Brief on Behalf of Plaintiff-Appellant

    .l

rN THE

UNITED STATES COT'RT OF' APPEALS

FOR THE ELEVENTH CIRCUIT

NO. 88-76L2

MAGGIE S. BOZEMAN,

Plaintiff-AppeIIant,
v.

PICKENS COUNTY BOARD OF EDUCATION, €t dl.,

Def endants-Appe1 1 ees .

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA

BRIEF ON BEHALF OF PLATNTTFF-APPELLANT, II{AGGTE S. BOZEMAN

Joe R. Whatley, Jr.
cooPER, lIrTCH, CRAWFORD,

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

Sherrilyn A. Ifil1
NAACP Legal Defense Fund
99 Hudson Street, L6th Floor
New York, New York L00L3
2L2/2L9-r.e00

NON-PREFERENCE CASE



CERTTFTCATE OF TNTERESTED PERSONS

The following is a list of persons or entities which may

have, ot on informatj-on and berief of attorneys for Appellant, may

have an interest in the outcome of this case:

Parties:

Maggie S. Bozeman

Pickens County Board of Education
Jerry H. Parham
Jack T. Pate
J. V. Park
James G. No1and
Nancy Fair
Boyd Edgeworth

Attornevs:

Firm of cooper, Mitch, crawford, Kuykendall & hthatley, andAttorney Joe R. Whatley, Jr.
The NAACP Legar Defense Fund and Attorney sherriryn rfirl
Firm of Ray, oliver, ward & parsons and Attorney Ray ward

Also:

United States District Judge, Sam C. pointer, Jr.



STATEITTENT REGARDING PREFERENCE

This case is entitled to no preference under the Rules of
this Court.

STATEItiENtr REGARDTNG ORAL ARGI'UENT

. Plaintiff-appellant f,aggie Bozeman requests oraL argrument,

and subnits that oral argrrrment would be helpful to the

ccinsLderation of the novel Constltutional arguments being advanced

by her.



TABLE OF CONTENTS

STATEI{ENT OF THE ISSUES. .

STATEMENT OF THE CASE

A. Course of Proceedings and Disposition
in the Court Below

B. Stat,ement of the Facts. . .

C. Scope or Standard of Review

SUII{I,IARY OF THE ARGWENT

STATEUENT REGARDING JURISDICTION

ARGt,MENT

Page

I.

CONCLUSION.

CERTTFICATE OF SERVICE.



STATEMENT OF THE CASE

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

Maggie Bozeman filed her complaint on December 28, 1,987.

Rl--L. Defendants answered on January 20, L988, R1-2, and discovery

followed. The court below held a scheduling conference on March

18, l-988, Rl--10, but no formal pre-trial conference was held. The

was tried on August 3L, L988, and at the close of the evidence the

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

with a judgrment against Bozeman. RL-29. Bozeman filed a timely
notice of appeal on September 29, 1988. R1-3L.

B. Statement of the Facts.

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

County Board of Education. By L979 she had taught within the

Pickens County School System for 25 years. She is B1ack. She has

been extremely active politically as a leader of the Alabama

Democratic Conference, a predominantly black political

organization. The defendants were well aware of Bozeman's

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

deposition. Px25. She was not politically aJ.igned with any of the

Board members, all of whom have been white. nx. at 34 et 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 campaign Bozeman was charged



with voting fraud in the Circuit Court for Pickens County, Alabama.

on November, L979, she was found guitty of those charges by a jury
in Pickens county. The defendants then, for the first time, began

efforts to terminate her. PX L.

Bozeman 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 , lg7g, at 6:30 p.m.,

the Board held a specially ca1Ied neeting 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 meeting. The only specific reason for the

termination was the conviction with only a vague reference to
Itvarious complaints concerning Mrs. Bozemanrs performance.tr pxL.

The letter notifying Bozeman of the proposed termination is
dated November 6, t979, the same day as the night-time neeting.

The first charge was her conviction. PX2

By letter dated November L2, 1979, Bozeman contested her

termination. PX3. By letter dated November 2L, L979, she requested

a one year leave of absence. PX4.

On November 27, L979, 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.

3



rn compriance with the condition required by the Board,

Bozeman subnitted a conditional resignation which provided as

follows:

In the unlikely event that my felony
conviction is upheld in the Courts of
Alabana, 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 Systern. If my felony
conviction is reversed, however, I will
insist on my rights under the tenure laws of
Alabama as they relate to the discharge of
tenured teachers.

PX5.

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, 1979, the Board |tunanimously approved the

continuance of the hearing for Maggie Bozeman based on her request

for a leave of absence and conditional resignation.rr pX8.

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

for the Board wrote the attorney for the plaintiff. pX9..- In that
letter, the Board explained that the [proposed cancellation of her

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

of a felony offense by the Pickens County Circuit Court.rt pX9.

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

PXL0. Again, the only specific reason given for the proposed

cancellation was rthe fact that you had been convicted by the

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

4



Bozenan requested another leave of absence. pxLL.

On December 5, 1980, the Board was informed that Bozeman

had requested a leave of absence. pxt2. on December 15, 19g0,

the Board extended that leave of absence through November 27, l-9gL.

PX13. Bozeman was j.nformed of the extended leave of absence by

letter dated December L9, L980, from the superintendent. pxL4.

on Aprir 3, 1981, the superintendent informed the Board

That the Appellate Court had upheld the
Circuit Courtrs decision in finding Mrs.
Maggie Bozeman, former school teacher, guilty
of voter fraud. He further informed 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 Lt, L98L, the attorney for the

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

leave of absence .was about to expire. Px16. Again, the Board

confirrned the basis for the trproposed cancellation effort contract,
the major charge being that of the felony conviction.tf The letter
also confirmed an awareness that Bozeman pursuing her conviction
rfthrough the Federal Court.tr However, the Board had ttgiven some

prelirninary indicat,ion that it does not wish to continue this
matter further.rr Therefore, Bozeman's resj-gnation was requested.

!l. By November 17, L98L, the attorney for the Board had learned

that Bozeman was represented by another lawyer, Mr. solomon seay,



and wrcte him. PxL7. By that point, the Board had apparentry

concluded that rrno further leaves of absence, or extensions

thereof, would be appropriatetr.

By letter dated December 8, 198L, the Board through its
attorney informed Bozeman that it would meet on December !4, L98L

and act on her resignation at that tirne. pxlg

By letter dated December L5, L98L, the defendants notified
plaintiff of a hearing to be held on the cancellation of her

contract. PX19

On January 8, 1982, the Board met, held a hearing on this
matter, and approved the cancellation of Bozeman,s contract. PX2O.

Since the Board was continuing to consider the issue of the

conviction, which Bozeman was sti1l challenging', she saw nothing

to be served by attending that hearing

The Board inforrned 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 awarer'Bozeman continued to challenge her conviction through

the federal court system. On April a3, L984, 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 rtno evidence[ to support the

conviction of Bozeman. Id. at LL. fn addition, the Court held

that she was trtried upon charges that were never made and of which

[she was] never notified.rt I-d. at 22. Accordingly, on August 9,

6



L984, Bozeman's attorney wrote and askecl that the Board return
Bozeman to work. PX23.

The Board met on August 9, 1984, without informing plaintiff
that it was then neeting to consider her request, and denied her

request. Px24. No hearing was held on Bozemanrs request to be

reinstated.

Excerpts from the depositions of the individual defendants

are enclosed as PX25-30. The depositions confirm PX9 that the
primary reason for the termination hras 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 crearly
erroneous.

7



STJMMARY OF THE ARGIIMHNT

Bozeman's claims are first that the defendants violated her

right to substantive and procedural due process by terminating her

and then refusing to reinstate her without a hearing when they

learned that the primary 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

learned that the prinary basis for her termination was voided.l

Icomplete summary]

' Plaintiff must concede that so far as she can determine,
the primary issue in this case is novel. In the words of
defendants, the trprimary reasontt for the taking of plaintiff's
tenured job 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 be1ow, the
defendants have therefore violated the rights of plaintiff.



STATEMENT REGARDING JURTSDTCTTON

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

has jurisdiction under 28 U.S.C. section 1-29L.

ARGUMENT

Since Due Process Requires that Defendantrs
Action be Supported by Substantial Evidence,
ft Cannot be Based on a Conviction Which
Is Void.

This Court has repeatedly ruled that when a public employer

takes away property interest, there is a requirement that nthe

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

Board of Public Education and orphanage for Bibb county, Bo9 F.2d

1546, L552 (1Lth Cir. 1987). Accord, Ho11ey v. Seminole Countv

School District, 755 F.2d 1-492, 1496 L499-L5OO (11th Cir. L9g5);

Viverette v. Lurleen B. Wallace State Junior College, 587 F.2d tg]-,

L94 (5th Cir. L979); Ferguson v. Thomas, 43O F.2d 852,859 (5th

Cir. t97o).

Here, the evidence defendants used to support the primary

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

substantial evidence exists to support the deprivation of Bozeman's

property j.nterest in her job. AccordingLy, the property interest
should be returned to her.

r.

9



f I. The Principle of trJust Treatmenttt
Inherent in Due Process and Its
Prohibition Against Arbitrary or
Capricious Conduct Forbid PubIic
Employers f'rom Supporting the
Termination of a Tenured. Teacher
Based on Void Conviction.

The best known description of due process is that of Justice

Frankfurter:

ttID]ue proceSSrtt unlike some legal ru1es, is
not a technical conception with a fixed
content unrelated to tine, 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
constitutional history and civilization, [due
processrt cannot be imprisoned within the
treacherous linits of any formula.

Joint Anti-Fascist Refuqee Comm. v. McGrath, 34L U.S. ]-23, L62, 7L

S.Ct. 624, 643, 95 L.Ed. 817 (L95L) (Frankfurter, J.

concurring), quoted, among other places, in Hatcher, 809 F.2d 1-552-

53. In Hatcher, 809 F.2d L553, the Eleventh Circuit recognized
trthe versatile nature of the due process requirementtr and quoted

Ferguson v. Thomas, 43O F.2d 852, 856 (5th Cir. L97O), as follows:

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

This Court has also stated: rrDue Process Clause prevents teacher

firing at public university which was arbitrary or capriciousrt.

10.



Holley, 755 F.2d L499, citing Rozman v. E11iott, 335 F. Supp. 1096,

1088 (D. Neb. L97L), affir:ned, 467 F.2d t3,45 (Bth Cir. L97Z).

Fina1ly, as recognized in Ferguson v. Thomas, 43O F.2d gS2,

857 (sth Cir. LeTo)z

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

Here, Bozeman has experienced grossly unfair treatment.

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

prison sentence when there was rrno evidence,t to convict her and

when she was in fact tried upon 'charges that were r{ever made and

of which she was never notified. Defendants concede that tlrey

relied upon the conviction as the primary reason for plaintift3rs

termination. Nevertheless, when they were informed that the

conviction had been voided, they refused to take any action, e\ren

granting plaintiff a hearing, to correct their own injustice.
Under the circumstances, defendants have failed to provide

plaintiff with just treatment, have acted arbitrarily and

capriciously, and have attempted to rely upon mere ceremoni.al

compliance with procedural due process.

fII. Since the Primary Reason Given for
Bozeman's Termination is Void, Due
Process Reouires that She be Reinstated-

]-L



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 Ke11y v. Snith , 764 F.2d L4L2 , L4L3 ( t-Lth Cir. 1985 ) ,

this Court rnade it clear that one states a clain for violation of
substantive due process when he is deprived of a property interest
Itfor an improper motive or . for reasons other than th,cse

given. . . .tr

This Court has recognized that thetrdeprivation of a property interest for an
improper notive and by means that [are]pretextual, arbitrary and capricioustr
constitutes a substant,ive due process
violation. Hearn [v. City of Gainesville],
688 F. 2d 1L328I at L332 [ ( ].Lth cir. Le82) ) ;
see also Roane v. Callisburg, 51L F.2d 633,
639 ( sth Cir. 1-975) .

Barnett v. Housing Authority of the Citv of Atlanta, 7O7 F.2d 1-5'7L,

1577 (LLth Cir. 1983). There, the Court affirmed a judgment for

a plaintiff on a substantive due process claim where there lras

evidence that the reasons offered for plaintiff's termination were

pretextual and the real reason was to rnake plaintiff a scapegoat

for mounting public pressure.

The fifth Circuit has accepted a similar substantive due

process theory in Russell v. Harrison, 736 F.2d 283, 287 e! Seg.

(sth Cir. L983), where the Court held:

Despite plaintiffs' failure to elaborate,
however, it j.s clear that, they are claiming
deprivation of substantive due process based
on the fact that their contracts hlere
terminated while the contracts of other



employees s/ere maintained, tl1 in absence of
any rational plan to explain this action.
This is all that is required.

!1. at 288.

Very recently, the Sixth Circuit also recognized a sirnilar
theory when it affirmed a jury verdict based on a claim 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 government action. tt Gutzwiller v. Fenik,

850 F.2d L3t7, L328 (6th Cir. 1988).

Here, the primary basis for the decision to terrninate

plaintiff was voided. Nevertheless, defendants refused to

reconsider their decision. Since the primary basis for Ehe

decision is gone, it logicalIy follows that the true reason :for

the termination was somethinqr else.

IV. The Court, Should HoId that Bozeman
was Terminated or Not Reinstated
in Violation of her First and
Fourteenth Amendment Rights.

Public officials c

employees like teachers on

8.g., Rankin v. McPherson,

F.2d 1555 et seq.

In this case, when

L984, defendants knew that

annot make employment decisions for

the basis of their political activity.

Lo7 S. ct. 289L (L987 ) ; Hatcher, {109

plaintiff requested reinstatement in
the primary reason for her terminatj-on

Lt



had been voided. The Court should conclude that the true reerson

that the defendants did not want to reinstate her was her politi.cal
activity in opposition to the Board members.

CONCLUSION

For all of the reasons stated herein, the Court should

reverse and render a judgrment in f avor of Bozeman.

Respectfully submitted,

Joe R. Whatley, JF.

OF COUNSEL:

cooPER, MTTCH, CRAWFORD,
KUYKENDALL & WHATLEY

Suite 20L, 409 North 2Lst Street
Birmingham, Alabama 35203
(2O5) 328-e576

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 depositj.ng

same in the U. S. Mail, postage prepaid, oD this day of

, l_999.

u



Ray Ward, Esquire
Ray, O1iver, Ward & Parsons
P. O. Box 65
Tuscaloosa, Alabarna 35402

Joe R. What,ley, Jr.

.u