Bradley v. Milliken

• Decision Date: 01 December 1987
• Docket Number: AFL-CI,I,No. 86-1487,86-1487
• Parties: , 41 Ed. Law Rep. 861 Ronald BRADLEY; et al., Plaintiffs-Appellees, Black Parents for Quality Education, and Ludington School Community Organization; et al., Proposed Plaintiffs Intervenors-Appellants, v. William MILLIKEN; et al., Defendants-Appellees, Detroit Federation of Teachers Local 231,ntervening Defendant- Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1186

828 F.2d 1186

8 Fed.R.Serv.3d 1189, 41 Ed. Law Rep. 861

Ronald BRADLEY; et al., Plaintiffs-Appellees Black Parents for Quality Education, and Ludington School Community Organization; et al., Proposed Plaintiffs Intervenors-Appellants, v. William MILLIKEN; et al., Defendants-Appellees Detroit Federation of Teachers Local 231, AFL-CIO Intervening Defendant- Appellee.

No. 86-1487.

United States Court of Appeals Sixth Circuit.

Argued Aug. 4, 1987.

Decided Sept. 18, 1987.

Rehearing and Rehearing En Banc Denied Dec. 1, 1987.

Thomas I. Atkins (argued), Brooklyn, N.Y., Jeanne E. Mirer, Detroit, Mich., for appellants.

George T. Roumell (argued), Theodore Sachs, Detroit, Mich., Horace Stone, Baltimore, Md., Janice L. Burns, Grover Hankins (argued), Paul Zimmer (argued), Asst. Atty. Gen., Lansing, Mich., for appellees.

Before MERRITT and RYAN, Circuit Judges, and CONTIE, Senior Circuit Judge.

CONTIE, Senior Circuit Judge.

Black Parents for Quality Education (BPQE), Ludington School Community Organization (LSCO) and approximately sixty individuals, appeal from the district court's denial of their motion to intervene in the advanced remedial stage of this Detroit school desegregation case. Proposed intervenors assert that they had a right to intervene under Rule 24(a) or, alternatively, that the district court abused its discretion in denying their motion for permissive intervention under Rule 24(b). Fed.R.Civ.P. 24(a), (b). For the following reasons, we affirm the district court's judgment.

I.

This complaint was initially filed as a class action suit on August 18, 1970, by parents and children in the Detroit public school system, as well as the Detroit Branch of the National Association for the Advancement of Colored People (NAACP) which was recognized as a party-plaintiff and a class representative. The complaint alleged that the Detroit School Board, the Superintendent of Public Instruction and various local and state officials had engaged in intentional racial segregation of the Detroit public schools. On prior appeals, state and local authorities were found liable for intentional discrimination, Bradley v. Milliken, 484 F.2d 215 (6th Cir.1973) (en banc), aff'd in part, 418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d 1069 (1974), and a desegregation plan incorporating the use of educational components was upheld. Bradley v. Milliken, 540 F.2d 229 (6th Cir.1976), aff'd, 433 U.S. 267, 97 S.Ct. 2749, 53 L.Ed.2d 745 (1977). More recently, in September 1985, we reversed a district court order terminating its jurisdiction over the community relations program, the uniform code of student conduct and the monitoring commission. Bradley v. Milliken, 772 F.2d 266 (6th Cir.1985), vacating 585 F.Supp. 348 (E.D.Mich.1984). We held that the district court had failed to provide the parties with adequate notice and a hearing regarding the propriety of terminating jurisdiction over the community relations program and the uniform code of student conduct; and, although the parties had been notified that changes in the monitoring commission's role were at issue, we determined that the district court's decision regarding the monitoring commission also could not be upheld since we had struck down one of the court's major premises for terminating jurisdiction over the commission. Id. at 272. Accordingly, we vacated the district court's order and remanded the case for further proceedings, returning the case to the status quo ante. We also granted the district court the limited discretion to enter an order which would provide for a smooth transition back to these revitalized programs.

The present controversy regarding the district court's denial of a motion to intervene stems from a relatively complex chain of events which we will only highlight here. On March 16, 1985, then-counsel of record for the plaintiff class, Thomas I. Atkins, filed with the district court a notification of his withdrawal as General Counsel for the NAACP and its Special Contribution Fund (SCF), and informed the court that Grover G. Hankins was his permanent successor as General Counsel who would be making an appearance on behalf of the NAACP and SCF in the near future. The notice continued: "It is my intent, with the approval of the Court, to remain in the case as a counsel for the certified class."

In the months following this court's 1985 remand order, Atkins continued to make appearances before the district court, and controversy continued to focus on the uniform code of student conduct, community relations program and monitoring commission. On November 12, 1985, two of the three judges withdrew from the panel assigned to the case, and the lawsuit proceeded before District Judge Cohn only. Although a hearing on this court's remand order was initially scheduled for December 1985, it was rescheduled for January 1986, following a status conference on November 19, 1985. Plaintiffs and intervening defendant Detroit Federation of Teachers then sought a writ of mandamus in this court asserting, inter alia, that the district court was not complying with the remand instructions because the case had not been returned to the status quo ante. This court denied the mandamus petition on April 9, 1986, reasoning that the arguments could be asserted on direct appeal.

On January 13, 1986, the day the hearing was scheduled to commence, the district court for the first time addressed the issue raised by attorney Hankins and fellow attorney Horace Stone as to which attorneys represented which plaintiffs. Hankins and Stone urged the court to rule that Atkins' notice of withdrawal of appearance, their appearance, and the history of the case established that they were lead counsel for the plaintiff class and that Atkins did not represent any party. The concern over who was lead counsel principally arose from a difference in opinion as to whether or how to enter into negotiation settlements with the Detroit School Board. Hankins was in favor of entering into settlement negotiations with the School Board and was not opposed to placing the Superintendent of Public Instruction in charge of the monitoring function, a plan which the district court expressly approved of. Hankins, in short, believed that an adversary relationship with the School Board was no longer beneficial, whereas Atkins believed Hankins' approach was not in the best interest of the plaintiff class. Atkins believed that anything short of an independent monitoring commission was inadequate to guarantee compliance with the remedial order, and that parents must continue to play an active role in the remedial stage.

The district court did not resolve this issue immediately, requesting the parties to provide it with more information regarding the NAACP's role in the litigation. In the meantime, settlement negotiations involving all attorneys continued.

Shortly thereafter at a status conference on January 21, 1986, Atkins, in the name of the plaintiff class, filed a motion to supplement class representatives. This motion was opposed by all other counsel of record, including Hankins and Stone.

A hearing to determine which counsel represented the plaintiff class was then held on January 28, 1986 Atkins asserted that the Detroit Branch of the NAACP had been withdrawn as party-plaintiff in 1974, and that he had accordingly represented the plaintiff in his individual capacity, not in his capacity as General Counsel of the NAACP and SCF. He argued that he should therefore be permitted to continue as lead counsel for plaintiffs given his expertise and familiarity with the issues.

On January 30, 1986, the district court entered an order addressing a number of issues pending before it, including who would proceed as counsel for the plaintiff class. The court approved the substitution of Hankins and Stone as General Counsel for the NAACP and SCF in Atkins' place, and then concluded that "the lead or principal attorney for the plaintiffs has at all times been the General Counsel of the Association and Fund, as distinguished from the particular attorney occupying that position." Accordingly, the court ruled that Hankins became the attorney for the plaintiff class as soon as he succeeded Atkins. The court also rejected the option of dividing the responsibilities between Hankins and Atkins given the nature of their disagreements over how the litigation should proceed. However, the court expressly invited Atkins to participate in the remaining proceedings as amicus curiae.

The court denied the motion to supplement class representatives on February 3, 1986. Specifically, the court noted that the case was "in the twilight of its remedial phase" and that participation by the proposed supplementary representatives would not assist the court in any significant way. The court also denied a motion to reconsider this ruling.

On March 4, 1986, a motion to intervene pursuant to Rules 24(a) and (b), Fed.R.Civ.P., was filed by Atkins on behalf of appellants herein, and a revised motion to intervene was filed on March 13, 1986. The motion asserted that the present class representatives did not adequately represent their interests, particularly with respect to the proper role of the monitoring commission and other remedial efforts. A hearing was held on this motion on April 7, 1986, with three individuals testifying in support of the motion.

First, Valerie McNeece, co-chair of the Ludington School Community Organization for the Middle Magnet School, testified that the Ludington School was improperly deviating from racial and gender quotas in its enrollment procedures. She testified that her efforts to elicit aid from the NAACP, and Hankins in particular, had failed.

Second, Helen Moore, one of the co-founders of Black Parents for Quality Education and its current spokesperson, testified that she believed Hankins was siding with the defendants and did not represent BPQE's interests, although she admitted that she agreed with...