Brown v. Moore
| Decision Date | 28 March 1984 |
| Docket Number | Civ. A. No. 75-298-P. |
| Citation | 583 F. Supp. 391 |
| Parties | Lelila G. BROWN, et al., Plaintiffs, v. John L. MOORE, et al., Defendants. |
| Court | U.S. District Court — Southern District of Alabama |
Kenneth L. Thomas, Massey, Means & Thomas, Montgomery, Ala., for movant R.W. Gilliard.
Robert G. Kendall, Johnston, Johnston & Kendall, Mobile, Ala., for defendant Dan C. Alexander.
Robert C. Campbell, III, Sintz, Pike, Campbell & Duke, Mobile, Ala., for defendant Bd. of School Com'rs of Mobile County.
This matter is before the court on the motion of Dr. Robert W. Gilliard (Gilliard) for further relief in the above-captioned matter. A hearing was held on the motion, at which time evidence was taken and arguments of counsel were heard, and the matter was taken under submission.
OPINIONThis voter dilution case was brought against the five-member Board of School Commissioners of Mobile County, et al. (the Board) challenging the at-large method of electing Board members. This court's original opinion and order found that the plaintiffs, black citizens of Mobile County, had suffered an impermissible dilution of their voting strength, Brown v. Moore, 428 F.Supp. 1123, 1142 (S.D.Ala.1976), and provided for elections in November, 1978 of Board members from two predominantly black single-member districts, id. at 1146 (Districts 3 and 4). Gilliard, a black male citizen of Mobile County, was elected to the Board from District 3 on November 7, 1978, and has served continuously in that capacity to the present.
Dan C. Alexander (Alexander), a white male citizen of Mobile County, held, at all times material herein,1 the position of nonvoting Chairman of the Board.2 See Brown, 428 F.Supp. at 1145-46.
This court's original opinion and order was affirmed by the Fifth Circuit, Brown v. Moore, 575 F.2d 298 (1978), and reversed by the Supreme Court, Williams v. Brown, 446 U.S. 236, 100 S.Ct. 1519, 64 L.Ed.2d 181 (1980). This court received on July 11, 1980 the mandate of the Fifth Circuit dated July 9, 1980. The plaintiffs petitioned on July 15, 1980, for a preliminary injunction preserving the status quo pending decision on remand. In an order dated July 25, 1980, this court enjoined the defendants, pending entry of final judgment on remand,3 from failing to abide by the following provision, inter alia:
A. Commissioners Cox and Gilliard shall continue to enjoy all the rights, privileges and duties of the office of School Commissioners of Mobile County to which they were elected in 1978.
On November 4, 1981, a proposed interim consent decree to be entered in Davis v. Board of School Commissioners, No. 3003-63-H (S.D.Ala.) was placed on the Action Board Agenda of a duly called meeting of the Board. The Davis case concerns the desegregation of the Mobile County public school system. The proposed decree contemplated, inter alia, the formation of a three-member professional observation team of consultants and a Special Committee of representatives appointed by PTA groups and the parties to the suit; both groups were to be formed for the purpose of assisting in the resolution of the issues arising out of the Davis case.
The minutes of the November 4, 1981 meeting reflect that Gilliard moved to approve, for the purpose of discussion, the proposed interim consent decree as presented by the Board attorney. Later in the meeting, Gilliard expressed an interest in the proposed decree as a means to put an end to the litigation proceedings. The following colloquy thereupon took place:
The minutes of the meeting further reflect that Alexander refused to accept Gilliard's prior motion on the grounds that Gilliard was precluded from voting in this matter.
Later in the same meeting, Alexander stated that he was concerned about Board appointments to the proposed committee while two members of the Board were also members of the Davis plaintiff class and one member of the Board (Gilliard) has been head of the National Association for the Advancement of Colored People (NAACP), an organization involved in the Davis lawsuit.
At subsequent Board meetings on December 9, 1981 and January 13, 1982, Alexander reiterated his position that Gilliard would not be allowed to vote in connection with the appointment of representatives to the committee contemplated by the proposed interim consent decree.
During a meeting of the Board on January 27, 1982, from which Alexander was absent, the following statement written by Alexander was read into the minutes of the meeting:
Commissioner Bosarge, as acting chairman in the absence of Alexander, accepted Gilliard's vote on the motion of Commissioner Berger "to approve the concept of the redrafted consent decree in the Birdie Mae Davis Case."
Finally, on June 23, 1982, at a meeting of the Board wherein Agenda Item Number 15, "Birdie Mae Davis Special Activities" was discussed, Alexander explicitly refused to recognize Gilliard's vocal vote on the matter.
The court finds that Gilliard was at all material times herein and is still president of the local chapter of NAACP. The Davis suit was not brought by NAACP, nor has NAACP ever been a party to the Davis suit, although the plaintiff class is represented of counsel by the NAACP Legal Defense Fund. The local branch of NAACP has never been a party to the Davis suit, nor has it made financial contributions to the prosecution of the Davis case. At no time material herein did Gilliard have children in the Mobile County public school system, nor does he have children in the system at present. Gilliard has no financial interest in the prosecution of the Davis case.
The court further finds that Alexander, prior to the events material herein, had applied for and received from the Alabama State Ethics Commission an Advisory Opinion, No. 424, April 24, 1980, concerning possible conflict between Gilliard's involvement with the local branch of NAACP and his membership on the Board. The Commission found that Gilliard had not violated the provisions of the Alabama Ethics Act, Ala.Code §§ 36-25-5(a), -6, and -7(a) (1975) by voting to oppose Board intervention in the Davis case. The Commission reasoned that absent evidence that Gilliard's vote resulted in "direct personal financial gain" he had not violated the ethics law by voting on issues concerning the Davis case, in spite of his status as president of the local branch of NAACP.
The court has jurisdiction over this matter based on ancillary jurisdiction. This suit originally was brought to challenge the at-large method of electing members of the Board. 428 F.Supp. at 1125. Jurisdiction exists over this original challenge under 28 U.S.C. §§ 1343(3)-(4) and 2201. Id. This court has retained jurisdiction for the implementation of its remedial order. Id. at 1146. Ancillary jurisdiction extends to those acts that federal courts must take in order to carry out its judgments in matters to which it has jurisdiction. 6 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3523, at 60 (1975) (hereinafter Wright & Miller). Central to this court's remedial orders in this case is the election of Board members from single-member districts, see 428 F.Supp. at 1146, and the maintenance in the district-elected members of the rights, privileges and duties of their office, see Brown v. Moore, 448 U.S. 1335, 101 S.Ct. 16, 65 L.Ed.2d 1158 (S.D. Ala.1980) () at 7. Ancillary jurisdiction exists over this motion seeking to preserve those rights.
This court has sought to modify the laws of the State of Alabama with respect to the Board only to the extent necessary to meet constitutional mandate. See, e.g., 428 F.Supp. at 1144. The law of Alabama governs the rights, privileges and duties of Board members to the extent not inconsistent with constitutional directives. However, this court need not abstain from addressing the issues presented in this motion simply because they are rooted in state law. This motion does not fall within any of the recognized abstention doctrines. See generally Wright & Miller, §§ 4241-48. Nor is this a case wherein certification would be necessary. See generally id. at § 4248.
Alexander argues that this motion should have been brought in the Davis case. While the controversy between Gilliard and Alexander involves Board voting on aspects of the Davis case, the issue is whether Gilliard's vote was improperly disallowed. Because Gilliard was elected from a single-member district pursuant to remedial orders issued in this case, this case is clearly a proper forum for an adjudication of the rights, privileges and duties that attend to Gilliard's office.
Conflicts of interest are governed by the Alabama Ethics Act, Ala.Code §§ 36-25-5(a), -6, and -7(a) (1975), which provides as follows:
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