Eilers v. Carpenter Appendix to Petitioners-Appellants' Brief

    I n  t h e

Itttoii (Eaurt of Appals
F ob the Sixth Circuit 

No. 17,186

Michael F ilers, T homas F ilers, David E ilers, Georgianne 
E ilers and F rancine F ilers, by A nna F rances (E ilers) 
A nderson, their Mother and Next Friend,

Petitioners-Appellants,
— v,—

L onnie C. Carpenter, in his capacity as Executive Director 
of the Louisville and Jefferson County Children’s Home,

Respondent-Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE 

WESTERN DISTRICT OF KENTUCKY, LOUISVILLE DIVISION

APPENDIX TO PETITIONERS-APPELLANTS’ BRIEF

J ack Greenberg 
J ames M. Nabrit, III 
L eroy D. Clark

10 Columbus Circle 
New York, New York 10019

J ames A. Crumlin

608 West Walnut Street 
Louisville, Ky. 40202

Attorneys for Petitioners-Appellants

A nthony G. A msterdam 
3400 Chestnut Street 
Philadelphia, Pa.

Of Counsel



I N D E X

PAGE

Relevant Docket Entries ............................... ................. la

Petition for a Writ of Habeas Corpus .........................  3a
Exhibit A Annexed to Foregoing Petition ..........  8a

Affidavit in Support of Petition for Writ of Habeas 
Corpus ............................................. -............................  13a

Intervening Response in Behalf of George F. Eilers,

Father of Infant Children Herein.............................  16a

Order Dated March 25, 1966 ........................................- 19a

Order Dated March 29, 1966 ................................... -....  20a

Notice of Appeal .................................................... .......  21a

Order Dated April 1, 1966 ............................................  22a

Memorandum in Support of Motion to Alter Order .... 23a

Motion to Alter Order ............................... ..........-......... 24a



1966

March

March

March

March

March

April

Relevant Docket Entries

2 Petition for Writ of Habeas Corpus with Ex­
hibit 1 attached, and Affidavit of James A. 
Crumlin, and brief filed by James A. Crumlin, 
attorney. Proposed writ of habeas corpus 
tendered.

25 Intervening Response filed by George F. 
Eilers by James A. Hubbs.

28 Order signed by Judge Brooks March 25,1966: 
Application for writ of habeas corpus denied 
and application dismissed; counsel for defen­
dant Eilers to prepare and tender findings of 
fact, conclusions of law, and judgment in ac­
cordance with the oral opinion of the Court. 
Copies to attys. Crumlin, Clark, Hubbs and 
Sawyer. 3/28/66.

29 Order signed by Judge Brooks 3/29/66: Peti­
tioner’s application for writ of habeas corpus 
denied without prejudice. Copies to James A. 
Crumlin, Leroy D. Clark, James A. Hubbs 
and James Brown, mailed 3/30/66.

31 Notice of Appeal by Michael Eilers, Thomas 
Eilers, David Eilers, Georgianne Eilers and 
Francine Eilers, by Anna Frances (Eilers) 
Anderson to the U.S. Court of Appeals for 
the 6th Circuit—filed Copies mailed to : James 
A. Hubbs and James Brown, attorneys.

1 Order signed by Judge Brooks April 1, 1966, 
that a Certificate of Probable Cause be and 
is given to plaintiffs for purpose of perfecting



2a

Relevant Docket Entries

their appeal to 6th Circuit U.S. Court of 
Appeals. Copies mailed to James A. Crum- 
lin, Leroy D. Clark, James A. Hubbs and 
James Brown.

April 8 Petitioners’ “Memorandum in Support of Mo­
tion to Alter Order”—filed by Leroy D. Clark, 
Attorney.

April 18 Received by mail from Leroy D. Clark, attor­
ney, and filed petitioners’ “Motion To Alter 
Order” .



3a

Come the petitioners Michael Filers, Thomas Eilers, 
David Eilers, Georgianne Eilers and Francine Eilers, 
through their mother and next friend Anna (Eilers) An­
derson and petition this court for a writ of habeas corpus 
pursuant to 28 U.S.C. 2241.

(1) Petitioners are under the custody, control and re­
straint of the respondent pursuant to a decree of the 
Jefferson County, Kentucky, Circuit Court, Chancery 
Branch, Third Division rendered on September 29, 1964. 
A  copy of that decree is attached hereto as Exhibit #1.

(2) The restraints imposed upon petitioners by the de­
cree of the Jefferson Circuit Court of September 29, 1964 
were in violation of the First, Fourteenth and Fifteenth 
Amendments to the Constitution of the United States and 
Title 42 Sect. 1981 and 1983 U.S.C. in that petitioners 
were deprived of their freedom and their natural and 
normal relationship with their mother (A) because of 
their race and color (B) because of the race and color of 
their mother (C) because of the race and color of the 
man with whom their mother chose to contract marriage 
(D) because of the policy of the State of Kentucky to 
deny all the normal incidents of the marital relationship 
to parties who violate the statutes prohibiting marriage 
between Negro and white persons. The facts showing 
these constitutional violations are as follows:

On June 14, 1963, in the Jefferson Circuit Court, Chan­
cery Branch, Third Division, petitioners’ mother sued for 
and received a divorce from George Eilers on the basis 
that he was unfit to act as father or husband. Custody 
of petitioners continued in petitioners’ mother. On Janu­
ary 28, 1964 petitioners’ mother, who is a white woman,

Petition for a Writ o f  Habeas Corpus



4a

married one Marshall Anderson in the State of Illinois. 
Marshall Anderson is a Negro. Petitioners’ mother and 
her new husband settled in Louisville, Kentucky and estab­
lished a home there for petitioners and their mother in 
one of the areas in Louisville principally inhabited by 
Negroes. Under Section 402.020 Kentucky Revised Statutes 
and the custom and policy of the State of Kentucky the 
marriage of petitioners’ mother and Marshall Anderson 
is declared illegal and void.

On February 13, 1963 immediately after the re-marriage 
of petitioners’ mother to Mr. Anderson, George Eilers 
petitioned the Third Division, Chancery Branch of the 
Jefferson Circuit Court to reopen the custody proceedings 
attendant to his divorce and grant custody of the peti­
tioners to him on the sole ground that petitioners are 
white, that Marshall Anderson is a Negro, that the mar­
riage of Marshall Anderson and Anna Eilers is illegal 
and that petitioners were then residing in a Negro neigh­
borhood.

Judge Lyndon R. Schmid of the aforementioned divi­
sion of the Jefferson Circuit Court entertained the peti­
tion, and by decree of September 29, 1964 took petitioners 
from their mother solely upon the ground that the mar­
riage of their mother to a Negro required petitioners, 
as white children, to be reared in an interracial setting 
and ruled that such an interracial setting was, as a matter 
of law, detrimental to white children. Judge Schmid, 
however, refused to grant custody of petitioners to their 
natural father because he is unfit. He placed petitioners 
in the juvenile home in the care and custody of respondent.

(3) On February 9, 1965, petitioners’ noted appeal to 
the Kentucky Court of Appeals challenging the decree

Petition for a Writ of Habeas Corpus



5a

of September 29, 1964 and various orders of the Court 
entered during the period from September 29, 1964 through 
January 25, 1965. Eleven months later on January 11, 
1966, the Kentucky Court of Appeals dismissed the appeal 
of petitioners’ mother on the ground that the appeal had 
not been timely filed. The aforesaid Court did not rule 
upon the merits of the appeal nor in any way reach the 
numerous federal constitutional issues raised therein.

(4) Prior to the filing of this petition, petitioners filed 
a petition for a writ of habeas corpus with the Jefferson 
Circuit Court, Chancery Branch, Third Division. The writ 
is returnable on April 13, 1966. That petition raises 
issues identical to those raised in this petition. According 
to the law of the State of Kentucky the issues involved 
with the writ of the Jefferson Circuit Court, Chancery 
Branch, Third Division should be decided on the return 
date of that writ or shortly thereafter. Should the peti­
tioners fail in their request to the Jefferson Circuit Court, 
Chancery Branch, Third Division, their only recourse, un­
der the law of Kentucky, will be an appeal to the Kentucky 
Court of Appeals.

An appeal to the Kentucky Court of Appeals does not 
afford adequate relief to the petitioners because:

1. Petitioners are of tender age, and have been deprived 
of their mother’s care for a year.

2. An appeal is likely to take an inordinate amount 
of time.

3. Each additional day of incarceration and restraint 
is irreparably harmful to petitioners because of their age, 
and immediate need for care by their natural parent.

Petition for a Writ of Habeas Corpus



6a

4. The incarceration and restraint of petitioners is 
clearly in violation of the Constitution of the United 
States.

5. The statutes, customs and policy of the State of 
Kentucky which penalize persons in an interracial mar­
riage cannot be so modified or interpreted as to save their 
constitutionality.

Both levels of the Kentucky State courts have had 
adequate and full opportunity to decide and vindicate 
the federal constitutional rights involved in this petition. 
As the matter of custody is a continuing one the Kentucky 
Court of Appeals, did not have to find the appeal untimely 
and could have disposed of the case on the merits. It is 
not likely that either of those levels of the Kentucky 
courts will, in the future, protect or vindicate the federal 
rights alleged herein to have been violated because those 
courts are bound by the custom, policy and practices of 
which the anti-miscegenation statute, Kentucky Revised 
Statute 402.020 is a partial statement.

(5) No other application for this writ has heretofore 
been made to any other judge or court of the United States.

W herefore, petitioners pray that this Court issue its 
writ of habeas corpus, set down the hearing for the return 
of the writ at some reasonable time. And upon such 
hearing enter an order revesting custody of petitioners 
in Anna Anderson and declaring Sec. 402.020 of the Ken­

Petition for a Writ of Habeas Corpus



7a

tucky Revised Statute as void in violation of the Four­
teenth Amendment to the United States Constitution.

A nita F rances (E ilers) A nderson 
Petitioner

J ames A. Ceumlin 
Suite 503
608 Walnut Street 
Louisville, Kentucky

J ack Greenberg 
L eroy D. Clark

10 Columbus Circle 
New York, New York 10019

Petition for a Writ of Habeas Corpus



8a

Exhibit A Annexed to Foregoing Petition 
(Opinion and Judgment)

JEFFERSON CIRCUIT COURT

Chancery B ranch— T hird D ivision 

No. 72,387

A nna F rances E ilers (A nderson),

vs.
Plaintiff,

George F. E ilers,
Defendant.

The parties to this custody hearing were divorced by 
this Court June 14, 1963, and by the Agreement made a 
part of that Judgment the Defendant was to pay the Plain­
tiff $40.00 per week as maintenance for the support of 
the children of the parties. There was no adjudication 
of the custody of the children either by way of agreement 
or in the judgment. However, the Plaintiff had actual 
custody of the children at the time of the divorce and it 
is presumed that this arrangement was satisfactory to 
the parties at that time.

Grounds for the divorce were six months cruel and 
inhuman treatment as set out in the Statutes.

At the time the Complaint was tiled there were five 
children, namely, Georgana Eilers, age 11; Michael J. 
Eilers age 10; Tommy Eilers age 9; David Eilers age 7; 
and Francine Eilers age 4.

On February 13, 1964, the Defendant filed a Supple­
mental Complaint in the action alleging that the condi­



9a

tions under which these children were living had so changed 
since the divorce was granted as to jeopardize their health, 
morality and general welfare. He asks that he be given 
custody of the children.

The hearing began on June 8, 1964, and adjourned from 
time to time until the case was submitted September 5, 
1964.

The parties appeared in person and by counsel and the 
testimony of the witnesses was heard and by agreement 
of counsel the records of Juvenile Court of this County 
were examined by the Court and the Court will take into 
consideration said records along with the proof in this 
case.

The uncontradicted evidence in the case is to the effect 
that the original divorce was caused by failure of the 
Defendant to properly care for his family. This failure 
was occasioned by excessive drinking, cruelty, gambling, 
and association with women other than his wife.

Subsequent to the divorce, Plaintiff herein married Mar­
shall Anderson, a member of the Negro race. The De­
fendant, George F. Eilers, objects to his children being 
reared in the home of a colored man.

In our Order of June 8, 1964, we specifically stated 
that the issue before the Court was solely that of custody 
of the children and that the validity of the marriage 
between Anna Frances Eilers Anderson and her present 
husband would not be considered.

We wish to re-iterate at this time that while we are 
fully cognizant of the perplexities of the present situation 
we will consider these perplexities only as they relate 
to the well-being of these children and their status in 
the present social community without regard to any

Exhibit A Annexed to Foregoing Petition



10a

theoretical conceptions regarding the proper relation­
ships between the races entertained by some folk. We 
make this statement because one witness, Mr. James Wil­
kinson, testified at great length as to what his opinions 
are. Pages 58-64 of the Transcript of Evidence.

The record reveals that shortly after the marriage of 
Mrs. Eilers and Mr. Anderson dissension did arise in 
the home, particularly with reference to Mr. Anderson 
and the two older children. This situation resulted in 
their being placed in another home by the Juvenile Court 
of this County.

The proof as to the fitness of the home, its cleanliness, 
its adequacy, its congeniality was contradictory. Even if 
the home is clean, well-kept, adequate, with a congenial 
atmosphere, would that fact preclude Defendant from ob­
jecting to having his children reared under these circum­
stances when considered in the light of an absence of 
proof that he is a fit person to have their custody.

We do not think that one’s shortcomings, however 
grevious they may be, would estop one from insisting 
that the Courts protect the general welfare and health 
of their children. Therefore, we believe that even though 
the Defendant herein is not a fit and proper person to 
have the custody of these children he does have the right 
to object to his children being reared in an atmosphere 
detrimental to their best interests.

Now we consider what is to the best interests of these 
children. As we have mentioned previously, the two older 
children have been removed from the home by the Juvenile 
Court. We can very easily understand the problems the 
three younger children will face in their present environ­
ment.

Exhibit A Annexed to Foregoing Petition



11a

There is an old saying “If you want the truth, go to 
a child” . It is. a known fact that children can be most 
brutal in their frankness. And these children will be 
subject to the frankness of their fellows of both the colored 
and white races throughout their lives.

The Court is compelled to take notice of the racial 
unrest prevalent at this time, and of the struggle on the 
part of the colored race for equality with the white race. 
Of course, we realize that this “equality” is a relative 
word and we use the phrase merely to call attention to 
the fact that in rearing these children in a racially mixed 
atmosphere will per se indoctrinate them with a psychology 
of inferiority. We think that subjecting these children 
to such a hazard would be in negation of their “best 
interests” .

Therefore, the Court is faced with this question. We 
have a father and a mother who bring children into this 
world and then totally disregard them when the whims 
or caprices of the mother and father so dictate.

We have a father whose conduct as a husband and a 
father is such that the Court is required to grant his 
wife a divorce and then we have that divorcee, the mother 
of these children, who without regard for the best interests 
of her children, contracts a marriage which she knows, 
or should have known, would re-act to the detriment of 
these children.

As we have intimated above we are of the opinion that 
neither of these people are fit to have the custody of these 
children. Therefore, it is the order of this Court that 
St. Vincent Orphans Home for girls and St. Thomas 
Orphans Home for boys, both institutions of Catholic 
Charities of this City and County, will assume custody 
of these children.

Exhibit A Annexed to Foregoing Petition



12a

The Defendants, George F. Eilers, will make arrange­
ments immediately with these Homes for the maintenance 
of these children.

The Plaintiff, Anna Frances Eilers Anderson, will im­
mediately take these children to the Catholic Charities 
and place them in their custody.

It is further ordered that visitation rights of the parties 
with these children will be at the discretion of the superior 
resident officer of the respective home in which these 
children will be located.

Dated this 29th day of September, 1964.

L yndon Schmid, J udge

Exhibit A Annexed to Foregoing Petition



13a

Affidavit in Support of Petition
for Writ of Habeas Corpus

[Same Caption]

Comes now James A. Crumlin, a person of legal age, 
engaged in the general practice of law, a member in good 
standing with the Court of Appeals of Kentucky, this 
Court, and the Sixth Circuit Court, and after being duly 
sworn and under oath, makes the following statement:

“ That on Monday, February 28, 1966, I approached 
and conversed with five different Jefferson Circuit Court 
judges endeavoring to get a Circuit Court judge to hear 
a writ of habeas corpus as provided by law. Each of 
these judges, except one, suggested that he could not 
hear same for the reason that for him to hear same would 
in effect amount to an appeal from another circuit judge 
(referring to the Honorable Lyndon B. Schmid), and that 
he did not feel that he had the authority to issue a ruling 
that would be contrary to a previous holding of the Honor­
able Lyndon B. Schmid, regardless to how much he may 
differ with his opinion. The one who agreed to hear same 
was of the Criminal Branch of the Jefferson Circuit Coui’t 
and after he had agreed to hear argument for the writ, 
counsel for petitioners became dubious of his authority 
to hear same in view of the holdings in Gardner v. Allen, 
223 S.W.2d 723 and Gibson v. Bax, 241 S.W.2d 988, to 
the effect:

‘A  Criminal Branch of Circuit Court has jurisdic­
tion to hear writ of habeas corpus in criminal pro­
ceedings, but in a civil proceeding, it is necessary



14a

under State Constitution for a writ to be heard by a 
judge of some branch other than criminal division of 
that court, Kentucky Constitution 137.’

“I then went to Judge Lyndon B. Schmid himself on 
March 1, 1966, and asked if he would grant an immediate 
hearing, and if convinced that he was wrong* in his pre­
vious decision, if he would then issue the writ. He insisted 
that he would not even listen to me ask for such a writ 
unless counsel for the father of the children in question 
could be present. He set a time whereby I might be heard. 
Said counsel for the children’s father agreed and came 
over.

“ The Honorable Judge Lyndon B. Schmid stated that 
he could not stop me from filing for the writ and that 
if it was assigned by the clerk to any other Circuit Court 
judge, that judge would have to transfer said cause to his 
division, and that when it comes before him for a hearing, 
he would deny the writ because to hold otherwise would 
mean that he would have to hold that his previous ruling 
was illegal and this he was not going to do.

“When I asked the judge for an early date, he refused 
saying, ‘This cause is coming up on April 13, at 9 :30 A.M. 
on another matter and I will wait until that time to over­
rule your petition for a writ of habeas corpus.’

“ It is, therefore, my humble opinion that I have com­
pletely exhausted our state remedy and that unless this 
honorable Court grants the writ of habeas corpus for the 
reasons set forth in the attached Petition for Writ of 
Habeas Corpus (as amended), these children will continue 
to suffer irreparable injury and the mother, as well as

Affidavit in Support of Petition for Writ of
Habeas Corpus



15a

the children, would have been denied their constitutional 
rights.

“Further, affiant sayeth naught.”

J ames A. Cbumlin, A ffiant

Subscribed and sworn to before me by James A. Crumlin 
this 1st day of March, 1966.

My Commission expires October 28, 1967.

J essie H. T ucker

Notary Public, State at Large, Kentucky

Affidavit in Support of Petition for Writ of
Habeas Corpus



16a

IN THE UNITED STATES DISTRICT COURT

F oe the W estern D istrict oe K entucky 

L ouisville D ivision 

Civil Action No. 5232

Intervening Response in Behalf of George F. Eilers,
Father o f  Infant Children Herein

Michael E ilers, T homas E ilers, David E ilers, Georgiannb 
E ilers and F rancine E ilers, by A nna F rances (E ilers) 
A nderson, their Mother and Next Friend,

Plaintiffs,
vs.

L o n n ie  C. C a r p e n t e r , in his capacity as Executive Director 
of the Louisville and Jefferson County Children’s Home,

Defendant.

Comes George F. Eilers, natural father of the infant 
children herein, and for his Response to the action on the 
part of the Petitioners, states as follows:

I

Petitioners admitted in Paragraph One (1) of their 
Complaint that the children are under the custody and 
control of the respondent pursuant to an Order of Court 
and, therefore, a writ of habeas corpus is not the proper 
remedy. Church v. Church, 270 Fed. 359; Wright v. John­
ston, 74 Fed. Sup. 25.



17a

II

Facts not mentioned in the Petition but which are 
relevant and important to this case are as follows:

Before any action was taken in the Court of Appeals 
on and [sic] phase of this litigation (other than notice of 
appeal), petitioner, mother of the infant children herein, 
filed a supplemental complaint in the Jefferson Circuit 
Court, Chancery Branch, Third Division, (Judge Lyndon 
B. Schmid’s Court), alleging a change of circumstances 
accompanied by the usual Motion to award custody of 
said children to her. Petitioner did not request a day to 
be heard. After the Court of Appeals dismissed the ac­
tion, the defendant, father of the children, also filed a 
Supplemental Complaint, alleging a change of circum­
stances and requesting custody of the children. The issues 
were made up, a day to be heard was requested by counsel 
for the father and the Court set the case to be heard 
on both Supplemental Complaints on April 13, 1966 at 
9 :30 A.M.

Said case is still pending and on the trial docket; Peti­
tioners have not exhausted their state remedies as re­
quired in Ex Parte Hawk, 321 U.S. 114.

III

Petitioner cannot anticipate an adverse ruling by the 
state court. Tuelee v. House, 110 Fed.2d 797.

Intervening Response in Behalf of George F. Eilers,
Father of Infant Children Herein



18a

IV

The marriage of the Petitioner and Anderson was the 
original cause of the present events. But this was only 
one facet. There were subsequent events which were testi­
fied to and taken down in the Transcript of Testimony 
which unquestionably established that it would be for the 
best interests of the children to place them in a neutral 
environment.

W herefore, George F. Eilers prays that he be allowed 
to file this Intervening Response as an interested party 
and that the Write be dismissed with costs.

George F. E xeees 
J ames A. H ubbs

Counsel for George F. Eilers 
Nicholson $  Hubbs

602 Ky. Home Life Building 
Louisville, Kentucky 40202 
583-4816

Intervening Response in Behalf of George F. Eilers,
Father of Infant Children Herein

[Certificate of Service Omitted]



19a

[Same Caption]

This case was called in open Court on March 25, 1966, 
for hearing on the question of jurisdiction, and there 
appeared James A. Crumlin, Esquire, and LeRoy Clark, 
Esquire, for the plaintiffs, and James Brown, Esquire, 
Assistant Jefferson County Attorney, for the defendant. 
James A. Hubbs, Esquire, appeared for George F. Eilers, 
and tendered an intervening response, which has been 
filed.

The Court having heard arguments by counsel.

I t is ordered that the application for writ of habeas 
corpus is denied and the application is dismissed. Counsel 
for defendant is to prepare and tender findings of fact, 
conclusions of law, and judgment in accordance with the 
oral opinion of the Court.

Order Dated March 25 , 1966

March 25, 1966.

H enry L. B rooks 
United States District Judge



20a

[Same Caption]

Petitioners, Michael Eilers, Thomas Eilers, David Eilers, 
Georgianne Eilers and Francine Eilers, are infants and 
have filed an application for a writ of habeas corpus by 
their mother and next friend, Anna Frances (Eilers) An­
derson. They allege that they are in custody of the re­
spondent, Lonnie C. Carpenter, who is Executive Director 
of the Louisville and Jefferson County Children’s Home 
by judgment of state court which is violative of their 
constitutional rights.

It is not disputed that the appeal from the judgment 
of the state court placing the infant petitioners in custody 
was dismissed by the Kentucky Court of Appeals on the 
grounds it had not been timely filed, and that a petition 
for a writ of habeas corpus subsequently was filed in the 
state court and is pending and assigned for a hearing 
on April 13, 1966.

Before an application for a writ of habeas corpus by 
persons in custody pursuant to the judgment of a state 
court can be entertained in a federal court, it must appear 
that available state remedies have been exhausted. Fay 
v. Noia, 327 U.S. 391 (1963); Ex parte Hawk, 321 U.S. 
114 (1944); Doster v. Bennan, 318 F.2d 453 (6th Cir. 
1963); Saulsbury v. Green, 318 F.2d 320 (6th Cir. 1963).

Petitioners’ application for a writ of habeas corpus is 
denied without prejudice.

March 29, 1966.

Order Dated March 29 , 1966

H e x b y  L . B books 
United States District Judge



21a

Notice of Appeal

[Same Caption]

Notice is hereby given that Michael Eilers, Thomas 
Eilers, David Eilers, Georgianne Eilers, and Franeine 
Eilers, by Anna Frances (Eilers) Anderson, above named, 
hereby appeal to the United States Court of Appeals for 
the Sixth Circuit from the Final Judgment and Order 
of this Court dismissing petitioners’ Petition for a Writ 
of Habeas Corpus entered in this action on the 29th day 
of March, 1966.

Respectfully submitted,

J a m e s  A. C r t t m l in

608 W. Walnut Street, Suite 503 
Louisville, Kentucky 40203

J ack Greenberg 
L eroy Clark

10 Columbus Circle 
New York, N. Y. 10019

Attorneys for Petitioners



22a

[Same Caption]

Plaintiffs having given Notice of Appeal and having 
filed their Application to this Court for a Certificate of 
Probable Cause, and this Court being sufficiently advised;

It is  h e r e b y  o r d e r e d  that a Certificate of Probable 
Cause be, and the same is, hereby given to the plaintiffs 
for the purpose of perfecting their appeal to the Sixth 
Circuit United States Court of Appeals.

4/1, 1966.

Order Dated April 1, 1966

H enry L. B rooks 
United States District Judge



23a

[Same Caption]

On March 26, 1966, this Court entered an order dismiss­
ing petitioners’ writ of habeas corpus and on March 29, 
1966, the order of dismissal was supported by conclusions 
of law which were limited to a statement that petitioners 
had failed to exhaust state remedies prior to invoking the 
jurisdiction of the Court. On April 1, 1966, within ten 
days of the order of March 29, 1966, petitioners filed a 
motion to alter the order containing conclusions of law. 
The District Court has power to alter a judgment or order 
pursuant to a motion filed within ten days of the order: 
Federal Rules of Civil Procedure, Rule 59; Hughes v. 
Renfrow, 200 F.2d 337.

The District Court specifically has power to supplement 
conclusions of law which were arrived at by the Court, but 
not included in the order as issued; Southern States Equip­
ment Corporation v. U.S.C.O. Power Equipment Corpora­
tion, 209 F.2d 111.

Respectfully submitted,

/ s /  L eroy D. Clare 
Jack Greenberg 
L eroy D. Clare

10 Columbus Circle 
New York, New York 10019

J ames A. Crtjmlin 
Suite 503 
608 Walnut Street 
Louisville 3, Kentucky

Attorneys for Plaintiffs 
[Certificate of Service omitted]

Memorandum in Support of Motion to Alter Order



24a

[Same Caption]

Petitioners, by their undersigned attorneys, move this 
Court, pursuant to Rule 59 of the Federal Rules of Civil 
Procedure, to amend and supplement the order dated 
March 29, 1966 containing conclusions of law, to include 
the holding that the petition for writ of habeas corpus did 
not present a federal question.

As grounds for said relief petitioners allege:

1. The order of this Court wherein conclusions of law 
are stated as the basis for the dismissal of petitioners’ 
writ of habeas corpus includes only the statement that 
petitioners have failed to exhaust state remedies prior to 
invoking the jurisdiction of this Court.

2. After oral argument before this Court on March 25, 
1966, in which counsel for petitioners argued that a federal 
question was presented by the petition for writ of habeas 
corpus and that all available state remedies had been ex­
hausted, this Court ruled orally that petitioners had failed 
to exhaust state remedies and further that the petition 
for writ of habeas corpus failed to raise a federal ques­
tion.

3. Petitioners have noted an appeal from the dismissal 
of the petition for writ of habeas corpus and file the in­
stant motion to reflect the full settlement of all issues of 
law. Immediate settlement of all issues of law in the in­

Motion to Alter Order



25a

stant appeal will prevent further delay and irreparable 
injury to petitioners.

Respectfully submitted,

/ s /  L eroy D. Clark 
J ack Greenberg 
L eroy D. Clark

10 Columbus Circle 
New York, New York 10019

J ames A. Crumlin 
Suite 503 
608 Walnut Street 
Louisville 3, Kentucky

Attorneys for Plaintiffs

Motion to Alter Order

[Certificate of Service omitted]



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