Brief on Behalf of Plaintiff-Appellant

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IN THE

T'NITED STATES COURT OF APPEALS

FOR THE ELEITENTH CIRCUTT

NO. 88-76L2

}IAGGIE S. BOZEI{AI{,

Plaintiff-APPellant,
V.

PICKENS COUNIY BOARD OF EDUCATION, et a1.,

Def endants-APPel lees .

APPEAL FROM THE T'NITED STATES DISARICT COT'RT

FOR THE NORTHERN DISTRICT OF AI.ABAT'TA

BRIEF ON BEIiALF OF PLAINTIFF-APPELLANT, I{AGGIE S. BOZEI'IAN

Joe R. WhatleY, Jr.
cooPER, MTTCH, CRAI{FORD,

KUYKENDALL & I{HATLEY
Suite 2OL, 409 No. 21st Street
Bitmingharn, Alabama 35203
2O5/328-95?6

Sherrllyn A. Ifill
NAACP Lega1 Defenee Fund
99 Hudson Street, 16th Floor
New York, New York 100f3
2L2/2L9-1900

NON-PREFERENCE CASE



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UNITED STATES COURT OF APPEALS

I FoR rHE ELEVENTH crRcurr

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NO. 88-76L2

I{AGGIE S. BOZEMAN,

Plaintiff-APPeIlant,
v.

PICKENS COUNTY BOARD OF' EDUCATION, €t aI.,
Def endants-APPeI lees .

APPEAL FROI{ THE T'NITED STATES DISTRICT COTIRT

FOR THE NORTHERN DISTRICT OF AI,ABAMA

BRIEF ON BEHALF OF PI.AINTIFF-APPELLANT, MAGGIE S. BOZEMAN

Joe R. WhatIeY, Jr.
cooPER, MTTCH, CRAWFORD,

KUYKENDALL & WHATLEY
Suite 2OL, 409 No. 21st Street
Birnringham, Alabama 35203
2O5/328-9576

Sherrilyn A. Ifill
NAACP Legal Defense Fund
99 Hudson Street, 16th Floor
New York, New York 10013
2L2/2L9-L900

NON-PREFERENCE CASE



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I CERTIFICATE OF INTERESTED PERSONS

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The following is a list of persons or entities which may

have, oF on information and belief of attorneys for Appellant, may

I have an interest in the outcome of this case:

J Parties:

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ilaggie s. Bozeman

Pickens CountY Board of Education
r JerrY H. ParhamI J:"f..;":i'"

James G. Noland
f Nancy Farr
I BoYti Edgeworth

t Attorneys:

r Firm of Cooper, Mitch, Crawford, Kuykendall & lilhatley, and

I AttorneY Joe R. WhatIeY, Jr.

The NAACp Legal Defense Fund and Attorney Sherrilyn lfill

t Firnr of Ray, Oliver, Ward & Parsons and Attorney Ray Ward

I Arso:

I 
United Stat'es District Judge, Sam C. Pointer, Jr'

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STATEMENT REGARDING PREFERENCE

This case is entitled to no preference under the Rules of

this Court.

STATEI.{ENT REGARDTNG ORAL ARGWENT

Plaintiff-appellant Maggie Bozeman requests oral argument,

I and submits that oral argument would be helpful to the

I :;"::::'ation 
or the nover constitutionar arsuments beins advanced

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TABLE OF CONTENTS

STATEUENT Or THE ISSUES.......... ....... - -........

STATEI,IENT OF THE CASE

A. Course of Proceedings and Disposition
in the Court Below. .....

B. Statement of the Facts........ . " " " ..

C. Scope or Standard of Review " " " '

ST'UMARY OF THE ARGT'I,TENT..... .. . . . . ....

STATEI.TENT REGARDING JI'RISDICTION ... ..

ARGT'I{ENT

I. Since Due Process Requires that Defendant's
Action be Supported by Substantial Evidence,
It Cannot be -Based on a Conviction lilhich Is
Void .....

II. The principle of ttiust Treatmenttt Inherent
in Due Process and Its Prohibition Against
Arbitrary or capricious conduct Forbid Public
Errnployer-s rron supporting the Termination of
a Tenured Teacher Based on
Void Conviction..

III. Since the Prinary Reason Given for Bozeman's
Ternination is vbid, Due Process Requires
that She be Reinstated.......

coNcLUSrON....... -....

CERTIFICATE OF SERVICE

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TABLE OF AUTHORITIES

CITATTONS Page

Barnett v. Housing Authority of the City of
Atlanta , 7O7 F.2d L57L (lIth Cir.1983).......... 13

Ferguson v. Thomas, 430 F.2d 191 (sth Cir.L979 )........ LO,L2

Gutzwiler v. Fenik, 860 F.2d L31.7 (6th cir.1988)....... 14

Hatcher v. Board of Public Education and Orphanage
for Bibb County, 809 F.2d 1546 (llth Cir.1987).. 10,11

Hearn v. City of Gainesville, 588 F.2d L328

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(11th Cir.L982).............. ..............

Holley v. Seminole County School District, 755 F.2d
L492 (llth Cir.1985).... ...................

Joint Anti-Facist Refugee Comm. v. l{cGratht 34L U.S.
L23, 7L St. Ct. 624, 95 L.Ed 817 (1951)

KeIly

Roane

Rozman

Russell v. Harrison , 736 F.2d 283 (5th Cir.1983)...... -

Viverette v.Lurleen B. WaIlace State Junior CoIlege,
587 F.2d 191 (sth Cir. L979 )... ...... .. - . . . . ... . .

STATUTES

28 U.S.C. Section L29L

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(Frankfurter, J. concurring).................... 11

v. Smith, '764 F.2d L4L2 (lIth Cir.1985).......... 13

v. Callisburg, 5Ll- F.2d 633 (sth Cir.1-975)....... 13

v. EIIiott, 335 F.Supp. 1086 (D.Neb.1971)
affirned, 46't F.2d 1145 (8th Cir.L972).......... L2

L4

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STATEMENT OF THE ISSUES

1. Since Due Process Requires that the Taking of a Property

Interest Be Supported by Substantial Evidence, Can Such a Taking

Be Based on a Conviction tilhich Subsequently is Voided?

2. Does the Principle of ItJust Treatmentrt Inherent in Due

process and its Prohibition Against Arbitrary or Capricious Conduct

Allow public Officials to Continue to Enforce a Termination of a

Tenured Teacher Based upon a Void Conviction?

3. Since the prirnary and Major Reason Given for the Taking

of the Constitutionally Protected Property Interest Has Been

Voided, Can Defendants Escape without any Liability Consistent with

Sue Process?

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STATEMENT OF THE CASE

A. Course of Proceedings and Disposition
in the Court Below.

Maggie Bozeman filed her complaint on December 28, L987.

R1-1. Defendants answered on January 20, 1988, R1-2, and discovery

followed. The court below held a scheduling conference on }larch

18, 1988, R1-10, but no formal pre-trial conference was held. The

was tried on August 31, 1988, and at the close of the evidence the

court entered oral findings of fact and conclusions of Iaw, along

with a judgrment against Bozeman. R1-29. Bozeman filed a timely

notice of appeal on September 29, 1988. R1-31.

B. Statement of the Facts.

plaintiff was a long-term, tenured teacher with the Pickens

County Board of Education. By 1979 she had taught within the

Pickens County School System fot 25 years. She is Black. She has

been extremely active politically as a leader of the Alabama

Democratic Conference, a predominantly black political

organization. The defendants lrere well aware of Bozeman's

political activity, as shown by the excerpts from defendant Park's

deposition. pX25. She was not politically aligned with any of the

Board members, all of whom have been white. Id. at 34 el seq.

In L978, she publicly and actively supported a black

candidate to oppose Park, a long-term member of the Board. As a

result of her activity during that carupaign Bozeman hlas charged

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hrith voting fraud in the Circuit Court for Pickens County, Alabana.

On November, L979, she was found guilty of those charges by a jury

in Pickens County. The defendants then, for the first tine, began

efforts to terminate her. PX 1.

Bozernan was found guilty on a Friday. The same day the

Superintendent told her not to return to work because of the

conviction. The following Tuesday, November 6, L979, at 6:30 p.m.,

the Board held a specially called meeting to deal with Bozeman in

executive session. She was suspended from her tenured teaching

position, and the process for terminating her was begun. She was

not present for the neeting. The only specific reason for the

termination nas the conviction with only a vague reference to
rrvarious complaints concerning Mrs. Bozeman's performance.rr Px1.

The letter notifying Bozeman of the proposed termination is

dated November 6t 1979, the same day as the night-time neeting.

The first charge was her conviction. PX2

By letter dated November L2, L979, Bozeman contested her

termination. PX3. By letter dated November 21, L979, she requested

a one year leave of absence. PX4.

on November 27, t979, the Board met in another specially

called meeting and granted the request for a one year leave of

absence on the condition rrprovided that the Board receive a

conditional resignation from her should the conviction be upheld

by the appellate courts.rr PX5.



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In compliance with the condition required by the Board,

Bozeman submitted a conditional resignation which provided as

follows:

In the unlikely event that my felony
conviction is upheld in the Courts of
Alabama, and in the Courts of these United
States, please be advised that I will resign
my position as a teacher in the Pickens
County School SYsten. If nY felonY
conviction is reversed, however, I wiIl
insist on my rights under the tenure laws of
Alabama as they relate to the discharge of
tenured teachers.

PX6.

By letter dated December 10, L979, the Superintendent

acknowledged the acceptance of the conditional resignation and

approved the leave of absence. PX7.

On December L7, L979, the Board rrunanimously approved the

continuance of the hearing for Maggie Bozeman based on her request

for a leave of absence and conditional resignation.rr PX$.

As the one-year leave of absence neared an end, the attorney

for the Board wrote the attorney for the plaintiff. PX9. In that

Ietter, the Board explained that the rrproposed cancellation of her

contract [was] for the primary reason that she had been convicted

of a felony offense by the Pickens County Circuit Court.fr PX9'

The attorney wrote directly to Ms. Bozeman on the same date.

PX1O. Again, the only specific reason given for the proposed

cancellation was rrthe fact that you had been convicted by the

Pickens County Circuit Court of a felony offense.rr Id.



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Bozeman requested another leave of absence- PXI-1.

On December S, 1980, the Board was infonned that Bozeman

had requested a leave of absence. PX12. On Decenber 15, 1980,

the Board extended that leave of absence through Novenber 27, 1981-.

pX13. Bozeman was inforned of the extended leave of absence by

letter dated December 19, 1980, from the Superintendent. PX14.

on April 3, 1981, the superintendent informed the Board

That the Appe1late Court had upheld the
Circuit Court's decision in finding Mrs.
Maggie Bozeman, former school teacher, guilty
of- voter fraud. He further inforned the
Board that Mr. Ray Ward, Board attorney, had
advised him that the Board could not accept
Mrs. Bozeman's resignation as stated in her
letter requesting a leave of absence until
she had exhausted the appeals process
available to her through the judicial system
of Alabama.

PXl5.

By letter dated November 11, 1981, the attorney for the

Board informed the attorney for Bozeman that the second one-year

leave of absence rtas about to expire. PXL6. Again, the Board

confirmed the basis for the ttproposed cancellation effort contract,

the rnajor charge being that of the felony conviction.rr The letter

also confirmed an awareness that Bozeman pursuing her conviction

rrthrough the Federal Court.rt However, the Board had rrgiven some

preliminary indication that it does not wish to continue this

matter further.rt Therefore, Bozeman's resignation was requested.

IE. By November L7, 1981,, the attorney for the Board had learned

that Bozeman was represented by another lawyer, Mr. Solomon Seay,

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and hrrote hirn. PX17. By that point, the Board had apparently

concluded that rrno further leaves of absence, ot extensions

thereof, would be aPProPriaterr.

By letter dated December 8, 198L, the Board through its

attorney informed Bozeman that it would meet on December L4, 1981

and act on her resignation at that time. Px18

By letter dated December 15, 1981, the defendants notified

plaintiff of a hearing to be held on the cancellation of her

contract. PX19

on January 8, L982, the Board met, held a hearing on this

matter, and approved the cancellation of Bozeman's contract. PX20.

Since the Board tfas continuing to consider the issue of the

conviction, which Bozeman was still challenging, she saw nothing

to be served by attending that hearing.

The Board informed Bozeman of its decision by letter dated

January 8, L982, from its Superintendent. PX2L.

As she had previously informed the defendants, and as they

were ahrare, Bozeman continued to challenge her conviction through

the federal court system. On april L3, 1984, the United States

District Court for the Middle Division of Alabama granted her

petition for writ of habeas corpus and vacated the conviction.

pX22. The Court. found that there was rrno evidencerr to support the

conviction of Bozeman. Id. at L1-. In addition, the Court held

that she was rrtried upon charges that tere never made and of rtrhich

[she was] never notified.t' Id. at 22. AccordinglY, on August 9,

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1984, Bozeman's attorney wrote and asked that the Board return

Bozeman to work. PX23.

The Board raet on August 9, 1984, without inforning plaintiff

that it was then rneeting to consider her request, and denied her

request. PX24. No hearing was held on Bozeman's request to be

reinstated.

Excerpts from the depositions of the individual defendants

are enclosed as PX25-30. The depositions confirm PX9 that the

prinary reason for the termination was the conviction which has

now been declared void.

c. ScoPe or Standard of Review.

The standard of review for the conclusions of law made by

the court below is whether they were correct. The standard of

review for any findings of fact is whether they were clearly

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ST'I,TI{ARY OF THE ARGWENT

Bozeman's claims are first that the defendants violated her

right to substantive and procedural due process by terninating her

and then refusing to reinstate her without a hearing when they

Iearned that the prinary basis for her termination was voided, and

second, that the defendants violated her rights under the First and

Fourteenth Amendment by refusing to reinstate her after they

Iearned that the prirnary basis for her ternination was voided.'

First, due process requires that there be substantive

evidence to support the taking of the Constitutionally protected

property interest which Bozeman enjoyed in her job. Here, what

defendants, attorney described as the prirnary or major basis for

Bozemanrs termination (i.e., her conviction) has been declared

void. Therefore, there is no substantive evidence to support the

prirnary or rnajor reason for the termination, and it logically

follows that due process requires that Bozeman be remedied for the

termination, or at least for the defendants'refusal to take

remedial action when they learned that the conviction had been

declared void.

' plaintiff must concede that so far as she can determine,
the primary issue in this case is novel. In the words of
defen-dants, the ltprimary reasontr for the taking of plaintiff 's
ienured joL was a 

-conviction which has since been declared void-
When the conviction was declared void, Bozeman requested her job,
and defendants refused. For reasons discussed below, the
defendants have therefore violated the rights of plaintiff.



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Second, the principle of trjust treatment[ is inherent in

due process. Defendants did not treat Bozeman justly when they

continued to allow her Constitutionally protected property interest

to be severed from her, even after the najor or priruary reason for

doing so was declared void. The court below allowed the defendants

to rest on ceremonial compliance with procedural due process at the

tiure of her ternination, and due process requires more.

Third, this Court has recognized a right under substantive

due process that a deprivation of a Constitutionally protected

property interest must rest on the reasons given by the defendants.

Here, the defendants, through their attorney, stated that the

primary and najor reason for the termination Lras Bozeman's

conviction. That priurary and urajor reason has been declared void

and can no longer provide a substantive basis for the termination.

Therefore, Bozeman's right to substantive due process has been

violated, and she should be made whole.

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STATEMENT REGARDING JURISDTCTION

Since this is an appeal from a final judgrment, this Court

has jurisdiction under 28 V.s.C. section L29L-

ARGI'I{ENT

f. Since Due Process Requires that Defendant's
Action be Supported by Substantial Evidence,
It Cannot be Based on a Conviction !{hich
Tc. Vai d -

This Court has repeatedly ruled that when a public enployer

takes aqray property interest, there is a requirement that trthe

action taken is supported by substantial evidence.rr Hatcher v.

Board of Public Education and Orphanage for Bibb County, 809 F.2d

1546 , L552 (L1th Cir. Lg87l. Accord, Holley v. Seminole County

Schoo1 District, 755 F.2d L492, L496 1499-1500 (llth Cir. 1985),

Viverette v. Lurleen B. Iilallace State Junior Colleqe, 58'7 F.2d 191-,

LgA (sth Cir. LgTg')i Ferguson v. Thomas, 43O F.2d 852, 859 (5th

cir. 1970).

Here, the evidence defendants used to support the prinary

reason for the termination has been declared void. Therefore, Do

substantial evidence exists to support the deprivation of Bozeman's

property interest in her job. AccordinglY, the property interest

should be returned to her.

The trial court ignored the uncontradicted fact that on at

least two occasions, the attorney for the Board informed Bozeman

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her proposed ternination was to be based was the conviction. That

primary or major charge has been invalidated. The trial court even

found that the evidence against Bozeman on the other charges was

t'sketchytr. (Findings at 9). It is clearr ES the attorney for the

Board stated at least twice, and as Bozeman believed, that the true

basis asserted for the termination by the defendants was the

termination. t{hen that conviction Lras invalidated, Bozenan should

have been entitled to relief for her termination.

II. The Principle of rUust Treatmentrl
Inherent in Due Process and Its
Prohibition Against Arbitrary or
Capricious Conduct Forbid Public
Employers From Supporting the
Termination of a Tenured Teacher
Rasad on Voi d Conviction -

The best known description of due process is that of Justice

Frankfurter:

"[D]ue processrtt unlike some lega1 rules, is
not a technical conception with a fixed
content unrelated to time, place and
circumstances. Expressing as it does in its
ultimate analysis respect enforced by law for
that feeling of just treatment which has
evolved through centuries of Anglo-American
constitutionat history and civilization, rrdue
processrt cannot be imprisoned within the
treacherous linits of any formula.

Joint Anti-Fascist Refugee Comm. v. McGrath, 34L U.S. L23, L62, 7L

S.Ct. 624, 643, 95 L.Ed. 817 (1951) (Frankfurter, J.

concurring), quoted, amonq, other places, in Hatcher, 809 F.2d L552-

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trthe versatj.le nature of the due process requirementrr and quoted

Ferguson v. Thomas, 43O F.2d 852' 855 (5th Cir. L97Ot' as follows:

the standards of procedural due process are
no wooden absolutes. The sufficiency of
procedures emptoyed in any particular
situation must be judged in light of the
parties, the subject matter and the
circumstances involved.

This Court has also stated: trDue Process Clause prevents teacher

firing at public university which was arbitrary or capriciousrr.

HoIIey, 755 F.2d L499, citing Rozroan v. El1iott, 335 F. Supp. 1086,

1088 (D. Neb. Lg7Ll , affirrned, 467 F.2d 1145 (8th Cir. L9721 -

Finally, as recognized in Ferguson v. Thomas, 430 F.2d 852,

8s7 (5th Cir. 197o):

The substance of due process requires that
no instructor who has an expectancy of
continued employment be deprived of that
expectancy by mere ceremonial compliance with
procedural due Process.

Here, Bozeman has experienced grossly unfair treatment.

First, she suffered a felony conviction in Pickens County and a

prison sentence when there Lras rrno evidencetr to convict her and

when she was in fact tried upon charges that were never made and

of which she was never notified. Defendants should be bound by

what they stated to be the prirnary reason for plaintiff's

termination. Nevertheless, when they urere informed that the

conviction had been voided, they refused to take any action, even

granting plaintiff a hearing, to correct their o$rn injustice.

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Under the circumstances, defendants have failed to provide

plaintiff with just treatment, have acted arbitrarily and

capriciously, and have atternpted to rely upon mere cerenonj.al

compliance with procedural due process. Under these circumstances,

there has been a violation of Bozeman's right to due process.

III. Since the Prinary Reason Given for
Bozenan's Termination is Void, Due
Process Reouires that She be Reinstated.

Both this Court and the Fifth Circuit have held that

substantive due process prohibits the deprivation of a property

interest for reasons other than those given.

In Kelly v. Snith, 764 F.2d L4L2, 1413 (llth Cir. 1985),

this Court made it clear that one states a claim for violation of

substantive due process when he is deprived of a property interest
[for an improper motive or . . . for reasons other than those

given. . . .rl

This Court has recognized that the
trdeprivation of a property interest for an
improper motive and by means that. Iarel
pretextual, arbitrary and capriciousrr
constitutes a substantive due process
violation. Hearn [v. City of Gainesville],
688 F.2d [1328] at ]-332 [ (1'1th cir. LeBzl)i
see also Roane v. Callisburg, 511 F.2d 633,
63e (sth Cir. Le75l -

Barnett v. Housing Authority of the City of At1anta, 7O7 F.2d L57L,

L577 (ltth Cir. 1983). There, the Court affirrned a judgment for

a plaintiff on a substantive due process clain where there was

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evidence that the reasons offered for plaintiff's termination were

pretextual and the real reason Lras to make plaintiff a scapegoat

for mounting public Pressure.

The fifth Circuit has accepted a sirnilar substantive due

process theory in Russell v. Harrison, 736 F.2d 283, 287 el seq.

(sth Cir. 1983), where the Court held:

Despite plaintiffs' failure to elaborate,
however, iL is clear that they are claining
deprivation of substantive due process based
on the fact that their contracts h'ere
terminated while the contracts of other
employees hrere maintained, aII in absence of
any rltional plan to explain this action.
This is all that is required.

Id. at 288.

Very recently, the Sixth Circuit also recognized a sinilar

theory when it af f irrned a jury verdict based on a clairn of

violation of substantive due process. The Court held that:
rrsubstantive due process ... protects fundamental rights of

individual freedom and liberty from deprivation at the hands of

arbitrary and capricious lrovernment action.rt Gutzwiller v. Fenik,

860 F.2d L3L'1 , L328 (6th Cir. 1988).

Here, the primary basis for the decision to terminate

plaintiff was voided. Nevertheless, defendants refused to

reconsider their decision. What the defendants termed as the

primary basis for the termination has been invalidated. Therefore,

the reason given for the termination does not exist, and Bozeman's

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and made whole.

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CONCLUSTON

For all of the reasons stated herein, the Court should

reverse and render a judgrment in favor of Bozeman.

Respectfully submitted,

OF COUNSEL:

cooPER, MITCH, CRAWFORD,
KUYKENDALL & WHATLEY

Suite 2oL, 4o9 North 21st Street
Birmingham, Alabama 35203
(2O5) 328-e576

Whatley,

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CERTIFICATE OF SERVICE

I hereby certify that I have served a true and correct copy

of the foregoing upon the following counsel of record by depositing

same in the U. s. Mail, postage prepaid, oD this ?2. day of
I

'-o ' , , 1988.

Ray Ward, Esquire
Ray, Oliver, ltlard & Parsons
P. O. Box 65
Tuscaloosa, Alabana 35402

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