# Petition for Writ of Certiorari — Terrell v. Alexander

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1986
- **Citation:** 479 U.S. 1007

## Text

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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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

oe

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—

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_2537%3A1. Public record. Not legal advice.