Moore v. Tangipahoa Parish School Board

• Decision Date: 03 April 1969
• Docket Number: Civ. A. No. 15556.
• Citation: 298 F. Supp. 288
• Parties: Joyce Marie MOORE, Jerry Moore, and Thelma Louise Moore, Minors, by their Father and Next Friend, M. C. Moore; Bennie Smith, Charles Edward Smith, Shirley Ann Smith, and Earline Smith, Minors, by their Father and Next Friend, Henry Smith, Plaintiffs, v. TANGIPAHOA PARISH SCHOOL BOARD, a Corporation, C. B. Sledge, President, and Dewitt Sauls, Superintendent, Defendants.
• Court: U.S. District Court — Eastern District of Louisiana

298 F. Supp. 288

Joyce Marie MOORE, Jerry Moore, and Thelma Louise Moore, Minors, by their Father and Next Friend, M. C. Moore; Bennie Smith, Charles Edward Smith, Shirley Ann Smith, and Earline Smith, Minors, by their Father and Next Friend, Henry Smith, Plaintiffs, v. TANGIPAHOA PARISH SCHOOL BOARD, a Corporation, C. B. Sledge, President, and Dewitt Sauls, Superintendent, Defendants.

Civ. A. No. 15556.

United States District Court E. D. Louisiana, New Orleans Division.

April 3, 1969.

COPYRIGHT MATERIAL OMITTED

RUBIN, District Judge:

In this class action brought by a group of Negro children against the Tangipahoa Parish School Board four years ago, to eliminate racial segregation in its public schools, two groups of white children and their parents now seek to intervene for themselves and all other white children. They contend that the school board does not adequately represent the interests of the white school children, and that they may be adversely affected by any future orders that may be entered by the court. Each group claims that it is more representative of the white parents and children of the Parish than the other, and each contends that it has the right to intervene.

INTERVENTION OF RIGHT

Rule 24(a) of the Federal Rules of Civil Procedure as amended in 1966 provides in part:

"Upon timely application anyone shall be permitted to intervene in an action: * * * (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant's interest is adequately represented by existing parties."

The Fifth Circuit Court of Appeals has squarely held "Intervention in school cases is not a matter of right * * *." Stell v. Savannah-Chatham County Board of Education, 5 Cir., 1964, 333 F.2d 55, 60; St. Helena Parish School Board v. Hall, 5 Cir., 1961, 287 F.2d 376, cert. denied, 368 U.S. 830, 82 S.Ct. 52, 7 L.Ed.2d 33. Cf. Blocker v. Board of Education of Manhasset, New York, E.D.N.Y., 1964, 229 F.Supp. 714; Allen v. County School Board of Prince Edward County, E.D. Va., 1961, 28 F.R.D. 358.

Petitioners correctly point out that the rules for intervention were liberalized in 1966 when Rule 24(a) was amended.¹ Indeed, it has been said by one commentator that the most recent pronouncement of the Supreme Court interpreting the Rule in Cascade Natural Gas Corp. v El Paso Natural Gas Co., 1967, 386 U.S. 129, 87 S.Ct. 932, 17 L.Ed.2d 814,² "expands the right to intervene beyond the dreams, or nightmares, of the draftsmen of the amendment."³ This interpretation, however, is unduly apprehensive.

Cascade concerned an antitrust action brought by the United States against El Paso Natural Gas Co. The first time this case reached the Supreme Court, the Court directed the District Court "to order divestiture without delay." United States v. El Paso Natural Gas Co., 1964, 376 U.S. 651, 662, 84 S.Ct. 1044, 12 L.Ed. 2d 12. Instead a consent decree was entered and "no divestiture in any meaningful sense was directed." Cascade Natural Gas Corp. v. El Paso Natural Gas Co., supra 386 U.S. at 131, 87 S.Ct. at 935. Just before entry of the consent decree, a number of competitors and the State of California moved to intervene and intervention was denied by the District Court. The Supreme Court reversed, holding that the intervenors had "`an interest' in the `transaction which is the subject of the action,'" and that "the `existing parties' have fallen far short of representing their interests." Cascade Natural Gas Corp. v. El Paso Natural Gas Co., supra at 136-137, 87 S. Ct. at 937.

But while Rule 24 has been liberalized⁴ "to overcome objections that conceptual difficulties with the principles of res judicata and property rights had made it unduly restrictive,"⁵ it still requires "an absence of adequate representation of the intervenor's interest by existing parties." Atlantis Development Corp. v. United States, 5 Cir., 1967, 379 F.2d 818, 825.

In St. Helena Parish School Board v. Hall, supra 287 F.2d at 379, a case similar to this one, the Fifth Circuit Court of Appeals held that the parents of the white students in St. Helena Parish "failed to make the showing that the representation of their interest in the litigation was or might be inadequate." Rule 24(a) as amended permits intervention (assuming all other requirements are met) "unless the applicant's interest is adequately represented by existing parties." The rule in effect when the St. Helena case was decided asked whether representation by existing parties "is or may be inadequate." It is not entirely clear whether this change in wording "removed the burden on an intervenor to show inadequacy of representation, and shifted the burden onto the party resisting intervention to demonstrate adequacy of representation." Peterson v. United States, D.Minn., 1966, 41 F.R.D. 131, 133. See Exchange National Bank of Chicago v. Abramson, D. Minn., 1968, 45 F.R.D. 97, 103.

But this issue need not be resolved at this time, for it is clear that, whoever bears the burden of proof, the representation of petitioners' interests in this case is adequate under the law. "There is no indication in amended Rule 24(a) or in the Advisory Committee's Note appended thereto, that the substantive meaning of the inadequacy of representation requirement has been changed." Peterson v. United States, supra. Cf. Nuesse v. Camp, D.C. Cir., 1967, 385 F.2d 694, 702.⁶ As the court pointed out in Peterson, "The controlling rule 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, and if the representative does not fail in the fulfillment of his duty."⁷

None of these conditions have been met in this case. Clearly there has not been collusion between the existing parties. Unlike the Cascade case, a settlement between plaintiff and defendant is not under consideration. And, while "interests need not be wholly `adverse' before there is a basis for concluding that existing representation of a `different' interest may be inadequate,"⁸ a brief examination of the record reveals that there is not the slightest degree of meaningful adversity between defendant school board and the petitioners.⁹ All of the substantive defenses raised by the petitioners have been vigorously asserted by the school board.

Finally, petitioners do not seriously contend that the school board failed in its duty to assert the interests that the intervenors support.¹⁰ Counsel for the school board have acted vigorously in this regard. The petitioners have been and still are adequately represented by defendant.

Moreover, as in St. Helena Parish School Board v. Hall, supra, "no legally permissible basis for denying the relief sought in the complaint was pleaded of (sic) the intervenors." All of the issues they seek to raise have consistently and emphatically been decided adversely to their position by the Supreme Court and the Fifth Circuit. See Green v. County School Board of New Kent County, Va., 1968, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716; Henry v. Clarksdale Municipal Separate School District, 5 Cir., March 6, 1969, 409 F.2d 682; United States v. Greenwood Municipal Separate School District, 5 Cir., February 4, 1969, 406 F.2d 1086; Graves v. Walton County Board of Education, 5 Cir., September 24, 1968, 403 F.2d 181; Adams v. Mathews, 5 Cir., August 20, 1968, 403 F. 2d 181. See also, United States v. Jefferson County Board of Education, 5 Cir., 1967, 380 F.2d 385; United States v. Jefferson County Board of Education, 5 Cir., 1966, 372 F.2d 836.

Rule 24(a) should be liberally interpreted. "Liberality, however, does not equate with rights of indiscriminate intervention." Peterson v. United States, supra 41 F.R.D. at 135; Stadin v. Union Electric Co., supra 309 F.2d at 918. The motions to intervene as a matter of right under Rule 24(a) are denied.

PERMISSIVE INTERVENTION BY THE WHITE STUDENTS AND PARENTS AS A CLASS

Alternatively, both applicants seek permissive intervention under Rule 24(b), which provides in part:

"Upon timely application anyone may be permitted to intervene in an action: * * * (2) when an applicant's claim or defense and the main action have a question of law or fact in common. * * * In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties."

Rule 24(b) should be liberally construed. Western States Machine Co. v. S. S. Hepworth Co., E.D.N.Y., 1941, 2 F.R.D. 145. "Basically, * * * anyone may be permitted to intervene if his claim and the main action have a common question of law or fact,"¹¹ unless the court in its "sound discretion determines that * * * the intervention will unduly delay or prejudice the adjudication of the rights of the original parties." Allen v. County School Board of Prince Edward County, supra 28 F.R.D. at 363.

It is beyond dispute that the claims of the white students and parents of Tangipahoa Parish are based on common questions of law and fact with the issues raised in the main action. Nor can it be denied that, as a practical matter, the applicants have an important interest in the outcome of this litigation. All students and parents, whatever their race, have an interest in a sound educational system and in the operation of that system in accordance with the law.

This leaves the question whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties. If not completely untimely, these interventions are certainly not prompt. This suit was filed on May 3, 1965. On June 9, 1965, the school board was first ordered to begin desegregating its public schools. The board was ordered to follow a ...