Davies v. Grossmont Union High School Dist.

• Decision Date: 08 April 1991
• Docket Number: No. 91-55140,91-55140
• Citation: 930 F.2d 1390
• Parties: , 67 Ed. Law Rep. 124 Thomas DAVIES, Plaintiff-Appellant, v. GROSSMONT UNION HIGH SCHOOL DISTRICT; Monte Vista High School; Jennifer Eliott; Robert Pyle; Paul Martin; Christopher Bogden; Gerald Gordinier; and Does 1 through 20, inclusive, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1390

930 F.2d 1390

59 USLW 2623, 67 Ed. Law Rep. 124

Thomas DAVIES, Plaintiff-Appellant, v. GROSSMONT UNION HIGH SCHOOL DISTRICT; Monte Vista High School; Jennifer Eliott; Robert Pyle; Paul Martin Christopher Bogden; Gerald Gordinier; and Does 1 through 20, inclusive, Defendants-Appellees.

No. 91-55140.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Feb. 5, 1991.

Decided April 8, 1991.

Kenneth S. Klein, James T. Hannink, Gray, Cary, Ames & Frye, San Diego, Cal., for plaintiff-appellant.

Richard J. Currier, C. Anne Hudson, Judith S. Islas, Littler, Mendelson, Fastiff & Tichy, San Diego, Cal., for defendants-appellees.

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

Before BROWNING, D.W. NELSON and REINHARDT, Circuit Judges.

REINHARDT, Circuit Judge:

This appeal challenges the enforceability of a contract provision restricting appellant's right to run for public office. The provision is contained in a settlement agreement between appellant and the governmental entity involved. That agreement in turn formed the basis for a "dismissal and release and order thereon." We hold that the public policy favoring enforcement of such a provision is outweighed by the public policy served by its non-enforcement. We therefore declare the provision void as contrary to public policy and reverse the district court's contempt order based on its violation.

BACKGROUND

The appellant, Dr. Davies, seeks reversal of the district court's order finding him in contempt of a 1989 order dismissing his previous action against the defendant Grossmont Union High School District (the "District") in accordance with a settlement agreement, and ordering him to resign immediately.

In 1988, Dr. Davies and his wife sued the District in state court, alleging violations of 42 U.S.C. Sec. 1983 and various state law causes of action in connection with the District's transfer of Mrs. Davies, who had been employed as a teacher in the District. The District removed the action to the United States District Court for the Southern District of California, which remanded the pendent state claims on discretionary grounds. Dr. Davies erroneously remained a named plaintiff in the federal action, although his only claim, for loss of consortium, had been remanded.

In November 1988, both Dr. Davies and Mrs. Davies executed an agreement with the District, which served to settle the federal action. The agreement provided, inter alia, that the Davieses would dismiss their actions in state court and federal court against the District in return for a payment of $39,200. The agreement also provided that "neither one nor both of [the Davieses] will ever seek, apply for, or accept future employment, position, or office with Defendant District in any capacity." The district court approved the settlement agreement and dismissed the federal action in an April 11, 1989 written order. The Davieses subsequently dismissed the state action.

Over a year later, on August 2, 1990, Dr. Davies publicly declared his candidacy for the Governing Board of the District; he was elected to the Board on November 6, 1990. After the election, but before he was sworn in to office, the District brought a Dr. Davies appealed to this court and sought an emergency stay of the district court's order, or in the alternative, an injunction preventing the District from filling his position on the Board during the pendency of his appeal. A speedy resolution of the issues raised was essential to both parties: if the Board appointed someone other than Dr. Davies to the seat he had relinquished, Dr. Davies might have lost his ability to withdraw his resignation; and so long as the seat remained vacant, the Board could not make crucial decisions necessary to the operation of the School District. ¹ Therefore, upon stipulation of the parties, on January 30, 1991, a motions panel of this court ordered that the case be placed on the next oral argument calendar. ² Further, in accordance with the parties' stipulation, temporary injunctive relief was granted. On February 11, 1991, we issued an unpublished order reversing the district court and vacating the contempt order and Dr. Davies' ensuing resignation. This opinion is issued in accordance with that order.

motion to enforce the settlement agreement in the district court, seeking an order of contempt against Dr. Davies for violating the April 1989 order. While the motion was pending, Dr. Davies took the oath of office in another county. After a hearing on December 12, 1990, the district court granted the motion and found him in contempt of the 1989 order. The district court ordered him to resign his office immediately and to pay attorney fees to the District. The court denied his request for a stay of its order pending appeal to this court. Dr. Davies resigned, effective December 13, 1990. The record does not reflect whether he paid the attorney fees.

ANALYSIS

A. Jurisdiction

Dr. Davies asserts that the District may challenge his election only through the quo warranto proceedings afforded by state law. See Cal.Civ.Pro.Code Sec. 803. The district court had jurisdiction over this case, however, because district courts have power to enforce their own orders and to adjudge anyone in civil contempt who wilfully violates such orders. See United States v. Grant, 852 F.2d 1203 (9th Cir.1988). ³ Any available state remedy would not divest the district court of this inherent power to enforce its own orders.

We have jurisdiction over this appeal pursuant to 28 U.S.C. Sec. 1291 because the district court's post-judgment contempt order is a final order in the district court.

                See Grant, 852 F.2d at 1204.    In addition, we are not deprived of jurisdiction by virtue of the fact that appellant resigned his office.  Ordinarily, compliance with a contempt order renders the appeal moot because the appellate court is left with no remedy to afford the appellant.  See Thomassen v. United States, 835 F.2d 727 (9th Cir.1987).  However, there is an exception to the general principle:  where compliance does not prevent this court from fashioning adequate relief, a live controversy exists and the appeal is not moot.  See id. at 731-32 (where taxpayer complied with contempt order and paid attorneys' fees, appeal seeking return of fees was not moot).  Here, Dr. Davies seeks reinstatement to the Board, relief which we can grant because his position is still vacant.  Similarly, if he has paid the attorney fees, we can treat his appeal as seeking their return
                

Moreover, the District bears the burden of showing that the case is moot, and that burden "is a heavy one." County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 1383, 59 L.Ed.2d 642 (1979) (quoting United States v. W.T. Grant Co., 345 U.S. 629, 632-33, 73 S.Ct. 894, 897, 97 L.Ed. 1303 (1953)). Here, as we have stated, the record does not reveal whether Dr. Davies has complied with the order to pay attorney fees. Therefore, the District has not met its burden with respect to the fee question and for that reason also cannot establish that the case is moot.

Finally, there is a third reason why the appeal is not moot. The clear import of the district court's order was not merely that Dr. Davies was to resign from the Board: the order effectively forbade him from ever seeking a position on the Board. He most certainly has not complied with that order. Thus, the order has prospective effects and is for that reason as well subject to challenge on appeal.

B. Standard of Review

The punishment imposed in a civil contempt proceeding is subject to review for abuse of discretion. See United States v. Grant, 852 F.2d at 1205. However, the legitimacy of the contempt adjudication is based on the validity of the underlying order. See Scott & Fetzer Co. v. Dile, 643 F.2d 670, 675 (9th Cir.1981). Appellant here primarily challenges the enforceability of the underlying order upholding the settlement agreement (see section E below). We review de novo a legal challenge to the interpretation of a settlement agreement. See Jeff D. v. Andrus, 899 F.2d 753, 759 (9th Cir.1989).

C. Application of the Settlement Agreement

We first address appellant's argument that the settlement agreement should not bar his election because: (1) its terms do not apply to elective office; and (2) he did not knowingly intend to waive his constitutional right to run for office. We are not persuaded by these arguments.

The language of the settlement provision is clear. It states that Dr. Davies will "never seek or accept any office or position with the District in any capacity." "Any" is an all-encompassing term. Here, the parties used two "any's" in one sentence in order to make certain there would be no doubt as to their intent. As the district court pointed out in its December order, it is true that the provision does not explicitly refer to elective office, but it also does not explicitly refer to employment as a teacher. The reason for both omissions is that the terms are sufficiently clear that it is not necessary to list either of the prohibitions specifically. See Muckleshoot Tribe v. Puget Sound Power & Light, 875 F.2d 695, 698 (9th Cir.1989); Dart Industries Co. v. Westwood Chemical Co., 649 F.2d 646, 648 (9th Cir.1980). That "any office" includes elective office is a proposition that requires no further explication.

Likewise, Dr. Davies' argument that he did not knowingly waive his constitutional rights is without merit. The Supreme Court has recognized that constitutional rights may ordinarily be waived if it can be established by clear and convincing evidence that the waiver is voluntary, knowing and intelligent. See D.H. Overmyer Co. v. Frick Co., 405 U.S. 174, 185,

                187, 92 S.Ct. 775, 782, 783, 31 L.Ed.2d 124 (1972).  Dr. Davies relies only on the knowingness requirement here.  Several factors, collectively, lead us to the conclusion that his waiver was knowing.

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