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Before DENNIS, OWEN, and SOUTHWICK, Circuit Judges.
VACATED and DISMISSED. (July 8, 2019).
Judge DENNIS dissented.
Organizers in Hearne, Texas circulated an initiative petition to force a forensic audit of the City’s finances. Under the City’s charter, a petition, after being signed by a required number of voters, is submitted to the City. At that point, a designated City administrator has fifteen days to transmit the petition to the city council. Within ten days of receiving the petition, the City Council may adopt the measure the petition demands or send it to an election. Milton Johnson, an organizer of the petition here, submitted the petition to the City’s clerk in March 2016. Johnson alleged the City’s policy was to have the clerk forward petitions to the county elections administrator for verification of the required signatures. Here, though, he claimed the City Attorney Bryan Russ obtained the signature pages to prevent their delivery to the county elections administrator in an effort to keep the initiative from appearing on a ballot. The City Council, in challenge to the validity of Johnson’s petition, filed a lawsuit against Johnson in Texas state court. Along with his answer to the City’s suit, Johnson filed a third-party complaint against Russ and his law firm under 42 U.S.C. § 1983. Russ removed the suit to Federal Court. The City and Johnson subsequently settled their dispute. Johnson’s claims against the law firm were dismissed for failure to state a claim. The only surviving dispute was Johnson’s § 1983 claim against Russ. Russ moved for summary judgment based on qualified immunity. That motion was denied. Russ appealed. Recalling that Johnson’s allegations were that Russ violated his “First Amendment right to petition for redress of grievances as well as his Fourteenth Amendment right to equal protection,” a panel majority of the Fifth Circuit declines to reach the merits of Russ’s qualified immunity defense. The majority finds that Johnson lacks standing to assert either. The majority reasons that Johnson asserted merely a “procedural injury” claiming violation of “a procedural right in vacuo,” and for that reason his injury was insufficiently concrete to confer standing. A dissent explains that instead of deciding whether the alleged mishandling violates the Constitution, the majority incorrectly determines that Johnson lacked a sufficiently concrete injury-in-fact to pursue his claims of constitutional violation. The dissent believes that the majority’s use of the “procedural injury” concept here is mistaken and that Johnson had demonstrated an injury-in-fact.
On Appeal from the United States District Court for the Western District of Texas (Robert L. Pitman).
Attorney for Appellant – Eric Clayton Farrar, Houston, TX
Attorney for Appellee – Ty Clevenger, Brooklyn, NY