Petition — Barham v. Welch

8 0 a 1 5 3 3 stust ae aay hag US.

| YAR 5 1981

NO. 4 2. STEVAS

ALEXANS 2.5

Supreme Court Of The United States

OCTOBER TERM, 1980

DR. JIM F. BARHAM,

Petitioner,

vs.

EWELL WELCH, DOUG VESS, ORVILLE TOUGAW

AND BILL MITCHELL,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

THOMAS FRANCIS DONOVAN,

of record, and

ERNEST W. Wirt, Attorneys

Witt AND Donovan, Attorneys

115 South Second Street

Dardanelle, Arkansas 72834

(501) 229-3446

Attorneys for Petitioner

A

L&E

IN THE

Supreme Court Of The United States

OCTOBER TERM, 1980

DR. JIM F. BARHAM,

Petitioner,

VS.

EWELL WELCH, DOUG VESS, ORVILLE TOUGAW

AND BILL MITCHELL,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

QUESTIONS PRESENTED

1. When two of four voting school board members

testify, in federal district court, that, at a termination

hearing, no evidence could have been presented by the

school superintendent to cause them to vote against the

superintendent’s termination, has the termination proceed-

ing been unconstitutionally tainted?

2. When a federal district court judge makes a factual

finding of actual bias on the part of two school board

members who participated in the school superintendent’s

termination hearing, should this finding be set aside, as a

matter of law, in the absence of a holding that the district

court finding was clearly erroneous?

ii

LIST OF PARTIES

The parties in this case are those shown in the caption.

When this case was commenced additional parties were

James “Crock” Frame, a member of the Havana School

Board who did not vote for the petitioner’s termination, and

the Havana School District No. 86. Both of those additional

defendants were dismissed by order of the district court.

iii

TABLE OF CONTENTS

Page

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CONSTITUTIONAL AND STATUTORY

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Order of Court of Appeals of

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Opinion of Court of Appeals of

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Opinion and Order of District Court of

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iv

TABLE OF AUTHORITIES

Hortonville Joint School District No. 1 v. Hortonville

Education Association, 426 U.S. 482 (1976) .......... 1

United States v. U. S. Gypsum Co., 333 U.S. 364 (1948) ... 3

Jones & Sons Insurance Agency, Inc. v. Midwest

Transportation Service, 593 F.2d 845

CRN BNE E co Sis nA peeks tlekacéeuslvads cotedeie dees 3

Rule 52(a), Federal Rules of Civil Procedure ........... 3

Vv

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Eighth Circuit is not yet reported. It is set forth in

the Appendix, pp. A-2 through A-16. The opinion and

order of the United States District Court for the Eastern

District of Arkansas, entered November 9, 1979 is set forth

in the Appendix, pp. A-17 through A-23 and is found at

478 F. Supp. 1246. The Order denying petitioner’s Petition

for Rehearing is set forth at Appendix, p. A-1.

JURISDICTION

The jurisdiction of this Court is invoked pursuant to

28 U.S.C. §1254(1). The opinion of the United States Court

of Appeals for the Eighth Circuit was entered on November

7, 1980. The Order of the United States Court of Appeals for

the Eighth Circuit denying petitioner’s Petition for Rehear-

ing and Suggestions for Rehearing en Banc was entered on

December 5, 1980.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Constitutional provisions involved in this case are the

Fifth and Fourteenth Amendments to the Constitution of

the United States.

Statutory provisions involved are 42 U.S.C. $1983.

vi

STATEMENT OF THE CASE

1. Proceedings.

Dr. Jim Barham brought this action under 42 U.S.C.

§1983 (1976) and state law against the Havana Public

School District No. 86, Yell County, Arkansas, and the five

members of the Havana School Board (the Board), seeking

reinstatement, equitable relief, and damages. His complaint

alleged that the defendants, by prematurely terminating his

employment contract as superintendent of the Havana

School District, deprived him of free speech and due pro-

cess under the First, Fifth and Fourteenth Amendments,

and violated his state contract rights.

At the conclusion of plaintiff’s proof, the district court

dismissed the action as to the school district and James

Frame, a board member who did not vote for termination.

The court also dismissed the First Amendment claim. At

the close of the five-day jury trial, the court determined

as a matter of law that because of the bias of two school

board members, the Board had reached its decision to

discharge Barham without affording him the fair and

impartial hearing required under the due process clause.

Accordingly, the court decided to make an equitable award

of back pay, but denied reinstatement because the contract

period had terminated by the time of trial.

The district court submitted to the jury the issues of

damages to professional reputation, punitive damages, and

the Board’s defense of good faith, but the jury failed to

reach agreement on these issues and the court declared a

mistrial. The court thereafter entered an order against the

four remaining school board members in their official

capacities, awarding Barham back pay in the amount of

vii

$14,906.84 and attorneys’ fees, expenses, and costs in the

amount of $11,044.04."

The four members of the school board sought an appeal

from this interlocutory order under 28 U.S.C. §1292(b)

(1976). The district court certified the due process question

and the circuit court permitted the interlocutory appeal.

Appellants argued on appeal that the district court erred

1) in ruling that the Board was not sufficiently im-

partial to satisfy the requirements of the due process clause

of the Fourteenth Amendment;

2) in ruling that the defense of good faith was not

applicable to the equitable award for back pay, counsel fees,

expenses, and costs; and

3) in making the equitable award against two

board members whose impartiality was not attacked and

in refusing to dismiss the case as to them.

The case was submitted on June 12, 1980, and decided

on November 7, 1980. The Court of Appeals reached only

the first issue raised by appellants and held that the manner

of discharging Barham did not deprive him of property

without due process of law. On December 5, 1980, the

Court of Appeals denied petitioner’s Petition for Rehearing.

ll. Background.

In the summer of 1978, the Havana School Board re-

hired Barham to serve a third year as school superintendent,

under a contract commencing on July 1, 1978. Subsequent-

ly, a serious disagreement developed between the Board

1The court ruled that good faith was not a defense to this equitable

award.

*%

viii

and Barham. At a school meeting on July 3, 1978, Barham

presented the annual financial report which showed a

balance of approximately $11,000 in the operating fund.

Some board members believed that the balance was

dangerously low. On July 11th, Barham sent the Board a

letter advising them that he had requested Dr. Pilkinton,

Director of the Division of Finance and Administration of

the Arkansas Department of Education, to look over the

district’s financial records, and that Dr. Pilkinton had

indicated that the school district was in generally good

financial condition. On July 18th, the Board held a special

meeting to discuss finances and decided to supervise

Barham’s expenditures more closely. On July 28th, an

article appeared in a local newspaper in which Barham

defended his school expenditures.

Welch, the president of the school board, called a

special meeting for July 31, 1978, to discuss a “serious per-

sonnel (superintendent) problem.” Barham and his attor-

ney attended this meeting at which the Board discussed

school finances and the newspaper article, as well as

Barham’s outside activities as a teacher for Arkansas Tech

University at Russellville, Arkansas, and as a deputy sheriff

for Yell County. After Barham stated that he would not

consider resigning, the Board, meeting in executive session,

decided to hold a hearing on August 4, 1978, to consider

termination of Barham’s contract. Frame voted against this

decision. Barham received notice of the following charges

against him:

1. That you have violated your contract with the

2Some board members were aware of these activities prior to ap-

proving the July 1, 1978 contract.

ix

Havana School District in regards to your outside

teaching activities at Arkansas Tech University.

2. That you have violated your contract as a

result of your duties as a law enforcement officer with

the Yell County Sheriff’s Department.

3. That you have been irresponsible in the man-

agement of the financial affairs of the Havana School

District.

4. That your public utterances to the media have

tended to bring discreet upon the Havana School,

School Board, and the community in general.

Attending the August 4th hearing were Barham and

his attorney, board member Frame and his attorney (sup-

porting Barham), and the other four school board members

and their attorney. Several hundred spectators also attend-

ed the meeting, most supporting Barham’s retention as

superintendent.

Welch presided at the termination hearing, and read

into the record the Board’s evidence against Dr. Barham.

Dr. Barham presented his evidence, supporting his

contract and argued that his actions did not warrant

termination.

After Barham testified, the members of the Board

adjourned into executive session and voted four to zero to

discharge him, with Frame refusing to attend the executive

session. Barham then brought his lawsuit.

At the trial, all board members testified as to their

familiarity with the facts leading up to the termination;

however, two of the four board members (Vess and

Mitchell) testified that Dr. Barham could have presented

no evidence which would have caused either of them to

vote differently at the termination hearing. Then United

States District Judge Richard S. Arnold held that Vess and

Mitchell had sufficiently prejudged the outcome of the

hearing, so that as a matter of law, Dr. Barham had been

denied a property right, without due process of law.

1

ARGUMENT

I.

The United States Court of Appeals for the Eighth

Circuit has decided an important question of federal law

which was not completely settled by this Court in Horton-

ville Joint School District No. 1 v. Hortonville Education

Ass’n, 426 U.S. 482 (1976), and in so doing decided a federal

question in conflict with this Court’s holding in Hortonville.

This Court’s pronouncement in Hortonville, supra, was

that mere “involvement” with pre-termination events was

not sufficient to overcome the presumption of honesty and

integrity in policymakers with decisionmaking power, so as

to deny the terminated employee due process of law.

Hortonville, supra, 426 U.S. at 497. Hortonville did not de-

cide what showing of bias or prejudice must be made in

order to overcome the presumption vested in school board

members.

The Circuit Court of Appeals held that a tentative

opinion concerning Dr. Barham’s termination, in the instant

case, based on their pre-termination official involvement

with Barham, is not sufficient evidence on which to base a

finding of actual bias. (A-14) This decision extends this

Court’s holding in Hortonville so that even if pre-termina-

tion invelvement causes two of four board members to

reach a tentative decision concerning termination prior to

the hearing, no violation of due process has occurred.

Hortonville left the question of the degree of involve-

ment which would disqualify a board member and the

question of whether a board member is “capable of judging

a particular controversy fairly on the basis of its own cir-

cumstances”, Hortonville, supra, 426 U.S. at 493, for resolu-

tion by the fact finder. The Circuit Court of Appeals

indicates that the presumption of honesty and integrity

cannot be overcome absent a claim of personal animosity,

illegal prejudice, or a personal or financial stake in the

outcome. (A-10).

The Circuit Court of Appeals attempted to ease its pain

-of departure from Hortonville by substituting its finding of

fact for that of the district judge by esoterically characteriz-

ing the bias of the two school board members as tentative

bias rather than irrevocable prejudice.

This -ourt should decide (1) what evidence must be

presented or what showing must be made in order to dis-

qualify a board member because his actual bias denies due

process and (2) must a showing of personal animosity,

illegal prejudice, or a personal or financial stake in the out-

come of a hearing be made when school board members

admit, at trial, that there was no evidence which could have

been presented which would have caused them to vote

against termination of a school superintendent?

Il.

The decision of the Circuit Court of Appeals has so far

departed from the accepted and usual course of judicial

proceedings so as to demand the exercise of this Court's

power of supervision.

District Judge Richard S. Arnold (now Circuit Judge),

at the conclusion of the presentation of evidence by both

sides made the following finding (A-14, 18)

“The plaintiff was deprived of property without

due process because the school board was not suf-

ficiently impartial. * * * Messrs. Vess and Mitchell

had their minds made up before the hearing on

August 4, 1978; there was no evidence which Dr.

Barham could have presented which could have

changed their minds about terminating his con-

oa. = > ="

Nowhere in the decision of the Circuit Court of Appeals

is there a holding that the district court’s finding of fact

was clearly erroneous.

Such a finding is clearly required by Rule 52(a),

F.R.C.P., which states, in pertinent part:

“.. Findings of fact shall not be set aside unless

clearly erroneous, and due regard shall be given

to the opportunity of the trial court to judge of

the credibility of the witnesses. .. .”

Without a holding that the trial court was clearly

erroneous the Court of Appeals should have affirmed the

lower court’s decision. That same Court of Appeals, quoted

from this Court’s decision in U.S. v. U.S. Gypsum Co., 333

U.S. 364 (1948), in Jones & Sons Insurance Agency, Inc. v.

Midwest Transportation Service, 593 F.2d 845 (8th Cir.

1979), as follows:

“Our standard of review is well settled. Although

4

the factual findings of the trial court are entitled

to great weight, they must be declared clearly

erroneous if the reviewing court, upon an examina-

tion of the entire record, forms the definite and

firm conviction a mistake has been committed.”

593 F.2d at 848.

Indeed this doctrine has been well settled, but the

Circuit Court of Appeals chose to ignore this doctrine and

-merely substituted its finding of fact for that of the dis-

trict judge. The Court of Appeals apparently substituted

de novo review for the standard of clearly erroneous fact

finding since there is no declaration that the trial judge

was clearly erroneous.

Although the Court of Appeals had the entire record

before it, the district judge had the opportunity to see and

hear and determine the veracity of witnesses. His decision

concerning the true facts in this case was made upon various

factors gleaned from live witnesses, rather than from a

cold record of words. The district judge viewed and

weighed the evidence in the context of the entire trial. The

statements made by Messrs. Vess and Mitchell were made

at the trial which occurred one year after Dr. Barham’s

termination hearing. For a school board member to testify,

after a lapse of one year, that there was no evidence which

could have been presented which would have caused him

to even consider changing his mind is not weak and incon-

clusive, but is conclusive evidence of prejudgment on the

part of the board members.

Whether the opinion of the two board members who so

testified was tentative or irrevocable is a decision to be

made by the district judge, the fact finder; and his decision

should not be disturbed by the Circuit Court of Appeals

unless clearly erroneous.

Respectfully submitted,

/s/ THOMAS FRANCES DONIVAN

THOMAS FRANCIS DONOVAN,

of record, and

ERNEST W. Wirt, Attorneys

WITT AND Donovan, Attorneys

115 South Second Street

Dardanelle, Arkansas 72834

(501) 229-3446

Attorneys for Petitioner

A-l

Appendix

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

NO. 79-2008

September Term, 1980

EWELL WELCH, DOUG VESS, ORVILLE TOUGAW,

AND BILL MITCHELL,

Appellants,

VS.

DR. JIM F. BARHAM,

Appellee.

APPEAL FROM THE

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF ARKANSAS

The Court, having considered appellee’s petition for

rehearing and suggestions for rehearing en banc and being

now fully advised in the premises, hereby orders the petition

for rehearing and suggestions for rehearing en banc denied.

Judge Arnold did not take part in the vote.

December 5, 1980

A-2

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

NO. 79-2008

EWELL WELCH, DOUG VESS, ORVILLE TOUGAW,

AND BILL MITCHELL,

Appellants,

VS.

DR. JIM F. BARHAM,

Appellee.

APPEAL FROM THE

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF ARKANSAS

Submitted: June 12, 1980

Filed: November 7, 1980

Before HEANEY and BRIGHT, Circuit Judges, and

HUNGATE, District Judge.*

BRIGHT, Circuit Judge.

Dr. Jim Barham brought this action under 42 U.S.C.

§1983 (1976) and state law against the Havana Public

School District No. 86, Yell County, Arkansas, and the five

members of the Havana School Board (the Board), seeking

reinstatement, equitable relief, and damages. His complaint

alleged that the defendants, by prematurely terminating his

employment as superintendent of the Havana School Dis-

trict, deprived him of free speech and due process and

violated his state contract rights.

*WILLIAM L. HUNGATE, United States District Judge, Eastern

District of Missouri, sitting by designation.

A-3

At the conclusion of plaintiff’s proof, the district court

dismissed the action as to the school district and James

Frame, a board member who did not vote for termination.

The court also dismissed the First Amendment claim. At

the close of the five-day jury trial, the court determined as

a matter of law that because of the bias of two school board

members, the Board had reached its decision to discharge

Barham without affording him the fair and impartial hear-

ing required under the due process clause.’ Accordingly, the

denied reinstatement because the contract period had

terminated by the time of trial.

The district court submitted to the jury the issues of

‘damages to professional reputation, punitive damages, and

the Board’s defense of good faith,” but the jury failed to

reach agreement on these issues and the court declared a

mistrial. The court thereafter entered an order against the

four remaining school board members in their official

capacities, awarding Barham back pay in the amount of

$14,906.84 and attorneys’ fees, expenses, and costs in the

amount of $11,044.04.°

The four members of the school board sought an ap-

peal from this interlocutory order under 28 U.S.C. §1292(b)

(1976). The district court certified the due process

1The court concluded that the notice and hearing given to Barham

otherwise comported with the requirements of due process.

court decided to make an equitable award of back pay, but

2Barham decided not to submit the breach of contract claim to the

jury.

8The court ruled that good faith was not a defense to this equitable

award.

A-4

question‘ and this court permitted the interlocutory appeal.

Appellants argue on appeal that the district court erred

1) in ruling that the Board was not sufficiently

impartial to satisfy the requirements of the due process

clause of the Fourteenth Amendment;

2) inruling that the defense of good faith was not

applicable to the equitable award for back pay, counsel fees,

expenses, and costs; and

3) in making the equitable award against two

board members whose impartiality was not attacked and in

refusing to dismiss the case as to them.

We reach only the first issue and hold that the manner

of discharging Barham did not deprive him of property

without due process of law. Accordingly, we reverse the

district court.

1. Background.

In the summer of 1978, the Havana School Board re-

hired Barham to serve a third year as school superinten-

dent, under a contract commencing on July 1, 1978.

Subsequently, a serious disagreement developed between

the Board and Barham. At a school board meeting on July

3, 1978, Barham presented the annual financial report which

showed a balance of approximately $11,000 in the operating

4In authorizing the appeal under §1292(b), the district court observed:

The Court is of the opinion that the portion of this order which

re-affirms the finding that plaintiff's due process rights were

violated involves a controlling question of law as to which

there is substantial ground for difference of opinion. An im-

mediate appeal from this order may materially advance the

ultimate termination of this litigation. If this order is in error,

there is no need for a second jury trial.

A-5

fund. The treasurer’s report showed a balance of approxi-

mately $9,800. Several board members believed that the bal-

ance was dangerously low. On July 11th, Barham sent the

Board a letter, advising them that he had requested Dr.

Pilkinton, Director of the Division of Finance and Adminis-

tration of the Arkansas Department of Education, to ‘look

over the district’s financial records, and that Dr. Pilkinton

had indicated that the school district was in generally good

financial condition. On July 18th, the Board held a special

meeting to discuss finances and decided to supervise

Barham’s expenditures more closely. On July 28th, an

article appeared in a local newspaper in which Barham

defended his school expenditures.

Welch, the president of the school board, called a

special meeting for July 31, 1978, to discuss a “serious per-

sonnel (superintendent) problem.” Barham and his attor-

ney attended this meeting at which the Board discussed

school finances and the newspaper article, as well as

Barham’s outside activities as a teacher for Arkansas Tech

University at Russellville, Arkansas, and as a deputy

sheriff for Yell County.5 After Barham stated that he

would not consider resigning, the Board, meeting in execu-

tive session, decided to hold a hearing on August 4, 1978, to

consider termination of Barham’s contract. Frame voted

against this decision. Barham received notice of the follow-

ing charges against him:

1. That you have violated your contract with the

5Apparently some board members were aware of these activities prior

to approving the July 1, 1978, contract. In July, however, an Arkan-

sas Tech official verified Barham’s teaching position and a county

newspaper article publicized Barham’s participation as deputy sheriff

in a local drug raid.

A-6

Havana School District in regards to your outside

teaching activities at Arkansas Tech University.

2. That you have violated your contract as a

result of your duties as a law enforcement officer with

the Yell County Sheriff’s Department.

3. That you have been irresponsible in the man-

agement of the financial affairs of the Havana School

District.

4, That your public utterances to the media have

tended to bring discredit upon the Havana School,

School Board, and the community in general.

Attending the August 4th hearing were Barham and

his attorney, Board member Frame and his attorney (sup-

porting Barham), and the other school board members and

their attorney. Several hundred spectators also attended

the meeting, many supporting Barham’s retention as

superintendent.

Welch presided at the hearing, and read into the record

the following evidence: the charges against Barham; the

notice of the hearing sent to Barham; Dr. Barham’s July 1,

1978, contract;® a letter from an official of Arkansas Tech

University stating that Barham was under a teaching con-

tract with Arkansas Tech;’ a newspaper article about a drug

raid in which Barham participated; a newspaper article

6All three contracts with Barham contained a provision which stated

that

The Party of the Second Part (Barham) certifies that at the

date of this contract he or she is not under teaching contract

with another school district(.)

This letter also stated that Barham had taught several courses in

both 1977 and 1978 and had earned $5,350 between January 10, 1977

and July 7, 1978.

A-7

that included Barham’s statement on the status of school

finances; a statement from the county treasurer showing an

operating fund balance of $5,318.14 as of August 4, 1978; a

letter from Dr. Pilkinton to Barham indicating that the

district financial condition was good, although the balance

was “not as large as it perhaps should be;” a letter from

Barham to the Board discussing Pilkinton’s assessment of

the school district’s finances; and an auditing report showing

that the fund balance as of July 1, 1977, was more than

$25,000, but as of June 30, 1978, was less than $11,000.

Barham denied none of the essential facts underlying

the charges. Rather, in his defense he argued that his

actions did not warrant termination. He asserted that 1)

his teaching position was not a breach of his contract, did

not interfere with his responsibilities as superintendent,

and provided additional income necessary to support his

family; 2) his uncompensated service as deputy sheriff

was not a breach of his contract and benefited the com-

munity; 3) the operating fund balance was abnormally

low because an extensive building program ,which improved

the quality of education in Havana, was financed out of

current funds rather than by loans; 4) his statement to

the press was a justifiable response to untruthful rumors

that he had bankrupted the school district.

After Barham testified, the members of the Board

adjourned into executive session and voted four to one to

discharge him, with Frame dissenting. Barham then

brought this lawsuit.

ll. Due Process Violation.

The district court concluded that because the Board

was not sufficiently impartial, Barham was deprived of

Pr

A-8

property without due process of law. The court rested its

conciusion on the following evidence. On examination by

Barham’s attorney, school board member Mitchell testified:

Q.

A.

Now, let me ask you, Mr. Mitchell, at that hearing,

was there any evidence which Dr. Barham could

have presented which would have made you render

a different decision than the one which you ulti-

mately did at the conclusion of that meeting?

I don’t think so.

On examination by Barham’s attorney, school board mem-

ber Vess testified:

Q.

> ©

*

And my question is: can you bring to mind any

circumstances [on August 4th] in which you would

have voted to retain Dr. Barham?

I still can’t answer this question.

You can’t imagine any circumstances?

. No, I didn’t say that. I said personally I really liked

— that’s an unfair question. I really don’t know

what could have been done, if anything could have

been done. I really can’t say what I would have done

at that time.

* 2 f

[The Court] Go ahead and answer, Mr. Vess.

A.

I really don’t think at that stage of the game — this

is my personal opinion — would have changed any-

thing. I sure don’t.

On the basis of this testimony the district court con-

cluded:

A-9

If two of the four participating members of the

board would not under any circumstances have changed

their minds regardless of the evidence presented by

Dr. Barham at the hearing, the hearing was useless

from Dr. Barham’s perspective. Although complete

impartiality is not required, fundamental fairness

necessitates that the members of the tribunal have no

actual bias. “A fair trial in a fair tribunal is a basic

requirement of due process. Fairness of course requires

an absence of actual bias in the trial of cases.” In Re

Murchison, 349 U.S. 133, 186 (1954). Based upon their

testimony, the Court must conclude that Messrs. Vess

and Mitchell were not “capable of judging [this]

particular controversy fairly on the basis of its own

circumstances.” Hortonville Joint School Dist. No. 1 v.

Hortonville Education Ass’n, 426 U.S. 482, 493 (1976),

quoting from United States v. Morgan, 313 U.S. 409, 421

(1941).

Based on the record as a whole and the policy considerations

discussed by the Supreme Court in Hortonville Joint School

District No. 1 v. Hortonville Education Ass’n, 426 U.S. 482

(1976), we conclude that this testimony does not demon-

strate the degree of bias that disqualifies a decisionmaker

under the due process clasue.

In Hortonville, a Wisconsin school board unsuccessfully

negotiated with iis teachers and then dismissed them after

they engaged in a clearly illegal strike. The Wisconsin

Supreme Court held that the board’s familiarity with the

events leading to the strike prevented it from impartially

evaluating the seriousness of the teachers’ actions, which

was necessary in deciding whether to dismiss them for

A-10

striking or to use a less drastic remedy. 225 NW2d 658

(Wisc. 1975). In reversing, the Court stated that

[a] showing that the Board was “involved” in the

events preceding this decision, in light of the important

interest in leaving with the Board the power given by

the state legislature, is not enough to overcome the

presumption of honesty and integrity in policymakers

with decisionmaking power. Cf. Withrow v. Larkin, 421

U.S. [35] at 47 [1975] [Hortonville, supra, 426 U.S. at

496-97. ] :

At least in the absence of a claim of personal animosity,

illegal prejudice, or a personal or financial stake in the

outcome,* school board members are entitled to this pre-

sumption of honesty and integrity. Hortonville, supra, 426

USS. at 497; Withrow v. Larkin, 421 U.S. 35, 47 (1975). Mere-

ly by its involvement in the events preceding Barham’s

discharge, the Board did not become so tainted as to lose

this presumption. Hortonville, supra, 426 U.S. at 497; Nor-

beck v. Davenport Community School District, 545 F.2d 63,

69 (8th Cir. 1976), cert. denied, 431 U.S. 917 (1977). As the

Court stated in Hortonville:

Meve familiarity with the facts of a case gained by an

agency in the performance of its statutory role does

not, however, disqualify a decisionmaker. Withrow v.

8The record shows no evidence of this type of actual bias.

*During trial Barham’s counsel questioned the board members about

their knowledge prior to the hearing. This testimony showed that

through correspondence, newspaper articles, and meetings the board

members gained information that substantiated the charges and learn-

ed of Barham’s justifications for his actions. Counsel implied in his

questioning that as a result of his knowledge, the board members

made up their minds before the hearings. The district court, how-

ever, did not base its finding of actual bias on the Board's prior

involvement.

A-11

Larkin, 421 U.S. 35, 47 (1975); FTC v. Cement Insti-

tute, 333 U.S. 683, 700-703 (1948). Nor is a decision-

maker disqualified simply because he has taken a

position, even in public, on a policy issue related to the

dispute, in the absence of a showing that he is not

“capable of judging a particular controversy fairly on

the basis of its own circumstances.” United States v.

Morgan, 313 U.S. 409, 421 (1941); see also FTC v.

Cement Institute, supra, at 701. [Hortonville, supra, 426

US. at 493. ]

The district court’s conclusion that the Board could not

judge the controversy fairly rested solely on the responses

given by board members Vess and Mitchell to the hypo-

thetical questions. The four board members who voted for

termination were asked whether Dr. Barham could have

presented any evidence that would have changed their

minds about voting to dismiss Barham. Vess and Mitchell

answered that they did not think so;'® Chairman Welch

speculated that he might have voted differently with a

“drastic” change in the evidence;"' and Tougaw vaguely

10While Mitchell answered, ‘‘I don’t think so,"’ Vess responded, “I

really don’t think at that stage of the game — this is my personal

opinion — would have changed anything. I sure don’t.”

Q. Now, Mr. Welch, was there anything or evidence that Dr

Barham could have said or done or presented that would

have changed your mind and caused you not to vote for his

dismissal?

A. It’s possible, yes. It would have had to have been rather

drastic, I would assure you, but it was possible.

Q. Well, could you suggest to the jury something that he might

have done that would have caused you not to have voted for

his dismissal?

A. I couldn’t make an accurate statement that he done any one

thing that I wouldn’t have. I don’t know.

A-12

alluded to further consideration if Barham’s attitude has

been more conciliatory.’* The district court found that the

answers of Welch and Tougaw did not demonstrate bias,

but that the answers given by Vess and Mitchell showed

that they decided to fire Barham prior to his hearing. The

court concluded that their irrevocable prejudgment tainted

the termination proceeding seriously enough to constitute

a due process violation. Examining the record as a whole,

we conclude that under the circumstances of this case, the

testimony of board members Vess and Mitchell is insuf-

ficient as a matter of law to demonstrate irrevocable pre-

judgment. See Withrow v. Larkin, supra, 421 U.S. at 48

(discussing FTC v. Cement Institute, 333 U.S. 683, 701

(1948) ).

The hypothetical question required each board member

not only to speculate whether anything could have changed

his mind, but also to imagine what particular evidence

might have altered his decision. The hypothesis contained

no “assumed evidence.” Barham did not change his position

Q. Mr. Tougaw, you heard Mr. Welch, Mr. Vess, and Mr. Mitch-

ell’s answers to the questions concerning whether or not

there is any evidence that Dr. Barham could have presented

on August the 4th, which would have caused them to

change their minds and not vote for his termination.

I ask you was there any evidence that you can think of

that Dr. Barham could have presented that afternoon which

could have caused you to vote differently?

A. There could have been different things. If his attitude had

been different and he had asked us for us — to let us recon-

sider some of the past, some of the things that had happened,

but I don’t recall that ever being asked.

Q. Mr. Tougaw, are you saying that Dr. Barham asked you as

the board or asked you personally to reconsider some of the

allegations that you might not have voted for terminztion if

he had taken a different attitude on this?

A. I would have had a long look and they would have. I would

have really considered it.

A-13

on the charges nor did he present any new evidence in his

defense at the hearing. Under these circumstances, the

mere failure of the two board members to “imagine” evi-

dence that could have changed their minds cannot over-

come the presumption of their honesty and integrity.

In addition, the answers given by board members Vess

and Mitchell are to indefinite to demonstrate bias. Vess

and Mitchell testified that they did not make up their minds

until the August 4th hearing. Both gave equivocal re-

sponses to the hypothetical question. See note 10 supra. In

fact, Vess repeatedly maintained that he was unable to

answer what he considered an unfair question. On cross-

examination by his counsel, Vess indicated that he might

have changed his mind if Barham had produced different

evidence, which is substantially the same testimony given

ad

18

BY MR. LIGHT:

Q. Mr. Vess, Mr. Donovan asked you some hypothetical ques-

tions about the state of your mind at the time of the August

4 hearing.

Let me ask you a hypothetical question about that same

subject. If at that hearing Dr. Barham had come in and

produced evidence that convincingly showed you an entirely

different picture, a satisfactory financial picture for the

district, and had said there at this hearing that he would put

outside teaching commitments and devote full-time to being

a superintendent, and that he would quit his deputy sheriff’s

connection and quit wearing a uniform and a gun, if he

would have shown all of those things, do you think you

might have changed your mind about how you voted?

MR. DONOVAN: Your Honor, at this point, I would

interpose an objection on the grounds that no proper

foundation has been laid to determine a satisfactory financial

condition.

There was no board policy related to a satisfactory

financial condition.

THE COURT: Overruled.

MR. DONOVAN: Thank you, Your Honor.

(Continued on page A-14)

A-14

by the two “unbiased” board members. See notes 11 and 12

supra.

At the most, the record as a whole demonstrates that

the board members tentatively, but not irrevocably, had

formed an opinion concerning Barham’s termination based

on their previous official involvement with Barham. Under

the principles enunciated in Hortonville, supra, and Nor-

beck, supra, the evidence is insufficient to permit a finding

of actual bias or improper judgment in this case.

Accordingly, we direct the district court to enter a

judgment of dismissal on the plaintiff's section 1983 action.

HEANEY, Circuit Judge dissenting.

I respectfully dissent. The district court found:

[T]he plaintiff was deprived of property without due

process because the school board was not sufficiently

impartial. * * * Messers. Vess and Mitchell had their

minds made up bejure the hearing on August 4,

1978; there was no evidence which Dr. Barham could

have presented which could have changed their minds

about terminating his contract. * : °

The portions [of the record] which are determinative

are as follows:

‘(Continued from page A-13)

BY MR. LIGHT:

Q. Might that have changed your mind or the way you voted?

A. I will say this. We would have talked about it a long time in

harmony. I didn’t have no hard feelings toward anybody.

I personally felt that we had come to a point of no re-

turn. If Dr. Barham had approached me with that idea, we

would have had a long talk. I promise you that.

A-15

Q. Now, let me ask you, Mr. Mitchell, at that hearing,

was there any evidence which Dr. Barham could

have presented which have [sic] made you render a

different decision than the one which you ultimately

did at the conclusion of that meeting?

A. [Mr. Mitchell] I don’t think so.

x * & *

Q. * * * I want you to think for a moment and tell me

if there could have been any circumstances under

which you would have voted to retain Dr. Barham.

Tell the jury what could have been —

MR. LIGHT: Objection, Your Honor. This is the

third time and the witness has answered twice that he

can’t answer this hypothetical question.

THE COURT: Overruled. The witness has refused

to answer the question. The Court thinks it is a proper

question. Go ahead and answer, Mr. Vess.

A. [Mr. Vess] I really don’t think at this stage of the

* game — this is my personal opinion — would have

changed anything. I sure don't.

If two of the four participating members of the

board would not under any circumstances have changed

their minds regardless of the evidence presented by

Dr. Barham at the hearing, the hearing was useless

from Dr. Barham’s perspective.

Barham v. Welch, 478 F. Supp. 1246, 1248-1249 (E.D. Ark.

1979). (Emphasis added)

The majority ignores these findings and substitutes

itself as the fact finder. On the basis of its conclusion that

A-16

neither Mitchell nor Vess made up his mind until the

August 4th meeting, it holds that no due process violation

occurred. In my view, we are bound by the district court’s

findings unless we are prepared to state that they are

clearly erroneous, and this I cannot do.

It is clear from Hortonville Joint School Dist. No. 1 v.

Hortonville Educ. Ass’n, 426 U.S. 482 (1976), that “mere

familiarity” with the facts of a case, gained by a member of

the Board of Education in the performance of his or her

statutory role, does not disqualify that Board member from

deciding the case; but that is not the situation here. The

district court found that two Board members had rendered

themselves incapable of judging the controversy by taking

the position that they would not change their mind on the

question of whether Barham should be dismissed regardless

of the evidence presented by Barham.

Hortonville also establishes the principle that a de-

cisionmaker is not disqualified simply because he has taken

a position on a policy issue related to the dispute; but again,

that is not the situation here. In Hortonville, the Board of

Education had no factual issues to decide. Here, there were

a number of such issues to be determined and two members

of the Board closed their minds on the factual disputes

before Barham had a chance to give his version of the

facts. In my view, the district court correctly decided the

issues of fact and law presented to it and its decision should

be affirmed.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS,

EIGHTH CIRCUIT.

A-17

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF ARKANSAS

WESTERN DIVISION

es tae!) Plaintiff

vs. NO. LR-C-78-267

EWELL WELCH, ETAL .............0000005 Defendants

OPINION AND ORDER

This is an action by Dr. Jim Barham, former Superin-

tendent of the Havana School District No. 86 of Yell County,

Arkansas, for reinstatement, back pay, and damages. The

claims principally relied on were that Dr. Barham’s dis-

charge was based on his exercise of First Amendment

rights, that the procedures leading to his discharge were

defective under the Due Process Clause of the Fourteenth

Amendment, and that his discharge was a breach of his

employment contract.

The case was tried to a jury for five days. During the

trial the Court dismissed the First Amendment claim, hold-

ing as a matter of law that the speech in question was

not protected. The pendent state-law claim for breach of

contract was abandoned. The Court held that the manner

of discharging the plaintiff did, as a matter of law, deprive

him of property (the remainder of his contract’s one-year

term) without due process of law. Reinstatement was de-

nied because plaintiff's employment contract had expired

by the time of trial. The Court held that plaintiff was

entitled to back pay as an equitable incident of the rein-

statement he would have received had the case been

determined earlier.

A-18

The claims for additional compensatory damages (for

injury to reputation) and for punitive damages were sub-

mitted to the jury under instructions posing the issue of

defendants’ good faith. The jury was unable to agree, and

a mistrial was declared. The Court directed counsel to make

submissions on the issue of back pay and related relief. The

case is to be re-set for trial some time in 1980.

Pending before the Court are the plaintiff’s request for

an award of back pay, costs, and attorneys’ fees, and the

defendants’ motion for summary judgment.

During trial, the Court ruled that the plaintiff was

deprived of property without due process because the

school board was not sufficiently impartial. More specifi-

cally, the Court held that Messrs. Vess and Mitchell had

their minds made up before the hearing on August 4, 1978;

there was no evidence which Dr. Barham could have pre-

sented which could have changed their minds about termi-

nating his contract. In their motion for summary judg-

ment, the defendants ask the Court to re-examine that

ruling.

The Court has carefully reviewed the arguments of

the parties on this question and has studied the portions of

the trial transcript submitted by the defendants. The por-

tions which are determinative are as follows:

Q. Now, let me ask you, Mr. Mitchell, .at that hearing,

was there any evidence which Dr. Barham could

have presented which would have made you render

a different decision than the one which you ultimate-

ly did at the conclusion of that meeting?

A. I don’t think so. (T. 78)

x * *

A-19

Q. And our contention is that what was done to Dr.

Barham was not fair, and your testimony so far is

that you made up your mind during that hearing?

A. [Mr. Vess] That’s right.

Q. So my question, while it appears unfair, is very

important. I want you to think for a moment and

tell me if there could have been any circumstances

under which you would have voted to retain Dr.

Barham. Tell the jury what could have been —

MR. LIGHT: Objection, Your Honor. This is the

third time and the witress has answered twice that he

can’t answer this hypothetical question.

THE COURT: Overruled. The witness has refused

to answer the question. The Court thinks it is a proper

question. Go ahead and answer, Mr. Vess.

A. I really don’t think at that stage of the game — this

is my personal opinion — would have changed any-

thing. I sure don’t.

If two of the four participating members of the board

would not under any circumstances have changed their

minds regardless of the evidence presented by Dr. Barham

at the hearing, the hearing was useless from Dr. Barham’s

perspective. Although complete impartiality is not required,

fundamental fairness necessitates that the members of the

tribunal have no actual basis. “A fair trial in a fair tribunal

is a basic requirement of due process. Fairness of course

requires an absence of actual bias in the trial of cases.”

In Re Murchison, 349 U.S. 133, 136 (1954). Based upon their

testimony, the Court must conclude that Messrs. Vess and

Mitchell were not “capable of judging [this] particular

A-20

controversy fairly on the basis of its own circumstances.”

Hortonville Joint School Dist. No. 1 v. Hortonville Educa-

tion Ass’n, 426 U.S. 482, 493 (1976), quoting from United

States v. Morgan, 313 U.S. 409, 421 (1941). The Court has

considered the other arguments raised by the defendants

on this issue, including the argument that the claim of im-

partiality was waived, but does not find them persuasive.

The holding of the Court is therefore re-affirmed.

The defendants argue that the complaint should be

dismissed as to Messrs. Welch and Tougaw in any event

since there was no evidence of bias on their part. The Court

cannot agree. They are proper parties defendant in their

official capacities as members of the school board. In addi-

tion, the jury might find them liable for damages on the

basis of bad faith, when this case is re-tried. There was

sufficient evidence to go to the jury on that issue at the

conclusion of the first trial.

The plaintiff has submitted an affidavit claiming

$14,906.84 in back pay. A portion of this claim is designated

“remaining travel expenses per contract,” and is in the

amount of $1,070.00. The defendants challenge this portion

of the claim. The plaintiff’s response is that $100.00 a month

was paid by the school district regardless of whether any

travel expenses were actually incurred; the plaintiff

characterizes the monthly payment as “simply an emolu-

ment of my position as Superintendent.” This item will be

allowed. The defendants also argue that the plaintifi’s

income as a lay minister should be deducted. The plaintiff

states in an affidavit that he was paid as a lay minister even

before he was fired, and the Court accepts this statement.

The plaintiff's income as a minister wiil not be deducted.

A-21

It follows that the plaintiff is entitled to the total amount

of back pay claimed.

With regard to the claim for attorneys’ fees, the defen-

dants argue that an award would be premature if made at

this time. The Court cannot agree. The plaintiff is the pre-

vailing party at least with regard to the due process issue,

and a computation of attorneys’ fees can easily be made for

the time spent thus far. The minimum award generally

should be no less than the number of hours claimed multi-

plied by the attorney’s hourly rate. Zoll v. Eastern Allama-

kee Community School District, 588 F.2d 246, 252 (8th Cir.

1978). Once this base amount is computed, it may be ad-

justed by the application of the guidelines set out in

Johnson v. Georgia Highway Express, Inc., 488 F.2d 714

(5th Cir. 1974), which were expressly approved by the

Court of Appeals in Allen v. Amalgamated Transit Union

Local 788, 554 F.2d 876, 884 (8th Cir.), cert. denied, 434 U.S.

891 (1977).

Here, the plaintiff's attorneys have submitted an

itemization of 271.3 hours expended in the prosecution of

this suit. The Court has examined the hours claimed and

finds that they are reasonable. The defendants make no

argument to the contrary. The Court has considered the

applicability of the Johnson factors, and has specific com-

ments with regard to two of them. First, the legal questions

involved in this litigation were somewhat novel and diffi-

cult. Second, the results obtained were significant, but the

plaintiff has yet to prevail on all the issues in the litigation.

As a matter of fact, he has failed oh some issues, e.g., the

claim that he was discharged because of the exercise of

First Amendment rights. Although this is a factor to con-

A-22

sider, all claims which were pressed on plaintiff's behalf

were reasonably calculated to advance his interests; attor-

neys’ fees for time spent on such claims should not be

denied solely because they did not provide the precise basis

for the relief granted. Brown v. Bathke, 588 F.2d 634, 637

(8th Cir. 1979). All things considered, including the fact

that the plaintiff does not make a claim for an enhanced

fee, the Court concludes that a fee should be awarded in

the amount claimed. It is based on a reasonable rate of

$35.00 an hour out of court and $50.00 in court. A fee of

$9,495.50 will therefore be awarded.

The plaintiff also claims $913.61 in expenses and $634.-

93 in costs. The defendants challenge the fees and mileage

claimed for three witnesses who did not testify. The plain-

tiffs response is that the three witnesses were considered

necessary at the time they were subpoenaed, and became

unnecessary only as proof developed at trial. The fees and

mileage for these persons will be allowed, and the plaintiff

is therefore entitled to the full amount of expenses and

costs claimed. Finally, the defendants ask that the Court

make the requisite findings to enable review by the Court

of Appeals under 28 U.S.C. §1292(b). This request is grant-

ed. The Court is of the opinion that the portion of this order

which re-affirms the finding that plaintiff's due process

rights were violated involves a controlling question of law

as to which there is substantial ground for difference of

opinion. An immediate appeal from this order may material-

ly advance the ultimate termination of this litigation. If

this order is in error, there is no need for a second jury trial.

In summary, the Court’s due process holding is re-

affirmed, and the defendants’ motion for summary judg-

A-23

ment is denied. The plaintiff is entitled to an award of

$14,906.84 in back pay, $9,495.50 in attorneys’ fees, $913.61

in expenses, and $634.93 in costs.

IT IS SO ORDERED this 7th day of November, 1979.

/s/ Richard S. Arnold,

United States District Judge.

This document entered on docket sheet in compliance

with Rule 58 and/or 79(a) FRCP on 11-8-79 by B. Easter-

ling.