Court filing concerning plaintiff's response to Joshua intervernor's request reconsideration and motion for new trial, Joshua intervernor's motion for relief concerning the Office of Desegregation Management budget, Pulaski County Special School District (PCSSD) motions for approval of middle school, other motions and memorandum attached.

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<dcterms_description>District Court, order; District Court, plaintiff's response to Joshua intervenors' October 1, 2002, letter; District Court, plaintiff's response to Joshua intervenors' motion for reconsideration and motion for new trial; District Court, Joshua intervenors' supplement to motion; District Court, two orders; District Court, the Joshua intervenors' motion for relief concerning the Office of Desegregation Management budget; District Court, the Joshua intervenors' memorandum concerning the Office of Desegregation Management budget; District Court, order; District Court, Pulaski County Special School District (PCSSD) motion for approval of middle school site; District Court, memorandum in support of Pulaski County Special School District (PCSSD) motion for approval of middle school site; District Court, motion for hearing regarding relevance of 28 U.S.C. 455 to the present proceedings; District Court, the Joshua intervenors' motion to stay reduction of Office of Desegregation Management staff; District Court, order; District Court, plaintiff's response to Joshua intervenors' motion for hearing regarding the relevance of 28 U.S.C. 455 to the present proceeding; District Court, memorandum brief in support of plaintiff's response to Joshua intervenors' motion for hearing regarding the relevance of 28 U.S.C. 455 to the present proceeding; District Court, order denying motion for hearing regarding relevance of 28 U.S.C. 455 to the present proceedings; District Court, notice of filing, Arkansas Department of Education (ADE) project management tool This transcript was create using Optical Character Recognition (OCR) and may contain some errors. UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT, Plaintiff, vs. * * * * -PULASKI COUNTY SPECIAL SCHOOL * DISTRICT NO. 1, et al., * 4:82CV00866 u.fo1{k,~CQRT EASTERN DISTRICT ARKANSAS OCT O l 2002 JAME~~ l!:ly: ~ 2 - , . Defendants, * * RECEIVED MRS. LOREN JOSHUA, et al., * lntervenors, KATHERINE KNIGHT, et al., lntervenors, * * * * OCT - 3 2002 OFFICE OF DESEGREGATION MONITORING ORDER Attached is a copy of a letter from Mr. Walker dated October 1, 2002. presume it should be treated as a motion of some kind. Accordingly other counsel of record may respond within the time permitted by the Federal Rules of Civil Procedure. IT IS SO ORDERED. Dated this 1st day of October, 2002. THIS DOCUMENT ENTERED ON GOCKET SHt'.:ET !N COMPLIANCE ~vv i1r.~i RMuLi::: 58 AND'C'R~ gr. RCF ,.,, ,,.., ,--.,( ' - - - - - - v. ___ - 0 -- - - - - 6 8 0 JOHN W. WALKER SHAWN CHILDS JOHN W. WALKER, P.A. ATTORNEY AT LAw 1 723 BROADWAY LITTLE ROCK, ARKANSAS 72206 TELEPHONE (501) 3743758 FAX (501) 3744187 October 1, 2002 Honorable Judge William R. Wilson United States District Court 600 West Capitol, Suite 423 Little Rock, AR 72201 I Re: Little Rock School v. Pulaski County School Case No. 4:82CV00866 Dear Judge Wilson: OCT - 2 2002 OFACE OF DESEGREGATION MONITORING OF COUNSEL ROBERT McHENRY. P.A. DONNA J. McHENRY 8210 HENDERSON ROAD LITTLE ROCK. ARKANSAS 72210 PHONE: (501) 372-3425 FAX (501) 372-3428 EwuL: mchenryd@swbell.net On page 172 of your Order of September 13, 2002, you determine a compliance remedy with respect to the Joshua Intervenors, Section D. You also require the ODM to monitor LRSD's compliance with Section 2. 7.1. May I bring to your attention that the remedy being imposed is not preceded by any court order determining and defining the parameter of Joshua's monitoring. Those issues were not before the Court. The Court now determines that Joshua must monitor and must immediately bring to the LRSD 's attention all problems that are detected as the court has determined those problems to be. In doing so, the Court seems to impose a greater burden upon Joshua than it has imposed upon the Office of Desegregation Monitoring. I, therefore, would like to request that the Court define the nature of the monitoring that it expects ofJoshua, i.e. access to information by Little Rock, cost of production of such information, access to staff responsible for fulfilling the obligations (must this be done in writing with communication directed to LRSD counsel), and so forth. I believe that it would be appropriate for the Court to spell out the obligations which it now imposes upon Joshua and the legal basis therefor in view of the fact that the remedy defined was not sought by LRSD or any party. I also note that LRSD is not required to inform Joshua of anything set forth on pages 170 through 1 72 except to provide a compliance report on or before March 15, 2004. I must also object to Court's imposing monitoring requirements upon Joshua that were contemplated to be the responsibility of the ODM. The Court's comments indicate that it does not forsee or require a continued responsibility for monitoring of the intensity which the Court of Appeals for the 8th Circuit required. In this respect, we note that the Court created the ODM and expected the ODM to carefully monitor on a daily basis, full-time, the activities of the Little Rock Page 2- Letter to Judge Wilson October 1, 2002 and other school districts. By placing the responsibility that you appear to place on Joshua, unless clarification otherwise provides, the Court is shifting the required monitoring from the ODM to Joshua. We do not believe that to be fair or reasonable. Before your final order is entered, and becomes appealable, I respectfully request a hearing on this matter so that an appropriate record on the issues of the role of ODM monitoring and Joshua monitoring may be fully developed. JWW:js cc: All Counsel of Record Ms. Ann Marshall IN THE UN1TED STATES DISTRJCT COURT EASTERN DISTRJCT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRJCT V. NO.4:82CV00866 WRW PULASKI COUNTY SPECIAL SCHOOL DISTRJCT NO. 1, ET AL MRS. LORENE JOSHUA, ET AL KA THERJNE KNIGHT, ET AL RECEIVED OCT - 8 .too2 OFFICE OF DESEGREGATION MONITORING PLAINTIFF'S RESPONSE TO JOSHUA INTERVENORS OCTOBER 1, 2002 LETTER PLAINTIFF DEFENDANTS INTER VEN ORS INTER VEN ORS For its response to the Joshua Intervenors' ("Joshua") October 1, 2002 letter, Plaintiff Little Rock School District ("LRSD") states: 1. For more than decade, Joshua has reported to the Eighth Circuit Court of Appeals and to the District Court that it was engaged in the process of monitoring LRSD's compliance with LRSD's various desegregation obligations. At one oral argument, counsel for Joshua introduced a number of Joshua monitors to the panel of the Court of Appeals. 2. The 1998 Revised Desegregation and Education Plan formalized a process for resolving any desegregation compliance problems which were discovered during the course of Joshua's monitoring. The obvious purpose of that process, which is found beginning at 8.2 of the Revised Plan, was to allow the quick resolution of any compliance issues for the benefit of both the - Joshua class members and the LRSD. 3. There is nothing on page 172 of the Court's September 13, 2002 Order which imposes upon the Joshua Intervenors any obligations which are not contained in the Revised Desegregation and Education Plan or inherent in the class representatives' and class counsel's obligations to the class members. 4. The Court's September 13, 2002 Order followed weeks of litigation about issues which Joshua did not raise with the LRSD during the term of the Revised Plan. By requiring that Joshua and LRSD follow the "process for raising compliance issues" set forth in 8.2, et. film. of the Revised Plan, the Court is simply requiring the parties to abide by the terms of their own agreement. 5. TheLRSD can find in the Court's Order no basis for Joshua's argument that the Court has somehow imposed "a greater burden upon Joshua than it has imposed upon the Office of Desegregation Monitoring." The LRSD does not read the Court's Order as "imposing" any burden upon either Joshua or the ODM which did not exist for years prior to the Court's Order. 6. The Court should decline Joshua's request "for the Court to spell out the obligations which it now imposes upon Joshua." Nothing is required of Joshua that Joshua should not have been doing all along. The Court has simply let the parties know that in addition to 2.7.1 of the Revised Plan, their agreement with respect to the resolution of compliance issues remains viable. The Court's Order continues a sensible and efficient system for resolving compliance issues and puts Joshua on notice that objections raised for the first time on April 15, 2004 which were not raised pursuant to the compliance process could be subject to an argument that those issues have been waived. 7. The Court should require that any future requests for relief submitted by Joshua should be placed in the form of a Motion and filed pursuant to the Federal Rules of Civil Procedure and the local rules of this Court. WHEREFORE, for the reasons set forth above, Joshua's letter/motion of October 1, 2002 should be denied. Respectfully submitted, LITTLE ROCK SCHOOL DISTRJCT FRJDA Y, ELDREDGE &amp; CLARK Christopher Heller (#81083) John C. Fendley, Jr. (#92182) 2000 Regions Center 400 West Capitol Little Rock, AR 72201-3493 (501) 376-2011 CERTIFICATE OF SERVICE I certify that a copy of the foregoing has been served on the following people by depositing a copy of same in the United States mail on October 7, 2002. Mr. John W. Walker JOHN W. WALKER, P.A. 1723 Broadway Little Rock, AR 72201 Mr. Sam Jones Wright, Lindsey &amp; Jennings 2200 Nations Bank Bldg. 200 West Capitol Little Rock, AR 72201 Mr. Steve Jones JACK, LYON &amp; JONES, P.A. 425 W. Capitol, Suite 3400 Little Rock, AR 72201-3472 Mr. Richard Roachell Roachell Law Firm 11800 Pleasant Ridge Road, Suite 146 P. 0 . Box 17388 Little Rock, AR 72222 Ms. Ann Marshall Desegregation Monitor 1 Union National Plaza 124 W. Capitol, Suite 1895 Little Rock, AR 72201 Mr. Dennis R. Hansen Office of the Attorney General 323 Center Street 200 Tower Building Little Rock, AR 72201 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT V. LR-C-82-866 PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL MRS. LORENE JOSHUA, ET AL KA THERINE KNIGHT, ET AL RECEIVED OCT - 8 2002 OFFICEOF DESEGREGATIO.MONITORING PLAINTIFF DEFENDANTS INTER VEN ORS INTER VEN ORS PLAINTIFF'S RESPONSE TO JOSHUA INTERVENOR'S MOTION FOR RECONSIDERATION AND MOTION FOR NEW TRIAL Plaintiff Little Rock School District (hereinafter "LRSD") for its Response to Joshua Intervenor's (hereinafter "Joshua") Motion for Reconsideration and Motion for New Trial states: The LRSD will respond to each numbered paragraph of Joshua 's Motion for Reconsideration in tum. 1. The Court's use of the term "supervision" on page 2 its September 13, 2002, Memorandum Opinion (hereinafter "Opinion") was appropriate. It is common for a school district implementing a court ordered desegregation decree to be referred to as being under court "supervision." See Freeman v. Pitts, 503 U.S . 467, 471 (1992)("The DCSS has been subject to the supervision and jurisdiction of the United States District Court for the Northern District of Georgia since 1969 . .. " (emphasis supplied)). The Office of Desegregation Monitoring ("ODM") acted under the authority of the Court to supervise the LRSD. 2. Evidence related to Joshua's failure to raise compliance issues during the term of the LRSD's Revised Desegregation and Education Plan (hereinafter "Revised Plan") was relevant to the Board's good faith, to assist the Court in interpreting the Revised Plan, and to the Board 's estoppel defense. 3. The ODM works for the Court, and it is entirely appropriate for the Court to define its role and for the Court to take into account the LRSD's position with regard to ex parte contact between the Court and ODM. 4. Joshua cannot blame their failure to come forward with evidence on the Court's focus on "brevity and substance." In any event, Joshua agreed to narrow the issues and the time limits imposed by the Court and cannot now be heard to complain. See Tr. Dec. 11 , 2001 , pp. 36-37. 5. The LRSD denies that footnote 15 on page 9 gives the impression that Joshua counsel have been involved in this case since 1982. The record is clear that Joshua intervened ' only after the LRSD prevailed in this case. While the 1989 Settlement Agreement did also resolve the Clark and Cooper cases, the Court is correct that this is a 20 year-old case. 6. The Court correctly noted that the claims for relief and remedies sought differ in the present case from Clark. Clark was simply a continuation of the Cooper case filed in 1956 asking that "an injunction be issued against continued segregation of the races in the Little Rock public school system." Aaron v. Cooper, 243 F.2d 361 , 362 (8th Cir. 1957). The LRSD filed this case in 1982 seeking consolidation of the three Pulaski County school districts based on interdistrict constitutional violations by the other districts and the State of Arkansas. See LRSD v. PCSSD, 584 F.Supp. 328 (E.D. Ark. 1984). The LRSD denies that either the late Honorable Henry Woods or Special Master Aubrey McCutcheon found that the LRSD continued to unlawfully discriminate against African-American students. 7. The LRSD denies that the information in footnote 47 on pages 26 and 27 is inaccurate. It is entirely appropriate for the Court to evaluate and comment on ODM's productivity. Nothing in the Court's opinion suggests that the Court has violated or intends to violate the Eighth Circuit's mandate. 8. The LRSD denies that the ODM has been in an "advisory position to the LRSD" since December 27, 1996. The ODM returned to its monitoring role at the conclusion of the 2 Revised Plan's transition period. See Revised Plan, 10. Nothing in the Court's opinion suggests that counsel for Joshua was to take over the ODM's monitoring responsibilities. Counsel for Joshua was obligated to monitor the LRSD based their ethical duty to their clients and their implied contractual duty to the LRSD. 9. The LRSD denies that the Court's discussion of Joshua's 1996 request for attorneys' fees indicates bias or hostility toward counsel for Joshua, implies collusion between the lawyers, suggests Judge Wright did not know the tenns of the settlement, complains unfairly that a matter on appeal should not be resolved by the parties, suggests that Joshua's counsel agreed to assume the role of ODM, or holds counsel for Joshua to public contempt for being paid. As to counsel for Joshua's attempt to justify the monito.ring fees paid by the LRSD, the LRSD denies that counsel for Joshua attended "hundreds of meetings" with school District officials, that counsel for Joshua was ever "threatened with arrest," and that the LRSD revised its policies because of counsels' "persistence and vigor." The LRSD also denies the implication that - counsel for Joshua was responsible for the additional funding the three Pulaski County districts receive from the State by virtue of litigation related to the 1989 Settlement Agreement. While the discussion of professional fees is not directly related to the issues before the Court, the Court was free to include this discussion in its opinion. 10. The LRSD denies that the testimony ofDrs. Walberg and Armor was inapposite to the issues before this Court. Their testimony provides the context in which the LRSD and Joshua agreed to the Revised Plan and the basis on which the Court approved the Revised Plan, both of which are relevant to interpreting Revised Plan 2.7. 11 . The LRSD denies that there is no evidentiary basis for the Court's finding that ODM and Joshua did not object to the LRSD's Interim Compliance Report. Dr. Bonnie Lesley testified to this fact (Tr. Nov. 19, 2001 , p. 287), and it is stated in the introduction to the LRSD's Final Compliance Report (CX 870, p. iv.). 3 12. The LRSD denies that the Court was required to share with the parties any criticisms it had of ODM's June 14, 2000, discipline report. The LRSD's Interim Compliance Report was admitted into evidence as CX 869. The LRSD denies that the issue of discipline was not ripe for objection after the LRSD filed its Interim Compliance Report. Dr. Linda Watson testified that ODM and Joshua were regularly provided copies of the District's Disciplinary Management Reports. See Tr. Nov. 19, 2001, p. 83. 13. The Court is correct that Joshua failed to present any evidence that the LRSD was not in substantial compliance with its obligations regarding faculty and staff, student assignment, special education and related programs, parental involvement and school construction and closing. Joshua did not present any evidence on these issues:precisely because it abandoned those arguments. See Tr. Dec. 11, 2001 , pp. 36-37. Joshua cannot now be heard to complain that the Court did not allow Joshua to present evidence on those issues. 14. The Court found that Revised Plan 8.2 did not expressly require Joshua to raise compliance issues pursuant to the process set forth therein. See Memorandum Opinion, p. 89. Even so, evidence of Joshua's failure to raise compliance issues was relevant to the Board's good faith, to assist the Court in interpreting the Revised Plan, and to the Board's estoppel defense. The LRSD denies that there was "much evidence that Joshua regularly brought matters of compliance to the attention of the school district administrators." 15. Footnote 2 of the Revised Plan is unambiguous, and the Court correctly interpreted the plain language of the footnote. The LRSD denies that Joshua introduced evidence "that certain goals were to have been fully met while others would be ongoing." 16. The LRSD denies that the Court must presume "that there is a correlation between student achievement and money expenditures by school districts." The LRSD also denies that only conclusion to be drawn from any continuing racial disparity in achievement is that the beneficiaries of desegregation funding have been white students. Joshua's argument ignores the fact that the racial disparity in achievement exists when students arrive for their first day of 4 school. As Drs. Wal berg and Armor explained, it would be impossible for the LRSD to eliminate the racial disparity in achievement given the current racial disparity in socioeconomic status. 17. The LRSD denies that the Court improperly referred to the Green factors. The Revised Plan constituted an agreement voluntarily entered into by the LRSD. The LRSD entered into that agreement because it believed implementation of the Revised Plan was in the best interest of Afucan-American students, and indeed, all students in the District. 18. The Court is correct that in this case the LRSD has never been adjudicated a "constitutional violator." The LRSD denies that it was held in contempt during the implementation of the 1990 settlement plan. 19. The Court correctly interpreted Revised Plan 2. 7 as not requiring the LRSD to eliminate or reduce the racial disparity in achievement. Joshua sought to use the racial disparity in achievement to establish the LRSD's noncompliance with Revised Plan 2.7, and the Court correctly placed the burden of proof on Joshua to establish a causal connection between the current racial disparity in achievement and the LRSD's alleged noncompliance. 20. The Court acknowledged that the Revised Plan did not expressly require Joshua to raise an issue pursuant to Revised Plan 8 before it could object to the LRSD's final report. See Memorandum Opinion, p. 89. 21. The LRSD will respond to each subparagraph of paragraph 21 in tum: (a) The Court drew a reasonable inference from the fact that Joshua failed to further pursue these issues and from Baker Kurrus's testimony that he asked Dr. Carnine to work with Joshua to resolve these issues. See Tr. July 24, 2002, p. 751. (b) Dr. Lacey so testified (Tr. July 24, 2002, p. 777), and no "record of past actions" is required for the Court to credit the testimony of a witness. ( c) Joshua points to nothing in the "record" which would indicate that the Court's characterization is erroneous. 5 (d) In fact, Junious Babbs testified that ODM and Joshua were provided copies of the Compliance Plan and Compliance Handbook.Court. See Tr. July 5, 2001, pp. 73, 77 and 78. Moreover, ODM's August 11 , 1999 report establishes that ODM received both. See pp. 39 and 40. Counsel's suggestion on cross-examination that Joshua did not receive them is not evidence. See Eight Circuit Model Jury Instructions (Civil) 1.02 (2001). Thus, the only evidence before the Court was testimony that ODM and Joshua did receive the Compliance Plan and Compliance Handbook. (e) The record in this case includes motions by the LRSD after Joshua filed its objections to stop counsel for Joshua from entering the offices of LRSD staff members unexpectedly and from using the Freedom of Information Act ("FOIA") to conduct discovery. Joshua's opposition to these motions provides ample support in the record for the Court's finding. (f) The Revised Plan did not prohibit the LRSD from holding meetings without Joshua being present. Thus, there was no "failure" for the Court to excuse. (g) The Court correctly found that Revised Plan 2.5 did not require the LRSD to eliminate or reduce the racial disparity in discipline. (h) The criticisms offered by the Court were readily apparent from the report itself, and Joshua cannot blame the Court for failing to put it on notice of these shortcomings. (i) The suspension index is a well-recognized statistic and has been explained in numerous desegregation cases. See, li, Hoots v. Pennsylvania, 118 F.Supp.2d 577, 608 n.25 (W.D. Pa. 2000). The Court was free to accept the LRSD's calculations which were admitted into evidence without objection. See CX 743 . (j) The Court correctly interpreted Revised Plan 2.5 as not requiring the LRSD to eliminate or reduce the racial disparity in discipline. Joshua sought to use the racial disparity in discipline to establish the LRSD's noncompliance with Revised Plan 6 2.5, and the Court correctly placed the burden of proof on Joshua to establish a causal connection between the current racial disparity in discipline and the LRSD's alleged noncompliance. (k) The Court correctly noted that not a single student testified that he or she had been discriminated against in the imposition of discipline. The LRSD fails to see how the Court's admonition not to present cumulative evidence prevented Joshua from calling any students to testify during the hearings on Revised Plan 2.5 . (I) The Court's description of Dr. Watson's testimony is accurate given the ' context in which the statement was made. (m) The fact that African-American teachers suspended African-American students more than white teachers is not "a finding ofracial mistreatment by AfricanAmerican teachers toward African-American students." (n) The Court's statement that "students of all races tend to gravitate toward sports that they have grown up playing and that they enjoy'' does not condone racial disparities in activities. ( o) The only inference to be drawn from testimony of Ray Gillespie is that the LRSD responded appropriately when confronted with allegations that white coaches mistreated African-American student athletes. (p) The Court did not accept a "means" test for participation in activities. The LRSD presented evidence of the steps it took to ensure that no student was denied participation in an activity due to a financial barrier, and Joshua came forward with no evidence that a single student was denied participation in an activity because of a financial barrier. ( q) The Revised Plan did not require the LRSD to eliminate or reduce the racial disparity in the percentage of students taking AP courses. The LRSD has worked hard to increase the number of African-American students in AP courses, and it has done 7 so. The LRSD's success cannot be diminished by Joshua characterizing the LRSD's efforts as "minuscule." (r) The Court gave due weight to the testimony of Jason Mercer and Ramona Horton. (s) The Court did not accept a "means" test for participation in the University Studies Program at Hall High School. It is true that Dr. Lacey did not identify the race of the student for whom a private donation was sought so the student could participate in the University Studies Program. See Tr. July 24, 2002, p. 802. However, it was reasonable for the Court to infer that the student was African-American for two reasons. First, when counsel for Joshua began this series of questions, he limited the question to AfricanAmerican students. See Tr. July 24, 2002, p. 801. Second, there was evidence that African-American students were more likely to be poor, and therefore, to be excluded by financial barriers to activities. See Tr. July 24, 2002, p. 602 and 624. (t) (u) The Court gave due weight to Ms. Watson's testimony. The Court correctly interpreted Revised Plan 2.7 as not requiring the LRSD to eliminate or reduce the racial disparity in achievement. (v) The Court may infer that counsel for Joshua read Revised Plan 2. 7 before agreeing to it, and therefore, knew what it required. (w) The Court is correct that Joshua did not raise the issue of the LRSD's March 19, 2001, agreement with the State of Arkansas in its Opposition to the LRSD's Motion for an Immediate Declaration of Unitary Status filed May 30, 2002. WHEREFORE, the LRSD prays that Joshua's Motion for Reconsideration; that Joshua's Motion for New Trial or in the Alternative Motion for Relief from Judgment or Order be denied; that the LRSD be awarded its costs and attorneys' fees expended herein; and that the LRSD be awarded all other just and proper relief to which it may be entitled. 8 F:\HOME\FENDLEY\l..RSD 200 1\unitary-rcsponsc-mot-rcconsider.wpd Respectfully Submitted, LITTLE ROCK SCHOOL DISTRICT FRJDA Y, ELDREDGE &amp; CLARK Christopher Heller (#81083) John C. Fendley, Jr. (#92182) 2000 Regions Center 400 West Capitol Little Rock, AR 72201-3493 (501) 37 -"1LM-+---- 9 CERTIFICATE OF SERVICE I certify that a copy of the foregoing has been served on the following people by depositing a copy of same in the United States mail on October 7, 2002: Mr. John W. Walker JOHN W. WALKER, P.A. 1723 Broadway Little Rock, AR 72201 Mr. Sam Jones Wright, Lindsey &amp; Jennings 2200 Nations Bank Bldg. 200 West Capitol Little Rock, AR 72201 Mr. Steve Jones JACK, LYON &amp; JONES, P.A. 425 W. Capitol, Suite 3400 Little Rock, AR 72201-3472 Mr. Richard Roachell Roachell Law Firm 11800 Pleasant Ridge Road, Suite 146 Post Office Box 17388 Little Rock, Arkansas 72222-7388 Little Rock, AR 72201 Ms. Ann Marshall Desegregation Monitor 1 Union National Plaza 124 W. Capitol, Suite 1895 Little Rock, AR 72201 Mr. Dennis R. Hansen Office of the Attorney General 323 Center Street 200 Tower Building Little Rock, AR 72201 F:\J-IOME\FENDLEY\LRSD 2001 \uni1ary-rcsporuc-mot-rccoruidcr wpd 10 : - JOHN W. WALKER, P.A. A't'TORNEY AT I.Aw 1723 l3RoADWAY Lrrru: RoCK, .AluWlsAS 7.2206 TE.t.EPRONE (501) 374-3758 FAX (501) 374-4187 JOHNW. WALKER SHAWN CHILDS OFCOUNsEL ROBERT Mc~1.~ DONNAJ. M=t 8210 liENtll!RSON BaAn Ll1't1.P. Roel[, .AiKANSAS 72210 l'BONE: (601) 572-8426 FAX (501) 372,.8428 EMan.: mchen:ryd@nrbell.net Honorable William R.Wilson United States District Judge 600 W. Capitol Suite 149 Little Rock, Arkansas 72201 Re: LRSD v. PCSSD Dear Judge Wilson: Via Facsimile: 604-5149 October 9, 2002 Tius is a supplement to my letter motion of October 1,2002. I appreciate the Court treating it as a motion, although I did not so couch it, and I believe that the appropriate action taken by the Court in inviting the parties to react will be most useful. 1 believe that it is important for me to specify, however, what Joshua believes it would be appropriate for the Court to do with respect to clarifying the monitoring role of the Office of Desegregation Monitoring. I am therefore asking that the Court conduct a hearing: ( a) to identify the instructions received by the Office of Desegregation. Monitoring (later referred as the ODM) regarding monitoring and reporting in reference to the LRSD's Motion for Unitary Status; (b) to consider whether the instructions received by the ODM were consistentmth the earlier identification ofODM's role as setfonh by the Court of Appeals for the Eighth Circuit; and ( c) to identify with greater particularity ODM' s monitoring and reporting role regarding the three school districts, If the Court is inclined to have me fonnalize my October 1, 2002 letter and today's letter in motion form, I will be happy to do so. I am also writing to observe that the Joshua Intervenors filed a Motion for Reconsideration within the time allowed by law and that there has no response filed by either party within the rule time to our motion. Local Rule 7.2(b) requires that any party opposing our motion shall file such motion within eleven days. By my count, any opposing party should have filed its opposition not later th.an October 4, 2002. Today is obviously October 9, 2002. I am nor aware that the Court has a received a Motion to Extend the Time and I have not had a request from any counsel regarding an extension of such time. Page Two October 9, 2002 Accordmgly, we request that the Court role on the motion. JWW:lp cc: All Counsel of Record Ms. Ann Marshall Brown i _-t.ttorne-; at Law 17ZJ Broadwcry Ltrrle Roa:; _4.J-!car..sr::s 72206 Telephone (501) 374-3758 .Fzc (501) 37-~ '.' 187 F/4,X TR.-4.L"'iSlY.!ISSION CO"y'ER SEEET Da:i2: [ To: [ Fa..-c: l __ 3. c-..&lt;-2 ...... r- d)-.:-.LJ_c_JP __ __,1 Re: ,. l Sender: [_= =g,;===luY-==========; YOU SHOu2D R.ECE.TVE [_ _ (including cover sheer)] P.:!..GE(S), fl'ICLUDING l'F..JS CO VER. S,--:.r;;''f:T. IF YOU DO NOT RECEIVE ALL THE PAGES, P LE...:JSE CJ.LL "&lt;(501) 374-3758&gt;" The information coma.ineciin !his ~;mile meo:sage is atto:r-ey privilege:i and conficientfaJ. information intended only for the use of .b.e in.diviriual or en.rit-; nmned. above. If tile ruder of this m~sage is il.Ot tb.e intended recipient, or me ~ployee or agen, res-ponsibie to de.!iver it ro 1:le intended recipient, you sre b.ereoy .iotiiied ilint any cfuse:nination, di.'"ll'founon or cop;1ing of cbis COIIlllluuication is stric:tiy prohiliii:ed. If you bave received. ihis commi'tni.c:icon in error, ple!:l!e immediate notify u.s by wlephoiie, md rerura the onginal messagi: .a J.l.:'J at the above address via .lie U.S. Postal s~:--lic:. Tilanic you. R CEIVED EAST~Rs~l~~e~~s s - CT 12 2002 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS OCT 1 1 2002 AO 72A (Rev.8/82) OFFICE OF LITTLE ROCK DIVISION JAMES W. DES REGATION MONITORING By: __~ ~~~.,..,J... ..... LITTLE ROCK SCHOOL DISTRICT V. No. 4:82CV00866 WRW/JTR PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. I, ET AL. MRS. LORENE JOSHUA, ET AL. KA THERINE KNIGHT, ET AL. ORDER PLAINTIFF DEFENDANTS INTER VEN ORS INTER VEN ORS On September 24, 2002, Joshua lntervenors ("Joshua") filed: (a) a Substituted Motion for Reconsideration (docket no. 3678), 1 which asks me to revisit many aspects of the September 13, 2002 Memorandum Opinion (docket no. 3675) ("Memorandum Opinion") declaring the Little Rock School District ("LRSD") to be unitary with regard to all aspects ofits operations under the Revised Plan (CX 871 ), except for 2.7.1; and (b) a Motion for New Trial or in the Alternative Motion for Relief from Judgment or Order ( docket no. 3677). On October 7, 2002, LRSD filed a Response to Joshua Intervenors ' Substituted Motion for Reconsideration and Motion for New 1On September 23, 2002, Joshua filed their first Motion for Reconsideration (docket no. 3676), which contained numerous errors. The next day, September 24, 2002, Joshua filed a second Motion for Reconsideration, which corrected most of those errors. I will consider this second motion as a Substituted Motion for Reconsideration, although it was not so designated. As a matter of fact, a motion for reconsideration is not recognized in the Federal Rules of Civil Procedure. They are, however, commonly filed and ruled upon in this jurisdiction--and I will hew to this custom. 3 6 8 4 AO 72A (Rev.8/82) Trial (docket no. 3682).2 After an initial review of Joshua's Substituted Motion for Reconsideration and Motion for New Trial, I considered summarily denying both motions on the ground that each of the arguments in support of reconsideration or a new trial is without any apparent merit. I believe that my 17 4-page Memorandum Opinion fully and accurately sets forth the relevant history of this case and that my detailed Findings of Fact and Conclusions of Law are amply supported by the record and controlling legal authority. In short, I have given this case my best shot, and, if counsel for Joshua believe I have erred, they should ~ppeal my decision to the Court of Appeals for the Eighth Circuit. Thus, on the merits, Joshua's arguments raise nothing that warrants comment beyond my stating I find they are without any factual support or legal foundation. However, to the extent that a number of Joshua's arguments tend to torque the Memorandum Opinion out of shape, and are supported only by speculation and personal innuendo, I think it best to set the record straight. First, Joshua suggests that I improperly "faulted" Joshua for failing to present evidence 2Under Rule 7 .2(b) of the Local Rules, LRSD's Response to Joshua's Substituted Motion for Reconsideration was due eleven days from September 24, 2002, and its Response to Joshua's Motion for a New Trial was due eleven days from September 23, 2002. Because Joshua's Substituted Motion for Reconsideration and Motion for New Trial were served on counsel for LRSD pursuant to Fed. R. Civ. P. 5(b)(2)(B) (mail) and (D) (electronic means), an additional three days must be added to LRSD's eleven days. See Fed. R. Civ. P. 6(e). Thus, LRSD had fourteen days to respond to those motions, making its Response to Joshua's Motion for New Trial due on or before October 7 and its Response to Joshua's Substituted Motion for Reconsideration due on or before October 8. As indicated previously, LRSD filed its Response to both those Motions on October 7. In a letter dated October 9, 2002, Joshua's counsel asked me to strike LRSD's Response to those two motions because it was not filed within eleven days. Because Joshua's counsel overlooked Fed. R. Civ. P. S(b) and 6( e ), they miscalculated the deadline for the filing of LRSD 's Response to be October 4. Therefore, their request to strike that Response is denied. -2- A072A (Rev.8/82) on the March 19, 2001 Agreement between LRSD and the Arkansas Department of Education (CX 548). Substituted Motion for Reconsideration at 2. To the contrary, the Findings of Fact explicitly state that: The March 19, 2001 Agreement between the ADE and LRSD is unrelated to the question of whether LRSD has substantially complied with its obligations under the Revised Plan. It is important, too, that Joshua did not raise that issue as part ofits challenge to LRSD's request for an immediate declaration ofunitary status. Memorandum Opinion at 149, ,1 17 ( emphasis in original). Thus, although Joshua introduced CX 548 into evidence,3 I expressly did not consider it in deciding the unrelated question of whether LRSD had substantially complied with its obligatio.ris under the Revised Plan. Nowhere in my Memorandum Opinion do I "fault" Joshua for failing to produce evidence regarding the March 19, 200 l Agreement between LRSD and ADE--a subject that clearly was not before me in the hearings on unitary status. Second, Joshua contends that I should not have addressed "the involvement of the ODM with respect to issues which were litigated before Judge Wright and Judge Wilson . . . [because] the competence of the ODM, the quality of the ODM reports, [and] the budget of the ODM .. . were not before the Court in evidentiary form .'"' Substituted Motion for Reconsideration at 2, 6-7, and 10. The ODM, an employee of the district court, has monitored LRSD's compliance 3It strikes me as a little strange that Joshua introduced the March 19, 2001 Agreement into evidence during the hearing on unitary status and now argues, in their Substituted Motion for Reconsideration, that the document is irrelevant to the question of whether LRSD substantially complied with its obligations under the Revised Plan. I agree that the document is irrelevant to the issue of substantial compliance, but this begs the question of why Joshua chose to introduce the document into evidence in the first place. I remain puzzled. 4For the record, my Memorandum Opinion does not consider "the competence of the ODM." -3- A072A (Rev.8/82) with its obligations under the 1990 Settlement Agreement, the 1992 Desegregation Plan, and the Revised Plan. Because the ODM works for the court, all of its budgets, as well as all of the reports it has prepared over the years, have been filed and are part of the record in this case. Historically, all of the parties and the court have used ODM reports, to the extent they were relevant, during the many hearings that have taken place since 1991. After being assigned this case in January of 2002, I carefully reviewed the entire record. In doing so, I examined the ODM 's annual budgets from 1990 to date. I was troubled by the large increases in the OD M's budget over that period of time. I was also troubled by the large sums of money that I discovered had been paid to the attorneys for both Joshua and the three school di stricts.5 While attorneys are unquestionably necessary in school desegregation cases, it is the school children who ultimately are disadvantaged by unnecessary or exorbitantly high litigation costs. Thus, I believe that it was entirely appropriate for me to express my views on the ODM's rapidly escalating budgets,6 which are part of the record in this case, and the total amount of money that has been paid to all of the attorneys in this case during the last ten to fifteen years. As footnote 58 makes clear, my concern is with the enormous amount of money that has been paid to the entire professional group--the ODM, the attorneys for LRSD, PCS SD, NLRSD, and Joshua. As I thought my admonition made clear on page 44 of the Memorandum Opinion, I believe the issue of the money paid to the professional group is important because "I understand the meaning of being careful with a dollar, and I expect the professional group to keep that 51n most long-running school desegregation cases that have been decided in the last ten years, courts have expressed dismay over the high cost of school litigation. I now know why. 6See Memorandum Opinion at 26-27. -4- A072A (Rev.8/82_) _ important point fixed in their minds from here on out." Why Joshua's counsel seriously contend that I should not have addressed a subject of such obvious importance is beyond me. In the same vein, Joshua's counsel argue that I should not have commented on the quality of the ODM's June 14, 2000 Report of Disciplinary Sanctions in LRSD (docket no. 3366). Joshua's counsel used that Report extensively in his examination of various LRSD employees who testified during the hearings on unitary status. Joshua's decision to use that Report, one of the Court 's own documents, in his examination of witnesses on the issue of student discipline, required me to read and carefully analyze that do~ument. In doing so, I discovered patent deficiencies which rendered the Report of little use to the court or the parties in trying to determine the cause for African-American students being over-represented in disciplinary proceedings. Thus, in my discussion of the history of this litigation (Memorandum Opinion at 47-50), I was obliged to point out the flaws in the ODM's Report of Disciplinary Sanctions. I note that Joshua does not deny those flaws--they simply object to my noting them. In my Findings of Fact on the issue of student discipline, I again commented on the OD M's Report of Disciplinary Sanctions, which was prepared for the express purpose of being used by the court in monitoring and evaluating LRSD's compliance with the Revised Plan. In light of that fact, I believe I would have been remiss ifI had not closely scrutinfaed the ODM's Report in deciding whether LRSD had substantially complied with those sections of the Revised Plan dealing with student discipline. Otherwise, what is the role of the Judge? Finally, and perhaps most importantly on this point, none of my Findings of Fact on the issue of whether LRSD substantially complied with its obligations regarding student discipline were based on anything contained in the OD M's Report of Disciplinary Sanctions. Rather, my -5- AO 72A (Rev.8/82 findings simply pointed out that, because the Report failed to develop a proper statistical model for evaluating the data on student discipline, its conclusions were based on pure speculation-making the Report of no use to the court or the parties in evaluating the cause for AfricanAmerican students in LRSD receiving a disproportionate number of suspensions. See Memorandum Opinion at 105-07, ,i,i 24-26. Third, Joshua's counsel take general exception to my discussion of the attorneys' fees that have been paid in this case during the last twenty years and particular exception to my allegedly erroneous finding "that the Joshua counsel, including the Legal Defense Fund counsel, were paid more than $3,750,000 for their work between 1987 and the present time." Substituted Motion for Reconsideration at 3. The amount that Joshua's counsel have been paid, to date, in attorneys ' fees is a matter of public record. As pointed out in footnote 58 of my Memorandum Opinion, these attorneys' fees are as follows: $3,150,000 paid to Joshua's counsel under the 1990 Settlement Agreement;7 $700,000 paid by LRSD to Joshua's counsel for monitoring work performed after December 12, 1990, and before July 1, 1998 (see Exhibit 7 to docket no. 3581 ); and $124,861 paid by LRSD to Joshua's counsel for monitoring work performed under the Revised Plan between July 1, 1998, and January 2001 (see Exhibit 8 to docket no. 3581 ). Thus, based entirely on the evidence in the record, without any need for me to speculate or make assumptions, Joshua's counsel have been paid, to date, $3,974,861 in attorneys' fees--this is more than $3,750,000. In footnote 58 of my Memorandum Opinion, I hazard what I admit to be a "guess" that, since 1990, the attorneys ' fees that LRSD, PCS SD, and NLRSD have paid to their own attorneys 7LRSD v. PCSSD, 921 F.2d 1371 , 1390 (8th Cir. 1990). -6- AO 72A - ~(Rev.8/82) "totals at least $4,000,000." Joshua's counsel clearly lack standing to complain about my "guess" regarding the aggregate amount of attorneys ' fees paid to counsel for the three school districts--an estimate that LRSD has not challenged. In light of these undisputed facts, I seriously question how Joshua's counsel can make the statement that "counsel Walker does not accept the court's conclusion that he has directly benefitted from the perpetuation of this case." Substituted Motion for Reconsideration at 9. With all due respect to Mr. Walker, I am having a hard time escaping the conclusion that he has been "directly benefitted" by receiving millions of dollars in attorneys' fees in this case. Fourth, Joshua's counsel, without citing any supporting facts, accuse me of "a predisposition which could only have come from previous attitudes regarding the role oflawyers in this long-standing case";8 "negative attitudes toward lawyers who are involved with and associated with this case";9 and "a bias or hostility toward Joshua's counsel."10 Although this should go without saying, I want to remind Joshua's counsel that, while I ruled against them on five of the six arguments they advanced, this does not mean that I harbor any bias against or hostility toward them. 11 For the record, I have no "predispositions," "negative attitudes," or "bias or hostility" toward Joshua's counsel. I did indeed express dismay over the attorneys' fees that have been paid to all of the 8Motion for Reconsideration at 2. 9Motion for Reconsideration at 3. 10Motion for Reconsideration at 7. 11"The Judge must not like me" is a refrain usually sung by lawyers who have just been called to the bar--when a lawsuit doesn't tum out exactly as they had wanted. Experienced lawyers generally resist the temptation to raise this claim. -7- A072A (Rev.8/82) attorneys in this case--! believe that was a subject that called for comment during my discussion of the long history of this case. Likewise, the concerns I expressed about LRSD's decision to pay Joshua's counsel $700,000 for performing monitoring work for which Judge Wright ruled Joshua's counsel had already been paid ( docket no. 2821) and the $48,333.33 per year that LRSD agreed to pay Joshua's counsel for performing monitoring work under the Revised Plan are directly supported by detailed citations to the record 12--not speculation or conjecture--and also deserved to be mentioned in my review of the history of this case. As I stated in the Memorandum Opinion, counsel for both LRSD an,d Joshua should have done a better job of documenting the reasons for the payment of these attorneys' fees and the precise role of Joshua's counsel in receiving monthly payments from LRSD to monitor its compliance with the Revised Plan. However, in reaching that conclusion, I was guided entirely by the plain facts contained in the record and not by any "preconceived ideas" or a "bias or hostility toward Joshua's counsel." Fifth, Joshua argues that: (a) because I discuss the fact that the OD M's staff and budget have more than doubled since its creation, I am implicitly criticizing "Judge Wright's actions and the Court of Appeals for requiring the creation of the office in the first place"; 13 (b) I "may be I signaling that [I] want to end the role of the ODM as that role was established and created by the Eighth Circuit"; 14 and ( c) I may be trying to infer that "Joshua take over the roie of ODM with respect to monitoring at a rate of approximately $49,000 per year." 15 No one could fairly read the 12See Memorandum Opinion at 33-35 and 38-44. 13Motion for Reconsideration at 6. 14Motion for Reconsideration at 7. 15Motion for Reconsideration at 7. -8- A072A (Rev.8/82) Memorandum Opinion as stating anything within shouting distance of these three farfetched notions. As I repeatedly noted in my Memorandum Opinion, Judge Wright did an outstandingjob of presiding over this case for eleven long years, during which time she faithfully and skillfully decided well over a thousand motions. Nowhere do I implicitly or explicitly direct any criticism toward her. 16 Likewise, my Memorandum Opinion makes it clear that I believe it was a good idea for the Eighth Circuit to create the ODM so that the district court and the Eighth Circuit could ensure \. that each of the three school districts complied with their many desegregation obligations. Obviously, it is important for the ODM to continue its monitoring work until each of the three school districts is declared to be unitary and released from further supervision by the court. At this point, my only concern is that the ODM operate as frugally and efficiently as possible in going forward with its monitoring of the now much less onerous single remaining compliance issue for LRSD and the desegregation obligations that remain in effect for NLRSD and PCS SD. Finally, Joshua's counsel are absolutely correct that, in my Memorandum Opinion, there "surely cannot be an inference that Joshua was [to] take over the role of ODM with respect to monitoring at a rate of approximately $49,000 per year ... . " There is no such "inference" or "implication." Sixth, Joshua argues that they should be allowed to present additional evidence ofLRSD' s alleged noncompliance with other sections of the Revised Plan. Substituted Motion for Reconsideration at 10-11. In support of this argument, Joshua alleges that "the court previously 161 do not understand how counsel can possibly discern (or divine) any such criticism in the Memorandum. -9- AO 72A (Rev.8/82) instructed Joshua not to present any of that evidence [on LRSD's alleged failure to substantially comply with its obligations regarding faculty and staff, student assignment, special education and related programs, parental involvement, and school construction and closing]." This is not true. It is an after-the-fact assertion. On May 9, 2002, I entered an Order (docket no. 3598) explaining in detail how I intended to proceed in conducting up to five days of hearings on the remaining issues Joshua had raised in their challenge to LRSD's request for unitary status. Four pages of that Order were devoted to discussing what transpired during the December l l., 2001 hearing before Judge Wright, which was held to discuss the remaining grounds for Joshua's challenge to LRSD's substantial compliance with the Revised Plan. Id. at 9-12. The May 9 Order pointed out that, during the December 11 hearing, Joshua's counsel attempted to raise numerous new grounds for challenging LRSD 's alleged noncompliance after they had rested their case on what they viewed as their three strongest grounds--lack of good faith, failure to comply with obligations related to AfricanAmerican achievement, and student discipline. Judge Wright ruled that Joshua could present evidence on three remaining grounds for noncompliance: advanced placement courses; guidance counseling; and extracurricular activities. In addition, she ruled Joshua could present additional evidence of LRSD's alleged lack of good faith, but only to the extent that evidence was related to advanced placement courses, guidance counseling, and extracurricular activities. Judge Wright also made it clear that, after she had heard the evidence on these three remaining areas of alleged noncompliance, she would decide the question of unitary status. Joshua's counsel responded: "That 's fin e, Your Honor." (Docket no. 3597 at 36-37.) Consistent with Judge Wright's ruling during the December 11 , 2001 hearing, the May 9 -10- A072A (Rev.8/82) Order provided that I planned to conduct up to five days of additional hearings on unitary status, during which Joshua would be allowed to present evidence of LRSD's alleged noncompliance with its obligations related to advanced placement courses, guidance counseling, and extracurricular activities. In addition, I allowed Joshua to present noncumulative evidence related to: (a) LRSD's lack of good faith, but only to the extent that it was related to advanced placement courses, guidance counseling, and extracurricular activities; and (b) how LRSD 's alleged failure to comply with its obligations regarding advanced placement, guidance counseling, and extracurricular activities adversely affected the aca~emic achievement of African-American students (docket no. 3598 at 13-14). I hardly see how the May 9 Order could have been any clearer in setting forth the precise ground rules regarding Joshua's three remaining challenges to LRSD's substantial compliance with the Revised Plan. Joshua's counsel raised no objection to the May 9 Order, and, after completing three additional days of evidentiary hearings on July 22-24, 2002, Joshua's counsel rested their case challenging whether LRSD should be declared unitary. Under these circumstances, there is no basis for Joshua's counsel to argue that the court "instructed" them not to present evidence ofLRSD 's alleged noncompliance with numerous other provisions of the Revised Plan. Joshua's counsel agreed, flat footedly, to the ground rules for conducting the hearings on unitary status, including the six specific areas of the Revised Plan under which they challenged LRSD's substantial compliance. It is far too late for Joshua to argue that they should be allowed to engage in piecemeal litigation by raising additional grounds for attacking LRSD's substantial compliance with the Revised Plan. Again--one last time--the grounds delineated by Judge Wright and me, and agreed to by all counsel, were fully litigated. -11- AO 72A (Rev.8/82) I do not know how to put it any more plainly than that. IT IS THEREFORE ORDERED that Joshua's Substituted Motion for Reconsideration be and it is hereby DENIED. IT IS FURTHER ORDERED that Joshua's Motion for a New Trial or in the Alternative Motion for Relief from Judgment or Order be and it is hereby DENIED. nf DATED this day // of October, 2002. -12- /)J v_J ~ . ~ L!l UNITED STATES DISTRICTJU~ THIS DOCUMENT ENTERED ON DOCKET SHEET IN COMPLIANCE WITH tULE 58 AND/OR 79(a) FRC ON 10 I 1 / o 2.. BY D ~VI , () AO 72A (Rev.8/82) ECEIVEf OCT 1 2 2002 OFRCE GfSEGREGATtnN ;\\'.: lilTGRING EAsrM~l~~gl!2b IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS OCT 1 1 2002 LITTLE ROCK DIVISION JAMES W. Mc By: A K LITTLE ROCK SCHOOL DISTRICT V. No. 4:82CV00866 WRW/JTR PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL. MRS. LORENE JOSHUA, ET AL. KA THERINE KNIGHT, ET AL. ORDER PLAINTIFF DEFENDANTS INTERVENORS INTER VEN ORS In a letter dated and delivered to me on October 1, 2002, counsel for Joshua requested that I modify or clarify: ( a) various aspects of the compliance remedy contained in the September 13, 2002 Memorandum Opinion (the "Memorandum Opinion") declaring LRSD to be partially unitary; and (b) the role of Joshua and the ODM in performing future monitoring work in this case. Later that day, I entered an Order ( docket no. 3680), stating that I intended to :treat the letter as "a motion of some kind."1 In a letter dated October 9, 2002, counsel for Joshua wrote me a "supplement" to their October 1, 2002 letter. Attached to this Order is a copy of the October 9 letter. On October 7, 2002, LRSD filed its Response to Joshua's October 1, 2002 letter (docket no. 3681 ). Because I see no reason to await LRSD's Response to the matters raised in Joshua's 1A copy of the October 1 letter is attached to my Ord~r. A072A (Rev.8/82) October 9 letter, I will proceed to address the merits of the reliefrequested by Joshua's counsel in both of those letters. As a threshold matter, I want to clarify how I view these two letters. On September 24, 2002, Joshua filed a Substituted Motion for Reconsideration (docket no. 3678) requesting that I clarify or modify many aspects of the Memorandum Opinion. Because both of Joshua's letters are seeking reconsideration of still other aspects of the Memorandum Opinion, I will treat those letters as a "Supplement" to their Substituted Motion for Reconsideration and address in this Order only those arguments raised in that "Supplement."2 In the future, I think it will be best if all counsel file motions--not letters--raising any issues that they believe require my attention. I should not be copied on general correspondence amongst counsel. First, Joshua's counsel request that I clarify the monitoring obligations the Memorandum Opinion imposed on them with regard to LRSD's compliance with 2.7.1 of the Revised Plan. I shall do so. In 1990, Joshua's counsel made the commitment to participate in a monitoring system to ensure that LRSD, NLRSD, and PCS SD complied with their desegregation obligations under the 1990 Settlement Agreement. See Memorandum Opinion at 34. Later, in approving that Settlement Agreement, the Eighth Circuit recognized that counsel for Joshua were "the best defenders and guardians of the interests of their own clients." LRSD v. PCSSD, 921 F.2d 1371, 1386 (8th Cir. 1990). Between 1990 and 1998, Joshua's counsel participated in monitoring 2In a companion Order that I am entering contemporaneously with this Order, I have addressed and rejected the arguments raised by Joshua in their Substituted Motion for Reconsideration. -2- A072A (Rev.8/82) LRSD's compliance with the 1990 Settlement Agreement and the 1992 Desegregation Plan.3 After Joshua and LRSD implemented the Revised Plan in 1998, Joshua's counsel entered into an agreement with LRSD to monitor its compliance with the Revised Plan, a task for which LRSD agreed to pay Joshua's counsel $48,333.33 per year.4 Thus, for the last twelve years, Joshua's counsel have been involved with monitoring LRSD's compliance with its desegregation obligations . . In Section VII.A., B., and C. of the Memorandum Opinion, I outlined the Compliance Remedy LRSD must implement in order to comply with its remaining obligations under 2. 7. l of the Revised Plan. Because I believe that Joshua's counsel have an ethical obligation and professional duty to monitor LRSD's compliance with its obligations under 2. 7. l , I provided a monitoring role for them in Section VII.D of the Memorandum Opinion. I intended for Joshua's counsel to continue to perform their monitoring role according to the same procedure they and LRSD have followed for many years in this case. One could read the October 1, 2002 letter as suggesting that Joshua's counsel only intend to continue to monitor LRSD's compliance with 2.7.1 of the Revised Plan if they are ordered to do so by me. I do not believe I can force Joshua's counsel to perform monitoring duties--something that I may have mistakenly assumed they wanted to continue to do. I will leave it up to Joshua's counsel to decide if they have an ethical duty and professional obligation to 3Judge Wright ruled Joshua's counsel were not entitled to receive attorney's fees for any monitoring work performed after the Eighth Circuit's approval of the 1990 Settlement Agreement (docket no. 2821). While that ruling was on appeal to the Eighth Circuit, LRSD voluntarily agreed to pay Joshua's counsel $700,000 forperformingthatmonitoringwork. See Memorandum Opinion at 33-35 and 38-44. 4See Memorandum Opinion at 42. -3- AO 72A (Rev.8/82) continue monitoring LRSD's compliance with its sole remaining obligation under the Revised Plan. I hope Joshua's counsel resolve that question in favor of continuing their long-standing commitment to monitoring LRSD's compliance with its desegregation obligations. However, since they complain about my expressly directing them to continue monitoring LRSD's compliance with 2. 7 .1 of the Revised Plan--something I never expected to hear--I believe I must now modify Section VII.D. of the Memorandum Opinion to read as follows: Joshua may monitor LRSD 's compliance with 2. 7 .1 and, if they choose to do so, they should bring to the attention of LRSD, on a timely basis, all problems that are detected in its compliance with its obligations under 2.7.1, as those obligations are spelled out in this Complianc'f: Remedy. Thereafter, Joshua and LRSD must use the "process for raising corripliance issues" set forth in 8.2, et seq., of the Revised Plan to attempt to resolve those compliance issues. If those efforts are unsuccessful, Joshua shall present the issues to me for resolution, as required by 8.2.5. Any such presentation must be timely. Regardless of whether Joshua's counsel continue to monitor LRSD's compliance with 2. 7 .1, the ODM staff most certainly will continue their close monitoring ofLRSD 's compliance with that section of the Revi_sed Plan. I have every confidence that the staff of the ODM will carefully monitor LRSD's implementation of the Compliance Remedy I have ordered under 2.7.1 of the Revised Plan. If Joshua's counsel decide to continue with their monitoring role, which is independent from the monitoring work performed by the ODM, the preceding paragraphs of this Order make it clear that I expect them to follow the same monitoring practices they have followed for years in this case. I expect counsel for Joshua and LRSD to cooperate and work together to ensure that things go smoothly with regard to monitoring LRSD's implementation of its obligations under 2. 7 .1. However, if actual disputes arise regarding monitoring, I will be available to resolve them. -4- A072A (Aev.8/82) Second, Joshua's counsel makes an unsupportable and speculative statement that certain unspecified"comments" in the Memorandum Opinion "indicated that [I] do not foresee orrequire a continued responsibility for monitoring of the intensity which the Court of Appeals for the Eighth Circuit required." This assertion simply is not true. I will expect and require the ODM staff to work hard every day to ensure that all three school districts fully comply with all of their remaining desegregation obligations. Of course, for LRSD, these obligations are now far less onerous than they have been in the past. Likewise, NLRSD has already been declared unitary with regard to several ofits original desegregation obligations. In other words, while I will expect ' and require the ODM staff to diligently and fully discharge their obligation to monitor the three school districts, the reality is they now have far fewer obligations. Finally, in Joshua's counsel's October 9, 2002 letter, they request that I conduct a hearing to clarify the role of the ODM. I find there is no need for any requested clarification of the role of the ODM--much less for a hearing on that subject. I feature myself capable of directing the ODM staff in performing their ongoing duties as monitors. IfI waiver in this belief, I may, at that time, call on counsel for suggestions. Of course, if Joshua's counsel determines that the ODM staff is not adequately discharging its monitoring duties, I would expect them to immediately file an appropriate motion. In closing, let me repeat the comment I made in my companion Order addressing the merits of the arguments made by Joshua in their Substituted Motion for Reconsideration: "I have given this case my best shot, and, if counsel for Joshua or LRSD believe that I have erred, they should appeal my decision to the Court of Appeals for the Eighth Circuit." No more paper should -5- A072A (Rev.8/82) be wasted in asking me to reconsider aspects of my September 13 Memorandum Opinion or to clarify roles or responsibilities associated with the Compliance Remedy. That's myrulin'. If any party perceives error, that party should get its best hold and go to the Eighth Circuit. IT IS THEREFORE ORDERED that Joshua's Supplement to their Substituted Motion for Reconsideration be and it is hereby DENIED. IT IS FURTHER ORDERED that Section VI.D. of the Memorandum Opinion is modified to read as set forth, supra, at 4. TM DATED this day / ( of October, 2002. THIS DOCUMENT ENTERED ON DOCKET SHEET IN COMPLIANCE WITH RULE 58 AND/OR 7~ ON IO '" l Q-Z... gy_j-""'-=;~,,,__,_~- -6- JOHNW. WALKER SHAWN CHILDS Honorable William R.Wilson United States District Judge 600 W. Capitol Suite 149 Little Rock, Arkansas 72201 Re: LRSD v. PCSSD Dear Judge Wilson: JOHN W. WALKER, P.A. ATTORNEY AT LAw 1723 l3RaADWAY Lrrru: RoCK, .Aluw.SAS 7.2206 TELEPHONE (501) 374-3758 FAX (501) 374-4187 Via Facsimile: 604-SJ 49 October 9, 2002 0FCOtlNsEL ROBERT M~,'!..~ DONNAJ.M=r 8210 liENi&gt;KRSON Ra.\n Ll'rrl.P. Ro~ AIKANSAs 72210 PHONE: (501) 872-8426 FAX (501) 372-8428 EMAn.: mcliemyd@s1rbell.net Tiris is a supplement to my letter motion of October 1,2002. I appreciate the Court treating it as a motion, although I did not so couch it, and I believe that the appropriate action taken by the Court in inviting the parties to react will be most useful. I believe that it is important for me to specify, however, what Joshua believes it would be appropriate for the Court to do with respect to clarifying the monitoring role of the Office of Desegregation Monitoring. I am therefore asking that the Court conduct a hearing: (a) to identify the instructions received by the Office of Desegregation Monitoring (later referred as the ODM) regarding monitoring and reporting in reference to the LRSD's Motion for Unitary Status; (b) to consider whether the instructions received by the ODM were consistent with the earlier identification of ODM' s role as set forth by the Court of Appeals for the Eighth Circuit; and ( c) to identify with greater particularity ODM' s monitoring and reporting role regarding the three school districts, If the Court is inclined to have me formalize my October 1, 2002 letter and today's letter in motion fonn, I will be happy to do so. I am also writing to observe that the Joshua Intervenors filed a Motion for Reconsideration within the time allowed by law and that there has no response filed by either party within the rule time to our motion. Local Rule 7.2(b) requires that any party opposing our motion shall file such motion within eleven days. By my count, any opposing party should have filed its opposition not later than October 4, 2002. Today is obviously October 9, 2002. I am not aware that the Court has a received a Motion to Extend the Time and I have not had a request from any counsel regarding an extension of such time. Page Two October 9, 2002 Accordmgly, we request that the Court role on the motion. JWW:lp cc: All Counsel of Record Ms. Ann Marshall Brown .!!.trorne"J at Law 17:Z3 Broadwcy Ltrrle Rod; A:rkar..s:::s 72206 Telephone (501) 374-3758 .F'zc (501) 37-! '.1187 Fil TR..4.J.~SlV1ISSION COv'JER SERET p A ...:!.. 0 ..c:-1 . Date: [ To: [ Fa.."C: l _..... .,3.c;.....c..-7 .f.. .-.o ~L-..::cJV;___ ____,7 Re: ,. ' Sender: [_= =~===l)==========; YOU SHOu'LD RECElr'"E [_ __ (including cover sheer)} PA.GE(S), INCLUDING l'EJS COVER. S,~'f.T IF YOU DO NOT RECEIVE ALL THE PAGES, PLEA.SE CALL "&lt;(50]) 374-3758&gt;n T.he information comaineci. :in this fu:!:im:ile m~sage is attorney privilegea and couficientfal infomiation mrended only for tb.e use of 'die indivirlulll or en.tit&lt;/ nllm.ed. above. Ii tile re:icier of mis mem1ge is il.Ot the intended reci:pienr, or me employee or agenr res-pons,"bie to de!.iver re to the intended. recipient, you sre b.ereoy aoti:iied ilim any disse::nination. di.'1ri"ouiion or copying of cllis commuuicarion is .rtricrly prohibited. If you b.ave received. this c.onmumic:ition in c!l:IOr. p1C3.!e immedi.&amp;e notify us by telephone. md = cb.e ongmal message .a l.l.'l at tile above address via rb.e U.S. Post.l.l Sc:~iice. Ti:um.k you. RECEIVED OCT 1 6 2002 OFACE OF DESEGREGATION MONITORING IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DMSION LITTLE ROCK SCHOOL DISTRICT PLAINTIFF V. CASE NO. 4:82CV00866 PULASKI COUNTY SPECIAL SCHOOL DISTRICT NIRS. LORENE JOSHUA, ET AL. KATHERINE KNIGHT, ET AL. THE JOSHUA INTERVENORS' MOTION FOR RELIEF CONCERNING THE ODM BUDGET DEFENDANT INTER VEN ORS INTER VENO RS The Joshua Intervenors respectfully move for the entry of an order for the parties' participation in the establishment of the budget for the Office of Desegregation Monitoring, in accordance with the decision of the Court of Appeals for the Eighth Circuit in Little Rock School District v. Pulaski County Special School District No. 1, 971 F 2d. 160, 166 (8th Cir. 1992). This motion is based upon the following allegations and the accompanying memorandum. 1. It has come to the attention of the Joshua Intervenors that this court is in the process of reducing the ODM staff and budget. A member of the ODM staff affected by staff and budget reductions planned by the court has contacted counsel for these intervenors with regard to her legal rights. 2. In LRSD v. PCSSD, supra, the Court of Appeals for the Eighth Circuit articulated the 1 rights of the parties with regard to the establishment fo the ODM budget. To this point, it appears that the court plans to make reductions in the ODM budget and staff without affording the parties the opportunity for participation in the budget-setting process, identified by the Court of Appeals. 3. The Joshua Intervenors concern about this matted~ magnified by the virtual non-use of ODM in the process of determining whether the LRSD had attained unitary status. That is, the court's lengthy opinion is silent on the question of the court's requesting ODM to report on any particular aspect of LRSD' s compliance with the Revised Plan, evidencing that no such request was made. 4. Appeal of the court's merits decision is likely. Any contemplated change in ODM's staffing level should take account of the fact that the Court of Appeals will have the final word - (absent Supreme Court review) on the scope of the LRSD's remaining plan obligations. 5. Alternatively, ODM' s staffing and budget should not be such that it is unable, in the future, to monitor the three districts ' compliance with remaining plan obligations in the manner contemplated by the Court of Appeals. Wherefore, the Joshua Intervenors respeqtfully pray that the court: a. provide the parties access to documents exchanged between ODM and this court concerning ODM staffing and the ODM budget (in th past and in the future): and b. permit the parties to promptly review, analyze, question, and make recommendations concerning or objections regarding the ODM budget and elements thereof, prior to their implementation. Respectfully submitted, 2 /', /) / 1 I ,I I , Ro 22 Locust A venue Lexington, MA 02421 781-862-1955 Mass. 405900 ohn W. Walker ~ John W. Walker, P.A. 1723 Broadway Little Rock, AR 72206 501-374-3758 AR 64046 . - . CERTIFICATE OF SERVICE 3 RECEIVED OCT 1 6 2002 OFACE OF OCT : DESEGREGATION MONITORING JAM Es 'J1J fi,_ r- r , ~ IN THE UNITED STATES DISTRICT &amp;'!JllT_ f. ~-A&lt; EASTERN DISTRICT OF ARKANSAS -- WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT PLAINTIFF V. CASE NO. 4:82CV00866 PULASKI COUNTY SPECIAL SCHOOL DISTRICT ~S. LORENE JOSHUA, ET AL. KATHERINE KNIGHT, ET AL. DEFENDANT INTER VENO RS INTER VENO RS THE JOSHUA INTERVENORS' MEMORANDUM CONCERNING THE ODM BUDGET The Joshua Intervenors respectfully submit this memorandum in support of their accompanying motion for relief concerning the ODM budget. It has come to the attention of the Joshua Intervenors that this court is apparently in the process of reducing the ODM staff and budget. In a 1992 decision, the Court of Appeals identified the roles of the court and the parties in the establishment of the ODM budget. See Little Rock School District v. Pulaski County Special School District No. 1, 971 F 2d. 160, 166 (8th Cir. 1992). The motion seeks to insure that the parties have the opportunity for participation identified by the appellate court. A viable ODM is important to these intervenors because in their counsel's view the ODM was not given by the court the role envisioned by the Court of Appeals in the process for determining court that the LRSD had attained unitary status in most areas. Intervenors' counsel 1 want to guard against a like result in the future. . ,1/ J ff -4? . IC7Ju L / ) ~ ,,y~/4 Robert Pressman t- 22 Locust A venue Lexington, MA 02421 781-862-1955 Mass. 405900 I I :..- / Respectfully submitted, . . 46 John W. Walker, P.A. 1723 Broadway Little Rock, AR 72206 501-374-3758 CERTIFICATE OF SERVICE I do hereby certify that a copy of the foregoing motion has been to all counsel of record on this r, day of October, 2002. ) ,- / / ,-) ( ./ J26 7 : /_,,,/ &lt;"// / -1 :./ c)---r. '-1 - 1 /, r ,1 ,J\ 'l,/.v,__(,'f 1 1-v ,: __,,, 2 RECEIVED OCT 1 7 2002 OFACEOF DESEGREGATION MONITORING UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT vs. 4:82CV00866 PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, et al. MRS. LOREN JOSHUA, et al. KATHERINE KNIGHT, et al. ORDER OCT '1 C 2002 JAMES \'I'. L'i -=RK Qy: ___ -"t.L--=ll'~.&amp;..&lt;;::;:,...,..,.~~ Defendants Intervenors Intervenors Joshua Intervenors have filed a pleading entitled "The Joshua Intervenors' Motion for Relief Concerning the ODM Budget." Paragraph 4 of this pleading reflects that, "(a)ppeal of the court's merits decision is likely." If an appeal is to be taken, Joshua's motion is considerably premature. Following the procedure used in the past in this case (and Eighth Circuit directives), once a proposed budget is submitted by the ODM, I will enter an Order attaching a copy of the proposed budget and will provide all parties an opportunity to file objections or comments. ! To my knowledge, no proposed budget has yet been submitted, and; if an appeal is taken, it is unlikely that there will be any significant changes in the budget until the appeal is decided. Accordingly, because Joshua's motion is premature, it is denied, without prejudice. rfl IT IS SO ORDERED this 11_ day of October, 2002. THIS DOCUMENT ENTERED ON DOCKET SHEET IN COMPLIANCE WITH RULE 58 AND/OR~(~ ON\o \ l~ 10 2..- 8YJ&gt;.1~~~-;;_=.....- U. S. DISTRICT JUDGE { .,, 6 8 8 RECEIVED IN THE UNITED STATES DISTRICT COURT OCT 2 1 2002 EASTERN DISTRICT OF ARKANSAS OFACE OF WESTERN DIVISION DESEGREGATION MONITORING LITTLE ROCK SCHOOL DISTRICT PLAINTIFF V. NO. 4:82CV00866WRW PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL. MRS. LORENE JOSHUA, ET AL. KATHERINE KNIGHT, ET AL. DEFENDANTS INTERVENORS INTERVENORS PCSSD MOTION FOR APPROVAL OF MIDDLE SCHOOL SITE PCSSD for its motion, states: 1. Plan 2000 requires that: "An elementary school, located around 145th Street and a middle school or junior high school in the Crystal Hill/Maumelle area will be built." 2. The PCSSD proposes to acquire a site located at Carnahan and Murphy Drives in Maumelle, Arkansas and to construct its new middle school there. 3. The PCSSD proposes to build a school with a capacity of 1,000 students and to reserve 200 seats for M to M students. 4. The history of the site selection process, statistical projections concerning racial balance and other pertinent information is set forth in the accompanying memorandum. WHEREFORE, PCSSD prays that its motion be granted and for all proper relief. 373871-v1 Respectfully submitted, WRIGHT, LINDSEY &amp; JENNINGS LLP 200 West Capitol Avenue, Suite 2200 Little Rock, Arkansas 72201-3699 (501) 371-0808 FAX: (501) 376-9442 CERTIFICATE OF SERVICE On October 22, 2002, a copy of the foregoing was served via U.S. mail on each of the following: Mr. John W. Walker John W. Walker, P.A. 1723 Broadway Little Rock, Arkansas 72201 Mr. Christopher Heller Friday, Eldredge &amp; Clark 2000 Regions Center 400 West Capitol Little Rock, Arkansas 72201 Ms. Ann Brown Marshall ODM One Union National Plaza 124 West Capitol, Suite 1895 Little Rock, AR 72201 373871-v1 2 Mr. Dennis R. Hansen Arkansas Attorney General's Office 323 Center Street, Suite 200 Little Rock, Arkansas 72201 Mr. Stephen W. Jones 3400 TCBY Tower 425 West Capitol Avenue Little Rock, Arkansas 72201 Mr. Richard Roachell Roachell Law Firm P.O. Box 17388 Little Rock, Arkansas 72222-7388 RECEIVED IN THE UNITED STATES DISTRICT COURT OCT 2,i 2002 EASTERN DISTRICT OF ARKANSAS OFACE OF WESTERN DIVISION DESEGREGATION MONITORING LITTLE ROCK SCHOOL DISTRICT PLAINTIFF V. NO. 4:82CV00866WRW PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL. MRS. LORENE JOSHUA, ET AL. KATHERINE KNIGHT, ET AL. DEFENDANTS INTERVENORS INTERVENORS MEMORANDUM IN SUPPORT OF PCSSD MOTION FOR APPROVAL OF MIDDLE SCHOOL SITE Plan 2000 Plan 2000 requires that: "An elementary school, located around 145th Street and a middle school or junior high school in the Crystal Hill/Maumelle area will be built." This Court approved a district-wide conversion to middle schools on June 4, 2001. Accordingly, this request is specifically to build a middle school to be located at Carnahan and Murphy Drives, Maumelle, Arkansas. A Brief History 1. Pine Forest Elementary School remains the only PCSSD school within the city limits of Maumelle. Pine Forest Elementary School was built in 1980. The present capacity of the school as used this year is 556 .. Maumelle was incorporated in 1985 with a population of 4,359. Today, the population of Maumelle is approximately 10,557. 369448-v1 2. Since its inception as a town in the 1960s, junior and senior high students from Maumelle have all been bused to Oak Grove Junior-Senior High School. As noted in previous filings with this Court, the PCSSD desires to convert Oak Grove into a 9-12 high school and to construct a 6-8 middle school to substitute for the current Oak Grove Junior High School. 3. Currently, Pine Forest Elementary, which would jettison its sixth grade under this proposal, can accommodate only 63% of K-6 children residing in Maumelle. The remainder are currently bused to either Crystal Hill Elementary or Oak Grove Elementary. Under this proposal, both Crystal Hill and Oak Grove Elementary would become K-5 schools. 4. To accommodate current M to M sixth graders at Crystal Hill and to otherwise help realize a fully intergraded middle school, the PCSSD would reserve 200 seats at the new middle school for M to M students. 5. The PCSSD Board of Directors voted 6 to Oto seek approval for a school located within Maumelle at their meeting held on November 13, 2001. Advantages of a Maumelle Site 6. The proposed school will allow the PCSSD to move toward completing its conversion to the middle school system and will relieve over-crowding at the landlocked Oak Grove Campus. 7. The proposed school will allow the PCSSD to establish a middle school with an interdistrict feature offering more choices and grade levels particularly for those LRSD students who currently attend Crystal Hill Elementary. 369448-v1 2 8. The PCSSD proposes to construct the school with a capacity of'1,000 students providing room not only for the 200 seats reserved for M to M students 1, but also space for students who can be attracted from the local charter school, area private schools and children who are currently being home-schooled. 9. The PCSSD proposes to begin construction by April 1 of 2003 so that the new facility can be open for education by August of 2004. The PCSSD requests approval of this motion as early as reasonably possible so that sites specific work can be completed prior to the April 1, 2003 commencement of construction. 10. The PCSSD proposes to pay for the acquisition and the construction of the school by re-financing existing debt as approved by the voters on September 17, 2002. The Site Selection Process 11. On January 17, 2002, Dr. Henderson, then Assistant Superintendent for Support Services and now Interim Superintendent, addressed approximately 150 parents at the Pine Forest PTA meeting regarding the progress toward selecting a site for a new middle school. Five different proposed sites were highlighted. 12. On February 4, 2002, Dr. Henderson addressed the Crystal Hill Elementary PTA meeting. Again, approximately 150 parents were in attendance and the same five proposed sites were reviewed with them. 13. Dr. Henderson addressed the Oak Grove Elementary PTA meeting on March 5, 2002. Approximately 90 parents were in attendance. On this occasion, seven 1 By agreeing to this reservation, the PCSSD is assuming that M to M funding as currently configured and provided will remain in effect for the foreseeable future. If such funding is reduced or eliminated in the future, the continued reservation of such seats would likely prove impossible. 369448-v1 3 proposed sites were described. 14. By letter dated March 13, 2002, Dr. Henderson invited the Joshua lntervenors to serve on the Site Selection Committee. By letter dated March 15, 2002, Mr. John Walker, on behalf of Joshua, declined the invitation to participate. 15. By memo dated March 19, 2002, the Pulaski Association of Classroom Teachers nominated Diane Jones to serve on the Site Selection Committee, as a Knight intervenor. 16. By memo dated March 14, 2002, the principal of Crystal Hill Elementary School forwarded the names of four parents who desired to serve as members of the Site Selection Committee. One of those is a parent of an M to M student attending Crystal Hill. Oak Grove and Pine Forest Elementary Schools provided a bi-racial list of committee members by telephone. 17. A preliminary meeting of the Bi-Racial Site Selection Committee, which included representatives of ODM, was held on April 23, 2002, at Pine Forest Elementary School. 18. The second meeting of the Site Selection Committee was held on April 29, 2002, at Crystal Hill Elementary School. As part of this meeting, the Committee physically visited the seven possible sites. 19. As the process continued, some of the sites were deleted for various considerations including costs and lack of availability. 20. A copy of the minutes of the meeting held on April 29, 2002, is attached as Exhibit A. It includes capsule descriptions of each site evaluated including information concerning costs. 369448-v1 4 21. The next meeting was held May 8, 2002, at Oak Grove Elementary School. 22. A revised list of the Site Selection Committee members as of May 1, 2002, is attached as Exhibit B. 23. At the Oak Grove meeting, an initial vote was taken to rank the available sites. A final meeting was held on June 10, 2002, at Pine Forest Elementary School. At the end of the process, the site described in Paragraph 1 of this memorandum was selected by the Committee and approved by the School Board. Statistical Considerations 24. As part of the Court approved process for building Crystal Hill Elementary School, the PCSSD agreed to reserve up to 399 seats at Crystal Hill for transferring LRSD students. The construction of the middle school would eliminate the sixth grade at Crystal Hill. It is appropriate to reserve, at a minimum, that prorata number of seats at the new school for LRSD students. 25. Excluding pre-K, there are seven grades at Crystal Hill including kindergarten. This equates to 14% of the seats. 14% of 399 is 56 seats. 26. This number, however, is not sufficient to reach the long-standing PCSSD goal of a minimum of 20% African American students at every school. Accordingly, the PCSSD proposes to reserve a total of 200 seats for eligible M to M transfers at the new school. This would provide 10% of the African American student body if the school is built to house 1000 students. 27. This number coupled with the African American student population currently residing in the Crystal Hill, Pine Forest and Oak Grove zones will be sufficient 369448-v1 5 to safely populate the new school at at least 20% minority. An examination of the current fourth, fifth and sixth grades at those referenced schools demonstrates this projection. Crystal Hill Pine Forest Oak Grove 4"' Grade Black Students 4"' Grade Black Students 4"' Grade Black Students MtoM Resident Total MtoM Resident Total MtoM Resident Total 51 51 2 9 11 5 9 14 5'" Grade Black Students 5'" Grade Black Students 5'" Grade Black Students MtoM Resident Total MtoM Resident Total MtoM Resident Total 51 51 0 20 20 1 6 7 61 " Grade Black Students 6'" Grade Black Students 6'" Grade Black Students MtoM Resident Total MtoM Resident Total MtoM Resident Total 38 38 3 8 11 4 17 21 140 140 5 37 42 10 32 42 28. To make the projection, one should consider both the M to M students currently attending 41 \ 5th and 6th grade at these schools, together with the resident African American population in these zones. This totals 224 students. This number, as compared to 1,000 seats, projects a minimum population of over 22% African American at the new middle school. 29. Overall, the latest census figures project 7 40 school children between the ages of 12 and 15 years old will be resident within the city limits of Maumelle by the . - year 2005. (Please see Exhibit C). This, together with the students who will be transferred from the Oak Grove area together with the projected M to M students, dictates sizing the school to accommodate 1,000 students. Staffing 30. There should be no negative affects on current staffing. While the Oak Grove Junior/Senior High will be no more, the new middle school will require similar, if not identical, administrative staffing. 369448-v1 6 31. The same students who are currently taught at the sixth grades at the three elementary schools will simply attend the new middle school. The same students who would be seventh and eighth graders at Oak Grove Junior/Senior High School will simply be attending the new middle school but will require the same number of teachers as the District currently employs at the sixth grade in the elementary schools and at the seventh and eighth grades at Oak Grove. Attendance Areas 32. The "attendance zone" for the new middle school will be identical to the current attendance zone for Oak Grove Junior/Senior High School. Accordingly, there will be no need to change any attendance zones. Transportation 33. Currently, all secondary Maumelle students are transported from ', ... Maumelle to Oak Grove for grades seven through twelve. Under this concept, resident Maumelle students would now be allowed to attend grades six, seven and eight in their resident community but would continue to be transported for grades nine through twelve at Oak Grove High School. Those Oak Grove students currently attending Oak Grove Junior High School would be transported to Maumelle for their middle school years. The PCSSD believes that this arrangement generates greater equity for the affected communities as the transportation factor is more equally shared under the new arrangement. 34. M to M students would continue to be transported by choice. That is, since they elect to be M to M students, they are not "assigned" to the schools they select. Under this proposal, they would simply have the option to continue in an 369448-v1 7 interdistrict setting that includes the seventh and eighth grades and does not terminate at the sixth grade. WHEREFORE, the PCSSD prays that the Court approve the location of a new middle school located at Carnahan and Murphy Drives, Maumelle, which would reserve 200 seats for M to M transfer students and for all proper relief. 369448-v1 Respectfully submitted, WRIGHT, LINDSEY &amp; JENNINGS LLP 200 West Capitol Avenue, Suite 2200 Little Rock, Arkansas 72201-3699 (501) 371-0808 FAX: (501) 376-9442 By _ ....,...._~--..,..:....;:;=-a.__ _____ _ A nty Special s 8 CERTIFICATE OF SERVICE On October 22, 2002, a copy of the foregoing was served via U.S. mail on each of the following: Mr. John W. Walker John W. Walker, P.A. 1723 Broadway Little Rock, Arkansas 72201 Mr. Christopher Heller Friday, Eldredge &amp; Clark 2000 Regions Center 400 West Capitol Little Rock, Arkansas 72201 Ms. Ann Brown Marshall ODM One Union National Plaza 124 West Capitol, Suite 1895 Little Rock, AR 72201 369448-v1 9 Mr. Dennis R. Hansen Arkansas Attorney General's Office 323 Center Street, Suite 200 Little Rock, Arkansas 72201 Mr. Stephen W. Jones 3400 TCBY Tower 425 West Capitol Avenue Little Rock, Arkansas 12201 Mr. Richard Roachell Roachell Law Firm P.O. Box 17388 Little Rock, Arkansas 72222-7388 PULASKI COUNTY SPECIAL SCHOOL DISTRICT Donald J. Henderson, ED.D. Assistant Superintendent DIVISION OF SUPPORT SERVICES 925 East Dixon Road/P.O. Box 8601 Little Rock, Arkansas 72216 (501) 490-2227 Ext. 209 Fax: (501) 490-0483 Minutes of Crystal Hill/Maumelle Area Bi-Racial Selection Committee Meeting April29,2002 Dr. Don Henderson opened the meeting by handing out a_ meeting agenda and a sign-in sheet for attendees to sign. Dr. Henderson provided several handouts to the attendees and discussed each handout as .they were distributed. Comments and questions were made during the handout process. Dr. Henderson introduced Mr. Jim Sharkey, City of Maumelle, who went over the possible sites. Mr. Sharkey had several map displays that helped show the location of the sites. The sites discussed were six sites from the Maumelle area and the site adjacent to Crystal Hill Elementary owned by PCSSD. Sites 1 and 2 are owned by the City of Maumelle and land costs would be $25,000 per acre. If one of these sites is selected the City would provide an access road and utilities to the site. Site 3 is along Maumelle Boulevard north of the Kroger Store. This site originally was 19 acres but due to a recent partial sale the area now available is 12 acres. Additional acreage is available from adjacent property owners so that a 20 plus acre site could be obtained. The owners of these lands would want to do some type of land swap rather than sell the properties. Access and utilities are available to this site. Site 4 is a 19-acre site at intersection of Naylor Drive and North Odom. Asking price is $50,000 per acre. Access and utilities are available to this site. - Site 5 is a 42-acre site north of the Molex Plant. Needed acreage would be available at $1 .00/SF ($43,560 per acre). Access and utilities are available~to 1111 ___ 1111!11_IIII this site. . EXHIBIT I Site 6 is an 18-acre site owned by Baptist Health. Addition acreage is available from adjacent property owners so a 20 plus acre site could be obtained. Price is in the $2.00 to $2.50/SF ($87,120 to $108,900 per acre) range. Access and utilities are available to this site. Site 7 is property owned by PCSSD that is adjacent to Crystal Hill Elementary. Approximately 20 acres of the 30 acres originally purchased for an elementary/middle school site is available for a middle school. The property value in this area is probably in the $3.50 to $5.00/SF ($152,460 to $217,800) range. This site could be used in a land swap if needed. Following Mr. Sharkey's presentation a field trip via PCSSD school bus was made to visit each of the possible sites. The field trip concluded at approximately 8:00 PM. Next meeting of committee will be at Oak Grove Elementary on Wednesday, May 8, 2002 at 5:30 PM. Revised 05/01/02 CRYSTAL HILUMAUMELLE AREA MIDDLE SCHOOL SITE SELECTION COMMITTEE COMMITTEE MEMBER Terri Ayers ( j. ; 12 Mine Hill ; I No. Little Rock, AR 72118 758-2861 / Russell Laster 24 Hogan Drive Maumelle, AR 72113 851-2151 j Ms. LaBrenda Cohens 1 &lt;1j ').. ?- 7-022 Marche Lateral Road No. Little Rock, AR 72118 851-1717 Mr. Anthony Gross ~,- ., 10711 Mundo Road No. Little Rock, AR 72118 r t &gt;.- Ms. Diane Jones _,} r 123 Ridgeland Drive Maumelle, AR 72113 851-8188 / M s. P am Skile s ..f,. . :,.. i ,,. ".I ': .;_ 13 Havenwood Lane 1\ 1 Maumelle, AR 72113 753-7653 / Ms. Pam Roberts 117 Carnahan, Suite 3 : .1. :. {:'j : i.__:,tJJ :,..., Maumelle, AR 72113 851-9300 ,11'1s. Essie Coffee .i'. 1),/ 13916 Old Maumelle Rd. Maumelle, AR 72113 851-2696 I ,. ! v'Walter Pace , l-s( i'-, 25023 Highway 365, North Maumelle, AR 72113 851-1388 :. : . \ ~ .. ~\ ~ REPRESENTING Crystal Hill Elementary Parent Crystal Hill Elementary Parent Oak Grove Elementary Parent Oak Grove Elementary Parent Knight Intervenors Community Person PCSSD School Board Member District Bi-Racial Committee District Bi-Racial Committee I EXHIBIT /3 -/4s. Mary Scruggs 8 Hickory Place Maumelle, AR 72113 851-8450 -l -.. .. - vl\1r. Brent Lowrey J. :;.!' . '. (t\.; 14505 Berberich No. Little Rock, AR 72118 803-4456 . /4r. and Mrs. Reggie Davis _ 4 Holly Brook Cove :,_.\ ';\) I 1 Maumelle, AR 72113 851-2177 , Mrs. Nancy Foster 12 Barber Drive Maumelle, AR 72113 851-8708 / 1-Mrs. Shenel Sandidge '. : . _ ,, 17 Pin Oak Loop (_., . Maumelle, AR 72113 \ (_.-, :,; if_, ,. f:, ~..l 57(H) 682-7893(W) Mrs. Carol Worley 12 Stoneledge Drive i . } \ ( . Maumelle, AR 72113 'r'.\ r: : , , . J 851-8208 (H) ~2.1'."~.5~5 (W) v1'1rs . Melissa Guldin Office of Desegregation Monitoring One Union National Plaza r: ,, t ! 124 West Capitol, Suite 1895 , :\\ : \ Little Rock, AR 72201 376-6200 / Mr. Horace Smith Office of Desegregation Monitoring One Union National Plaza ('. i : 124 West Capitol, Suite 1895 Little Rock, AR 72201 376-6200 .)Mr. Richard Crider 26 Sugarloaf Loop Maumele, AR 72113 851-8846 . . .... - .. -- --~--- --- ......... . Oak Grove Elementary Parent , Oak Grove Elementary Parent :,u' Pine Forest Elementary Parent Pine Forest Elementary Parent Pine Forest Elementary Parent Office of Desegregation Office of Desegregation Crystal Hill Elementary Parent . ( . I ~ 's. Barbara Means '.: __ l.~ / M ... 1J, tI; t ,.;-,L. .. ~_r j "J tv'~ ,'\\": _. 13500 Ridgehaven Road G ; . \( U i C ..-r &lt; ,.\ Little Rock, AR 72211 223-8477 Dr. Donald J. Henderson. 925 East Dixon Road Little Rock, AR 72206 490-6209 Dr. Martha Johnson 925 East Dixon Road Little Rock, AR 72206 490-6205 Mr. Jim Sharkey, CCD Director Community and Economic Development 550 Edgewood Drive, .Suite 590 Maumelle, AR 72113 Mr. Junius Babb Assistant Superintendent Little Rock School District 501 Sherman Street Little Rock, AR 72202 Mr. Bobby Acklin North Little Rock School District 2700 North Poplar Street North Little Rock, AR 72114 Crystal Hill Elementary Paren,t PCSSD Assistant Superintendent PCSSD Director of Equity ., . c~;s~s~,ta-_f~ ;r -&lt; . -~ . Pulaski County Special School District . Pro:pQsed)\fi:dd'}e S~bool ,. According to the 2000 U.S. Census, 1,984 children between the ages .of 5 to 17 years old reside within-the City of Maumelle . . The average annual growth rate for.this age group w~ 4%, between the y.eatS 1990 and 2000. Based on:this continued average rate of growth, the City of Maumelle should have . approximately 2; 146 children in the-year 2002 and 2, 4l4 children in the: y~ar-2005. According to the 2000 U.S. -Census, 591 children between the ages of 12 to 15 years old . reside within the-City of Maumelle. The average annual growth rate for this age group was 4. 6%, between the years 1990 and 2000. Based on this continued average rate of growth, the City of Maumelle should have approximately 646 children in the year 2002 and 740 children in the year 2005. According to the 2000 U.S. Census, 431 children between the ages of 13 to 15 years old reside within the City of Maumelle. Unfortunately, the U.S. Census did not obtain data on 12 to 13 year old children. Source: Mr. Jerry L. Bell Assistant Research Specialist Census State Data Center UALR Institute for Economic Avancement Tel: 501-569-8538 EXHIBIT I ~ RECEIVED C lr-D \f- li--..J"l'ff OCT 2 9 2002 OFACEOF DESEGREGATION MONITORING IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERJ.'-J DIVISION U s OISlRICT ~~SAS EASTE.RN DISTRICT oc, 2 5 2002 JAMES W. McCORMACK, CLER~ B'f.- OE.P CLE.RK LITTLE ROCK SCHOOL DISTRICT PLAINTIFF V. NO. 4:82CV00866 WRW/JTR PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO.I, ET AL DEFENDANTS INTER VEN ORS INTER VEN ORS MRS. LORENE JOSHUA, ET AL KATHERINE KNIGHT, ET AL MOTION FOR HEARING REGARDING RELEVANCE OF 28 U.S.C. 455 TO THE PRESENT PROCEEDINGS The Joshua Intervenors respectfully move the Court to set a hearing for the purpose of determining whether 28 U.S.C. 455 has any relevance to the present proceedings. The Joshua Intervenors respectfully submit that 28 U.S .C. 455 states: (a) Any justice, judge, or magistrate [magistrate judge J of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questions. (b) He shall also disqualify hi"mself in the follovving circumstances: (]) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding; (2) Where in private practice he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judg eor such lawyer has been a material witness concerning it; (3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or -1- expressed an opinion concerning the merits of the particular case in controversy; (d) For the purpose of this section the following words or phrases shallhave the meaning indicated: (1) "proceeding" includes pretrial, trial, appellate review, or other stages of litigation; In reference to 28 U.S .C. 455(b)(2), the Comt is required to disqualify itself"where in private practice he served as a lawyer in the matter in controversy ... " Undersigned counsel are informed that the Honorable District Court, while in private practice, appeared in 833 F.2d 113 (8th Cir. 1987) in re: Little Rock School District vs. Pulaski Countv Special School District, No. 1., Nos. 87-2150 and 87-2363, before the United States Court of Appeals for the Eighth Circuit. The cited Opinion addressed the issue of whether Judge Henry Woods should be disqualified. The disqualification - issues had been raised by several of the parties including, notably, the Board of Education of the Little Rock School District. See attached Opinion, Exhibit A. The Court of Appeals determined "that errors of procedure took place but we do not agree that it is reasonable to infer partiality or bias on the part the able and experienced district judge." The Court of Appeals apparently upheld the arguments of his honor which were made while His Honor was in private practice. The Court of Appeals did not explain its reasons in that Opinion but did so in 839 F.2d 1296, 1299. The disqualification issues, which were presented by His Honor while in private practice, were addressed in a lengthy Opinion on pages 1301, 1302 and 1303. The Court of Appeals, in that same Opinion, also addressed many of the issues which are raised or could have been raised in the present proceedings including compensatory programs in the LRSD, 839 F.2d 1306, magnet schools, 839 F.2d 1309, and teacher assignments in LRSD, 839 F.2d 1296. -2- The Court , in writing its Opinion dated September 13, 2002, included virtually all the citations from the Court of Appeals (see Exhibit B) hereto but did not refer to, mention or address these two impo1iant Opinions in which the Collli, participated as a trial attorney in private practice. Plaintiff's counsel have sought to obtain the briefs which were filed with respect to Nos. 87-2150 and 87-2363 by His Honor, while in private practice, and any other briefs or activity which address that subject and have been unable to do so in a timely fashion. Their own records are incomplete regarding those filings . Request has been made of the Clerk of the Court of Appeals, however, to retrieve such briefs of all the parties regarding the two cited cases and are informed by the Clerk of that Court that he will retrieve the file. See Exhibit C. The Joshua Intervenors request that the Court convene an evidentiary hearing for the purpose of exploring the role the Court had, if any, while in private practice with respect to the subject case. - In this respect, counsel having just learned this information, also notes that the Court has employed as a law clerk of the Court's staff one of the original lawyers who filed the instant case, Ms. Janet Pulliam. Counsel also note that at least one of Joshua counsel is a friend of Ms. Pulliam. Ms. Pulliam and her associates, however, are listed as counsel of record in at least these appellate citations; 778 F.2d 404, 407; and 959 F.2d 716. She was in association with Phil Kaplan and other counsel in833 F.2d 112 where Mr. Kaplan's name appears before the Honorable William R. Wilson, Jr. and she was in association with Mr. Kaplan in 839 F.2d 1296. This is confirmed by the fee application of counsel for the LRSD which went to the Comi of Appeals in 1992. See Exhibit D. The Joshua Intervenors believe that 28 US.C. 455 issues are raised which should be developed at a hearing. Counsel are not moving for the Court to recuse at this time; however they would like to have an opportunity to review the proceedings that are set fo1ih above and any other ,., - .) - writings to which the Court was privy, while in private practice, between himself and his client, Judge Woods. In that way, the Com1 and the pai1ies would be in a better position to address the applicability of 28 U.S.C. 455. FURTHERMORE, the Joshua Intervenors respectfully further pray that at such heaiing the Court 1) inform counsel whether the present assignment of this case to this Court considered His _Honor's earlier role in the case while in private practice, in the light of28 U.S.C. 455(b)(2); 2) the basis for the Com1's conclusion that it did not have a duty to recuse pursuant to 28 U.S.C. 455 (b )(2); and 3) request that the Court, if possible, make available to counsel copies of all briefs which His Honor has filed in this case while in private practice. '; 7 / ,. ./ , I / I . I, . I //\ /--J';,( -~-+ ,/_ ~ '-c,'2-r,.;,f,-/'Lu:..._;, Robert Pressman, Mass Bar No. 40960 22 Locust A venue Lexington, MA 02421 (781) 862-1955 Respectfully submitted, Jo n W. Walker, AR Bai No. 64046 JOHN W. WALKER, P.A. 1723 Broadway Little Rock, Arkansas 72206 (50 l) 374-3 758 (501) 374-4187 (Fax) Rickey Hick1&lt;_9{ Bar No. 89235 -. Attorney at L-a:w Evergreen Place 1100 North University, Suite 240 Little Rock, Arkansas 72207 (501) 663-9900 -4- \ CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing: hqf been serzs:9- fl -~ ,,,and U.S. Mail, postage prepaid to the following counsel of record, on this i-5 , l\_day of cfl-. '/?-&amp;..., 2002: Mr. Christopher Heller FRIDAY, ELDREDGE &amp; CLARK 400 W. Capitol, Suite 2200 Little Rock, Arkansas 72201 Ms. Ann Brown Marshall ODM One Union National Plaza 124 West Capitol, Suite 1895 Mr. Sam Jones WRIGHT, LINDSEY &amp; JENNINGS 2200 Worthen Bank Building 200 West Capitol Little Rock, Arkansas 72201 -5- Mr. Dennis R. Hansen Office of the Attorney General 323 Center Street 200 Tower Building Little Rocle Arkansas 72201 Ivlr. Steve Jones JACK, LYON &amp; JONES, P.A. 425 W. Capitol, Suite 3400 Little Rock, Arkansas 72201-3472 Mr. Richard Roachell ROACHELL LAW FIRM 11800 Pleasant Ridge Road, Suite 146 Post Office Box 17388 Little Rock, Arkansas 72222-7388 3 833 FIWERAL llEI'ORTEU, 2d SE!t!ES In 1e LJ'l"J'LI~ HOCK SCHOOi, lllS'!'lllC'r, Petilloncr. LITTLE HOCK SCIIOOL DIS'fJtl C:r, Appellant, V. PUl,ASIU COUNTY SPECIAi, SCHOOi, DlS'l'Rl&lt;.:I' NO. I, Appcllcc. Nos. 87-2150, 87-2303. United States Court of Appeals, Eighth CircuiL Submitted Nov. 3, 1987. Deciclcd Nov. 6, 1U87. Supplemental Opinion Filed l'eb. 9, 1988. l.,iligalion was hroughl involving election for school board positions. The Uniled States District Court for the Eastern District of Arkansas, Henry Woods, J., direct,. ed elections for three school board positions and nppenl was filed and petition for writ of mandate was filed asking for disqualification of district coutt judge. The Court of Appeals, Arnold, Circuil .Judge, held Lhnt: (1) fact Lhat lawyer wilh whom trial judge once practiced npp"ared at one time in nnolher case consolidated with pending cnse did not require district court judge's disqualification, and (2) enors of procedure in p1oceeding did not give rise lo reasonable inference of parLialily or bias so as to require disqualiricalion of district courL judge. Ordered accordingly. J. Judges e,,45 Fact that lawyer with whom district court judge once practiced appeared at one lime for amicus curiae in case consolidated with and Inter severed from pending case did not warrant disquali(icalion of district court judge; consolidated case was closed case, or at most, dormant, when it was consolidated and such fleeLing and tenuous connection did not require recusal. 28 U.S. C.A. 455(n), (h)(2). l. Herny Woods, Unile&lt;I Slates Dislrlct 2. Judges &lt;S=-~9(1) Procedural errors which occurred in litigation involving school board election did not give rise to reasonable inference of partiality or hias so as to require disqualification of district court judge. 28 U.S.C.A. 465(a), (b)(2). P.A. Hollingsworth, LiLtle Rock, Ark., for appellant. William R. Wilson, Jr., Little Rocle, Ark., fot Judge Woods in mandamus. Phil Kapla,i, Little Rock, Ark., for Little Rock School Dist. Sam Perroni, Little RocU, Ark., for Rayburn. Phillip Lyon, Chicago, 111., for North Lit,. tie Rock. Before HEJi NEY, ARNOLD, and WOLLMAN, Circuit Judges. ARNOLD, Circuit Judge. The two proceedings captioned above, to gether wiLh a number of appeals raising related issues, were argued before us on November 3, 1987, in Little Rock, Arkansas. Two of Lhe many important issues p1esenled deserve immediate answers: (1) Shall the school-board election now scheduled for December 8, 1987, in the Little Rock School District (LRSD), be allowed to lake place? (2) Who shall preside over the District Court! No. 87- 2368 is an appeal by LRSD from Lhe DistricL Court's I order of October 1, 1987, directing that elections for three school-board positions be held on December 8, 1987. This order is affirmed. We find no error of law, abuse of discretion, or clearly erroneous finding of fact in the District Court's order. It is ou, understanding that LRSD is free now to pursue actively the search for a new superintendent, and that it will be free to hire someone right after the elec tion. No. 87-2160 is a petition for writ of mandamus filed by LRSD, asking us to Judge for the Eastern District of Arkansas. APPLICATlON OF WOOD 113 Cltcns833 F.211 ltJ (SlhClr. 1981) declare that Judge Woods should have dis- The judgment in No. 87-2363 is affirmed qualified himself. In the alternative, it is The petition for writ of mandamus in No. suggested that we simply direct that anoth 87-2160 is denied. We t.lirect lhnt our rnnn er judge be assigned lo this case. ln addi dates in these lwo cases issue forthwiU1 lion to the petition for mandamus, various 1 t is 50 ordere&lt;l. appeals also include suggestions for Lhe disqualification of the trial judge. We are not satisfied that such drastic re1ief is ap propriate. [1] Two main grounds for recusal are urged. First, a lawyer with whom Judgt? Woods once pracLiced appeared at one Lime for an amictis curiae in a case called Cla,t, v. Board of Educ. of the Little Rock School Dist, No. LR-C-64-155. The o;otrict Court first consolidated Cla,k with the instant case, then later severed it and returned it to the docket of another judge. Disqualification is sought under 28 U.S.C. 455(b)(2), which requires disqualification "where in private practice . . a lawyer with whom [the judge] previously prncliced law served during such association as a lawyer concerning the matter." We disagree with this argumenl Clark was a closed case, or at most dormant, when it was consolidated with this one, and in any event it has now been severed. We do not think that such a fleeting and tenuous con nection between the present case and the judge's p3rlner's activiLies while in practice years ago, was intended by Congress to require recusal. [21 In addition, Lhe parties seeking disqualification assert that because of certain procedural improprieties the judge's "impartiality might reasonably be questioned." 28 U.S.C. 455(a). We agree that errors of procedure took place, but we do not agree that it is reasonable to infer partiali ty or bias on the part of U,e able and experienced District Judge. He has performed with diligence in circumstances that are anything but easy. We decline to re rnove him from the case. Another opinion will be filed in due course further explaining our reasons for the conclusions expressed today with re spect to the election and disqualification matters, and addressing as well the other questions raised in these cases. In re Applicalion of Lnny A. WOOD lo Appear Before the Grnnd Jury (Misc. 85-L-02). Appcnl of UN11'ED S'l'A'fl~S of America. No. 86-1719. United SLnl.es Court of Appenls, Eighth Circuit Submilled March 10, 1987. Decided Nov. 12, 1987. Former conspirncy defendant, who w; acquilted, broughL applicalion to mnke inc vidual presentation lo grand jury concer ing allegations of perjury by F'Bl agent. United States ALtorney presented alleg lions lo grand jury, which declined to t.al acLion. Applicant then filed petition alle ing matter had not been fairly present, nnd again requesting permission to nppe before grand jury. The United Slntea D lrict Court, District of Nebraska, Wan, !{. Urbom, J., issued order lo United St.ul Attorney of Disll"ict to make represen1 lion of matler, or applicant's petition war be granted. The United States appeal&lt; The Court of Appe&gt;tls, Henney, Cir&lt;! Judge, held that (1) District Court's ori was proper exercise of supervisory pow and (2) order did not violate separation powers. Affirmed. f&lt;'agg, CircuiL Judge, dissented w opinion. ~ -- &lt;.&gt; ~- ..) ---:s: -~ l-l{ - 921 F.2d 1371 (1990) 949 F.2d 253 (1991) 56 F.3d 904 (1995) 148 F.3d 956 (1998) 243 F.2d 361 (1957) .369 F.2d 661 (1966) 426 F.2d 1035 (1970) 449 F.2d 493 (1971) 465 F.2d 1044 (1972) 705 F.2d 265 (1983) 778 F.2d 404 (1985) - 971 F.2d 160 (1992) 131 F.Jd 1255 (1997) 83 F.Jd 1013 (1996) 112 F.3d 953 (1997) JOHN W. WALKER SHAWN CHILDS ivlr. j\,fichael Gans United States Court of Appeals for the Eighth Circuit Thomas F. Eagleton Court House Room 24.329 111 South 10th Street St. Louis, MO 63102 JOHN vV. 'vVALKER, P.A. A'ITORNEY AT LAW 1723 BROADWAY LITTLE ROCK, ARKANSAS 72206 TELEPHONE (501) 374-3758 FA.t'C (501) 374-4187 Vi.a Facsimile - 314-244-2780 October 22, 2002 Re: Case No. 84-1543 Little Rock School District v. Joshua; Case No. 84-1620 Little Rock School District; OF COUNSEL ROBERT JVIcHENRY. P.A. DONNA J. 21-IcHENRY 8210 HENDERSON ROAD W'ITLE ROCK. ARKANSAS i2210 PHONE: (501) 372-3425 FAX (501) 372-3428 EM.ill: mchenryd@swbell.net Case Nos. 87-2150 and 87-2363 - Little Rock School District v. Pulaski County Special School Dear Mr. Gans: Would you kindly search your files and advise whether you have in your archives the briefs of the Appellants and the Appellees regarding the above captioned cases. I am panicularly interested in whether there were briefs filed on behalf of the District Court in the above captioned cases. JWW:js Thank you for your attention to this matter. ~incerely, %9 F'JWBJIJ\L ItEPOitTJm, 2d SERJES Cl'lTl,E R&lt;JCI( SCHOOL D!STR!CT. Appollant, Aune Milchell; Bob Moore; Pfl.t Gee; Pal Rayburn; Mary .T. Gngej North LiHli Roch CIDs:;room Teachers Associalion; Pula!;Jd Association rJf Clai-~room TeaChP.r~; Litf.le Rock Cl~ssroom 'J.'':!:achers Association; Al~xa Arm slron:;; I{arlos Armsfronr;; Etl Bullinv ton; 1\h,yyam DcJ.vjs; .Jani1.::e Deni: John Harrison; Alvin 1-J.ndson; Talia Hut.Ison; Milton .Jacksoni Lor&lt;2:ne Jo.~ht1a; Lesl.ie .lo!'lhu;:,.; Stacy .Joshua: Wayne .Joshuai ltatherine f{nighl: Sara Matthews; Ber.it)' Mcl{inney; .Derr iclt Milesi .hrnlCe Miles; .John M. Mi l2s; NAACPi Joyce Person; Brli1n Tnyl01:; Hilton Taylor; Par5l,a 'f~ylor: RfJbert Willingham; 1'011y~ Willi11g. ham, Jnterve11orn, V. PULASIU COUNTY SPECIAL SCHOOi, D_18TJ1ICT II I; North Little . Rock School DislrJct; Ll;!:OI\ B:irues; Sheryl Dunn; Mac Faulhn~ri Ilichanl A. Gid, ding:,; Mari:,.rme Go::;ser; Dl111 Hind man; Shirley Lowery; Bob Lyon: GCorge A. McCrary; Bob l\lf)rnr.; Stert Morley; Buddy R~ines; D~vid Sain: Hoh Stender; Dole Wnrd; John \VRrd: Judy Weari Gni.inger Williams, Dcfen- 1lant-::, PhiliJl E. Kapla11; JanP.t PulH::i.mi John Bi.lheilner; F.A. Holling!'iworth, Appel lees. LITTLE llOCK SCl!OOL JJJSTHICT, Appellee, Aune Mitchell; Bob P.-'loore: Pat Gee; Piit R~Jburn; Mary .T. Gage; fforth Lilllr . Roel( Clrtl=i!'il'oorn Teachers /\ssociation: Pul::u,ld As:mciation or Classroom Teachers; Little Reel&lt; Classroom Te::tchets Assnc.ialion; Alexa J\_rm!' it.ro11g; I{arlos An11!'itron11; Ed Dul/ingt, 111; l{huyyam Dads; Janice Deni: .Jo h 11 Hnnisun; Alvin Hut.Ison; T:1li.i ; . t: i.,l'l'TLE 1t0CJ{ SCHOOL lHS'l', " Plll,ASIO &lt;)T\'. 8CltOOL I . 'i.l'I Cllc :i.c: 959 F.,.d 716 (IUh Cir. 1992) Huclsun: Milton Jackson; .l,ur-?:nc Josh- Sara l\lnU:llcw:,: H&lt;'cl(J' l\'lcllin ucJ'; Hcr- 110; Le~lie. Joshua; Slncy Joshun; riclr J\.li les; .Tn ni (e Mi.lr.:r.; Jo hn M. Wr1y11e Joshua; J(alhninc J.{nighl.; Miles; NAACP; Joy&lt;:~ .Pcnm11: Bthrn Sl\rn ~fa.Llhews: He.ckr l\ld{ inuer; Der- Taylor: .lli ll.0 1\ 'l':t)' lor; Par i:: hn TaJ lor; rick ~mes; Janice ntiles; .Juhn I\'[. lloherl. \V illi11 p. lrn 111: 'f'onJ'a Willin rr- ~liles; NAACP; Joyce Persol!; Ddan Imm, lulervcnon;, Tr1rlor; Hilto11 Taylor; Pan; lrn. Tay lor; v . Robert Willi11ghru11: To11yn Will ing- PUl. ,\Sl\l CO\JN'l'Y sn;c.u1. SCIIOOI, ham, IntervenonJ, PULASl{l COUNTY SPECIAL SCHOOL DISTRICT # I: North Little !lock School District: L(!on Barnes; Sher.\'! D111111: J\lnc Faullrner; Riclrn rd A. GicldingSi Mnria1111c Gosser; Don Himlmnn; Shirley i..fJtrery: Bob L)'OJli George A. l\kCrory; Bol, Moore; Sl.c,e ~forley; Butld.r Rnines; Dadd Sain: Dab Stender; Dale \Varel; .J ohn Wnnl; Judy Wear; Grainger Willin111s, De[en don ls, Philip E. J{nphn; .i~t1et Pullia111; .John IJilhcimer: P.A. llo ll i11gsworth, Appe/la11ls. LITJ'LE ROC![ SCHOOL DIS'l'!llCT. Appelhrnt, Anne Milchclli llolJ l\foore; Pat. Gee; Pnf: Hayburn; l\fory .J. Gage: Norlh Little flock C.:las~room Tcad1crs Association; Pulos-kt Assor.iation ur Classro(1m Tenchers; J ,iltle Rock Cla~sroont . Teo.chers J\.ssodalion; Alcxn Arm-strong; Rarlos Annslro11g; Ed B11fli11r.lo11; l(hayyfuu J.)avi!';; Janice Hcnl.: John Harrison; Aldn Ilml.c;on; 'l'alin Hudson: Milton .fncksoni .Lorc11e .Jo~h. ua; Leslie .Joshua; Sl0;cy J o~ lrn :i; Wa_rne .Jo~lni:i.; !{nllt!!dne JC11 ig-llt.i IJISTl l l CT ff .l: North l,lltlc H.oclt fk hoo l Hist.rid: Leon JJ:in1 1~!;i Sher.1'1 1J111111; .t\:lnc Ji'1111 llmer; lticJrnnl A. n it1- di 11 r,s; Muri:rnne Om:sex; ])un Jl i1111- 1tm n; Sh irlny l,nwcty: Uob L.Yon: &lt;:cnrirc A. McCrnry; Hoh Moon::; Steve .l\'lorl~y; Utu111y .1lai 11 e5; 1):1\'id S:i i1t; Boh Sl:cntlc r; On ie \Vnnl; John Wnnl; Jud]' Wear; (~ rai11 r~er \V illi;1111 ~, DP.fen~ Phi.lip R Rapln11: .fmtd I1u11i:1111; Joh11 Bilheimer: P.A .. ll ollin ~!-wmth. Appcll cte,;. Nos. D.l-.tr.3R, !H-1U1R, , .. ,,1 D.l--ZIG2. United Stat.es Court: or Appe:tlf::, gight;h Circuit. Suhmitted ,fan. '1, J992. Decided Marc:li ?..!I, .lH92. .Law firm which ,eprescuted school di$ti ict in schoril de~eg-rcg:ll:io11 Ci\SC n11plied (or att.orney fees for ~crv icP.s rendP. rr.,1. The United Stat.e~ .Uisl.rkt Court for I.he gast.r.rn Dist.rid n( Ark~nsas, Snsa11 Web her Wrir,hl:, ,J.1 round thnt. di~trict Wt18 a prevnili11g p:ut_y, l:h:it t.l1e parties hn,I agreed l:lrnt clisl:dct would prosecute foe pct.ilions at firm~ pn~vailing 1ntet,, that di~t.rid wonlrl pay tliffcrP.nr:.c bet.ween \.heir billed ml.rs "ml \ltocr.ed~ u.f nny :tU.oi:11cys1 fees award, and 1.hnt I.he p:trtir.~ hnll rnotlifir. cl their n,rrec111c11l. l,t&gt; providP. that ixro11p :ind firm \\;ou ld split: ewinly any aw:tnl mncle h_1 the coo rt. I lir,l.rid nppe:ile,1. The Court of Appeals he.lei I.hat: (1) nmouol: of nwanl was neil .her dearly erro1H?.0115 nor ~huM of ,!iscrnl:ion: (2) (i11din1,r l.h:1t. cnt\- 1-rnd r.xisl.ed hct:wccn clistr id: hnd firm a11d conl.enL":: of I.Im cont.rnd w:m supported hy I.he e,,idenr.e; and (B) tlisl.ricl: w:is not e::; l: opp,~d 1-(1 dcf~nd :tj{:dn~I: conlP.nl.ion llrnt superin!:cudent had np;recd l.o firm's ptopost, I for r;o;r,o ~plit in aw~rd of :'tU.ornnys' foes . Affirmed. --:..---____ __ _ RECEIVED OCT 3 1 2002 f:t1 -o UC'.' Mn: f~.fl.JI IN THE UNITED ST A TES DISTRICT coultl5'rt:,~N 8itf~,trl 1 OFFICE OF EASTER.t"'\J DISTRICT OF AR.KAJ."'\JSAS DC Hicr,4Jtt;SA.s DESEGREGATIOH MOHITORIHG WESTERN DIVISION JAM T 2 5 lOO By.- s VV Mccc , '2 LITTLE ROCK SCHOOL DISTRICT V. NO. 4:82CV00866 WRW/JTR PULASKI COUNTY SPECIAL SCHOOL _DISTRICT NO.I, ET AL MRS. LORENE JOSHUA, ET AL KA THERINE KNIGHT, ET AL RMA.cic 'L'~F Of: P C(;;;RK DEFENDANTS INTER VEN ORS INTER VEN ORS THE JOSHUA INTERVENOR'S MOTION TO STAY REDUCTION OF ODM STAFF The Joshua Intervenors respectfully move for the entry of an order staying reduction of the - ODM staff, if any, until the final approval of the ODM budget. For cause, the Joshua Intervenors respectfully show the Court as follows: 1. On or about October 14, 2002, Intervenors' counsel learned from an African American staff member of ODM, Ms. Linda Bryant, that she had been given notice of termination as an ODM staff member effective on or about October 15, 2002. Ms. Bryant conveyed to counsel her understanding that her termination was attributable to a directive or requirement of this Couii. 2. Thereafter, in an Order entered on October 16, 2002, this Court recognized that under the law of the case [LRSD v. PCSSD, 971 F.2d 160, 166 (8 1h Cir. 1992)], the pa1iies must have the opportunity for comments and objections prior to final approval of the ODM budget. See Order, para. 3. This Court also wrote that "no proposed [ODM] budget has yet been submitted .. .. " Order, para. 4. A. \j os hua. staymnt -1- 3. The number of ODM staff is a matter encompassed in the ODM budget. 4. In view of the content of the Court's Order of October 16, 2002, it appears that (a) the termination of Ms. Bryant may have resulted from a misunderstanding; (b) alternatively, any actual directive or requirement that Ms. Bryant be te1minated, prior to the completion of the budget-approval process, was inconsistent with the law of the case. WHEREFORE, the Joshua Intervenors respectfully pray that the Court delay any reduction of ODM staff until final approval of the next ODM budget and declare that it was not the Comi's intention that any reduction in ODM staff take place before final budget approval. Robert Pressman, Mass Bar No. 405900 22 Locust A venue Lexington, MA 02421 (781) 862-1955 A: \joshua.staymnt Respectfully submitted, y' hrr W. Walker, AR Bar No. 64046 / 'JOHN W. WALKER, P.A. 1723 Broadway Little Rock, Arkansas 72206 (50 l) 3 74-3758 (501) 374-4187 (Fax) Rickey Hicks, AR Bar No. 89235 Attorney at Law Evergreen Place 1100 Nonh University, Suite 240 Little Rock, Arkansas 72207 (501) 663 -9900 -2- CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing has been sent by fa~ and U.S. Mail, postage prepaid to the following counsel of record, on this ';2_ ,;1-/4iay of 62-e,6.i..&amp;.-.&gt;c- 2002: Mr. Christopher Heller FRIDAY, ELDREDGE &amp; CLARK 400 W. Capitol, Suite 2200 Little Rock, Arkansas 72201 Ms. Ann Brown Marshall ODM One Union National Plaza 124 West Capitol, Suite 1895 Mr. Sam Jones WRIGHT, LINDSEY &amp; JENNINGS 2200 Worthen Bank Building 200 West Capitol Little Rock, Arkansas 72201 A: \jos hua. staymnt Mr. Dennis R. Hansen Office of the Attorney General 323 Center Street 200 Tower Building Little Rock, Arkansas 72201 Mr. Steve Jones JACK, LYON &amp; JONES, P.A. 425 W. Capitol, Suite 3400 Little Rock, Arkansas 72201-3 4 72 Mr. Richard Roachell ROA CHELL LAW FIRNf 11800 Pleasant Ridge Road, Suite 146 Post Office Box 17388 Little Rock, Arkansas 72222-73 88 Jo~;lw. Walker I_ ., - .) - A.uonz2y at Zc.w 1723 Broad,,vcry Lt..,_,l~ Roe~ ld.7,b:?t.ras ';1206 Te!ephor:e (501) 374-3758 Fr=: (501) 374-418~ .L~"&lt;{ TR.~"fSiY.J1SSION COv-:E.R SHEET .... J. Da:ie_ ,- L Io ( J.. c I Zo O --z- 1 .;o.- [ Fa::.. [ $7/-0107) i Re: [ Sender~ (_ YOU S'.!.~OuID R.ECE.:.'i/E [__ __( including cover shee~J] Pd.GE(S), INCLUDING TEJS COvL'?. &amp;&lt;-:.TET. IF YOU DO NOT RECEIVE .tl...LL THE PAGES, PLEASE CALL "&lt;(501) 374-3758&gt;" The iD:fur.nmion coi.mined.in tlll! fucs;mile =age is a.ttoraeyprivileged.ao.d coufidenti:il .in:formation im:encied only for the use of tb.e indidua! or entity namd above. Tf the re~e: of mis message is not th.e incencied reci-pie!lt, or tb.e e::nployee or ..g~ ~onsibie ,o ~liver re ro dle in:.;;nd.cd. recrpien.:, you are b.e.--eby ll.O~ed ibar my dissetrinarion. c!L-mbunon or copying of 1bis communication is sn-ictly prohibim. if you have received. dris communic:i.tiOll m =r, pies.se i=.ediE.Ie ilOttty us by ,:clepr..one, and return ,he or:ginal me.;sage to us E.! tb.e above address via die U.S. Pesta! Service. T..:lc.llk you.. ---------------------- ~ RECEIVED OCT 3 1 2002 - OFFICE OF DESEGREGATION MONITORING IN THE UNITED STATES DISTRJCT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRJCT vs. 4:82CV00866-WRW PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, et al MRS. LORENE JOSHUA, et al KA THERINE KNIGHT, et al ORDER FILED E U.S. DISTRICT COURT ASTERN DISTRICT ARKANSAS OCT 2 5 2002 ~~Mr-Y~_-s_w=GG'.::~::Q~~::':Q~:.C l!;RK -- ~ PLAINTIFF DEFENDANTS INTER VEN ORS INTERVENORS Joshua Intervenors' Motion to Stay Reduction of ODM Staff is DENIED because it is moot- please see the Order entered on October 16, 2002. IT IS SO ORDERED this 25th day of October, 2002. W~0.~- UNITED ST A TESDlSTRICT E THIS DOCUMENT ENTERED ON DOCKET SHEET IN COMPLIANCE (~~~~1~1,j~Q~~~~~.~~ 6 9 2 1N THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT V. LR-C-82-866 RECEIVED PLAINTIFF PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL MRS. LORENE JOSHUA, ET AL KATHERINE KNIGHT, ET AL OCT 3 0 2002 OfFICEOF DESEGREGATION MONITORJNG DEFENDANTS JNTERVENORS INTER VEN ORS PLAINTIFF'S RESPONSE TO JOSHUA INTERVENOR'S MOTION FOR HEARING REGARDING THE RELEVANCE OF 28 U.S.C. 455 TO THE PRESENT PROCEEDING Plaintiff Little Rock School District (hereinafter "LRSD") for its Response to Joshua Intervenor's (hereinafter "Joshua") Motion for Hearing Regarding the Relevance of 28 U.S.C. 455 to the Present Proceeding states: 1. Joshua's Motion should be denied for failing to comply with the requirement of Local Rule 7.2(a) that all motions be accompanied by a brief consisting of a concise statement of the relevant facts and applicable law. Joshua essentially seeks to obtain discovery from the Court to determine whether grounds for disqualification exist and an advisory opinion as to the applicability of 28 U.S.C. 455(b)(2). The LRSD knows of no legal authority for Joshua to obtain discovery from the Court. If such legal authority exists, Joshua should include it in a brief as required by Local Rule 7.2(a). It is well-settled that advisory opinions are rarely, if ever, proper in federal litigation. See Order filed Feb. 19, 2002, p. 1 (Docket No. 3576). 2. Joshua's Motion should also be denied because (a) it is too late for Joshua to seek recusal based on the Court's representation of the Honorable Henry Woods over a decade ago and (b) the Court's prior representation of Judge Woods does not require recusal pursuant to 28 U.S.C. 455(a) and (b). WHEREFORE, the LRSD prays that Joshua's Motion be denied; that it be awarded its costs and attorneys' fees expended herein; and that it be awarded all other just and proper relief to which it may be entitled. F:IHOME\FENDLEYILRSD 200 1\unitary-rcsponsc-mot-hcaring-DQ wpd Respectfully Submitted, LITTLE ROCK SCHOOL DISTRICT FRIDAY, ELDREDGE &amp; CLARK Christopher Heller (#81083) John C. Fendley, Jr. (#92182) 2000 Regions Center 400 West Capitol Little Rock, AR 72201-3493 (501) 2 CERTIFICATE OF SERVICE I certify that a copy of the foregoing has been served on the following people by depositing a copy of same in the United States mail on OctoberZr-, 2002: Mr. John W. Walker JOHN W. WALKER, P.A. 1 723 Broadway Little Rock, AR 72201 Mr. Sam Jones Wright, Lindsey &amp; Jennings 2200 Nations Bank Bldg. 200 West Capitol Little Rock, AR 72201 Mr. Steve Jones JACK, LYON &amp; JONES, P.A. 425 W. Capitol, Suite 3400 Little Rock, AR 72201-3472 Mr. Richard Roachell Roachell Law Firm Plaza West Building 415 N. McKinley, Suite 465 Little Rock, Arkansas 72205 Ms. Ann Marshall Desegregation Monitor 1 Union National Plaza 124 W. Capitol, Suite 1895 Little Rock, AR 72201 Mr. Dennis R. Hansen Office of the Attorney General 323 Center Street 200 Tower Building Little Rock, AR 72201 F:\HOME\FENOLEY\LRS D 200 I \unitary-response-mot-hearing-DQ. wpd 3 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT V. LR-C-82-866 PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL MRS. LORENE JOSHUA, ET AL KATHERINE KNIGHT, ET AL RECEIVED OCT 3 0 2002 OFRCEOF DESEGREGATION MONITORING RECEIVED OCT 3 0 2002 OFACE OF DESEGREGATION MONITORING PLAINTIFF DEFENDANTS INTER VEN ORS INTER VEN ORS MEMORANDUM BRIEF IN SUPPORT OF PLAINTIFF'S RESPONSE TO JOSHUA INTERVENOR'S MOTION FOR HEARING REGARDING THE RELEVANCE OF 28 U.S.C. 455 TO THE PRESENT PROCEEDING I. Joshua Cites No Authority Authorizing the Relief Sought. Joshua essentially seeks to obtain discovery from the Court to determine whether grounds for disqualification exist and an advisory opinion as to the appli,cability of 28 U.S.C. 455(b)(2). The LRSD knows of no legal authority for Joshua to obtain discovery from the Court. If such legal authority exists, Joshua should include it in a brief as required by Local Rule 7.2(a). It is clear that Joshua has no right to compel discovery from the Court. See Cheeves v. Southern Clays, Inc., 797 F.Supp. 1570, 1580-81 (M.D. Ga. 1992)("At the outset, there is simply no precedent for deposing the presiding judge pursuant to compulsory process in aid of motions to disqualify; and, for a number of practical as well as legal and policy considerations, there is no need or justification for such a procedure."). It is equally clear that advisory opinions are rarely, if ever, proper in federal litigation. See Order filed Feb. 19, 2002, p. 1 (Docket No. 3576). For these reasons alone, Joshua's Motion should be denied. II. 28 U.S.C. 455. Joshua's Motion should also be denied because (a) it is too late for Joshua to seek recusal based on the Court's representation of the Honorable Henry Woods over a decade ago and (b) the Court's prior representation of Judge Woods does not require recusal pursuant to 28 U.S.C. - 455(a) and (b). Each of these grounds for denial will be discussed in tum below. A. It is too late for Joshua to seek recusal based on the Court's representation of the Honorable Henry Woods over a decade ago. The Eighth Circuit has consistently held that motions to disqualify pursuant to 28 U.S.C. 455(a) and (b) must be filed in a timely manner. Holloway v. United States, 960 F.2d 1348 (8th Cir.1992)( claims under 28 U.S.C. 455 must be made in a timely manner); Oglala Sioux Tribe v. Homestake Mining Co., 722 F.2d 1407, 1414 (8th Cir.1983) ("Although 455 does not include an explicit time limitation, we believe that a timeliness requirement is appropriate .... "); United States v. Bauer, 19 F.3d 409, 414 (8th Cir.1994) ("This court has held that claims under 455 'will not be considered unless timely made.'") (quoting Holloway). Parties are required to apply for recusal "at the earliest possible moment after obtaining knowledge of facts demonstrating the basis for such a claim," Apple v. Jewish Hosp. &amp; Medical Ctr., 829 F.2d 326, 333 (2nd Cir.1987), for two reasons: (1) a prompt application affords the district judge an opportunity to assess its merits, and (2) a prompt application avoids the risk that a party is holding back a recusal motion as a fall-back position in the face of an adverse ruling. See In re International Business Machines Corp., 45 F.3d 641,643 (2nd Cir.1995); accord In re Cargill, Inc., 66 F.3d 1256, 1262-63 (1st Cir.1995) ("In the real world, recusal motions are sometimes driven more by litigation strategies than by ethical concerns."); Phillips v. Amoco Oil Co., 799 F.2d 1464, 1472 (11th Cir.1986) ("Counsel, knowing the f This project was supported in part by a Digitizing Hidden Special Collections and Archives project grant from The Andrew W. Mellon Foundation and Council on Library and Information Resources.</dcterms_description>

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