Lee v. Brown Appellants Brief and Appendix

    APPELLANT’S BRIEF

FOR THE FOURTH CIRCUIT 
R ichmond, V irginia

No. 9243

DAVIS LEE, A ppellant, 

versus

J. ARTHUR BROWN, H. P. SHARPER, J. HERBERT 
NELSON, HAROLD WHITE, EDITH D A V I S ,  
MARY NESBITT, HILLS NORRIS, JR., JERRI- 
VOCH C. JEFFERSON, MURRY CANTY, SAM 
LEVERETTE, and GLADYS PORTER, and all 
others Similarly Situated, A ppellees.

Appeal from the United States D istrict Court for the 
E astern District of South Carolina

F I L E D

N O V  Z l  1963

M AURICE S. D EAN 
CLERK

DAVIS LEE,
407 Butler Street,

Anderson, South Carolina,

PERRY AND JENKINS, 
1107% Washington Street, 

Columbia, South Carolina, 
Attorneys for Appellees.

The R. L. Bryan Company, Legal Printers, Columbia, S. C.



INDEX
P age

Statement of the C a se .........................................................  1

Motion for Declaratory Judgment and G rounds............ 3

Letter of John C. R o g e rs ...................................................  5

Specifications of Errors .....................................................  6

Argument and Authorities.................................................  7

Conclusion ............................................................................  14

Appendix ..............................................................................  15

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TABLE OF AUTHORITIES
P age

Aetna Life Insurance Co. v. Haworth, 300 U. S. 227, 241,
57 S. Ct. 4 6 1 .................................................................  H

Clark v. Memolo, C. A. D. C. 1949, 174 F. (2d) 978 . . . .  11

Delaney v. Carter Oil Co., C. A. Okla., 1949, 174 
F. (2d) 3 1 4 ...................................................................  10

Doehler Metal Furniture Co. v. United States, 2 Cir., 149 
F. (2d) 130, 135 ................................................................. 7

Fash v. Clayton, D. C. N. M., 1948, 78 F. Supp. 359 . . . .  11

Fountain v. Filson (1949), 336, 681, 69 S. Ct. 754, 93 
L. Ed. 971, 12 Fed. Rules Service, 56, Case 2 .............. 7

Lloyd v. United Liquors Corp., 203 F. (2d) 789 ............ 8

Morgan, J. A. and Morgan Myra S., Aug. 9th, 1963, 5th 
Circuit, Cited as 321 F. (2d) 7 8 1 .................................  8

Maryland Casualty Company v. Pacific Coal and Oil Co.,
312 U. S. 270, 273, 61 S. Ct. 5 1 0 .....................................  11

Sartor v. Arkansas Natural Gas Corp., 321 U. S. 620, 
624, 64 S. Ct, 724, 88 L. Ed. 967 .....................................  8

Shultz v. Manufacturers Trust Co. (W. D. N. Y.), 1939,
30 F. Supp. 443 ................................................................. 7

Timmons v. United States, C. A. S. C. 1952, 194 F. (2d)
357 .......................................................................................  10

United States v. Bazell, U. S. Court of Appeals, 7th 
Circuit, March 5, 1962, Cited as 194 F. (2d) 745 ........ 8

Steingut v. National City Bank of New York, D. C. N. Y. 
1941, 36 F. Supp. 486 .......................................................  12

( i i )



APPELLANT’S BRIEF

United States Court of Appeals
FOR THE FOURTH CIRCUIT 

R ichmond, V irginia

No. 9243

DAVIS LEE, A ppellant,

versus

J. ARTHUR BROWN, H. P. SHARPER, J. HERBERT 
NELSON, HAROLD WHITE, EDITH D A V I S ,  
MARY NESBITT, HILLS NORRIS, JR., JERRI- 
VOCH C. JEFFERSON, MURRY CANTY, SAM 
LEVERETTE, and GLADYS PORTER, and all 
others Similarly Situated, A ppellees.

A ppeal from the United States District Court for the 
E astern D istrict Of South Carolina

STATEMENT OF THE CASE
This is an appeal by Davis Lee, defendant by interven­

tion in the District Court. The Plaintiffs filed a complaint 
in the lower court against the South Carolina State For­
estry Commission, the Commission members and the State 
Park officials, as a class action, July 8, 1961, seeking to 
have the 26 State Parks integrated.

On July 11,1961, three days later, this appellant filed a 
motion in the District Court to intervene as a defendant 
upon the grounds that he was similarly situated like the



2 Lee, A ppellant, v. Brown et al., Appellees

approximately 900,000 other Negro eitizens, and that he had 
a defense presenting both questions of law and of fact 
which were Common to the main action.

Before the court heard the motion October 12, 1961, 
the appellant filed an amended answer on October 12, 1961. 
The court granted the motion to intervene as a matter of 
right, and the order made this appellant subject to any 
judgment just as the other defendants.

On February 5, 1962, the appellant filed a motion to 
bring in additional parties, and at the same time the appel­
lant filed a motion for leave to file a supplemental answer 
and counterclaim. The proposed counterclaim was filed as 
an attachment to the latter motion.

While hearings had been scheduled on all pending mo­
tions at several different terms of court, none were heard 
until April 18, 1963. A hearing was held on that date on a 
motion by the plaintiffs for summary judgment.

At the April 18, 1963, hearing, the court proceeded to 
dispose of all pending motions by plaintiffs and original 
defendants. The record of the proceedings will show that 
this appellant was deliberately, intentionally, and purposely 
excluded from all participation in the matter.

The hearing was conducted in such a manner as to give 
the impression that this appellant was a complete outsider 
and had no connection or interest in the matter.

The plaintiffs and original defendants concluded their 
part of the hearing during the morning session. This appel­
lant was heard during the afternoon session.

The court did not hear argument on all of the pending 
motions, and the court did not ask for argument on each 
individual pending motion. The appellant explained that he 
could offer no defense or say anything about the pleadings 
on file by either the plaintiffs or original defendants because



Lee, Appellant’, v. Brown et al., Appellees 3

neither had followed Rule 5 of the Federal Rules of Civil 
Procedure and sent him copies of the pleadings.

The court gave each side time to file additional briefs 
in support of their positions.

Because the court’s handling of the matter departed so 
far from well known rules of Federal Civil Procedure, the 
appellant not only filed a supporting brief on May 10th, 
1963, in which he referred to the violation of these rules, 
but on May 23rd, 1963, the appellant filed a motion for De­
claratory Judgment under Title 28, sections 2201-2202, 
United States Code, and under Rule 57, Federal Rules of 
Civil Procedure.

MOTION FOR DECLARATORY JUDGMENT 
AND GROUNDS 

Filed May 23rd, 1963
Comes now, Davis Lee, defendant by intervention, set­

ting forth herein grounds in support of this motion for De­
claratory Judgment:

1. That while this court granted his motion to intervene 
which gave him all of the rights enjoyed by the original 
defendants, counsel for plaintiffs and defendants, have vio­
lated Rule 5 of The Federal Rules of Procedure, and have 
failed to send this intervener copies of all pleadings filed 
in this case.

2. That counsel for plaintiffs filed a motion for Sum­
mary Judgment and set forth the purpose for the motion. 
During the hearing on April 18, 1963, counsel called two 
witnesses to testify, yet they did not indicate any such in­
tention in the moving papers. Thus they violated Rule 7 of 
Federal Rules of Civil Procedure which specifically states, 
section (a) that all motions “ shall state with particularity 
the grounds therefore.”



4 Lee, Appellant, v. Brown et al., Appellees

3. That this defendant by intervention has several affi­
davits by Negro citizens who feel as he does; some have 
expressed desire to appear and testify that these plaintiffs 
do not represent them in this class action, but because coun­
sel for plaintiffs did not indicate their intention to call wit­
nesses, these citizens were not notified to appear.

4. That during the hearing April 18, 1963, on plaintiffs’ 
motion for Summary Judgment, this defendant by interven­
tion was completely, intentionally and purposely excluded 
from any participation in the proceedings to the extent that 
a special afternoon session of the court was held to hear this 
intervenor. Since Rule 24 of The Federal Rules of Civil 
Procedure endow intervention by right with the same rights 
and privileges as an original party, the proceedings on the 
above date deprived this intervenor of the due process guar­
anteed by the 5th Amendment.

5. That because this intervenor did not object to the 
proceedings on April 18th does not constitute a waiver of 
his rights; he was denied an opportunity to assert them. 
The morning session was exclusively confined and limited 
to arguments by counsel for plaintiffs and original defend­
ants and this intervenor was completely ignored by all 
counsel, and the court and given a separate hearing in the 
afternoon that dealt with his motions, and not with the 
motion for Summary Judgment.

6. That because counsel for plaintiffs and for original 
defendants have failed to send this intervenor copies of all 
pleadings which is mandatory under Rule 5, he has been 
deprived of his right to offer an intelligent, adequate de­
fense to protect his interest in this cause.

7. Because of the evident confusion or lack of com­
plete understanding of the role of an intervenor; and be­
cause this intervenor has been deprived of his rights under 
Rule 24, 5 and 7, he now seeks a hearing on this motion for



Lee, A ppellant, v. Brown et al., Appellees 5

Declaratory Judgment, for the purpose of clarifying the 
legal relations in issue. He seeks relief from the uncertainty, 
confusion and misunderstanding of the issues involved, and 
he seeks an opportunity to include in the record the affida­
vits of Negro citizens who are not represented by this main 
action, and to have others to appear and testify in person.

May 23, 1963.

DAVIS LEE,
Defendant by Intervention, 

And Counsel,
407 Butler Street, 

Anderson, S. C.,

On May 24, 1963, Mr. John C. Rogers, Chief Deputy 
Clerk sent out the following letter to counsel for plaintiffs 
and original defendants.

Office of the Clerk

UNITED STATES DISTRICT COURT 
Eastern District of South Carolina 

Columbia

May 24, 1963
Mr. Davis Lee 
Attorney at Law 
Anderson, South Carolina
Re: Brown et al. v. 8. C. State Forestry Commission et al. 

Civil Action No. AC-774.

Dear Mr. Lee:
The original and copies of Notice of Motion for De­

claratory Judgment and Motion for Declaratory Judgment 
and Grounds on behalf of Intervener, Davis Lee, in the 
above case were received and filed here today.



6 Lee, A ppellant, v. Brown et al., Appellees

Pursuant to your request, I am forwarding copies to 
other counsel in the case.

Yours truly,

JOHN C. ROGERS, 
Chief Deputy Clerk.

JCR/c
CC. HON. DANIEL R. McLEOD,

MR. D. W. ROBINSON,
MESSRS. JENKINS & PERRY.

On July 10th, 1963, 47 days after the appellant filed his 
motion for declaratory judgment, the court issued its order 
against the defendants, but the court said not one word 
about the appellant’s motion for declaratory judgment. The 
motion has never been ruled on.

SPECIFICATIONS OF ERRORS
1. The court erred by hearing motion for Summary 

Judgment before hearing motions by this appellant so that 
record was complete.

2. The court erred by treating this appellant as an 
outsider instead of as a defendant with equal standing with 
other defendants, enjoying the same rights as they.

3. The court erred, when informed that copies of plead­
ings had not been served this appellant, when it failed to 
issue an order directing all counsel to give this appellant 
copies of all pleadings on file so he would be in a position 
to prepare a defense.

4. The court erred when it refused to grant this appel­
lant a hearing on his motion for Declaratory Judgment.

5. The court erred when it permitted appellees to place 
witnesses on the stand to testify at the hearing on motion 
for Summary Judgment, April 18, 1963, when counsel had 
not indicated such intention in its grounds for motion.



Lee, A ppellant, v. Brown et al., Appellees 7

6. The court erred when it denied this appellant his 
right to file a counterclaim against these appellees and 
others within the jurisdiction of the court.

7. The court erred when it denied the appellant the 
right to participate in the main action, and held a special 
afternoon session for the specific purpose of hearing him 
after counsel for the main defendants had left; that this 
action constituted denial of due process and equal protec­
tion guaranteed by the Constitution.

ARGUMENT AND AUTHORITIES

Appellant’s Point No. 1
The trial court erred by hearing motion for Summary 

Judgment before completion of the record. This appellant, 
in a sense, was placed in the same position as in Fountain 
v. Filson (1949), 336, 681, 69 S. C. 754, 93 L. Ed. 971, 12 
Fed. Rules, Service, 56, Case 2, where the court reversed a 
decision of the Court of Appeals ordering a summary judg­
ment where the order was made on appeal on a new issue 
as to which the opposite party had no opportunity to pre­
sent a defense before the trial court.

In the case at bar the court should have postponed con­
sideration of the motion to afford this appellant ample time 
to offer an adequate defense. See Shultz v. Mcmufacturers 
Trust Co. (W. D. N. Y., 1939), 40 F. Supp. 443.

The Court of Appeals for the Second Circuit, in 
Doehler Metal Furniture Co. v. United States, 2 Cir., 149 
F. (2d) 130, 135, cautioned trial courts concerning the sus­
taining of motions for summary judgments in the following 
language:

“ We take this occasion to suggest that trial judges 
should exercise great care in granting motions for sum­
mary judgment. A litigant has a right to a trial where 
there is the slightest doubt as to the facts, and a denial 
of that right is reviewable. Such a judgment, wisely



8 Lee, A ppellant, v. Brown et til., Appellees

used, is a praiseworthy, time saving device. But, 
although prompt dispatch of judicial business is a vir­
tue, it is neither the sole nor the primary purpose for 
which courts have been established. Denial of a trial on 
disputed facts is worse than delay.”

Lloyd v. United Liquors Corp., cited as 203 F. (2d) 789. See 
also Sartor v. Arkansas Natural Gas Corp., 321 U. S. 620, 
624, 64 S. C. 724, 88 L. Ed. 967.

We wish to direct the court’s attention to United States 
v. Bazell, United States Court of Appeals, 7th Circuit, 
March 5, 1952, cited as 194 F. (2d) 745. Here a summary 
judgment was granted by the District Court to the plain­
tiffs while the defendant’s motion for Declaratory Judg­
ment was pending. The Court reversed and remanded to 
give defendant an opportunity to be heard.

The appellant takes the position that the Summary 
Judgment was prematurely granted, and that the court com­
pletely disregarded his rights in its efforts to comply with 
the wishes of The NAACP, which has both money and poli­
tical influence, where as the appellant is a little publisher 
with neither money or influence, and because of this he was 
not heard according to the rules of Federal Civil Procedure.

The plaintiffs moving for Summary Judgment had 
burden of demonstrating clearly that there was no genuine 
issue of fact—J. A. Morgan and Myra S. Morgan, Aug. 9, 
1963, 5th Circuit, cited as 321 F. (2d) 781.

How could the plaintiffs demonstrate that there was no 
genuine issue of fact when the record had not been com­
pleted, motions pending by this appellant had not been 
argued and ruled upon, so that examination of the completed 
record would determine whether there was no genuine issue 
of fact?



Lee, A ppellant, v. Beown et at, Appellees 9

Appellant’s Point No. 2
The appellant in this cause filed a timely motion to in­

tervene as a defendant under Rule 24 (A ) (1) (A) (2) and the 
order granting his motion is an absolute one; that an inter- 
venor under this order is put in the same position as the 
original defendants, and with the same rights and privi­
leges.

Moore’s Federal Practice, Vol. 2, page 2381 has this to 
say about rights of an absolute intervenor:

Finally the intervenor may desire to question the 
merits of a claim or defense. Thus he may desire (1) to 
question whether the allegations of The Complaint are suffi­
cient, or (2) to contest a claimant’s rights to a certain 
amount of damages, or (3) to press a claim of his own which 
will have the effect of reducing the value of other claims.

“ There seems to be no doubt that an intervenor having 
an absolute right to intervene is able to raise any one of 
these questions. It would be meaningless to give him an 
absolute right to intervene in order to protect his interest, 
if once in the proceeding he were barred from raising ques­
tions necessary for his own protection.”

Barron and Holtzoff in Federal Practice and Proced­
ure, Vol. 2, section 593, page 359, says:

“ An intervenor takes the case as he finds it and to 
all intents and purposes is regarded as an original 
party, except that he may not question the venue or 
jurisdiction of his person. However, intervention pre­
supposes the pendency of an action in a court of com­
petent jurisdiction and intervention will not be allowed 
to create jurisdiction where none existed before.”

Appellant’s Point No. 3
The Court was properly informed at the hearing on 

April 18, 1963, and subsequently in a requested brief, that 
this appellant had not been sent copies of the pleadings on



10 Lee, Appellant, v. Brown et al., Appellees

file. Then, how could he be expected to present any kind of 
defense when he did not know what was in the record?

Title 28, Federal Rules of Civil Procedure, Rule 5 (A) 
Service states: “ Every order required by its terms to be 
served, every pleading subsequent to the original complaint 
unless the court otherwise orders because of numerous de­
fendants, every written motion other than one which may be 
heard ex parte, and every written notice, appearance, de­
mand, offer of judgment, designation of record on appeal, 
and similar paper shall be served upon each of the parties 
affected thereby, but no service need be made on parties 
in default for failure to appear except that pleadings new 
or additional claims for relief against them shall be served 
upon them in the manner provided for service of summons 
in Rule 4.”

The strictest and most exacting compliance with this 
rule as to methods of service of pleadings is required when 
service is made by mail. Timmons v. United States, C. A., 
S. C., 1952,194 F. (2d) 357.

Appellant’s Point No. 4
The appellant was entitled to a hearing on his motion 

for Declaratory Judgment.
The purpose of declaratory procedure is to remove un­

certainty from legal relations and clarify, quiet and sta­
bilize them before irretrievable acts have been undertaken, 
and also to enable an issue of questioned status or fact, on 
which a whole complex of rights may depend, to be expedi­
tiously determined. Delaney v. Carter Oil Co., C. A. Okla., 
1949, 174 F. (2d) 314.

The Declaratory Judgment Act was designed to pro­
vide a remedy in a case or controversy while there is still 
opportunity for peaceful judicial settlement, and its pri­
mary purpose was to have a declaration of rights not there­



Lee, A ppellant, v . Brown et at, Appellees 11

tofore determined, and not to determine whether rights 
theretofore adjudicated have been properly adjudicated— 
Clark v. Memolo, C. A. D. C., 1949, 174 F. (2d) 978. Also 
see Fash v. Clayton, D. C., N. M., 1948, 78 F. Supp. 359.

On what legal or procedural basis could the court com­
pletely ignore the motion, and issue a lengthy order, and 
not even mention the appellant’s motion for Declaratory 
Judgment?

The Declaratory Judgment Act requires a case of 
actual controversy. As Chief Justice Hughes stated in 
Aetna Life Insurance Co. v. Haworth, 300 IT. S. 227, 241, 
57 S. C. 461:

“ It must be a real and substantial controversy ad­
mitting of specific relief through a decree of a conclu­
sive character, as distinguished from an opinion ad­
vising what the law would he upon a hypothetical state 
of facts.”
And Mr. Justice Murphy wrote in Maryland Casualty 

Co. v. Pacific Coal £  Oil Co., 312 TJ. S. 270, 273, 61 S. C. 510:
“ Basically, the question in each case is whether the 

facts alleged, under all the circumstances, show that 
there is a substantial controversy between parties ad­
verse legal interest, of sufficient immediacy and reality 
to warrant the issuance of a declaratory judgment.”
When the court refused to acknowledge existence of 

appellant’s motion, and refused to hold a hearing on it, the 
appellant was denied the opportunity and the right to show 
that there was a substantial controversy. Because of the 
evident State of Confusion the appellant was entitled to 
specific relief through a decree of a conclusive character, 
and a judicial clarification of his status.



12 Lee, A ppellant, v. Brown et al., Appellees

Appellant’s Point No. 5
The appellees filed a motion for a summary judgment 

and set forth the grounds upon which the motion was filed. 
There was nothing in the motion to indicate that they in­
tended to place witnesses on the stand.

Rule 7 of the Federal Rules of Civil Procedure states: 
(B) 1 “ An application to the court for an order shall he by 
motion which, unless made during a hearing or trial, shall 
be made in writing, shall state with particularity the 
grounds therefor, and shall set forth the relief or order 
sought. The requirement of writing is fulfilled if the motion 
is stated in a written notice of the hearing of the motion.”

All motions are subject to requirement of rules that 
they state with particularity the grounds therefor— U. S. v. 
64-88 Acres of Land., more or less, situated in Allegheny 
County, Pa., D. C., Pa. 1960, 25 F. R. D. 88. See also Stein- 
gut v. National City Bank of New York, D. C., N. Y., 1941, 
36 F. Supp. 486.

Appellant’s Point No. 6
The Court denied this appellant the right to file a coun­

terclaim.
Barron and Holtzoff, Vol. 2, page 408, has this to say: 

“ Some cases have held that an intervenor may not assert a 
counterclaim, though it is not entirely clear whether they 
have done so as a matter of law or discretion. The great 
weight of authority is to the contrary, and permits coun­
terclaims by an intervenor whether the intervention is as 
of right or permissive, and whether the counterclaim is com­
pulsory or permissive.”

Bender’s Federal Practice Manual, page 111, Rule 13, 
counterclaims and crossclaims, has this to say: “ Compulsory 
Counterclaims: A  pleading shall state as a counterclaim any 
claim which at the time of serving the pleading the pleader 
has against any opposing party.



Lee, Appellant, v. Brown et al, Appellees 13

(B) Permissive counterclaim: A pleading may state as 
a counterclaim against an opposing party any claim not 
arising out of the transaction or occurrence that is the sub­
ject matter of the opposing party’s claim.”

Moore’s Federal Practice, Vol. 1, Buie 13, states:
“ The practice of free counterclaim sanctioned by sub­

division (C) is highly desirable. It expressly declares that 
there are to be no restrictions upon the type of counter­
claim. Thus in a suit for specific performance the defendant 
must set up any claim which he has that arises out of the 
transaction or occurrence which is the basis of plaintiff’s 
claim, pursuant to subdivision ( a ) ; and may set up any 
independent claim that he has, such a claim for personal 
injuries, slander, accounting, patent infringement, etc. Such 
claims can be as easily pleaded in an answer by way of coun­
terclaim as in a complaint by way of original action. The 
matter of such counterclaim do not present a pleading prob­
lem, but rather a trial problem, and the court is given ample 
authority in subdivision (1) to handle it accordingly.”

Appellant’s Point No. 7
The appellees were in court on the grounds that they 

were discriminated against and segregated by the Forestry 
Commission because of their race. In its order of July 10th, 
1963, the court agreed with this contention, yet the same 
court denied this appellant the same rights that it exended 
to the appellees. They were extended the due process and 
equal protection provisions of the 5th and 14th Amendments 
to the Constitution; yet, the protection of these provisions 
were denied his appellant. The court even provided him 
with a segregated afternoon session. He was denied his 
right to participate in the main action. See transcript of 
hearing, April 18, 1963.



A requirement of the Fourteenth Amendment is for a 
fair trial and the due process clause prohibits procedure at 
trials which is offensive to common and fundamental ideas 
of fairness and right. The court has a responsibility to re­
spect and protect persons from violation of federal consti­
tutional rights and the violations of rules which guide and 
control its conduct and the trial of issues before it.

CONCLUSION
The appellant has been denied his day in court because 

counsel for the plaintiffs and the original defendants, failed 
to send him copies of all pleadings filed in this cause which 
prevented him from being able to offer a defense. The court 
erred in not correcting this defect.

Appellant, on the basis of the Federal Rules of Civil 
Procedure, which are as binding as an act of Congress, and 
supported by the foregoing authorities, submits that the 
judgment of the trial court should be reversed with in­
structions to grant him a hearing, and with further instruc­
tions to permit him to file his counterclaim.

Respectfully submitted,

DAVIS LEE, 
Appellant and Counsel.

107 Butler Street,
Anderson, S. C.

14 Lee, A ppellant, v. Brown et al., Appellees



APPENDIX
The order of July 10, 1963, fails to mention the motion 

filed by appellant May 23, 1963, for Declaratory Judgment.
_ The transcript of the hearing April 18, 1963, supports 

position of appellant on conduct of hearing and how he was 
excluded from participating.

It is hereby certified that copies of the brief have been
served upon counsel for the appellees th is ..............day of
November, A. D., 1963.

DAVIS LEE, 
Appellant and Counsel.

( 1 5 )