State Defendants' Brief in Opposition to Motion for Intervention as Party Plaintiff Filed by Organization of School Administrators and Supervisors

    UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION

RONALD BRADLEY, et al,

and
Plaintiffs,

ORGANIZATION OF SCHOOL 
ADMINISTRATORS AND SUPERVISORS,

Applicant for Intervention 
as Plaintiff,

v s .

WILLIAM G. MILLIKEN, et al,
Civil Action No. 35257

Defendants,
DETROIT FEDERATION OF TEACHERS, 
LOCAL #231, AMERICAN FEDERATION 
OF TEACHERS, AFL-CIO,

Defendant-Intervenor,
DENISE MAG DOWS KI, et al,

and
Defendants-Intervenors,

ALLEN PARK PUBLIC SCHOOLS, et al,
Defendants-Intervenors,

and
GROSSE POINTE SCHOOLS,

Defendant-Intervenor,
and

SOUTHFIELD PUBLIC SCHOOL,
Defendant-Intervenor,

and
SCHOOL DISTRICT OF THE CITY OF 
ROYAL OAK,

and
Defendant-Intervenor,

KERRY GREEN, et al,
Defendant-Intervenor.

_______________ _________________________ /
STATE DEFENDANTS' BRIEF IN OPPOSITION TO MOTION FOR 
INTERVENTION AS PARTY PLAINTIFF FILED BY ORGANIZATION 
OF SCHOOL ADMINISTRATORS AND SUPERVISORS.



Introduction

This brief is filed on behalf of defendants, William G. 
Milliken, Governor of the State of Michigan, Frank J. Kelley,
Attorney General of the State of Michigan, State Board of Education, 
and John W. Porter, Superintendent of Public Instruction, sometimes 
referred to herein as state defendants, in opposition to the motion 
for intervention as party plaintiff filed on behalf of the Organization 
of School Administrators and Supervisors, hereinafter sometimes 
referred to as applicant. The state defendants urge that applicant 
fails to meet the requirements for intervention set forth in FR Civ 
P 24. Thus, this Court should deny applicant's motion for intervention 
as a party plaintiff. State defendants have no objection to partici­
pation by applicant as amicus curiae.

State defendants have not responded to applicant's motion 
for injunctive and affirmative relief and motion to show cause since 
the question of intervention has not yet been determined by this Court. 
The state defendants submit that such motions are lacking in merit 
and reserve the right to respond to them by way of a response and 
brief in the event this Court grants applicant's motion for intervention 
as a party plaintiff.

ARGUMENT
I.

APPLICANT'S MOTION FOR INTERVENTION AS A PARTY 
PLAINTIFF FAILS TO MEET THE REQUIREMENTS FOR 
INTERVENTION CONTAINED IN FR CIV P 24.

A. Applicant has failed to file a pleading 
setting forth the claim for which inter­
vention is sought as a party plaintiff.

Rule 24 (c) of FR Civ P provides, in pertinenet part, as
follows:

"A person desiring to intervene shall serve a 
motion to intervene upon the parties as provided 
in Rule 5. The motion shall state the grounds 
therefor and shall be accompanied by a pleading 
setting forth the claim or defense for which 
intervention is sought. . . . "  [Emphasis supplied]



Applicant seeks to intervene as a party plaintiff. Yet, 
contrary to the mandatory requirement for intervention quoted above, 
applicant has filed no complaint setting forth the claim, whether 
under the Constitution or statutes of the United States, for which 
intervention is sought. Further, applicant has not purported to 
adopt by reference plaintiffs' complaint as its own. In addition, 
a bare reading of FR Civ P 7 reveals that the motion for injunctive 
relief filed by applicant is not considered a pleading within the 
Federal Rules of Civil Procedure. In short, applicant seeks both 
intervention and sweeping relief without bothering to set forth its 
legal claims against defendants as a basis for considering, let 
alone granting, applicant such broad relief.

The rule is settled that one may not.properly intervene 
by merely filing a petition for intervention. The requirement of 
FR Civ P 24(c) is met only by filing a pleading stating a cause of 
action against the defendant.

As unanimously stated by the Court in Kentucky Home.
Mut. Life Ins. Co v Puling, 190 F2d 797 (CA 6, 1951):

" . . .  The so-called intervention by some of them, 
after the entry of the judgment and as provided 
by the judgment, has likewise conferred no rights
as yet the ones so intervening. The inter­
vening petition merely states that they have 
insurance under the group policy in question, 
This is not a pleading stating a cause of action
against the Insurance Company, and does not comply
with the provisions of Rule 2 4(c), Rules of Civil
Procedure.
D.C., 2 F.R.D. 502

v De 
505, appeal dismissed 5

’ r

Cir.
136 F.2d 55; Babcock v Town of Erlanger, D.C.E.D. 
Ky., 34 F. Supp. 293, 295. Merely adding their 
names to the record, after judgment, does not 
entitle them to the benefits of the judgment." 
[Emphasis supplied] p 80 3

Thus, applicant's motion for intervention as plaintiff must 
be denied for failure to file a pleading setting forth the claim for 
which intervention is sought as required by FRXIV P 24(c) .

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T" 1



B. Applicant's Motion for Intervention is not timely.

Intervention, whether by right or permission, must be sought 
by a "timely application" under FRCivP 24. It is manifest that 
applicant's motion for intervention as a party plaintiff fails to 
meet this basic requirement.

Plaintiffs commenced this cause in August, 1970. Applicant 
has obviously been aware of the existence of this cause from its 
inception. Some 22 months later, when the membership of applicant's 
organisation perceived a possible threat to its economic well being, 
we find applicant then, and only then, seeking to intervene.

During this 22-month period there have been several appeals, 
the incer vent ion of numerous parties, and a lengthy trial, producing 
an already voluminous record. This Court, in its "Ruling on Issue 
of Segregation" on September 27, 1971, has declared the rights of 
the parties and determined that plaintiffs have a right to judicial 
ruling.

Subsequently, this Court has held extensive hearings on the 
question of remedy. Presently this Court has under advisement the 
question of a metropolitan remedy.

Thus, the rights of the parties have been declared and this 
Court will soon speak on the ultimate matter of remedy. In this 
context, it is clearly untimely for applicant to move now for inter­
vention as a party plaintiff. As stated in Swann v Charlotte-Meeklen- 
burg Board of education, 402 US 1 (1971) , "*** One vehicle can carry 
only a limited amount of baggage ***". (p 22)

Under FRCivP 24, the question of timeliness is reposed in the 
souna discretion of the trial judge. The Sixth Circuit Court of 
Appeals has affirmed a denial of intervention as being untimely 
where intervention v/as not sought until the trial was substantially

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completed. FMC Corporation v Keizer Equipment Co, 433 F2d 654, 656 
(CA6, 1970). Here, the trial has long since been completed without 
any attempt by applicant to intervene.

Intervention at this time will clearly be prejudicial to the 
state defendants herein. This desegregation case has been fully 
litigated, as among the original parties, subject to appellate re­
view' on the finding of de jure segregation as to the original 
defendants. These defendants should not now be compelled to defend, 
in this Court, against the requests for relief made by applicant, 
unsupported by the required pleading setting forth the claim for 
which intervention is sought. If the requirement of a "timely ap­
plication" contained in FRCivP 24 is to have any meaning, this Court 
should deny applicant's motion for intervention as a party plaintiff 
made at this late date.

C. Applicant has claimed no significant legally protectable 
interest as required by FRCivP 24(a) for intervention 
by right.____________ _______ ____ ___

It must first be emphasized that Bradley v School Board 
of the City of Richmond, 325 F Supp 828 (E.D. Va., 1971), relied 
upon heavily by applicant, did not deal in any manner with the inter­
vention of school administrators or any legal claims by school 
administrators. Thus, that case has no application to applicant's 
motion for intervention herein.

Intervention under FRCivP 24(a) requires a significant legally 
protectable interest. Donaldson v United States, 400 US 517, 531 
(1971); Diaz v Southern Drilling Corp, 427 F2d 1118, 1124 (CA 5, 1970) 
sub nom Trefina, A.G. v United States, cert. den. 400 US 878 (1970). 
Applicant herein has not filed the required pleading setting forth 
the claim for which intervention is sought. The "interest" asserted

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here is the economic we11 being of applicant's membership concerning 
continued employment and compensation. Clearly, this gives rise 
to no legally protectable right undei' the Constitution or statutes 
of the United States. Applicant has not alleged any federal claim 
on behalf of its members in the motion for intervention. There is 
simply no federally protected right to continued employment with the 
Detroit Public Schools.

Applicant's membership may have contractual or tenure rights 
to continued employment and compensation arising under the laws of 
the State of Michigan. To the extent such rights exist, the courts 
of the State of Michigan are perfectly competent to enforce such 
rights. Bruinsma v Wyoming Publie Schoo1s , 38 Mich App 745 (1972); 
Dodge v Board of Education of The Saginaw City School District,
384 Mich 346 (1971). The disposition of this action will in no way 
impair or impede applicant's ability to assert and pursue those 
legal rights, to the extent they exist, in the state courts.

In addition, to the extent that applicant is concerned about 
a financially viable desegregation plan, it is clear that this as­
serted interest will be more than adequately represented by counsel 
for the original plaintiffs. It should be observed that counsel 
for plaintiffs has indicated approval of all motions filed by appli­
cant. Further, plaintiffs' prior motion for an order compelling 
the expenditure of funds for the purchase of school busses is proof 
positive of plaintiffs' representation in the area of finance. Finally 
it must be emphasized that plaintiffs and the class they represent 
will have an opportunity in August, 1972, to vote "yes" on proposed 
mi11age increases for the Detroit Public Schools.

To summarize, applicant has no significant legally protectable 
interest as required for intervention of right under FRCivP 24(a).

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Any contractual or tenure rights applicant's members may have 
under state lav; raay be asserted in tire courts of the State of 
Michigan. These rights clearly will not be. impaired or impeded 
by the disposition of this action. Thus, applicant's motion 
for intervention must be denied under FRCivP 24(a).

D. Applicant fails to meet the requirements of 
FRCivP 24(b) for permissive intervention.

Rule 24(b) of the FRCivP provides, in pertinent part, as 
follows:

"(b) Permissive Intervention. Upon timely appli­
cation anyone may be permitted to intervene in an 
action: *** or (2) when an applicant's claim or
defense and the main action have a question of law 
or fact in common. *** In exercising its discretion 
the court shall consider whether the intervention 
will unduly delay or prejudice the adjudication of 
the rights of the original parties." ’ (Emphasis supplied.)

Applicant has not filed a pleading setting forth the claim 
for which intervention is sought. Thus, there is no basis for 
determining whether applicant's claim and the main action have a 
common question of law or fact. Further, it is clear that idle eco­
nomic well being of applicant's membership does not involve the 
denial of any federally protected right to continued employment 
and compensation. There has been no federal claim and thus there 
can .be no common question of law or fact.

Moreover, intervention at this stage of the proceedings will 
unduly delay or prejudice the adjudication of the rights of the 
state defendants. This Court has declared plaintiffs' right to 
relief and is in the final stages of shaping the ultimate remedy 
subject only • to appellate review. The state defendants should 
not now be compelled to defend against new requests for relief by 
applicant in this Court while simultaneously engaging in appellate 
review of the determination of de jure segregation as among the

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original parties. For the reasons stated above, applicant has 
failed to meet the requirements for permissive intervention con­
tained in FRCivP 24(b).

WHEREFORE, the state defendants respectfully request this 
Honorable Court to deny applicant's motion for intervention as 
a party plaintiff.

Respect £ u1ly s ubmitted,

FRANK J. KELLEY 
Attorney General

Eugene Krasicky (J 
Assistant Attorney General

Gerald F . Young 
Assistant Attorney General

Attorneys for state defendants

Business Address:
Seven Story Office Building 
525 West Ottawa Street 
Lansing, Michigan 48913 
Telephone: (517) 373-1116

DATED: June 9, 1972.

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