Petition for Rehearing of Petition for Writ of Prohibition and Mandamus

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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.

I

PETITION FOR REHEARING OF 
PETITION FOR WRIT OF PROHIBITION 

AND MANDAMUS AND SUGGESTION OF IN BANC HEARING

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



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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.
/

PETITION FOR REHEARING OF 
PETITION FOR WRIT OF PROHIBITION • '

AND MANDAMUS AND SUGGESTION OF IN BANC HEARING

NOW COMES WEST BLOOMFIELD SCHOOL DISTRICT and CLARENCE­
VILLE SCHOOL DISTRICT by their attorneys, Dell, Shantz, Booker and 
Schulte, and in this Petition for Rehearing of Petition for Writ 
of Prohibition and Mandamus do say: .

• 1. On July 1, by certified mail, the Petitioning School
Districts have heretofore filed a Petition for Writ of Prohibition 
in the above entitled matter, and Proof of Service with respect 
thereto has been filed in this cause.

2. On July 17, 1972, this Court entered its order denying 
said Petition without prejudice to the right to intervene in the 
case of Ronald Bradley, et al -vs- William Milliken, et al, being , 
civil action No. 35257 in the United States District Court for the .

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Eastern District of Michigan, Southern Division.
3. In its pronouncement from the Bench on July 17, 1972, 

the Circuit Court of Appeals, speaking through the Honorable Judge 
Phillips, denied the Petition for Writ of Prohibition without pre­
judice to intervention in the lower court for '“purposes of appeal".
No such limitation on the Petitioners' intervention appears in the 
Order of July 17, 1972. , ■ • .

4. On July 20, 1972, the-Trial Court certified as final 
orders certain rulings and orders of the Trial Court as more 
specifically identified in.the copy of said Order attached hereto 
as Exhibit A. Appeals have been filed from the Orders of the Trial 
Court.

5. On July 20, 1972, this Honorable Court issued its
Order granting a stay of proceedings and ordering briefs on appeal
and hearing on appeal for August 24, 1972, a copy of said Order is •

, ' • ■» ' 
attached hereto as Exhibit B. Petitioners respectfully suggest
that the posture of the case below, Bradley, et al -vs- Milliken,
et al, supra,, has changed markedly by virtue of said Order of July ’
20th of the Trial Court (Exhibit A) and the Order of this Court of
like date (Exhibit B).

6. Petitioners show that for all practical purposes the 
li.tigation in the Trial Court has been concluded. Intervention in 
said cause in its present posture and in view of the circumscribed 
rights imposed upon the intervening suburban'school districts (Allen 
Park, et al) by the Trial Court by its Order of March 15, 1972, 
would be a meaningless gesture and a monument to futility.

7. Petitioners show that this Court will on August 24, 
1972, have before it all parties to the cause below, Plaintiffs, 
Defendants and Intervenors. The Petitioners, West Bloomfield School 
District and Clarenceville School District, which have not inter­
vened hereto, have raised questions in the original Petition for

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Writ of Prohibition and Mandamus, filed July 1, 1972, which are
related to, but distinct from, those raised by suburban school

districts which intervened in said litigation. Your Petitioners
should have the opportunity for a hearing before this Court with
respect to the serious and basic jurisdictional issues raised in
said Petitions. Petitioners should not be regained, in view of the
present posture of this case, to apply to the Trial Court for leave 
to intervene.

8. In addition to the foregoing, Petitioners show that 
the time schedule on the appeals of Bradley -vs- Milliken, et al. 
Sixth Circuit Court of Appeals Docket No. 72-8002, as established 
by this Court requiring briefs by August 21 and argument on August 
24, is such as to make application to intervene in the Trial Court 
impractical, if not impossible. Mechanically, intervention at 
this date would not permit sufficient time for the filing of the 
necessary Motion to Intervene, hearing and preparation of appeal, 
assuming arguendo, that the Trial Court granted such intervention 
In the event the Trial Court denied the Motion to Intervene, 
Petitioners would not have sufficient time in which to appeal such 
decision to the Court before, arguments 'in the case of Bradley -vs- 
Miiiken, supra, Docket No. 72-8002, in this Court. Petitioners 
show that given the present posture of the case and the time 
schedule,for appeals established by this Court, intervention in 
the Trial Court below is an illusory and wholly inadequate procedure 
The scope of the litigation, and the critical and basic questions 
of jurisprudence raised herein requires that the Petition for Writ 
of Prohibition and Mandamus be entertained by this Court. Petitione 
respectfully submit that this Petition may be heard contemporaneous! 
with the appeals now docketed in Bradley -vs- Milliken. et al sixth 
Circuit Court of Appeals Docket No. 72-8002.

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9- Petitioners show that Plaintiffs apparently claim 

that Petitioning School Districts, West Bloomfield School District 
and Clarenceville School’District, raise no issues not raised by 
other Defendants. Petitioners reject such contention. Petitions 
specifically show that said Petition and Affidavits attached thereto 
demonstrate that said Petitioning School Districts were not created

• from the Detroit School District; were not created to preserve or 
foster segregation or other invidious purpose as evidenced by the 
date of. creation of said Districts as shown by said Petition. 
Circumstance such as these demonstrates the need for this Court to 
take jurisdiction of and favorably act upon the Petition for Writ 
of Prohibition heretofore filed by said School Districts.

---------- 10. Petitioners respectfully suggest the appropriateness
of m  banc hearing with respect to this Petition for Rehearing, 
and/or the Petition for Writ of Prohibition and Mandamus.

11. This Petition for Rehearing is filed in accordance 
with Federal Rules App Proc 40 and 35, respectively. .

WHEREFORE, Petitioners pray:

a. That a rehearing of the Petition 
tor Writ of Prohibition and Mandamus hereto­
fore filed by West Bloomfield School District

• ana^Clarenceville School District, be granted;

b. That said Petition be set for hearinq 
on August_24, 1972, or such other date as may 
be convenient to the Court, if deemed appro­
priate by this Honorable Court; and,

. c- That the Writ issue as prayed for in 
, said Petition for Writ of Prohibition and 

. Mctnaamus heretofore filed in this case.

Dated: July 26, 1972.

DELL, SHANTZ, BOOKER AND SCHULTE

By
Shantz

■2 Washington Square Building 
Royal Oak, Michigan 4S067 
Telephone: 541-2150

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i

V .  . •

WILLIAM G. MILLIKEN, et al. ,
Defendants

DETROIT FEDERATION OF TEACHERS 
LOCAL #231, AMERICAN FEDERATION 
OF TEACHERS, AFL-CIO,

Defendant-?
Intervenor

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CIVIL ACTION NO: 
35257

and
DENISE MAGDOWSKI, et al.,

Def end ant s- 
Intervenor

et al.

. : ORDER
, . •

. At a session of said court held in the 
Federal Building, City of Flint, County 
of Genesee, on this 19th day of JULY, 
A.D. i972.

PRESENT: • HONORABLE STEPHEN J. ROTH
• United States District Judge

This court having heard oral motions on July 19, 1972,

for entry of judgments in accordance with the provisions of 
Fed. R. Civ. P. 54(b) and for certification under the provisions
of 23 U.S.C. 1292(b) in connection with certain orders and ;. * * . * ■ . • *
rulings of the court heretofore entered; the court determines--
for the purpose of appeal, and subject to this court's. statements 
at the! hearing on July 19*, 1972, that there is no just reason 

for delay and that each of the following orderss •

1. Ruling, on Issue °£E£ft2gf$a£ ion' September 27, 1971;



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2. Ruling on Propriety of Considering a Metropolitan 
. ■ Remedy to Accomplish Desegregation of the Public

' Schools of the City of Detroit, March 24, 1972;

v • 3.. Findings of Fact'and Conclusions of Law on DetrOit- 
only Plans of Desegregation, March 28, 1972;

* . *. * ••

4. Ruling on Desegregation Area and Development of Plan,
. and Findings of Fact and Conclusions of Law in .

Support thereof, June 14, 1972; and

• 5. Order for Acquisition of Transportation, July 11, 1972

shall be deemed final orders under Rule 54(b) of the Federal
Rules Of Civil Procedure and the court' certifies., the issues 

presented therein under the provisions of 28 U.S.C. 1292(b)•

DATE: July 20, 1972
•TIME: 8:30 a.m.

I . «
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I



0  #72-8002 
UNITED STATES COURT OF APPEALS 

' FOR THE SIXTH CIRCUIT

o

RONALD BRADLEY, et al,
Plaintiffs-Appellants

v.
WILLIAM G. MILLIKEN, et al,Defendants-Appallants

and
DETROIT FEDERATION OF TEACHERS .
LOCAL 231, AMERICAN FEDERATION 
OF TEACHERS, AFL-CIO,Defendant-Intervenor 

and ’ * '
DENISE MAGDOWSKI, et al, •Defendants-Intervenors

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r L  E  
JUL201972

JAMES A. HIGGINS, Clerk

O R B R

Before: PHILLIPS, Chief Judge, EDWARDS and PECK, Circuit Judges.

The District Court has certified that certain orders 

entered.by him in this case involve controlling questions of law, 
as provided by 28 U. S. C. §1292(b), and has made a determination

of finality under Rule 54(bj, Fed. R. Civ. P.
This court concludes that among the substantial questions 

•presented there is 'at least one difficult issue of first impression 

which never has been decided by this court of the Supreme Court.

In so holding we imply nothing as to our view of the merits or this 
appeal. We conclude that an immediate appeal may. materially advance 
the ultimate termination of the litigation. Accordingly, it is

EXHIBIT B



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7 2 - 8 0 0 2  " * • "  • • '

ORDERED that the motion for leave to appeal be and hereby is granted.^ 
'it is further ORDERED that the appeal in this case be _

advanced on the docket of this court and scheduled for hearing 
Thursday, August 24, 1972, at 9 a. m. The appendix and simultaneous 
briefs of all parties shall be filed not later than 25 days after the. 

entry of this order. Reply briefs shall be filed not later than . 
August 21, 1972. Typewritten appendix and briefs may be riled rn 
lieu of printed briefs, together with ten legible copies..produced 

by Xerox or simile^ process. An appendix must be filed. The court 
will not entertain a motion to hear the appeal on the original record.

' .The motion for stay pending appeal having been considered,
it is further ORDERED that the Order for Acquisition of Transportation, 

entered by the District Court on July 11, 1972, and all orders of 
the District Court concerned with pupil and faculty reassignment 

within the Metropolitan Area beyond the geographical jurisdiction 
of the Detroit Board of Education, and’all other proceedings in the 
District Court other than planning proceedings, be stayed pending 
the hearing of this appeal on its merits and the disposition of tne 
appeal by this court, or until further order of this court. This 

stay order does not apply to the studies and planning of the panel 
which has been appointed by the District Court in its order of '
June 14, 1972, which panel was charged with the duty of preparing



72-8002
O

interim and final plans of desegregation. Said panel.is 
authorised to proceed with its studies and planning during the-  ̂

disposition of this appeal, to the end that there will be no 
unnecessary delay in the implementation of the ultimate steps 
contemplated in the orders of the District Court in event the
decision of the District Court is affirmed on appeal. Pending

. / -

disposition of the appeal, the defendants and t_he School Dist^^CwS 
involved shall supply administrative; and staff'assistance to the

as-provided.by.the District Courts order of June 14, 1972.

aforesaid panel upon its request. Until further order Ox. this 

court, the reasonable costs incurred by the panel shall be paincourt

Entered by order of the Court.