Doe v. Stegall

• Citation: 653 F.2d 180
• Decision Date: 10 August 1981
• Docket Number: No. 79-3755,79-3755
• Parties: Thomas DOE and Jane Doe, Minors, by Mary Roe, Their next friend, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants, v. V. J. STEGALL, Etc., et al., Defendants-Appellees, State of Mississippi, Intervenor-Appellee. . Unit A
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 180

653 F.2d 180

Thomas DOE and Jane Doe, Minors, by Mary Roe, Their next friend, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants, v. V. J. STEGALL, Etc., et al., Defendants-Appellees State of Mississippi, Intervenor-Appellee.

No. 79-3755.

United States Court of Appeals, Fifth Circuit.

Unit A

Aug. 10, 1981.

Charles H. Ramberg, Robert Rubin, American Civil Liberties Union of Miss., Jackson, Miss., Christopher A. Tabb, Brandon, Miss., for plaintiffs-appellants.

Bill Allain, Atty. Gen., W. V. Westbrook, III, Hubbard T. Saunders, IV, Sp. Asst. Attys. Gen., Jackson, Miss., for State of Miss.

James W. Smith, Jr., Fred M. Harrell, Jr., Brandon, Miss., for V. J. Stegall et al.

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

Before GEE, TATE and WILLIAMS, Circuit Judges.

JERRE S. WILLIAMS, Circuit Judge:

This interlocutory appeal requires us to decide whether a mother and her two children may proceed under fictitious names with their suit challenging the constitutionality of prayer and Bible reading exercises in Mississippi public schools. The district court determined that it had no jurisdiction over a suit mounted by plaintiffs who wished to shield themselves from hostile public reaction to their controversial lawsuit by maintaining their anonymity. Balancing the general principle that parties must disclose their identities to sue in federal court against the countervailing factors presented by this suit, we hold that the district court has jurisdiction of this suit and must allow the plaintiffs to proceed under fictitious names.

I.

Mary Roe brought this suit in October 1979 on behalf of Thomas Doe and Jane Doe, her two minor children who attended the Pelahatchie Middle School in Rankin County, Mississippi. Their suit complains of religiously-oriented ceremonies broadcast each morning over the public address system at the Pelahatchie Middle School. Plaintiffs allege that the school faculty and administrators randomly select students to read poetry, Bible verses, and prayers of a Protestant cast for the school's daily morning devotional observance. The chosen students are expected to rehearse their devotionals before a classroom of their peers and then to perform over the school-wide public address system. Verbal pressure is allegedly exerted on students who do not participate willingly.

Pelahatchie Middle School Principal Stegall concedes that "inspirational programs" are conducted in the manner plaintiff suggests, but denies that their character is exclusively Protestant, or for that matter, religious. Stegall insists that student participation is strictly voluntary. ¹ Further, the Superintendent of Rankin County Schools denies that the school board maintains a policy requiring school prayer. ²

The complaint, framed as a class action, ³ sought to enjoin routine daily religious observances in the county's public schools. It also sought a declaratory judgment invalidating the recently enacted Mississippi statute authorizing voluntary prayer in Mississippi public schools. ⁴ The statute and the religious observances, the complaint charges, violate the establishment clause of the First Amendment.

On November 1, 1979, the plaintiffs promptly moved for a protective order to preserve their anonymity. They agreed to disclose their identities to the defendants and to the Court; ⁵ their motion merely sought to bar disclosure to the general public. Fearing harassment and violence directed against the Roe family generally and the Doe children in particular should their names be publicly disclosed, the plaintiffs asked that they be permitted to proceed under fictitious names. ⁶ A motion for preliminary injunction to stop the ongoing morning religious observances was filed simultaneously. The named defendants officials of the Rankin County schools and the State of Mississippi, which had intervened to defend the constitutionality of its statute, opposed both motions. After considering documentary evidence and legal arguments proferred by both sides, the district court determined that it had no jurisdiction over the lawsuit and issued an order denying both motions. That order is the subject of this appeal.

II.

We turn first to the appealability of the order before us. Our Court has no authority to review "tentative, informal, or incomplete" decisions made by district courts in the course of reaching an ultimate disposition of the controversy before them. Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528 (1949). 28 U.S.C. § 1291 does, however, authorize our review of decisions rendered during the pendency of a lawsuit that, as a practical matter, have a final effect.

The issue before us was squarely addressed by Southern Methodist University Ass'n v. Wynne & Jaffe, 599 F.2d 707 (5th Cir. 1979). There, our Court was confronted with an interlocutory appeal from a district court's refusal to issue a protective order preserving the anonymity of Title VII plaintiffs suing two law firms for sex discrimination. Applying a tripartite test derived from the progeny of Cohen, the panel determined that orders denying plaintiffs an opportunity to proceed anonymously: (1) disposed of the disclosure issue, "leaving nothing 'open, unfinished, or inconclusive' "; (2) addressed issues " 'completely collateral to the cause of action asserted' " and were not "mere steps toward a final judgment on the merits"; and (3) affected " 'important rights which would be lost, probably irreparably' if review had to await final judgment." Southern Methodist University Ass'n, 599 F.2d at 712, quoting Abney v. United States, 431 U.S. 651, 658, 97 S.Ct. 2034, 2039, 52 L.Ed.2d 651 (1977); Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2457, 57 L.Ed.2d 351 (1978); United States v. Gurney, 558 F.2d 1202, 1207 (5th Cir. 1977), cert. denied, 435 U.S. 968, 98 S.Ct. 1606, 56 L.Ed.2d 59 (1978); In re Nissan Motor Corporation Antitrust Litigation, 552 F.2d 1088, 1094-95 (5th Cir. 1977). Based on this analysis, Southern Methodist University Ass'n held the challenged ruling on the requested protective order to be an appealable collateral order under 28 U.S.C. § 1291.

The posture of the order challenged by the Does meshes precisely with the orders reviewed in Southern Methodist University Ass'n. The result cannot be otherwise: the district court's denial of the Doe's motion is an appealable collateral order.

III.

A second threshold consideration is the Article III vitality of this nearly two year old controversy. In February 1980, the Does and Rankin County school officials entered into a consent decree prohibiting further broadcasts of prayer, Bible readings, or "other material of a religious devotional nature" over public address systems of the Rankin County schools. ⁷ The Rankin County defendants argue that the consent decree moots the Does' appeal from the district court's order denying their motion for a preliminary injunction. Their involvement in a justiciable controversy ended, the Rankin County school officials maintain, when the decree was entered.

The State of Mississippi, on the other hand, in effect concedes that a live controversy remains over the constitutionality of Miss.Code Ann. § 37-13-4. See n.4, supra. Because the State also opposed the plaintiffs' motion for a protective order, a justiciable controversy continues to underlie this interlocutory appeal.

We believe that a continuing controversy may extend to the Rankin County defendants as well. ⁸ The consent decree prohibits three varieties of religious observance over the Rankin County school public address systems. Plaintiffs complaint, however, seeks an injunction barring "any further religious observance" in Rankin County schools. Activities within the scope of relief sought in the Does' complaint for example, morning devotionals in an individual classroom are not addressed by the consent decree. The remedy afforded in the consent decree is more narrowly drawn than the ban on religious practices in the Rankin County schools requested by the Does. Thus, we cannot say at this stage of the proceedings that the entire controversy between the Does and the Rankin County school officials is moot. ⁹

IV.

Having determined that we have jurisdiction to hear this appeal, we reach the merits of the Does' claim that their motion for a protective order was wrongly denied. Fed.R.Civ.P. 26(c) vests in the trial court discretion over litigants' requests for protection from "annoyance, embarrassment, oppression, or undue burden or expense" in the discovery process. Moreover, the trial court enjoys broad discretion over discovery on jurisdictional issues. Washington v. Norton Mnfg. Inc., 588 F.2d 441, 443 (5th Cir.), cert. denied, 442 U.S. 942, 99 S.Ct. 2886, 61 L.Ed.2d 313 (1979). Therefore, the ordinary standard for appellate review of trial court rulings on protective orders is whether the trial court abused its discretion. Perel v. Vanderford, 547 F.2d 278, 280 (5th Cir. 1977). Conversely, if the trial court's ruling is based upon an error in law it is freely reviewable on appeal.

In denying the Does' motion for a protective order, the district judge determined that he lacked jurisdiction to decide a case brought by plaintiffs who wished to prevent public disclosure of their identities under these circumstances. The district court's order cited Southern Methodist University Ass'n v. Wynne & Jaffe, 599 F.2d at 713, and reasoned:

This is certainly not an unusual case where the identity of the parties could possibly do more than annoy the parties and subject them to possible criticism. That is certainly not enough to deprive this Court and the public in general of the right to know the identity of the parties who are permitted to bring difficult constitutional questions before this Court without any legitimate and impelling reasons so to do.

Record at...