Amicus Brief — Milliken v. Bradley

bupreine Court, U. &

FILED

IN THE DEC 30 1976

SUPREME COURT OF THE UNF WERSBAT IS cm |

OCTOBER TERM, 1976

NO. 76-447

x *

WILLIAM G. MILLIKEN, Governor of the State of

Michigan, et al.,

Petitioners.

V.

RONALD BRADLEY and RICHARD BRADLEY,

by their Mother and Next Friend, VERDA

BRADLEY, et al.,

Respondents.

x x ~

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

* ~ x

BRIEF OF AMICUS CURIAE,

THE STATE OF TEXAS

x x *

JOHN L. HILL

Attorney General of Texas

DAVID M. KENDALL

First Assistant Attorney Genera!

THOMAS W. CHOATE

Special Asst. Attorney General

P.O. Box 12548, Capitol Station

Austin, Texas 78711

ATTORNEYS FOR THE

STATE OF TEXAS

TABLE OF CONTENTS

INDEX OF AUTHORITIES ......................

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PONE cc ccndcccnndcsccnccscoccscsccesses

QUESTIONS PRESENTED ......................

PUEDE wocntcccencsnees cavevsocecsoesesecss

DISCUSSION

I. ABSENT A FINDING OF A CONSTI-

TUTIONAL VIOLATION IN THE

STRUCTURE OF THE CURRICULUM

AND EDUCATIONAL PROGRAMS IN

THE DETROIT SCHOOL SYSTEM, THE

LOWER COURTS ERRED IN ORDERING

A RESTRUCTURING OF CURRICULUM

AND PROGRAMMING ................0000008:

Il. THE LOWER COURTS ERRED IN

ORDERING DEFENDANTS BELOW IN

THE EXECUTIVE BRANCH OF STATE

GOVERNMENT TO PROVIDE $5.8

MILLION OR MORE IN ADDITIONAL,

UNAPPROPRIATED STATE FUNDS TO

DEFRAY THE COST OF THE RESTRUC-

TURING OF CURRICULUM AND

PROGRAMMING IN THE DETROIT

PEE Seevsnetccceccatwsccnssccnce

INDEX OF AUTHORITIES

Cases Page

Austin Independent School District v. United States,

No. 76-200, Slip Opinion (Dec. 6, 1976) ..................... 5

Bradley v. Milliken, 540 F.2d 229

D> Gi iulisidbubsobebdesdbeniciekebbeeentedeadeecne 6

Davis v. Board of Commissioners of Mobile

I i)

Edelman v. Jordan, 415 U.S. 651 (1974) .......00..0.0000005.. 10

Keyes v. School District No. 1, Denver, Colorado,

521 F.2d 465 (10th Cir. 1975), cert den.

rs EU itccddktuéedsinincctiotescésdedsaduinuns 7

Milliken v. Bradley, 418 U.S. 717 (1974) .. 2... cece 5

National League of Cities v. Usery,

cee Arcee GE a DEED GENOED cc cvecdcctécccocceess voctens 9

Olbrot v. Petrilli, 60 F.R.D. 189 (1973) .... 2.6... ccc eee 8

Passadena City Board of Education v. Spangler,

nD aay OO Gare GEOG CITED cc ccccscccccccsccescocccecss 6

Rizzo v. Goode, __U.S.__, 96 S.Ct. 598 (1976) ... 0.00.00 00088. 9

San Antonio Independent School District v. Rodriquez,

Se Wee BGI Sb cdcerecsdaguccteuncannsessecesciesensncé 9

Swann v. Charlotte-Mecklenburg, 402 U.S.1 (1971)............. 5

Washington v. Davis, 426 U.S. 229 (1976) .... 00... 5

Constitutional and Statutory Provisions

bad cccdicenddéddicucodueherscuiaauehadaanas 2

Rule 42(4), Supreme Court Rules................0..000000002.38

Tenth Amendment to the United States Constitution ....... 7.8.9

Eleventh Amendment to the United States Constitution ....... 9

ueeees Gee, BU G0, BB onc cccccccccccccccncccccvccccesecs 8

een, Genes, Ge GOOG, Gh GG ccc cccccccccccccccccccscesececs s

Mich. Const. 1963, Art. 9, §17 . 2.00. ccc ccc cece ec ccuce s

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1976

** *

NO. 76-447

** *

WILLIAM G. MILLIKEN, Governor of the State of

Michigan; FRANK J. KELLEY, Attorney General of

the State of Michigan; MICHIGAN STATE BOARD

OF EDUCATION, a constitutional body corporate;

JOHN W. PORTER, Superintendent of Public

Instruction of the State of Michigan; and ALLISON

GREEN, Treasurer of the State of Michigan,

Petitioners,

V.

RONALD BRADLEY and RICHARD BRADLEY, by

their Mother and Next Friend, VERDA BRADLEY;

JEANNE GOINGS, by her Mother and Next Friend,

BLANCH GOINGS; BEVERLY LOVE, JIMMY

LOVE and DARRELL LOVE, by their Mother and

Next Friend, CLARISSA LOVE; CAMILLE

BURDEN, PIERRE BURDEN, AVA BURDEN,

MYRA BURDEN, MARC BURDEN and STEVEN

BURDEN, by their Father and Next Friend,

MARCUS BURDEN; KAREN WILLIAMS and

KRISTY WILLIAMS, by their Father and Next

Friend, C. WILLIAMS; RAY LITT and MRS.

WILBUR BLAKE, parents; all parents having

children attending the public schools of the City of

Detroit, Michigan, on their own behalf and on behalf

of their minor children, all on behalf of any person

similarly situated; and NATIONAL ASSOCIATION

FOR THE ADVANCEMENT OF COLORED

PEOPLE, DETROIT BRANCH; BOARD OF

-2-

EDUCATION OF THE CITY OF DETROIT, a

school district of the first class; DETROIT

FEDERATION OF TEACHERS, LOCAL 231,

AMERICAN FEDERATION OF TEACHERS,

AFL-CIO,

Respondents.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SIXTH CIRCUIT

** *

BRIEF OF AMICUS CURIAE, THE STATE OF

TEXAS

** *

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Sixth Circuit, not yet reported, appears in its

entirety in Petitioners’ Appendix, filed herein (at pages

15la-190a in Appendix to Petition for Writ of

Certiorari).

Other opinions and orders delivered in lower courts in

this cause are fully and completely presented in

Petitioners’ Brief.

JURISDICTION

Jurisdiction in this Court is properly invoked by

Petitioners pursuant to 28 U.S.C. §1254(1).

QUESTIONS PRESENTED

I.

Whether, absent a finding of a constitutional violation

in the structure of the curriculum and educational

programs in the Detroit school system, the lower courts

-3-

erred in ordering a restructuring of that curriculum

and programming.

Whether the lower courts erred in ordering

defendants below in the executive branch of state

government to provide $5.8 million or more in

additional, unappropriated state funds to defray the

cost of the restructuring of curriculum and

programming in the Detroit school system.

STATEMENT

The State of Texas files this brief as amicus curiae in

support of Petitioners pursuant to Rule — Supreme

Court Rules.

The comprehensive and detailed Statement of the

Case presented by Petitioners, coupled with the

recitation present in the Opinion of the United States

Court of Appeals for the Sixth Circuit obviates the need

for a restatement in this brief.

The State of Texas files this brief to discuss the two

very important issues involved herein (as reflected in

Questions Presented) and limits its involvement to those

two areas. Texas is certainly mindful of the need for

quality education and equal treatment under the law,

and finds no fault with attempting to achieve those goals

in Detroit or elsewhere. However, the dangerous

prospect of unlimited discretion in the federal judiciary

in these matters warrants the invovlement of the State

of Texas in light of its continuing efforts to protect its

integrity and sovereignty.

-4-

DISCUSSION

I.

ABSENT A FINDING OF A CON-

STITUTIONAL VIOLATION IN THE

STRUCTURE OF THE CURRICULUM

AND EDUCATIONAL PROGRAMS IN

THE DETROIT SCHOOL SYSTEM, THE

LOWER COURTS ERRED IN ORDERING

A RESTRUCTURING OF CURRICULUM

AND PROGRAMMING.

The spectre of the federal judiciary reshaping the

currieulum and programs of an educational system to

satisfy the individual or personal values and judgments

of a particular member or members of the judiciary, the

pronouncements of the United States Court of Appeals

for the Sixth Circuit notwithstanding, in the absence of

any finding of a constitutional infirmity in that

curriculum is both frightening and unacceptable. The

very basic principle of granting relief only where

constitutional or statutory violations are evident is in

great jeopardy if such an unwarranted remedy is

allowed.

This litigation involves the allegation that the schools

in the City of Detroit have been segregated to a degree

that is constitutionally impermissible. A decision has

been made that the allegation was based in fact and that

desegregation must occur. Extensive relief and

remedial action was ordered to rectify this situation.

Unfortunately, the relief was not limited to rectifying

the problem at issue; and the broadbrush treatment

given by the federal courts herein cannot be condoned

anymore than expanding this litigation to involve other

school systems outside the City of Detroit could be

-5-

condoned. Milliken v. Bradley, 418 U.S. 717 (1974).

Simply stated, this Court is faced with a situation

where courts of the federal judiciary have clearly been

unmindful of the well-established principle that the

scope of the remedy is determined by the nature and

extent of the constitutional violation. Swann v-.

Charlotte-Mecklenburg, 402 U.S. 1, 16 (1971). Whether

the relief ordered with respect to the additional

components is good or bad or will even improve the

educational system is immaterial in the absence of a

finding of a constitutional violation in the existing

programs; and a finding that a constitutional violation

exists in the present system in that unlawful

segregation has been shown does not justify the

restructuring (and increased expenditures) ordered

here.

This Court recently remanded Austin Independent

School District v. United States, No. 76-200, to the

United States Court of Appeals for the Fifth Circuit in

light of Washington v. Davis, 426 U.S. 229 (1976). The

lesson to be learned from Washington is even more

applicable to the instant cause. Here, there has been no

finding that the current curriculum and program

structure is discriminatory in any way to any ethnic or

minority group. There has been no finding that some are

provided a particular curriculum or programs which

are denied to others. As with “Test 21” discussed at

length at Washington, all students have the same

chances and exposure in the present school

programming; and there is no reason to believe it is

anything but impartial and adequate.

The United States Court of Appeals for the Sixth

Circuit attempts, partially, to justify its ordering of the

additional educational components with their related

price tags and court ordered partial state financing by

stating:

“Without the reading and counseling

components, black students might be deprived

of the motivation and achievement levels which

the desegregation remedy is designed to

accomplish.” See Sixth Circuit Opinion

reprinted in full in Petitioners’ Appendix to

Petition for Writ of Certiorari, at page 171la.

(Emphasis added.) Bradley v. Milliken, 540

F.2d 229 (6th Cir. 1976).

The United States Court of Appeals for the Sixth Circuit

is clearly willing to take the unwarranted and

impermissible step of ordering the expenditure of

millions of dollars of local funds and millions of dollars

of unappropriated state funds to alter a situation which

it feels “might” cause some future deprivation in an

intangible such as motivation. Furthermore, such relief

is ordered without any finding of constitutional

violation in the present structure. Such judicial

individuality cannot be allowed to stand.

In summary, the courts below have lost sight of the

issue at hand in this litigation. That issue is

desegregation of schools and not the restructuring of

programs. After desegregation has been accomplished

and an appropriate pupil mix is evident, the court

should stop. Pasadena City Board of Education v.

Spangler, __U.S.__. 96 S.Ct. 2697, 2704-2705 (1976).

Additionally, at least one other Circuit Court has also

dealt with this specific issue of restructuring of

programs in addition to transferring pupils in a

desegregation case where there was no finding of

unconstitutionality of the existing program and

correctly stated:

“The clear implication of arguments in

support of the court’s adoption of the Cardenas

= S

-7-

Plan is that minority students are entitled

under the Fourteenth Amendment to an

educational experience tailored to their unique

cultural and developmental needs. Although

enlightened educational theory may well

demand as much, the Constitution does not.”

Keyes v. School District No. 1, Denver,

Colorado, 521 F.2d 465, 482 (10th Cir. 1975),

cert den. 423 U.S. 1066 (1976).

As in Keyes, the fact that the educational components

might be advantageous or meritorious is simply not

justification enough for their inclusion as relief absent a

finding of constitutional deprivation caused by the

existing curriculum.

Il.

THE LOWER COURTS ERRED IN

ORDERING DEFENDANTS BELOW IN

THE EXECUTIVE BRANCH OF STATE

GOVERNMENT TO PROVIDE $5.8

MILLION OR MORE IN ADDITIONAL,

UNAPPROPRIATED STATE FUNDS TO

DEFRAY THE COST OF THE RE-

STRUCTURING OF CURRICULUM AND

PROGRAMMING IN THE DETROIT

SCHOOL SYSTEM.

It is of utmost importance that the sovereignty of the

states comprising this union not be ignored. The Tenth

Amendment to the United States Constitution, stating

that:

“The powers not delegated to the United

States by the Constitution, nor prohibited by it

to the States, are reserved to the States

respectively, or to the people.”

-8-

must not be ignored. The federal judiciary is not, and

was mever intended to be, entirely dominant in its

relations with the states.

“While it is imperative that the federal courts

act diligently to protect those fundamental

rights whenever it appears they are infringed

by the action of a state, it is equally imperative

that those same courts refrain in other

instances from asserting jurisdiction to

intervene in the internal processes of state

government.” Olbrot v. Petrilli, 60 F.R.D. 189,

192 (1973).

The restraint correctly recognized in Olbrot is most

necessary here to insure the continued vitality of the

state sovereignty called for in the Tenth Amendment.

Perhaps no more clear example of abuse visited upon

state sovereignty could be found than in the instant

litigation. Unappropriated state funds have been

ordered to be used for funding of educational

components either in ignorance or disregard of the

constitutionally valid state scheme for appropriation of

funds solely by the state legislature and the state scheme

for school financing. Mich. Const. 1963, Art. 9, §§6, 11

and 17. Thestate scheme for allocation of state resources

has in no way been found to be constitutionally defective;

yet is has been circumvented to a point of being

meaningless. No more essential function of a state could

be imagined than control of its own fiscal matters (so

long as there is no finding of unconstitutionality in the

method used).

This issue of state sovereignty raises grave concern as

to the whole issue of federalism which is essential to our

union. As this Court has observed:

-9-

“where ... the exercise of authority by state

officials is attacked, federal courts must bé

constantly mindful of the ‘special delicacy of

the adjustment to be preserved between federal

equitable power and state administration of its

own law.’ Stefanelli v. Minard .. .” Rizzo v.

Goode, __U.S.__, 96 S.Ct. 598 (1976).

See also San Antonio Independent School District v.

Rodriquez, 411 U.S. 1, 44 (1973). It is clearly a matter of

whether the State of Michigan is to be allowed to control

its own fiscal affairs, absent constitutional violation;

and there is every indication from this Court that such

sovereignty of state should and will be recognized.

National League of Cities v. Usery, __U.S.__, 96 S.Ct.

2465, 2475-2476 (1976).

In addition to the severe blow dealt to the sovereignty

of the State of Michigan pursuant to the Tenth

Amendment by the lower courts, grave concern must

also be expressed at the treatment given protections

afforded the states under the Eleventh Amendment to

the United States Constitution. Here, the lower courts

have shown no hesitancy to raid the public fisc, with

little more than a cursory nod at the Eleventh

Amendment, to the tune of millions of dollars. Such

action taken by the lower courts apparently was

accomplished with almost total disregard to this Court’s

past instructions that desegregation remedies must

take into account the practicalities of the situation at

issue. Davis v. Board of Commissioners of Mobile

County, 402 U.S. 33, 37 (1971). It is obvious that when

the practicalities indicated that the lower courts’

additional education components could not be

implemented out of revenues of the Detroit school

system, the correct focus of refashioning the remedy

was ignored in favor of an unauthorized raid on state

revenues.

-10-

A mention of Edelman v. Jordan, 415 U.S. 651 (1974)

is almost mandatory at this point. The applicability of

Edelman to this cause is most apparent to amicus. The

state defendants here were alleged to have participated

in prior wrongdoing with regard to pupil assignment.

Such wrongdoing, on the part of all defendants, was

alleviated by the lower courts’ extensive orders

reassigning pupils. What, then, is the effect of an award

of state funds for the implementation of educational

components upon which no findings of constitutionality

have been made? Amicus sees such an award as either

one of two possible occurrences. Either the lower courts

found themselves in a bind with respect to financing

programs unrelated to the lawsuit but seeming

meritorious to them and went to the state treasury for

lack of ready funding elsewhere; or the lower courts

have decided to make an award of funds for the

educational components because of the state’s past

action in other areas. Either reasoning is specious. The

first simply cannot be tolerated in light of federalism,

and the second is clearly violative of the principles

pronounced in Edelman v. Jordan, supra.

A decision allowing the lower courts’ order of the

expenditure of unappropriated state funds in direct

contradiction to state law would be intolerable. To allow

a federal court to order the funding of a local program of

this nature from state funds which are unappropriated

certainly expands the power of the federal judiciary. In

a word, the federal court would become a “super

legislature.” If the principles of self-determination and

self-governing through elected representatives (being

mindful of constitutional imperatives) is to have any

meaning, the action at issue in this litigation cannot be

allowed to stand.

-11-

CONCLUSION

For the reasons stated herein, amicus would urge this

Court to remand this cause to the United States Court of

Appeals for the Sixth Circuit with instructions to delete

any orders of expenditures of state funds for the

previously discussed educational components.

Respectfully submitted,

JOHN L. HILL

Attorney General of Texas

DAVID M. KENDALL

First Assistant Attorney General

THOMAS W. CHOATE, Special

Assistant Attorney General

P.O. Box 12548, Capitol Station

Austin, Texas 78711

ATTORNEYS FOR AMICUS

CURIAE, THE STATE OF

TEXAS

CERTIFICATE OF SERVICE

Three copies of the foregoing Brief of Amicus Curiae,

The State of Texas, have been mailed by certified mail,

return receipt requested, to each of the following on this

the __day of December, 1976:

-12-

Frank J. Kelley

Attorney General of Michigan

750 Law Building

525 West Ottawa Street

Lansing, Michigan 48913

Louis R. Lucas

525 Commerce Title Building

Memphis, Tennessee 38103

Nathaniel R. Jones

General Counsel, NAACP

1790 Broadway

New York, New York 10019

Thomas |. Atkins

451 Massachusetts Avenue

Boston, Massachusetts 02116

George T. Rumell, Jr.

724 Ford Building

Detroit, Michigan 48226

Theodore Sachs

1000 Farmer Street

Detroit, Michigan 48226

DAVID M. KENDALL, First

Assistant Attorney General

ee

In the Supreme Court of the United States

Ocroser Term, 1976

No. 76-447

Wuu1aM G. MILLIKEN, ET AL., Appellants

v.

RoNALD BRADLEY, ET AL., Appellees

On Certiorari to the United States Court of Appeals

for the Sixth Circuit

Rosert P. Kane

Pe eenta Departmen

ennsy t

of Justice

Capitol Annex Building

en hoe 17120

(717) 787

Peees of Breow S. Apancs Paorrive, Inc., Wasmineron, D. C.

TABLE OF CONTENTS

PAGE

Interest of Amicus Curiae ................ 1

Argument:

I. The Eleventh Amendment prohibits a

federal court from a state to

spend unappropriated state funds ..... 4

Il. The lower Court’s order violates the

principles of federalism ............. 12

PPT TTT Teer oe 14

TABLE OF CITATIONS

CASES:

Ex parte Ayers, 123 U.S. 443 (1887) ...... 5,8

Chisolm v. Georgia, 2 U.S. 419 (1793) .... a

Cincinnati Soup Co. v. United States, 301 US.

ee ED cectotavecetedcededesces 12

East St. Louis v. Zelby, 110 U.S. 321 (1884) . = 12

Edelraan v. Jordan, 415 U.S. 651 (1974) ...11, 13

Employees v. Department of Public Health and

Welfare, 411 U.S. 279 (1973) ........ 11

Ford Motor Co. v. Department of Treasury,

Bee Gees Ge GED. eeccccececenccs 5, 11

Hagood vy. Southern, 117 U.S. 52 (1886) ... 8

Halderman v. Pennhurst, C.A. No. 74-1345

(Complaint filed May 30, 1974) ...... 2

Hans v. Louisiana, 134 U.S. 1 (1890) ...... 5,8,9

Louisiana v. Jumel, 107 U.S. 711 (1883) .5,6,7,8

McNeil v. Southern Railroad, 202 U.S. 543

COGEED c ccccscctccdsoseeueeneene 10

Murray v. Wilson Distilling Co., 213 U.S. 151

CUED ccccccsccccesescouuuueenene 11

Osborn v. Bank of the United States, 19 U.S.

GB GERD cccccecctsvccencsenanes 5

Pennoyer v. McConnaughy, 140 U.S. 1 (1891) 10

Prout v. Star, 188 U.S. 537 (1902) ........ 10

Scott v. McDonald, 165 U.S. 58 (1897) .... 10

Smith v. Reeves, 178 U.S. 436 (1899) ..... 10

Smyth v. Ames, 169 U.S. 466 (1898) ..... 10

In re State of New York, 256 U.S. 409 (1921) Ii

Steward Machine Co. v. Davis, 301 U.S. 548

GRUEUD cocccvccsécnsscseennnneeeee 12, 13

United States v. Lee, 106 U.S. 196 (1882) ... 5

United States v. Standard Oil Co., 322 US.

oe rrr ee 12

Ex parte Young, 209 U.S. 123 (1908) ..... 10, 11

CONSTITUTIONAL PROVISIONS:

Article I, Section 9, Clause 7 of the United

States Constitution .................. 12

Article 3, Section 24 of the Pennsylvania Con-

GD co cecoccéssesedsesnnnnas 2

Article 9, Section 17 of the Michigan Con-

GD .ccccdescebcenenann. Gla 2

Eleventh Amendment of the United States Con-

Gh 0 6eeesaccenus tue 4,5,9,10

OTHER AUTNORITY:

C. Jacobs, The Eleventh Amendment and

Sovereign Immunity (1972) .......... 4

Interest of Amicus Curiae 1

IN THE SUPREME COURT

OF THE UNITED STATES

October Term, 1976

No. 76-447

WILLIAM G. MILLIKEN, et al.,

Appellants

v.

RONALD BRADLEY, et al.,

Appellees

On Certiorari to the United States Court of Appeals

for the Sixth Circuit

BRIEF AMICUS CURIAE ON BEHALF OF THE

COMMONWEALTH OF PENNSYLVANIA AND

THE NATIONAL ASSOCIATION OF ATTOR-

NEYS GENERAL

INTEREST OF AMICUS CURIAE

Pursuant to Rule 42 of the rules of this Court, the

Commonwealth of Pennsylvania, by its Attorney Gen-

eral, and the National Association of Attorneys Gen-

eral submit this brief amicus curiae. The Common-

2 Interest of Amicus Curiae

wealth of Pennsylvania, like the State of Michigan,

has been, and is presently involved in litigation in

federal courts in which plaintiffs seek relief which

may potentially cost the state millions of dollars to

implement. See, e.g. Halderman v. Pennhurst, C.A.

No. 74-1345 (E.D. Pa. filed May 30, 1974). The

precedent set by the Sixth Circuit Court of Appeals

in this case, allowing a federal district court to order

state defendants, contrary to the United States’ as

well as the state’s own constitutional mandates, to

expend monies in excess of specific appropriations, is

a dangerous one not only to Michigan and Pennsy]l-

vania, but to the continued vitality and preservation

of our federalist system.

Virtually identical provisions of the Constitutions

of Michigan and Pennsylvania prohibit the payment

of money from the state treasury except by lawful ap-

propriation.' These state constitutional provisions

are rendered virtually meaningless if a federal court

is permitted to order the expenditure of unappropri-

ated state monies for its own directed purposes. The

primary function of the Michigan legislature is

usurped by the order below. And the delicate bal-

ance demanded by our federalist form of government

is severely tested by the lower court’s unprecedented

assumption of the prerogatives of the estate itself.

*M.C.L.A. Const. Art. 9, §17 provides:

“No money shall be paid out of the state treasury ex-

cept in pursuance of appropriations made by law.”

Pa. Const. Art. 3, §24 provides in relevant part:

“No money shall be paid out of the treasury, except

on appropriations made by law and on warrant issued

by the proper officers.”

Interest of Amicus Curiae 3

The Commonwealth of Pennsylvania thus has a

strong interest in urging that the usurpation of state

power by the federal courts below be corrected, there

by assuring mutual regard for the respective powers

of the states of this union and the federal judiciary.

4 Argument

ARGUMENT

I. The Eleventh Amendment Prohibits a Federal

Court From Ordering a State To Spend Unappropri-

ated State Funds

The order of the district court, affirmed by the cir-

cuit court, required the State of Michigan to pay fif-

ty percent of the excess costs for implementing spe-

cific educational programs in the Detroit School Dis-

trict. Such relief is barred by the Eleventh Amend-

ment. A federal court simply does not have the pow-

er to order the expenditure of unappropriated state

funds for specific programs mandated by that court.

A brief description and history of the interpretation

of the Eleventh Amendment is necessary to properly

understand the issue in this case. As a result of the

Supreme Court’s opinion in Chisholm v. Georgia, 2

U.5. 419 (1793), and the outcry it produced, see, C.

Jacobs, The Eleventh Amendment and Sovereign Im-

munity, 46-74 (1972), the Eleventh Amendment ”

was formally ratified in January, 1798. Its prohibi-

tion, embodying the principle of state sovereignty, ap-

* The Eleventh Amendment provides:

“The judicial power of the United States shall not

be construed to extend to any suit in law or equity,

commenced or prosecuted against one of the United

Staics by citizens of another State, or by citizens or sub-

jects of any foreign State.”

Argument 5

plies to suits brought by citizens of one state against

another state, as well as to suits brought by citizens

against their own state. Hans v. Louisiana, 134 US.

1 (1890). The prohibitions expressed by the Amend-

ment apply not only in cases where a state is a party

of record, Osborn v. Bank of the United States, 19

U.S. 405 (1821), but also to cases in which the state

is the real party in interest. Ex parte Ayers, 123 US.

443 (1887); Ford Motor Co. v. Department of Trea-

sury, 323 U.S. 459 (1945).

The early history of the Eleventh Amendment is

succinctly summarized by Justice Gray, dissenting in

United States v. Lee, 106 U.S. 196 (1882):

“In those cases in which judgments have

since been rendered by this court against indi-

viduals concerning money or property in which

a state had an interest, either the money was in

the personal possession of the defendants and

not in the possession of the state, or the suit was

to restrain the defendants by injunction from do-

ing acts in violation of the constitution of the

United States.” (Citation omitted.) 106 U.S. at

242.

Thus, the primary purpose of the Eleventh Amend-

ment was to protect states, even though not parties

of record, from actions seeking money actually in the

state treasury and to similarly protect state officials

except when their specific actions were challenged

as violating the United States Constitution.

Louisiana v. Jumel, 107 U.S. 711 (1883), further

developed the protections afforded the states by the

6 Argument

Eleventh Amendment. The State of Louisiana issued

bonds in 1874 and obligated itself to levy annual

taxes On property until the bonds were discharged.

In 1880 a new constitution was adopted by Louisi-

ana which prevented state officials from using the

revenue collected from previous taxes to pay the in-

terest on the bonds falling due in January 1880, or to

pay principal and interest falling due thereafter. Three

bondholders brought suit in federal court claiming

that Louisiana had unconstitutionally impaired their

contracts.

The Supreme Court did not deny that Louisiana

violated its contract. Jd. at 721. But the question ad-

dressed was:

“['W Jhether the contract can be enforced not-

withstanding the constitution, by coercing the

agents and instrumentalities of the State, whose

authority has been withdrawn in violation of the

contract, without having the State itself in its

political capacity a party to the proceedings.”

Id. at 721.

Chief Justice Waite characterized the relief re-

quested as follows:

“The relief asked will require the officers

against whom the process is issued to act con-

trary to the positive orders of the supreme polit-

ical power of the State, whose creatures they

are, and to which they are ultimately responsi-

ble in law for what they do. They must use the

public money in the treasury and under their of-

ficial control in one way, when the supreme pow-

-_——- te ee

Argument 7

er has directed them to use it in another, and

they must raise more money by taxation when

the same power has declared that it shall not be

done.” Id. at 721.

Justice Waite concluded for the Court: “there is

nothing in any of the cases in this court that are re-

lied on which, to our minds, authorizes any such re-

lief as is asked.” Jd. at 724. Jumel’s reasoning com-

pels a finding that the lower courts here exceeded

their constitutional authority by, in effect, abrogat-

ing laws which the people of Michigan have deter-

mined to be necessary for the fiscal control of their

government. Jumel again:

“The remedy sought, in order to be complete,

would require the court to assume all the execu-

tive authority of the state, so far as it related to

the enforcement of this law, and to supervise

the conduct of all persons charged with any of-

ficial duty in respect to the levy, collection, and

disbursement of the tax in question until the

bonds, principal and interest, were paid in full,

and that, too in a proceeding in which the State,

as a State, was not and could not be made a par-

ty. It needs no argument to show that the polit-

ical power cannot be thus ousted of its jurisdic-

tion and the judiciary set in its place. When a

State submits itself, without reservation, to the

jurisdiction of a court in a particular case, that

jurisdiction may be used to give full effect to

what the State has by its act of submission al-

lowed to be done; and if the law permits co-

ercion of the public officers to enforce any judg-

8 Argument

ment that may be rendered, then such co-

ercion may be employed for that purpose. But

this is very far from authorizing the courts, when

a State cannot be sued, to set up its jurisdiction

over the officers in charge of the public moneys,

so as to control them as against the political

power in their administration of the finances of

the State. In our opinion, to grant the relief

asked for in either of these cases would be to ex-

ercise such a power.”” (Emphasis added.) /d.

at 727-28.

Jumel clearly prohibits a federal court from disre-

garding a State’s own constitutional mandates and

from replacing the power of the state legislature to

make appropriations with its own unchecked and

unguarded orders. There can be no doubt that the re-

lief ordered by the lower court runs directly against

the State of Michigan. Its sovereign power to manage

the public fisc cannot be so invaded. Such relief is

barred by the Eleventh Amendment.

The principles enunciated in Louisiana v. Jumel

were reaffirmed in Hagood v. Southern, 117 U.S. 52

(1886), and again in Ex parte Ayers, 123 U.S. 443

(1887). Hans v. Louisiana, 134 U.S. 1 (1890), is

most frequently cited for the proposition that a state

cannot be sued without its consent in federal court

by its own citizens. But the Court’s opinion is also

memorable for its recognition of the inherent and

exclusive powers of state legislatures even when the

legislature fails to discharge the State’s public debts.

“It is not necessary that we should enter up-

on an examination of the reason or expediency

Argument 9

of the rule which exempts a sovereign state from

prosecution in a court of justice at the suit of

individuals. This is fully discussed by writers on

public law. It is enough for us to declare its ex-

istence. The legislative department of a State

represents its policy and its will; and is called

upon by the highest demands of natural and po-

litical law to preserve justice and judgment, and

to hold inviolate the public obligations. Any de-

parture from this rule, except for reasons most

cogent (of which the legislature, and not the

courts, is the judge) never fails in the end to in-

cur the odium of the world, and to bring lasting

injury upon the state itself. But to deprive the

legislature of the power of: judging what the

honor and safety of the state may require, even

at the expense of a temporary failure to dis-

charge the public debts, would be attended with

greater evils than such failure can cause.” 134

USS. at 21.

As in Hans, the legislature of Michigan may risk

the “odium of the world” by not allocating funds

sufficient to assist the Detroit School Board in meet-

ing its obligations. But the federal courts must allow

the Michigan legislature to assume this risk. A fed-

eral court simply cannot compel state officials to

spend monies which the legislature has not appropri-

ated. Such compulsion would run directly against

the state. And the presence of the state itself in a

federal proceeding, is, pursuant to the Eleventh

Amendment, beyond the jurisdiction of the federal

court.

10 Argument

During the final years of the nineteenth century

and the early years of the twentieth century, the

Court continued to develop the principle that the

Eleventh Amendment would not bar a suit against

state officers when their actions were taken pursu-

ant to an unconstitutional statute or were beyond the

authority provided by valid laws. Pennoyer v. Mc-

Connaughy, 140 U.S. 1 (1891); Scott v. McDonald,

165 U.S. 58 (1897); Smyth v. Ames, 169 U.S. 466

(1898); Prout v. Star, 188 U.S. 537 (1902); Me-

Neil v. Southern Railroad, 202 U.S. 543 (1905).

During this period, the Court again recognized in

Smith v. Reeves, 178 U.S. 436 (1899), that the Elev-

enth Amendment barred an action seeking to compel

a state officer to pay a sum certain from the state

treasury.

Ex parte Young, 209 U.S. 123 (1908), is consid-

ered the watershed case on the Eleventh Amend-

ment. The court established that when a state offi-

cial acts pursuant to an unconstitutional statute he is

no longer protected by the state’s sovereignty. An

action in equity seeking to enjoin the enforcement of

an unconstitutional statute is against the office hold-

er in his individual capacity and therefore not barred

by the Eleventh Amendment. Clearly then a state of-

ficial acting under a constitutionally valid statute re-

mains cloaked with the immunity afforded by the

Eleventh Amendment. An injunction against its en-

forcement would necessarily run against the state it-

self. Federal courts are simply without the constitu-

tional power to enter such an order.

The Court continued after Ex parte Young to rec-

ognize the constitutional limitations on the power of

Argument 11

federal courts to entertain actions actually against

a state. In Murray v. Wilson Distilling Co., 213 US.

151 (1909), the Court held that an action could not’

be maintained to compel a state to make specific per-

formance on a contract by a state. Jn re State of New

York, 256 U.S. 409 (1921), extended that principle

to apply to cases which would require the state to

make ‘“‘pecuniary satisfaction for any liability”. Jd.

at 501. .

More recent decisions of this Court convincingly

reject a boundless concept of the power of the fed-

eral judiciary. Ford Motor Co. v. Department of

Treasury, 323 U.S. 459 (1945); Employees v. De-

partment of Public Health and Welfare, 411 U.S. 279

(1973); Edelman v. Jordan, 415 U.S. 651 (1974).

Edelman is perhaps the most important Eleventh

Amendment case since Ex parte Young. This Court

reiterated the canons of Eleventh Amendment juris-

prudence and for the first time attempted to clearly

define the scope of relief not forbidden by the

Amendment's operation. Prospective injunctive relief

requiring officials to cease improper action, even if it

has an ancillary effect on the state treasury is per-

missible. But the order now under review is a re-

markably different matter. The court has not ordered

the State of Michigan simply to cease unconstitution-

al actions. Indeed, neither the method by which

Michigan finances its public schools nor the educa-

tional programs in the City of Detroit have ever been ©

found to be constitutionally inadequate.

The remedy ordered by the lower court is not to

remedy constitutionally deficient programs. The

12 . Argument

court, in effect, made a direct assessment against the

treasury of the State of Michigan to pay for changes

to programs never found to be constitutionally inade-

quate.

| It is precisely such a levy on state funds by a fed-

eral court which the Eleventh Amendment is de-

signed to prohibit.

II. The Lower Court’s Order Violates the Principles

of Federalism

A principle tenet of American democracy is that

only a popularly elected legislature may control the

government’s treasury. Article I, Section 9, Clause 7

of the United States Constitution provides: ““No mon-

ey shall be drawn from the Treasury, but in conse-

quence of Appropriations made by law.” *

This fundamental principle inherent in our gov-

ernment has been frequently recognized by this Court.

East St. Louis v. Zelby, 110 U.S. 321, 324 (1884);

Cincinnati Soup Co. v. United States, 301 U.S. 308,

321 (1937). And in United States v. Standard Oil

Co., 322 U.S. 301 (1947), this Court recognized

that: “Congress, not this court or the other federal

courts, is the custodian of the national purse”. /d.

at 314.

The federal judiciary is similarly restrained with

respect to a state’s treasury. Steward Machine Co. v.

‘See supra, n. 1, for similar provisions of the Michigan

and Pennsylvania Constitutions.

Argument 13

Davis, 301 U.S. 548, 595 (1937); Edelman y. Jor-

dan, 415 U.S. 651 (1974).

Even in Edelman, this Court clearly indicated that

a state’s own power to appropriate the funds in its

treasury could not be abrogated by the ruling of a

federal court. Here, where the federal court has abro-

gated that inherent power of the state, the programs

for which Michigan is forced to pay are not even de-

signed to remedy programs found to be constitution-

ally inadequate. This Court, as in Edelman, must

again conclude that such encroachment by the federal

judiciary on the prerogatives of the state legislature

are contrary to the fundamental principles of our

democratic and federalist system.

14

Argument

CONCLUSION

For the foregoing reasons and authorities, the

Commonwealth of Pennsylvania and the National

Association of Attorneys General respectfully urge

this Court to reverse the order of the Court of Ap-

peals requiring the State of Michigan to pay at least

fifty percent of the excess costs of implementing the

educational component programs mandated by the

District Court.

Respectfully submitted,

JEFFREY COOPER

Deputy Attorney General

J. JUSTIN BLEWITT

Deputy Attorney General

Chief, Civil Litigation

ROBERT P. KANE

Attorney General

Department of Justice

Capitol Annex Building

Harrisburg, PA 17120

(717) 787-3445

NATIONAL ASSOCIATION OF AT-

TORNEYS GENERAL

By: SLADE Groton, President

Attorney General of the State

of Washington

444 N. Capitol Street

Washington, DC 20001

(202) 624-5454