Objections of Defendants to the Metropolitan Plan Submitted by the State and by Way of an Alternative, Submission of a Metropolitan Detroit Area Integration Plan

    IN THE
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

RONALD BRADLEY, et al,

Plaintiffs-Appellants, v s . J

WILLIAM G. MILLIKEN, et al,

Defendants-Appellees,and 5

DETROIT FEDERATION OF TEACHERS 
LOCAL 2 3 1, AMERICAN FEDERATION * OF 
TEACHERS, AFL-CIO,

Intervening Defendant.
/

APPfcAL PROM THE DISTRICT COURT OF THE UNITED STATES 
FOR THE EASTERN DISTRICT OF MICHIGAN S

SOUTHERN DIVISION

RESPONSE IN OPPOSITION TO PLAINTIE’FS-APPELLAN'I'S ' 
MOTION FOR APPOINTMENT OF A TRIAL JUDGE

FRANK J. KELLEY 
Attorney General

Robert A. Derengoski 
Solicitor General

Business Address:
Seven Story Office Bldg. 
525 West Ottawa Street 
Lansing, Mich 48926

Eugene Krasicky 
Assistant Attorney General

Attorneys for Defendants-Appelle



0

No. 21,036 

IN THE
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

RONALD BRADLEY, et al,

vs .
Plaintiffs-Appellants,

WILLIAM G. MILLIKEN, et al,

Defendants-Appellees,
and

DETROIT FEDERATION OF TEACHERS,
LOCAL 231, AMERICAN FEDERATION OF 
TEACHERS, AFL-CIO,

Intervening Defendant. 
__________ /

RESPONSE IN OPPOSITION TO PLAINTIFFS- 
APPELLANTS 1 MOTION FOR APPOINTMENT OF 
A TRIAL JUDGE.________________________

Nov; come the state defendants -appellees, William 
G. Milliken, Governor of the State of Michigan, Frank J. 
Kelley, Attorney General of the State of Michigan, Michigan 
State Board cf iiQUcation and John W. Porter, Superintendent 
of Public Instruction, by their attorneys Robert A. 
Derengoski, Solicitor General, and Eugene Krasicky,

Assistant Attorney General, and in opposition to plaintiffs-



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appellants' "Motion pursuant to 28 U.S.C. §292(b) for 
Appointment of Trial Judge," say as follows:

I.
PLAINTIFFS-APPELLANTS ARE RESPONSIBLE FOR
THE DELAY IN TRYING THIS CAUSE ON THE MERITS.

A brief chronology of events in this cause will 

conclusively demonstrate that plaintiffs-appellants alone 
are responsible for the delay in a trial of this cause.
They have sought preliminary relief at every turn, both 
in the trial court and before this Court. The district 
court has gone to great lengths to accommodate plaintiffs- 
appellants. Yet, plaintiffs-appellants now attempt to 
shift the cause of delay from their shoulders to those of 
the trial judge.

On August 18, 1970 the complaint was filed. The 
rcgxt day the trial judge held an 8:30 A.M. conference with 
the various counsel in chambers concerning plaintiffs’ 
request for an ex parte order. On August 19, 1 970 the 
lower court denied ex parte relief and issued an order to 

show cause why plaintiffs-appellants’ request for preliminary 
injunction should not be granted. The Court held hearings 
on August 27, 28 and September 1 , 1970 on the request for a 
preliminary injunction.

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Then, realizing the need for an immediate decision 

because of the impending opening of the Detroit schools, 
the Court notified the parties by telephone of its decision. 

Subsequently, the Court, issued its written opinion on 
September 3, 1970 denying the preliminary injunction and 

reserving two weeks, commencing November 2, 1970, for a 

trial on the merits.

Plaintiffs-appellants responded by appealing the 
denial of a preliminary injunction. This Court expedited 
the appeal by advancing the cause on its docket for oral 
argument on October 2, 1970. On October 13, 1970 this 
Court issued its opinion affirming the denial of plaintiffs- 
appellants sought after preliminary injunction to, inter alia, 
compel implementation of the April 7 plan.

Yet, on October 30, 1970 plaintiffs-appellants filed 
a motion for immediate implementation of the April 7 plan.
On November 4, 1970 the district court heard argument on 
the motion for immediate implementation. At that time, 
with plaintlffs-appellantsT approval, the Court moved the 
trial on the merits to December 8, 1970. Concurrently, the 
Court ruled that the Detroit Board of Education was to submit 
integration plans to the district court.

Once the integration plans were submitted, the

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trial judge held evidentiary hearings on the plans on 

November 18, 19 and 25, 1970. In addition, the Detroit 
Board of Education moved for a continuance of the trial.

On December 3v 1970 the district court released its 
opinions ordering implementation of the McDonald plan and 

granting the motion for continuance with a clear indication 
that the trial would commence "in early Spring 1971."

The trial court’s wisdom in not establishing a 
fixed trial date at that time was demonstrated by the 
subsequent course of these proceedings. Presently plaintiffs- 
appellants are before this Court with their second interlocutory 
appeal and, once again, this Court advanced this cause for 

oral argument on the merits. Thus, currently this case is 

pending before this Court for disposition of the issues 
raised by plaintiffs-appellants’ second interlocutory appeal.

This chronology of prior proceedings compels the 
conclusion that plaintiffs-appellants repeated attempts to 
obtain preliminary relief, prior to a trial on the merits, 
are the cause of delay in hearing this case on the merits.
The trial judge has been consistently faced with plaintiffs- 
appellants’ numerous requests for preliminary relief and he 
has accommodated their requests at every turn with prompt 
hearings and rulings on such requests. In point of fact, 
the trial judge has scheduled a hearing for February 11, 1971

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on the questions of plaintiffs’ standing to sue and the 
appropriateness of plaintiffs’ suit as a class action under 

F.R.C.P. 23. Thus, it cannot be said that the conduct of 
the trial judge has delayed the trial. Rather, it must be 
concluded that the cause is plaintiffs-appellants ’ desire to 

obtain judicial relief without undergoing the traditional 
process of a trial on the merits prior to obtaining the relief 
sought.

II.

PLAINTIFFS-APPELLANTS* MOTION CONSTITUTES
FORUM S H O P P I N G . _______ ________________

At least 6 days of evidentiary hearings have already 
been concluded in this cause on plaintiffs-appellants’ 
preliminary motions. The trial judge has made it perfectly 
clear in his opinions to date that plaintiffs-appellants 
have proved neither de jure nor de facto segregation of 
the Detroit public schools. Thus, it is not surprising 
that plaintiffs-appellants would seek to, in effect, 
disqualify and remove Judge Roth from this cause. He has 
heard plaintiffs-appellants' proofs to date and found them 
wanting.

If a new trial judge is appointed, all the testimony 
taken to date will lose its integrity and credibility as 
part of the trial record for the reason that the newly 
appointed judge was not present at the hearings. Although

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•  •

this would undoubtedly please plaintiffs-appellants, it 
is manifestly unfair to all the defendants-appellees 

herein.
In addition, a newly appointed trial judge would 

need time to familiarize himself with plaintiffs-appellants * 

complex and far reaching cause of action as illustrated by 
the allegations and prayer for multiple relief in the 
complaint. To further illustrate this point, it should be 
noted that plaintiffs-appellantsf pretrial statement, filed 
at the request of the trial judge, lists over 30 issues for 

resolution by the Court in this cause. Further, a newly 
appointed judge would require time to familiarize himself 
with the prior proceedings and the present posture of this 
cause. In short, the appointment of a new trial judge could 
delay rather than expedite a trial on the merits. The efficient 
use of judicial manpower would be served by retaining the same 

j-udge for all of the proceedings in this cause.

The question of whether the district court abused its 

discretion in granting a continuance is already before this 
Court. The state defendants-appellees do not intend to reargue 
that issue herein except to reiterate their position that, in 

light of the 5 sound reasons advanced by the trial judge, the 
granting of the continuance was not an abuse of discretion. 

Moreover, assuming arguendo that this Court decides that the

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continuance constituted an abuse of discretion and 
orders an immediate trial on the merits, the appointment 

of a new trial judge would only delay the commencement of 
trial while he familiarized himself with this cause.

Plaintiffs-appellants, having been unsuccessful 
to date in their attempts to establish de jure segregation 
of the Detroit public schools and to obtain preliminary 
injunctive relief, are now attempting to substitute a new 
judge for the trial on the merits. It must be emphasized 
that this Court should look with disfavor upon plaintiffs- 
appellants* attempt to accomplish a change of forums in 
such circumstances.

Finally, state defendants-appellees would inform 
this Court that, at the February 11, 1971 hearing referred 
to above, the trial judge ruled that plaintiffs-appellants
had standing to bring this suit. Further, as required by

*F.R.C.P. 23, the Court determined that this was a proper 
case for a class action and defined the class as all resident 
parents of Detroit who have children of school age and all 
school children in the City of Detroit. In addition, in 
the exercise of his sound discretion, the trial judge ruled 
that notice should be given the members of this extremely 
large class and established a tentative schedule, as follows, 

leading up to the commencement of trial.

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The notice to the class, through the communications 

media, will be given on February 16, 1971. Intervenors 

must file their appearances by March 8, 1971 and and hearings 

on intervention will be held March 16, 1971. The pre-trial 
order is due on March 21, 1971, all exhibits are to be marked 
by April 5, 1971 and the trial is to commence on April 6,
1971. The present assessment of the parties is that the trial 
will take 6 weeks. The Court will fix this or a substantially 
similar schedule by entry of an order on February 16, 1971. 
Therefore, there is every reason to believe that the schedule 
will be fixed by court order and the trial will be promptly 
forthcoming.

Thus, it is abundantly clear that the trial judge has 
established an expeditious schedule of proceedings leading up 

to a trial date in approximately 7 weeks. Any newly appointed 
trial judge would be compelled to establish a similar schedule 

of proceedings leading up to trial. Consequently, it is beyond 
dispute that the appointment of a new trial judge will not 
hasten the time in which this cause is tried on the merits.

In summary, plaintiffs-appellants, having been 
responsible for the delay In the trial on the merits, should 
not now be heard to complain in their attempt to secure a 
newly appointed trial judge.

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WHEREFORE, state defendants-appellees respectfully 
request that this Court deny plaintiffs-appellants’ Motion 
for Appointment of Trial Judge.

Respectfully submitted,
FRANK J. KELLEY 
Attorney General

Robert A. Derengoski 
Solicitor General

■Eugene ArasiCKy
Assistant Attorney General 
Attorneys for Defendants-Appellees
Business Address:

Seven Story Office Building 
525 West Ottawa Street 
Lansing, Michigan 48913

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CERTIFICATE OF SERVICE

This is to certify that a copy of the foregoing 

Response in Opposition to Plaintiffs-Appellants* Motion 

for Appointment of a Trial Judge has been served on counsel 
for Appellants, Louis R. Lucas, William E. Caldwell, 525 

Commerce Title Building, Memphis, Tennessee 38103; E. Winther 
McCroom, 3245 Woodburn Avenue, Cincinnati, Ohio 45207; 
Nathaniel Jones, 1790 Broadway, New York, N.Y., Jack 

Greenberg, James M. Nabrit III, Norman J. Chachkin, 10 
Columbus Circle, New York, N. Y. 10019; Bruce Miller,
Lucille Watts, 3426 Cadillac Tower, Detroit, Michigan 
48226; J. Harold Flannery, Paul Dimond, 38 Kirkland Street, 
Cambridge, Mass; Counsel for Defendants-Appellees, George 

E. Bushnell, Jr., 2500 Detroit Bank & Trust Building,
Detroit, Michigan 48226; and Counsel for Intervening 
Defendant, Theodore Sachs, 3610 Cadillac Tower, Detroit, 
Michigan 48226, by United States Mail, postage prepaid, 

this 12th day of February, 1971.

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