Motion for Leave to Supplement the Record or in the Alternative for a Writ of Certiorari to the Fourth Circuit

     [||a77dd801-4320-43b9-9d88-3f210e0325e8||] IN THE 

SUPREME COURT OF THE UNITED STATES 

October Term, 1970 : 

Nos. 281 and 349 

JAMES E. SWANN, et al, 

Petitioners, 

VS. 

CHARLOTTE-MECKLENBURG 
BOARD OF EDUCATION, et al, 

Respondents. 

and 

JAMES E. SWANN, et al, 

Petitioners and Cross Respondents, 

VS. 

CHARLOTTE-MECKLENBURG 
BOARD OF EDUCATION, et al, 

Respondents and Cross Petitioners. 

  

MOTION FOR LEAVE TO SUPPLEMENT THE RECOR 
OR IN THE ALTERNATIVE FOR A WRIT OF CERTIORARI 

TOTHE COURT OF APPEALS FOR THE FOURTH CIRCUIT 

  

  

  

Respondents and cross petitioners respectfully move that the Court 

authorize respondents and cross petitioners to supplement the record in 

the foregoing appeals now pending in this Court or, in the alternative, that 

this motion be treated as a petition for writ of certiorari to the Court of 

Appeals for the Fourth Circuit, and in support thereof, respectfully show 

unto the Court as follows: 

  

     



      

1. On June 29, 1970, the Supreme Court of the United States 

granted certiorari in Case No. 281 and reinstated the order of the District 

Court as follows: 

iF The petition for writ of certiorari is granted, 
provided that the judgment of the Court of Appeals is 

left undisturbed insofar as it remands the case to the 

District Court for further proceedings, which further 

proceedings are authorized, and the District Court's 

judgment is reinstated and shall remain in effect 

pending those proceedings. 

2. Pursuant to the directive of the Court of Appeals as authorized 

by the Supreme Court, the United States District Court of the Western 

District of North Carolina conducted further hearings commencing on 

July 15, 1970, which extended over an eight-day period and culminated 

in the two orders of the District Court dated August 3 and August 7, 1970, 

which wholly reinstated its order of February 5, 1970, which order formed 

the primary basis for the appeal to the Court of the Appeals and the 

appeals to the Supreme Court herein. 

3. On August 31, 1970, the Honorable Warren E. Burger, Chief 

Justice of the Supreme Court of the United States, set oral argument in 

Cases Nos. 281 and 349 for argument on October 12, 1970. In addition, 

the order directed the filing of briefs with reference to Case No. 349 

and deferred action on the pending cross petition for a writ of certiorari. 

The appeal in No. 281 and the cross appeal in No. 349 test the legality 

of the District Court's order of February 5, 1970, as reaffirmed by the 

District Court in its orders of August 3 and August 7, 1970. 

‘ Notice of appeal from the orders of the United States District 

Court for the Western District of North Carolina dated August 3 and 

August 7, 1970, has been filed by respondents and cross petitioners herein 

and the record was docketed in the United States Court of Appeals for the 

Fourth Circuit on September 3, 1970, as Case No. 15050. 

  

       



      

5. The issues involved in Case No. 281 and 349 are identical to 

those pending in the Court of Appeals for the Fourth Circuit as Case No. 

15050 and therefore complete resolution of the orders of the District Court 

may be resolved only by the Supreme Court. 

6. The partial record in this matter now lodged with the United 

States Court of Appeals for the Fourth Circuit is necessary, proper and 

essential for a full consideration of all issues as they exist between the 

~ parties in Case Nos. 281 and 349. 

7..:1n oadon that the record shall be complete, it is deemed et 

desirable by all parties that the complete record, including the proceedings 

held by the District Court which culminated in its biden of August 3, 

1970, and August 7, 1970, be before this Court. This procedure was 

apparently contemplated by the Supreme Court at the time of the granting 

of the writ of certiorari in Case No. 281. 

WHEREFORE, respondents and cross petitioners respectfully 

petition the Court for an order directing the United States Court of Appeals 

for the Fourth Circuit in Case No. 15050 to forthwith deliver to the 

United States Supreme Court the entire record on appeal from the orders 

dated August 3 and August 7, 1970, in the United States Court of Appeals 

for the Western District of North Carolina in a case therein entitled 

James E. Swann, et al, vs. Charlotte-Mecklenburg Board of Education, 
  

et al. 

In the alternative, should the Court elect to disallow the foregoing 

motion, it is requested that this motion be treated as a petition for writ of 

certiorari pursuant to Rule 20 of the United States Supreme Court Rules 

and before judgment in the Court of Appeals for the Fourth Circuit for 

reason that these cases and the supplemental record is of such imperative         
 



2 ® » 

) 

  

public importance as to justify the deviation from normal appellate 

processes and require immediate settlement in this Court on October 12, | 

1970. The issues presented in the case now pending in the United States 

Court of Appeals for the Fourth Circuit are identical to the issues presented 

by Nos. 281 and 349. 

Respectfully submitted this : "day of September, 1970, 

° 

  

William J. Waggoner 

Weinstein, Waggoner, Sturges, Odom 

and Bigger 

1100 Barringer Office Tower 

Charlotte, North Carolina 

° 

  

“Benjamin. S. Horack 

Ervin, Horack and McCartha 

806 East Trade Street 

Charlotte, North Carolina 

Attorneys for Respondents and Cross 

Petitioners [||a77dd801-4320-43b9-9d88-3f210e0325e8||]