Henry v. Coahoma County Board of Education, D-C-43-62.

• Decision Date: 23 December 1963
• Docket Number: No. D-C-43-62.,D-C-43-62.
• Citation: 246 F. Supp. 517
• Parties: Noelle M. HENRY, Plaintiff, v. COAHOMA COUNTY BOARD of EDUCATION, Paul M. Hunter, Superintendent, et al., Defendants.
• Court: U.S. District Court — Northern District of Mississippi

246 F. Supp. 517

Noelle M. HENRY, Plaintiff, v. COAHOMA COUNTY BOARD of EDUCATION, Paul M. Hunter, Superintendent, et al., Defendants.

No. D-C-43-62.

United States District Court N. D. Mississippi, Delta Division.

December 23, 1963.

R. Jess Brown, Jackson, Miss., and Derrick A. Bell, New York City, for plaintiff.

Maynard, Fitzgerald & Maynard, Clarksdale, Miss., for defendants.

CLAYTON, District Judge.

Plaintiff filed her complaint against the County Superintendent of Education and the Board of Education of Coahoma County, Mississippi, alleging that the board had failed to rehire her as a schoolteacher for the school year 1962-1963 because she and her husband are and were engaged in certain civil rights activities with goals and objectives contrary to the policies and views of defendants. She seeks injunctive relief to require that defendants rehire her as a teacher. Through informal assistance from the court and with the cooperation of counsel for defendants technical requirements of process were perfected or in effect waived in order to make the case triable and to avoid any further unnecessary delay. It was heard by the court sitting without a jury on complaint and answer. At the conclusion of the hearing the court directed that the case be submitted on memorandum briefs of the parties. Within the time fixed for plaintiff's brief to come in, she moved to amend her complaint under Rule 15(b), Federal Rules of Civil Procedure, to conform to the evidence by adding as an additional ground for the relief sought allegations that defendants failed to re-employ plaintiff because of her husband's involvement in lawsuits and a criminal prosecution and the possibility that plaintiff would be joined in a suit to set aside as fraudulent, conveyances of property made to her by her husband. This motion is opposed by defendants and was taken with the case for consideration on briefs. That motion will be dealt with first.

Plaintiff and her husband are both Negroes and the suit as originally filed was predicated on the theory that defendants did not re-employ plaintiff because of her activities and the activities of her husband in the field of civil rights for members of the Negro race. While the underlying purpose of the rule is to permit final disposition of a case on the evidence rather than on pleadings, this proposed amendment would in fact almost entirely change the character of the case. In addition, here we are confronted with a peculiar situation which presents a serious problem of notice and an opportunity to be heard with a full and fair opportunity to develop evidentially the point of inquiry now raised as an issue in the case for the first time by the motion to amend, several days after the hearing was over. The evidence which forms the basis for the motion came into the case in response to questions from the bench. It did not result from nor was it developed by questions from counsel. And, it came in over objection by plaintiff.

It was then and is now quite obvious that neither side had prepared to try the case with this area of inquiry in mind. It was equally apparent that neither side at the hearing considered that the court's inquiry had injected a new issue into the case. With reasonable notice there can be little doubt but that this aspect of the controversy could be much more fully developed.

Second thoughts now make it seem that this court might have been derelict in not directing a supplemental hearing, with reasonable notice, for the full evidential development of only this one aspect of the controversy. Undoubtedly, if plaintiff had moved promptly to amend at the close of the hearing such a course of action then would have been followed. Modern concepts of justice under our notice practice seem to dictate, in this situation, with the incomplete development of this area of inquiry, that the amendment be not now, at this late date, allowed. In 1A Barron & Holtzoff, Federal Practice and Procedure, § 449 (Wright Ed. 1960) it is said:

As has been pointed out earlier, however, fair notice remains essential, and pleadings will not be deemed amended to conform to the evidence because of a supposed "implied consent" where the circumstances were such that the other party was not put on notice that a new issue was being raised. * * *

The right to amend to conform to proof is necessarily dependent upon the individual facts and circumstances. * * *

Accordingly, the motion to amend will be overruled.

However, in order that the Court of Appeals may have the benefit of this court's views with respect to the incomplete development of the "lawsuit" aspect of this case, in the event of an appeal, it will be dealt with just as if the plaintiff's motion to amend had been sustained here.

In order to put all of the questions in this case in proper perspective the statutory system which exists in the State of Mississippi for the employment of all teachers in such a school system as that with which we are concerned in this case must be understood. Briefly, this system is that teachers have no tenure, but are employed on a one year contract basis. These contracts develop by the principal of each attendance center recommending to the county superintendent of education teachers for employment in his school. If the county superintendent agrees with these recommendations, he recommends to the county board of education that the people so recommended be employed for that school as teachers for the next school year. If the county superintendent does not agree with the recommendations made by the principal, he makes recommendations on his own initiative. In either event the board of education is powerless to employ anyone as a teacher in such a public school system unless that person is recommended by the county superintendent¹. This question was specifically at issue in the case of Lott v. State ex rel. Kelly, 239 Miss. 97, 121 So.2d 402 (1960). And the court held clearly that the board of education had no power to employ as a teacher a person not recommended by the superintendent of education.

In Lott, the position at issue was that of principal of an attendance center. For that position the recommendation to the board originates with the superintendent, but the authority of the board is no different². In that case the superintendent recommended one person to the board for employment in the position, but the board undertook to employ another who for political and personal reasons had not been recommended by the superintendent and the superintendent refused to give the board-selected person a contract. Suit was to require him to sign the contract. The Supreme Court of Mississippi, inter alia, said:

The difficulty here arises because the board on February 1 rejected one of the superintendent's recommendations and undertook itself to exercise the full appointive power. It had the right to reject the recommendation, for cause, but not to make the appointment of one not recommended. * * * However, the board had no power under the statute to make appointment of a principal who was not recommended by the county superintendent. (Emphasis added.)

The evidence here is plain and uncontradicted that the county superintendent did not recommend plaintiff for employment. Hence, the board was without any authority to employ her and should not, therefore, properly be in this case. The board would be properly in the case (if it could be at all) only if the superintendent had recommended plaintiff and the board had declined to follow the recommendation. Plaintiff is entitled to no relief against the board.

The question raised by the proposed amendment to the complaint, which has been referred to as the "lawsuit" part of this case will be dealt with next. Responding to questions put from the bench the county superintendent stated that...