*2 GEWIN, Before RIVES and Circuit Judges, Judge. SHEEHY, District Judge. GEWIN, Circuit brought This action was under U.S. 1971(b) C.A. provides § “No * ** person, intimidate, shall threat- en, coerce, attempt threaten, person or coerce with the. * * person of such other to vote (c) and (d) Subsections of Section 1971 provide then Attorney that the General may United States seek an junction or other civil relief to enforce provisions (b). of subsection sought injunctive action pur- below relief (d). suant per- to subsection alleged son to have been intimidated Negro was a school teacher in Greene County, alleged Mississippi. The act of intimidation the refusal of the pellee school Board to rehire the teacher expiration at the of her contract.1 plaintiff, States, sought 1. The United the defendants to reinstate and offer a preliminary injunction permanent reemployment contract of to Mrs. Talbert temporary require restraining order “to for the 1962-63 term and to restrain the. , stated, school;- Talbert, com he Mrs. was hired teacher you up.” “always County to lift Educa serves Greene Board of mendation Negro attempted to teach in the Greene *3 April, . tion Talbert In County George adjoining School for 1961-62 Vocational the register in to vote policy As all new term. is the County resided, without but where she teachers, on for she was “trial basis” a affidavit with filed an then She success. year. Her the contract contained complaining first of Department the Justice register for clause Her duties were: renewal. her. Registrar’s refusal to the librarian; to be Department the to teach business April 16, the Justice On classes; Hayes, principal, registration. to assist require Mrs. her to sued matters; in clerical and to handle some for the the suit about Talbert learned principal, a An “home-room.” assistant itof an account when she read first time assigned Randall, to a home room Register her April 1961. of Mobile in the pupils. sixty-three Talbert resented Hayes of April 25, Talbert informed On speak to Randall this and refused to recommend to refused that Martin had year. The for library of the school the balance the school contract to of her renewal poor Tal condition when was In the term.3 1961-62 for the Board work, it was her bert first went to and application meantime, had made Talbert duty principal, up. High Magnolia to build it teaching position in a for produce Hayes, said that Talbert “did not County, an School, Point, Jackson Moss to the that teachers of ap- work extent April This adjoining on county, training equal ability produced” and and plication discovered was made before she “very on renewed; that as a was lax librarian she not would be contract that her up job,” not to work “was that her conditionally accepted had been she and Martin, par.”2 complained He to trial, Mr. fact, employment. In on Superintendent Education, about sure she was not testified that Talbert work, uncooperative County her .Talbert, and her teach Greene that she would Randall, his attitude him and toward were successful if the Government even Although Hayes compliment assistant. in this suit. Superintendent, work, explained Martin, re- on that ed Talbert her he further achieving harmony fused to recommend Talbert this was a method expected continuing a teacher engaging be much as could from defendants her, period I practices said to engage time. over that ‘Well, acts and to such your judg- back I will have to are the The defendants the future.” judgment ment, your County, here and let be Greene of Education Board mine,’ said, ‘Well, I think she Mississippi, Board the members justify enough individually members; here now to done she has and as such fact, individually a In I made statement that’. as Su- Martin Evans X effect, I to decline but would have perintendent that of Education. wrong finding I because that was after Hayes stand, on witness 2. When falsely anybody.” I accuse want don’t stated: Statute, Mississippi Hayes, op- recommenda- you, 3. Under an Mr. had Have “Q. portunity prerequisite Martin tion to Board examine and review the As stated to a renewal of contract. in the li- Mrs. Talbert did work Trial brary year? Court: last statutory by which Well, opportunity sole method “The I have had “A. employed may in Mis- teacher it after school. examine superintendent sissippi you is for find? did “Q. What Well, teacher to the school such recommend I in the outset “A. opinion board to and for the school board Mrs. Talbert’s work prove and au- up par, such recommendation all fair- but with come superintendent lady to enter into thorize the who had been I talked to a ness superin- whereupon years, contract for a number in the business formal make an official and tendent does her I told what T. C. Rounseville. Mrs. pur- expected with the teacher written contract and what had been done pro- statutory thought course suant to such her was that she answer cedure.” had done Mrs. Talbert 16, 1962, suit on June This was filed since employment, testified reinstating on June heard the Court policy Board had application tempo- litigation, for a and denied and since involved teachers good restraining rary affidavits, work on litigation order not conducive counter-affidavits, Denial that Talbert and exhibits. litigant, from the might litigation based conclusion was involved being his Court that it asked to restrain decision. influence some hiring replace other reasons another teacher However, stated he already Talbert, her Teacher which had been prompted to recommend refusal his *4 accomplished uncooperative prior to com- the time the Board, her to such as plaint was was tried The Government filed. case be- school.4 at the attitude attempted testimony and fore the on its evidence rebut the Su- Court merits to of by days approximately perintendent four Martin was taken for witnesses good during twenty school, work at and which time testified to her over witnesses improve library, etc. were of exhibits her to heard and number efforts were introduced evidence. /f] appellees proved that at two least After all received, quali- evidence been of at school the teachers are the Trial registered voters; Court replace- made rather fied, extensive Talbert’s finding may of ment, Hayes’ facts which be sum- Mar- Turner, was both and marized employment as they follows: The tin’s first choice at the time hired existing contract they Talbert, impres- between Talbert under but were County the Greene Board sion Turner was when of Education that unavailable only related session, to employed; the 1961-62 was Talbert was none completely performed by parties pellees anything both on all to with has do May registration voting George provi- County 1962, and it contained no or sion renewal, rehiring.. County; extension or or even in Greene that any Talbert employment promises,, never received other several teachers ex- press implied, or previous that she would on be been terminated occa- re- employed being litigation. and as a matter of sions for involved she complained following sbe if occasion arose is from Martin’s affidavit: stay only (cid:127)she had to at school other new teachers than her “Contracts with are regular teaching year part period hours to take for a of one entered into years by necessary school activities which are a stead of three authorized stat- part responsibilities good of the duties and ute for the reason that school ad- necessary part a teacher and a ministration dictates that new teach- ed- program given period employment ucational and in the er be a trial education of performs a child. The action of to see how that teacher Ernestine Den- teach- ing During accepting ham responsibilities. Talbert her trial re- sponsibilities period, did, other teachers new teachers observed and among carefully pro- caused dissention their some of work is cheeked the oth- Also, competence performance er teachers. Ernestine Denham fessional Tal- personal very poor extra-curricular activities incident to the bert had and social system. Principal, school Mack Arthur relations with the “During year Hayes, year. school I the 1961-62 of the school toward end investigation personal made a “For of each reasons heretofore stated it year. my employed new for that In- teacher was that Ernestine Denham conclusion investigation profes- cluded in this was Ernestine Talbert did not meet with the My competency Denham Talbert. observation sional I deemed be professional competency County of this teacher to the best interest of the Greene teaching system System. making school her with the School this in- After generally vestigation reaching that was Ernestine Denham Tal- and observation good professional conclusion, bert this [sic] did not have determine for an social relations with some of the the event she were recommended other accept teachers. She would not her re- additional contract the recommendation sponsibilities my approval.” in extra-curricular would activi- not meet with ties, teacher, such as home room teaching position application pre- for a Basic our review the issues made being by appeal (a) informed school before are: in another sented whether was not to rehired. facts found She Trial she was Court are principal supported by substantial, but her first recommended credible evi- accept ; Superintendent and, (b) would not Martin dence whether the facts found legal principal support and the conclusions the recommendation reached. requested recommend another The Government Trial contends concluding: Generally are em- Court new teachers error teacher. committed replace- (a) year prove ployed there a one basis. A failure that the appellees employed 1971(b); violated ment named Turner was U.S.C.A. § (b) appellees place had not intimidated of Talbert and she take the Negroes salary employed Mrs. Talbert and and was for the at a lesser preferred principal the Su- their vote; and, (c) perintendent In should over Talbert. view appellees Superintendent not order the offer a made contract the fact employment Board, It is Talbert. further to the no recommendation *5 rehiring contended the that Court should have Talbert never of matter failing found by that in upon rehire Talbert Board. to the or considered acted appellees the were motivated with De- Justice with The affidavit filed the purpose intimidate, “intent or to threat- by partment was instrumental Talbert en, apprehension” or restraining coerce or in inducing create of the order a Negroes registering reg- mind of the about permitted Talbert which to voting; or am- Government qualified the to vote ister a voter and as ply proved requirements of the the The stat- primary June, election. the prove ute and did categorically “acts intimidation of Superintendent denied purpose done for of the with re-employment to recommend his refusal right the to vote.” It insisted that the rights is by any activi- civil was motivated applied standard of review to ; such refusal ties and asserted purpose study coerce, is in is issue “to case designed intimidate, to weighing whole, as a all of the evidence Talbert threaten, influence or otherwise and rational in order to reach against register- inferences Negro or other teachers 5 argued a net It is result.” further that although ing vote, voting, the Su- or to required reversal would be “even if the perintendent disapprove Talbert did of 'clearly 52(a) of Rule litiga- erroneous test’ becoming any type involved applied.” Fed.R.Civ.P. were other tion, to rehire refused long be- reason not same teachers clearly The erroneous rule is It concluded was filed. was fore this suit jurispru so well established in federal did ever that none the defendants authority dence that citation of is un rights anything the civil violation necessary. by 52(a) We are bound Rule Negro any or other Talbert appeal On is Fed.R.Civ.P. our decision proof. plaintiff had in its failed by weighing not reached evidence Court considered that Talbert determine on which of the side lawsuit and that to a contract vested new preponderance is there of evidence. defendants, by to re- none of failure “purpose” was “intent” or fact that any or intent her, hire did act Trial Court in the an issue change does coerce, threaten, rule. determination any apprehension the mind or create motive, purpose, also design, or intent is registering any Negro vote testimony produced upon dependent voting trial, rehire which the credit or and that failure gives to the witnesses facts trier of did effect. such Appeals, (Court Fair, 5th F.2d 341 305 Appellant standard such a claims that Cir., 1962). of Meredith case is in the established
45
they
testify
appear
terms before
cluded that
bear
different
ore
meaning
Findings
mo-
from that for which
intent,
Court.
as
design
tive, purpose,
not to be
Government contends.
are
findings
novo,
de
such
tried
but
say
ought
unnecessary to
“It
to be
by
same standards
be reviewed
appeals by
applies to
that Rule 52
reviewing
plied
facts. The rule
other
as well as
those
Government
clearly
Yel-
in United States v.
stated
litigants. There is no ex-
Company,338
70 S.Ct.
low Cab
177,
U.S.
ception
permits it,
in an
even
(1949),
94 L.Ed.
150
wherein
case,
to this Court
antitrust
to come
same contention was made
the Gov-
virtually
what
to trial
amounts
emphati-
ernment.
The contention
find-
de novo on the
such
record
cally rejected.
ings
design.”
intent,
motive
asks,
rulings
“What the
Government
To the
are recent
same effect
try
effect,
the case
novo
Corporation
we
de
Oaks
Court. Galena
reject nearly
record,
(5th Cir.1954)
217;
Scofield,
F.2d
findings
court,
(5th
sub-
Cir.1961)
trial
States,
Smith v. United
findings
contrary
stitute
299;
Service,
our own.
Farm
Modern
Specifications of
Cir.1962)
error which are
(5th
Inc.
Inc.,
v. Ben Pearson,
fundamental to its case ask us to re-
Supreme
delicate, which T. Grant v. W. United States discretion, or and sound deliberation, L.Ed. 629, 73 S.Ct. Co., 345 U.S. case, than dangerous in doubtful more ** 1303. (1952): decision chancellor’s “The injunction; issuing an circumstances; his based on e Circuit is applicabl in the Fifth rule necessarily broad is Judge discretion strong succinctly Hutcheson stated showing made must of abuse Blanchard, Company v. Transfer Reliable it.” to reverse Cir.1944) (5th pro- appellant arguing, “In thus Judged by standards herein wholly incorrect as- ceeds sumption that, find that the cannot conclude outlined we conceding power, the ings clear Trial are Court injunctions was issuance contrary, ly erroneous, are we but on the mandatory. It horn book law that is findings firmly such convinced that equity exercise discre- ‘Courts amply supported by evidence. substantial tionary granting power in the not abuse its discre The Trial Court did withholding extraordinary of their grant refusing the extraordi tion nary remedy although remedies, and that dis- permanent sought, a man cretionary power restricted datory injunction. any particular remedy, particu- it is In we view our conclusions do larly injunction applicable to since interpretation of the Trial reach Court’s strong equity arm of is the Mississippi applicable law in cases great calls caution and deliber- school teachers educa- boards ” part ation on the of the court.’ tion, and the conclusion of Trial [Citing again “Here cases.] it granting relief horn book “ law that whether * * * sought would be to make junction will or will not issue rests contract and then it.” enforce within the sound discretion *7 court, exercise judgment is affirmed. discretion will not be disturbed un- Judge (concurring RIVES, Circuit less there has been a clear abuse specially): it, Am.Jur., 180, p. Sec. 936.” properly The Government concedes Walling See also v. Florida Hardware that: Company, (5th Cir.1944) 1971(b)] U.S.C. [42 “The statute wherein the Court concluded: But “re proof essentially requires of two by injunction lief discretionary is (1) facts: there ultimate maaybe denied does coercion, intimidation, threat, or an danger deem repetition there of a attempt threat- or an unlawful Mack, conduct.” W. A. Inc. coerce, (2) en, (7th Cir.1958) General Motors Corp., purpose of timidation for the F.2d states the Seventh Circuit “ * * * with to vote.” mandatory rule junctions in be: think, rarely (1) estab- is, I issued and inter fact Ultimate locutory testimony mandatory injunctions undisputed are even lished rarely issued, except the reasons more one of neither least effect that why grounds.” re-employed equitable the clearest Talbert was Mrs. in the Government’s must clear her involvement Trial Court was voting of the Discretion majority, agree ly appellate will suit.1 courts abused before board, county approval not a State, (1960), it is 6. 121 So.2d In Lott v. function, judicial the extent Supreme Mississippi, determine in in- the terpreting applicable provisions Lott and facts affected which those various Code, Mississippi “Al- board.” of the though political stated: considera- and factional (R. 408) : Superintendent Martin testified 1. a recom- enter into tions should not nothing Mrs. county superintendent “Q. But there mendation finding district however, that the failed the Government
court2 proving ultimate burden meet its clearly (2) erroneous. For affirming judge- reason I concur
ment dismissal. individual, BOURNE, an
Bonnie d/b/a Co., Petitioner, Bourne RELATIONS LABOR
NATIONAL BOARD, Respondent. 408, Docket 28583.
No. Appeals
United States Court Circuit. Second May
Argued 1964. May
Decided *8 Beck, Phillips, Nizer, Walter Ben-
jamin, City Ballon, Krim & New York (Charles Moos, Weinberger Fink, J. Levin, City, brief), & New York on the petitioner. for performance Gov- found that of her 2. The district duties Talbert’s prove by pre- you had failed to recommend her? ernment caused (R. 612) ponderance cooperation : of the evidence lack of “A. things It was “ * * * defendants, mentioned, plus either of the rehiring her, any litigation did so with involved in in not she was good threaten work tent was not conducive any apprehension good getting or create the best or coerce from her nor negro registering good rela- mind of from the school nor ** voting county among was a con- his tions the teachers. It and/or matter.” troversial