Correspondence from Roumell to Judge Roth

    UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION

RONALD BRADLEY, et al,
Plaintiffs,

v.
WILLIAM G. MILLIKEN, et al,

Defendants, Civil Action
and No. -35257

DENISE MAGDOWSKI, et al,
Defendants-Intervenors,

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

Defendant-Intervenor,
and

ALLEN PARK, et al,
Defendants-Intervenors,

and
KERRY GREEN, et al,

Defendants-Intervenors.
/

STATE DEFENDANTS' BRIEF IN OPPOSITION TO 
PLAINTIFFS' MOTION TO REQUIRE SUBMISSION 
______ OF PROPOSALS TO LEGISLATURE_______

Introduction

This brief is filed on behalf of defendants, Governor, 
Attorney General, State Board of Education, Superintendent of Public 
Instruction and Treasurer of the State of Michigan, sometimes 
referred to herein collectively as the state defendants, in opposition



to plaintiffs' motion to require submission of proposals to the 
legislature. Plaintiffs' motion seeks, in effect, an order of 
this Court compelling the state defendants (except the State 
Treasurer) to prepare and submit alternative proposals and 
recommendations for multi-district desegregation to the Michigan 
legislature, to file a progress report with this Court within 30 
days of the order granting the motion, and, finally, to ask the 
legislature for a definitive response within 60 days of the order 
granting such motion.

ARGUMENT

I.

THIS COURT SHOULD HOLD PLAINTIFFS' MOTION IN 
ABEYANCE, AS PREMATURE, PENDING FINAL DISPOSI­
TION OF THE STATE DEFENDANTS' PETITION FOR 
CERTIORARI IN THE UNITED STATES SUPREME COURT.

The state defendants have publicly announced their 
unequivocal intention to file a petition for certiorari in the 
United States Supreme Court seeking review of the majority decision
of the Sixth Circuit Court of Appeals in Bradley v Milliken, ____
F2d ____, Nos. 72-1809 - 72-1814, June 12, 1973, en banc, Slip
Opinion, pp 1-81. Further, both this Court and the Court of Appeals 
have recognized that this case involves an important issue that has 
not yet been decided by the Supreme Court. See, respectively, Ruling 
on Propriety of Considering a Metropolitan Remedy, March 24, 1972, 
p 3, and Stay Order of the Court of Appeals, July 20, 1972, p 1.
In addition, the granting of certiorari and the affirmance by an 
equally divided Court in Bradley v School Board of the City of 
Richmond, 462 F2d 1058 (CA 4, 1972), aff'd by an equally divided
court, ____ US ____, 93 S Ct 1952 (1973), compel the conclusion
that there is a reasonable likelihood that certiorari will be 
granted and the case reversed on the merits as to the propriety of 
a multi-district remedy.

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Moreover, holding plaintiffs' motion in abeyance will not
prejudice the plaintiffs since they do not seek implementation of 
any multi-district remedy in September, 1973 for the 1973-74 school 
year. During the 1973-74 school year there will undoubtedly be a 
final disposition of the state defendants' petition for certiorari 
and, in the event plaintiffs prevail, a multi-district remedy may 
be implemented in September, 1974 for the 1974-75 school year.

the state defendants and other defendants from the expensive and 
time consuming undue burden of simultaneously carrying on both 
remedial proceedings in this Court and appellate proceedings in 
the United States Supreme Court. Finally, such a course of action 
by this Court will surely serve the public interest. Final planning 
and implementation of a multi-district remedy should, we respectfully 
submit, await a final appellate determination as to whether a 
multi-district remedy is constitutionally appropriate in this cause. 
The parents and children who will shoulder the burden of this Court's 
remedial orders deserve no less.

are equally applicable to the state defendants' request that 
plaintiffs' motion to join and substitute parties be held in 
abeyance. The state defendants respectfully submit that this 
Court should, in the exercise of its sound discretion, hold both 
of plaintiffs' motions in abeyance, as premature, pending final 
disposition of the state defendants' petition for certiorari in 
the United States Supreme Court.

Holding plaintiffs' motion in abeyance will also spare

Finally, it should be noted that the foregoing reasons

II.
ALTERNATIVELY, THIS COURT SHOULD DENY PLAINTIFFS' 
MOTIC S UNAUTHORIZED, UNPRECEDENTED, UNWARRANTED AND t IR.

A. Th6| relief sought by plaintiffs' motion
is (peyond the scope of the Sixth Circuit's 
majority opinion herein._______________

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V

The Court of Appeals remanded this cause "for further 
proceedings not inconsistent with this opinion." Majority Slip 
Opinion, supra, p 81. The two references to the role of the 
Michigan legislature, not a party herein, in providing a multi­
school district remedy are found in the Majority Slip Opinion, 
supra, as follows:

"This Court recognizes that, as set forth above, 
the legislature of the State of Michigan has 
power to provide a complete remedy for the 
unconstitutional segregation disclosed in this 
record. It, too, has responsibility for following 
the great mandates of the United States Constitution.
"If, however, the legislature fails to act, or 
if it acts in a manner inconsistent with the 
expeditious and efficient elimination of the 
unconstitutional practices and conditions 
described in this opinion, the District Court 
shall proceed to fashion such a remedy, 
including an interim remedy if found to be 
necessary, as it shall determine to be 
appropriate within the guidelines of this 
opinion. p 68

* * *

"This opinion heretofore has emphasized that the 
Legislature of Michigan has an opportunity to 
determine the organizational and governmental 
structure of an enlarged desegregation area to 
remedy the unconstitutional segregation results 
set forth in this opinion. In the event the 
Legislature fails to act effectively and 
expeditiously, the foregoing and other cases 
cited in this opinion outline the broad scope 
of equitable relief that may be fashioned by 
the District Court in this case on remand 
after all school districts to be affected are 
afforded an opportunity to be heard as herein­
above provided." pp 79-80

The clear import of this language is that the Michigan 
legislature has an undefined period of time in which to effectively 
and expeditiously act to provide a multi-district remedy herein.
In the event the Michigan legislature fails to act, this Court 
is instructed to fashion such a remedy. To that end, the panel 
appointed by this Court is authorized to proceed with its study
and planning of 
Court. See Maj

remedial measures under the direction of this 
rity Slip Opinion, supra, p 69.

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•  • '  '

There is not one iota of a suggestion in the majority 
opinion that this Court order the state defendants, or any of 
them, to submit multi-school district desegregation proposals 
and recommendations to the Michigan legislature. This novel 
request by plaintiffs is simply cut from whole cloth without 
any support in the majority opinion of the Sixth Circuit, supra, 
pp 1-81. The granting of plaintiffs' motion, to compel the state 
defendants to submit multi-school district proposals and recommen­
dations to the Michigan legislature, would be manifestly inconsis­
tent with the majority opinion of the Court of Appeals, supra, 
and should be denied.

B. The relief sought by plaintiffs' motion 
is without precedent.________________

Plaintiffs' brief in support of the motion to require 
submissiorTof proposals to the legislature cites only the Sixth 
Circuit majority slip opinion, supra, in support of such motion.
As demonstrated above, the majority opinion does not contain any 
language authorizing this Court to require the state defendants 
to submit desegregation proposals and recommendations to the 
Michigan legislature. There is simply no authority supporting 
the novel relief requested in plaintiffs' motion.

Moreover, pursuant to this Court's request at the 
conference herein on August 15, 1973, the Michigan legislature, 
through the presiding officers in both Houses, has been given 
notice of the Sixth Circuit Court of Appeals' opinion, supra, by 
letter mailed August 20, 1973. Thus, the Michigan legislature 
is fully aware of the contents of such opinion, including those 
portions of the opinion quoted above dealing with the judicially 
perceived role of the Michigan legislature in providing relief 
herein.

f -5- •



•  m

The reapportionment cases set forth the permissible
techniques employed by the federal courts in dealing with relief
in a situation where it is the legislature that, under state law,
possesses the lawful authority to grant the relief in question.
In such cases, the federal courts allow the state legislature a

1
reasonable time in which to enact reapportionment legislation,
and where the legislature is not in session, the court has ordered

2
the parties to submit reapportionment plans to the court. Research 
has failed to disclose any reapportionment cases where the courts 
have ordered the parties, including the state officer defendant 
election officials, to submit reapportionment plans to the legis­
lature. In short, plaintiffs are seeking unprecedented relief 
which this Court should deny.

Here, it must be emphasized that the Michigan legislature 
is not a party to this cause, thus precluding any coercive relief 
against the legislature. Further, the law is well settled in 
Michigan that the courts lack the power to mandamus the legislature. 
City of Jackson v Commissioner of Revenue, 316 Mich 694, 719-720 
(1947); Board of Education of the City of Detroit v Superintendent 
of Public Instruction, 319 Mich 436, 443-444, 456 (1947). Further, 
research has disclosed no federal cases where the federal courts 
have granted writs of mandamus directed to state legislatures.
To the contrary, mandamus lies only to compel public officers to 
perform purely ministerial duties involving no exercise of discretion. 
Marbury v Madison, 1 Cranch 137, 170-171 (1803); Clough v Curtis,
134 US 361, 371-372 (1890). In light of the clear inability of 
this Court to compel the adoption of legislation embodying any 
multi-school district desegregation proposals submitted by the

1
Reynolds v Sims, 377 US 533, 586-587 (1964). Davis v Mann, 377 US 
"6"78, 69 3 (19647.
Sixty-Seventh Minnesota State Senate v Beens, 406 US 187, 190-191 
(1972). 7 ~

2

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V

state defendants, this Court should deny plaintiffs' motion to 
compel the state defendants to submit multi-school district 
proposals and recommendations to the Michigan legislature.

It must be observed that pursuant to the request of the 
Federal District Court, the Attorney General on August 20, 1973 
communicated in writing with the President of the Senate and the 
Speaker of the House of Representatives of the Michigan legisla­
ture, advising them of the decision of the Sixth Circuit Court of 
Appeals in the cause, enclosing a copy of the opinion and requesting 
that it be brought to the attention of the members of each house 
of the legislature.

It should also be noted that the Michigan legislature 
will not reconvene until October 16, 1973. Although it has not 
adopted any schedule as to final adjournment for the year 1973, 
the Michigan legislature has adjourned sine die late in December 
for each of the past three years.

C. Plaintiffs' motion seeks the unwarranted 
intrusion of the federal judiciary into 
the internal workings of the executive 
and legislative branches of state govern­
ment in contravention of sound principles 
of federalism.

The United States Constitution explicitly recognizes and 
preserves our federal system of government in which powers not 
delegated to the United States nor prohibited to the states by
the Constitution are reserved to the states or the people. See
the Tenth Amendment to the United States Constitution. Within 
this framework, the people of Michigan have provided that the 
powers of state government are divided into three separate, 
coequal branches of government; the legislative, executive and 
judicial branch is. See Const 1963, art 3, § 2; art 4, § 1; art 5

1. This diffusion of power among the three§ 1 and art 6,

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' • •

independent branches of government means that, if government at 
the state level is to work for the people of Michigan in attempting 
to solve the myriad complex problems of human existence, there must 
be rapport and cooperation between the various branches of state 
government. ?

As recently reiterated by the Supreme Court in San Antonio
Independent School District v Rodriguez, ____ US ____, 93 S Ct 1278,
1302 (1973), "1[t]he maintenance of the principles of federalism is 
a foremost consideration in interpreting any of the pertinent pro­
visions under which this Court examines state action,' . . . "
One principle of federalism is surely that of federal judicial 
restraint in matters relating to the internal workings of the 
various branches of state government.

• JLf plaintiffs' motion is granted, the state defendants, 
part of the executive branch of state government, will be placed 
in the extremely awkward position of having to submit to the 
legislative branch of state government unsolicited proposals and 
recommendations for multi-school district desegregation. Further, 
the state defendants will be required to ask the Michigan legislature 
for a definitive response to such proposals within 60 days, thus 
imposing an arbitrary time limit upon the deliberative legislative 
process in terras of responding to these uninvited proposals. In 
short, the state defendants will be in the position of saying to the 
legislature: Here are the proposals you did not solicit, but,
nevertheless, we want an answer to such uninvited proposals within 
60 days.

Such a course of events could only serve to exacerbate 
the tensions between the independent and coequal executive and 
legislative branches of state government to the detriment of the 
people of Michigan. This is particularly true in a delicate area

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•  •

such as multi-school district desegregation where reasonable 
people, including judges, can and do vigorously disagree. This 
Court, in the exercise of judicial restraint, should reject 
plaintiffs' request for unwarranted federal judicial intervention 
into the internal workings of the executive and legislative
branches of state government in contravention of sound principles 
of federalism.

✓

D. The relief sought by plaintiffs' motion 
is manifestly unfair in that it would 
require the state defendants to take a 
position diametrically opposed to their 
adversary position in this litigation 
prior to a final determination by the 
United States Supreme Court as to the 
propriety of a multi-school district 
remedy h e r e i n . ______________

As noted above, the state defendants have announced their 
firm attention to file a petition for certiorari seeking full review 
of this matter by the United States Supreme Court. In the absence 
of a final disposition of such petition for certiorari, the question 
of whether a multi-school district remedy is constitutionally 
appropriate herein remains unsettled.

Thus, it would be manifestly unfair to require the state 
defendants, prior to a final judicial determination, to submit 
proposals and recommendations for multi-school district desegregation 
to the legislature. This action, taken under judicial compulsion, 
would be patently inconsistent with their adversary position in 
this cause that a multi-school district remedy is neither required 
nor permitted under the Constitution and controlling precedents of 
the United States Supreme Court.

In Bradley v Richmond, supra, p 1067, the Fourth Circuit 
took note that, under the coercive order of the trial court, the 
School Board of Chesterfield County adopted a resolution requesting 
the State Board of Education to create a single school division

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»

composed of the counties of Chesterfield and Henrico and the City 
of Richmond. Further, the Fourth Circuit set forth the resolution 
as Appendix A to its opinion, pp 1070-1071, presumably as an 
illustration of the untenable position in which the defendant 
school board was placed by the unfair coercion of the trial court. 
The text of the school board’s resolution, particularly paragraphs 
10 and 11 thereof, vividly illustrates the dilemma faced by any 
defendant in being compelled to adopt an official public position 
contrary to its position as an advocate in ongoing, unresolved 
litigation.

At this point, it must be emphasized that, prior to a 
final disposition of the state defendants' petition for certiorari 
in a manner requiring a multi-school district remedy herein, it is 
not likely that the Michigan legislature will seriously consider 
school district reorganization for desegregation purposes within 
Wayne, Oakland and Macomb counties. To do otherwise would be to 
accept the unprecedented rulings of both this Court and the Sixth 
Circuit without a final determination by the United States Supreme 
Court on a question which both lower courts have recognized as one 
•that has not yet been passed upon by the Supreme Court. With all 
due deference to this Court and the Sixth Circuit, the massive 
dislocation of public education in a three county area necessitated 
by school district restructuring for desegregation purposes should 
not be undertaken prior to a final decision by the United States 
Supreme Court.

Moreover, clearly the plaintiffs may submit desegregation 
proposals to the legislature and seek legislative sponsors who 
will introduce bills embodying-such proposals. Further, to the 
extent the legislature request information, data or proposals

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i



relating to desegregation, the appropriate persons within the 
executive branch will provide same in the ordinary processes of 
state government.

In this regard, it should be noted that while the current 
session of the Michigan legislature has not been terminated, the 
legislature is temporarily adjourned until October 16, 1973. See 
Michigan House Journals, 1973, p 2261? Michigan Senate Journals, 
1973, p 1531.

WHEREFORE, for the foregoing reasons, the state defendants 
respectfully request this Court to hold in abeyance, as premature, 
plaintiffs' motion to require submission of proposals to the 
legislature or, alternatively, to deny such motion.

Respectfully submitted,
FRANK J. KELLEY 
Attorney General

/ i. '/ ..
~ T - ' i s  ■ V  '

Eugene Krasicky ̂
Gerald F. Young 
George L. McCargar

Attorneys for State Defendants
Business Address:

720 Law Building
525 West Ottawa Street
Lansing, Michigan 48913

Dated: August 24, 1973