Opposition to Motion for Intervention

    * % 
BROWN AND SANDERS 

ATTORNEYS AT LAW 

MACON, MISS. 39341 

  

January 21, 1970 
ERNEST L. BROWN 

PHONE 601 726-4276 

RAYE SANDERS 

Honorable Jack Greenberg, Attorney 
Honorable Norman J. Chachkin, Attorney 
Honorable Melvyn Zarr, Attorney 

Suite 2030 - 10 Columbus Circle 
New York, New York 10019 

Re: United States of America, et al, Appellant 
VS. 
Noxubee County School District, et al, Appellee 
Nos. 28030 and 28042 

Gentlemen: 

You will find enclosed copy of Opposition to Motion for 
Intervention in the above captioned cause, the original 
of which I have this day mailed to the clerk in New Orleans 
to be filed. 

Yours very truly, 

To Woo. * VZ Ae 

Rt 

27 Srona 

CR 

Encl. 

 



  

UNITED STATES 

COURT QF APPEALS 

FOR THE PI1FTH CIRCUIT 

UNITED STATES OF AMERICA, er al 

Appellant 

Vs. CIVIL ACTION No. 28,030 

and No. 28,042 

NOXUBEE COUNTY SCHOOL. DISTRICT, et al 

Appellee 

OPPOSITION TO MOTION FOR INTERVENTION 
  

COME NOW A. R. Koon, County Superintendent of Education, 

W. E. Hummer, Joe R. Miller, Sam Featherston, James C. Avery, and 

P. E. Moore, Members of the County Board of Education of Noxubee 

County, Mississippi, Appellees, by their Attorney, and file objec- 

tions to William Bradley, John Bankhead, Edmond Rogers, Leon Tate, 

Eddie Rice, Arlegus Tate, Hoover Oliver, Willie Dent, and Willie 

Lester Cole, being allowed to intervene, which objections are as 

follows: 

I 

Movents have no right to intervene in this cause under Rule 

24(a) (2) for the reason that Movents are adequately represented by 

The United States and by the National Association for the Advance- 

ment of Colored People, While doubtlessly some members of the 

Colored Community are dissatisfied with certain aspects of the 

conduct of the lawsuit by The United States, so also are some 

members of the White Community dissatisfied with the conduct of 

the lawsuit by the Appellees herein, No person who is familiar 

with this action from its inception down to date, can honestly say 

that The United States has not adequately and diligently represented 

the interest of the Black citizens of Noxubee County, Mississippi; 

The United States having vigorously prosecuted this cause against 

  

 



  

these Appellees in both the District Court and this Court contin- 

uously and incessantly since the year 1967, utilizing scores of 

able and skilled counsel from the Department of Justice. Appellees 

further state that, by order of the Court entered on the 25th day 

of November, 1969, the National Association for the Advancement of 

Colored People Legal Defense and Educational Fund, Inc., was ad- 

mitted in this cause as Amicus Curiae, and all parties to said cause 

were directed in said order to serve copies of all pleadings on the 

National Association for the Advancement of Colored People Legal 

Defense and Educational Fund, Inc., at both its New York office 

and its Jackson, Mississippi, office; that pursuant to said order, 

copies of the very motion for additional relief and order granting 

additional relief, modifying said plan of desegregation, which 

Movents object to, were served by United States Mail, postage pre- 

paid on the said National Association for the Advancement of Colored 

People Legal Defense and Educational Fund, Inc., at Doth its New 

York office and its Jackson, Mississippi, office. A copy of the 

Order of this Court Admitting the National Association for the Ad- 

vancement of Colored People Legal Defense and Educational Fund, Inc., 

to this cause as Amicus Curiae is herewith presented and marked 

"Exhibit AY 

Appellees submit that the adequacy of the representation of 

the Black citizens of Noxubee County, Mississippi, by The United 

States of America and the N.,A.A.C.P. cannot be successfully questioned. 

4 § 

Movents have no right to intervene under Rule 24(b){2). 

Movents allege that, although the number of black and white stu- 

dents to be placed in each of the schools named in the order is 

shown, there is no showing as to the racial composition of the 

students enrolled in the various subjects and grades; that there 

is no breakdown as to the number of black and white students in 

  

 



  

each of the subjects and grades offered in the entire school 

system so that this Court can determine whether racial discri- 

minatory practices will continually be perpetuated, notwithstand- 

ing the racial mixing of the students referred to in the plan of 

the Noxubee County School District. This averment by the Movents 

indicates that Movents have not studied the record in said cause. 

A very quick and cursory reference by the Court to the Motion for 

additional relief filed in said cause, and the Order of the Court 

granting same, will reveal that the Court had before it all the 

necessary information to make any determination as to the racial 

composition of the various attendance centers in the Noxubee County 

School District. 

‘Under Rule 24(b)(2), the intervention of a party is permis- 

sive and in the discretion of the Court, and must be timely. 

Appellees submit that in view of the able and adequate representa- 

tion aforded the Movents by The United States and the National 

Association for the Advancement of Colored People, Movents will not 

be benefitted by the intervention, if granted. In all probability, 

if Movents are admitted to this action as parties, duplicitous liti- 

gation would ensue and further disruption of the educational process 

in said school district would avail. Appellees aver that it is 

high time that Appellees are permitted to engage in the educational 

process of the children of Noxubee. County School District, rather 

than devote their entire time to the defense of Court actions by 

parties newly and belatedly entering this cause. 

111 

The Motion to Intervene is not timely. A motion to intervene 

either under Rule 24(a)(2) or Rule 24(b)(2) must be timely. There 

might have been some question as to the untimeliness of this Motion 

to Intervene if it had been filed prior to the Order admitting the 

National Association for the Advancement of Colored People Legal 

Defense and Educationgl Fund, Inc., as Amicus Curiae. However, 

    

 



  

since that order was entered, it would seem that the sufficiency 

of the representation of the Black Community would be unquestioned 

and that the admission of Black individuals as parties in this 

cause would be entirely superfluous. Whether this Motion to Inter- 

vene is timely is a matter committed to the sound discretion of 

this Court. Washington Gas and Light Company v. Raker, C.A. 195], 
  

191 F.24 29, 901UzS. App. DC. 93, 

Appellees respectfully submit that the Motion to Intervene 

ought to be denied. 

Respectfully submitted, 

  

ERNEST L. BROWN, Attorney at Law 
Macon, Mississippi 39341 

Counsel of Record for Appellees 

    

 



  

CERTIFICATE OF MAILING 
  

1, Ernest:1l.. Brown, Attorney of record for Defendants, 

Noxubee County School District, et al, do hereby certify that 1 

have this day mailed, by United States Mail, postage prepaid, a 

true and correct copy of the foregoing Opposition to Motion for 

Infervention, and Exhibits, to the following: 

Honorable Griffin B. Bell, Judge 
United States Court of Appeals 

for the Fifth Circuit 
P. O. Box 845 
Atlanta, Georgia 30301 

Honorable Lewis R. Morgan, Judge 
United States Court of Appeals 

for the Fifth Circuit 
P.O. Box 739 
Newnan, Georgia 30263 

Honorable Homer Thornberry, Judge 
United States Court of Appeals 

for the Fifth Circuit 
200 West Eighth Street 
Austin, Texas 78701 

Honorable Jerris Leonard 
Assistant Attorney General 

Civil Rights Division 
United States Department of Justice 
Washinston, D. CC. 20530 

Honorable Edward S. Christenbury, Attorney 
United States Department of Justice 
Room 960, Milner Building 
Jackson, Mississippi 39201 

Honorable Robert Hauberg 
United States District Attorney 
Pe. O., Box 299] 
Jackson, Mississippi 39205 

Honorable R. Jess Brown, Attorney 
125% North Farish Street 
Jackson, Mississippi 39201 

Honorable A. F. Summer 
Attorney General of Mississippi 
New Capitol Building 
Jackson, Mississippi 39205 

Honorable Melvyn R. Leventhal, Attorney 
Honorable Reuben Anderson, Attorney 
Honorable Fred lL. Banks, Jr., Attorney 

538% North Farish Street 
Jackson, Mississippi 39202 

Honorable Jack Greenberg, Attorney 
Honorable Norman J. Chachkin, Attorney 
Honorable Melvyn Zarr, Attorney 

Suite 2030, 10 Columbus Circle 
New York, New York 10019 

WITNESS MY SIGNATURE, this the 2lst day of ‘January, 1970. 

IR 

  

  

  

ERNEST L. BROWN 

  

 



  

U. S. COURT OF ACFEALS 

FiLED 
\ A 104! 

IN THE UNITED STATES COURT OF appEaLs NOY 261829 

Pe gL SIRI EDWARD W, WADSWORTIE 

CLERK   

NOS. 28030 & 28042 

  

UNITED STATES OF AMERICA, 

Plaintiff-Appellant 

ve. 

HINDS COUNTY SCHOOL BOARD, ET AL, 

Defendants-Appellees 

BEATRICE ALEXANDER, ET AL, 

Plaintiffs-Appellants 

Vv. 

HOLMES COUNTY BOARD OF EDUCATION, ET AL, 

Defendants-Appellees 

and all cases consolidated and included in 

the Court's Order of November 7, 1969 

  

Upon consideration of the Motion to Proceed As Amicus 

Curiae filed herein by the N.A.A.C.P. Legal Betense and Educa- 

tional Fund, Inc., and being fully advised in the premises, 

It is ORDERED, ADJUDGED and DECREED that the motion 

of the N.A.A.C.P. Legal Defense and Educational Fund, Inc. to 

participate in the following of these cases as amicus curiae 

“3 
is GRANTED: 

  

3 
by 

§ 

"EXHIBIT A" 

  

  

 



    

United States of America 

Ve. iC. A. 

Hinds County School Board, et al. 

Lee, et al. 

Vv. [C.A. 

United States of America 

Evans 

United States of America 

Ve [C.A. 

Kemper County School Board, et al. 

United States of America 

Ve [C.A. 

Natchez Special Municipal 

Separate School District, et al. 

United States of America 

7, IC.A. 

No. 

No. 

No. 

No. 

No. 

Marion County School District, et al. 

United States of America 

V. [C.A. 

South Pike County Consolidated 

School District, et al. 

United States of America 

Vv. JC. A. 

Neshoba County School District, et 

United States of America 

Ve. [C.A. 

Noxubee County School District, et 

Doms 

  

No. 

No. 

al. 

No. 

al. 

4075 (J) ] 

2034 (H) ] 

1373 (E)] 

1120 (w) ] 

2178 (H) ] 

3984 (J) ] 

1396 (E) ] 

1372 (E) ] 

 



  

United States of America 

Ve {iC.A. No. 1367(F)] 

Lauderdale County School District, et al. 

United States of America 

Vs [Cc.A. No. 2199{1)}] 

Columbia Municipal Separate 

School District, et al. 

United States of America 

Ve. [C.A. No. 3983(J)] 

Amite County School District, et al. 

United States of America 

v. [C.A., No, 2148(1)} 

Covington County School District, et al. 

United States of America 

Ve | [C.B. No." 2216 (H)] 

Lawrence County School District, et al. 

United States of America 

v. [C.A. Ro. 42921(3)] 

Lincoln County School District, et al. 

United States of America 

Ve. [C.A. No. 1368(E)] 

Philadelphia Municipal Separate 

School District 

United States of America 

ve. IC. A. No. 4256 (14)] 

Franklin County School District, et al, 

I Ma 

  

   



  

It is further ORDERED that all pleadings, memoranda, 

Orders, etc. in those cases be served at the time of filing by 

any party upon amicus by service upon both its Mississippi counsel 

and New York counsel. 

IT IS SO ORDERED. 

£ 
— 

This ~ > day of November, 1969. 

. Forigrpns B Bai 
Griffin B. Bell 

United States Circuit Judge 

  

  

Homer Thornberry 

United States Circuit /Jhdge 

i 

  

Lewis R. Morgan 

United States Circuit Judge