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Former U.S. Attorney General Griffin B. Bell made a rare courtroom appearance Thursday to defend Fulton County, Ga., library officials against a $16.6 million race discrimination verdict. Facing him across the courtroom was former Georgia Attorney General Michael J. Bowers. The 84-year-old Bell, however, took the podium before a federal appellate panel only after a judge had unceremoniously stripped Bell’s King & Spalding partner, Hoyt Lane Dennard Jr., of his main argument. Bell called the $16.6 million judgment “outrageous” and argued that county library officials deserved another day in court. Bell and Dennard were seeking a new trial for the executive director and three board members of the Atlanta-Fulton County Library system and relief from the $16.6 million judgment against them. Last year, Bowers and partner Kelly Jean Beard of Atlanta’s Meadows, Ichter & Bowers won a jury verdict on behalf of eight white county librarians who had claimed they were transferred from supervisory posts downtown to meaningless, menial jobs in branch libraries simply because they were white. Bogle v. McClure, No. 1:00-cv-2071 (N.D. Ga. May 10, 2002). The federal jury that heard the case, after asking for a chalkboard and a calculator to use in deliberations, had awarded Bowers’ eight clients nearly $25 million. U.S. District Judge Beverly B. Martin of the Northern District of Georgia later affirmed the jury’s findings but reduced the award to $16.6 million and held that one of the eight librarians, unlike her colleagues, had suffered no damages. After Martin signed the judgment last May, Fulton County Attorney Overtis Hicks “O.V.” Brantley asked Bell to handle the county’s appeal. Eleventh Circuit Judges Joel F. Dubina and Susan H. Black, and U.S. District Senior Judge Kenneth L. Ryskamp of the Southern District of Florida, were on the panel. Dennard stood first to argue on behalf of county library officials. “This case involved personnel decisions,” he told the panel. Both black and white library staff were transferred from the central library downtown to outlying branches “to serve the needs of those locations,” Dennard insisted. DUBINA INTERRUPTS Dubina soon interrupted. “From the jury trial, based on my reading of the case, certainly there was some evidence of discrimination,” the judge observed. Dennard then asked the panel to find that county library officials had qualified immunity from prosecution because they were public officials. The officials, he argued, had no way of knowing that the transfers of white staffers from supervisory to subordinate roles, without a pay cut, were against the law — one of the standards for obtaining that immunity. But Dubina interrupted a second time. “Everybody knows it’s against the law to transfer people on the basis of race, counselor. … That’s a no-brainer.” When Dennard insisted that library officials still were shielded from litigation, Dubina broke in a third time. “It seems to me that much of our old law in this circuit is no good any more,” the judge said. “Now the standard is: Is the law sufficient to warn someone?” Dubina was referring to Hope v. Pelzer, No. 01-309 (U.S. Sup. Ct. June 27, 2002) In that case, the U.S. Supreme Court last June overturned an 11th Circuit decision that granted Alabama prison guards qualified immunity from liability. A prison inmate had sued the guards after they tied him to a hitching post for hours without food, water or bathroom breaks. The 11th Circuit ruled that federal law on jailer conduct was not explicit enough to notify the guards that their actions were unconstitutional. But Supreme Court Justice John Paul Stevens, who wrote the majority decision, said that Alabama jailers would have had plenty of notice that what they were doing was unconstitutional and, thus, could not claim immunity. When Dennard pressed his qualified immunity argument, Dubina stopped him with a blunt assessment. “I don’t think much about your qualified immunity argument,” he said. Dubina then raised the only issue he said interested him. He suggested that the district judge may have erred by not instructing jurors that library officials could have had mixed motives, including nonracial ones, for transferring the white librarians. Had the jury found mixed motives for the transfer, they would have had to rule in favor of the defendants. Dubina said that, were he convinced the failure to give that charge was error, he would vote to remand the case for a new trial. Instead of following Dubina’s line of thinking, however, Dennard attempted to raise yet another qualified immunity argument. Dubina again interrupted, suggesting once more that the King & Spalding partner address the question of mixed motives. Then he asked Dennard, “What were the other motives besides race discrimination?” for the transfers. Dennard responded that the library system needed to transfer the librarians as part of a systemwide reorganization. Judge Black then asked whether county attorneys argued at trial that the librarians would have been transferred anyway, no matter what racist motives might be at work. “Was that argument made before the jury?” she asked. No, Dennard said. “Was the mixed motive allegation discussed throughout the trial?” Black asked. Dennard said he knew of no other point during the trial where mixed motives were discussed. BOWERS’ TURN Then it was Bowers’ turn. After introducing himself, Bowers announced he was setting aside his prepared argument to address the panel’s questions on mixed motives. The county’s attorneys had waived the issue of mixed motives for the transfers, he said. They argued that there was no discrimination, claiming that the librarians were transferred as part of a systemwide reorganization. But, “The evidence was overwhelming that there had been no reorganization,” Bowers argued. He said the library’s executive director testified that, eight days after the transfers were made, the library still had no reorganization plan. “There was no reorganization,” he told the panel. “It was a sham. The evidence didn’t support any reorganization.” Bowers also said the county had waived any argument regarding qualified immunity at the time of trial. “Let’s assume they haven’t waived it,” Dubina said. “ Hope v. Pelzer said all they had to have is fair notice,” Bowers responded. Moreover, he argued, even though the transferred librarians suffered no loss in pay, one of their supervisors “said everyone got demoted … . They went from managerial jobs to cleaning computer screens, cleaning out refrigerators, housekeeping … . These are middle-aged ladies with master’s degrees. How are they going to explain that? It was rampant, racial discrimination.” County attorneys, Bowers said, “never argued it as a mixed-motive case … . They just argued, ‘We didn’t discriminate, period.’” Dubina asked why a memo from Assistant County Attorney June D. Green to the library’s executive director — a memo that proved damaging to the county at trial — would not fall under the attorney-client privilege. In that memo, Green warned library officials that transfers must not be demotions or violate county personnel regulations and that they should be reviewed by the county’s personnel director before they were implemented. The library board, according to court records, ignored that advice. “It’s not attorney-client privilege because, under Georgia law, it’s an open record,” said Bowers. At the time the memo was written, it involved neither pending nor potential litigation, he said. “No lawsuit had been threatened. No lawyer had been hired.” BELL’S TURN Then it was Bell’s turn to address the court. Bell — a former 5th U.S. Circuit judge — explained to the three-judge panel that Dennard “had some trouble” answering questions posed by Dubina. That was because, Bell explained, “We were not in the trial.” Bell told the panel that “We are at least entitled to a new trial. The judge was asked to give a mixed motive charge. That wasn’t much to ask a judge to do.” Nor, Bell argued, was there evidence that the white librarian-plaintiffs were replaced by blacks. Instead, he said, their posts simply were eliminated. “It gets down to whether it was a reorganization,” he said. “It was a library that was predominantly white in a black city with a black school system and black school children. … They needed some people in the outlying branches.” He argued that “You can have a reorganization that is a mixed motive … . This is a mixed motive case. Punitive damages are outrageous. They didn’t lose any pay. They didn’t lose any rank … . They just didn’t find much to do when they got where they were going.”

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