Underwood v. Hunter, 79-1573

• Decision Date: 10 October 1979
• Docket Number: No. 79-1573,79-1573
• Citation: 604 F.2d 367
• Parties: CA 79-3542 Victor UNDERWOOD and Carmen Edwards, for themselves and all others similarly situated, Plaintiffs-Appellants, v. Nell HUNTER et al., Individually and on behalf of all other members of Boards of Registrars in the State of Alabama, Defendants-Appellees. Summary Calendar. *
• Court: U.S. Court of Appeals — Fifth Circuit

Page 367

604 F.2d 367

CA 79-3542 Victor UNDERWOOD and Carmen Edwards, for themselves and all others similarly situated Plaintiffs-Appellants, v. Nell HUNTER et al., Individually and on behalf of all other members of Boards of Registrars in the State of Alabama, Defendants-Appellees.

No. 79-1573

Summary Calendar. ^*

United States Court of Appeals Fifth Circuit.

Oct. 10, 1979.

(Wilson) Edward Still, Birmingham, Ala., Neil Bradley, ACLU Foundation, Atlanta, Ga., for plaintiffs-appellants.

James S. Ward, Asst. Atty. Gen., Birmingham, Ala., for defendants-appellees.

Appeal from the United States District Court for the Northern District of Alabama.

Before COLEMAN, FAY and RUBIN, Circuit Judges.

PER CURIAM:

Appellants challenge Section 182 of the Alabama Constitution, which disfranchises those convicted of certain crimes. In the District Court appellants asserted four causes of action: (1) the misdemeanors and minor felonies listed in § 182 as disfranchising offenses unconstitutionally impinge upon the franchise because they deny the franchise without a compelling state interest in violation of the First, Fifth, and Fourteenth Amendments of the U. S. Constitution; (2) the disfranchising offenses deny plaintiffs the equal protection of the laws because more serious offenses are not disabling; (3) disfranchisement for conviction of a "crime involving moral turpitude" is based on a definition that is unconstitutionally vague; (4) the list of offenses was specifically adopted with the intent to disfranchise blacks and in fact abridges the right to vote on the basis of race.

Appellants sought a preliminary injunction restoring them to the voting rolls and in support of this motion reasserted the first three causes of action. They did not urge the fourth cause of action as a basis for the preliminary injunction. On June 21, 1978, a hearing on the preliminary injunction was set for July 19. On July 6, appellants moved to dismiss the complaint for failure to state a claim upon which relief can be granted. The Court began the July 19 proceeding as a hearing on the preliminary injunction, but subsequently expanded it to include arguments on the motion to dismiss. Four witnesses testified at the hearing. On August 11, the Court issued a memorandum opinion in lieu of findings of fact and conclusions of law. It denied the preliminary injunction and held that the plaintiffs failed to state a claim under the first three causes of action. The Court reserved its decision as to the fourth cause of action pending further briefing.

However, as the Court itself noted, the Court heard the motion to dismiss along with the application for a preliminary injunction and was presented with evidence outside the pleadings. The Court further stated that "if the motion to dismiss is treated as a motion for summary judgment under Rule 56, it is due to be granted with respect to the first three causes of action."

Rule 12(b) of the Federal Rules of Civil Procedure provides that "(i)f, on a motion . . . to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56." Rule 56 requires a 10-day notice and an opportunity to present additional material.

This Circuit has upheld the strict requirements of notice embodied in Rule 56 and by reference in Rule 12(b). The procedural facts in Georgia Southern & Florida Railway Co. v. Atlantic Coast Line Railroad Co., 5 Cir. 1967, 373 F.2d 493, Cert. denied, 389 U.S. 851, 88 S.Ct. 69, 19 L.Ed.2d 120 (1967), were quite similar to those here. There the plaintiff filed a civil action and moved for a preliminary injunction. Shortly before the hearing on the preliminary injunction, the defendant filed a motion to dismiss for failure to state a claim. At the preliminary injunction hearing the Court heard testimony from five witnesses and heard oral argument. Several weeks later the trial judge dismissed the complaint with prejudice, and made findings of fact and law. We noted that because the trial court considered matters outside the pleadings, the motion to dismiss must be considered as a motion for summary judgment, and the hearing and notice requirements of Rule 12(b) and 56(c) must be adhered to. We reaffirmed the rule of Enochs v. Sisson, 5 Cir. 1962, 301 F.2d 125, where we held it an abuse of discretion to grant summary judgment without proper notice and hearing as required by Rule 56. Subsequent cases have reaffirmed our adherence to the strict notice and hearing requirements of Rules 12(b) and Rule 56 where the court sua sponte converts a 12(b)(6) motion into a summary judgment motion by considering matters outside the pleadings. See, e. g., Davis v. Howard, 5 Cir. 1977, 561 F.2d 565; Sharlitt v. Gorinstein, 5 Cir. 1976, 535 F.2d 282; Scott v. Courtesy Inns, Inc., 5 Cir. 1973, 472 F.2d 563; Gutierrez v. El Paso Community Action Program, 5 Cir. 1972, 462 F.2d 121.

Here the plaintiffs had no indication that a summary judgment, a final judgment, might result from the preliminary injunction hearing. The first indication that the material produced for the hearing would be used to...