Petition for Writ of Certiorari — Clark v. Jenkins ex rel. Agyei

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(\) [~ Supreme

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88-1194 ' FILED

* JAN 12 1989

= JOSEP IF. SPANIOL, UR,

In the Supreme Court of the United States

OCTOBER TERM, 1988

ICELEAN CLARK, et al.,

Petitioners,

VS.

KALIMA JENKINS, et al.,

Respondents,

vs.

THE STATE OF MISSOURI, et al.,

and

SCHOOL DISTRICT OF KANSAS CITY,

MISSOURI, et al.,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

Mark J. BREDEMEIER*

JERALD L. HILL

LANDMARK LEGAL FOUNDATION

15th Floor

1006 Grand Avenue

Kansas City, Missouri 64106

(816) 474-6600

Attorneys for Petitioners

*Counsel of Record

January 11, 1989

E. L. MENDENHALL, INc., 926 Cherry Street, Kansas City, Mo. 64106, (816) 421-3030

QUESTIONS PRESENTED

On September 15, 1987, the District Court below

ordered an unprecedented $1.95 increase in the school

property tax levy paid by Petitioners to fund court-

ordered desegregation remedies. Prior to this, no school

district taxpayer had been made a party to this suit;

only the State of Missouri and the local school district

had been found jointly and severally liable for consti-

tutional violations and only these defendants had been

held financially responsible for funding desegregation

remedies.

On September 25, 1987, Petitioners moved for leave

to intervene in the District Court’s proceedings to chal-

lenge the constitutional authority of a federal judge to

“lay and collect Taxes.” The District Court denied Peti-

tioners’ request for intervention as “not timely.” The

Court of Appeals affirmed the deniai of intervention on

timeliness grounds and, further, affirmed, as modified,

the court-ordered property taxation scheme.

The questions presented are these:

1. Did the lower courts erroneously deny Peti-

tioners’ request for intervention of right under Rule 24

(a) (2), Fed.R.Civ.P., on grounds of untimeliness contrary

to applicable decisions of this Court?

2. Did the lower courts’ intervention decisions in-

fringe Petitioners’ due process right to protect themselves

from an unconstitutional seizure of their property by a

federal judge’s unprecedented decision to “lay and collect

Taxes’?

LIST OF PARTIES AND RULE 23.1 LIST

Petitioners are Icelean Clark, Bobby Anderton,

Eleanor Graham, John C. Howard, Craig Martin, Gay D.

Williams, Kansas City Mantel & Tile Co., and Coulas &

Griffin Insurance Agency, Inc. These Petitioners are in-

dividual and corporate taxpayers who own property with-

in the Kansas City, Missouri School District. Kansas City

Mantel & Tile Co. and Coulas & Griffin Insurance Agency,

Inc. are Missouri corporations with no parent companies,

subsidiaries or affiliates as contemplated by Rule 28.1.

Respondents representing the plaintiff class of school-

children below are Kalima Jenkins, by her friend, Kamau

Agyei; Carolyn Dawson, by her next friend, Richard Daw-

son; Tufanza A. Byrd, by her next friend, Teresa Byrd;

Derek A. Dydell, by his next friend, Maurice Dydell;

Terrance Cason, by his next friend, Antoria Cason;

Jonathan Wiggins, by his next friend, Rosemary Jacobs

Love; Kirk Allan Ward, by his next friend, Mary Ward;

Robert M. Hall, by his next friend, Denise Hall; Dwayne

A. Turrentine, by his next friend, Shelia Turrentine;

Gregory A. Pugh, by his next friend, Barbara Pugh;

and Cynthia Winters, by her next friend, David Winters.

The American Federation of Teachers, Local 691 is

an intervenor in the District Court proceedings and was

a nominal appellee in Petitioners’ appeal below (No.

87-2565WM) in the United States Court of Appeals for

the Eighth Circuit.

Respondents representing the State defendants in

addition to the State itself are the Honorable John Ash-

croft, Governor of the State of Missouri; Wendell Bailey,

Treasurer of the State of Missouri; the Missouri State

III

Board of Education, Roseann Bentley, Dan Blackwell,

Terry A. Bond, Delmar A. Cobble, Grover Gamm, Jimmy

Robertson, Robert L. Welling, and Donald E. West, Mem-

bers; and Arthur L. Mallory, Commissioier of Education

of the State of Missouri.

A named party below in addition to Respondent

School District of Kansas City, Missouri is Claude C.

Perkins, Superintendent.*

*The listings of State Respondents and Schoo! District Re-

spondents are as they appeared in the Court of Appeals. The

present Superintendent of the School District of Kansas City,

Missouri is George Garcia. The present Commissioner of Edu-

cation for the State of Missouri is Robert E. Bartman. According

to the official state manual, the current members of the Missouri

State Board of Education are Bentley, Blackwell, Bond, Thomas

R. Davis, Susan D. Finke, Raymond F. McCallister, Jr., Cynthia

B. Thompson and Roger L. Tolliver.

TABLE OF CONTENTS

Gornemticnns Premmmmbe nnn non. nnn nsncnnennenennnnnens I

List of Parties and Rule 28.1 List —.................................. II

Deen nn oe awemeicmaspiebameasiy’ ae

he ESI I CR CE Ea

Jurisdiction +. le eta ae

Constitutional Pr@ision and Rule SS SRSA 2

a a i hale

Reasons for Granting the Writ

I. THE LOWER COURTS’ DENIAL OF PETI-

TIONERS’ INTERVENTION OF RIGHT ON

GROUNDS OF UNTIMELINESS IS AN

ERRONEOUS AND DANGEROUS PRECE-

DENT ON AN IMPORTANT QUESTION

OF FEDERAL LAW WHICH IS IN CON-

FLICT WITH APPLICABLE DECISIONS

CUP ee ac ities 8

A. Petitioners’ Motion To Intervene Was

“Timely” Under Applicable Supreme

Court Precedent

B. Petitioners Satisfied All Other Require-

ments For Intervention Of Right Under

CO isis ann. 11

Il. THE LOWER COURTS’ ERRONEOUS DE-

NIAL OF PETITIONERS’ INTERVENTION

INFRINGED PETITIONERS’ FUNDAMEN-

TAL RIGHT TO PROTECT THEMSELVES

FROM AN UNCONSTITUTIONAL SEIZURE

OF THEIR PROPERTY BY A FEDERAL

JUDGE’S UNPRECEDENTED DECISION

TO LEVY PROPERTY TAXES

A. The Judicial Taxation Scheme Con-

structed By The Lower Courts Exceeds

The Limitations On The Federal Judi-

ciary’s Power Under Article III And

Contravenes, Fundamental Principles Of

Constitutional Self-Governance .................. 13

1. TZemetien pemewies oo... 14

2. The lower courts’ levying of property

taxes directly conflicts with this

Court’s Griffin decision .................... 17

3. Application of joint and several lia-

bility principles, in lieu of judicial

property taxation, is the appropriate

judicial remedy in this case _............ 23

B. Petitioners’ Exclusion As Parties Below

Jeopardized Their Due Process Right To

Challenge The Unconstitutional Seizure

of Their Property Through A Federal

IS ON a ensctnesenenrees 25

CE Aitkin teeta iS el 27

Appendix**

August 19, 1988 Opinion of the United States

Court of Appeals for the Eighth Circuit ......... Al

October 24, 1988 Amended Order of the United

States Court of Appeals for the Eighth Circuit ....A53

September 15, 1987 Order of the District Court ....A55

October 27, 1987 Order of the District Court ........ A83

August 19, 1988 Judgment of the United States

Court of Appeals for the Eighth Circuit ....... A86

**The lengthy Appendix is separately bound, identified and

presented with this Petition for Writ of Certiorari pursuant to

Rule 21.1(k).

TABLE OF AUTHORITIES

Cases: i.

Armstrong v. Manzo, 380 U.S. 545 (1965) .................-.- 25

Board of Regents v. Roth, 408 U.S. 564 (1972) ........ 25

Brown v. Board of Education, 347 U.S. 483 (1954) .... 17

Cleveland Board of Education v. Loudermill, ........

SH jeesincs hg seeat , 105 S. Ct. 1487 (1985) .................. 25

Corby Recreation, Inc. v. General Electric Company,

681 F.2d 175 (8th Cir. 1978) 2.02.2... ceeeceeeeceseeeees 9,12

Donaldson v. United States, 400 U.S. 517 (1971) .... 12

Griffin v. County School Board of Prince Edward

County, 377 U.S. 218 (1964) ...........-........--cccsseeeeeees passim

Jenkins v. State of Missouri, 593 F. Supp. 1485 (W.D.

Mo. 1984), aff'd in part & rev'd in part, 807 F.2d

657 (8th Cir. 1986), cert. denied, 108 S. Ct. 70

5 gp ss eR RS is SRS ACI TRS et CS er 3

Jenkins v. State of Missouri, 672 F. Supp. 400 (W.D.

Mo. 1987), aff'd in part & rev’d in part, 855 F.2d

EE A cc IID Sectinerenereccocnenincnsvnisenvneteoctonoeapeetslititad passim

Lassiter v. Department of Social Services of Durham

eS Ey SE neuen 25

Liddell v. State of Missouri, 731 F.2d 1294 (8th Cir.),

cert. denied, 469 U.S. 816 (1984) —...00. 20, 21

Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982) 25

Mathews v. Eldridge, 424 U.S. 319 (1976) ................ 25

Meriwether v. Garrett, 102 U.S. 472 (1880) ................ 16

Meyer Goldberg, Inc. of Lorain v. Goldberg, 717 F.2d

ES ___ EE eR oan 12

Milliken v. Bradley, 433 U.S. 267 (1977) —....00200000..... 23

Moses Lake Homes, Inc. v. Grant County, 365 U‘S.

I SA Sie si ellnoncdssiatninchctaanseran errs oncnecpncnioderinnaipeaps 18, 19, 21

VII

NAACP v. New York, 413 U.S. 345 (1973) 00000... 9,11

Nevilles v. EEOC, 511 F.2d 303 (8th Cir. 1975) 9

Plaquemines Parish School Board v. United States, 415

Po 8 , EERE eee Se ee ee 19

Postscript Enterprises, Inc. v. Whaley, 658 F.2d 1249

I acai i si 25

Providence Bank v. Billings and Pittman, 29 U.S. (4

ga IER tt HOMO NNT ROTN ORTW POE OEE 16

Reece v. Gragg, 650 F. Supp. 1297 (D. Kan. 1986) ... 22

Rees v. City of Watertown, 86 U.S. (19 Wall.) 107

(1873) ..... DiiGioceistemitianienthatedniscnshuhabasetrindinbsointonen 16

San Antonio Independent School District v. Rodriguez,

Re I eM ai soci laces pecsenectcecncsineb ree dcerionsanies 23

Thompson v. Allen County, 115 U.S. 550 (1885 ren 16

Trbovich v. United Mine Workers of America, 404 U.S.

a ALAR Nil olds A ee ESO an 12

United States v. Missouri, 515 F.2d 1365 (8th Cir.),

cert. denied, 423 U.S. 951 (1975) 0. 19, 20

Yost v. Dallas County, 236 U.S. 50 (1915) 0... 16

Constitutional Provisions, Statutes and Rules:

pie, as a i I ce 15

| & <2 18 SEE SSS Ree Cenc passim

Ce aes 2, 25

Rule 24(a) (2), Fed.R.Civ.P. 2... 3, 9, 10

I a cena 8

The Massachusetts Resolves of October 29, 1765 ............ 14

Other Authorities:

J. Adams, Secrets of the Tax Revolt (Harcourt Brace

(Sak otk SEES URS 1H OE sO ae 14

Declaration of Independence (U.S. 1776) .................-..-- 14

The Federalist No. 78 (Hamilton) .............................- 13, 15-16

J. Locke, The Second Treatise on Government (Bobbs-

I TO eseitsdntienitscnigpicentalnndihceais jaiannstecaiantaatacabelinen 14

F. McDonald, Novus Ordo Seclorum: The Intellectual

Origins of the Constitution (University Press of Kan-

I ED «iii nnectescke shh mncintgiaicnnhinebiitesanttanlghieininintidinaninns 14, 15

McDowell, A Scrupulous Regard for the Rightful In-

dependence of the States: Justice Stone and the

Limits of the Federal Equity Power, 7 Harv. J. L.

23, & Bt: gee reueneee eren 23

Nagel, Separation of Powers and the Scope of Federal

Equitable Remedies, 30 Stan. L. Rev. 661 (1978) ... 16

Roche, Judicial Self-Restraint, 49 Amer. Pol. Sci. Rev.

Re NN cciietretrnigh cher nicdanninenicegshunestrinenaigemeiassesineneyons 17

R. Tresolini, American Constitutional Law (2d ed.

NE sectptemerenmnentennentgrsisateicinnmmmpcnasdenenanmnipinpaansananaeapesansias 17

No.

In the Supreme Court of the United States

OCTOBER TERM, 1988

“ ICELEAN CLARK, et al.,

Petitioners,

VS.

KALIMA JENKINS, et al.,

Respondents,

vs.

THE STATE OF MISSOURI, et al.,

and ;

SCHOOL DISTRICT OF KANSAS CITY,

MISSOURI, et al.,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

Petitioners Icelean Clark, Bobby Anderton, Eleanor

Graham, John C. Howard, Craig Martin, Gay D. Williams,

Kansas City Mantel & Tile Co., and Coulas & Griffin

Insurance Agency, Inc. respectfully pray that a writ of

certiorari issue to review the judgment and opinion of

the United States Court of Appeals for the Eighth Cir-

cuit, entered in the above-captioned matter on August 19,

1988. :

OPINIONS BELOW

The amended order of the United States Court of

Appeals for the Eighth Circuit denying rehearing and

rehearing en banc (Appendix at A53) is unpublished.

The prior panel opinion of the Court of Appeals (App.,

Al1-A52) is reported at 855 F.2d 1295. The September 15,

1987 opinion of the United States District Court for the

Western District of Missouri imposing taxes (App., A55-

A82) is reported at 672 F.Supp. 400. The October 27,

1987 order—of the District Court denying Petitioners’

motion for leave to intervene (App., A83-A85) is un-

published.

JURISDICTION

The judgment of the Court of Appeals (App., A86)

was entered on August 19, 1988. Petitions for rehearing

and rehearing en-banc were denied on October 14, 1988.

This order denying rehearing was amended on October 24,

1988 to include dissents. (App., A53.)

The jurisdiction of this Court to review the judgment

and opinion of the Eighth Circuit is invoked under 28

U.S.C. Section 1254(1).

CONSTITUTIONAL PROVISION AND

RULE INVOLVED

U.S. Const. amend. V provides in pertinent part:

[NJor shall any person . . . be deprived of life, lib-

erty, or property, without due process of law; nor

shall private property be taken for public use, with-

out just compensation.

Rule 24(a) (2), Fed.R.Civ.P., provides:

Intervention of Right. Upon timely application any-

one shall be permitted to intervene in an action...

(2) when the applicant claims an interest relating

to the property or transaction which is the subject

of the action and the applicant is so situated that

the disposition of the action may as a practical mat-

ter impair or impede the applicant’s ability to pro-

tect that interest, unless the applicant’s interest is

adequately represented by existing parties.

STATEMENT OF THE CASE

This petition embraces fundamental constitutional

issues of judicial taxation and due process which have

recently arisen out of the Kansas City, Missouri School

District (“KCMSD”) desegregation litigation. The plain-

tiff class of schoolchildren filed their complaint in the

United States District Court for the Western District

of Missouri in 1977 alleging violations of the Equal Pro-

tection Clause of the Fourteenth Amendment and seeking

desegregation relief. The District Court entered a judg-

ment on September 17, 1984 in favor of the plaintiffs

and held the KCMSD and the State of Missouri jointly

and severally liable for the equal protection violations

in the segregated operation of the Kansas City schools.

This judgment rejected an interdistrict remedy involving

suburban school districts and imposed an_ intradistrict

remedy against only these two defendants; this judgment

was affirmed, as modified, by the United States Court

of Appeals for the Eighth Circuit. See Jenkins v. State

of Missouri, 593 F. Supp. 1485 (W.D. Mo. 1984), aff'd

in part & rev’d in part, 807 F.2d 657 (8th Cir. 1986),

cert. denied, 108 S. Ct. 70 (1987).

Since June 14, 1985, the District Court has entered

a series of remedial orders approving the expenditure

of millions of dollars for capital improvements of the

KCMSD and for the funding of the operating and de-

segregation budgets of the KCMSD. In all instances,

the financial liability for such remedies fell only on the

KCMSD and the State of Missouri, jointly and severally.

On September 15, 1987, the District Court entered

an order approving extensive KCMSD capital improve-

ment projects and a far-reaching magnet schools plan.

The jurisdiction of the District Court was invoked under

28 U.S.C. Section 1331. The KCMSD and the State of

Missouri again were held to be jointly and severally

liable for financing these new programs as well as con-

tinued desegregation costs. The court found the KCMSD

to be without revenues sufficient to fund its share of

the capital improvement costs and additional desegre-

gation expenditures. However, rather than require the

State to fund or advance any of the school district’s

added financial obligations, the District Court granted

in part the KCMSD’s motion for funding relief and

ordered:

[T]hat in order to fund the obligation of the KCMSD

for the desegregation program, a surtax of 1.5% is

added to the Missouri State Income Tax for all per-

sons and entities receiving income for work done,

services rendered, and income received from activities

within the KCMSD and the tax levy for the KCMSD

is raised [from $2.05] to $4.00 per $100 assessed

valuation.

Jenkins v. State of Missouri, 672 F. Supp. 400, 413 (W.D.

Mo. 1987), aff'd in part & rev’d in part, 855 F.2d 1295

(8th Cir. 1988). (App., A82.)

In arriving at this startling decision, the District

Court believed that it was “left with no choice but to

exercise its broad equitable powers . . . [to] insure that

the constitutional violations committed by the KCMSD

and the State of Missouri are cured.” (App., A78.) The

court went on to conclude that it had “no alternative

but to impose tax measures which will enable KCMSD

to meet its share of the cost of the desegregation plan.”

(Id., A79-A80.)

Thereafter, both court-ordered taxes were collected

from Petitioners and other similarly-situated Kansas City

taxpayers.

On September 25, 1987, Petitioners filed with the

District Court their motion for leave to intervene of right

in the proceedings in order to challenge the trial court’s

authority and jurisdiction to levy income and property

taxes under the United States Constitution. They would

be the only litigants in the suit actually paying these

new taxes. The District Court denied! Petitioners’ mo-

tion on October 27, 1987, concluding it was “not timely.”

(App., A84.)

The Court of Appeals affirmed the denial of inter-

vention as “untimely.” (App., A48.) The jurisdiction?

of the Court of Appeals was invoked under 28 U.S.C.

Section 1291. The Court of Appeals, relying on previous

Eighth Circuit precedent, also affirmed the District Court’s

$1.95 property tax levy increase, but modified the future

1. In this order, the District Court did permit Petitioners

to participate as amici curiae. (App., A83.)

2. Petitioners also timely filed a protective notice of ap-

peal (in No. 87-2693WM) covering the constitutional challenges

to the September 15, 1987 taxation decision.

implementation of a court-approved property taxation

scheme. (Id., A30-A42.) Chief Judge Lay dissented from

the affirmance of the court-ordered property tax. Noting

that desegregation liability “was based upon a finding of

joint and several tortfeasors” (id., A50), Judge Lay sug-

gested that court-ordered property taxation was inap-

propriate when the State could be held liable for the

KCMSD’s desegregation obligations.

The Court of Appeals did, however, reverse the judi-

cially-imposed income tax surcharge, holding that the

trial court “invaded the province of the legislature in

ordering this surcharge, and that the order [was] beyond

the power of the district court as outlined in” specified

Supreme Court and Eighth Circuit precedent. (Id., A44.)

In reversing the surcharge, the Court of Appeals stated

that “[a]ny unexpended collections must be refunded and

the district court is directed to take such action as it

deems appropriate with respect to any further refunds.”

(Id., A45.)

On remand, the District Court granted intervention

of right to certain Petitioners subject to the surcharge

and entertained their motion for a full refund of all

surcharge payments made. On January 3, 1989, the Dis-

trict Court granted these Petitioners’ motion (on behalf

of themselves and all similarly-situated surcharge tax-

payers) and ordered the refund of more than $31 million.

REASONS FOR GRANTING THE WRIT

At the core of this petition is the basic question of

the power of the federal judiciary in crafting consti-

tutional remedies: Does this power encompass the au-

thority to levy new taxes to generate revenue to fund

a constitutional remedy? In this instance, the remedy

involves desegregating public schools. However, the prec-

edent established by the lower courts—and their creation

of an Article III judicial taxation power—will, if left

unchecked, serve as a springboard for future exercises

of judicial taxation to remedy other constitutional vio-

lations.

This Court has never directly confronted such a ques-

tion. Certainly, this Court has never sanctioned an Arti-

cle III taxation power in the federal judiciary. The lower

courts’ action is a significant departure from the accepted

and usual course of judicial proceedings. This newly-

developed power presents an extremely important question

of constitutional construction.

_ Petitioners are individual and corporate taxpayers

who are paying the court-ordered taxes at issue. They

were not parties to the underlying desegregation litigation;

they had never been found liable for the constitutional

wrongs committed or for the remedies to be implemented.

Petitioners had no justiciable interest in these proceedings

prior to the trial court’s September 15, 1987 taxation de-

cision. Nevertheless, Petitioners have never been per-

mitted to participate as parties in this litigation to assert

their constitutional challenges to the taking of their prop-

erty—a taking accomplished through a court-ordered tax

which inures to the financial benefit of all existing liti-

gants, especially the two joint and several tortfeasors, the

State of Missouri and the KCMSD.

As a result of the denial of Petitioners’ intervention,

the issue of judicial taxation cannot be squarely addressed

_ until threshold due process considerations are resolved.

First, this Court should recognize the dangerous precedent

posed by the lower courts’ erroneous intervention de-

cisions. In holding Petitioners’ September 25, 1987 re-

quest “untimely,” and by requiring Petitioners and other

Kansas City taxpayers to speculate on the judicial taxa-

tion “intentions” of a federal judge, the lower court de-

cisions directly conflict with decisions of this Court and

contravene fundamental principles of intervention. Sec-

ond, the Court should recognize that these illogical rulings

have infringed Petitioners’ access to due process in the

protection of their property from unlawful seizure. Fi-

nally, the Court should order arguments on the most im-

portant question in this litigation: Do federal courts have

the power to “lay and collect Taxes” under Article III of

the United States Constitution?

THE LOWER COURTS’ DENIAL OF PETITIONERS’

INTERVENTION OF RIGHT ON GROUNDS OF UN-

TIMELINESS IS AN ERRONEOUS AND DANGER-

OUS PRECEDENT ON AN IMPORTANT QUESTION

OF FEDERAL LAW WHICH IS IN CONFLICT WITH

APPLICABLE DECISIONS OF THIS COURT.

A. Petitioners’ Motion To Intervene Was ‘“‘Timely”’

Under Applicable Supreme Court Precedent.

Petitioners filed their motion for leave to intervene*®

ten days after the District Court first imposed on them a

3. This motion was accompanied by the requisite “pleading

setting forth the claim or defense for which intervention [was}

sought.” See Rule 24(c), Fed.R.Civ.P.

$1.95 property tax levy increase. Under the unusual cir-

cumstances surrounding Petitioners’ new-found tax liabil-

ity, the Court of Appeals’ holding that Petitioners “had

ample opportunity to file timely [intervention] applica-

tions” (App., A47) prior to entry of the September 15,

1987 taxation order is illogical and dangerous. It contra-

venes the purpose and intent of federal intervention prin-

ciples enunciated in NAACP v. New York, 413 U.S. 345

(1973) and Nevilles v. EEOC, 511 F.2d 303 (8th Cir. 1975)

(per curiam); it opens a Pandora’s Box of interpretations

_ that will subject federal trial courts to endless speculative

applications premised upon what trial courts “might do”

or may be “thinking of doing.” Considering “all the cir-

cumstances,” Petitioners’ request was timely and denial

was an abuse of discretion. NAACP v. New York, supra,

413 U.S. at 365-66; Rule 24(a) (2), Fed.R.Civ.P. See Corby

Recreation, Inc. v. General Electric Company, 681 F.2d

175, 176 n.l (8th Cir. 1978).

The lower courts concluded Petitioners should have

moved for intervention earlier—prior to the entry of the

September 15, 1987 taxation order—for two reasons:

First, because the District Court previously had discussed

its “ability . . . to raise taxes to fund its desegregation

remedy” and, in 1985, had actually enjoined the Proposi-

tion C property tax levy rollback required under Missouri

law. (App., A84 & A48.) Second, because, in a July 6,

1987 order, the District Court “stated its intention ‘to

generate KCMSD’s portion of the desegregation funding

through imposition of either an earnings tax or a state

income tax surcharge’”—an “intention . . . reported by

the local news media.” (App., A84 & A48.) The appellate

panel concluded that, “[t]aken together, the orders were

more than sufficient . . . to put [taxpayers] on notice

that their interests would be affected by” future District

Court funding orders. (Id., A48 (emphasis added).)

These statements and actions of the District Court do

not provide actual or constructive notice of the District

Court’s ultimate property and income taxation schemes

sufficient to constitute due process any more than they

establish a Rule 24(a)(2) interest sufficient to permit

Petitioners’ intervention prior to September 15, 1987.

Taxpayers are neither obliged nor allowed to file tenuous

actions premised on the dicta of federal courts.

The previous Proposition C rollback seizure represents

a type of tax levy—and justiciable interest—distinct from

the two taxes subsequently imposed by the September 15,

1987 order. The courts’ reasoning that somehow property

taxpayers waived their right to intervene to fight these

significant tax increases simply because they did not chal-

lenge the relatively inconsequential rollback seizure is

erroneous. It is analogous to asserting that because Farmer

Jones did not sue the tractor manufacturer when his rig

cut off his finger in 1957, he cannot sue the manufacturer

when the tractor tears off his arm in 1987.

The courts’ analysis of the assumed forewarning effect

of the District Court’s July 6, 1987 order also is insightful.

Presumably, all Kansas City area taxpayers are to take

speculative legal action based on a trial court’s expressed

“intention” to raise taxes. But would the District Court

seriously have considered a taxpayer intervention plea

on July 7, 1987? Who should sue? What would be the

prayer? The conjecture is endless, as would be the vol-

ume of “protective” motions to intervene necessary to

safeguard all contingent, even remote, taxpayer interests.

How can someone challenge the validity of a judicially-

imposed tax if it has not yet been established in some

detail? Even after September 15, 1987, subsequent modi-

fying orders continued to change the use, nature and im-

plementation of the court’s taxes.‘

What little news media coverage existed only ampli-

fied the confusion. The record below consisted of but

one newspaper article that provides a perfect illustration

of the type of ambiguous and contradictory “notice” given

taxpayers as to how, what and when their interests “would

be affected” by court action. School officials and plain-

tiffs’ counsel randomly, even erroneously, speculated on

the magnitude and types of taxes to be expected from the

District Court, to the point of suggesting that a property

tax increase would be less likely than an income surtax.

While the July, 1987 order and article mentioned a possible

earnings tax or surcharge, neither informed taxpayers that

a massive court-ordered $1.95 property tax increase would

be forthcoming.

The bizarre circumstances of this case do not provide

the concrete indicia of clearly-delineated court action re-

quired by NAACP v. New York, 413 U.S. at 366-67. Peti-

tioners’ ten-day-old request for intervention was timely.

B. Petitiouers Satisfied All Other Requirements

For Intervention Of Right Under Rule 24(a) (2).

Neither court below questioned Petitioners’ ability to

satisfy the basic requisites for intervention of right. See

Wright, Miller & Kane, Federal Practice and Procedure:

4. By analogy, taxpayers’ judicial challenges to a legisla-

tive taxation scheme would not be ripe until the legislative body

had actually enacted the body of law subject to challenge. One

could not file suit simply on the basis of reported committee

hearings, amendments, floor debates, etc.

Civil 2d Section 1908 at 262 (2d ed. 1986); Corby Recrea-

tion, supra, 581 F.2d at 176; Meyer Goldberg, Inc. of Lorain

v. Goldberg, 717 F.2d 290, 292 (6th Cir. 1983). Petitioners’

property interest in the court-ordered tax liability is un-

controverted. Donaldson v. United States, 400 U.S. 517,

531 (1971). The impairment of this interest resulting

from any affirmance of the judicial property taxation

scheme is likewise certain. Finally, Petitioners’ financial

interests cannot be adequately represented by the exist-

ing parties in the litigation since all litigants, including

joint and several tortfeasor the State of Missouri, benefit

from the creation and implementation of a court-ordered

or -approved property tax to generate supplemental reve-

nues for funding the State’s and the KCMSD’s remedial

desegregation responsibilities. Trbovich v. United Mine

Workers of America, 404 U.S. 528, 538 n.10 (1972).

These conclusions were validated by the District

Court’s recent decision to permit taxpayer intervention

in the remanded desegregation proceedings to pursue a

full refund of the unconstitutional income tax surcharge

collections.

II.

THE LOWER COURTS’ ERRONEOUS DENIAL OF

PETITIONERS’ INTERVENTION INFRINGED PE-

TITIONERS’ FUNDAMENTAL RIGHT TO PRO-

TECT THEMSELVES FROM AN UNCONSTITU-

TIONAL SEIZURE OF THEIR PROPERTY BY A

FEDERAL JUDGE’S UNPRECEDENTED DECISION

TO LEVY PROPERTY TAXES.

Petitioners have pursued their appeal in this case to

challenge the constitutionality of judicial taxation. Their

objective is to stop the tax and protect their property;

they are not-in this litigation solely to establish Rule 24

precedent. Recognizing the limitations of their status in

the certiorari process, Petitioners nevertheless offer these

insights into judicial taxation issues of “exceptional im-

portance.” (App., A53.)

A. The Judicial Taxation Scheme Constructed

By The Lower Courts Exceeds The Limita-

tions On The Federal Judiciary’s Power Under

2. Article III And Contravenes Fundamental

Principles Of Constitutional Self-Governance.

The lower courts have concluded that the federal

judiciary is empowered under Article III of the Consti-

tution to levy taxes in order to remedy constitutional

wrongs.

Before we readily accept this breathtaking expansion

of judicial authority, it is imperative that we recognize

the Framers’ creation of a federal judicature designed

to “always be the least dangerous” branch of government

“to the political rights of the constitution.” The Fed-

eralist No. 78 (Hamilton). The judiciary was to have

“no influence over either the sword or the purse, no

direction either of the strength or of the wealth of the

society, and [could] take no active resolution whatever.

It may truly be said to have neither Force nor Will,

but merely judgment; and must ultimately depend upon

the aid of the executive arm even for the efficacy of

its judgments.” Id. Neither the history of our experi-

ment in self-government nor relevant Supreme Court

precedent authorize the federal courts to take such a

dramatic course of political action as that taken by the

lower courts in this case.

1. Taxation principles.

A first principle of American political thought, a

premise forwarded by the philosopher John Locke which

permeates both the Declaration of Independence and the

‘United States Constitution, is that the power of the state

is justified by the consent of the governed. Locke’s

consent theory served as a cornerstone for numerous

written compacts central to this nation’s political and

legal development, including the Mayflower Compact,

colonial charters, and the Declaration of Independence.

The concept of representative taxation was simply a par-

ticular application of the consent theory, with roots deep

in English constitutional history.° Locke is credited with

| delivering “the first great statement of fiscal limitation,”

J. Adams, Secrets of the Tax Revolt at 26 (Harcourt

Brace 1984), viz., the legislative branch “must not raise

taxes on the-property of the people without the consent

of the people, given by themselves or their deputies.”

J. Locke, The Second Treatise on Government at 81

(Bobbs-Merrill ed. 1952).

“To the extent that taxation and representation did

reflect the will of those persons who bore the principal

burden of paying taxes, the English and American sys-

tems were, in truth, a matter of voluntary giving.” F.

McDonald; Novus Ordo Seclorum: The Intellectual Origins

of the Constitution at 26-27 (University Press of Kansas

1985). The representative nature of the gift, or tax, is

of crucial importance. “[I]t was the pivotal point in ‘

5. See The Massachusetts Resolves of October 29, 1765:

“Resolved, that no Man can justly take the Property of another

without his Consent: And that upon this original Principle the

Right of Representation in the same Body, which exercises the

Power of making Laws for levying Taxes, which is one of the

main Pillars of the British Constitution, is evidently founded.”

bringing about the American Revolution, and was subse-

quently incorporated into every constitution in the United

States.” Id. at 28. In a speech on the Declaratory Bill,

William Pitt was most eloquent: “Taxation and repre-

sentation are inseparable: this position is founded on

the laws of nature; it is itself an eternal law of nature;

for whatever is a man’s own, is absolutely his own;.. .

Taxation and representation are coeval with, and essen-

tial to, this constitution.” Bristol (England) Gazette,

Mar. 24, 1774 (speech of William Pitt on the Declaratory

Bill).

Thomas Jefferson cohered these principles in the

Declaration of Independence with the affirmation “Gov-

ernments are instituted among Men, deriving their just

powers from the consent of the governed.” Jefferson

cited the tyrannical King George III “For imposing Taxes

on us with out our Consent” and “For taking away our

Charters, abolishing our most valuable Laws, and altering

fundamentally the Forms of our Governments.”

Representative taxation eventually found its way into

the document formed in Philadelphia in the summer of

1787. Where the Articles of Confederation had given

the central government no power to levy taxes, the new

Constitution provided that “The Congress shall have

Power ... To lay and collect Taxes .. . to pay the Debts

and provide for the common Defence and general Wel-

fare of the United States.” U.S. Const. art. I, Section 8.

Nowhere in the Constitution is the federal judiciary em-

powered to “lay and collect Taxes” of any kind or for any

purpose. Such would be incompatible with a federal

judicature intended to have “no influence over either the

sword or the purse,” the branch intended to have “neither

Force nor Will, but merely judgment.” The Federalist

No. 78, supra. Chief Justice John Marshall ratified the

constitutional primacy of representative taxation in Provi-

dence Bank v. Billings and Pittman, 29 U.S. (4 Pet.) 514

(1830), when he stated that “the interest, wisdom and

justice of the representative body, and its relations with

its constituents, furnish the only security against unjust

and excessive taxation, as well as against unwise taxation.”

Id. at 563.

The decisions of this Court have consistently safe-

guarded the principle of representative taxation. In Rees

v. City of Watertown, 86 U.S. (19 Wall.) 107 (1873), the

Supreme Court stressed:

This power to impose burdens and raise money is the

highest attribute of sovereignty, and is exercised, first,

to raise money for public purpose only; and, second,

by the power of legislative authority only. It is a

power not extended to the judiciary. Especially it is

beyond the power of the Federal judiciary to assume

the place of a State in the exercise of this authority

at once so delicate and so important.

Id. at 116. See Meriwether v. Garrett, 102 U.S. 472, 512

(1880) (Field, J., concurring) (“The levying of taxes is

not a judicial act. It has no element of one. It is a high

act of sovereignty, to be performed only by the legislature

upon considerations of policy, necessity, and the public

welfare.”). See also Yost v. Dallas County, 236 U.S. 50

(1915); Thompson v. Allen County, 115 U.S. 550 (1885).

“The substitution of government by the federal judiciary

for local self-government involves dangerous dispropor-

tionality; it sacrifices fundamental democratic values in

order to vindicate particular constitutional rights.” Nagel,

Separation of Powers and the Scope of Federal Equitable

Remedies, 30 Stan. L. Rev. 661, 664 (1978).

One cannot justify unrepresentative judicial taxation

by its objective. Honorable ends do not justify illegit-

imate means. The balance between the valid use and

abuse of judicial authority is extremely delicate. “In

short, judicial self-restraint and judicial power seem to

be the opposite sides of the same coin: it has been by

judicious application of the former that the latter has

been maintained. ... [Judicial power] has been main-

tained by a wise refusal to employ it in unequal combat.”

R. Tresolini, American Constitutional Law at 65 (2d ed.

1965) (quoting J. Roche, Judicial Self-Restraint, 49 Amer.

Pol. Sci. Rev. at 722 (Sept. 1955)). The lower courts’

employment of judicial power to tax Petitioners threatens

the integrity of judicial authority itself.

2. The lower courts’ levying of property taxes

directly conflicts with this Court’s Griffin

decision.

Both the District Court and the Court of Appeals

seize their power to impose unrepresentative tax increases

by misstating and misapplying this Court’s holding in

Griffin v. County School Board of Prince Edward County,

377 U.S. 218 (1964). The courts’ analyses starkly illus-

trate the dangers of the slippery slope mechanism of

judicial interpretation, incrementally vesting the judiciary

with ever-expansive powers, leading ultimately to a ju-

dicially-recognized judicial power to impose unrepresen-

tative taxes without any constitutional support.

In Griffin, the Supreme Court held that local county

officials could not circumvent integration of the public

schools under Brown v. Board of Education, 347 U.S. 483

(1954), by refusing to open and operate tax-supported

public free schools. The Court noted that the county

tg ann

board of supervisors had “the special responsibility to

levy local taxes to operate public schools.” 377 U.S. at

232. The Court concluded that the trial court “may if

necessary to prevent further racial discrimination, require

the Supervisors to exercise the power that is theirs to

levy taxes to raise funds adequate to reopen, operate,

and maintain without racial discrimination a public school

system in Prince Edward County like that operated in

other counties in Virginia.” Id. at 233 (emphasis added).

It is manifest the Court did not itself order a tax levy

increase, nor did the. Court authorize the trial court to

increase property tax levies or impose income tax sur-

charges for desegregation programs of its own contriv-

ance. Most importantly, the Griffin Court did not state

that a local property tax “may be increased” by a federal

trial court “if necessary to raise funds adequate to...

operate” a nondiscriminatory public school system, as

the District Court concluded in its September 15, 1987

order. (App., A78.)

This more restrained interpretation of Griffin is per-

fectly consistent with the Supreme Court’s decision just

three years before in Moses Lake Homes, Inc. v. Grant

County, 365 U.S. 744 (1961), a case involving a state’s

evaluation and taxation of federal statutory leaseholds.

A unanimous Court reversed the Ninth Circuit’s decision

to remand the case to the district court to allow the

trial court “to make the necessary adjustment” of dis-

criminatory state taxes levied against federal lessees, and

opined:

The effect of the [Ninth Circuit’s] remand was to

direct the District Court to decree a valid tax for

the invalid one which the State had attempted to

exact. The District Court has no power so to decree.

Federal courts may not assess or levy taxes. Only

the appropriate taxing officials of Grant County may

assess and levy taxes on these leaseholds, and the

federal courts may determine, within their jurisdic-

tion, only whether the tax levied by those officials

is or is not a valid one.

Id. at 752.

In another school desegregation case, Plaquemines

Parish School Board v. United States, 415 F.2d 817 (5th

Cir. 1969), the court duly noted the Griffin precedent

and recognized that it “must be considered a unique

case.” Id. at 833. The Fifth Circuit observed: “The

Prince Edward County schools were closed and the court

direcied that they be reopened and that taxes be levied

and collected to operate them. The subjects of levy,

tax rates, and collection methods were left to the com-

mands of state law under state standards.” Id.

It was not until 1975, in the case of United States

v. Missouri, 515 F.2d 1365 (8th Cir.), cert. denied, 423

U.S. 951 (1975), that a new spin was given to Griffin.

In United States v. Missouri, the trial court ordered the

consolidation of three St. Louis suburban school districts

and, after concluding that none of—the three disparate

tax rates would be sufficient “to effectively operate the

desegregated district,” 515 F.2d at 1371, ordered the new

uniform levy to be set at a rate higher than the highest

voter-approved rate of the consolidated districts.

The Eighth Circuit reduced the new consolidated dis-

trict rate to the highest voter-approved rate of the three

districts. As support, the Eighth Circuit relied on state

taxation and annexation precedent. Id. at 1373. Although

the appellate court did not approve the district court’s

setting of an increased levy, it concluded “[wJe are satis-

fied that the district court had the authority to implement

its desegregation order by directing that provision be made

for the levying of taxes essential to the operation of the

new school district.” Id. at 1372-73.

A decade later, in Liddell v. State of Missouri, 731 F.2d

1294 (8th Cir.), cert. denied, 469 U.S. 816 (1984), the fed-

eral judiciary’s taxation power was expanded slightly

further. There, the district court had ordered an inter-

district remedy and enjoined a scheduled reduction in the

City of St. Louis school board’s operating levy otherwise

required by Missouri’s property tax rollback statute to

the extent the revenue would be needed to fund the

City school board’s share of desegregation costs. The

district court reserved the authority to order an increase

in the district’s property tax levy if revenues were insuf-

ficient to desegregate city schools. 731 F.2d at 1300-01.

The Eighth Circuit affirmed the deferral of the roll-

back and held that the district court’s “broad equitable

powers to remedy the evils of segregation include a nar-

rowly defined power to order increases in local tax levies

on real estate,” id. at 1320, a power to be “exercised only.

after exploration of every other fiscal alternative.” Id.

The Liddell court then read into Griffin the proposition

that “the Supreme Court [had] acknowledged that the

district court may order an increase in taxes to fund

schools where the State has defaulted on its obligations

to provide an equal educational opportunity to all stu-

dents.” Id. The Liddell court reached this conclusion by

reasoning that the Supreme Court in Griffin “did not

limit the scope of its holding by ordering a return to the

previous tax levy or procedures,” but “indicated only that

the tax must be ‘necessary to prevent further racial dis-

crimination.’” Id.

Of course, the consequence of this reasoning contra-

dicts the proffered proposition: the Liddell district court

in effect increased the taxes of a select few taxpayers to

fund the desegregation obligations of the State, obliga-

tions presumably to be shared by all State taxpayers.

Moreover, this reasoning misconstrues Griffin, a fact not

lost on one of the dissenters in Liddell who observed that

the Supreme Court in Griffin had simply ordered school

officials “to restore a tax illegally abolished, but spe-

cifically left the manner of levy and the amount and the

means of collection to procedures under state law and

standards.” Id. at 1332 (Gibson, J., dissenting). This in-

terpretation is buttressed by the Court’s analysis in Moses

Lake Homes, Inc. v. Grant County, supra, where this

Court concluded that the federal judiciary’s jurisdiction

was limited to determining whether taxes levied were

valid and did not extend to the assessment and levy func-

tions.

The Liddell dissent most succinctly framed the issue

in these terms:

I have no quarrel with the proposition that, with

proper findings that particular programs are necessary

to remedy a constitutional violation that has been

found to exist, a district court has the power to order

the funding of those programs. The order should

simply be in the form, however, to mandate that cer-

tain programs be carried out, and legislative bodies

should be left with the responsibility for structuring

the local or state taxing instrumentalities to achieve

the result required. The federal courts go too far in

mandating specific taxing procedures.

Id. (Gibson, J., dissenting). See id. at 1333 (Bowman,

J., dissenting) (“I join in... [the] well-reasoned dissent

concerning . . . the singular inappropriateness in our Con-

stitutional system of a federal court’s ordering state and

local taxing authorities to impose specific tax increases.”’).

Now we find the lower courts relying on Griffin for

the proposition that a federal court can double a property

tax levy for taxpayers not parties to the federal litigation,

individuals who have never been held liable for the con-

stitutional violations of the party defendants. If the lower

courts’ taxation decisions are upheld, there is no principled

reason for limiting a federal court’s creation and imposi-

tion of any tax to remedy any constitutional wrong.°

The Court of Appeals’ entire discussion affirming

the court-ordered tax levy is devoid of any constitu-

tional provision, historical argument, or apposite Supreme

Court precedent that support the premise that the federal

judiciary is expressly empowered under Article III to

impose taxes to generate revenues to fund court-ordered

remedies. The opinion alleges a judicial power “to de-

termine a remedy,” but goes no further to cite historical

support for a judicial power to legislate a new tax to fund

a remedy. ~App., A30-A31.) The opinion submits that

the Tenth Amendment and the principle of separation of

powers “simply have no bearing on the district court’s

options in enforcing its judgment” regarding the judicial

6. Interestingly, in Reece v. Gragg, 650 F. Supp. 1297 (D.

Kan. 1986), a district court enjoined the further unconstitutional

operation of an overcrowded county jail, but refused to order

capital expenditures for the construction of a new jail, stating:

This Court has no reservoir of funds nor any suggested

method of raising funds for the construction of a minimally

sufficient jail. The Court has no architects, engineers or

general contractors standing by. Even if this Court could

order a new jail built, it would not do so. A decision such

as that is a decision to be made by the political process, not

by judicial fiat.

650 F. Supp. at 1306.

property tax (id., A31), but fails to explain’ why one or

both of these constitutional doctrines support the reversal

of the judicial income tax surcharge, which was deemed

to have “invaded the province of the legislature.” (Id.,

A44.)

The judicial levying of taxes circumvents the political

process; it substitutes a direct assessment of damages, in

the form of taxes, against those not parties to the litiga-

tion in lieu of a judgment against the constitutional tort-

feasors, the political entities responsible for resolving po-

litical crises like the one facing the KCMSD. Griffin can-

not be viewed as bestowing a broad grant of power to the

federal judiciary to levy new taxes to fund court-ordered

remedies. A federal court’s equitable powers are not un-

limited in matters of state law and taxation. See Milliken

v. Bradley, 433 U.S. 267, 280-81 (1977); San Antonio In-

dependent School District v. Rodriguez, 411 U.S. 1, 40-44

(1973). See also McDowell, A Scrupulous Regard for

the Rightful Independence of the States: Justice Stone

and the Limits of the Federal Equity Power, 7 Harv. J. L.

& Pub. Policy 507, 507-08 (1984).

3. Application of joint and several liability

principles, in lieu of judicial property taxa-

tion, is the appropriate judicial remedy in

this case.

Obviously, the lower courts did have an alternative to

levying their own property taxes to fund the desegregation

obligations of the State of Missouri and the KCMSD. The

7. While the opinion discusses some practical considerations

for this distinction, there is no constitutional justification cited

for permitting the creation of a judicial property taxing power

as an option in enforcing court judgments but not a judicial

income taxing power.

courts could, and should, have assessed the necessary de-

segregation costs against its two joint and several tort-

feasors and let the political processes determine how rev-

enues to pay the damages will be raised.

In his dissent against the property tax, Chief Judge

Lay pointed out that liability for desegregation funding

between the State and the KCMSD “was based upon a

finding of joint and several tortfeasors.” (App., A50.)

Judge Lay concluded:

Thus, I do not feel that it was necessary for the dis-

trict court or feasible for this court to approve a prop-

erty tax levy by KCMSD to meet its fiscal responsi-

bility. Where other alternatives remain, it is the very

essence of judicial restraint not to go beyond the relief

necessary. ... I therefore would set aside the prop-

erty tax levy ordered by the district court and use

existing legal principles to effect constitutional com-

pliance by holding the state liable for any deficiency

KCMSD cannot contribute under the plan.

(Id., A51-A52.)

The Court of Appeals’ decision relied on State joint

and several liability funding to aid the KCMSD in its an-

ticipated shortfall due to the surcharge reversal. (Id.,

A45.) The court even recognized the availability of State

joint and several funding in the event the court-approved

property tax levy limitation results in insufficient resources

to meet desegregation cosis. (Id., A41 n.18.) Considering

the finding of joint and several liability, the courts’ impo-

sition of property taxes was an erroneous judicial remedy.*

8. The Eighth Circuit majority opinion did recognize the

need to “modify [the property tax scheme’s] future operation

(Continued on following page)

B. Petitioners’ Exclusion As Parties Below

Jeopardized Their Due Process Right To

Challenge The Unconstitutional Seizure Of

Their Property Through A Federal Court-

Ordered Tax.

In its most basic form, due process requires an op-

portunity to be heard “at a meaningful time and in a

meaningful manner.” Armstrong v. Manzo, 380 U.S. 545,

552 (1965). See U.S. Const. amend. V; Mathews v.

Eldridge, 424 U.S. 319, 335 (1976). See Cleveland Board

of Education v. Loudermill, ........ hee Se, “aes , 105

S. Ct. 1487, 1494 (1985) (tenured public employes is

guaranteed notice of the charges against him and an

opportunity to present “his side of the story”). Due

process “incorporates notions of fair notice or warning,”

Postscript Enterprises, Inc. v. Whaley, 658 F.2d 1249,

1254 (8th Cir. 1981); it guarantees an aggrieved party

the opportunity to present a case and have its merits

fairly judged through “some form of hearing” before that

party can be deprived of a protected interest. Logan

v. Zimmerman Brush Co., 455 U.S. 422, 433 (1982) (citing

Board of Regents v. Roth, 408 U.S. 564, 570-71 (1972)).

Although applying the Due Process Clause is an uncer-

tain enterprise, courts must discover what “fundamental

fairness” consists of in a given situation. See Lassiter

v. Department of Social Services of Durham County, 452

U.S. 18 (1981).

Footnote continued—

to more closely comport with limitations upon our judicial au-

thority.” (App., A6.) This modification—empowering the local

school board to set future levy increases without a vote of the

people subject to court approval—still does not remove the con-

stitutional infirmities discussed above. See II.A.1 and II.A.2,

supra.

There was no semblance of fairness or due process

by the District Court when it levied taxes on Petitioners

and then denied their request for intervention. Although

not liable for the constitutional violations complained of,

Petitioners, and other Kansas City area taxpayers sim-

ilarly situated, have been deprived of their property in

the exaction of remedial damages owed by someone else

—and all without ever having had their day in court.

Petitioners’ right to utilize the judicial process to

protect their interests in challenging court-ordered prop-

erty taxes persists. Although Petitioners were allowed

to participate as amici curiae, their present inability to

squarely present to this Court constitutional challenges

to the judicial taxation scheme now in place threatens

their property interests. Even if the State of Missouri

petitions for review of the judicial property tax question

(among numerous other complex desegregation issues),

it is almost certain the State will not be advancing one

of Petitioners’ primary contentions, that the property tax

be reversed and substituted with additional State funding

under joint and several liability principles. Petitioners

must be allowed to present “their side of the story.”

CONCLUSION

For the foregoing reasons, Petitioners respectfully

urge this Honorable Court to grant this Petition for Writ

of Certiorari.

Respectfully submitted,