Rainey v. Jackson State College

• Decision Date: 27 June 1973
• Docket Number: No. 72-1681.,72-1681.
• Parties: Kenneth T. RAINEY, Plaintiff-Appellant, v. JACKSON STATE COLLEGE et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

481 F.2d 347 (1973)

Kenneth T. RAINEY, Plaintiff-Appellant, v. JACKSON STATE COLLEGE et al., Defendants-Appellees.

No. 72-1681.

United States Court of Appeals, Fifth Circuit.

June 27, 1973.

A. Spencer Gilbert, III, Jackson, Miss., for plaintiff-appellant.

William A. Allain, Asst. Atty. Gen., Jackson, Miss., M. M. Roberts, Hattiesburg, Miss., Ed Davis Noble, Jr., Jackson, Miss., for defendants-appellees.

Before BELL and THORNBERRY, Circuit Judges and GROOMS, District Judge.

BELL, Circuit Judge:

The events giving rise to this appeal are unusual indeed. The Gordian-like knots are largely procedural.

The matter began as a suit under the civil rights jurisdiction of the district court, 42 U.S.C.A. § 1983, and 28 U.S.C. A. § 1343(3). Plaintiff alleged that his contract to teach at Jackson State College during the academic year 1970-71 had been breached by defendants¹ in violation of his First Amendment right to free speech. On September 16, 1970, the district court dismissed for lack of jurisdiction. On September 21, 1970, a panel of this court granted plaintiff's motion for injunction pending appeal with direction that he be reinstated to his teaching post. Defendants assigned him to a research position rather than to his teaching post. On September 28, 1970, the order of this court was clarified to require that plaintiff be reinstated to the teaching duties as were contemplated by the contract.

The appeal was then heard on the merits in this court and the judgment of the district court was reversed. We held that the district court had jurisdiction and should proceed to hear the cause. Rainey v. Jackson State College, 5 Cir., 1970, 435 F.2d 1031. The statement of facts therein set out will suffice for this appeal. The following part of our opinion has some bearing on the subsequent result:

"Upon remand we leave in force this Court\'s injunction granted September 21, 1970, and clarified September 28, 1970. The injunction will remain in full force and effect until such time as the plaintiff has had an opportunity to apply to the district court for injunctive relief pending a decision of the case on the merits, and the district court\'s disposition of such motion." 435 F.2d at 1036.

Our decision was rendered on December 22, 1970. Our mandate issued on January 13, 1971. Plaintiff moved for a preliminary injunction on February 24, 1971, but no further action was taken in the district court during the 1970-71 academic year. The reason for the inaction does not appear in the record but the result is clear and undisputed. Plaintiff taught throughout the contractual year. He thus prevailed on the merits although there was never a hearing on the merits of his claim. This would have ended the matter for all practical purposes except as to the prayer for attorneys' fees and costs. But there is more.

The contractual period in suit terminated on May 31, 1971. On August 26, 1971, plaintiff amended his complaint to claim a non-contractual right to teach during the summer session of 1971 and the 1971-72 academic year. His amendment seemed to rest on the assumption that an in futuro — in perpetuity form of tenure flowed from the denial of his First Amendment rights in connection with the one year teaching contract. This time he sought compensatory and punitive damages but no injunctive relief.

The amendment, as a single cause of action, made reference to the refusal to employ plaintiff to teach during the summer session of 1971, and also during the 1971-72 academic year. The district court bifurcated this cause of action into two parts (the summer session and the 1971-72 year), in submitting special interrogatories to the jury. In denying a motion for new trial, the district court treated these periods as one. This is substantially the approach the plaintiff has taken in his brief in this court. In the view we take of the evidence and of the case, the parts will be considered as one — denominated the 1971-72 claim.

Plaintiff requested a jury trial and the matter was tried to a jury in January 1972. The claims for each year (and the summer session), were submitted to the jury on special interrogatories and each was rejected. The district court then denied a motion for judgment notwithstanding the verdict and this appeal followed.

Plaintiff now contends that he was entitled to a judgment notwithstanding the verdict on his claims as to each of the years in question as well as attorneys' fees and costs. We must, of course, take the record as made by the parties together with the procedures adopted by them as the basis for our decision. The purpose of the trial of the claim for 1970-71 is a mystery. It was essentially moot. We have carefully examined the prayers contained in the complaint and except for attorneys' fees, ordinarily for resolution by the court, they have been entirely satisfied prior to trial. Were it not for the claim for attorneys' fees, we might conclude our discussion of this particular claim on the note that "all's well that ends well". The issue of attorneys' fees is outstanding, however, and we can resolve it on the basis of the trial record as to the 1970-71 claim.

In any event, there are three issues involved: first, the claim for 1970-71; second, the claim for 1971-72; and third, attorneys' fees for plaintiff's counsel in connection with each of the claims. We see the motion for judgment notwithstanding the verdict as separable to the extent that we may consider each of these issues as standing alone. We turn then to the issues.

I.

We begin with the claim for 1970-71. It was mooted by the relief obtained by plaintiff through the injunction pending appeal granted in this court coupled with the subsequent inaction in the district court. Nevertheless, because of the claim for attorneys' fees in connection with this particular claim, we must proceed to the merits and therefore to the motion for judgment notwithstanding the verdict.²

The record discloses without dispute that plaintiff's contract was withdrawn or breached due solely to the discovery in August 1970 by one of the defendant trustees that plaintiff, while teaching at another institution during the previous year, had testified as an expert witness for the defense in a criminal case charging the obscenity of a film. The defense was successful. Plaintiff received widespread publicity due to his appearance as a witness and was denied tenure although not his teaching position at the private institution on account of the event. The trustee brought these facts to the attention of his fellow trustees. They, in turn, caused the president of Jackson State to withdraw plaintiff's contract. This appears from the testimony of the trustee who made the discovery.

At this point, the trustees took the position that the president had no authority to make the contract without their final approval. This meeting of the trustees was in August.

The president then advised plaintiff that his secretary had sent the contract to him during the preceding spring through inadvertence. This was in the face of the fact that other faculty contracts had been sent out during the spring. The essence of defendants' position was that any contract could be withdrawn or cancelled at the pleasure of the trustees at any time prior to the beginning of school in September. There was no indication whatever in plaintiff's contract that it was not final but the by-laws of the Board of Trustees and the faculty handbook reserved the right in the Board to disapprove contracts.

The president and trustees also adopted the pretext of saying to plaintiff that his position, along with three others, had been eliminated in order that the security force could be increased at the college. At any rate, these reasons all gave way when the trustee testified on deposition and at trial that testimony at the obscenity trial and the resulting publicity was the reason for withdrawing the contract. The lack of a defense on the part of defendants becomes all the more apparent from a reading of the five pertinent documents which are appended hereto.

These facts make out what appear to us to be a clear case of impermissibly freighting plaintiff's contract with a deprivation of the First Amendment right to free speech. The following statement of the Supreme Court in Perry v. Sindermann, 1972, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570, is apt:

"For at least a quarter century, this Court has made clear that even though a person has no `right\' to a valuable governmental benefit and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not act. It may not deny a benefit to a person on a basis that infringes his constitutionally protected interests — especially, his interest in freedom of speech. For if the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited. This would allow the government to `produce a result which it could not command directly.\' Speiser v. Randall, 357 U.S. 513, 526, 78 S.Ct. 1332, 1342 2 L.Ed.2d 1460, 1473. Such interference with constitutional rights is impermissible." 408 U.S. at 597, 92 S.Ct. at 2697, 33 L.Ed.2d at 577.

Cf. Shelton v. Tucker, 1960, 364 U.S. 479, 485-486, 81 S.Ct. 247, 5 L.Ed.2d 231; Keyishian v. Board of Regents, 1967, 385 U.S. 589, 605-606, 87 S.Ct. 675, 17 L.Ed.2d 629. This teaching is all the more applicable in a case such as this where a contract is breached because of the exercise of First Amendment rights.

Despite this conclusion, it is the case that the 1970-71 claim was moot. However, the claim for attorneys' fees remained viable and should have been presented to the court. In an effort to work out of the procedural morass which the parties have created, we conclude that plaintiff, absent the question of mootness and for the purpose of the...