Kelley v. Metropolitan County Board of Education of Nashville and Davidson County, TN Second Brief of Appellant/Cross-Appellees
Public Court Documents
April 16, 1986

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Brief Collection, LDF Court Filings. Kelley v. Metropolitan County Board of Education of Nashville and Davidson County, TN Second Brief of Appellant/Cross-Appellees, 1986. 94ca78b5-b99a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/eab5b2b6-72a1-4d85-8e9b-294eb8eb7855/kelley-v-metropolitan-county-board-of-education-of-nashville-and-davidson-county-tn-second-brief-of-appellantcross-appellees. Accessed April 27, 2025.
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IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT ROBERT KELLEY, et al., Plaintiffs, j )v- ) METROPOLITAN COUNTY BOARD OF j EDUCATION OF NASHVILLE AND ) DAVIDSON COUNTY, TENNESSEE, )et al., ) )Defendants, ) Third Party Plaintiffs, ) Appellees and Cross- )Appellants ) v* ) STATE OF TENNESSEE; LAMAR j ALEXANDER, GOVERNOR OF THE ) STATE OF TENNESSEE; ROBERT ) L. McELRATH, COMMISSIONER - )OF EDUCATION; and STATE ) BOARD OF EDUCATION, ) )Third Party Defendants, ) Appellants and Cross- )Appellees. ) Nos. 85-5837/38 SECOND BRIEF OF APPELLANTS/CROSS-APPELLEES W. J. MICHAEL CODY Attorney General & Reporter STEPHEN NUNN Assistant Attorney General 450 James Robertson Parkway Nashville, Tennessee 37219 (615) 741-7404 O F F IC E OF THE At t o r n e y G e n e r a l o f T e n n e s s e e 450 JAMES ROBERTSDN PARKWAY NASHVILLE, TENNESSEE 37219 TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES i i INTRODUCTORY STATEMENT 1 ISSUES PRESENTED FOR REVIEW...................... 1a ARGUMENT: I. WHETHER THE DISTRICT COURT WAS CORRECT IN HOLDING THAT THE ELEVENTH AMENDMENT BARS ANY AWARD OF MONETARY RELIEF TO THIRD-PARTY PLAINTIFFS PRIOR TO THE DATE OF THIRD-PARTY COMPLAINT WAS FILED................. 2 II. THE STATE TAKES EXCEPTION TO THIRD-PARTY PLAINTIFFS’ RELIANCE ON FACTUAL ALLEGA TIONS AS TO WHICH NO FINDINGS WERE ENTERED BY THE DISTRICT COURT............................... 5 CONCLUSION....................................... 9 CERTIFICATE OF SERVICE.......................... 9 - 1 - TABLE OF AUTHORITIES CASES CITED PAGE(S) Brinkman v. Gilligan, No. C-3-75-304 (S.D. Ohio 1985 )..................... 2,3 Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L. Ed . 2d 662 ( 1974)............................... 3 Evans v. Buchanan, 447 F.Supp. 982 (D. Del. 1978), affd 582 F . 2d 750 ................................... 6 Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 65 S.Ct. 347, 89 L.Ed. 389 ( 1945 )................................. 4 Green v. Mansour, 54 U.S.L.W. 4011 ( 1985 )............................. 3 Liddell v. State of Missouri, 731 F. 2d 1294 (8th Cir. 1984)....................... 7 Little Rock School District v. Pulaski County School District, 778 F. 2d 404 (8th Cir. 1 9 8 5)....................... 7 OTHER AUTHORITIES T.C.A. § 49-3-309 ................................... 5 617 F.Supp. 1147.................................... 2 INTRODUCTORY STATEMENT In this cross-appeal, the State, Third-Party Defen dant in this cause, has by stipulation assumed the role of appellant. The State's brief as appellant has been pre viously filed. The Metropolitan County Board of Education of Nashville and Davidson County, Third-Party Plaintiff, has filed a brief setting forth its response to the State's brief as appellant and, simultaneously, briefing its own cross appeal from a portion of the trial court's order. With the instant brief, the State submits to the Court both its position as cross appellee [Section I] and its rebuttal as appellant herein [Section II]. - 1 - UNITED STATES COURT OP APPEALS FOR THE SIXTH CIRCUIT ROBERT W. (This statement should be placed immediately preceding the statement of issues contained in the brief of the party.) K E L L E Y , P l a i n t i f f s e t a 1 M E T R O P O L I T A N COUNTY BOARD OF N A S H V I L L E AND D A V I D S O N T E N N E S S E E , e t a l OF E D U C A T I O N COUNTY. I D e f e n d a n t s , T h i r d - P a r t y P l a i n t i f f s , A p p e l l e e s and C r o s s - A p p e l l a n t s 5 TA TE OF TE N IVIES G0 Ve r n o r o f S t a McE LRA TH , Comm B OA RD OF RE GENT Th l r d Pa r t y De Pursuant to 6th r) NOS: 8 5 - 5 8 3 7 , 8 5 - 5 8 3 8 E, LAMAR A L E X A ND E R o f T e n n e s s e e , ROBERT1' Cr ° Z i s "d iS & Io st /r e a6 6 r &o r TXt e a f f il ia t io n s AND F INANCIAL INTEREST D e f e n d a n t s , Cir. R. 25, _______ THIRD-PARTY DEFENDANTS makes the following disclosure: (name of party) 1. Is said party a subsidiary or affiliate of a publicly owned corporation? NO If the answer is YES, list below the identity of the parent corporation or affiliate and the relationship between it and the named party: n/a Is there a publicly owned corporation, not a party to the appeal, that has a financial interest in the outcome? NO____ Lf the answer is YES, list the identity of such corporation and the nature of the financial interest: n/a aJ f Counsel) A s s i s t a n t A t t o r n e y G e n e r a l 6CA-1 STATE OF T E N N E S S E E 2/85 (Signature o ISSUES PRESENTED FOR REVIEW I. Whether the District Court was correct in holding that the Eleventh Amendment bars any award of monetary relief to Third-Party Plaintiffs prior to the date the Third-Party Complaint was filed. II. The State takes exception to Third-Party Plain tiffs' reliance on factual allegations as to which no findings were entered by the District Court. I -1a- ARGUMENT I. The District Court Was Correct in Holding that the Eleventh Amendment Bars Any Award of Monetary Relief bo Third Party-Plaintiffs Prior to the Date the Third-Party Complaint was Filed. Third-party plaintiffs (Metro) have appealed the District Court's ruling that the Eleventh Amendment prohibits a retroactive award of desegregation-related costs prior to March 16, 1981 - the date Metro filed its Third-Party complaint against the State. The State wishes to take this opportunity to assert formally its position, as appellee, that this element of the District Court's ruling, at 617 F.Supp. 1147, was correct. As grounds for its position, the State would rely upon, and incorporate by reference, all of the arguments and authorities set forth in Sections I and II of its brief as appellant herein. Third-Party Plaintiffs appear to acknowledge, at page 38 of their brief, that desegregation cases which have awarded wholesale retroactive monetary relief against states contained scant Eleventh Amendment analysis, if any. They, do however, cite Brinkman v. Gilligan, No. C-3-75-304 (S.D. Ohio 1985)[addendum A to State's Brief as appellant], > turning to Brinkman for the proposition that the Court there "specifically ordered that Ohio authorities in the Dayton School District were to share jointly and severally the cost - 2 - of the desegregation plan implemented years earlier," before any adjudication of state liability was entered. Third Party Plaintiffs Brief, p. 38. The first point to note in response to this reading of Brinkman is that, as the District Court noted, the state defendants were there being held as successors in office of earlier state officials named when the suit was initially filed. Successors in office of state officials are subject to § 1983 claims for injunctive relief brought against their predecessors. Brinkman v. Gilligan, supra, page 2, n.2. But the instant Tennessee officials cannot be held liable for injunctive relief applicable against their predecessors (assuming any would have been available if timely sought) because those predecessors were never named. Secondly, if indeed the District Court is awarding relief prior to the date of the initial valid injunction, it would appear to be in error under the Supreme Court's reason ing in Green v. Mansour, 54 U.S.L.W. 4011 (1985), and Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). See State's Brief as Appellant, pp. 19-22. Finally, it should be noted that the Ohio state offi cials in Bri nkma n were not, in fact, invoking the Eleventh Amendment. Rather, the District Court was simply discussing the issue sua sponte. Brinkman, supra, at page 8. - 3 - Metro's argument on the Eleventh Amendment issue (pp. 30-39 of its brief) reduces to the proposition that, essen tially on policy grounds, there should be an exception made to the Amendment's bar for desegregation cases. Metro is in effect asking this Court to make new law, on a scale com parable to that of Ex Parte Young itself. The Eleventh Amendment's explicit limitation on federal court jurisdiction is one of "compelling force," Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 467, 65 S.Ct. 347, 352, 89 L.Ed. 389 (1945); and the Court should exercise great care before embarking on such a course. Racial segregation is a reprehensible social evil and has been recognized as such by the federal courts and by the courts of Tennessee. Noxious as it is, however, damages resulting from racial segregation are not different from other types of damages which may arise through unconstitu tional conduct by states. See Justice Marshall, dissenting, in his Green footnote, 54 U.S.L.W. at 4016. No convincing rationale appears why the Eleventh Amendment could be vitiated in the context of desegregation, yet maintained in welfare benefits cases, prisoners' civil rights cases, or any other § 1983 cause of action. Therefore, to adopt Metro's approach extends the fiction of Young so far that the Amendment's purpose would be destroyed. -4- II. The State Takes Exception to Third-Party Plaintiffs' Reliance on Factual Allegations As to Which No Findings Were Entered by the District Court. In rebuttal to the brief filed by Third-Party Plaintiffs, the State has relatively little to add to its pre vious brief in terms of arguments or citations to authority. The State does, however, take exception to certain portions of Metro's brief where allegations of fact are made and relied on, although the District Court entered no findings thereon. The most significant instance of this is Metro's repeated criticism of revisions in the state transportation reimbursement formula. See Third-Party Plaintiffs' brief at pp. 7, 28. This is a reference to T.C.A. § 49-3-309. The district court entered no findings regarding this statutory formula. There was evidence presented that, far from penaliz ing Metro because of its desegregation burden, the formula in fact accorded it especially favored status. See State's Memorandum in Support of Motion for Summary Judgment, filed December 19, 1984, pages 32-34, and Affidavit of Dr. Joel Shore, Exhibit 10 thereto. The State objects to Metro's presentation of this statute on appeal. The State also takes strong exception to Metro's representations concerning the State's non-participation in the design of the current desegregation plan, at page 29 of its - 5 - brief. The State has explained this position in its Response to Metro's Motion for Partial Summary Judgment, filed February 12, 1985, at pp. 7-8. The District Court entered no findings on this point, and it is therefore not properly before this Court for review. Likewise, the District Court entered no findings on: the allegation that, in the 1950's, the then-Governor spon sored segregationist legislation; any speech made by former Governor Winfield Dunn; or Governor Alexander's proposed school voucher plan. The District Court certainly makes no finding that the state "conspired to thwart" Metro's desegregation ef fort, as alleged at page 26, n.28 of Third-Party Plaintiffs' Brief. The State takes exception to Metro's suggestion that it cited Evans v. Buchanan, 447 F.Supp. 982 (D. Del. 1978) , affd 582 F.2d 750, in a misleading or erroneous way. Evans does award some state support to the county, but it is a very modest amount and is awarded only for a relatively brief transitional period. 447 F.Supp. at 1038-39. The Court notes that it is "mindful of the State's objection to continually paying for open-ended ancillary relief." Id. at 1038. Again, however, no significant discussion of the Eleventh Amendment is presented. - 6 - The State denies Metro's assertion, at page 17 of its brief, that the State has admittedly never acted affir matively to remove vestiges of state imposed segregation in Nashville. See State's Response to Metro's Request for Ad mission #2 [Addendum A hereto]. The very funding which Third Party Plaintiffs and the District Court, in their misapplication of the Penick test, criticize, can well be viewed as an effort to assist in Metro's school desegregation. See also Affidavits attached as Exhibits 1-10 to Memorandum in Support of State Defendants' Motion for Summary Judgment filed December 19, 1984. As discussed in Sections IV and VI of its brief as appellant, the State contends that it has fully met its affirmative duty in the context of the Nashvi1le-Davidson County school desegregation situation. Finally, the State wishes to direct the Court's attention to the Eighth Circuit's recent decision in Little Rock School District v. Pulaski County School District, 778 F.2d 404 (8th Cir. 1985). The opinion requires the State of Arkansas to participate in funding the desegregation remedy. However, the Court of Appeals, while frequently referring to its earlier opinion in Liddell v. State of Missouri, 731 F.2d 1294 (8th Cir. 1984), never cites that case for the proposi tion advanced by Metro that pre-Brown constitutional and sta tutory provisions mandating segregation, standing alone, -7- support state liability in desegregation cases. Instead, the Court recites a series of findings ranging from President Eisenhower's having to send federal troops to Little Rock in 1957 to misconduct by the Arkansas real estate commission in disciplining a black realtor. No comparable findings have ever been made regarding conduct by the State of Tennessee, nor could they be. Like so many of the other cases relied on by Metro, this latest ruling does not address Eleventh Amendment issues. - 8 - CONCLUSION For the reasons above stated, and for the reasons stated in the State's previously filed brief in this cause, the District Court's order of August 14, 1985, granting Third-Party Plaintiff's Motion for Summary Judgment, should be reversed; and that portion of the District Court's order denying relief prior to the date the Third-Party Complaint was filed, should be affirmed. STEPHEN NUNN Assistant Attorney General 450 James Robertson Parkway Nashville, Tennessee 37219-5025 (615) 741-7404 CERTIFICATE OF SERVICE I hereby certify that a true and exact copy of the foregoing has been forwarded by first class U.S. mail, post age prepaid, to Mr. Avon Williams, Attorney at Law, 203 2nd Avenue North, Nashville, TN 37201, Mr. Theodore M. Shaw, NAACP Legal Defense Fund, 99 Hudson Street, 16th Floor, New York, NY 10013, and to William R. Willis, Jr. and Marian P. Harrison, WILLIS & KNIGHT, 215 2nd Avenue North, Nashville, TN 37201, on this the /fa day of April, 1986. STEPHEN_NUNN Assistant Attorney General - 9 - ADDENDUM A IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION ROBERT W. KELLEY, et al., ) )Plaintiff, ) )v. ) )METROPOLITAN COUNTY BOARD OF ) EDUCATION OF NASHVILLE & DAVIDSON COUNTY, TENNESSEE, et. al., Defendants and Third-Party Plaintiffs, v. STATE OF TENNESSEE; LAMAR ALEXANDER, Governor of the State of Tennessee; ROBERT L. MCELRATH, Commissioner of Education and STATE BOARD OF EDUCATION, Third-Party Defendants. ) )) ) ) ) )) NOS. 2094, 2956 ) JUDGE THOMAS A. WISEMAN, JR. ) ) ) ) ) ) ) ) ) DEFENDANT'S RESPONSE TO REQUEST FOR ADMISSIONS Come now the Third-Party Defendants and respond as follows to Defendants' Requests for Admissions. Request 1. Either before Brown vs. Board of Education or afterwards the State of Tennessee has never appropriated or spend a single state tax dollar for desegre gation in the public elementary, junior high, or high school grades in Tennessee. 1 Response. Defendants object in that this request pertains to the entire State of Tennessee rather than to Metropolitan Nashville Davidson County and that therefore the information sought is not reasonably calculated to lead to the discovery of admissible evidence. Request 2. Either before Brown vs. Board of Education or afterwards the State of Tennessee has never appropriated or spend a single state tax dollar for desegre gation in the Nashville or Davidson County public elemen tary, junior high, or high school grades. Response. Denied. The Tennessee General Assembly has appropriated many thousands of dollars for Nashville or Davidson County for transportation, capital outlay, and operation of local schools. Although these dollars have not been earmarked for desegregation as such many of these dollars have been expended by Nashville or Davidson County schools for the purposes of desegregation. Request 3. All expenditures by the State defen dants relating to desegregation in public, elementary, junior high, or high school grades, have been made through federal funds. Response. Defendants object in that this request pertains to the entire State of Tennessee rather than to 2 Metropolitan Nashville Davidson County and that therefore the information sought is not reasonably calculated to lead to the discovery of admissible evidence. Request 4. From 1955 to date, the state defendants have been fully aware of the racial makeup of elementary and secondary schools in Nashville and Davidson County, both with respect to faculty and student desegregation. Response. Admitted. Request 5. Before Brown v. Board of Education and continuing until the late 1960's, the state defendants classified elementary and secondary schools as white/negro and obtained reports from local school systems requiring the categorization of schools by white/negro. Response. Admitted except that defendants deny that such categorization continued until the late 1960's. Defendants submit that such categorization continued only until the early 1960's. Request 6. Since Swann v. Charlotte Mecklenburg in 1971, and othe decisions in the late 1960's and 1970's ordering bussing in school systems, the State Board of Education has publicly opposed forced bussing for desegrega tion purposes. 3 Response. Defendants admit that in 1971 and 1982 the State Board of Education adopted resolutions to this effect. Defendants deny any implication to this request that said opposition was a continuing proposition. Request 7. If a local school system violates requirements contained in the State Board of Education's "Rules, Regulations and Minimum Standards," sanctions may be imposed. These sanctions include the withholding of state funding. Response. It is admitted that the sanction of withholding of State funding may be imposed if a local school system violates requirements contained in the State Board of Education's "Rules, Regulations and Minimum Standards" but it is denied, as implied in this request, that other sanctions are available to the State Board of Education. Request 8. The State's transportation reimburse ment formula takes into account only numbers of students transported at the State's eligibility limits and the size of the school district. It has never taken into account either the actual per capita cost of transportation or the time or distance buses travel in a given district. Response. Admitted. 4 Request 9. Several attempts have been made in the legislature since 1955 to pass laws prohibiting school systems subject to court orders from being penalized finan cially or otherwise (under state programs or formulas) from the effects of the courts' orders, but all such efforts have failed. Response. Defendants object to this request on the grounds that it does not appear reasonably calculated to lead to the discovery of admissible evidence since unsuc cessful legislative proposals are entirely irrelevant and immaterial to any question of liability of the defendants. Request 10. State defendants have never taken into account local schools systems undergoing desegregation in their state funding formulas. Response. Denied. The State Department of Education has taken into account local school systems undergoing desegregation in its state funding formula. Shortly after the court order of 1972, the state authorized a seventh and eighth grade located on one campus to be paired with a ninth grade on a separate campus as one junior high school. This enabled the school to be funded as a junior high school which, prior to 1977, was funded at a higher level than an elementary school. See the attachments hereto. 5 Request 11. Prior to Brown v. Board of Education, had a local school system or any employee thereof sought to integrate its public schools, that system or the individuals requiring integration would have been subject to state pro secution. Response. Denied in that defendants can not admit that individuals "would" have been subject to prosecution. Request 12. After Brown v. Board of Education, the expressed State policy regarding integration and desegrega tion was to tell the local school systems that it was their problem. Response. Denied. Request 13. With the exception of desegregation and bussing for desegregation purposes, the State regulates every area of local school administration. Response. Denied. The state legislature has vested the authority to local Boards of Education to operate the schools. The State Board of Education regulates only in a broad sense of setting standards and only in certain areas. Request 14. In reference to page one of the Xeroxed materials provided the Board by the state defendants 6 in response to the first request for production of documents (letter of October 24, 1966 from Warf to Taylor), the only positive action in local school districts referred to in the last paragraph in that letter relates to monitoring necessi tated by the receipt of federal funds. Response. Defendants object to this request in that it seeks interpretation of a letter, the signatory of which is no longer Commissioner of Education or a defendant in this cause. Defendants submit the document speaks for itself. Request 15. All documents to which the Metro politan Board of Education was directed in the State's responses to the Board of Education's request for production (two requests) came from the files of the state defendants and the state defendants had knowledge of their contents. Response. It is admitted that all documents to which the Metropolitan Board of Education was directed in the State's responses to the Board of Education's request for production (two requests) came from the files of the state defendants. It is denied that the state defendants had knowledge of the contents of these files. These defen dants are persons who have been in office for only a brief portion of the time during which the referenced documents were generated and the individual defendants have not had 7 occasion to search these files and obtain knowledge of their contents. Request 16. The Tennessee State Department of Education has statewide responsibility in assisting local school systems effecting an orderly and constructive tran sition in the process of achieving school desegregation and equal educational opportunities. Response. Defendants object in that this request pertains to the entire State of Tennessee rather than to Metropolitan Nashville Davidson County and that therefore the information sought is not reasonably calculated to lead to the discovery of admissible evidence. Request 17. The attached documents are com pilations made by or used by the State Board of Education, and describe the wide variety of legislation that is pro posed or passed by the State relating to education. (Exhibit A). Response. Denied. The attached documents were neither made by nor used by the State Board of Education. Request 18. The Tennessee State Legislature has the ability and constitutional authority to pass statutes regulating every aspect of local education. Accordingly, it could, if it so chose, pass statutes requiring and funding 8 desegregation, supporting racial integration or the elimina tion of one race schools. Response. Admitted, but the constitutionality of any such statutes would be subject to judicial review. Request 19. Prior to Brown v. Board of Education, segregation in education was a state matter and desegrega tion or integration was punishable and condemned by state, not local law. Response. Defendants object to this request in that to accurately respond they would be required to review local ordinances for hundreds of entities for a period of at least the late 1800's to the mid-1950's such a requirement is manifestly unduly burdensome and unjust. Request 20. The statutes specified in the state defendant's answer to interrogatory two (first set of interrogatories) (that is, sections 49-1770, (1976) and 49-2170 (1975)) are the only statutory enactments that have been passed which the state defendants claim were designed to promote integration in public education. Response. Admitted. Request 21. The actions described by the state defendants in answer to interrogatory two (first interroga 9 tories to the state defendants), are the only instances wherein the state contends that it acted affirmatively to promote or aid desegregation. Response. Defendants object to this request in that it is not limited to the educational context in the grades K-12 and it therefore is not reasonably calculated to lead to the discovery of admissible evidence in that it seeks information not relevant to the pending action. The issue of desegregation occurred in other areas in addition to education. Request 22. Prior to Brown v. Board of Education and for some time afterwards, the state maintained two separate structures for the administration of negro public education and white public education. The negro public ele mentary and secondary schools came under the separate divi sion of negro education, its predecessors and successors. Response. It is admitted that prior to Brown v. Board of Education the state maintained two separate struc tures for the administration of negro public education and white public education and that the negro public elementary and secondary schools came under the separate division of negro edcuation, its predecessors and successors. It is denied that this system continued for some time after Brown v. Board of Education and it is explicitly averred that 10 after 1954-1955 the State Department of Education no longer maintained a division of negro education. Request 23. After Brown v. Board of Education, until the passage of the Civil Rights Act of 1964 and the concomitant restrictions on the use of federal funds, the state defendants maintained a hands-off policy in regard to elementary and secondary school desegregation, with the exception of the continued maintenance and further promulga tion of pro-segregationist statutes. Response. Denied in that no "pro-segregationist statutes" were maintained or promulgated by defendants after Brown v. Board of Education. Defendants submit that any state statute which could be construed as calling for segre gation of the public schools of Tennessee have been declared unconstitutional by the federal courts and were therefore void and cannot be considered to have been maintained or further promulgated by defendants. Defendants further deny that they maintained a "hands-off" policy in regards to desegregation of elementary and secondary schools in that the Department of Education did provide some information to local education agencies during that time period. Request 24. None of the state defendants have ever suggested or supported legislation, regulations, or policies designed to foster and support the elimination of one race 11 schools in this state's public elementary and secondary schools. Response. Defendants object to this request on the grounds that the information sought does not appear reason ably calculated to lead to the discovery of admissible evi dence. See also response to request number 9. Respectfully submitted, W.J. MICHAEL CODY Attorney General and Reporter R. Stephen D6ughty // Deputy Attorney General' \/ 450 James Robertson Parkway Nashville, Tennessee 37219 (615) 741-6440 SbepTfen 'Nunn Assistant Attorney General 450 James Robertson Parkway Nashville, Tennessee 37219 (615) 741-1730 12 CERTIFICATE OF SERVICE I hereby certify that a true and exact copy of the foregoing Defendant's Response To Request For Admissions has been forwarded by first class U.S. mail, postage prepaid, to William R. Willis, Jr. and Marian F. Harrison, 215 2nd Avenue North, Nashville, Tennessee 37201 and Avon N. Williams, Jr., 203 2nd Avenue North, Nashville, Tennessee 37201, this A a y of October, 1984. 13