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Simmons v. Conger

July 03, 1996


Appeal from the United States District Court for the Northern District of Alabama. (No. CV91-C-2220-W). U.W. Clemon, Judge.

Before Birch and Barkett, Circuit Judges, and Henderson, Senior Circuit Judge. Barkett, Circuit Judge, specially concurring

Author: Birch

BIRCH, Circuit Judge:

This is an appeal by a former circuit court judge in Alabama from the issuance of a permanent injunction against him, as well as his successors in office, permanently enjoining them from excluding members of the public from any divorce trial convened in the Sixth Judicial Circuit in Alabama, absent a prior judicial determination that their public interest in a particular trial is outweighed by a specifically identified compelling state interest. The district court also awarded the plaintiffs one hundred dollars in nominal damages against the state court judge in both his individual and official capacities. For the reasons that follow, we REVERSE the damages judgment, VACATE the permanent injunction, and REMAND with instructions to enter judgment for the state court judge.


Concerned Citizens for a Caring Family Court, Inc. ("CCCFC"), one of the named plaintiffs in this case, was organized as a nonprofit organization under Alabama law and was incorporated in June of 1990; plaintiff Glynnie B. Simmons is one of the founders of CCCFC. Judge Paul S. Conger, Jr., the defendant, was an Alabama Circuit Court Judge in the Sixth Judicial District in Tuscaloosa County until January of 1995, at which time his term of office ended.*fn1 Judge Conger's primary duties were as a domestic relations and juvenile court judge, although he had the general power of an Alabama circuit judge to hear other matters assigned to him. All domestic relations cases in Alabama are non-jury, and, as a general matter, juvenile proceedings before the family court are closed to spectators. See Ala.Code ยง 12-15-65(a) (1995).

Some background information on CCCFC is helpful to place the events at issue in this case in the proper context. CCCFC allegedly was formed "to focus attention on the laws and procedures governing the Juvenile and Family Courts and to promote constructive change to enable the residents to be served by a judicial system that is fair and just in its decisions and efficient and economical in its operations." R1-11, Exh. E at 1. Most, if not all, of the founding principals in CCCFC had been litigants in Judge Conger's court or had a child or close relative who had been a litigant in Judge Conger's court. The record indicates that these individuals were unhappy about the outcome of their proceedings and generally disapproved of his decisions and his courtroom demeanor.

Simmons testified at trial that her grievance with Judge Conger was personal and stemmed from her disagreement with Judge Conger's decision in a case involving her daughter.*fn2 In order to achieve its stated goals, CCCFC operated what Simmons referred to as a "court monitoring program." R2-30-53. As part of this program, CCCFC members went to court to lend "moral support" to family court litigants, particularly first-time litigants. Id. at 54. Interestingly, none of the "information" that allegedly was collected in these monitoring sessions was ever written down, and Judge Conger's court was the only one that was ever monitored. Not only did CCCFC monitor Judge Conger's court, but also it initiated proceedings against him before both the Alabama Judicial Inquiry Commission and the Alabama Court of the Judiciary; its complaints were based on his rulings, courtroom demeanor, and alleged practice of closing certain family court hearings to the public. Both of these actions were dismissed as being without merit.*fn3 Nonetheless, they helped further the considerable animosity that already existed between Judge Conger and the members of CCCFC.*fn4

The conduct at issue in this case occurred on April 15, 1991, during a hearing that Judge Conger held in a divorce and child custody case, Gosa v. Gosa, Civil Action No. DR90-374. Simmons attended this hearing as a spectator and sat through the morning session without incident.*fn5 Upon resumption of the hearing after lunch, counsel for Wilmon Gosa addressed the Court:

MR. NOLEN [counsel for Mr. Gosa]: Your Honor, if I may at this point, the great majority of the allegations that we have heard this morning were not in the pleadings and are certainly surprising to us. In light of that, we would ask that only the parties and counsel and whatever witness is testifying be allowed in court at this time.

THE COURT: You are asking for Mrs. Simmons to be excused?

MR. NOLEN: Yes, sir, we are.

THE COURT: Mrs. Simmons, at the request of the Defendant, I will ask you to please excuse yourself.

MRS. SIMMONS: You are asking me to leave?

THE COURT: Yes, ma'am, I sure am.

MRS. SIMMONS: I want that on the record ...

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