Smiley v. City of Montgomery

• Decision Date: 27 October 1972
• Docket Number: Civ. A. No. 3708-N,3739-N.
• Citation: 350 F. Supp. 451
• Parties: Dr. E. L. SMILEY et al., Plaintiffs, v. CITY OF MONTGOMERY et al., Defendants. UNITED STATES of America, Plaintiff, v. CITY OF MONTGOMERY et al., Defendants.
• Court: U.S. District Court — Middle District of Alabama

350 F. Supp. 451

Dr. E. L. SMILEY et al., Plaintiffs, v. CITY OF MONTGOMERY et al., Defendants.

UNITED STATES of America, Plaintiff, v. CITY OF MONTGOMERY et al., Defendants.

Civ. A. Nos. 3708-N, 3739-N.

United States District Court, M. D. Alabama, N. D.

October 27, 1972.

Solomon S. Seay, Jr., Joseph J. Levin, Jr., Morris S. Dees, Southern Poverty Law Center, Montgomery, Ala., for Dr. E. L. Smiley and others.

Joseph D. Phelps, Drayton N. Hamilton, Walter J. Knabe, Montgomery, Ala., for City of Montgomery, Jim Robinson, Cliff Evans and Jack Rucker.

J. Mac Jones and Richard H. Dorrough, Jones, Murray, Stewart & Yarbrough, Montgomery, Ala., for Montgomery County Commission, Mack McWhorter, W. F. Joseph, Jr., Robert B. Gentry, Ernest W. Russell and W. Chappell Gray.

Truman Hobbs, Montgomery, Ala., for Montgomery City-County Personnel Board and Wade Moss.

David L. Norman, Asst. Atty. Gen., Ira DeMent, U. S. Atty., Montgomery, Ala., David L. Rose, A. Thomas Hunt, Attys., Dept. of Justice, Washington, D. C., for the United States.

Robert B. Stewart, Jones, Murray, Stewart & Yarbrough, Montgomery, Ala., for Water Works and Sewer Board.

ORDER ON MOTIONS

VARNER, District Judge.

These causes, having been heretofore consolidated by the Court, are submitted on the following motions: Plaintiffs' motion to require the United States to intervene in the suit styled Smiley, et al. v. City of Montgomery, et al.; the Plaintiffs' motion to disapprove the proposed settlement argeement entered in the case styled United States of America v. City of Montgomery, et al.; and motions to dismiss filed severally by the Defendants.

A proposed agreement has been submitted and has been approved by the Court in the case styled United States of America v. City of Montgomery, et al.

The suit styled Smiley, et al. v. City of Montgomery, et al., contains two distinct theories upon which violations of 42 U.S.C. § 1983, are claimed. Plaintiff Paradise, representing himself and that class of black persons wronged by being denied equal employment opportunity by the City and County of Montgomery, files a classic claim of violation of his equal employment opportunity rights by refusal of employment by the City and County, seeking an injunction against further denial of equal employment opportunity for blacks by said Defendants and, in the nature of affirmative relief, his own immediate employment as a security officer. The complaint alleges that Plaintiff Paradise has applied for said job, as well as for other jobs with said Defendants, and has been refused employment because of his race.

The Plaintiffs Smiley, blacks who have never applied for employment with the City or the County, allege that at a certain time and place they were, without good cause, physically mistreated by white policemen, that said mistreatment was caused by the fact that they were black, and that the City of Montgomery, through the years, has effectively barred most blacks from employment in substantial positions by the City and has denied equal employment opportunity to blacks, thereby creating a "white establishment" which does not and will not offer protections and service to blacks equal to those available to whites under the system. The Smileys allege that they represent themselves and members of their class and pray for equal employment opportunities for persons seeking employment by the City and County of Montgomery.

Both the Smileys and Paradise invoked the jurisdiction of this Court under the provisions of 42 U.S.C. § 1983. The relief sought by Plaintiffs is not that ordinarily sought in a suit brought under § 1983. The relief sought is that usually sought pursuant to the provisions of 42 U.S.C. § 2000e.¹

The allegations of the treatment of the Smileys cannot be lightly treated. They state clear and precise instances of alleged mistreatment of citizens under color of state law in violation of 42 U.S. C. § 1983. However, not every person who has his eye blacked by an irate policeman may bring a class action against the municipality by alleging that his race is in the minority at City Hall and, therefore, members thereof are not receiving equal protection.

MOTION TO DISMISS SMILEYS' CLAIM

Dr. and Mrs. Smiley contend they represent the "class of blacks adversely affected by discriminatory operation of the City's programs" and Mr. Paradise represents the "class seeking employment". The only specific relief prayed for here seeks equal employment opportunity for those blacks seeking employment in the future and a job as security officer for Plaintiff Paradise. In short, the only order or judgment which this Court may enter under the pleadings will afford relief only to those seeking employment; those "adversely affected" will benefit only indirectly. While claiming to represent another class, the Smileys seek relief only for the "class seeking employment". Defendants insist, therefore, that the Smileys seek to represent a class to which they do not belong and that they should, therefore, be dismissed from this proceeding. Volume 3-B, Moore's Federal Practice, 23.04; 2 Barron and Holtzoff, Federal Practice and Procedure, § 467, p. 308. Defendants further rely on the following cases: In Bailey v. Patterson, 369 U.S. 31, 82 S.Ct. 549, 7 L.Ed.2d 512, the Court held that black plaintiffs, who had not been arrested, lacked standing to represent other blacks who had been jailed for breach of the peace in demonstrations for equal transportation facilities; in Palmer v. Thompson, 391 F.2d 324 (CCA 5, 1967), the Court held that blacks, not directly affected by segregation statutes as to various governmental functions ranging from recreational to penal facilities, did not have standing to represent other blacks who had sought to utilize such facilities; in Harris v. Echols, 146 F.Supp. 607, 610, (S.D.Ga., 1956), the Court stated that "in the matter of asserting constitutional rights, only one who shows himself injured may complain, and that he cannot champion others who do not choose to complain"; in 3-B, Moore's Federal Practice, 23.04, p. 23-257, the editors state that, in class actions brought to secure civil rights, plaintiffs must "be among those individuals who were objects of the discrimination against which the suit is directed * * *."

The Defendants have moved to strike the Smileys' claim on the ground that they are not members of the class they seek to represent. A similar defense motion was sustained in Wilson v. Kelley, 294 F.Supp. 1005 (N.D.Ga.) aff'd 393 U.S. 266, 89 S.Ct. 477, 21 L.Ed.2d 425.

Contentions similar to those made by the Smileys have occasionally been upheld by the courts. Coleman v. Humphreys County Memorial Hospital, 55 F.R.D. 507 (N.D.Miss.1972); Marable v. Alabama Mental Health Board, 297 F.Supp. 291 (M.D.Ala.1969); United States v. Jefferson County Board of Education, 372 F.2d 836, 883-886, aff'd on rehearing en banc, 380 F.2d 385, cert. den. Caddo Parish School Board v. United States, 389 U.S. 840, 88 S.Ct. 67, 19 L.Ed.2d 103; and Lee v. Macon County Board of Education, 267 F.Supp. 458, 472 (M.D.Ala.) aff'd sub nom. Wallace v. United States, 389 U.S. 215, 88 S.Ct. 415, 19 L.Ed.2d 422. In the last case, the right of minor Negro children to attack policies of unequal employment in hiring teachers was upheld. These school cases were the authority cited for the dissenting opinion which was rejected by the Supreme Court in Wilson v. Kelley, supra.

In Wilson, plaintiffs, inmates in the Georgia penal system, were seeking desegregation of prison employees on the basis that plaintiffs' rights were infringed by the nonsegregated employees of the Georgia penal system. The majority opinion of the three-judge district court, holding that the inmates, having never applied for a job in the state penal system, lacked standing to attack employment policies of the state penal system, was upheld by the Supreme Court of the United States.

A three-judge court in Marable v. Alabama Mental Health Board, supra, declined to follow Wilson in a factual situation where plaintiffs, patients in a state mental health hospital, attacked the discriminatory employment practices of the State Mental Health Board. That court followed the school cases cited above, saying:

"Plaintiffs stand in the same relationship to the hospital staff as students in the public schools stand to their teachers,"

and held that patients, affected secondarily by the unequal employment practices of the state hospital, have standing to attack those practices.

This Court is impressed that, whenever courts have held that persons secondarily affected by an alleged wrong had standing to right that wrong, the alleged wrongs were concerned with conditions of minors or mental deficients who might be assumed, because of their disabilities, to be peculiarly at the mercy of persons in charge. United States v. Jefferson County Board of Education, supra; Lee v. Macon County Board of Education, supra; Coleman v. Humphreys County Memorial Hospital, supra. The instant case does not involve persons who are under such disabilities.

This proceeding, in the opinion of this Court, is controlled by the doctrine in Wilson v. Kelley, supra. The damage or injury of the plaintiff must be directly, rather than vaguely, associated with the claimed wrong. Otherwise, spurious or arguably vexatious litigation could be extended immeasurably by allowing suits by persons seeking to right various wrongs for which they claim some vague or indefinite injury. The position of the Smileys may be likened to that of a creditor who seeks to enforce the rights of his debtor so that his debtor may better pay him. Accordingly, Dr. and Mrs. Smiley will be dismissed as Plaintiffs in their suit for equal employment opportunity for other persons.

MOTION TO REQUIRE GOVERNMENT INTERVENTION

This Court is not inclined to require the Government to intervene in the Paradise and Smiley case. The Government's position relative to future...