Brief in Support of Petition for Rehearing
Public Court Documents
July 26, 1972

7 pages
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Case Files, Milliken Hardbacks. Brief in Support of Petition for Rehearing, 1972. f8408181-53e9-ef11-a730-7c1e5247dfc0. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/a5543264-c08a-4117-adb2-37f7f7414017/brief-in-support-of-petition-for-rehearing. Accessed May 16, 2025.
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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