546 F.2d 768 (8th Cir. 1976), 76-1228, Liddell v. Caldwell

Docket Nº:76-1228.
Citation:546 F.2d 768
Party Name:Craton LIDDELL, a minor, by Minnie Liddell, his mother and next friend, et al., Appellees, and The Board of Education of the City of St. Louis, State of Missouri, et al., Appellees, v. Earline CALDWELL, a minor, by Lillie Caldwell, her mother and next friend, et al., Appellants.
Case Date:December 13, 1976
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 768

546 F.2d 768 (8th Cir. 1976)

Craton LIDDELL, a minor, by Minnie Liddell, his mother and

next friend, et al., Appellees,

and

The Board of Education of the City of St. Louis, State of

Missouri, et al., Appellees,

v.

Earline CALDWELL, a minor, by Lillie Caldwell, her mother

and next friend, et al., Appellants.

No. 76-1228.

United States Court of Appeals, Eighth Circuit

December 13, 1976

Submitted Nov. 10, 1976.

Rehearing and Rehearing En Banc Denied Jan. 17, 1977.

Louis R. Lucas, Memphis, Tenn., for appellants; Barbara B. Dickey, Ratner, Sugarman,

Page 769

Lucas, Salky & Henderson, Memphis, Tenn., David A. Lang, Clayton, Mo., and Forriss D. Elliott, St. Louis, Mo., Nathaniel Jones, New York City, on brief.

John H. Lashly and Joseph S. McDuffie, St. Louis, Mo., for appellee, Bd. of Education; Paul B. Rava and Kenneth C. Brostron, Lashly, Caruthers, Thies, Rava & Hamel, St. Louis, Mo., on brief.

Joseph S. McDuffie and William P. Russell, St. Louis, Mo., on brief, for appellees, Craton Liddell and others.

Before LAY and BRIGHT, Circuit Judges, and TALBOT SMITH, District Judge. [*]

LAY, Circuit Judge.

In February 1972 five black parents and their minor children who were enrolled in the public schools in the city of St. Louis, filed a class action on behalf of themselves and others similarly situated, charging racial segregation and discrimination in the operation of the St. Louis Public Schools. They named as defendants the Board of Education of the City of St. Louis, the board members, the superintendent and district superintendents of the school system. On October 3, 1973, after discovery proceedings by all parties, the trial court allowed the case to proceed as a class action. By public notice the court invited other interested parties to intervene on or before December 1, 1973. No one applied for intervention. 1

On February 24, 1974, the court requested that the parties file a written stipulation of facts. This was done on June 7, 1974. Exhibits filed with the stipulation have been continually supplemented to provide statistical data for the school years up to 1975-1976. On December 24, 1975, the parties entered into a consent decree which was approved by the trial court, the Honorable James H. Meredith, presiding. At that time the court ordered publication of the judgment to advise all members of the class and other interested parties that they should file any objections thereto by January 16, 1976. Six black pupils, through their parents and friends, and the St. Louis chapter of the NAACP filed objections and sought to intervene. 2 The original plaintiffs and defendants resisted both the objections and the intervention motion. Following a hearing, Judge Meredith overruled the objections. He denied the application for intervention on the grounds that it was untimely and that the class was adequately represented. He also found that the decree was adequate for the present time and gave all interested parties the opportunity to make additional suggestions to the court from time to time. A timely appeal was taken from that order.

The only issue before us concerns the right of the appellants-petitioners to intervene. Although the petitioners urge us to pass upon the constitutional validity of the decree as well, we decline to do so for at least two reasons. First, the decree does not represent a plenary desegregation plan and concededly is interlocutory in scope. Second, the record is deficient as to investigation and scope of possible solutions and plans to implement an effective desegregation order within the St. Louis school system.

After reviewing the record, we conclude that the district court, which has retained jurisdiction of the case, erred in denying

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the appellants' motion to intervene. For the reasons stated, we do not pass upon the validity of the decree. Nonetheless, reference to the substance of the decree and to the claims of the respective parties is essential to the understanding of our ruling.

The petitioners seek intervention under Fed.R.Civ.P. 24(a)(2). 3 Intervention of right is required under the rule when: (1) the petitioners assert an interest in the subject matter of the primary litigation; (2) there exists a possibility that the petitioners' interest will be impaired by the final disposition of the litigation; (3) there exists a danger of inadequate protection by the party representing the petitioners' interests; and (4) the petitioners have made timely application to intervene.

The parties generally agree that petitioners assert valid interests in the subject matter and that unless their interests are adequately represented those interests could be seriously harmed. We note public interest in the operation of a lawful school system and the fact that students and parents, regardless of race, have standing to challenge a de jure segregated school system. See Johnson v. San Francisco Unified School Dist., 500 F.2d 349 (9th Cir. 1974); Smuck v. Hobson, 132 U.S.App.D.C. 372, 408 F.2d 175 (1969). The denial of the motion to intervene in the present case rests on the alleged lack of timeliness and a finding that the class is already adequately represented.

Recent pronouncements by the Supreme Court 4 and this court 5 govern our consideration of petitioners' timeliness in seeking to intervene. The guiding factors include consideration of the progression of the suit, the reason for the delay, and the possible prejudice any delay due to intervention might cause the existing parties. More significant, however, is the rule that "(t)imeliness is to be determined from all the circumstances" of the case. NAACP v. New York, 413 U.S. 345, 366, 93 S.Ct. 2591, 2603, 37 L.Ed.2d 648 (1973). Although precedents under Rule 24(a)(2) are helpful, each case must rise and fall on its own peculiar facts and circumstances.

In the present case, it is urged that the petitioners were given ample opportunity to participate in the case from the beginning and were, in fact, invited to intervene before December 1, 1973, by the trial court. Ordinarily this factor standing alone would weigh heavily toward our sustaining the trial court's discretion in declining a petition to intervene made some three years later. See United States v. Associated Milk Producers, Inc., 534 F.2d 113 (8th Cir. 1976). However, in the present case other factors must also be considered.

First, the reason given by petitioners for their failure to intervene earlier is that they concurred with the initial claims, seeking desegregation of the St. Louis school system, asserted by the original plaintiffs. Petitioners claim that...

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