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June 1, 1982

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Brief Collection, LDF Court Filings. Jenkins v. Missouri Brief in Support of Motion for Summary Affirmance, 1985. 2875aacb-b59a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/28e279a1-dc1a-43a8-95a7-60194ac1a628/jenkins-v-missouri-brief-in-support-of-motion-for-summary-affirmance. Accessed August 19, 2025.
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UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT KALIMA JENKINS, et al., Appellants, v s . STATE OF MISSOURI, et al., Appellees. ) ) ) ) ) ) ) ) ) Nos. 85-1765WM 85-1949WM 85-1974WM BRIEF IN SUPPORT OF MOTION FOR SUMMARY AFFIRMANCE OR IN THE ALTERNATIVE TO STRIKE FACTUAL STATEMENTS AND FACTUAL ARGUMENTS IN PLAINTIFFS' AND KCMSD1S BRIEFS AND THEIR JOINT ADDENDUM Preliminary Statement These districts predicted this appeal would present many troublesome problems. The letter of movants' liaison counsel to the Court, a copy of which is attached as Exhibit A, describes some of the recent concerns of these districts. However, as stated in that letter, these districts do not expect to win this appeal based upon technical compliance with briefing requirements. On the other hand, now that plaintiffs and KCMSD have filed briefs which preserved appellate issues that were resolved by nonappealed factual determinations, they believe a summary affirmance is proper and required. The only issues applicable to these districts that were preserved by plaintiffs are their issues 1 and 2, br. p. (xii), which are as follows: 1. Whether the District Court erred in absolving the suburban school districts of responsibility for participating in Missouri's pre-1954 interdistrict system of dual schools and of any duty to take part in remedying the effects on their children of that violation and of subsequent violations by the Kansas City District and housing officials. 2. Whether the District Court erred in requiring plaintiffs to overcome a "no continuing effects" presumption arising solely because of the passage of time and in excluding most, then disaggregating the rest of plaintiffs' extensive evidence of continuing effects. KCMSD preserved, br. p. x, the following two issues: 1. Whether the District Court erred in rejecting interdistrict desegregation relief and dismissing the suburban school district defendants by requiring proof of independent constitutional violations by each suburban school district participating in and affected by the State's interdistrict constitutional violations. 2. Whether the District Court erred in failing to recognize that the State of Missouri's creation, maintenance, and failure to dismantle its pre-1954 metropolitan-wide racially dual school system requires interdistrict relief. The above issues purport to be legal issues. Indeed, neither Table of Authorities cites Rule 52(a) Fed. R. Civ. P., the "clearly erroneous" rule. Nor does either brief cite the recent Supreme Court decision of Anderson v. City of Bessemer City, North Carolina, 105 S. Ct. 1504 (1985) which prescribed the "plausible" standard for appellate review of clearly erroneous issues. Whether these legal issues are viable and not moot depends upon whether the underlying facts framing those issues actually exist. The source for the factual predicate must, of course, be this case. The question becomes whether the facts here actually present the proffered legal issues. Oftentimes, -2- there is a dispute over the facts and the parties preserve factual questions on appeal. However, neither plaintiffs nor KCMSD purported to present or preserve any factual issues. Indeed, they studiously and obviously avoided any reference to Rule 52(a). Accordingly, to determine whether the facts present the proffered legal issues, this Court must accept the nonappealed findings of fact made by Judge Clark in his June 5, 1984, Findings. The above-stated legal issues stand or fall on the factual assumptions that Missouri had an "interdistrict system" or "metropolitan-wide" system of dual schools and that factually there is a current substantial "effect." In his June 5, 1984, Findings, Judge Clark posed the following understanding of plaintiffs' theory:1 . . . first, that the SSDs, as agents of the state, were guilty of operating a regional system of segregated schools that centered on and impacted Kansas City with blacks and made the suburbs whiter before 1954; second, that the SSDs failed in their affirmative duty to eliminate the vestiges of the dual school system; and third, that the SSDs are liable for the effects of actions by the KCMSD and other defendants and can therefore be included in an interdistrict remedy. . . . Findings, p. 5. These theories are, of course, those embraced in the above-quoted legal issues appellants want to present to this Court. Judge Clark's Findings, however, rejected those theories, " . . . when considered in light of the evidence . . . " Id. p. 5. Thus, 1 Judge Clark's June 5, 1984, Findings dismissed these districts. They were not parties to subsequent proceedings or orders that occurred in respect to the intradistrict claims. None of the orders or findings entered after their dismissal purported to, nor could they, adjudicate any of their duties or liabilities. Thus, the factual support for any appeal against these districts must stem only from the June 5, 1984, Findings. -3- assuming, arguendo, the legal theories were proper (they are not) the theories were not factually proven to Judge Clark. More specifically, Judge Clark found, as a fact, that no "regional black interdistrict system" caused blacks to leave these districts. Id. p. 15. Judge Clark found, as fact, that, "The manner in which blacks in any defendant district were educated was solely a matter of local control and within the discretion of the local school district" Id. Judge Clark found, as a fact, that, " . . . no vestiges or significant effects of the pre-1954 dual school system remain in any SSD . . . " Id. p. 18. Indeed, Judge Clark found, as a fact, that, " . . . transferring blacks to the KCMSD under the prior segregated school system is not a cause of the present racial distribution of the population in the three-county area" Id. p. 18. Judge Clark found, as a fact, that there was no "significant effect . . . in any of the SSD's" Id. Finally, Judge Clark rejected factually any "effects" at all on the interdistrict issues. Id. p. 34-42. Nor did Judge Clark "exclude" or fail to consider all factual issues proffered to him, " . . . considering all the exhibits which were not admitted . . . , the Court still concludes there is no credible evidence . . . " Id. p. 3. See also p. 2. Plaintiffs and KCMSD cannot, as they knew or should have known, preserve only legal issues and yet base those issues upon their own factual version which was rejected by the trier of fact. In their zeal to present only their factual version they effectively not only concealed the nonappealed findings from the -4- Court but they also succeeded in concealing from themselves the reality that they lost and preserved no factual basis for their legal issues. Argument I. A Party Cannot Forego Factual Issues On Appeal And Still Present Alleged Legal Errors Based Upon Rejected Factual Arguments It is hornbook appellate law that appellate courts do not search the record, particularly extensive ones, for unassigned points of error. It is also hornbook appellate law that the only issues preserved are those set forth in the statement of issues in an appellants' initial brief. Another fundamental precept of appellate law is that appellate courts are not trial courts. Appellate courts abhor making factual determinations because they do not see the witnesses or the trial's ebb and flow. Here, another reason not to retry the case on appeal is the length of time it would take to do so — probably two or more years to perform a really effective retrial. Thus, this Court's task is to apply the facts to the legal issues presented. The question of what facts to apply is answered, in our system, by the requirement that this Court must accept the district court's findings unless they are shown to be clearly erroneous — the standard is -whether any "plausible" view supports the findings. Here, no need exists to determine facts at all because no appellate issue was preserved that attacked Judge Clark's Findings. -5- Judge Clark, as a good trial judge, assumed the validity of plaintiffs' and KCMSD's legal theories and made fact findings applicable to those theories so that a full record would be before this Court. Assuming a legal standard most favorable to plaintiffs, the factual finding was made that no current substantial interdistrict effect existed by virtue of any violations by any entity. Thus, although inapposite in any event, the cases regarding an erroneous legal standard supposedly tainting facts are simply not applicable. Judge Clark applied the facts he found to the above-noted theories. Plaintiffs and KCMSD failed to prove the necessary facts to sustain their own erroneous legal theories. Judge Clark found the facts adverse to those necessary factual predicates. As a matter of fact, no regional or metropolitan system was found to have existed. He also found no current substantial or significant interdistrict effects of any such system, if it ever existed, or any such current substantial effects by a violation of any other party. No appeal was made from these now conclusive factual findings. Thus, the legal issues presented by the briefs are moot and must be deemed waived. Summary affirmance is not only proper, it is required. Nothing but factually moot issues were presented to this Court. Plaintiffs' legal theories also present an erroneous view of the law. It can be noted that an amicus attempts to preserve a clearly erroneous issue with respect to the factual issues presumed by appellants' legal issues. That only highlights the failure of either plaintiffs or KCMSD to appeal the facts. From -6- a review of the amici briefs it looks as if various selected issues were parceled out so that many extra briefing pages could be used. However, an amicus, who is not a party, cannot preserve nonappealed issues for parties. That too is hornbook appellate law. See Preservation Coalition, Inc, v. Pierce, 667 F.2d 851 (9th Cir. 1982). Thus, the amicus brief and its vain attempt to preserve a clearly erroneous issue do nothing for KCMSD and plaintiffs. These districts made no reply to the irrelevant and immaterial issues presented in this amicus brief. No one could really dispute that KCMSD and plaintiffs claim to present only legal issues.2 They do not cite or list as authority Rule 52a or the important and controlling new clearly erroneous case, Bessemer, supra. Further, plaintiffs admit that they " . . . generally confine their arguments to the district court's legal errors." That amorphous statement, which preserves no specified error, is not made until the 86th footnote in their brief. They there argue, without specification, that the fact decisions were based on an erroneous legal view (which, as noted above, is inaccurate even if the point had validity and it does not in this case) and upon a supposed "verbatim" adoption of proposed facts. The findings were not "verbatim" but even if they were, Bessemer requires application of its plausible standard. This obscure footnote reference is no more than an 2 Another infirmity in both briefs' factual statements and legal arguments is that they continually refer to alleged facts or order language that are not related to the June 5, 1984, Order. This Court, of course, cannot hold later adduced evidence or holdings from subsequent intradistrict orders against these districts who were then nonparties. -7- invitation to search a massive record for error. It preserved no issue. It should also be noted that at least some of plaintiffs' counsel have been involved in another appeal in which a similar problem developed. See Goldsboro City Board of Education v. Wayne County Board of Education, 745 F.2d 324, 327 n.3 (4th Cir. 1984).3 Here, there is no reason to justify or countenance a studied and calculated practice of those appellants ignoring adverse findings. These districts also expect to prevail on the merits but appellants' briefing tactics preserved no viable, non-mooted issue. II. KCMSD Is A Codefendant Who Filed No Cross-Claim Against These Districts; Therefore, It Has No Standing To Appeal The June 5, 1984, Order That Dismissed These Districts. KCMSD was a codefendant on the interdistrict issue. It filed no cross-claim against these districts. Therefore, it has no standing to appeal the June 5, 1984, Order dismissing these districts. KCMSD's arguments thus are immaterial. It does now seek realignment but it failed below to cross-claim. III. It Is An Unfair And Prejudicial Appellate Practice For An Appellant To Forego Appealing Adverse Fact Determinations And Yet Present A Statement Of Facts And Arguments And Joint Addendum Based Solely Upon The View Of The Evidence Rejected By The Trial Count; Striking The Facts And Joint Addendum and Substituting Therefor The Facts Found By Judge Clark Is A Proper Remedy. 3 Interestingly, plaintiffs in Goldsboro also used the same tactic of arguing the trial court applied a wrong legal standard and that the findings were infected because of their belief the suburban area in a previous de jure area had not acted to decrease the proportion of blacks in the City. The Court held, on p. 328, that the " . . . district court did not misconstrue the law." Neither did Judge Clark here and, as noted, he even assumed application of plaintiffs' erroneous standards and still found no factual current substantial interdistrict effect. -8- Plaintiffs' and KCMSD's "facts" are neither fair nor accurate. For a fair record distillation, see defendants' March 21, 1984, proposed findings. And, the actual and now binding facts are set forth in Judge Clark's June 5, 1984, Findings. The statement of facts and factual arguments in plaintiffs' and KCMSD's briefs and their joint addendum should be stricken as appellants have waived any factual arguments. This Court must accept Judge Clark's findings for application to the legal issues presented. A complicated appeal is difficult enough to process and brief without either party deviating from acceptable norms of briefing strategy. Where, as here, a party's ability to respond fairly is compromised, then remedial action is appropriate not only for the concerned litigants but also to insure that future litigants, and the Court, will not again be similarly burdened. There is an extensive record in this appeal. Judge Clark issued detailed and record supported findings. Although no appeal was taken from those findings, the statement of facts and factual arguments in plaintiffs' and KCMSD's briefs and their joint addendum present only their view of the evidence. No findings are set forth. None are specifically identified as being clearly erroneous or without plausible record support. No fair treatment or identification of the position of adversaries is articulated. In short, pretrial briefs have been filed. The briefs are contradicted by the conclusive Findings and these districts could rebut effectively every point made or attempted -9- to be remade by plaintiffs and KCMSD just as happened at trial during plaintiffs' own case. In essence, if the Court retries this case de novo on appeal, it will have to search the record. Yet, because of page limitations and the absence of any specific error of fact being pointed out, these districts could not provide a detailed response or even know how to file an effective response brief. Therefore, these districts reject the entire fact statements and factual arguments and joint addendum filed by KCMSD and plaintiffs. We refer the Court to the nonappealed findings of Judge Clark and request the opportunity to file a detailed response before the Court would ever rely upon any statement or factual point proffered by KCMSD or plaintiffs. Their briefing tactic runs afoul of the federal rules of appellate procedure and the teaching of Markowitz & Co. v. Toledo Metropolitan Housing Authority, 608 F.2d 699, 704 (6th Cir. 1979). For the reasons expressed in that case and in this brief, the plaintiffs' and KCMSD's statements of fact, factual arguments and joint addendum should be stricken. Judge Clark's nonappealed June 5, 1984, Findings should be deemed the law of the case for this appeal against these districts. Summary affirmance is required. STINSON, MAG & FIZZELL By George E. Feldmiller Charles W. German Kirk T. May Daniel D. Crabtree 2100 CharterBank Center P. O. Box 19251 -10- Kansas City, Missouri 64141 816-842-8600 Liaison Counsel for the Missouri School District Defendants (Except KCMSD) and Counsel for the North Kansas City School District, School District of the City of Independence, Grandview Consolidated School District C-4, Lee's Summit Reorganized School District R-7 and Fort Osage Reorganized School District R-l and their superintendents COCHRAN, TYREE, OSWALD, BARTON & MCDONALD Robert McDonald Julius Oswald P. O. Box 550 Blue Springfs, Missouri 64015 816-836-8000 Counsel for Blue Springs Reorganized School District and its superintendent DONALD C. EARNSHAW 23 East 3rd Street Lee's Summit, Missouri 64063 816-524-3428 Counsel for Grandview Consolidated School District C-4 and Lee's Summit R-7 and their superintendents LAW OFFICES OF TIMOTHY BOSLER Timothy Bosler Tom Capps 800 Westowne VII 152 Highway & 219 Highway Liberty, Missouri 64068 816-781-8171Counsel for the School District of the City of Liberty and its superintendent HUMPHREY & FARRINGTON Norman Humphrey, Jr. Kenneth B. McClain 123 West Kansas Street Independence, Missouri 64050 816-836-5050 Counsel for the School District of the City of Independence and Fort -11- Osage School District R-l and their superintendents KURANER, SCHWEGLER, HUMPHREY, LOWE & FISHMAN Jeffrey L. Lucas 500 Commerce Bank Bldg. 922 Walnut Kansas City, Missouri 64106 816-221-3443 Counsel for Hickman Mills Consolidated School District C-l and its superintendent POPHAM, CONWAY, SWEENEY, FREMONT & BUNDSCHU Hollis H. Hanover 1300 Commerce Bank Bldg. 922 Walnut Kansas City, Missouri 64106 816-221-2288 Counsel for Center School District and its superintendent SHOOK, HARDY & BACON Gene E. Voigts Gary L. Whittier 1101 Walnut Mercantile Tower - 20th FI. Kansas City, Missouri 64106 816-474-6550 Counsel for Raytown Consolidated School District C-2 and its superintendent SWANSON, MIDGLEY, GANGWERE, CLARKE & KITCHIN James H. McLarney Lawrence M. Maher 1500 Commerce Bank Bldg. 922 Walnut Kansas City, Missouri 64106 816-842-9692 Counsel for Park Hill Reorganized School District R-4 and its superintendent -12- WITHERS, BRANT & HOWARD Conn Withers Commercial Bank Bldg. 17 East Kansas Street Liberty, Missouri 64068 816-781-4788 Counsel for the North Kansas City School District and its superintendent CERTIFICATE OF SERVICE I HEREBY CERTIFY that appropriate service of the foregoing was made on all counsel of record this day of September, 1985. -13- S t i n s o n , M a g & F i z z e l l 9 2 0 M ain S t r e e t T h e Ma s t B uilding 7 5 0 0 We s t llOLb S t r e e t O v e r l a n d Pa r k , Ka n s a s 6 6 2 1 0 -2 3 2 9 (913) 4 6 1 -0 6 0 0 P. O. Box 19251 K a n s a s C ity , M i s s o u r i 64141-2251 (816) 8 4 2 - 8 6 0 0 T e l e x : A 2-AI23 T e l e x A n s w e r b a c k : S tin so n m ag KSC T e l e c o p ie r : (816) 4 7 4 -6 8 0 2 3 7 4 5 In t e r F irst T wo Da l l a s . T e x a s 75270-2171 (214) 741 -2 2 0 0 September 23, 1985 Mr. Robert St. Vrain, Clerk United States Court of Appeals for the Eighth Circuit United States Court and Custom House Room 511 St. Louis, Missouri 63101 Re: No. 85-1765WM, No. 85-1949WM and 85-1974WM; Kalima Jenkins, et al., Appellants v. State of Missouri, et al., Appellees Dear Mr. St. Vrain: I am writing in my capacity as liaison counsel for the defendant school districts (except KCMSD) in the above appeals. Undoubtedly, the Court and staff are aware of the briefing problems in these appeals. The plaintiffs-appellants have now filed a printed brief to replace the over length one rejected by the Court. The "new" brief is essentially the same as the rejected brief except it is printed and contains 137 footnotes rather than 138. A single two-page footnote was dropped. The new print size and margins do not appear to comply with the applicable rules. Over 50% of the words and 40% of the lines are in hard to read footnotes. We have difficulty comprehending how this printed brief is a good-faith response to the Court's rejection of the first brief. The only thing accomplished was plaintiffs-appellants unnecessarily incurring printing expense. Our desire for a fair and concise brief did not mean we wanted simply to increase expenditures for any party. Indeed, we hate to incur printing expense for our briefs just to present more bulk to the Court. In regard to this "new" printed brief, the Court and the parties must still attempt to digest the same amount of excess material in a harder to read form. We assume the Court will do its best to plod through this "new" brief. We do not expect or desire to. win this appeal based on whether plaintiffs-appellants comply with Court rules on page limitations or technical printing EXHIBIT A Mr. Robert St. Vrain September 23, 1985 Page 2 requirements. We assume, however, there is a mutuality in the application of rules. Moreover, we do not want to lose because we follow the rules on behalf of our clients. It is that concern which leads us to ask you to bring our strong objections to plaintiffs' brief and some other matters of concern to the Court's attention. Not only do these districts not have adequate pages to respond to what, in essence, is a 174 page brief (plaintiffs' new 64 page printed brief, KCMSD's 50 pages and the obvious delegation of argument to the 3 amici at 20 pages each), but this "new" brief is in our judgment, quite unfair in its style. Illustratively, none of the statements of fact set forth the nonappealed from actual findings by Judge Clark. This situation brings to mind the teaching of the Court of Appeals for the Sixth Circuit in Markowitz & Co. v. Toledo Metropolitan Housing Authority, 608 F.2d 699, 704 (6th Cir. 1979). In dealing with a situation which was not as grievous as here, that Court stated: This is an appropriate point to pause to mention a problem with this case with which an appellate court should never have to grapple: attempting to sift fact from fiction in the brief . . . In a case such as this, where issues of historical fact are bitterly contested, the parties are free to explain their version of events to the Court, as long as it is clear that it is just their version, and as long as both the findings of the trial court and their opponent's position are also accurately and fairly presented. We remind counsel that this Court is bound by factual determinations of the district court, absent a finding of clear error, and those determinations must always be the starting place in any statement of facts for appellate review. Furthermore, we repeat our frequent admonition that the statement of facts is not a vehicle for argument." [emphasis added] If a cursory review of these briefs were possible, one could readily observe they do not accurately or fairly present the trial court's findings. These districts are faced with the impossible task of responding in 50 pages to what are, in reality, pretrial briefs that " . . . ignore the record evidence in order to present the most favorable version of events possible," Id. Indeed, our problem is worse because no appellate issue attacking any finding is preserved by plaintiffs or KCMSD. Mr. Robert St. Vrain September 23, 1985 Page 3 It is not surprising, therefore, that not one finding of fact is identified as being clearly erroneous. All that is presented is a handpicked selection of now irrelevant factual argument (given the failure to appeal from the facts as found) which also contain many inaccuracies, half-truths, opinions and hyperbole problems. The Sixth Circuit expressed the concern that an appellate Court, " . . . should not be required to pore over an extensive record as an alternative to relying on counsel's representations," Id. Not only has the Court been given such a task but our clients have not been given a fair or accurate presentation of the facts as found by Judge Clark. Had that occurred, the briefing and review process could have focused on any actual issue that could survive a motion for summary affirmance. Furthermore, the briefs do not specify the evidence applicable for each appellee. For example, these districts were dismissed in April, 1984. Yet, the briefs use, without specification, later adduced evidence against these districts. An unfair weaving and borrowing of facts or language from orders and records that apply to different parties is presented. That practice required us to expend substantial effort trying to review unfamiliar and irrelevant evidence that was never admitted while these districts were parties. Nor is the Court apprised of the record applicable to these districts. To have responded fully to such a briefing tactic would have required literally a retrial of a trial that consumed over 6 months, over 140 witnesses and over 50,000 total pages of transcript, depositions and exhibits. The proposed findings submitted by these defendants were 500 pages. These districts offer the Court a transcript summary of several hundred pages to aid in a record review if the case is going to be retried in the appellate court. We realize that the Court, and our public-institution clients, have probably been dealt a fait accompli in these briefing tactics. These districts responded the best they could with their limited pages and time. We will proceed on the assumption the Court will take this objection along with the districts' motion for summary affirmance or with the rest of the case. No future litigant or judicial panel should be required to deal with or respond to pretrial briefs and evidentiary arguments which ignore the facts found by the trial judge in 105 pages of findings. It is difficult to deal intellectually with the actual issues in this context. We know the Court will not retry the case on the appellate level. But, if there is any question concerning factual issues, we request the opportunity to submit a response to any such concern or to file our own responsive version of all Mr. Robert St. Vrain September 23, 1985 Page 4 facts supportive of our clients. If the dismissal of these defendants is affirmed, we suggest that an award of attorney fees to respond to our adversaries' briefs may be in order. It can be parenthetically noted that the NAACP amicus brief cites and relies upon a recently.published article by one of plaintiffs'-appellants' appellate lawyers on the supposed liability of our clients in this case. Putting aside whether the publication should have occurred, we do not believe the article should be proffered or cited as a balanced discussion. Certainly, it should not be used as a vehicle for extra briefing of issues that may or may not have been preserved before this Court. Citation to the article amounts to reliance on a brief which is beyond the page limits the Court attempted to prescribe for this appeal. This particular amicus brief should also not be considered for the additional reason it attempts to present a clearly erroneous issue not preserved by any other appellant. That practice is not permitted. See Preservation Coalition, Inc, v. Pierce, 667 F.2d 851 (9th Cir. 1982). Finally, we note that the lawyers' committee and the Kansas City SCLC amicus brief cites as supporting authority a recent article by Judge Heaney. Because this appeal is going to be heard en banc, we regret very much that our adversaries rely upon that article. It evidences their belief that Judge Heaney's extrajudicial views may control. We recognize and respect Judge Heaney's great interest in this area of the law. We also fully believe and expect that Judge Heaney will separate whatever his personal views, as expressed in the article, may be and will give the proper deference to the district court's findings from which no appellate issue was preserved. Nor do we believe that the article was intended to be used as authority in support of propositions subject to review by the Court on which that judge sits. Nevertheless, our clients, who share Judge Heaney's goal of equal opportunity, are legitimately concerned that our adversaries relied on this article. Thus, we suggest that this amicus brief be stricken. Our clients would prefer not to be in the position of seemingly attacking any Judge's personal or extrajudicial views. From our clients' perspective, Judge Heaney and the clients should not have been placed in this position. We regret having to mention this issue but we do not think the extrajudicial views of a judge should be relied upon in a case of this nature. Enclosed herewith for filing are the required number of consolidated briefs and individual briefs for each district. Mr. Robert St. Vrain September 23, 1985 Page 5 The individual briefs, by the way, strive to deal with individual points for each district. They were not suited to the task of trying to ameliorate our concerns expressed in regard to our opposition's briefing tactics. Also enclosed for filing are the required copies of a motion for summary affirmance or in the alternative to strike plaintiffs' and KCMSD's statement of facts and supportive suggestions. Yours very truly STINSON, MAG & FIZZELL By GEF:sm cc: Michael Gans All Counsel Of Record