Petition for Writ of Prohibition and Mandamus
Public Court Documents
June 30, 1972

44 pages
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Case Files, Milliken Hardbacks. Petition for Writ of Prohibition and Mandamus, 1972. 7808461f-53e9-ef11-a730-7c1e5247dfc0. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/0c5a44e4-8470-45b5-baee-67decc3434ab/petition-for-writ-of-prohibition-and-mandamus. Accessed July 06, 2025.
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D E L L . S H L N T Z . B O O K E R & S C H U L T E . W A S H IN G T O N S Q U A R E P L A Z A . R O Y A L O A K . M IC H IG A N • t 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 - 1- D E L L , S H A N T Z . B O O K E R & S C H U L T E . W A S H IN G T O N S Q U A R E P L A Z A . R O Y A L O A K . M IC H IG A N 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 - 2- D E L L . S H A N T Z . B O O K E R G S C H U L T E . W A S H IN G T O N S Q U A R E . P L A Z A . R O Y A L O A K . M IC H IG A N 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. -3- D E L L . S H A N T Z . B O O K E R a S C H U L T E . W A S H IN G T O N S Q U A R E P L A Z A . R O Y A L O A K . M IC H IG A N 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. - 4 - D E L L , S H A N T Z . B O O K E R ft S C H U L T E . W A S H IN G T O N S Q U A R E P L A Z A . R O Y A L O A K . M IC H IG A N 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 -5- D E L L . S H A N T Z . B O O K E R ft S C H U L T E . W A S H IN G T O N S Q U A R E P L A Z A . R O Y A L O A K . M IC H IG A N # 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. -6- D E L L . S H A N T Z , B O O K E R & S C H U L T E . W A S H IN G T O N S Q U A R E P L A Z A . R O Y A L O A K . M IC H IG A N 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 -7- D E L L , S H A N T Z , B O O K E R ft S C H U L T E . W A S H IN G T O N S Q U A R E P L A Z A . R O Y A L O A K . M IC H IG A N 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: -8- D E L L . S H A N T Z . B O O K E R ft S C H U L T E . W A S H IN G T O N S Q U A R E P L A Z A . R O Y A L O A K . M IC H IG A N 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 - 9- D E L L . S H A N T Z . B O O K E R A S C H U L T E . W A S H IN G T O N S Q U A R E P L A Z A . R O Y A L O A K . M IC H IG A N 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. - 10 - D E L L , S H A N T Z , B O O K E R ft S C H U L T E . W A S H IN G T O N S Q U A R E P L A Z A . R O Y A L O A K . M IC H IG A N 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. -11 D E L L . S H A N T Z . B O O K E R & S C H U L T E . W A S H IN G T O N S Q U A R E P L A Z A . R O Y A L O A K . M IC H IG A N 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. D E L L . S H A .N TZ . B O O K E R a S C H U L T E . W A S H IN G T O N S Q U A R E P L A Z A . R O Y A L O A K . M IC H IG A N 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. -13- D E L L . S H A N T Z . B O O K E R & S C H U L T E . W A S H IN G T O N S Q U A R E P L A Z A . R O Y A L O A K . M IC H IG A N 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 -14- D E L L . S H A N T Z . B O O K E R & S C H U L T E . W A S H IN G T O N S Q U A R E P L A Z A . R O Y A L O A K . M IC H IG A N 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. 15- D E L L . S H A N T Z . B O O K E R & S C H U L T E . W A S H IN G T O N S Q U A R E P L A Z A . R O Y A L O A K . M IC H IG A N 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 -16- D E L L . S H A N T Z , B O O K E R & S C H U L T E . W A S H IN G T O N S Q U A R E P L A Z A . R O Y A L O A K . M IC H IG A N 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. - 17 - D E L L . S H A N T 7 . B O O K E R & S C H U L T E . W A S H IN G T O N S Q U A R E P L A Z A . R O Y A L O A K . M IC H IG A N 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. D E L L , S H A N T Z . B O O K E R ft S C H U L T E , W A S H IN G T O N S Q U A R E P L A Z A . R O Y A L O A K . M IC H IG A N 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". -20- D E L L . S H A N T Z . B O O K E R & S C H U L T E . W A S H IN G T O N S Q U A R E P L A Z A . R O Y A L O A K . M IC H IG A N 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, D E L L . S H A N T Z . B O O K E R & S C H U L T E . W A S H IN G T O N S Q U A R E P L A 2 A . R O Y A L O A K . M IC H IG A N 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, - 77 - D E L L . S H A .V TZ . B O O K E R & S C H U L T E . W A S H IN G T O N S Q U A R E P L A Z A . R O Y A L O A K . M IC H IG A N 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; D E L L . S H A N T Z , B O O K E R & S C H U L T E . W A S H IN G T O N S Q U A R E P L A Z A , R O Y A L O A K . M IC H IG A N "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. -24- 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. D E L L . S H A N T Z . B O O K E R & S C H U L T E . W A S H IN G T O N S Q U A R E P L A Z A . R O Y A L O A K . M IC H IG A N « 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. -26- D E L L . S H A N T Z . B O O K E R & S C H U L T E . W A S H IN G T O N S Q U A R E P L A Z A . R O Y A L O A K . M IC H IG A N t 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. -27- D E L L , S H A N T Z . B O O K E R & S C H U L T E . W A S H IN G T O N S Q U A R E P L A Z A . R O Y A L O A K . M IC H IG A N I 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. -28- D E L L . S H A N T Z . B O O K E R & S C H U L T E . W A S H IN G T O N S Q U A R E P L A Z A . R O Y A L O A K . M IC H IG A N t 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 29 D E L L . S H A N T Z . B O O K E R ft S C H U L T E . W A S H IN G T O N S Q U A R E P L A Z A . R O Y A L O A K . M IC H IG A N t 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 4 D E L L . S H A N T Z . B O O K E R & S C H U L T E . W A S H IN G T O N S Q U A R E P L A Z A . R O Y A L O A K . M IC H IG A N 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 D E L L . S H A N T Z . B O O K E R & S C H U L T E . W A S H IN G T O N S Q U A R E P L A Z A . R O Y A L O A K . M IC H IG A N 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. - 33 - D E L L . S H A N T Z . B O O K E R & S C H U L T E . W A S H IN G T O N S Q U A R E P L A Z A . R O Y A L O A K . M IC H IG A N t 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 - 34 - D E L L . S H A N T Z . B O O K E R & S C H U L T E . W A S H IN G T O N S Q U A R E P L A Z A . R O Y A L O A K . M IC H IG A N « 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 -35- D E L L . S H A N T Z . B O O K E R & S C H U L T E . W A S H IN G T O N S Q U A R E P L A Z A . R O Y A L O A K . M IC H IG A N 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 D E L L . S H A N T Z . B O O K E R & S C H U L T E . W A S H IN G T O N S Q U A R E P L A Z A . R O Y A L O A K . M IC H IG A N 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.) -37- D E L L . S H A N T Z . B O O K E R & S C H U L T E . W A S H IN G T O N S Q U A R E P L A Z A . R O Y A L O A K . M IC H IG A N t 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. -38- « 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 -39- D E L L . S K A N T Z . B O O K E R & S C H U L T E . W A S H IN G T O N S Q U A R E P L A Z A . R O Y A L O A K . M IC H IG A N 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. D E L L . S H A N T Z , B O O K E R & S C H U L T E . W A S H IN G T O N S Q U A R E P L A Z A . R O Y A L O A K . M IC H IG A N I 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 -41- D E L L . S H A N T Z . B O O K E R ft S C H U L T E . W A S H IN G T O N S Q U A R E P L A Z A . R O Y A L O A K . M IC H IG A N 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. -42- D E L L . S H A N T Z . B O O K E R & S C H U L T E . W A S H IN G T O N S Q U A R E P L A Z A . R O Y A L O A K . M IC H IG A N • t 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. -43 D E L L . S H A N T Z . B O O K E R & S C H U L T E . W A S H IN G T O N S Q U A R E P L A Z A . R O Y A L O A K . M IC H IG A N t 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