Wilder v. Lambert Brief for Appellee

    IN THE
m

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Nos. 74-1105 and -1105

MICHELLE OLIVER, et a l . ,

Plaintiffs -Appellees,

vs.

MICHIGAN STATE BOARD OF EDUCATION, et a l . , 

Defendants -Appellants,

and

T KALAMAZOO BOARD OF EDUCATION, et a l . ,
i

t Defendants-Appellants.

MOTION FOR LEAVE TO SUBMIT 
AND

BRIEF AMICUS CURIAE IN SUPPORT OF REHEARING 
ON THE ISSUE OF TAXATION OF COSTS

NORMAN J. CHACHKIN 
Suite 2030 
10 Columbus Circle 
New York, New York 10019

PAUL R. DIMOND 
WILLIAM E. CALDWELL 

Suite 520
733 Fifteenth Street, N. W. 
Washington, D. C. 20005



IN THE

Nos, 74-1104 and -1105

/

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

MICHELLE OLIVER, et a l . ,

Plaintiffs-Appellees,

vs,

MICHIGAN STATE BOARD OF EDUCATION, et a l . ,

Defendants-Appellants,

and

KALAMAZOO BOARD OF EDUCATION, et a l . , 

Defendants -Appellants.

MOTION FOR LEAVE TO SUBMIT BRIEF 
AMICUS CURIAE IN SUPPORT OF REHEARING 

ON THE ISSUE OF TAXATION OF COSTS

WILLIAM E. CALDWELL, NORMAN J. CHACHKEN and PAUL R. 

DIMOND, attorneys and Members of the Bar of this Court, respectfully 

pray that this Court grant them leave to file the attached, short Brief



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Amicus Curiae in support of the Petition for Rehearing and Suggestion
1/

of Rehearing En Banc in the above-captioned matter. Amices purpose 

in seeking to file this Brief is to bring to the Court’s attention the 

unfortunate impact its Order on Motion to Tax Costs of March 12,

1975, will have upon the practising Bar in this Circuit. Submission 

of an amicus brief in connection with a petition for reconsideration 

of a procedural order is indeed an unusual step, but in our view, 

the Court’s Order contains language which will, unless its implications 

are corrected, establish an unjust and insupportable precedent governing 

the procedures to be followed on appeals in this Circuit.

For more than five years each, proposed amici have been members 

of the Bar of this Court and have prosecuted appeals with regularity; 

we have appeared before all of the members of the Court. None of 

us is counsel for any of the parties in the instant matter; while each 

of us has been associated with some counsel for plaintiffs Oliver, et al. 

in other cases, this amicus presentation has not been solicited or r e ­

quested by counsel for plaintiffs. Rather, having been apprised of the 

Order on Motion to Tax Costs, we are concerned with its precedential 

effect

WHEREFORE, for the foregoing reasons, undersigned respectfully

1/ While unusual, the filing of an amicus Brief by an individual member 
of the Bar of this Court is not unknown. See Kelley v. Board of Educ. 
of Nashville, Nos. 13748 and 13749 (Clerk’s letter-Order of March 20, 
1357):



pray that this Court grant leave to file the appended Brief Amicus 

Curiae in support of Rehearing.

Respectfully submitted,

WILLIAM E. CALDWELL 
PAUL R. DIMOND 

520 Woodward Bldg.
733 Fifteenth Street, N. W. 
Washington, D. C. 20005

NORMAN J. CHACHKIN 
Suite 2030 
10 Columbus Circle 
New York, New York 10019

Amici Curiae



IN THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Nos. 74-1104 and -1105

MICHELLE OLIVER, et a l . ,

Plaintiffs-Appellees,

vs.

MICHIGAN STATE BOARD OF EDUCATION, et a l . , 

Defendants-Appellants,

and

KALAMAZOO BOARD OF EDUCATION, et a l . ,

Defendants -Appellants.

BRIEF AMICUS CURIAE IN SUPPORT OF 
PETITION FOR REHEARING AND SUGGESTION OF 

REHEARING EN BANC OF ORDER ON MOTION TO TAX COSTS

Interest of the Amici

This Brief is respectfully submitted by three members of the Bar 

of this Court who have practiced before the Court on numerous occasions



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during the past five years, to express their concern as practitioners 

about the ruling in this case upon appellants’ Motion to Tax Costs.

As is more fully described in the body of this Brief, this Court’s Order 

seems to announce a rule of procedure which cannot but result in greatly 

increasing the complexity and confusion which will attend the appellate 

process in this Circuit. Indeed, we submit that unless the language 

of the Court's Order is modified, the practising Bar of the Circuit 

will be forced to adopt one of a very few number of alternatives in 

preparing their Briefs and Appendices in appeals to this Court, each 

of which would needlessly delay or complicate such appeals. Based 

upon the experience of amici with this Court, we believe that such a 

result is unintended and unnecessary to accomplish any valid purposes 

of the Order. Accordingly, amici have sought to share their views 

with the Court since we understand that appellees have filed a Petition 

for Rehearing and Suggestion of Rehearing J3n Banc.

The Factual Controversy

Amici are not, and have not sought to make themselves, intimately
2/

familiar with the underlying merits of the instant appeaE It is a school

2 / Although amici have been associated with some of counsel for appellees 
in other matters, amici have not participated in the instant matter. Amici 
were informed of this Court’s March 12, 1975 Order by one of counsel for 
appellees but not asked to do anything in connection therewith. However, 
amici were very concerned about the effect of the Court’s Order on appellate 
practice in this Circuit, and upon their request were furnished copies of the 
various pleadings and briefs filed by the parties to this appeal in connection 
with the cost issue. After considerable discussion, amici themselves deter­
mined to put their views before this Court.



desegregation case in which the District Court has twice (on prelim i­

nary injunction and after a full trial) ruled in plaintiffs’ [appellees'] 

favor and been affirmed by this Court. 346 F. Supp. 766 (W. D. Mich.), 

aff’d 448 F. 2d 635 (6th Cir. 1971); 368 F. Supp. 143 (W.D. Mich. 1973), 

508 F. 2d 178 (6th Cir. 1974). The present controversy grows out 

of the second appeal in the case.

As amici understand the setting of the matter, the appellants were 

State and local school officials; pursuant to F. R. A. P. 30 their counsel 

initially served a designation of the proposed contents of the Appendix, 

for this appeal upon counsel for appellees [successful plaintiffs], along 

with a statement of the issues appellants would present to this Court 

for decision. Appellees’ counsel, upon concluding that additional portions 

of the record should be conveniently accessible to Jill members of the 

panel which would hear this matter, served a counter-designation. Ac­

cording to this Court's Order, the combined result was a sixteen-volume 

Appendix of 5054 pages.

After appellants lost on the merits before this Court, they filed 

a Motion seeking to recover some of the costs they had incurred in 

reproducing the Appendix, on the grounds that large portions of 

appellees’ Counter-Designation under F. R. A. P. 30 were unnecessary 

to the disposition of the case. Tbe Court granted that motion to the 

extent of requiring plaintiffs-appellees to pay the State of Michigan 

and the Kalamazoo School Board $32,000.00. Plaintiffs-appellees 

petitioned for reconsideration.



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Summary of Argument

As we explain below, this Court's Order, and the pleadings and 

briefs of the parties addressed to the costs issue, indicate that waste­

ful, inexcusable extravagancy by counsel for appellants was as much 

or more the cause of the unusual, unnecessarily expensive Appendix 

in this matter as any over-designation which may have been done by 

counsel for appellees. Under these circumstances, in this school 

desegregation case whose prosecution serves the public interest, we 

believe that the ends of justice would be served by the Court’s re p ri­

mand of counsel for both sides, (to the extent the Court determines 

such action is warranted), without requiring that plaintiff students and 

their parents be required to reimburse public officials for expenses 

incurred on an appeal involving the unlawful conduct of those public 

officers.

Should the Court conclude that some portion of the Appendix repro­

duction costs should be borne by appellees, however, amici urge that 

the rule which seems to be embodied in the Court’s March 12, 1975 

Order--that any page of the Appendix not cited in a Brief is "unnecessary 

within the meaning of F. R. A. P. 30—should be abandoned and withdrawn.



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ARGUMENT

I.

UNDER ALL THE CIRCUMSTANCES 
OF THIS CASE, NO COSTS SHOULD 
BE TAXED AGAINST APPELLEES 
DESPITE THE LENGTH OF THE APPENDIX

Amici do not seek to question this Court’s determination that T'a 

large portion [of the printed Appendix in this matter] was unnecessary." 

We are not familiar with the underlying merits, and we have not under­

taken to study the Appendix and the Briefs. We presume that appellees 

will address themselves to that question in their Petition.

However, based upon a reading of the documents submitted by the
'j

parties in connection with the Motion to Tax costs filed by the appellants,
.(

we are of the opinion that the cost of reproducing the Appendix was 

unnecessarily inflated by the appellants. Since this is a school desegre­

gation action whose prosecution serves the public interest, we respect­

fully suggest that the Court’s purposes would be better served by a 

reprimand of counsel for both sides, than by taxing any portion of the 

costs—let alone the sum of $32,000—against appellee schoolchildren 

and their parents.

The Court's Order indicates that the Court was ’’astounded at 

the amount of the bill of costs submitted by the printer and at some 

of the items included therein ," a feeling which amici share. The Order

reflects that the printing charges as submitted averaged $21. 85 per



-6 -

page, a rate well above that commonly incurred in Cincinnati (and 

elsewhere). A further breakdown and analysis of the itemized charges 

indicates that, excluding the costs of expedited preparation, hotel 

accommodations for staff, chartered aircraft, e tc ., the printing costs 

totaled $21. 30 per page, a sum which is still ’’astounding. ”

Amici note, for example, that they customarily have reproduced 

both Briefs and Appendices, in appeals in which they have participated 

before this Court, by xerography or other inexpensive method as per­

mitted by the Federal Rules of Appellate Procedure and the practice of 

this Court. Amici have often recovered costs in connection with such 

m atters, at the rate of $0.10 per page per copy. If reproduced by this 

method, an Appendix of 5054 pages, including ten copies for filing with 

the Court and five copies for service and for counsel, would cost some 

$7,581, or slightly less than one-fifteenth the cost incurred by counsel 

for appellants in this matter.

The Court has recognized the shocking rates at which charges 

were incurred by counsel for appellants, by taxing costs against 

appellees at just under the top ($10) per page rate available in 

Cincinnati (3311 pages x $9. 66 per page). However, in light of the 

fact that xerox or multilith reproduction could have saved the parties 

more than $100,000.00, even that taxation seems excessive to amici.

There can hardly be any plausible justification for requiring 

appellees to bear any part of the costs which resulted from the wilful



-7 -
//

election by counsel for appellants to employ the most expensive means 

of reproduction. Although counsel seems to have attempted to justify 

the extraordinary cost of reproduction by citing the need for speed 

("From the date of . . .  receipt [of appellees’ cross-designations] KBE 

had 9 days to file the joint appendix," Brief in Support of Motion to 

Tax Costs, at p. 1), this can hardly support counsel’s decision to em­

ploy the slowest, and most expensive method of reproduction--letter- 

press typesetting. Furthermore, if, as counsel suggests (ibid.), their 

receipt of the cross-designations were inexplicably delayed a week in 

the mails, it would have been a simple matter for counsel to have 

sought the short extension of time necessary to permit completion 

of the Appendix without the shockingly high charges obviously incurred 

for the sake of expedition! Based upon our experience with the Clerk’s 

Office of this Court (and irrespective of the individual who has filled 

that position), we are confident that under the circumstances such an 

extension would surely have been granted. Additionally, a short ex­

tension would not have resulted in delaying the submission of the case, 

since it need not have resulted in extending the due date for appellees’ 

brief; at worst, the latter could have been submitted with original 

record citations, if necessary, to be supplemented by additional copies 

of the brief in which citations to the Appendix were included.

Unfortunately, for all concerned (Court, counsel and parties), counsel 

for appellants apparently did not explore this simple expedient of reducing



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the costs. Under these circumstances, the actions of counsel for 

appellants produced as much extravagant waste as any over-designation 

by counsel for appellees. We respectfully suggest that it is unduly 

harsh to require appellees to pay $32,000 to the State of Michigan and 

the Kalamazoo Board of Education, even if the Court concludes that 

the performance of counsel for appellees in connection with the cross- 

designation fell short of the high standards expected in this Circuit.

Since this is a school desegregation case benefiting the public 

interest, in which plaintiffs-appellees perform the function of a "private 

attorney-general, " see Incarcerated Men of Allen County v. Fair, 507 

F. 2d 281 (8th Cir. 1974); cf. Monroe v. Board of Comm'rs of Jackson, 

505 F. 2d 105 (6th Cir. 1974), we most respectfully suggest that the 

Court’s purposes would be better served by reprimanding counsel than 

by requiring the black schoolchildren and their parents who are the 

appellees, to pay to the State of Michigan and the Kalamazoo Board of 

Education, which both the district court and this Court found discriminated 

against them for years, the enormous sum of $32,000. In any event,

believe that taxation of costs against appellee parents and school- 

children at a rate of $9. 66 per page when the losing parties on appeal, 

public agencies twice found guilty of unlawful conduct, elected not to utilize 

an inexpensive method of printing or copying which would have cost but 

$0. 10 per page, is unwarranted.



-9 -

n.
EVEN IF COSTS ARE TO BE TAXED AGAINST 
APPELLEES, THE METHOD OF CALCULATION 
CONTAINED IN THE MARCH 12, 1975 ORDER 
IS ILLOGICAL AND UNFAIR

Should the Court conclude, nevertheless, that it would be appropriate 

in this case to require that appellees reimburse appellants for some 

portion of the costs of printing the Appendix, because the cross-designa­

tion in this matter was excessive, we respectfully submit that the Court 

should employ some other method of arriving at the amount to be taxed 

than is embodied in the March 12 Order.

It appears from the Court's repeated references to the number of 

pages not cited specifically in the Briefs by either side (pp. 4-6 of the 

Order) that the Court arrived at its determination as to how much of 

the cross-designation was unnecessary by simply counting the total num­

ber of pages not so specifically cited. The Court states at page 5:

The result is that 810 pages of exhibits and 2511 
pages of non-exhibit material, which neither of the 
parties used, was included in the Appendix because 
of the designations by the appellees.

The Order concludes at page 6:

We determine from the evidence that 3311 pages 
of the Appendix designated for printing by plaintiffs- 
appellees were unnecessary.

This total is but 10 pages less than the two figures given on page 5 

of the Order, combined.

The inescapable conclusion is, therefore, that the Court has



-10-
/

adopted as a substantive rule the notion that anything included in the 

Appendix which is not directly cited in a party’s Brief constitutes the 

designation of unnecessary material within the meaning of F. R .A .P. 30. 

Such a standard poses tremendous problems for practicing attorneys 

in this Circuit, and cannot be justified logically.

The purpose of the Appendix is to permit the members of the Court 

to understand and decide the issues presented for review in the context 

in which they came before the lower court. In practice, this means 

that the Appendix, while itself an abbreviated version of the entire 

record on appeal, should be comprehensive enough to permit the members 

of the court to grasp the contours of an entire case by studying it. Thus, 

pleadings which do not relate to a specific issue on appeal but which 

sketch the outlines of the case in which such issues arose, will often 

be included in the Appendix, but not cited in the Briefs. Likewise, 

portions of testimony will be reproduced for the purpose of allowing 

members of the court to glean the context surrounding individual ques­

tions and responses which are targeted by specific citation in the Briefs.

The rule embodied in this Court's Order of March 12, 1975 would 

label as unnecessary, for example, several pages of questions and answers 

whose purpose was the qualification of an expert witness before the 

district court. It would not be unusual for counsel to cite in a Brief 

only to those pages of the Appendix on which are set forth the important 

conclusions and findings testified to by the expert witness; if the



-11-

qualifications of the witness were not put at issue in the district 

court, counsel would be unlikely to cite them specifically in a Brief.

Yet, counsel would be foolish indeed if he did not insure that the quali­

fying testimony appeared in the Appendix, so that it could be readily 

available to any member of the court with questions about the background 

of the witness supporting his testimony.

Even more unfair would be the taxation against a party of the 

printing costs of a page which contained only the beginning of a question, 

or the end of a thought carried over from another page, where the Brief 

citation listed only the page with the major portion of the relevant te s ti­

mony. Can counsel realistically be faulted for including such matters1
to avoid any possibility of an inference that he had used ellipsis to hide 

something?

The rule announced in the March 12 Order, furthermore, is in­

capable of rational application in the future. It can only result inI
the adoption by counsel of a variety of diversionary tactics aimed at 

blunting the mechanical application of Rule 30 sanctions. Briefs will 

be made longer by the inclusion of string citations; all page citations 

will be followed by the words "et seq"; or Briefs will contain broad 

statements about the evidence followed by citation to massive portions 

of the Appendix. Faced with the draconian alternative announced in 

the Court's March 12 Order, who could blame attorneys who adopted 

these practices?



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The one other alternative available would be the routine use of the 

deferred Appendix method. This can only result in delaying the sub­

mission and decision of important cases, and would create a significant 

risk that members of this Court will be burdened far more often by 

having to resort to the original record in the Clerk’s office than is now 

the case.

We recognize that where the parties have obviously overdesignated, 

it should not be the Court’s burden to perform the tasks which counsel 

should have undertaken, by studying the Appendix and making a page-by- 

page assessment of ’’necessity. ” The desire to avoid this problem may 

have prompted announcement of the mechanical rule contained in the Order 

of March 12. However, as we hope we have demonstrated above, that 

rule is inherently unfair and illogical. We respectfully suggest that while 

the Court need not painstakingly calculate the exact percentage of the 

Appendix which was unnecessarily designated, neither should it resort to 

an unthinking, mechanical computation. The traditions of a Court of 

Equity should permit the judges to arrive at a fair estimate of the costs 

to be taxed in this situation which avoids both these dangers.



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CONCLUSION

WHEREFORE, amici respectfully suggest that the Order of 

March 12, 1975 should be withdrawn and no costs taxed against 

appellees in this matter; or in the alternative, that a new method 

of fixing the amount to be taxed should be determined.

Respectfully submitted,

WILLIAM E. CALDWELL 
Suite 520
733 Fifteenth Street, N.W. 
Washington, D. C. 20005

NORMAN J. CHACHKIN 
Suite 2030 
10 Columbus Circle 
New York, New York 10019

Amici Curiae



CERTIFICATE OF SERVICE

I hereby certify that two copies of the foregoing Motion and 

Brief have been served upon counsel of record for all parties by 

United States first-class mail, postage prepaid, this 14th day of 

April, 1975, addressed as follows: Louis R. Lucas, Esq., 525 

Commerce Title Building, Memphis, Tennessee 38103; Ford, Kriekard, 

Staton & Allen, 1015 American National Bank Building, Kalamazoo, 

Michigan 49006; Honorable Frank J. Kelley, Attorney General, 750 

Law Building, 525 West Ottawa Street, Lansing, Michigan 48913.