Objections to Response of Plaintiffs' to Motions to Tax Cuts with Cover Letter

    W A L L A C E  D .  R I L E Y  
G E O R G E  T .  R O U M E L L ,  J R .  
D O R O T H Y  C O M S T O C K  R I L E Y  
J A N E  K E L L E R  S O U R I S  
E M M E T  E .  T R A C Y .  J R .  
T H O M A S  M . J .  H A T H A W A Y  
P A T R I C K  H .  M c C O L L O U G H  
J O H N  F. B R A D Y  
G R E G O R Y  P. T H E O K A S  
W I L L I A M  F. D E N N I S  
S T A N L E Y  C .  M O O R E , H I  
D .  M I C H A E L  C H E R R Y

R i l e y  a n d  R o u m e l l
A T T O R N E Y S  A N D  C O U N S E L O R S  A T  LAW  

7 t_h F L O O R  F O R D  B U I L D I N G  

D E T R O I T ,  M I C  H IG A N  4 8 2 2 6

December 19, 1974

T E L E P H O N E  (313) 962-8255

Mr. John P. Hehman, Clerk 
United States Court of Appeals 
Sixth Circuit
601 U.S. Post Office & Courthouse 
Cincinnati, Ohio 45202

Re: Bradley, et al v Milliken, et al
Nos. 72-8002 , 72-1809-1814

Dear Mr. Hehman:
Enclosed herewith please find the original and three 

copies of the Detroit Board's Objections to Response of 
Plaintiffs-Appellees to Motions to Tax Costs, with Certificate 
of Service attached, for filing in the above-captioned cause.

Respectfully yours,
RILEY AND ROUMELL

" T "  .

George T. Roumell, Jr.
Attorneys for the Board of Education 
of the School District of the City 
of Detroit

GTR:lh 
Enclosures
cc: All counsel of record



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

No. 72-8002,
Nos. 72-1809 - 72-1814

RONALD BRADLEY, et al.,

Plaintiffs-Appellees,

- v. -
WILLIAM G. MILLIKEN, et al.;
BOARD OF EDUC. OF THE CITY 
OF DETROIT, et al.,

Defendants-Appellants,
and

ALLEN PARK PUBLIC SCHOOLS, et al.,

Defendants-Intervenors-Appellants

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

Southern Division

DETROIT BOARD'S OBJECTIONS TO RESPONSE 
OF PLAINTIFFS-APPELLEES TO 

MOTION TO TAX COSTS



#

Although agreeing with Plaintiffs-Appellees, 

Ronald Bradley, et al. , that the Motions To Tax Costs of 

the State and suburban school districts should be denied, 

the Detroit Board is compelled to correct certain erroneous 

representations contained in the Response Of Plaintiffs- 

Appellees To Motions To Tax Costs.

Plaintiffs-Appellees' Response, Page 2, Note 4 :

First, the Detroit Board would like to clarify 

Plaintiffs-Appellees' patent misconstruction of the October 
23, 1974 United States Supreme Court Order regarding the 

taxation of Supreme Court costs in this cause (see page 2, 

note 4). In asserting that the Detroit Board was included 

in the Supreme Court Order, the Plaintiffs-Appellees 
erroneously have relied upon their interpretation of an 

October 23, 1974 letter from the Supreme Court Clerk, 
instead of the actual Supreme Court Order itself. 
Specifically, the mandate of the Supreme Court states that:

"IT IS FURTHER ORDERED that the said 
petitioners, William G. Milliken, 
Governor of Michigan, et al.; Allen 
Park Public Schools et al.; and The 
Grosse Pointe Public School System, 
recover from Ronald Bradley and 
Richard Bradley, by their mother and 
next of friend, Verda Bradley, et al. 
Twenty Thousand Three Hundred and 
Twenty-nine Dollars and Sixty Cents 
($20,329.60) for their costs herein 
expended. [Emphasis added, See Exhibit 
1, attached]

t



#

There is no mention in the Supreme Court Order
1/

that "all respondents" should bear the burden of taxation
of costs. Nor is there mention of the Detroit Board.
The mandate is clear and specific in its inclusion of

Plaintiffs-Appellees only. Thus, contrary to Plaintiffs-
Appellees' erroneous contention, the Supreme Court did not
include the Detroit Board of Education in its Order for

2/
taxation of costs.

In their reliance on their interpretation of 

a letter from the Supreme Court Clerk, Plaintiffs-Appellees 
curiously attempted to include the Detroit Board, which 

did not appeal the Sixth Circuit ruling, as an active 
participant in the hearings before the Supreme Court.

The Detroit Board did file a Supreme Court brief 
(along with many amici curiae) and was designated as a 
"respondent" in that brief. However, that designation was 
in strict compliance with Supreme Court Rule 21, which 
states that all parties in the Court below, except petitioners,

1/
Common sense would dictate that the use of the word 
"et al", in the context of this litigation refers to 
the approximately twenty (20) named Plaintiffs which 
composed Plaintiffs-Appellees.

2/
In fact, the Supreme Court, by its Order, accepted the 
argument of the Detroit Board that no Supreme Court 
costs should be taxed to the Detroit Board.

2



•  #

_3/
are designated as respondents. Thus, although in the 
role of an amicus before the Supreme Court, the Detroit 

Board, by virtue of Rule 21.4 was designated a respondent.

It is interesting to note that in the Supreme 

Court, the Detroit Board was placed in the position of an 

amicus by the very actions of Plaintiffs-Appellees. For 
example, Plaintiffs-Appellees refused to give the Detroit 

Board any of the Supreme Court oral argument time allotted 
to Respondents, Ronald Bradley, et al. Furthermore, 

Plaintiffs-Appellees vigorously opposed a Motion by the 
Detroit Board which would have permitted the Detroit 
Board oral argument time before the Supreme Court.

At this juncture, however, when the burdens of a 
Supreme Court defeat are apparent, Plaintiffs-Appellees 
have conveniently changed their time as to the status 

of the Detroit Board in the Supreme Court proceedings. All

3/
Supreme Court Rule 21.4 states, in pertinent part, that:

"All parties to the proceeding in 
the court whose judgment is sought 
to be reviewed shall be deemed 
parties in this court. . . . All
parties other than the petitioner 
shall be respondents...."

3



•  •

at once, the Detroit Board has been elevated to the role 
of a full-fledged participant before the Supreme Court. 

Certainly, fundamental principles of fairness and intellectual 
honesty cannot allow Plaintiffs-Appellees to obtain the best 
of both worlds.

Plaintiffs-Appellees1 Response, Page 3, Note 5:

The second misrepresentation in Plaintiffs-Appellees' 
Response, relates to the time requirement of F.R.A.P. 39(c). 
Contrary to the contention of Plaintiffs-Appellees ( at page 
3, note 5) F.R.A.P. 39(c) does not require a showing of

_4/
prejudice if a moving party fails to meet the 14 day rule. 

Moreover, the date of filing, and not the date of mailing,
(as claimed by Plaintiff s-Appellees) i_s controlling in deter­

mining whether or not the 14 day rule has been met. This 
conclusion even finds support in Plaintiffs-Appellees’ 
citation of F.R.A.P. 25(a) which provides in pertinent part:

V The words of F.R.A.P. 39(c) are mandatory. Specifically, 
an itemized and verified bill of costs "shall" be filed 
with the Clerk within 14 days after the entry of judgment.
In fact, this Honorable Court, in a recent decision, has 
held that the time requirements contained in the Federal 
Rules of Appellate Procedure must be strictly complied with. 
Joan Myers v. Civil Service Commission, 493 F.2d 1246 (6th 
Cir.1974).

4



V

"Filing may be accomplished by mail 
addressed to the clerk, but filing 
shall not be timely unless the papers 
are received by the clerk within the 
time fixed for filing, except that 
briefs and appendices shall be deemed 
filed on the day of mailing if the 
most expeditious form of delivery 
by mail, excepting special delivery, 
is utilized. [Emphasis added]

Since the State and suburban school district 

Motions To Tax Costs are not briefs or appendices, but 
rather moving papers, the date of filing controls and those 
Motions are untimely.

Finally, Plaintiffs-Appellees allege that there is 
no court rule expressly applicable to this situation. Yet 
nothing could be further from the truth since F.R.A.P. 39(c) 

expressly provides for the taxation of costs and the method 
by which it may be accomplished. The movants have chosen 

not to comply with F.R.A.P. 39(c) and have offered no excuse 

for their tardiness. Therefore, their Motions To Tax Costs 
are barred.

Plaintiffs-Appellees1 Response, Page 8, Note 10:

With regard to the assertions contained in page 8, 
note 10, of Plaintiffs-Appellees' Response, the Detroit Board 

has no idea where the Plaintiffs-Appellees are getting their 
"advice." However, for the record, the Detroit Board 

vehemently denies that it is responsible for any additional 
costs of the Appendix, let alone "the remaining $31,329.02

5



V  ,

•  •

in appendix costs" as alleged in page 8, note 10 of 

Plaintiffs-Appellees' Response.

Plaintiffs-Appellees' Response, Page 11

Finally, the Detroit Board must oppose Plaintiffs-
Appellees' request "that they be allowed to file a bill of
costs in connection with those aspects of these appeals
upon which they prevailed, to be paid by movants and the
Detroit Board defendants" (see page 11). Since none of

the parties prevailed in full in either the District Court
or the Court of Appeals, the award of costs would be totally 

__5/
improper. Plaintiffs-Appellees1 suggestion that the costs
be bifurcated and allocated in accordance with the issues 

upon which each party prevailed is sheer nonsense. The 

Detroit Board is unaware of any authority or precedent, nor 
have Plaintiffs-Appellees offered any, for the proposition 
that costs are determined on a per issue basis rather than on 
an outcome or public question basis. In fact, Plaintiffs- 
Appellees1 new theory of bifurcated costs in a complex 
desegregation case is totally contrary to and inconsistent 
with the position they urged four short months ago in the 
United States Supreme Court. In their Motion To Require Each

V
We respectfully remind this Honorable Court that Plaintiffs- 
Appellees lost the issue of faculty segregation in the 
District Court and for some reason failed to perfect 
their cross-appeal.

6



Party To Bear Its Own Costs (filed with the Supreme Court) , 
Plaintiffs-Appellees stated as follows:

"This case, as revealed by the Court's 
July 25, 1974 opinion herein, has pre­
sented substantial constitutional issues 
which had resulted in varying and conflict­
ing decisions among the lower federal courts 
and which, as the court below noted in the 
en banc decision (Bradley v. Milliken, 484 
F.2d 215, 218) had never been decided by 
this Court. Apparently because difficult 
issues of first impression were presented, 
the court of appeals directed (484 F.2d at 
258) that each party should bear its own 
costs, although respondents had prevailed 
in that court." [Page 2]

Thus, Plaintiffs-Appellees again seek to have the

best of both worlds. In addition, it is clear that Plaintiffs- 
Appellees, if permitted to move as they have requested, 

would not meet the 14 day time requirement of F.R.A.P. 39(c). 

Without reliance upon a single precedent, they have requested 

this Honorable Court to condone the flagrant relaxation of 

sensible rules which heretofore have been consistently 
applied and heretofore have been necessary for the orderly 
and efficient administration of justice.

Respectfully submitted,
RILEY AND ROUMELL

o y •
r'9 7 00

Attorneys for the Board of Education 
of the School District of the City 
of Detroit
7th Floor Ford Building 
Detroit, Michigan 48226 
Telephone: (313) 962-8255

By:

7



4jtpucmc Court of tfjc tTm'teb £atc3

Nos. 73-434, 73-435, and 73-436

William G. Milliken, Governor of Michigan, 
et al.,

Petitioners, 
v.

Ronald Bradley and Richard Bradley, by their 
mother and next friend, Verda Bradley, et al.;

Allen Park Public Schools, et al.,

Petitioners,

Ronald Bradley and Richard Bradley, by their
mother and next friend, Verda Bradley, et al.; and

The Grosse Pointe Public School System,

Petitioner,
v.

Ronald Bradley and Richard Bradley, by their 
mother and next friend, Verda Bradley, et al

ON WRITS OF CERTIORARI to the United States Court of

Appeals for the Sixth Circuit.

THESE CAUSES came on to be heard on the transcript of 

the record from the United States Court of Appeals for the 

Sixth Circuit, and were argued by counsel.

ON CONSIDERATION WHEREOF, it is ordered and adjudged by 

this Court that the judgment of the said United States Court of 

Appeals in these causes be, and the same is hereby, reversed with 

costs; and that these causes be, and the same are hereby, remanded 

to the United States Court of Appeals for the Sixth Circuit for 

further proceedings in conformity with the opinion of this Court.

IT IS FURTHER ORDERED that the said petitioners> William G.

EXHIBIT 1



^tprcme Court ot tfje Onitrti &tatcg

jY0s. 73-434, 73-435, and 73-436 I
\

\l

-  2 -

Mil liken, Governor of Michigan, et al. ; Allen Park .
Public Schools et al.; and The Grosse Pointe Public 
School System, recover from Ronald Bradley and Richard 
Bradley, by their mother and next friend, Verda Bradley, 
et al. Twenty Thousand Three Hundred and Twenty-nine Dollars 
and Sixty Cents ($20,329.60) for their costs herein expended.

July 25, 1974
• .

ClerkTs costs $ 450.00
Printing of record 19,879.60 

Total $ 20,329.60

EXHIBIT 1 (continued)



#
¥

f

CERTIFICATE OF SERVICE

The undersigned hereby certifies that on the 19th 
day of December, 1974, he served one copy of the foregoing 

Objections To Response Of Plaintiffs-Appellees To Motions 
To Tax Costs on each of the parties herein by United States 
Air Mail, postage prepaid, addressed as follows:

Gerald F. Young, Esq.
Assistant Attorney General 
750 Law Building 
525 West Ottawa Street 
Lansing, Michigan 48913
William M. Saxton, Esq.
John B. Weaver, Esq.
Robert M. Vercruysse, Esq.
X. Orhan, Esq.
Butzel, Long, Gust, Klein & Van Zi 
1881 First National Building 
Detroit, Michigan 48226

Douglas H. West, Esq.
Hill, Lewis, Adams, Goodrich 

& Tait
3700 City National Bank Building 
Detroit, Michigan 48226
Richard P. Condit, Esq.
Condit and McGarry, P.C.
860 West Long Lake Road 
Bloomfield Hills, Michigan 48013
Kenneth B. McConnell, Esq.
Hartman, Beier, Howlett, McConnell 

& Googasian
74 West Long Lake Road 
Bloomfield Hills, Michigan 48013

Louis R. Lucas, Esq. 
Ratner, Sugarmon & Lucas 
525 Commerce Title Bldg. 
Memphis, Tennessee 38103
Nathaniel R. Jones, Esq.
1790 Broadway
New York, New York 10019

J. Harold Flannery, Esq. 
e Paul R. Dimond, Esq.

William E. Caldwell, Esq. 
520 Woodward Building 
733 - 15th Street, N.W. 
Washington, D.C. 20005
Jack Greenberg, Esq. 
Norman J. Chachkin, Esq. 
10 Columbus Circle 
New York, New York 10019