http://www.leagle.com/xmlResult.aspx?xmldoc=19871594655FSupp939_11449.xml&docbase=CSLWAR2-1986-2006 SMITH v. BOARD OF SCHOOL COM'RS OF MOBILE COUNTY 655 F.Supp. 939 (1987) Douglas T. SMITH, et al., Plaintiffs, v. BOARD OF SCHOOL COMMISSIONERS OF MOBILE COUNTY, et al., Defendants. Douglas T. SMITH, et al., Plaintiffs, v. George C. WALLACE, Governor of Alabama, et al., Defendants. Civ. A. Nos. 82-0544-BH, 82-0792-BH. United States District Court, S.D. Alabama, S.D. March 4, 1987. As Corrected March 9 and March 19, 1987. [ 655 F.Supp. 940 ] [ 655 F.Supp. 941 ] [ 655 F.Supp. 942 ] FINDINGS OF FACT AND CONCLUSIONS OF LAW HAND, Chief Judge. History of Case For one to have a reasonable understanding of the present posture of this lawsuit, some attention should be given to its history. Original Case On May 28, 1982 Ishmael Jaffree, individually, and as father and next friend of his three children, brought an action against the Board of School Commissioners of Mobile County, its Superintendent, various principals and teachers seeking a declaratory judgment and restraining order against the defendants from maintaining or allowing the maintenance of regular religious prayer services or other forms of religious observances in the Mobile public schools. Jurisdiction was invoked pursuant to Title 28, § 1343(3) and (4) and §§ 2201 and 2202. The cause of action, it was alleged, arose under the First and Fourteenth Amendments to the United States Constitution and pursuant to Title 42, §§ 1983 and 1988. In June the action was amended in order to claim class action privileges. The original complaint was answered on June 25, 1982. On June 30, 1982 the plaintiffs filed their second amended complaint "intending to augment the original, not supplanting it," by adding as defendants the Governor of the State of Alabama, the Attorney General, the individual members of the State Board of Education, and the Superintendent of the State Board of Education. The stated purpose of this amendment was to attack certain Alabama Code sections and to enjoin implementation of Senate Bills 61 and 8, adopted by the legislature in 1982, which dealt with prayer in the classroom. The plaintiffs contended that the practices mandated by these enactments violated both the Establishment Clause and the Free Exercise Clause of Article I, § 3 of the Constitution of Alabama and the First Amendment to the United States Constitution. 1 On July 30, 1982, a motion to intervene was filed by Douglas T. Smith and others alleging that their free exercise of religion would be abridged or terminated by a decision of this Court granting the plaintiffs' motion for injunctive relief. Intervenors contended that if plaintiffs' relief was granted, it would violate their rights guaranteed by the First Amendment of the United States Constitution, by the provisions of Title 42, United States Code, §§ 1983 and 1988, and by the Alabama Constitution, the preamble and Articles 1, §§ 1 and 3. The cause was subsequently bifurcated, separating the Governor and the State School System from the original action. 2 On September 30, 1982, the defendant-intervenors, Smith and others, filed a pleading entitled "Request for Alternate Relief" in which defendant-intervenors requested that if the plaintiffs obtained their requested injunction, that the injunction be expanded to include the religions of secularism, humanism, evolution, materialism, agnosticism, atheism and others. The defendant-intervenors requested that they be permitted to demonstrate that the aforementioned constitute religious activity which the Mobile public schools and the state School Board foster. [ 655 F.Supp. 943 ] Again, on October 22, 1982, the defendant-intervenors, Smith and others, moved to allow additional names to be added as defendant-intervenors, bringing the total to better than 600. The matter was heard in November of 1982. It should be noted that the only parties objecting to the intervention were the plaintiffs. The basis of the objection by Jaffree was that plaintiffs were capable of representing a class which would include the defendant- intervenors. However, the defendant-intervenors pointed out graphically the differences that would preclude this. In any event, no class was established. On January 14, 1983, the Court entered its opinion. Jaffree v. Board of School Commissioners of Mobile County, et al., 554 F.Supp. 1104 (1983). As expressed in that order, the Court held that it had no jurisdiction to hear the complaint of the plaintiffs inasmuch as the Constitution had not been amended to incorporate the first amendment to the states. Therefore, there was no jurisdictional basis for any action by this Court. This being so, the Court did not reach the merits of the case. The Court stated that the entire matter was one cognizable under the state constitution or laws and should be litigated in the state courts, if at all. In the same opinion the Court noted that in the event the appellate courts disagreed with this conclusion, the Court reserved the right to again look at the record and consider the positions raised by the defendants and the defendant-intervenors. 3 On appeal, the Eleventh Circuit Court of Appeals reviewed the historical background surrounding the Establishment Clause of our Constitution and concluded that, relying upon the law of stare decisis, the Supreme Court has held that the fourteenth amendment incorporated the proscriptions of the first amendment to the states. This being so, the district and circuit courts are bound to adhere to these controlling decisions, concluding that if the Supreme Court errs, no other court may correct that error. It further went on to observe that judicial "precedence serves as the foundation of our federal judicial system. Adherence to it results in stability and predictability." For these and other stated reasons the Eleventh Circuit Court of Appeals reversed and remanded this case to this district court. Jaffree v. Wallace, 705 F.2d 1526 (11th Cir.1983). On further appeal to the Supreme Court, Wallace v. Jaffree, 472 U.S. 38, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985), it was observed by that court that trial of the various issues became unnecessary when the district court held that the establishment clause does not apply to the states. (105 S.Ct. at p. 2506). However, the Supreme Court went on to affirm the application of the first amendment proscriptions to the actions of a state. In so doing, it too, relied on the doctrine of stare decisis. 4 Remand It was and is the opinion of this Court that upon the affirmance by the Supreme Court of the Eleventh Circuit opinion, the mandate of the Eleventh Circuit became the instruction to this Court. The cause was remanded, and upon remand this Court was directed, among other things, to issue and enforce an order enjoining the statutes and activities held by the Court to be unconstitutional. Further Proceedings On remand, having reserved jurisdiction for further rulings not inconsistent with opinions already reached, this Court, by order of August 15, 1985, also reconsolidated the cases and realigned the defendant-intervenors, Smith and others, as parties plaintiff in light of the relief they had requested. Adjudication of these claims is not inconsistent with the mandate. No one [ 655 F.Supp. 944 ] privy to the litigation had had the opportunity to challenge the request for relief posited by them. In the August 15, 1985 order, the Court gave all parties the opportunity to file memoranda in support of any position that they wished to take. It also extended to the original parties plaintiff, Jaffree, et al., the right to withdraw if they so desired. A motion to this effect was filed and granted on September 11, 1985. On September 16, 1985, the original defendant-intervenors, now plaintiffs, in compliance with the Court's order, filed a comprehensive brief stating their position. On October 2, 1985, the state defendants moved for a scheduling conference. Upon the scheduling of such a conference, the present defendant-intervenors filed a motion to intervene, which was granted. These new intervenors consisted of several parents and teachers who expressed opposition to the position advanced by the realigned parties plaintiff. Subsequently, the Governor and the Mobile County School Board defendants filed consent judgments confessing the plaintiffs' claim. Jurisdiction The defendant-intervenors did not raise jurisdictional questions when they petitioned for leave to intervene. Indeed, they nor the state raised this issue until the trial, when the pretrial instrument was filed. It would appear that the main thrust of the contention that this Court lacks jurisdiction to realign the parties and to proceed with resolution of the reserved issues is basically that such action exceeds the mandate. It is the contention of the defendants that a final order had been entered by this Court which ended that litigation; therefore, the mandate did not contemplate further proceedings other than to issue appropriate injunctions. 5 In reversing, the appellate courts left the issue of this Court's retention of jurisdiction undisturbed. In its mandate, the court of appeals specifically stated "We reverse the district court's dismissal of these actions. ..." It went on to require on remand that this Court issue and enforce an order enjoining the statutes and activities held by the opinion to be unconstitutional. Jaffree v. Wallace, 705 F.2d 1526, 1537. It is and was the opinion of this Court that the parties had expended considerable time, effort, energy