Jaffree v. Wallace
| Decision Date | 22 January 1988 |
| Docket Number | No. 87-7359,87-7359 |
| Citation | 837 F.2d 1461 |
| Parties | 44 Ed. Law Rep. 111 Ishmael JAFFREE; Mozell Hurst Jaffree, on behalf of herself and all persons similarly situated; Jamael Akki Jaffree; Makeba Green; Chioke Saleem Jaffree; Mailah Akwete Jaffree; Talibah Akwokwo Jaffree, infants, by and through their best of friend and father, Ishmael Jaffree, on behalf of themselves and all other persons similarly situated; Chrystobel Allen; Deborah Darlene Allen; Ronald Lernard Allen; Rebecca Michelle Allen; Clara Preston; Essina M. Preston; Nikklas R. Kidd, Plaintiffs-Appellants, v. George C. WALLACE, as Governor of the State of Alabama, etc; John Tyson, Jr.; Isabelle Thomasson; Nolan Williams; Dr. John L. Fulmer; Victor P. Poole; Dr. Harold C. Martin; Dr. James B. Allen, Jr.; and Dr. Evelyn Pratt, as members of the Alabama State Board of Education; Wayne Teague, as Superintendent of Ala. Bd. of Education; Board of School Commissioners of Mobile County; Judy A. McCain, individually and as member of Board of School Commissioners; Charles S. Belk; Howard F. Mathis, III; Norman C. Cox and Dr. Robert Gilliard, Individually and as members of Board of School Commissioners of Mobile County; Dr. Abe Hammons, Individually and as Superintendent of the Mobile County Board of Education, and Douglas T. Smith, teacher in Public School System of Montgomery County, Alabama, Defendants-Appellees. Non-Argument Calendar. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Ishmael Jaffree, Legal Services Corp. of Alabama, Mobile, Ala., for plaintiffs-appellants.
Jim R. Ippolito, Jr., Office of General Counsel, Alabama Dept. of Educ., Montgomery, Ala., for Alabama State Bd. of Educ. and State Supt. of Educ.
Thomas O. Kotouc, Parker & Kotouc, Thomas F. Parker IV, Montgomery, Ala., for Douglas T. Smith.
Robert C. Campbell, III, Sintz, Campbell, Duke, Taylor, & Cunningham, Mobile, Ala., for Board of School Comm. of Mobile County, et al.
Appeal from the United States District Court for the Southern District of Alabama.
Before HILL, FAY and EDMONDSON, Circuit Judges.
This appeal raises several issues concerning the doctrine of res judicata. Plaintiffs filed and amended their complaint during the pendency of the appeal to this court in Smith v. Board of School Comm'rs of Mobile County, 827 F.2d 684 (11th Cir.1987). The district court (Judge W. Brevard Hand) found that "the issues sought to be litigated in this action are founded upon legal theories which, at the time this action was filed, were pending and due to be litigated in Jaffree v. Board of School Commissioners of Mobile County, Civil Action No. 82-554-H, sub nom. Smith v. Board of School Commissioners of Mobile County, Civil Action No. 82-554-H, an action originally filed by these plaintiffs." Jaffree v. Wallace, No. 86-0515-BH . Thus, the court held that plaintiffs were "estopped to file [or amend] a second action raising the same issues which they had the opportunity to litigate but chose to abandon." Id. Plaintiffs appeal from the district court's order, asserting that (1) Judge Hand should have recused himself from considering this case, and (2) the doctrine of res judicata does not bar the present action. 1 Because we perceive no error in the district court's findings and conclusions, we affirm the court's dismissal of plaintiffs' action.
In 1982, pursuant to 42 U.S.C. sec. 1983, Ishmael Jaffree, one of the appellants in this action, sued on behalf of three of his minor children. He sought a declaratory judgment and injunction against the Mobile County School Board, various school officials, teachers, the Governor of Alabama, and the Alabama State Board of Education. Jaffree challenged classroom prayer activities and three Alabama statutes that allegedly violated the establishment and free exercise clauses of the first amendment. 2 Douglas T. Smith, one of the appellees in this action, and others intervened in Jaffree's action, alleging that an injunction against religious activity in the public schools would violate their right to free exercise of religion. We need not recite in detail the full history of that case, which the parties label "Jaffree I." See Jaffree v. Board of School Comm'rs, 554 F.Supp. 1104, 1128 (S.D.Ala.1983), aff'd in part, rev'd in part sub nom. Jaffree v. Wallace, 705 F.2d 1526 (11th Cir.1983), cert. denied sub nom. Board of School Comm'rs v Jaffree, 466 U.S. 926, 104 S.Ct. 1707, 80 L.Ed.2d 181 (1984); Jaffree v. James, 554 F.Supp. 1130, 1132 (S.D.Ala.1983), aff'd in part, rev'd in part sub nom. Jaffree v. Wallace, 705 F.2d 1526 (11th Cir.1983), aff'd, 472 U.S. 38, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985), 466 U.S. 924, 104 S.Ct. 1704, 80 L.Ed.2d 178 (1984).
Upon remand for an assessment of costs and the enforcement of appropriate injunctive relief, the district court sua sponte realigned the parties by making Smith party-plaintiff, consolidated the cases, and invited the parties to submit briefs and to reopen the record for the presentation of additional evidence. The district court stated that Jaffree could withdraw if he felt that his position had been "fully justified"--in which case the court would consider the question of attorney's fees--or he could remain in the litigation, in which event his motion for attorney's fees would be denied as premature. Jaffree did withdraw, and Smith filed a position statement which asserted, inter alia, that the curriculum in the Mobile County School System unconstitutionally advanced the religion of Humanism and unconstitutionally inhibited Christianity.
Twelve parents of children enrolled in the Mobile County School System intervened as defendants to oppose Smith's request for injunctive and declaratory relief. Judge Hand then held a bench trial in October 1986. He found that the use of forty-four textbooks, which appeared on the Alabama State Approved Textbook List, violated the establishment clause of the first amendment; he permanently enjoined the use of these textbooks in Alabama public schools. On August 26, 1987, we reversed and remanded with directions. Smith v. Board of School Comm'rs, 827 F.2d 684 (11th Cir.), rev'g, 655 F.Supp. 939 (S.D.Ala.1987).
The present action arose directly from circumstances surrounding Jaffree I and Jaffree sub nom. Smith. Prior to the October 1986 bench trial in Jaffree sub nom. Smith, defendants Governor Wallace and the Mobile County Board of School Commissioners separately agreed to entry of consent decrees in favor of Smith. They stipulated that the textbooks in question "demonstrated censorship of the existence, history, contributions, and roles of Protestantism, Catholicism, and Judasim ... in violation of the First Amendment", and they consented "to the establishment of court-approved standards, criteria, or guidelines designed to protect the constitutional rights stipulated herein." 3
In May 1986 plaintiffs-appellants Ishmael Jaffree and his wife, a local school teacher, brought this action on behalf of their five minor children. They sought "to enjoin the appellees from entering or executing agreements which would: (a) deny appellants' free speech rights ..., and equal protection rights ... and (b) establish religion in the public school classroom." They also sought a declaration that "secular humanism is not a religion for establishment purposes and that it was not being promoted in the state's public schools." 4
Although plaintiffs originally filed their action with the Middle District of Alabama, Judge Myron Thompson transferred the case to Judge Hand in the Southern District of Alabama, noting that "[t]he issues [plaintiff Jaffree] raises as a basis for seeking ... relief in this court are substantially similar to the issues now pending before that court." Thereafter, plaintiffs filed a motion to recuse, asserting that Judge Hand (1) exhibited undue partiality concerning the issues and (2) exhibited personal bias against Jaffree. The district court (Judge Hand) denied the motion to disqualify. 5
After filing their motion to recuse, plaintiffs attempted to amend their complaint by naming additional plaintiffs. 6 They also asserted that the State Board of Education had passed a resolution "on or about June 5, 1986, which promotes the religions of Protestantism, Catholicism, and Judaism, denies to the plaintiffs and some members of the classes they seek to represent, the equal protection of the laws in violation of the Fourteenth Amendment." 7 The district court held a hearing on defendants' motions to dismiss.
In May 1987 the district court entered an order dismissing plaintiffs' case. This order came after the district court's decision in Smith (March 1987), yet before our decision to reverse on appeal (August 1987). Smith v. Board of School Comm'rs, 655 F.Supp. 939 (S.D.Ala.), rev'd, 827 F.2d 684 (11th Cir.1987). Upon dismissing the complaint, 8 the district court held that plaintiffs were "estopped to file a second action raising the same issues which they [previously] had the opportunity to litigate but chose to abandon." Jaffree v. Wallace, No. 86-0515-BH, at 2 . This appeal followed.
Appellants claim that Judge Hand improperly refused to recuse himself from this case. Previously we declined to grant appellants' request for a writ of mandamus. Today, we conclude that 28 U.S.C. sec. 455(a) did not indicate a disqualification of Judge Hand.
We review a judge's refusal to recuse himself under the abuse of discretion standard. United States v. Greenough, 782 F.2d 1556, 1558 (11th Cir.1986). The standard "is an objective one, whether a reasonable person knowing all the facts would conclude that the judge's impartiality might reasonably be questioned." Id. Furthermore, "[i]t is well established that an allegation of bias sufficient to require disqualification under ... section 455 must demonstrate that the alleged bias is personal as opposed to judicial in nature." United States...
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