Motion of the State of Tennessee to Intervene and for Additional Time to File Brief; Memorandum in Support

    IN THE UNITED STATES COURT OF APPEALS FOR THE
SIXTH CIRCUIT

CLEAMTREE GARNER, et al. , 
Appellants,

V  .

MEMPHIS POLICE DEPARTMENT 
et al.,

Appellees.

NO. 81-5605

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE 
WESTERS DISTRICT OF TENNESSEE 

WESTERN DIVISION

MOTION OF THE STATE OF TENNESSEE TO INTERVENE AND 
FOR ADDITIONAL TIME TO FILE BRIEF

JERRY L. SMITH 
Assistant Attorney General 
450 James Robertson Parkway 
Nashville, Tennessee 37219 
(615) 741-6439

OF COUNSEL:
WILLIAM M. LEECH, JR. 
Attorney General & Reporter

OFFICE OF THE

Attorney General of Tennessee

NASHVILLE, TENNESSEE 37219



MAY IT PLEASE THE COURT:

Comes now the State of Tennessee and moves this 
Court to allow the State to intervene as a party herein for 
the purpose of addressing the alleged unconstitutionality of 
Tenn. Coide Ann. § 40-7-108.

A memorandum of law and affidavit are submitted in 
support hereof.

Resp^ctf ully- SyiibmitXed /

1 .4[. /SMITH, /JE^IRY H. /SN^ITH^
Assistant Attorney General 
I 450 James Robertson Parkway 
Nashville, Tennessee 37219 
(615) 741-6439

CERTIFICATE OF SERVICE

I hereby certify that true and exact copies of the 
foregoing Motion have been forwarded to Mr. Jack Greenberg, 
Mr. James M. Nabrit, III, Mr. Steven L. Winter, Suite 2030, 
Ten Columbus Circle, New York, New York 10019, and Mr. 
Walter L. Bailey, Jr., Suite 901, Ten Oake Building, 161 
Jefferson Avenue, Memphis, Tennessee 38103, Attorneys for 
Plaintiff-Appellant, and Mr. Clifford D. Pierce and Mr. 
Henry L. Klein, Attorneys for Defendants-Appellees, this 

( ll day of April, 1983. ^

JERR^/ L. S^ITH 
Ass^tant Attorney General

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IN THE UNITED STATES COURT OF APPEALS FOR THE
SIXTH CIRCUIT

CLEAMTREE GARNER, et al., 
Appellants,

V .

MEMPHIS POLICE DEPARTMENT 
et al. ,

Appellees.

NO. 81-5605

MEMORANDUM IN SUPPORT OF MOTION TO INTERVENE AND FOR ADDITIONAL TIME TO FILE BRIEF

In support of the foregoing motion the State of 
Tennessee would submit the following;

1. In the instant appeal the constitutionality of 
Tennessee Code Annotated Section 40-7-108 has been called 
into question by the plaintiffs-appellants.

2. On January 3, 1983, the Office of the Attorney 
General of the State of Tennessee was telephonically 
informed by the Office of the Clerk of the Sixth Circuit 
Court of Appeals that the Court had requested the State of 
Tennessee to file a brief amicus curiae on or before January 
13, 1983, and that the case was set for oral argument on 
January 18, 1983.

3. A review of the records of this office indica-

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tes that, prior to the information received on January 3, 
1983, the Office of the Attorney General of the State of 
Tennessee was never notified pursuant to 28 U.S.C. § 2403(b) 
by any federal court nor by any party that the constitu­
tionality of a state statute affecting the public interest 
had been drawn into question in this case. Thus the State 
of Tennessee had no opportunity to present evidence on this 
issue nor argue same in the district court. These oppor­
tunities are afforded the states, whose statutes are called 
into constitutional question, by 28 U.S.C. § 2403(b).

4. On January 3, 1983, the Office of the Attorney 
General advised the Office of the Clerk of this Court that 
in order to make an informed decision as to how to respond 
to the Court's request, copies of relevant appellate 
pleadings and the district court opinion would, at minimal, 
be needed by the Attorney General's Office.

5. The briefs of the parties and the opinion of 
the district court were received by the Office of the 
Attorney General of Tennessee on January 12, 1983. 
Preliminary review of these documents indicated that, in 
order to make an informed and appropriate response to the 
Court's request for an amicus brief, a review of the appen­
dix was necessary.

6. On January 12, 1983, the Office of the Attorney 
General of Tennessee moved this Court for production of the

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appendix, to postpone oral argument and to grant the State 
additional time in which to file an appropriate response.

7. On January 26, 1983, this Court entered an 
order denying postponement of oral argument and ordering 
counsel for apellant to forward a copy of the appendix to 
appellee. (Evidently the order was intended to state to the 
Office of the Attorney General of Tennessee). The State of 
Tennessee was given fourteen (14) days from the receipt of 
the appendix to file an amicus brief.

8. On March 23, 1983, the Office of the Attorney 
General notified the Office of the Clerk of this Court that 
the appendix had not yet been received.

9. On March 28, 1983, counsel for appellant for­
warded the appendix to the Office of the Attorney General 
and same was received on April 4, 1983.

10. A review of the appellate pleadings and a pre­
liminary review of the appendix indicates that the State of 
Tennessee should move to intervene as a party to these pro­
ceedings pursuant to 28 U.S.C. § 2403(b); and not merely 
participate as an amicus curiae.

11. The State of Tennessee is entitled to intervene 
pursuant to 28 U.S.C. § 2403(b) which on its face provides
for intervention, in the present circumstances, of the state's 
attorney general, "In any action, suit, or proceeding in a 
court of the United States . . . "  It has been held that

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subsection (a) of § 2403, which is identical in all respects 
except that it applies to statutes of the United States and 
to the Attorney General of the United States, applies to any 
stage of the proceedings including on appeal and warrants 
the granting of intervention under the present circumstan­
ces. See; Wallach v. Lieberman, 366 F.2d 254 (2nd Cir. 
1966); Thatcher v. Tennessee Gas Transmission Co., 180 P.2d 
644, 648 n.7 (5th Cir. 1950); See also; Glidden Co. v. 
Zdanok, 368 U.S. 814, 82 S.Ct. 56, 7 L.Ed.2d 22 (1961) (U.S.
Supreme Court certifies question to attorney general under 
28 U.S.C. § 2403(a); at 368 U.S. 885, 82 S.Ct. 140
(1961) (United States' motion to intervene granted).

In Finch v. Mississippi State Medical Assoc., Inc., 
585 F.2d 765, 779 (5th Cir. 1978); the Court indicated that 
the reasoning in the above-cases applied equally to §2403(b) 
cases involving the state attorneys general. The State of 
Tennessee therefore respectfully moves the Court to allow 
the State to intervene as a party for purposes of addressing 
the question of the constitutionality of Tenn. Code Ann. § 
40-7-108.

12. The State of Tennessee also moves the Court for 
an additional twenty-one (21) days from and after April 18, 
1983, the present due date for the State to file as amicus 
curiae. In support of this motion the State would show that 
from the above the State believes it should be allowed to

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participate as a full party herein on the question of the 
constitutionality of Tenn. Code Ann. § 40-7-108. As such 
the undersigned to whom this case has been assigned must 
thoroughly review the appendix herein which consists of five 
(5) large volumes and some 1,134 pages. This must be done 
so that counsel for the State, which was not a party below, 
can familiarize himself with the facts of the case and the 
parameters of the constitutional issue raised. In view of 
the huge appendix, the research needed to complete an ade­
quate brief on the issue raised, and the fact that the 
undersigned has many other cases on appeal and in litigation 
which simultaneously require attention, the undersigned 
respectfully submits the requested extension is warranted, 
and will not cause undue hardship to any party.

I

Respectfully; submitted,,T f i r j

.. /SM̂ ITH '
. :ant Attorney General James Robertson Parkway 

Nashville, Tennessee 37219 
(615) 741-6439

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CERTIFICATE OF SERVICE

I hereby certify that true and exact copies of the 
foregoing Memorandum have been forwarded to Mr. Jack 
Greenberg, Mr. James M. Nabrit, III, Mr. Steven L. Winter, 
Suite 2030, Ten Columbus Circle, New York, New York 10019, 
and Mr. Walter L. Bailey, Jr., Suite 901, Ten Oake Building, 
161 Jefferson Avenue, Memphis, Tennessee 38103, Attorneys 
for Plaintiff-Appellant, and Mr. Clifford D. Pierce and Mr. 
Henry L. Klein, Attorneys for Defendants-Appellees, this

/ day of April, 1983. ■n

JERRY l / S M T T H 3 
fP id s is ta ln t Attorney General

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IN THE UNITED STATES COURT OF APPEALS FOR THE
SIXTH CIRCUIT

CLEAMTREE GARNER, et al., 
Appellants,

V .

MEMPHIS POLICE DEPARTMENT 
et al. ,

Appellees.

NO. 81-5605

A F F I D A V I T

I, Jerry L. Smith, after having been duly sworn 
hereby swear and affirm that the factual allegations in the 
foregoing memorandum are true and correct tp the bes^ of my 
knowledge and belief. / /

.JERRY ii'. SMITH ^ssi^ant Attorney General

STATE OF TENNESSEE 
COUNTY OF DAVIDSON

Sworn to and subscribed before me this I > 3 ^ day of April, 
1983.

NOTARY PUBLIC * MY OOMMI S'S I ON'EXPIRES :

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