Yesterday, the U.S. Fifth Circuit issued an interesting judgment raising issues of appellate jurisdiction and standing: Jackson Municipal Airport Authority v. Harkins, No. 21-60321 (5th Cir. May 10, 2023).
First, the jurisdictional issue. The plaintiffs included members of the Board of Commissioners of the Jackson Municipal Airport Authority, whose positions would be eliminated by legislation passed by the Mississippi legislature, referred to as SB 2162. The underlying case is a constitutional challenge to that legisllation. The commissioners subpoenaed documents fro certain non-party legislators who participated in SB 2162’s drafting and passage. The legislators refused to produce the documents, claiming legislative privilege. The magistrate judge and the district judge ordered the legislators to produce a privilege log. Had they stopped there, the order would have been non-appealable. But the jurisdictional issue arose because the magistrate judge also found “that to the extend documents or information otherwise protected by legislative privilege have been shared by third parties, the privilege has been waived.” The next sentence order the legislators to “produce those documents.”
In a fractured opinion, Judges Elrod and Duncan held that the Fifth Circuit had appellate jurisdiction. They followed Fifth Circuit precedent holding that a discovery order may be appealable when (1) a governmental privilege is involved, and (2) the government is not a party to the lawsuit. Judges Elrod and Duncan further interpreted the magistrate judge’s order as compelling production of documents that had been shared with third parties.
On the jurisdictional issue, Judge Dennis dissented. He did not disagree with the law followed by Judges Elrod and Duncan. But he disagreed with their interpretation of the magistrate judge’s order. In short, he interpreted the order as requiring only the production of a privilege log, not production of any documents over which the legislators claimed a privilege.
The standing issue—whether the commissioners had any standing to sue in the first place—produced a different lineup: Judge Dennis joined Judge Elrod’s holding that the commissioners had standing, with Judge Duncan dissenting. Judges Elrod and Dennis concluded that the commissioners had standing because they stood to lose their position, along with its benefits, as SB 2162 would abolish the body on which they served as commissioners. In dissent, Judge Duncan reasoned that the commissoiners’ loss of perks—such as “the right to expense the City of Jackson for a New York Strip or a trip to Vegas”—did not give them standing because they would not lose “something to which they personally are entitled ....” He also said that the Elrod–Dennis majority’s judgment “puts our circuit out of step with at least three others,” citing decisions of the Third, D.C., and Tenth Circuits.
Hat tip to Tad Bartlett at Take the Fifth.