Plaintiffs' Memorandum in Opposition to Government's Motion to Intervene
Public Court Documents
May 9, 1972

5 pages
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Case Files, Milliken Hardbacks. Plaintiffs' Memorandum in Opposition to Government's Motion to Intervene, 1972. 2386ebed-52e9-ef11-a730-7c1e5247dfc0. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/71e84444-041c-4179-9abd-015c3b30e552/plaintiffs-memorandum-in-opposition-to-governments-motion-to-intervene. Accessed July 01, 2025.
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THEIN THE UNITED STATES DISTRICT COURT FOE EXTERN DISTRICT OF MICHIGA^ W SOUTHERN DIVISION “ RONALD BRADLEY, et al., Plaintiffs, WILLIAM G. MILLIKEN, et al., Defendants; DETROIT FEDERATION OF TEACHERS, Defendant-Intervenor, and DENISE MAGDOWSKI, et al., Defendants-Intervenor. Civil Action No. 35257 PLAINTIFFS' MEMORANDUM IN OPPOSITION TO GOVERNMENT'S MOTION TO INTERVENE Plaintiffs have not heretofore flatly opposed the Govern ment's proposed intervention because neither the interest purported to be represented nor the claim or defense being asserted could be ascertained. We remain without the benefit of a pleading which would enable anyone to determine how the movant proposes to assist the Court and the parties to resolve the issues. Therefore, we must assume that the entirety of the movant's position is reflected in its original papers of April 11, taken together with Assistant U.S. Attorney Rosenberg's representations to the Court, U.S, Attorney's Guy's representations to the news media, and the Justice Department's recent letter to the Court. On that assumption we can now advise the Court that not only are the traditional requisites for intervention absent here, but that the substance of the movant's position is so utterly without merit that to allow intervention for its expression would be a futile imposition upon the Court and the parties. All that the movant proposes to say can be received and weighed as an amicus curiae submission. To permit intervention for presentation of a simple motion-^^aither evidence in any nor other arguments are proposed? followed by denial of the motion, followed by dis missal of the intervenor, would be a pointless minuet. We urge that the motion to intervene be denied and that the motion to defer further* proceedings, received and considered as an amicus curiae submission, be denied. 1. Intervention ' The movant’s memorandum of law asserts that it is en titled to intervene here as of right under both Rule 24, F.R. Civ. P. and 42 U.S.C. 200Oh-2. The movant concedes that both the Rule and the statute require "timely application," which is ad dressed to the discretion of the trial court. We would add that timeliness is to be measured by whether the proposed intervention will delay disposition of the litigation to the prejudice of-the parties, and that whether the proposed intervention is timely should be viewed on the whole circumstances of the case. McCausland v. Shareholders Management Co., 52 F.R.D. 521 (D.N.Y., 1971); Smith Petroleum Service, Inc, v. Monsanto Chemical Co., 420 F. 2d 1103 (5th Cir. 1970). It is clear from the legislative history of Section 20Q0h-2 cited in the Government's memorandum that judicial con- . sideration of timeliness must be more than perfunctory. Scrutiny of the cited history discloses that most of it actually pertained to Section 302 of a proposed Civil Rights Act of 1963. That precursor of the present statute also provided for such inter ventions, but it did not contain the "timely application" require ment found in Section 2000h-2. H.R. Rep. No. 914, 88th Cong., 1st Sess. 22 (1963). Therefore, timeliness must be carefully considered by this Court, especially in light of repeated ad monitions by the appellate judiciary, including the court of appeals in this case, to the effect that avoidable delays in the vindication of these rights are strongly disfavored. Carter v. West Feliciana Parish School Board, 396 U.S. 290 (1970). • • . The substance of the Government's motion to defer further proceedings and its supporting memorandum, taken together with Assistant. U.S. Attorney Rosenberg's statement in open court, confirm that delay of the proceedings, to the unquestioned pre judice of plaintiffs and defendants, all of whom must mark time while uncertainty prevails, is not only a concomitant but the only purpose of the proposed intervention. Therefore, the court must look to the merits of the movant's offer to determine whether such an extraordinary purpose and effect can be justified. Before doing so, however, we must note the suggestion of the United States Attorney (in his release to the news media), apparently in support of non-statutory intervention of right under Rule 24(a)(2), that the movant has an interest in the action that is not adequately represented by the present parties. Even a cursory reading of the record would disclose that, since this Court’s Ruling on Issue of Segregation in September of 1971, the state defendants, and more recently the intervening suburban school districts, have been the primary defendants. And the notion that these parties have been non-adversary to plaintiffs will astonish their counsel. We who are confronted by Mr. Krasicky and the other gentlemen find the suggestion unworthy of serious consideration. Their efforts to defeat as well as delay relief have been unremitting. ' • 2. Proposed Delay As noted above, in order to be fully advised in the exercise of its discretion with respect to the timeliness of this application, the Court should examine the merits of the movant’s proposal to determine whether any different interest is being represented and whether, in the words of Section 2000h-2, the movant would "be entitled to the same relief as if it had instituted the action." If the answers are in the negative, then no salutary purpose would be served'by the'intervention beyond that adequately fulfilled by treating the submission as an amicus wmm curias paper. In the words of Professor Moore: "Leave should not be granted if the court could not grant intervener any relief (footnote omitted)." 3B Moore's Federal Practice 24-396, at 24.10[4] First, the Government concedes in its recent letter to the Court that the analogy between delay pending certain higher judicial action and that which would attend the vagaries of congressional deliberation is far-fetched. Delay and uncertainty are the hall marks of legislative deliberation; and that is especially true of proposals that have been characterized as unconstitutional by the ranking Republication member of the House Judiciary Committee (Congressman McCuliock of Ohio) and doubtful of passage by a leading Senate supporter of them (Senator Dominick of Colorado). If after Brown in 1954 the courts had awaited congressional action on school desegregation bills the first orders would have come only after the Civil Rights Act of 1964. Similarly, the arguments made in the Government's memorandum are equally applicable to the perennial anti-busing proposals of Senator Stannis and Congressman Whitten— none of which has yet been passed. In sum, the Government proposes here what it is so far unable to get through Congress, i.e., a moratorium on relief in volving pupil transportation. If such, an effort succeeds here there will be no need for the legislation and we shall presumably remain in a state of unconstitutional suspended animation indefinitely. Secondly, prior precedent discloses that this is not relief to which the Government would be entitled if it had initiated the action. Put bluntly, this delaying tactic was tried before and squarely rejected by the Supreme Court in Alexander v. Holmes County Board of Education, 396 U.S. 19 (1969), Therefore, even treating the motion as "a pleading setting forth the claim or defense for which intervention is sought" (Rule 24(c), F.R. Civ. P.), it is evident that intervention must be denied because no relief could be granted, and the only effect would be prejudicial delay to the present parties— the essence of untimely intervention. Conclusion For the foregoing reasons plaintiffs' urge that the motion to intervene-be denied or, in'the alternative, that' the motion to defer further proceedings be considered as an amicus curiae submission, and denied. May 8, 1972 Respectfully submitted, Louis R. Lucas Ratner, Sugarman, and Lucas Memphis, Tennessee Nathaniel R. Jones General Counsel NAACP New York, New York E. Winther McCroom Cincinnati, Ohio /is ts 2/, Harold Flannery //Raul R. Dimond ' Robert Pressman . Center for Law and Education Harvard University Cambridge, Massachusetts Jack Greenberg Norman J. Chachkin New York, New York Certificate I hereby certify that the foregoing memorandum was served upon the defendants by delivering copies to their counsel of record on May 9, 1972.