IN THE UNITED STATES COURT OF APPEALSFOR THE EIGHTH CIRCUIT
IN RE Helen Ragsdale, Lee Barnes, Patricia )
Kurtz, John Mauro, Dwayne Kelly, Michelle )
Hensley, Michael Byrd, Harriett Plowman, )
Elma Warrick (the School Board of the Kansas )
City, Missouri School District) )
)
The School District Of ; )
Kansas City, Missouri, )
)
Chinyere Jenkins, by her next friend, )
Joi Jenkins; )
Nicholas Paul Winchester-Rabelier, )
by his next friend, Paula Winchester; )
Margo Vaughn-Bey, by her next friend, )
Franklin Vaughn-Bey; )
Nicholas C. Light, by his next friend, )
Marian Light; )
Stephon D. Jackson, by his next friend, )
B.J. Jones; )
Travis N. Peter, by his next friend, )
Debora Chadd-Peter; )
Leland Guess, by his next friend, )
Sharon Guess, and )
all others similarly situated )
(Plaintiffs and Class Representatives Below), and)
)
AMERICAN FEDERATION OF TEACHERS, )
Local 691 (Intervenors Below). )
PETITION FOR WRIT OF PROHIBITION
Pursuant to Fed. R. App. P. 21(a), petitioners jointly request this Court to issue its Writ of Prohibition vacating the following portions of the Order that United States District Judge Dean Whipple issued sua sponte on April 19, 2001:
Ordering the Kansas City, Missouri School Board to show cause why its decisions to relieve the Superintendent of the School District of his duties, effective immediately, and to terminate the employment of his Chief of Staff and Director of Communications, should not be rescinded by the Court on the Court's own motion;
Ordering that any decision made by the School Board in its meeting of April 18, 2001, or any time subsequent thereto be stayed indefinitely until unspecified "issues" are "resolved";
Ordering "Superintendent Demps and his staff to return to their jobs and resume the management and supervision of the Kansas City, Missouri School District;" and
Ordering "the School Board to refrain from interfering in any way with the operations of the Kansas City, Missouri School District and the decision-making authority of Superintendent Demps and his staff until further order of the Court."
A copy of the District Court's Order of April 19, 2001, is attached to this petition as Exhibit A.
Petitioners further request this Court to stay the District Court's Order until a decision on the merits of this petition is rendered, and to order an expedited, emergency hearing on the matters raised in this Petition.
Issues Presented
1. Whether the District Court, acting sua sponte and without holding a hearing, taking evidence, making findings, issuing conclusions of law, and explaining its reasoning, has the Constitutional and statutory authority to rescind certain lawful actions of the duly elected School Board which is charged under state law with running the School District of Kansas City, Missouri (the "School District"); specifically, to rescind the Board's decision to relieve the Superintendent of Schools of his duties without termination of salary or benefits and to terminate two at-will employees hired by the Superintendent?
2. Whether the District Court, acting sua sponte and without holding a hearing, taking evidence, making findings, issuing conclusions of law, and explaining its reasoning, has the Constitutional and statutory authority to stay all decisions made by the duly elected School Board which is charged under state law with running the School District, until some uncertain future date when unspecified "issues [are] resolved"?
3. Whether the District Court, acting sua sponte and without holding a hearing, taking evidence, making findings, issuing conclusions of law, and explaining its reasoning, has the Constitutional and statutory authority to lift the suspension of duties of a School District's superintendent and to reinstate two of his two of his handpicked assistants to their positions over the opposition of a majority of the duly elected School Board which is charged under state law with running the School District?
4. Whether the District Court, acting sua sponte and without holding a hearing, taking evidence, making findings, issuing conclusions of law, and explaining its reasons, has the Constitutional and statutory authority to order the duly elected School Board which is charged under state law with running the School District, "to refrain from interfering in any way with the operations of the Kansas City, Missouri School District in the decision-making authority of Superintendent Demps and his staff until further order of this Court"?
Statement of Facts
As this Court is well aware, the School District has been engaged in desegregation litigation first filed in the United States District Court for the Western District of Missouri in May 1977. For many years, the School District has been attempting to remedy any vestiges of illegal racial discrimination which remain in the District schools.
For the last several months, the School Board has been engaged in contract renewal negotiations with its Superintendent, Benjamin Demps, Jr.. At a special meeting of the School Board held on April 18, 2001, a majority of the School Board voted to suspend Superintendent Demps from performing any further duties for the School District for the remainder of his existing contract and voted that his contract would not be renewed when it expires on June 30, 2001.
At the time of the School Board's vote, no specific motions regarding the adequacy of any desegregation remedy pended before Chief District Judge Dean Whipple. The District Court had scheduled a conference on April 27 to obtain a report on the status of contract negotiations between Mr. Demps and the School Board, however.
At approximately 2:00 p.m. on April 19, 2001, the District Court sua sponte entered an Order, a copy of which is attached as Exhibit A to this Petition. In that Order, Judge Whipple effectively usurped the role of the elected School Board by overruling its decision to suspend Mr. Demps' duties and to terminate two of two assistants. Most striking, the District Court has ordered that "any decision made by the School Board in its April 18, 2001, meeting or any time subsequent thereto be stayed until the hearing is concluded and the issues resolved." (Emphasis supplied). Because there is no boundary to the Court's stay, any reading of the order forbids the Board from taking any action on any subject until unspecified "issues" are resolved.
Because these actions had already taken place, this was not merely an order holding the status quo pending a hearing. This was an affirmative injunction interfering in personnel matters which are vested as a matter of state law in the elected School Board.
Reasons Why the Writ Should Issue
Acting sua sponte, without authority, and without holding a prior hearing, the District Court has effectively placed the School District under receivership and installed a receiver of the Court's choosing. The District Court chose to overrule the judgment of the duly elected officials of the School District without taking any evidence, without making any findings, without writing any conclusions of law, and without explaining its reasoning. The Court clearly exceeded its jurisdiction, and the need for extraordinary relief is clear and indisputable.
As this Court well knows, the School District has been laboring for years to remedy the vestiges of illegal discrimination under a succession of school boards and superintendents. Never before in this litigation has any party or the Court attempted to strip the duly elected School Board members of the District of their power under Missouri state law to operate the District and to hire and fire its administration.
Missouri statutes vest exclusive authority to operate a school district in its duly elected board and in the administrative officers chosen by that board. Mo. Rev. Stat. § 168.201 (1999). For reasons known only to him, Judge Whipple has decided that he disagrees with the decision of a majority of the School Board to relieve Superintendent Benjamin Demps of his duties and to terminate the services of two of Mr. Demps' hand-picked assistants.
It is significant that no party to the desegregation lawsuit asked Judge Whipple to intervene in the School Board's decision to relieve Superintendent Demps and his assistants of duty. Nor did any party ask Judge Whipple to reinstall Superintendent Demps and his assistants, or to restrain indefinitely the School Board members from interfering with Mr. Demps' actions in running the School District.
One of the significant checks on judicial power is that judges decide matters brought to their attention by litigants. Normally, federal judges don't reach out to take action in pending cases on their own motion based on news reports. In this matter, however, Judge Whipple inserted himself into a personnel matter sua sponte.
It is extremely significant that all but one of the parties to the desegregation case are petitioners in this Court. (1) The parties agree that it is wrong for Judge Whipple to usurp the power to hire and fire School District executives, to arrogate to himself the power to impose top management for the School District. See Schlagenfauf v. Holder, 379 U.S. 104, 110 (1964) (writ of mandamus appropriate to remedy usurpation of judicial power by District Court); Peterson v. Nadler, 452 F.2d 754, 756 n.2 (8th Cir. 1971).
We can only speculate as to what Judge Whipple might cite as the source of his power effectively to place the District in receivership without a hearing, without taking evidence, without making findings, without writing conclusions of law, and without explaining his reasons. Presumably, he believes his actions are in some way related to the desegregation case and are intended to be remedial in some fashion.
Courts traditionally have shown great deference to the broad discretionary powers of elected school officials. The United States Supreme Court has imposed jurisprudential limits on the power of federal judges to interfere in school operations during the remedial phase of desegregation litigation. "Remedial judicial authority does not put judges automatically in the shoes of school authorities whose powers are plenary. Judicial authority enters only when the local authority defaults [in its affirmative obligations]." Swann v. Charlotte-Mecklenburg Board of Educ., 402 U.S. 1, 16 (1971).
There is no suggestion that the current School Board has defaulted or will default in its efforts to work toward elimination of the vestiges of illegal segregation. Thus, there is no basis for this Court to strip the School Board of its supervisory powers and to place them in the hands of a receiver (in the form of Mr. Demps) appointed by the Court. (2)
In all the history of school desegregation litigation, petitioners are aware of only two cases in which a Court has appointed a receiver. In both of those cases, recalcitrant school boards refused to desegregate, in blatant and contemptuous ways. In Turner v. Goolsby, 255 F. Supp. 724, 730 (S.D. Ga. 1966), the District Court appointed the Georgia State School Superintendent as receiver of a county school system because the defendants categorically refused to operate integrated schools. The defendants had closed the white school, and transported the students from that school to segregated schools in another county. The District Court concluded that any approach other than appointing a receiver would be ineffective. Id.
Secondly, in the Boston School Desegregation litigation, the District Court appointed a temporary receiver for one school -- South Boston High -- following extended obstruction by the school board, school administrators, faculty, and community groups. The Court found that steadily deteriorating conditions at the school warranted appointment of a receiver. Morgan v. McDonough, 540 F.2d 527, 533 (1st Cir. 1976), cert. denied, 429 U.S. 1042 (1977). In that case, the Court of Appeals affirmed the finding that the more usual remedies of contempt proceedings and injunctions were not adequate, and that the District Court was justified in turning to a receivership in aid of an outstanding injunction. 540 F.2d at 533.
Even where the Court of Appeals affirmed the appointment of a receiver for one high school, the Court noted that "direct judicial intervention in the operation of a school system is not to be welcomed, and it should not be continued longer than necessary. But if an extraordinary circumstance is the only reasonable alternative to non-compliance with the court's plan of desegregation, it may, with appropriate restraint, be ordered." Id. (emphasis added).
The outrage of this case is that there has been no effort by the School Board to avoid compliance with the Court's plan of desegregation. Its efforts may not have been completely successful, but they certainly are not contumacious. There have been no findings of contempt or of any other behavior that signifies any unwillingness to reach the common goal of all parties in the case.
Typically, before a receivership is instituted, a comprehensive factual record must be made demonstrating the necessity of a receivership. See Reid v. Rhodes, 472 F. Supp. 612, 614 (N.D. Ohio 1979). Because no factual record presently exists to support appointment of a receiver, the District Court exceeded its jurisdiction and violated due process by appointing Mr. Demps and his two assistants without a full preliminary hearing, findings of fact, conclusions of law, and an explanation of the Court's reasoning.
If the School District and its Board is to accomplish the work it has been directed to do, it needs to be able to focus on those issues. The Board wishes to concentrate its earnest attention and all of its resources on the operation of the Kansas City, Missouri School District. It is not enough for Judge Whipple to disagree with the decisions of the elected board members and to overrule them.
WHEREFORE, this Court should stay the District Court's Second, Third, Fourth, and Fifth orders in its Order of April 19, 2001, until this matter may be reached on the merits; should expedite its handling of this petition and hold an emergency hearing; should vacate the Second, Third, Fourth, and Fifth paragraphs of the District Court's Order of April 19, 2001; and should grant petitioners such other and further relief as the Court deems just.
Floyd R. Finch, Jr.
Maurice Watson
Blackwell Sanders Peper Martin LLP
Two Pershing Square, Suite 1000
2300 Main Street
Kansas City, Missouri 64108
Phone: (816) 983-8000
Fax: (816) 983-8080
Attorneys for the Kansas City, Missouri School District and its Board Members
Arthur A. Benson, II
Arthur A. Benson & Associates
4006 Central
Kansas City, Missouri 64111
Phone: (816) 531-6565
Fax: (816) 531-6688
Attorneys for Chinyere Jenkins, et al., Plaintiffs
Brian P. Wood
Roher, Wickham & Wood, LLC
Ste. 202 Penntower
3100 Broadway
Kansas City, Missouri 64111-2413
Phone: (816) 753-8751
Fax: (816) 753-8267
Attorneys for American Federation of Teachers, Local 691 (Intervenor)
CERTIFICATE OF SERVICE
Copies of the foregoing were served by hand-delivery, this 20th day of April, 2001:
The Honorable Dean Whipple
Chief United States District Judge
8462 C.E. Whittaker Courthouse
400 E. 9th Street
Kansas City, Missouri 64106
Paul E. Donnelly
Stinson, Mag & Fizzell, PC
1201 Walnut Street
Ste. 2800
P.O. Box 419251
Kansas City, Missouri 64141
Attorney for Benjamin Demps, Jr.
Attorney
1 The only party to the desegregation case in the District Court who is not a
petitioner here is Mr. Demps himself.
2 A receivership has been described as "the most dramatic assertion of federal
equitable power possible." Special Project: The Remedial & Institutional Reform
Litigation, 78 Colum. L. Rev. 784, 836 (1978).