Spangler ex rel. Spangler v. Pasadena City Board of Education

537 F.2d 1031

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 25, 1976
• Docket: Nos. 74-2530, 75-1714
• Status: Published

Opinions

OPINION

Before CHAMBERS and WALLACE, Circuit Judges, and JAMESON, District Judge.

CHAMBERS, Circuit Judge.

This is another chapter in Pasadena, California, school desegregation ordered by the District Court, Spangler v. Pasadena City Board of Education, 519 F.2d 430 (9th Cir. 1975), certiorari, 423 U.S. 945, 96 S.Ct. 355, 46 L.Ed.2d 276, 44 U.S.L.W. 3271 (1976) granted. The reported case gives the background.

Part of the original plan provided rules for selecting school administrators to give representation to minorities.

On a motion to adjudge the school board in civil contempt for not complying with the Court’s decree on hiring administrators the board contended it had only appointed “acting” administrators. “Acting” people did not have the special racial qualifications of the original decree.

After the Court ruled “acting” administrators had to qualify under the plan, the board accepted the ruling, but it still objects to the contempt holding.

We hold that the civil contempt is now moot. (The daily fine was stayed pending appeal.) There seems so little likelihood that the problem will reoccur that we hold there is no controversy, which of course is the threshold of any federal jurisdiction. Thus we do not get to subject matter jurisdiction.

The contempt proceeding was brought by a father not a party to the original proceeding. As a part of its holding of contempt, the District Court fashioned a “review board” to oversee future hiring of administrators. This would only serve to perpetuate control of the schools by the Court and take the power out of the school board where it belongs. Maybe it might well have been put in the original decree, limited as to time.

We find it error to create the review board without advance notice to the school board that such was under contemplation. If the board of review has been created, it is time for it to go home.

Case 75-1714 involves attorney’s fees denied Charles Johnson, a lawyer who appeared for himself. The denial is affirmed. If the fees were allowable, there was no abuse of discretion. And fees might not be allowable at all under Alyeska Pipeline Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975).

REMANDED FOR PROCEEDINGS CONSISTENT HEREWITH.