IN THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
CHINYERE JENKINS, et al., )
)
Plaintiffs-Appellants, )
)
v. ) Case No. 00-1048
)
THE SCHOOL DISTRICT OF )
KANSAS CITY, MISSOURI, et al., )
)
Defendants-Appellees. )
RESPONSE TO APPELLEE'S PETITION FOR REHEARING EN BANC
ARTHUR BENSON & ASSOCIATES
Arthur A. Benson II #21107
Jamie Kathryn Lansford #31133
4006 Central Avenue (Courier Zip: 64111)
P.O. Box 119007
Kansas City, Missouri 64171-9007
(816) 531-6565
(816) 531-6688 (telefacsimile)
abenson@bensonlaw.com
jlansford@bensonlaw.com
Attorneys for Appellants
Chinyere Jenkins, et al.
Pages
Cases
Booker v. Special School Dist. No. 1, 585 F.2d 347 (8th Cir. 1978),
cert. denied, 443 U.S. 915 (1979) 2
Brown v. Board of Education, 978 F.2d 585 (10th Cir. 1992) 2
Cupp v. Naughton, 414 U.S. 141 (1973) 7
Dyas v. Lockhart¸ 705 F.2d 993 (8th Cir. 1983) 8, 10
Jenkins v. Missouri, 2000 WL 228296 (8th Cir. February 29, 2000)
(Jenkins XVI) passim
Jenkins v. School District of Kansas City, Missouri, 73 F.Supp.2d 1058
(W.D. Mo. 1999) 1
Link v. Wabash Railroad Co., 370 U.S. 626 (1962) 3-4
Liteky v. U.S., 510 U.S. 540 (1994) 7, 8
Stanley v. Darlington County School District,
879 F.Supp. 1341 (D.S.C. 1995) 2
Thomas v. Arn, 474 U.S. 140 (1985) 7
United States v. Board of School Commissioners of the City of
Indianapolis, 128 F.3d 507 (7th Cir. 1997) 2, 3
Statutes
28 U.S.C. § 455 8
28 U.S.C. § 2106 7
IN THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
CHINYERE JENKINS, et al., )
)
Plaintiffs-Appellants, )
)
v. ) Case No. 00-1048
)
THE SCHOOL DISTRICT OF )
KANSAS CITY, MISSOURI, et al., )
)
Defendants-Appellees. )
RESPONSE TO APPELLEE'S PETITION FOR REHEARING EN BANC
Introduction
The Jenkins class ("the Class") appealed the unprecedented November 17, 1999 Order, Jenkins v. School District of Kansas City, Missouri, 73 F.Supp.2d 1058 (W.D. Mo. 1999), in which the district court, sua sponte, and without notice to the parties or hearing evidence and argument on the issues, declared the Kansas City, Missouri School District (KCMSD) to be unitary, relieved the remaining KCMSD defendants of further liability under the court's desegregation orders, and dismissed the case without prejudice. The panel properly reversed. Jenkins v. Missouri, Nos. 00-1048, 00-1288, 2000 WL 228296 (8th Cir. February 29, 2000) (Jenkins XVI), at *1, 6, 9. KCMSD now petitions for rehearing en banc, but as explained herein, its petition should be denied.
I. ERROR OF LAW COMPELLED REVERSAL AND REMAND
The panel agreed with the schoolchildren that the district court's sua sponte ruling declaring the KCMSD unitary and dismissing the case with prejudice deprived them of due process because they were denied notice and the opportunity for a fair hearing. Id.; Appellants' Br. at 17. The Class also contended that the district court erred because it vacated its injunctive decrees and dismissed the case in the absence of evidence to establish that an inequitable result would obtain otherwise, citing, inter alia, Booker v. Special School Dist. No. 1, 585 F.2d 347, 352-353 (8th Cir. 1978), cert. denied, 443 U.S. 915 (1979); United States v. Board of School Commissioners of the City of Indianapolis, 128 F.3d 507, 511-12 (7th Cir. 1997); Brown v. Board of Education, 978 F.2d 585, 588 (10th Cir. 1992); Stanley v. Darlington County School District, 879 F.Supp. 1341, 1386-87 (D.S.C. 1995). The KCMSD was thus effectively excused from the constitutional violator's burden of proving unitariness.
The Class also argued that even if the district court had not disregarded due process and the "law of the case" and misapplied precedent in declaring unitary status and dismissing the case, the fact findings and legal conclusions underpinning the district court's unitary declaration and dismissal of the case were unsupported and refuted by the existing evidence. But, the panel did not reach the unitariness issue or engage in any discussion of the district court's application of the law to the facts on that issue, Jenkins XVI, 2000 WL 228296, at *6, and noted that the district court's ruling on the de-accreditation question was not before it. Id. at *3 n.3. The district court's legal error, in and of itself, warranted reversal and remand without examination of the correctness of the fact findings purportedly upholding the declaration of unitary status.
The panel recognized the district court's clear error in declaring KCMSD to be unitary and dismissing the case without taking evidence or arguments on the issue. Id. at *3. As the panel recounts, the order setting the November 1-2, 1999 hearing limited the hearing issues to whether the State should be rejoined as a party and whether the de-accreditation order should be declared void ab initio. The evidence and argument at the hearing was so directed. The parties had no reason to believe that unitary status was an issue for the hearing and the district court's inquiry at its conclusion as to whether there should be a unitary status hearing in January is indicia that it did not consider the hearing to have been a unitary status hearing. To say that the parties were surprised by the no notice, no hearing sua sponte declaration of unitary status and dismissal of the case is an understatement. The panel could not have held otherwise.
Agreeing with the Seventh Circuit in Board of School Commissioners of the City of Indianapolis, the panel observed that "procedural niceties equate with due process and must be afforded the parties" and, acknowledging that under Link v. Wabash Railroad Co., 370 U.S. 626, 333 (1962), "simple fairness would require notice and hearing before a decision that dismisses the case," Jenkins XVI, 2000 WL 228296, at *5, held:
The sua sponte ruling declaring the district unitary and releasing the
admitted constitutional violator from further court supervision,
without giving notice either to the constitutional violator or the
victims or permitting the parties to present evidence and argue these
issues, was error.
Id. at *6.
The KCMSD complains that the panel did not discuss or address district court findings that the state's educational plans conformed to the district court's achievement standards and that the state's educational goals were consistent with the court's desegregative orders, and, therefore, that continued exercise of judicial supervision was less important, but ordered that the new judge review these findings and reach a new determination. KCMSD Petition at 9. The problem with KCMSD's argument is that the panel did not "remand[] the case to a new judge, with instructions to examine fact issues already determined and not appealed." KCMSD Petition at 3. The panel remanded for further proceedings because the district court's legal error deprived the Class of due process and the opportunity to present legal argument on issues relating to unitary status in the context of a fully developed record. Because of those fundamental failures, whatever the facts found or legal conclusions reached as to unitary status and dismissal of the case, they were inherently flawed. Of course, those issues must be revisited on remand if not otherwise resolved. The panel simply suggested the possibility that conflict between the goals of the State Department of Elementary and Secondary Education (DESE) and desegregation orders might arise and suggested that such a conflict should not be permitted by the court to be an impediment to achievement of its goals. Jenkins XVI, 2000 WL 228296, at *8.
Furthermore, whether these findings render judicial supervision less important is of little or no consequence in the absence of proof that KCMSD has met the burden of demonstrating, as it must, that it has attained unitary status. They certainly do not overcome "a resounding statement, of thunderclap proportions, that KCMSD had not been successful in dealing with the system wide reduction in student achievement, much less the achievement gap." Id. at *6. The panel properly recognized that the reversal and remand required by the district court's legal errors and KCMSD's acknowledged inability to carry its burden of proving unitariness as to student achievement and the reduction of the achievement gap would result in continued supervision and monitoring. It reemphasized that arbitrary temporal limitations do not override the court's obligation to vindicate federal constitutional guarantees and to take the action necessary for this purpose. Id. at * 6-7, 9. Reiterating that hurdles and obstacles to eliminating the vestiges of segregation are properly the subject of the attention and authority of the district court, id. at *6, the panel recognized that the remaining issue is implementation of the educational plans, and, in accordance with Supreme Court precedent, reminded the district court and parties that implementation "involves seeing that the plans ultimately have major impact in the classroom" and that the "end result sought is an improvement in student achievement and reduction of the achievement gap." Id. at *8.
Although findings of fact supporting the district court's decision not to interfere with DESE's de-accreditation process were not appealed, they are of limited applicability to the question of unitary status. Simply put, the KCMSD must meet its burden, and findings of fact that the state's educational plans conformed to the district court's achievement standards and that the state's educational goals were consistent with the court's desegregation orders and that, therefore, continued exercise of judicial supervision was less important, do not compel the conclusion that the district is unitary.
II. CHANGE OF DISTRICT COURT JUDGE
After concluding that the district court had improperly found unitary status without a hearing and ordered dismissal of this case, the panel turned to issues the "district court will face on remand", noting that it was "appropriate to comment" on them for the benefit of the district court. Jenkins XVI, 2000 WL 228296, at *6. At the conclusion of those observations, the panel suggested that the "judges of the Western District should, in the manner they deem appropriate, designate another judge to preside over this litigation". Id. at *9. Such suggestions, including suggestions that the judge presiding over a particular matter be changed, are well within the supervisory authority of a circuit court, and such suggestions, and even requirements, 28 U.S.C. § 2106, have a significant history in this Circuit.
A. Supervisory Authority of the Court of Appeals
Circuit courts may exercise, and long have exercised, supervisory powers over the judicial activities of district courts with sanction of Congress and the blessing and encouragement of the Supreme Court. In 1973, the Court noted that in addition to requiring a district court to implement constitutional mandates, an appellate court "may likewise require it to follow procedures deemed desirable from the viewpoint of sound judicial practice although in no-wise commanded by statute or by the Constitution." Cupp v. Naughton, 414 U.S. 141, 146 (1973). See also Thomas v. Arn, 474 U.S. 140, 146 (1985) ("it cannot be doubted" that courts of appeal may promulgate procedural rules governing the management of litigation, quoting Cupp). The Court recently reiterated that the "appellate courts' authority to assign a case to a different judge on remand rests not on the recusal statutes alone, but on the appellate courts' statutory power to 'require such further proceedings to be had as may be just under the circumstances.'" Liteky v. U.S., 510 U.S. 540, 554 (1994) (quoting 28 U.S.C. § 2106).
Exercising its supervisory authority, this Court has required reassignment of district court judges, even acting sua sponte, as it did here. In Dyas v. Lockhart¸ 705 F.2d 993, 997-998 (8th Cir. 1983), this Court noted that while there was no suggestion of impropriety by the district court, "remand to another district judge" would accord with the purpose of assuring the appearance of impartiality, observing that it may be important to consider "psychological tendencies and human weaknesses" in a particular case to assure that the trial judge would be able to "hold the proper balance" between the parties. Id.
Such an exercise of appellate court supervisory authority is in accord with the recusal statute, 28 U.S.C. § 455, that requires judges to disqualify themselves if their "impartiality might reasonably be questioned." Under the statute, the focus is not upon actual misconduct. "What matters is not the reality of bias or prejudice but its appearance." Liteky, 510 U.S. at 548. This Court has, and should retain, broad latitude in suggesting to district courts, or even requiring of them, changes of judges in situations where even the hint of human weakness might undermine the appearance of impartiality that is essential to the administration of justice in a judicial system where enforcement of decrees rests primarily upon voluntary acceptance of final decisions.
B. The Change of Judge Was Effected by the District Court
Upon the suggestion of the panel that the "judges of the Western District should, in the manner they deem appropriate designate another judge to preside over this litigation", Jenkins XVI, 2000 WL 228296, at *9, the judges of the Western District acted upon that suggestion. Since the panel did not compel the change of judge, only suggesting that the change be made, the actual change was effected by the judges of the Western District. While it is unlikely that suggestions of this nature from a superior court would be lightly considered or ignored by a lower court, that is as it should be. This Court should not undermine its substantial supervisory power by limiting its own authority to make such suggestions to lower courts where the need may arise to insure the complete perception of impartiality, even where "the reality of bias or prejudice" may not exist.
C. The Panel Was Justified in Making its Suggestion
This litigation involves important constitutional issues and has been before the Court for nearly twenty-three years, adjudicating the constitutional rights of tens of thousands of students, attracting immense public interest, and focusing widespread attention on the judicial process. Under these circumstances, it is not inappropriate for the courts to be particularly attentive to the compelling need to maintain the appearance of impartiality at all times.
Between 1997 and the dismissal order of November 17, 2000, the district court judge to whom the case was assigned on occasion used the unfortunate term "exit judge" to refer to itself. J.App. at 314-315 (Transcript of Proceedings, April 17, 1997, at 41-42) (". . . I am approaching this matter as I am an exit judge, I am here to perform the exit of this Court from this school system."); J.App. at 793 (Transcript of Proceedings, October 29, 1998) at 15 ("Yes, I did say that I am the exit judge, and I am trying to get this school district on its feet and back to self-government, and provide quality education to the students."). Then, without advance notice or an opportunity for a hearing, the district court dismissed the entire cause of action without requiring the defendants to establish their entitlement to the dismissal. Under these unusual circumstances, it cannot be said with certainty that upon remand the same district court judge would be free of the common "human tendencies" to believe his prior dismissal was correct when called upon to consider the matter again. Dyas, 705 F.2d at 997-998. Thus, even without the "reality of bias or prejudice", the perception of an appearance of impartiality would be inescapable. Under that circumstance, the parties, the public, and the judiciary all benefit from the vigilance exercised by the panel in the discharge of its unquestioned supervisory authority to suggest the reassignment of this case upon remand.
Conclusion
WHEREFORE, for the above and foregoing reasons, rehearing en banc should be denied.
Respectfully submitted,
ARTHUR BENSON & ASSOCIATES
By______________________________
Arthur A. Benson II #21107
Jamie Kathryn Lansford #31133
4006 Central Avenue (Courier Zip: 64111)
P.O. Box 119007
Kansas City, Missouri 64171-9007
(816) 531-6565
(816) 531-6688 (telefacsimile)
Attorneys for Appellants
Chinyere Jenkins, et al.
CERTIFICATE OF SERVICE
I hereby certify that a copy of the above and foregoing were served by
telefacsimile and U.S. Mail, postage prepaid, this 29th day of March, 2000, on:
Mr. Michael Delaney Mr. Taylor Fields
Mr. Mark Thornhill Mr. Charles Brown
Mr. Michael Leitch Mr. David Naatz
Spencer Fane Britt & Browne Fields & Brown
Suite 1400, 1000 Walnut 2544 Holmes
Kansas City, Missouri 64106 Kansas City, Missouri 64108
Mr. Brian Wood
Roher & Wood
3100 Broadway, Suite 202
Kansas City, Missouri 64111
______________________________
Jamie Kathryn Lansford