Attorney Notes on Rule 19 Issues

    THE RULE 19 ISSUES

1. A review of the prior proceedings shows that Judge Roth 

has not yet violated the spirit nor the letter of the Rule 19 

view of the panel (see "The Pertinent Proceedings With Respect to 

Suburban Intervenors") ; therefore, the Ruling on Area of Desegre­

gation should not be vacated. In the absence of a final plan, 

this Court need not express its views on these interim planning 

orders; but for the guidance of. the District Court and the parties, 

this Court should describe of what the opportunity to be heard

of suburban districts to be effected by an actual plan consists.

2. Stated another way, even if affected school districts 

are "necessary parties" who must be heard as a prerequisite to 

implementation of a plan, no plan of desegregation has been ordered
4 » i  p i t  v.H'tVr..’

implemented; the District Court, unfortunately/, has not even gotten 

fully past even the first stage of planning due to the default of 

state defendants, the stays on further proceedings imposed by the 

panel, and most recently an unfortunate personal disability. 

Therefore, the point in time at which these parties are necessary 

under the panel's view has not arrived; this is precisely analogous 

to why this Court need not consider the applicability of 803. 

[Another possible alternative is that most of the suburban dis­

tricts have been heard;jneed only certify class action to bind 

all suburban districts, which can be done anytime prior to final 

order implementing plan issues. See Nashville.]

3. It is the plaintiffs' position, however, that no_ suburban
* e u r tM  4W tdistrict affected .Us a necessary party^/at the point/actual 

implementation of a plan is ordered. For even in the absence of 

suburban districts, the orders of the Court would be binding 

on the state defendants; and under U.S. v . T.E.A. they could be 

ordered to use their powers (withholding funds, exercising their 

general control and supervisions) to accomplish implementation: 

until proven otherwise by factual circumstances, this Court has 

no reason not to assume those powers will be sufficient to accord

complete relief among the present parties. U.S. v. T.E.A. .



This is precisely analogous to the authorization in Griffin to 
add tax collector if it proves necessary to collect monies 
uo open schools (they didn't vacate opinion) and joinder of 
State Treasurer for purchase of buses and joinder of city councils 
to keep moneys flowing to desegregating school districts under
Rules 21 and 19. The fact that each of these entities like 
school districts can be sued does not determine whether they 
are necessary parties at this stage of the proceedings. We

•  '  p  j , , ; .  - i  t i- j -  'think the Court should also rule upon the propriety of tfei«/view 
for the guidance of the District Court and the parties. Unless 
this Court acts expeditiously and authorizes the Court to proceed 
under its July 14 ruling, at least for all purposes of further 
planning , vindication of plaintiffs' declared rights will be 
in real danger, of being delayed yet another'/full school year.
We respectfully submit that this Court should not allow a wooden 
application of Rule 19 to result in the deprivation of substantive 
rights. Judge Roth, with a difficult task, acted with what 
he believed was consummate fairness and deliberation in the 
face of a litigation which already has more parties than any I 
know, and Judge Roth has hot yet deprived any suburban district 
of the opportunity to be heard before implementation of any plan.
We respectfully submit that the Court should reissue forthwith 
the panel's opinion and the mandate of the Court, modified so as 
( to vacate the Ruling and Opinions on Desegregation Area
and Development of Plans and (2) to explicate more fully the 
requirements of Rule 19 and the opportunities to be heard if the 
District/actually erred in any respect thereto. This will permit 
both Supreme Court review of the critical legal issue in the
litigation and trial court proceedings to implement timely relief. 
[±he danger is that Sixth Circuit will say opportunity to be 
neard means to be heard on all issues including Detroit only 
violation and adequacy of Detroit only relief; but I would just 
as soon know the extent of this view now as on the next appeal].

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