Response of Defendants to the Motions to Consolidate Appeals, to Designate Parties and to Fix Time for the Filing of the Appendix and Brief of Defendants

    No. 72-1065 
No. 72-1064

IN THE
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

RONALD BRADLEY, et al, f

vs .

Plaintiffs-Appellees, f

f

No. 72-1065
WILLIAM G. MILLIKEN, Governor 
of the State of Michigan, et al, t

Defendants-Appellants. f

RONALD BRADLEY, et al,
f

V

vs .

Plaintiffs-Appellees,
f No. 72-1064

BOARD OF 
DISTRICT

EDUCATION OF THE SCHOOL 
OF THE CITY OF DETROIT,

Defendant-Appellant.

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

Southern Division

RESPONSE OF DEFENDANTS WILLIAM G. MILLIKEN, FRANK J.
KELLEY, THE STATE BOARD OF EDUCATION, AND JOHN W. PORTER,
TO THE MOTIONS TO CONSOLIDATE APPEALS, TO DESIGNATE PARTIES 
AND TO FIX TIME FOR THE FILING OF THE APPENDIX AND BRIEF 
OF DEFENDANTS DETROIT BOARD OF EDUCATION, ET AL.__________

Business Address:
7 Story Office Building 
525 West Ottawa Street 
Lansing, Michigan 48913

FRANK J. KELLEY 
Attorney General
Robert A. Derengoski 
Solicitor General
Eugene Krasicky 
Assistant Attorney General



I
THE MOTIONS TO CONSOLIDATE AND TO DESIGNATE
PARTIES AS APPELLANT AND APPELLEE SHOULD BE
DENIED.____________________________________

A. The Motion to Consolidate

The state defendants cannot see what there is to 
consolidate. Although the appeals are docketed separately, 
this is one case on appeal. Sixth Circuit Rule 7(2) applies 
to companion cases, not to a single case.

B. The Motion to Designate Parties as
Appellant and Appellee.___________

This motion is the second attempt by a party to 
this appeal to change, without any cogent reason, the practice 
established by the rules of appellate procedure.

PR App P, 28(h) makes the plaintiff in the lower 
court the appellant for purposes of briefs and appendix when 
a cross appeal is filed, unless the parties otherwise agree or 
the court otherwise orders. The parties have not otherwise 
agreed. Is there any substance in'the defendant Detroit Board's 
claim that the court should otherwise order? Obviously the 
answer is "no."

Defendant Detroit Board's claims in this regard are 
found in paragraphs 5 and 6 of page 3 of its motion. The first

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claim, in substance, is that the issue upon which plaintiffs 
have cross appealed "almost" does not affect the state defendants. 
There are two answers: (1) Since this issue does affect the
defendant Detroit Board, "almost solely," it is properly 
designated an appellee; (2) if the state defendants do not 
object to being designated as appellee on this issue, why should 
the defendant Detroit Board complain?

The second claim (paragraph 6 of the motion), in 
substance, is that the significant issue, in terms of trial time 
and briefing, and in terms of its importance to the parties and 
the community, is the issue of student segregation, the decision 
on which all defendants appeal. Consequently, the defendants 
should be the moving party on the appeal and should have the 
opportunity to present their case first. There are two defects 
in this claim: (1) the Confederate calvary's motto should have
no application to this appellate review of a chancery case; this 
is not a jury trial. (2) Whether this Court first hears the 
"vast majority and substance" of this issue in appelleefs brief 
(assuming this is correct) rather than in appellant's brief does 
not appear to make any difference. The state defendants are 
confident that this Court will render its decision on the basis 
of its consideration of no less than all the briefs and all of 
the arguments.

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Manifestly, the court rule was designed to 
accommodate the case where a defendant appeals and a plaintiff 
cross appeals. This is the situation here. If the Court feels 
that the rule should be changed in this case to accommodate the 
Court, the state defendants can have no objection. But the 
state defendants do say that no sound reason has been given 
to modify the rules to accommodate the strategy of one of the 
parties.

II.
THE MOTION TO FIX TIME FOR THE FILING OF
APPENDIX AND BRIEFS SHOULD BE GRANTED.

The state defendants concur with the defendant 
Detroit Board of Education in this motion. In view of tbp 
fact that none of the defendants have sought a stay of the 
District Court's order it cannot be said that the motion is 
brought for purpose of delay. Because of the volume and 
complexity of the proceedings, the purely physical aspects of 
printing the record require the additional time. This will 
be true regardless of whether the plaintiffs or the defendants 
are ultimately the appellant, and in this regard the state 
defendants reiterate their position that the plaintiffs should 
be the appellant as provided by the appellate rules.

Since the defendants will not know, prior to the 
Court's decision on plaintiffs' motion to dismiss, whether there

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is in fact an appeal, it is certainly in the interest of 
economy of both time and money not to commence the printing 
process until this threshold issue is decided.

Again, because no stays have been sought, there 
can be no claim that the motion was filed for purposes of 
delay.

CONCLUSION
The motion to designate parties as appellant and 

appellee should be denied because there are no substantial 
reasons for deviating from the court rules. This case is no 
different from any other in this regard, and the court rules 
clearly establish a workable procedure.

The motion to fix time for the filing of appendix 
and briefs should be granted because (1) the expense of printing 
should not be incurred prior to the parties knowing that there 
will be an appeal, (2) the physical impossibility of printing 
the appendix in less than 90 days, and (3) the extention of time 
is not sought for purpose of delay, there being no stay of 
proceedings in the trial court.

Dated: Fe truary 10, 1972
Business Address:
7 Story Office Building 
525 West Ottawa Street 
Lansing, Michigan 48913

Respectfully submitted,
FRANK J. KELLEY 
Attorney General
Robert A. Derengoski 
Solicitor GeneralA „ w  A -,
Eugene Krasicky 
George L. McCargar 
Gerald F. Young 
Assistant Attorneys General

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CERTIFICATE OF SERVICE

I hereby certify that a true copy of the foregoing 
response to the motions to consolidate appeals, to designate 
parties and to fix time for the filing of the appendix and 
brief of defendants Detroit Board of Education, et al, was 
served upon the following named addressees this 10th day of 
February, 1972 by United States mail, postage prepaid, addressed 
to them at their respective business addresses:

Messrs. Louis R. Lucas and 
William E. Caldwell

Mr. Nathaniel R. Jones
Messrs. J. Harold Flannery, 

Paul R. Dimond and 
Robert Pressman

Mr. E. Winther McCroom

Messrs. Jack Greenberg and 
Norman J. Chachkin

Mr. George T. Roumell, Jr.
Mr. Theodore Sachs
Mr. Alexander B. Ritchie

Assistant Attorney general

Dated: February 10, 1972