Spangler v. Pasadena City Bd. of Ed.

• Decision Date: 25 May 1976
• Docket Number: Nos. 74--2530,75--1714,s. 74--2530
• Citation: 537 F.2d 1031
• Parties: Nancy Anne SPANGLER, by her father and next friend, James E. Spangler, Jr., et al., Plaintiffs-Appellees, and United States of America, Plaintiff-Intervenor-Appellee, v. PASADENA CITY BOARD OF EDUCATION et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1031

537 F.2d 1031

Nancy Anne SPANGLER, by her father and next friend, James E Spangler, Jr., et al., Plaintiffs-Appellees and United States of America, Plaintiff-Intervenor-Appellee, v. PASADENA CITY BOARD OF EDUCATION et al., Defendants-Appellants.

Nos. 74--2530, 75--1714.

United States Court of Appeals Ninth Circuit.

May 25, 1976.

Lee G. Paul (argued), of Paul, Hastings, Janofsky & Walker, Los Angeles, Cal., Charles B. Johnson, Pasadena, Cal., for defendants-appellants.

Fred Okrand (argued), of ACLU Foundation of Southern Cal., Los Angeles, Cal., for plaintiffs-appellees.

Neal J. Tonken (argued), Atty., U.S. Dept. of Justice, Washington, D.C., for intervenor-appellee.

OPINION

Before CHAMBERS and WALLACE, Circuit Judges, and JAMESON, District Judge.

CHAMBERS, Circuit Judge.

This is another chapter in Pasadena, California, school desegregation ordered by the District Court, Spangler v. Pasadena City Board of Education, 519 F.2d 430 (9th Cir. 1975), certiorari, 423 U.S. 945, 96 S.Ct. 355, 46 L.Ed.2d 276, 44 U.S.L.W. 3271 (1976) granted. The reported case gives the background.

Part of the original plan provided rules for selecting school administrators to give representation to minorities.

On a motion to adjudge the school board in civil contempt for not complying with the Court's decree on hiring administrators the board contended it had only appointed 'acting' administrators. 'Acting' people did not have the special racial qualifications of the original decree.

After the Court ruled 'acting' administrators had to qualify under the plan, the board accepted the ruling, but it still objects to the contempt holding.

We hold that the civil contempt is now moot. (The daily fine was stayed pending appeal.) There seems so little likelihood that the problem with reoccur that we hold there is no controversy, which of course is the threshold of any federal jurisdiction. Thus we do not get to subject matter jurisdiction.

The contempt proceeding was brought by a father not a party to the original proceeding. As a part of its holding of contempt, the District Court fashioned a 'review board' to oversee future hiring of administrators. This would only serve to perpetuate control of the schools by the Court and take the power out of the school board where it belongs. Maybe it might well have been put in the original decree, limited as to time.

We find it error to create the review board without advance notice to the school board that such was under contemplation. If the board of review has been created, it is time for it to go home.

Case 75--1714 involves attorney's fees denied Charles Johnson, a lawyer who appeared for himself. The denial is affirmed. If the fees were allowable, there was no abuse of discretion. And fees might not be allowable at all under Alyeska Pipeline Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975).

REMANDED FOR PROCEEDINGS CONSISTENT HEREWITH.

WALLACE, Circuit Judge (dissenting):

I respectfully dissent. I conclude that the district court was without jurisdiction. Johnson, a taxpayer and a father of two black students in Pasadena, was the sole moving party. However interested he may be, as a taxpayer and a father, in the enforcement of the district court's desegregation order, he lacks the requisite standing for prosecuting the contempt action.

The district court found Pasadena to be in civil contempt. Spangler v. Pasadena City Board of Education, 384 F.Supp. 846, 851 (C.D.Cal.1974) (Spangler II). Only the real parties in interest may institute a civil contempt action; a district court is without authority to do so sua sponte. MacNeil v. United States, 236 F.2d 149, 153--55 (1st Cir.), cert. denied, 352 U.S. 912, 77 S.Ct. 150, 1 L.Ed.2d 119 (1956); see Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 444--45, 451, 31 S.Ct. 492, 55 L.Ed. 797 (1911). Therefore, the first question is whether Johnson had standing to bring the contempt proceeding.

Spangler and the government argue that Johnson had standing pursuant to Rule 71, Fed.R.Civ.P., which states:

When an order is made in favor of a person who is not a party to the action, he may enforce obedience to the order by the same process as if he were a party . . ..

I find no indication whatsoever that the district court's original order was made in favor of Johnson, as an individual, or more generally in favor of parents of schoolchildren. Spangler v. Pasadena City Board of Education, 311 F.Supp. 501, 505, 521 (C.D.Cal.1970) (Spangler I). See United States v. American Society of Composers, Authors and Publishers, 341 F.2d 1003, 1008 (2d Cir.), appeal dismissed, 382 U.S. 38, 86 S.Ct. 160, 15 L.Ed.2d 32, cert. denied, 382 U.S. 877, 86 S.Ct. 160, 15 L.Ed.2d 119 (1965) (indirect benefit insufficient). The desegregation order was made in favor of students in the school district. Parental interest in the well-being of their children, which may be sufficient for purposes of intervention as of right pursuant to Rule 24(a)(2), Fed.R.Civ.P. ¹ is not the touchstone for determining standing to enforce a decree under Rule 71. There is no indication in the history of Rule 71 that it was designed for other than the 'common sense' purpose of allowing identifiable individuals to enforce rights that have been specifically adjudged by a court order. 12 C. Wright & A. Miller, Federal Practice and Procedure § 3031, at 80 (1973). Here, there is no right for parents such as Johnson to enforce the decree entered for and on behalf of the children.

Aside from failing to meet Rule 71 requirements, I am even more troubled by the district court's implicit recognition that Johnson has met the threshold requirements of standing to sue. Spangler II, supra, 384 F.Supp. at 848--49. Johnson clearly lacks standing to sue as a taxpayer. Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968). Thus, he has no standing unless he has sustained an 'injury in fact,' and his interest is 'arguably within the zone of interests to be protected or regulated by the . . . constitutional guarantee in question.' Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 152--53, 90 S.Ct. 827, 830, 25 L.Ed.2d 184 (1970). I conclude that he fails this test also.

Even if I assume that Johnson is injured in fact, he is not within the zone of interests protected by the equal protection clause of the Fourteenth Amendment. In holding that the equal protection clause is violated by racially segregated educational facilities, Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954) (Brown I), is couched solely in terms of the deprivations suffered by black children. The Court limited the issue in Brown I to whether 'the children of the minority group' were harmed by public school segregation, 347 U.S. at 493, 74 S.Ct. at 691; the interests of neither parents nor the public were discussed. Cf. Milliken v. Bradley, 418 U.S. 717, 722 & n.2, 94 S.Ct. 3112, 41 L.Ed.2d 1069 (1974) (noting that standing of the NAACP was not a contested issue before the Court). In fact, Brown I and other major pronouncements on school segregation all involved plaintiffs who were school-children. ²

I do not read Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925), to imply that a parental right is at stake in school segregation cases. In Pierce, the Court struck down a statute which compelled attendance at public schools only, on the grounds that it 'unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control.' 268 U.S. at 534--35, 45 S.Ct. at 573 (citing Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923)); see Roe v. Wade, 410 U.S. 113, 152--53, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) (describing Pierce and Meyer as cases implicating a right of personal privacy).

There is a fundamental distinction, however, between rights which serve to preserve parental authority and privacy, on the one hand, and rights which limit the exercise of that authority to protect the child's present welfare and to provide for his or her development into a competent adult, on the other. Wisconsin v. Yoder, 406 U.S. 205, 229--34, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972); Prince v. Massachusetts, 321 U.S. 158, 165--70, 64 S.Ct. 438, 88 L.Ed. 645 (1944); see J. Locke, Two Treatises of Government bk. I, chs. II, VI, & bk. II, ch. VI (P. Laslett rev. ed. 1960). I do not find school desegregation to be designed to preserve parental authority or to further parental privacy. Indeed, it has been the exercise of white parental 'privacy' that has led to the evil of de jure school segregation. I conclude that the zone of interests to be protected pertain more properly to schoolchildren than to parents. Accord, Allen v. State Board of Education, 55 F.R.D. 350, 352 (M.D.N.C.1972), aff'd mem., 473 F.2d 906 (4th Cir. 1973); see Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975); Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969); Ybarra v. City of San Jose, 503 F.2d 1041, 1044 (9th Cir. 1974) ('causal relationship between (school segregation) and the alleged discriminatory administration of the zoning ordinances is not so attenuated as to deny standing to at least the minor appellants.'). ³ Thus, even assuming that Johnson is injured in fact for Article III case or controversy purposes, he does not meet the second prong of the Data Processing test. See Warth v. Seldin, 422 U.S. 490, 498--99, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975); United States v. Richardson, 418 U.S. 166, 196 n.18, 94 S.Ct. 2940, 41 L.Ed.2d 678 (1974) (Powell, J., concurring).

Nor do I find any reason for relaxing the prudential limitations on those attempting to assert the rights of third parties. This is not a case where a litigant has standing to assert the rights of others because a relationship existing between the...