Monteilh v. St. Landry Parish School Board Petition for Writ of Mandamus or Prohibition

    IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT

NO. 87-4224

MARILYN MARIE MONTEILH, et al.,
Plaintiffs-Appellants, 

v.
ST. LANDRY PARISH SCHOOL BOARD,et al.,

Defendants-Appellees.

PETITION FOR WRIT OF MANDAMUS OR PROHIBITION*

Plaintiffs-appellants, by their undersigned counsel, 
respectfully pray that this Court direct that a response to this 
Petition shall be promptly filed, and thereafter that this Court 
issue a Writ of Mandamus or a Writ of Prohibition directing the 
Hon. John M. Shaw, United States District Judge for the Western 
District of Louisiana, not to dismiss this cause pending 
disposition of this appeal by this Court. In support of their 
petition, plaintiffs-appellants would respectfully show the Court 
as follows:

*A Certificate of Interested Persons is appended hereto.



1. The instant appeal was taken from denial of a Motion for 
New Trial or to Alter or Amend a trial court judgment of December
29, 1986 approving defendants-appellees' high school consolidation 
plan. Appellants' brief has been filed and the time within which 
appellees may file their brief has been extended to August 31, 
1987.

2. On August 17, 1987, the trial court sua sponte issued an 
order announcing that

The court plans to dismiss this action based on the fact that the St. Landry Parish School System was 
found to be a unitary system on August 12, 1971. The 
court will also hear any opposition to its contemplated action on August 31, 1987 at 10:00 a.m.

A copy of that order is attached to this petition as Exhibit ''A.''

3. The legal significance of the statement by Judge Scott in 
his August 12, 1971 that the school system was declared to be 
unitary is a matter in contention on the present appeal. See 
appellees' Opposition to Motion for Injunction Pending Appeal: 
Reply to Appellees' Opposition to Motion for Tniunction Pending 
Appeal previously filed herein.

4. Plaintiffs-appellants are filing an Opposition to the 
proposed dismissal of the case in the district court. A copy of 
that Opposition is attached hereto as Exhibit "B" and incorporated 
by reference. As that Opposition makes clear, the district court 
lacks jurisdiction to dismiss this case while the instant appeal 
is pending before this Court.

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5. Dismissal of the underlying cause of action during the 
pendency of this appeal will not preserve this Court's jurisdiction 
or be in "aid of the appeal." It will at the least impede the 
execution of any remand directions which this Court may issue. 
Moreover, it will require plaintiffs to file a Notice of Appeal 
from any dismissal order in order to protect their rights, and to 
tender the appropriate docketing and filing fees; it will also 
require this Court to consider and act upon another appeal in order 
to preserve and make effective its jurisdiction in the present 
matter.

6. Requiring these expenditures of time and resources is 
completely unnecessary, but unless the district court is restrained 
from dismissing the action by a Writ of Mandamus or a Writ of 
Prohibition from this Court, such wasteful and duplicative efforts 
may well be required.

7. This Court has suggested that mandamus or prohibition is 
the appropriate remedy in circumstances such as these. United 
States v. Hitchmon. 602 F.2d 689, 694 (5th Cir. 1979).

WHEREFORE, for the foregoing reasons, plaintiffs-appellants 
respectfully pray that this Court direct that a response to this 
Petition shall be promptly filed, and thereafter that this Court 
issue a Writ of Mandamus or a Writ of Prohibition directing the 
Hon. John M. Shaw, United States District Judge for the Western

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District of Louisiana, not to dismiss this cause pending 
disposition of this appeal by this Court.

JULIUS L. CHAMBERS THEODORE M. SHAW 
NORMAN J. CHACHKIN 16th Floor 

99 Hudson Street

Respectfully submitted,

MARION OVERTON WHITE 
516 E. Landry Street 
Opelousas, Louisiana 70570-6128 (318) 948-8296

New York, New York 10013 (212) 219-1900
Attorneys for Plaintiffs-Appellants

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IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT 

No. 87-4224

MARILYN MARIE MONTEILH, et al.,
Plaintiffs-Appellants, 

v.
ST. LANDRY PARISH SCHOOL BOARD, et al.,

Defendants-Appellees.

Appeal from the United States District Court for the 
Western District of Louisiana, Opelousas Division

CERTIFICATE OF INTERESTED PERSONS 
The undersigned counsel of record certifies that the following 

listed persons and bodies have an interest in the outcome of this 
case. These representations are made in order that the Judges of 
this Court may evaluate possible disqualification or recusal.

Marilyn Marie Monteilh, Daron Anthony Monteilh,
Martha Ann Monteilh and Geromaine Rita Monteilh, minors, 
by their father and next friend Embrick Monteilh; Sandra 
Ann Benson, Calvin Benson and Paul Benson, minors, by 
their mother and next friend, Rose Benson; Mary Glenda 
Malveau, Michael Malveau, Agnes Marie Malveau and Leo 
Paul Malveau, minors, by their father and next friend,
Joseph Malveau; Elnora Malveaux, Jean Alice Malveau,
Robert Malveaux and Anthony Malveaux, minors, by their 
father and next friend, George Malveaux; Richard James 
Durrisseau, minor, by his father and next friend, Theo- 
dule Durriseau, Jr.; Larry Alpough, Carl Alpough, Terry 
Alpough, Fran Alpough, Wanda Alpough and Leon Alpough,
Jr., minors, by their father and next friend, Leon Al­pough; Hilda Mae Lewis, minor, by her father and next 
friend, Clifton Lewis; Donald R. Semien and Annie Mae 
Semien, minors, by their father and next friend, Adrien 
Semien; Shirley Ann Semien, Wilfred Semien, Jr., Carbino 
Blaze Semien, Tommy Semien, John Michael Semien, Linda

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Faye Semien, Brenda Gail Semien and Blanche Semien, min­
ors, by their father and next friend, Wilfred Semien.

The class of black children attending or entitled to 
attend the public schools of St. Landry Parish, and their parents and next friends

Rebecca R. Boudreaux, Veronica LeBlanc, Eula Tezeno, McKinley Brown, Sr., Jake Paul, and Velma Savant, as 
parents of children attending the public schools of St. 
Landry Parish, and more particularly, Melville High School

The St. Landry Parish School Board
Joshua J. Pitre, Gus Breaux, Clifton Clause, Bryant 

Goudeau, Patty Prather, Roger Young, John Miller, Gilbert Austin, Jackie Beard, Jack Ortego, Jerry Domengeaux, August L. Manual, and Ronald Carriere, as members of the St. Landry Parish School Board
Henry DeMay, as Superintendent of Schools of St. Landry Parish
The United States of America
Marion Overton White, Esq., Julius L. Chambers,

Esq., Theodore M. Shaw, Esq., and Norman J. Chachkin,
Esq., attorneys for plaintiffs-appellants

I. Jackson Burson, Esq., attorney for defendants- appellees
Hon. Joseph S. Cage, Jr., United States Attorney, attorney for the United States of America

Appellants

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U. S. DISTRICT COURT
W I S T I R N  P l S l u i C *  Of L OUI SI ANA

UNITED STATES DISTRICT COURT F I L E D
V7ESTERN DISTRICT OF LOUISIANA /_!■■;• ] 19&7
LAFAYETTE-OPELOUSAS DIVISION «ob« t̂ ŝ mwiu. cum

D e p u t y

MARILYN M. MONTEILH, ET AL
VS. CIVIL ACTION NUMBER 10,912

ST. LANDRY PARISH SCHOOLBOARD, ET AL SECTION 0 - JUDGE SHAW

.-R U L I N G

The opposition to the court's granting of defendants'
notion to reopen South Street Elementary School will" be
heard on August 31, 1987 at 10:00 a.m.

The court plans to dismiss this action based on the
fact that the St. Landry Parish School System was found to
be a unitary system on August 12, 1971. The court will also

/hear any opposition to its contemplated action on
August 31, 1987 at 10:00 a.m.

Opelousas, Louisiana, August 17, 1987.

COPY SENT 
DATE £  [') &')

' O  plor\aJ) 
LO£uSNr 
C5 hciuJ
ToaO

UoelWY
G^utt&OuA-

IOo l ^ EXHIBIT



IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF LOUISIANA 

LAFAYETTE-OPELOUSAS DIVISION

MARILYN MARIE MONTEILH, et al.,
Plaintiffs,

v.
ST. LANDRY PARISH SCHOOL BOARD, 
et al.,

Defendants.

CIVIL ACTION NO. 10,912

PLAINTIFFS/ OPPOSITION TO DISMISSAL

In response to this Court's Order entered August 17, 1987, 
announcing its intention to dismiss this cause on August 31, 1987 
"based on the fact that the St. Landry Parish School System was 
found to be a unitary system on August 12, 1971," plaintiffs submit 
this pleading in order to advise this Court of the basis of their 
opposition to the action contemplated by the Court.

There are two grounds for plaintiffs' opposition. First, 
this matter is presently pending before the United States Court 
of Appeals for the Fifth Circuit on plaintiffs' timely and proper 
appeal from the orders of this Court approving defendants' high 
school consolidation and construction plan. That appeal divests 
this Court of jurisdiction to dismiss the cause. Second, under 
settled law in this Circuit, the 1971 "finding" by Judge Scott 
that St. Landry Parish was operating a unitary school system was 
ineffectual and cannot justify a dismissal.

EXHIBIT "B



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This Court Is Without Jurisdiction to Dismiss 
This Case While Plaintiffs/ Appeal Is Pending

On December 29, 1986, by Minute Entry, this Court "approved 
the [St. Landry Parish] School Board's plan for consolidation." 
Plaintiffs thereafter filed a Motion for New Trial or to Alter or 
Amend on January 8, 1987, which was denied on January 14, 1987.
On March 20, 1987, pursuant to leave granted by this Court on that 
same date to extend their time, plaintiffs filed a Notice of Appeal 
from denial of their post-trial motion.

Plaintiffs-appellants' Brief on that appeal was submitted on 
July 13, 1987; defendants-appellees' Brief is currently due to be 
submitted in the Court of Appeals on August 31, 1987.

The pendency of this appeal divests this Court of jurisdiction 
to dismiss the case, or to enter orders concerning the subject 
matter on appeal except in aid of the appeal. See, e.g.. Griggs 
v._ Provident Consumer Discount Company. 459 U.S. 56, 58 (1982) (per 
curiam); Willie v. Continental Oil Company. 746 F.2d 1041, 1046 
(5th Cir. 1984), appeal dismissed on other grounds. 784 F.2d 706 
(5th Cir. 1986)(en bang)? United States v. Hitchman. 602 F.2d 689, 
692 (5th Cir. 1979)? Arthur Andersen & Company v. Finesilver. 546 
F*2d 338, 340-41 (10th Cir. 1976); Ruby v. Secretary of N a w . 365 
F.2d 385 (9th Cir. 1966) ( q t x banc). The action must remain open 
at least until the appeal is determined so that this Court is in

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a position to carry out any remand or other directions which may 
be issued by the Court of Appeals. Cf. Stell v. Savannah-Chatham 
County Board of Education. 333 F.2d 55, 60 (5th Cir.), cert, de­
nied . 379 U.S. 933 (1964)(ruling by Court of Appeals "mooted” dis­
trict court's order dismissing action after appeal had been taken).

II
St. Landry Parish Has Never Been Adjudicated 
to Be A Unitary School System in Accordance 
with Proper Procedures Required in this Circuit

This Court has previously determined that the St. Landry Par­
ish school system has not achieved unitary status. In its opinion 
of April 13, 1987 denying plaintiffs' request for a Temporary Re­
straining Order or Injunction Pending Appeal, the Court explicitly 
stated: "The St. Landry Parish school system has a non-unitary
status" (p. 2). Similarly, Judge Duhe found on August 12, 1986 
that

This school system has a non-unitary status and, there­
fore, the School Board has an affirmative duty to elimi­
nate the effects of prior unconstitutional conduct 
including the responsibility to see that future school 
abandonments and construction is not used to and does 
not serve to perpetuate or reestablish a dual school system.

(Oral Ruling of August 12, 1986; Transcript of hearing at p. 29.)

It is true that Judge Scott puported to declare the system 
"unitary" at the time he approved modifications to the plan in 
1971 (Order of August 12, 1971, at p. 3). However, Judge Scott 
also retained jurisdiction of the case, and on appeal, his order 
was affirmed, but with instructions that the district court

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. . . continue to maintain [its] jurisdiction for a 
minimum period of three years.

Monteilh v. St. Landry Parish School Board. No. 71-2604 (5th Cir. , 
Jan. 3, 1972) at 1. "If the court had decided that the vestiges 
of segregation had been completely erased, the retention of juris­
diction would have been anomalous." United States v. Lawrence 
County School District. 799 F.2d 1031, 1037 (5th Cir. 1986).

The procedures which must be followed in this Circuit prior
to a substantive finding of unitariness are now well established.
See Lawrence County. 799 F.2d at 1037-38; Wright v. Board of Public

*Instruction of Alachua County. 445 F.2d 1397 (5th Cir. 1971);
Steele v. Board of Public Instruction of Leon Countv. 448 F.2d 
767 (5th Cir. 1971); Youngblood v. Board of Public Instruction of 
Bay County. 448 F.2d 770 (5th Cir. 1971); see also Pitts v. Free- 
roan . 755 F.2d 1423 (11th Cir. 1985). Clearly, those procedures 
were not followed prior to the entry of the August 12, 1971 order. 
Judge Scott's casual use of the word "unitary" did not establish 
that the St. Landry Parish schools are "unitary" as that term has 
come to be understood in its full, present-day legal significance. 
Lawrence County; sge Georgia State Conference of Branches. 
N.A.A.C.P. v, Georgia. 775 F.2d 1403, 1413-14 & n. 12 (llth Cir. 
1985).

Just as clearly, Judge Scott's simultaneous declaration of 
unitariness and approval of plan modifications was premature.
Se£, e.gt, Lemon v. Bossier Parish School Bd.. 444 F.2d 1400, 1401

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(5th Cir. 1971) ("One swallow does not make a Spring").

Conclusion
For the foregoing reasons, plaintiffs respectfully pray that 

the Court take no action dismissing this case at or following the 
hearing presently scheduled for August 31, 1987.

Respectfully submitted,

MARION OVERTON WHITE 516 E. Landry Street 
Opelousas, Louisiana 70570-6128
JULIUS L. CHAMBERS 
THEODORE M. SHAW 
NORMAN J. CHACHKIN 
16th floor 
99 Hudson Street 
New York, New York 10013
Attorneys for Plaintiffs

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CERTIFICATE OF SERVICE

I hereby certify that on this 20th day of August, 1987, I 
served a copy of the foregoing Plaintiffs' Opposition to Dismissal 
upon counsel for the defendants and for the United States, by de­
positing the same in the United States mail, first class postage 
prepaid, addressed as follows:

I. Jackson Burson, Esq.
Assistant District Attorney 
27th Judicial District Court P. O. Drawer 1419 
Opelousas, Louisiana 70571-1419
Hon. Joseph S. Cage, Jr.
United States Attorney
Joe D. Waggoner Federal Building500 Fannin Street
Shreveport, Louisiana 71101

Marion Overton White



Certificate of Service

I hereby certify that on this 20th day of August, 1987, I 
served a copy of the foregoing Petition for Writ of Mandamus or 
Prohibition upon counsel for the Appellees and the United States, 
and upon the District Judge, by depositing same in the United 
States mail, first class postage prepaid, addressed as follows:

Hon. John M. Shaw 
United States District Judge 341 Federal Building 
Union and Vine Streets 
Opelousas, Louisiana 70570
I. Jackson Burson, Esq.Assistant District Attorney 
27th Judicial District Court P. O. Drawer 1419 
Opelousas, Louisiana 70571-1419
Hon. Joseph S. Cage, Jr.
United States Attorney
Joe D. Waggoner Federal Building500 Fannin Street
Shreveport, Louisiana 71101

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