Letter from Zarr to Court RE: Petitioners' Motion to Advance and Petition for Writ of Certiorari

    Bupxmx Glmirt o f %  Mnxttb States
O c t o b e r  T e r m , 1963 

No. 676

I n  th e

T a y l o r  R o b i n s o n ,

-v -
Petitioner,

H o n o r a b l e  B a i l e y  B r o w n , Judge, United States District 
Court for the Western District of Tennessee,

Respondent.

ON P E T IT IO N  FOR W R IT  OF CERTIORARI TO T H E  U N IT E D  STATES 

COURT OF APPEALS FOR T H E  S IX T H  CIRCU IT

BRIEF FOR RESPONDENT IN OPPOSITION

A v o n  N. W i l l i a m s , Jr,
McCIellan-Looby Building 
Charlotte at Fourth 
Nashville, Tennessee

J a c k  G r e e n b e r g  

F r a n k  H .  H e f f r o n

10 Columbus Circle 
New York, New York 10019

Attorneys for Respondent



I N D E X

PAGE

Opinion B elow ......................................................................  1

Jurisdiction ..........................................................................  1

Question Presented.............................................. ------ ------  1

Statutes Involved....... ........... -............................................ 2

Statement ....................................-...... -.................................  2

A rgum ent ................................................................. -...................  4

The Petition Should Be Denied Because The De­
cision Below—Holding That Petitioner Has No 
Constitutional Right To A Trial By Jury In A 
Purely Equitable Suit—Presents No Conflict With 
The Decisions Of This Court And Is Clearly Cor­
rect .................................................................................. 4

Conclusion..............................................-....................................  10

A uthorities Cited

Cases:
Baltimore & C. Line v. Redman, 295 U. S. 654 ....... .......  4
Beacon Theatres v. Westover, 359 U. S. 500 ....... .—5, 6, 7, 8
Beaunit Mills, Inc, v. Eday Fabric Sales Corp., 124 F.

2d 563 (2d Cir. 1942) ......................................................  8-9
Brenda K. Monroe, et al. v. Board of Commissioners of 

the City of Jackson, Tennessee, et al., Civil Action 
No. 1327.................................................. -........................3, 5, 7

Dairy Queen v. Wood, 369 U. S. 469 ....-.........................  5, 6
Dimick v. Schiedt, 293 U. S. 474........................................  4



11

PAGE

Inland Steel Products Co. v. MPH Manufacturing 
Corp., 25 F. R. D. 238 (N. D. 111. 1959) ....................... 9

Shubin v. United States District Court, 313 F. 2d
250 (9th Cir. 1963), cert, denied 373 U. S. 936 ...........  8

Simler v. Conner, 372 U. S. 221 .............................. 5, 6, 7, 8
State Farm Mutual Automobile Ins. Co. v. Mossey, 195 

F. 2d 56 (7th Cir. 1952), cert, denied 344 U. S. 869 .... 9

Thermo-Stitch, Inc. v. Chemi-Cord Processing Corp.,
294 F. 2d 486 (5th Cir. 1961) ........................................... 5,7

United States v. Louisiana, 339 U. S. 669 .......................  5

Statute:

42 United States Code §1983 ............................................  1, 9

Other Authorities:

Borchard, Declaratory Judgments (2d ed. 1941) .......  8

5 Moore, Federal Practice, §38.11(7) (2d ed. 1951) .... 4

5 Moore, Federal Practice, §38.16 (2d ed. 1951) ...........  5

5 Moore, Federal Practice, §38.29 (2d ed. 1951).............  8



I n th e

Olmtrt nf %  linxith f l a i r s
October Teem, 1963 

No. 676

Taylor E obinson,
Petitioner,

H onorable Bailey Brown, Judge, United States District 
Court for the Western District of Tennessee,

Respondent.

ON P E T IT IO N  FOR W R IT  OF CERTIORARI TO T H E  U N IT E D  STATES 

COURT OF A PPEALS FOR T H E  S IX T H  C IR C U IT

BRIEF FOR RESPONDENT IN OPPOSITION

Opinion Below

The opinion of the Court of Appeals is reported at 320 
F. 2d 503.

Jurisdiction

The jurisdictional requisites are adequately set forth 
in the Petition.

Question Presented

In a suit brought under 42 U. S. C. §1983 to desegregate 
a public school system, in which an injunction and a declara­
tion of rights is sought, is a defendant-school board mem­
ber constitutionally guaranteed a trial by jury?



2

Statutes Involved

The pertinent statutes are set forth in the Petition.

Statement

This cause stems from a class action instituted in the 
United States District Court for the Western District of 
Tennessee, Eastern Division, on January 8, 1963, to de­
segregate the public schools of the City of Jackson and 
Madison County, Tennessee. The complaint named as de­
fendants the Board of Commissioners of the City of Jack- 
son and its individual members and the County Board of 
Education of Madison County and its individual members, 
one of whom is petitioner.

The complaint prayed for injunctive relief against the 
racially segregated system of public schools.

The prayer for relief also included the following two 
paragraphs:

The Court adjudge, decree and declare the rights and 
legal relations of the parties to the subject matter here 
in controversy in order that such declaration shall have 
the force and effect of a final judgment or decree.

The Court enter a judgment or decree declaring 
that the custom, policy, practice or usage of defendants 
in maintaining and/or operating compulsory racially 
segregated public school systems in and for the City 
of Jackson and the County of Madison, State of Ten­
nessee, and in excluding plaintiffs and other persons 
similarly situated, from the Jackson Senior High 
School and Alexander Elementary School, or any other 
public schools, institutions or facilities maintained and/ 
or operated by defendants, City Board of Education 
and County Board of Education, solely because of race



3

or color, pursuant to the above quoted portions of 
Article 11, Section 12 of the Constitution of Tennessee, 
Sections 49-3701, 49-3702 and 49-3703 of the Tennessee 
Code Annotated, 1955, and any other law, custom, 
policy, practice and usage, violates the Fourteenth 
Amendment of the Constitution of the United States, 
and is therefore unconstitutional and void.

Petitioner answered, demanding, inter alia, trial by jury 
(see Petition 41a-42a). On June 1, 1963, the District Judge, 
respondent herein, entered an order striking petitioner’s de­
mand for jury trial because “ all issues in the case are 
equitable” (Petition, p. 5a). Thereupon petitioner, on June 
10, 1963, petitioned the United States Court of Appeals 
for the Sixth Circuit for a writ of mandamus requiring 
respondent to vacate and expunge from the record its order 
of June 1,1963.

On June 19, 1963, respondent granted plaintiffs’ motion 
for summary judgment in the case, styled Brenda K. Mon­
roe, et al. v. Board of Commissioners of the City of Jack- 
son, Tennessee, et al., Civil Action No. 1327. The two 
Boards of Education were required to file complete plans 
for desegregation of the public school system.

On July 31, 1963, the Court of Appeals for the Sixth 
Circuit dismissed petitioner’s petition, agreeing with re­
spondent that the case involved only equitable issues (see 
Petition, p. 8a).

On September 19, 1963, the Court of Appeals denied 
petitioner’s application for a stay.



4

A R G U M E N T

The Petition Should Be Denied Because the Decision 
Below— Holding That Petitioner Has No Constitutional 
Right to a Trial by Jury in a Purely Equitable Suit—  
Presents No Conflict With the Decisions of This Court 
and Is Clearly Correct.

The Seventh Amendment to the United States Consti­
tution directs that

In suits at common law, where the value in controversy 
shall exceed twenty dollars, the right of trial by jury 
shall be preserved . . .

The common law referred to is the common law of England 
of 1791.1 Thus, the Seventh Amendment, preserving the 
right to trial by jury in actions at law, planted deep in 
American law the distinction between legal and equitable 
causes of action. As new rights of action developed, courts 
characterized them as legal or equitable by analogy to their 
historical counterparts to decide whether they created 
rights to a jury trial.2 The distinction survived the merger 
of the federal courts of law and equity in 1938; the common 
law forms of action have continued to serve as guideposts 
in determining what issues in a civil action are historically 
legal and therefore triable to a jury, and what issues are 
historically equitable and triable by the court.

Thus, today the conventional test for determining 
whether a party has a constitutional right to trial by jury

1 Dimick v. Schiedt, 293 U. S. 474, 476; Baltimore & C. Line v. 
Redman, 295 U. S. 654, 657.

2 5 Moore, Federal Practice, §38.11(7).



5

continues to be whether he was entitled to have the issue 
tried by a jury at common law.3

So much is recognized by petitioner.4 Petitioner falls 
into error, however, in suggesting that legal issues were 
presented by the case of Brenda K. Monroe, et al. v. Board 
of Commissioners of the City of Jackson, Tennessee, et al. 
That case presented no legal— as distinct from equitable— 
issues. It was a typical school desegregation case. The 
prayer of the complaint was only for equitable relief, i.e., 
an injunction.5 No money damages were prayed for. The 
defendants’ answers made no legal issues.

Plainly stated, petitioner was not constitutionally guar­
anteed a jury trial in the Monroe case, because Monroe was 
strictly a suit for an injunction and presented no legal 
issues.

Therefore, the cases relied upon by petitioner are com­
pletely inapposite.6 Those cases involved legal issues (e.g., 
breach of contract, damages for infringement of trademark, 
treble damages under the anti-trust laws) with claims for 
money damages, issues traditionally triable to a jury and 
therefore constitutionally guaranteed a jury trial. The 
teaching of those cases is simply that a court may not, in a

3 See e.g., United States v. Louisiana, 339 U. S. 699. 5 Moore, 
Federal Practice, §38.16 (2d ed. 1951).

4 Petition for Writ of Certiorari, p. 15: “ [I] f  there were no 
legal issues involved, then there was no basis for issuance of 
mandamus.”

5 The complaint sought a temporary restraining order, pre­
liminary injunction and permanent injunction enjoining the de­
fendants from refusing to admit the Negro plaintiffs to public 
schools on the basis of race and directing the defendants to re­
organize the school system on a nonraeial basis. See Petition, p. 33a.

6 Beacon Theatres v. Westover, 359 U. S. 500; Dairy Queen y. 
Wood, 369 U. S. 469; Simler v. Conner, 372 U. S. 221; Thermo- 
Stitch, Inc. v. Chemi-Cord Processing Corp., 294 F. 2d 486 (5th 
Cir. 1961).



6

case where both legal and equitable issues are involved, dis­
pose of the equitable issues in such a manner as to deprive 
the parties of their right to a trial by jury on the legal is­
sues.

What distinguishes Beacon Theatres from the instant 
case is that there legal issues were blended into the case 
by the counterclaim.7 As Dairy Queen v. Wood, 369 U. S. 
469, 472 recognized, the holding in Beacon Theatres was 
applicable only to a case “where both legal and equitable 
issues are presented in a single case.”

Dairy Queen v. Wood, 369 U. S. 469, is similarly distin­
guishable. The Court said: “ [T]he sole question which we 
must decide is whether the action now pending before the 
District Court contains legal issues” (369 U. S. at 473). The 
Court answered that question in the affirmative. “ [W ]e 
think it plain that [the] claim for a money judgment is a 
claim wholly legal in its nature” (369 U. S. at 477).

Likewise, in Simler v. Conner, 372 U. S. 221, the Court 
said, “ On the question whether, as a matter of federal law, 
the instant action is legal or equitable, we conclude that it 
is ‘legal’ in character. . . . The case was in its basic 
character a suit to determine and adjudicate the amount 
of fees owing to a lawyer by a client under a contingent

7 In Beacon Theatres v. Westover, 359 U. S. 500, Beacon, a mo­
tion picture exhibitor, notified Pox, the plaintiff, that certain Pox 
exclusive “first run” contracts with movie distributors violated the 
Sherman Act and threatened to sue for treble damages. Pox sought 
a declaratory judgment that its contracts were lawful and prayed 
for an injunction pending final resolution of the litigation to 
prevent Beacon from bringing an antitrust suit against Pox or its 
distributors. Beacon answered with a counterclaim for treble dam­
ages, demanding a jury trial on the factual issues. The district 
court viewed the issues raised by the complaint as essentially equi­
table and ordered a separate trial of these issues before the court 
without a jury. The Supreme Court held that the district judge 
abused his discretion in ordering trial of the equitable claim first, 
and ordered that the case be submitted to the jury.



7

fee contract, a traditionally ‘legal’ action . . . ” (372 U. 8. 
at 223).

Thermo-Stitch, Inc. v. Chemi-Cord Processing Corp., 294 
F. 2d 486 (5th Cir. 1961) also involved an action with mixed 
legal and equitable issues. The Court said:

The mere presence of an equitable cause furnishes no 
justification for depriving a party to a legal action of 
his right to jury trial (294 F. 2d at 490-91) (emphasis 
supplied).

Petitioner does not deny that all the cases relied upon 
involve legal issues. Bather, petitioner seeks to fabricate 
a legal issue out of plaintiffs’ prayer for a declaration of 
rights with respect to the equitable issues.8 But the inclu­
sion of a claim for declaration of rights as to equitable 
issues does not, by some mysterious process of judicial 
alchemy, transmute those issues into legal issues.

The very cases relied upon by petitioner make that clear.

Beacon Theatres teaches that a declaratory judgment ac­
tion is a neuter remedy, neither legal or equitable, and that 
a prospective defendant, in an effort to anticipate an action 
for which a jury would have been proper, may not employ 
the device of a declaratory judgment action to destroy the 
other party’s right to jury trial. There Mr. Justice Black 
said:

8 The pleadings in the Monroe case (see Petition, p. 33a) make 
clear that the declaratory relief sought was merely an adjunct to 
the equitable relief of injunction. The principal remedy, and the 
only real remedy in the case, was an injunction prohibiting the 
exclusion of qualified Negro children from public schools and re­
quiring the reorganization of the school systems on a nonracial 
basis.



8

[The Declaratory Judgment Act], while allowing pro­
spective defendants to sue to establish their nonlia­
bility, specifically preserves the right to jury trial for 
both parties. It follows that if Beacon would have been 
entitled to a jury trial in a treble damage suit against 
Fox, it cannot be deprived of that right merely because 
Fox took advantage of the availability of declaratory 
relief to sue Beacon first. 359 U. S. at 504.

Mr. Justice Stewart emphasized the corollary of the 
above proposition, viz., that if the basic issues in an action 
for declaratory relief are of a kind traditionally cognizable 
in equity, then the issues are properly triable by the court.9

That the basic nature of the issues presented—whether 
legal or equitable—controls the question of the right to 
jury trial, and not the fact that the action is cast in the form 
of a declaratory judgment action, was reemphasized by the 
per curiam opinion in Simler v. Conner, 372 U. S. 221. 
There the Court said:

The fact that the action is in form a declaratory judg­
ment case should not obscure the essentially legal 
nature of the action. The questions involved are tradi­
tional common law issues (372 U. S. at 223) (emphasis 
supplied).

In short, in this suit for an injunction the issues are 
purely equitable. These issues become no less equitable by 
being cast also in the mold of a declaration of rights.10 
To hold otherwise would be to exalt form over substance.

9 359 U. S. at 515.
10 See Shubin v. United States District Court, 313 F. 2d 250 

(9th Cir. 1963), cert, denied 373 U. S. 936; 5 Moore, Federal 
Practice, §38.29 (2d ed. 1951); Borchard, Declaratory Judg­
ments, pp. 238-239, 399-404 (2d ed. 1941) ; Beaunit Mills, Inc. v.



9

Since petitioner is unable to identify any legal issues in 
the present suit, he points to legal issues which could arise 
if plaintiffs sought damages in this or a later suit. Such 
a claim here is at best premature.11 To grant it would be 
to destroy the constitutional principle that there is no right 
to jury trial in a purely equitable action, since a hypo­
thetical legal issue arising in the future can always be 
postulated.

Therefore, petitioner’s claim that he has a present right 
to a jury trial because hypothetical issues may arise in 
the future must fail.

Edwy Fabric Sales Corp., 124 F. 2d 563 (2d Cir. 1942) ; Inland 
Steel Products Co. v. MPH Manufacturing Corp., 25 F. R. D. 238 
(N. D. 111. 1959) ; State Farm. Mutual Automobile Ins. Co. v. Mos- 
sey, 195 F. 2d 56 (7th Cir. 1952), cert, denied 344 U. S. 869.

11 More probably, the claim is totally unfounded. If the Dis­
trict Court granted precisely the declaration requested in the 
complaint, namely the declaration that the maintenance of school 
segregation is unconstitutional, it would afford no basis for a later 
finding that petitioner, as an individual, had subjected the plain­
tiffs to the deprivation of their constitutional rights in violation 
of 42 U. S. C. §1983.

Petitioner seems to agree (Petition, p. 15) :
As was pointed out to the Court of Appeals, it might well be 
that the two Boards, as legal entities, had violated plaintiffs’ 
civil rights. However, this would not mean that each indi­
vidual member of each Board had done so. Certainly, any 
member less than a majority might be completely innocent of 
a Board action taken by the majority. As was pointed out 
in the District Court, there is not one shred of evidence, not 
one admission, not one witness’ testimony, which would estab­
lish that applicant, Taylor Robinson, has been guilty of any 
of the acts complained of.



10

CONCLUSION

For the foregoing reasons, the petition for writ of 
certiorari should be denied.

Respectfully submitted,

A von N. W illiams, Je.
McClellan-Looby Building 
Charlotte at Fourth 
Nashville, Tennessee

Jack Greenberg 
F rank H. H eeeron

10 Columbus Circle 
New York, New York 10019

Attorneys for Respondent



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