Triangle Improvement Council v. Ritchie Reply Brief for Petitioners

    I n  the

Bnpxmt (^mxt al Winxtxh
October T eem, 1970 

No. 712

Triangle I mpboyement Council, et al.,
Petitioners,

— V.—

W illiam S. R itchie, Commissioner, S tate R oad 
Commission oe the S tate op W est V irginia, et al.

Respondents.

ON WRIT OP c e r t io r a r i  TO THE UNITED STATES COURT OP APPEALS 

POR THE POURTH CIRCUIT

REPLY BRIEF FOR PETITIONERS

J ack Greenberg 
J ames M. N abeit III 
Charles S tephen R alston 
E lizabeth B . D uB ois 
J eppey a . Mintz

10 Columbus Circle 
New York, New York 10019

J ohn L. B oettner
1116-B Kanawha Blvd., E. 
Charleston, West Virginia 25301

A. A ndrew MaoQueen III 
1026 Quarrier Street 
Charleston, West Virginia 25301

Attorneys for Petitioners

T homas J . O’S ullivan 
14 Wall Street 
New York, New York 10005

Curtis B erger
Columbia University School of Law 
New York, New York

Of Counsel



I N D E X

PAGE

The Overton Park Decision ........................................  1

The Federal Respondents’ Brief ................. ............... 4

The State Respondents’ Brief ............................  12

CONOLUSION ..........................................   14

TaBIjE OP Aitthoeities

Cases:

Arrington v. City of Fairfield, 414 F.2d 687 (5th Cir. 
1969) ............................  7

Citizens to Preserve Overton Park v. Volpe, No. 1066,
O.T. 1970, March 2, 1971 ...................................... 1-4,7, 9

Norwalk CORE v. Norwalk Redevelopment Authority,
395 F.2d 920 (2d Cir. 1968) ....................................  7

Service v. Dulles, 354 U.S. 363 (1957) ........................  9

Statutes:

23 U.S.C. §106 ...............................................................  10
23 U.S.C. §138 .............................................................  1, 2
23 U.S.C. §502 ...................................................... 2,4, 6,10
23 U.S.C. §508 ............................................................. 4
23 U.S.C. §510 ........................................  8
42 IT.S.C. §1982 ...........................................................  6-7
49 U.S.C. §1653 (f) ...........................................   1,2



11

PAGE

Federal-Aid Higliway Act of 1970, Pub. L. 91-605,
§117 .....................................   5

Uniform Eelocation Assistance and Beal Property Ac­
quisition Policies Act of 1970, Pub. L. 91-646, §§205,
210 ................................. ..................... ............................. ........  11

Department of Transportation Regulations:

Circular Memorandum, February 12, 1969 ..................  10

Circular Memorandum, April 10, 1970 .........    10

Instructional Memorandum 80-1-68, September 5,
1968 .....................................................................4,5,8,11



1st the

Olflurt nt
OcTOBEB T eem, 1970 

No. 712

T biangle I mprovement Council, et al.,
Petitioners,

W illiam S. R itchie, Commissioner, S tate R oad 
Commission of the S tate op W est V irginia, et al.

Respondents.

ON WRIT OP CERTIORARI TO THE UNITED STATES COURT OP APPEALS 

FOR THE FOURTH CIRCUIT

REPLY BRIEF FOR PETITIONERS

Petitioners submit this reply brief under Rule 41(3) to 
respond to matters raised in the briefs of the federal and 
state respondents, and also in the nature of a supplemental 
brief under Rule 41(5) to discuss this Court’s decision of 
March 2, 1971, in Citizens to Preserve Overton Park, Inc. 
V. Volpe, No. 1066, this Term.

The Overton Park Decision.
Overton Park involved provisions of the Federal-Aid 

Highway and Department of Oh'ansportation Acts requir­
ing that special care be given in the construction of high­
ways to insure preservation of parklands to the greatest 
degree possible.^ The ojiinion holds that determinations of

123 U.S.C. §138; 49 U.S.C. §1653 (f). These statutes are derived 
in part from the Federal-Aid Highway Act of 1968, the same stat­
ute in which the relocation provisions here at issue are found. 
Both provisions may be said to represent Congressional concern



the Department of Transportation are reviewable in the 
courts under the Administrative Procedure Act, and de­
fines the standards of such review. The reviewing court is 
“to engage in a substantial inquiry . . . [and] a thorough, 
probing, in depth review” (slip op. 12) in order to deter­
mine “whether the Secretary has acted within the scope of 
his authority,” “whether the decision was based on a con­
sideration of the relevant factors and whether there has 
been a clear error of judgment” and “whether the Secre­
tary’s action followed the necessary procedural require­
ments.” (slip op. 12, 13, 14) This review is to be made 
on the administrative record, where it exists, on the basis 
of testimony “of the administrative official who partici­
pated in the decision” (slip op. 17) or, where necessary, 
following a remand to the Secretary to enable him to make 
such a record, including his findings. Since the district 
court had failed to make such an inquiry, but had relied 
instead on litigation affidavits, the case was remanded for 
a prompt and full review of the record.

In the instant case, the district court anticipated the 
Overton decision to the extent of holding that judicial re­
view was available to those challenging determinations of 
the Department of Transportation. But it undertook no 
meaningful inquiry of the agency’s determinations because 
it held the statute under which the Department’s actions 
were questioned, the relocation provisions of the 1968

for reducing the detrimental social impact of highway construction. 
To some degree they are complementary, for the decreased use of 
uninhabited parkland contemplated by sections 138 and 1653(f) 
will in many cases make it necessary to route the roads through 
more populated areas, making the need for relocation assistance 
greater. Of. slip op. 9. I’here is also a similarity in language, as 
both statutes mandate that the SocretaT-y "shall not approve” high­
way projects until stated preliminarv determinations are made. 
Compare 23 U.S.C. §138 and 49 V.S.C. §1653 (f) with 23 T.S.C. 
§502.



Federal-Aid Highway Act, inapplicable to this case because 
authority to acquire right-of-way for this highway had 
been given prior to their enactment on August 23, 1968. 
Here again Overton, dealing with a very similar statute, 
see n. 1 supra, is instructive. The challenged route through 
the park had been approved in 1956 and again in 1966, 
prior to the passage of the statutes, and reaffirmed in 1968 
prior to its strengthening amendment. Before suit was 
filed the right-of-way had been acquired by the state and 
final approval of the route and the design issued by the 
Secretary. Despite this, the Court had no difficulty holding 
the statute applicable to the project and the lawsuit. Here 
the corresponding dates were 1964 when the route was 
approved^ and 1966 and 1967 when authority to acquire the 
right-of-way was given. However, at the time the statute 
was enacted, only 9 of the 63 parcels in the Triangle area 
were acquired (PL Ex. No. 4) and by February 28, 1969, 
shortly before the trial, only 42 of the 326 persons resid­
ing on the route had been moved. (App. 100a; 148a; 194a- 
195a)® Despite this, the courts below adopted the Depart­
ment’s position, which is still asserted, that petitioners were 
not entitled to the assurances of adequate relocation hous­
ing which the statute mandates. Because of this ruling, the 
Department was not required to make an administrative 
record, which in this case would consist of the assurances 
given by the state to the Department prior to approval of

 ̂The route was reconsidered and reapproved during the summer 
and fall of 1970. See main brief at 10 N. 18; Br. App. 45-46.

 ̂The Federal Respondents distort the scope of this ease by reg­
ularly referring to actions which occurred on the entire length of 
the Interstates in the City of Charleston. Petitioners have never 
purported to represent any displaeees other than those living in 
the Triangle district, upon whom the impact of dislocation is made 
greater by the fact that they are almost entirely poor and/or black. 
The record reveals that both acquisition and displacement outside 
the district took place at a faster rate than within it.



the projects, 23 U.S.C. ‘§.§502(3) and 508(a), assurances 
which are defined by regulation to consist of a relocation 
plan/ IM 80-1-68 ]\7; cf. App. 74a, 429 F.2d at 424 (Sobe- 
loff, J ., dissenting). Thus, under O verton, if petitioner’s 
legal position is upheld, a remand to the Department would 
be required for the preparation of an administrative rec­
ord which could then be reviewed by the courts.®

The Federal Respondents’ Brief
Federal Respondents suggest that inasmuch as the great 

majority of the persons living in the highway right-of-way 
in the Triangle have already been moved, the issues in this 
case are insubstantial and no longer need be decided by 
this Court. But this is not at all so. Petitioners have as­
serted from the date this suit was instituted, less than four 
months after the enactment of the 1968 Federal-Aid High­
way Act with its provisions relating to relocation, that 
the Act was intended to insure that persons displaced by 
federally aided highways would be provided with “decent, 
safe and sanitary” housing, comparable in cost and facili­
ties to that from which they were moved. 23 U.S.C. §§502,

■* The respondents acknowledge that no such assurances have ever 
been given relating to this project, and that no adequate reloca­
tion plan was ever prepared. Fed. Eesp. Br. 18.

® Petitioners agree that in the present circiunstance, where sub­
stantially all of the persons have been moved, a relocation plan may 
no longer be appropriate to fulfill the Rmction for which it is de­
signed. See infra at 5, 8,11-12. (We most emphatically do not agree, 
as tlie federal respondents seem to imply, that this ease would be 
moot if all were already moved at this time. Fed. Eesp. Br. 25, for 
the question would remain as to whether they had been accorded 
tl>e protections id' the statute,') Eather, we submit that appropriate 
relief, to be fashioned b.v a court of equity employing the flexibility 
which is the hallmark of equity, may be obtained throttgh a survey 
of those who have been displactd to determine whether they have 
in fact been prmided with "diveut, safe and sanitary housing.'' 
The state rwspoudeuts agiw that such ix'lief is appropriate if peti­
tioners pivvaih aiut suggi'st that they wmld, without diflioulty, 
comply with such an older. 8tate Kt'sp. Br,



508; cf. Federal-Aid Highway Act of 1970, Pub. L. 91-605, 
§117. If this is correct, and the courts below were in error, 
relief is appropriate for all who have been denied those 
protections. To be sure, the nature of such relief may be 
changed. The use of a relocation plan, the method re­
quired by the Department’s regulations to implement the 
statute, IM 80-1-68 TT7, may no longer be appropriate. 
However, in the exercise of its historic discretion, a court 
of equity may fashion such relief as is appropriate to 
correct a past injustice. Petitioners have suggested that 
such relief may be afforded through the means of a survey 
of those who have been displaced, to determine whether 
the housing into which they have been forced is indeed 
adequate under the standards of the statute and regula­
tions, and that new housing be provided where it is not. 
See main brief at 50-52. The state respondents agree that 
this would be appropriate if petitioners view of the law 
is sustained. State Resp. Br. 22-23 The viability of the 
legal issues, and therefore the importance of deciding them 
is thus unaffected by the change in the factual situation.®

We deem to be inappropriate, in light of their position 
on the law, federal respondents’ suggestion that the course 
for those who have been denied adequate housing is to 
institute “separate proceedings in the district court”. Fed.

® It is thus not true that “Petitioners concede that the question 
‘whether people have been relocated to decent, safe and sanitary 
housing as required by federal statute’ (Pet. Br. 17 N. 49) is not 
in this case.” (Fed. Resp. Br. 24) All that petitioners suggested 
in the quoted footnote is that this Court is not the appropriate 
forum to make a factual determination as to that is.sue, particularly 
on the basis of ex parte and self-serving presentations by either side. 
The question of whether people were entitled by law to be relocated 
to such housing is, of course, the heart of the issue before this 
Court. If  petitioners prevail on that issue, we are indeed prepared, 
on remand to the district court, to prove that a large number of 
persons from the Traingle were forced by this highway project to 
move into housing which is inadequate.



Resp. Br. 24-25, 50-51'̂  It is that very court which has 
held that petitioners have no right to be assured of decent 
replacement housing, and which was affirmed by its court 
of appeals. Respondents continue to assert the correctness 
of that holding. Absent instructions from this Court, there 
is no reason whatever to believe that either the lower court 
or the respondents would change their position. What is 
suggested is therefore no remedy at all under no standards 
at all.*

We have already discussed at length our reasons for 
suggesting the errors in the factual determination of the 
trial court “that adequate relocation housing, on an open 
racial basis” was available for these displacees, main brief 
at 6-9; 14-17; 46-49, and will not reiterate those arguments 
here for purposes of refutation,® and in support of our 
constitutional argument. What should be noted is that the 
thrust of that argument is misconstrued by the federal 
respondents. It is true that, while it may be unlawful, 42

 ̂If there were to be such proceedings, we do not agree that the 
Department of Transportation would not be a proper party de­
fendant. Fed. Resp. Br. 24-25 While it is true that the state has 
the ultimate responsibility for relocating people, the rights of the 
displacees are created by a federal statute which specifically places 
the responsibility for their enforcement in the Secretary of Trans­
portation. 23 U.S.C. §502.

® It should also be noted that the implementation of that sugges­
tion would likely require the filing of perhaps dozens of separate 
lawsuits by each person who claims to have been wronged. I t is 
just such a multiplicity of actions, with identical legal and similar 
factual issues which this class action was instituted to avoid.

® I t should be noted that we do not place principal reliance “on 
the testimony of a city planner from New York” and his studies 
derived from 1960 census figures, Fed. Resp. Br. 47; 28-29; al­
though that evidence is important. Rather, our reliance is based 
on studies undertaken in 1968 for the city's urban renewal agency, 
PI. Bx. No. 14, and by the federal highway officials in Charleston, 
PI. Ex. No. 12, App. 84a-98a, the former finding appreciable racial 
discrimination in housing, and the latter finding a severe shortage 
of relocation housing.



U.S.C. §1982, private housing discrimination is not caused 
directly by the federal, state and city respondents. Eather, 
by destroying the homes of black persons through the 
construction of this highway, the respondents have forced 
them to seek housing in a market where they are subject 
to such discrimination, and where their opportunities to 
find housing are thereby reduced. It is this combination 
of state and private action which was found to be a denial 
of equal protection in Norwalk CORE v. Norwalk Re­
development Authority, 395 F.2d 920 (2d Cir. 1968) and 
Arrington v. City of Fairfield, 414 F.2d 687 (5th Cir. 
1969), and it is just such a combination of action which 
is revealed by the evidence in this case.

The mere existence of city and federal fair housing laws 
can be said to eliminate this issue. Such laws are benefi­
cial and necessary and may go far toward reducing the 
existence of discrimination in housing. However, as State 
respondents concede (State Eesp. Br. 10), laws do not 
eliminate racial prejudice or its effects.^" Moreover, it 
cannot be said that a minority group family is rendered 
“equal” because they have the opportunity to obtain 
through administrative or court action a dwelling which 
is available to others simply by tendering the purchase 
price or the rent. In any event, whether or not the district 
court’s finding was clearly erroneous, there can be no 
question that the court erred, under Overton and the other 
cases cited in our brief, in deciding de novo that housing 
was available on an open racial basis rather than insist­
ing that the agencies provide an adequate administrative 
record to sustain that determination.

The exclusion of owner-occupied dwellings of less than four 
units from the coverage of th(> Charleston ordinance, State Rcsp. 
Br. 10 and 5-A, is particularly pertinent in that city where the 
combination of cultural bias and hilly topography result in the in­
frequent construction of large apartment houwjs, and cause such 
small units to be the bulk of multi-family dwellings.



8

In their arguments under the statute, federal respon­
dents appear to suggest that petitioners’ demand for a 
formal relocation plan is formalism for its own sake, and 
not the only available means to satisfy the statutory re­
quirements. While a relocation plan would not seem to be 
the appropriate relief at this stage of the case, after most 
of the Triangle residents have been moved, failure to 
provide such a plan was the legal error which gives rise 
to the need for a remedy at this time. Our assertion of 
the necessity for such a plan in 1968 is premised on two 
factors. First, it is the device which the Secretary deter­
mined by regulation, IM 80-1-68 1J7, was the appropriate 
one to satisfy the legislative requirement that “satisfac­
tory assurances” af adequate relocation housing* be given 
by the state, 23 U.S.O. §502, in the exercise of the rule 
making authority which Cong-ress has delegated to him, 
23 U.S.O. §510(b).“ We submit that the Department is 
not free to disregard its own requirements, simply because 
in a particular case they may be burdensome to apply.

What constitutes “satisfactory assurances” has been defined 
by regulation. They may not be merely vague or general prom­
ises. Instead, the statute and the regulations adopted pursuant 
thereto make mandatory a plan of relocation which describes 
the methods and procedures to be used and specifies detailed 
data concerning the replacement housing to be provided. 
There must also be a report probing relocation problems, an­
alyzing other public programs affecting the availability of 
housing, furnishing information on concurrent displacement 
caused by other agencies, estimating the time required to ac­
complish the plan, and demonstrating that the plan is adequate 
“to carry out a timely, orderly and humane relocation pro­
gram.” IM-80-l-68-(7) (b) I t is this accumulation of pro­
posal and fact that enables federal ofScials to review the plan 
to determine whether

[t]he State’s relocation plan is realistic and is adequate 
to provide orderly, timely, and efficient relocation of dis­
placed individuals and families to decent, safe, and san­
itary housing with minimum hardship on those affected. 
IM-80-l-68-(5) (a).

App. 74a-75a; 429 F.2d at 424 (Sobeloff, J., dissenting.)



Service v. Dulles, 354 U.S. 363, 388 (1957). Secondly, even 
if the regulations did not require it, a relocation plan, pre­
pared in advance of displacement, and giving in detail the 
needs of displacees and the housing available to meet 
those needs, is the best, and perhaps the only way in which 
the interested persons, those whose homes are to be de­
stroyed can know what is in store for them. In the ab­
sence of such advance planning, they will have no informa­
tion about their fate until they are under irresistible pres­
sure to move. Moreover, the absence of a plan, which con­
stitutes the “administrative record” in a case such as this, 
makes the right to judicial review essentially meaning­
less, since there is nothing to review. It results in exactly 
what happened here, and what was condemned in Overton 
Parlf. the court “substitut[ing] its judgment for that of 
the agency.” slip op. 13, and relying on “post hoc” ra­
tionalizations, id. at 16.

The federal respondents go further than this, for they 
say not only that no relocation plan was required, hut that 
no form of assurances whatever were called for, and they 
acknowledge that none were given on this project. Fed. 
Resp. Br. 18; 38-39 This would appear to go even be­
yond the opinion of the district court which held “that 
Congress could not have intended that projects authorized 
and approved several years prior to the enactment of the 
1968 statute were to be subject to inflexible and strict com­
pliance therewith,” App. 54a-55a (emphasis added), but 
that a good faith and “practical” compliance would suffice. 
App. 55a The necessary conclusion from this analysis is 
that the statute has no application whatever to these peti­
tioners, insofar as it relates to the requirement of adequate 
relocation housing.^  ̂ We have already presented our argu-

There is no substantial dispute in this case regarding the ap­
plication of the various relocation payment requirements of the 
statute.



10

ments that neither the language of the statute, main brief 
at 27-30, nor its legislative history, Br. App. 47-52, can be 
read to permit such an interpretation.

Petitioners also do not agree with respondents’ position 
that the authorization of right-of-way acquisition is the 
“approval” under 23 XJ.S.C. §106 which is referred to in 
23 XJ.S.C. §502, that is, on approval “which will cause the 
displacement of any persons, business or farm operation.” 
Fed. Resp. Br. 37 The acquisition of right-of-way is 
merely the transfer of ownership of the real property to 
the state. It does not of itself displace anyone, as per­
sons may live for years with the state as their landlord. 
It is the clearance of right-of-way—-the actual leveling of 
structures — which inevitably must cause displacement. 
This is made clear by the Department’s April 10, 1970, 
memorandum. That directive prohibits the authorization 
of: “any phase of construction (clearance of right-of-way 
regardless of how performed is considered to he a con­
struction phase insofar as this memorandum is concerned 
which would require the displacement of individuals and 
families” until such persons have obtained adequate re­
placement housing.

Respondent’s dismissal of that memorandum as having 
no significant impact on this case is particularly surpris-

The italicized parenthetical phrase is omitted from the quota­
tion of this memorandum by the federal respondents, Fed. Resp. 
Br. 37.

Similarly, the device of omitting a critical passage is used to 
distort the meaning of a Department memorandum of February 
12, 1969, Fed. Resp. Br. 40, which in full instructs the “division 
engineer to carefully review the status of each project before is­
suing any additional authorizations to acquire right-of-way or to 
authorize construction on a project for which right-of-way was 
acquired after August 23, 1968” to determine whether relocation 
is being conducted properly. (Italicized portion omitted.) In the 
Triangle, only 9 of 63 parcels were acquired before that date. PI. 
Ex. No. 4.



11

ing in light of Judge Sobeloff’s statement that as a result 
of that directive, “There is, of course, no dispute within 
the court that the appellant’s position has now become the 
law and that comprehensive relocation plans are required 
before construction can be approved.” App. 77a, 429 F.2d 
at 426 (dissenting opinion)“ At the very least, this 
memorandum requires that those moved since May 1, 
1970, over half of the Triangle displacees, be guaranteed 
adequate replacement housing.

Finally, and essentially for the reasons stated in our 
supplemental brief, petitioners do not agree that the Uni­
form Relocation Act of 1970 supports respondents. The 
“satisfactory assurances” required of a state by section 
210 (Supp. Br. App. 6) refer back to the relocation as­
sistance program described in section 205 (id. 4-5), which 
in outline form states the basics of a relocation plan, 
thereby going substantially beyond the requirements of 
the 1968 act.̂ ®

It may therefore be said that there are appropriately 
three sub-classes of petitioners: (1) those moved between 
August 23, 1968, and May 1, 1970, whose rights are gov-

Apparently the Court of Appeals read that regulation in light 
of its administrative history, see Br. App. 41-42, as demonstrating 
an intention to avoid technical restrictions on the applicability of 
the statute, and therefore, as a practical matter, repealing the 
limitation of IM 80-1-68 (I5b, which purports to limit the require­
ment of relocation planning. Petitioners submit that this inter­
pretation correctly states the law.

Petitioners also do not agree that section 205 refers only to 
direct federal projects and not to federally financed state projects. 
I t  is submitted that when Congress referred to “a program or 
project undertaken by a federal agency in any State,” (f205(a), it 
included both types of projects. This is suggested by §210 which 
obliges states to furnish the services described in §205, and is made 
manifest when it is considered that by far the greatest displace­
ment is caused by federally financed state programs, e.g. highways, 
urban renewal, airports, public housing, rather than direct fed­
eral programs, e.g. parks, post offices.



12

erned by the 1968 statute and the original regulations; 
(2) those moved from May 1, 1970, to January 2, 1971, 
to whom the April 10, 1970, regulations apply; and (3) 
those moved after January 2, 1971, who are protected by 
the new statute. All of their rights can, to the extent pos­
sible, and in a manner to be fashioned in equity, be as­
sured by a single ruling to the effect that (a) their rights 
under the statutes and regulations were violated, and (b) 
they should be located, their housing evaluated under the 
statutory standards required for displacees, and relocated 
where required according to those standards. The ade­
quacy of relocation and plans can therefore he assessed 
by the court below by reviewing an administrative record 
which is prepared in a manner adequate to the circum­
stances.
The State Eespondents’ Brief.

Since the State Respondents concede the correctness of 
the legal theories advanced by Petitioners, and confine 
their discussion to the facts,̂ ® State Resp. Br. 23-24, their 
brief requires little response. There are some points of dis­
agreement between the two respondents which should be 
noted. The “State Respondents agree that the 1968 Reloca­
tion Amendments assure persons not yet displaced as of 
the date of their enactment of the right to adequate replace­
ment housing,” State Resp. Br. 12, 18; and state that they 
gave assurances to the federal officers toward that end, 
id. at 4, 13. They dispute only our assertion that a formal

1® Their suggestion that because few of those in the right-of-way 
complained of their treatment by the state in testimony before the 
trial court, there must have been general satisfaction with their 
program. State Eesp. Br. 8-9, is difficult to understand when it is 
considered that only 42 of the 326 Triangle displacees had been 
moved at that time. App. 148a, 194a-195a. Petitioners are prepared 
to prove, at a hearing on remand of this case, that a substantial 
number of displacees have been significantly harmed by their dis­
location.



13

relocation plan was required, id. at ISd'' The federal re­
spondents state that the statute has no application to this 
case, that no assurances whatever were required. Fed. 
Resp. Br. 37-38, and that in fact none were given by West 
Virginia, id. at 18. The state also agrees that if petitioners’ 
legal position is accepted, relief should be afforded to those 
who have already been moved. State Resp. Br. 22, and 
agree that it would be reasonable to require them to locate 
those who have been displaced and, where necessary, pro­
vide corrective assistance, id. at 23. The federal respon­
dents suggest that a ruling in this case would have no 
application to those already moved. Fed. Resp. Br. 22-25 
On this point, it is submitted that the state’s position is 
more pertinent, as it is they who had the direct respon­
sibility for relocating people, and upon whom, on remand, 
the greater burden of correcting their actions, under appro­
priate federal standards, would fall.

They concede that if such a plan were required, the assurances 
given to the trial court were not “an adequate substitute therefore.” 
State Resp. Br. 20.



14

CONCLUSION

For the foregoing reasons, and those in our principal 
and supplementary briefs previously filed, the judgment 
below should be reversed.

Respectfully submitted,

J ack Greenberg 
J ames M. N abrit III 
Charles S tephen R alston 
E lizabeth B . D u B ois 
J efery a . Mintz

10 Columbus Circle 
New York, New York 10019

J ohn L. B obttner
1116-B Kanawha Blvd., B. 
Charleston, West Virginia 25301

A. A ndrew MacQuebn III 
1026 Quarrier Street 
Charleston, West Virginia 25301

Attorneys for Petitioners

T homas J . O’S ullivan 
14 Wall Street 
New York, New York 10005

Curtis B erger
Columbia University School of Law 
New York, New York

Of Counsel



MEILEN PRESS IN C  —  N. Y. C. 219