Memorandum in Opposition to Defendants Application for Stay of Order Directing School Desegregation

     [||a698977b-3037-4e42-ad66-8eab765a3e36||] crarl@Ers STEIN, FERGUSON & S..- 
ATTORNEYS AT LAw 

216 WEST TENTH STREET 

CHARLOTTE, NORTH CAROLINA 28202 

    
JuLius LEVONNE CHAMBERS 

P. O. BOX 20428 ADAM STEIN : 
AREA CODE 704 JAMES E. FERGUSON, II 

TELEPHONE 375.8461 JAMES E. LANNING August 15, 1970 

Honorable Clement E. Haynsworth 
Chief Judge, United States Court of Appeals 
for the Fourth Circuit 

Greenville, South Carolina 

Re: Swann, et al. v. Charlotte- 
Mecklenburg Board of Educa- 
tion, et al. 
  

Dear Judge Haynsworth: 

I am enclosing an original and three copies of a Memorandum in 
Opposition to Defendants' Application for Stay of Order Directing 
School Desegregation pursuant to your request of Friday, August 
14. : 

With warmest regards, I am 

Yours truly, 

/ \ 10 oy ( ; 
7 rr / is: 

Adam Stein 

AS:sd 

Enclosures 

cc: William J. Waggoner, Esq. 
Benjamin S. Horack, Esq. 
James M. Nakrit, III, Esq. 

 



  

IN THE 

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

  

JAMES E. SWANN, et al., 

Appellees, 

V. 

CHARLOTTE-MECKLENBURG BOARD 

OF EDUCATION, et al., 

Appellants. 

  

MEMORANDUM IN OPPOSITION TO DEFENDANTS' 
APPLICATION FOR STAY OF ORDER DIRECTING 

SCHOOL DESEGREGATION 

. The defendants filed notice of appeal on August 13, 1970 from 

an order entered on August 3, 1970 requiring the desegregation of 

the Charlotte-Mecklenburg schools. On Friday, August 14, 1970, 

attorneys for the defendants appeared ex parte in Greenville, South 

Carolina and presented to Chief Judge Clement E. Haynsworth an 

"Application for Stay of Order of the United States District Court 

~ for the Western District of North Carolina Dated August 3, 1970". 

The application is addressed to Chief Judge Haynsworth. Plain- 

tiffs' counsel were not advised that the defendants would be appearing 

 



  

® » 
before Judge Haynsworth. Judge Haynsworth contacted counsel for 

press by telephone on Friday afternoon, August 14 and requested 

that counsel indicate in writing their position as to whether the ap- 

plication may properly be heard by him or whether any such applica- 

tion must be addressed to the Supreme Court. This memorandum is 

addressed to that issue. 

Review By This Court Or A 
Single Judge of This Court 

Is Improper Because The 

Supreme Court Has Assumed 

Jurisdiction of This Case. 

On June 29, 1970, the Supreme Court entered an order granting 

certiorari. The order in pertinent part reads: 

"The petition for writ of certiorari is granted 
provided that the judgment of the court of ap- 

peals is left undisturbed insofar as it remands 

  

1/ 
~ We presume that this application is made pursuant to 

Rule 8(a) of the Federal Rules of Appellate Procedure which provides, 

in part: 

"Reasonable notice of the motion shall be given to 
all parties. The motion shall be filed with the Clerk 

and normally will be considered by a panel or divi- 

sion of the court, but in exceptional cases where 

such procedure would be unpracticable due to the re- 

quirements of time, the application may be made to 

and considered by a single judge of the court." 

The order complained of was entered on August 3, 1970. Notice of 

appeal was filed on August 13. Application for stay was first made 

on August 14. School is scheduled to open September 8, however, 

the Board chairman has publicly stated that the opening of school may 

be further delayed. 

. -D. 

 



  

/ the case to the district court for further pro- 

thorized, and the district court's order is re- 

ceedings, which further proceedings are au- 

{ | 

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| 

instated and shall remain in effect pending 

those proceedings." 

Several things can be said about the order. 

1. By granting certiorari the Supreme Court has assumed juris- 

diction of the entire case. Clearly, no other court has jurisdiction 

to consider a case after the Supreme Court grants certiorari, ex- 

cept as specifically authorized by the Supreme Court. Here, the 

Court has authorized certain further proceedings in the district court 

pending certiorari. No authorization was made for further proceed- 

ings in the Court of Appeals. The proceedings in the district court 

resulted from the authority granted by the Supreme Court, not by 

this Court. 

Orderly review of the district court decision must be sought 

in the Supreme Court. This Court could only review the case by the 

standard announced in its decision and judgment of May 26, 1970. 

It is that standard which is to be reviewed by the Supreme Court. 

2. The Supreme Court not only authorized further Broceddings 

in the district court, but it also reinstated the judgment of the dis- 

trict court on February 5, 1970. The clear purpose of the order was 

to insure that the schools in Charlotte would be integrated as quickly 

as possible -- "at once''. Alexander v. Holmes County Board of 
  

Education, 396 U.S. 19; Carter v. West Feliciana Parish School 
    

Board, 396 U.S. 290. This suggests that the decision of this Court 

i, 

 



  

might have been incorrect. Further action by this Court would, 

fieentien be inappropriate pending a review by the Supreme Court 

| 

| 

| of the May 26, 1970 decision of this Court. 

3. The defendants have argued that this Court has jurisdic- 

tion because of this Court's instructions in its decision of May 26, 

1970. 

LA] ... Since time is pressing, the District - 
Court's order approving a new plan shall 

remain in full force and effect unless it 

is modified by an order of this court." 

The defendants ignore, however, the subsequent action by the 

Supreme Court. As shown above, the only further proceedings au- 

thorized by the Supreme Court are the proceedings which have been 

concluded in the district court. The grant of certiorari vests all 

further appellate functions in the Supreme Court including an appli- 

cation for a stay. See Rules of Supreme Court, 27, 50 and 51. 

CONCLUSION 

For the foregoing reasons, it is respectfully submitted that 

the defendants' application for stay should be denied. 

  

Respectfully submitted, 
/ : Oy 

/ 2/4 ) ( 
75 / co F2 
  

J. LeVONNE CHAMBERS 

ADAM STEIN 

Chambers, Stein, Ferguson 

and Lanning 

216 West Tenth Street 

Charlotte, North Carolina



  

Nl » 

Certificate of Service 
  

The undersigned hereby certifies that he has this day served 

copies of the foregoing Memorandum upon counsel for the appellants 

by depositing copies of same in the United States Mail, postage pre- 

paid, addressed to: 

William J. Waggoner, Esq. 

Weinstein, Waggoner, Sturges 
& Odom 

1100 Barringer Office Tower 

Charlotte, North Carolina; and 

Benjamin S. Horack, Esq. 

806 East Trade Street 

Charlotte, North Carolina. 

This 15th day of August, 1970. 

Ls [1 
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IL €SS f 7 —) 
  

Attorney for Appellees [||a698977b-3037-4e42-ad66-8eab765a3e36||]