Martin v Wilks Brief Amicus Curiae in Support of Petitioners

    S u p r e m e  C o u r t  ot tfjt © nitcft s t a t e s
OCTOBER TEEM, 1972

IN THE

Nos. ....................
BLOOMFIELD MILLS SCHOOL DISTRICT,

Petitioner,
VS. V .

STEPHEN J. ROTH, UNITED STATES DISTRICT JUDGE, 
EASTERN DISTRICT OF MICHIGAN, 

Respondent, 
and

SCHOOL DISTRICT OF THE CITY OF BIRMINGHAM, 
OAKLAND COUNTY, MICHIGAN,

Petitioner,
,l vs.

THE HONORABLE STEPHEN J. ROTH, DISTRICT JUDGE 
FOR THE EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION,
Respondent.

and
WEST BLOOMFIELD SCHOOL DISTRICT OF OAKLAND 

COUNTY MICHIGAN and CLARENCEVILLE SCHOOL 
DISTRICT OF OAKLAND AND WAYNE COUNTY,

MICHIGAN,
Petitioners,

vs.
THE HONORABLE STEPHEN J. ROTH, DISTRICT JUDGE 

FOR THE EASTERN DISTRICT OF MICHIGAN, 
SOUTHERN DIVISION,

Respondent.

SUPPLEMENTAL BRIEF IN OPPOSITION 
TO PETITION FOR WRIT OF CERTIORARI

RILEY AND ROUMELL 
Attorneys for Respondent 

Detroit Board of Education 
GEORGE T. ROUMELL, JR. 
LOUIS D. BEER 
720 Ford Building 
Detroit, Michigan 48226 
(313) 962-8255

T U B  IM U K l>  PR SSS, BETROIT, MICHHJAW





Supreme Court of tfje UntieiJ States;
OCTOBER TERM, 1972 

Nos............................
BLOOMFIELD HILLS SCHOOL DISTRICT,

Petitioner,
vs.

STEPHEN J. ROTH, UNITED STATES DISTRICT JUDGE, 
EASTERN DISTRICT OF MICHIGAN,

Respondent.
and

SCHOOL DISTRICT OF THE CITY OF BIRMINGHAM, 
OAKLAND COUNTY, MICHIGAN,

Petitioner,
vs.

THE HONORABLE STEPHEN J. ROTH, DISTRICT JUDGE 
FOR THE EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION,
Respondent.

and
WEST BLOOMFIELD SCHOOL DISTRICT OF OAKLAND 

COUNTY MICHIGAN and CLARENCEVILLE SCHOOL 
DISTRICT OF OAKLAND AND WAYNE COUNTY,

MICHIGAN,
Petitioners,

vs.
THE HONORABLE STEPHEN J. ROTH, DISTRICT JUDGE 

FOR THE EASTERN DISTRICT OF MICHIGAN, 
SOUTHERN DIVISION,

Respondent.

SUPPLEMENTAL BRIEF IN OPPOSITION 
TO PETITION FOR WRIT OF CERTIORARI

To the Honorable Chief Justice and Associate Justices 
of the Supreme Court of the United States:

Respondent Board of Education of the School District 
of the City of Detroit, a Michigan School District of the

IN THE



2

first class (hereinafter referred to as “  Detroit Board of 
Education” ), a party to the principal litigation herein, 
Bradley v. Milliken, No. 35257 (ED Mich), respectfully 
submits this its Supplemental Brief in Opposition to the 
Petitions for Writs of Certiorari filed herein by Petitioners 
Bloomfield Hills School District, West Bloomfield School 
District of Oakland County, Michigan and Clarenceville 
School District of Oakland and Wayne Counties, Michigan, 
and School District of the City of Birmingham, Oakland 
County, Michigan.

OPINIONS BELOW
1. Appellate:
a. Bradley v. Milliken, 433 F2d 897 (CA6 1970).
b. Bradley v. Milliken, 438 F2d 897 (CA6 1971).
c. Bradley v. Milliken, ..... F2d .....  (CA6 1972), cert

denied ..... US ....., 41 USLW 3175 (Oct. 10, 1972).
d. Bradley v. Milliken,.....F2d ......  (CA6 November 27,

1972).
e. Bradley v. Milliken, ..... F2d .....  (CA6 December 8,

1972), Petition for rehearing en banc granted, .....
F2d.....(CA6 January 16,1973).

f. Bloomfield Hills School District v. Roth,.......F 2d ......
(CA6 July 17, 1972) (denial of Petition for Writ of 
Mandamus and/or Prohibition).

g. West Bloomfield School District, et at v. Roth,.....F2d
..... (CA6 July 17, 1972) (denial of Petition for Writ
of Mandamus and/or Prohibition).

h. School District of the City of Birmingham v. Roth,
.....F 2d ......  (CA6 August 7,1972) (denial of Petition
for Writ of Mandamus and/or Prohibition).

2. District Court:
a. Bradley v. Milliken, 338 F Supp 582 (ED Mich 1971) 

(ruling on segregation).



3

b. Bradley v. Milliken,.....F Supp...... (ED Midi March
28,1972) (ruling on intra-city plans of desegregation).

c. Bradley v. Milliken,.....F Supp......  (ED Mich March
24, 1972) (ruling on propriety of metropolitan plans 
for desegregation).

d. Bradley v. Milliken, 345 F Supp 914 (ED Mich 1972) 
(ruling on desegregation area and development of 
plan.)

JURISDICTION
For the reasons discussed below, Respondent Detroit 

Board of Education suggests that the jurisdiction of the 
Court of Appeals below was improperly invoked in these 
cases under 28 USC §1651, and consequently the jurisdiction 
of this Court is improperly invoked by 28 USC §1254 (1),

CONSTITUTIONAL PROVISIONS AND 
STATUTES INVOLVED

These cases involve the All Writs Statute, 28 USC §1651 
(a ) :

“ The Supreme Court and all Courts established 
by Act of Congress may issue all writs necessary or 
appropriate in aid of their respective jurisdictions 
and agreeable to the usages and principals of law.”

QUESTIONS PRESENTED FOR REVIEW
I. Do Petitioners lack standing to apply to the Court 

of Appeals for Writs of Mandamus and/or Prohibition to 
limit the jurisdiction of a district court in a case to which 
Petitioners, by their own inaction, were not parties?

II. Are the Petitions for Writs of Certiorari non- 
justiciable on the grounds of mootness and/or prematurity, 
where the Court of Appeals, in its decision on the merits 
of the principal case herein involved, may substantially 
grant the relief requested by Petitioners?



4

STATEMENT OF THE CASE
Respondent Detroit Board of Education accepts as sub­

stantially correct the Statement of the Case presented by 
Petitioners in the various Petitions.

Respondent Detroit Board of Education would emphasize, 
however, one point made by each Petitioner: None of the 
various Petitioners herein have been parties to this litiga­
tion due to the fact that they declined to intervene as 
party-defendants, unlike numerous other suburban school 
districts, in the principal case of Bradley v. Milliken, No 
35257 (ED Mich).1

Respondent Detroit Board of Education would further 
advise this Honorable Court that on December 8, 1972, the 
Court of Appeals for the Sixth Circuit issued its decision
on the merits in Bradley v. Milliken, ..... F2d ..... (CA6
December 8,1972), vacated for hearing en bane,.....F2d......
(CA6 January 14,1973). In so ruling, the Court of Appeals 
stated:

“ We hold that school districts which are to be 
affected by the decree of the District Court are 
1 necessary parties’ under Rule 19. As a prerequisite 
to the implementation of a plan in this case affecting 
any school district, the affected district first must 
be a party to this litigation and afforded an oppor­
tunity to be heard. ’ ’

Bradley v. Milliken,.....F2d...... (CA6 December 8,1972),
slip opinion at 68.

1In each case, the Court of Appeals, in denying the requested writs, 
stated:

“ This order is entered without prejudice to the right of the 
petitioner School Districts to file application to intervene in the 
case of Bradley V. Milliken now pending in the Eastern District 
of Michigan.”



0

ARGUMENT 
I. INTRODUCTION

On November 24,1972, Petitioner Bloomfield Hills School 
District served its Petition for Writ of Certiorari on Re­
spondent Detroit Board of Education. In that Petition, 
the Bloomfield Hills School District noted, at page 4:

“ Disposition of the appeal in [the principal case 
of] Bradley [v Milliken] may render this petition 
moot. It is respectfully requested, therefore, that 
this petition for Writ of Certiorari be held in 
abeyance pending final action by the Court of Ap­
peals in Bradley. Petitioner will promptly advise the 
Court of its desire to press this Petition or withdraw 
it, depending upon such final action by the Court of 
Appeals.”

Subsequent to the December 8, 1972 decision in Bradley, 
the Court of Appeals for the Sixth Circuit granted a re­
hearing en lane,.....F 2d ......  (CA6 January 16, 1973), and
in so doing vacated the previous opinion of that Court in 
accordance with Local Rule 3 (b). This action resurrected 
the possibility that Petitioners’ causes would become moot, 
should their positions be vindicated by the Court of Ap­
peals en lane, a point which Petitioner Bloomfield Hills 
School District has once again recognized:

“ Since disposition of the appeal in Bradley may 
render its Petition moot, Petitioner reiterates its 
request that its Petition for Writ of Certiorari be 
held in abeyance pending final action by the Court 
of Appeals in Bradley Supplement to Petition for 
Writ of Certiorari of Bloomfield Hills School Dis­
trict at 2.

Thus, once again, by Petitioners’ own conceptions of the 
case, these Petitions for Writs of Certiorari are premature.

Accordingly, Respondent Detroit Board of Education 
submits this Supplemental Brief in Opposition to Certiorari



6

to respond to the Petitions which have arisen from som­
nolence through Petitioner Bloomfield Hills School Dis­
trict’s Supplement to Petition for Writ of Certiorari.

II. NOT HAVING BEEN PARTIES TO THE PRIN­
CIPAL LITIGATION IN THIS CASE, PETITIONERS 
WERE ABSOLUTELY WITHOUT STANDING TO 
APPLY FOR WRITS OF MANDAMUS AND/OR 
PROHIBITION.

By their own admission Petitioners were not parties to 
the principal litigation of Bradley v. Milliken. See Petition 
for Writ of Certiorari of Bloomfield Hills School District 
at page 3; Petition of West Bloomfield School District, et al 
at Page 4; Petition of School District of the City of Birm­
ingham at page 6. It is submitted that Petitioners con­
sciously and knowingly declined to intervene as parties- 
defendant in Bradley, unlike numerous other suburban 
school districts.

However, upon discovery that, Petitioners were being 
included in a metropolitan plan of desegregation, they 
attempted to sue out a Writ of Mandamus and/or Pro­
hibition in the United States Court of Appeals for the 
Sixth Circuit, which applications were denied by the Court 
of Appeals in July and August, 1972.

It is manifestly clear that the denials of the applica­
tions for the Writs by the Court of Appeals were correct, 
for the reason that the Petitioners were not parties to the 
principal cause of action in the District Court. Indeed, 
in a case turning upon substantially similarly procedural 
facts, In re Heilbroner, 69 F2d 643 (CCA2 1934), Judges 
Learned Hand, Thomas Swan, and Augustus Hand, in a 
per curiam opinion, precisely pinpointed petitioners’ pro­
cedural defect:

“ The Petitioners have not tried to intervene in



7

the suit in the District Court, and are not therefore 
parties to it. . . .  It is indeed true that any inter­
vention must be ‘ in subordination to and recognition 
of, the propriety of the main proceedings’, and some 
decisions construing it have gone as far as they 
assert, [citations omitted] We have never passed 
upon the point, and it is possible that we might 
construe the rule otherwise; at least it seems best 
to reserve any declaration regarding it. [citations 
omitted] We can still decide these applications, be­
cause though the rule means what they say, it does 
not justify a resort to prohibition. That Writ we 
may issue only in aid of our appellate jurisdiction, 
[citations omitted] If it appeared that the entry of 
the order would deprive us of an appeal which might 
otherwise come before us, we might act. But it will 
not; at least it would not if the Petitioners had acted 
in season, had ashed leave to intervene. Had they 
been admitted, they could have appealed; we are 
not to suppose that the District Court would have 
refused to allow' them to intervene. On that appeal 
we might hold that they could not raise the question 
which they wish to raise; if so, it would be because 
they could not raise it below. Nevertheless, the appeal 
ivould search the correctness of everthing which they 
could challenge in the District Court” . 69 F2d at 644. 
Emphasis added.

Precisely the same situation is before this Court; Peti­
tioners could have asked for leave to intervene at the Dis­
trict Court level.2 That they chose not to do so can only be 
regarded as conscious acts, calculated by them, however 
erroneously, to serve their best interests. Nevertheless, In

2c.f. Orders of Court of Appeals, denying applications for Mandamus 
and/or Prohibition, where it is stated in each order:

“ This order is entered without prejudice to the right of the 
petitioner School Districts to file application to intervene in the 
case of Bradley v. Milliken now pending in the Eastern District 
of Michigan.”



8

Re Heilbroner stand as solid authority for the proposition 
that a Writ of Prohibition will not lie in the Court of 
Appeals at the instance of persons not parties to the 
principal litigation in the District Court. Petitioners not 
having been parties to Bradley v. Milliken, the Court of 
Appeals properly denied their applications for Writs of 
Mandamus and / or Prohibition.

III. THE PETITION FOR WRIT OF CERTIORARI 
PRESENTS PREMATURE ISSUES TO THIS COURT 
THE RESOLUTION OF WHICH SHOULD, IN THE 
INTEREST OF SOUND JUDICIAL DISCRETION, BE 
DECLINED AT THIS TIME.

In their Petitions for Writs of Certiorari, Petitioners 
raise two issues. The first is that the action of the District 
Court below deprived each petitioning school district of 
due process of law by ordering implementation of a plan 
of desegregating Detroit Schools by means of cross-district 
pupil transportation into, inter alia, the Bloomfield Hills 
School District, the West Bloomfield School District, the 
Birmingham School District, and the Clarenceville School 
District, despite the non-joinder of those Districts as par­
ties. The second is that certain orders of the District Court 
in Bradley v. Milliken were jurisdictionally defective due to 
the Court’s failure to convene a three-judge panel. In its 
letter to the Honorable Michael Kodak, Clerk of this Hon­
orable Court, Petitioner Bloomfield Hills School District 
asserts that the decision of the Court of Appeals (since 
vacated for hearing en banc) in Bradley v. Milliken does 
not cure the District Court’s denial of due process with 
respect to the Petitioner, since the Court of Appeals held 
“ it will not be necessary for the District Court to find 
discriminatory conduct on the part of each school district,



9

either de jure or de facto, as a prerequisite to including 
such district in a desegregation area to be defined by the 
Court’s degree,”  slip opinion at 68.

Both of these issues are prematurely raised before this 
Court. In the first place, should the Court of Appeals’ 
decision of December 8, 1972 be reinstated or if a sub­
stantially similar opinion of the Court should issue, upon 
Petitioners’ joinder as necessary parties at the District 
Court level, they may well find it desirable to raise both of 
these issues by objections to the District Court’s jurisdic­
tion. Even assuming arguendo that the District Court may 
rule contrary to Petitioners’ position, they thereafter have 
available to them the conventional and proper means of 
appeal to properly object to such a decision.

Secondly, the very issues which Petitioners assert herein 
are once again before the Court of Appeals, to be deter­
mined by the whole Court sitting en banc.

Under such facts, where a determination of legal issues 
raised will in all likelihood be made by the Court of Appeals 
henceforth, it is established practice to decline to hear a 
case, on the grounds that a premature, and hence non- 
justiciable controversey is presented. Respondent recalls, 
to this end, the words of Justice Rutledge in Rescue Army 
v. Municipal Court, 331 US 549 (1947):

“  [T]his Court has followed a policy of strict 
necessity in the disposing of constitutional issues 
[which] has not been limited to jurisdictional de­
terminations. For, in addition, ‘ The Court [has] 
developed, for its own governance in the cases con­
fessedly within its jurisdiction, a series of rules 
under which it has avoided passing upon a large 
part of all the constitutional questions pressed upon 
it for decision.’ [citation omitted] Thus, those rules



10

were listed in support of the statement quoted, con­
stitutional issues affecting legislation will not be 
determined . . . in advance of the necessity of 
deciding them; . . . ”  331 US at........Emphasis added.

Under such a doctrine, Respondent Detroit Board of 
Education submits that the issues presented herein are 
prematurely raised in this Court. All such issues are be­
fore the Court of Appeals once again, to be argued and 
decided in the near future. Respondent Detroit Board of 
Education sees no “ special and important reasons”  (c. f. 
Supreme Court Rule 19-1) for granting certiorari instead 
of allowing the Court of Appeals to render its determina­
tion. See Supreme Court Rule 20 (writ of certiorari to 
review case pending in a Court of Appeals granted only 
on showing of great public importance justifying deviation 
from normal procedures).

Thus, even though it is submitted that this Court is 
without jurisdiction over the petitions for Writs of Cer­
tiorari, for the reasons the Petitioners were not parties 
to the principal case, as discussed above, the availability 
of other forums for determination of Petitioners’ claims 
should preclude consideration of those claims by this 
Court “ in advance of the necessity for deciding them.”  
Rescue Army v. Municipal Court, supra.

CONCLUSION AND RELIEF
The petitioning School Districts not having been parties 

to the principal litigation involved herein, the Court of 
Appeals was without jurisdiction to issue Writs of Man­
damus and/or Prohibition. Therefore, the decisions of the 
Court of Appeals to deny the applications were correct.

Further the pendency of the principal case herein, 
Bradley v. Milliken, in the Court of Appeals renders pre-



11

mature all claims contained in the Petitions for Writs of 
Certiorari.

For the above reasons, Respondent Board of Education 
of the School District of the City of Detroit respectfully 
prays this Court that the Petitions for Writs of Certiorari 
to the United States Court of Appeals for the Sixth Cir­
cuit, heretofore filed herein, be denied.

Respectfully submitted,
RILEY AND ROUMELL 
By: / s /  George T. Roumell, Jr.

By: / s /  Louis D. Beer 
Attorneys for Respondent Board of 
Education of the School District of 
Detroit
720 Ford Building 
Detroit, Michigan 48226 
(313) 962-8255



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