Sherpell v Humnoke School District Motion to Dismiss Appeal

    THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT 

No. 85-2316 EA

BRENDA SHERPELL, et al.,

Plaintiffs-Appellees, 

v .

HUMNOKE SCHOOL DISTRICT, et al .,

Defendants/Appellants.

On Appeal from The United States 
District Court, Eastern District of Arkansas 

Western Division

MOTION TO DISMISS APPEAL

Appellees Sherpell, et al. (plaintiffs below) by their 

attorneys pursuant to Rule 4 of the Rules of this Court, 

move to dismiss the appeal of the Humnoke School District.

The basis for this motion is that the District Court 

herein has not entered a judgment or order pursuant to Rule 

58 and 79(b) of the Federal Rules of Civil Procedure and 

its Sept. 30, 1985 Memorandum Opinion and Order would not be 

appealable in any event, as it was merely an order directing



the submission of plans by the appellant; hence this Court 

has no jurisdiction to consider the appeal under 28 U.S.C. 

§§ 1291 or 1292 (a)(1).

This motion is supported by a Memorandum filed here­

with .

Dated this 18 day of April, 1986.

V'
JOHN W. WALKER 
LAZAR M. PALNICK

JOHN W. WALKER, P.A.
1723 Broadway Street 
Little Rock, Arkansas
(501) 374-3758

72206

JULIUS L. CHAMBERS 
C. LANI GUINIER 
THEODORE M. SHAW 

99 Hudson Street 
16th Floor
New York, New York 10027 
(212) 219-1900

ATTORNEYS FOR APPELLEES

2



Exhibit A to Motion to 
Dismiss Appeal

1. Affidavit of Myrtle Finch, 
County Clerk

2. Certified Copies of the School 
Election held in Lonoke 
County, March 11, 1986



IN THE UNITED STATES COURT OF APPEALS 
FOR THE EIGHTH CIRCUIT

BRENDA SHERPELL, ET AL, APPELLEES

V. NO. 85-2316EA

HUMNOKE SCHOOL DISTRICT, ET AL, APPELLANTS

AFFIDAVIT

State of Arkansas)
)SS.

County of Lonoke )

I hereby certify that the election held on March 11, 1986 

electing members of the Humnoke School District was conducted 

pursuant to state law as an at large election procedure whereby 

all voters registered to vote within the Humnoke School District 

had the opportunity to vote for any candidate on the ballot and 

that the only residency requirement for inclusion on the ballot 

was that the candidate reside within and be registered to vote in 

the Humnoke School District.

Subcribed and sworn to before me, a notary public in and for

the aforementioned county on this IU-  day of April, 1986.

My Commission Expires:



OFFICE OF

MRS. MYRTLE FINCH
County and Probate Clerk of Lonoke County

P. O. Box 188
Lonoke, Arkansas 72086-0188

April 7, 1986

Lazar Palnick 
John Walker Law Firn 
1723 Broadway 
Little Rock, Arkansas

Dear Sir:
Attached is the Certified Copies of the School Election held 

in Lonoke County March 11, 1986..

Trust this is the information desired.

Myrtl/e Finch 
Lonoke County Clerk

MF



IN THE COUNTY COURT OF LONOKE COUNTY, ARKANSAS

IEFERENCE: SCHOOL ELECTION OF MARCH 11, 1986.
Under the provisions of Act 403 of the Arkansas General Assembly of 1951 

I have proceeded to examine the returns of the School Election of Lonoke County 
Arkansas as held March 11,1986 in the Various School Districts of the County 
r i find the following results.

DISTRICT DIRECTOR VOTE TERM MILLAGEOPERATION
DEBT
SERV.

TOTAL

LONOKE Robert I. DePriest, Ill 490 5-Y
Pos. 7

6.4 12.4 18.8

L. Vern Gilmartin 250 It

ENGLAND Frances Chaney 254 5-Y
Pos. 4

8 11 19

Orlan Roper 418

CARLISLE Jerry Kelly 566 5-Y 14.4 7.6 25.
Pos. 1 2.Capitol 1 .

James Patrick (Pat) Clyburn 568 5-Y
Pos. 7

CABOT Joe Allman 931 5-Y
Pos. 2

6.5 13.5 20.

Anthony Ragar 463 II

Bob Mayer 639 5-Y
Pos. 6

Steven Tipton 763 II

HUMNOKE Leroy Isbell 211 5-Y
Pos. 5

16.3 2.7 19.

Joe N. Bryant, Jr. 36 H

SCHOOLS: FOR TAX AGAINST

LONOKE 583 153

ENGLAND 436 218

CARLISLE 366 274

BOT 806 576

nuMNOKE 138 77

LONOKE COUNTY



CERTIFIED COPY
STATE OF ARKANSAS, COUNTY OF LONOKE

I, MYRTLE FINCH, County and Probate Clerk within and for the County and State 
aforesaid, do hereby certify that the ann^xed and f^joingjnstrument of writing is
o true and correct y p y ^ f ^ j ^ / ^  r Y ^ / ^ ------Recorded on
the !  ____day o L / L 10// ^ Record Book Vol 

lanwA hereunto nand

lU Z L

affixed the seal of
10 ftp.

_  Clerk 
Deputy Clerk



TO THE HONORABLE MYRTLE FINCH
COUNTY CLERK OF LONOKE COUNTY, ARKANSAS

Returns of the Annual School Election held March 11, 1986 in the different 

School Districts of Lonoke County, Arkansas.

DISTRICT TOTAL TAX OPERATION DEBT
SERVICE

DIRECTOR TERM

.ONOKE 18.8 6.4 12.4 Robert I. DePriest, III 5-Y
Pos. 7

ENGLAND 19. 8. 11. Orlan Roper 5-Y
Pos. 4

CARLISLE 25. 14.4
2.

7.6
1.

Jerry Kelly 5-Y
Pos. 1

James Patrick (Pat) Clyburn 5-Y
Pos. 7

CABOT 20. 6.5 13.5 Joe Allman 5-Y
Pos. 2

Steven Tipton 5-Y 
Pos.

HUMNOKE 19. 16.3 2.7 Leroy Isbell 5-Y
Pos. 5

STATE OF ARKANSAS 
COUNTY OF LONOKE

We, the County Board of Election Commissioners of Lonoke County, Arkansas 
do hereby certify that the above tabulations of the results of the Annual School 
Election held March 11, 1986 in the different school districts in Lonoke County 
Arkansas are true and correct to the best of our knowledge and belief and that 
the same has been made from a carefull abstract of the returns of the Election 
which are now on file in the office of the County Clerk.



M U * .. «.#*■«*#**■

if?rar?nn nr?
APR *  8

HLbWlLh'lii1 O ILS

CERTIFIED COPY
STATE OF ARKANSAS, COUNTY OF LONOKE

I, MYRTLE FINCH, County and Probate Clerk within and for the County and State 
aforesaid, do hereby certify that the annexed end foregoing instrument of writing is 
a true and correct copy of KlCJ'l ̂  —̂ f̂ {rL —  . Recorded on
lhA / rlnv nf 'f J I f f  1 ni \ 19 ( (fir Record Book Vol ----Page Z —

IN TESTIMONYWHEREOF, I have hereunto so* ..ynand and affixed the sealpf
said Court on the //r^X'dav c)j----  ■ ./u —,---------------- — i—

X  7 7 / /  T X  Clerk
.Deputy Clerk



Exhibit B to Motion to 
Dismiss Appeal

Letter of February 3, 1986 from 
G. Ross Smith, attorney for 
Appellants, to Hon. George 
Howard



jplE^JTfin flECT
G. Ross Smith & Associates, RA.

G. Ross Smith 
W  Paul Blumc 
Richard L. Hughes

Attorneys At Law
“buite 1690 Union National Plaza 
Tilth and Louisiana Streets 
Little Rock. Arkansas 72201 
(501) 376-6604

February 3, 1986

Honorable George Howard 
U. S. District Court Judge 
U. S. Postoffice and Courthouse 
Little Rock, AR 72201

Re: Sherpell, et al. vs. Humnoke School District, et al.;
U. S. District Court #LR-C-84-191 
(Court of Appeals docket #85-2316EA)

Dear Judge Howard:

Pursuant the Court's Order, Defendants herewith submit three 
alternative proposals for election zones. Each proposal 
reflects two zones with approximately fifty percent of the 
district's patrons, with a third zone comprised of the entire 
district.

The bi-racial committee was, on or about January 30, 1986, 
furnished with copies of the personnel policies of the 
district and advised as to which of such policies should be 
given attention by them. The committee was on the same date 
furnished with copies of modifications to the assertive 
discipline policy and other, proposed modifications. See 
Exhibit 2. The committee was advised that the Court had 
asked for its input into these two issues, and the 
undersigned understands that a majority of the committee has 
informally, but not officially, approved the contents of 
Exhibit 2 (the student policy).

The committee met on January 25, 1986 and again on January 
28, 1986. See Exhibits 3 and 4. As reflected in Exhibit 4 
(handwritten "minutes" of the January 28, 1986 meeting, 
prepared by the secretary of the bi-racial committee), the 
undersigned was to have been furnished a report of the 
committee's actions. No such report has been received.



Honorable George Howard 
Page -2-
Februarv 3, 1986

Counsel for the parties herein discussed the possibility of 
being in attendance at meetings of the committee. However, 
counsel for Defendants advised counsel for Plaintiffs that 
presence of counsel might be counterproductive and 
unnecessarily intrusive, now and in the future, in the 
policy-making functions of the educational program.
Attorneys were thus not present at either meeting.

It now appears from the minutes that the committee needs some 
guidance either from the attorneys or the Court. The 
undersigned suggests that the Court permit each counsel to 
submit to the committee suggestions for their consideration. 
If the Court considers it advisable, such suggestions could 
first be tendered to the Court for its review.

For the Court's information, tentative approval of an 
extension of time for appellants' brief in the Court of 
Appeals has been obtained. Time for submission will be two 
weeks following the undersigned's receipt of the trial 
transcript, which will hopefully be within the next ten days.

In accordance with the recent conversation with the Court in 
chambers, counsel for Defendants will stipulate that the data 
upon which Defendants' zone proposals are based are correct 
to the best of our knowledge and belief. We will also 
stipulate that there is no necessity for expert testimony on 
this issue. We do not stipulate that any of the plans 
submitted are necessary, desirable or constitutional.

GRS:cj 

SD-HUM-la
cc: Mr. John W. Walker



THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT 

No. 85-2316 EA

BRENDA SHERPELL, et al.,

Plaintiffs-Appellees, 

v .

HUMNOKE SCHOOL DISTRICT, et al.,

Defendants/Appellants.

On Appeal from The United States 
District Court, Eastern District of Arkansas 

Western Division

APPELLEE'S MEMORANDUM IN SUPPORT OF 
MOTION TO DISMISS APPEAL

Appellees Sherpell, et al. by their attorneys submit 

this memorandum in support of their motion to dismiss the 

appeal of the Humnoke School District.

I. STATEMENT OF THE CASE

Appellees incorporate the Statement of the Case as it 

appears in their main brief in this action, filed this date.



ARGUMENTII.

The Court's jurisdiction herein is premised upon 28 

U.S.C. § 1291 and 28 U.S.C. § 1292(a)(1); however, no final 

decision has been entered, and no certification pursuant to 

to section 1292(b) was requested or obtained.

A. The September 30, 1985 Memorandum Opinion is 
Not a Final Order

This Court has appellate jurisdiction under 28 U.S.C. 

§1291 only if the district court order from which the appeal 

is taken is a "final decision." An order finding a viola­

tion of a plaintiff's civil rights but failing to provide 

any of the requested relief, including an injunction against 

the discriminatory practices, is not a final order, and is 

therefore not subject to appeal. Liberty Mutual Insurance 

Co. v. Wetzel, 424 U.S. 737 (1976); accord Jones v. Hutto, 

___ U.S. ___, 88 L .Ed.2d 251 (1985).

The purpose of § 1291 is to avoid piecemeal review. As 

this Court has recognized, this objective is furthered by 

dismissing appeals from orders that find liability, estab­

lish a procedure for determining appropriate remedies, but 

do not mandate any specific relief. Giordano v. Roudebush, 

565 F.2d 1015 (8th Cir. 1977); United States v. State of 

Arkansas, 632 F.2d 712 (8th Cir. 1980). In United States v . 

State of Arkansas, the district court had directed the state 

to pay the school districts' increased costs of desegrega­

2



tion compliance and attorney's fees. This Court found that 

the district court order was not final and was nonappealable 

because the court below had not directed the state to pay 

any specific sum to any school district, but had merely 

established a procedure to resolve those reimbursement 

claims. _I<3* at 713-714.
Other Circuits have consistently found no appellate 

jurisdiction in the absence of a final order. With specific 

regard to injunctive relief in the voting rights context, 

the Fifth Circuit held it lacked appellate jurisdiction in 

an appeal from a district court order finding that the 

state's voter registration requirements violated the 

plaintiffs constitutional right of equal protection, but 

"expressly reserving] the issuance of an injunction." Beare 

v. Briscoe, 498 F.2d 244, 245 n.1 (5th Cir. 1974).

Such is the posture of the case presently before this 

Court. The district court found that the defendant School 

District was discriminating against blacks in violation of 

the Constitution, and established a mechanism, the biracial 

committee, to have input into curing the District's subj­

ective disciplinary policy and discriminatory staffing 

practices. The court retained jurisdiction to have final 

approval of any corrective plan. (A12). The district court 

also found a constitutional violation in the at-large method 

of electing the school board. (A10). The court, however, 

reserved the issuance of an injunction; it held only that

3



the election procedure "should be enjoined." (A 10-11). The

court directed the parties to submit proposals on possible 

alternative election procedures to assist it in fashioning a 

remedy. The parties submitted their initial proposals on 

both the voting and school-related discrimination issues at 

a hearing held on January 2, 1986, and have made subsequent 

revised submissions since that time.

That no injunction has actually issued against the 

appellants' maintenance of the election system is evidenced 

by the fact that they held an at-large election in March of 

1986, under the same procedures that they have always used, 

without any restraint or interference by the district court. 

(See "Affidavit of Myrtle Finch" and "Certified Copy of 

School Election", annexed hereto as Exhibit A ) . Clearly, 

therefore, the district court has not issued a "final 

decision" on the election issue under 28 U.S.C. § 1291, 

since it has not yet ordered a remedy. Liberty Mutual, supra 

at 2. The court has merely established a procedure for 

ascertaining the appropriate remedy, as in U.S. v. State of 

Arkansas, supra, and Giordano v. Roudebush, supra.

To hear an appeal at this time would lead to precisely 

the kind of separate, piecemeal litigation that § 1291 was 

intended to avoid. Giordano v. Roudebush, 565 F.2d at 1018. 

Appellees respectfully submit that this Court therefore has 

no appellate jurisdiction over the issue of the challenge to 

the at-large election system. Regarding the student

4



discipline code and the employment criteria, the September 

30, 1985 Opinion is also not final. The district court 

simply made factual findings on these issues which appel­

lants are attempting to appeal prematurely.

B . No Appealable Order has been Entered as to 
the September 30 Opinion

The district court did not and has not entered a 

separate order based upon its September 30 opinion as 

required by Rule 58, FRCP. As no such separate orders have 

been entered the appeals herein are premature.

Rule 54, FRCP (a) defines a judgment as including a

"decree and any order from which an appeal lies.
A judgment shall not contain a recital of 
pleadings, the report of a master in the record of 
prior proceedings."

Thus "judgment" includes an interlocutory order 

otherwise appealable. Buekma's Petroleum Co. v. Admiral 

Petroleum Co., 613 F.2d 626, 627 (6th Cir. 1979); Chief 

Freight Lines v. Local Union No. 886, 514 F.2d 572, 578 n.6 

(10th Cir. 1975).

Rule 58, FRCP provides in part

"Every judgment shall be set forth in a separate 
document. A judgment is effective only when so 
set forth and when entered as provided in Rule 
79(a)."

The Notes of the Advisory Committee state:

"The amended rule eliminates these uncertainties 
[where an opinion contains directive or deposi­
tive words) by requiring that there be a judgment

5



set out on a separate document - distinct from 
any opinion or memorandum - which provides the 
basis for the entry of judgment.

Rule 4(a)(6), Fed. R. App. P. provides:

"A judgment or order is entered within the 
meaning of this Rule 4(a) when it is entered in 
compliance with Rules 58 and 79(a) of the Federal 
Rules of Civil Procedure."

The Notes of the Advisory Committee states as to 4(a)(6):

"The proposed amendment would call attention to 
the requirement of Rule 58 of the FRCP that the 
judgment constitute a separate document.

In Bankers Trust Co. v. Mallis, 431 U.S. 928 (1977) 

the Court considered whether the requirement of Rule 58 as 

to a separate judgment was jurisdictional, in the context of 

an appeal pursuant to Section 1291. The Court held that the 

requirement was not jurisdictional and could be waived by 

the parties; it found a waiver 'under the circumstances of 

the case:

Here the district court clearly evidenced its 
intent that the opinion and order from which an 
appeal was taken would represent the final 
decision in the case. A judgment of dismissal was 
recorded in the clerk's docket. And petitioner 
did not object to the taking of an appeal in the 
absence of a separate judgment. Under these 
circumstances the parties should be deemed to have 
waived the separate judgment requirement of Rule 
58 and the Court of Appeals properly assumed 
appellate jurisdiction. 435 U.S. at 387-88.

The Tenth Circuit followed Mallis, again in a Section 1291 

context in Stubbs v . U .S., 620 F.2d 776, at p. 776, n.1 

(10th Cir. 1980).

6



'Wheels would spin for no apparent reason,' 
because 'Compelling mechanical compliance with 
the rule here would mean a dismissal of the 
appeal and require a further entry in the 
district court and new appellate procedure.'

Unlike the circumstances present in Mallis and Stubbs, 

here it is clear that neither the district court nor the 

parties intended the September 30 Memorandum, Opinion and 

Order to be appealable, and relied upon the fact that a 

separate judgment had not been entered pursuant to Rule 58.

This is evidenced by the fact that the parties prepared 

for and participated in a remedy hearing before the district 

court on January 2, 1986. There the court approved the 

composition of the biracial committee and took evidence and 

testimony related to the parties' proposed election zoning 

alternatives. Pursuant to this hearing, the parties 

continued to submit election redistricting proposals and the 

biracial committee continued to meet to develop school 

policy modifications for the district court's eventual 

approval. (See letter of G. Ross Smith, defendants' 

attorney, dated February 3, 1986, annexed hereto as Exhibit 

B) .
It is clear that in the exercise of his discretionary 

control over the orderly disposition of the issues before 

him, Judge Howard made a determination to avoid a piecemeal 

appeal and delay the right to appeal until a final deter­

mination of the issues relating to the plaintiffs' right to 

further relief and the details of that relief.

7



Under these circumstances, where there has been no 

waiver of Rule 58 requirements, and where the district court 

clearly intended that its order not be appealable, we know of 

no instance where a Court of Appeals has nevertheless 

accepted jurisdiction. See, e,g ., Herschensohn v.

Hoffman, 593 F.2d 893 (9th Cir. 1979); Furr's Cafeterias,

Inc. v . N.L.R.B., 566 F.2d 505 (5th Cir. 1978); Hanson v.

Town of Flower Mound, 724 F.2d 1167 (5th Cir. 1984);

Beukema's Petroleum Co. v. Admiral Petroleum Co., 613 F.2d 

626 (6th Cir. 1979). Under these circumstances the appeal 

should be dismissed as premature.

C . The September 30 Order is Not an Injunctive 
Order Under Section 1292(a)(1)

This Court also lacks jurisdiction over this case under 

28 U.S.C. § 1292(a)(1) which establishes appellate juris­

diction over interlocutory injunctive orders. As previously 

stated, the district court in this case has issued no 

injunction, but has merely found constitutional violations 

and established mechanisms for the submission of plans to 

rectify them. In Taylor v. Board of Education, 288 F.2d 600 

(2nd Cir. 1961) cert. denied , 368 U.S. 940 ( 1961 ), the court 

held that an order for the submission of a desegregation 

plan for a particular school was not appealable under § 

1292(a)(1):

"... a command that relates merely to the 
taking of a step in a judicial proceeding is 
not generally regarded as a mandatory injunc­
tion, even when its effect on the outcome is

8



far greater than here ... for just as not every 
order containing words of restraint is a 
negative injunction [within § 1292(a)(1)] ...
so not every order containing words of command 
is a mandatory injunction within that section."
Id. at 604.

The court further noted that if the proceedings below 

went forward, a second appeal from the results of those pro­

ceedings would certainly follow and "would not be conducive 

to informed appellate deliberation."

In contrast, prompt dismissal of the appeal as 
premature should present an early conclusion of 
the proceedings in the District Court and 
result in a decree from which defendants have a 
clear right of appeal.... We - and the Supreme 
Court, if the case should go there - can then 
consider the decision of the District Court, 
not in pieces but as a whole, not as an 
abstract declaration awaiting the contest of 
one theory against another, but in the con­
crete. Id. at 605.

Judge Friendly's reasoning' in Taylor has generally been 

accepted by the other Circuits, except in those instances 

where the content of the plan to be submitted was so fully 

defined by the order itself that the submission was merely a 

formality. Thus, in Hoots v. Commonwealth of Pennsyl­

vania, 587 F.2d 1340 (3rd Cir. 1978), where the district 

court had refused to approve and enjoin the implementation 

of a plan submitted by the state, "without prejudice to any 

party to submit further plans," the court held the order 

nonappeal able under section 1292(a)(1). The order was:

"... merely a step in the judicial proceedings 
leading to the formulation of such relief.
Important issues regarding the nature and 
extent of the relief to be afforded plaintiffs

9



still remained to be resolved and were depen­
dent on the particular circumstances of the 
case as it was to develop in the proceeding 
subsequent to the entry of that order." _Ic3. at 
1351 .

Accord: Frederick L. v. Thomas, 557 F.2d 373 (3rd

Cir. 1977); Morales v. Turman, 535 F.2d 864 (5th Cir.

1 976); cf_. Arthur v. Nyquist, 547 F.2d 7 (2nd Cir. 1976 ); 

Reed v. Rhodes, 549 F .2d 1 050 (6th Cir. 197 6 ) . ̂

We submit that the posture of this case is similar to 

Hoots, where cross submissions by both sides have occurred , 

and the determination of the plan of relief has yet to be 

made by the district court. Even the court's order to form 

a biracial committee, the only order specifically issued by 

the court below, is simply part of the order to bring in a 

plan, an administrative procedure setting the stage for 

subsequent injunctive relief.

Both the Taylor and Hoots rationale is appropriate 

here. The September 30 Order is merely an interim step and 

judicial review should await the results of the district

The only contrary authority is Board of Public Instruction 
of Duval County v. Braxton, 326 F.2d 616 (5th Cir. 1964), 
cert, denied, 377 U.S. 924 (1964). After a finding of a 
violation the trial court entered an order prohibiting 
particular acts set out in five paragraphs; the court then 
deferred implementation of the prohibiting injunction, 
ordering the board's submission of: "... a detailed and 
comprehensive plan for putting subparagraphs, A,B,C,D and E 
of paragraph 3 above into effect throughout the Duval public 
school system." On appeal, the court held this to be an 
appealable order: "We conclude that these prohibited acts 
amount to a mandatory injunction." I<3. at 619.

10



court's final order which will better define the issues to 

be reviewed and will clearly afford the opportunity for full 

review of the district court's prior interlocutory orders.

Ill. CONCLUSION

No prejudice will result to the District through the 

dismissal of this appeal. As none of its policies have been 

enjoined, the District has remained free from judicial 

restraint to operate as it wishes. As previously noted, the 

District held its annual school board elections in March,

1986 under the same at-large system in effect prior to this 
litigation. (See Exhibit A). Before the district court 
enjoins the current policies and mandates constitutionally 
sound policies in their stead, the District will have ample 
opportunity to provide input or challenge the plaintiffs' 
proposals.

The District will not lose its right to raise the 

issues now presented by this premature appeal; indeed those 

issues will likely be further defined by the district 

court's final order. In addition the parties will be able to 

appeal from that order, thereby avoiding piecemeal review 

and allowing a single appellate proceeding in which all 

matters are clearly defined and presented to this court. 

Dismissal will also avoid the fragmentation of the case and 

the disruption of the district court's orderly plan for the 

resolution of the remaining issues before it.



Appellees submit that the appeal herein should be 

dismissed as inappropriate and premature under Sections 1291 

and 1292(a)(1).

Dated this 18 day of April, 1986.

Respectfully submitted,

JOHN W. WALKER 
LAZAR M. PALNICK

JOHN W. WALKER, P.A.
1723 Broadway Street 
Little Rock, Arkansas 72206 
(501) 374-3758

JULIUS L. CHAMBERS 
C. LANI GUINIER 
THEODORE M. SHAW 

99 Hudson Street 
16th Floor
New York, New York 10027 
(212) 219-1900

ATTORNEYS FOR APPELLEES

12



CERTIFICATE OF SERVICE

I hereby certify that on this 18th day of April, 1986,

I mailed a true and correct copy of the foregoing APPELLEES' 

MEMORANDUM IN SUPPORT OF MOTION TO DISMISS APPEAL and MOTION 

TO DISMISS APPEAL by placing a copy thereof in the United 

States mail, postage prepaid, addressed to the following:

G. Ross Smith, Esq.
1690 Union National Plaza 
Little Rock, AR 72201

Dan Bufford, Esq.
One Spring Street 
Little Rock, AR 72201

w
Attorney for Appellees