Brief and Argument of Attorney for Appellants

    TITIITITITI-IIII

IN THE

T'NITED STATES COT'RT OF APPEALS

FOR THE ELEVENTH CIRCUIT

NO. 88-76L2

T.IAGGIE S. BOZEMAN,

Plaintiff-AppeIlant,
V.

PICKENS COUilTY BOARD OF EDUCATION, €t a}.,

Def endants-AppeI lees .

APPEAL TROU THE T'NITED STATES DISTRICT COI'RT
FOR THE NORTHERN DISTRICT OF AI,ABAI,TA

RECORD EXERPTS



-IIIArer!,rrl)rrrea
IN THE

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

NO. 88-76L2

I.{AGGIE S. BOZEMAN,

Plaintiff-Appe1lant,
v.

PICKENS COUNTY BOARD OF EDUCATION, €t dI.,

Def endants-Appe I lees .

APPEAL FROIT{ THE T,NITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAUA

RECORD EXERPTS



rI.la!lrarrlrrlartlra

RECORD EXERPTS

1. tlocket Sheet

2. Conplaint

3. Answer

4. Flndlnge of Fact and Concluelons of Law



PIIEGIE S. FZETJNN

Joc R. WhatleY, Jr-
Lisa Huggins
TALKENBERRY & WHIELEY

Fifth Floor Title Building
* gOO 1\uanty-First Street llorth

Birrdngham, AL 35203
322-11-00

(crrE rHE u.s. crvrL srArurE UNDER *r,f[rr::,r.*i. ,r, 1343 civu rishts -
ts FTLED AND WRITE A BBIEF STATEMENT OF CAUSE) elective fr-anctrise

CAUSE

ATTORNEYS

br.,&* crcu^EY BoArD oF EDITAEIoN,
JERFIY H. PARHAM{, irdividually ard jn
his capacity as the forner Stperintenfent
of the PICKENS OCIJI{IY BOARD OF EU.EAflICN,
JACK T. PATE, individually ard in tt.is
cagncity as tte fomar hesident of tte
PICKET{S-OCTJNIY MAAD OF EUTAT.ION, J. V.
PARK, irrtividr:aJ-Iy ard in his capacitfr
as a ren$er of tte PICKEhIS GJNIY EAAD
OF EUEATION, JAMES G. TiDLAI'ID, individually
and in his capacity as a nE rber of tle
PICKH{S CrcUNIY BOAFD OF EDIrcAI TCN, MRS.

t.IAl€:f FAIR, irrtividtrallY ard in tEr
capacity asi a nerber of the PICKENS
ffiJI.tT:f BOAAD Ol' UEAf,ICN, ard BCI(D

EDGE[ORf,lt, irdividr:allv and in hi-s r=pci'i:y
ac a fsnrar nEnber of the PICKEI{S ClUlftr
BOARD OF EDIrcATION

tq)

Ray Ward
2020 University Bou-'l-evard
P. O. Box 65
Tnsr=}oosa, AL 35402
345-5564

CHECK
HERE

rF clsE.yvAs
fILED {,N. . '

FORIIA, 1 :.
PAUPER.IS :

FTLING FEES PAID STATISTICAL CARDS

C. ano qATE lvalLED
, .'. j' _ "rc-< ,'

.\,tuffi
DA-TE RECEIPT NUMBER C.D. NUMBER

/v/fllt:r" f, /J,(vS'<
,?/s.t/f I V tahc--T;--A €.,,ic. 4

IU

UNITEO STATES DISTRICT COURT DOCKET DC-1 1l (Rev.9'6



Dec 28
28

fil€d:tgp
and ccnplaint issued{el to plff-tgp

II{STIER of the defts to the curpJaint, filed-cs-tqp
rntenr.|gtst."G-aij.si) ;rf priE affi request i&-ffoa,:ction of docunents'-, filed-cs-
I\btie that the plff wiIL take the deposition of Jerry H. Parhan on 3/30/88 in

Carrolton, AL, fited-cs-tgp
t{otice that the plff wi.L[ take the deposition of Jack T. Pate on 3/30/88 in

Carrolton, AL, fiJ-ed-cs-tg>
titrtie that the plff rri].l tal€ the deposition of J. V. Park in Car':ro1ton, AL, on

3 / 30 / 88, f iJed--cs-tg>
l,lotie that the p}ff wiJ-l take the degrcsition of Jares G. I\bl.ard in CarrolEon, AL,

on 3/30/88, fiJ-ed-cs-tgp
lfctice that the plEf wiIL take the deposition of tlancry Elajr in Car:nolton, At, on

3/30/88, filed-cs-tgp
tr&rtie that ttE plff wiIL take the deposition of Bold Edgeworth in Carrolton, AL,

on 3/30/88, fiJ-ed-cs-tgp
ORDER (SCHEDTLIIG) tfrat arl flj5sovery be ccnpleted by 6/L0/88 w/o<tribit attactred

filed (POINIER); entered-crFr€Ic
Deposition of Boyd Edgertorth taken on belral-f of the prff, filed-nsl
Depositj-on of llancry Fair taken on behalf of the plff, filed-rnsl
Deposition of Jares trkrrard taken on behalf of the prff, fil-ed-nsr
Deposition of Jerry Partnnr taken on behalf of the plff, fired-nsl
Deposition of Jack Pate talcen on behalf of the plff, filed-nsl
l,Iotice that the deft will take the deposition of Maggie S. Bozenwr on 06/O8/88 in

TuscaLoosa, AL, with neq.est for prodrrtion ttereon, filed-cs-nsl
l,totion of plff to o<terd the tirre for discovery for thirty (30) dalE, fil-ed-cs-msl
-- 06 /06/88 GRANIED (POINIER) ; entered 06/O6/88-crn-ns1
.Notie that ddft.w'i11: take the:'deposition of.'l4aggie S.:Etrzimari"oi OOIr /AA

lhscal'oosa, AL; rrrith reqrrest for prodrrtion ttereon, fi-ted-cs-ns1
Regr.est (secord) of plff for prodr:ction by defts, fiLed-cs-nsl
An3rrrers'of defts t6 interrfrtories ard- reslnnse to reqr-est for pr.odution, rv'i

exhibits attached, filed-cs-nsl
Response of defts' to plff's secord reqr.est for prodrrtion, ruith ochibits attachec

filed-cs-nsI
lloticethatdefts wilt take the deposition of David Jones on O7/O7/88 in Livingstc

AL, rrith reqtest for prodrrction tlereon, filed-cs-nsl
Deposition of Jares V. Park, taken on beha-LE of plff, filed-nsl
tr{itness ard e:fiibit J-ist of defts, filed-cs-djd
Danages list (Statenent) of plff, filed-cs-rnsl
Witness list of plff, fil-ed-csrrsl
Darnages List (Arredndnent) of plff, fiLed-cs-rnsl
Deposition of lttaggie Bozernan taken on behalf of the deft - filed - cs -- acm
fiDUrUro IRIAI, (SP) - Deft's (oral) nrction for a 4Ub) disnissal - DENIED (SCP)

r.r'ithout reconsideratoin at the conc}:sion of evidene - firdings of fact ard
conclusions of Law dictated into the recorrl - Cor:rt nr.Ies in favor of the deft;
costs, but not attorney's fees, ta{ed against pltf (PE, &ptr.)--acrn

CUUFtrm{ DEPUTI ID,ES--acrn
Clerk's Court Minutes tlnt pu::suant to findings of fact and conclusions of law

dictated into the recond by the Court, jtdgnent is entered in favor of the
defenaants, and agailst the plaintiff; costs, not attorneyrs fees, alre ta<ed

t'agai+st ttrE plalrrtiff , fiAedi entered 0910]-/88crn-ntsl ' -

Bi+ of cggts oi plff , fiLed-cs-msl (del to ECE for ta<ing) ;

,i
16i

1988
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Sept I



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PLAINTIFF

!4A6IE S. rcZEUAN

1989

Jan 9

OEFENDANT

PICKEI.IS qJNIY MARD OF EIXJCAITION,
OOCKET NO, IiYIl.E

2PAGE-OF-PAGES

ctr tr er6 qn:rsicns had before the Hon. San C. ttcinter, Jr. dl 08/31/88
rtrs-caloosJ AL, fiLed-rnsl \DLUME 2

l,Iotice of appeal frcnr ttris co,rrtrs
fi-Ied-no cs-rnsl

/3L/88 Order in favon of tlte deferdants,

coppr of notice of appeal, docket
rmiled to CIerk-LrSCA, trangnittal letter to attlts of record-msl

Transcript of proceedings held before ttre lionorable San C. 9ofuiter, Jr., on
OB/31788 in Tu:<caloosa, Alabana, filed-ntsl (Penny L. Enoctr, Colrt-_nep9qler)

IflD-pf,:.-$tlIftII

CTVIL DOCKET CONTTNUATION gHEET

Certified record on a14rea1 rnailed to Clsk, USCA with copy of trangnittal letter
to attlrs of record-msl

a tfrgE s(rPy

**I1?. clrPr(ln, cr.tr RN

Hj :pj.Il3t! o i, i* r?#0,",lroSTquR$DrsrRr

cttnr

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ll .. 1;. lF r a, e I, l, r r ; tr - I I
:::! ':'t"

IN THE I'NITED STATES DISTRI T COI'RT
FOR TIIE NORTIIERN DISTRICT OF AIABAUA

I{ESTERN DIVISION

of Pickens

Educatlon

in Pickens

uAGGTE S. BOZE!{N{, )

Plalntiff, )

v. ) crvrL ACTTON NO'

PICKENS COUNTY BOARD OF )
EDUCATIoN, JERRY H. PARIIAIiI,
individuaity and in his caPacitY )
as the fomer SuPerintendent of

iffiffffiEl:itiLq;"*ffi?.::.,..,cve2 P 225 1 l"
as the formEr President of the
PICKENS COUNTY BOARD OF
EDUCATION, J. V. PARK, lndivid-
ualJ.y and ln hls caPacltY aE a
uenber of the PICKENS COITNIY
BOARD OF EDUCATION, JAI{ES G.
NOLAND, lndlvlduallY and ln hls
capacity as a nember of the
PICKENS COUNTY BOARD OF
EDUCATION, MilS . NA!{Cy FArR,
lndivlduaity and in her caPacitY
as a mernber of the PICKENS
CoITNTY BoARD OF EDUCATIoN, and
BOYD EDGEWORTH, lndividual.IY and
in his capacitY as a former
uember of the PICKENS COITNIY
BOARD OF EDUCATION,

)

)

)

)

)

)

)

)

)

CQUPITAINE

1. Thls court has subJect matter Jurisdiction over this

uatter by vlrtue of 28 u.s.c. sections 1331 and 1343.

2. The plaintlff is an adult resident citizen

county, Alabarna. The defendant Pickens county Board of

(hereinafter ttBoardil) is a corporate entity residing



IITOITITII}!Itt!-Ir

-2-

county, Alabama. lfhe lndividuaL defendants are all adult resident

cltizens ol Pickens County, Alabana and/or the western division of

thls Judiclal dlstrict.
FACTUAL ALLEGATTONS

3.lfheplaintlff,trtaggleS.Bozeuan,UasenployedaEa
tenured teacher by the Pickens county Board of Education Ln 1979'

Dtrrlng that year, she was wrongfully convlcted of a felony ln the

state circult court lor ttrat county. The charges agalnst ber were

uade in connectlon uith tbe plaintiffte partlclpatlon ln helping

other voters to cast absentee balLots ln the Deuocratlc prlnary

election held septeuber 26, 1978 ln Plckens county.

4. Plalntlff requested and recelved two consecutive oDe-

year leaveE of abEence frou her Job with the school syst'em'

pendlng the appeals of ber convLctlon'

5. PlalntilfrE contract wlth tbe defendant Board was

cancelled ln 1982 based uPon an Lnvalld and lIlegal conviction'

6. on tpril 13, 1984, the United States District Court for

the DllddLe Dlstrlct of Alabaua granted plalntlffts petltlon for a

writ of habeas cor?us, flndlng that her constitutional rights had

been violated ln the state court conviction' Arnong other thlngs'

the court found that plalntlff ltas convlcted on patently

lnsufficl,ent evidence. PlalntlffrE f,elony convlctlon uas thus

declared nuIl and vold.

7 . On Augrst 9 , 1984, plaintlf f infotmed the Board that

the charges agaJ.nst her had been dlsrnissed and asked that she be

allowed to return to her teachLng position. The board refused to



II.rrrrIIr!'f!frI

-3-

reinBtate the plalntltf and the Board falIed to glve ber any

hearlng at tlrat Polnt.
COI'NT ONE

8. Thls clafun |e brought pursuant to 42 V'S'C' !1983 and

the Flrst Amendment to the Unltad States ConstLtutLon'

9. Ehe delendant Board wllfully and nalLciously vlolated

plalntlf f I E rlghts urder the Plrst lnendment by preventl'ng and

refusing to allow her to resuDe her teaching posltlon because of

her speech and other actlvltles protected by the First Auendment,

botlr in connection wlth the clvil rlghts tlovement and etforts to

encourage black votere to vote, and in connectLon wlth certaln

actl,ons of, ttre Board whlch tlre plalntlfl questLoned.

COUNT TWO

10. Thls claLm is brought pUrsuant to 42 v.s.c. !1983 and

ttre Fourteenth Amendment to the unlted stateE conEtltutlon.

tt. Ehe defendant Board and the lndlvidual defendants ln

thelr capacltLes aa Board uernbers violated plaintlfftE rlght to

substantive and, procedural due process of law by cancelling her

teachlng contract without an approprJ'ate hearj'ng and !n an

arbLtrary and unJust manner, based uPon an invalld and lIIegaI

convictlon. As a tenured teacher, plaintiff had a property

interest in her Job with the defendant Board whlch entitled her to

due process ln connection wlth the deprivation thereof. Plaintiff

was inJured as a direct result of this conduct'



rrr f,rIlrlIIf!!r:-rf

-4-

COI'NT lr}TREE

L2. lrhlE claln ls brought pursuant to 42 v.s.c. 11981.

13. The defendant Board has, through Lts cancellatlon of

the plaintiffte teaching contract and the subeequent refusal to

relnstate her, vLolated plalntlffte rlght to contract and to carrlt

on her enployrnent.

14. The defendant BoardrE actlons ln tble regard were done

ualiclously and wlIfuIly, because of the plalntlfftE race and her

civil rlghts activltles. Plaintlff waE lnJured aE a direct result

of thls conduct.

COI'NT FOI'R

15. Ehis claim ls brought pursuant to 42 V.S.C. !1983 and

$ 1985 .

16. Ehe defendante bave conspired to vl.olate plalntlffts

rlghts to equal protection and due process guaranteed by the

Fourteenth Amen'rment to the Unlted States ConstLtution, and to

obEtnrct Justice.
L7. The actlons of tbe Eald lndlvldual defendants resulted

Ln a deprivatlon of the aforeuentloned rights as well as by

causlng her to be wrongfully arrested and convlcted of a crime

under the laws of the State of Alabama.

PRAYER FOR RELTEF

WHEREFORE, p].aintlff hereby requests tbat thls honorable

Court grant the followLng rellef:
a) ReLnstatement lnto her teaching positlon, including

full tenure and benefits, with the Pickens County School System;



rIr FrFr-I !-Irlrr

b)

c)

-5-

Back pay,

CornpensatorT dauages tor uental angulEh and

enotlonal distress;
Agalnst ttre lndlvldual defendants, punltlve damages,

and

Any other Iegal or equltable reLlef whlch thls court

deeus approprLate and Juet.
Respectfully submltted,

d)

e)

OF COIINSEL:

FALKENBERRY & WEASLEY
Flfth Floor Tltle Bulldlng
300 Ewenty-Flrst Street North
Birmingham, Alabama 35203
2O5/322-1100



-rlr-rrrrrrlG;-rJr
IN THE UNITED STATES DISTRICT COURT

FOR THE NORTIIERN DISTRICT OF ALABA}'IA

WESTERN DIVISION

I-{AGGIE S. BOZEI'{AN' *
*
*
*
* CIVIL ACTION NO. CV 87 P225L W

*

PLAINTIFF,

v.

PICKENS COUNTY BOARD OF EDUCATION; *
ET AL *

*
*

ANSWER

DEFENDANTS.

COUE NOW the Defendante in the above styled ceu8e and for analter to the

compLaint of the Plaintiff aeeert the following:

FIRST DEFENSE

l. Defendante deny thie Court hae eubject Batter juriediction over Ehie

mat t,er .

2. Defendante admit the allegaEione concerning reeidency.

3. Defendanle admit that the Plaintiff was employed aa a tenured teacher

by Ehe pickene Coungy Board of Educagiorrit one time. Defendants are rrithout

eufficient information to either adnit or deny Ehe remaining allegations of

Paragraph 3 of the coruPlaint.

4. Defendante admit that Plaintiff requeeted and received two consecuEive

one year leavee of absence from her job aB a tenured teacher'

5. Defendants deny the allegatione of Paragraph 5 of the complaint and

demand etrict proof thereof.

6. Defendant8 are without eufficient information Eo either adnit or deny

the truEh of the allegatione of Paragraph 6 of the complaint



rrrrrtrl-rIIIrrI

7. Defendante ednit that Pleintiff requeeted her job back' Ttre Board

would deny that the Plaintiff waa entitled to any teaching poeition with the

pickens county Board of Education and would further apecifically deny that ehe

wae entitled to any hearing. Ttre Defendante woutd allege aa a further part of

their anslrer that the Plaintiff wee exEended all of her righta ae a tenured

reacher under the ALABAMA TEACIIER TENURE LAW' Section 16-24-1, et 8eq' 1975

ALABAMA CODE.

8. Defendante do noE deem it necessary t,o either adrnit or deny the

allegations of Paragraph I of the conplaint; however, ehould a resPonge be found

neceEsery by the court then Defendants would deny auch allegaEione'

g. Defendante deny the allegatione of Paragraph 9 of the complaint and

demand etricf proof thereof. Defendante would allege ae a further part of their

anawer to Paragraph 9 of the complaint that Plaintiffts contract' as a tenured

teacher with the Pickens county Board of EducaEion wae cancetled according to

law and epecifically the ALABAMA TEACHER TENURE LAW. No appeal or oEher

challenge of auch ection wa8 ever taken by the Plaintiff in accordance with the

procedural requirements of the ALABAMA TEACITER TENURE LAl{.

lO. Defendante do noE deem it nece88ary to either admit or deny the

allegations of Paragraph 10 of the complaint; however, should a reeponee be

found nece8sary by the Court then Defendante would deny euch allegaEione'

11. Defendante deny the allegations of Paragraph tl of the complaint' and

demand stricE proof thereof. DefendanEs sould allege es Part of their answer to

Paragraph 11 of the cornplaint Ehat they in fact gave the Plaintiff a due proceee

hearing in accordance with the ALABA}iA TENURE TEACHER LAW'

LZ. Defendante do not deem it necessery to either admit or deny the

allegations of Paragraph 12 of the complaint; however, shoutd a responee be

found necessary by the court Ehen Defendants woutd deny such allegationa'



rtII
.i

I}T"TIIITE-F

IN ME DISTRICT @URT
NORTHERI| DISTRI T OP ALABATIIA

WESTERN DIVISION

IIAGGIE s. Boz El,tAN, I Cll-87-P-2251-w
,

Platntlff' ) fuscaloosar Nabana
,

V8. ) euguet 31, 1988
,

PICKENS CC[rNTv BOARD Or ] 12t35 P. tl.
EDUCATION, Qt A1. r ,

)
Defendanta. ,

FINDI!{GS OF FACT N{D @NCT,USIONS O8 LAr{
BEFORE BON. SN{ C. EOINTE& JR.

APPEARANCES T

FOR THE P[,AINTIFFT HON. JOE R. MIATLEYI JR.
Attorney at Lau
Btfth Ploor-Tltle Bldg.
300 21st Street North
Blrmlnghamr A[, 35203

FOR THE DEFENDANTS t HON. RAY I{ARD
Attorney at Law
2020 UnlvereltY Boulevard
P. O. Box 55
Tuscaloogar AL 35{02

CGIRT REPORTERI PennY L. Enoch
325 Federal Courthouse
L729 Flfth Avenue North
Birminghamr At 35203



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t r rD ?rc s - olt - tAe? - ll0D - eore".oti" ot[s- t t - "'Aw

mE oouRTs The court ylII tpr dlctate flndlnga of

fact and concluelone of law. l|fhcse flndlngr Ot fact are baaed

upon the cvldence t[atrs been prceented ln trlal today. The

cvldence conalsts of the teetfinony of a nunber of pclsotlsr

clther tn person or by depoaltlon. A nunber of cxhlbttg have

aleo been tendered and recelved by the Court.

Thle saae ls a lmault brought by llaggte Bozenran agalnst

Plckane county Board of Educatlonr lte euperlntendent and

nernbers. !tr8. Bozeman complalnEr tn cgsencer about the

fallure of the defendantE tn 198{ and thereafterr to relnstate

or reeurploy herr or at leaat grant her aone hearlng regardlng

relnstatement or reemployment. She asserte that the fallure

of ttre defendants to & that vlolated her rlghts under the

Fourteenth Amen&uent.

I rllt now 9o through a chronology of eventg. Host of the

matters presented to the Court are not ln dlaputer a few

nattera are ln dispute. TheYr horerrerr tlG largely natters

relatlng to constructlon and tnterpretatlon of eventg ae

dlstlnguished from dlrect or contradlctory errldence.

llaggle Bozeman uag an elementary achoot teacher ln the

Plckens County Board of Educatlon school ayatem for

approximately tnenty-flve years. In I979t the uas convlcted

follorrlng a Jury trlal of voter fraud conccrnlng a Democratlc

prlnary runoff electlon. The esgence of those chargee ras



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r I T I T rl r. I I I I I T T3I

that ghe had bccn lnvolved ln caatlngr heraelf or through

othersr tllegal ballots.

Inroediately follalng hcr convlctlonr thc ruparlntcndent

of the Board of Educatlon aua[Ended her subJcct to a

notlf lcatlon of ptentlal termlnatlon and hearlng. The Board

of Bducatlon approved the glvlng to llr8. Bozoman of that

notlce. lfrltten notlcc raa glven to her ;rrrsuant to Nabama

State lan of the Proposed cancellatlon of her aPloynent. The

lar of the State of Nabana rcaardlng tenured teachere

prcscrlbes a varlety of ateps and rtghts that aff,ect luch

termlnatlons. The terrolnatlon nottce glven to her advlelng

her of her rlght to aPpear and conteet that proposed

termlnatlon tlsted flve ltene ae the basls for the propoaed

cancellatlon.

The flrat of ttreee wae her convlctlon of this felony for

rhlch ehe had been sentenced to four yearB lnprlgortoent. Iten

Number 2 ln that notlce related to her alleged refusal to

follory lnstructlons regardlng glgnlng ln on a datly baels at

her achool. Iten 3 related to her alleged fallure to follow

requlrsnents regardlng turning ln of seekly lesson plans.

Item { related to her alleged fallure to subrlt plans

regardlng her contlnulng educatlonal and profceelonal

develofrnent. Item Nurnber 5 related to her alleged

tnsubordlnatlon ln falllng to fol]ory the lnstructlone of her

prlnclpal and asslEtant euperlntendent rclattng to Items 2 r 3



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and l.
llrg. Bozeman recalvcd that notlflcatlon. the flled her

notlflcatlon that ehe degired to have a forualr op€D hearlng

regardlng those charges. Prlor to the achcdttllng of that

hearlngr tt ras agrGed behreen llr3. Bozeman on the one hand

and the defendants on the otherr that ttre hearlng sould be

contlnuedr that she rould bc placed on a one-yGar lcave of

absence pendlng her appeal of the convtctlonr and that lf her

convlctton yas upheld ln State and Federal courtr ehe would

re8lgn voluntarlly frqu her pogltlon a8 a teacher.

She dld apPeal frqn the convlctton. No rullng uas made on

that appeal durlng the flrat year of ttrls leave of absence.

Accordtngly, ln I980r a requeet rag loade to grant her an

addltlonal one-year lcave of absencer agalnr pendlng the

resolutlon of appeals regardlng the convlctlon and on the

basls that lf the convlctlon was afflrmed, she would

voluntarlly resign.

In 1981r her convlctlon was af f lrmed by the Nabana Court

of Crlmlnal ApPeals and rehearlng was denled. Ttre Nabama

Supreme Court, llkewlse, denled a revlm of her convlctlon.

In November 1981, the Unlted States Supreme Court decllned to

grant a wrlt for certloraril and accordlnglyr all dlrect

appeals had been conpleted. In December 1981r the Board of

Educatlon notlf led lrlrs. Bozernan that ln vlcry of the completlon

of these appeals, wlth the convictton rernalnlng outstandlng,



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Bhe uas rGquastGd to subnlt thc rcelgnatlon rhe had hrlcc

carller prqataed to glve rhen those wents occurrcd.

When rhe falled to respond afflrnatlvrly rlth an

acknouledgoent of or oonsent to thc rcslgnatton, the board

then notlfled her that [t ras achedullng a formal heartng on

thc 1979 letter reapectlng her propoged cancellatlon of

croploynent. Shc ras afforded the rlght to bc prcsent. She

did not nake any fornal rcgucst at ttrat tlne to be hcard at

the schedrrled hcartngr but the board apparcntly trcated hcr

1979 request for a hearlng as etlll tn cffectr and uent

fonrard ln January 1982 wtttt a hearlng aB dlrected by the lms

of the State of Nabama for tenured teachers. !1f8. Bozeman

dtd not appear [n person or ry representatlve at that hearlng.

The only evldence preeented to the board then wae that

presented by or on behalf of the auperlntendent and conalatlng

of certaln &cumentary evldencer along wlth testlmony glven by

the asslstant auperlntendent. By thts tlmer the

auperlntendcnts ln the qystem had changed eo that the then

lncumbent auperlntendent wae not the one who had made the

earller re@mmendatlon as to cancellatlon.

!lrs. Bozernan hae testtfled that notwlthetandlng the

reJectlon by the United Statee Supreme Court of the petltlon

for certlorarl, ahe and her advlaorg uere stlll contenrplatlng

further legal cfforte to aet aslde or vacate the oonvlctlon.

She dld notr hoeverr at that tlme or at any eubsequent tlmer



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advlee the Board of Bducatlon that ahe planncd to take further

stepe to set aslde that convlctlon.

Af,ter hearlng the nattere prcacntcd ln tbc January 1982

neetlng and rhlch addrcssed cach of the ftvc charges, the

Board of Educatlon voted--apparently unanlmouallp-to follor
ttre re@mnendatlon of the eulnrlntendent and to cancel her

Grrrplqrnent rith the Board of Bducatlon. llr8. Bozeman dld not

take any appeal frqn that actlon pureuant to the Nabana

Senure Law.

In late 1982t !lra. Bozeman rae cnployed by the Board of

Educatlon for an adJolnlng county and she remalned aB a

teacher ln that ayatem for approxlnately flve t€ara; reslgntng

frqn that posltlon voluntarlly after the ccnpletlon of the

186-87 gchool year. the had recetved tenure ln that other

systern prlor to her voluntary reelgnation.

t{rg. Bozeman dld, ln factr in 1983e have flled on her

behalf a habeas corpus actton ln Federal court seeklng to

vacate or set aslde ttrat tfiat convlctlon. fn eprlng 198{, the

unlted States Dletrlct Court for the l,rtddle Dlstrlct of

Nabana granted that petltlon for habeas corPusr lrld ln an

oplnlon concluded that the convlctlon should be eet aelde and

that ttre evldence waa lnsufflcient aB a natter of law to have

Justtfted a Jury ln convlctlng her of the offenses wlth whlch

she had been charged. The Court aleo eoncluded that the

nature of the lnstructlons given to the Jury at the tlrne of



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her trlal rould have Pernlttcd the,Jury to have returned a

verdict of guUty upon the basls of chargcs not contalncd ln

the lndlctment.

In Auguat 198{r rn attorney for }1r8. Bozaan aent a letter

to the Board of Educatlon aaklng for her relnstatcnent

follmlng thts 'lcave of absence' aB lt uas dcacrtbed |n the

letter. ,lttre lctter notcd that thc chargag had bcen dlenlgged.

The board at lts lts next neeting consldered that regueetr tnd

correctly noted that ehe uaa no longer on a rleave of abeencer

aa waa rcclted ln the lctten but tnsteadr had had her

cmplrynent rlghts ternlnated and canceled as of January 1982

follolng thla hearlng.

It nay here be noted that the lar of the State of Nabana

permlte a leave of abeence to be granted for only hro

consecuttve years, and that ttrla uae the basle on whtch the

board-at least |n part--had concluded back ln December 1981

that the matters had to be resolved at ttrat tlner and that she

could not conttnue to be kept on a lcave of absence basls.

The board, ln ltE August 1984 meetlngr authorlzed lte

attorney to respond to thls letter frql !1r8. Bozemantg

attorp€[r and Euch a letter uas gent. That letter eimPly

reclted the fact that she had not been on a leave of absence

for ttre last several years, but lnstead, her Gmployment had

actually been tcrmlnated and canceled purcuant to Nabama law

back ln 1982, January of that year. The board did not 91ve



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lrlra. Bozaan notlce that lt uaa golng to conalder thla lcttcr

request fro her atlorney or take any actlon uPon lt. She dld

notr and her counsel dld not at that tlme or at aq[ subsequent

tlmer rcqueat atry hearlng by tlre board on hcr rclnatatcnent or

reeaploynent, and nonc raa G\rer volunteerCd by the board

ltself.
In late 1987, th€ PrGBent rctton uas conmenced ln Dtetrlct

Court ln the Northern Dletrlct of Alabama. A number of

chargeB rGre ralsed ln that oonPlalnt. Several of thoser

hoeuerr have been dlsnlssed and dropped as reclted W the

Court at the outeet of thle hearlng.

The cgsentlal ccaplalnt of the Plalntlff as reflned ls

that ln betng denled reemploynent or relnatttenent ln t98l and

eubsequent yearsr Ehd ln belng denled any hearlng on such a

f€eu€Btr the board hae vlolated her rlghte under the

Fourteenth Amen&nent. The major basle for that argument and

contentton !s the lrwalldatlon of the convlctlon, uhlch wae

one of the flve ltems on rhlch she had been ternlnated back ln

f982. !1r8. Bozeman never made any formal aPpllcatlon for

cmplotrment or reemplolznent. Ttre only requestr basicallyr that

has been made uas that of her attorney ln August I98{ asklng

for reinstatement follonlng the tleave of abaencet as |t wae

descrlbed lncorrectly ln that letter.

Anong the concluslons the Court reache! le the concluslon

that ttre cancellatlon ln January 1982 u88r in all respects,



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proper under Nabama and Fcdcral !ar. 'Ihcre hae bcen no

cvldcnce to ehou that that ras lnvalld ln tny yty. The

pratntlff has lndlcated dlaagreement factuellYr at thts tlner

rlth Charges 2 through 5 a8 contatned ln t[c ortgtnal 1979

notlflcatlon Ietter.

It doea appear ttrat aB to Count 2 -. or Charge 2 ln that

letter - trom€Ilr the one retatlng to fatture to obey

tnatructtons regardlng etgn-lns on a dally baels -- that the

prlnclpal couplalnt that had been raleed agatnst t{r8. Bozeman

regardlng thoge natterE had beent tot the noat lnrtr

eattefactorlly reeolved prlor to the rrltlng of the Noyembcr

1979 letter.

She hae llkewleer ln her testlnonyr denled that ahe had

refuaed to euhrlt plans for contlnulng educatlon and lesson

plane. There hae been contrary errldence euholtted here ln

court to lndlcatc that she had falled to do that after ProPer

tnstructlong. The Court la not here callcd uPon to resolve

that dlepute or those dtsPutes.

Those dlsputea ae to whether she had or had not falled to

obey dlrectlons and follor lnstructlone and pollcles regardlng

slgn-lns, legeon plans and continulng educatlon Plans were

ones that uould have been proPer for resolutton by the Board

of Educatlon ln January 1982. lilrs. Bozernan dld not choose to

appear at that hearlng and preeent any natter for the Boardr s

constderatlon back at that tlne. Nttrough eketchyr the

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lrlra. Bozaan notlce that lt uaa golng to conalder thla lcttcr

request fro her atlorney or take any actlon uPon lt. She dld

notr and her counsel dld not at that tlme or at aq[ subsequent

tlmer rcqueat atry hearlng by tlre board on hcr rclnatatcnent or

reeaploynent, and nonc raa G\rer volunteerCd by the board

ltself.
In late 1987, th€ PrGBent rctton uas conmenced ln Dtetrlct

Court ln the Northern Dletrlct of Alabama. A number of

chargeB rGre ralsed ln that oonPlalnt. Several of thoser

hoeuerr have been dlsnlssed and dropped as reclted W the

Court at the outeet of thle hearlng.

The cgsentlal ccaplalnt of the Plalntlff as reflned ls

that ln betng denled reemploynent or relnatttenent ln t98l and

eubsequent yearsr Ehd ln belng denled any hearlng on such a

f€eu€Btr the board hae vlolated her rlghte under the

Fourteenth Amen&nent. The major basle for that argument and

contentton !s the lrwalldatlon of the convlctlon, uhlch wae

one of the flve ltems on rhlch she had been ternlnated back ln

f982. !1r8. Bozeman never made any formal aPpllcatlon for

cmplotrment or reemplolznent. Ttre only requestr basicallyr that

has been made uas that of her attorney ln August I98{ asklng

for reinstatement follonlng the tleave of abaencet as |t wae

descrlbed lncorrectly ln that letter.

Anong the concluslons the Court reache! le the concluslon

that ttre cancellatlon ln January 1982 u88r in all respects,



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proper under Nabama and Fcdcral !ar. 'Ihcre hae bcen no

cvldcnce to ehou that that ras lnvalld ln tny yty. The

pratntlff has lndlcated dlaagreement factuellYr at thts tlner

rlth Charges 2 through 5 a8 contatned ln t[c ortgtnal 1979

notlflcatlon Ietter.

It doea appear ttrat aB to Count 2 -. or Charge 2 ln that

letter - trom€Ilr the one retatlng to fatture to obey

tnatructtons regardlng etgn-lns on a dally baels -- that the

prlnclpal couplalnt that had been raleed agatnst t{r8. Bozeman

regardlng thoge natterE had beent tot the noat lnrtr

eattefactorlly reeolved prlor to the rrltlng of the Noyembcr

1979 letter.

She hae llkewleer ln her testlnonyr denled that ahe had

refuaed to euhrlt plans for contlnulng educatlon and lesson

plane. There hae been contrary errldence euholtted here ln

court to lndlcatc that she had falled to do that after ProPer

tnstructlong. The Court la not here callcd uPon to resolve

that dlepute or those dtsPutes.

Those dlsputea ae to whether she had or had not falled to

obey dlrectlons and follor lnstructlone and pollcles regardlng

slgn-lns, legeon plans and continulng educatlon Plans were

ones that uould have been proPer for resolutton by the Board

of Educatlon ln January 1982. lilrs. Bozernan dld not choose to

appear at that hearlng and preeent any natter for the Boardr s

constderatlon back at that tlne. Nttrough eketchyr the

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cvldence prcecnted to the board at that tlnc rcaardtng thoae

counts rould havc Juatlficd, ln thc absencc of othcr crrldencer

the board reachlng a concluslon that she hld vlolatcd thosc

requtrenentg as contalned ln Charges 2 ttrrough 5.

It le undisputed that as of ilanuary 1982r the convlctlon

rhtch ras Charge I ln ttre notlftcatlon letterr had bcen

affirned by the aPPellate courte |n Nabma and had been

alloed to Btand by ttre Supreme court of the unlted statee and

that there uaa no f,urttrer court actlon pendlng at that tlmer

and that ttre board sas not adrrlsed of any pendtng or

antlclpated court actlon. The cancellatlon, thenr of the

arrangement and of the Platnttffr a rlghte under the Tenure Act

as of January 1982r u€EQ not ln vlolatlon of the Plalntlfft s

rlghts under elther Nabama law or under Federal

conetltutlonal law.

Ae lndlcatedr the prlmary thruet of plalntlff'a ;nsltlon

ln thlE sase - presumably ln recognltlon of the valldlty of

the actlon taken tn 1982 has been dlrected towards the

fallure of ttre board to Gmplo!' or retnstate or at leagt grant

a hearlng for relnetatement or reemployment ln 198{ and

follonlng. It ls lmportantr hqreverr to note that nunber oD€r

no hearing eas ever reguested.

I suppose the plaintlffr s argurnent le thatr

notwlthetandlng the abeence of a requestr the board was

eqoehow obllged to offer Buch a hearlngr at least tf lt was



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not lncllned to grant hcr rclnstatcmGnt. I flnd no basla

under Federal constltutlonal lau for aaylng that any such

offer of a hearlng--tn the abstnce of a rcgueat for one--te

nandated by constltutlonal rlghte at least ln thc context of

thls sltuatlon.

There lsr I ttrlnkr hoener, a Dore fundamental problcm

that f,lawe the posttlon of the plalntlff tn thls caBe.

Counsel have becn qultc candld ln thelr nemorandum that thtE

cage doee present a rather unique legal problen. The

concluelon I reach ls that the plalnttff ae of t98{7 August

1984 and thereafterr had no Property or llberty rlght rlth

reepect to ctnploynent or reenployment or reinstatenent frqo

the Board of Educatlon. She waar f,or all lntente and

purpo8e8, tn the srne poeltlon a8 a new appllcant for

employnentr one who waE not an ernploy€er one for whom State

law prorrlded no property rlghts or rtghts to hearlngB, and

tndeed, a per3on for rhqo there 17as no legltlmate exlnctatlon

of a property rlght.

There are occaBlons ln whlch courta have found a property

rlght to exlgt Buch ae rould entatl due process concernsr erl€ll

ln the abaence of formal State Iaw. Those, horever, have been

ln eltuations ln whlch by virtue of circuostances there ras at

least a reasonable expectatlon of contlnued enployment or

reemployment. E€t€r there raB no such legltlmate exlnctatlon

of €mployment or reemployment. The requegt for leaves of



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abaencc had bccn grantGd durlng thc lartnum pertod of ttne

allocd by State ltw. A haaring for cancellttton of tcnure

uas Bchedulcd, and on proPer nottcer onc rtt hcld and the

plalntlff decltned to Fartlclpate ln that hcarlng.

Ttre charges beforc the board at that ttne lncluded not

only ttrte charge relaEtng to the convlctlon that wa8 later 8et

aslder but to csaentlally thrce other chargeB. fhc wldence

concernlng those ttrrec Other chargg3 ItBr or could have beenr

placed tn dlapute before the Board of Educattonr but lt ras

not. It rae cegentlally a oDe-8|dGd preecntatlon because of

the decllnatlon of !1r8. Bozeman to partlclpate tn that

hearlng.

I need not place thts declElon on the fallure of llr8.

Bozeman tor ln eff,ectr abtde by the contract she had nade rtth

the board - namelyr that tn conalderatlon for the granttng of

two coneecutlve yeara Of leaves Of absence ghe rould

voluntarlly realgn tf hcr convlcttons were afflnued. She

falled to tlve uP to that agreement that she had nader or at

leaet she decltned to fornally acknonledge that uhlch ln turn

prompted the hearing ln January 1982.

I do oonclude, elmply and flnally, that the board dtd not

vlolate her rlghte [n I98{ or thereafter |n thc context and

clrcumstanceg of thts caae. Judgraent w111 bc entered ln favor

of the defendants and agalnet the plalntlffr costs wlll be

taxed agalnst the Plalntlff, hlt not attorneyr 8 feeg.



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I should note that there wcrG trro or thrce addltlonal

dafcnges ralscd by tlre defcndante. One le a contentlon that

thle actlon ls barred by lachesl that lsr by a delay ln flllng

of the actlon. I deny ttrat epeclal defcnscr but I do note

that the delay ln flltng nay have aggravatcd the problcrng of

retentlon of wldence. Indeedr thlg ls the Problem thatr e

been pronounoed tn the trlal of thls caae ln rhtch documents

that apparently cxlsted back |n 1979 and probably rtlll

extsted tn 1982, apParently harrc bcen nlsplaced or destroyed

and not avallable ln 1988. Nerrerthelcssr rhlle acknorledglng

the problern ulth loet evtdence, I do derry thc special defense

baeed on lacheg.

The defendante ln thelr lndtvldual capacltleg have ralsed

the lssue of a good falth lrununlty f,rqn ault. And I conclude

that even tf the platntlff uas correct--whlch f have found

that ahe ls not-ln thls actlon, that the lndlvtdual

defendants ln thelr lndlvldual capacltleer alttrough based upon

actlng on color of lawr would be entttled to a good falth

lnmunlty defense frm any claln for damages. Itr g clear that

tf there wag any constltutlonal deprlvatlonr these defendants

had no reason -- back at the tlme elther ln 19791 1980, t81,

,82, r84 and thereafter -- to bellerre that there uag any

deprlvatlon of rlghte aB a regult of thelr tctlong.

of coufa€r a good falth lnrnunlty defenee rould not

prohlbitr h€c€sgarllyr lnJunctive relief, nor rould that



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prohlblt a claln agalnst them ln ttrelr offlclal calncltlcs or

agalnst ttrc Board of Educatlon as rn cnttty. I do not

bellcve--although lt ts unneceaEary to rcach thtr Polnt-that

they ln thelr offlclal capacltleer or ttrc board ag a euable

entltyr uould be entltled to clalrn the bcneflte of the

Elerrcnth Anen&ent ln thta caae ae to her claine for danages.

In ny vleu, the lar atill has not sbon that a Board of

Bducatlon le--!n Alabanar oD a ounty lwel--entltled to the

protectlon of the gleventh Amen&nent.

I do note one further ltenr and that la as to the clalm by

the plalntlff for punttlve damagea. Erren lf the plalntlff

uere entltled to prevall--whlch the tg not--punitlve damages

would not be arardable agalnet the Board of Educatlonr or

agalnst ttre lndlvldual defendants ln thetr offlclal

capacltles. It could only be awarded aB to clalrns made

agalnst someone tn an lndlvldual caPaclty. I have already

lndlcated that aB to any clalrus llke thatr there would be a

good fatth lnnunlty defenee.

The Courtr then, dlrecta the clerk to enter JudEnent ae of

thls date ln favor of the defendants dismlsslng thts actlonl

taxing coBts, but not attorneyrs feeg agalnst the plalnttff.

I belleve that I have covered the eEsentlat elemente and

clalns and any factual dlaputes. Irn not aaktng for agreenent

ulth the Courtra declsion--certalnly not bf t[e Plalntlff--I
do lrqulrer howenerr tf coungel for etther slde knou of any



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nrtters that have bcen ralacd end Perhaps ought to be rceolvad

on a fact,ual or lcAal baele at thle tlme uhtlc the natters are

very clcar !n uy nlnd before ny ncoory becOcr lnPatred

through the guasage of tlne. If counael knor of any matter of

factual or lcaal dlspute that r havenrt addrceg€dr r uould

apprcclate your adrrlelng ne of ttrat.

llR. I{ARDI Dcfcndantg havc tlollc.

tjtR. I{HATLEYT Iour Eonorr I notlced you nade no

ftndlngs of fact about the request nade by Jack Drake and the

eupplenrental resPonse on that. I dont t knou ttrat therer I any

evldence ln dtepute on 1tr but there wag guch a requeat.

THE @URTr I perhaps ahouldr elnPly aa an addltton

to the ftndlnge of factr note that llr8. Bozeman--through other

counsel f,ollolng lll. Seayrs repreeentatlon--IuEd€ trqulry on

one or nore occaslons after August of 198{ concernlng her

status. So far aB thc evldence reflectgr there ras never any

request for a hearlng on any requcsted relnstatement or

reemployment.

I do treat the request nade by t{rg. Bozesrant s attorney |n

August of 1981--and to sone degree rePeated bry subsequent

counsel ln r85--as requestlng reemployment or reinstatementr

and that the board decltned to do that. But aB I vlew ltr

there was never any formal apPllcatlon, the natter was never

presented to the board for dectglon, and as I vler !t, therere

no right to a hearlng before the Board of Education gimply, ln



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cffectr on behalf of a ner Goployee. And thatra the gtatusr

aa I vlery ltr that l{r8. Bozcotn uag ln as of that [pLnt.

There raB a letter rrltten by the attorncry for the Board

of Educatlon ln 1985 rcalnndlng to llr. Drakc'a ttr1ulry uhlch

lndlcated that the convlctlonr by that tlme voldcd, waB the

chlef or prlnary rcason for her termlnatlon. I do note that

to be ln the lattcr. fhat aPPGars to have bccn @unselr 8

tnterpretatlon of the natter and doeB not necesearlly flnd

aupportlnthetestlmony--Idonttthlnkttdoe8-ofother
rltneseee who were directly lnvolved ln naklng the declston on

that Eatter. It ls evldentlary tn natuE€r but not blndlng on

the defendanta.

Therer B one other fact, that I perhapa ehould flnd.

Nthough t{f3. Bozeman ne'ver formally apptled for ctnPlolrncnt or

reemployment ln '8{ and follelng--and accordlng to the board,

never voted on that tyPe of r€quest-one of ttre board memberg,

!n deposltlonr stated hle oplnton that he and the other

members of the board rould not have approved any auch requeet'

That slnply uas one board nemberre oplnlon. The natter

actually n6/er cane to that pointr as I vlew lt, but I ehould

perhaps reclte that that was 80 stated.

Ary other natter that the Court may not have correred?

Thank you.

(Court adjourned at 1r00 P.tn,)



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l8

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rrrr-r17-

E!rrr!ISAr!

'I certlfy ttrat tfte foregolng le a correct transcrllt

of the crcerpts frm tlre rGcord of proceedlngB Ln the

abve-entltlcd nattcr.

Penny L. Enoch Date