Ex parte James

• Decision Date: 10 January 1997
• Citation: 713 So.2d 869
• Parties: 128 Ed. Law Rep. 415 Ex parte Governor Fob JAMES, et al. (In re ALABAMA COALITION FOR EQUITY, INC., an Alabama nonprofit corporation, et al. v. Fob JAMES, Jr., in his official capacity as Governor of the State of Alabama and as president of the State Board of Education, et al.). Ex parte Governor Fob JAMES, et al. (In re Mary HARPER, suing as next friend of Deion Harper; and Kerry Phillips, a minor, et al. v. Fob JAMES, Jr., in his official capacity as Governor of the State of Alabama and as president of the State Board of Education, et al.). Fob JAMES, Jr., in his official capacity as Governor of the State of Alabama and as president of the State Board of Education, et al. v. ALABAMA COALITION FOR EQUITY, INC., et al. Fob JAMES, Jr., in his official capacity as Governor of the State of Alabama and as president of the State Board of Education, et al. v. Mary HARPER, et al. Joyce PINTO, et al. v. ALABAMA COALITION FOR EQUITY, et al. Joyce PINTO, et al. v. ALABAMA COALITION FOR EQUITY, et al. Ex parte Fob JAMES, Governor of Alabama, et al. (In re ALABAMA COALITION FOR EQUITY, INC., an Alabama nonprofit corporation, et al. v. Fob JAMES, in his official capacity as Governor of Alabama, et al.). 1950030, 1950031, 1950240, 1950241, 1950408, 1950409 and 1950917.
• Court: Alabama Supreme Court

Page 869

713 So.2d 869

128 Ed. Law Rep. 415

Ex parte Governor Fob JAMES, et al.

(In re ALABAMA COALITION FOR EQUITY, INC., an Alabama nonprofit corporation, et al. v. Fob JAMES, Jr., in his official capacity as Governor of the State of Alabama and as president of the State Board of Education, et al.).

Ex parte Governor Fob JAMES, et al.

(In re Mary HARPER, suing as next friend of Deion Harper; and Kerry Phillips, a minor, et al. v. Fob JAMES, Jr., in his official capacity as Governor of the State of Alabama and as president of the State Board of Education, et al.).

Fob JAMES, Jr., in his official capacity as Governor of the State of Alabama and as president of the State Board of Education, et al. v. ALABAMA COALITION FOR EQUITY, INC., et al.

Fob JAMES, Jr., in his official capacity as Governor of the State of Alabama and as president of the State Board of Education, et al. v. Mary HARPER, et al.

Joyce PINTO, et al. v. ALABAMA COALITION FOR EQUITY, et al.

Joyce PINTO, et al. v. ALABAMA COALITION FOR EQUITY, et al.

Ex parte Fob JAMES, Governor of Alabama, et al.

(In re ALABAMA COALITION FOR EQUITY, INC., an Alabama nonprofit corporation, et al. v. Fob JAMES, in his official capacity as Governor of Alabama, et al.).

1950030, 1950031, 1950240, 1950241, 1950408, 1950409 and 1950917.

Supreme Court of Alabama.

Jan. 10, 1997.

Judgment Modified on Denial

of Rehearing Dec. 3, 1997.

(See Opinion and Special Writings

at 713 So.2d 935.)

Jeff Sessions and Bill Pryor, attys. gen., and Brock B. Gordon, Mobile, for Attorney General Jeff Sessions; and M. Roland Nachman, Jr., and William P. Gray, Jr., Montgomery, for Governor Fob James and the state finance director.

Samuel Adams, Montgomery; and Kendrick E. Webb and Bart Harmon of Webb & Eley, P.C., Montgomery; and Thomas F. Parker IV, Montgomery, for the Pinto parties.

C. C. Torbert, Jr., of Maynard, Cooper, Frierson & Gale, P.C. [firm name later stated as Maynard, Cooper & Gale, P.C.], Montgomery; Michael D. Waters and Susan Russ Walker of Miller, Hamilton, Snider & Odom, Montgomery; and James G. Speake of Speake & Speake, Moulton, for Alabama Coalition for Equity, Inc.

Victoria Farr and Reuben Cook, Tuscaloosa, for Alabama Disabilities Advocacy Program and John Doe plaintiffs.

Robert D. Segall of Copeland, Franco, Screws & Gill, P.A., Montgomery; Chris Hansen, American Civil Liberties Union Foundation, New York City; and Martha I. Morgan, Tuscaloosa, for Harper plaintiffs.

COOK, Justice.

These cases offer us another opportunity to review trial court proceedings in what has come to be known as the "Public School Equity Funding Case." See Pinto v. Alabama Coalition for Equity, 662 So.2d 894 (Ala.1995); and Opinion of the Justices No. 333, 624 So.2d 107 (Ala.1993). Those two opinions adequately set forth the facts underlying this dispute, and we will not rehearse them unnecessarily in this opinion. The following pertinent events have transpired since we released Pinto:

In a motion filed on or about May 15, 1995, Governor Fob James, Jr., and Finance Director James Baker asked Judge Eugene Reese, of the Montgomery Circuit Court, to recuse from further proceedings in the case. The motion alternatively requested that Judge Reese solicit an advisory opinion from the Judicial Inquiry Commission ("Commission") as to his qualification to preside further over the case. On August 18, 1995, the Commission issued an opinion holding that Judge Reese was "disqualified from continuing to sit in the case."

The Commission reached this conclusion on the basis of Canon 3(C)(1), Alabama Canons of Judicial Ethics, which states that "[a] judge should disqualify himself in a proceeding in which his ... impartiality might reasonably be questioned." Although it found no evidence of "actual bias," the Commission concluded that the totality of circumstances surrounding the case afforded "a reasonable basis for questioning the judge's impartiality." In particular, the Commission noted the manner in which the case had been discussed and debated by both candidates in the 1994 Democratic Primary campaign for the office of Associate Justice of the Alabama Supreme Court (Judge Reese was one of those two candidates). Also, the Commission noted that the "case [was] still pending," and that issues as to which Judge Reese had "publicly declared his leadership [would be] presented to him for reconsideration." Thereafter, on August 23, 1995, Judge Reese withdrew from the case and it was reassigned to Judge Sarah M. Greenhaw.

On September 15, 1995, Governor James, Finance Director Baker, and Attorney General Jeff Sessions ("State parties") jointly moved the trial court to vacate the orders relating to both the Liability Phase and the Remedy Plan, and to dismiss the action for lack of subject matter jurisdiction. A motion filed earlier by the Pinto intervenors sought similar action as to the Remedy Plan. On October 6, 1995, the trial court denied the motions. Also, pursuant to Ala. R. Civ. P. 54(b), it expressly determined "that there [was] no just reason for delay and ... direct[ed] the entry of final judgment as to the" Remedy Plan. At that time, Judge Greenhaw struck p XI(F) of the Remedy Plan, which stated: "Retention of Jurisdiction--The court hereby retains jurisdiction of this matter and will issue such further orders as may be required to secure the implementation of its orders." ¹

On October 12, 1995, the State parties petitioned this Court, pursuant to Ala. R. App. P. 5, for permission to appeal from the judgment entered on October 6, 1995, insofar as it overruled their motions to dismiss the action. The cases numbered 1950030 and 1950031 represent those petitions. On November 8, 1995, the State parties appealed from the judgment that had been certified under Rule 54(b) as final; that judgment consisted of the Remedy Plan. Cases 1950240 and 1950241 represent those appeals. Also, in cases 1950408 and 1950409, the Pinto intervenors appealed from the certified judgment.

On February 6, 1996, after these appeals were filed, the trial court, over the objections of the State parties, appointed "an independent monitor ... to oversee the implementation of the Remedy Plan." It also granted "attorneys for [the] plaintiffs ... leave to make application for an award of attorneys' fees," and set dates for the filing of "fee declarations requesting payment of attorney fees and expenses, with supporting documentation." On March 14, 1996, the State parties petitioned this Court for a writ of prohibition, or, alternatively, a writ of mandamus, directing the trial court to vacate its February 6 order and to stay the proceedings in the trial court pending the resolution of these appeals. Case 1950917 represents this petition. Cases 1950030, 1950031, 1950240, 1950241, 1950408, 1950409, and 1950917 have been consolidated for resolution on appeal. We shall address the issues peculiar to each of the seven cases, arranging the parts of this opinion according to the sequence in which the cases are numbered.

I. Cases 1950030 and 1950031--Petitions for Permission to Appeal

The State parties seek permission, pursuant to Ala. R. App. P. 5, to appeal the denial of their motion to vacate all previous orders and to dismiss the action. Their petition challenges, primarily on constitutional grounds, the validity of the Liability Phase--in addition to challenging the Remedy Plan. More specifically, the State parties argue that the trial court's holdings as to both Phases of this action violate the separation of powers doctrine.

Ordinarily, we would, before reviewing issues pursuant to Rule 5, order briefs from opposing parties. In this case, however, the issues involved in cases 1950030 and 1950031 are the same issues presented in cases 1950240 and 1950241, and in those cases the issues have been fully briefed by the opposing parties. For this reason, and because the Remedy Plan is not yet final and appealable, we grant the petitions and review the issues pursuant to Rule 5. We shall explain the present procedural posture of the Remedy Plan before addressing the merits of the State parties' arguments.

Procedurally and substantively, the Remedy Plan differs from the Liability Phase. In the text of Pinto, we set forth several sections of the Remedy Plan as evidence that "the court intended to oversee and direct the processes of education 'reform' for an indefinite period," that is, as evidence of its inherently interlocutory nature. 662 So.2d at 899 (emphasis added). After reproducing several exemplary excerpts from the Remedy Plan, we stated:

"These and numerous other provisions of the Remedy [Plan] [emphasis added] obviously contemplate perennial revision and reassessment [emphasis in Pinto ] of the progress of the process, the purpose of which is to convert a system that failed to 'offer equitable and adequate educational opportunities to the schoolchildren of the state,' Opinion of the Justices, No. 338, 624 So.2d 107, 110 (Ala.1993) (emphasis added [in Pinto] ), into a system that succeeds in doing so."

662 So.2d at 899. We described this objective as an "ambitious" one--one that could not "be achieved without significantly impacting--directly or indirectly--virtually every Alabama citizen for years to come." Id. at 899-900.

Thus, it was not merely p XI(F) of the Remedy Plan that rendered the Remedy Plan interlocutory. ² Indeed, Judge Greenhaw, in her order of October 6, 1995, in an apparent attempt to facilitate appellate review of the Remedy Plan, stated:

"[I] In the Remedy Order the trial court specifically retained jurisdiction to issue further orders required to secure implementation. [II] Inasmuch as this court has made the Remedy and Remedy Approval Orders final, for purposes of the record Sec. XI(F) of the Remedy Order is set aside. [III] However, the court would note that it has inherent power to issue such orders as necessary to render its judgments effective...."

(Emphasis added.)

These three...