Brief in Support of Petition for Rehearing

    D
E

U
..

 
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

IN THE UNITED STATES COURT OF APPEALS 
FOR THE 6th CIRCUIT •••

WEST BLOOMFIELD SCHOOL DISTRICT .
OF OAKLAND COUNTY, MICHIGAN and 
CLARENCEVILLE SCHOOL DISTRICT 
OF OAKLAND AND WAYNE COUNTIES, MICHIGAN,

Petitioners,
Docket No. 72-1670

-vs-
TKE HONORABLE STEPHEN J. ROTH, 
District Judge for the Eastern 
District of Michigan, Southern 
Division,

Respondent.
/

BRIEF IN SUPPORT OF 
PETITION FOR REHEARING

DELL, SHANTZ, BOOKER & SCHULTE 
222 Washington Square Building 
Royal Oak, Michigan 48067 
Telephone: (313) 541-2150



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

IN THE UNITED STATES COURT OF APPEALS
FOR THE 6th CIRCUIT .

WEST BLOOMFIELD SCHOOL DISTRICT 
OF OAKLAND COUNTY, MICHIGAN and 
CLARENCEVILLE SCHOOL DISTRICT
OF OAKLAND AND WAYNE COUNTIES, MICHIGAN, Docket No. 72-1670

Petitioners,
. -vs-

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

. Respondent. ’

~ ~ ~  . -____________ 7  ~

BRIEF IN SUPPORT OF 
' ' PETITION FOR REHEARING

I ■ . • '

This Brief is filed in support of Petitioners' Petition 
that this Court set aside its Order denying the Petition for Writ 
of Prohibition and Mandamus and grant hearing with respect to said 
Petition.

. . . STATEMENT OF FACTS ' ■

Petitioning School Districts filed a Petition for Writ of 
Prohibition on July 1, 1972 with this Honorable Court. On July 17, 
1972, without hearing, the Appellate Court denied the Petition with­
out prejudice to the Petitioners seeking intervention in the Lower 
Court in Bradley, et al -vs- Milliken, et al, Civil Action No.
35257 in the United States. District Court for the Eastern District 
of Michigan, Southern Division. On the same date, this Court, after 
arguments, directed a Stay of certain proceedings in the District

. - 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

Court which Stay, by its terms, continued until certification of 
controlling questions of law pursuant to 28 U.S.C.A. 1292(b) or 
entry of a final Order. On July 20, 1972, the Court certified 
certain Orders under Rule 54(b) and the cited Statute including 

the Order and Rulings establishing a desegregation panel and area 
dated June 14, 1972 which Order has heretofore been challenged by 
the Petitioners. This Court, on July 20, 1972, issued an Order 
staying the implementation of any desegregation plan and, inter 
alia, setting a schedule for briefs and hearings on appeal which 
hearings are presently scheduled for Thursday, August 24, 1972.

* * * * * * * * * * *

STATEMENT OF LAW

It is well established that Writs of Prohibition will not 
issue as a substitute to appeal. However, it is likewise well 
established .that where an appeal will not lie, the Appellate Court
should entertain a Petition for Writ of Prohibition in appropriate 
cases.

"An order appointing a special master, standing 
alone, would not be [appealable] although it could 
normally be attached by a petition for mandamus to 
the court and prohibition to the master ....."

: , • /■ United States v. O'Connor
' ' ■ 291 F.2d 520, 523 (1961)

The Petitioners recognize that if an adequate remedy by 
way of appeal is available, the Writ ordinarily will not issue, 
Pennsylvania Turnpike Commission v. Welsh, 188 F.2d 447 (1951).
The key word in such holdings is adequate. By virtue of this Court's 
acceptance of appellate jurisdiction over Bradley, et al v. Milliken 
et__al, supra, and the time available to intervene therein and appeal



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

to this Court, there is in fact, and in law, no adequate remedy by

way of appeal.
By virtue of the rapid sequence of events in this case, 

this Court has now before it appeals filed by various parties in 
Bradley, et al v. Milliken, et al, supra, whereas at the time of 
entry of the Order dismissing the petitions for the writ of pro­
hibition, the cause had been returned for certification of a con­
trolling question of law or entry of a final Order.

The question of jurisdiction, or more properly, the lack
thereof, in the Trial Court as to the Petitioning School Districts, 
will be properly before this Court by virtue of the Petitions for
Writ of Prohibition and/or Mandamus filed on behalf of West Bloom­
field School District and Clarenceville School District. These 
Petitioners, as non-intervenors, should not be required to intervene 
in the Lower Cour-t. It will be remembered that these School Distric 
challenge the total lack of jurisdiction, notice and due process 
from a different position than that of the intervening school 
districts, and it is respectfully suggested that the Petitions 
for Writ of Prohibition should be considered by this Court as an 
aid to the exercise of its appellate jurisdiction over Bradley,— ejt 
al v. Milliken, et .al, supra. As stated in Swindell-Dressler.Cor­
poration v. Dumbauld, 5th CCA, 308 F.2d 267 (1962):

ts

"We possess the power in the case at bar by 
virtue of Section 1651, Title 28 U.S.C., the so-called 
"All Writs" section, to review the actions taken by 
the respondent Judge. We may exercise the power con­
ferred on us by that section to issue a writ of man­
damus in a proper case to further justice and in aid 
of our appellate jurisdiction. La Buy v. Howes 
Leather" Co,, 352 U.S. 249, 77 S.Ct. 309, 1 L.Ed.2d 
290 (1957) ;• United States v. Mayer, 235 U.S. 55,
35 S.Ct. '16, 59 L. Ed 129. (1914) .... "

Page 271, Emphasis Supplied

and further;

"Circumstances justifying the use of the



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

writ are present when a trial court has exceeded 
its authority or has acted without jurisdiction 
or had failed to exercise jurisdiction in a proper 
case. See Ex parte United States, 242 U.S. 27, 37 
S.Ct. 72, 61 L.Ed 129 (1916); ___"

Pages 271, 272

The Court granted the Writ of Prohibition and speaking 
through Judge Biggs, the Court stated the grounds whereby the Court 
enunciated the reasons for the granting of the Writ.

".... In denying Swindell any hearing or 
opportunity for hearing the court below denied it 
procedural due process of law guaranteed to it by 
the Fifth Amendment...."

Pages 273, 274

and further;

"As Judge Maris said for this court In re 
Central R. Co. of New Jersey, 3 Cir., 136 F.2d 
633, 639 (1943), certiorari denied sub nom. Pitney 
v. New Jersey, 320 U.S. 805, 64 S. Ct. 437, 88 
L.Ed. 486 (1944): "The right to notice and a
hearing is one of ancient origin and by the due 
process clauses of the 5th and 14th amendments •
has been safeguarded to all against deprivation by 
the federal government and the states, respectively. 
The fact that the state [of New Jersey] had notice 
and appeared is not sufficient to satisfy the re­
quirement of due process. It must also have been 
afforded an opportunity to be heard. Mr. Justice 
Field, in Windsor v. McVeigh, 1876, 93 U.S. 274, 
pages 277, 278, 23 L.Ed. 914 * * * said: '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 
subj ect-matter1"...."

Page 274

In further quoting from Windsor v. McVeigh, cited in the Swindell- 
Dressler opinion,, the Court noted the following language which has 
direct applicability to the case at hand.



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

"All courts, even the highest, are more or 
less limited in their jurisdiction: * * * Though 
the court may possess jurisdiction of a cause, of 
the subject-matter, and of the parties, it is still 
limited in its modes of procedure * * * It must act 
judicially in all things * *" .... "

Swindell-Dressler, supra 
Page 274 _________ ,..

The Third Circuit likewise held that a Petition for Writ 
of Prohibition was the appropriate remedy even in the light of 28 
U.S.C.A. 1292 (b) in Barrach v. Van Dusen, 309 F.2d 953 (1962).

However, intervenors urge that 
petitioners had an adequate remedy of appeal under 
the provisions of the Interlocutory Appeals Act,
28 U.S.C.A. §1292 (b). But that very issue was 
squarely raised in Swindel-Dressler and was decided 
in the negative. We, .therefore, conclude that these 
petitions are properly before us. ...."

Barrach, supra, 956 (reversed 
• on other grounds in Van Dusen

v. Barrach, 376 U.S. 612, 11 
L.Ed. 2d, 495 (1964)_________

* * * * * * * * * *

CONCLUSION AND RELIEF

Petitioners have no standing to appeal the decision of 
the Trial Court absent intervention therein. Intervention is mean­
ingless by virtue of the assumption of jurisdiction on appeal by 
. this Court. The schedule for briefs and hearing on appeal as 
established by this Court, is such as to make intervention in the 
Lower Court both impractical and inadequate. Hence, Petitioners 
have no adequate remedy by way of appeal. .

It is, therefore, respectfully suggested that by reason 
of this Court's exercise of its appellate jurisdiction in Bradley, 
et al v. Milliken, et al, supra, and that as an aid to the exercise 
of such appellate jurisdiction, the Order of this Court of July

- 5-



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

20, 1972 denying the Petitions of West Bloomfield School District
and Clarenceville School District for Writ of Prohibition and/or 
Mandamus, should be set aside. It is respectfully submitted that 
a hearing should be ordered, in banc, if deemed appropriate by this 
Court- on said Petition for Writ of Prohibition as the matters 
asserted therein are of the utmost importance not only to the 
Petitioners but to the litigation on appeal and to the basic 'tenets 
of jurisprudence, due process and notice inherent in our legal 
system. It is further suggested that such hearing may be held 
on said Petition on August 24, 1972 or at such other date as the 

Court may deem appropriate.

Dated: July 26, 1972.

Respectfully submitted,
DELL, SHANTZ, BOOKER AND SCHULTE

b y / 7 .Johh F. Shantz 
222! Washington Squt/re Building 
Royal Oak, Michigan 48067 
Telephone: 541-2150

Attorneys for West Bloomfield Schoo 
District, 3250 Commerce Road, 
Orchard Lake, Michigan; and
tClarenceville School District 
28830 West Eight Mile Road 
Farmington, Michigan 48024 
Petitioners