Mallory v. Eyrich
| Decision Date | 10 January 1991 |
| Docket Number | No. 90-3558,90-3558 |
| Citation | 922 F.2d 1273 |
| Parties | William MALLORY; Arthur Primus; Vera Johnson; Charles Collins, II; Mary Ann Randolph, Plaintiffs-Appellants, v. George C. EYRICH, John H. Hermanies, John A. Wiethe, and Don Driehaus, County Defendants-Appellees, Richard Celeste, Governor, et al., State Defendants, Hamilton County Municipal Court Judges, et al., Intervening Defendants. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Theodore M. Berry, Tobias & Kraus, Peter J. Randolph, Cincinnati, Ohio, Thomas I. Atkins (argued), Brooklyn, N.Y., James L. Hardiman, Hardiman, Alexander, Buchanan & Howland, Cleveland, Ohio, Margrett Ford, Brooklyn, N.Y., for plaintiffs-appellants.
James W. Harper, Asst. Pros. Atty. (argued), Pros. Atty.'s Office for County of Hamilton, Cincinnati, Ohio, for County defendants-appellees.
Andrew I. Sutter, Asst. Atty. Gen., Office of the Atty. Gen. of Ohio, Columbus, Ohio, for State defendants.
Carl J. Stich, Jr., Dinsmore & Shohl, Cincinnati, Ohio, for intervening defendants.
Before WELLFORD, Circuit Judge, LIVELY, Senior Circuit Judge, and McRAE *, Senior District Judge.
This appeal seeks reversal of a district court order, entered pursuant to Fed.R.Civ.P. 60(b)(6), which set aside a judgment previously entered in the case pursuant to Fed.R.Civ.P. 68. We agree with the plaintiffs that the district court erred, and we reverse.
The underlying action was filed in the district court in 1986 by a group of black residents of Hamilton County, Ohio, challenging the at-large, county-wide scheme on which the election of Hamilton County Municipal Court judges is based. The plaintiffs asserted various claims under the United States Constitution, the Civil Rights Act of 1871, 42 U.S.C. Sec. 1983, and the Voting Rights Act of 1965, as amended, 42 U.S.C. Sec. 1973. The defendants are the Chairman and members of the Hamilton County Board of Elections (county defendants) and the Governor and Secretary of State of Ohio (state defendants).
The parties filed cross-motions for summary judgment on the issue of the applicability of section 2 of the Voting Rights Act to judicial elections. Following briefing and a hearing, the district court agreed with the defendants that section 2 does not apply to judicial elections and, accordingly, entered summary judgment for the defendants. Mallory v. Eyrich, 666 F.Supp. 1060 (S.D.Ohio 1987). On appeal, this court reversed the judgment of the district court, holding that section 2 of the Voting Rights Act does apply to election of judges of the Hamilton County Municipal Court. Mallory v. Eyrich, 839 F.2d 275 (6th Cir.1988).
Following remand and further discovery, the district court set a final pretrial conference date. Immediately prior to that conference the state defendants submitted an offer of judgment pursuant to Rule 68, and the plaintiffs accepted the offer. Shortly thereafter the county defendants submitted a similar offer of judgment, also pursuant to Rule 68, and the plaintiffs accepted that offer as well. The clerk of the district court entered separate judgments for the plaintiffs.
The county defendants' offer of judgment, after reciting proceedings of the Board of Elections, provided as follows:
1. ... the defendant Hamilton County Board of Elections offers Judgment to the plaintiffs on their claim that the statutory procedure by which multiple judicial positions on the Hamilton County Municipal Court are filled through county-wide single judicial district elections, violates the provisions of the Voting Rights Act of 1965, as amended. 42 U.S.C. Section 1973 et seq.
2. This offer does not admit liability on any other claims raised by the plaintiffs.
3. This offer extends only to the liability phase of this case and should not be construed as a limitation upon the right of the County Defendants to fully participate during any remedial stage of this case.
Following receipt of the plaintiffs' acceptance, on September 15, 1989, the clerk entered judgment for the plaintiffs on the "Complaint challenging O.R.C. [Ohio Revised Code] 1908 as violative of Section 2 of the 1965 Voting Rights Act, 42 U.S.C. 1973, as amended."
After the General Assembly of Ohio failed to address the issue raised by this case, the district court, without conducting a hearing, entered a remedial order on March 30, 1990. This order appointed a special master and instructed the master to divide Hamilton County geographically into fourteen equal judicial districts, three of which were to have a black population of at least 51%. On the same date, the district court, again without a hearing, granted intervention of right to the sitting Hamilton County Municipal Court judges.
The county defendants and the intervening judges appealed the remedy order and the plaintiffs appealed the order granting intervention of right to the judges. In an unpublished order, this court dismissed both appeals as premature.
On April 4, 1990, the county defendants filed a pleading in the district court styled "Defendant Board's Request for Relief from Judgment Rule 60(b)(6)." In an accompanying memorandum the county defendants stated that the Board of Elections had adopted a resolution to withdraw its previous offer of judgment. The only ground stated for granting relief from the previously entered Rule 68 judgment was that "the issues raised by this case should be the subject of a decision on a fully developed record."
The district court entered an order giving the plaintiffs an opportunity to show cause in writing why it should not grant the county defendants' request for relief from judgment. Following receipt of the plaintiffs' response, in which they raised the issues now relied upon for reversal, the district court granted the county defendants' motion, stating "the Court determines that the Judgment entered on September 15, 1989, should be and it is hereby set aside as to the Defendant Board of Elections of Hamilton County, Ohio, and such Defendant may participate in all future proceedings in this case." The plaintiffs filed a timely notice of appeal, and this court assigned an expedited briefing schedule. Following oral argument on November 28, 1990, the appeal was submitted for decision.
The state defendants did not seek relief from the Rule 68 judgment entered against them and are not parties to this appeal. Thus, all references in this opinion to the defendants include only the county defendants.
The defendants have raised a jurisdictional issue, which we will address first. They argue that the order granting relief from the Rule 68 judgment was not a final appealable order and that this court has no jurisdiction to entertain this appeal. They contend that because the Rule 68 judgment resolved only the claim of liability under the Voting Rights Act and left unresolved the claims of constitutional violations and all issues related to remedy, it lacked finality. Thus it was subject to modification or rescission by the district court at any time before entry of a judgment disposing of all the issues in the case.
The defendants maintain that the judgment did not meet the finality requirement of 28 U.S.C. Sec. 1291 () and was not such an interlocutory order as may be appealed under 28 U.S.C. Sec. 1292. Finally, the judgment was not accompanied by a certificate pursuant to Fed.R.Civ.P. 54(b) that the district court found no just reason for delay and directing entry of judgment.
Of course, the issue is not whether the Rule 68 judgment is appealable--no one sought to appeal it--but whether the order entered pursuant to Rule 60(b)(6) setting aside the judgment is appealable. The law is settled that a ruling on a Rule 60(b) motion may be appealed under Fed.R.App.P. 4(a). Browder v. Director, Illinois Dept. of Corrections, 434 U.S. 257, 263 n. 7, 98 S.Ct. 556, 560 n. 7, 54 L.Ed.2d 521 (1978); Honneus v. Donovan, 691 F.2d 1, 2 (1st Cir.1982). The defendants argue that this rule only applies when a Rule 60(b) motion seeks relief from a final judgment, and that since the Rule 68 judgment in the present case was not final, the order granting relief from that judgment also lacks finality.
This argument overlooks several important facts. First, the defendants relied solely on Rule 60(b)(6) in seeking relief from the September 15 Rule 68 judgment. Thus, they treated the judgment as final. This is so because, by its terms, Rule 60(b) applies only to final judgments. The rule provides, "On motion and upon such terms as are just, the court may relieve a party ... from a final judgment, order, or proceeding ..." (emphasis added). Second, the district court specifically relied on Rule 60(b)(6) in its order setting the September 15 judgment aside. Thus, whether or not the Rule 68 judgment was final under the section 1291 definition in Coopers & Lybrand v. Livesay, the parties and the court treated it as final and the court proceeded under Rule 60(b)(6) to enter an order that is ordinarily appealable. We do not rest our decision, however, on these assumptions entertained by the parties and the district court. There are more fundamental reasons, related to the nature of a Rule 68 judgment, that make a Rule 60(b) order setting aside such a judgment immediately appealable.
Rule 68, as pertinent here, provides:
Rule 68. Offer of Judgment
At any time more than 10 days before the trial begins, a party defending against a claim may serve upon the adverse party an offer to allow judgment to be taken against the defending party for the money or property or to the effect specified in the offer, with costs then accrued. If within 10 days after the service of the offer the...
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