Mendoza v. Tucson School Dist. No. 1

• Decision Date: 27 June 1980
• Docket Number: No. 78-3352,78-3352
• Citation: 623 F.2d 1338
• Parties: Maria MENDOZA, Individually and on behalf of Stephen Mendoza, a Minor; Theresa Trujillo, Individually and on behalf of Albert Trujillo, Joe Trujillo, and David Trujillo, Minors; Alberto Sanchez, Individually and on behalf of Jaime Sanchez, Ana Celis Sanchez, John Sanchez, Ernest Sanchez, George Sanchez, and Betty Sanchez, Minors; and on behalf of all others similarly situated, Plaintiffs-Appellants, and Julia O. Flores, Billie Gutierrez, Theresa Medina, Betty M. Granillo, Carol Cruz-Popkin, Barney Paul Popkin, Carmen P. Urrutia, Manuel Alvarado, Carolyn Hackworth, Gloria Hagler, Johnny Randolph-Kelly, Thelma B. Manriquez, Aldolfo A. Suarez, Nat Washington II, Ralph O. Gomez, Juan Brito, Marcia Almeda, Emilia Talamantez, Ellen Lee Esperanza Silva, Antonette Romo, Ronald Q. Huerta, and Lupe Montano, Plaintiffs-Objectors-Appellants, v. UNITED STATES of America, Plaintiff-Intervenor-Appellee, v. TUCSON SCHOOL DISTRICT NUMBER 1; The Board of Education, Tucson School District Number 1; Leba Wine, Soleng Tom, Mitchell Vavich, Helen Haffley, and Katie Dusenberry, Individually and as members, Board of Education, Tucson School District Number 1; Thomas Lee, Individually and as Superintendent of Tucson School District Number 1, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1338

623 F.2d 1338

Maria MENDOZA, Individually and on behalf of Stephen

Mendoza, a Minor; Theresa Trujillo, Individually and on

behalf of Albert Trujillo, Joe Trujillo, and David Trujillo,

Minors; Alberto Sanchez, Individually and on behalf of Jaime

Sanchez, Ana Celis Sanchez, John Sanchez, Ernest Sanchez,

George Sanchez, and Betty Sanchez, Minors; and on behalf of

all others similarly situated, Plaintiffs-Appellants,

and

Julia O. Flores, Billie Gutierrez, Theresa Medina, Betty M.

Granillo, Carol Cruz-Popkin, Barney Paul Popkin, Carmen P.

Urrutia, Manuel Alvarado, Carolyn Hackworth, Gloria Hagler,

Johnny Randolph-Kelly, Thelma B. Manriquez, Aldolfo A.

Suarez, Nat Washington II, Ralph O. Gomez, Juan Brito, Marcia Almeda, Emilia Talamantez, Ellen Lee Esperanza Silva, Antonette Romo, Ronald Q. Huerta, and Lupe Montano, Plaintiffs-Objectors-Appellants, v. UNITED STATES of America, Plaintiff-Intervenor-Appellee, v. TUCSON SCHOOL DISTRICT NUMBER 1; The Board of Education,

Tucson School District Number 1; Leba Wine, Soleng Tom,

Mitchell Vavich, Helen Haffley, and Katie Dusenberry,

Individually and as members, Board of Education, Tucson

School District Number 1; Thomas Lee, Individually and as

Superintendent of Tucson School District Number 1,

Defendants-Appellees.

No. 78-3352.

United States Court of Appeals,

Ninth Circuit.

June 27, 1980.

As Amended July 9, 1980.

Rehearing Denied Aug. 11, 1980.

Armand Salese, Tucson, Ariz. (argued), and Neil P. Miller, Tucson, Ariz., on brief, for plaintiffs-objectors-appellants.

John R. Moore, Washington, D. C., for plaintiff-intervenor-appellee.

J. Wm. Brammer, Jr., Tucson, Ariz., argued, for defendants-appellees; William J. Maledon, Phoenix, Ariz., John C. Richardson, Edmund D. Kahn, Tucson, Ariz., Morris J. Baller, San Francisco, Cal., on brief.

Appeal from the United States District Court for the District of Arizona.

Before CHOY and SNEED, Circuit Judges, and EAST, ^* District Judge.

EAST, District Judge.

The plaintiff-objector-appellant Alberto Sanchez, appearing individually and on behalf of his above-named minors, appeals the District Court's orders entered on August 11, 1978, which approved a submitted plan of desegregation, and August 31, 1978, which approved the settlement arrangement for desegregation of the Tucson School District No. 1. He also appeals the District Court's order of August 11, 1978, which denied the certification of a subclass and various other discovery and post-August 1, 1978 orders of the District Court. We affirm each of the orders appealed from.

In this class action school desegregation appeal, certain members of the minority class, including Sanchez, were dissatisfied with part of the remedy negotiated by attorneys for the class, the United States, and the school officials. Sanchez was allowed to retain separate counsel and participate, although with a minimal amount of preparation time, in hearings on the School District's desegregation plan and the class action settlement. Sanchez also raises issues concerning discovery, notice, and negotiation of attorneys' fees.

I. FACTS

In May of 1974, a school desegregation action was commenced against the Tucson Unified School District No. 1 by Black elementary and junior high school students (Fisher plaintiffs). That case is now on appeal in the consolidated case, No. 79-3378. Several months later, a separate action was filed on behalf of the District's Mexican-American elementary, junior high, and high school students (Mendoza plaintiffs), here on appeal. In late 1975, the Fisher and Mendoza plaintiffs were certified as class representatives for these Black and Mexican-American classes, respectively. These two causes were consolidated in the District Court for hearing and disposition.

Sidney L. Sutton, et al., a group of white parents opposed to busing, entered as intervenor-defendants in the Fisher action in March, 1975. ¹ In December, 1976, the United States was permitted to intervene as a plaintiff in both actions.

The Mendoza amended complaint consisted of seven counts, alleging (1) maintenance of a tri-ethnic segregated school system; (2) discriminatory tracking; (3) inferior curricula and facilities for minorities; (4) discrimination in the hot-lunch program; (5) discrimination in special education programs; (6) failure to take into account linguistic differences; and (7) lack of bilingual notices. Prior to trial, counts 2, 5, and 6 were stayed and severed based upon HEW's approval of the District's compliance plan to remedy these problems; and counts 3, 4, and 7 were dismissed pursuant to stipulation by class counsel.

After substantial discovery, a consolidated trial of the Fisher and Mendoza actions was held in January, 1977. On June 5, 1978, the District Court issued its joint decision, finding that the School District had failed to dismantle its former dual school system for Blacks and non-Blacks, and had continued since 1954 to discriminate against Black elementary and junior high school students. The Court found no such dual school system had existed with respect to Mexican-American students, nor did any continuing system-wide practice of intentional discrimination occur. The Court concluded that nine schools suffered current effects of the past intentionally segregative acts of the School District, and ordered the District to prepare a desegregation plan with respect to these nine schools.

Post-trial motions were filed by the Fisher and Mendoza plaintiffs, joined by the United States as an intervenor, to amend the findings and conclusions, and a hearing was held on June 28, 1978. Before a ruling on these motions, plaintiffs and the School District informed the Court that they were in the process of discussing a mutually acceptable plan for desegregation of the nine schools, as well as resolution of the other pending issues. Although the Court withheld submission on these motions, it nonetheless On August 4, 1978, the attorneys reported to the District Court that their discussions had been fruitful: a settlement proposal on all remaining issues in the lawsuits was ready for the Court's consideration. The District Court scheduled a settlement hearing for August 24, 1978, and ordered a proposed form of notice be prepared. It did not disturb the upcoming August 8th hearing on the desegregation plan.

                ordered the District to submit its proposed plan for desegregation by July 17, 1978.  The order further instructed the District to consult with its residents, and the plaintiffs' class members, in order to minimize objections to the plan.  Accordingly, the District held a number of hearings and meetings, both for the affected parents and for the District's residents at large.  At these meetings, the District presented desegregation options and solicited questions and comments.  This process culminated with the District timely filing its plan for the nine schools on July 17, 1978.  2 The District Court scheduled a hearing on the plan for August 8, 1978, requiring that written objections be submitted by August 4
                

The stipulation of settlement adopted the District's nine-school desegregation plan, and included provisions for immediate integration of three additional schools. It required the District in cooperation with parents to examine future assignment policies at several other elementary and junior high schools, and to eliminate discrimination in faculty assignments, employee training, and in policies on testing and discipline. Also included were provisions for program improvements, regular District progress reports, oversight, and procedural details.

With respect to the lawsuit, the settlement provided for dismissal of all remaining counts (numbers 2-7) in the Mendoza complaint, and the parties agreed that there would be no further attacks on the District Court's June 5th order, nor on the desegregation plan or the settlement. The settlement also provided for $500,000 in attorneys' fees for class counsel. The settlement was concurred in by attorneys for the District, the Fisher class, the Mendoza class, and the United States Department of Justice.

Meanwhile Sanchez took exception to part of the proposed desegregation plan. Specifically he objected to a provision which called for the closure of three of the nine affected schools, believing that it unfairly burdened portions of the Mexican-American class. Sanchez was also dissatisfied with class counsel's acquiescence in the closure of the three schools, and on July 27, 1978, he requested a substitution of counsel. Substitution was ordered on the following August 3.

On August 4, 1978, Sanchez filed a motion to create a subclass comprised of Mexican-American parents and their children residing in the attendance areas of schools sought to be closed by the District. Argument was heard on this motion on August 7. Also on August 7, Sanchez moved to continue the August 24th settlement hearing, and for additional time to present objections and alternatives to the District's desegregation plan. The settlement hearing was postponed to the following August 30, over the objections of the other parties, but no relief was granted on his request for additional time to object to the plan. That same day, August 7, Sanchez filed and served his first request for production of documents.

Hearings on the desegregation plan were held on August 8 and 9. The School District presented testimony in support of the plan. Due to the settlement, neither the Two days later, on August 11, the Court issued two orders. First, it approved the District's desegregation plans, finding that they were in compliance with the June 5th order that they sufficiently remedied the violations found to exist in the nine schools. Second, the Court denied Sanchez's motion for certification of a subclass. It noted that the subclass's reason for existing, objection to the school closures, was mooted by the order approving the desegregation plans. And insofar as its...