated in the unconstitutional conduct at the general assembly proceeding.

Simply put, it is clearly established that law enforcement cannot arrest individuals in a courthouse for contempt without probable cause. Accordingly, the undersigned RECOMMENDS that the Motion to Dismiss be DENIED as to the arrest-related Fourth Amendment claims against Jones and Busse on the basis of qualified immunity.

b. Fourteenth Amendment: Due Process

Plaintiffs complain that the contempt arrests by Defendants violated their due process rights under the Fourteenth Amendment. Plaintiffs contend that due process required notice and reasonable opportunities to defend against or explain the allegations, retain counsel, testify, call witnesses, and present evidence. Plaintiffs assert that they were deprived of their liberty without due process when they were arrested for contempt during the jury qualification proceedings. Defendants do not

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expressly dispute the existence of a due process violation as to the arrests. But to determine whether Defendants violated Plaintiffs' clearly established rights, an inquiry into the due process required for contempt is necessary.

In the qualified immunity analysis, the undersigned first must determine whether Plaintiffs have alleged a violation of a clearly established constitutional right. The Fourteenth Amendment prevents states from depriving individuals of “life, liberty, or property, without due process of law.” In answering procedural due process questions, courts make two determinations. First, the court determines “whether there exists a liberty or property interest which has been interfered with by the State.” Second, if so, the court considers “whether the procedures attendant upon that deprivation were constitutionally sufficient.”

“Procedural due process rules are meant to protect persons not from the deprivation, but from the mistaken or unjustified deprivation of life, liberty, or property.” These rules are “shaped by the risk of error inherent in the truth-finding process.” The fundamental test of whether the process provided was constitutionally sufficient is the “opportunity to be heard at a meaningful time and in a meaningful manner.” “A meaningful time” typically means “prior to the deprivation of the liberty or property right at issue.”

At the first step, the undersigned concludes that Plaintiffs sufficiently allege an interference with their liberty interests. Plaintiffs imply a liberty interest in being free from an unjustified arrest for contempt.

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In Texas, “[c]ontempt proceedings are quasi-criminal in nature, and the contemnor is entitled to procedural due process throughout the proceedings.” Depending on the form of contempt charged, certain particular procedural safeguards may be required. Although Texas judges are given all authority needed to exercise their jurisdiction and enforce their lawful orders, “that power does not include the power to violate a party's due process rights.” Alleged violations of procedural due process guarantees-even in contempt proceedings-can be asserted under the Fourteenth Amendment. Therefore, Plaintiffs' qualms about due process in the face of a contempt hearing prior to their citation present a liberty interest protected under the Fourteenth Amendment.

As to the second step, the undersigned concludes that Plaintiffs have sufficiently alleged they were indeed deprived of procedural due process when their liberty interests were interfered with. If the Court recognizes a liberty interest in the contempt order and subsequent arrest, the below analysis applies, for the alleged justification for finding Plaintiffs in contempt is their supposed non-residency. The primary question at this stage, with a liberty interest sufficiently implicated, is what and how much procedural due process was required before Plaintiffs were arrested.

The undersigned begins with the contempt orders. In Texas, contempts of court are labeled as either “direct or constructive.” Direct contempt involves “words spoken or acts done in the presence of the court or in open court,” whereas constructive contempt involves acts occurring outside the court. The contemnor's rights and the process due are “substantially different” under the

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two doctrines: direct contempt typically does not require immediate procedural safeguards prior to addressing the contempt.

Direct contempt oftentimes warrants summary contempt findings. Thus, fewer procedural safeguards are afforded when one is charged with direct contempt. Those charged with criminal constructive contempt, however, “are entitled to full criminal process,” including the right to counsel, adequate notice, public trial, and several other constitutional guarantees such as the burden of proving guilt beyond a reasonable doubt. Indeed, the Supreme Court has outlined these protections:

Except for a narrowly limited category of contempts, due process of law . . . requires that one charged with contempt of court be advised of the charges against him, have a reasonable opportunity to meet them by way of defense or explanation, have the right to be represented by counsel, and have a chance to testify and call other witnesses in his behalf, either by way of defense or explanation.

Texas judges are not required to give accused direct contemnors “counsel and a hearing” prior to committing them for direct contempt. Nor are they required to demonstrate by affidavit, notice, or rule to show cause. What an alleged direct contemnor has no right to, therefore, is counsel.

Direct contemnors are to receive neither notice nor a hearing because “there is no factual dispute arising from contemptuous behavior that occurs in the court's presence.” The key term here, and the basis for much of this lawsuit, is “no factual dispute.” Plaintiffs argue that there was a dispute as to the factual foundation for the direct contempt adjudication. They furthermore maintain

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that the “direct contempt” finding is just a ruse for any actual contempt, implying that it is but a mere method to circumvent the due process requirements of constructive contempt. If there was a factual dispute, it may be possible that traditional direct contempt requirements would not apply. In this case, judging by the written contempt orders, Plaintiffs were seemingly charged with the former, as each was found to be in “direct contempt.” The question at this stage, therefore, is whether Plaintiffs have met their burden of showing that the “direct contempt” label is nothing but a misnomer.

In this case, there is disagreement as to whether the “act” King accused Plaintiffs of making actually occurred at all. The extent of the process due depends on whether Plaintiffs were accused of direct or constructive contempt, which as noted depends on the allegedly contemptuous act. Federal courts have given guidance in making this determination. Specifically, the “nature” of the contempt finding is to be considered, not necessarily the label. If the court's determination of facts “occurred outside the court proceedings,” the contempt will have been constructive, requiring all the necessary procedural safeguards. Meanwhile, if the contemptuous acts did not occur in the presence of the court or the public, the contempt will have been direct, necessitating relatively minimal safeguards.

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In this case, the undersigned concludes that, viewing the facts in favor of Plaintiffs, the contempt orders were based on constructive contempt. Alternatively, the undersigned would find that the orders were not clearly based on direct contempt such that summary punishment was mandatory. At this stage, it is unknown whether King was personally aware of all essential facts to determine whether Plaintiffs would be in contempt. King's alleged and undisputed statements at the qualification proceeding suggest that Plaintiffs were found in contempt because they supposedly lied to King about their residency status. Contrariwise, Plaintiffs exclaim that King knew that Plaintiffs were all residents of Loving County. If these facts are presumed true, Plaintiffs will have not committed any act, whether out-of- or in King's court, for contempt. Plaintiffs also allege that, as part of the plot, Defendant Jones had decided to arrest Plaintiffs for “aggravated perjury” even before the proceedings in which Plaintiffs had the opportunity to perjure themselves. This would suggest that Jones and company had concluded Plaintiffs perjured themselves based on out-of-court statements. In the case of mistaken contempt, utilizing the narrow construction for summary contempt punishment would lead the undersigned to conclude that King's act-less contempt should have precipitated full due process. In other words, King's contempt finding as alleged fits more along the lines of constructive, out-of-court or mistaken contempt, instead of direct contempt. In the case of constructive contempt, therefore, full due process was warranted.

Even if it is presumed that King had reason to believe Plaintiffs were indeed lying about their residency, thereby potentially warranting a direct contempt finding, the undersigned finds that, viewing all facts in Plaintiffs' favor, summary punishment was unwarranted. Summary punishment power for contempt must be given a “narrow construction because it provides for punishment

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without affording the accused the normal safeguards surrounding criminal prosecutions.” Summary punishment in Texas is the result of a convergence of the court's observance of “the conduct and the exigency of the situation.” Thus, in Texas, even a “finding of direct contempt does not automatically justify summary punishment of the contemnor.” Texas law constricts direct contempt summary punishment even further when there is no exigent circumstance warranting the circumvention of traditional full due process. Such exigent circumstances include the immediate need to “to quell disruption, violence, disrespect or physical abuse by those in the courtroom and to maintain respect for the court.”

In this case, Plaintiffs allege the qualification proceeding occurred without disruption, and that they were not threatening any King court personnel or direct court orders. Though King exclaimed that Plaintiffs' alleged perjury was “disrespect” to the court, Defendants do not assert that there was an extant need to immediately suppress any such perjury. Plaintiffs, according to the live complaint, had already answered the formulaic list of questions surrounding their eligibility for jury service in the affirmative. It is hardly conceivable how even obvious dishonesty in suggesting that one is a resident of Loving County when he is not would strike so severe to court decorum that it would warrant immediate summary punishment. Without an exigent circumstance, even if Plaintiffs committed direct contempt, King's authority to summarily punish for contempt would have been vanquished.

Defendants implore the Court to accept the following proposition: a judge can summon individuals to her courthouse. She can “know” of disputed facts such as residency status and ask the individuals to state their beliefs as to their residency. She then finds them in direct contempt, and

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summarily sentences and fines them. Then the individuals, having been found in direct contempt and unable to present or defend their statements, are entirely without recourse. As explained above, this cannot be.

Plaintiffs have alleged sufficient facts demonstrating a right to full procedural due process prior to being held in contempt of King's court during the qualification proceeding. As a result, Plaintiffs were at the very least entitled to prepare defenses and explain their positions. Yet they were not provided with the opportunity to do so. The right to procedural due process in cases of constructive contempt, or direct contempt outside exigent circumstances, is clearly established and beyond debate considering the plethora of case law cited by the undersigned. No reasonable law enforcement officer would believe that a constructive contempt or direct contempt not involving an exigency would permit them to arrest the accused contemnor without any meaningful way to explain their answers concerning their residency status. Therefore, Plaintiffs' allegations adequately present a due process violation under the Fourteenth Amendment.

The undersigned holds that Plaintiffs have properly alleged facts demonstrating a violation of the clearly established right to due process. Accordingly, the undersigned RECOMMENDS that the Motion to Dismiss be DENIED as to the contempt- and arrest-based Fourteenth Amendment claims against Jones and Busse on the basis of qualified immunity.

c. First Amendment: Speech and Association

Plaintiffs assert that the contempt orders and subsequent arrests violated their freedoms of speech and association as guaranteed by the First Amendment. The First Amendment, incorporated

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to the States via the Fourteenth Amendment, provides: “Congress shall make no law . . . abridging the freedom of speech, . . . or the right of the people peaceably to assemble.”

The First Amendment, which includes the freedom to associate politically as well as the freedom to speak and the rights to vote and support or oppose one's chosen candidate, is perhaps the genesis of Plaintiffs' constitutional claims in this suit. It “protects the right of an individual to speak freely, to advocate ideas, [and] to associate with others.” “The Supreme Court has also recognized two types of associational rights protected by the Constitution.” One is the “choice to enter into and maintain certain human relationships,” while the other is the “right to associate for the purposes of engaging in other activities protected by the First Amendment, such as speech, assembly, and the exercise of religion.” This latter group includes the “freedom to associate with others for the common advancement of political beliefs and ideas.” However, there is no “generalized right of social association.” Nevertheless, political associations qualify as protected speech under the First Amendment.

Where a First Amendment claim arises out of an allegedly unlawful arrest, the claim generally requires, much like with the Fourth Amendment, the absence of probable cause to support the arrest. But in the case of “retaliatory arrests,” which Plaintiffs may appear to assert, there is no such requirement to demonstrate the absence of probable cause. In this case, as discussed above, Plaintiffs have sufficiently alleged facts to indicate that their arrests were conducted in the absence of probable cause. Additionally, Plaintiffs contend at various points throughout their live Complaint that Defendants only conducted these unjustified arrests to retaliate against them and impede their

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political speech, which happen to be diametrically opposed to Defendants' own positions. Specifically, that Jones planned to have Plaintiffs arrested for “aggravated perjury” and King herself concocted the proceeding in which Busse and Jones participated for the sole purpose of “voter suppression” illustrate the retaliatory nature of the arrests. Defendants' failure to drum up sufficient probable cause further speaks to their illicit activities. Utilizing any statutory authority that allows for arrests for contempt, summons a general assembly, or otherwise for a retaliatory purpose in contravention of the First Amendment is a clearly established right, and has been so for some time. Therefore, because Plaintiffs have sufficiently shown that the freedom from unjustified arrests for political speech is clearly established, Plaintiffs have also pleaded a First Amendment violation.

The undersigned concludes that Plaintiffs have demonstrated that Jones and Busse's conduct violated their clearly established right to be free from unjustified arrests for political speech. Therefore, Jones and Busse are not entitled to qualified immunity. Accordingly, the undersigned RECOMMENDS that the Motion to Dismiss be DENIED as to the arrest-related First Amendment claims against Jones and Busse on the basis of qualified immunity.

ii. Removal from Eligible Juror List

As to Plaintiffs' other activities claims, the undersigned begins with their alleged removal from the eligible juror list, which they claim violated their Fourteenth and First Amendment rights. Plaintiffs claim that they were deprived of the liberty to “serve on juries in Loving County” when King “caused Plaintiffs to be removed from the list of eligible jurors” by sending a post-qualification

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email to the Loving County Clerk. Defendants do not substantively dispute whether King afforded Plaintiffs sufficient due process in sending the email or impeded their First Amendment rights, mostly focusing on causation, whether King had the authority to cause the result Plaintiffs allege, and whether Plaintiffs' claimed right is constitutionally recognized.

a. Causation & Authority

As a preliminary matter, the undersigned rebuffs Defendants' argument that Plaintiffs failed to explain how King's alleged email could cause Plaintiffs to be removed from the jury wheel for future jury service. In a suit alleging individual liability for a government official who violates constitutional rights, a plaintiff must assert “but-for” causation. Defendants, in arguing that causation does not exist, concede that justices of the peace, like King, have no authority to compile the “list of persons eligible for jury service.” But this is precisely Plaintiffs' point. King, even though she had no authority to alter the juror rolls, still engaged in acts which led to such a result. If Defendants' circular argument-that an individual alleged to do an act could not have done the act because they were without authority to do so-were accepted, no ultra vires claim would ever be able to stand.

Speaking of ultra vires , Defendants also argue that causation likely does not exist because King had no authority to produce the results Plaintiffs allege she did. The ultra vires exception is worth considering. Where an actor engages in constitutionally violative conduct outside of his authority-an ultra vires action-qualified immunity does not shield him unless he had discretion to do so. Defendants' concession that King lacked any authority to remove Plaintiffs from the Loving

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County juror roll but did so regardless would seem to obviate qualified im