Tucker v. City of Montgomery Board of Com'r

• Decision Date: 16 March 1976
• Docket Number: Civ. A. No. 74-221-N.
• Court: U.S. District Court — Middle District of Alabama
• Parties: Jimmie Lee TUCKER et al., Plaintiffs, v. The CITY OF MONTGOMERY BOARD OF COMMISSIONERS et al., Defendants.

410 F. Supp. 494

Jimmie Lee TUCKER et al., Plaintiffs, v. The CITY OF MONTGOMERY BOARD OF COMMISSIONERS et al., Defendants.

Civ. A. No. 74-221-N.

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

March 16, 1976.

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Howard A. Mandell and Joseph J. Levin, Jr., Montgomery, Ala., for plaintiffs.

Walter J. Knabe, Capell, Howard, Knabe & Cobbs, and Joseph D. Phelps, Robison, Belser, Brewer & Phelps, Montgomery, Ala., for defendants The City of Montgomery Bd. of Commissioners, Jim Robinson, Matthis Piel, and Curtis Springer.

William J. Baxley, Atty. Gen., Myron H. Thompson and Charles N. Parnell, Asst. Attys. Gen., and Tony Davis, Asst. Atty. Gen., State of Alabama, Montgomery, Ala., for defendant William Baxley.

Calvin M. Whitesell, Whitesell & Gordon, Montgomery, Ala., for defendant Robert Strickland.

Before GODBOLD, Circuit Judge, and JOHNSON and VARNER, District Judges.

OPINION

GODBOLD, Circuit Judge:

This class action concerns the constitutionality of several practices claimed to prevail in the Municipal Court of Montgomery, Alabama, and the constitutionality of Alabama statutes that relate to those practices.

These are the alleged practices in question: (1) requiring a convicted defendant to furnish a surety bond in order to appeal his conviction; (2) payment of fees to the Presiding Judge of the Municipal Court in various cases where he has found the defendant guilty or has bound him over to the county grand jury; (3) practices relating to furnishing counsel to indigent defendants who desire counsel; and (4) requiring that an indigent defendant who is sentenced to a fine and costs which are not paid be held in confinement in lieu of the payment.

The Montgomery Municipal Court performs the functions referred to in the state statutes as those of a recorder's court and the judges are at times referred to as recorders. See Tit. 37, § 582 et seq., Code of Ala. (1958 Recompilation).¹ It has original jurisdiction of cases charging violations of ordinances of the City of Montgomery. It has concurrent jurisdiction with state courts of all state misdemeanors committed within the city. Tit. 37, § 594. It conducts preliminary hearings in state felony cases. Tit. 37, §§ 585, 596.

I. The parties

The plaintiffs are five alleged indigents who have been convicted in the Municipal Court and claim to have been adversely affected by one or more of the practices in question. The defendants remaining in the case are The City of Montgomery Board of Commissioners (now The Montgomery City Council); William Baxley, as Attorney General of the State of Alabama; Jim Robinson, individually and as Mayor of the City of Montgomery; Matthis Piel, individually and as Recorder of the City of Montgomery; Curtis Springer, individually and as Assistant Recorder of the City of Montgomery; and Robert Strickland, individually and as Warden of the Montgomery City Jail.

In connection with their prayer for statewide relief on the appeal bond and fee payment claims, plaintiffs designate Mayor Robinson and the Recorder, Judge Piel, as representatives of two defendant classes comprising mayors and recorders throughout the state. Defendants object to inclusion of these classes and assert that the practices of municipal courts throughout the state vary substantially from one locality to another, some such courts having been established pursuant to local acts, general acts of local application, and local ordinances.

Plaintiffs have the burden of convincing the court that the named representatives of a defendant class satisfy Rule 23, Fed.R.Civ.P. See Wright & Miller, Federal Practice & Procedure: Civil, § 1770 at 658-661. Lack of statewide uniformity in municipal courts, though a relevant indicator of the commonality of law and fact questions, is not dispositive.² Plaintiffs challenge the constitutional validity of state statutes on their face and as applied. These statutes govern appellate procedure and allocation of court costs and fees in all recorder's courts in Alabama, regardless of whether established by local ordinances or state legislative acts. Other state statutes establish uniform powers and duties of recorders. It may be that municipal court policies and practices in Alabama vary depending on statutory interpretations and applications, but these variations are inevitable. As long as statutes of general application authorize challenged acts, a showing that every recorder enforces those statutes is not indispensable to a conclusion that common questions of law and fact exist in a class of recorders. Accordingly, we find that the Recorder of the Montgomery Municipal Court may be designated as representative of a class of recorders in other Alabama municipalities.

We are not persuaded, however, that the Mayor of the City of Montgomery shares with his counterparts in Alabama a sufficient commonality in the context of the issues raised to give him the status of a class representative. Liability of a mayor for unconstitutional practices in a municipal court assumes some supervisory authority or responsibility over that area of municipal affairs, but in Alabama the existence and extent of that authority may vary with the form of city government and may be governed by statutes of local application and by local ordinances. We therefore hold that this suit cannot be maintained against Mayor Robinson as representative of the class of Alabama mayors.

II. Jurisdiction

Plaintiffs state complaints cognizable under the Fifth, Sixth, Seventh, Eighth, Ninth, and Fourteenth Amendments to the Constitution and under 42 U.S.C. § 1983.³ They invoke this court's jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343(3) and (4). Plaintiffs have not established the requisite amount in controversy for § 1331 federal question jurisdiction, so they stand or fall on § 1983 and its jurisdictional counterpart.

Plaintiffs seek injunctions against the enforcement of state statutes challenged on federal constitutional grounds. This requires a three-judge court, 28 U.S.C. §§ 2281 and 2284. We do not separately discuss three-judge jurisdiction with respect to all the claims made in the case. Some would independently support convening of a three-judge court, others would not. A three-judge court having been properly convened, we have discretion to consider the non-three-judge issues, and we do so.

III. Requiring a bond to appeal

(a) Standing and case or controversy; the plaintiff class.

Tit. 37, § 587⁴ provides that one convicted in the municipal court and wishing to appeal to the state circuit court may do so "by giving bond with good and sufficient sureties." The constitutionality of this statute, and of the Municipal Court's method of applying it, is questioned by plaintiffs Jimmy Lee Tucker, Jerome Wright and Yancey Banks. We hold that a case or controversy exists with respect to each of these plaintiffs, that each has standing to prosecute the claim which he asserts, and that under Rule 23, Fed.R.Civ.P. each properly represents a class.

Tucker was convicted in the Municipal Court on April 11, 1974, on charges of leaving the scene of an accident (sentence of six months), driving without a license (sentence of 45 days), and failing to yield the right of way (fine of $22.50). He desired to appeal to the Circuit Court of Montgomery County, but lacked the necessary money to make the bond required by § 587. The record supports Tucker's contention that defendant Judge Springer responded to his request for an appeal with only a single inquiry regarding his financial means. This suit was filed July 10, 1974, at which time Tucker was still in jail. Thus at that time a live, sharp controversy was involved, and Tucker had standing to present it.⁵ We find that he is the proper representative of a class composed of indigent persons who are convicted in the Montgomery Municipal Court, or in the various other municipal or recorder's courts in Alabama, from which convictions they wish to appeal but are unable to do so because of their financial inability to comply with § 587.

Preiser v. Rodriquez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973), requires that a prisoner who desires to attack by a federal suit the fact or duration of his confinement must proceed by habeas corpus after having exhausted state remedies. That case does not, however, bar Tucker from proceeding under 42 U.S.C. § 1983, because he also sought damages. Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). Even if Tucker's suit is viewed as more in the nature of a habeas corpus claim, his status as class representative permits him to proceed under § 1983 on behalf of the class. Leonard v. Mississippi State Probation and Parole Board, 509 F.2d 820 (CA5, 1975).

Soon after this suit was filed Judge Varner, acting as a single judge, treated Tucker's application for emergency relief as an application for a writ of habeas corpus and granted the writ, which resulted in Tucker's release. This did not moot the case insofar as the class action was concerned. Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975).

At this point we also analyze the standing of Wright and Banks in order to avoid repetitive discussion of jurisdictional matters in subsequent parts of this opinion.

Wright, a party in this suit as originally filed, and Banks, added April 18, 1975, were sentenced by defendant Piel on August 2, 1974, to five days in jail for fighting. Each sought to appeal but was financially unable to comply with § 587.⁶ Each completed his sentence.

These two plaintiffs make substantial constitutional attacks on the appeal bond requirement of § 587 and the practices of the Municipal Court in enforcing that requirement. They have been subjected to and adversely affected by the statute and the practices. Unlike the plaintiffs in O'Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974), and ...