Memorandum for the United States as Amicus Curiae

    IN THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

NO.

RONALD BRADLEY, et al.,

Plaintiffs-Appellees, 

v .

WILLIAM G. MILLIKEN, et al.,

Defendants-Appellants, et al.

On Application For a Stay of the Order of the United States 
District Court for the Eastern District of Michigan

MEMORANDUM FOR THE UNITED 
STATES AS AMICUS CURIAE

Defendants in this school desegregation case, William G. 

Milliken, Governor; Frank J. Kelley, Attorney General; State 

Board of Education, and John W. Porter, Superintendent of 

Public Instruction, have requested a stay or suspension of 

enforcement of orders of the District Court for the Eastern 

District of Michigan pending appeal.



The United States, pursuant to Rule 29, Federal Rules 

of Appellate Procedure, submits this memorandum as amicus 

curiae. We urge this Court to rule favorably on the stay 

application and to set an expedited schedule to hear and 

decide the appeals before it.

The interest of the United States in the issues pre­

sented by this case is derived in part from the responsibili­

ties conferred upon it by Congress in Titles IV, VI and IX of 

the Civil Rights Act of 1964, 42 U.S.C. §§2000c et seq., 2000d, 

2000h-2, for enforcement of the law of public school desegrega­

tion. Title IV of that Act authorizes the Attorney General 

to "maintain appropriate legal proceedings” which "will 

materially further the orderly achievement of desegregation

in public education...." The Government has appeared as
1/

amicus curiae in the district court in this case and has 

filed a memorandum as amicus curiae with the Court of Appeals 

for the Fourth Circuit in Bradley v. School Board of Richmond, 

Nos. 72-1058, 1059, 1060 and 1150 (June 5, 1972) —  a case 

raising similar issues of law and policy. Moreover, we 

think the present case, as it comes to this Court, may draw

1/ The United States was granted permission to appear as 
amicus curiae in the district court on May 22, 1972.

-  2 -  •



into question, the applicability and meaning of a United
2/

States statute which could affect our enforcement responsi­

bilities. ■ /
! .

1. The Court below has announced its determination

to consolidate into one attendance area 53 separate school

districts and approximately 780,000 students and has directed

the preparation of detailed plans and the purchase of 295 school

buses looking toward the implementation of the plan this fall.

Moreover, some of the suburban districts as the District Court
3/ _

recognized -- have not even been held to have violated the

law or Constitution, but are included in the plan only because 

of the race of the resident students, and were so included 

with no opportunity to litigate the lawfulness and legal pro­

priety of that inclusion. The unprecedented scope of the 

orders below both in geography and law, persuade us to agree 

with the applicants and the Congress that there should be an 

opportunity for appellate review prior to requiring the 

defendants to spend a great deal of money and take other 

irreversible steps looking to implementation. -

2/ Education Amendments of 1972, P.L. 92-318, sec. 803 
Teffective July 1, 1972). See infra at p. 12 for text of 
this statute.

3/ Findings of Fact and Conclusions of Law in Support of 
Ruling on Desegregation Area and Development of Plan, Slip 
op. at p. 1 (June 14, 1972).



In recommending that the district court order be

stayed we are cognizant of the Supreme Court's holding in

Alexander v. Holmes County Board of Education, 396 U.S. 19,
*

‘ 20, that "the obligation of every school district is to 

terminate dual systems at once and to operate now and here­

after only unitary schools." However, this case differs 

from Alexander and related cases, Carter v. West Feliciana 

School Board, 396 U.S. 290 (1970); Kelley v. Metropolitan 

County Board of Education of Nashville, 436 F .2d 856 (6th 

Cir. 1970) in a major respect.

Those decisions relate to the elimination of dual 

schools which had been maintained under state segregation 

statutes. In contrast, the issues on appeal in the present 

case are: (1) whether the Detroit School Board has in fact

discriminated against black students in its policies and 
4/

actions, and (2) whether it is proper to include suburban

4/ Appeal by the Board of Education of the School District 
of the City of Detroit, Notice of Appeal filed on June 22, 
1972. The accompanying Brief in Support of Motion For 
Accelerated Schedule.of Hearing indicates the appeal is 
addressed to this question.

-  4  -



school systems m  a desegregation plan without making specific 
' ° 5/

findings of discrimination as to them.
The decisions in Alexander and related cases, su£ra,

arguably foreclosed, where they apply, the balancing of 
interests by courts which has traditionally been required on 

a motion for stay ~  The Alexander limitation on this tradi­

tional equitable approach was established in cases which 

involved the. appropriate remedy to be applied where there 

was an uncontested dual school system. These decisions do 

not preclude the granting of a stay under traditional princi­

ples where the issue on appeal is not merely one of appropriate

5/ Appeal by Kerry Green, et al p^pubufschiols!6®!™!. Tune 29 1972; and appeal by Allen rark^uuiiu a ’ ,
Southfield Public Schools and Grosse Pointe lu rc S \ -.r. i „  Tlinf> on 1972. The question to be addressee uy filed on June 20, W /J q as stated. The Emergencythese appeals is anticipate defendants
Application for Stay filed on July 12,, with that
^ i ' ^ T T e d ' b . l n e n  Park'public Schools, et al., Southfield motion filed by Alien rdav .. . c-hnn1«s indicatesPublic Schools and Grosse Pointetheir appeals are also addressed to this quest o .
6/ See the opinion of Mr. Justice Brennan in ’• S ^ 1-b/ bee cut f (J 969)- See also Hobson v.2H « i £ i N 0u l ,  396 U.S. fold I9 5 8); Coppedce v. Franklin 
Hansen, 44 F.R.D. J i -— ^ 7T 7n N c 1968).TvTTTT' ftnard of Education, 293 F. Supp. 356 (D. N.C. - ■ ;

-  5 -



remedy because the propriety of any remedy at all is in 

question. Thus the choice facing this Court is not whether 

to grant a further delay in the long-frustrated vindication 

of constitutional rights. It is whether to stay the imposi­

tion of a remedy for a violation whose existence is strongly

contested, and to stay a sweeping remedy which is being applied
7/

to districts which admittedly have violated no law.

In deciding whether to grant a stay here, we think 

the Court would be more appropriately guided by considerations 

suggested by Corpus Christi Independent School District v. 

Cisneros, 404 U.S. 1211 (1971) than by those prevailing in 

Alexander. In Cisneros, Justice Black reinstated the district 

court’s order granting a stay because the case presented "a 

very anomalous, new, and confusing situation" including ques­

tions "not heretofore passed on by the full court, but which 

should be." It would seem that this statement is applicable 

to the present litigation.

Further* we note this Court's recent order in Northcross 

v. Board of Education of Memphis, Misc. No. 1576 (July 5, 19/2) 

(en banc) where a majority of the active jxidges of this Court 

indicated approval of stays pending appeal in appropriate

7/ See Findings of Fact and Conclusions of Law in Support of 
Ruling on Desegregation Are and Development of Plan, slip op. 
at p. 1 (June 14, 1972).

6



school desegregation cases and that it disagreed with con­

tentions that the Supreme Court had mandated otherwise.

As in the present case, Bradley v. School Board of 

Richmond, supra, raised issues not only of great importance 

to the parties but with consequence for future education in 

the entire nation. The defendants had been enjoined to create 

a single school division composed of the city and two counties 

and to take extensive actions to effectuate that result. Under

such circumstances, the court found a partial stay coupled
8 /

with an expedited review was justified.

8/ A copy of the stay order of February 3, 1972 is attached 
to this memorandum. The Advisory Committee on Appellate 
Rules state that Rule 2 of the Federal Rules of Appellate 
Procedure authorizes "the courts of appeals to expedite the 
determination of cases of pressing concern to the public or 
to the litigants by prescribing a time schedule other than 
that provided by the rules." This case is of pressing concern 
both to the public and the litigants. See also Bradley v. 
Milliken, 433 F .2d 897, 902 (1970) and Northcross v. Board_of 
Education, 6th Cir., Misc.No. 1576 (June 2, 1972).



2, Courts have traditionally considered upon a

motion for a stay the probability of reversal on appeal,
*

whether the denial of a stay will result in irreparable 

injury to the requesting party, whether the granting 

of a stay will substantially harm the interests of the 

other parties, and whether a stay is in the public in­

terest. E.g., Long Vo Robinson, 432 F. 2d 97? (4th Cir. 

1970); Belcher v. Birmingham Trust National Bank, 395 

F. 2d 685 (5th Cir. 1968); Taylor v. Board of Education 

of City School District of City of New Rochelle, 195 

F. Supp. 231, 238 (D. N.Y.), aff’d., 294 F. 2d 36, 

cert, den., 368 IJ.S. 940 (1961).

We think the record will show that counsel for the 

state-level defendants and defendant-interveners presented 

to the district court persuasive .reasons why a balancing

of the above considerations justifies a stay of pro-
8a_/

ceedings, and we need not repeat these reasons here.

/ See Emergency Motion of Defendants William G. Milliken, 
Governor; Frank J. Kelley, Attorney General; State Board of 
Education and John W. Porter, Superintendent of Public In­
struction, for a stay or suspension of proceedings; support­
ing affidavits of Lloyd Fales and Richard Barnhart; oral 
argument of counsel on June 29, 1972, and July 10, 1972, and 
motion and brief for a stay or suspension of proceedings filed 
on July 12, 1972 by defendants-interveners Allen Park Public 
Schools, et al., Grosse Pointe Public Schools and Southfield 
Public Schools.

- 8  -



Because the district court invoked a remedy against 

school districts without proof of any violation on their part,' t
■ • - *

the required probability of reversal on the merits clearly
U

exists. The Equal Protection Clause does not require a 

particular racial balance in schools in a single school 

district, even if formerly dual, Swann v. Board of Education, 

402 U.S. 1, 22-25 (1971); a disparity in racial compositions 

between two proposed school systems is not itself sufficient 

to enjoin the creation of a separate district, see Wright v. 

Council of City of bmporia, slip op., at 12 (June 22, 1972), nor 

does extreme racial imbalance, without more, require the 

reformation of neutrally established school district bound­

ary lines. See Spencer v, Kugler, 326 F. Supp. 1235, 1243 

(D. N.J. 1971), aff’d 404 U.S. 1027 (1972). Special credence

9 / In its Findings of Fact and Conclusions of Law in 
Support of Ruling on Desegregation Area and Development 
of Plan, slip op. at p. 1 (June 14, 1972), the district 
court stated: "It should, be noted that the court has
taken no proofs with respect to the establishment of the 
boundaries of the 86 public school districts in the coun­
ties of Wayne, Oakland and Macomb, nor on the issue of 
whether, with the exclusion of the city of Detroit school 
district, such school districts have committed acts of 
de jure segregation.”



to the probability of reversal was provided by a re­

versal on the merits by the. Fourth Circuit Court of 

- Appeals in Bradley v. School Board of Richmond, supra, 

the same district court case strongly relied upon by the 

court below. In Bradley the court of appeals held:

Because we are unable to discern any 
constitutional violation in the establish­
ment and maintenance of these three school 
districts, nor any unconstitutional conse­
quence of such maintenance, we hold that it 
was not within the district judge’s authority 
to order the consolidation of these three 
separate political subdivisions of the Common­
wealth of Virginia.

Slip Op. at 29.

On the question of appealability of the currently 

outstanding district court orders we think there can be 

little doubt. In contrast to the prior appeal in this 

case (dismissed on February 23, 1972) the Court now has 

before it orders stating that relief shall be accomplished 

on a metropolitan level according to specified guidelines 

and commanding affirmative action on the part of defen­

dants and interveners that go considerably beyond the

10/ See Findings of Fact and Conclusions of Law on 
Detroit-Only Plans of Desegregation (March 28, 1972),

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•  •

mare filing of plans. Orders which were not complete 

dispositions of a case have nevertheless been treated 

as "final" under 28 U.S.C. 1291, in a variety of cir­

cumstances. Practical as opposed to technical construc­

tion is accorded to the word "final," see Brown Shoe 

Company v. United States, 370 U.S. 294, 304-11 (1962), 

and the oft stated competing considerations involved 

are: "...[t]he inconvenience and costs of piecemeal

review on the one hand and the danger of denying justice 

by delay on the other." Dickinson v. Petroleum Corporation,
y n / —  “
338 U.S. 507, 511 (1964).

On the basis of these cases, we feel the merits 

of this action are appealable under section 1291. Like­

wise, the affirmative action ordered would suggest that

11/ The rule was also summarised by Mr. Justice Frankfurter 
in W s  concurring opinion in SearsT Roebuck and Company v. 
Mackey, 351 U.S. 427, 441 (1956), as follows:

"Thus the Court has permitted appeal 
before, completion of the whole liti~ 
gation when failure to do so would 
preclude any effective review or would 
result in irreparable injury."



mandatory injunctions of the type appealable under Section
1™/

1292(a), have been issued.

Moreover, from the perspective of the federal govern­

ment, we submit that there are additional factors which merit

attention and which are suggested by Section 803 of the

Higher Education Act of 1972. That section became law on

July 1, 1972 and provides:

Sec. 803. Notwithstanding any other law or 
provision of law, in the esse of any order on 
the part of any United States district court 
which requires the transfer or transportation 
of any student or students from any school 
attendance area prescribed by competent State 
or local authority for the purposes of achiev­
ing a balance among students with respect to 
race, sex, religion, or socioeconomic status, 
the effectiveness of such order shall be post­
poned until all appeals in connection with such 
order have been exhausted or, in the event 
no appeals are taken, until the time for such 
appeals has expired. This section shall ex­
pire at midnight on January 1, 1974.

First, on the element of public interest, Section

803 represents a strong suggestion by Congress that a stay

of proceedings pending appeal is in the public’s interest.

As stated by the Senate manager of the bill, the purpose

12J  As to what constitutes a mandatory injunction in the 
context of a school desegregation case, compare Taylor v. 
Board of Education of New Rochelle, 288 F. 2d 600 (2nd
Cir., 1961), and Board of Public Instruction of Duval County 
v. Braxton, 326 F. 2d 616 (5th Cir., 1.964).' ' ~~

12



of Section 803 is:

"[T] o permit the appellate courts to resolve 
what were said to he inconsistencies in the appli­
cation of school desegregation requirements 
by various federal district courts, without 
making local school agencies implement district 
court's decrees during the time the issue was 
being resolved on appeal." 118 Cong. Rec.
(daily ed.) S8378 (May 24, 1972) (Sen. Pell).

It would be appropriate for the Court to honor this state­

ment of legislative intent in considering whether a stay 

is in the public interest.

Second, without reaching the question whether Section

803 is applicable at this point in the proceedings, there

can be little doubt that the section would require a stay

once a specific plan requiring transfer of students is
13/

ordered by the district court. This underscores the undesir­

ability and inequity of subjecting defendants and intervenors

13/ The author of the amendment, Congressman Broomfield, 
stated his intent as follows:

"Mr. O'Hara: ... May I inquire of the gentleman
from Michigan if it was his intention that 
Section 803 apply to orders that have the practi­
cal effect of achieving some, sort of racial 
balance, although the court may have stated that 
its order was entered for the purpose of correct­
ing unconstitutional segregation?
Ifc* BroomfieId: Yes, it was my intention to cover
such cases and specifically, it: was my intention 
to cover cases like those now being litigated in 
Richmond and Detroit." 118 Cong. Rec. (daily ed.) 
H5416 (June 8, 1972).

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to orders requiring major changes in the status quo prior

to review of the merits of the constitutional violation.

Without an immediate stay defendants will continue to be

required to take actions necessitating heavy outputs of

resources and expenditures including the purchase of new 
15/ 16/

buses,” the special training of faculty and staff, and
17/

the hiring of additional counselors. These actions 

are designed to prepare for the partial implementation by 

this fall of a plan for desegregation; a plan that would 

be stayed by Section 803, if not obviated earlier by 

reversal on the merits by this court.

" CONCLUSION

For the above reasons we think a stay should be 

granted to enable this Court to hear and determine ques­

tions relating to the constitutional merits supporting 

the relief contemplated by the trial court. Since the

15/ Order of District Court of July 10, 1972,

16/ See Ruling on Desegregation Area and Order for Develop­
ment of Plan of Desegregation, at p. 9 (dated June 14, 1972).

17/ See i_d., at p. 9. -

14



district court assigned no reasons for its denial of a

stay> this Court should itself weigh the respective

interests involved and decide whether they support the

trial court's exercise of discretion.

Respectfully submitted,

RALPH R. GUY„ SR. DAVID L. NORMAN
United States Attorney Assistant Attorney General

0 . i
BRIAN K. LANDSBERG 
WILLIAM C. GRAVES 
Attorneys
Department of Justice 
Washington, D. C. 20330



CERTIFICATE OF SERVICE

I hereby certify that on the 15th day of July, 1972 

a copy of the foregoing Memorandum for the United States as
• e

Amicus Curiae was mailed by United States mail, postage pre-
I

paid to the following counsel of record in this action:

Plaintiffs' Attorneys:

Louis R. Lucas 
William E . Caldwe11 
Ratner, Sugarmon & Lucas 
525 Commerce Title Building 
Memphis, Tennessee 38103

- Nathaniel Jones
General Counsel, NAACP
1790 Broadway
New York, New York 10019

E. Winther McCroom 
3245 Woodburn 
Cincinnati, Ohio 45207

Bruce Miller 
Lucille Watts
Attorneys for Legal Redress Committee 
NAACP-“Detroit Branch 
3426 Cadillac Tower 
Detroit, Michigan 48226

J. Harold Flannery
Paul Dimond
Robert Pressman
Center for Law and Education
Harvard University
38 Kirkland Street
Cambridge, Massachusetts 02138

Norman J. Chachkin 
Jack Greenberg 
James N. Nabrit, II 
10 Columbus Circle 
New York, New York 10019



De£eudants* Attorneys:

George T. Roumell, Jr.
Louis D. Beer 
Wallace D. Riley 
Emmet Tracy, Jr.
Riley & Roumell 
7th Floor, Ford Building 
Detroit Michigan 48226

Honorable Frank J . Kelley 
Attorney General, State of Michigan 
BY: Eugene Krasicky

Gerald F. Young 
Seven Story Office Building 
525 West Ottawa Street 
Lansing, Michigan 48913

Intervening Defendants:

Theodore Sachs 
Ronald R. Reiverston
Rothe, Mars ton, Mazey, Sachs & 0 !Connell, P .C. 
1000 Fanner Street 
Detroit, Michigan 48226

Alexander B. Ritchie
Fenton, Nederlander, Dodge & Barris, P.C.
2555 Guardian Building 
Detroit, Michigan 48226

Robert J. Lord
8388 Dixie Highway
Fair Haven, Michigan 48023

OF COUNSEL:

Paul R. Vella 
Eugene R. Bolanowski 
30009 Schoenherr 
Warren, Michigan 48093

L. Brooks Patterson 
2900 West Maple 
Troy, Michigan 48084

OF COUNSEL:

Robert E. Manley 
John S. Wirthiin 
Beirne, Wirthlin & Manley 
3312 Carew Tower 
Cincinnati, Ohio 45202



Parvin C. Lee, Jr„
1263 West Square Lake Road 
Bloomfield Hills, Michigan 48013

Charles J, Porter / .
860 West Long Lake Road 
Bloomfield Hills, Michigan 48013

Professor David Hood
Wayne State Unitersity Law School
468 West Ferry
Detroit, Michigan 48202

Douglas H. West
Robert B. Webster #
Hill, Lewis, Adams, Goodrich & Tait 
3700 Penobscot Building 
Detroit, Michigan 48226

William M. Saxton _
Butzel, Long, Gust, Klein & Van Zile 
1881 First National Building 
Detroit, Michigan 48226

Richard P, Condit 
Condit and McGarry, P.C.
Long Lake Building
860 West Long Lake Road -
Bloomfield Hills, Michigan 48013

Kenneth B. McConnell .
Hartman, Beier, Howlett, McConnell & Googasian
74 West Long Lake Road 
Bloomfield Hills, Michigan 48013

Julius M. Grossbart 
Leithauser & Grossbart 
3400 Guardian Building 
Detroit, Michigan 48226

Sherman P. Faunce, II 
29500 Van Dyke Avenue 
Warren, Michigan 48093

f/j(Ui<Xy ft.
WILLIAM G, GRAVES 
Attorney
Department of Justice 
Washington, D. C , 20530



nUNITED STATES COURT OF APPEALS 
FOR THE FOURTH CIRCUIT

No. 72-1058

In the matter of:

Carolyn Bradley, et al,

versus

The School Board of the City of «■
Richmond, Virginia, et al,

Appellees,

versus

The School Board of Chesterfield 
County, et al,

No. 72-1059In the matter of:
Carolyn Bradley, et al,

versus
The School Board of the City of 
Richmond, Virginia, et al,

versus
The School Board of Henrico 
County, et al,

In the matter of:
No. 72-1060

Carolyn Bradley, et al,
versus

Appellants.

Appellees,

Appellants.

The School Board of the City of 
Richmond, Virginia, et al,

versus

The State Board of Education of the 
Commonwealth of Virginia, et al,

Appellees,

Appellants.

Appeals from the United States District Court for the Eastern 
District of Virginia, at Richmond.

Upon consideration of the motion for a stay of the 

order of the District Court, and the responses, and of the motion



to accelerate the appeal, and the responses,

IT IS NOW ORDERED:

That the Virginia State Board of Education and Dr. Woodrow 

W. Wilkerson, State Superintendent of Public Instruction, direct and 

coordinate planning for a merger of the school divisions of the City 

of Richmond and Henrico and Chesterfield Counties, encompassing all 

phases of the ojaeration and financing of a merged school system, to 

the end that there will be no unnecessary delay in the implementation 

of the ultimate steps contemplated in the order of the District Court 

in the event that the order is affirmed on appeal. To that end, but 

with regard for the efficient current operation of each of the three 

separate divisions, the Virginia State Board of Education and Dr. 

Wilkerson may require the three separate school divisions to supply 

administrative and staff assistance to develop and assemble data 

information and tentative plans looking toward implementation of the 

District Court's order. If deemed advisable, they may direct tne 

formation of a provisional school board for the merged division and 

employ such outside administrators and assistants as may be deemed 

practical. Except such costs as are properly attributable to the 

Virginia State Board of Education and the Office of the State 

Superintendent of Public Instruction, all necessary costs incurred 

in connection with the development of such plans shall be shared by 

the three school divisions in proportion to the number of pupils in 

each division.

Except as provided above, the order of the District Court 

is stayed pending the hearing of the appeals on the merits and, 

subject to the further order of this Court, thereafter pending a 

determination of the appeals on the merits.

2



The appeals are accelerated. An opening brief shall be 

filed by each party on or before Wednesday, March 22, 1972, and 

each parcy may fxle a reply brief on or before Wednesday, April 5, 

1972.

The appeals will be scheduled for hearing before the

Court en banc during the week beginning April 10, 1972.
- «

Any party has leave to suggest to the Court any modifica­

tion of this order which it deems essential, and continuance of the

stay order will be considered by the Court after the hearing of the

appeals on the merits.

By direction of Chief Judge Haynsworth 
and Judges Craven,, Russ^TT'luhd Field:*

/ \ . in ! “
h  1  8.on> « • \ ? / \ y*. 4 5

Clerk, United States Court of Appeals' 
for the Fourth Circuit

x Judge Winter would grant an oral hearing on the motion 
for a stay and the responses thereto, but would not 
grant a stay without such a hearing. He joins in the 
order insofar as it accelerates the appeal and establishes 
a schedule for the filing of the briefs and a hearing.

Judge Bryan was not present and took no part in the 
consideration and disposition of these motions.

Judge Butzner did not participate in the consideration 
or decision of these motions because, as United States 
District Judge, he presided over this case from 1962 
until 1967. 28 U.S.C. § 47; see Wright v. Emporia,
442 F.2d 570, 575 (1971); Swann v. Charlotte-^Mecklenburg 
Bd. of Educ., 431 F.2d 135 (1970).

1 ! •: J

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WINTER/ Circuit dge, dissenting:

While my barothers purport to assure that there 

will be "no unnecessary delay in the implementation of the 

ultimate steps contemplated in the order of the district 

court, in the event that the order is affirmed on appeal," 

they articulate no reason why the district court's order 

should be stayed almost in toto. I dissent from the or­

der, and I dissent from their refusal to conduct an oral 

hearing at least to determine if what they order is feas­

ible and is capable of accomplishment of its announced 

objective.

My concept of the rules under which stays should 

be granted or withheld was set forth in Long v. Robinson, 

432 F.2d 977 (4 Cir. 1970). And, as pointed out in Long,

the rules governing the granting of this extraordinary re­

lief are stricter where, as here, the matter has been care­

fully considered by the district judge and relief has been 

denied. I am, of course, unable to debate the proper ap­

plication of those rules by reason of my brothers' silence. 

It suffices to say that nothing in the papers convinces me 

that under Long a stay should be granted, and I would infer

1



• •
from the lack of any reasons advanced, by the court for i«~s

action that either Long has been totally ignored or that 

Long has been considered and no reasons sufficient to meeu 

its test for granting relief have been discovered.

Finally/ I protest the refusal of the court to 

permit me and the other judges to hear argument on' the 

applications and the responses. In a case and matter of 

this importance, it would seem to me to be elementary fair­

ness to the parties and to the judges of the court to per­

mit. all to explore in oral argument the merits and demerits 

of possible courses of action. Additionally, the court has 

entered an order in a form requested by no one. While it 

grants a stay, it purports to protect the plaintiff's 

rights. Whether it is feasible and workable, or whether 

it is an empty gesture, is a matter of speculation. I 

would think that the court would at least want the assur­

ances that its order is not futile that might stem from

oral argument.

r-" Jt H L.'| Si ;.) .

GAY.'JCL V/. P'.liiii.’S

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- 2  -