Smith v. Winter

• Decision Date: 12 February 1986
• Docket Number: No. 85-4140,85-4140
• Citation: 782 F.2d 508
• Parties: Jimmy L. SMITH, et al., Plaintiffs-Appellants, v. William F. WINTER, In His Official Capacity as Governor of the State of Mississippi, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 508

782 F.2d 508

Jimmy L. SMITH, et al., Plaintiffs-Appellants, v. William F. WINTER, In His Official Capacity as Governor of

the State of Mississippi, et al., Defendants-Appellees.

No. 85-4140.

United States Court of Appeals,

Fifth Circuit.

Feb. 12, 1986.

Tyree Irving, Greenville, Miss., for plaintiffs-appellants.

Edwin L. Pittman, Atty. Gen., Ed Davis Noble, Jr., Asst. Atty. Gen., Jackson, Miss., for defendants-appellees.

Ben J. Piazza, Jr., Jackson, Miss., for Joseph T. Travillion, et al.

Appeal from the United States District Court for the Southern District of Mississippi.

Before CLARK, Chief Judge, WILLIAMS and DAVIS, Circuit Judges.

JERRE S. WILLIAMS, Circuit Judge:

Three elected members of the Claiborne County, Mississippi Board of Education brought suit against a myriad of public officials and private citizens for subjecting them to a recall election. The complaint alleged claims under 42 U.S.C. Secs. 1981, 1983, and 1985, ¹ and asked for injunctive relief and declaratory relief under 28 U.S.C. Sec. 2284. The district court granted appellees' motions to dismiss. ² We affirm in part and reverse in part.

FACTS

Appellants are Jimmy L. Smith, Bennie L. Knox, and Roosevelt Yarbrough, three elected members of the Claiborne County Board of Education. Appellees are William F. Winter, former governor of Mississippi; Mike Carr, Edward G. Cortwright, and Howard L. Patterson, in their official capacities as Chancellors and members of the Removal Council; Joseph T. Travillion, Claiborne County's Superintendent of Education, in his individual and official capacities; Julia Jones, Circuit Clerk of Claiborne County, in her individual and official capacities; and twenty named individuals. Governor Winter, Carr, Cortwright, and Patterson are referred to collectively as the "state appellees." Travillion, Jones, and the twenty named individuals are referred to collectively as the "local appellees."

Appellants brought this suit in response to an attempt to recall them from the Board of Education of Claiborne County. The recall procedure was instituted pursuant to Miss.Code Ann. Secs. 25-5-3 through 25-5-7 (1972). Appellee Travillion initiated the recall procedure, claiming that appellants were malfeasant in office. According to the complaint, appellees Travillion, Jones, and the twenty named individuals participated in collecting and certifying signatures for recall petitions. Jones, in her capacity as County Clerk, then certified the petition signatures of the required thirty percent of qualified voters to appellee William Winter, then governor of Mississippi. Winter, pursuant to the recall statute, then established a Removal Council consisting of appellees Carr, Cortwright, and Patterson.

During the course of this recall procedure, appellants brought the present suit seeking the following relief: (1) an injunction to prevent the recall election; (2) a declaratory judgment that the Mississippi recall statute violated the Voting Rights Act of 1965, 42 U.S.C. Sec. 1973 et seq. ³ and was unconstitutional under the due process and equal protection clauses of the First and Fourteenth Amendments; and (3) damages under 42 U.S.C. Sec. 1983 from Travillion, Jones, and the twenty named individuals who participated in collecting and certifying the signatures for the recall petitions. No damage claim was asserted against the state appellees. The complaint contended that the local appellees "conspired" to "have [appellants] unlawfully removed from office" by falsely obtaining the names on the recall petitions and otherwise misusing the recall process. The complaint alleged that Travillion, Jones, and the twenty named individuals undertook to censor appellants' free speech rights in support of Travillion who was displeased because appellants had criticized his performance in office.

The Removal Council determined that a vote of the electorate was warranted. The election was held, and appellants prevailed at the polls; recall was defeated. Appellants continue today as school board members. Following the election, the district court dismissed the complaint in its entirety, holding that appellants had failed to state a claim for relief. We find that the complaint is moot as it requests declaratory relief, and also as it asks for injunctive relief against the state appellees. But we find that the complaint states a proper cause of action for damages under Sec. 1983 against the local appellees, and we reverse the dismissal of the Sec. 1983 damage claims against them.

I. Injunction and Declaratory Judgment Claims

The district court dismissed appellants' claims for injunctive and declaratory relief on mootness, Rule 12(b)(1), and 12(b)(2) grounds. Because the complaint sought injunctive relief only against appellees Winter, Carr, Cortwright, and Patterson, they were accordingly dismissed from this action by this ruling. We affirm the district court.

Appellants prevailed in the recall election that they sought to enjoin. A claim becomes moot when "the issues presented are no longer 'live' or the parties lack a legally cognizable interest in the outcome." Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 1951, 23 L.Ed.2d 491, 502 (1969). Appellants clearly have no interest in receiving an injunction to prevent a recall election they have already won. Thus, the claim for injunctive relief is moot.

Likewise, the claim for declaratory relief is moot. Appellants' declaratory claim urges that the recall statute is unconstitutional. Because appellants have already prevailed in the recall election, their complaint for declaratory relief is moot unless: "(1) the challenged action [is] in its duration too short to be fully litigated prior to its cessation or expiration; and (2) there [is] a reasonable expectation that the same complaining party would be subjected to the same action again." Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 349, 46 L.Ed.2d 350, 353 (1975). This exception to mootness is known as the "capable of repetition, yet evading review" doctrine. Id. The first prong of the exception does not apply to the instant case because the complaint lacks an allegation that time pressures made it impossible to litigate the issue before the recall election was held. The second prong does not apply because there is no allegation or showing otherwise that appellants will be subjected to another recall petition. Although all public officials are subject to recall under the Mississippi statute, there is no reason to believe from the record that appellants are more likely to face a recall election today than are any other public officials. See O'Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974) (injury or threat of injury must be both "real and immediate," not "abstract," "conjectural," or "hypothetical"). We affirm, therefore, the district court's dismissal of the injunctive and declaratory judgment claims. Accordingly, we affirm the dismissal of the state appellees from this action.

II. Damage Claim

The district court dismissed appellants' Sec. 1983 damage claim against the local appellees. ⁴ The district court held that appellants had failed to identify any federally protected right that had been violated. Because we find that the complaint properly alleged that the local appellees had interfered with appellants' First Amendment rights in violation of Sec. 1983, we reverse the dismissal of the damage claims against the local appellees.

Appellees urge that the complaint did not state a claim under Sec. 1983 because: (1) the complaint alleged no violation of a federally protected right; (2) the complaint alleged no actions taken under color of state law; and (3) the complaint alleged no damages. None of these objections is persuasive when the complaint is properly evaluated.

First, the complaint adequately alleged that the local appellees violated appellants' First Amendment rights. The complaint stated that Travillion became upset and angry with appellants because they exercised their First Amendment rights regarding school district matters, and because they did not vote on the matters in accordance with Travillion's wishes. The complaint then alleged that Travillion conspired with the other local appellees to remove appellants from office by forging names on recall petitions, and by otherwise misusing the recall process. ⁵

A motion to dismiss a complaint for failure to state a claim should not be granted unless it appears beyond doubt that there is no set of facts under which the allegations could constitute a claim for relief. Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 102, 2 L.Ed.2d 80, 85 (1957); see also, Boudeloche v. Grow Chemical Coatings Corp., 728 F.2d 759, 762 (5th Cir.1984) ("[W]here pleadings are sufficient, yet it appears almost a certainty to the court that the facts alleged cannot be proved to support a legal claim, a motion to dismiss for failure to state a claim must nevertheless be overruled."). In the present case, we find that this complaint includes allegations that the local appellees conspired through fraudulent means to misuse the recall statute against appellants in retaliation for appellants' exercise of their First Amendment rights. Such a complaint states a claim under Sec. 1983. In Lewis v. Blackburn, 734 F.2d 1000 (4th Cir.1984), the court held that decisions of a clerk and a superior court judge not to reappoint a former state magistrate were made in retaliation for the magistrate's exercise of her First Amendment right of free speech, and the magistrate's complaint entitled her to relief under Sec. 1983. Similarly, in Bart v. Telford, 677 F.2d 622 (7th Cir.1982), the court held that a complaint alleging that a former candidate for public office was made the object of retaliation by superiors for exercise of free speech rights during a campaign stated a claim under Sec. 1983.

Second, appellees argue that the complaint did not allege that they acted...