State Defendants' Brief in Opposition to Motion for Intervention as Party Plaintiff Filed by Organization of School Administrators and Supervisors
Public Court Documents
June 9, 1972

8 pages
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Case Files, Milliken Hardbacks. State Defendants' Brief in Opposition to Motion for Intervention as Party Plaintiff Filed by Organization of School Administrators and Supervisors, 1972. bcccc8e1-52e9-ef11-a730-7c1e5247dfc0. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/fa5123e2-1d28-4cd6-80c5-9539bbb89f80/state-defendants-brief-in-opposition-to-motion-for-intervention-as-party-plaintiff-filed-by-organization-of-school-administrators-and-supervisors. Accessed April 22, 2025.
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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) . -3- 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 4 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 5 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). 6 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 7 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. 8