Opinion
Civ. A. No. 4246-66.
August 8, 1969. Supplemental Order August 11, 1969.
Frank D. Allen and Joseph D. Rich, Dept. of Justice, Washington, D.C., Chas. S. White-Spunner, Jr., U.S. Atty., Mobile Ala., for plaintiff.
Frankie L. Fields, Mobile, Ala., Franklin E. White and Jack Greenberg, New York City, Solomon S. Seay, Jr., Montgomery, Ala., for plaintiff-intervenors.
J. Edward Thornton, Mobile, Ala., John Christopher, Butler, Ala., for defendants.
ORDER
On the 5th and 7th of August, 1969, the parties together with their attorneys of record appeared in Court, evidence was taken and arguments made on objections and suggestions to the plan for desegregation of the Choctaw County schools in pursuance of a mandate from the 5th C.A. of June 26, 1969, 417 F.2d 838, and case taken under advisement.
Upon due consideration of the facts and law, the Court finds as follows:
FINDINGS OF FACT
The 5th C.A. decree dated June 26, 1969, was received by this Court on June 30, 1969, and an order was entered in pursuance of that mandate.
On the same date, June 30, Dr. Gregory A. Anrig's Office, Office of Education, United States Department of Health, Education and Welfare (hereinafter referred to as HEW) Washington, D.C., was informed by telephone of the 5th C.A. mandate and the role of HEW. On the same date a letter to Dr. Anrig, included and made a part of this decree as Appendix B, and a letter to Mr. J.J. Jordan, Senior Program Specialist, HEW, Atlanta, Georgia, included and made a part of this decree as Appendix C, was informed of HEW's role.
On July 2, a schedule of weekly conferences was set up between HEW and Choctaw County Board of Education and the Superintendent of Education. A copy of that letter is included and made a part of this decree as Appendix D.
On July 10, the defendants filed a letter with this Court. The letter was treated as a motion and its thrust was to waive the defendant Board's right to present a plan. It requested HEW to present a plan as soon as possible. At the first scheduled conference on July 11, a modified time schedule of compliance with the 5th Circuit mandate was entered. That order is included and made a part of this decree as Appendix E-1.
Beginning at the first conference the Court urged HEW and Choctaw County defendants to establish communication so an intelligent plan could be presented to the Court. The weekly conferences were held in the Court's chambers. At the Court's suggestion, a skeleton plan was submitted by HEW on July 17, which was identical with the plan filed July 24, except for instructions for its implementation, and details on school housing, population, etc.
From statements made in chambers during these conferences, it was obvious there was very little communication between HEW and the Choctaw County defendants. It would serve no useful purpose to assess the blame, suffice it to say, communication was practically non-existent except at the conferences. HEW had been working and met the Court's deadlines. The Choctaw County Board defendants had been working but the detailed information concerning the school system was largely in their possession and not in HEW's.
As a result of the July 24 conference, communication was finally established between HEW and the Choctaw County defendants and on July 30 HEW was granted leave to amend the plan submitted July 24. The final plan was submitted August 1, 1969.
In open Court it was agreed that the August 1, 1969 plan was submitted after full consultation by HEW with the Choctaw County Board and Superintendent, and was formed from full familiarity of all facts presented by the Board and Superintendent.
All attorneys were notified by telephone and copies were delivered or made available to all attorneys the same day.
On August 4, objections and suggestions to the HEW plan were filed by the Choctaw County defendants.
On August 5, 1969, with parties and attorneys present in open court, the Court asked if there were any objections to the HEW plans by the plaintiff U.S., or the plaintiff-intervenors Hampton, et al., to which each stated there were none.
The only evidence offered in support of the Choctaw County defendants' objections and suggestions to the HEW plans was addressed to the problem of not allowing high school seniors to graduate in the 1969-70 school year from the schools attended by them in the northern zone in past years (see objections, page 10).
The Court finds from the evidence that there would be a total of 55 seniors, 17 white and 38 Negro, who could possibly be affected. They are located in the following schools:
Choctaw County (formerly all white) 0 white, 17 Negro Lisman (formerly all Negro) 10 white, 0 Negro East Choctaw (formerly all Negro) 7 white, 21 Negro.
The Court further finds that the number of students involved is minimal and would in no way materially affect, dilute, or defeat HEW's plan as submitted from disestablishing the dual school system and the establishment of an unitary one.
It is this Court's opinion that it is a poor judge with crass feelings and lacking in sensitivity who would ignore a teenager's emotional attachment to a school in circumstances such as this and where more than 50% of them will receive their highest educational diploma or certificate. If exceptions of this nature can not be tolerated, it appears to me that probably computers could better serve as judges.
The only plan before the Court for its consideration is HEW's amended plan filed August 1, 1969.
There is no other evidence before the Court to support any other of the defendants' objections.
CONCLUSIONS OF LAW
Under the mandate of the 5th C.A. in this case dated June 26, 1969, wherein this Court was directed to request the Office of Education (HEW) to collaborate with the School Board in preparation of a plan and if there was no agreed plan submitted, HEW was to submit a plan in accordance with the authorities set out in the 5th C.A. mandate, and the School Board having waived the filing of a plan, the plan filed August 1, 1969, by HEW is adopted with the following modification.
The plan is amended in accordance with the objections and suggestions of the defendants as follows:
OPTION OF SENIORS OF THE 1969-70 GRADUATING CLASS IN THE NORTH AREA AS DESIGNATED IN THE HEW PLAN.
Any high school student who will be a senior during the 1969-70 school term in the north area and who for the school year 1968-69 attended a state accredited high school in Choctaw County different from the one to which he is assigned for the 1969-70 school term, shall have the right to graduate, hold his class ring and receive his diploma from either the high school he attended in his junior year (11th grade) or the one he attended in his senior year provided, such student successfully completes all requirements for graduation at the school he elects to graduate from; provided however, that no student otherwise assigned to the same school will be displaced, and, provided further, that such student exercising this option must provide his own transportation if the regular transportation routes and services will not meet his transportation requirements. It is incumbent upon the defendants to provide space for all students in their respective schools to meet this modification and in the event that can not be accomplished the modification will not apply to such students wherever the failure occurs.
It is therefore ordered, adjudged and decreed that the school plan herein referred to filed by HEW August 1, 1969, be incorporated and made a part of this decree in the appendix marked Appendix F, together with the modifications set out above.
The costs of this proceeding are herein taxed against the defendants save and except as hereinafter set out.
Under IV, page 844 of the 5th C.A. mandate dated June 26, 1969, this Court was ordered to make Findings of Fact and Conclusions of Law as to the liability of the Government for the costs of certain depositions. A separate decree is being prepared and will be filed on the taxation of those costs.
SUPPLEMENTAL ORDER
In compliance with the Fifth Circuit Court of Appeals order in this cause dated June 26, 1969 to this Court reversing and remanding for further proceedings this Court's taxation of certain costs against the Plaintiff U.S., with their suggestion that this Court make findings of fact and conclusions of law as to the liability of the Government for these costs, further evidence was taken, arguments heard and the matter re-submitted to the Court.
Upon due consideration of the evidence and the law, the Court finds as follows:
FINDINGS OF FACT
The posture of this case is important.
I.
On August 30, 1966 the Plaintiff U.S. filed a complaint against the Defendants to end desegregation in the Choctaw County schools. An order granting the relief prayed for was entered September 3, 1966 which was later affirmed. Additional hearings in connection with the original complaint and orders were issued in May and September, 1967.
II.
On May 14, 1968 a motion for leave to intervene was filed by Plaintiff-Intervenors Hampton, et al., seeking supplemental relief and seeking to hold the Defendants in civil contempt. The gravamen of the charge was that the defendants had ignored a first distribution of choice forms and the results thereof and had furnished a second group of choice forms, all of which was designed to intimidate, threaten and oppress Negro students in their right to freely choose a school. This motion was heard May 31, 1968. Leave to intervene was granted June 21, 1968.
III.
On June 28, 1968 the Plaintiff U.S. filed a motion seeking to have the freedom of choice plan discontinued and to replace it with an assignment of students to schools on the basis of geographic attendance zones or pairing and alleged
"* * * (T)he operation of their (Defendants) freedom of choice plan demonstrate(s) that the plan fails to provide a real prospect for dismantling the state-imposed dual system of schools * * *."
At this point the Defendants were in the position of being charged with having attempted to thwart this Court's freedom of choice plan. During the hearings on these motions and petitions pending the hearings on the merits, the Defendants made known to the Court and other parties in open Court that two large boxes had been received by them, one containing approximately 850 choice forms of Negroes to attend white schools, and the second one containing approximately 100 choice forms of Negroes to attend Negro schools. The return address on the boxes was Auburn, Alabama (the wrappers with the return address is in evidence in this cause) which is located on the east edge of the state as opposed to Choctaw County on the west edge. By examination of the forms and comparison of them, one with another, there "appeared" indications that many of the choice forms may have been signed by other than authorized persons. It further "appeared" many were signed in the same handwriting. For these reasons the second choice forms had been distributed. The Defendants were not only charged with the failure to implement the Court's freedom of choice plan, but the Plaintiff-Intervenors sought to hold them in contempt of court which could have subjected them to heavy penalties and raised the question of Defendants' good faith in their implementation of the plan.
It was the Defendants' position that the second choice forms were distributed to clear up the possible fraudulent submission of the first choice forms, and it was the purpose of certain Negroes to thwart the choice plan.
IV.
Whereupon on July 10, 1968 the Defendants filed a motion to take the deposition of the Plaintiff-Intervenors and other witnesses and served notice, to-wit:
"* * * (W)e shall * * * take pretrial depositions of the Intervenors and others to establish what we understand to be the facts, namely, that Intervenors and others from in and outside Choctaw County,
1. Scattered `hate' sheets throughout Choctaw County.
2. Sought to sabotage the freedom of choice plan.
3. Coerced and intimidated Negro parents in exercising their choices.
4. Offered to sell choices by Negro parents in exchange for Petitioners firing personnel in the school system against whom no charges have been preferred, but who are rumored to be described as `Uncle Toms'."
The depositions were set July 10, 1968 at Butler, Alabama, county seat of Choctaw and approximately 120 miles from Mobile, Alabama.
V.
On the afternoon of July 15, 1968 the Plaintiff-Intervenors filed in court and gave oral notice to the Defendants of a motion for a protective order to prevent the taking of the depositions on the ground that it sought information irrelevant to this case in the light of Green v. County School Board of New Kent County, Virginia, 1968, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716, decision and their striking of the alleged violations of the freedom of choice against the Defendants. The Court was on vacation, out of the city and state, nothing appears to show the motion was presented to any other judge, and the deposition proceeded according to the Defendants' notice on July 16, 1968 at Butler, Alabama (at a later hearing the Court denied the protective order and ordered the deponents to answer the questions objected to).
VI.
The depositions have been introduced into evidence. The U.S. Attorney did not interrogate any witnesses but the depositions clearly show he was present and participated in the hearing. On arguments concerning the question of taxation of costs he acknowledged this.
The U.S. takes the position that it was not a party to the hearing, i.e., it was neutral. It appeared to the Court that he vacillated as to whether he supported the Plaintiff-Intervenors' position. He supported their position in the memorandum brief and first arguments but upon questioning by the Court as to why the U.S. should object to the development of all facts on discovery he took a neutral position of blandly washing his hands of any responsibility at the hearing and of remaining aloof for the Plaintiff-Intervenors and Defendants to wage battle.
VII.
The Plaintiff's and Plaintiff-Intervenors' interests were compatible in seeking to desegregate the dual school system and there is no question that the respective attorneys had joined hands and were aiding each other.
VIII.
In this case at previous hearings far-reaching and searching questions were consistently allowed in an effort to lay bare the truth concerning the school system. It is common knowledge that the widest latitude conceivable in discovery has been extended to the U.S., Department of Justice, Civil Rights and related agencies, and parties with compatible interests, seeking to eradicate the evils of school segregation and racial discrimination.
IX.
The posture of the case, the behavior of counsel in the presence of the Court, and all of the subtleties arising therefrom have all the earmarks of a hand in glove adversary effort, active and tacit, between Plaintiff and the Plaintiff-Intervenors against the Defendants.
X.
It is the Court's conclusion of fact that with all the supportive help the Government had and was giving the Plaintiff-Intervenors and others in the same or similar causes of action that if the Government's attorney at the deposition hearing had sought the same extensive discovery (which they should have sought to lay bare the truth, wherever the truth could be found) or had suggested to the Plaintiff-Intervenors' attorneys and witnesses that the answers should have been given, noting objections in the depositions and further suggesting that when the depositions were later offered into evidence objections or motions to exclude non-admissible evidence could be made, answers would have been forthcoming and the expense and inconvenience of the second deposition hearing would have been avoided.
The Plaintiff U.S. therefore, in truth and in fact, was responsible for the second deposition hearing. The U.S. was the moving party initially and continuously in this cause. Its concern for the truth or falsity of the matters of inquiry should have been one of utmost importance to the representative of all the people.
CONCLUSIONS OF LAW
Green v. County School Board of Kent County, Virginia, supra, 391 U.S. 430, 88 S.Ct. 1689, pp. 724, 725 did not absolutely abolish freedom of choice, therefore, inquiry as to why a freedom of choice plan was or was not working was a proper inquiry and proper questions which would have led to discovery of these facts was proper.
4 Moore F.P., R. 26 Sec. 26.16(1), p. 1175 "* * * `the only restriction placed upon the matters which may be gone into upon discovery examination is that the matter be relevant.' The language of Rule 26(b) in this respect is: `* * * the deponent may be examined regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action.' * * *"
4 Moore F.P., R. 26 § 26.17 pp. 1226, 1227:
"examination before trial * * * for discovery of evidence, indeed, for leads as to where evidence may be located" and "Rule 26(b) `it is not ground for objection that the testimony will be inadmissible at the trial if * * * reasonably calculated to lead to the discovery * * * `Courts have appropriately given a broad scope to the amendment * * *' * * *"
F.R.C.P. 54(d) language as to costs provides that ordinarily the prevailing party shall be allowed the costs "unless the court otherwise directs" gives the court discretionary power in the taxation of costs. 3 Barron and Holtzoff, Federal Practice and Procedure, § 1195, pp. 43, 44.
OPINION
In consideration of the posture of the case, the facts and law hereinabove set out, it is the opinion of this court that while the depositions were taken of Plaintiff-Intervenors and other witnesses, by the Defendants, the United States' position was inextricably interwoven.
Furthermore, even though a "legal" adversary, the Government represents all the people, white and black, with vast resources at its command, tremendous prestige and influence, particularly in cases such as this one with groups similar to the Plaintiff-Intervenors having and continuing to continually seek the Government's help in suits of this nature, the Government should not have remained aloof, taken a neutral position, nor attempted to "wash its hands" of any responsibility at the deposition hearing, but contrawise was under a duty to vigorously seek the truth as to the real reason freedom of choice was not properly working regardless of which party litigant the truth hurt or helped.
The simple fact that many acts of discrimination have existed in a general area does not ipso facto make true every charge leveled, as here by the Plaintiff-Intervenors against these Defendants, nor render automatic a judgment against them.
The accusing finger is easy to level and point. Lest the mantle of self righteousness is assumed and becomes a haven of false and arrogant pride leading into error, the search for truth must be impartial.
In this case, the effort of the U.S. attorney to eradicate the evils of discrimination should not have blinded him to this impartial search for truth at the deposition hearing. Some of history's most glorious mistakes and most tyrannous acts were done in the name of (misconceived) righteousness.
The U.S. has a higher duty than an ordinary adversary. It is the representative of all the people, by the will of the people surviving on and expending the people's tax money and should be charged with a high standard of conduct in litigation, i.e., find the truth regardless of the consequences to the position of the U.S. as a party adversary.
I do not tax the costs against the Plaintiff-Intervenors. They are true adversaries in the classic sense. With the active and tacit support of the Plaintiff U.S. they had every reason to be reassured their position was right. It is my judgment one word or gentle prodding from the U.S. and the questions more than likely would have been answered at the first hearing.
It is therefore Ordered, Adjudged and Decreed that the Plaintiff U.S. be and hereby is taxed with the costs of the depositions in the amount of $816.24.