891 F.2d 1555 (11th Cir. 1990), 89-7245, N.A.A.C.P. v. Hunt

Docket Nº:89-7245.
Citation:891 F.2d 1555
Party Name:NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE (NAACP), a corporation suing through its Alabama Conference of Branches, Thomas Reed, Alvin Holmes, James E. Buskey, John L. Buskey, William Clark, Patricia Davis, George W. Grayson, Bobbie G. McDowdell, Bryant Melton, Jr., George Perdue, John W. Rogers, Jr., Lewis G. Spratt, Michael A. Fig
Case Date:January 16, 1990
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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891 F.2d 1555 (11th Cir. 1990)

NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE

(NAACP), a corporation suing through its Alabama Conference

of Branches, Thomas Reed, Alvin Holmes, James E. Buskey,

John L. Buskey, William Clark, Patricia Davis, George W.

Grayson, Bobbie G. McDowdell, Bryant Melton, Jr., George

Perdue, John W. Rogers, Jr., Lewis G. Spratt, Michael A.

Figures, Earl F. Hilliard and Henry Sanders, Plaintiffs-Appellants,

v.

Guy HUNT, individually and as Governor of the State of

Alabama; Cecil Humphrey, individually and as Chief of

Capitol Security; G. Robin Swift, Jr., individually and as

Finance Director, Defendants-Appellees.

No. 89-7245.

United States Court of Appeals, Eleventh Circuit

January 16, 1990

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Ernestine S. Sapp, Fred D. Gray, Gray, Langford, Sapp & McGowan, Tuskegee, Ala., Gen. Counsel, N.A.A.C.P., Sp. Contribution Fund, Baltimore, Md., for plaintiffs-appellants.

Alex L. Holtsford, Jr., Nix & Holsford, H.E. Nix, Jr., Montgomery, Ala., for defendants-appellees.

Appeal from the United States District Court for the Middle District of Alabama.

Before JOHNSON and EDMONDSON, Circuit Judges, and PECKHAM [*], Senior District Judge.

JOHNSON, Circuit Judge:

Plaintiffs-Appellants, the National Association for the Advancement of Colored People, et al. ("NAACP"), appeal the district court's grant of summary judgment for defendants Hunt, et al. ("the state") on the NAACP's claims under 42 U.S.C.A. §§ 1983 and 1988, 36 U.S.C.A. § 175(c) (the United States Flag Code), the First, Thirteenth, and Fourteenth Amendments to the United States Constitution, and, under Alabama state law, conspiracy to cause malicious prosecution.

I. STATEMENT OF THE CASE

For some twenty years the confederate flag has flown atop the capitol dome in Montgomery, Alabama. At present, there are three flags flying on a single pole above the dome: the United States flag on top, the Alabama state flag second, and the confederate flag at the bottom.

There is no state statute authorizing or mandating the flying of the confederate flag. Alabama raised the flag on two occasions. The flag was raised in 1961 during the administration of Governor John Patterson for the purpose of commemorating the 100th anniversary of the Civil War. The flag was raised again on the morning of April 25, 1963, the day that United States Attorney General Robert F. Kennedy travelled to Montgomery to discuss with then-Governor George Wallace the governor's announced intention to block the admission of the first black students to the University of Alabama. Regardless of the reason, it is undisputed that the flying of the flag atop the capitol dome has caused much controversy.

In 1975, Alabama state legislator Alvin Holmes filed suit in the Middle District of Alabama alleging that the flying of the confederate flag immediately below the Alabama flag on the capitol dome, with the American flag flown at a lower elevation on the capitol grounds, violated 36 U.S.C.A. § 175 (the U.S. Flag Code), 1 the Thirteenth

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and Fourteenth Amendments, and 42 U.S.C.A. §§ 1983 and 1985. 2 The district court held in Holmes v. Wallace, 407 F.Supp. 493 (M.D.Ala.), aff'd without published opinion, 540 F.2d 1083 (5th Cir.1976) that: (1) section 175 of the Flag Code was merely intended to be declaratory or advisory, and was not intended to proscribe conduct; (2) the plaintiffs did not state a claim under 42 U.S.C.A. § 1985; and (3) the plaintiffs alleged no right of which they had been deprived under 42 U.S.C.A. § 1983. 3

On February 2, 1988, several members of the NAACP, all of whom were also members of the Alabama legislature, were arrested for criminal trespass at the capitol gates. The NAACP maintains that its members were attempting to "symbolically touch" the capitol fence to express their disagreement with the flag being flown. The state contends that the NAACP members were attempting to scale the security fence and remove the flag forcibly from the dome. The NAACP members were convicted in Montgomery County District Court on January 10, 1989. Appeals of those convictions are pending in the circuit court.

On May 20, 1988, the NAACP filed suit in the Middle District of Alabama against Governor Guy Hunt, Chief of Capitol Services Cecil Humphrey, and Director of Finance Robin Swift ("the state") seeking a declaratory judgment that the flying of the flag atop the Alabama capitol dome violates 42 U.S.C.A. §§ 1983 and 1988, 36 U.S.C.A. § 175, and the First, Thirteenth, and Fourteenth Amendments to the Constitution. The NAACP sought injunctive relief requiring the state to remove the flag from the capitol and prohibiting the state from displaying the flag on capitol grounds. On October 12, 1988, the NAACP amended its complaint to include a challenge to the February 2, 1988 trespass arrest on the ground that the defendants in this lawsuit conspired to cause the wrongful prosecution of the NAACP members. In its answer, the state raised several affirmative defenses, including res judicata.

On December 15, 1988, the district court granted the state's motion for dismissal or summary judgment on the Flag Code issue, civil rights violations under 42 U.S.C.A. §§ 1983 and 1988, and constitutional violations under the Thirteenth and Fourteenth Amendments. The court allowed the NAACP to proceed with its First Amendment claim, but did not address the conspiracy claim. On March 1, 1989, the district court granted the state's motion for summary judgment on the First Amendment claim. The district court also found that the conspiracy claim was unavailable to the NAACP because the prosecutions were not based on wrongful torts and had resulted in conviction of the defendants.

We first consider whether the district court erred in granting the state's motion for summary judgment on the Flag Code claim on the grounds of res judicata. We then determine whether the district court erred in granting the state's motions for summary judgment on the NAACP's claims arising under 42 U.S.C.A. §§ 1983 and 1988, and under the First, Thirteenth, and Fourteenth Amendments.

II. ANALYSIS

Our review of a district court grant of summary judgment is plenary; the reviewing court must ask whether any genuine issue of material fact exists, or whether the moving party is entitled to judgment as a matter of law. Shipes v. Hanover Ins. Co., 884 F.2d 1357, 1359 (11th Cir.1989); Fed.R.Civ.P. 56(c). The reviewing court

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must view the record in the light most favorable to the non-moving party, with all reasonable inferences taken in favor of that party. Golden v. Mobil Oil Corp., 882 F.2d 490, 493 (11th Cir.1989). The moving party bears the burden of informing the district court of the basis for its motion, after which the non-moving party must make a showing sufficient to support finding the existence of all essential elements with respect to which the non-movant has the burden of proof at trial. Failure to make such a showing appropriately results in summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

  1. Res Judicata

    The district court granted the state's motion for summary judgment on the issue of violation of the Flag Code, 36 U.S.C.A. § 175, because it found that this issue had already been determined in Holmes v. Wallace, supra. 4 A district court's conclusions as to res judicata are conclusions of law, and are thus reviewable de novo by this Court. See McDonald v. Hillsborough County School Bd., 821 F.2d 1563, 1565 (11th Cir.1987).

    Federal courts apply the law of the state in which they sit with respect to the doctrine of res judicata. Id. Under Alabama law, the essential elements of res judicata are: "(1) a prior judgment on the merits, (2) rendered by a court of competent jurisdiction, (3) with substantial identity of the parties, and (4) with the same cause of action presented in both suits." Hughes v. Allenstein, 514 So.2d 858 (Ala.1987) (citing Wheeler v. First Alabama Bank of Birmingham, 364 So.2d 1190, 1199 (Ala.1978)). If all of these elements are met, any claim that was or could have been adjudicated in the previous action is precluded. Id. If even one element of the four is not met, however, res judicata is not applicable. Fisher v. Space of Pensacola, Inc., 461 So.2d 790, 792 (Ala.1984).

    The decision in Holmes v. Wallace was based on the grant of a motion to dismiss. The decision does not indicate whether the court dismissed the claims under Fed.R.Civ.P. 12(b)(6) or 41(b), or whether it dismissed the claims with or without prejudice. In any event, the Supreme Court has clearly stated that "[t]he dismissal for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) is a 'judgment on the merits.' " Federated Dept. Stores, Inc. v. Moitie, 452 U.S. 394, 399 n. 3, 101 S.Ct. 2424, 2428 n. 3, 69 L.Ed.2d 103 (1981). See also Hart v. Yamaha-Parts Distributors, Inc., 787 F.2d 1468, 1470 (11th Cir.1986) (dismissal with prejudice operates as a judgment on the merits unless the court specifies otherwise). Similarly, Fed.R.Civ.P. 41(b) provides that unless the court specifies otherwise, dismissal on the grounds that the facts and law show no right to relief operates as an adjudication on the merits. The Holmes decision is clearly a final adjudication on the merits for res judicata purposes, and was rendered by a court of competent jurisdiction.

    Identity of parties concerns two sets of persons. The first set is comprised of those persons who were actual parties in the original action. Lary v. Ansari, 817 F.2d 1521, 1523 (11th Cir.), cert. denied, 484 U.S. 964, 108 S.Ct. 454, 98 L.Ed.2d 394...

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