Plaintiffs' Brief in Support of Motion for a Temporary Restraining Order and for Contempt

     [||d58dbf13-a448-4fa6-9c91-8b0eea526032||] IN THE 

UNITED STATES DISTRICT COURT 

YOR THE 

WESTERN DISTRICT OF NORTH CAROLINA 

CHARLOTTE DIVISION 

  

JAMES E. SWANN, et al., 

Plaintiffs, 

Vv. 

CHARLOTTE-MECKLENBURG BOARD CIVIL, ACTION 

OF EDUCATION, et al., 

NO. 1974 i 

Defendants, 

and 

MRS. ROBERT LEE MOORE, et 

al, 

Additional Parties-Defendant. 

  

  
PLAINTIFFS' BRIEF IN SUPPORT OF THEIR 

MOTION FOR A TEMPORARY RESTRAINING 

ORDER AND FOR CONTEMPT   
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Plaintiffs have moved the Court to add additional parties defendant, | 

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to enjoin certain state court proceedings which seek to prevent implementa -! 

tion of orders of this Court and to enjoin the defendants and those requested 

to be added as parties defendant from taking any further actions or steps 
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which would inhibit or prevent implementation of the orders of this Court. 

Plaintiffs have also prayed for an order finding the individual members of 

the School Board and the Superintendent in contempt of the orders issued 

 



    
  

  

by this Court. Plaintiffs submit the following brief in support of their 

motion. 

Statement of the Case   

Following this Court's order of February 5, 1970, the defendants 

and parties requested to be added as parties defendant have engaged in con- 

duct and instituted state court proceedings solely to prevent or prohibit 

implementation of the Court's order. Plaintiffs have set forth in their 

motions the steps taken by each of the defendants, including the two State 

court proceedings which seek to enjoin the local School Board from comply- 

ing with the constitutional directives of this Court. Following the second 

restraining order of the Mecklenburg Superior Court, the School Board 

elected not to take any further steps to comply with the orders of this Court. 

Even prior to the second restraining order of the Mecklenburg Superior 

Court, the defendants had failed to take the appropriate steps directed by 

the Court for implementation of the Court's order. Rather, defendants 

engaged in activities seeking to prohibit implementation of the order. 

Additionally, the local School Board and its ERR LANE, have simply 

refused to do what the Court has directed. Faced with this open defiance, 

the Court has the power to and plaintiffs respectfully submit that the Court 

should immediately vacate the State court proceedings, enjoin any further 

steps by defendants which may prevent implementation of this Court's orders 

and issue an order finding the defendants Charlotte~-Mecklenburg Board of 

Education and its Superintendent in contempt and order appropriate relief. 

Argument I   

THIS COURT HAS AUTHORITY 

TO AND SHOULD VACATE THE 

STATE COURT INJUNCTION AND 

SHOULD ENJOIN ANY FURTHER 

ACTION IN THE STATE COURT 

PROCEEDINGS. THIS COURT 

SHOULD ALSO ENJOIN DEFENDANTS 

  

 



  
  

  

  

FROM TAKING ANY FURTHER 

STEPS WHICH WOULD PROHIBIT 

OR PREVENT IMPLEMENTATION 

OF THE ORDERS OF THE COURT. 

The Court is empowered to issue an injunction staying all state 

court proceedings and restraining the parties from taking any steps to en- | 

force the orders of the state courts so as to "protect or effectuate” the 
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judgments of this Court. 28 U,8.C. $2233, On several prior occasions 

in school desegregation litigation, federal courts have issued injunctions 

restraining the enforcement of conflicting state court injunctions. 

Thomason v. Cooper, 254 F.2d 808 (8th Cir. 1958); Meredith v. Fair, 328 
    

F.2d 5386 (bth Cir, 1962; en banc); Bush v. Orleans Parish School Board, 
  

187 ¥. Supp. 42 (E.D. La. 1960), (three-judge court), affirmed per curiam 

365 U.S. 569 (1961); Graham v. Evangeline Parish School Board, W.D. La. 
  

Civ. No. 11053, October 20, 1989. These cases make it plain that the 

federal courts are entitled to issue stay orders prohibiting state judicial 

interference with federal court judgments decreeing school desegregation. 

Such orders may be directed to the parties to any such state court litiga- 

tion or where necessary to the state judges as in Bush, supra, 187 F.   

Supp. at 46. 

It is manifest that the terms of the several orders issued by 

judges of the Superior Court of Mecklenburg County restrain the defendant 

School Board and school officials from performing certain acts required 

by this Court's orders. This Court should protect its prior judgments by 

  

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"Section 2283 provides inter alia that "A court of the United 

States may not grant an injunction to stay proceedings in a state 

court except ... to protect or effectuate its judgments.'" The 

quoted exception, enacted in the Judicial Code revision of 1948, 

was designed to enable federal courts to protect against relitiga- 

tion of matters previously decided, by enjoining state court pro- 

ceedings. See lA Moore's Federal Practice, 2319-2320, 2614- 

2616. As stated in Moore's, supra: ''It is now clear that a federal 

court, which includes a court of appeals, may, in the exercise of 

equitable discretion, protect or effectuate its judgment, by enjoin- 

ing proceedings in other courts, federal or state, that constitute 

  

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an appropriate stay order enjoining all further state court proceedings 

  forthwith. Because irreparable harm may be done by the state court 

orders delaying compliance with this court's desegregation order unless 
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this matter is disposed of forthwith a temporary restraining order should 

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issue now, 

As the Supreme Court reiterated in Cooper v. Aaron, 358 U.S. 
  

1, 17-19, it has been clear since Marbury v. Madison, (US) 1 Cranch 
  

137,177 that the "federal judiciary is supreme in the exposition of the law 

of the Constitution" (358 U.S. at 18). As the Court said in Cooper: 

Every state legislator and executive and 

judicial officer is solemnly commited by 

oath taken pursuant to Art. 6, cl 3, "to 

support this Constitution. .' Chief Justice 
Taney, speaking for a unanimous Court 

in 1859, said that this requirement re- 

flected the framers' "anxiety to preserve 

it [the Constitution] in full force, in all its 

powers, and to guard against resistance to 

or evasion of its authority, on the part of 

a state. ...'" Ableman v. Booth (US 21 How 
508, 524, 16 1..ed 1689, 178, 
  

No state legislator or executive or judicial 
officer can war against the Constitution with- 

out violating his undertaking to support it. 

Chief Justice Marshall spoke for a unanimous 
Court in saying that: "If the legislatures of 

the several states may, at will, annul the 

  

footnote 1 cont'd --   
relitigation of matters previously adjudged, or in some other, 

manner impairs the effect of the judgment." (at 2615-2616, foot- | 
notes omitted). | 

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"In its order of February 5, 1970, the Court granted these 

defendants considerably more time for compliance than had the 

Supreme Court or the United States Court of Appeals for the 

Fourth Circuit in their recent decisions. See Alexander v. 

Holmes County Board of Education, 396 U.S. 19 (1969); Carter 

v. West Feliciano Parrish School District, 0.8... , 24 1..64 

2d 4777; Nesbit v. Statesville City Board of Education, 418 F.2d 
1040 (4th Cir. 1969); Stanley v. Darlington County School District, ! 

F.2d (4th Cir. 1970). These defendants have stopped doing 

anything to comply with their duty to desegregate "at once'. The 
Court of Appeals said on December 2, 1970 that "Further delays 

will not be tolerated in this circuit." Nesbit v. Statesville City 

  

      

  

    
  

  

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judgments of the courts of the United 

States and destroy the rights acquired 

under those judgments, the Constitution 

becomes a solemn mockery. ...' United 
States v. Peters (US) 5 Cranch 115, 136, | 

3 1.e453, 59... -¥ | 

Cooper, supra, 358 U.S, at 18, 
  

  
  

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footnote 2 cont'd 

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Board of Education, supra at 1042. That promise to these plain- 
tiffs requires immediate action. a) 
    

      
 



  
    

Argument II   

THE COURT SHOULD ISSUE AN 

ORDER FINDING THE MEMBERS OF 

THE CHARLOTTE-MECKLENBURG 

BOARD OF EDUCATION AND ITS 

SUPERINTENDENT IN CONTEMPT 

OF THY ORDERS OF THIS COURT. 

~ On four different occasions plaintiffs have moved the Court for an 

order requiring the defendants to show why they should not be held in con=- 

tempt. On each occasion the Court has reserved decision. In December, 

1969 the Court found it necessary to appoint its own consultant to assist the 

Court in preparing a plan for desegregation of the Charlotte~Mecklenburg 

schools which it had on three previous occasions directed the school board 

to prepare. On February 5, 1970 the Court directed the school board and 

the Superintendent to implement a plan which the Court found would comply 

with the Constitution. Following the order, the school board and its 

Superintendnet have simply refused to take appropriate steps for implemen=- 

tation of the order. Now, with a patently unconstitutional State court 

injunction, the school board and the Superintendent have elected to ignore 

this Court's order because they found the State court injunction "more 

' It is clear that the Supremacy Clause of the Constitution of acceptable. ' 

the United States prohibits State officials, State Legislatures and State 

judges from attempting to interpose State laws to vitiate federally protected 

rights. It is equally clear that the local school board and its Superintendent 

have simply ignored the directives of this Court and their obligations under 

the Constitution of the United States. Their actions and conduct warrant a 

finding now by this Court that they are and have been in contempt. 

A. A person subject to an injunction is required to obey the order 

of the Court implicitly, completely and unquestioningly until such time as 

oY 

  
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the decree is modified or dissolved, and this would hold true even if. the 

injunction had been wrongfully issued. United States v. Mine Workers, 
  

330 { 5 S. 258, . 

B. Persons enjoined must take vigorous policing steps to insure 

that the injunction is obeyed by subordinates or others under their control 

for the duty to obey is non-delegable. Wilson v. United States, 221 U.S.   

361; United States v. Cox, F. Supp. , ll Race Relations Law Reporter   

269, 287 (N.D. Miss. 1965). 

C. Good intentions and lack of willfulness are no defense for 

intent is immaterial in civil contempt cases, the purpose of such pro- 

ceedings being remedial. McComb v. Jacksonville Paper Company, 336 
  

U.S. 187, 193. Advice of counsel is likewise no defense. Mcllhenny v.   

Bulliard, 33 FF. 2d 978, 982 (W.D. La. 19238); United Sitales v. Cox, supra.     

D. In civil contempt cases, including those involving racial 

discrimination, Courts generally impose imprisonment and substantial 

daily fines pending full compliance with the orders of the Court. United 

States v. Mine Workers, supra; Meredith v. Fair, 313 F. 2d 532, 534 
  

(5th Cir., 1862). 

E. Under the circumstances involved in this case, the failure 

of the local Board of Education and its Superintendent to take appropriate 

steps for implementation of the orders of this Court and their election 

to simply ignore this Court's order and follow a State court injunction are 

clearly contemptuous and warrant immediate relief. Failure to do so 

would not only prevent implementation of the orders of the Court but would 

also further deny the constitutional rights of plaintiffs. 

WHEREFORE, plaintiffs resnaciully submit that the Court should 

immediately vacate the orders of the State court and should enjoin any 

further proceedings by the defendants in the State court actions. The 

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Court should further temporarily restrain the defendants from taking any 

other steps which would proves or inhibit implementation of the Court's 

orders. The Court should also find all members of the Charlotte- 

Mecklenburg Board of Education and the Senociniontent of the Charlotte- 

Mecklenburg schools in civil contempt and should impose appropriate 

relief. 

Respectfully submitted, 

\, col . 

2D) 
4 1 Zi Gg Poa, n Pr o Ke To. Teg 

   
  

CONRAD O. PEARSON 

203 1/2 East Chapel Hill Street 

Purham, North Carolina 

CHAMBERS, STEIN, FERGUSON AND 

LANNING 

216 West Tenth Street 

Charlotte, North Carolina 

JACK GREENBERG 

JAMES M. NABRIT, III 

10 Columbus Circle 

New York, New York 10019 

Attorneys for Plaintiffs 

  

   



  
    

CERTIFICATE OF SERVICE 

The undersigned hereby certifies that he has this day served copies of the 
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foregoing Brief upon counsel for defendants and counsel for additional 

parties-defendant by hand delivering copies of same to: 

Brock Barkley, Esq. 

Law Building 

Charlotte, North Carolina 

William J. Waggoner, Esq. 

Weinstein, Waggoner, Sturges & Odom 

1100 Barringer Office Tower 

Charlotte, North Carolina 

Gaston H. Gage, Esq. 

Crier, Parker, Poe, Thompson, 

Bernstein, Gage and Preston 

1014 Law Building 

Charlotte, North Carolina 

Honorable Robert Morgan 

Attorney General 

State of North Carolina 

Raleigh, North Carolina 

James RB, Carson, Jr., ¥sq. 

Law Building 

Charlotte, North Carolina 

William H. Booe, Esq. 

Law Building 

Charlotte, North Carolina 

Benjamin S. Horack, Esq. 

806 East Trade Street 

Charlotte, North Carolina 

and 

Whiteford S. Blakeney, Esq. 

North Carolina National Bank Building 

Charlotte, North Carolina 

This 2nfl_ day of March, 1970. 

  

’s 
AES FL NP   
      

Ittorney for Plaintiffs [||d58dbf13-a448-4fa6-9c91-8b0eea526032||]