Petition for Writ of Prohibition and Mandamus

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IN THE UNITED STATES COURT OF APPEALS 

FOR THE 6th CIRCUIT

WEST BLOOMFIELD SCHOOL DISTRICT Docket No.
OF OAKLAND COUNTY, MICHIGAN and 
CLARENCEVILLE SCHOOL DISTRICT 
OF OAKLAND AND WAYNE COUNTIES, MICHIGAN,

Petitioners,

-vs-

THE HONORABLE STEPHEN J. ROTH,
District Judge for the Eastern 
District of Michigan, Southern 
Division,

Respondent.

_____________________________________ _______ /  *

:
PETITION FOR WRIT OF 

PROHIBITION AND MANDAMUS

TO: THE HONORABLE JUDGES OF THE UNITED STATES COURT OF APPEALS
FOR THE 6th CIRCUIT

NOW COMES WEST BLOOMFIELD SCHOOL DISTRICT of Oakland 

County, Michigan, and CLARENCEVILLE SCHOOL DISTRICT of Oakland and 

Wayne Counties, Michigan, by their attorneys, Dell, Shantz, Booker 

and Schulte, and in this their Petition for issuance of a Writ of 

Prohibition and Mandamus, do respectfully show unto this Honorable 

Court as follows:

I JURISDICTIONAL STATEMENT

1. The Petitioner, WEST BLOOMFIELD SCHOOL DISTRICT, is a 

School District of the Third Class, organized under the laws of the

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State of Michigan, more particularly, Act 269 of Public Acts of 1955, 

as amended, MSA 15.3001, et seq. Geographically, WEST BLOOMFIELD 

SCHOOL DISTRICT is located North and West of the City of Detroit, 

Michigan.

District of the Third Class organized under the laws of the State of 

Michigan, more particularly, Act 269 of Public Acts of 1955 as 

amended, MCLA 340.1, et seg, and MSA 15.3001, et seq. Geographically, 

CLARENCEVILLE SCHOOL DISTRICT is located to the West of the City of 

Detroit, and is located in part in Oakland County and in part in 

Wayne County. •

Section 1651 of Title 28 of the United States Code and Rule 21 of the: 

Federal Rules of Appellate Procedure. The relief sought is not 

available in any other manner in that the Petitioners are not a 

party to the litigation hereinafter more completely identified in 

Exhibit A annexed hereto, and for brevity, generally referred to 

as Ronald Bradley, et al -vs- William Milliken, et al, being civil 

action No. 35257 in the United States District Court for the Eastern 

District of Michigan, Southern Division.

The alternative available to the Petitioners to contest 

the propriety of the rulings and judgment of the Trial Court is 

refusal to obey the Orders of the Court, which refusal would carry 

with it the threat of punishment by contempt. It is respectfully

2. The Petitioner CLARENCEVILLE SCHOOL DISTRICT is a School

3. Jurisdiction of the Court of Appeals is invoked under

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submitted that this provides no real alternative to conscientious 

and thoughtful members of the Board of Education and staff of the 

respective Petitioning School Districts and that there is in reality, 

only one remedy available, and that this Petition for Writ of 

Prohibition and Mandamus is such remedy.

Attached hereto and by reference incorporated herein are 

the Rulings and Orders of the Honorable Stephen J. Roth, District 

Judge in the case of Ronald Bradley, et al -vs- William Milliken, et 

al, Civil Action No. 35257, United States District Court, Eastern

District of Michigan, Southern Division, and other pertinent Exhibits 

all of which are more specifically identified as follows:

II RULINGS AND ORDERS OF TRIAL COURT 
BELOW AND OTHER EXHIBITS

Exhibit A Full entitlement of said cause.

Exhibit B Ruling on issue of segregation by Trial 
Court, September 27, 1971.

Exhibit C Findings and conclusions of law on Detroit 
Only plans of de-segregation of Trial Court, 
March 28, 1972.

Exhibit D Findings of fact and conclusions of law in 
support of ruling on de-segregation area 
and development of plan by Trial Court 
June 14, 1972.

Exhibit E Ruling on de-segregation area and Order for 
development of plan of de-segregation of 
Trial Court, June 14, 1972.

Exhibit F Copy of Plaintiffs' Complaint.

Exhibit G Affidavit of Assistant Superintendent of 
West Bloomfield School District.

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Exhibit H Affidavit of Superintendent of Clarence- 
ville School District.

Exhibit I - Excerpts from Transcript of proceedings on
April 13, 1972 before Trial Court (uncertified).

Exhibit J - Plaintiffs' Exhibit PM-12 (identifying school
district "clusters").

Exhibit K Map of area including identification of 
petitioning school districts.

Ill QUESTIONS OF LAW PRESENTED 

A brief review of Exhibits A through F, inclusive, will 

demonstrate that the Petitioners were neither a party-Plaintiff nor 

Defendant to the litigation in the Trial Court below, and did not 

seek to intervene therein. Neither Petitioning School District was 

served with process nor was either School District joined as a party 

to said proceedings in any manner. Notwithstanding these basic 

jurisdictional defects, both petitioning School Districts were 

included as one of the fifty-two (52) School Districts included in 

the de-segregation area described in the Order of June 14,1972 [ 1]. 

These circumstances, and the statement of facts and law hereinafter 

set forth, give rise to four legal questions which may be briefly 

stated as follows:

A. DOES A FEDERAL DISTRICT COURT HAVE 
JURISDICTION TO INCLUDE A SCHOOL DISTRICT OF THE STATE 
OF MICHIGAN IN A DE-SEGREGATION ORDER OF SAID COURT 
WHERE SAID SCHOOL DISTRICT HAS NOT BEEN SERVED WITH 
PROCESS FROM SAID COURT; IS NOT A PARTY TO SAID SUIT;

• AND HAS NOT INTERVENED THEREIN?

[1] Although 53 districts are included in the Ruling and Order, 
Exhibit E, two of the Districts,Dearborn and Fairlane merged.

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B. WHERE A FEDERAL DISTRICT COURT'S 
FINDING OF DE JURE SEGREGATION IS LIMITED TO 
POLICIES AND PRACTICES SOLELY WITHIN THE CITY OF 
DETROIT SCHOOL DISTRICT, DOES SAID COURT HAVE 
JURISDICTION TO EXTEND THE REMEDY FOR SUCH FINDING 
TO INCLUDE A SCHOOL DISTRICT WHICH IS NOT NOW, NOR 
HAS IT BEEN IN THE PAST, A PART OF SAID CITY OF 
DETROIT SCHOOL DISTRICT, WHERE SAID PETITIONING 
SCHOOL DISTRICT IS NOT A PARTY TO, NOR INTERVENOR 
IN, THE LITIGATION BEFORE THE TRIAL COURT BELOW?

It should be noted that the State of Michigan is not a 

party to the litigation in the Trial Court. The absence of the 

State of Michigan as a party, it not having consented to be sued, 

suggests yet another jurisdictional question:

C. DOES THE FEDERAL DISTRICT COURT HAVE 
THE JURISDICTION TO ORDER AN AGENCY OF THE STATE OF 
MICHIGAN TO COMPLY WITH THE ORDERS OF SAID COURT, 
WHERE NEITHER THE STATE OF MICHIGAN, NOR SAID AGENCY 
OF THE STATE, ARE PARTIES TO, NOR INTERVENORS IN,
THE LITIGATION FROM WHICH SAID ORDER FLOWS?

The Petitioners believe that the answer to each question 

posed above must be in the negative.

Separate from, but nonetheless interwoven with the question 

above, is yet another basic question of jurisprudence suggested by 

the direct constitutional challenge to the Constitution and Statues 

of the State of Michigan expressed and inherent in the Court's 

rulings. This.challenge causes the Petitioners to propose an 

additional question which is likewise jurisdictional in nature:

s

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#

D. WHERE■A FEDERAL DISTRICT JUDGE SEEKS 
TO IMPOSE EQUITABLE RELIEF IN A DE-SEGREGATION SUIT, 
WHICH BY THE TERMS OF SUCH RELIEF, CHALLENGES THE 
CONSTITUTIONALITY OF THE CONSTITUTION AND STATUTES OF 
THE STATE OF MICHIGAN AND ENJOINS THE OPERATION OF SUCH 
STATUTES IN SOME FIFTY-TWO (52) SCHOOL DISTRICTS,
DOES THE FAILURE OF THE TRIAL COURT TO CONVENE A 
THREE (3) JUDGE PANEL UNDER 28 U.S.C. 2281 DEPRIVE 
THE TRIAL COURT OF JURISDICTION AND VOID ITS ORDERS 
WITH RESPECT THERETO?

The Petitioners believe that this question must be 

answered in the affirmative.

It would appear that the Trial Court conceives the answer

to all such jurisdictional questions to be otherwise than as indicated

by the Petitioners. Your Petitioners respectfully suggest, however, 

that the Trial Court's references to these crucial and basic

jurisdictional questions is both cursory and erroneous [ 2 ]-

IV CONSTITUTIONAL PROVISIONS 
_____AND STATUTES INVOLVED

1. The provisions of the Constitution of the United

States at issue herein are as follows:

ARTICLE III

SECTION 2. The Judicial Power shall extend 
to all Cases, in Law and Equity, arising under this 
Constitution, the Laws of the United States, and Treaties 
made, or which shall be made, under their Authority;—  
to all Cases affecting Ambassadors, other public Ministers 
and Consuls;— to all Cases of admiralty and maritime

[2] Reference Exhibit D, fll, page 36.

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Jurisdiction;— to Controversies to which the United 
States shall be a Party;--to Controversies between two 
or more States;— between a State and Citizens of another 
State;— between Citizens of different States,— between 
Citizens of the same State claiming Lands under Grants 
of different States, and between a State, or the 
Citizens thereof, and foreign States, Citizens or Subjects.

ARTICLE X

The powers not delegated to the United States 
by the Constitution, nor prohibited by it to the States, 
are reserved to the States respectively, or to the people.

ARTICLE XI

The Judicial power of the United States shall 
not be construed to extend to any suit in law or equity, 
commenced or prosecuted against one of the United States 
by Citizens of another State, or by Citizens or Subjects 
of any Foreign State.

ARTICLE XIV

SECTION 1. All persons born or naturalized 
in the United States, and subject to the jurisdiction 
thereof, are citizens of the United States and of the State 
wherein they reside. No State shall make or enforce any 
law which shall abridge the privileges or immunities of 
citizens of the United States; nor shall any State deprive 
any person of life, liberty, or property, without due 
process of law; nor deny to any person within its 
jurisdiction the equal protection of the laws.

2. The provisions of the Constitution of the State of 

Michigan at issue are as follows:

ARTICLE VIII

SECTION 2. The legislature shall maintain 
and support a system of free public elementary and

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secondary schools as defined by law. Every school 
district shall provide for the education of its 
pupils without discrimination as to religion, creed, 
race, color or national origin.

3. The Statutes of the United States in issue are: 

28 United States Code 1343

The district courts shall have original 
jurisdiction of any civil action authorized by law 
to be commenced by any person:

(3) To redress the deprivation, under color 
of any State law, statute, ordinance, regulation, custom 
or usage, of any right, privilege or immunity secured by 
the Constitution of the United States or by any Act of 
Congress providing for equal rights of citizens or of all 
persons within the jurisdiction of the United States;

(4) To recover damages or to secure equitable or 
other relief under any Act of Congress providing for the 
protection of civil rights, including the right to vote.

28 United States Code 2281

An interlocutory or permanent injunction 
restraining the enforcement, operation or execution of 
any State statute by restraining the action of any 
officer of such State in the enforcement or execution 
of such statute or of an order made by an administrative 
board or commission acting under State statutes, shall 
not be granted 'by any district court or judge thereof 
upon the ground of the unconstitutionality of such 
statute unless the application therefor is heard and 
determined by a district court of three judges under 
section 2284 of this title.

4. The Statutes of the State of Michigan at issue are as

follows:

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Act 269 of Public Acts of Michigan of 1955, as 
amended (MCLA 340.1, et seq) specifically 
including the following sections:_____________

a. Preamble:

"AN ACT to provide a system of public instruction 
and primary schools; to provide for the classification, 
organization, regulation and maintenance of schools and 
school districts; to prescribe their rights, powers, 
duties and privileges; to provide for registration of school 
districts, and to prescribe powers and duties with respect 
thereto; to provide for and prescribe the powers and duties 
of certain boards and officials; to prescribe penalties; 
and to repeal certain acts and parts of acts."

b. Chapter 1, Section 2, MCLA 340.2:

, "Hereafter, except as otherwise provided in 
this act, each and every school district shall be 
organized and conducted as:

1. A primary school district; or
2. A school district of the fourth class; or
3. A school district of the third class; or
4. A school district of the second class; or
5. A school district of the first class."

c. Section 352 (MCLA 340.352, MSA 15.3352)

"Every school district shall be a body corporate 
under the name provided in this act, and may sue and be 
sued in its name, may acquire and take property, both real 
and personal, for educational purposes within or without 
its corporate limits, by purchase, gift, grant, devise 
or bequest, and hold and use the same for such purposes, 
and may sell and convey the same as the interests of such 
district may require, subject to the conditions of this act 
contained. As such body corporate, every school district 
shall be the successor of any school district previously 
existing within the same territorial limits and shall be 
vested with all rights of action, with the title of all 
property, real and personal, of the district of which it is 
the successor, and the indebtedness and obligations of the 
district of which it is the successor, and the indebtedness 
and obligations of the district superseded shall become 
and be the indebtedness and obligations of the succeeding

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district, except as otherwise provided in chapters 3,
4 and 5, part 2 of this act. Every school district shall in 
all cases be presumed to have been legally organized when 
it shall have exercised the franchises and privileges of 
a district for the term of 2 years; and such school district 
and its officers shall be entitled to all the rights, 
privileges and immunities, and be subject to all the duties 
and liabilities conferred upon school districts by law,"

V. STATEMENT OF CASE
'

• ’ 'On August 18, 1970, Plaintiffs brought suit alleging 

violation of Constitutional rights and seeking a declaration that 

Act 48 of Public Acts of 1970 be declared unconstitutional [3 ] 

and requesting additional injunctive relief. [ 4 ].

The Trial Court, in its "Ruling oh Issue of Segregation"

dated September 27, 1971, found that the Defendant-City of Detroit 

School District had committed acts, countenanced by the State 

Defendants, which resulted in de jure segregation of the Detroit 

Schools. No finding of the Court, attached hereto as Exhibit B and 

C suggests that the failure to maintain a unitary system in the 

Detroit Public Schools was caused by, or attributable to, the 

creation of the petitioning school districts or any other such 

independent school district in the so-called metropolitan area 

including other school districts located in the County of Wayne, 

County of Oakland and County of Macomb, excepting the Detroit distri 

Such acts upon which the Trial Court purports to predicate his 

findings, relates solely to policies or practices confined to the

at.

[3] Reference 51 of Plaintiff's Complaint, Exhibit F.
[4] Reference Plaintiff's Complaint, page 12, etc., Exhibit F.

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Detroit School District. Notwithstanding these limitations of its 

own findings, the Trial Court on March 28, 1972 announced that a 

"Metropolitan Plan" would be required to accomplish de-segregation 

of the Detroit School District, belying in the main upon the 

recently reversed District Court decision in Bradley -vs- School 

Board of the City of Richmond, 338 F Supp 67 (E.D. VA. 1972) reversed

by the 4th Circuit Court of Appeals in ____, F 2d ____________,

June 5, 1972, 40 LW 2813. Thereafter, on June 14, 1972, the.Trial 

Court, after further testimony and evidence, entered its Order 

identifying the "de-segregation area" to be encompassed by the 

Metropolital Plan. The petitioning school districts were included 

in the "de-segregation area" along with some fifty-two (52) other 

school districts all outside the limits of the Detroit School Distric 

which district boundaries are coterminus with the boundaries of the 

City of Detroit. [ 5 ] The Petitioning School Districts were not

parties'to the litigation and did not intervene therein. [ 6 ] 

Nonetheless, the petitioning School Districts were included in the 

de-segregation area and ordered to "cooperate fully" with the panel 

of persons selected by the Court and charged with the responsibility
l

of developing the details of the de-segregation plan within the 

framework delineated by the Trial Court in its Order of June 14, 1972 

which Order includes the following provision:

"C. The parties, their agents, employees, 
successors, and all others having actual notice of this

t

f

[5] Reference Exhibit E, fll, A, page 5.
[6] Reference Exhibit A.

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order shall cooperate fully with the panel in their 
assigned mission, including, but not limited to, the 
provision of data and reasonable full and part-time 
staff assistance as requested by the panel. The State 
defendants shall provide support, accreditation, funds,

, and otherwise take all actions necessary to insure that 
local officials and employees cooperate fully with the 
panel. All reasonable costs incurred by the panel 
shall be borne by the State defendants; provided, however, 
that staff assistance or other services provided by any 
school district, its employees or agents, shall be with­
out charge, and the cost thereof shall be borne by such 
school district." [ 7 ]

It is contended by the Petitioners that the inclusion of 

these school districts in said "desegregation order" without trial 

on the merits of the alleged constitutional violations is wholly

erroneous and that it constitutes the reckless attempt by the Districp 

Court to extend the power of the judiciary and represents an 

unprecedented, direct challenge to the sovereign power of the State 

of Michigan. It likewise represents the total abandonment of all

concepts of jurisdiction,notice, due process, and the right to an 

adjudication on the merits.

VI ARGUMENT

There can be no question that School Districts of the 

State of Michigan are municipal corporations,, Marathon School 

District No. 4 -vs- Gage, 39 Mich. 484 (1878); or at the very least 

a quasi-municipal corporation. King -vs- School District No. 5,

261 Mich. 605 (1933). School Districts are State agencies deriving

[7] Reference Exhibit E, HI, C.



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their power and authority from the Constitution of the State and

legislature. Public Schools of Battle Creek -vs- Kennedy, 245 Mich

585 (1929) and Board of Education of Detroit -vs- Superintendent of

Public Instruction, 319 Mich 436 (1947). Each school district has

the power to "sue and be sued in its name". [ 8 ]

The State of Michigan is not a party to this litigation.

The so-called State defendants, i.e. the Governor and Attorney

General, and Superintendent of Public Instruction, have no plenary

powers as to this Respondent under the Michigan Constitution. [ 9 ]

The State Board of Education has "leadership and general supervision

over all public education" [10 ], and serves as a "general planning

and coordinating body for all public education" [ 10 ]

None of the State Defendants has the power to create or

alter the boundaries of school districts. School District of the

City of Lansing -vs- Michigan State Board of Education, 367 Mich 591

(1962). Nor do the State Defendants have the authority to require

local districts to admit non-resident pupils to the District. That

authority is vested in the legislature which has provided specific

statutory authority and control of such transfers to be vested in the

local school district. [H  ] This provision was confirmed in Jones

-vs- Grand Ledge Public Schools, 349 Mich 1 (1957).

"We are in accord with the finding of the 
trial judge that under the present school code the 
defendant school district is not charged with the duty

[8] §352, Public Act 269 of Public Acts of 1955, MCL 1948,§340.352 
MSA 15.3352.
[9] Reference Article V, Michigan Constitution, §1-29.
[10] Reference Article VIII, Michigan Constitution, §3.
[11] Reference §582, Act 269 of Public Acts of 1955; MCL 1948, 
§340.582, MSA 15.3582.

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of accepting nonresident pupils. The language of the 
statute must be construed as it reads. It is not 
within the province of this Court to read therein a 
mandate that the legislature has not seen fit to 
incorporate. Our duty is to apply the law as we find it__."

Jones, supra, page 11

The constitutional character of school districts has been 

recognized in Detroit Board of Education -vs- Superintendent of 

Public Instruction, 319 Mich 436 (1947). There the Supreme Court of 

Michigan found unconstitutional (under the Michigan Constitution of 

1908) an attempt by the State legislature to create a statewide 

school district to share in sales tax revenues then provided by 

provision of the 1908 Constitution. The Court held:

"We hold that the State school district 
sought to be created by this Act is not a 1 school 
district' within the meaning of the term as used 
in Article X, Section 23 of the Constitution."

Detroit Board of Ed., supra, page 451

The petitioner suggests that Section 2 of Article VIII of 

the present Michigan Constitution reinforces the constitutional 

character of local school districts in Michigan. That Section 

provides as follows:

"The legislature shall maintain and support a system of 
free public elementary and secondary schools as defined 
by law. Every school district shall provide for the 
education of its pupils without discrimination as to religion, 
creed, race, color or national origin."

Having thus identified the constitutional nature of 

Michigan school districts, and having demonstrated that these

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constitutional entities are entitled to due process, let us turn 

to the treatment of these school districts by the Trial Court as 

witnessed in its findings of fact and ruling on de-segregation area 

and order for development of plan of de-segregation [ 12] .

The Trial Court apparently conceives that Hunter -vs- City 

of Pittsburgh,207 U.S. 161 (1907), cited by the Trial Court in 

paragraph 11 of Exhibit E and in footnote 22 to that Exhibit, clothes 

the Trial Court with judicial precedent for- sweeping jurisdictional 

and due process requirements under some convenient judicial rug.

Since the Trial Court relied upon it so heavily (having referred to 

Hunter, supra, in open Court) [13] , we deem it appropriate to

direct the Court of Appeal's attention to the decision.

The Trial Court's interpretation of Hunter, supra, is 

untenable. Hunter, supra, involves the consolidation of the City 

of Allegheny and the City of Pittsburgh, Pennsylvania. Plaintiff- 

residents of the City of Allegheny objected to the consolidation 

and to the entry of a decree confirming the consolidation which 

had been taken in conformity with a Statute of the General Assembly 

of Pennsylvania. The Plaintiffs claimed the action deprived them 

of federally guaranteed rights. In denying this argument, the Supren. 

Court held:

" .... Municipal corporations are political
subdivisions of the state, created as convenient

[12] Reference Exhibits D and E.
[13] Reference Exhibit I, Excerpt from proceedings, April 13, 1972.

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agencies for exercising such of the governmental powers 
of the state as may be intrusted to them. For the 
purpose of executing these powers properly and efficiently 
they usually are given thepower to acquire, hold, and 
manage personal and real property. The number, nature, 
and duration of the powers conferred upon these corporations 
and the territory over which they shall be exercised rests 
in the absolute discretion of the state. Neither their 
charters, nor any law conferring governmental powers, 
or vesting in them property to be used for governmental 
purposes, or authorizing them to hold or manage such 
property, or exempting them from taxation upon it, 
consti tutes a contract with the state within the meaning 
of the Federal Constitution. The state, therefore, at 
its pleasure, may modify or withdraw all such powers, may 
take without compensation such property, hold it itself, 
or vest in it other agencies, expand or contract the 
territorial area, unite the whole or a part of it with 
another municipality, repeal the charter and destroy the 
corporation. All this may be done, conditionally or 
unconditionally,with or without the consent of the 
citizens, or even against their protest. In all these 
respects the state is supreme, and its legislative body, 
conforming its action to the state Constitution, may do 
as it will, unrestrained by any provision of the 
Constitution of the United States. Although the 
inhabitants and property owners may, by such changes, 
suffer inconvenience, and their property may be lessened 
in value by the burden of increased taxation, or for 
any other reason, they have no right, by contract or 
otherwise, in the unaltered or continued existence of the 
corporation or its powers, and there is nothing in the 
Federal Constitution which protects them from these 
injurious consequences. The power is in the state, and 
those who legislate for the state are alone responsible 
for any unjust or oppressive exercise of it."

. Hunter, supra, 178, 179
Emphasis added_________

Tho case clearly stands for the proposition that the State 

legislature may modify its municipal subdivisions including the 

boundaries thereof. There is no suggestion in Hunter that the power

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is likewise conferred on the United States District Court. The 

Supreme Court's decision in Hunter is diametrically opposed to the 

contorted interpretation which the Trial Court has imposed upon the 

language of that decision in order to utilize it to ignore the 

jurisdictional requirements as to this and other school districts.

It is interesting to note that in Bradley,, et al -vs- School Board 

of 'the City of Richmond, F 2d (CA 4, June 5, 1972)

40 LW 2813, the 4th Circuit, applied Hunter in reversing the 

decision of the District Court.

A further key to the Trial Court's total disregard for 

the jurisdictional and due process requirements to be afforded 

to the petitioning school districts is found in the opening para­

graph of the Findings of Fact and Conclusions of Law filed on 

June 14, 1972 [14 ].

".... It should be noted that the court has 
taken no proofs with respect to the establishment of 
the boundaries of the 86 public school districts in 
the counties of Wayne, Oakland and Macomb, nor on the issue 
of whether, with the exclusion of the city of Detroit 
school district, such school districts have committed acts 
of de jure segregation."

This candid statement as to the total lack of proofs in 

these areas by the Trial Court did not, however, impede the Court 

from proceeding to include some 52 of 86 tri-county school districts 

within its Order. ' The petitioners urge that it is noteworthy, that

[14] Reference Exhibit D, page 1.

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if the Trial Court had joined the local districts and afforded

a hearing on the merits, this evidence would have been before the 

Court for determination.

Notwithstanding the failure of the Trial Court to take 

proofs on the boundaries of the 86 school districts, the Trial Court 

decided that the boundaries of the districts were "artificial" [15].

It is respectfully suggested that the obvious contradiction of the 

Court's finding and candid admission of the total lack of proofs 

on the subjects of the boundaries of the suburban school districts, 

should not go unheeded by this Appellate Court.

The Trial Court then proceeds to findings that the 86 

school districts are a "relevent school community which can serve 

as an initial benchmark" [16] for de-segregating the Detroit District.. 

This finding by the Court, is, however, totally unsupported by the 

evidence before the Court with respect to the de jure segregation 

which the Court found applicable in the Detroit System Only. Nor 

does this finding by the Court serve as an excuse for denial of 

traditional concepts of due process and jurisdiction.

The Trial Court seeks to dismiss the basic requirements 

for jurisdiction and due process by concluding that the 

remedial powers available to it are as broad as may be required to 

effect the social reform which the Trial Court deems desirable [17].

In its ruling, the Trial Court cites some 12 cases which

[15] Reference Exhibit D, Footnote 7, p.ii.[16] Reference Exhibit D, ̂ 11, p. 8.
[17] Reference Exhibit D, 5[H, P- 36.

-18



purportedly sustain the position that "all steps necessary and 

essential"to protect the constitutional rights of the Plaintiffs 

may be utilized to tramel the constitutional rights of due process 

and jurisdiction of the petitioners. [ 17] None of the cases cited 

by the Trial Court, including Hunter, supra, already discussed in 

detail, suggest the precedent which the Trial Court would wrench 

from the citations. The Trial Court cites Swann -vs- Charlotte- 

Mechlenburg Board of Education, 402 U.S. 1,91 S.Ct, 1267 (1971).

But in so citing the Swann decision, the Trial Court clearly ignores 

the judicial admonition of Swann.

" ....  However, a school desegregation case
does not differ fundamentally from other cases involving 
the framing of equitable remedies to repair the denial 
of a constitutional right. The task is to correct, by a 
balancing of the individual and collective interests, 
the condition that offends the Constitution.

"In seeking to define even in broad and general 
terms how far this remedial power extends it is important 
to remember that judicial powers may be exercised only on 
the basis of a constitutional violation. Remedial 
judicial authority does not put judges automatically 
in the shoes of school authorities whose powers are 
plenary. Judicial authority enters only when local 
authority defaults.

"[4] School authorities are traditionally 
charged with broad power to formulate and implement 
educational policy and might well conclude, for example, 
that in order to prepare students to live in a pluralistic 
society each school should have a prescribed ratio of 
Negro to white students reflecting the proportion for the 
district as a whole. To do this as an educational policy 
is within the broad discretionary powers of school authorities;

[17] Reference Exhibit D, fll, p. 36.



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absent a finding of a constitutional violation, however, 
that would not be within the authority of a federal 
court, As with any equity case, the nature of the 
violation determines the scope of the remedy."

Swann, supra, page 16,Emphasis added

The Trial Court likewise chose to ignore the precedents 

of the 6th Circuit in this same case. In Bradley -vs- Milliken, 

438 F.2d, 945, 946-947, this Court held:

"The issue in this case is not what might be 
a desirable Detroit school plan, but whether or not 
there are constitutional violations in the school 
system as presently operated, and, if so, what relief 
is necessary to avoid further impairment of constitutional 
rights.. There must be a trial on the merits as to the 
alleged constitutional violations as a predicate to relief 
in the federal courts. On the present,., appeal a second 
effort is made to persuade this court to grant summary 
relief. The trouble with this procedure is that there has 
never been an evidentiary hearing on the charges set forth 
in the complaint nor any findings of fact with respect to 
these charges."

Bradley, supra, Emphasis added

The Trial Court could well have had before it the proofs 

of the establishment of the school districts had it chosen to do so. 

Having elected not to afford the petitioning school districts their 

day in Court, the Trial Court cannot now fashion a remedy as if the 

petitioners did not exist. Nor may it treat the petitioners as if 

they had been a party to this litigation any more than the Trial 

Court could have reached out to a school district in the City of 

Toledo, Ohio, in order to fashion a "remedy".

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The Affidavits on behalf of the petitioning school 

districts, attached hereto as Exhibits G and H, rexpectively, 

demonstrate that these petitioning school districts came into 

existence long before Brown -vs- Board of Education, 349 U.S. 294 

(1955). The Trial Court could have well considered the language 

of Spencer -vs- Kugler, 326 F. Supp. 1235, 1242 (NJ, 1971), 

affirmed in 92 S. Ct. 707 (1972), wherein it was stated:

" ....  The creatio n of these school districts
' by approval of the legislature on September 18, 1953, 
preceded the historic decision of Brown I, decided on 
May 17, 1954. The obvious intent of the legislature 
was to maintain a unitary school system as Brown I 
later required. While the result of such legislation 
some 18 years later may be racial imbalance, within certain 
school districts, it does not amount to segregation."

Spencer, supra, pages 1242 and 1243

Suffice it to say, the Trial Court's findings are limited 

to the School District of the City of Detroit and there is no 

basis for spreading the remedy beyond that School District.

The right to be heard is basic to our system of 

jurisprudence. The right to notice, the due process, and to proper 

hearing and to an appropriate hearing before a fair and impartial 

judiciary should require no citation. Nonetheless, the total 

absence of these qualities in the Trial Court leads one to conclude 

that from time to ’time, it is necessary to remind all of us who 

practice before the Courts and render the judgments of the Court,



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that these fundamentals cannot be ignored no matter how appealing 

the claim of the plaintiffs nor compelling the necessity for bringing 

litigation to a close.

"A sentence of a court pronounced against 
a party without hearing him, or giving him an opportunity 
to be heard, is not a judicial determination of his 
rights, and is not entitled to respect in any other 
tribunal. That there must be notice to a party of 
some kind, actual or constructive, to a valid judgment 
affecting his rights is admitted. Until notice is 
given, the court has no jurisdiction in any case to 
proceed to judgment, whatever its authority may be, 
by the law of its organization, over the subject-matter."

Hovey -vs- Elliott 167 U.S. 409, 
17 S. Ct. 841 (1897)____________

It likewise is of interest to note that the Trial Court, 

by reference to the case of Workman -vs- Board of Education of

Detroit, 18 Mich 399, 412 (1869), would have known that the

boundaries of the School District of the City of Detroit have been 

coterminous with the city limits of Detroit since 1867. The Statute, 

cited in that case, provided that the "City of Detroit shall be 

considered one school district". That same case, decided 

unequivocally, that the right to attend schools "shall be possessed 

equally and impartially by all residents". The judicial precedent 

of the State of Michigan precedes Brown I by almost 100 years. 

Workman, supra, clearly identified the right of any resident of the 

City of Detroit, black, white, or otherwise, to attend schools 

within that district. The Constitution of Michigan, in Article VIII,

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Section 2, referred to above, unequivocally reinforces that judicia 

precedent.

. It cannot be overemphasized that there is not an iota of

evidence before the Trial Court that the School District boundaries 

to which the Trial Court pays so little heed, were drawn for any 

invidious purpose or that any student of any district outside of 

the City of Detroit, was denied admission to such schools within hi 

district of residence because of race, color or creed. As this 

Circuit held in Deal -vs- Cincinnati Board of Education, 419 F. 2d, 

1387, 1390-1391 (1969):

$ ,"On the other hand, our case involves 
the operation of a long-established unitary non-racial 
school system— just schools where Negro as well as 
white children may attend in the district of their 
residence. There is not an iota of evidence in this 
record where any of the plaintiffs or any of the class 
which they represent, was denied admission to a school 
in the district of his residence.

" [2] It is the contention of appellants that 
the Board owed them a duty to bus white and Negro 
children away from the districts of their residences in 
order that the racial complexion would be balanced in 
each of the many public schools in Cincinnati. It is 
submitted that the Constitution imposes no such duty. 
Appellants are not the only children who have constitutional 
rights. There are Negro, as well as white, children who 
may not want to be bussed away from the school districts 
of their residences, and they have just as much right to 
attend school in the area where they live. They ought 
not to be forced against their will to travel out of their 
neighborhoods in order to mix the races."

and further;



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"Appellants contend that housing patterns in 
Cincinnati are segregated as a result of actions of 
both public and private agencies and that the School 
Board 'may not close its eyes to this reality' but should 
remedy it. We are not told how or by what lawful 
authority the School Board can remedy the housing patterns 
of a neighborhood. Perhaps what appellants want is 
for the Court to order the Board to provide buses to 
transport children to other districts where they do 
not reside, construct additional schools in such other 
districts where necessary to accomplish this purpose, 
and abandon the existing neighborhood schools. We 
find no basis to enter any such order."

Deal,supra, page 1391

The Trial Court has greviously exceeded its statutory 

authority in imposing a remedy which involves school districts which 

were not parties to the litigation; did nob intervene, as to which 

districts, the Trial Court admits, there is not a scintilla of 

evidence of the commission of any act of de jure segregation, [is]
The only basis for the Court's ’ruling to include other school 

districts, including the petitioners, is spelled out in pages 1485, 

1486, 1487 and 1488 of Exhibit I. Bereft of citations, the Court 

equates voluntary and statutory collective action by municipalities 

as a predicate for relief to be judicially imposed in this case 

without jurisdiction, without notice and without due process as to 

these petitioners.

Pure and simple, the Court's relief is based upon a 

subjective determination that additional racial mix is needed to

[18] Reference Exhibit D, p. 1.

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t

de-segregate the Detroit School District. This attitude, expressed 

by the Court in its orders and rulings is a judicial attempt to 

create racial balance within the Detroit District, and regardless of 

the name by which it may be identified by the Trial Court, this 

procedure is scored in Swann, supra, in which the Supreme Court 

stated: ,

" .... If we were to read the holding of
the District Court to require, as a matter of 
constitutional right, any particular degree of racial 
balance or mixing, that approach would bo disapproved 
and we would be obliged to reverse." (at page 24)

A fair reading of the Trial Court's rulings demonstrate 

that it had decided that there is not sufficient "mix" within the 

City of Detroit to provide "relief of segregation" [19]. Therefore, 

the Court reasons that the remedy is as broad as may be necessary to 

satisfy its self-created standard of racial balance within the 

Detroit District. The Trial Court then proceeds to ignore the 

niceties and necessities of jurisdiction, notice and due process 

and with judicial grease pencil in hand draws a "de-segregation area' 

That "area" is drawn to provide the magical, judicial balance 

required to satisfy the erroneous premise that de-segregation equals 

racial balance. The Trial Court conceives itself limited only by 

"time of travel" in determining this area. [20] It is respectfully 

suggested that this is not the law.

* * * * * * * * * * *

[19] Reference Exhibit C, p. 5, f5.
[20] Reference Exhibit D, p. 19, 35.



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«

Let us now turn to the requirement of the impaneling of 

a three-judge Court pursuant to 28 U.S.C. 2881, cited above.

In the Complaint of the Plaintiff, by which this litigatior. 

was initiated, the relief sought included a prayer that Act 48 of 

the Public Acts of Michigan of 1970 be declared unconstitutional. 

Insofar as petitioners know, these pleadings have not been specifically 

amended. Coupled with this challenge to the constitutionality of the: 

Act, was a request for relief seeking an injunction against the 

Defendants— State Defendants and the Detroit School District— from 

operating the schools within that District in a manner which resulted 

in students attending "racially identifiable" public schools. Other
a

extensive equity relief was requested [ 21]• Act 48, referred to 

above, applied only to School Districts of the First Class. Only 

Detroit is such a school district in Michigan. Act 48 was declared 

unconstitutional by this Court in Bradley -vs- Milliken, 433 F 2d 

897 (1970). A-three-judge panel was not convened because the 

Statute was deemed not to be a Statute of statewide application [22]- 

Notwithstanding that the initial litigation was confined 

to the School District of the City of Detroit, the tenor and thrust 

of the litigation changed markedly on March 28, 1972. On that date, 

the Trial Court announced that de-segregation could not be 

accomplished "within the geographical limits of Detroit". Previously 

it had directed State Defendants and the Detroit School District to

[21] Reference, Exhibit F, Plaintiff's Complaint.
[22] Footnote 2, p. 900, Bradley -vs- Milliken, supra.

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propose a metropolital de-segregation plan. On June 14, 1972, the 

Court entered its Order for development of a de-segregation plan 

including, inter alia, requirements for student reassignment, faculty 

and staff reassignment, restrictions on construction and provisions 

for recommendations on changes in school district boundaries. 

Recommendations were required to be made on financing, contractual 

arrangements, and governances. [23 ]

The Order directs the State Superintendent of Public 

Instruction to make recommendations to the Court concerning the 

foregoing matters and with reference to existing State laws pertaini4g
to the affected school district and directs the Superintendent as

. ' $
follows:

"In his examination and recommendations, the 
Superintendent, consistent with the rulings and orders 
of this court, may be guided, but not limited, by 
existing state law; where state law provides a convenient 
and adequate framework for interim or ultimate relief, 
it should be followed, where state lav/ either is silent 
or conflicts with what is necessary to achieve the 
objectives of this order, the Superintendent shall 
independently recommend what he deems necessary. In 

, particular, the Superintendent shall examine and choose 
one appropriate interim arrangement to oversee the 
immediate implementation of a plan of desegregation."
(Emphasis supplied)

This language of the Order constitutes an open invitation 

to a state officer to make recommendations to the Trial Court 

for the entry of Orders contrary to State laws. This

[23] Reference Exhibit E, p. 9, fill.

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Order constitutes a flagrant abuse of judicial power and more 

importantly,an unprecedented Federal assault upon the Statutes of 

the State of Michigan.

While the Court's Order speaks in general terms of 

financial, school district boundaries, contractual obligations and 

governance, there can be no question that the following Statutes, 

inter alia, are directly challenged by the Court's Order:

1. Michigan School Code of-1955, being 

Act 259 of the Public Acts of 1955 as amended, .

(MCLA 340.1, et seq; MSA 15.3001, et seq),

(particularly provisions relating to

a. attendance in school district of residence 
(MCLA 340.355, MSA 15.3355)

b. hiring of teachers and staff (MCLA 340.559,
MSA 15.3569) *

c. acquisition of transportation (MCLA 340.594,
MSA 15.3594)

d. control of attendance of non-resident students 
(MCLA 340.582, MSA 15.3582)

e. determination of appropriate curriculum
(MCLA 340.583, MSA 15.3583)

f. levy of authorized millage (MCLA 340.643(a),
MSA 15.3643(1), MCLA 340.615, MSA 15.3615)

2. Tenure for Teachers* Act, Act 4 of

the Public Acts of 1937 (Ex Sess) MCLA 38.71, MSA 15.1971.

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3. Public Employees' Collective Bargaining

Statute: Act 336, Public Acts of 1947, as amended

MCLA 423.201, et seq, MSA 17.455(1), et seq.

These statutes are only a partial list of the Statutes of

the State of Michigan the constitutionality of which, is directly 

challenged by the scope of the Order of June 14, 1972. It is

the contention of the petitioners that the Trial Court had no 

authority to enter such an Order. It is likewise the contention 

of the petitioners that a three-judge Court was required to be 

impaneled by the Trial Court under Section 2281, for a hearing on 

the merits because the Trial Court, by expanding the scope of the 

proceedings.beyond that framed by the Plaintiffs' Complaint, has 

brought into the judicial arena a challenge to the constitutionality 

of the several Statutes cited, and indeed, a challenge to the entire

framework of education within the State of Michigan.

The position of the petitioners is sustained by the 

language of the Statute and the judicial decisions interpreting 

the provisions. The history of Section 2281 is undoubtedly well 

known to this Court. Nonetheless, in view of the impact which the 

case at bar has had upon the community and indeed the nation as a 

whole, the recitation of that history as noted by the Supreme Court 

in Swift and Co. -vs- Wickham, 382 U.S. Ill, 86 S. Gt. 258 (1965) is

helpful. That opinion details to a considerable degree the

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legislative history of Section 2281 and its predecessor Statutes.

"The three-judge district court is a 
unique feature of our jurisprudence, created to '

■ alleviate a specific discontent within the federal 
system. The antecedent of §2281 was a 1910 Act 
passed to assuage growing popular displeasure with the 
frequent grants of injunctions by federal courts 
against the operation of state legislation regulating 
railroads and utilities in particular. The federal 
courts of the early nineteenth century had occasionally 
issued injunctions at the behest of private litigants 
against state officials to prevent the enforcement of 
state statutes, but such cases were rare and generally 
of a character that did not offend important state 
policies. The advent of the Granger and labor movements 
in the late nineteenth century, and the acceleration of 
state social legislation especially through the creation 
of regulatory bodies met with opposition in the 
federal judiciary. In Chicago, M.& St. P. R. Co. v 
Minnesota, 134 US 418, 33 L ed 970, .10* S Ct 462, this 
Court held that the setting of rates not permitting a 

’ fair return violated the Due Process Clause of the 
Fourteenth Amendment. Ex parte Young, 209 US 123,
52 L ed 714, 28 S Ct 441, 13 LRA NS 932, established 
firmly the corollary that inferior federal courts could 
enjoin state officials from enforcing such unconstitutional 
state laws.

"This confrontation between the uncertain 
contours of the Due Process Clause and developing state 
regulatory legislation, arising in district courts 
that were generally considered unsympathetic to the 
policies of the States, had severe repercussions. Efforts 
were made in Congress to limit in various ways the 
jurisdiction of federal courts in these sensitive areas. 
State officials spoke out against the obstruction and 
delay occasioned by these federal injunction suits. The 
sponsor of the bill establishing the three-judge 
procedure for these cases, Senator Overman of North 
Carolina, noted:

"1[T]here are 150 cases of this kind now 
where one federal judge has tied the hands of the state 
officers, the governor, and the attorney-general _____



«

"'Whenever one judge stands up in a State and 
enjoins the governor and the attorney-general, the 
people resent it, and public sentiment is stirred, as 
it was in my State, when there was almost a rebellion, 
whereas if three judges declare that a state statute is 
unconstitutional the people would rest easy under it.'
45 Cong Rec 7256.

"In such an atmosphere was this three-judge 
court procedure put on the statute books, and although 
subsequent Congresses have amended the statute its 
basic structure remains intact.

II

"[6,7] Section 2281 was designed to provide 
a more responsible forum for the litigation of suits 
which, if successful, would render void state statutes 
embodying important state policies. The statute 
provides for notification to the State of a pending 
suit, 28 USC §2284 (2) (1964 ed), thus preventing
ex parte injunctions common previously. It provides 
for three judges, one of whom must be a circuit judge,
28 USC §2284(1) (1964 ed), to allow a more authoritative
determination and less opportunity for individual 
predilection in sensitive and politically emotional 
areas. It authorizes direct review by this Court,
28 USC §1253, as a means of accelerating a final 
determination on the merits; an important criticism 
of the pre-1910 procedure was directed at the length 
of time required to appeal through the circuit courts 
to the Supreme Court, and the consequent disruption 
of state tax and regulatory programs caused by the 
outstanding injunction.

"[8,9] That this procedure must be used 
in any suit for an injunction against state officials 
on the ground that a state enactment is unconstitutional 
has been clear from the start...... "

Swift & Co. -vs- Wickham, pages 199,
200, 201____________________________________

Admittedly, the Courts have struggled with the problem of

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balancing the requirements of the Statute with the drain caused by 

the assigning of three judges to one case. Phillips -vs- United

States, 312 U.S. 246, 61 S. Ct. 480 (1941).
However, when the constitutionality of a series of state

statutes or the constitution of a state are directly challenged in 

the Federal Court and where, as here, such challenge is coupled with 
a request (and Order for) injunctive relief, the necessity of 
impaneling a three-judge court is not discretionary. It is 
mandatory. In Schneider -vs- Rusk, 372 U.S. 224, 83 S. Ct. 621

(1963), the Supreme Court held:
.. .... the constitutional questions involving

the deprivation of nationality which were presented to 
the district judge were plainly not insubstantial. The 
single-judge District Court was therefore powerless 
to dismiss the action on the merits and should have 
convened a three—judge court.

Schneider, supra, 22 5_(Emphasis
supplied)

In Bvnum -vs- Connecticut Commission, 410 F 2d, 173 (1969)
the Second Circuit, decided that the Plaintiffs constitutional 

challenge to the requirement of a payment of a Five Dollar ($5.00) 

fee as a requisite to restoration of felony conviction suspended 

voting rights was "not insubstantial". Bynum, supra, 176.
Can it be said that the constitutional rights of some 

780,000 students (both black and white) and their parents and 52



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school districts and the State of Michigan are insubstantial in the 

light of the direct constitutional challenge created by the Trial 

Court's Order? The petitioners insist that the answer must be in 

the negative and that the three-judge panel was required under 

Section 2281.

The language of the Trial Court's Order obfuscates the

challenge to the State Constitution and Statutes. But, a careful

examination of the Order and Ruling of June 14, 1972 [24], contrived

semantics aside, reveals the Order for what it is; a direct judicial

assault upon the constitutional and statutory structure of the

State of Michigan by a single Federal District Judge . If there*
ever was a case, which meets the "atmosphere" referred to in Swift, 

supra, the present litigation demonstrates the reason for the .

Statutory requirement.

While initially, it may be true that the Plaintiffs' 

constitutional attack was limited to Act 48 of Public Acts of 1970, 

previously referred to, it is equally evident that the Court, on its 

cwn, has expanded the relief requested to encompass some 52 school 

districts and to restructure, by constitutional challenge the 

educational framework of the State of Michigan.

The necessity for a tri-judge panel cannot be waived by 

the parties. Stratton -vs- St. Louis Southwestern R. Co., 282 US 

10, 75 Law Ed. 135 (1930). The Court should have moved on its own

[24] Reference Exhibits D and E.

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to impanel a tri-judge court.

We believe that the case of Florida Lime and Avacado 

Growers -vs- Jacobsen, 362 U.S. 73, 80 S. Ct. 568 (1959) provides 

the precedent by which the Trial Court should have acted on its own.

"Cases in this Court since Louisville &
N. R. Co. v Garrett, 231 US 298, 58 L ed 229, 34 S Ct 
48 (1913), have consistently adhered to the view that, 
in an injunction action challenging a state statute 
on substantial federal constitutional grounds, a three- 
judge court is required to be convened and has— just 
as we have on a direct appeal from its action— jurisdiction 
over all claims raised against the statute. These 
cases represent an unmistakable recognition of the 
congressional policy to provide for a three-judge court 
whenever a state statute is sought to be enjoined on 
grounds of federal unconstitutionality, and this 
consideration must be controlling."

Florida Lime and Avacado Growers,supra 
Pages 80, 81; Emphasis supplied_______

The critical language here is the word "whenever" a 

state statute is sought to be enjoined on the basis of Federal 

unconstitutionality. "Whenever" occurred in the case below, when the 

Trial Court, on its own, exceeded the scope of the original litigation 

and brought a direct challenge to the several state statutes referred 

to above. By its Ruling of March 28th and its Order of June 14th, 

the Trial Court laid first the predicate, and then created the 

vehicle for implementation of a plan, which can only be construed 

as enjoining the operation of the several state statutes on the basis 

that they conflict with the constitutionality of federal rights

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purportedly guaranteed to the Plaintiffs. Semantics aside, the 

import and effect of this single-judge pronouncement is unmistakable 

and should not be ignored'even though the Trial Court has, to the date 

hereof, chosen to ignore the use of the traditional language in 

framing what can only be described as a mandatory injunction.

At the time and point where the Trial Court on its own, 

passed beyond the boundaries of the relief requested by the 

plaintiffs, it had the duty to impanel a three-judge court to 

proceed with the trial and its jurisdiction— its power to act—  

ceased from and after that point. Whether this Appellate Court

fixes such time as September 27, 1971, March 28, 1972, or June 14,' *
1972, is not material. By virtue of its terms, the Order of 

June 14, 1972 is a nullity and should be quashed. The Statutory 

requirements for a three-judge court jurisdiction are requirements 

of substance, not form. Jehovah's Witnesses -vs- King County 

Hospital,278 F Supp, 488 (1967).

Lastly, we would direct the Court's attention to Brown I 

and the companion cases of Briggs -vs- Elliott and Davis -vs- County

Board, which cases were all direct appeals from three-judge panels

(See footnote 1, to Brown I, supra, page 347). The history of
*

de-segregation cases has been replete with the recognition of the

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imperative nature of Section 2881, where state statutes of general

application are involved. North Carolina Board -vs- Swann, 402 U.S. 

43 (1971), is one, but not the last of such cases requiring the 

impaneling of three judges. If, as the Trial Court contends, the 

case at bar is merely the progeny of Brown I, the jurisdictional 

requirements applicable to the statutes of Kansas, have no less 

vitality in the case at bar. Where, as here, the Trial Court on its 

own motion, thrusts itself into a direct challenge to the State 

statutes and seeks to enjoin the operation of those statutes within 

the affected school districts, it must heed the requirements 2281.

This case provides an almost classical example of the
a

"raison d'etat" for Section 2281. One judge, of one district court 

seeks to dismantle— in the opinion of many— the educational system 

of the state of Michigan. It is asked "How does one judge get this 

authority?" The answer to the rhetorical question is that one judge 

does not have the authority purported to be exercised in the Order 

of June 14, 1972. A tri-judge panel was required to be convened. 

Petitioners contend that the Trial Court's failure to invoke

Section 2281 is fatal to the Orders of the Trial Court and that the
«

same must be- quashed.

VII STATEMENT OF REASONS WRIT OF
' PROHIBITION AND MANDAMUS SHOULD ISSUE

As previously stated, the petitioners have no right of



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appeal as they are not parties litigant to this cause. Petitioners 

trust that they have identified the challenge to the Trial Court's 

asserted jurisdiction over these petitioners. Issuance of a Writ

of Prohibition and Mandamus to direct the Trial Court to vacate
' . .  . . '

said Orders as to these petitioners is the only effective legal 

remedy available. . ,

The petitioners acknowledge that the issuance of said 

Writ is an extraordinary remedy. The litigation now before this 

Court likewise is extraordinary. It involves more students than 

any prior de-segregation yet heard in this country. Its impact 

will be nationwide; the basic constitutional and jurisdictionft
questions presented by the petitioners are fundamental to the whole 

judicial process of this country. The Trial Court had before it 

a Motion to join all 86 school districts of the tri-county area.[25 ] 

It did not do so. Therefore, the school districts have been denied 

a hearing on both the merits and remedy.

Nor is it dispositive of the rights of these petitioners 

to say that they could likewise have intervened in this litigation. 

The circumscribed rights provided to those school districts which 

did intervene are so limited as to have made intervention a nullity. 

More importantly, on March 28, 1972, the Trial Court took the first 

testimony on the metropolitan plan for de-segregation. On that same

[25] Ironically,since July,1971,the Trial Court has had before it 
a Motion to add 86 school districts as parties. For unknown reasons, 
it was not decided. It is referred to in Exhibit B, page 28. It was withdrawn by the moving party,' Intervenor Magdowski, on June 14, 
197 2', in open Court. (No transcript attached.)

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day, approximately two hours after the intervening school districts

had heen permitted to appear for the first time in these

proceedings, the district judge announced that all counsel could

stop by his office and avail themselves of his findings of fact and

conclusions of law in the Detroit-only plans of segregation. [ 26 ]

Such procedures,which will undoubtedly be the subject of appeal by

the intervening school districts, demonstrates that intervention in

the present litigation would have been, and indeed was in fact, a

nullity in view of the actions of the Trial Court.

Traditionally, the Writ of Prohibition and Mandamus have

been used in the Federal Courts where a lower Court has refused,
6

or 'improperly sought, to exercise jurisdiction. While perhaps 

the Writ has been more commonly utilized in admiralty and criminal 

cases, its applicability to the present case is unmistakeable. The 

language of the holding in Ex Parte, Republic of Peru, 318 U.S.

577, 582-586, is particularly helpful.

"Under the statutory provisions, the juris­
diction of this Court to issue common-law writs in 
aid of its appellate jurisdiction has been consistently 
sustained. The historic use of writs of prohibition 
and mandamus directed by an appellate to an infer io_r 
court has been to exert the revisory appellate power over 

inferior court. The writs thus afford an expeditious 
and effective means of confining the inferior court—to_ 
a lawful exercise of its prescribed jurisdiction, or of 
compelling it to exercise its authority when it is its duty 
to do so. Such has been the office of the writs when 
directed by this Court to district courts, both 
before the Judiciary Act of [February 13] 1925, 43 Stat 936,

[26] Reference Exhibit C.

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«

c 229, 11 USCA § 47, 3 FCA title 11, § 47 and since.
In all these cases (cited in notes 1 and 2), the appellate, 
not the original, jurisdiction of this Court was 
invoked and exercised.

"The common law writs, like equitable remedies, 
may be granted or withheld in the sound discretio n of 
the Court, Re Skinner & E. Corp. 265 US 86, 95, 96, 68 
L ed 912, 915, 44 S Ct 446; Ex parte Monterey, 269 US 527,
70 L ed 395, 46 S Ct 16; Maryland v. Soper, 270 US 9, 29,
70 L ed 449, 456, 46 S Ct 185; United States ex rel.
Greathouse v. Dern, 289 US 352, 359, 77 L ed 1250, 1254,
53 S Ct 614; and are usually denied where other adequate 
remedy is available. Ex parte Baldwin, 291 US 610, 78 L ed 
1020, 54 S Ct 551, 24 Am Bankr Rep(NS) 487. And ever 
since the statute vested in the circuit courts of appeals 
appellate jurisdiction on district appeal from the, 
district courts, this Court, in the exercise of its 
discretion, has in appropriate circumstances declined to 
issue the writ to a district court, but without prejudice 
to an application to the circuit court of appeals (Ex 
parte Apex Electric Mfg. Co. 274 US 725, 71 L ed 1342,
47 S Ct 766; Ex parte Daugherty, 282 US 809, 75 L ed 726,
51 S Ct 180; Ex parte Krentler-Arnold Hinge Last Co.
286 US 533, 76 L ed 1273, 52 S Ct 621), which likewise 
has power under §262 of the Judicial Code, 28 USCA § 377,
8 FCA title 28, § 377 to issue the writ. McClellan v.
Carland, 217 US 268, 54 L ed 762, 30 S Ct 501; Adams v. United 
States, 317 US 269, ante, 268, 63 S Ct 236, 143 ALR 435.

"After a full review of the traditional use of 
the common-law writs by this Court, and in issuing a 
writ of mandamus, in aid of its appellate jurisdiction, 
to compel a district judge to issue a bench warrant in 
conformity to statutory requirements, this Court declared 
in Ex parte United States, 287 US 241, 248, 249, 77 L ed 
283, 286, 287, 53 S Ct 129: 'The rule deducible from the
later decisions, and which we now affirm, is, that this 
court has full power in its discretion to issue the writ 
of mandamus to a federal district court, although the 
case be one in respect of which direct appellate jurisdiction 
is vested in the circuit court of appeals— this court having 
ultimate discretionary jurisdiction by certiorari— but

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that such power will be exercised only where a question 
of public importance is involved. or where the question 
is of such a nature that it is peculiarly appropriate 
that such action by this court should be taken. In other 
words, application for the writ ordinarily must be made 
to the .intermediate appellate court, and made to this 
court as the court of ultimate review only in such exceptional 
cases.1

"We- conclude that we have jurisdiction to issue the 
writ as prayed."

Ex Parte, Republic of Peru, supra 
Emphasis added___________________

While Peru, supra, was an original application to the 

Supreme Court, the criteria set forth in, the opinion for issuance 

of the writ is applicable to the instant case before this Appellate 

Court. Indeed, the circumstances of the present litigation are 

even more compelling.

CONCLUSION

In Brown I, supra, the Supreme Court declared that a 

School District which is deliberately operated to foster segregated 

schools offends federally guaranteed rights under the Fourteenth 

Amendment.

The Trial Court below decided, rightly or wrongly, that 

only the City of Detroit School District had failed to maintain the 

required unitary system and that the State-Defendants, so-called, 

had abetted or acquiesced in the deprivation of those rights.



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Unlike other cases which have come before the Appellate 

Courts of this country, such as Alexander -vs- Holmes County 

Board of Education, 396 US 19 (1969), there is no finding that the 

petitioning school districts have ever operated their schools in 

violation of those rights which Brown I sought to protect.

The Trial Court, as previously noted, has decried any 

findings that the petitioning school districts contributed to its 

decision with respect to the Detroit School District. As noted, by 

the 4th Circuit in Bradley -vs- Richmond, supra,-F2d-, geographically 

and politically independent school districts which have not been 

established or maintained with intent of denying or circumventing
4

any federally protected right, the State's right to control its own 

internal government is absolute. The Trial Court has conceded that 

there is no evidence that the petitioning school districts were 

established to circumvent any such federally guaranteed right. It 

is submitted that notwithstanding those findings, 52 school district^ 

of the State of Michigan including the petitioners have been included 

in an Order without parallel in judicial precedent, without notice 

and without a hearing.

It is reiterated; what is here involved is a calculated 

overreaching by the Trial Court of the jurisdictional and due 

process requirements to which all litigants are entitled. No right 

of appeal is afforded to non-parties. The Order of June 14 is sweeping

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and all-encompassing, as to Districts within 

The extraordinary circumstances of this case 

remedy of a Writ of Prohibition to set aside 

the Trial Court as to these petitioners.

the de-segregation area, 

require the extraordinar 

and quash the Orders of
y

RELIEF REQUESTED

Petitioners respectfully request that the Appellate Court 

treat this matter as an emergency Petition for Writ of Prohibition 

and Mandamus. The Order of the District Court directs the 

reassignment of pupils between the Detroit School District and the 

52 affected school districts for the fall term of 1972. The
ft

commencement of that term is something less than seventy-five (75) 

days away as this Petition is written. Notwithstanding that said 

litigation was commenced in August of 1970, has been appealed to the 

Circuit Court of Appeals not less than twice, and is now pending 

on a request for certiorari to the United States Supreme Court, 

the Trial Court has directed the immediate implementation of the 

de-segregation plan for fall of 1972 as to certain grades within the 

affected school districts. [ 27 ]

As previously noted, the petitioners are directed to 

expend funds and cooperate with said de-segregation panel in 

preparation of a plan of de-segregation and in effect, to be part 

and, parcel of the judicial plan for eventual dismemberment of the 

affected school districts.

[27] Reference Exhibit E, p. 4, See also Exhibit D,
p. 28, 5[H 84, et seq.

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Notwithstanding the pendency of this cause for well on to 

two (2) years, the Court now would have all proceed at a rapid 

pace to insure that de-segregation will commence in grades 

kindergarten: through six, eight or nine, in as many clusters as 

possible. [ 28] Petitioners show that there can be no justification 

for this judicial rush to the busses in view of the substantial 

legal questions presented to this Court and more importantly, to the 

need for careful examination of all questions involved before one 

judge compels the imposition of an Order which cannot help but 

disrupt the orderly operation of some 52 school districts and disrupt, 

some 800,000 children and their parents. Certainly, a case of this 

magnitude deserves the preferred and immediate attention of this 

Court.

* * * * * * * * * * *

WHEREFORE, your petitioners, being without other appropriat; 

relief in the premises, respectfully pray that an emergency Writ of 

Prohibition or alternately a Writ of Mandamus issue out of this Court; 

directed to the Honorable Stephen J. Roth, District Judge, for the

e

Eastern District of Michigan, Southern Division, as follows:

a. That said Writ prohibit the Honorable 
Stephen J. Roth, or any persons acting for or on behalf 
of said District Judge,from enforcing or implementing

[28] Reference Exhibit E] p. 3, fl.

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or in any manner proceeding under the ruling and Order 
for establishment of de-segregation area dated June 14, 
1972 in the cause of Bradley -vs- Milliken, et al, 
civil action No. 35257 in the United States District 
Court for the Eastern District of Michigan, Southern 
Division, as to these petitioners; and,

b. That said Writ require and direct the
entry of an Order by said District Judge, that said 
Order of June 14, 1972, identified in subparagraph a,
be quashed as to these petitioners; and,

c. That said Writ of Prohibition or alternately 
Writ of Mandamus prayed for herein be issued as an 
emergency Writ and be directed to said District Judge 
forthwith for compliance with the terms hereof; and,

d. That for the reasons and grounds stated
herein, this matter be set for immediate hearing be­
fore the Honorable Court; and, .

e. . That your petitioners have such further
and different relief as may be required in the pre­
mises and be deemed just and equitable under the 
circumstances set forth herein. *

DELL, SHANTZ, BOOKER AND SCHULTE
Dated: June 30, 1972

222 Washington Square Building 
Royal Oak, Michigan 48067; LI 1-2150
Attorneys for West Bloomfield School 
District, 3250 Commerce Road,
Orchard Lake, Michigan; and
Clarenceville School District 
28830 West Eight Mile Road, 
Farmington, Michigan 48024 
Petitioners