Blackston v. State 93-6573

BLACKSTON V. ALABAMA
30 F.3d 117, (11th Cir. 1994)

Appeal No. 93-6573

STATEMENT OF CASE AND FACTS

Petitioners Blackston and Barber challenge the decision of the District Court of the dismissal of their pro se complaint brought under 42 U.S.C. § 1983. There is insufficient evidence to support a verdict or there is a lack of substantial evidence in the record as a whole to support the factual findings of the trial court.

Facts, unfavorable to petitioners Blackston and Barber are non-existent. However, attorneys for the defendants have made considerable efforts to slander petitioners with invidious and scandalous statements. (R1:20:3) A Motion to Strike the statements was filed on May 19, 1993. (R1:25) Petitioners Blackston and Barber are unfairly portrayed with disrespect and impiety and believes the view expounded by the defendants acted as a determent to the petitioners.

The District Court refers to the petitioners as non-custodial fathers obligated to pay child support and proceeding pro se, and attempting to disguise their displeasure with the Committee's operation in the form of first amendment, equal protection, and due process violations. (R1:26:4) Considering the total distortion of the available, albeit incomplete facts, the Appeals Court may have difficulty distinguishing fact from fiction; it is necessary to clarify the above statements.

Petitioners Blackston and Barber are not criminals or second class citizens. (R1:3 & R1:12) Petitioners are leaders in their respective churches and communities, with a strong sense of civic duty and pride. Both are Vietnam Veterans, having served their country with honor and distinction. It was only after an untimely and unfortunate divorce that the petitioners realized that fathers in Alabama are considered non-essential and expendable. In today's society, men in general and fathers in particular, must sacrifice themselves to save women in general and mothers in particular. Fathers do not have any say and absolutely no right to a meaningful relationship with their children. Under oppressive conditions petitioners seek change in the hearts and minds of trial judges.

Change comes from petitioners efforts to advocate for themselves and others in the domestic relations courts of Alabama. If advocating for ourselves, utilizing First Amendments rights is not the American way, then this is not the United States of America.

Richard Dorrough's action in the Alabama Supreme Court's Advisory Committee on Child Support Guidelines and Enforcement abridges the freedoms of the First Amendment, protected against state action by the Fourteenth. More specifically, petitioners Blackston and Barber claims that Richard Dorrough's actions infringes the right of the members of Alabama's Chapter of the National Congress of Men and Children to associate and obtain information for the purpose of assisting persons who seek legal redress for infringements of their constitutionally guaranteed and other rights. (R1:1) In addition, petitioners Blackston and Barber assimilate information of a political nature to distribute to their members. The information is used to make intelligent and informed decisions about various candidates for public office, especially those of a judicial capacity.

The Alabama Court of Civil Appeals was recently expanded from three to five members - The Birmingham News, Friday, August 6, 1993. Judge Ed Robertson is expected to seek re-election to Place 1 and Jefferson Circuit Judge Roger Monroe is said to be eyeing Place 2.

The terms of Judges Sharon Yates and Charles Thigpen are not up, so that leaves Place 3 for grabs between Walter Turner, Alabama Attorney General James Evans' chief assistant and head of his civil division, and perhaps others, including Montgomery Circuit Judge Richard Dorrough. Richard Dorrough is the defendant in this case that refers to non-custodial fathers as "nothing more than flies on the wall." (R1:3:20 & R1:12:7) Candidates that exhibit such extreme bias and prejudices have no place on the appeals courts of Alabama. Certainly it is easy to see petitioners Blackston and Barber interest in the political issues surrounding Dorrough as a potential candidate for appeals court judge. For purposes of this appeal, Judge Richard Dorrough was not acting in his judicial capacity when he violated petitioner Blackston and Barber freedom of speech; he was acting as Chairman of The Alabama Supreme Court's Advisory Committee on Child Support Guidelines and Enforcement.

The context of petitioners Blackston and Barber objectives is the means for achieving the lawful objectives of equality of treatment by all government, federal, state and local, for themselves and the members of petitioners respective support groups in this country. It is thus a form of political expression.

Petitioners Blackston and Barber, serve on the board of directors for the Birmingham chapter of the National Congress of Men and Children, which advocates fathers' and their children rights. (R1:3:16 & R1:12:5) They are deeply interested and involved with any meeting or conference related to child custody, child support, visitation issues and false accusations of child abuse. James R. Blackston is also the local director in Jasper Alabama of a group of fathers, wives, and grandparents advocating for our children in Alabama's Court system.

Petitioners Blackston and Barber learned about the Alabama Supreme Courts Advisory Committee on Child Support Guidelines and Enforcement on or about March 10, 1993. (R1:3:16) Petitioners were given the opportunity to speak at the committee meeting on March 15, 1993, but because of a snow storm that closed all roads in Alabama, they were unable to make the meeting on March 15, 1993. However, Barber and Blackston traveled to Montgomery, Alabama the following day, March 16, 1993 in anticipation of learning about the committee and presenting evidence to the committee.

While sitting at the back of the room about 6 feet from the door petitioners observed the performance and behavior of the committee. Petitioners were alarmed and terrified at the blatant disregard for human rights exhibited by the committee and knew there was but one option - to make as complete a record of the meeting as possible under the circumstances. (R1:12:6) Petitioners felt the members of their respective support groups needed to know the content and methods of arriving at the information, under consideration by the committee, in a format as accurate as possible. (R1:12:6)

Bradley Barber, Frank Teague and James R. Blackston went to a local department store and purchased a small battery powered tape recorder and numerous blank tapes. It was the understanding that all the information contained on the tapes would be freely provided to anyone desiring the information. (R1:12:6)

After lunch the committee reconvened and petitioners were prepared to tape the remainder of the meeting. Much to their dismay and total surprise, Judge Richard Dorrough, Chairman of the Committee, characterized by the forcefulness of his expression, vehemently objected to any recording of the meeting. (R1:3:18,19 & R1:12:7)

Chairman Richard Dorrough stated that petitioners could not record the meeting and that there had been no provision for a record of the meeting. (R1:3:19) Later during this session Judge Richard Dorrough became furious with Bradley Barber and James R. Blackston stating, "You people are going to have to keep your comments to yourself. You are no more than flies on the wall here." (R1:3:20)

Chairman, Richard Dorrough refused to inform members of the National Council for Children' Rights - another non-custodial parents and their children advocate group in Alabama, about the committee meetings. (R1:24)

Chairman Richard Dorrough and the committee refused to notify the general public about the meetings and proceedings of the committee, including individuals and groups that specifically requested such notice. (R1:24)

Robert E. Doyle, 3316 Shallowford Circle, Vestavia Hills, Alabama, upon submission of his affidavit, states, "I was not notified of this meeting. In early 1991, I corresponded and spoke with Richard Dorrough, being aware of his appointment to the position of Chairman of the above mentioned Supreme Court Advisory Committee. I requested that Dorrough notify me of meetings, and allow my input into the findings of the committee. (R1:24:1) The reason for this action is that at the time I was Chairman of National Council for Children's Rights, Alabama Chapter and both the organization and I personally were deeply concerned with the problems in this area in Alabama." (R1:24:1)

Bradley Barber and James R. Blackston were treated with disrespect and derision and threatened during the meeting. The actions of the committee chairman Richard Dorrough caused harm and denied petitioners an opportunity to report developments of a political nature in a public meeting to their support groups. (R1:24:3) The committee's action created a disadvantage to non-custodial parents in Alabama and denied them any voice into a very hotly disputed political issue. The harms surrounding the issues under consideration are promulgated by personal prejudices and public excitement. (R1:3, 9, 10, 12, 13, 14, 15, 16, 24)

The Birmingham News, on Friday, April 16, 1993, reported that the committee was holding "working sessions" meetings. It was this so-called "working session" that the affiant' were barred from participation. Again, The Birmingham News, on Tuesday, May 18, 1993, reported that "Lawyers for Dorrough and other defendants said the second day, (March 16, 1993), of the panel's meeting was not a public hearing . . ." The committee held another secret meeting on March 17, 1993, that the public was not invited to attend.

Attorneys for the defendants persistently demands that the meeting of the Alabama Supreme Court Advisory Committee on Child Support and Enforcement was "not" a public meeting. (R1:20:3) Alabama law requires all meetings shall be open to the public. Code of Alabama, 1975, § 13A-14-2. The Committee was holding secret meetings and conducting business and ratifying decisions already made in secret that adversely affects non-custodial parents of Alabama.

All defendants admitted to wrong doing and published that fact in local newspapers. Only our Heavenly Father knows, at this point what justification and exaggerations the defendants would proclaim if petitioners Blackston and Barber were allowed to investigate further. The underlying consequence of defendants actions, wherein secret meetings were conducted by The Alabama Supreme Court Advisory Committee on Child Support Guidelines and Enforcement, is to deny citizens of Alabama, First Amendment rights. These include a right to participate in discussions of political candidates, structures and forms of government, the manner in which government is operated and all matters relating to political processes.

SUMMARY OF THE ARGUMENT

At the core of the First Amendment are certain basic conceptions about the manner in which political discussion in a representative democracy should proceed. The Supreme Court noted in Mills v. Alabama, 384 U.S. 214, 218-19 (1966): "Whatever differ-ences may exist about interpretations of the First Amendment, there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs. This includes discussions of candidates, structures and forms of government, the manner in which government is operated or should be operated, and all matters relating to political processes."

Richard Dorrough, Chairman of the Alabama Supreme Courts Advisory Committee on Child Support Guidelines and Enforcement destroyed the petitioners efforts to obtain information of a public and political nature. (R1:1:3-9) One of the purposes of the National Congress of Men and Children is to obtain information of a political nature to distribute to the membership. The information is used in discussions of political candidates for public office.

The above committee is a structure and form of government charged with the reviewing and updating of the Support Guidelines. The right to know the manner in which government is operated or should be operated, and all such matters relating to political processes is a right and privilege of the petitioners, Blackston and Barber.

Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association, as the Supreme Court has more than once recognized by remarking upon the close nexus between the freedoms of speech and assembly. De Jonge v. Oregon, 299 U.S. 353, 364; Thomas v. Collins, 323 U.S. 516, 530. It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the "liberty" assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech. Cites omitted; N.A.A.C.P. v. Alabama, 357 U.S. 449, 460. Child Support is a very hotly contested issue in Alabama's courts, (DEADBEAT DADS). Mothers' use child support and false abuse accusations against the fathers to obtain an unfair advantage over fathers in court. Why would Dorrough appoint a custodial mother, that is owed a large sum in back child support, to represent the interest of fathers? (R1:1:8 & R1:3:17) Allegorically and symbolically stomp the father in the ground and pour salt in his wounds!

The Supreme Court's analysis of the legislative history of the Civil Rights Act of 1871 compels the conclusion that Congress did intend municipalities and other local government units to be included among those persons to who § 1983 applies. Local governing bodies, therefore, can be sued directly under § 1983 for monetary, declaratory, or injunctive relief where, as here, the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers. Moreover, although the touchstone of the § 1983 action against a government body is an allegation that official policy is responsible for a deprivation of rights protected by the Constitution, local governments, like every other § 1983 "person," by the very terms of the statute, may be sued for constitutional deprivations visited pursuant to governmental "custom" even though such a custom has not received formal approval through the body's official decision making channels. As Mr. Justice Harlan, writing for the Court, said in Adickes v. S.H. Kress & Co., 398 U.S. 144, 167-168 (1970): "Congress included customs and usages [in § 1983] because of the persistent and widespread discriminatory practices of state officials . . . Although not authorized by written law, such practices of state officials could well be so permanent and well settled as to constitute a 'custom or usage' with the force of law."

Dorrough established a "policy", under color of state law, which reflects the State of Alabama's custom and policies, when he refused to allow petitioners Blackston and Barber their right to record the meeting of March 16, 1993. (R1:1:9) The policy violated the petitioners Blackston and Barber First Amendment rights to Freedom of Speech.

In this case, the court initially is guided by § 13A-14- 2(a) of the Code of Alabama, 1975, which provides that no executive or secret session shall be held by any boards, commissions or courts of Alabama.

Code of Alabama, 1975 § 11-43-49 through 11-43-52 also provides rules of procedure for time and place of public meetings and a record of the proceedings. Chairman Richard Dorrough did not provide for a record of any meetings of the Alabama Supreme Court's Advisory Committee on Child Support Guidelines and Enforcement. The committee violated the substantive rights of the petitioners Blackston and Barber by failing to hold open meetings and provide for a record of all proceedings. Adding insult to injury Dorrough maliciously and intentionally refused to allow petitioners their right to record the meeting. It is sufficient to conclude that the committee was enacting laws in secret that adversely affected citizens of Alabama's right to know the affairs of their government; a clear First Amendment violation.

Congress enacted 42 U.S.C. § 1983 "'to enforce provisions of the Fourteenth Amendment against those who carry a badge of authority of a State and represent it in some capacity, whether they act in accordance with their authority or misuse it.'"

Scheuer v. Rhodes, 416 U.S. 232, 243 (1974). Because of that intent, the Supreme Court has held that in § 1983 actions the statutory requirement of action "under color of" state law is just as broad as the Fourteenth Amendment's "state action" requirement. Lugar v. Edmondson Oil Co., 457 U.S. 922, 929 (1982). Hafer v. Melo, 498 U.S. 1118 (1991).

Moreover, there can be no doubt that § 1 of the Civil Rights Act was intended to provide a remedy, to be broadly construed, against all forms of official violation of federally protected rights. Monell v. New York City Dept. of Social Services, 436 U.S. 658, 699-700.

It cannot be said that petitioners Blackston and Barber were given reasonable opportunity to present all material made pertinent to defendant's 12(b)(6) motion. Undisputed facts are clear that Chairman Dorrough violated Alabama's open meeting laws and failed to provide a record of the committee's meetings as required by Alabama law. (R1:24 & R1:3:19) When petitioners Blackston and Barber confronted Chairman Dorrough with these facts, Dorrough added insult to injury by viciously and maliciously attacking the petitioners verbally and denying their First Amendment right to record the meeting for reasons already introduced. Because of Chairman Dorrough and the remaining committee member's actions, petitioners are unable to report to their respective support groups, the proceedings of The Alabama Supreme Court's Advisory Committee on Child Support Guidelines and Enforcement. (R1:24:3) The Alabama citizens right to know the manner in which government is operated and all such matters relating to the election of judicial officials is breached. Mills v. Alabama, 384 U.S. 214, 218-19 (1966): Brown v. Hartlage, 456 U.S. 45, 53 (1982).

Obviously, Rule 56 does not require the non-moving party to depose her own witnesses. Rule 56(e) permits a proper summary judgment motion to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleading themselves (emphasis added). Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, (1986). Rule 56(c) requires that judgement cannot be rendered until depositions, answers to interrogatories, and request for admissions are complete and on file. The record is void of these types of evidence. Due to the secretive and concealed operations of the committee, much of the evidence is unknown and petitioners did not have an opportunity to obtain evidence from defendants Hornsby, Gilmore or Cleveland. The case was dismissed prematurely at an unfair disadvantage to petitioners. (R1:26)

State officials sued in their individual capacities are "persons" subject to suits for damages under 42 U.S.C. 1983; Eleventh Amendment does not bar such suits in federal court, nor are state officers absolutely immune from personal liability under § 1983 solely by virtue of the "official" nature of their acts. Hafer v. Melo, 498 U.S. 1118 (1991).

ARGUMENT

I. FIRST AMENDMENT VIOLATION - FREEDOM OF SPEECH

At the core of the First Amendment are certain basic conceptions about the manner in which political discussion in a representative democracy should proceed. As the Supreme Court noted in Mills v. Alabama, 384 U.S. 214, 218-19 (1966): "Whatever differences may exist about interpretations of the First Amendment, there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs. This of course includes discussions of candidates, structures and forms of government, the manner in which government is operated or should be operated, and all such matters relating to political processes."

Non-custodial fathers of Alabama, no less than any other person, has a First Amendment right to engage in the discussion of public issues. Non-custodial fathers have first amendment right to vigorously and tirelessly advocate for themselves and their children. Indeed, freedom of speech and association demands that fathers of Alabama enjoy free discussion of the state governmental affairs associated with their children. Child custody and support is a very hotly contested issue in Alabama courts. (R1:3,9,10,12,13,14,15,16,24) It is of particular importance that the members of petitioners Blackston and Barber respective support groups have the unfettered opportunity to make their views known so that they may intelligently evaluate candidates' personal qualities for public office and their qualities and positions on vital public issues before choosing among them on election day. Mr. Justice Brandeis observed that in our country 'public discussion is a political duty,' Whitney v. California, 274 U.S. 357, 375 (1927). Alabama's position on children of divorce effectively eliminates the father from his children lives except for financial child support, and actually discourages the fathers involvement in the lives of his children. See affidavit of James Blackston. (R1:12)

Groups that find themselves unable to achieve their objectives through the ballot frequently turn to the courts. Under the present conditions of personal prejudices and public excitement against fathers, prevalent in the Child Support arena in Alabama today, litigation may be the sole practicable avenue open to litigants to petition for redress of their grievances.

It is unnecessary, to find constitutional protection for the rather cooperative, organizational activity disclosed by the record, whereby petitioners Blackston and Barber seek through lawful means to achieve legitimate political ends, subsume such activity under a narrow, literal conception of freedom of speech, petition or assembly. (R1:3:16 & R1:12:5) For there is no longer any doubt that the First and Fourteenth Amendments protect certain forms of orderly group activity. Thus the Supreme Court has affirmed the right "to engage in association for the advancement of beliefs and ideas." N.A.A.C.P. v. Alabama ex rel. Patterson, 357 U.S. 449, 460; N.A.A.C.P. v. Button, 371 U.S. 415, 430 (1963).

"Our form of government is built on the premise that every citizen shall have the right to engage in political expression and association. This right was enshrined in the First Amendment of the Bill of Rights. Exercise of these basic freedoms in America has traditionally been through the media of political associations. Any interference with the freedom of a party is simultaneously an interference with the freedom of its adherents. All political ideas cannot and should not be channeled into the programs of our two major parties. History has amply proved the virtue of political activity by minority, dissident groups . . . ." Sweezy v. New Hampshire, 354 U. S. 234, 250-251 (plurality opinion). Cf. De Jonge v. Oregon, 299 U.S. 353, 364-366; N.A.A.C.P. v. Button, 371 U.S. 415, 431 (1963).

Richard Dorrough's actions as chairman of the Alabama Supreme Court Advisory Committee on Child Support Guidelines and Enforcement lends itself to selective enforcement against unpopular causes. We cannot close our eyes to the fact that the Fathers civil rights movement has engendered the intense resentment and opposition of a politically dominant legal community of Alabama; litigation in the divorce courts of Alabama has been bitterly fought. In such circumstances, Richard Dorrough has broadly curtailed group activity leading to litigation and has imposed a weapon of oppression. Petitioners Blackston and Barber were refused the necessary information disseminated by the committee and an adequate opportunity to participate in the formulation of policies and laws on child support. Richard Dorrough's actions could well freeze out of existence all activity on behalf of fathers and their children in Alabama. Petitioners Blackston and Barber have made an uncontroverted showing that on past occasions the State of Alabama has exposed non-custodial fathers but not mothers to economic reprisal, loss of employment, threats of physical coercion, and other manifestations of public hostility; all void of due process protection or fairness that Christian civilized citizens of Alabama deserve. (R1:1:11-13)

Every citizen of these United States should enjoy their personal and civil rights; that all persons should be equally entitled to pursue their happiness and acquire and enjoy property; that they should have like access to the courts of the country for the protection of their persons and property, the prevention and redress of wrongs, and the enforcement of contracts; that no impediment should be interposed to the pursuits of any one, except as applied to the same pursuits by others under like circumstances; that no greater burdens should be laid upon one than are laid upon others in the same calling and condition. Yick Wo v. Hopkins, Sheriff, 118 U.S. 356, 367 (1885).

The ban on petitioners Blackston and Barber's tape recorder has some impact, however small or incidental, on how petitioners Blackston and Barber are able to obtain access to and present information of a political nature to their constituents, and as such regulates conduct protected by the first amendment. Texas v. Johnson, 491 U.S. 397, 404, 109 S.Ct. 2533, 2539, 105 L.Ed.2d 342 (1989); Spence v. Washington, 418 U.S. 405, 409-410, 94 S.Ct. 2727, 2730, 41 L.Ed.2d 842 (1974) (per curiam). Thompson v. City of Clio, 765 F.Supp. 1066, 1070 (M.D. Ala. 1991). As in Spence, this court is "confronted with a case of depravation of constitutional rights for the expression of an idea through activity," and "accordingly, must examine with particular care the interests advance by Dorrough to support his actions. Petitioners Blackston and Barber were not depraved of their First Amendment rights for the expression of just any idea; they were deprived of their rights for their expression of dissatisfaction with the policies of the Alabama Supreme Court Advisory Committee on Child Support Guidelines and Enforcement, expression situated at the core of our First Amendment values. See, e. g., Boos v. Barry, 485 U.S. 312 at 318 (1988); Frisby v. Schultz, 487 U.S. 474, 479 (1988); Texas v. Johnson, 491 U.S. at 411 (1989).

Petitioners Blackston and Barber stance is contrary to Chairman Dorrough and the entire judicial system of Alabama. The Supreme Courts decision in Boos v. Barry, Supra, tells us that this restriction on petitioners expression and ability to provide their constituents information is content based.

If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable. Texas v. Johnson, 491 U.S. at 414. Government may not prohibit expression simply because it disagrees with its message.

The requirement of content-neutrality is particularly important where, as in this case, government operates "at the core of the First Amendment" by regulating speech that is "political" or that touches on "public issues." Boos v. Barry, 485 U.S. 312, 317, 108 S.Ct. 1157, 1162, 99 L.Ed.2d 333 (1988).

"Indeed, there is perhaps no area of expression more deserving of constitutional protection and more fundamental to the democratic system of government whose vitality the first amendment was designed to safeguard, than communication by a political representative to his constituents. Brown v. Hartlage, 456 U.S. 45, 52-53, 102 S.Ct. 1523, 1528- 29, 71 L.Ed.2d 732 (1982)." Thompson v. City of Clio, 765 F.Supp. 1066, 1071, n. 12 (M.D. Ala. 1991).

The standard for defendant Dorrough's action is old and well established. In Nesmith v. Alford, 318 F.2d 110, 121 (5th Cir. 1963), this court stated that in an action for unlawful arrest a police officer's liberty ends when he seeks to , without warrant arrest, not the person threatening violence, but those who are its likely victims merely because the person arrested is engaging in conduct which, though peaceful and legally and constitutionally protected, is deemed offensive and provocative to settled social customs and practices. Petitioners Blackston and Barber are the potential victims of the oppressive laws under consideration by the committee and are the victims of the violation of constitutionally protected right of Freedom of Speech. Dorrough's idea is that all discussion of child support issues must conform to his standards and precepts. Dorrough attempted to regulated petitioners speech on public and political issues, simply because he did not like it.

Dorrough knew petitioners Blackston and Barber were representing the National Congress of Men and Children. (R1:3:16 & R1:12:5) What was Dorrough's reason for his aggressive and belligerent actions. Did he face uncertainty or was he fearful of a potential backlash against his unreasonable laws and regulations under consideration by the committee? Was Dorrough upset and angry with petitioners Blackston and Barber as evidenced by his vicious and malicious slur "You people are nothing more than flies on the wall here?" Why did he exclude all fathers' input into the actions and proceedings of the committee, while saturating it with special interest from the State and custodial mothers support groups? The purported non-custodial representative on the committee is a custodial mother that is owed back child support. (R1:12:7 & R1:3:17-21) It is impossible for a custodial mother to represent the interest of non-custodial fathers. Why did the committee refuse to inform Mr. Robert Doyle of the committee's meeting as requested by Mr. Doyle? Petitioners were not allowed to discover the answer to many questions. It is clear to intelligent people that the cards are unfairly stacked against fathers in Alabama, denying them specific rights under the Constitution and laws of the United States. The Supreme Court has been careful to insist that regulations of speech do not involve "viewpoint discrimination - in other words, that the regulation is "not ... affected by sympathy or hostility for the point of view being expressed by the communicator." Young v. American Mini Theatres, Inc., 427 U.S. 50, 67, 96 S.Ct. 2440, 2451, 49 L.Ed2d 310 (1976). Thompson v. City of Clio, 765 F.Supp. 1066, 1070 (M.D. Ala. 1991).

The Committee and Dorrough's objectives for the ban on petitioner's recording the meeting on March 16, 1993, and subsequent withholding valuable information, is motivated by a desire to maintain the oppression and persecution of fathers in Alabama's courts. Why would Dorrough appoint a custodial mother, that is owed a large sum in back child support, to represent the interest of fathers? (R1:3:17) Allegorically and symbolically stomp the father in the ground and pore salt in his wounds!

Dorrough simply cannot justify his abusive behavior and denial of petitioner Blackston and Barber first amendment rights. Defendant Dorrough's only distinguishable reason, at this time, for the ban on petitioners Blackston and Barber tape recorder is that "no provision has been made to record the meeting." (R1:3:19)

The defendants in this case have not argued that their desire to avoid any misinformation or angry responses that petitioners Blackston and Barber's tape recordings might engender, qualifies as a "compelling state interest." Indeed, such a purpose is not even a legitimate one, for the Supreme Court has frequently recognized that the disruptive or disturbing effects of expression are integrally bound up with the very political value of free speech that the first amendment was designed to safeguard and nurture. "Texas v. Johnson, 491 U.S. 397, 408-09, 109 S.Ct. 2533, 2541, 105 L.Ed.2d 342 (1989); Thompson v. City of Clio, 765 F.Supp. 1066, 1072 (M.D. Ala. 1991); ("a principal function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.") quoting Terminiello v. City of Chicago, 337 U.S. 1, 4, 69 S.Ct. 894, 896, 93 L.Ed. 1131 (1949)). See also Boos, 485 U.S. at 322, 108 S.Ct. at 1164; Tinker v. Des Moines Independent Community Sch. Dist., 393 U.S. 503, 508, 89 S.Ct. 733, 737, 21 L.Ed.2d 731 (1969)."

Nor, of course, do defendants' allegations argue that the tapes petitioners Blackston and Barber wanted were somehow inaccurate or incomplete. It is well settled that the protection of the first amendment do not turn on the truth of an idea or belief. New York Times v. Sullivan, 376 U.S. 254, 271-72, 84 S.Ct. 710, 721, 11 L.Ed.2d 686 (1964) ("erroneous statement is inevitable in free debate, and ... it must be protected if the freedoms of expression are to have the 'breathing space' that they 'need ... to survive'") (citation omitted). Accord Rankin v. McPherson, 483 U.S. 378, 387, 107 S.Ct. 2891, 2898-99, 97 L.Ed.2d 315 (1987). Thompson v. City of Clio, 765 F.Supp. 1066, 1072, n. 15 (M.D. Ala. 1991).

Defendant Richard Dorrough's denial of petitioners Blackston and Barber's first amendment right to record the meeting forced them to acquiesce to his over-bearing, scowling attitude. Any non-custodial father in Alabama knows that - given the absolute power, authority and immunities of a circuit judge - it is very unwise and injudicious to argue or question him in any manner.

Reasonable officials in their position should have known at the time that individual citizens had First Amendment right to record session and that there was no compelling reason to deny him opportunity. Thompson v. City of Clio, 765 F.Supp. 1066, 1077 (M.D. Ala. 1991). Defendants were fully aware that their actions were in violation of petitioners Blackston and Barber constitutional rights.

THE RIGHT TO MAKE A COMPLETE PRIVATE VERBATIM RECORD IS NECESSARY TO ENSURE THE ACCOUNTABILITY OF THE JUDICIARY. In Craig v. Harney, Sheriff, 331 U.S. 367, 374 (1947), Justice William O. Douglas, speaking for the United States Supreme Court said: "There is no special prerequisite of the judiciary which enables it, as distinguished from other institutions of democratic government, to suppress, edit, or censor events which transpire in proceedings before it."

In this case, the court initially is guided by § 13A-14- 2(a) of the Code of Alabama, 1975, which provides that:

(a) No executive or secret session shall be held by any of the following named boards, commissions or courts of Alabama; namely: Alabama Public Service Commission; school commissions of Alabama; board of adjustment; state or county tax commissions; any county commission, any city commission or municipal council; or any other body, board or commission in the state charged with the duty of disbursing any funds belonging to the state, county or municipality, or board, body or commission to which is delegated any legislative or judicial function; except, that executive or secret sessions may be held by any of the above named boards or commissions when the character or good name of a woman or man is involved.

If this Honorable Court were to hold that a State may forbid recording of public meetings because the Chairman made no provision to record it, but allowed it wherever the Chairman okays it - as where minutes of public meetings are recorded on a routine basis - this court would be saying that it is okay to record meetings only in one direction. This court would be permitting a State to "prescribe what shall be orthodox" by saying one may record public meetings only if the chairman of a committee provides for it. To do so would be entering into territory having no discernible or defensible boundaries. Could the government, on this theory, prohibit the recording of minutes of the Alabama public service commission; school commissions of Alabama; board of adjustment; state or county tax commissions; any county commission, any city commission or municipal council; or any other body, board or commission in the state charged with the duty of disbursing any funds belonging to the state, county or municipality, or board, body or commission to which is delegated any legislative or judicial function. Code of Alabama, 1975 § 13A-14-2.

Under state law all meetings of The Alabama Supreme Court's Advisory Committee on Child Support Guidelines and Enforcement must be open to the public. Evidence shows that numerous meetings were held in secret; how many is unknown at this point. (R1:3:19-20) The public meeting requirement is for the benefit of the public to ensure that it has the opportunity to become informed as to the affairs of its governmental bodies. It is intended that the whole deliberative process be open to public scrutiny, rather than that there be the mere formal announcement of decisions already made in private. Miglionico v. Birmingham News Co., 378 So2d 677 (Ala. 1979).

Under this statute all meetings of the bodies named, whether formal or informal, whether or not an official vote is taken, must be open to the public, except where the character or good name of a person is involved. The right to public access extends to the entire process from public policy discussion and formulation through adoption and enforcement. Otherwise, business could be conducted in secrecy and public meetings held only to ratify decisions already made in secret. Dale v. Birmingham News Co., 452 So2d 1321 (Ala. 1984).

The Code of Alabama, 1975 § 11-43-49, 52 is not inconsistent with this section, and both may be read in pari materia.

The council shall determine the rules of its own proceedings and keep a journal thereof, which shall be open to the inspection and examination of all citizens and shall have the force and effect of a record, and a copy thereof, certified by the clerk, shall be prima facie evidence in any court or elsewhere. Code of Alabama, 1975, § 11-43-52.

The clear language of the open meetings laws evidences the legislative policy of this state that all meetings are to be open to the public and that no executive sessions are to be held. Miglionico v. Birmingham News Co., 378 So2d 677 (Ala. 1979).

Chairman Richard Dorrough did not provide for a record of any meetings of the Alabama Supreme Court's Advisory Committee on Child Support Guidelines and Enforcement. The committee violated the substantive rights of the petitioners Blackston and Barber by failing to hold open meetings and provide for a record of all proceedings. (R1:3:19-20) Adding insult to injury Dorrough maliciously and intentionally refused to allow petitioners their right to record the meeting. It is sufficient to conclude that the committee was enacting laws in secret that adversely affected citizens of Alabama's right to know the affairs of their government; a clear First Amendment violation.

Since Alabama provides that all meetings shall be open to the public and a record of the proceedings provided to the public; "Individuals enjoy the full range of first amendment protection while on public property that the state has opened for expressive activity. Perry Educ. Ass'n v. Perry Local Educators Ass'n, 460 U.S. 37, 45-46, 103 S.Ct. 948, 955, 74 L.Ed.2d 794 (1983)." Thompson v. City of Clio, 765 F.Supp. 1066, 1070, n. 11 (M.D. Ala. 1991).

Petitioners Blackston and Barber acted calm in all respects at all times during the meeting. Defendant Richard Dorrough's refusal to allow said petitioners Blackston and Barber the right to record the meeting was the very first incident that happen immediately upon the members returning from lunch. Petitioners Blackston and Barber were seated close to the door with the tape recorder in plain view of everyone entering the room. Immediately upon Dorrough's entrance into the room, when he observed the tape recorder, Dorrough began his verbal assault, declaring that there was no provision for any recording of the meeting and that petitioners Blackston and Barber would not tape the meeting. Dorrough's actions came first, an action that established a discriminatory policy that violated the plaintiff's first amendment rights. (R1:23:8)

Petitioners Blackston and Barber suffered extreme humiliation, dishonor and a denial of their first amendment rights to record the meeting. Dorrough's actions confused petitioners Blackston and Barber abilities relating to the their purpose and input into the committee. Petitioners Blackston and Barber were so unsure and confused of their position that they could not adequately present their evidence and were left feeling no confidence that the committee would consider their input under any circumstances. Petitioners Blackston and Barber lost a valuable opportunity to obtain a complete and reliable record of the meeting.

The way to preserve and protect The Alabama Supreme Court's Advisory Committee on Child Support Guidelines and Enforcement's special role is not to punish those who feel differently about these matters. It is to persuade them that they are wrong if they are wrong. "To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforce silence." Whitney v. California, 274 U.S. 357, 377 (1927), Texas v. Johnson, 491 U.S. at 419. The committee was actually writing substantive law that will govern child support obligations of fathers and the enforcement thereof for the next four years. The single most important question remains - Why is it so important for the officials of Alabama to suppress and eliminate all input from non-custodial fathers into the very process that affects fathers of Alabama most - The emotional and financial support of their children!!!!

II. POLICIES, CUSTOMS AND LAWS OF STATE OF ALABAMA AND SUBSEQUENT LIABILITY UNDER 42 U.S.C. §1983.

In determining whether a government body has liability under § 1983, the trial judge identifies those officials or government bodies who, as matter of state law, have final policy-making authority concerning action alleged to have caused a constitutional violation. Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 736-37, 109 S.Ct. 2702, 2723, 105 L.Ed.2d 598 (1989); Brown v. City of Fort Lauderdale, 923 F.2d 1474, 1481 n. 11. (11th Cir. 1991). The District Court failed to identify those officials or government bodies who, as a matter of state law, have final policy making authority concerning action alleged to have caused a constitutional violation, choosing only to dismiss the case before all the facts and evidence could be obtained. The Alabama Supreme Court Advisory Committee on Child Support Guidelines and Enforcement is an entity of the State of Alabama and establishes customs and policies and laws concerning child support and enforcement for the State of Alabama. Defendant, Richard Dorrough, is Chairman and therefore responsible for the final decision to disallow petitioners Blackston and Barber their right to make a record of the proceedings on March 16, 1993. A question of fact that remains unanswered is, whether or not Dorrough received his orders from someone else. Once the court has made such a determination, the jury decides whether policy-makers' decisions have caused deprivation of rights at issue by policies affirmatively commanding that deprivation occurred. Jett v. Dallas Indep. Sch. Dist., 491 U.S. at 737, 109 S.Ct. at 2723. Thompson v. City of Clio, 765 F.Supp. 1066, 1079 (M.D. Ala. 1991). The jury and not the judge must determine whether policy-makers decisions have caused a deprivation of rights.

There is evidence that the committee, the State policy-maker in this case and the State of Alabama, affirmatively decided to ban petitioners Blackston and Barber right to make a record of the meeting on March 16, 1993. (R1:3:18-19 & R1:12:7) In so doing, Dorrough froze out petitioners Blackston and Barber ability to provide valuable information to their constituents - a clear first amendment violation. Regardless, the decision of a "subordinate" official, such as Chairman Richard Dorrough in this case, may constitute final policy under several scenarios, two of which are relevant here. First, government policy-makers may delegate, in a broad sense, the authority they possess under state law over certain areas or issues to a lower official. City of St. Louis v. Praprotnik, 485 U.S. 112, 126-27, 108 S.Ct. 915, 925, 99 L.Ed.2d 107 (1988); Mandel v. Doe, 888 F.2d 783, 792 (11th Cir. 1989). Second, where policy-makers "approve a subordinate's decision and the basis for it, their ratification would be chargeable to the government entity because their decision is final." Mandel, 888 F.2d at 792 n. 16.

Evidence shows that Chairman Richard Dorrough was the policy-maker with respect to regulations on time and place of committee meetings and recording the proceedings during the various meetings. The State of Alabama transferred generally to him, as chairman of the committee, the power to determine the rules and procedures that governed committees sessions. Dorrough chose, maliciously and contemptuously, to violate petitioners substantive rights to know the affairs of their government. (R1:20 Exhibit A)

The evidence shows that the State of Alabama, through its various departments and advisory committees, regularly establishes practices and procedures designed to deny non-custodial parents access to absolute and vital information they need to present themselves in the courts of Alabama and make political decisions on the elections of public judicial officials. Nine (9) affidavits from witnesses testify that the State of Alabama has a very low regard for the constitutional rights of non-custodial parents in Alabama. (R1:3,9,10,12,13,14,15,16,24)

However, it is unnecessary to prove that the challenged conduct was part of a sufficiently widespread or long-standing custom or practice; evidence shows petitioners Blackston and Barber succeeded in proving a government policy based on the delegation of authority or the ratification of the decision by a final policy-maker. Brown v. City of Fort Lauderdale, 923 F.2d 1474, 1481 (11th Cir. 1991). Second, the evidence before the court also suggests that the committee members effectively ratified Chairman Richard Dorrough's specific policy against petitioners Blackston and Barber's recording the meeting. Dorrough confronted petitioners Blackston and Barber forcefully and verbally declaring that petitioners Blackston and Barber were, "nothing more than flies on the wall". None of the committee members objected to the proscription on petitioners Blackston and Barber abilities and rights to record the meeting.

For these reasons and more, the court must conclude that Chairman Richard Dorrough and The Alabama Supreme Court's Advisory Committee on Child Support Guidelines and Enforcement is not entitled to dismissal of the above stated claim on summary judgment at this early stage of the proceedings.

It is clearly established by a long line of cases that all state governments are subject to the liabilities and obligations of 42 U.S.C. § 1983. The Monell rule clearly establishes plaintiff's rights in this case.

Dorrough established a "policy" when he did not provide for a record of the committee's proceedings and refused to allow petitioners Blackston and Barber their right to record the meeting of March 16, 1993.

"It would be a narrow conception of jurisprudence to confine the notion of 'laws' to what is found written on the statute books, and to disregard the gloss which life has written upon it. Settled state practice . . . can establish what is state law. The Equal Protection Clause did not write an empty formalism into the Constitution. Deeply embedded traditional ways of carrying out state policy, such as those of which petitioner complains, are often tougher and truer law than the dead words of the written text." Nashville, C. & St. L.R. Co. v. Browning, 310 U.S. 362, 369 (1940). Monell v. New York City Dept. of Social Services, n. 56, 436 U.S. 658, 690-691.

"Defendants in these cases are often State or local bodies or State or local officials. In such cases it intended that the attorneys' fees, like other items of costs, will be collected either directly from the official, in his official capacity, from funds of his agency or under his control, or from the State or local government (whether or not the agency or government is a named party)." Monell v. New York City Dept. of Social Services, 436 U.S. 658, 698-699.

. . . It is simply beyond doubt that, under the 1871 Congress' view of the law, were § 1983 liability unconstitutional as to local governments, it would have been equally unconstitutional as to state officers. Yet everyone - proponents and opponents alike - knew § 1983 would be applied to state officers and nonetheless stated that § 1983 was constitutional. And, moreover, there can be no doubt that § 1 of the Civil Rights Act was intended to provide a remedy, to be broadly construed, against all forms of official violation of federally protected rights. Monell v. New York City Dept. of Social Services, 436 U.S. 658, 699-700.

. . . Thus, it has been clear that a public official may be held liable in damages when his actions are found to violate a constitutional right and there is no qualified immunity, see Wood v. Strickland, 420 U.S. 308 (1975); Procunier v. Navarette, 434 U.S. 555 (1978). Today the Court recognizes that this principle also applies to a local government when implementation of its official policies or established customs inflicts the constitutional injury. Monell v. New York City Dept. of Social Services, 436 U.S. 658, 707-708.

III. DISMISSAL - FAILURE TO STATE A CLAIM

A court faced with a motion to dismiss a pro se complaint alleging violations of civil rights must read the complaint's allegations expansively. Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 596 (1972), and take them as true for purposes of deciding whether they state a claim. Cruz v. Beto, 405 U.S. 319, 322, 92 S.Ct. 1079, 1081 (1972). Moreover, it is a well settled principle of law that "the court is under a duty to examine the complaint to determine if the allegations provide for relief on any possible theory." Bonner v. Circuit Court of St. Louis, 526 F.2d 1331, 1334 (8th Cir. 1975) (quoting Bramlet v. Wilson, 495 F.2d 714, 716 (8th Cir. 1974). Bowers v. Hardwick, 478 U.S. 186, 201 (1986).

The standard of review for Fed. R. Civ. Proc. Rule 12(b)(6) - Failure to state a claim - is, the appeals court should affirm the district courts dismissal "only if 'it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Conley v. Gibson, 355 U.S. 41, 45-46; 78 S.Ct. 99, 102 (1957). Bowers v. Hardwick, 478 U.S. 186, 201 (1986), see Due v. Tallahassee Theatres, Inc., 333 F.2d 630, 631 (5th Cir. 1964); Parr v. Great Lakes Express Co., 484 F.2d 767, 773 (7th Cir. 1973); United States v. Howell, 318 F.2d 162, 166 (9th Cir. 1963); 5 C. Wright & A. Miller, Federal Practice and Procedure § 1357, pp. 601-602 (1969).

The Fifth Circuit (now the 11th circuit) expressed shock and disbelief that a District Court could dismiss a claim against the Sheriff and City of Tallahassee, Florida, based on the bare bones pleading.

"This is another case proving that final disposition of a civil action on the basis of bare bones pleading is a tortuous thing. How a standard so simply expressed, so often repeated, is apparently so often overlooked without even so much as a deferential mention of it is hard to understand. Although it seems now to be an affectation, we repeat it again, though citation of case names as a shorthand symbol of the principle ought to be enough."

Due v. Tallahassee Theatres, Inc., 333 F.2d 630, 631,

note 1 (5th Cir. 1964).

For the purposes of a motion to dismiss, the material allegations of the complaint are taken as admitted. See, e.g., Walker Process Equip., Inc. v. Food Machinery & Chemical Corp., 382 U.S. 172, 174-175 (1965). And, the complaint is to be liberally construed in favor of plaintiff. See Fed. R. Civ. Proc. 8(f); Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Thus, even if respondent did not advance claims based on the First Amendment, or on the Equal Protection Clause, their complaint should not be dismissed if any of those provisions could entitle him to relief. Conley, supra, at 45-46. Bowers v. Hardwick, 478 U.S. 186, 202 (1986).

To dismiss for failure of the pleading to state claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.

Fed. R. Civ. Proc. Rule 12(b).

It cannot be said that petitioners Blackston and Barber were given reasonable opportunity to present all material made pertinent to defendant's 12(b)(6) motion. Undisputed facts are clear that Chairman Dorrough violated Alabama's open meeting laws and failed to provide a record of the committee's meetings as required by Alabama law. When petitioners Blackston and Barber confronted Chairman Dorrough with these facts, Dorrough added insult to injury by viciously and maliciously attacking the petitioners verbally and denying their First Amendment right to record the meeting for reasons already introduced. (R1:3:18 & R1:12:7) Because of Chairman Dorrough and the remaining committee members' actions, petitioners are unable to report to their respective support groups the proceedings of The Alabama Supreme Court's Advisory Committee on Child Support Guidelines and Enforcement. (R1:12:8 & R1:24:3) The Alabama citizens right to know the manner in which government is operated and all such matters relating to the election of judicial officials is breached. Mills v. Alabama, 384 U.S. 214, 218-19 (1966): Brown v. Hartlage, 456 U.S. 45, 53 (1982).

. . . The judgment sought shall be rendered forthwith if the pleading, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any;, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fed. R. Civ. Proc. Rule 56(c).

The record in this case is void of these types of evidence. Due to the secretive and concealed operations of the committee, much of the evidence is unknown and petitioners did not have an opportunity to obtain evidence from defendants Hornsby, Gilmore or Cleveland.

Several other Court of Appeals proclaim that summary judgment under Rule 56, Fed. R. Civ. Proc., is an extreme remedy which should be sparingly employed. City National Bank of Fort Smith, Arkansas v. Vanderboom, 422 F.2d 221, 223 (8th Cir.), cert. denied, 399 U.S. 905, 90 S.Ct. 2196 (1970); Williams v. Chick, 373 F.2d 330, 331 (8th Cir. 1967); Smoot v. Chicago, Rock Island and Pacific Railroad, 378 F.2d 879, 883 (10th Cir. 1967), holding that granting a summary judgment under Rule 56 is a "drastic remedy.

In Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 467, 82 S.Ct. 486, 488 (1962) the Supreme Court set down the following guidelines on the application of summary judgment procedure:

"Summary judgment should be entered only when the pleading, depositions, affidavits, and admissions filed in the case 'show that [ except as to the amount of damages ] there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.' Fed. R. Civ. Proc. Rule 56 (c). This rule authorizes summary judgment 'only where the moving party is entitled to judgment as a matter of law, where it is quite clear what the truth is, * * * [ and where ] no genuine issue remains for trial * * * * [for] the purpose of the rule is not to cut litigants off from their right of trial by jury if they really have issues to try.' Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620, 627, 64 S.Ct. 724, 728, (1944)."

It is settled doctrine that any inferences to be drawn from the underlying facts contained in the materials presented must be viewed in the light most favorable to the party opposing the motion for summary judgment. Adickes v. S. H. Kress & Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598, (1970); United States v. Diebold, Inc. 369 U.S. 654, 655, 82 S.Ct. 993 (1962).

The evidence before the trial court consisted of nothing more than the original petition and various motions to dismiss. The court did not hear any live witnesses. The trial court did not take any opportunity to assess the credibility of witnesses by personal observation. Therefore the burden of showing clear error is not heavy. The appeals court viewing the same evidence from the same vantage point as the trial court stands equally to ascertain the true facts and when there is clear error is bound to set aside the court's findings. United States v. United States Gypsum Co., 333 U.S. 364, 395; 68 S.Ct. 525, 542 (1948); Marcum v. United States, 621 F.2d 142 (5th Cir. 1980).

It is clear, grievous error occurred in the trial court. The trial court dismissed petitioners Blackston and Barber claim before any of the facts could be determined in only fourteen (14) days after receiving it on transfer from the Northern District of Alabama. The petitioners were unable in that length of time to compile all the facts and engage in sufficient discovery to support their assertions. At a minimum petitioners Blackston and Barber deserve a chance to obtain depositions and evidence to support their claim.

In resisting a motion for summary judgment, the non-movant may not rest on allegations in his pleading, but must supply probative evidence such as affidavits, for example. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 106 S.Ct. 2505, 2510 (1986).

"The standard [ for granting summary judgment ] mirrors the standard for a directed verdict," and summary judgment is appropriate unless the facts before the court are such that "reasonable jurors could find by a preponderance of the evidence that the plaintiff is entitled to a verdict." Id. at 250, 252, 106 S.Ct. at 2511, 2512.

The petitioners filed nine (9) affidavits in support of their claim. None were challenged, disputed or argued in any way. Chairman Dorrough and the committee's actions are undisputed. Evidence exist far beyond the requisite, "preponderance of evidence standard", to prove petitioners Blackston and Barber claim.

In deciding a motion for summary judgment, a district court must consider "all the evidence in the light most favorable to the non-moving party ... and resolve all reasonable doubts in favor of the non-moving party." Rollins v. TechSouth, Inc. 833 F.2d 1525, 1528 (11th Cir 1987); Barnes v. Southwest Forest Indus., Inc., 814 F.2d 607, 609 (11th Cir. 1987); Earley v. Champion Int'l Corp., 907 F.2d 1077, 1080 (11th Cir 1990). See also Matsushita Elec. Indus. Co v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356 (1986).

The Constitution of the United States and rules of court provide for the right of trial by jury.

The right of trial by jury as declared by the Seventh Amendment to the Constitution or as given by a statute of the United States shall be preserved to the parties inviolate. Fed. R. Civ. Proc. Rule 38.

Under 28 U.S.C. § 2072, peremptory rules of court such as Fed. R. Civ. Proc. 12(b)(6) and 56 cannot be used to deny petitioners fair access to the courts and circumvent the United States Constitution.

(a) The Supreme Court shall have the power to prescribe general rules of practice and procedure and rules of evidence for cases in the United States district courts (including proceedings before magistrates thereof) and courts of appeals.

(b) Such rules shall not abridge, enlarge or modify any substantive right. All laws in conflict with such rules shall be of no further force or effect after such rules have taken effect. 28 U.S.C. § 2072.

The District Court's preemptory action of dismissing this cause at a premature stage, equates to the denial of access to the courts. It is beyond dispute that the right of access to the courts is a fundamental right protected by the Constitution. The Supreme Court has found several constitutional bases for this right. See, e.g., Chambers v. Baltimore & O.R.R., 207 U.S. 142, 148, 28 S.Ct. 34, 35 (1907)(right of access is a privilege and immunity secured under article IV of the Constitution and the Fourteenth Amendment); California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 510, 92 S.Ct. 609, 611 (1972). (right of access is one aspect of First Amendment right to petition); Wolff v. McDonnell, 418 U.S. 539, 579, 94 S.Ct. 2963, 2986 (1974) (right of access is founded in the Due Process Clause. A number of federal circuit courts have likewise found the right of access to the courts to be protected by the First Amendment. See, e.g., Wilson v. Thompson, 593 F.2d 1375, 1387 (5th Cir. 1979). Graham v. National Collegiate Athletic Ass'n, 804 F.2d 953, 959 (6th Cir. 1986).

Supreme Court nominee Ruth Bader Ginsburg replied to Senator Strom Thurmond, R-S.C., when questioned on whether she favored new limits on criminal defendants' right to appeal state convictions to federal courts. "Finality is important but fairness is also important, and unfortunately we don't live in an ideal world where people always get the best representation the first time around," Ginsburg replied. Petitioners Blackston and Barber ask for a fair and impartial chance to adjudicate their First Amendment claim.

IV. FEDERAL DISTRICT COURT'S JURISDICTION

Jurisdiction exists pursuant to the United States Constitution, Amendment I, IV, V, VII, IX, XIV, 28 U.S.C. §1331, 1343, 42 U.S.C. §1983, 1985, 1986, 1988.

"The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States. 28 U.S.C. § 1331.

(a) The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person:

Also the District Court has jurisdiction under 28 U.S.C.§ 1343 that states in part as follows:

(3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons with in the jurisdiction of the United States.;

28 U.S.C. § 1343.

A plaintiff may bring suit under §1983 for state official's violation of his rights to, e.g. freedom of speech or freedom from unreasonable searches and seizures. Second, the Due Process Clause contains a substantive component that bars certain arbitrary, wrongful government actions "regardless of the fairness of the procedures used to implement them." Daniels v. Williams, 474 U.S. 327, 330-31, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). As to these two types of claims, the constitutional violation actionable under §1983 is complete when the wrongful action is taken. Id., at 338, 106 S.Ct. at 678. A plaintiff, under Monroe v. Pape, 364 U.S. 167, 81 S.Ct. 473, (1961), may invoke §1983 regardless of any state-tort remedy that might be available to compensate him for the deprivation of these rights. Zinnermon v. Burch, 110 S.Ct. 975, 983 (1990).

The Supreme Court decision in Craig v. Harney, Sheriff, 331 U.S. 367, 383 (1947) states that even "judges must not retaliate by a summary suppression of criticism for they are bound by the command of the First Amendment."

The frustrations felt by petitioners Blackston and Barber were directly and intentionally, under color of state law, caused by Dorrough and the committee in petitioners Blackston and Barber's denial to record the not so public meeting on March 16, 1993, and the total elimination of input into the committee's course of action and functions.

"[S]ince Ex parte Young, 209 U.S. 123 (1908)," the Supreme Court said, "it has been settled that the Eleventh Amendment provides no shield for a state official confronted by a claim that he had deprived another of a federal right under the color of state law." Scheuer v. Rhodes, 416 U.S. 232, 237 (1974).

In Kentucky v. Graham, 473 U.S. 159 (1985), the Supreme Court sought to eliminate lingering confusion about the distinction between personal and official capacity suits. The Court emphasized that official capacity suits "'generally represent only another way of pleading an action against an entity of which an officer is an agent.'" Id., at 165 (quoting Monell v. New York City Dept. of Social Service., 436 U.S. 658, 690, n. 55 (1978)). A suit against a state official in her official capacity therefore should be treated as a suit against the State. Kentucky v. Graham, 473 U.S., at 166. Indeed, when an official sued in this capacity in federal court dies or leaves office, her successor automatically assumes her role in the litigation. See Fed. R. Civ. Proc. 25(d)(1); Fed. R. App. Proc. 43(c)(1). Because the real party in interest in an official capacity suit is the governmental entity and not the named official, "the entities 'policy or custom' must have played a part in the violation of federal law." Kentucky v. Graham, supra, at 166 (quoting Monell, supra, at 694). For the same reason, the only immunities available to the defendant in an official capacity action are those that the governmental entity possesses. Kentucky v. Graham, 473 U.S., at 167.

Personal capacity suits, on the other hand, seek to impose individual liability upon a government officer for actions taken under color of state law. Thus, "[o]n the merits, to establish personal liability in a § 1983 action, it is enough to show that the official, acting under color of state law, caused the deprivation of a federal right." Id., at 166.

In determining whether plaintiffs can sue defendants in their personal capacity, official capacity, or both, we first look to the complaints and the "course of proceedings." Kentucky v. Graham, 473 U.S. at 167 n. 14, 105 S.Ct. at 3106 n. 14 (quoting Brandon v. Holt, 469 U.S. 464, 469, 105 S.Ct. 873, 876. Hafer v. Melo, 498 U.S. 1118 (1991); United States LAW WEEK 60 LW 4002.

Scheuer v. Rhodes, 416 U.S. 232, 243 (1974) (quoting Monroe v. Pape, supra at 171-72). Because of that intent, the Supreme Court has held that in § 1983 actions the statutory requirement of action "under color of" state law is just as broad as the Fourteenth Amendment's "state action" requirement. Lugar v. Edmondson Oil Co., 457 U.S. 922, 929 (1982). Hafer v. Melo, 498 U.S. 1118 (1991); United States LAW WEEK 60 LW 4003.

Officials seeking absolute immunity must show that such immunity is justified for the governmental function at issue, Burns v. Reed, 500 U.S. ___, 111 S.Ct. 1934, 1935 (1991).

The Supreme Court has refused to extend absolute immunity beyond a very limited class of officials, including the President of the United States, legislators carrying out their legislative functions, and judges carrying out their judicial function, "whose special functions or constitutional status requires complete protection from suit." Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982). State executive officials are not entitled to absolute immunity for their official actions. Scheuer v. Rhodes, supra. In several instances, moreover, the court has concluded that no more than a qualified immunity attaches to administrative employment decisions, even if the same official has absolute immunity when performing other functions. See Forester v. White, 484 U.S. 219 (1988). Hafer v. Melo, 498 U.S. 1118 (1991). In short, none of the defendants are immune and the district court has original jurisdiction to entertain this action.

CONCLUSION

The National Congress of Men and Children's (N.C.M.C.) purpose and goals is to obtain vital information in the areas of child custody, child support, visitation and false accusations of abuse. (R1:12:5) N.C.M.C. must know the political and legal stance of political leaders of Alabama. Child Support is the main topic of interest and discussion and lends itself to the personal prejudices and public excitement propagated against fathers in Alabama's courts. (R1:12:3) If mothers desire to obtain an unfair advantage over the father in court, support and false abuse allegations is their weapon of choice. The present child support climate in Alabama today penalizes fathers that desire to maintain a relationship with their children. Alabama's child support laws in most cases give to the mother most of the families assets and do not require accountability. (R1:25:3) The father has no say in the management of the families assets. In addition to basic support, medical needs of the children, often without any advance planning or warning, fathers suddenly find they are ordered to pay college expenses. Fathers have no say in where, when or how long the child goes to college. The father cannot even insist on the child maintaining a passing grade. No other unit in society places such catastrophic and overwhelming burdens on citizens. Experience has shown that this practice can be detrimental to the child. (R1:25:4)

The children of Alabama are suffering from lack of contact with their fathers. Most of the evidence shows that fathers and their children are separated due to no fault of the father for years. Days turn to months and months turn to years. Meanwhile the child grows up not having known her biological father. Like it or not, accept it or not - unreasonable child support, unfair custody decisions, visitation denied and false abuse accusations are adversely effecting the children of Alabama. (R1:25:3)

Under the present conditions of oppression, petitioners Blackston and Barber must advocate for themselves and others in attempting to maintain some kind of contact with their children. N.C.M.C. is the only source of advocacy for thousands of fathers and their children in Alabama. Elimination of oppression and discrimination in Alabama's courts, relating to unfair custody awards, unreasonable child support orders, unwillingness to resolve visitation disputes and false abuse accusations, is a duty we must undertake to establish justice, insure domestic tranquillity, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity. The petitioners in this case must have the unfettered opportunity to make their views known so that they may intelligently evaluate candidates' personal qualities for public office and their qualities and positions on vital public issues before choosing among them on election day.

Respectfully Submitted,

__________________________
James R. Blackston

Court's Decision