Response of Defendants-Appellees in Opposition to Plaintiffs' Motion for Leave to Proceed on the Original Papers and to Dispense with Printed Appendix

    No. 72-1065 
No. 72-1066

IN THE
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

RONALD BRADLEY, et al, .
Plaintiffs-Appellees, .

vs .
WILLIAM G. MILLIKEN, Governor 
of the State of Michigan, et al, .

Defendants-Appellants. .
_____/

RONALD BRADLEY, et al,
Plaintiffs-Appellants, 

v s . .

WILLIAM G. MILLIKEN, Governor .
of the State of Michigan, et al,

Defendants-Appellees.
/

No. 72-1065

No. 72-1066

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

Aouthern Division

RESPONSE OF DEFENDANTS-APPELLEES WILLIAM G. MILLIKEN, 
FRANK J. KELLEY, THE STATE BOARD OF EDUCATION, AND 
JOHN W. PORTER, IN OPPOSITION TO PLAINTIFFS' MOTION 
FOR LEAVE TO PROCEED ON THE ORIGINAL PAPERS AND TO 
DISPENSE WITH PRINTED APPENDIX. ________________

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 
Attorneys for Defendants-Appel



Plaintiffs' motion, at paragraph one and the 
accompanying footnote, refers to a stipulation as to the 
order of filing briefs. This stipulation will not be 
filed for the reason that neither the state defendants 
nor the intervening defendant, Detroit Federation of 
Teachers, Local 231, American Federation of Teachers,
AFL-CIO, will agree to the stipulation. Thus, in 
accordance with FR App P, 28(h), plaintiffs are and remain 
appellants herein.

The state defendants will begin this response 
by making the observation that regardless of plaintiffs' 
claims of impecuniosity, they have not sought leave to 
appeal in_ forma pauperis, nor nave they filed an affidavit.
As a matter of fact, in a proceeding which to date has 
involved two appeals by plaintiffs to this Court, their 
representation by a battery of attorneys assembled from at 
least five different states of the Union, 41 days of trial time 
and numerous other proceedings and hearings, this is an 
inappropriate time for the plaintiffs to claim poverty.

Plaintiffs make their motion pursuant to federal 
rules of appellate procedure, FR App P, 30(f), which reads 
as follows:

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"A court of appeals may by rule applicable 
to all cases, or to classes of cases, or 
by order in specific cases, dispense with 
the requirement of an appendix and permit 
appeals to be heard on the original record, 
with such copies of the record, or relevant 
parts thereof, as the court may require."

Pursuant thereto, this Court adopted its Rule 10
which permits an appeal on the record, in lieu of an
appendix, where the record on appeal is 100 pages or less.
Subsection (c) of this rule provides as follows:

"Except as provided in paragraphs (a) and (b) 
of this rule, the provisions of the Federal 
Rules of Appellate Procedure relating to the 
appendix or appendices shall be controlling."

Excerpts from the proceedings of the 29th Annual
-Ti’dicial Conference of the Sixth Judicial Circuit of the
United States are reported in 45 FRD 293 and contain the
remarks of the Honorable Harry Phillips, now Chief Judge of
this Court, with regard to the "New Federal Rules of Appellate
Procedure [which] will become effective in all courts of
appeals on July 1, 1968." He commenced his remarks by
discussing briefs and appendices and emphasized the importance
of a clean readable page by saying:

"Because of the tremendous amount of reading 
required of each judge of our Court, we do not 
intend to tolerate any abuse of this rule.
The policy of our Court will be to insist 
upon strict compliance with the requirement 
for clear readable copies. . . ." p 299

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The Chief Judge also emphasized the convenience
to the judges of having an appendix filed as a single
volume or set of volumes, by saying:

"Our Court strongly prefers, but rarely gets, 
a single joint appendix. Instead, under our 
present rules, we get two or more separate 
appendices which in order to be intelligible 
must be pieced together like a jigsaw puzzle. 
The separate appendices which we now get are 
often fragmentary. Our present system is 
confusing and unsatisfactory, both to the 
judges and attorneys." p 299

The plaintiffs' motion seeks a return to the 
neanderthal time when both judicial eyesight and judicial 
patience were expendable.

The Chief Judge noted the two -court-adopted 
exceptions to the printing of briefs and appendices: 
the record of 100 pages or less and appeals involving 
a review of the decisions of the Secretary of Health, 
Education and Welfare under the Social Security Law. He 
then said, "With these two exceptions all the provisions 
of the new appellate rules relating to the appendix will 
be controlling in the Sixth Circuit."

The state defendants think that, based upon the 
Chief Judge's remarks, it is arguable that the Sixth Circuit 
rule states the only two exceptions to the filing of printed

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appendices. Had the Chief Judge thought otherwise, it 
seems likely that he would have made reference to a third 
exception, a waiver upon showing for cause.

Nevertheless, Sixth Circuit Rule 10 does appear 
to set tne policy of the Court in these matters and the 
Chief Judge ably stated the reasons for the policy.

Is there really any sound reason for making an 
exception here? It would appear that the more complicated 
the case and the longer the record, the greater the need 
for a printed appendix if judicial eyesight, patience and 
efficiency are to be preserved. The argument against the 
expense involved can be made in any appeal. As a matter 
of fact, printing costs are almost always proportional to 
the other expenses involved in litigation. When one considers 
the battery of plaintiffs' counsel, the size and complexity 
of the lawsuit, the thousands and thousands of hours devoted 
to it, both in and out of court, and the tremendous signifi­
cance of the issues being litigated, it does seem a bit 
inconsistent for plaintiffs to say, at this stage of the 
proceedings, that cost of printing of an appendix will be 
a crushing burden.

Plaintiffs' claimed concern for the public treasury 
is not altogether consistent with their prior approach in



this cause concerning the expenditure of public funds.
For example, while this appeal was pending, plaintiffs 
filed a motion to require the Detroit Board of Education 
to pay an estimated $20,000 for a plan to be prepared by 
plaintiffs' experts. In fact, the amount was characterized 
as "a mere $20,000."

In paragraph 7 of their motion, plaintiffs 
claim "[an] agreement with plaintiffs-appellees (defendants- 
appellees) that the appeal should proceed on the original 
record with regard to trial exhibits, many of which are large 
and unwieldy and could not be reproduced." The state 
defendants have not and do not intend to enter into such 
an agreement with the plaintiffs and intend to include, 
either as a part of the appendix or as a part of their brief, 
those few exhibits relevant to them, all of which may be 
reproduced.

The assertion in paragraph 10 of the motion 
regarding a strike by Detroit area job printers seems to 
assume that the only job printers in the Sixth Circuit are 
in the city of Detroit. Further, FR App P,39 limits taxable 
costs to a rate not higher than those generally charged for 
such work in the area where the clerk's office is located.

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CONCLUSION

This appeal involves questions of great public 
importance relating to the Detroit school system, the 
tri-county Detroit metropolitan area and the conduct 
of both elected and appointed public officers of the 
state of Michigan. The issues are complex and the proofs 
are both voluminous and complicated. The state defendants 
respectfully submit that, in the interests of a fair and 
thorough appellate review as to all the parties herein, 
each member of the panel should have available a printed 
appendix containing the entire transcript of testimony, 
relevant pleadings and exhibits, thus presenting the record 
to each reviewing member of this Court in a readily accessible 
and easily readable form. This is clearly preferable to the 
original record or photocopies thereof.

State defendants would reiterate that plaintiffs' 
motion, at paragraph one and the accompanying footnote, 
refers to a stipulation as to the order of filing briefs.
This stipulation will not be filed for the reason that 
neither the state defendants nor the intervening defendant, 
Detroit Federation of Teachers, Local 231, American Federation 
of Teachers, AFL-CIO, will agree to the stipulation. Thus, 
pursuant to Rule 28(h'> of FR App P, plaintiffs herein are 
deemed the appellants for purposes of Rules 28, 30 and 31



*

of FR App P, unless otherwise ordered by the Court.

However, the Detroit Board of Education and the
state defendants have agreed to jointly bear the cost of 
printing the appendix. Further, the Michigan appellate 
courts have consistently held that, where cases involve 
important public questions as this case surely does, no 
costs will be taxed against either party regardless of 
which party prevails. School District of the City of Lansing 
v State Board of Education, 367 Mich 591, 600 (1962);
Penn School District No. 7 v Lewis Cass Intermediate School 
District Board of Education. 14 Mich App 109, 139 (1968).
Thus, plaintiffs’ argument about the crushing burden of the 
cost of printing the appendix is without merit.

WHEREFORE, the state defendants pray that plaintiffs' 
motion to dispense with the printed appendix be denied.

Respectfully submitted
FRANK J. KELLEY 
Attorney General
Robert A. Derengoski 
Solicitor General /

Business Address: George L. McCargar 
Gerald F. Young 
Assistant Attorneys General

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

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CERTIFICATE OF SERVICE

I hereby certify that a true copy of the foregoing 
response in opposition to plaintiffs1 motion for leave to proceed 
on original papers and dispense with a printed appendix was served 
upon the following named addressees this 3rd day of February, 
19/2 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 Flannerv, Paul R. Dimona 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

Sk,
%K]Eugene Krasicky Assistant Attorney General

Dated: February 3, 1972