Missouri v. Jenkins Reply Brief for Petitioners

    t
No. 88-1150

In The

jjrmr (Cmtrt itf to M nitth  Tati's
October Term, 1988

State of Missouri, et at,
Petitioners,

Kalima Jenkins, et at,
_________ Respondents.

On Petition for a Writ of Certiorari to the 
United States Court of Appeals 

for the Eighth Circuit

REPLY BRIEF FOR PETITIONERS

W illiam  W ebster 
Attorney General 

Terry A llen 
Deputy Attorney General

M ichael J. F ields 
Assistant Attorney General 
Broadway Bldg., 6th Floor 
P.O. Box 899 
Jefferson City, MO 65102 
(314) 751-0531

H. Bartow Farr, III *
David R. Boyd 
Beth Heifetz 

On ek , Klein  & Farr 
2550 M St., N.W., Suite: 350 
Washington, D.C. 20037 
(202) 775-0184

* Counsel of Record Counsel for Petitioners

W i l s o n  -  E p e s  P r i n t i n g  C o . ,  In c . -  7 8 9 - 0 0 9 6  - W a s h i n g t o n , D . C  2 0 0 0 1



TABLE OF AUTHORITIES
Cases: Page

Brown v. Frey, 806 F.2d 801 (8th Cir. 1986)____  8
Cairns v. Richardson, 457 F.2d 1145 (10th Cir.

1972) ................................... ........................ ........ . 5
Conboy v. First Nat’l Bank, 208 U.S. 141 (1906).. 5
Credit Co. v. Arkansas Cent. Ry., 128 U.S. 258

(1888) ...................... ....... ............ .................... .......  5
Crosby v. Mills, 413 F.2d 1273 (10th Cir. 1969).. 5
Dayton Bd. of Educ. v. Brinkman, 433 U.S. 406

(1977) .............................           6
Gonzalez v. Southern Pac. Transy. Co., 773 F.2d

637 (5th Cir. 1985)........................... ........... .......  3
Green v. McDonnell Douglas Corp., 463 F.2d 337

(8th Cir. 1972), vacated, 411 U.S. 792 (1973).. 3
Griffin v. County School Bd., 377 U.S. 218 (1964).. 9
Jenkins v. Missouri, 838 F.2d 260 (8th Cir.), cert.

granted, 109 S. Ct, 218 (1988) (No. 88-64).... 3
Lewis v. Hillsborough Transit Auth., 726 F.2d 

668 (11th Cir.), cert, denied, 469 U.S. 822 
(1984) ____         3

Matthies v. Railroad Retirement Bd., 341 F.2d
243 (8th Cir. 1965) ........................... ....... ... .....

Milliken v. Bradley, 418 U.S. 717 (1974)................
Milliken v. Bradley, 433 U.S. 267 (1977)................
Rees v. Watertown, 86 U.S. 107 (1874) ................
Wayne United Gas Co. v. Owens-Illinois Glass

Co., 300 U.S. 131 (1937) .....................................  5

Other Authorities:
Fed. R. App. P. 35 .................... ............ ............... ............ ............. 2, 3
Fed. R. App. P. 35, Advisory Committee Notes........  3, 4
Fed. R. App. P. 41 .......................................................  4
1 A.C. Freeman, A Treatise of the Law of Judg­

ments (5th ed. 1925) _______ ___________ _____  5
6A Moore’s Federal Practice (2d ed. 1987).......  5

5
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In The

(Emrt nf %  llmtpft Stall's
October Term, 1988

No. 88-1150

State of Missouri, et at,
Petitioners,

Kalima Jenkins, et al.,
__ _____  Respondents.

On Petition for a Writ of Certiorari to the 
United States Court of Appeals 

for the Eighth Circuit

REPLY BRIEF FOR PETITIONERS

Respondents’ Briefs in Opposition do not take issue 
with the fact that the remedies ordered in this case “go 
far beyond anything previously seen in a school desegre­
gation case.”  Pet. App. 54a (Bowman, J., dissenting 
from denial of rehearing en banc). Nor are they able to 
show that a judicial order requiring an increase in tax 
rates— the method used to finance the extraordinary 
remedies— is anything but a remarkable use of judicial 
power. What respondents say, instead, is that the courts 
below were right: that, under the broad remedial stand­
ards set forth by this Court, orders to attract more white 
students to the district, or to make its facilities com­
parable to suburban facilities, or to increase its tax 
revenues, should all be considered part of making urban 
school districts “ desegregated.” It is precisely that 
question—whether orders of this sort are compatible 
with, or a sharp departure from, existing standards— 
that merits further review.



2

1. Respondent KCMSD opens with an argument that 
the petition for certiorari should be denied because of 
“serious doubts concerning timeliness.” KCMSD Br. in 
Opp. 9. These doubts, however, rest upon a misunder­
standing of the workings of Rule 35, Fed. R. App. P., 
and of the nature of the orders entered by the court of 
appeals below.

A brief summary of the relevant dates is necessary. 
The judgment of the court of appeals was entered on 
August 19, 1988. Thereafter, petitioners filed a timely 
request for rehearing, styled “ Petition for Rehearing En 
Banc,”  which was denied by Order on October 14, 1988.1 
On January 10, 1989, the court of appeals corrected its 
prior order mine pro tunc, effective October 14, 1988, to 
read as follows: “There are three (3) petitions for re­
hearing with suggestions for rehearing en banc pending 
before the Court. It is hereby ordered that the petitions 
for rehearing and the petitions for rehearing with sug­
gestions for rehearing en banc are denied.” Appendix 
A -l, bound with Petition for Certiorari.2 The petition 
was filed on January 11, 1989.

The entire basis of respondent KCMSD’s argument is 
that the petitions were due 90 days after August 19, 
1988, because only a timely petition for rehearing tolls 
the time for seeking a writ of certiorari and, in its view, 
no timely petition for rehearing was filed. This argu­
ment ignores two important points: first, that it is the 
regular practice of the Eighth Circuit to treat petitions 
entitled “ Petition for Rehearing En Banc” as petitions

1 By its October 14, 1988 Order, the court of appeals also denied 
motions for rehearing en banc filed by two other parties below who 
also seek this Court’s review. Pet. App. 53a.

2 The wording of the earlier order was called to the court’s atten­
tion after a letter from the Clerk of this Court to another party to 
this litigation indicated that the time in which to seek this Court’s 
review might have passed. See App. to KCMSD Br. in Opp. at 1.



3
for rehearing with suggestions for rehearing en banc; 3 
second, that such treatment is, in fact, precisely what is 
contemplated by Rule 35, Fed. R. App. P., on which re­
spondent purports to rely. The interpretive Notes to that 
section plainly state: “ In practice, the suggestion of a 
party that a case be reheard in banc is frequently con­
tained in a petition for rehearing, commonly styled ‘peti­
tion for rehearing in banc.’ Such a petition is in fact 
merely a petition for a rehearing, with a suggestion that 
the case be reheard in banc”  Fed. R. App. P. 35, Ad­
visory Committee Notes (emphasis added).4

It is further clear that the court of appeals so treated 
the petition in this case from the very beginning. If the 
petition had been regarded by the court as nothing more 
than a suggestion for rehearing en banc without a peti­
tion for rehearing, then the petition would not, by the 
terms of Rule 35, have had any effect on the mandate. 
See Fed. R. App. P. 35(c) (“ [t]he pendency of such a 
suggestion whether or not included in a petition for re­
hearing shall not affect the finality of the judgment of

3 For example, in Green v. McDonnell Douglas Corp., 463 F.2d 
337 (8th Cir. 1972), vacated, 411 U.S. 792 (1973), a case heard on 
the merits in this Court, McDonnell Douglas twice sought “Rehear­
ing En Banc”— following issuance of the panel decision and of the 
revised panel decision. Each time, the court of appeals denied both 
rehearing and rehearing en banc. See Pet. for Cert, at 2 & App. to 
Pet. for Cert, at A30-A31, A-39, McDonnell Douglas Corp. v. Green, 
411 U.S. 792 (1973) (No. 72-490). Similarly, in response to the 
State’s “ Petition For Rehearing En Bane” of a decision in this 
case concerning attorney’s fees, the Eighth Circuit denied rehear­
ing en banc and rehearing by the panel. See Jenkins v. Missouri, 
838 F.2d 260 (8th Cir.), cert, granted, 109 S. Ct. 218 (1988) (No. 
88-64). The State’s petition for rehearing en banc in Brown v. 
Frey, 806 F.2d 801 (8th Cir. 1986), was accorded identical treat­
ment by the court of appeals.

4 Although the practice with regard to a “ Petition For Rehearing 
En Banc” varies from circuit to circuit, some courts of appeals 
embody the Rule 35 principle in their internal operating proce­
dures. See, e.g., Gonzalez v. Southern Pac. Transp. Co., 773 F.2d 
637, 641 (5th Cir. 1985); Lewis v. Hillsborough Transit Auth., 726 
F.2d 668 (11th Cir.), cert, denied, 469 U.S. 822 (1984).



4
the court of appeals or stay the issuance of the man­
date” ). It is only the timely filing of a petition for re­
hearing under Rule 41 that “will stay the mandate.” 
Fed. R. App. P. 41. Yet, there is no question that the 
mandate here did not issue until after the court of ap­
peals disposed of the petition on October 14, 1988.® Re­
spondent, in discussing Rule 35, never explains how or 
why the petition in this case could have operated to stay 
the mandate but not to affect the finality of the judg­
ment, when the same sentence of the Rule treats the two 
events in exactly the same fashion.5 6

It thus was entirely within the power of the court of 
appeals to incorporate this understanding into its prior 
order nunc pro tunc. Although respondent KCMSD nat­
urally would prefer that no correction be made, it is ab­
solutely clear that federal courts may issue, and often 
have issued, orders nunc pro tunc to “ correct mistakes of 
the clerk” or to “ settle defects or omissions in the record, 
so that it will show what actually took place.” Matthies 
v. Railroad Retirement Bd., 341 F.2d 243, 246 (8th Cir. 
1965).7 An order issued nunc pro tunc “ recite[s] the ac­

5 On August 23, 1988, a partial mandate issued on a point upon 
which the State prevailed and from which no party sought re­
hearing.

6 We are not suggesting that the date of the mandate is the date 
from which the time to seek a writ of certiorari would run. Our 
point is simply that, in automatically staying the mandate upon the 
filing of the petition below, the court of appeals plainly treated the 
petition as one for rehearing with a suggestion for rehearing en 
banc.

The concern at which the final sentence of Rule 35(c) is directed 
is if the court of appeals denies the petition for rehearing by the 
panel without addressing the suggestion for rehearing en banc. “ In 
such a case the fact that no response has been made to the sugges­
tion does not affect the finality of the judgment or the issuance of 
the mandate, and the final sentence of the rule expressly so pro­
vides.” Fed. R. App. P. 35, Advisory Committee Notes (emphasis 
added).

7 “ Each court must necessarily be the proper judge of what it 
has decided and adjudged, and when it orders an amendment of the



5
tion theretofore taken but not properly or adequately 
recorded” and relates back to the time that the court’s 
“previous unrecorded acts ought to have been shown . , .  
Cairns v. Richardson, 457 F.2d 1145, 1149 (10th Cir. 
1972). See 6A Moore's Federal Practice If 58.08 at 58- 
76 (2d ed. 1987).

The cases cited by respondent KCMSD are beside the 
point. Unlike the situation in Credit Co. v. Arkansas 
Cent. Ry., 128 U.S. 258 (1888), the court of appeals here 
did not treat an untimely motion as if it had been filed 
at an earlier date, or otherwise participate in a sham.® 
All the court did was to clarify that, in accordance with 
the contemplated practice under Rule 35 and with the 
actual treatment and effect of the petitions, its earlier 
order should have stated that timely-filed petitions for 
rehearing with suggestions for rehearing en banc had 8

record, the presumption of other courts must necessarily be that 
it does not undertake to order its clerk to record what it never had 
decided.” 1 A.C. Freeman, A Treatise of the Law of Judgments, 
§ 129 at 243 (5th ed. 1925) (citation and quotation omitted).

8 In Credit Co. v. Arkansas Cent. Ry., supra, although the time 
for taking an appeal had expired on January 22, 1885, the writ of 
error was not presented to the circuit court until five days later. 
Nonetheless, the circuit court entered an order on January 27, 1885 
indicating that the writ of error was filed on January 22. This 
Court held that it lacked jurisdiction because the appeal had 
not in fact been perfected until January 27, 1885, after the time 
for taking the appeal had run. Unlike the court of appeals order 
here, the January 27, 1885 Order did not “make the record speak 
the truth”—rather, it “suppl[ied] an order which in fact was 
not previously made.” Crosby v. Mills, 413 F.2d 1273, 1277 (10th 
Cir. 1969). The other two cases relied upon by KCMSD are even 
further afield. They simply involve belated attempts to seek rê  
hearing, and to restart the lapsed time for taking an appeal as of 
the date rehearing was denied. See Conboy v. First Nat’l Bank, 
203 U.S. 141 (1906); Wayne United Gas Co. v. Owens-Illinois Glass 
Co., 300 U.S. 131 (1937). There is no question in this case that 
the petitions for rehearing were timely filed.



been denied.9 The petition for writ of certiorari is thus 
indisputably timely.

2. Respondents make the usual charge that the state­
ments of the courts below regarding “ comparability” 
with suburban schools and attraction of more white stu­
dents are taken “out of context” (Jenk. Br. in Opp. 20; 
KCMSD Br. in Opp. 17), an accusation best answered by 
a reading of the opinions themselves. In our view, a fair 
reading of the opinions shows that the courts were not 
correcting for conditions of segregation within a single 
school district— as the violation would require— but at­
tempting to reduce or eliminate disparities between the 
district and other districts. The quoted language about 
“ comparable” education and “ increased white enrollment” 
are not just randomly-selected passages, but the very 
words that declare “ [t]he long term goal of th[e] Court’s 
remedial order” and the “ most important[ ] ” basis for 
its sweeping magnet order. See Pet. App. 123a, 145a- 
146a. Thus, far from being incidental to the orders 
under review, they are the most direct explanation of 
what the district court intended these novel orders to 
accomplish. See Dayton Bd. of Ednc. v. BrinkTnan, 433 
U.S. 406, 410 (1977) (remedial orders “must be satis­
factorily established by factual proof and justified by a 
reasoned statement of legal principles” ) .10

Respondents next argue, more specifically, that the 
overall goal of “ comparability” was not a goal at all, but 
something else. The Jenkins respondents say that it was

9 If there is a serious question whether courts of appeals are to 
be held to lack power to amend orders in this fashion, that itself is 
a question this Court should address in plenary fashion.

10 Nor have we quoted isolated remarks. The district court has 
repeatedly said that its orders are designed to attract new non­
minority enrollment to the district. See, e.g., Pet. App. 94a, 124a, 
145a, 177a, 185a. And, as we noted in our petition (Pet. 7-8), the 
court expressly rejected a State plan to improve district facilities 
because it did not provide for comparability with the suburban dis- 
stricts. Pet. App. 70a.

6



7
“an operational guide, not a substantive goal”  (Jenk. 
Br. in Opp. 27), while the KCMSD respondents say that 
it “was not an end in itself; it was a means of curing 
the State’s unconstitutional conduct” (KCMSD Br. in 
Opp. 17 (emphasis in original)). Even if these theories 
were more faithful to the plain language of the order 
(“ [t] he long term goal of this Court’s remedial order 
is . . .”  (Pet. App. 145a-146a)), they do little more 
than restate the problem posed by remedial orders of 
this type. It should not be enough for a district court 
simply to pay lip service to some highly general re­
medial principle— for example, by reciting that the court 
intends to “ restore [victims] to the position they would 
have occupied” (Pet. App. 146a)-—and then pursue ob­
jectives that are wholly outside the bounds of a legitimate 
remedy. Were that all that is required, then the inter- 
district remedy struck down in Milliken v. Bradley, 418 
U.S. 717 (1974) (Milliken / ) ,  could have been justified 
simply by stating (as the district court in that case did) 
that the remedy was a “means” of curing intradistrict 
segregation. The plain lesson of Milliken I, however, is 
that, in a case involving purely intradistrict segregation, 
some “ means” are beyond the authority of a federal 
court.

The issue thus remains the same: does the violation 
here—the segregation of students within the boundaries 
of the KCMSD—justify the “goal” or the “means” pur­
sued by the courts below? As we pointed out in our peti­
tion, and as respondents do not dispute, no federal court 
has ever held that intradistrict segregation requires a 
remedy making the school district comparable to neigh­
boring districts. While judges may well regard that aim 
as desirable, especially as disparities between city and 
suburban districts widen, it has always been thought 
a matter to be addressed by the legislative and executive 
branches of government. Thus, however the orders below 
may be styled, they represent a clear and, in our view,



unwarranted break with the history of remedies in de­
segregation eases.

Respondents also fail adequately to defend the orders 
to attract more white students to the district. Although 
they argue that more white students will reduce “ racial 
isolation” (KCMSD Br. in Opp. 16; Jenk. Br. in Opp. 
15-16), that representation could be made about any 
majority-black school district. The issue is not whether 
the representation is correct— it obviously is—but whether 
school districts have a legal duty, in order to become 
unitary, to reduce racial isolation beyond what the exist­
ing enrollment of the district ivill permit. Again, no 
case has ever held that they do, and Milliken I suggests 
in strong terms that they do not.

These are not easy questions, but they seem undeniably 
important. As noted in our petition, school districts have 
increasingly come to regard desegregation suits as a po­
tential avenue for obtaining more state funding, and 
the objectives of those suits are very different from the 
desegregation cases of one or two decades ago. To date, 
this Court has decided only one case (Milliken v. Brad- 
ley, 433 U.S. 267 (1977) (Milliken II) )  that addresses 
remedial “programs” other than direct student trans­
fers. We believe that this case provides an appropriate 
occasion to revisit an area in need of further guidance 
from this Court.

3. With regard to the tax increase ordered by the 
district court, respondents make essentially two argu­
ments. First, respondents argue that “no question of 
a judicially-imposed tax is presented” because the courts 
below “merely exercised a fundamental power of the 
federal judiciary— enjoining State laws which thwart 
vindication of constitutional rights” (KCMSD Br. in 
Opp. 20). Second, they argue that the judicial power 
to order taxes has long been settled (KCMSD Br. in Opp. 
20-21). Both arguments are of doubtful accuracy, and 
neither lessens the importance of the question presented.

8



9
The distinction between a court-ordered tax increase 

and an injunction voiding state statutes requiring voter 
approval of tax increases owes more to form than to 
substance. What the courts below did, in effect, was to 
hold that the KCMSD can raise money under the author­
ity and with the approval of the district court, rather 
than under the authority of state law and with the 
consent of district voters. Put another way, the courts 
substituted their own grant of authority— one with no 
limits on the extent of taxation, except as set by the 
court—for the more limited grant under which every 
other school district in the State must operate. Whether 
that use of power is called a “ judicially-imposed tax” or 
a tax imposed by authority of the judiciary, it amounts 
to the same thing.11

The power to order such increased taxes is not, as 
respondents submit, well-established. Apart from some 
hoary mandamus cases, respondents can identify no case 
from this Court in which an actual tax increase was or­
dered or even approved. Their recent authority consists 
of Griffin v. County School Bd., 377 U.S. 218 (1964), 
which we have already discussed in our petition for cer­
tiorari (Pet. 23-24), and of dicta in a smattering of 
cases that refer back to the mandamus cases as evidence 
that such a power exists. In the face of specific state­
ments by this Court that the power does not exist— see, 
e.g., Rees v. Watertown, 86 U.S. 107, 116-17 (1874), 
which is unconvincingly distinguished by respondents12

11 It is also clear that, if the KCMSD nevertheless refused to 
increase the tax, the court would require that it do so. The reason 
that the problem does not arise is that the KCMSD is more than 
willing to circumvent the voters in order to raise additional funds 
for the district.

12 Respondent KCMSD, for example, says that Rees is inapposite 
because a state statute prohibited the tax to be levied. KCMSD Br. 
in Opp. 22-23 n.28. What the KCMSD overlooks, of course, is that 
state law also prohibits the tax levied here—a tax not approved by 
the voters.



10

— those passing observations hardly seem to resolve a 
matter of great importance.

Is the power to enforce remedies for constitutional vio­
lations infinite? We think that it is not. If it is, how­
ever, and federal courts may use their powers to fund 
their chosen remedies, that would be all the more reason 
for this Court to assure that the courts have not abused 
the antecedent power to define proper remedies.

CONCLUSION
The petition for writ of certiorari should be granted.

Respectfully submitted,

W illiam  W ebster 
Attorney General

Terry A llen 
Deputy Attorney General

M ichael J. F ields 
Assistant Attorney General 
Broadway Bldg., 6th Floor 
P.O. Box 899 
Jefferson City, MO 65102 
(314) 751-0531

H. Bartow Farr, III *
David R. B oyd
Beth Heifetz 

On e k , Klein  & F arr 
2550 M St., N.W., Suite 350 
Washington, D.C. 20037 
(202) 775-0184

* Counsel of Record Counsel for Petitioners