Black v. State of Mo.
| Decision Date | 19 June 1980 |
| Docket Number | No. 77-0420-CV-W-1-3.,77-0420-CV-W-1-3. |
| Parties | Erica M. BLACK et al., Plaintiffs, v. STATE OF MISSOURI et al., Defendants. |
| Court | U.S. District Court — Western District of Missouri |
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Arthur A. Benson, II, Kansas City, Mo., for plaintiffs.
James R. Borthwick, Shirley Ward Keeler, Blackwell, Sanders, Matheny, Weary & Lombardi, Kansas City, Mo., Robert E. Manley, Cincinnati, Ohio, Taylor Fields, North, Colbert & Fields, Kansas City, Mo., for K.C. School Dist.
Lawrence R. Brown, George E. Feldmiller, Stinson, Mag, Thomson, McEvers & Fizzell, Kansas City, Mo., for defendant Missouri School Districts.
Barbara Allen Babcock, Barbara B. O'Malley, Brook Hedge, Attys., Dept. of Justice, Washington, D. C., Ronald S. Reed, Jr., U. S. Atty., Kansas City, Mo., for federal defendants.
John D. Ashcroft, Atty. Gen., Sheila K. Hyatt, Asst. Atty. Gen., Jefferson City, Mo., for Missouri State defendants.
In a prior memorandum order in this case this Court observed that "this school desegregation action is truly a case of first impression." School District of Kansas City v. Missouri, 460 F.Supp. 421, 426 (W.D.Mo. 1978), appeal dismissed, 592 F.2d 493 (8th Cir. 1979) (footnote omitted). That observation was prompted by the posture of the parties at the inception of this action — a school district, accompanied by several school children, bringing suit against other school districts and various state and federal agencies, for the purpose of litigating the right of school children within its borders to a public education free from discriminatory segregation and the effects of past segregation, as well as its own claims against the various defendants. The Court then determined that the Kansas City Missouri School District ("KCMSD" or the "District") could not be a fully effective advocate of the school children's interests because proceedings in this action might eventually reveal that the District itself is one of the parties responsible for the alleged segregative condition within its boundaries. Id. at 437-42. Consequently, the Court realigned the KCMSD as a party-defendant, and in conjunction with that action directed that "separate legal representation must be obtained by the plaintiff-students who are now represented by the legal counsel for the KCMSD." Id. at 442.
That realignment order has given rise to additional unique issues presented in motions for the disqualification of Arthur A. Benson II, present counsel for the plaintiff school children; the law firm of Blackwell, Sanders, Matheny & Weary (Blackwell-Sanders) and in particular, its members James Borthwick and Shirley Keeler, counsel for the KCMSD throughout the course of this action and former counsel for the school children who were party plaintiffs to this action at the time of the realignment; and Taylor Fields of the law firm of North, Colbert & Fields ("North") and Robert E. Manley, co-counsel to the Blackwell-Sanders firm. Those motions have been filed by the Missouri school districts (other than the KCMSD), which are defendants in this action (the "district defendants" or the "defendants"); and it appears the theory of the motions is, at least in part, that there has not been compliance with the Court's directive for "separate legal representation". All parties affected by the motions—the plaintiff school children, the KCMSD and the district defendants — have agreed to submit the disqualification questions to the Court on a designated factual record consisting of several stipulations of fact and various numbered exhibits, comprised primarily of past pleadings and correspondence in this action.1 The factual summary which follows is based on that disignated record, and where appropriate the Court will make reference to particular exhibits to substantiate pertinent facts.
As the Court has already noted, this action was initiated by the KCMSD as a plaintiff, along with Gregory Scaggs, Helen Elizabeth Scaggs, Keith Jerome Scaggs, Margaret Stark and Catherine Stark, children attending school in the KCMSD. From the point at which the complaint was filed (May 27, 1977) up to the Court's realignment of the KCMSD (October 6, 1978), Blackwell-Sanders, assisted by Taylor Fields of the North firm, Robert E. Manley, an Ohio attorney, and Dr. Robert S. Freilich, a professor of law at the University of Missouri-Kansas City (UMKC) Law School, represented both the KCMSD and the school children in this action. In this connection, it is noteworthy that Blackwell-Sanders has served as retained counsel to the KCMSD for more than sixty years (Exhibit (Ex) 5). As noted earlier, the Court's realignment order directed the plaintiff school children to obtain legal representation separate from the KCMSD's representation. It also provided that the parent next friends of the students, all of whom were officers of the KCMSD, could not continue to act as next friends so long as they were affiliated with the KCMSD; the solution suggested was the substitution of other persons as next friends. See 460 F.Supp. at 442; 592 F.2d at 495. Subsequent to the Court's issuance of its realignment order, the KCMSD, the plaintiff school children, and various defendants attempted to take interlocutory appeals from the order; the Eighth Circuit refused to hear the appeals under either 28 U.S.C. § 1292(b) or 28 U.S.C. § 1291 and issued its final decision rejecting any appeals from this Court's order on February 16, 1979. See School District of Kansas City v. Missouri, 592 F.2d 493 (8th Cir. 1979).
At that point in time the KCMSD and the plaintiff-students began to take steps to comply with the Court's requirements of separate legal representation and substitution of next friends for the plaintiff-students.2 In late February, one of the parent next friends of the plaintiff-students contacted Arthur A. Benson II and requested Benson to act as new counsel for the plaintiff-students in all future proceedings in this suit. (See Ex. 43 at 3; Plaintiffs' Brief in Response to the Supplemental Brief of the Missouri School District Defendants on the Issue of Disqualification, at 2 (filed Feb. 7, 1980) hereinafter "Plaintiffs' Brief of Feb. 7, 1980"). Benson later had several meetings with the plaintiff-students, their current next friends (parents), and proposed plaintiff-intervenor school children and their proposed parent next friends the result of which was his (Benson's) agreement to act as counsel for the plaintiff-students and the proposed student-intervenors. (See id. Ex. 95, at 1-3).3 On March 15, 1979, Benson made his formal entry of appearance as plaintiffs' counsel (Ex. 7), and also entered the application of Dorothy Hodge Johnson to be appointed as next friend for Margaret Stark and Catherine Stark, two of the plaintiff-students in substitution for their mother Joyce Stark. The application was granted and Ms. Johnson was formally appointed as the next friend of the Stark children on April 10, 1979. (Ex. 14). In the interim, on March 30, 1979, the remaining plaintiff-students, Gregory, Helen and Keith Scaggs, moved for dismissal from this action on the ground that they no longer resided in the Kansas City area; Joyce Stark moved for an order discharging her as next friend of the Stark children; and Blackwell-Sanders and its co-counsel entered their formal notice of withdrawal as attorneys for the plaintiff-students. (Ex. 10-12). On April 19, 1979 the Court entered an order dismissing the Scaggs children, granting Blackwell-Sanders and its co-counsel leave to withdraw as attorneys for plaintiff, and implicitly granting Joyce Stark's motion to withdraw as next friend of her children. (Ex. 15).4
Subsequently, on May 10, 1979, Benson attempted to reactivate proceedings on the merits by seeking leave to file an amended complaint and to serve upon various defendants (not including the KCMSD) interrogatories exceeding a limitation established by a local rule of this district. (Ex. 16-21). Benson also filed on that date, on behalf of thirty school children, a motion for leave to intervene as plaintiffs. On May 18, 1979, the Court granted the motion for leave to file the first amended complaint, but deferred decision on the other motions to a conference scheduled for May 31, 1979. (Ex. 22). At that conference, Benson appeared for the plaintiffs, accompanied by Professor Freilich, who had been lending some assistance to Benson in previous months (Freilich's assistance is discussed more fully infra). Benson announced Freilich's intention to enter a formal appearance as co-counsel for the plaintiff Stark children. (Joint Designation Part VI ¶ 1).
Various decisions at that conference affected the course of future proceedings. The Court indicated concern over Freilich's proposed representation of plaintiffs suing, among other defendants, the State of Missouri, because of his employment with the UMKC Law School, an entity affiliated with the state. (Ex. 60). Freilich reported that he had already made a request to the Advisory Committee the "Committee" or "Advisory Committee" of the Missouri Bar for an opinion on this issue, and had received a favorable informal opinion from the Committee's chairman. (Ex. 58-59). He also advised the Court that a second "conflict" issue might be inherent in his proposed representation by virtue of the prior representation of the parties before the Court's realignment order. (Ex. 64). The Court then expressed its desire to await an official ruling of the Committee on the employment-conflict issue; invited from the parties proposals on discovery proceedings; and stated that the stay on discovery, ordered in conjunction with the appeal of the Court's realignment order, would be continued and that the motion to intervene would be deferred until such time as another intervention motion was filed by...
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