Petition for Writ of Certiorari — Terrell v. Alexander

Vil case o om

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86-499

No.

CLERK

IN THE ben yer NRE

SUPREME COURT OF THE UNITED STATES

October Term, 1986

DR. ERNEST B. TERRELL, ET AL., Petitioner

*

LAMAR ALEXANDER, ET. AL., Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

RICHARD E. JACKSON

Counsel for Petitioner

September 10, 1986 Suite 200—Jefferson Plaza

939 Jefferson Street

Nashville, Tennessee 37208

;

i

QUESTIONS PRESENTED

1. Whether petitioner had standing to appeal as the

named class representative of a subclass in a

class action even though he had lost his ‘‘per-

sonal stake’’ in the outcome of this case and

whether dismissal by the Court of Appeals of Peti-

tioner’s appeal for such lack of standing is in direct

conflict with decisions of this Court and decisions of

other Circuits?

2. Whether the decision in the Court of Appeals below

conflicts with due process standards established by

this Court and with the interpretation of Fed. R.

Civ. P. 23(e) as applied by other Circuit Courts of

Appeal?

TABLE OF CONTENTS

Questions Presented for Review ............000sc000% i

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2 TTP Pere re wey ne 4

PII Si iu csc avvew aces) is ceeeheeearee eee 4

Statutory Provisions Involved....................05. 4

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1. Whether petitioner had standing to appeal as the

named class representative of a subclass in a class

action even though he had lost his ‘‘personal stake’’

in the outcome of this case and whether dismissal

by the Court of Appeals of petitioner’s appeal for

lack of standing is in direct conflict with decisions

of this Court and decisions of other Circuits ...... 8

2. Whether the decision in the Court of Appeals con-

flicts with due process standards established by this

Court and with the interpretation of Fed. R. Civ.

P. 23(e) as applied by other Circuit Courts of

PEs nuk 605 KS edhe hae eee 16

IL 6 sb s 404 60a bw oe Nu wennn eee eee a7

ee Oe SOOPWEED . goo ins van ude nine 28

Ph 0.6 0s cin wdk elk eeu esau emnue ele Al

ii

TABLE OF AUTHORITIES

Ace Heating & Plumbing Co. v. Crane Co., 453 F.2d 30

EE a ee 22

Air Lines Stewards & Stewardesses Association Local

550 v. American Airlines, 455 F.2d 101 (7th Cir.

MIRON St a are 26

Armstrong v. Board of School Directors, 616 F.2d 305

re ee isp veda 4s 80 eee a o's 25

Bennett v. Behring Corp., 737 F.2d 982 (11th Cir.

Ne ccc ee ease eek bieweus 23

Berry v. Pierce, 98 F.R.D. 237 (E.D. Tex. 1983)...... 15

Board of School Commissioners v. Jacobs, 420 U.S.

128, 95 S.Ct. 848, 43 L.Ed.2d 74 (1975)........... 14

Calhoun v. Cook, 487 F.2d 680 (Sth Cir. 1973)....... 26

Carpenter v. Stephen F. Austin State Univ., 706 F.2d

ee ee Sabb as cee ee ewes 15

Chu Drua Cha v. Noot, 696 F.2d 594 (8th Cir. 1982). .15

Davis v. Ball Memorial Hosp. Assn., Inc., 753 F.2d 1410

EE ae ee ee ee 15

Eisen v. Carlisle & Jacqueline, 417 U.S. 156, 94 S.Ct.

po ee er 2h!) ene 17

Flinn v. FMC Corp., 528 F.2d 1169 (4th Cir. 1975),

SE a ee ee 22,26

Franks v. Kroger, 649 F.2d 1216 (6th Cir. 1981) ... 18,20

Geier v. Alexander, 593 F.Supp. 1263 (M.D. Tenn.

cn, EE ES rs ee Rae ae de en 6

Geier v. Blanton, 427 F.Supp. 644 (M.D. Tenn. 1977). .5

Geier v. Dunn, 337 F.Supp. 573 (M.D. Tenn. 1972)....5

Geier v. University of Tennessee, 597 F.2d 1056 (6th

Cir. 1979), cert. denied, 444 U.S. 886, 100 S.C.t. 180,

SY ee I ho GN a 6 bos kee be eh Neo exe 6

Greenfield v. Village Industries, Inc., 483 F.2d 824

COUN OS GO cas oa big deo kk KN ERK oe EE: 23

Grunin v. Int’] House of Pancakes, 513 F.2d 114 (8th

Cir. 1975), cert. denied 423 U.S. 864, 96 S.Ct. 124,

er ae Ee TN a ek heen oD ka Sab kaks chan’ 21,26

Hansberry v. Lee, 311 U.S. 32, 61 S.Ct. 115, 85 L.Ed.

a eee ag re a ee ae 19,21

Sew gk eee ae thea hed Re oe eee 15

Holmes v. Continental Can Co., 706 F.2d 1144 (11th

MS tice ge ene WA bao werce et 21,24,25

Huff v. N.D. Cass Co., 468 F.2d 172 (Sth Cir. 1972). . 15

Jackson v. Schweiker, 683 F.2d 1076 (7th Cir. 1982)... 15

Larkin Gen’! Hospital, LTD v. AT&T, 93 F.R.D. 497

SS ono 0b a ek eke ee a es ee es 20

Mandujano v. Basic Vegetable Products, Inc., 541 F.2d

sf Pe a. | Pee ene Pray See Tye ry se 21

McArthur v. Southern Airways, Inc., 556 F.2d 298 (Sth

ee cg) Se ee ays Pree erecta memes grrr mare 21,23

Mendoza v. United States, 623 F.2d 1338 (9th Cir.

Miller v. Republic Nat’! Life Ins. Co., 559 F.2d 426

Ce ETA 5 5 5 a i es es Be he eos 23

Mullane v. Central Hannover Bank & Trust Co., 339

U.S. 306, 70 §.Ct. 652, 94 L.Ed. 865 (19350) ....... 19

Parker v. Anderson, 667 F.2d 1204 (Sth Cir.) cert. denied

459 U.S. 828, 103 S.Ct. 63, 74 L.Ed.2d 65 (1982) .. 23

Pasadena City Bd. of Educ. v. Spangler, 427 U.S. 424,

96 S.Ct. 2607, 48 LBG.28 S99 GIB) gnc ccc ecas. 14

Pearson v. Ecological Science Corp., 522 F.2d 171 (Sth

Oi Pras kaa uc oo a 8 ee ee 18

Pettway v. American Cast Iron Pipe Co., 576 F.2d 1157

(Sth Cir. 1978) cert. denied 439 U.S. 1115 (1978) ...22

Plummer v. Chemical Bank, 668 F.2d 654 (2nd Cir.

WO gi hc VES I ee ee eee 26

Protective Committee v. Anderson, 390 U.S. 414, 88 S.Ct.

C057, 2G es ee ow x a Owe ON ees hee 26

Reynolds v. National Football League, 584 F.2d 280 (8th

“AE. 2. | FaReat a petra Pemere tr yee darren a are Ny Grin ar” 27

Saylor v. Lindsley , 456 F.2d 896 (2nd Cir. 1972) 22,24,25

Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d

a ae LL kek ba a kode eae 11,12

United States Parole Commission v. Geraghty, 445 U.S.

388, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980)........ 10

Walsh v. Great Atlantic & Pacific Tea Co., 726 F.2d

I ee se x 5 wad 6 0 19,21

Weinstein v. Bradford, 423 U.S. 147, 96 S.Ct. 347, 46

oe ed baba a a KS RM Oa 14

Willard v. Ciccone, 507 F.2d 1 (8th Cir. 1974) ....... 15

Zients v. LaMorte, 459 F.2d 628 (2nd Cir. 1972) ..... 23

STATUTES

Rule 23 of the Federal Rules of Civil Procedure ....4,17

MISCELLANEOUS

7A C. Wright & A. Miller, Federal Practice & Procedure,

aR es ay tiie ain koa Wied nk 3a RRR A 18

H. Newberg, Newberg on Class Actions 2d.ed.

ih eae be die a bw Rae Wee Oe 13,14,22

vi

No.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1986

DR. ERNEST B. TERRELL, ET. AL' ., Petitioner

v.

LAMAR ALEXANDER, ET. AL’., Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

The Petitioner Dr. Ernest B. Terrell, on behalf of

himself and all students at Tennessee State University,

and black residents of the State of Tennessee similarly

situated, respectfully prays that a Writ of Certiorari issue

to review the dismissal of Petitioner’s appeal by the

United States Court of Appeals for the Sixth Circuit

entered in this proceeding on June 12th, 1986.

' The Petitioners in this case are Dr. Ernest B. Terrell, (representative

of one of the original subclasses in the original action) on behalf

of himself and all students at Tennessee State University, and black

residents of the State of Tennessee similarly situated.

2 Respondents in this Petition include: Rita Sanders Geier, (representa-

tive of one of the original subclasses involved in the original

action), a citizen and resident of the State of Tennessee, and a citi-

zen of the United States who at the initiation of the original suit

was a faculty member at Tennessee A&I State University, and who

sued on behalf of herself and all other university faculty mem-

bers and staff similarly situated, as well as all black residents of

the State of Tennessee; Raymond Richardson, Jr. and Pughland

Richardson, infants by their Parent and Next Friend Raymond

Richardson; Stanford Strong, Jr., Godfrey Strong, and Jeff Strong,

infants by their Parent and Next Friend Stanford Strong; Derrick

Harris, infant, by his Guardian and Next Friend Mrs. Claudia

Adams; Osmond Robinson, LaNell Robinson, Vanetta Robinison

and Jared Robinson, infants, by their Parent and Next Friend,

James Robinson; Rutherford Overton, Roscoe Overton, Jr., and

Marva Overton, infants, by their Parent and Next Friend Roscoe

Overton; David L. Acey, II, and Carolyn M. Biven, infants,

by their Parent and Next Friend Mrs. Yvonne B. Acey; Joseph

C. Simmons, Bryan E. Simmons, Alexis Fay Simmons and Dara

Kaye Simmons, infants, by their Parent and Next Friend Jospeh

S. Simmons; Darryl Buford, Gerald Buford, Rhond Buford and

Terryl Buford, infants, by their Parent and Next Friend Frank

A. Buford; Fred Bell, John Bell and Phillip Bell, infants, by

their Parent and Next Friend Rev. Ezekiel Bell; Alice Vanessa

Coleman, infant by her Parent and Next Friend Mrs. Juanita

Coleman; Audrey Fletcher and Theodore R. Fletcher, infants, by

their Parent and Next Friend Mrs. Beatrice Fletcher; Malissa

Michelle Moore, infant by her Parent and Next Friend Tyrant

Moore; Kathryn L.J. Sanford; Desaree Bowers and Montrice

Bowers, infants, by their Parent and Next Friend Mrs. Kathryn

I. Bowers; Vasco A. Suniith, Il, infant by his Parents and Next

Friends Vasco A. Smith, Jr., and Mrs. Maxine Smith; Angela

Mapp. Tony Mapp, Alice Mapp and Ivanette Mapp, infants by

their Parent and Next Friend James R. Mapp; Carlmon Payne,

Vincent Payne, Frank Payne and Pitt Payne, infants, by their

Parent and Next Friend Mrs. Janice Payne; Cheryl Johnson and

Carl E. Johnson, Jr., infants by their Parent and Next Friend

Carl E. Johnson, Sr., Juvetia Adams and Yulunda Adams, in-

fants, by their Parent and Next Friend Foster L. Adams; Rickie

L. Pearson; Mary Ann Myles; Mrs. Barbara Drake; Donald

Campbell; Sterlin Adams; Harold J. Smith; Mrs. Joan Elliott;

Mrs. Sammye J. Wynn; Raymond Richardson; Robert Bozeman;

Dwight Bonds; Roscoe, Overton; Joseph S. Simmons; George A.

oan. Oe

Dowdy; Rev. Ezekiel Bell; Minerva J. Johnican; Stanford Strong;

Robert Smith; Herman E. Jackson; Mrs. A. Leola Barton, Irvin

L. Willis; Foster L. Adams; Mrs. Beatrice Fletcher; Mrs. Juanita

Coleman; Mahlon Griffith; Mrs. Kathryn Bowers; Mrs. C.E.

McGruder; Mrs. Claudia Adams; Warren N. Moore; James Robi-

son; Mrs. Yvonne B. Acey; Frank A. Buford; Tyrant Moore;

Mrs. Janice Payne; Charles E. Johnson; Vasco A. Smith, Jr.;

Maxine Smith; James R. Mapp; Rev. Alfred Dewayne Hill; Mrs.

Mary Lee Seymour; Mrs. Verneidl Hines; Mrs. Clyde T. Bardwell;

Mrs. Gwendolyn Kiles; Rev. Samuel B. Kiles; Walter Evans;

Thomas J. Troope; Harold A. Cohn, all of whom intervened

collectively in 1972; the United States of America; H. Coleman

McGinnis, Paul Dubois, John Arthur, Ethel Robertson, Harry

Fuchs, Lyle McLevain, Darlene Marsh, Martin Deschenes, Delores

Pierce, Millicent Yeargin, all of whom intervened collectively in

1983: Lamar Alexander, Governor of the State of Tennessee and

Chairman of the Board of Trustees of the University of Tennes-

see and Chairman of the State Board of Regents; Robert McElrath,

Commissioner of Education of the State of Tennessee; the Ten-

nessee State Board of Education and its Chairman Nelson Andrews;

the Tennessee Higher Education Commission and its Chairman,

Walter Price; the University of Tennessee and its President,

Edward J. Boling; the Board of Trustees of the University of

Tennessee and its Vice-Chairman, Ben Kimbrough; Tennessee

State University and its President, Dr. Otis Floyd; all named

persons in their official capacities. (Other original subclasses

involved in the original action are no longer active parties in

interest, namely; Patrick J. Gilpin, a citizen and resident of the

State of Tennessee, and a citizen of the United States, who at the

initiation of the original action was on the teaching staff at the

University of Tennessee, Nashville Extension, who sued on behalf

of himself and all other white residents of the State of Ten-

nessee, as well as faculty and staff members similarly situated

at the University of Tennessee, Nashville Extension; Harold Sweatt,

a citizen and resident of the State of Tennessee, and a citizen of

the United States who at the initiation of the original action

was a senior student at the Wilson County High School in-

tending to enroll as a student at Tennessee A&I State University,

who sued on behalf of himself and all other black students, and

black residents of the State of Tennessee similarly situated; and

Phillip Sweatt, as the father and next friend of Harold Sweatt

who also sued on behalf of himself and all other black parents in

the State of Tennessee, and black residents similarly situated).

ait

OPINION BELOW

The Court of Appeals below dismissed the Petitioner’s

appeal without opinion. (Appendix A). The District Court

dismissed, without opinion, Petitioner’s Motion to hear

his objections to the Stipulation of Settlement approved

by the District Court on September 25, 1984. (Appendix

B). The District Court also denied, without opinion, Peti-

tioner’s motion to substitute counsel. (Appendix C). The

opinion of the District Court approving the Stipulation

of Settlement is reported at 593 F.Supp. 1263.

JURISDICTION

The Order of the Court of Appeals for the Sixth Cir-

cuit dismissing Petitioner’s appeal was entered on June

12, 1986. A Motion for an extension of time to file a

Motion for Reconsideration along with a Motion for

Reconsideration was denied, and the Motion for Recon-

sideration was not heard. This Petition for Certiorari

was filed within 90 days of the date Petitioner’s appeal

was dismissed. This Court’s jurisdiction is invoked under

28 U.S.C. Section 1254 (1).

| STATUTORY PROVISIONS INVOLVED

Rule 23(e) of the Federal Rules of Civil Procedure:

Dismissal or Compromise. A class action shall not be

dismissed or compromised without the approval of the

court, and notice of the proposed dismissal or compromise

shall be given to all members of the class in such manner

as the court directs.

MLE MONLR SEE I IETS ne

STATEMENT OF THE CASE

This lawsuit was filed in 1968 pursuant to 42 U.S.C

§2000 c-2000 c-9, §401-410 of the Civil Right Act of 1964

and the Federal Declaratory Act, U.S.C. §2201, 2202, in

an effort to dismantle the dual, segregated system of

public higher education in Tennessee. The original plaintiffs

included four subclasses: Rita Sanders (now Rita Geier),

faculty member at Tennessee A&I State University (herein-

after ‘‘Tennessee A&I’’) now Tennessee State University,

(hereinafter ‘‘TSU’’); Patrick J. Gilpin, faculty mem-

ber at the University of Tennessee, Nashville (herein-

after ‘‘UTN’’); Harold Sweatt, then a student at Wilson

County High School intending to enroll at Tennessee

A&I; Philip Sweatt as next friend and parent of Harold

Sweatt; and Petitioner here, Ernest Terrell, a student

then enrolled at Tennessee A&I. Petitioner Terrell, as

with all the other original plaintiffs, also sued as

representatives of the subclass of which they were

members, with Petitioner Terrell acting as class rep-

resentative for students enrolled at Tennessee A&I. At-

torney George Barrett was counsel for all plaintiffs as

well as for the classes they represented.’

The proceedings from 1968 through 1980 involved

various orders by the District Court ordering the integra-

tion of traditionally white institutions at a ‘‘constitutionally

permissable rate of speed.’’ Geier v. Dunn, 337 F.Supp.

573, 580 (M.D. Tenn. 1972). By 1977, the Court found

that desegregation was moving slowly and ordered the

merger of TSU with the predominantly white UTN in

order to speed the dismantling of the dual system. Geier

v. Blanton, 427 F.Supp. 644, 660 (M.D. Tenn. 1977).

That decision was appealed by defendants Tennessee

3 Although never formally certified as a class action, this case has

been treated by the courts as a class action since the inception of

the lawsuit, and relief has been granted as a class.

oe

Higher Education Commission and UTN and the Sixth

Circuit Court of Appeals affirmed. This Court denied a

petition for certiorari. Geier v. University of Tennessee,

597 F.2d 1056 (6th Cir. 1979), cert. denied, 444 U.S.

886, 100 S.Ct. 180, 62 L.Ed.2d 117 (1979).

In 1980, plaintiff-intervenors Richardson, et. al., filed

a motion for further relief, contending that the slow

progress of desegregating the state’s predominantly white

schools had stopped. Additional motions for further

relief were filed in 1981 by the original plaintiffs and

in 1983 by plaintiff-intervenors McGinnis, et al. contend-

ing in part that the merger of UTN and TSU was not

succeeding and that TSU was in fact resegregating.

On July 30, 1984, a tentative settlement was reached

by the attorneys allegedly representing the parties involved.

That agreement, the Stipulation of Settlement, was ap-

proved by the District Court on September 25th, 1984

after a hearing on the objections of the United States

Department of Justice. Geier v. Alexander, 593 F.Supp.

1263 (M.D. Tenn. 1984) The hearing did not include the

Petitioner’s subclass which had received no notice or

opportunity to be heard.

Dr. Terrell, a named plaintiff and class representative

for the subclass of students enrolled at TSU, was

never consulted with respect to the Stipulation of Settle-

ment by the attorney representing the original four classes

of plaintiffs. Indeed, Dr. Terrell was not even aware of

such Settlement, as no attempt was made by the Court

Or anyone to notify him as representative of his sub-

class. Nevertheless, immediately upon hearing of the

Stipulated Settlement, Dr. Terrell attempted to have his

objections heard by the District Court, by letter of

October 18, 1984. (Appendix G). In his letter, Dr. Terrell

stated that he was _ unfamiliar with the contents of the

Stipulation of Settlement, and asked for the opportunity

to consult with counsel so he could more formally note

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his objections to the Settlement. Subsequently, on Novem-

ber 14, 1984 Dr. Terrell filed a Motion formally notify-

ing the Court of his objection to the Settlement agree-

ment. (Appendix E.). In a separate Motion, he also re-

quested that Richard E. Jackson be substituted as his

counsel replacing George Barrett. (Appendix F). On

November 16, 1984, both of the Motions filed by Terrell

were summarily denied by the District Court without

comment. (Appendix B and C). Thereafter, Terrell filed

an appeal to the United States Court of Appeals for the

Sixth Circuit, seeking review of the District Court’s

refusal to hear his objections. (Appendix D).

On appeal, plaintiff/appellants Raymond Richardson,

Jr. et al. and plaintiff/appellees Rita Geier, et al. moved

the Court to dismiss Dr. Terrell’s appeal pursuant to

Rule 27 of the FRAP and Rule 8 of the United States

Court of Appeals for the Sixth Circuit. Rule 8 of the

Rules of the Sixth Circuit provides that motions to dis-

miss ordinarily may not be filed for other than juris-

dictional grounds. As grounds for dismissal, both movants

argued lack of standing, though plaintiff/appellees Rita

Geier also argued for dismissal on the grounds that

Dr. Terrell was not a lawyer and thus could not serve

as counsel for the class members he allegedly represented.

In opposition to the Motions to dismiss, Dr. Terrell

argued that he was not trying to represent the class as

their counsel, but rather was merely trying to preserve

their claim as their representative. With respect to stand-

ing, Dr. Terrell submitted that he had standing as the

only viable representative of his subclass, TSU students,

irrespective of any personal stake he may still have.

The court of Appeals for the Sixth Circuit granted

Richardson’s and Geier’s motions to dismiss. (Appendix

A).

On June 25th, Petitioner Terrell filed a Motion for an

extension of time to file a Motion for Reconsideration.

Pec, ae

During the pendency of that Motion, Petitioner Terrell

filed a Motion for Reconsideration and in addition

filed a Motion to substitute Gregory Carr, the current

president of the Student Government Association at TSU

as named class representative in the event Dr. Terrell was

determined to be an inadequate representative of the sub-

class of students at TSU. (Appendix H). Mr. Carr filed

his Affidavit stating his desire to represent the subclass

(Id.) Petitioner’s Motion for an extension of time was

denied, and thus his Motion for Reconsideration was not

considered.

Dr. Terrell petitions for a Writ of Certiorari only for

the dismissal of his appeal by the Sixth Circuit, and

not for matters involving the Motion for Reconsideration.

REASONS FOR GRANTING THE WRIT

1. PETITIONER HAD STANDING TO APPEAL

AS THE NAMED CLASS REPRESENTATIVE OF A

SUBCLASS IN THIS CLASS ACTION EVEN THOUGH

HE HAD LOST HIS ‘‘PERSONAL STAKE”’ IN THE

OUTCOME OF THIS CASE, AND DISMISSAL BY

THE COURT OF APPEALS OF PETITIONER’S AP-

PEAL FOR LACK OF STANDING IS IN DIRECT

CONFLICT WITH DECISIONS OF THIS COURT AND

DECISIONS IN OTHER CIRCUITS.

INTRODUCTION

The first issue presented by Petitioner for review |

before this Court is whether a class action becomes

moot as to all parties upon the loss of a ‘‘personal

stake’? by the named representative of a particular

class. More specifically, does Petitioner, Dr. Ernest Ter-

rell have standing to appeal the summary denial of his

= =o

attempt on behalf of his subclass to have his objections

heard with respect to the Stipulation of Settlement ap-

proved by the District Court. Petitioner respectfully sub-

mits that the Sixth Circuit’s dismissal for lack of stand-

ing of Petitioner’s claim is in direct conflict with appli-

cable decisions of this Court. In addition, Petitioner sub-

mits that the lack of clear parameters on the question

of mootness in class actions is creating such conflict

among the Circuits, and indeed the decisions of this Court

are becoming so irreconcilable that it is appropriate for

this Court to address these questions in the context of

Petitioner’s claim. Petitioner Ernest Terrell respectfully

requests that this Court grant his Petition for a Writ of

Certiorari.

ARGUMENT

The Sixth Circuit did not provide its reasons for dis-

missing Petitioner’s appeal, merely saying that ‘‘upon

consideration of the motions [to dismiss] of appellees

Richardson and Geier...the appeal is dismissed.’” Appendix

A). However, upon review of appellees’ motions

and briefs, it is clear that lack of standing was the

Court of Appeal’s grounds for dismissal, for that is the

only contention both motions had in common, and the

Court referred to the motions of both appellees.‘ Peti-

tioner submits that the decisions of this Court mandate

the conclusion that Petitioner does have standing, and

that despite his loss of a ‘‘personal stake’’ in this class

4 In addition to standing, appellee Geier also argued that Dr. Terrell

was improperly representing his class on the grounds that he was

not a lawyer. As Motions to Dismiss in the Sixth Circuit are ordi-

narily only granted for lack of jurisdiction (Rule 8 of the Rules

of the Sixth Circuit Court of Appeals), Petitioner believes this

issue did not figure into the Sixth Circuit’s decision.

libiien

litigation, this action is not moot.

Conflict With Supreme Court Decisions

In United States Parole Commission v. Geraghty, 445

U.S. 388, 100 S.Ct. 1202, 63 L.Ed2d 479 (1980), this

Court held that though the named plaintiff and putative

class representative had lost his individual stake in the

outcome of his suit, the controversy remained alive for

‘fat least some members of the class respondent seeks to

represent.’’ 445 U.S. at 396, 100 S.Ct. at 1208. In Geraghty,

a prisoner filed a class action contesting the legality of

federal parole release guidlelines. The District Court denied

class certification and then granted summary judgement

for the defendants. Geraghty appealed both the denial of

class certification and the decision on the merits. Before

the case reached the Supreme Court, Geraghty had been

released, and thus, his ‘‘personal stake’’ in the action had

expired. This Court noted two aspects for mootness:

When the issues presented are no longer ‘live’ or the

parties lack a legally cognizable interest in the out-

come.

445 U.S. at 396, 100 S.Ct. at 1208.

This Court found with respect to the first prong that:

It is clear that the controversy over the validity of the

Parole Release Guidelines is still a ‘live’ controversy

between petitioner and at least some members of the

class respondent seeks to represent.

445 U.S. at 396, 100 S.Ct. at 1208 (emphasis added).

This Court concluded that the question of who is to

represent the class is a separate issue, and remanded

the case to the District Court to determine whether

Geraghty should continue to represent his class or whether

another representative would be appropriate. 445 U.S.

at 407, 100 S.Ct. at 1205.

In the instant case, Petitioner Terrell is also a named

plaintiff and class representative, for the subclass of

students enrolled at TSU (formally known as Tennessee

A&I State University) who were victims of Tennessee’s

segregationist policies which gave rise to this complex

litigation. As with Geraghty, Petitioner’s personal stake

in this action has become moot in that eighteen years

after this action was begun, he is, not surprisingly,

no longer a student at TSU. Though Petitioner does

have a niece now enrolled there, and a brother who is

a faculty member (the faculty at TSU were also an

original subclass in this action), Petitioner concedes for

purposes of this argument that he no longer has stand-

ing to pursue his own claim, and this action is moot as

to him. However, it is clear from Geraghty that even

an uncertified class has the right to have its claim appeal-

ed by its named class representative, even though that

representative has no standing to pursue his individual

claim. Indeed, the case at bar is even stronger than the

one presented in Geraghty in that Geraghty involved an

uncertified class which had never gained recognition as a

class. There, the mere right to appeal the denial of certi-

fication was enough to give standing to a class representa-

tive who had lost his personal stake.

Here, Petitioner Terrell seeks to preserve the claim

of his subclass by attempting to have their objections

heard by the District Court, a District Court which

has approved a Stipulation of Settlement granting

Petitioner’s subclass relief as a class. As Geraghty

abandons the necessity for class certification originally

set forth in Sosna v. lowa, 419 U.S. 393, 399, 95

S.Ct. 553, 42 L.Ed.2d 532, 541 (1975), it is mandated

by this Court’s decision in Geraghty that the class

this Petitioner seeks to represent, by virtue of the fact

that it has been granted relief as a class, should not

have had its appeal dismissed merely because its named

si in

class representative no longer had a ‘‘personal stake’’ in

this action’s outcome.

Petitioner also represents a class which asserts a claim

capable of repetition but evading review, at least with

respect to the repeated harm done to students as a class

at TSU. Sosna v. Iowa, 419 U.S. at 400-401, 95 S.Ct. at

558, 42 L.Ed.2d 532 (1975). Students by their very nature

are transient, and even a student who brings suit in his

freshman year would be hard-pressed to see through a

complex civil rights case, even if he stayed more than

the ordinary four years. Clearly, as with Geraghty and

Sosna, Petitioner represents a class which for reasons

beyond its control, is having tremendous difficulty being

heard.

Lest Respondents were to argue that Geraghty is dis-

tinguishable because new prisoners who were to be affect-

ed by the guidelines had moved to intervene, Petitioner

would only note that Petitioner moved to substitute

Gregory Carr, the current representative of the Student

Government Association at TSU for himself when his

Motion for Reconsideration was filed. (Appendix H).

Mr. Carr filed his affidavit stating his interest and

willingness to represent the subclass. (Id.) Such motion

was not heard due to the Sixth Circuit’s denial of

Petitioner’s Motion for Extension of Time to file for

Reconsideration.

Clearly, there is a ‘‘live controversy’? between Res-

pondents and other participants in the Stipulation of

Settlement and students formerly and currently enrolled

at TSU. The District Court recognized this in its opinion

approving the Stipulation of Settlement, saying:

During the pendency of this matter there has been a

march of TSU students on the courthouse, public

statements by student leaders, and letters to the editor

by faculty members...

Geier v. Alexander, 593 F.Supp. 1263, 1267 (M.D. Tenn.

=. =

1984). However, when those students’ class representative

attempted to make their voice formally heard, the Dis-

trict Court denied his Motion to state his objections,

and to substitute counsel, even though the subclass’

attorney George Barrett was no longer representing their

interests.

In conclusion, Petitioner submits that the Sixth Cir-

cuit’s dismissal of Petitioner’s appeal as class representa-

tive for the subclass of students at TSU was in direct

conflict with Geraghty and other applicable decisions

of this Court. On these grounds alone, Petitioner respect-

fully submits that his Petition for a Writ of Certiorari

be granted.

Conflict with Circuit Court Decisions

Petitioner would also show that the Sixth Circuit’s

dismissal of this appeal is in conflict with decisions in

other Circuits. In addition, Petitioner respectfully submits

that opinions of this Court and other lower Courts are

irreconcilable on the issue of mootness presented by this

case, and that the parameters of the ‘‘flexible’’ approach

to mootness is an important question of federal law

which this Court has not yet settled, but needs to be

settled.

At least one commentator has noted the fact that

there are a ‘‘plethora of opinions concerning the viability

of class claims following the mootness of the named

plaintiff’s claims.’? 1 H. Newberg, Newberg on Class

Actions. Section 2.33 at p. 123 (2d.ed. 1985 & Supp.

1986). Indeed, this Court acknowledged the ‘‘somewhat

confusing”’ and ‘‘irreconcilable’’ Supreme Court opinions

on the issue of mootness. Geraghty, 445 U.S. at 406, n

11, 100 S.Ct. at 1213, n 11.

Newberg, in his treatise on Class Actions discussed

cel Rite

the reasons for this confusion:

Judicial interpretation of the mootness doctrine gen-

erally displays a tension between the goals of the

class device and the unwillingness tc reduce the

named plaintiff to figurehead status by diluting the

requirement that the putative class representative

have a tangible personal stake in the outcome of

the suit throughout the entire litigation. This concern

is also evident in disputes over the adequacy of rep-

resentation in class certification determinations, as

courts vacillate between class counsel and the named

plaintiff as primary targets of an analysis of the

requirement. In both cases, judicial uneasiness seems

to reflect an aversion to counsel-controlled litigation...

1 H. Newberg, Newberg on Class Actions, Section 2.33

at p. 122 (2d ed. 1985 & Supp. 1986).

It is Petitioner’s belief that this litigation has become

counsel-controlled, and that George Barrett does not rep-

resent the interests of Petitioner’s class.

Cases in this Court which are difficult to reconcile

with Geraghty include Board of School Commissioners

v. Jacobs, 420 U.S. 128, 95 S.Ct. 848, 43 L.Ed.2d 74

(1975) (per curiam), Weinstein v. Bradford, 423 U.S.

147, 96 S.Ct. 347, 46 L.Ed. 2d 350 (1975) (per curiam),

and Pasadena City Bd. of Education v. Spangler, 427

U.S. 424, 96 S.Ct. 2697, 49 L.Ed. 2d 599 (1976). In

Jacobs, dismissal of the putative class suits was ordered

after the named plaintiffs’ claims became moot. The

lower court; had not complied with the requirements

of Fed. R. Civ. P. 23(c) by not properly identifying the

class it was attempting to certify. In Weinstein, the trial

court denied certification when the class representative’s

claims were moot. Finally, in Spangler, an action was

filed as a class action and treated as such though never

formally certified, and the Court indicated that ‘‘the action

would have been moot upon the expiration of the plaintiff’s

ee

claims had not the United States intervened as a party

plaintiff.’’ Geraghty, 445 U.S. at 400, n 7, 100 S.Ct. at

1211 n 7. One Court has suggested that these cases ‘‘ap-

pear in fact, to have been effectively overruled.’’ Berry

v. Pierce, 98 FRD 237, 242 (E.D. Tex. 1983).

Conflict within the Circuits is evidenced by Willard v.

Ciccone, 507 F.2d 1 (8th Cir. 1974) (Petitioner not an

appropriate class representative since he had been trans-

ferred to a different facility after the action had been

filed); Heard v. Mueller Company, 464 F.2d 190 (6th

Cir. 1972) (Plaintiff no longer a member of the defendant

company or the Steelworkers bargaining unit, and thus

could not provide proper representation of the class he

sought to represent); Huff v. N.D. Cass Co., 468 F.2d

172 (Sth Cir. 1972) (Discharged employee not entitled to

reinstatement was not an appropriate representative of

black employees of the defendant company); Jackson v.

Schweiker, 683 F.2d 1076 (7th Cir. 1982) (Though plaint-

iff’s claim may have been mooted by the time the appel-

late court decided the appeal, there was still a case or

controversy in the claims of the certified class sufficient

to decide the appeal—case remanded to determine

plaintiff’s right to continue as representative). See also

Davis v. Bull Memorial Hosp. Assn., Inc., 753 F.2d

1410 (7th Cir. 1985), Chu Drua Cha v. Noot, 696 F.2d

594 (8th Cir. 1982) and Carpenter v. Stephen F. Austin

State Univ., 706 F.2d 608 (Sth Cir. 1983).

In conclusion, though it is indisputable that a plaintiff

must have individual standing to bring a legal action,

whether in an individual or representative capacity, it is

not clear whether the same threshold requirement must

be satisfied throughout the action by the named plaintiff

in a class action. Geraghty strongly suggests that a named

plaintiff need not retain his ‘‘personal stake’’ to avoid

mootness, and if this Court agrees, Petitioner respect-

fully submits that it should grant certiorari because the

=, on

Sixth Circuit’s dismissal of the case at bar is in direct

conflict with this Court’s ruling. If this Court finds this

question to be unsettled, then pursuant to Rule 17 of

the Rules of the Supreme Court, this Court should grant

certiorari to settle that question.

Important rights such as the right to notice and due

process are at stake. Petitioner merely seeks to preserve

the claim of the class he represents, either in his own

capacity or, if another representative is more appropriate,

then Petitioner will step aside. In any event, the subclass

of students at TSU, who are the parties who will be

most affected by the recent Stipulation of Settlement

should at the very least have their objections heard and

be represented by counsel who in their opinion, will best

represent them. Therefore, as the Sixth Circuit’s dismissal

of Petitioner’s appeal as the named representative of his

subclass was in conflict with decisions of this Court, and

presents important unsettled questions of federal law,

Petitioner respectfully submits that its Petition for a Writ

of Certiorari be granted.

2. THE DECISION BELOW CONFLICTS WITH

DUE PROCESS STANDARDS ESTABLISHED BY

THIS COURT AND WITH THE INTERPRETATION

OF FED. R. CIV. P. 23(e) AS APPLIED BY OTHER

CIRCUIT COURTS OF APPEAL.

INTRODUCTION

The right of named and absentee parties in class action

litigation to receive notice of a proposed settlement and

the opportunity to be heard is the nexus of the instant

controversy. The denial of fundamental due process

ay ae

rights permeates the proceedings of the District Court

and is implicitly condoned in the Sixth Circuit decision

dismissing Petitioner’s claim. The interpretation and appli-

cation of Fed. R. Civ. P. 23(e) (hereinafter ‘‘Rule 23(e)’’)

by the courts involved in this proceeding conflicts in

principle with the decisions rendered in other Circuits and

the denial of due process which underlies the lower

courts’ actions violates standards long-established by this

Court. Petitioner respectfully suggests that this Court

resolve this conflict and articulate more precise standards

relevant to due process considerations inherent in Rule

23(e) pertaining to Rule 23(b)(1) and (2) class action

litigation.

It is significant to note that if the due process rights

of Petitioner and the subclass had been satisfied by the

District Court, the present controversy would not have

arisen. Furthermore, by providing such due process, the

public policy purpose of class action litigation (judicial

expediency in deciding large number of claims) and the

policies favoring settlement and finality of decision would

have been fostered. Consideration of this matter by the

Court would both alleviate significant conflicts which

this case presents and promote the public policy of

consistent and expeditious judicial administration in the

class action area.

ARGUMENT

Importance of the Issue

Unlike the relative certainty of the notice require-

ments related to a Rule 23(b)(3) action, as articulated

by this Court in Eisen v. Carlisle & Jacqueline, 417 U.S.

156, 94 S.Ct. 2140, 40 L.Ed.2d 32 (1974), the due process

protections afforded to Rule 23(b)(1) and (2) parties are

subject to the broad and subjective language of Rule 23

(e). Such broad language invites abuse and a more precise

a,

articulation of the Rule 23(e) due process standards is

needed to insure the protection of future class action

litigants. The distinction between the notice requirements

of Fed. R. Civ. P. 23(b)(3) and 23(b)(1) and (b)(2) has

been criticized by some commentators. In fact, some

courts have suggested that the strict ‘‘best notice prac-

ticable’’ standard be applied to the latter category of

litigants. Franks v. Kroger Company, 649 F.2d 1216, 1227

(6th Cir. 1981) (concurring opinion). There is a need for

a uniform rule on this issue because of the broad im-

pact inherent in class actions and the essential safeguards

Rule 23(e) must provide.

Rule 23(e) states that ‘‘a class action shall not be dis-

missed or compromised without the approval ‘of the court

and notice of the proposed dismissal or compromise shall

be given to all members of the class in such manner as

the court directs.’’ (emphasis supplied). The statutory

language indicates that notice is mandatory, yet the

method of achieving such notification (i.e. ‘‘as the court

_ directs’’) is not defined. The Sixth Circuit has stated

that ‘‘this language provides the courts with ‘virtually

complete discretion’ in selecting the kind of notice to

employ in order to inform class members of a settlement

hearing.’’ Franks v. Kroger, 649 F.2d at 1222-23.

However, this ‘‘complete discretion’’ must be limited

by basic due process considerations which Rule 23(e) is

intended to assure. Although the Advisory Committee

Notes on Rule 23(e) shed little light upon the mechanics

of the Rule, it has been recognized that the ‘‘special

function’”’ of the Rule is ‘‘to assure that any person whose

rights would be affected by a dismissal or compromise

has the opportunity to contest the proposed action.’’

Pearson v. Ecological Science Corp., 522 F.2d 171, 176-

77 (Sth Cir. 1975). (Quoting 7A C. Wright & A. Miller,

Fed’! Practice and Procedure, §1797, at 234 (1972)).

Although a court may properly exercise its discretion in

a See

establishing the form of notice in the 23(b)(1) and (2)

class action, some form of notice is mandatory. Walsh v.

Great Atlantic & Pacific Tea Co., 726 F.2d 956, 962-3

(3rd Cir. 1983).

The procedures utilized by the lower courts in the

present controversy stand in direct conflict with the

holdings of other circuits. There was no notice at all

given in this case. Moreover, by couching its decision in

terms of ‘‘standing,’’ the Sixth Circuit has established a

far-reaching precedent which renders the due process

question presented in this case likely to be repeated but

incapable of review. The form and extent of Rule 23(e)

notice, the rights of original parties to substitute the

named class action plaintiff and to substitute counsel,

and the fiduciary duties of both counsel and the court

to absentee class members are important questions which

require the attention of this Court. The circumstances of

the present controversy, by no means uncommon, present

an appropriate context in which the above issues can be

appropriately addressed.

Conflict with Supreme Court Decisions

The procedures utilized by the lower court in this case

contradict the basic due process guidelines established by

this Court. The due process standard that ‘‘notice’’ must

satisfy has been articulated by this Court as a procedure

which ‘‘fairly insures the protection of the interests of ab-

sent parties who are to be bound by (the judgement).”’

Hansberry v. Lee, 311 U.S. 32, 61 S.Ct. 115, 85 L.Ed. 22

(1940). The most frequently cited case regarding due

process requirements of notice is Mullane v. Central Hann-

over Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652,

94 J..Ed.2d 865 (1950): , 7

= =

An elementary and fundamental requirement of due

process in any proceeding which is to be accorded

finality is notice reasonably calculated, under all the

circumstances to apprise interested parties of the

pendency of the action and afford them an op-

portunity to present their objections.

339 U.S. at 314, 70 S.Ct. at 657.

In the instant controversy, the lower courts exceeded

the permissable boundaries of the ‘‘complete discretion’’

standard enunciated in Franks v. Kroger, supra in that

rather than tailoring the form of notice to the circum-

stances of the case, it required no notice at all. Such

inaction is an egregious violation of fundamental due

process rights and highlights the need for this Court to

consider the question and establish a better defined Rule

23(e) due process standard. While it is true that in some

class action cases (usually involving dismissals rather than

settlements) notice has not been required by the courts,

such instances are rare and are justified because absent

class members have neither been prejudiced nor have they

relied upon the adequate representation of the named

plaintiff. See, Larkin General Hospital LTD v. AT&T, 92

FRD 497 (ED Pa. 1982).

Such is not the situation in the instant controversy.

The subclass most affected by the settlement, the students,

are bound by the provisions of the settlement which

will determine the racial composition of their institution

and more importantly the manner in which such composi-

tion will be achieved. Petitioner is their named representa-

tive and he has a fiduciary duty to adequately represent

the class until replaced by an appropriate substitute.

Receiving no notice of the proposed settlement, Petitioner

was precluded from participating in the settlement until

after its approval. Similarly, the subclass received no

notice and justifiably relied upon their interests being

advanced by the Petitioner. The result is that although

ei

the subclass has significant objections to the settlement,

it has been denied a formal channel through which to

build an evidentiary record. The lower court was thus

unable to properly exercise its discretion in approving

the settlement.

This chronology of events contradicts the due process

standards articulated in Hansberry and Mullane, supra,

and evidences a standard of law which not only injures

the hundreds of students in the subclass, but also threatens

the due process rights of all future absent class members

in this and other class action suits who will be bound

by decisions of the Sixth Circuit and lower courts in ad-

herence to this dangerous precedent.

Conflict with Courts of Appeal Standards

The actions of the District and Sixth Circuit Courts

in this matter are not only contrary to the due process

standards articulated by this Court but also contradict the

holdings of other circuits. See, McArthur v. Southern

Airways, Inc., 556 F.2d 298, 302 (Sth Cir. 1977); Holmes

v. Continental Can Co., 706 F.2d 1144, 1147 (11th Cir.

1983); Mandujano v. Basic Vegetable Products Inc., 541

F.2d 832 (9th Cir. 1976); Grunin v. Int’! House of Pan-

cakes, 513 F.2d 114, 120-21 (8th Cir.) cert. denied , 423

U.S. 864, 96 S.Ct. 124, 46 L.Ed.2d 93 (1975); Walsh v.

Great Atiantic & Pacific Tea Co., 726 F.2d at 962-3. As

noted by Newberg in his definitive treatise, supra at

Section 11.59, p. 486, ‘‘Appellate Courts have rejected

District Court’s approvals of settlement in cases where the

lower court acted without sufficient facts concerning the

proceedings, failed to permit the objector the right to

develop an independent evidentiary record...(and) where

there was lack or inadequacy of notice.”’

After the settlement had been approved and formally

a

announced, Petitioner notified the District Court of his

objection to the settlement based upon his lack of notice

and subsequently moved for a hearing on his objection

and the substitution of counsel. Both motions were sum-

marily rejected in conflict with holdings in other circuits

that ‘‘original plaintiffs ... should be given the oppor-

tunity to retain a new counsel to represent them in

objecting to the settlement and to be heard in opposition.”’

Flinn v. FMC Corp., 528 F.2d 1169, 1174, n. 19 (4th

Cir. 1975). See, Pettway v. American Cast Iron Pipe Co.,

576 F.2d 1157, 1178-79 (Sth Cir.) cert. denied 439 U.S.

1115, 99 S.Ct. 1020, 59 L.Ed.2d 74 (1978), Saylor v. Lind-

sley, 456 F.2d 896, 899-90 (2nd Cir. 1972). Ace Heating &

Plumbing Co. v. Crane Co., 453 F.2d 30, 33-4 (3rd Cir.

1971).

As a result, Petitioner filed his notice of appeal in

the Sixth Circuit in an attempt to preserve the claim of

the subclass (Appendix D). Having been denied in his re-

quest to substitute counsel by the District Court, Peti-

tioner’s attempt to substitute parties was never considered

by the Sixth Circuit (Appendix H). However, the duty of

adequate representation of absent class members does not

rest solely upon the named representative. The court must

take an active role in the administration of the case. As

stated in Newberg on Class Actions, supra at Section

8.18, p. 133; |

When a class denial or dismissal of the plaintiff’s

claims may serve to prejudice absent class members

and foreclose any meaningful opportunity for the

class to obtain redress...the disqualified plaintiff

may request that the court, or the court may on its

own motion, direct notice to the class to determine

if a qualified representative is available to substitute

for the plaintiff. (emphasis supplied).

Because of the binding effect of class action litigation

upon absentee parties, special duties are placed upon the

an. ae

participants. Both the court and class counsel share a

fiduciary duty ‘‘to ensure that absent class members have

knowledge of the proceedings in which a final judgment

may directly affect their interests.’’ Greenfield v. Village

Industries, 483 F.2d 824 (3rd Cir. 1973). The court has

an ‘‘independent obligation’’ to provide absentee class

members with notice prior to a settlement and failure to

sO comply is reversible error. McArthur v. Southern Air-

ways Inc., 556 F.2d at 302. Furthermore, a ‘‘compelling

obligation’’ rests upon class counsel that he be aware of

and motivated by the best interests of the class which

he represents. Parker v. Anderson, 667 F.2d 1204, 211

(Sth Cir.) cert. denied, 459 U.S. 828, 103 S.Ct. 63, 74

L.Ed.2d 65 (1982). The Sixth Circuit’s failure to recognize

such duties is irreconcilable with the holdings of other

circuits. More importantly, such failure presents a serious

problem for the viability of class action litigation which

will be recurrent and yet evade review unless this Court

establishes the appropriate standards.

In order to protect absentee class members, Rule 23(e)

requires court approval of compromise settlements in a

class action. Although the Rule contains no standard for

such approval, it_is now established that the court must

find the settlement ‘‘fair, adequate and reasonable.’’

Bennet v. Behring Corp., 737 F.2d 982, 986 (11th Cir.

1984). Miller v. Republic National Life Ins. Co., 559

F.2d 426 (Sth Cir. 1977). This statutory mandate that

the court oversee and protect the interests of the class

is bolstered by the general equitable powers of the court.

Zients v. Lamorte, 459 F.2d 628 (2nd Cir. 1972). In

the exercise of its discretion in approving a settlement,

the Court must consider a number of factors, including

‘the respective opinions of the participants, including

class counsel, class representative, and absent class mem-

bers’’ and the ‘‘probability of the plaintiff’s success on

the merits.’’ Parker v. Anderson, 66 F.2d at 1209.

alles

Consideration of these and other factors forcefully indi-

cate that the Rule 23(e) requirement of notice is intricately

related to the proper exercise of the court’s discretion in

approving a settlement.

In the instant controversy, the opinions of the class

representative and absentee class members were neither

considered nor solicited. The advocacy of their interests

in the negotiations and subsequent approval of the settle-

ment depended solely upon the class attorney who failed

to communicate with either the named representative or

absentee class members. The class attorney also represent-

ed three other distinct subclasses.

The absentee class members, students at TSU, relied

upon the adequate representation by Petitioner, who was

involuntarily precluded from any involvement in the settle-

ment. Petitioner attempted to gain access to the District

Court in fulfillment of his obligations as class representa-

tive immediately upon learning of the settlement. His ef-

forts were unsuccessful and his subclass thereby denied

the opportunity to offer evidence pertaining to the standards

by which a class action settlement is approved. It should

be noted that the United States also objected to the settle-

ment and has been able to pursue such objections in

the Sixth Circuit.

The decision of the trial court in approving the settle-

ment was based upon its knowledge of the record and

proceedings and the opinions and recommendations of a

few attorneys. Although the recommendations of counsel

may carry great weight, ‘‘the degree of deference given

counsels opinions depends, however, upon the posture of

the case and upon the amount of dissent within the ‘client’

class.”” Holmes v. Continental Can Co., 706 F.2d 1144

(11th Cir. 1983). Furthermore, although the assent of the

class representative to a proposed settlement is not manda-

tory, the attorney is not ‘‘the dominus litis and the

plaintiff only a key to the courthouse.’’ Saylor v. Lindsley,

ae, he

456 F.2d at 899-900 (court’s emphasis). It appears from

the record that although the original plaintiffs, including

Petitioner, were the driving force behind the attack upon

the dual system of education in Tennessee, they soon be-

came mere ‘‘keys’’ to the courthouse and their rights

and interests were negotiated and settled without any

consultation. Although Saylor v. Lindsley, supra, was a

derivative stockholders suit, the duties of the plaintiff’s

attorney is comparable to the class action attorney.

The attorney remains bound to keep his client fully

informed of settlement negotiations, to advise the

client before signing a stipulation of settlement on

his behalf, and, if the client has objected, to in-

form the court of this...so that it may devise pro-

cedures whereby the plaintiff, with a new attorney,

may himself conduct further inquiry.

Id.

The failure of a class attorney to properly perform his

role in the class action litigation results in a mere ‘‘rubber

stamping’’ by the court rather than the careful scrutiny

which is essential in judicial approval of class action

settlements.’’ Holmes v. Continental Can Co., 706 F.2d

at 1150.

The lower court’s failure to conduct a hearing on the

proposed settlement also precluded it from considering

the relative merits of the subclass’ claim as related to the

fairness of the settlement. This action directly conflicts

with the procedures of other circuits. In Armstrong v.

Bd. of School Directors, 616 F.2d 305 (7th Cir. 1980), the

court noted that the review of a class action settlement

proposal is a two step process. First, the court makes a

threshold determination as to whether the proposal is

within the range of possible approval. If it is, a fairness

hearing is conducted in which all possible parties have

the opportunity to be heard. It should be noted that

‘in school desegregation cases ... hearings on proposed

wane

remedies are almost universally held and it may well be an

abuse of discretion not to conduct one.’’ Mendoza v.

United States, 623 F.2d 1338, 1348, n. 8 (9th Cir. 1980).

It is only through such a hearing that due process

can be insured and finality of decision achieved. Most

circuit courts acknowledge that only through a settlement

hearing can an adequate record be established to justify

the discretionary decision of the trial court. As stated in

Plummer v. Chemical Bank, 668 F.2d 654, 659 (2nd Cir.

1982), ‘‘when a district court approves a settlement which

is not based upon ‘well-reasoned conclusions arrived at

after a comprehensive consideration of all relevant

factors, its decision will not survive appellate review.’’

(quoting Protective Committee v. Anderson, 390 U.S.

414, 434, 88 S.Ct. 1157, 1168, 20 L.Ed.2d 1 (1968)). See,

Flinn v. FMC Corp., 528 F.2d at 1173 (4th Cir. 1975).

In the instant controversy the lower court ignored this

requirement by approving the settlement without pro-

viding any forum whatsoever in which objections (other

than those of the United States Justice Department) could

be heard. It should be noted that such a forum can be

specifically tailored according to the peculiarities of the

case so that a forum for objections need not result in

unnecessary expenditure of expense or time. Id.

Although an actual hearing is not required in all cir-

cumstances, minimum due process standards set by Rule

23(e) dictate that adequate notice be given of a proposed

settlement so as to afford interested parties the oppor-

tunity to voice their objections and present their evidence.

Calhoun v. Cook, 487 F.2d 680, 683 (Sth Cir. 1973). The

notice must ‘‘convey the required information and afford

a reasonable time for those interested to make their

appearance.’’ Grunin v. International House of Pan-

cakes, 513 F.2d at 120-21. By not providing such notice,

the lower court has violated the due process rights of the

absentee class members. Air Lines Stewards & Stewardesses

pe.

Association, Local 550 v. American Airlines, 455 F.2d

101 (7th Cir. 1972), Reynolds v. National Football

League, 584 F.2d 280, 285 (8th Cir. 1978).

In conclusion, the proceedings of the lower courts in

this controversy stand in conflict with well established

standards of due process articulated by this Court and

are contrary to Rule 23(e) applications applied by other

circuit courts of appeal. The wide latitude which has

been read into the language of Rule 23(e) invites such

abuse and the lack of a uniform standard of interpretation

threatens substantial injury to all present and future parties

in Rule 23(b)(1) and (2) class action litigation. Therefore,

Petitioner respectfully requests that the Court grant his

application for Writ of Certiorari.

CONCLUSION

For these reasons, a writ of certiorari should issue to

review the order of the Sixth Circuit dismissing Petition-

er’s appeal.

R ec bmitted,

Ichard E.. Jackson ~

Attorney for Petitionér.

Suite 200—Jefferson ‘Plaza

‘Ss, 939 Jefferson Street

\ Nashville, Tennessee 37208

a, ae

CERTIFICATE OF SERVICE

I hereby certify that on this 2 say of Mf. 96,

three copies of the Petition for Writ of Certidérari were

mailed, postage prepaid, to George E. Barrett, 217 Second

Avenue North, Nashville, Tennessee 37201; Avon N.

Williams, Jr. and Richard H. Dinkins, 203 Second Avenue

North, Nashville, Tennessee 37201; Nathaniel Douglas,

Levern Younger and Miriam R. Eisenstein, Room 7732,

General Litigation Section, Civil Rights Division, U.S.

Department of Justice, Washington, D.C. 20530; Aleta

Arthur and John Norris, Hollins, Wagster and Yarbrough,

P.C., 8th Floor, Third National Bank Building, Nash-

ville, Tennessee 37219; Julius Chambers, Joel Berger and

Theodore M. Shaw, 99 Hudson Street, 16th Floor, New

York, New York 10013; and R. Stephen Doughty and

Richard L. Colbert, Assistant Attorneys General, 450

James Robertson Parkway, Nashville, Tennessee 37219-

5025; Carl A. Cowan, 1100 Crestview St., S.E., Knoxville,

Tennessee 37915; Lewis Laska, 901 Church St., Nash-

ville, Tennessee 37203; Julian Blackshear, Jr., 1000 Park-

way Towers, Nashville, Tennessee 37219; Juanita Logan

Christian, Suite 230 Hart Block Bldg. 730 W. Main St.,

“Louisville, Kentucky;40202; Beauchamp Brogan, Univer-

sity of Tennessee, 810 Andy Holt Tower, Knoxville,

Tennessee 37916; John Drinnon, Jr., Assistant General

Counsel, Administrative Bldg., University of Tennessee,

Knoxville, Tennessee, 3 916; and Charles Fried, Solicitor

General, U.S. Dept. of Justice, Washington,-D.C-20530,

counsels for respondents. I f !

required to be served have bg&

Suite 200—Jefferson/Pla

939 Jefferson Street =

Nashville, Tennessee 3 208

an.

APPENDIX

No. 84-6124

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

RITA SANDERS GEIER, ET AL., )

Plaintiffs-Appellees, ) F | L. E D

DR. ERNEST B. TERRELL, __ ) JUN 1 2 1986

eipicen ames JOHN P. HENMAN, Clerk

UNITED STATES OF AMERICA, )

Plaintiff-Intervenor,

ORDER

RAYMOND RICHARDSON, Jr. )

es Pik )

Plaintiff-Intervenor-Appellee _)

VS. )

LAMAR ALEXANDER, ET. AL., )

Defendants-Appellees )

BEFORE: LIVELY, Chief Judge; MILBURN, Circuit

Judge; and PECK, Senior Circuit Judge

Upon consideration of the motions of appellees Richard-

Appendix A (page | of 2)

ehasdeal ie

son and Geier to dismiss this appeal.

And further considering appellant’s response,

It is ORDERED that the motions be and they hereby

are granted and the appeal is dismissed.

ENTERED BY ORDER OF THE COURT

John P. Hehman, Clerk

“| LAreuel / re

Leonard Green, Chief Deputy

Appendix A (page 2 of 2)

saan

UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

RITA SANDERS GEIER, ET. AL. )

Plaintiffs, )

UNITED STATES OF AMERICA, ) fs f A Hs a

ae ?3

Plaintiff-intervenor, )

OV 141384

RAYMOND RICHARDSON, Jr., )

ET. AL., en

av -

DEPUTY CLEP

Plaintiff-Intervenors, )

COLEMAN McGINNIS, ET. AL., )

Plaintiff-Intervenors, )

RO. _ 5077 ;

Vv.

Judge Ticimas A

LAMAR ALEXANDER, ET. AL., ) wisefali, JT,

Defendants. )

MOTION FOR RULING UPON PREVIOUSLY FILED

OBJECTIONS TO THE PROPOSED

SETTLEMENT AGREEMENT

Dr. Ernest B. Terrell, as a representative of a subclass

of the original class of plaintiffs in the above-styled

action, appears herein by the undersigned, Mr. Richard

E. Jackson, his attorney, and moves the court as follows:

1. To rule upon the October 18, 1984 objection of Dr.

Appendix B (page | of 2)

ina,

Ernest Terrell to the proposed settlement agreement; or

2. To set a hearing date for the purpose of ruling

on the October 18, 1984 objection of Dr. Ernest Terrell

to the proposed settlement agreement.

Shed

Denied

signed by District Court Judge

Appendix B (page 2 of 2)

—s a

UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

RITA SANDERS GEIER, ET. AL., )

Plaintiffs, )

UNITED STATES OF AMERICA, ) ) Es F ft is 3:

Plaintiff-Intervenor, : NOV 141984,

RAYMOND RICHARDSON, JR., ) ME

ET. AL., ) sDyplon

we cree

Plaintiff-Intervenors, )

COLEMAN McGINNIS, ET. AL., )

Plaintiff-Intervenors, > Wg Be ie

v. Judge Thouas A, Wiseman, Jr.

LAMAR ALEXANDER, ET. AL., )

Defendants.

MOTION AND NOTICE FOR ORDER

SUBSTITUTING ATTORNEYS

Dr. Ernest B. Terrell, as representative of a subclass

of the original plaintiff class, moves the court for an

order substituting Mr. Richard E. Jackson, of 939 Jeffer-

son Street, Suite 200, Nashville, Tennessee 37208, as the

attorney of record for him and the subclass which he

represents herein, in place of Mr. George E. Barrett,

Appendix C (page i of 2)

ott Made

on the grounds that Dr. Terrell desires such substitution

and that he believes that his interests and the interests

of the sub-class will be best served by such substitution.

LY hS

Denied

signed by District Court Judge

Appendix C. (page 2 of 2)

—A-6—

UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

RITA SANDERS GEIER, ET. AL., )

Plaintiffs

UNITED STATES OF AMERICA,

FILED

DEC 17 1984

Plaintiff-Intervenor,

RAYMOND RICHARDSON, JR.,

es Pins

CLERK

SY.

DEPUTY CLERK

Plaintiff-Intervenors,

No. 5077

COLEMAN McGINNIS, ET. AL. Judge Thomas A. Wiseman

Plaintiff-Intervenors,

Vv.

LAMAR ALEXANDER, ET. AL.,

ee ee ee

Defendants,

NOTICE OF APPEAL

Notice is hereby given that Dr. Ernest B. Terrell, as

representative of a subclass of the original plaintiff

class, hereby appeals to the United States Courts of Ap-

peals for the Sixth Circuit from the District Court’s

denial of requests for relief dated November 16, 1984, in

which the movant requested that the District Court rule

Appendix D (page | of 3)

xa? heme

upon objections to the proposed settlement of the above-

referenced action, and that the movant be allowed to

obtain new counsel. Said action on the part of the court

has had the effect of imposing, without notice, upon the

sub-class which movant represents a settlement which

movant believes is not in its best interest without hav-

ing an opportunity to voice objection thereto.

Dated December 12, 1984.

Respectfully Submitted.

fad, MI

ERNEST B. TERRELL, M.D.

P.O. Box 1254

Martinsburg, W.V. 25401

Plaintiff

Appendix D (page 2 of 3)

waitin

CERTIFICATE OF SERVICE

I, Dr. Ernest B. Terrell, acting as-my own counsel in

the above-entitled action, hereby certify that on the 11th

day of December, 1984, I served the attached, via mail, on -

the following: George E. Barrett, 217 2nd Ave. No.,

Nashville, TN 37201, Atty. for Plaintiffs, Levern M.

Younger & Nathaniel Couglas, Civil Rights Division,

Department of Justice, Washington, D.C. 20530, Aleta

Arthur & John Norris, 8th Floor, Third National Bank

Bidg., Nashville, TN 37219, Avon Williams, Jr., & Richard

H. Dinkins, 203 2nd Ave. No., Nashville, TN 37201,

Julius Chambers, Joel Berger & Theodore M. Shaw, 99

Hudson St., 16th Floor, New York, N.Y. 10013, At-

torneys for Plaintiff-Intervenors, Raymond Richardson,

et.al., and W.J. Michael Cody, Atty. General and

Reporter, 450 James Robertson Parkway, Nashville, TN

37219-5025.

ERNEST B. TERRELL, M.D.

Appendix D (page 3 of 3)

as ta

UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

RITA SANDERS GEIER, ET. AL., )

Plaintiffs, )

UNITED STATES OF AMERICA,

° ° CLERK

Plaintiff-Intervenor,

a

<

DEPUTY CLERK

RAYMOND RICHARDSON, JR., ET. AL.,

Plaintiff-Intervenors,

COLEMAN McGINNIS, ET. AL.,

Plaintiff-Intervenors,

v.

LAMAR ALEXANDER, ET. AL.,

Nm mee eee ee ee ee”

Defendants.

MOTION FOR RULING UPON PREVIOUSLY FILED

OBJECTIONS TO THE PROPOSED

SETTLEMENT AGREEMENT

Dr. Ernest B. Terrell, as a representative of a sub-

class of the original class of plaintiffs in the above-

styled action, appears herein by the undersigned, Mr.

Richard E. Jackson, his attorney, and moves the court as

follows:

Appendix E (page | of 2)

—A-10—

|

1. To rule upon the October 18, 1984 objection of

Dr. Ernest Terrell to the proposed settlement agree-

ment; or

2. To set a hearing date for the purpose of ruling

on the October 18, 1984 objection of Dr. Ernest

Terrell to the proposed settlement agreement.

Respectfully Submitted,

Py ae ae

RICHARD E. JACKSON

MANSON, JACKSON & ASSOCIATES

939 Jefferson St., Suite 200

Nashville, TN 37208

(615) 254-1600

Appendix E (page 2 of 2)

—A-1l1—

- UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

RITA SANDERS GEIER, ET. AL.,

FiLeD

Hoy 141984

Plaintiffs,

UNITED STATES OF AMERICA,

Plaintiff-Intervenor, CLERK

DEPUTY CLERK

RAYMOND RICHARDSON, JR., ET. AL.,

Plaintiff-Intervenors,

COLEMAN MCGINNIS, ET. AL., |

Vv.

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

LAMAR ALEXANDER, ET. AL., )

)

)

Defendants.

MOTION AND NOTICE FOR ORDER

SUBSTITUTING ATTORNEYS

Dr. Ernest B. Terrell, as representative of a subclass

of the original plaintiff class, moves the court for an

order substituting Mr. Richard E. Jackson, of 939 Jeffer-

son Street, Suite 200, Nashville, Tennessee 37208, as the

attorney of record for him and the subclass which he

represents herein, in place of Mr. George E. Barrett, on

the grounds that Dr. Terrell desires such substitution

and that he believes that his interests and the interests of

the sub-class will be best served by such substitution.

Appendix F. (page 1 of 2)

—A-12—

Respectfully Submitted,

pls i

RICHARD E. JACKSON

939 Jefferson St., Suite 200

Nashville, TN 37208

(615) 254-1600

Appendix F (page 2 of 2)

—A-13—

Se ee en

Honorable Thomas A. Weisman, Jr.

Chief Judge

U.S. District Court

Middle District Tennessee

800 U.S. Court House

Nashville, Tenn. 37203

Dear Judge Weisman:

This letter is sent concerning Geier et al v. Alexander

et al, Civil Docket No. 5077.

As a representative of the subclass of plaintiff class, |

would like to state my unfamiliarity with the agreement

that has been reached in this case: On these grounds, I

would hereby indicate my formal objection to this settle-

ment; ask for an additional period of time to consult

with counsel to file the necessary documents needed to

more formally express my disapproval of this settlement;

and to prevent this settlement from being implemented

as an agreed order with leave for appeal if any of my

prayers are denied.

Your cooperation concerning this matter is much need-

ed and greatly appreciated.

Sincerely,

fi Lod ms

Ernest B. Terrell, M.D.

Appendix G (page | of 2)

—A-14—

STATE OF WEST VIRGINIA;

COUNTY OF BERKELEY:

Taken, subscribed and sworn to before the undersigned

authority by Ernest B. Terrell, M.D. in the County

aforesaid this 18th day of October, 1984.

an oe 2 ee,

Notary Public

My commission expires September 17, 1985.

Appendix G (page 2 of 2)

anh $—

IN THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

ERNEST TERRELL, et al.,

Plaintiffs-Appellants,

No. 84-6124

)

)

)

)

)

Vv. )

)

)

LAMAR ALEXANDER, et. al., )

Defendants-Appellees. )

MOTION FOR SUBSTITUTION OF PARTY

Dr. Ernest B. Terrell herein shows the court as follows:

1. On December 17, 1984, the above named appellant

filed a notice of appeal to this court from the order deny-

ing Plaintiff-Appellant Dr. Ernest B. Terrell request

that the District Court rule upon objections to the pro-

posed settlement of the above-referenced action, and that

the movant be allowed to obtain new counsel in the

United States District Court for the Middle District

of Tennessee—Nashville Division.

2. In 1968 Ernest Terrell was named as a plaintiff

in the original lawsuit. Geier v. Lamar Alexander which

sought to dismantle the segregated dual system of higher

education in the State of Tennessee. At that time he

was identified in the complaint as:

**A citizens and resident of the State of Tennessee

and a citizens of the United States. He is presently

enrolled and is a student at Tennessee A&I State

University. He sues on behalf of himself, and all

students enrolled at Tennessee A&I State University,

as well as all Negro residents of the State of Tennes-

Appendix H (page | of 8)

—A-16—

see similarly situated, which classes are toO numerous

to bring before the Court. Plaintiff being a member

of the Negro race.’’

3. Dr. Terrell has graduated from Tennessee A&l now

called Tennessee State University. (See attached affidavit)

4. Each year the students at Tennessee State University

elect a Student Government Association president, the

present president (Gregory Carr) is willing to be the

representative of the sub-class of students. (See attached

affidavit.)

Wherefore pursuant to the provisions of Rule 43(b)

of the Federal Rules of Appellate Procedure, Dr. Ernest

Terrell moves the court for an order substituting the

present (and future) president(s) of the Tennessee State

University Student Government Association in lieu of

himself as the named party in the above-entitled appeal.

Dated July 9, 1986

Respectfully submitted by,

L-Das.

Richard E. Jackson

Attorney for Plaintiff-Appellant

Dr. Ernest B. Terrell

Suite 200—Jefferson Plaza

939 Jefferson Street

Nashville, Tennessee 37208

Appendix H (page 2 of 8)

—A-17 —

CERTIFICATE OF SERVICE

I hereby certify that a true and exact copy of the fore-

going MOTION TO APPEAR AS ATTORNEY FOR

DR. ERNEST B. TERRELL, as Plaintiff-Appellant has

been served on each of the following: Mrs. Aleta G.

Arthur, 31 Wentworth Street, Charleston, SC 29401;

John L. Norris, Esq., Hollins, Wagster and Yarbrough,

P.C., 8th Floor, Third National Bank Building, Nash-

ville, TN 37219; R. Stephen Doughty, Deputy Attorney

General, 450 James Robertson Parkway, Nashville, TN

37219; Nathaniel Douglas, Ms. LeVern Younger and Ms. |

Miriam R. Eisenstein, Room 7732, General Litigation

Section, Civil Rights Division, U.S. Department of

Justice, Washington, D.C. 20530; Joe B. Brown, Esq.,

United States Attorney, 879 U.S. Courthouse, Nash-

ville, TN 37203; Carl A. Cowan, Esq., 1100 Crestview

St., S.W., Knoxville, TN 37915; and Julian W. Black-

Shear, Jr., Esq., 201 Citizens Plaza, 400 Deaderick

Street, Nashville, TN 37219; and Theodore M. Shaw,

99 Hudson St., 16th Floor, New York, NY 10013 this

9th day of July, 1986, via United States mail, first class,

postage prepaid.

LVI Anke

RICHARD E. JACKSON

Suite 200—Jefferson Plaza

939 Jefferson Street

Nashville, Tn 37203

(615) 254-1600

Appendix H (page 3 of 8)

—A-18—

IN THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Dr. Ernest B. Terrell, et. ai.,

Plaintiffs-Appellants,

Rita Sanders Geier, et. al,

Plaintiffs-Appellees,

United States of America,

Plaintiff-Intervenor-Appellees,

Raymond Richardson, Jr., et. al.,

Plaintiff-Intervenors-Appellees,

H. Coleman McGinnis, et. al,

Plaintiff-Intervenors, Appellees,

VS.

Lamar Alexander, et. al.,

Defendants-Appellees.

No. 84-6124

OO wee ee eee eee ee eee ie ie =

ON APPEAL FROM THE

UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

AFFIDAVIT OF ERNEST B. TERRELL IN SUPPORT

OF MOTION FOR SUBSTITUTION OF PARTY

Affiant is informed and believes, on such information

and belief and in good faith, stutes the following:

1. I ERNEST B. TERRELL, am presently residing

Appendix H (page 4 of 8)

—A-19—

aaa iii

at P.O. Box 1254 in the city of Martinsburg, in the

State of West Virginia. .

2. In 1968, I was named party in the Geier, et.

al vs. Alexander, et. al. In the original complaint I

was listed as:

a citizen and resident of the State of Tennessee, and

a citizen of the United States. He is presently en-

rolled and is a student at Tennessee A&I University.

He sues on behalf of himself, and all. students en-

rolled at Tennessee A&I University, as well as all

Negro residents of the State of Tennessee similarly

situated, which classes are too numerous to bring

before the Court, Plaintiff being a member of the

Negro race.

3. I have graduated and received a B.S. Degree from

Tennessee State University on August 24, 1986.

4. I believe I have a right to preserve the claim for the

sub-class of students in the above named matter, but in

the interest of assuring that a proper representative of the

sub-class is a named litigant, I am willing to share,

assign, and/or transfer, my rights and responsibilities to

the present duly elected president of the Tennessee State

University and to each and every future duly elected

president of the Student Government Association of

Tennessee State University.

AND FURTHER AFFIANT SAITH NOT.

epad. A

Ernest B. Terrell

P.O. Box 1254

Martinsburg, WV 25461

Appendix H (page 5 of 8)

—A-20—

—A-14—

SWORN to and subscribed me this 8th day of July, 1986.

NOTARY PUBLIC

My Commission Expires: 1-19-88

Appendix H (page 6 of 8)

—A-21—

pa

Seda

IN THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Dr. Ernest B. Terrell, et. al.,

Plaintiffs-Appellants,

Rita Sanders Geier, et. al.,

Plaintiffs, Appellees,

United States of America,

Plaintiff-Intervenor-Appellee,

Raymond Richardson, Jr., et. al., )

Plaintiff-Intervenors-Appellees, )

)

H. Coleman McGinnis, et. al., )

Plaintiff-Intervenors-Appellees, )

VS. No. 84-6124

Lamar Alexander, et. al.,

Defendants-Appellees.

Nee eee ee ee”

ON APPEAL FROM THE UNITED STATES

DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

AFFIDAVIT OF GREGORY E. CARR IN SUPPORT

OF MOTION FOR SUBSTITUTION OF PARTY

Affiant is informed and believes, and on such informa-

tion and belief and in good faith, states the follow-

ing:

Appendix H (page 7 of 8)

—A-22--

1. I. GREGORY E. CARR am presently residing at

1103 Paris Ave. in the city of Nashville in the State

of Tennessee.

2. I believe that the students at Tennessee State

University have not been given an opportunity to be

heard in the Geier, et. al vs. Alexander, et. al Stipula-

tion of Settlement negotiations.

3. I was elected president of the Student Government

Association of Tennessee State University on April 11,

1986 by the entire student body.

4. I have never been contacted by Attorney Barrett

the class-action attorney regarding the above named case

or regarding the Stipulation of Settlement negotiation.

5. | am willing to preserve the claim for the sub-class

of students and be their named representatives in the

above named case.

6. As the sub-class named representative I would

retain the services of Attorney Richard E. Jackson.

AND FURTHER AFFIANT SAITH NOT.

= ee

. a

J y

Gregory E. Carr

1103 Paris Ave.

Nashville, TN

SWORN to and subscribed me this 8th day June, 1986

Pe eee.

ee a ee

NOTARY PUBLIC

My Commission Expires: 1-19-88

Appendix H (page 8 of 8)

—A-23—