ALABAMA, NORTHERN DIVISION

The damage caused by the tort-caused breach of this . . . Mississippi-centered contract resulted in the nonpayment in Mississippi of amounts due there. Under these circumstances, the due process requirements of sufficient contact with Mississippi and foreseeable involvement with its law are met by the intentional acts of the non-resident defendants that caused a breach of a Mississippi-centered contract and resultant damage in Mississippi.

681 F.2d at 1012. In all of the above cases the appellate courts generally reasoned that where a nonresident defendant had engaged in a deliberate, nonfortuitous tortious act in the forum state or caused such an act in the state, he could reasonably foresee that suit in the forum state would ensue; and, as a result, in such circumstances the required affiliating circumstances [**19] were present to such a degree as not to offend traditional notions of fair play and substantial justice by hailing the defendant into a court in the forum state.

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n7 See, e.g., World-Wide Volkswagen Corporation v. Woodson, 444 U.S. 286, 100 S. Ct. 559, 62 L. Ed. 2d 490 (1980); Kulko v. Superior Court of California, 436 U.S. 84, 98 S. Ct. 1690, 56 L. Ed. 2d 132 (1978); Hanson v. Denckla, 357 U.S. 235, 78 S. Ct. 1228, 2 L. Ed. 2d 1283 (1958); McGee v. International Life Insurance Co., 355 U.S. 220, 78 S. Ct. 199, 2 L. Ed. 2d 223 (1957).

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However, when dealing with corporate officers and employees, such as Wills, in their individual capacity, a court must consider another factor: personal jurisdiction over corporate officers and employees in their individual capacity may not be predicated merely upon personal jurisdiction over the corporation itself; rather, a court must look to the individual and personal contacts, if any, of the officers and employees with the forum state. Dudley v. Smith [**20] , 504 F.2d 979, 982 (5th Cir.1974); Costin v. Olen, 449 F.2d 129, 131 (5th Cir.1971).

Courts in determining whether corporate officers and employees are subject to personal jurisdiction have drawn a distinction between circumstances where the officers and employees are charged with liability based on tortious conduct and circumstances where they are charged with liability based on nontortious conduct. Compare Dudley v. Smith, supra, with Costin v. Olen, supra; see also Donsco, Inc. v. Casper Corp., 587 F.2d 602, 606 (3rd Cir.1978); Hoffman v. Chandler, 431 So.2d 499, 17 A.B.R. 1158, 1161-62 (Ala. 1983). But see, Marine Midland Bank v. Miller, 664 F.2d 899, 920 (3d Cir.1981); Weller v. Cromwell Oil Co., 504 F.2d 927 (6th Cir.1974); Thames v. Gunter-Dunn, Inc., 373 So.2d 640 (Ala.1974). n8 In Alabama, as in most states, the general rule is that officers or employees of a corporation are liable for torts in which they have personally participated, irrespective of whether they were acting within their corporate authority. Chandler v. Hunter, 340 So.2d 818, 822 (Ala.Civ.App.1976); see also Escude Cruz v. Ortho Pharmaceutical Corp., 619 F.2d 902, 907 (1st [**21] Cir.1980); Donsco, Inc. v. Casper Corp., supra, 587 F.2d at 606; Donner v. Tams-Witmark Music Library, Inc., 480 F. Supp. 1229, 1233 (E.D.Pa.1979). Therefore, if there is evidence that officers and employees of a corporation have personally engaged in a tort in the forum state either by personally taking part in the tort in the forum state or by knowingly directing other officers and employees or any agent of the corporation to commit a tort in the forum state, then personal jurisdiction over the officers or employees is present because, as this court has already stated, the commission in the forum state of "commonplace torts" generally satisfies the above described two-pronged test which must be satisfied for personal jurisdiction to be present. Rebozo v. Washington Post Co., supra, 515 F.2d at 1214; see Costin v. Olen, supra; Simon v. United States, supra; Edwards v. Associated Press, supra; see also Donsco, Inc. v. Casper Corp., supra; Donner v. Tams-Witmark Music Library, Inc., supra; Hoffman v. Chandler, supra. Therefore, although evidence that officers and employees of a corporation with the requisite minimum [*514] contacts with the forum state were mere [**22] alter egos of the corporation might sustain the assertion of personal jurisdiction over the officers and employees in the forum state, see Dudley v. Smith, supra, the absence of such evidence does not necessarily compel the conclusion that personal jurisdiction over the officers and employees is lacking when a claim is based on alleged tortious conduct in the forum state. Similarly, although evidence as to whether officers and employees of a corporation with the requisite contacts with the forum state acted within their corporate authority might in some circumstances be relevant, see Thames v. Gunter-Dunn, Inc., supra, such evidence is not necessarily determinative as to whether personal jurisdiction over the officers and employees is present when a claim is based on alleged tortious conduct in the forum state.

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n8 Although this court has cited several Alabama cases, it should be noted that "the issue of jurisdiction under Alabama's long arm statute is not controlled by state law but rather is a question of federal due process." Dudley v. Smith, supra, 504 F.2d at 982.

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The court is of the opinion that based upon the above evidence and principles of law such minimum contacts have been shown as to Redemption Ranch, Inc., the home, and Wills. Within recent years, Wills and young people from the Bethesda Home as well as the boys home have made trips into Alabama to publicize the homes, solicit money, and recruit more young people. Pursuant to a referral network set up in Alabama by these trips, young girls from Alabama have been referred to the Bethesda Home. The Bethesda Home and Redemption Ranch have solicited and received substantial contributions from Alabama residents in the form of contributions made during the trips, contributions made by the parents and guardians of Alabama girls at the Bethesda Home, and contributions from other Alabama sources. The Bethesda Home and Redemption have sent numerous mailings into Alabama requesting financial support. These contacts alone are sufficient to sustain personal jurisdiction over Wills, Redemption and the Bethesda Home. See Prejean v. Sonatrach, Inc., 652 F.2d 1260, 1265 (5th Cir.1981); Garrett v. Key Ford, Inc., supra. But more significantly, there is substantial evidence that the defendants, [**24] through John Knudsen, fraudulently lured Candy from Montgomery, Alabama to the Bethesda Home; thus, there is evidence that the defendants have engaged in deliberate tortious activity within Alabama. Knudsen's recommendation to Candy that she go to the Bethesda Home was based on knowledge he had received from Wills during his choir trips to Montgomery. See Simon v. United States, 644 F.2d 490, 499 (5th Cir.1981) (if "a tortfeasor used a commercial messenger (ignorant of the contents of the message delivered) to lure a Louisiana resident into Mississippi for the purpose of committing a tort upon him in Mississippi, the act of the messenger in delivering the message is no less the act of the tortfeasor than if the tort-feasor had himself personally delivered the message"). Furthermore, final arrangements for Candy to go to Bethesda were by telephone conversations between Knudsen and Wills as well as directly between Wills and Candy. n9

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n9 The defendants advance the interesting argument that first amendment considerations in this case require "a greater showing of contact" in order to satisfy the due process clause. In this circuit, as the defendants correctly note, when a nonresident publisher is sued for libel, the issue of personal jurisdiction is subject to first amendment considerations which "require a greater showing of contact to satisfy the due process clause than is necessary in asserting jurisdiction over other types of tortious activity," Cox Enterprises, Inc. v. Holt, 678 F.2d 936, 937 (11th Cir.1982), quoting New York Times Co. v. Connor, 365 F.2d 567, 572 (5th Cir.1966) (emphasis added). The theory behind these first amendment considerations is that "an expansion of jurisdiction to the limits permitted by due process in other types of cases" would "tend to have a 'chilling' effect on the press because publishers would hesitate to distribute their newspapers in any areas other than those of their major circulation." Cox Enterprises, Inc. v. Holt, supra, 678 F.2d at 937-38.

Whether the "greater showing of contact" test will be expanded by this circuit to include religious activity is an issue this court need not address at this time. If one assumes that the test does apply to religious activity, the evidence of the defendants' contact with the forum state in the instant case amply meets the test.

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B. Motion to Dismiss for Failure to State a Claim

42 U.S.C.A. § 1985(3) provides a cause of action against any one of "two or more [*515] persons in any State or Territory [who] conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws . . . ." Section 1985(3) will support a claim for injunction, declaratory relief, or damages. Scott v. Moore, 680 F.2d 979 (5th Cir.1981) (en banc), cert. granted sub nom. United Brotherhood of Carpenters Local 610 v. Scott, 459 U.S. 1034, 103 S. Ct. 442, 74 L. Ed. 2d 599 (1982); Mizell v. North Broward Hospital District, 427 F.2d 468, 473 (5th Cir.1970). In Griffin v. Breckenridge, 403 U.S. 88, 91 S. Ct. 1790, 29 L. Ed. 2d 338 (1971), the Supreme Court "accord[ed] the words of the statute their apparent meaning" and held that section 1985(3) provided a civil remedy against the wholly private infringement of constitutional rights. 403 U.S. at 97, 91 S. Ct. at 1795. In that case the Court held that private conspiratorial infringements [**26] were actionable when the alleged conspiracy involved "invidiously discriminatory motivation:"

The language requiring intent to deprive of equal protection, or equal privileges and immunities, means that there must be some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action. The conspiracy, in other words, must aim at a deprivation of the equal enjoyment of rights secured by the law to all.

403 U.S. at 102, 91 S. Ct. at 1798 (footnotes omitted) (emphasis in original). Since Griffin, federal courts have applied section 1985(3) in a variety of contexts. See, e.g., Scott v. Moore, supra, (union violence); Ward v. Connor, 657 F.2d 45 (5th Cir.1981), cert. denied 455 U.S. 907, 102 S. Ct. 1253, 71 L. Ed. 2d 445 (1982) (deprogramming of religious group member); Life Insurance Co. v. Reichardt, 591 F.2d 499 (9th Cir.1979) (employment discrimination against women); n10 Means v. Wilson, 522 F.2d 833 (8th Cir.1975), cert. denied, 424 U.S. 958, 96 S. Ct. 1436, 47 L. Ed. 2d 364 (1976) (Indian tribal elections); Glasson v. City of Louisville, 518 F.2d 899 (6th Cir.), cert. denied [**27] , 423 U.S. 930, 96 S. Ct. 280, 46 L. Ed. 2d 258 (1975) (political protest); Smith v. Cherry, 489 F.2d 1098 (7th Cir.1973), cert. denied, 417 U.S. 910, 94 S. Ct. 2607, 41 L. Ed. 2d 214 (1974) (state political primary); Cameron v. Brock, 473 F.2d 608 (6th Cir.1973) (supporters of a political candidate); Action v. Gannon, 450 F.2d 1227 (8th Cir.1971) (disruption of religious services); Vietnamese Fishermen's Ass'n v. Knights of the Ku Klux Klan, 518 F. Supp. 993 (S.D.Tex.1981) (Klan disruption of alien fishing activity); Rios v. Marshall, 530 F. Supp. 351, 361 (S.D.N.Y.1981) (domestic migrant workers). The former Fifth Circuit's recent application of section 1985(3) in the context of a violent labor dispute articulated the standards by which this court must evaluate the claims of the instant case. Scott v. Moore, supra, 680 F.2d at 987-96. n11 Based on Griffin and the subsequent Fifth Circuit case of McLellan v. Mississippi Power & Light Co., 545 F.2d 919 (5th Cir.1977) (en banc), the court in Scott set out the following five elements necessary to establish a section 1985(3) cause of action:

(1) the defendant must conspire or go in disguise [**28] on the highway or premises of another;

(2) for the purpose of depriving, either directly or indirectly, any person or class of persons of equal protection of the laws, or of equal privileges and immunities under the laws; and

[*516] (3) one or more of the conspirators must commit some act in furtherance of the conspiracy; whereby

(4) another is either (a) injured in his person or property or (b) deprived of having and exercising any right or privilege of a citizen of the United States; and

* * *

(5) that the conspirators' conduct must be unlawful independent of the section 1985(3) violation.

680 F.2d at 987.

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n10 Reichardt, however, was implicitly overruled by the Supreme Court in Great American Federal Savings & Loan Ass'n v. Novotny, 442 U.S. 366, 99 S. Ct. 2345, 60 L. Ed. 2d 957 (1979), which held that employment discrimination as defined under Title VII of the Civil Rights Act of 1964 may not be addressed in the remedial framework of § 1985(3) because of the nature of Title VII's own remedial provisions.

n11 Contrary to the October 12, 1982, assertion of the defendants, this court is bound by Scott v. Moore and the other former Fifth Circuit cases cited unless and until the decisions are modified by the Eleventh Circuit en banc or reversed by the U.S. Supreme Court. Bonner v. City of Prichard, Alabama, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc); Banco Nacional v. Cooper, 680 F.2d 727, 730 n. 3 (11th Cir.1982).

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In this case it is clear that the plaintiffs have made sufficient allegations to withstand judgment as to the first, third, fourth, and fifth elements of the section 1985(3) cause of action. The complaint alleges an ongoing agreement among the defendants and their agents to bring girls to the Bethesda Home, to impose the home's rules on the girls, and to enforce those rules by strict supervision of the girls and by corporal punishment. In addition, the plaintiffs have alleged the common law torts of fraud, misrepresentation, and false imprisonment as to themselves as well as assault and battery as to the class. See, e.g., Kaye v. Pawnee Construction Co., 680 F.2d 1360, 1366 (11th Cir.1982); Earnest v. Pritchett-Moore, Inc., 401 So.2d 752 (Ala.1975); McMahon v. McMahon, 247 Miss. 822, 157 So.2d 494 (Miss.1963); Martin v. Santora, 199 So.2d 63 (Miss.1967); Snowden v. Osborne, 269 So.2d 858 (Miss.1972); W. Prosser, Law of Torts, 37, 41, 42, 683 (4th ed. 1971). For the purpose of the defendants' motion, therefore, the plaintiffs have satisfied the conspiracy requirement, the act in furtherance of the conspiracy, the alleged injury, and the requirement of independent [**30] unlawfulness.

The second element of the section 1985(3) cause of action, however, requires this court to evaluate the allegations of the plaintiffs to determine whether the alleged conspiracy can be said to have been "for the purpose of depriving, either directly or indirectly, [the plaintiffs] of the equal protection of the laws." Scott v. Moore, supra, 680 F.2d at 987. As the court in Scott v. Moore noted, this requirement in turn has two components: (1) the violation of some protected right, and (2) class-based discriminatory animus. Id. In this case the named plaintiffs primarily complain of restrictions on the fundamental liberty interests of (i) the right of reproductive autonomy, see, e.g., Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965); (ii) the right of familial association, see, e.g., Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982); and (iii) the right to travel, e.g., Griffin v. Breckenridge, supra. Because it is firmly established that the right to travel is an assertable right under section 1985(3), Griffin v. Breckenridge, supra, the court need not reach the plaintiffs' other asserted [**31] rights at this point.

The final issue, therefore, is the requirement that the plaintiffs sufficiently allege the existence of class-based discriminatory animus. In Scott v. Moore the former Fifth Circuit identified two types of classes which may claim protection within the context of section 1985(3). These are (i) classes "having common characteristics of an inherent nature," in other words, "those kinds of classes offered special protection under the equal protection clause," id., 680 F.2d at 991; and (ii) nonprotected classes which are nevertheless found to be "the kinds of classes Congress was trying to protect when it enacted the Ku Klux Klan Act," of which section 1985(3) is a part, id.

In this case the court finds that the allegations of the plaintiffs bring the plaintiffs within the ambit of section 1985(3)'s requirement of class-based animus. To begin with, the court must discuss the class or classes involved in this suit. Without ruling out several possible alternative definitions, the court finds it sufficient that with regard to both Candy and Tonya the plaintiffs in this case have alleged discriminatory animus on the basis of their juvenile, minor, or [**32] unemancipated female status, and in particular on their characterization as delinquent or wayward girls; and it is sufficient that with regard to Candy they have claimed a class of young, unmarried pregnant females. The allegations of the plaintiffs [*517] reflect that these classes were the basis for the challenged actions of the defendants toward the plaintiffs.

This court is of the opinion that these classes may fall within the ambit of section 1985(3)'s protection under the equal protection clause. While the Supreme Court has not accorded "suspect class" treatment to juveniles, wayward girls, or young unmarried pregnant women, the Court has recognized that some of these groups are in fact entitled to "intermediate scrutiny" under the equal protection clause. See Plyler v. Doe, 457 U.S. 202, 217-18 & n. 16, 102 S. Ct. 2382, 2395 & n. 16, 72 L. Ed. 2d 786 (1982) (discussing the court's role based on "intermediate" scrutiny). The Supreme Court has recognized that unemancipated children are deserving of special consideration because they "can affect neither their parents' conduct nor their own status." Plyler v. Doe, supra, 102 S. Ct. at 2396 (children of illegal [**33] aliens denied public education). n12

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n12 See also Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982) (vital interests of parent and child in parental rights termination proceedings); Parham v. J. R., 442 U.S. 584, 601-07, 99 S. Ct. 2493, 2504-06, 61 L. Ed. 2d 101 (1979) (juvenile commitment proceedings); Planned Parenthood v. Danforth, 428 U.S. 52, 72-75, 96 S. Ct. 2831, 2842-44, 49 L. Ed. 2d 788 (1976) (minor's rights in abortion procedures); In re Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967) (juvenile proceedings).

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The defendants, however, urge an additional reason for dismissal of the plaintiffs' claims. They contend that their actions at the Bethesda Home were and are fully protected by their first amendment right of free exercise of religion. While this court recognizes the defendants' right to first amendment religious freedom, the court must point out that there is a fundamental distinction between "freedom to believe and freedom to act." Cantwell [**34] v. Connecticut, 310 U.S. 296, 303-04, 60 S. Ct. 900, 903, 84 L. Ed. 1213 (1940). The freedom to believe is absolute while the freedom to act "remains subject to regulation for the protection of society." Id. The duty of the court is to weigh the competing interests at issue in any dispute in order to evaluate a particular claim of free exercise of religion. United States v. Middleton, 690 F.2d 820 (11th Cir.1982). The court, however, must give substantial deference to religious practice. As the Supreme Court stated in Wisconsin v. Yoder, 406 U.S. 205, 215, 92 S. Ct. 1526, 1533, 32 L. Ed. 2d 15 (1972): "The essence of all that has been said and written on the subject is that only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion." In the context of the allegations made in this case, the court recognizes the plaintiffs' right to travel to be "of the highest order," and not otherwise protectable than through the vehicle of court action. n13

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n13 The court notes that the defendants' motion to dismiss for failure to state a claim states that said motion "is based upon the records, pleadings and files in this action . . . ." Material other than the pleadings may not be considered on such a motion. Fed.R.Civ.P. 12(b)(6). However, were the court to consider the evidence on a motion for summary judgment, it is clear that the evidence raises issues which would preclude judgment in favor of the defendants. Fed.R.Civ.P. 12(c); 56(c).

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IV. MOTION FOR PRELIMINARY INJUNCTION

Article Three, section two, of the United States Constitution provides that the judicial power of the United States shall extend to certain "Cases" and "Controversies." As a result, federal courts will not decide suits in which parties lack standing, which call for the issuance of advisory opinions, or which present moot questions. A case becomes moot "when the issues presented are no longer 'live' or the parties lack a legally cognizable interest in the outcome." United States Parole Comm'n v. Geraghty, 445 U.S. 388, 396, 100 S. Ct. 1202, 1208, 63 L. Ed. 2d 479 (1980), quoting Powell v. McCormack, 395 U.S. 486, 496, 89 S. Ct. 1944, 1950, 23 L. Ed. 2d 491 (1969). Because of the "case or controversy" requirement of Article III, mootness in federal litigation deprives the court of jurisdiction over the case. Id.; North Carolina v. Rice, 404 U.S. 244, 246, [*518] 92 S. Ct. 402, 404, 30 L. Ed. 2d 413 (1971); Liner v. Jafco, Inc., 375 U.S. 301, 306 n. 3, 84 S. Ct. 391, 394 n. 3, 11 L. Ed. 2d 347 (1964). n14 Mootness may result from a number of causes, including expiration of the plaintiff's claim, satisfaction of the claim by [**36] the defendant, cessation of the unlawful conduct without likelihood of repetition, or by interim remedy of the court itself which renders the dispute unlikely to recur in the future. United States Parole Comm'n v. Geraghty, supra; Deposit Guaranty National Bank v. Roper, 445 U.S. 326, 100 S. Ct. 1166, 63 L. Ed. 2d 427 (1980); County of Los Angeles v. Davis, 440 U.S. 625, 99 S. Ct. 1379, 59 L. Ed. 2d 642 (1979). n15

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n14 The existence of a case or controversy is a necessary prerequisite to jurisdiction regardless of whether the action is for injunctive relief, damages, or declaratory judgment; a plaintiff must present a "live" claim as to each type of relief he seeks as a matter of right. City of Los Angeles v. Lyons, 461 U.S. 95, 103 S. Ct. 1660, 75 L. Ed. 2d 675 (1983).

n15 See also Kremens v. Bartley, 431 U.S. 119, 97 S. Ct. 1709, 52 L. Ed. 2d 184 (1977); Franks v. Bowman Transportation Co., 424 U.S. 747, 96 S. Ct. 1251, 47 L. Ed. 2d 444 (1976); Preiser v. Newkirk, 422 U.S. 395, 95 S. Ct. 2330, 45 L. Ed. 2d 272 (1975); Board of School Comm'rs v. Jacobs, 420 U.S. 128, 95 S. Ct. 848, 43 L. Ed. 2d 74 (1975); Sosna v. Iowa, supra; SEC v. Medical Committee for Human Rights, 404 U.S. 403, 92 S. Ct. 577, 30 L. Ed. 2d 560 (1972).

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An exception to the rule that moot cases be dismissed applies to: (1) cases which are "capable of repetition, yet evading review," e.g. Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973), and (2) class actions in which a live dispute remains as to at least certain class members even though the named plaintiff's individual claim has become moot, e.g. Sosna v. Iowa, 419 U.S. 393, 95 S. Ct. 553, 42 L. Ed. 2d 532 (1975). Disputes which are capable of repetition yet evading review require a finding that (i) the challenged action is in its duration too short to be fully litigated prior to its cessation or expiration, and (ii) there is a reasonable expectation that the same complaining party will again be subject to the same action. Weinstein v. Bradford, 423 U.S. 147, 149, 96 S. Ct. 347, 349, 46 L. Ed. 2d 350 (1975); Sosna v. Iowa, supra. As for class actions in which the named plaintiff's claim becomes moot before full adjudication of the substantive issues, the court will allow the suit to go forward as a class action when (i) the class has been certified prior to the mooting of the plaintiff's claims, or (ii) the class certification "relates back" to the [**38] filing of the complaint or request for certification. See, e.g., United States Parole Comm'n v. Geraghty, 445 U.S. at 404-05, 100 S. Ct. at 1213-14; Gerstein v. Pugh, 420 U.S. 103, 95 S. Ct. 854, 43 L. Ed. 2d 54 (1975); Swisher v. Brady, 438 U.S. 204, 98 S. Ct. 2699, 57 L. Ed. 2d 705 (1977); Sosna v. Iowa, supra 419 U.S. at 403 n. 11, 95 S. Ct. at 559 n. 11. Class certification may relate back when (i) the named plaintiff's claim has expired as a result of the transitory nature of the claim; (ii) the defendant has purposefully mooted the claim; or (iii) some other action has occurred between the filing of the suit and certification which unreasonably impairs the plaintiff's right to seek judicial review. See, e.g., Zeidman v. J. Ray McDermott & Co., 651 F.2d 1030, 1045-51 (5th Cir.1981). Whenever class certification relates back, the named plaintiff has standing to pursue the issue of certification regardless of the mootness of his or her individual claim. The court's duty at the time of passing on the certification question after the mooting of the named plaintiff's claim, however, is to determine: (i) whether there remains a live case or controversy between [**39] the defendant and at least some members of the class the plaintiff seeks to represent, and (ii) whether the named plaintiff remains a proper class representative. Armour v. City of Anniston, 654 F.2d 382 (5th Cir. Unit B 1981); Zeidman v. J. Ray McDermott & Co., supra; Satterwhite v. City of Greenville, 634 F.2d 231 (5th Cir.1981) (en banc).

In this case the evidence reflects that neither Candy nor Tonya will ever again be subjected to the Bethesda Home's challenged practices. After this court granted the motion for temporary restraining order filed with the complaint on February [*519] 10, 1982, Candy was released from the home. She returned to her mother in Montgomery, and has no stated desire to return to the Bethesda Home. A similar set of circumstances accompanied Tonya's release from the home. While the plaintiff's attorneys were conducting depositions at the home immediately after the suit had been filed, Tonya told the attorneys that she was being held in fear of harm and desired to leave. Tonya then sought to intervene in this suit and moved for a temporary restraining order for her own release. The defendants, however, allowed Tonya to leave the home before [**40] this court had an opportunity to act on the motion for temporary restraining order. As with Candy, there is no evidence that Tonya wishes to return to the home or that the home seeks or would allow her return. Candy and Tonya contend, nevertheless, that they are entitled to injunctive relief, including preliminary injunctive relief, on behalf of the class of girls they seek to represent.

This case presents a situation in which it is realistically impossible for a plaintiff to keep an injunctive claim alive long enough to seek any lasting relief on behalf of others. In all instances, either immediate injunctive relief requiring the defendants to release a girl being kept against her wishes, as in Candy's case, or the defendant's "voluntary" relinquishment of a girl in the face of court action, as in Tonya's case, would render any future injunctive relief as to the particular girl involved unnecessary. Given this situation, this case may well fit within the narrow class of cases in which the named plaintiffs will be allowed to pursue class representation even though their individual claims for injunctive relief may be moot. See, e.g., Sosna v. Iowa, supra. The plaintiffs therefore [**41] should be allowed to pursue class representation.

However, whether the plaintiffs will ultimately succeed in certifying a class is an issue that need not be addressed by the court at this time, that is, on the plaintiffs' motion for preliminary injunction. For, assuming that the plaintiffs' class can be properly certified, the court is of the opinion that the plaintiffs' motion for preliminary injunction is still due to be denied. A preliminary injunction is "an extraordinary and drastic remedy," United States v. Lambert, 695 F.2d 536, 539 (11th Cir.1983), quoting Texas v. Seatrain International, S.A., 518 F.2d 175, 179 (5th Cir.1975); therefore, "its grant is the exception rather than the rule, and plaintiff must clearly carry the burden of persuasion," United States v. Lambert, supra. In order for injunction to issue, a district court must be satisfied that the moving party has clearly met all of the following four prerequisites:

(1) a substantial likelihood that plaintiff will prevail on the merits, (2) a substantial threat that plaintiff will suffer irreparable injury if the injunction is not granted, (3) that the threatened injury to plaintiff outweighs [**42] the threatened harm the injunction may do to defendant, and (4) that granting the preliminary injunction will not disserve the public interest.

Id., quoting Canal Authority v. Callaway, 489 F.2d 567, 572 (5th Cir.1974).

The evidence in the instant case reflects that in the wake of this lawsuit the defendants have changed a number of their practices -- e.g., there have been recent instances in which girls have expressed an interest to leave the home and have been allowed to leave freely. Also, the defendants profess that the girls who have elected to stay at the school have done so on the basis of voluntary and informed consent. Although there is some question as to whether these changes in the defendants' practices are reasonably permanent -- particularly in view of the defendants' claim that their pre-lawsuit practices were based on religious beliefs -- the court is nevertheless of the opinion that the extraordinary remedy of preliminary injunctive relief is inappropriate at this time in these proceedings -- that is, there is no evidence that the plaintiffs or the putative classes they represent will suffer irreparable injury if injunctive relief is not granted pending [**43] final disposition of this case.

An appropriate order will be entered in accordance with this opinion.

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In the Interest of M. I., a Minor

No. 58,159

Supreme Court of Mississippi

519 So. 2d 433; 1988 Miss. LEXIS 38

January 27, 1988, Decided
PRIOR HISTORY:

[**1] Appeal from County Youth Court, Forrest County, Michael H. Ward, Judge.

DISPOSITION: AFFIRMED.

COUNSEL: Daniel Jon Loomis, Rex K. Jones and T. Jack Riley, for Appellant.

Joe Gentile and Francis T. "Tom" Zachary, Jr., for Appellee.

JUDGES: Griffin, J. Roy Noble Lee, C.J.; Hawkins and Dan Lee, P.JJ.; Prather, Robertson, Sullivan, Anderson and Zuccaro, JJ. concur.

OPINIONBY: GRIFFIN

OPINION: [*434] This appeal arises out of the highly controversial and much publicized case of the Bethseda Home for Girls, a facility located in Forrest County, Mississippi, and operated by the Rev. W. B. Wills, appellant herein. Before this Court we have an Order by the Forrest County Youth Court adjudicating Rev. Wills to be in contempt of court, as well as an expanded order of permanent injunctive relief executed against the appealing party.

As error, Wills would have us determine, among other things, the legality of his home for girls, which has since undergone reorganization in addition to a change of hands. We are of the opinion that this issue is not properly before the Court, and decline to wade through this quagmire of constitutional dilemmas inappropriately assigned as error in the case at bar. It is for this Court to determine [**2] only whether the orders of the youth court are supported by statutory authority under Miss. Code Ann. §§ 43-21-101, et seq. (the Youth Court Act) and the case law thereunder.

In our purview of the record before us we find that the youth court, having properly taken jurisdiction in deciding the fate of M.I., was eminently correct in its decision. Therefore, the order of the lower court is affirmed.

BACKGROUND

The factual scenario preceding the appeal is this: sometime in early 1984, M. I., a minor resident of the home, ran away and was subsequently taken into custody by Forrest County officials. Pursuant to Miss. Code Ann. § 43-21-309 (1981), a hearing was held on March 30, 1984, to determine the status of the child.

From this hearing the special referee appointed to the case entered an order adjudicating the home to be a detention center within the meaning of the Youth Court Act, § 43-21-315 (1972), and the Rev. Wills to be its custodian of law. This order was not contested in the years following, and the [*435] designation of the facility as a detention center is admitted on appeal.

The special referee ordered a due process hearing for the remainder of the minors held within the home. [**3] The order included a temporary injunction against removal of any individual from the home, and production of a list of the residents "by 8 o'clock this evening," including the minors' names, ages, parents' addresses and telephone numbers.

This order, when appealed, was affirmed, and the temporary injunction was made permanent on September 24, 1984. Once again the court ordered production of a list of the residents, and this time the Rev. Wills was told to submit to the court the names of all girls entering the home after September 24 within seven (7) days of admission, "together with all documentation by which they claim said individual is lawfully held."

Rev. Wills complied with the orders insofar as providing lists of the residents on October 4, 1984, on May 6, 1985, and on July 16, 1985.

On September 8, 1986, the State of Mississippi by and through the Forrest County Youth Court Prosecutor, filed a motion for contempt against Redemption Ranch, Inc., d/b/a Redemption Ranch and the Bethesda Home for Girls, its employees and the Rev. B. R. Wills. This motion was premised upon a failure to comply fully with the youth court's previous orders.

On September 9, 1986, the Rev. Wills attempted [**4] to comply with the orders of the youth court; however, the list of names given to the court excluded the names of six (6) girls who had resided at the facility for longer than seven (7) days, as was stated in the September 24, 1984 order. Further, in the hearing on the motion for contempt, the court found that one hundred thirty-seven (137) minors had been removed from the state in violation of its order. Additionally, the court determined that there had been total non-compliance with its orders of documentation of the girls' names, ages, parents' addresses and phone numbers.

The court found the Rev. Wills to be in contempt, and expanded its previous injunction to include compliance with all regulations as contained within the interstate compact on the placement of children through the Department of Welfare of the State of Mississippi. (Said compliance entails inclusion of various state agencies, such as the State Fire Marshall, the Forrest County Health Department, and the Mississippi Department of Education, who are not parties to this action and are therefore not before this Court).

LAW

We note at the outset that placement of M. I. and the other minors in the detention center [**5] operated by the Rev. Wills subjected the girls to the jurisdiction of the youth court. The General Laws of the State of Mississippi, 1979, Chapter 506, Sec. 16, describe the Youth Court Act as one to establish youth courts; to set forth jurisdiction, procedure, personnel and other powers and duties thereof. Section 43-21-103 of the Act details its construction and purpose:

This chapter shall be liberally construed to the end that each child coming within the jurisdiction of the youth court shall receive such care, guidance and control, preferably in his own home, as will be conducive to the child's welfare and the best interest of the state, and that when a child is removed from the control of his parents, the youth court shall secure proper care for him.

Miss. Code Ann. § 43-21-103 (Supp. 1987) (emphasis added). It was, therefore, incumbent upon the court to ensure that the residents of the home received treatment in accordance with approval by the State.

The lower court in this review hearing having been established, we address next the power of the youth court to grant injunctive relief, and to cite appellant with contempt. The applicable statute here is § 43-21-153 (Supp. [**6] 1981) of the Act. This reads as follows:

(1) The youth court shall have full power and authority to issue all writs and processes including injunctions necessary [*436] to the exercise of jurisdiction and to carrying out the purpose of this chapter.

(2) Any person who willfully violates, neglects or refuses to obey, perform or comply with any order of the youth court shall be in contempt of court and punished by a fine not to exceed five hundred dollars ($ 500.00) or by imprisonment in jail not to exceed ninety (90) days, or by both such fine and imprisonment.

Miss. Code Ann. § 43-21-153 (1981).
Clearly the youth court had the authority to issue the temporary and permanent injunctions of March 30, 1984 and September 24, 1984, as well as the expanded injunctive relief of October 13, 1986. While appellant claims he had no notice of the provisions included in the court's last order, this simply is not so, and where new relief is granted, it involves agencies not parties to this action, as mentioned earlier.

Just as clearly the injunctions were not complied with, and so Wills has placed himself in contempt of court. The lower court, although citing Wills with contempt, declined to impose [**7] any punishment as is provided for under the statute. We leave the youth court's order to stand as it is, and impose no further fine or sentence upon appellant.

In the case of In Re Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967), it was held that neither the Fourteenth Amendment nor the Bill of Rights is for adults only.

Moreover, our cases have exhibited particular sensitivity to minors' claims to constitutional protection against deprivations of liberty by the State. Because loss of liberty is no less a deprivation for a child than for an adult, In re Gault, 387 U.S. at 27, we have held that a minor's right with respect to many of these claims is virtually coextensive with an adult's.