670 N.W.2d 129 (2003)
Arnis and Lucille LAMBERTS, Appellants,
v.
John LILLIG, Appellee.
No. 02-0435.
Supreme Court of Iowa.
October 8, 2003.
*130 Stacey N. Warren of Babich, Goldman, Cashatt & Renzo, P.C., Des Moines, and Robert H. Laden of Laden & Pearson, P.C., Des Moines, for appellants.
Thomas J. McCann of Law Office of Thomas J. McCann, Des Moines, for appellee.
CADY, Justice.
In this appeal, we consider the constitutionality of another subsection of Iowa's grandparent visitation statute. As in Santi v. Santi, 633 N.W.2d 312 (2001) and In re Marriage of Howard, 661 N.W.2d 183 (2003), we conclude that the subsection of the statute at issue in this case is unconstitutional. We also consider and reject the appellants' argument that the district court erred in determining an alleged contractual agreement signed by the parties at the end of a mediation session was unenforceable. We affirm the ruling of the district court.

I. Background Facts and Proceedings.
Like Santi and Howard, this case involves a family wrenched apart by conflict over visits between grandparents and grandchildren. Arnis and Lucille Lamberts (Arnie and Lucy) are the maternal grandparents of two children, Robert and Alexis. Robert and Alexis' father, John Lillig (John), was married to Arnie and Lucy's daughter, Leslie. Tragically, Leslie died in April 1999 from complications arising from Alexis' birth.
Prior to Leslie's passing, Arnie and Lucy and the Lillig family maintained a strong familial bond, which included regular contact with one another. Arnie and Lucy took an active role in their grandson's life and no doubt looked forward to a similar role with their future granddaughter. After Leslie's death, the family members grew closer in many ways. Arnie offered John a job with his company, which allowed John to spend additional time with his children while also earning a living. Lucy took on the role of surrogate mother to Alexis, although Robert remained in day care to avoid disrupting his life any further. John and the children ate dinner with Arnie and Lucy every evening.
As the months passed, however, John began to regain his footing and the extended family spent less and less time together. A few months after Leslie's death, John chose to take Alexis out of Lucy's care and placed her at the day care that Robert attended. John explained that he did this to provide the children some continuity and togetherness and to assure that he had time alone with them during evenings. The family's nightly dinners also ended and visits became less frequent. Arnie and Lucy's consternation over the situation grew.
In November 1999, John met a woman, Amie, and the two began dating. As John and Amie's relationship advanced, the Lillig children's contact with their maternal grandparents declined further. The worsening visitation situation began to carry over into nearly every part of the family's interaction. At one point, Robert told Amie, "granny doesn't like you." Comments of this nature led to a confrontation between John and Arnie and Lucy and resulted in John quitting the job Arnie had given him after Leslie died. John also asked that Arnie and Lucy come to his home to visit the children rather than him bringing the children to them. Soon, the family's relationship had deteriorated to the point that they communicated only through emails.
In July 2000, Arnie and Lucy, apparently concerned about the effect John and Amie's relationship was having on their *131 interaction with Robert and Alexis, filed a petition for grandparent visitation pursuant to Iowa Code section 598.35(3) (2001), which permits a district court to order visitation in the event "[t]he parent of the child, who is the child of the grandparent,... has died." In September 2000, Arnie and Lucy were granted temporary visitation with their grandchildren pending a final ruling on visitation. Not long afterward, John and Amie married.
With a January 2001 trial date looming, all four adultsArnie, Lucy, John, and Amiemet with a family counselor in hopes of reaching a solution to the conflict. Not surprisingly, the counselor's interactions with the family revealed strong emotions and hard feelings. Focusing on Robert and Alexis' interests, the counselor opined that each needed a "solid relationship" with Arnie and Lucy and that the children were "at risk" if outside intervention of some sort did not guarantee that relationship. Ultimately, the parties were unable to reach an agreement on visitation, and the dispute proceeded to trial.
At trial, the district court heard two days of testimony before deciding to continue the case. Rather than providing a final disposition in the case, the court suggested the parties should undertake additional formal mediation to resolve the situation. The court also set aside the temporary visitation order that previously had been established in Arnie and Lucy's favor and warned that it would not rule on the visitation issue until this court issued its decision in Santi, which was then pending. While the parties planned for the mediation, Amie filed a petition for stepparent adoption, which was eventually granted in December 2001.
The court-ordered mediation proceeded similarly to the informal mediation previously conducted. However, in early March 2001, the parties apparently reached a breakthrough and signed a document providing limited visitation for Arnie and Lucy. The parties operated under these terms for a few months before John allegedly refused to provide further visitation sometime in the summer of 2001.
In January 2002, the parties returned to the district court for a final hearing and resolution to their dispute. After the hearing, the court took the case under advisement, with the benefit of our September 2001 ruling in Santi. On February 11, the court issued its ruling denying grandparent visitation based on its conclusion that Iowa Code section 598.35(3) was unconstitutional in light of our decision in Santi. The district court also determined that the document signed by the parties during the court-ordered mediation in March 2001 was unenforceable because there had been "no meeting of the minds as to the full parameters of the agreement." Finally, the court offered its opinion as to what it believed was the best visitation arrangement possible if the statute was not unconstitutional.
The Lamberts appeal from the district court's ruling, asking that we find the statute constitutional and implement the district court's suggested visitation arrangement. However, for the reasons that follow, we affirm the district court's ruling.

II. Standards of Review.
As we observed in Howard, "challenges to Iowa's grandparent visitation statute raise `questions of substantive due process and liberty interests in the context of statutory interpretation' obliging us `to review the record de novo, making our own evaluation of the totality of the circumstances.'" 661 N.W.2d at 187 (quoting Santi, 633 N.W.2d at 316). We normally review questions of contractual construction and interpretation as a matter of law. *132 Hartig Drug Co. v. Hartig, 602 N.W.2d 794, 797 (Iowa 1999). However, to the extent our review focuses on the question of whether a party has contractually waived a constitutional right, our review is de novo. See Callender v. Skiles, 591 N.W.2d 182, 185 (Iowa 1999).

III. Constitutionality of Iowa Code Section 598.35(3).
This case presents our third opportunity to consider the constitutionality of Iowa's grandparent visitation statute. However, only the facts of this case distinguish it from our considerations of the statute in Santi and Howard. Importantly, no alterations have been made to the statute itselfit remains in the same form as it was in both of our prior cases. Perhaps not surprisingly, we conclude that the same fundamental flaws found fatal to subsections (1) and (7) of the statute also doom subsection (3).
The overarching principle in our analyses of the grandparent visitation statute is that a parent's "interest in the care, custody, and control of [his] children" is "`perhaps the oldest of the fundamental liberty interests recognized by'" the United States Supreme Court. Santi, 633 N.W.2d at 317 (quoting Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 2060, 147 L.Ed.2d 49, 56 (2000)). We were guided by this principle in resolving Santi and we reconfirmed it in Howard, where we clarified that the parental interest is not lessened "by the marital status of [an] otherwise fit [parent]." Howard, 661 N.W.2d at 188. This means the state has "no lesser standard for intervention" in a case such as this one, in which one spouse has outlived the other spouse.[1]Id. For this reason, we apply strict scrutiny constitutional analysis to Iowa Code section 598.35(3) just as we applied it in our examinations of subsections (1) and (7). See id. at 188-89; Santi, 633 N.W.2d at 318. This analysis requires "that any infringement by the state ... be `"narrowly tailored to serve a compelling state interest."'" Howard, 661 N.W.2d at 188 (citations omitted).
The grandparent visitation statute has three elemental requirements that must be satisfied before visitation is granted: (1) the petition for visitation must be based on one of seven situations related to the family structure, (2) the decision to award visitation must be in the best interests of the child(ren), and (3) a substantial relationship must exist between the grandparent(s) and grandchild(ren) before the filing of the petition. See Iowa Code § 598.35(3). In Howard, we examined each of these three requirements to determine whether any of them supported a compelling state interest. 661 N.W.2d at 191. We determined that both the situational and best interests elements failed to provide the necessary compelling state interest. See id. Yet, we also noted that the last elementa substantial relationshiprevealed some legislative concern "with protecting children from substantial emotional harm," a "type of standard other jurisdictions have imposed in considering grandparent visitation." Id.
*133 It is unnecessary to analyze this case under the compelling state interest prong of the strict scrutiny test because the visitation statute clearly is not narrowly drawn. Nevertheless, a compelling state interest analysis in this case would very likely reach the same conclusions reached in Howard, even though this petition for grandparent visitation arises under a different subsection of the statute. As previously noted, the parental interest is not lessened "by the marital status of [an] otherwise fit [parent]." Id. at 188. There have been no allegations that John is unfit, and there is no indication in the record that such an allegation, if made, could be established. This core fact alone undermines any potential finding of a compelling state interest in this case.
In Howard, we ultimately concluded that Iowa Code section 598.35(1) was unconstitutional because
the three requirements utilized by the statute to permit grandparent visitation to take place over the objection of a parent fail to impose the essential limitations demanded by Troxel to narrowly serve the compelling interest to intervene and to safeguard against unwarranted intrusions into the decisions of fit parents.
Id. at 191. We determined that that statute was deficient in three particulars: "on its face [it] not only fails to recognize the degree of harm or potential harm to the child needed to support state intervention, but it fails `to require a threshold finding of parental unfitness'" and "fails to require the court to consider a parent's objections to allowing visitation." Id. at 192 (citation omitted). "Thus, for the same reasons identified in Santi, the statute fail[ed] to comport with the Due Process Clause on its face" because "these provisions must be a part of any grandparent visitation statute under our Due Process Clause." Id. at 191-92. Iowa Code section 598.35(3) is similarly deficient. For this reason, it too "fails to comport with the Due Process Clause on its face," making it unconstitutional. Id. at 191. The district court correctly determined that the statute was unconstitutional and rightly denied Arnie and Lucy's visitation petition.

IV. Enforceability of the Mediation Document.
At the end of the parties' court-ordered mediation in March 2001, Arnie, Lucy, John, and Amie each signed a one-page, hand-written document drafted by the mediator, Bruce Buchanan, which stated the following:
We the undersigned agree to the following:
1. At least 1 full weekend overnights every 6 weeks.
2. Other visitation at the discretion of all parties.
3. Bruce Buchanan is the binding arbitor [sic] on all matters not revocable regard[ing] Alexis + Robert.
Arnie and Lucy argue that this document is an enforceable contract by which John guaranteed them limited visitation with Robert and Alexis. They point to several factors that they believe support this argument, including that mediation was undertaken at the direction of the district court, both parties later brought the document to their respective attorneys for additional action, and John agreed to the terms of the document and followed the terms for a period of time.
John responds to this argument with a two-pronged attack. First, he argues that the document is unenforceable because it does not reflect a "meeting of the minds" among the parties. He claims that he signed the document believing it was an "exercise" in compromise that had no legal bearing. Furthermore, he asserts that, *134 even if the document is a contract, he was insufficiently apprised of its meaning to have validly waived his constitutional rights as a parent. To support this argument, he again refers to his andhe believesothers' understanding that the document was generated solely as a method of helping the parties reach a compromise on visitation.
The district court concluded that there was no meeting of the minds between the parties in relation to the document given its "therapeutic" use and the parties' understanding that it was, at least, in a state of flux as far as being a final compromise over visitation. Yet, even assuming the mediation document constitutes a contracta point which the district court did not accept and which we view with ample skepticismwe believe it is clear that John acted with insufficient understanding to have truly waived his constitutional rights by its signing. Thus, whatever the document's nature, it is unenforceable. See 17A Am. Jur. 2d Contracts § 247, at 250 (1991).
We have previously recognized "the concept of contractual waiver of constitutional rights in civil cases." Messina v. Iowa Dep't of Job Servs., 341 N.W.2d 52, 60 (Iowa 1983); see also Callender, 591 N.W.2d at 192. In so recognizing, we cited with approval a similar recognition by the United States Supreme Court, which "applied the usual [criminal context] standards requiring the waiver to be voluntary, knowingly and intelligently made" to determine whether a proper waiver had been accomplished. Messina, 341 N.W.2d at 60 (citing D.H. Overmyer Co. v. Frick Co., 405 U.S. 174, 185-86, 92 S.Ct. 775, 782, 31 L.Ed.2d 124, 134 (1972)). We believe these standards permit a proper analysis of a potential contractual waiver of constitutional rights and apply them to this case and our examination of the mediation document.
As Santi, Howard, and our discussion in this case make clear, John held a constitutional parental caretaking interest when he entered into the mediation with Arnie and Lucy. Yet, the document ultimately generated made no mention of this constitutional interest and provides no evidence of a thoughtful relinquishment of it. In fact, the document itself and the testimony at trial reveal that the parties' approach to the document was relatively informal, with little if any discussion of the legal ramificationsmuch less the more specific constitutional ramificationsof its signing. Indeed, it was generated in a mediation session that was not attended by counsel for either party. The mediator, when asked whether there was "any discussion about the facts that there may be underlying fundamental constitutional rights and issues" involved, explained,
A. You know what I think thatI don't remember if that was ever mentioned or not. ItI continue to try to stay away from any legal issues. I kept saying to both parties, remember I'm not an attorney, that's not my expertise. My expertise is kids and that's what I would be arbitrating.
Although it is unnecessary to define the precise threshold at which John would have become sufficiently informed to have validly waived his constitutional parental rights, it is clear the threshold was not reached in this case. The document signed at the mediation is unenforceable.

V. Conclusion.
Clearly, "[t]here is no doubt, in a broad sense, that grandparent-grandchild relationships are beneficial and should be promoted." Howard, 661 N.W.2d at 190; see also Santi, 633 N.W.2d at 320. Yet, as we have recognized before, "such a generalization *135 falls short of establishing the type of harm that would justify state intervention into a parental decision denying contact." Howard, 661 N.W.2d at 190; see also Santi, 633 N.W.2d at 320. Iowa Code section 598.35(3) all but fails to contemplate a harm justifying state intervention and is not narrowly tailored to advance a compelling state interest. For this reason, it is unconstitutional. Moreover, the constitutional dimensions of the parental caretaking interest require any waiver of that interest to be "voluntary, knowingly and intelligently made." Messina, 341 N.W.2d at 60 (citing D.H. Overmyer Co., 405 U.S. at 185-86, 92 S.Ct. at 782, 31 L.Ed.2d at 134). A proper waiver was not accomplished in this case by the mediation document signed by the parties. We affirm the ruling of the district court.
AFFIRMED.
NOTES
[1]  One significant factual difference between this case and our prior cases is the presence and role of Amie, who, by the time of the district court's ruling, was Robert and Alexis' mother by adoption. Neither party suggested Amie significantly affected the application of the legal principles surrounding the grandparent visitation statute, and we are not inclined to further consider the effect, if any, of her adopting Robert and Alexis. Instead, we concentrate on John's role as a parent given that it is primarily his parental caretaking interest targeted by Arnie and Lucy's petition for grandparent visitation. See In re Marriage of Howard, 661 N.W.2d 183, 192 n. 5 (Iowa 2003).


430 F.2d 1359
L. R. JACKSON et al., Appellants,v.WHEATLEY SCHOOL DISTRICT NO. 28 OF ST. FRANCIS COUNTY, ARKANSAS, et al., Appellees.
No. 19952.
United States Court of Appeals, Eighth Circuit.
August 11, 1970.

Conrad K. Harper, New York City, for appellants; Jack Greenberg, James M. Nabrit, III, and Norman C. Amaker, New York City, and John W. Walker, Little Rock, Ark., and George Howard, Jr., Pine Bluff, Ark., on the briefs.
E. J. Butler, Butler & Hicky, Forrest City, Ark., for appellees.
Before VAN OOSTERHOUT, MEHAFFY and LAY, Circuit Judges.
VAN OOSTERHOUT, Circuit Judge.

1
This is a timely appeal by plaintiffs from final judgment dismissing their complaint against the defendants Wheatley School District No. 28, Superintendent Kennedy, and the individual members of the School Board. Plaintiffs L. R. Jackson, Mrs. Mittie Jackson, Mrs. Malissa A. Meeks and Marvin E. Coleman were Negro teachers in the all-Negro Wheatley school (Central) operated by the defendant school district during 1967 and 1968 and prior years.

2
Each plaintiff was notified that his contract of employment would not be renewed for the 1968-69 school year. Plaintiffs were not reemployed. Plaintiffs in the complaint filed September 12, 1968, asserted that their denial of continued employment was based solely on race and color of the plaintiffs in violation of their federal statutory and constitutional rights. Jurisdiction is established under the old civil rights statute 42 U.S.C.A. §§ 1981 and 1983 and under 28 U.S.C.A. § 1343(3) and (4). See Smith v. Board of Education of Morrilton School District No. 32, 8 Cir., 365 F.2d 770, 773.

3
Plaintiffs originally sought injunctive relief and alternatively damages. At the trial of the case or March 13 and 14, 1969, the parties agreed that the question of obtaining contracts for 1968-69 was moot. Plaintiffs persisted in their claim for damages. The court entered an order dismissing the complaint on July 1, 1969. Although a timely appeal was taken, plaintiffs did not file their brief and appendix until February 18, 1970. The record shows that all plaintiffs ultimately obtained employment for 1968-69 but for the most part had a smaller salary than they would have received from the defendants had they been reemployed. Nothing is shown with respect to mitigating employment subsequent to the March 1969 hearing.

4
The Wheatley School District serves some 425 students of whom 60% are black and 40% are white. The district for the year commencing September 1965 adopted a freedom-of-choice plan to comply with HEW requirements. In 1967-68, the freedom-of-choice plan was extended to all twelve grades. During that year Central continued as an all-Negro school serving some 90 students in the first five grades. The teachers employed at Central consisted of the four plaintiffs and Mrs. Cannon, a Negro teacher. Mrs. Cannon was retained as a teacher and transferred to the integrated school.

5
Under the HEW approved plan, the Board was authorized to operate Central on a freedom-of-choice basis for 1968-69. The report on the freedom-of-choice selections made on April 1, 1968, showed that 60 of the 90 all-Negro Central students had elected to attend the integrated formerly all-white school. The Board in its meeting on April 2, 1968 determined it was economically not feasible to continue the Central School. The Board acted to close Central at the close of the 1967-68 school year and to transfer all students to the integrated school. The propriety of such action is not questioned.

6
The Board at its meeting on March 11, 1968, passed a motion to release at the end of the school year four teachers including the plaintiffs, Mr. and Mrs. Jackson and Malissa Meeks and one white teacher in the integrated school, James Cooper. No reasons were set out in the motion for denying plaintiffs reemployment. There is some uncertainty in the record as to when plaintiffs were notified of the Board's action. They did receive notice thereof sometime prior to April 29 as they accepted an invitation to appear before the Board on that date. The minutes of said meeting read:

7
"The meeting was called to order by the president. The minutes of the previous meeting were read and approved. The board met with four teachers who had been released from Wheatley Central School. The board discussed county clerk's commission. Motion made and seconded to accept Mr. Kennedy's recommendation on the remaining teachers that were to be hired. Motion carried unanimously."

8
On May 28, 1968, plaintiffs each received the notice required by Arkansas law that they would not be reemployed. There is evidence that plaintiffs were told at the Board meeting on April 29 that they were not reemployed because the teachers serving the former all-white school could handle all necessary assignments and their positions no longer existed by reason of the closing of Central. It is undisputed that a lesser number of teachers is required to operate the completely integrated school. There is evidence on the part of the Board members and Superintendent Kennedy that plaintiffs were told that if any more teachers were hired they would be considered.

9
During 1967-68, the district employed 23 teachers — 5 Negroes at Central and 4 Negroes and 14 whites at the integrated school. In 1968-69, the teacher requirement for the entire integrated system was reduced to 18 teachers. Three of the teachers employed were Negro. The remaining 15 were white.

10
Mrs. Haley, a Negro teacher who had been retained as a grade teacher, resigned in August 1968. She was replaced by a white teacher. Two other new teachers who were employed taught in grades plaintiffs were qualified to teach.

11
The situation with respect to plaintiff Coleman's release is based on separate and distinct grounds. Coleman was teaching on an emergency certificate which expired August 31, 1968. Doubt existed whether he could be certified as qualified to teach for the 1968-69 school year unless he took additional school work and obtained additional hours of credit. The Board's minutes reflect that Coleman was denied reemployment because he did not possess a proper certificate for 1968-69.

12
The issue presented by this appeal is whether the trial court erred in failing to find that the discharge of the plaintiffs was racially motivated. The guide-posts in this type of case were well-stated by Mr. Justice Blackmun while a member of this court in Smith v. Board of Education of Morrilton School District No. 32, 8 Cir., 365 F.2d 770, 780. There we said:

13
"[W]e feel that the Board's consolidation policy may not be applied where, as here, a school is closed as the direct consequence of an effort to rectify constitutional defects in the method by which pupils and teachers have previously been assigned, where the effect is to impose, without some concern for qualifications to teach, the heavy burden of unemployment solely upon those whose constitutional rights were violated, and where an additional result may be to impede meaningful realization of the constitutional rights of others, that is, the pupils. Rogers v. Paul, supra, p. 200 of 382 U.S. [198], 86 S.Ct. 358, 15 L.Ed.2d 265. Under circumstances such as these, the application of the policy (although that policy is nondiscriminatory on its face and is based upon otherwise rational considerations) becomes impermissible."

14
We also held that nondiscriminatory standards should be applied in considering reemployment of teachers released because not needed for vacancies which arise in the system.

15
The trial court as a basis for dismissal in a letter memorandum states:

16
"The Court concludes that this situation comes within the Walton decision, [Walton v. Nashville, Ark. Special School Dist. No. 1] 401 F.2d 137, 1968. The Court said in that case, `Those who are employment victims of the constitutionally required process should not immediately jump to the conclusion that their predicament is necessarily the result of racial considerations. They have every right to demand and to be shown that race is not the criterion by which employment is granted or denied. They must, however, face the fact that integration tends to do away with expensive and unnecessary duplication for districts already too short of funds and that often some persons will be terminated.'

17
"Such is the case here regardless of the questions as to qualifications of one or more of the plaintiffs. The testimony is clear that with the adjustment there was no vacancy for elementary teachers in the new school system effectuated by this school district for the school year of 1968-69. * * *"

18
The Walton opinion relied upon by the trial court was also written by Mr. Justice Blackmun. The opinion in that case points out that White was properly denied reemployment by reason of his failure to provide the board with requested pertinent information.

19
With respect to other teachers, the opinion shows that the record supports a finding that the teachers retained to teach a particular subject had been shown to have qualifications superior to those of the teachers denied reemployment. The opinion further points out that each case of this kind must be determined upon its own peculiar facts and that the holding is not a retreat from the position taken in Smith and other cited cases.

20
We shall first consider the appeals of Mr. and Mrs. Jackson and Mrs. Meeks. The only mention of their qualifications in the court's findings reads:

21
"It is quite apparent that Mrs. Jackson met the qualifications as a teacher but there was substantial question as to her conduct in the community to become employed as a teacher in the integrated school of the Wheatley School system. There is substantial question as to the qualifications of both L. R. Jackson and Malissa A. Meeks. L. R. Jackson and Mrs. Jackson are husband and wife, and Malissa Meeks is the sister of L. R. Jackson. It appears there is no question but what the record of Mr. Jackson, Mrs. Meeks and Mr. Coleman was primarily responsible for the low rating being maintained for the Wheatley Central Elementary School."

22
While the court does state that there is a question as to plaintiffs' qualifications, no finding of lack of qualification is made. There is no evidentiary basis for the statement that the plaintiffs are primarily responsible for the low rating of Central. The court makes no finding that plaintiffs' qualifications are inferior to those of teachers retained or subsequently employed to fill vacancies. No evidentiary basis exists in the record for a comparison of teacher qualifications. Plaintiffs were not advised of any reason for their release other than that their positions no longer existed by reason of the closing of Central and that there were no vacancies in the integrated school system.

23
Defendants offered some vague and inconclusive evidence to the effect that the school officials had over the years received some complaints about plaintiffs' failure to pay their bills. The evidence offered reflects that such condition had existed for a number of years and that nothing had previously been done about terminating employment by reason thereof. The Board's minutes show that Jackson was called before the Board in 1960 and in 1964 to answer some complaints and that he made explanations which satisfied the Board. The 1964 minutes show: "Mr. Jackson cleared this matter to the satisfaction of the board and the matter was dropped." The contracts were renewed for succeeding years up to the 1968-69 school year.

24
Each of these plaintiffs had valid certificates to teach and served in such capacity in Central for eleven years. It would appear that if the complaints were not such as to require action against the plaintiffs while they were serving in the Negro school, the complaints would not constitute a valid basis for refusal of employment in the integrated school. Moreover, plaintiffs were not advised that their credit problems were a factor in their release and they were given no opportunity to meet such charge.

25
The record discloses no attempt to compare plaintiffs' teaching ability and qualifications with those of the teachers retained in the white school and the subsequent replacements. Neither the Board members, the superintendent nor any representative made any visits to Central and the Board lacked any reliable information with respect to plaintiffs' teaching abilities. In this respect, this case is clearly distinguishable from the record in cases such as Walton and Brooks v. School District of City of Moberly, Missouri, 8 Cir., 267 F.2d 733.

26
The issue of the integration of the faculty is not before us in this case. However, the undisputed evidence that Negro representation on the faculty was decreased in the school system in the 1968-69 school year and the evidence that the ratio of Negroes on the faculty to whites does not remotely approach the proportion of Negro students to white students is substantial evidence supporting racial discrimination.

27
Jackson testified that Superintendent Richardson, when asked why Jackson had not been reemployed, responded, "Jackson, the main reason is we are entering integration and this board does not want you to teach their children." Such testimony has not been contradicted. Several board members as witnesses testified in substance to the same effect.

28
Moreover, the evidence is undisputed that the three Negro teachers in the integrated school taught Negro students exclusively except for one backward white student in some of their classes.

29
On the record before us, the evidence in support of racial discrimination is at least as strong as that in Smith. In that case, we vacated the judgment and remanded for further proceedings consistent with the views expressed in our opinion. We follow the same course here with respect to the Jacksons and Mrs. Meeks.

30
Upon the record, we are not in a position to determine the damage award. There is no evidence on mitigating employment available to plaintiffs subsequent to the 1968-69 school year. There is likewise no basis for determining whether any of the plaintiffs have been offered an opportunity to fill a vacancy in a position that they were qualified to teach. It is for the trial court to determine the appropriate remedy. We believe our discussion of the appropriate remedy in Smith should provide a helpful guideline for the further proceedings in this case.

31
Our prior discussion does not cover the claim of plaintiff Coleman. The situation with respect to Coleman is entirely different than that of the remaining plaintiffs. The undisputed evidence discloses Coleman was teaching on an emergency certificate which expired on August 31, 1968. The Board had no assurance that Coleman would be able to obtain a certificate for the 1968-69 school year. The Board in its minutes stated that the lack of the proper certificate was the reason for denying Coleman reemployment. The trial court properly determined that such is a valid and nondiscriminatory basis for the action taken. The dismissal of the petition as to Coleman is affirmed.

32
The judgment is affirmed as to plaintiff Coleman. As to the plaintiffs L. R. Jackson, Mittie Jackson and Malissa Meeks, the judgment is vacated and the case is remanded to the trial court for futher proceedings in conformity with the views expressed in this opinion.


118 Cal.Rptr.2d 42 (2002)
96 Cal.App.4th 1293
GUARDIANSHIP OF MELISSA W., a Minor.
Fran W. et al., Petitioners and Appellants,
v.
Terry W., Objector and Respondent.
No. B151211.
Court of Appeal, Second District, Division Three.
March 19, 2002.
As Modified April 11, 2002.
Review Denied May 22, 2002.
*43 Melodye S. Hannes, Van Nuys, and Richard A. Marcus, Los Angeles, for Petitioners and Appellants.
Freda D. Pechner, Garden Valley, for Objector and Respondent.
ALDRICH, J.

INTRODUCTION
Grandparents petitioned for guardianship of their minor granddaughter, Melissa. Following trial, the court found Melissa's father to be a fit parent, denied grandparents' petition, and ordered the child returned to father "forthwith." At grandparents' request, the trial court briefly stayed the relocation to enable the child to finish the school year. Grandparents filed their appeal, but before returning the child to her father, grandparents' counsel accompanied 16-year-old Melissa to the Bahamas where the child was purportedly married with grandparents' consent.[1] Once father learned of the marriage, he moved this court for dismissal of the appeal.
The circumstances of this case require imposition of the ultimate sanction of dismissal of the appeal. Grandparents may not obtain review of the judgment while at the same time being in violation of the very judgment from which they appeal. Additionally, the conduct of grandparents and counsel in arranging Melissa's emancipation by way of the purported marriage has rendered moot the issue of guardianship. For these reasons, we grant father's motion and dismiss this appeal. We also impose monetary sanctions against grandparents' counsel for continuing to prosecute the appeal after it became moot by reason of Melissa's marriage.

SUMMARY OF FACTS AND PROCEEDINGS
On March 28, 1997, Cheryle, Melissa's mother, died. She was survived by her *44 husband, Terry (father) and their two daughters, then 11-year-old Melissa and 10-year-old Courtney. The family was residing in Los Angeles. Appellants are the decedent's parents and Melissa's grandparents, Fran and Arthur W. (grandparents). Father later relocated to Placerville but allowed his daughters to live with grandparents in Los Angeles to finish the school year. On July 23, 1999, grandparents filed a petition for guardianship of the minors. Eventually, Courtney returned to her father's custody.
On June 12, 2001, after three days of trial of the petition for guardianship of Melissa, the trial court issued a judgment denying the petition. The trial court specifically found, inter alia, that father is a fit and proper parent to his children; he has the ability to provide for their needs; it is in Melissa's best interest to be returned to her father's custody; and there is no basis for the trial court to interfere with the constitutionally protected fundamental right of father to parent his children. The trial court then ordered that Melissa "shall be returned to the custody of Respondent Father, forthwith," (Italics added.) At their request for time to allow Melissa to finish the school year and the grandparents to appeal, the trial court granted grandparents a brief stay of the judgment to July 7, 2001.
On June 27, 2001, grandparents filed their notice of appeal from the judgment denying the guardianship petition.
That same day, grandparents executed purported consent forms, granting their permission for Melissa, then age 16, to marry 19-year-old Austin H. On the consent forms, grandparents indicated they were consenting as Melissa's legal guardians, despite the fact the June 12, 2001, judgment unambiguously denied grandparents' guardianship petition.[2] This purported consent was written on the letterhead of grandparents' counsel, Melodye S. Hannes.
On June 28, 2001, Melissa arrived in the Bahamas accompanied by attorney Hannes.
Meanwhile, grandparents concurrently moved the trial court for a stay of the judgment pending appeal on the ground Melissa would suffer detriment if she were to reside with father during that time. In seeking that stay, grandparents failed to disclose to the trial court Melissa's imminent nuptials.
On June 29, 2001, grandparents filed a petition for writ of supersedeas in this court seeking a stay of the order directing Melissa's return to father, reiterating the grounds raised in the lower court, and likewise omitting any mention of the planned wedding.
On July 2, 2001, Melissa was purportedly married to Austin H. in the Bahamas. Attorney Hannes executed a Bahamian "Certificate by Parents or Guardian of Consent to Marriage by a Minor," indicating the grandparents' consent to the marriage. *45 In helping to secure the marriage in the Bahamas, counsel apparently did not disclose to the Bahamian Registrar General the June 12, 2001 judgment denying the guardianship petition.[3] The marriage was solemnized in the presence of Hannes as one of the witnesses.
On July 7, 2001, Melissa returned to her father in Placerville, where she remained until month's end.
On July 19, 2001, grandparents filed a request in this court for an immediate stay of the judgment pending appeal. On July 25, 2001, this court summarily denied the petition for writ of supersedeas and request for stay.
On July 30, 2001, father first learned of his daughter's Bahamian marriage when he found a note in his mailbox signed "Melissa H.," Austin's surname. Father moved for a dismissal of grandparents' appeal, arguing the purported marriage had the effect of emancipating Melissa so as to render the appeal moot; grandparents' defiance of the judgment denying the guardianship petition precluded them from seeking review of that judgment; and grandparents' failure to voluntarily dismiss the appeal upon the marriage warranted the imposition of sanctions.
We issued an order to show cause why the appeal should not be dismissed, specially set the matter, and heard oral argument.

DISCUSSION

1. Effect of grandparents' defiance of judgment on their right to appeal.

Grandparents were promptly bound by the June 12, 2001, judgment denying their petition for guardianship, absent an applicable stay. (Code Civ. Proc., § 917.7[4].)[5] As indicated, the judgment included a provision for a brief stay to July 7, 2001, but only of "the order to return Melissa" to her father. The purpose of staying relocation for a month was to enable Melissa to finish the school year. The court did not stay its order denying the guardianship petition and did not stay its order confirming custody in the father "forthwith." (Italics added.) The trial court's unambiguous denial of the guardianship petition was immediately effective and binding upon the parties. (Code Civ. Proc., § 917.7.) Because father retained legal custody, grandparents had no authority to consent as guardians to Melissa's *46 marriage. Likewise, their counsel undermined the June 12, 2001, judgment by accompanying Melissa to the Bahamas and participating in procuring a marriage designed to alter the child's legal status.[6] In doing so, grandparents and counsel thwarted the very judgment of which they now seek review. "It is illogical and inequitable for appellants] to seek appellate review of the very orders [they have] blatantly violated." (In re Kamelia S. (2000) 82 Cal.App.4th 1224, 1227, 98 Cal. Rptr.2d 816.)
"It is well settled that this court has the inherent power to dismiss an appeal by any party who has refused to comply with the orders of the trial court. [Citations.]" (TMS, Inc. v. Aihara (1999) 71 Cal.App.4th 377, 379, 83 Cal.Rptr.2d 834.) "A party to an action cannot, with right or reason, ask the aid and assistance of a court in hearing his demands while he stands in an attitude of contempt to legal orders and processes of the courts of this state. [Citations.]" (MacPherson v. Mac-Pherson (1939) 13 Cal.2d 271, 277, 89 P.2d 382.)
A formal judgment of contempt is not a prerequisite to exercising our power to dismiss. (Alioto Fish Co. v. Alioto (1994) 27 Cal.App.4th 1669, 1683, 34 Cal. Rptr.2d 244.) The power to dismiss "`applies to wilful disobedience or obstructive tactics without such an adjudication.' [Citations.]" (Ibid.)
The power to dismiss an appeal for violation of a court order has been exercised in the child dependency context. In Kamelia S., the child was ordered placed in foster care. The father appealed from that order, and while the appeal was pending, he took the law into his own hands and absconded with the minor. (In re Kamelia S., supra, 82 Cal.App.4th at pp. 1225-1226, 98 Cal.Rptr.2d 816.) The father's appeal was dismissed on the ground that appellant was not entitled to obtain review of the juvenile court's order while at the same time being in contempt of the very order from which he appealed. (Ibid.)
These authorities compel the conclusion that by undermining the trial court's judgment, grandparents and counsel have forfeited their right to prosecute this appeal. Grandparents lacked authority to consent to Melissa's marriage. Nonetheless, they and counsel helped arrange the Bahamian marriage to emancipate Melissa for the purpose of negating the effect of the judgment confirming custody in father. Their obstructive tactics call for the exercise of this court's inherent power to impose the ultimate sanction of dismissal.

2. Effect of Melissa's purported marriage on continued existence of controversy to be resolved on appeal.

As an additional and independent ground for dismissing this appeal, it appears the matter has been rendered moot by Melissa's purported marriage. The appeal was taken from the judgment denying grandparents' petition for guardianship of Melissa. Grandparents continue to insist the marriage is valid. If, as grandparents contend, Melissa is validly married, she is currently emancipated by operation of law (Fam.Code, § 7002, subd. (a)) and no longer requires the protection of the guardianship grandparents seek. (In re Katherine R. (1970) 6 Cal.App.3d 354, 357, 86 Cal. Rptr. 281.) The conduct of grandparents and their counsel in helping to arrange the *47 marriage has mooted the issue of guardianship. In view of Melissa's present status as an emancipated minor, review and reversal of the judgment denying guardianship would be an idle act because this court cannot afford grandparents any effective relief from that judgment. Therefore, the appeal is also dismissed on the ground of mootness.

3. Sanctions for frivolous appeal.

Father requests monetary sanctions for grandparents' prosecution of a frivolous appeal.
"[A]n appeal should be held to be frivolous only when it is prosecuted for an improper motiveto harass the respondent or delay the effect of an adverse judgmentor when it indisputably has no meritwhen any reasonable attorney would agree that the appeal is totally and completely without merit. [Citation.]" (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650, 183 Cal.Rptr. 508, 646 P.2d 179, italics added.)
Having reviewed the record, we conclude that under either an objective standard (see, e.g., Maple Properties v. Harris (1984) 158 Cal.App.3d 997, 1008-1009, 205 Cal.Rptr. 532 [sanctions imposed because appeal indisputably lacked merit]), or a subjective standard (see, e.g., In re Marriage of Stich (1985) 169 Cal.App.3d 64, 77, 214 Cal.Rptr. 919 [sanctions imposed because appeal was pursued solely for purpose of delay]), or a combination of the two standards (see, e.g., Pierotti v. Torian (2000) 81 Cal.App.4th 17, 32, fn. 9, 96 Cal.Rptr.2d 553 [frivolous nature of appeal provided evidence it was prosecuted solely for purpose of delay]), this appeal is frivolous.
In compliance with Flaherty's procedural requirements, we advised the parties we were considering the imposition of sanctions and pursuant to said advisement, we heard oral argument on the subject. Father's counsel filed a declaration seeking fees and grandparents' counsel responded thereto. This opinion constitutes the written statement of reasons required by Flaherty. (In re Marriage of Flaherty, supra, 31 Cal.3d at p. 654, 183 Cal.Rptr. 508, 646 P.2d 179.)
An appeal that may have been meritorious when commenced can become frivolous by the occurrence of subsequent events which render the appeal moot. (Hale v. Laden (1986) 178 Cal. App.3d 668, 674-675, 224 Cal.Rptr. 182; Wax v. Infante (1983) 145 Cal.App.3d 1029, 1031, 194 Cal.Rptr. 14.) It is the duty of appellants and their counsel promptly to dismiss an appeal once it becomes moot "and not put respondent, his counsel, and this court to the time and expense of reviewing an appeal that had become moot...." (Wax v. Infante, supra, at p. 1031, 194 Cal.Rptr. 14.)
Even assuming the appeal may have been meritorious when commenced, until the marriage is judicially annulled, Melissa's marriage emancipates her by operation of law. This state of affairs renders moot the appeal from the judgment denying the guardianship petition. Nonetheless, grandparents and their counsel persisted in prosecuting the appeal, thereby putting father and this court to needless time and expense.
Father's counsel, Freda D. Pechner submitted a declaration and supporting exhibit seeking $22,803.75 in legal fees incurred in connection with this appeal. We have examined counsel's declaration and the opposition thereto and heard oral argument on this issue. Based thereon, we conclude the reasonable amount of the expenses incurred by father in defending this appeal following the July 2, 2001 marriage is $13,004.[7]

*48 DISPOSITION
The order to show cause is discharged. Father's motion to dismiss the appeal is granted and the appeal is dismissed. Father shall recover costs on appeal. In addition Melodye S. Hannes and Richard A. Marcus are directed to pay father $13,004 as sanctions for prosecuting a frivolous appeal.
The matter is referred to the State Bar for investigation. In that the dismissal is "based in whole or in part on the misconduct, incompetent representation, or willful misrepresentation of an attorney" (Bus. & Prof.Code, § 6086.7, subd. (b)), and because sanctions exceed $1,000.00 (Bus. & Prof.Code, § 6086.7, subd. (c)), the clerk of this court is directed forthwith to send a copy of this opinion to the State Bar.
We concur: KLEIN, P.J., and KITCHING, J.
NOTES
[1]  The issue before us is whether the appeal is subject to dismissal due to the conduct of grandparents and their counsel. We do not pass on the validity of the purported marriage, which question is currently pending before the El Dorado Superior Court in father's annulment proceeding.
[2]  Any claimed reliance by grandparents on a pretrial order granting temporary guardianship was unsupported. By way of background, on March 14, 2001, the trial court ordered temporary guardianship of Melissa to grandparents, pendente lite, to continue until May 21, 2001. Apparently, no letters of guardianship were issued. Father sought a writ of mandate in this court challenging the temporary guardianship. On April 12, 2001, in response to father's petition, this court issued a stay of all proceedings except for trial of the guardianship petition. This stay had the effect of placing guardianship in abeyance pending trial. Thus, after May 21, 2001, grandparents were no longer Melissa's temporary guardians. Moreover, irrespective of any claimed status as temporary guardians of Melissa prior to trial, grandparents clearly lacked authority after the adverse judgment to consent to Melissa's marriage, and counsel should have been aware of that fact.
[3]  We note that Hannes asserts she in fact supplied a copy of the judgment to the Bahamian Registrar General. However, in an exhibit attached to father's motion to dismiss the appeal, which exhibit was received without objection, the Director of Legal Affairs of the Office of the Attorney General of the Commonwealth of the Bahamas (the Director) opined the Bahamian Registrar General properly accepted grandparents' consent "as he was not in possession of the judgment."

The Director explained application would have to be made to the Bahamian Supreme Court to have the marriage declared void on the ground consent was not validly given. Similarly, California law requires written consent of parents or guardians in order for a minor to marry. (Fam.Code, § 302.)
[4]  Code of Civil Procedure section 917.7 states, "The perfecting of an appeal shall not stay proceedings as to those provisions of a judgment or order which award, change, or otherwise affect the custody, including the right of visitation, of a minor child in any civil action.... However, the trial court may in its discretion stay execution of these provisions pending review on appeal or for any other period or periods that it may deem appropriate
[5]  Grandparents contend because the trial court stayed the judgment, they had a goodfaith legal argument that they were Melissa's legal guardians at the time they executed the consent forms. However, as explained in footnote 2, ante, at the time of trial the grandparents were no longer Melissa's temporary guardians. Therefore, the stay of the judgment to July 7, 2001, did not have the effect of reviving or extending guardianship status to the grandparents during the period of the stay.
[6]  Counsel contend they did nothing more than fulfill their obligation to advise their clients, grandparents and Melissa, of their legal options. However, there is a great difference between an attorney's advising a client of his or her legal options and the consequences thereof, and affirmative conduct taken to frustrate a valid judgment not to one's liking by accompanying a child to a foreign jurisdiction for the purpose of entering into a questionable marriage.
[7]  The court is aware that a number of proceedings are pending in El Dorado County, including an action to annul the purported Bahamian marriage and a damages action against grandparents and their counsel. However, to reiterate, the only issue to be decided by this court in this opinion is whether the instant appeal is subject to dismissal,


	OSCN Found Document:STATE ex rel. OKLAHOMA BAR ASSOCIATION v. CALLICOAT

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STATE ex rel. OKLAHOMA BAR ASSOCIATION v. CALLICOAT2016 OK 31Case Number: SCBD-6359Decided: 03/09/2016THE SUPREME COURT OF THE STATE OF OKLAHOMA
Cite as: 2016 OK 31, __ P.3d __

NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.

State of Oklahoma ex rel. Oklahoma Bar Association, Complainant
v.
Fred Bennett Callicoat Respondent.
ORDER APPROVING RESIGNATION FROM OKLAHOMA BAR ASSOCIATION PENDING DISCIPLINARY PROCEEDINGS AND WAIVING COSTS
Upon consideration of Complainant Oklahoma Bar Association's (Bar Association) application for an order approving the Resignation Pending Disciplinary Proceedings executed by Respondent, Fred Bennett Callicoat, the application reveals:
(1) Respondent, Fred Bennett Calicoat, OBA #18519, was admitted to membership in the Oklahoma Bar Association on January 10, 2000. His official OBA roster address is 10203 S. Oswego Place, Tulsa, OK 74103. On February 25, 2015, Respondent executed a Diversion Program Agreement. On January 30, 2016, he submitted his affidavit regarding resignation from membership in the Bar Association pending investigation of disciplinary proceedings.
(2) Respondent's affidavit of resignation reflects that he desires to resign and: a) it is freely and voluntarily rendered; b) he is not subject to coercion or duress; c) he is fully aware of the consequences of submitting the resignation; and d) he is aware the resignation is subject to the approval of the Supreme Court. He also intends the effective date of the resignation to be the date and time of its execution and will conduct his affairs accordingly.
(3) Respondent's affidavit states he is aware the Oklahoma Bar Association has investigated specific allegations of professional misconduct to wit:
Complaint 1 - Brians' Grievance
Kayce R. Brians alleges neglect of the client's adversarial bankruptcy proceeding and a failure to earn the $1,500.00 fee paid to Respondent. Following investigation of this grievance, Respondent executed a Diversion Program Agreement.
(4) While enrolled in the Diversion Program, complaints 2-15 were received by the Office of the General Counsel for the Oklahoma Bar Association and were under investigation.
Complaint 2 - Lewis' Grievance
Brenda Lewis alleges that Respondent neglected her bankruptcy case and failed to communicate with her regularly. During the Bar Association's investigation of this matter, Respondent failed to respond to its requests for information. The investigator and the process server could not locate Respondent until December 1, 2015.
Complaint 3 - Johnson's Grievance
Rochelle Johnson alleges that Respondent neglected and abandoned her bankruptcy case, despite receiving a $1,500.00 fee, and failed to communicate with her regularly. During the Bar Association's investigation of this matter, Respondent failed to respond to its requests for information. The investigator and the process server could not locate Respondent until December 1, 2015.
Complaint 4 - Bennett's Grievance
Michael Bennett alleges that Respondent failed to prepare a contract for the sale of Bennett's land, failed to earn his retainer, and failed to communicate with him. The investigator and the process server could not locate Respondent until December 1, 2015.
Complaint 5 - Thornton's Grievance
Byrder Maye Thornton alleges that Respondent neglected and abandoned her bankruptcy case, despite receiving a $1,300.00 fee, and failed to communicate with her regularly. During the Bar Association's investigation of this matter, Respondent failed to respond to its requests for information. The investigator and the process server could not locate Respondent until December 1, 2015.
Complaint 6 - Goins' Grievance
Sean Goins alleges that Respondent neglected and abandoned his bankruptcy case, despite receiving a $1,500.00 fee, and failed to communicate with him regularly. During the Bar Association's investigation of this matter, Respondent failed to respond to its requests for information. The investigator and the process server could not locate Respondent until December 1, 2015.
Complaint 7 - Haddox's Grievance
Andrea Haddox alleges that Respondent neglected and abandoned her bankruptcy case, despite receiving a $1,500.00 fee, and failed to communicate with her regularly. During the Bar Association's investigation of this matter, Respondent failed to respond to its requests for information. The investigator and the process server could not locate Respondent until December 1, 2015.
Complaint 8 - Brown's Grievance
John Brown alleges that Respondent neglected and abandoned his civil matter, despite receiving a $1,200.00 fee, and failed to communicate with him regularly. During the Bar Association's investigation of this matter, Respondent failed to respond to its requests for information. The investigator and the process server could not locate Respondent until December 1, 2015.
Complaint 9 - Cooper's Grievance
Paul Cooper alleges that Respondent neglected and abandoned his bankruptcy case, despite receiving a $1,800.00 fee, and failed to communicate with him regularly. During the Bar Association's investigation of this matter, Respondent failed to respond to its requests for information. The investigator and the process server could not locate Respondent until December 1, 2015.
Complaint 10 - Capers' Grievance
Shaeina Capers alleges that Respondent neglected and abandoned her bankruptcy case, despite receiving a $635.00 fee, and failed to communicate with her regularly. During the Bar Association's investigation of this matter, Respondent failed to respond to its requests for information.
Complaint 11 - Barrett's Grievance
Jeanie Barrett alleges that Respondent neglected and abandoned her small claims case, despite receiving a $800.00 fee, and failed to communicate with her regularly. During the Bar Association's investigation of this matter, Respondent failed to respond to its requests for information.
Complaint 12 - Tran's Grievance
Son Tran alleges that Respondent neglected and abandoned the client's bankruptcy case and appeal of the civil judgment, despite receiving a $4,900.00 fee, and failed to communicate with her regularly. The Bar Association has not completed its investigation of this matter.
Complaint 13 - Czubkowski's Grievance
Ester Czubkowski alleges that Respondent neglected and abandoned her case, despite receiving a $1,500.00 fee, and failed to communicate with her regularly. The Bar Association has not completed its investigation of this matter.
Complaint 14 - Martin's Grievance
Charles Martin alleges that Respondent neglected and abandoned his bankruptcy case, despite receiving a $1,800.00 fee, and failed to communicate with him regularly. The Bar Association has not completed its investigation of this matter.
Complaint 15 - Williams' Grievance
Amie Williams alleges that Respondent neglected and abandoned her bankruptcy case, despite receiving a $1,600.00 fee, and failed to communicate with her regularly. The Bar Association has not completed its investigation of this matter.
(5) Respondent is aware that the allegations against him would constitute violations of the Rules Governing Disciplinary Proceedings (RGDP), the Oklahoma Rules of Professional Conduct, and his oath as an attorney.
(6) Respondent waives any and all rights to contest the allegations.
(7) Respondent is aware that, pursuant to Rule 8.1, RGDP, either the approval or disapproval of his resignation is within the discretion of the Supreme Court of Oklahoma.
(8) Respondent has agreed to comply with all provisions of Rule 9.1, RGDP, within twenty (20) days following the date of his resignation.
(9) Respondent acknowledges and agrees that he may be reinstated to the practice of law only upon full compliance with the conditions and procedures prescribed by Rule 11, RGDP, and that he may make no application for reinstatement prior to the expiration of five years from the effective date of this Order Approving Resignation Pending Disciplinary Proceedings.
(10) Respondent acknowledges that, as a result of his conduct, the Client Security Fund may receive claims from his former clients. He agrees that should the Oklahoma Bar Association approve and pay such Client Security Fund claims, he will reimburse the fund the principal amounts and the applicable statutory interest prior to the filing of any application for reinstatement.
(11) Respondent has surrendered his Bar membership card to the Office of the General Counsel with his resignation.
(12) Respondent acknowledges and agrees to cooperate with the Office of the General Counsel in the task of identifying any active client cases wherein documents and files need to be returned or forwarded to new counsel, and in any client case where fees or refunds are owed by Respondent.
(13) Respondent acknowledges that the OBA has incurred minimal costs in its investigation of the disciplinary complaints and the OBA is not seeking the reimbursement of any costs at this time.
IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that the name of Fred Bennett Callicoat be stricken from the roll of attorneys. Since resignation pending disciplinary proceedings is tantamount to disbarment, Respondent Callicoat may not make application for reinstatement prior to the expiration of five years from the effective date of this order. Pursuant to Rule 9.1, Respondent shall notify all of his clients having legal business pending with him of his inability to represent them and of the necessity for promptly retaining new counsel. Notification shall be given to these clients within twenty days by certified mail. Repayment to the Client Security Fund for any money expended because of the malfeasance or nonfeasance of the attorney shall be one of the conditions of reinstatement.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that the resignation pending disciplinary proceedings of Respondent Fred Bennett Calicoat is hereby approved. Costs of the proceeding are waived.
DONE BY ORDER OF THE SUPREME COURT IN CONFERENCE the 7th day of March, 2016.
/s/Chief Justice
ALL JUSTICES CONCUR.

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118 Ga. App. 207 (1968)
163 S.E.2d 243
PRICE
v.
THE STATE.
43747.
Court of Appeals of Georgia.
Submitted June 5, 1968.
Decided June 25, 1968.
Rehearing Denied July 24, 1968.
*209 Allyn M. Wallace, for appellant.
Cohen Anderson, Solicitor General, for appellee.
JORDAN, Presiding Judge.
Earl Price was indicted for the murder of Johnnie Mae Dupree, convicted of voluntary manslaughter and sentenced to 10 to 15 years. On appeal to this court (Price v. State, 108 Ga. App. 581 (133 SE2d 916)) we reversed on an erroneous charge of mutual combat. Price was again placed on trial for murder under the same indictment, resulting in his conviction of voluntary manslaughter and a sentence of 10 years. From such verdict and judgment, Price appealed to the Supreme Court of Georgia. The case was transferred to this court since "only questions as to the application of plain and unambiguous provisions of the Constitution" are involved. Price v. State, 224 Ga. 306 (161 SE2d 825). Held:
1. Enumerations of error 1 and 2 complain of the overruling of defendant's special plea of autrefois acquit and the denial of his rights under the 5th and 14th Amendments to the Constitution of the United States in that he was placed in jeopardy of life and liberty more than once for the same offense. *208 These contentions have been decided adversely to the defendant in the case of Brantley v. State, 132 Ga. 573 (64 SE 676, 22 LRA (NS) 959, 131 ASR 218, 16 AC 1203), affirmed in 217 U. S. 284 (30 SC 514, 54 LE 768), where it was said, "When a person has been indicted for murder and convicted of voluntary manlaughter, if he voluntarily seeks and obtains a new trial, he is subject to another trial generally for the offense charged in the indictment, and upon such trial he cannot successfully interpose a plea of former acquittal of the crime of murder, or former jeopardy in regard thereto."
2. Enumerations of error 3, 4, and 5 relate to the general grounds and Enumeration number 6 to the charge of the court on voluntary manslaughter. These contentions were fully dealt with in Price v. State, 108 Ga. App. 581, supra, Division 5, and the result reached there is controlling on these issues since the evidence on the second trial was substantially the same as on the first trial.
3. Enumeration of error number 7 complains that portions of the testimony of the sheriff constituted conclusions and opinions as to how the homicide was committed. Since no objections were made to the testimony during the trial, this enumeration is without merit.
4. Enumeration of error number 8 contends that the court erred in denying the indigent defendant's request for a copy of the transcript of the record. Upon the filing of the defendant's notice of appeal in this case, a transcript of the record was filed with the trial court and transmitted to this court as provided by Code Ann. § 6-805 (e) without cost to the defendant. This transcript was available to defendant's attorney for use in preparing his brief and in perfecting the appeal to this court, thus affording the defendant a full and adequate review without regard to his ability to pay. This situation is not within the ambit of such cases as Griffin v. Illinois, 351 U. S. 12 (76 SC 585, 100 LE 891, 55 ALR2d 1055) and Eskridge v. Washington State Board of Prison Terms and Paroles, 357 U. S. 214 (78 SC 1061, 2 LE2d 1269), relied upon by the defendant.
Judgment affirmed. Pannell and Deen, JJ., concur.

ON MOTION FOR REHEARING.
The defendant vigorously insists that the 1909 decision in Brantley v. State, 132 Ga. 573 (64 SE 676), affirmed in 1910 by the United States Supreme Court in 217 U. S. 284 (30 SC 514, 54 LE 768), is no longer controlling as the law of this State, in view of the 1957 decision of the United States Supreme Court in Green v. United States, 355 U. S. 184 (78 SC 221, 2 LE2d 199, 61 ALR2d 1119) and the 1965 decision of the United States Court of Appeals, Second Circuit, in United States v. Wilkins, 348 F2d 844.
In the Green case the Supreme Court determined that a defendant charged with first degree murder in the District of Columbia and convicted of second degree murder, who obtained a new trial and was convicted on the second trial of first degree murder, was placed in jeopardy twice for the same offense in violation of the Fifth Amendment of the Constitution. In a footnote (2 LE2d 208, n. 15) the court distinguished the Brantley case because it involved a trial in a state court.
In the Wilkins case, the petitioner in habeas corpus was indicted under New York law of first degree murder, and tried three times. After successfully appealing in the New York courts his first conviction of second degree murder, and a second conviction of first degree murder, he was convicted on the third trial of second degree murder, and imprisoned under a sentence of 40 years to life. The Court of Appeals for the Second Circuit held that the State of New York transgressed the limitations of the Fourteenth Amendment in prosecuting the petitioner for first degree murder following the completion of the first trial, and that a reasonable possibility of prejudice existed in the third trial by the fact that he was prosecuted for first degree murder. The court ordered that the writ be granted unless within a reasonable time New York afforded the petitioner a new trial conforming to the principles set forth in the opinion. *210 Although the United States Supreme Court denied certiorari, 383 U. S. 913 (86 SC 896, 15 LE2d 667), this does not establish a controlling precedent of the Supreme Court on the merits.
In 1966 the Supreme Court, in Cichos v. Indiana, 385 U. S. 76 (87 SC 271, 17 LE2d 175), rehearing denied, 385 U. S. 1020 (87 SC 699, 17 LE2d 559), did have before it the precise question of whether the Fifth Amendment's prohibition against double jeopardy applied to a state court prosecution under the due process provisions of the Fourteenth Amendment. Instead of determining the issue, however, the court dismissed the writ as improvidently granted, taking the view that because of the indistinguishable features under Indiana law of the two offenses charged, reckless homicide and involuntary manslaughter, there being a conviction in both of the first and second trials only of reckless homicide, it could not accept the petitioner's assertions that the first jury acquitted him of involuntary manslaughter and that the second trial placed him twice in jeopardy.
Earlier, in 1959, the United States Supreme Court held that the due process clause of the Fourteenth Amendment does not bar successive federal and state prosecutions for a single criminal act violating state and federal law. Bartkus v. Illinois, 359 U. S. 121 (79 SC 676, 3 LE2d 684), rehearing denied, 360 U. S. 907 (79 SC 1283, 3 LE2d 1258).
While the dissenting opinion of Mr. Justice Black in Bartkus (3 LE2d 705) which he adhered to while concurring in the majority opinion in Cichos, and the dissenting opinion of Mr. Justice Fortas in Cichos (3 LE2d 179) express views that may eventually become the majority opinion of the court, consonant with other opinions of the court subsequent to Bartkus with respect to due process in state court prosecutions (see Annotation, Bill of Rights in State Courts, 18 LE2d 1388, particularly §§ 2, 3, and 7 [c], in which the cases are collected and discussed) the Brantley case, as decided by the Georgia Supreme Court and affirmed by the United States Supreme Court, has never been expressly overruled.
Under the mandate of Art. VI, Sec. II, Par. IV of the Georgia Constitution (Code Ann. § 2-3704) the Georgia Supreme Court and not this court has jurisdiction of a case involving the construction *211 of the United States Constitution, and under Par. VIII (Code Ann. § 2-3708) the decisions of the Georgia Supreme Court are binding on this court as precedents. The Georgia Supreme Court, in line with numerous other decisions, transferred the case to this court as involving only the application of plain and unambiguous provisions of the United States Constitution. Price v. State, 224 Ga. 306 (161 SE2d 825). Within these limitations this court must apply the Brantley case as the controlling precedent. Accordingly, the court adheres to its original opinion.
Motion denied.


781 F.2d 1545
NATIONAL INDUSTRIES, INC., a corporation, Plaintiff,Counter-Defendant-Appellee, Cross-Appellant,v.SHARON STEEL CORPORATION, a foreign corporation, Defendant,Counter-Claimant, Appellant, Cross-Appellee.
No. 85-3084.
United States Court of Appeals,Eleventh Circuit.
Feb. 13, 1986.

Todd A. Cowart, Miami, Fla., for Sharon Steel Corp.
Bruce R. Kaster and Ralph J. McMurphy, Ocala, Fla., for National Industries, Inc.
Appeals from the United States District Court for the Middle District of Florida.
Before GODBOLD, Chief Judge, KRAVITCH, Circuit Judge, and SIMPSON, Senior Circuit Judge.
GODBOLD, Chief Judge:

1
This is an action for negligence, breach of warranty and breach of contract.  National Industries, Inc. is a manufacturer of bifold closet doors.  Sharon Steel Corp. supplied National with galvanized cold rolled steel, which National made into doors that it then sold to two Puerto Rican distributors, Lausell Aluminum Jalousies, Inc. and Santurce Subcontracting.  Customers of Lausell and Santurce complained that the paint on the doors peeled and flaked.  The distributors notified National of the problem, but National was unable to correct it.  By March 1982 Lausell had discontinued sales of National doors.  Ultimately, both Lausell and Santurce ceased doing business with National, and National withdrew from the Puerto Rican market.

2
National brought this diversity action against Sharon, seeking to recover, inter alia, lost profits and damages for injury to reputation and goodwill.  A jury found Sharon liable and awarded National $317,400, including $100,000 for lost profits for the year 1982, $50,000 for lost profits for 1983, and $100,000 for loss of goodwill and reputation in the Puerto Rican market.  Sharon moved for a directed verdict, a judgment n.o.v., remittitur, and a new trial.  The court granted the motion with respect to the award of $100,000 for loss of goodwill and reputation on the ground that it duplicated the award for lost profits or was speculative.  The court denied the motions with respect to lost profits and denied a remittitur, leaving in effect a judgment for $271,400.  Sharon appeals and National cross appeals.I. Lost Profits

3
Under Florida law, the applicable substantive law in this diversity case, "the loss of profit from the interruption of an established business may be recovered where the plaintiff makes it reasonably certain by competent proof what the amount of his actual loss was.  Proof of the income and of the expenses of the business for a reasonable time anterior to the interruption charged, or facts of equivalent import, is usually required."    New Amsterdam Cas. Co. v. Utility Battery Mfg. Co., 166 So. 856, 860 (Fla.1936).  An "established business" is one that is "ongoing ... with an established sales record and a proven ability to realize profits at the established rate."    Liza Danielle, Inc. v. Jamko, Inc., 408 So.2d 735, 739 (Fla.App. 3d Dist.1982), quoting Daytona MIGI v. Daytona Automotive Fiberglass, Inc., 388 So.2d 228, 232 (Fla.App. 5th Dist.1980).  Damages for lost profits will not be allowed unless there is "some standard, such as regular market values, or other established data, by reference to which the amount may be satisfactorily ascertained."    Twyman v. Roell, 166 So. 215, 217 (Fla.1936), quoted in A & P Bakery Supply v. Hawatmeh, 388 So.2d 1071, 1072 (Fla.App. 3d Dist.1980).

4
Sharon contends that National's foray into the Puerto Rican market was not an "established business" and that a determination that National was "established" is a necessary predicate to an award of lost profits.  Although National's relationship with Lausell lasted not quite a year and was terminable by either party, National had been in the business of making bifold closet doors since 1962 and had been a factor in the Puerto Rican market since 1979.  If under Florida law the issue whether a business is "established" calls for a legal determination by the court, we find no error.  The fact that the court's order does not recite that determination is of no moment.  See F.R.Civ.P. 52(a) (with exceptions not applicable here "conclusions of law are unnecessary on decisions of motions ...").  If, on the other hand, the issue is one of fact, there was sufficient evidence to take the issue to the jury.    Cf. Liza Danielle, 408 So.2d at 739 (two year old business not new, but not "well-established," entitled to present evidence of lost future profits).  Since Sharon did not request that the jury be instructed that before it could award lost profits it must find that National was "established," the adequacy of the charge is not before us.  F.R.Civ.P. 51.

5
National's proof of lost profits was not legally deficient.  National called two witnesses whose testimony went to this issue:  Lester Pafford, National's comptroller, and Ernesto Reyes, president and general manager of Lausell, the distributor that terminated its relationship with National because of the paint defects.  Pafford testified that National had earned a profit of $200,000 from sales to Lausell in 1981.  Pafford calculated a per door margin of profit by deducting per door overhead from the per unit price, and derived a projected profit for the years 1982 and 1983 of $200,000 in each year.  Pafford's projection rested upon an assumption that Lausell--the principal distributor of closet doors in Puerto Rico and National's major Puerto Rican distributor--would have demanded the same number of doors in 1982 and 1983 as it had in 1981.  This assumption was bolstered by Reyes' testimony that Lausell's business remained steady over the period spanning these three years and that but for the peeling problem Lausell would have continued to distribute National door exclusively.

6
Sharon asserts that this testimony was insufficient to resist its motion for directed verdict because Lausell was not obligated to buy a specific number of doors from National in 1982 and 1983 and might have bought fewer than it had in 1981.  An award of lost profits based on projected sales under a dealership contract terminable on 90-days notice was upheld in Massey-Ferguson, Inc. v. Santa Rosa Tractor Co., 415 So.2d 865 (Fla.App. 1st Dist.1982).    See also, Massey-Ferguson, Inc. v. Santa Rosa Tractor Co., 366 So.2d 90 (Fla.App. 1st Dist.1979).  That the relationship between National and Lausell was terminable by either party and did not fix the number of units per year to be bought and sold did not in itself require a directed verdict on the issue of lost profits.

7
A directed verdict was not required because National presented no evidence that it would have been able to pass along increased costs.  Without such evidence, according to Sharon, National's assumption of a constant profit margin was without support.  There was no evidence, however, that National's costs increased over the period in question.  Moreover, Florida law does not require the plaintiff to show that it was entitled to a fixed price over the period for which lost profit damages are sought so long as there is data from which the anticipated profit can be reasonably ascertained.    See R.A. Jones & Sons, Inc. v. Holman, 470 So.2d 60, 70 (Fla.App. 3d Dist.1985);  Massey-Ferguson, 415 So.2d at 867;  cf. Center Chemical Co. v. Avril, Inc., 392 F.2d 289 (5th Cir.1968) (uncertainty of price and quantity over executory 16-year term of contract made lost-profits award on sole evidence of plaintiff's accountant too speculative--remand ordered for new trial);  Welbilt Corp. v. All State Distributing Co., 199 So.2d 127 (Fla.App. 3d Dist.1967) (lost profits disallowed where no showing of overhead or method for estimation of unit profit was made).

8
National can rely on its internally generated data and is not required to introduce what Sharon describes as "government or other authoritative figures" to show the condition of the Puerto Rican market.    See, e.g., Massey-Ferguson, 415 So.2d at 867 (award based on plaintiff's financial statements and defendant's sales projections).

9
Considered as a whole these alleged shortcomings in National's proof did not require the issue of lost profits to be taken away from the jury.  Florida law does not require exactitude where it is certain that substantial damage has been caused;  a reasonable basis in the evidence for the computation will suffice.    R.A. Jones & Sons, 470 So.2d at 70;  Conner v. Atlas Aircraft Corp., 310 So.2d 352, 354 (Fla.App. 3d Dist.1975);  accord National Papaya Co. v. Domain Indus., Inc., 592 F.2d 813, 818 (5th Cir.1979).  We find such a reasonable basis here.    Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir.1969) (en banc) produces the same result.  Sharon's motions for directed verdict and for judgment n.o.v. were properly denied.

II. Judgment n.o.v. on damage to goodwill

10
National insists that the district court erred in granting Sharon's motion for judgment n.o.v. on the issue of injury to National's goodwill and reputation.  A motion for directed verdict at the close of the evidence is a prerequisite to the granting of judgment n.o.v.  See F.R.Civ.P. 50(b);  see also, Wilson v. Attaway, 757 F.2d 1227, 1237 (11th Cir.1985).  A motion for directed verdict should state specifically the grounds for the motion.  F.R.Civ.P. 50(a).  Sharon did move for a directed verdict at the end of National's presentation and at the end of all the evidence.  National argues that these motions were insufficient in that they did not specify as grounds lack of evidence of injury to goodwill and reputation.  We disagree.

11
At the end of National's presentation of evidence the following colloquy occurred:

12
THE COURT:  All right.  Let me hear your motion.

13
MR. COOK (Counsel for Sharon):  Your Honor, at this time the defendants would move for a directed verdict, first as to the case in whole.  The plaintiffs have not established their burden of proof in establishing [sic] both as to the liability aspects and the damage aspects of this case....

14
[An exchange ensued between THE COURT and MR. COOK concerning the significance of an alleged inconsistency in the testimony of National's experts as to the cause of the peeling problem]

15
THE COURT:  Okay.  Okay.  Denied.

16
MR. COOK:  Your Honor, the second is to direct a verdict as to the specific issue of future lost profits....

17
[MR. COOK then summarized Sharon's view of Florida law on recovery of lost future profits]

18
THE COURT:  Any other motions?

19
MR. COOK:  No, your honor, that's all at this time.

20
After the conclusion of the evidence, counsel for Sharon renewed his motion for directed verdict at the beginning of the charging conference.  During the conference National requested a jury instruction on damages that listed lost profits for 1982 and 1983 and, separately, loss of goodwill and reputation in Puerto Rico:

21
THE COURT:  Now, which elements do you want me to list?

MR. KASTER (Counsel for National):

22
Everything except--I would like to list six, your honor, but you would not allow the testimony of Mr. Reyes [of Lausell] as far as our reputation and goodwill in Puerto Rico.  I think that was my only evidence to the impact on reputation and goodwill and I would like to have that, I think, probably, under the circumstances.  Not allowing that testimony in, there may be some question about that.

23
MR. COOK:  I agree, your honor.  That was the only testimony that was attempted and there was an objection and you ruled that evidence would be excluded, so there is no evidence of goodwill and loss of reputation and goodwill.

24
[MR. KASTER then suggested, and THE COURT agreed, that there was a basis in the Reyes testimony from which the jury could infer loss of goodwill and reputation]

25
MR. COOK:  ...  The evidence that you did exclude was the only evidence, and while there may be some--where--while the jury may be able to imply, you know, that there may have been reasons why there was no longer any business being done with them, I think that's incorporated not as a separate element of damages where you could have proved a particular cost.  Like on an accounting statement, goodwill has a value.  In this case that's included within the fact that if the Court allows them to consider the lost profit issue, lost profits would include that value ...

26
The court ultimately decided to give both an instruction on lost profits and on loss of goodwill and reputation.  The court noted Sharon's objections to both instructions.

27
There is no question that Sharon moved for a directed verdict at the close of all the evidence;  the issue is whether that motion encompassed damages for lost goodwill and reputation.  Although loss of future profits and loss of goodwill and reputation may be legally distinct, the two are also closely related, for insofar as lost goodwill and reputation are compensable they are conceivable as a lost stream of future income.  The difference here between the matters raised in the motion for judgment n.o.v. and the earlier motion for directed verdict is not so great as it is in Sulmeyer v. Coca Cola Co., 515 F.2d 835, 846 (5th Cir.1975) ("vertical territorial restrictions" in motion for j.n.o.v.;    group boycotts and tying arrangements in motion for directed verdict--no objection to court's failure to instruct on vertical territorial restrictions) and Wilson v. Attaway, 757 F.2d at 1237 (motion for directed verdict as to jail conditions;  motion for j.n.o.v. as to unconstitutionality of arrests).

28
Even if the subject matters of the two motions were much farther apart, we would not read Rule 50(b) so narrowly as National urges us to do.  The reason for requiring a motion for directed verdict at the close of the evidence

29
is to avoid making a trap of the motion for judgment notwithstanding the verdict, either at the trial stage or on appeal.  When a claimed deficiency in the evidence is called to the attention of the trial judge and of counsel before the jury has commenced deliberations, counsel still may do whatever can be done to mend his case.  But if the court and counsel learn of such a claim for the first time after verdict, both are ambushed and nothing can be done except by way of a complete new trial.  It is contrary to the spirit of our procedures to permit counsel to be sandbagged by such tactics or the trial court to be so put in error.

30
Quinn v. Southwest Wood Products, Inc., 597 F.2d 1018, 1025 (5th Cir.1979).  Because the rule is a harsh one, we have taken a liberal view of what constitutes a motion for directed verdict.    Id. at 1026.  There is nothing in the record to suggest an ambush or sandbagging, and National can hardly complain that it was lulled into complacency regarding the sufficiency of its evidence of lost goodwill and reputation. See Splitt v. Deltona Corp., 662 F.2d 1142, 1143-45 (5th Cir.1981) (Unit B) (objection to jury charge on punitives sufficed as predicate to motion for j.n.o.v., even though earlier motion for directed verdict went only to fraud issue--"Since all parties had notice of the basis for [movant's] concern, Rule 50's purpose had been served.").  Sharon was entitled to make a motion for judgment n.o.v. on the issue of lost goodwill and reputation.

31
In reviewing the disposition of Sharon's motion for judgment n.o.v. we apply the standard outlined in Boeing Co. v. Shipman, 411 F.2d at 374.  Viewing the entire record in the light most favorable to National, we hold that there was not "substantial evidence ... of such quality and weight" that would permit an impartial juror to make a separate award for lost goodwill and reputation.  The motion for judgment n.o.v. on this issue was properly granted.

32
AFFIRMED.


                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                February 18, 2004

                                                         Charles R. Fulbruge III
                                                                 Clerk
                            No. 03-20872
                        Conference Calendar

ROBERT B. MILES,

                                    Plaintiff-Appellant,

versus

V. EVERETTE, Parole Officer; J. ONYEJEKWE, Parole Officer;
P. CAVIEL, Unit Supervisor; S. JENKINS, Regional Director;
L. TIERLING, Assistant Region Director; D. HOUGE, Parole
Officer; SHELVIN WILBERT, Parole Officer; M. NOWOSKI, Unit
Supervisor; BOARD OF PARDONS AND PAROLES, Huntsville Panel;
BOARD OF PARDONS AND PAROLES, Angleton Panel,

                                    Defendants-Appellees.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                      USDC No. H-03-CV-2843
                       --------------------

Before HIGGINBOTHAM, EMILIO M. GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

     Robert B. Miles, Texas prisoner # 536884, proceeding pro se

and in forma pauperis (IFP), appeals the dismissal pursuant to 28

U.S.C. § 1915A(b)(1) of his civil rights complaint filed pursuant

to 42 U.S.C. § 1983 as frivolous and for failing to state a claim

upon which relief may be granted.   Miles argues that the Texas

     *
        Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                            No. 03-20872
                                 -2-

Board of Pardons & Paroles (Parole Board) has used false

information in his juvenile record to impose upon him parole

conditions applicable to a sex offender in violation of his

constitutional right to equal protection and the Eighth Amendment

prohibition against cruel and unusual punishment and also in

abuse of its discretion.    He seeks monetary damages and

injunctive relief.    Miles also has filed in this court a motion

for temporary injunction and a motion to file a supplemental

brief to amend his claim for relief.

     28 U.S.C. § 1915A instructs the district court to review

prisoner complaints, before docketing if feasible, or in any

event, as soon as practicable, and to dismiss them if they are

“frivolous, malicious, or fail[] to state a claim upon which

relief may be granted.”    28 U.S.C. § 1915A(b)(1).

     Miles’s claims against the Parole Board are barred by the

Eleventh Amendment.    See McGrew v. Texas Bd. of Pardons and

Paroles, 47 F.3d 158, 161 (5th Cir. 1995).    His claims against

the parole officers, supervisors and officials of the Parole

Board are barred under the doctrine of absolute immunity.       See

Littles v. Board of Pardons and Paroles Div., 68 F.3d 122, 123

(5th Cir. 1995).   Consequently, the district court’s dismissal of

Miles’s complaint is AFFIRMED.

     Miles’s motion for temporary injunction and his motion to

amend his claim for relief are DENIED as moot.
                           No. 03-20872
                                -3-

     The district court’s dismissal of Miles’s lawsuit as

frivolous constitutes one strike for purposes of the 28 U.S.C.

§ 1915(g) bar.   See Adepegba v. Hammons, 103 F.3d 383, 388 (5th

Cir. 1996).   We caution Miles that once he accumulates three

strikes, he may not proceed IFP in any civil action or appeal

filed while he is incarcerated or detained in any facility unless

he is under imminent danger of serious physical injury.     See 28

U.S.C. § 1915(g).

     AFFIRMED; SANCTION WARNING ISSUED; MOTIONS DENIED.


502 So.2d 1225 (1987)
Manuel VALLE, Appellant,
v.
STATE of Florida, Appellee.
No. 61176.
Supreme Court of Florida.
January 5, 1987.
Rehearing Denied March 19, 1987.
Michael Zelman, Miami, for appellant.
Jim Smith, Atty. Gen. and Richard L. Polin, Asst. Atty. Gen., Miami, for appellee.
PER CURIAM.
We recently affirmed appellant's conviction for first-degree murder and sentence of death. Valle v. State, 474 So.2d 796 (Fla. 1985). In Valle v. Florida, ___ U.S. ___, 106 S.Ct. 1943, 90 L.Ed.2d 353 (1986), the United States Supreme Court granted certiorari, vacated the sentence of death, and remanded the cause to this Court for further consideration in light of Skipper v. South Carolina, ___ U.S. ___ 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986). For the reasons expressed below, we remand for resentencing.
Skipper introduced, as mitigating evidence, the testimony of himself, his former wife, and his mother in proof of his good conduct while in jail awaiting trial. As additional proof of his adjustment to prison life, Skipper proffered the testimony of two jailers and a regular visitor, which testimony was excluded by the trial court as irrelevant and inadmissible. The United States Supreme Court held that the exclusion of this testimony violated the precepts of Eddings *1226 v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982), and Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), which mandate that "the sentencer ... not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record," and that "the sentencer may not refuse to consider or be precluded from considering `any relevant mitigating evidence,'" 106 S.Ct. at 1670-71, quoting Eddings, 455 U.S. at 110, 114, 102 S.Ct. at 874, 876. In reaching this conclusion, the Court rejected the state's argument that the excluded testimony was cumulative, finding that the jailers and the visitor were disinterested witnesses whose testimony would be given greater weight by the jury.
A rehabilitation officer testified in the instant case that Valle had been a model prisoner and was rehabilitated during his prior imprisonment. The trial court excluded the expert testimony of a clinical psychologist and two corrections consultants which was proffered in proof of Valle's claim that, if given a sentence of life imprisonment rather than death, he would be a model prisoner. The United States Supreme Court in Skipper found that evidence of probable future conduct in prison is relevant mitigating evidence.
[E]vidence that the defendant would not pose a danger if spared (but incarcerated) must be considered potentially mitigating. Under Eddings, such evidence may not be excluded from the sentencer's consideration.
... .
[A] defendant's disposition to make a well-behaved and peaceful adjustment to life in prison is itself an aspect of his character that is by its nature relevant to the sentencing determination.
106 U.S. at 1671, 1672 (footnotes omitted).
When we first considered this matter, 474 So.2d at 804, we found that this proffered "model prisoner" testimony was cumulative and properly excluded. We are not persuaded that the excluded testimony of these experts differed in quality and substance from that of the rehabilitation officer. The expert testimony was proffered in proof of the probability that Valle would be a model prisoner in the future. It cannot be said that this evidence was cumulative in light of the rehabilitation officer's testimony that he could only vouch for Valle's behavior while previously imprisoned and that he had no opinion as to Valle's ability to adjust, in the future, to prison life.
Although Skipper requires only that we remand to the "sentencer" for consideration of all relevant mitigating evidence, we remand for a new jury recommendation as well. The jury's recommended sentence is given great weight under our bifurcated death penalty system. It is the jury's task to weigh the aggravating and mitigating evidence in arriving at a recommended sentence. Where relevant mitigating evidence is excluded from this balancing process, the scale is more likely to tip in favor of a recommended sentence of death. Since the sentencer must comply with a stricter standard when imposing a death sentence over a jury recommendation of life,[*] a defendant must be allowed to present all relevant mitigating evidence to the jury in his efforts to secure such a recommendation. Therefore, unless it is clear beyond a reasonable doubt that the erroneous exclusion of evidence did not affect the jury's recommendation of death, the defendant is entitled to a new jury recommendation on resentencing. Since we cannot say beyond a reasonable doubt that the exclusion did not affect that recommendation, we remand for a new sentencing hearing with a new jury panel.
It is so ordered.
McDONALD, C.J., and BOYD, OVERTON, EHRLICH and SHAW, JJ., concur.
ADKINS, J., dissents with opinion.
*1227 ADKINS, Justice, dissenting.
I dissent. I am convinced that the recent United States Supreme Court decision of Skipper v. South Carolina, ___ U.S. ___, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986), does not require us to order a resentencing hearing for Valle.
The facts involved in Skipper and the instant case are easily distinguishable, and the language in Skipper indicates that those factual distinctions are controlling and warrant different results.
In Skipper, petitioner and his former wife both testified that petitioner had conducted himself well while in jail awaiting trial. The reversible error occurred when the trial court excluded the testimony of two jailers and one jail visitor who were going to testify that petitioner had "made a good adjustment" during his stay in jail. 106 S.Ct. at 1670. The Court rejected the state's argument that the excluded testimony was merely cumulative and its exclusion harmless in light of the testimony of the petitioner and his former wife. The Court rejected the cumulative evidence/harmless error argument "on the facts before us." 106 S.Ct. at 1673 (emphasis supplied). It went on to explain that the error was not harmless because the testimony of three disinterested witnesses would have a far greater impact on the jury than the self-serving testimony of the petitioner. Id.
Unlike in Skipper, Valle presented at trial the testimony of a disinterested witness who testified about his behavior as an inmate. As we noted upon direct appeal, "Eurvie Wright, special administrator of the Dade County Corrections and Rehabilitation Department, was a bureau supervisor of the Dade County Stockade in 1975 when appellant was an inmate there. Wright, who was a rehabilitation officer, testified that during the time appellant was in prison, he was a model prisoner and was rehabilitated." 474 So.2d at 804. Thus, unlike in Skipper, competent "model prisoner" testimony was presented from a disinterested stockade supervisor, as opposed to the self-serving testimony of the defendant referred to in Skipper. Indeed, the Court in Skipper emphasized the great weight and credibility that such a jailer's testimony would likely carry. 106 S.Ct. at 1673. Thus, the sentencing judge and jury were presented with mitigating evidence indicating that Valle would not pose a danger in prison if spared.
The majority holds, contrary to our prior holding in Valle v. State, 474 So.2d 796, 804 (Fla. 1985), that the excluded testimony was not cumulative because it was proffered to prove that Valle would be a model prisoner in the future whereas the admitted testimony referred to Valle's past conduct in prison. Skipper does not require us to reverse our prior finding that the proffered testimony was cumulative and therefore properly excluded.
In Skipper, the United States Supreme Court recognized that testimony of a defendant's past conduct in prison pertains to the defendant's probable future behavior if sentenced to life imprisonment. 106 S.Ct. at 1671. In fact, the improperly excluded testimony deemed relevant to Skipper's likely future conduct in prison spoke only of Skipper's behavior in jail awaiting trial. Further, the Court found that any distinction between testimony regarding the probability that a defendant would be a model prisoner in the future and testimony pertaining to a defendant's behavior while previously imprisoned was "elusive." 106 S.Ct. at 1672.
Skipper does not mandate a resentencing hearing for Valle. Unlike Skipper, Valle has already presented the sentencing judge and jury with "model prisoner" testimony from a disinterested witness.
NOTES
[*]  "In order to sustain a sentence of death following a jury recommendation of life, the facts suggesting death should be so clear and convincing that virtually no reasonable person could differ." Tedder v. State, 322 So.2d 908, 910 (Fla. 1975).