James L. Dennis
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James L. Dennis (born January 9, 1936) is an American lawyer, jurist, and former politician serving as a senior
United States circuit judge In the United States, federal judges are judges who serve on courts established under Article Three of the U.S. Constitution. They include the chief justice and the associate justices of the U.S. Supreme Court, the circuit judges of the U.S. ...
of the
United States Court of Appeals for the Fifth Circuit The United States Court of Appeals for the Fifth Circuit (in case citations, 5th Cir.) is a federal court with appellate jurisdiction over the district courts in the following federal judicial districts: * Eastern District of Louisiana * M ...
, with chambers in
New Orleans New Orleans ( , ,New Orleans
,
Louisiana Louisiana , group=pronunciation (French: ''La Louisiane'') is a state in the Deep South and South Central regions of the United States. It is the 20th-smallest by area and the 25th most populous of the 50 U.S. states. Louisiana is borde ...
.


Early life and education

Born in Monroe in
Ouachita Parish Ouachita Parish (French: ''Paroisse d'Ouachita'') is located in the northern part of the U.S. state of Louisiana. As of the 2020 census, the population was 160,368. The parish seat is Monroe. The parish was formed in 1807. Ouachita Parish i ...
,
Louisiana Louisiana , group=pronunciation (French: ''La Louisiane'') is a state in the Deep South and South Central regions of the United States. It is the 20th-smallest by area and the 25th most populous of the 50 U.S. states. Louisiana is borde ...
, to Jenner Leon Dennis (1901–1970) and the former Hope Taylor, Dennis served in the
United States Army The United States Army (USA) is the land warfare, land military branch, service branch of the United States Armed Forces. It is one of the eight Uniformed services of the United States, U.S. uniformed services, and is designated as the Army o ...
from 1955 to 1957 and was affiliated with the American Legion. In 1959, he received a
Bachelor of Arts Bachelor of arts (BA or AB; from the Latin ', ', or ') is a bachelor's degree awarded for an undergraduate program in the arts, or, in some cases, other disciplines. A Bachelor of Arts degree course is generally completed in three or four year ...
degree from
Louisiana Tech University Louisiana Tech University (Louisiana Tech, La. Tech, or simply Tech) is a public research university in Ruston, Louisiana. It is part of the University of Louisiana System and classified among "R2: Doctoral Universities – High research acti ...
in Ruston. In 1962, he obtained a Juris Doctor from the Paul M. Hebert Law Center in Baton Rouge. In 1984, he earned a
Master of Laws A Master of Laws (M.L. or LL.M.; Latin: ' or ') is an advanced postgraduate academic degree, pursued by those either holding an undergraduate academic law degree, a professional law degree, or an undergraduate degree in a related subject. In mos ...
from the University of Virginia School of Law in
Charlottesville Charlottesville, colloquially known as C'ville, is an independent city in the Commonwealth of Virginia. It is the county seat of Albemarle County, which surrounds the city, though the two are separate legal entities. It is named after Queen Ch ...
,
Virginia Virginia, officially the Commonwealth of Virginia, is a state in the Mid-Atlantic and Southeastern regions of the United States, between the Atlantic Coast and the Appalachian Mountains. The geography and climate of the Commonwealth ar ...
. He was named to the
Order of the Coif The Order of the Coif is an honor society for United States law school graduates. The name is a reference to the ancient English order of advocates, the serjeants-at-law, whose courtroom attire included a coif—a white lawn or silk skullcap, whi ...
.


Career

From 1962 to 1972, he worked in private practice with the law firm of Hudson, Potts & Bernstein in Monroe, Louisiana. He served as a member of the Louisiana House of Representatives from 1968 to 1972. He was succeeded in that position by his fellow
Democrat Democrat, Democrats, or Democratic may refer to: Politics *A proponent of democracy, or democratic government; a form of government involving rule by the people. *A member of a Democratic Party: **Democratic Party (United States) (D) **Democratic ...
-turned-
Republican Republican can refer to: Political ideology * An advocate of a republic, a type of government that is not a monarchy or dictatorship, and is usually associated with the rule of law. ** Republicanism, the ideology in support of republics or agains ...
, John C. Ensminger, a Monroe businessman.


State judicial service

Dennis became a judge on the Fourth Judicial District Court of Louisiana, based in Monroe and served for two years from 1972 to 1974. He then served on the Louisiana Circuit Court of Appeal for the Second Circuit, based in Shreveport, from 1974 to 1975. From 1975 to 1995, he was an associate justice of the seven-member Louisiana Supreme Court.


Federal judicial service

On January 31, 1995, Dennis was nominated by President
Bill Clinton William Jefferson Clinton ( né Blythe III; born August 19, 1946) is an American politician who served as the 42nd president of the United States from 1993 to 2001. He previously served as governor of Arkansas from 1979 to 1981 and agai ...
to a seat on the
United States Court of Appeals for the Fifth Circuit The United States Court of Appeals for the Fifth Circuit (in case citations, 5th Cir.) is a federal court with appellate jurisdiction over the district courts in the following federal judicial districts: * Eastern District of Louisiana * M ...
vacated by Charles Clark. Dennis was confirmed by the
United States Senate The United States Senate is the upper chamber of the United States Congress, with the House of Representatives being the lower chamber. Together they compose the national bicameral legislature of the United States. The composition and pow ...
on September 28, 1995, and received his commission on October 2, 1995. Dennis will assume senior status when his successor is confirmed by the Senate. He assumed
senior status Senior status is a form of semi- retirement for United States federal judges. To qualify, a judge in the federal court system must be at least 65 years old, and the sum of the judge's age and years of service as a federal judge must be at leas ...
on December 16, 2022. Dennis is a liberal, and has been criticized by his conservative colleagues
Edith Jones Edith Hollan Jones (born April 7, 1949) is a United States circuit judge and the former chief judge of the United States Court of Appeals for the Fifth Circuit. Jones was nominated by President Ronald Reagan on February 27, 1985, to a new seat ...
and
Edith Brown Clement Edith "Joy" Brown Clement (born April 29, 1948) is a Senior United States circuit judge of the United States Court of Appeals for the Fifth Circuit, based in New Orleans, Louisiana. Background Clement was born in Birmingham, Alabama, the daug ...
. Dennis's former law clerks include
John Bel Edwards John Bel Edwards (born September 16, 1966) is an American politician and attorney serving as the 56th governor of Louisiana since 2016. A member of the Democratic Party, he previously served as the Democratic leader of the Louisiana House of ...
, the 56th and current governor of Louisiana, and Harlin D. Hale, the current chief judge of the
United States Bankruptcy Court United States bankruptcy courts are courts created under Article I of the United States Constitution. The current system of bankruptcy courts was created by the United States Congress in 1978, effective April 1, 1984. United States bankruptcy c ...
for the Northern District of Texas.


Notable cases


Abortion

In 2014, Dennis wrote a 62-page dissent when the 5th Circuit denied an en banc rehearing for a Texas abortion law, which a 3 judge panel had upheld. The 5th Circuit was overturned by the Supreme Court in
Whole Woman's Health v. Hellerstedt ''Whole Woman's Health v. Hellerstedt'', 579 U.S. 582 (2016), was a landmark decision of the US Supreme Court decided on June 27, 2016. The Court ruled 5–3 that Texas cannot place restrictions on the delivery of abortion services that create a ...
in 2016. On January 18, 2019, in '' June Medical Services, LLC v. Gee'', Dennis wrote a 19-page dissent when the 5th Circuit refused to rehear a case regarding Louisiana's abortion restrictions. Dennis found that Act 620 was intended to restrict abortions, not to further women's health. Dennis also found it similar to the Texas abortion ban in 2016. Dennis also saw these restrictions as a violation of ''
Roe v. Wade ''Roe v. Wade'', 410 U.S. 113 (1973),. was a landmark decision of the U.S. Supreme Court in which the Court ruled that the Constitution of the United States conferred the right to have an abortion. The decision struck down many federal and s ...
'', burdensome for women who need abortions, and depriving women of a constitutionally protected healthcare right. Dennis's dissent included noting that "70% of women seeking abortions in Louisiana would be unable to obtain one" which would be "an undue burden on a large fraction of women." Dennis' dissent was joined by
Patrick Higginbotham Patrick Errol Higginbotham (born December 16, 1938) is an American judge and lawyer who serves as a Senior United States circuit judge of the United States Court of Appeals for the Fifth Circuit. Background and education Judge Higginbotham wa ...
, James E. Graves Jr., and
Stephen A. Higginson Stephen Andrew Higginson (born April 12, 1961) is a United States circuit judge of the United States Court of Appeals for the Fifth Circuit and a Judge of the United States Foreign Intelligence Surveillance Court of Review. Early life and educa ...
. On March 30, 2020, Dennis dissented when the 5th Circuit permitted Texas' abortion ban to go on in the wake of
COVID-19 Coronavirus disease 2019 (COVID-19) is a contagious disease caused by a virus, the severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2). The first known case was identified in Wuhan, China, in December 2019. The disease quickly ...
. Dennis wrote: "A federal judge has already concluded that irreparable harm would flow from allowing the Executive Order to prohibit abortions during this critical time. I would deny the stay. Moreover, I write separately to make clear that, per the Executive Order, “any procedure that, if performed in accordance with the commonly accepted standard of clinical practice, would not deplete the hospital capacity or the personal protective equipment needed to cope with the COVID-19 disaster” is exempt." In the August 19, 2021 decision ''Whole Woman's Health v. Ken Paxton'', Dennis dissented when a majority of the judges voted to uphold a law that bans a "dilation and evacuation", a common procedure used in second term abortions. Dennis's 40 page dissent concluded with "And while the plurality laments the amount of time SB8 has been enjoined, that is time in which women in Texas were shielded from the ill effects of a law that is clearly unconstitutional in light of Stenberg, 530 U.S. at 938-39, and the great burdens the statute places on abortion access with exceedingly few reciprocal benefits. That the shield is withdrawn today and that women in Texas will be forced to undergo invasive and unsafe techniques to exercise their constitutional right to an abortion—if it does not prevent their exercising that right altogether—is a devastating blow to their self-determination. I hope only that this opinion gives voice to a modicum of their frustration, anger, and pain. Once again, I respectfully but emphatically dissent."


Asbestos-related death

Dennis dissented in a May 27, 2014 decision that denied relief to a husband whose wife died from mesothelioma due to asbestos fibers on her husband's work clothes. Dennis concluded that she was not given proper notice about proceedings against her husband's company, and even if she had been given proper notice, she was unaware of her exposure to asbestos and the health effects caused by the chemical.


Death penalty

In 2013, Dennis dissented when the Fifth Circuit, by a vote of 11–4, let stand a panel order that held that death row inmate Christopher Sepulvado did not have a constitutional right to notice of the drug or combination of drugs that would be used to execute him. Sepulvado had sued to obtain notice of the drug protocol so that he could evaluate whether it complied with the Constitution. Dennis held: "Without such notice, Sepulvado would be subject to a death warrant and execution by lethal injection by a substance or combination of substances that might cause unnecessary pain and suffering during the execution in violation of the Eighth Amendment's Cruel and Unusual Punishments Clause—an inalterable, grievous loss entitling him, at a minimum, to notice and an opportunity to object. If Sepulvado were not given such notice before his execution takes place, there is absolutely no possibility of a post-deprivation hearing or any opportunity to be heard 'at a meaningful time and in a meaningful manner.'" Dennis dissented when the 5th circuit, by a vote of 10–7, approved the exclusion of expert evidence in a case where a mother was sentenced to death for allegedly murdering her two-year-old daughter. The dissenters argued that given her history of having been abused, her confession at interrogation should have been reviewed by a psychologist who "would have testified that Lucio was a "battered woman"". The decision was handed down on February 9, 2021. In ''Ramirez v. Collier'', the 5th circuit allowed John Ramirez's execution to proceed despite the denial of his wish to have a spiritual advisor at the execution. The execution was scheduled for the night of September 8, 2021. Dennis strongly dissented, writing that "In denying a stay of execution, the majority fails to heed the Supreme Court’s recent guidance, with the troubling result that Ramirez may very well suffer the irreparable injury of being executed in a manner that violates his religious rights before a court is able to adjudicate his claims on the merits." On September 8, The Supreme Court granted Ramirez a stay of execution. On March 24, 2022, the Supreme Court reversed the Fifth Circuit and agreed with Dennis's dissent that depriving Ramirez of his spiritual advisor was unlawful.


Environment

As a justice of the Louisiana Supreme Court, Dennis wrote the opinion of the Court in ''Save Ourselves, Inc. v. Louisiana Environmental Control Commission''. The case construed Article IX, § 1 of the Constitution of Louisiana, which provides for the protection and conservation of the state's air, water, and natural resources; Dennis himself had been coordinator of the Louisiana Constitutional Revision Commission and a delegate of the 1973 Louisiana Constitutional Convention prior to his ascent to the Louisiana Supreme Court. Dennis held that this section of the state constitution "requires an agency or official, before granting approval of proposed action affecting the environment, to determine that adverse environmental impacts have been minimized or avoided as much as possible consistently with the public welfare." The Court vacated and remanded the lower courts' approval of hazardous waste disposal permits issued by the state's Environmental Control Commission, finding that it was not clear from the record "whether the agency performed its duty to see that the environment would be protected to the fullest extent possible consistent with the health, safety, and welfare of the people." Dennis was one of three judges on a Fifth Circuit panel that heard the appeal to ''
Hornbeck Offshore Services LLC v. Salazar ''Hornbeck Offshore Services v. Salazar'' is an ongoing case in United States federal court. In the wake of the ''Deepwater Horizon'' explosion and the subsequent oil spill, the U.S. Department of the Interior issued a six-month moratorium o ...
'', a case challenging the
U.S. Department of the Interior The United States Department of the Interior (DOI) is one of the executive departments of the U.S. federal government headquartered at the Main Interior Building, located at 1849 C Street NW in Washington, D.C. It is responsible for the man ...
six month moratorium on exploratory drilling in deep water that was adopted in the wake of the
Deepwater Horizon explosion The ''Deepwater Horizon'' drilling rig explosion was an April 20, 2010 explosion and subsequent fire on the ''Deepwater Horizon'' semi-submersible mobile offshore drilling unit, which was owned and operated by Transocean and drilling for ...
and the subsequent oil spill. The Fifth Circuit panel denied the government's emergency request to stay the lower court's decision pending appeal.


Fourth Amendment

In a 2000 decision, Dennis dissented when the 5th circuit ruled that someone's 4th amendment rights are not violated when they are arrested for driving without a seatbelt. The 5th circuit was affirmed in '' Atwater v. City of Lago Vista'', but four Justices agreed with Dennis in dissent.


Freedom of speech

''Bell v. Itawamba County School Board'' was a case regarding student speech. Bell, an African-American male student, made a rap song criticizing two white coaches who allegedly sexually harassed African-American female students. His rap had profanity, including the n-word. Upon finding out of this rap, the school suspended him. Bell sued, arguing that his rap was free speech under '' Tinker v. Des Moines School District''. Dennis ruled that Bell's rap is protected speech under ''Tinker'' and the school violated his 1st amendment rights by suspending him. However, the 5th circuit sitting ''en banc'' reversed Dennis in August 2015. Dennis wrote a 50-page dissent, writing that "Bell’s song was not a disruption of school activities but rather was an effort to participate as a citizen in our unique constitutional democracy by raising awareness of a serious matter of public concern. Yet, rather than commending Bell’s efforts, the Itawamba County School Board punished him for the content of his speech, in effect teaching Bell that the First Amendment does not protect students who challenge those in power." In 2021, Dennis wrote the majority opinion in another student speech case, ''Oliver v. Arnold.'' Oliver was a high school student who objected to reciting the Pledge of Allegiance. According to Oliver, she was required to transcribe the words of the Pledge as part of an assignment given by her sociology teacher. Although the teacher claimed the assignment had a pedagogical purpose, Oliver claimed that it was intended to be a mandatory statement of patriotic beliefs. Oliver claimed that her First Amendment rights were violated. Dennis, speaking for the Court, held that the facts of the case were genuinely disputed and allowed Oliver's lawsuit to proceed. Dennis dissented in ''Alliance for Good Government v. Coalition for Better Government'', opining that the First Amendment protected a non-profit political organization from being held liable for trademark infringement under the
Lanham Act The Lanham (Trademark) Act (, codified at et seq. () is the primary federal trademark statute of law in the United States. The Act prohibits a number of activities, including trademark infringement, trademark dilution, and false advertising. ...
based solely on its non-commercial, "purely political speech." Dennis warned that such an extension of liability "risks eroding the First Amendment's safeguards for political expression." After the 5th circuit held that a judge had the right to exercise courtroom prayer, Dennis was one of 3 judges who voted to hear the case en banc.


Gender identity

In January 2020, Dennis filed a "blistering" dissent when Judge Kyle Duncan denied a transgender prisoner's appeal to update her document to include her preferred gender pronouns. Judge Duncan went further and construed the prisoner's motion as seeking to require the ''District Court'' and the ''government'' to refer to the prisoner with female pronouns as well. Duncan ruled against this request, writing that compelling "the use of particular pronouns at the invitation of litigants ... could raise delicate questions about judicial impartiality." Dennis opined that the majority misconstrued the prisoner's request and was issuing an improper "advisory opinion." Dennis wrote that, "Ultimately, the majority creates a controversy where there is none," and that "Such an advisory opinion is inappropriate, unnecessary, and beyond the purview of federal courts." Dennis further stated that he would have granted the request to refer to the prisoner by her preferred pronouns. Duncan's opinion referred to the prisoner with male pronouns, while Dennis's dissent referred to her with female pronouns.


Medicaid

On November 23, 2020, Dennis wrote a 25-page dissent when the 5th circuit, by a 11–5 vote, permitted Texas and Louisiana to cut Medicaid funding from Planned Parenthood. Dennis warned: "I respectfully call on my colleagues to heed the admonitions of the June Medical Court and Chief Justice Roberts, to apply the principles of stare decisis “to keep the scale of justice even and steady, and not liable to waver with every new judge’s opinion,” June Med. Servs. L.L.C., 140 S. Ct. at 2134 (Roberts, C.J., concurring in the judgment) (quoting 1 W. Blackstone, Commentaries on the Laws of England 69 (1765)), and to reconsider its decision to overrule circuit precedent and eviscerate Medicaid patients’ freedom of choice." (Dennis, J., dissenting)


Native Americans

On August 9, 2019, Dennis wrote the majority opinion in a case that upheld the constitutionality of the
Indian Child Welfare Act The Indian Child Welfare Act of 1978 (ICWA) ((), codified at Indian Child Welfare Act, (, )) is a United States federal law that governs jurisdiction over the removal of American Indian children from their families in custody, foster care and ...
(ICWA). Dennis was joined by Jacques L. Wiener, Jr., while Judge
Priscilla Owen Priscilla Richman (formerly Priscilla Richman Owen) (born October 4, 1954) is an American lawyer and jurist serving as the chief United States circuit judge of the United States Court of Appeals for the Fifth Circuit. She was previously a justice ...
dissented in part. In ''Brackeen v. Haaland'' on March 25, 2021, his judgment was affirmed in part and reversed in part. Dennis wrote the part of the majority opinion that held that parts of the ICWA are constitutional. He dissented regarding the parts of the ICWA that a majority of the en banc 5th circuit struck down; Dennis, along with Judges Wiener, Stewart, Graves, Higginson, and Costa, argued that the entire ICWA is constitutional. Dennis's March 2021 opinion totaled 153 pages in length.


Qualified immunity

Dennis wrote the May 3, 2022 majority opinion ruling that a police officer is not entitled to absolute immunity as a prosecutor would be. The police officers at hand allegedly fabricated evidence leading to a conviction, which was thrown out in ''
Wearry v. Cain The Supreme Court of the United States handed down eighteen ''per curiam'' opinions during its 2015 term, which began October 5, 2015 and concluded October 2, 2016.The descriptions of five opinions have been omitted: Because ''per curiam'' decis ...
''.
James C. Ho James Chiun-Yue Ho (born February 27, 1973) is a Taiwanese-born American attorney and jurist. He was nominated to serve as a United States federal judge, U.S. circuit judge of the United States Court of Appeals for the Fifth Circuit, U.S. Court ...
wrote a dubitante opinion. On October 27, 2022, the entire 5th circuit denied
en banc In law, an en banc session (; French for "in bench"; also known as ''in banc'', ''in banco'' or ''in bank'') is a session in which a case is heard before all the judges of a court (before the entire bench) rather than by one judge or a smaller p ...
by a vote of 9-7, with Dennis and Ho both voting to deny en banc.


Securities litigation

Dennis dissented in ''Oscar Private Equity Investments v. Allegiance Telecom, Inc.'', a securities class action. In ''Oscar,'' the Fifth Circuit majority vacated the lower court's certification of the plaintiff class, holding that the plaintiffs were required to prove "loss causation" (that the defendant's alleged misrepresentations actually moved the market and caused the plaintiffs' financial losses) in order to invoke a presumption that they relied on the defendants' misstatements. Dennis accused the majority of engaging in "a breathtaking revision of securities class action procedure that eviscerates ''Basic''s fraud-on-the-market presumption," a reference to Basic Inc. v. Levinson in which the Supreme Court previously held that reliance may be presumed where the alleged misrepresentations were public and material, the stock traded in an efficient market, and the relevant transaction took place between the time the misrepresentations were made and the time the truth was revealed. The Supreme Court unanimously abrogated ''Oscar'' in
Erica P. John Fund, Inc. v. Halliburton Co. ''Erica P. John Fund, Inc. v. Halliburton Co.'', 563 U.S. 804 (2011), was a United States Supreme Court case in which the Court held that "securities fraud plaintiffs need not prove loss causation in order to obtain class certification." Their de ...
, holding, similar to Dennis's dissent, that the Fifth Circuit's rule "contravenes Basic's fundamental premise."


Voting rights

On July 20, 2016, Dennis was in a narrow majority that struck down SB 14, Texas's voter ID law. In a concurring opinion, Dennis stated that he would go further than the majority; in his view, SB 14 was enacted with a racially discriminatory purpose. On May 17, 2021, Dennis was one of three judges who ruled that a Louisiana judge's September 2020 order that expanded mail balloting and early voting is now moot because the 2020 election has passed. Dennis dissented in an August 24, 2022 ruling that upheld a 1890 Mississippi law that disenfranchised a large number of felons. Dennis and the other liberals joined an opinion written by James E. Graves, Jr. that called the law out for its racist history.


References


External links

* {{DEFAULTSORT:Dennis, James L. 1936 births Living people Judges of the United States Court of Appeals for the Fifth Circuit Lawyers from New Orleans Louisiana state court judges Louisiana State University Law Center alumni Justices of the Louisiana Supreme Court Louisiana Tech University alumni Members of the Louisiana House of Representatives People from Monroe, Louisiana Politicians from Monroe, Louisiana Politicians from New Orleans Politicians from Shreveport, Louisiana United States Army soldiers United States court of appeals judges appointed by Bill Clinton University of Virginia School of Law alumni 20th-century American judges 21st-century American judges