Application for Leave to Associate Co-Counsel and Declaration of Invalidity of "Rule as to Nonresident Attorneys"

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IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF MISSISSIPPI 

JACKSON DIVISION 

  

BEATRICE ALEXANDER, et al., 

Plaintiffs, 

Ve CIVIL ACTION 

HOLMES COUNTY BOARD OF 

EDUCATION, et al., 

NO. 3779 

Defendants. 

  

APPLICATION FOR LEAVE TO ASSOCIATE 
PAUL BREST, IRIS BREST, JACK GREEN- 
BERG AND MELVYN ZARR AS CO-COUNSEL 
FOR PLAINTIFFS AND FOR A DECLARA-~- 
TION OF INVALIDITY OF THIS COURT'S 
"RULE AS TO NONRESIDENT ATTORNEYS" 

Plaintiffs herein, and Marian E. Wright, their attorney, 

hereby respectfully move the Court for leave to associate Paul 

Brest, Iris Brest, Jack Greenberg and Melvyn Zarr in connection 

with this case and for other necessary and appropriate relief, 

and in support thereof would show unto the Court as follows: 

1, This case involves the federal constitutional rights 

of schoolchildren in the State of Mississippi to receive a 

desegregated education. Presently pending before the Court is 

plaintiffs’ motion for further relief, filed herewith, seeking 

more complete enforcement of their federal constitutional rights. 

 



  

2. Paul Brest and Iris Brest are members of the New York Bar 

who have lived in Mississippi for approximately one year, assisting 

Miss Wright in the preparation and conduct of this case, of other 

pending school desegregation cases in this district and of other 

litigation in the district seeking the vindication of the federal 

rights of Negro citizens. They plan to apply for admission to the 

Mississippi Bar when they become IE They have had con- 

siderable experience in school desegregation litigation, and have 

developed a substantial measure of expertise in this specialized 

field. 

Jack Greenberg and Melvyn Zarr are attorneys for the NAACP 

Legal Defense and Educational Fund, Inc., with headquarters in New 

York cine Hh The Legal Defense Fund was formed to assist Negroes 

to secure their constitutional rights by the prosecution of law- 

suits. It renders free legal aid to Negroes suffering injustice 

by reason of race or color who are unable, on account of poverty, 

to employ and engage legal aid on their own behalf. Its attorneys 

have handled such lawsuits in the federal courts of more than a 

dozen States during a period of almost thirty years. They parti- 

cipated in the preparation and presentation of, inter alia, Brown 
  

v. Board of Education, 347 U.S. 483 (1954); Cooper v. Aaron, 358 
  

U.S. 1 (1958); United States v. Jefferson County Board of Education, 
  

  

372 F.2d 836 (5th Cir. 1966), approved en banc, March 29, 1967, 

F.2d , cert. denied, U.S. , October 9, 1967. They 

have participated in more than 150 school desegregation cases in 

at least a dozen States since Brown v. Board of Education, supra. 
  

  

y/ Mississippi requires 15 months’ residence in the State before 

such application may be made. Miss. Code Ann. §8653, 8654. 

2/ Jack Greenberg is a member in good standing of, inter alia, 

the Bars of the Supreme Court of the United States, the United 

States Court of Appeals for the Fifth Circuit and the State and 

Federal Bars of New York, Melvyn Zarr is a2 member in good stand- 

ing of, inter alia, the Bars of the Suwreme Court of the United 

  

  

States, the United States Court of Appeals for the Fifth Circuit, 

the United States District Court for the Northern District of 

Mississippi and the State and Federal Bars of Massachusetts. 

 



  

They have heretofore assisted Miss Wright in the preparation of 

this case, of other pending school desegregation cases in this 

district and of other litigation in the district seeking vindica- 

tion of the federal rights of Negro citizens. For their partici- 

pation in these cases they receive no ize. 

The assistance as co-counsel of Paul Brest, Iris Brest, Jack 

Greenberg and Melvyn Zarr has heretofore been and continues to be 

essential to the full presentation of this and other cases seeking 

vindication of federal rights, as will more fully hereinafter 

appear. 

3. Miss Wright is presently counsel of record in a large 

number of cases, in both federal end state courts, seeking the 

vindication of the federal rights of Negro citizens. The number 

of such cases on the docket of this Court alone is more than a 

dozen, including 10 school desegregation cases. Miss Wright is 

the only nongovernmental attorney representing plaintiffs in cases 

seeking desegregation of the public schools within the State. For 

her participation in these cases she receives no fee. 

4. Presently pending before the Court are motions for further 

relief in this and other school desegregation cases. Relief, if 

it is to be effective, must be speedy. In order to prepare these 

cases for a hearing at the earliest possible date, Miss Wright 

requires the assistance of Paul Brest, Iris Brest, Jack Greenberg 

and Melvyn Zarr in the taking of depositions. Paul Brest, Iris 

Brest, Jack Greenberg and Melvyn Zarr are familiar with this case 

and with the other pending school desegregation cases in this 

district, have had long experience with such cases and have devel- 

oped an expertise therein. Because of the volume of depositions 

required for the effective presentation of these cases, and 

because of the manifest necessity for speed in their taking, the 

assistance of Paul Brest, Iris Brest, Jack Greenberg and Melvyn 

Zarr is essential to the vindication of the constitutional rights 

of the plaintiffs herein, 

 



  

5. There is a pronounced shortage of attorneys in Missis- 

sippi willing and able to handle civil rights cases in federal 

court for no fee. Because of this, not only has Miss Wright 

been required to associate nonresident attorneys, but other public- 

spirited attorneys from other jurisdictions have come to Missis- 

sippi to volunteer their services, in association with local 

counsel, to help enforce the federal civil rights of Negroes, 

civil rights workers, and all persons within the State. The 

Lawyers' Committee for Civil Rights Under Law and the Lawyers’ 

Constitutional Defense Committee are both serving within the State 

for this purpose. For the most part, the staff and volunteer 

attorneys of these organizations are not admitted to the Missis- 

sippi Bar, and cannot become admitted to the Mississippi Bar 

within the period of their tenure in the State, by reason of the 

fifteen-month residence requirement of Miss Code Ann. §§8653, 8654. 

6. The attorneys of the Legal Defense Fund have heretofore 

been singularly effective in securing the federal rights of 

Mississippians. For example, they have secured by federal court 

action the right to desegregated public blbaationss, the right 

to engage in peaceful civil rights Seonsirarine. 2 and even the 

right to advocate these rights without undue cepitaintis 

7. Unless Miss Wright is permitted to associate Paul Brest, 

Iris Brest, Jack Greenberg and Melvyn Zarr in this and the other 

pending school desegregation cases in which like motions are being 

filed contemporaneously with this one, the plaintiffs in this and 

the other cases will be severely handicapped in the effective 

assertion of their federal civil rights. Association is sought 

  

3/ See, e.g., Meredith v, Fair, 202 F. Supp. 224 (S.D. Miss. 
1962), rev'd 305 F.2d 341 (5th Cir. 1962); Evers v. Jackson Munici- 
pal Separate School District, 328 F.2d 408 (5th Cir. 1964): Single- 
ton v. Jackson Municipal School District, 348 F.2d 729 (5th Cir, 
1965); 355 F.2d 865 (5th Cir. 1966). 

  

  

4/ See, e.g., Guyot v. Pierce, 372 F.2d 658 (5th Cir. 1967): 
Burnside v. Byars, 363 F.2d 744 (5th Cir. 1966): Brown v. City of 
Meridian, 356 F.2d 602 (5th Cir. 1966). 
  

5/ See, e.g,, In the Matter of R. Jess Brown, 346 F.2d 903 
(5th cir. 1965); Alexander v. Cox, 348 F.2d 894 (5th Cir. 1965). 
  

  

gy 

 



  

so that depositions may be taken and other matters connected with 

these lawsuits may be pursued with necessary speed by attorneys 

familiar with the cases and expert in the legal issues that they 

present. Miss Wright cannot adequately prepare and present these 

cases without the association of the attorneys who have heretofore 

participated in them and whose association is sought by this 

action. 

8. This Court's "Rule As To Nonresident Attorneys", promul- 

gated September 26, 1967, purports to bai participation of Paul 

Brest, Iris Brest, Jack Greenberg and Melvyn Zarr in this and 

the other school desegregation cases in at least two respects: 

(a) Nonresident attorneys are not permitted to 

appear in more than one case per calendar 

year: 

(b) The motion day for the session of court at 

which these motions for further relief will 

likely be heard has already passed. 

In addition, Paul Brest and Iris Brest have not been "admitted to 

practice for at least five years before the Court" of any State, 

as required by paragraph 1 of the Rule. 

9. If this Court's "Rule As To Nonresident Attorneys" is 

applied in the premises to bar participation of Paul Brest, Iris 

Brest, Jack Greenberg and Melvyn Zarr then it is offensive to 

the Constitution and laws of the United States in the following 

respects: 

(2a) It violates the Privileges and Immunities 

Clause of the Constitution, because it 

unduly restricts a citizen with a federal 

claim or defense from engaging an out-of- 

state lawyer to collaborate with an in-state 

lawyer in bringing a federal lawsuit to 
6/ 

vindicate federal rights; 

  

6/ Spanos v. Skouras Theaters Corp., 364 F.2d 161, 168, 170 
  

(2nd Cir. 1966) (en banc). See also Lefton v. City of Hattiesburg, 
333 F.2d 280, 285 (5th Cir, 1964): Rules of a district court con- 
cerning admission to practice before it "may not be allowed to 
operate in such a way as to abridge the right of any class of 
litigants to use the federal courts.” 

- 5 - 

 



  

(bY It violates the First and Fourteenth 

Amendments to the Constitution by 

abridging rights of free expression 

and association for fibteationr 

(c¢) It violates proper principles for the 

governance of the federal district 

courts, as well as the mandate of 

42 U,S.C. §1988 (1964), requiring 

the adoption in civil rights matters 

of procedures and practices needful 

and useful for the vindication of 

federal civil Slgiiers 

(d) It violates 28 U.S.C. §2071 in that it 

is inconsistent with Acts of Congress 

securing the enforcement of federal 

civil rights, principally 42 U.S.C. 

§§1981, 1982, 1983 and 1985, 

WHEREFORE, plaintiffs and Marian E. Wright, their attorney, 

hereby respectfully move the Court as follows: 

1. For leave to associate Paul Brest, Iris Brest, Jack 

Greenberg and Melvyn Zarr as co-counsel for plaintiffs in this 

case; 

2. For leave to associate Paul Brest, Iris Brest, Jack 

Greenberg and Melvyn Zarr and other attorneys of the NAACP Legal 

Defense and Educational Fund, Inc. who are members in good stand- 

ing of the Bars of their respective jurisdictions as co-counsel 

in other pending and future matters wherein Negro citizens seek 

to vindicate their right to desegregated education, and to equal 

educational opportunities without regard to race, or other federal 

civil rights; 

  

2/ The Supreme Court of the United States has heretofore held 
that association for litigation "may be the most effective form 
of political association" and is an important form of political 
expression (NAACP v. Button, 371 U.S. 415, 429-31 (1963)). 

8/ See Lefton v. City of Hattiesburg, supra, note 5. 
  

“1B 

 



  

3. For a declaration of invalidity of this Court's "Rule 

As To Nonresident Attorneys"; and, 

4. For such other or further relief as is appropriate and 

just. 

Respectfully submitted, 

  

MARIAN E. WRIGHT 

538 1/2 North Farish Street 
Jackson, Mississippi 39202 

Attorney for Plaintiffs