Motion for Summary Judgement; Memorandum Supporting Plaintiffs' Motion for Summary Judgement Under Rule 56

    > f * /

.IN THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT ' '

. .. 72-1064• No. -

RONALD BRADLEY, et al,

■ %  . Plaintiffs-Appellants,
. Cross-Appellants, .■ v *

. . • vs. .
WILLIAM G. MILLIKEN, et al.,

• • . . Defendants-Appellees,
Cross-Appellants,

DETROIT FEDERATION OF TEACHERS, LOCAL 231 
AMERICAN FEDERATION OF TEACHERS, AFL-Cio/

• ■ Defendant-Intervenor-
■ ; . . Appellee,

and
DENISE MAGDOWSKI, et al.,

-Defendants-Intervenor.

Appeal from the United States District Court 
for the Eastern District of Michigan 

• ' Southern Division

• OBJECTION TO MOTION FOR LEAVE TO 
PROCEED ON THE ORIGINAL PAPERS AND 
' DISPENSE WITH PRINTED APPENDIX



. V ' '
* Defendant-Appellee and cross-appellant,* the Board*
of Education of the City of Detroit, a School District of the

first class, (hereinafter sometimes referred to as the "Detroit
Bo.ard", respectfully objects to the motion of plaintiff-appellants
and cross-appellees Ronald Bradley, et al. that this Court dispense
with the requirement of a printed appendix and respectfully prays
that the Court order the preparation of an appendix pursuant to

• »

Rule 30 and 31 of the Federal Rules of Appellate Procedure, sub- 
■ ject only to such further stipulations and orders as the parties

The proper designation of the parties as appellant or appellee is 
currently subject to some confusion. Plaintiff Ronald Bradley, 
et al. presented to opposing counsel a proposed stipulation regard- 
m g  the designation of parties and the order of briefs. Counsel 
for the Board of Education of the City of Detroit tentatively con­
curred, subject to the agreement of counsel Ronald Bradley, et al. 
to some further stipulation regarding the ordering of oral argu­
ment. Counsel for the Detroit Board is informed and believes that 
counsel for Defendant-Intervenor Detroit Federation of Teachers 
objects to being designated as an Appellant and wishes to be con­
sidered as a cross-appellee only and therefore would agree to the 
above^mentioned^stipulation only if that change was made. Counsel 
for^William Miliiken and the other state defendants has indicated 
their desire to be designated as appellees, and therefore has not 
agreed co the stipulations proposed by counsel for Ronald Bradley,
®^ * Counsel for the Detroit Board has proposed further stipu­
lations designed both to facilitate the orderly.consideration of 
this appeal and to meet with the approval of all parties, but at 
. ls writing has not received agreement from any other party. '.It 
*LS thexeiox e, tne understanding of the Detroit Board that pursu­
ant to Rule38(h) F.R.A.P. plaintiff Ronald Bradley ' ' '
rently properly designated at ~

.A.P. plaintiff Ronald Bradley, et al is cur 
. - _ - designated as appellant, but that that designa

.txon is subject to change, by future agreement of the parties 01 
order of the Court.

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rnicfht agree to and. the Count might approve. As grounds for- this ■ 
objection, the Detroit Board says as follows: • •

1. The Defendant Detroit Board admits and agrees to 
the accuracy of the allegations made in paragraph one through 
seven of Plaintiff's motion, except as to Plaintiffs' designation 
of the parties for appeal, as discussed in the footnote above, and 
•except as to Plaintiffs' characterization of their appeal as 
"protective in nature". The Detroit Board is unaware of any pro­
vision of the Federal Rules of Appellate Procedure which provides 
for "protective appeals" and is compelled to assume that it is the 
intention of the plaintiffJto prosecute' his•appeal should- it not 
be dismissed by the Court. .

; 2. With regard to paragraph eight of plaintiffs' motion
Defendant Detroit Board recognizes that the cost of preparation 
of such an Appendix is substantial, but would suggest to the Court 
that it is proportionately no more substantial than was the cost 
of the extraordinarily lengthy trial in this case. If the issues 
in this case were of such significance as to consume forty-one 
days of trial time, surely they are of such significance as to
justify a full and complete presentation to the Court of Appeals.

- 3. With regard to paragraph nine of Plaintiffs' 
the Detroit Board would note that, to the best of counsel' 
edge and belief, throughout the extremely time consuming a 
sive course of this litigation plaintiffs have never prore 
financial inability to proceed, except with regard to Plat

mot; i on
k  not

o n v



motion to present integration plans at the expense of the ; j
Detroit Board,, heard by the District Court on December 20, ' • J
1971. That motion has not been granted by the District" Court,
nor was there indication made by Plaintiffs at that time that
they could not bear that expense but rather that they should not '
be required to do so. (See motion of Plaintiffs to present
plans . attached hereto as Appendix A at page 12-.) ,

• 4. With further regard to paragraph nine the Detroit
Board affirms that it is willing to bear the initial cost of 
preparing the appendix regardless of its ultimate designation as <• 
appellant or appellee. Plaintiffs therefore shall-only have to 
assume this burden when their case is found to be without merit.

. 5. The Detroit Board would further note the admission .
in paragraph 6 of the Plaintiffs' motion that, substantial refer­
ence was made to the transcript in the post-trial briefs of the 
.parties. Presumably counsel for Plaintiffs draws from this the 
inference that there is likely to be similar substantial refer­
ence to the transcript in the briefs of the parties on appeal.
The Detroit Board shares this inference, but would respectfully
■

suggest to the Court that it argues powerfully for the preparation 
of a full and complete appendix including the transcript. While 
certainly the Court itself is in the best position to determine what 
will and will not be helpful to it in considering this appeal, the

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• Detroit Board would respectfully suggest that if substantial 
. reference to the transcript is likely the provision to the Court 

•°f only one carbon copy of the transcript to be utilized by all 
•the members of the Court who sit on this appeal and all of their 
- clerks might well hinder the orderly, efficient, and effective
consideration by the Court of this most important case. f
' - • • .* '. ' • ' ' f

WHEREFORE, because of the crucial importance of this ' "
case to all of the residents of a major metropolitan area, and the* * 
.pivotal role in its determination which both parties predict may • 
be played by the trial transcript, defendant appellee and cross- - 
appellant the Board of Education of the City of Detroit, respect­
fully -prays that an order be entered denying the motion of 

Plaintiffs to proceed on the original papers and ordering the . 
progress of this case pursuant to the Federal Rules of Appellate 
Procedure, subject to such stipulations and orders which the par­
ties may agree to and the Court may approve or further order of 
the Court based on any subsequent motion of the parties. : .

.. • :• ; : ;; ' Respectfully submitted, ■

’RILEY AND ROUNELL

Dated:

■ February 3, 19 72
Q-.

. //•- -.George T-L
Attorneys
Education

Roumel 
for Dc

p) /L
.‘troit Board of (

720 Ford Building .
Detroit, M ichigan i02 26 
(962-02.05)



CERTIFICATE OF SERVICE

hereby certify that a copy of the foregoing 
Objection to Motion For Leave To Proceed On Original Papers 
was served upon the following names counsel of record by 
United States mail, postage prepaid, addressed to their 
respective addressed: •

Messrs. Louis R. Lucas and William E. -
- ' Caldwell

■ Mr. Theodore Sachs ' .
- Mr. Alexander B. Ritchie ,

/ ' '
. Mr. Eugene Krasicky .

February 3, 1972.Dated:



#

a

CERTIFICATE OF SERVICE

I hereby certify that on the 3rd day of July, .1972,
I served a true copy of the foregoing Response of Defendants 
William G. Milliken, Governor; Frank j. Kelley, Attorney 
General; the State Board of Education and John W. Porter, 
Superintendent of Public Instruction, in Opposition to the 
Motions for Accelerated Schedule on Appeal and for Leave to 
Proceed on Original Papers and to Dispense with Printed Appendix 
upon each of the following named attorneys of record by mailing 
the same to him by first class mail, postage fully prepaid, 
addressed to his last known business address:

Messrs. Louis R. Lucas & William E. Caldwell 
. Messrs. J. Harold Flannery, Paul R. Dimond 

& Robert Pressman
Messrs. Jack Greenberg & Norman J. Chachkin
Mr. Nathaniel R. Jones
Mr. E. Winther McCroom
Mr. Bruce Miller & Ms. Lucille Watts
Mr. Alexander B. Ritchie
Mr. George T. Roumell, Jr.
Mr. Theodore Sachs 
Mr. Kenneth B. McConnell 
Mr. Richard P. Condit 
Mr. William M. Saxton
Messrs. Douglas H. West & Robert B. Webster 
Mr. Robert J. Lord