Liddell v. Caldwell, 76-1228

Decision Date17 January 1977
Docket NumberNo. 76-1228,76-1228
PartiesCraton 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.
CourtU.S. Court of Appeals — Eighth Circuit

Louis R. Lucas, Memphis, Tenn., for appellants; Barbara B. Dickey, Ratner, Sugarman 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 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 there was nothing at that time, or at any other time until the consent decree appeared, to indicate to them that these shared claims were "being abandoned." Second, although the original complaint was filed in 1972, the present record is built upon stipulated facts which basically are not under attack; the stipulation appears to fairly set forth the basic history and statistics of the St. Louis school system. The petitioners do not attempt to assert a right to relitigate or undo the factual stipulations of the parties. 6 Third the record indicates that a good deal of the delay from February 1972 to the time of the consent decree in December 1975 resulted from a stalemate between the parties as to how to achieve a plan of desegregation. Fourth, and of great significance to this court, is the fact that the district court, even as of this late date, has only partially approved specific plans for desegregation. The consent decree signed by the district court is interlocutory in nature, and as all agree, does not constitute the overall plan for desegregation. Under the district court order the school board is to make further study and must produce a "report" by January 15, 1977, with "implementation to begin September, 1977."

The petitioners' primary purpose in seeking intervention relates to their objections to the proposed remedy, that is, to the ultimate plan of desegregation. The petitioners urge that the consent decree falls short of requiring a plan which would comply with the constitutional mandate to create a unitary school system for St. Louis.

Considering all of these circumstances, and in view of the fact that only partial steps toward implementing a unitary school system have taken place, we find the district court erred in denying the petition for intervention for lack of timeliness. Although the time for developing a plan has long since passed, cf. Carter v. W. Feliciana Parish School Bd., 396 U.S. 290, 90 S.Ct. 518, 24 L.Ed.2d 549 (1970), unfortunately it is readily apparent that the complete desegregation plan is still on the drawing board. The record demonstrates that the effects of the previous de jure school segregation are still fully visible within the St. Louis School system.

As a second reason for rejecting the petition for intervention, the trial court found that petitioners' interests are being adequately represented. This finding is vigorously defended by the original plaintiffs and just as vigorously disputed by petitioners.

The controlling rule here is that representation is adequate if there is no collusion between the representative and an opposing party; if the representative does not have or represent an interest adverse to the applicant; or if the representative does not fail in the fulfillment of his duty. Stadin v. Union Electric Co., 309 F.2d 912 (8th Cir. 1962), cert. denied, 373 U.S. 915, 83 S.Ct. 1298, 10 L.Ed.2d 415 (1963). See also Martin v. Kalvar Corp., 411 F.2d 552 (5th Cir. 1969); Peterson v. United States, 41 F.R.D. 131 (D.Minn.1966). Petitioners are apparently relying on the third alternative indicating inadequate representation failure to fulfill duty. In finding that intervention should be allowed, we do not in any way impugn any element of bad faith to the original plaintiffs or the school board by their agreeing to the consent decree. We are confident that all parties, as...

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29 cases
  • Liddell v. State of Mo.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • March 5, 1984
    ...right to intervene. We granted intervention, but declined to pass on the constitutionality of the consent decree. Liddell v. Caldwell, 546 F.2d 768 (8th Cir.) (Liddell I ), cert. denied, 433 U.S. 914, 97 S.Ct. 2987, 53 L.Ed.2d 1100 (1976). We encouraged the United States and State of Missou......
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    ...class actions is a valid one deserving serious attention. The Eighth Circuit expressed a similar concern in Liddell v. Caldwell, 546 F.2d 768 (8th Cir. 1976), cert. denied, 433 U.S. 914, 97 S.Ct. 2987, 53 L.Ed.2d 1100 (1977), and clearly indicated that a school desegregation plan devised th......
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    • U.S. District Court — Eastern District of Missouri
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    ...of Appeals for the Eighth Circuit reversed the order of this Court and allowed the appellants' motion to intervene. Liddell v. Caldwell, 546 F.2d 768 (8th Cir. 1976). The only issue before the Eighth Circuit was the right of the NAACP to intervene. As the appeal was interlocutory, the Court......
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