Includes responses to Pulaski County Special School District's (PCSSD's) motion to enforce settlement agreement, PCSSD board members' motion to intervene in their individual capacities, and request for entry of appearance.

<?xml version="1.0" encoding="utf-8"?>
<items type="array"> <item>

<dcterms_description type="array">

<dcterms_description>District Court, motion to intervene; District Court, motion to dismiss the Pulaski County Special School District's (PCSSD's) fourth motion to enforce settlement agreement; District Court, memorandum brief in support of motion to dismiss the Pulaski County Special School District's (PCSSD's) fourth motion to enforce settlement agreement; District Court, memorandum brief in support of motion to intervene; District Court, order; District Court, Pulaski County Special School District (PCSSD) board members motion to intervene in their individual capacities; District Court, memorandum in support of motion to intervene; District Court, response to Pulaski County Special School District's (PCSSD's) fourth motion to enforce settlement agreement and for allied relief; District Court, request for entry of appearance This transcript was create using Optical Character Recognition (OCR) and may contain some errors. MOBILE: 501-350-2573 OFFICE: 501-907-9797 CLAY FENDLEY ATTORNEY AT LAW JOHN C. FENDLEY, JR. P.A. 51 WINGATE DRIVE LITTLE ROCK., AR 72205 August 5, 2003 The Honorable William R. Wilson, Jr. United States District Court Eastern District of Arkansas 600 West Capitol A venue Little Rock, Arkansas 72201-3325 HAND-DELIVERED RE: LRSD v. PCSSD NO. 4:82CV00866WRW Dear Judge Wilson: 0 : ~ E-MAIL: fendley l@alltel.net FAX: 501-907-9798 RECEIVED AUG 5 2003 OFFICE OF DESEGREGATION MONITORING Enclosed please find a Motion to Intervene and accompanying brief which I, along with Mike Wilson and Will Bond, have filed today on behalf of Greg Bollen, James Bolden, Martha Whatley and Sue Ann Whisker. The motion arises out of the PCSSD's Fourth Motion to Enforce Settlement Agreement. It is our understanding that a hearing on the PCSSD's motion has been scheduled for August 18, 2003. We respectfully request that our intervention motion be considered at that hearing as well. 1bank you for your time and attention to this matter. Sincerely, cc: All counsel The Honorable J. Thomas Ray IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT v. NO. 4:82CV00866WRW PULASKI COUNTY SPECIAL SCHOOL DISTRICT, ET AL. MRS. LORENE JOSHUA, ET AL. KATHERINE KNIGHT, ET AL. GREG BOLLEN, JAMES BOLDEN, RECEIVED AUG 5 2003 OFFICE OF DESEGREGATION MONITORING PLAINTIFF DEFENDANTS INTERVENORS INTERVENORS MARTHA WHATLEY AND SUEANN WHISKER MOV ANTS/INTERVENORS MOTION TO INTERVENE Greg Bollen, James Bolden, Martha Whatley and Sue Ann Whisker for their Motion to Intervene state: 1. The Movants move to intervene in this case pursuant to Fed. R. Civ. P. 24(a). 2. The Movants have an interest in this Court's resolution of the PCSSD's Fourth Motion to Enforce Settlement Agreement. The Movants seek to create a new school district in northeast Pulaski County by detaching territory from the PCSSD through the process set forth in Ark. Code Ann. 6-13-1501 through 1505 (Michie Supp. 2002). In accord with that process,' 1The election will be the fourth step in the process established by Ark. Code Ann. 6- 13-1501 through 1505. The Movants initiated the process by commissioning an independent feasibility study. Next, they gathered petition signatures and submitted them to the State Board of Education, along with additional information required by statute. Third, on July 14, 2003, the State Board of Education held a hearing on the petition, found it complied with the detachment statute and voted to order an election. Page 1 of 4 the State Board of Education on July 16, 20032 ordered an election to be held September 16, 2003 so that voters residing in the proposed new school district may vote on whether to detach from the PCSSD. If a majority of voters favor detachment, the State Board of Education will order the creation of the new district. See Ark. Code Ann. 6-13-1505(a). In its Fourth Motion to Enforce Settlement Agreement, the PCSSD argues that detachment will violate the Court's Consent Decree arising out of the parties' 1989 Settlement Agreement and asks the Court to order the State Board ofEducation to rescind its July 16, 2003 order and to stop the September 16, 2003 election on detachment. The Movants have an interest in seeing that the election go forward as a necessary part of the detachment process established by Ark. Code Ann. 6-13- 1501 through 1505. 3. If this Court grants the PCS SD the relief it seeks, it will as a practical matter - impair or impede the Movants' ability to establish an independent school district in northeast Pulaski County by the process established by Ark. Code Ann. 6-13-1501 through 1505. The new district cannot be created without the election that the PCSSD seeks to stop. See Ark. Code Ann. 6-13-1505(a). 4. The Movants' interest is not adequately represented by the existing parties to this case. 5. The Movants' memorandum brief submitted in support of this motion is hereby incorporated by reference. 6. The Movants' proposed Motion to Dismiss the PCSSD's Fourth Motion to 2Although the hearing was July 14, 2003, the State Board of Education did not actually issue its order until July 16, 2003. Page 2 of 4 Enforce Settlement Agreement and the accompanying brief are attached hereto as Exhibit A and B, respectively. WHEREFORE, the Movants pray that they be granted leave to intervene and all other just and proper relief to which they may be entitled. Respectfully Submitted, Greg Bollen, James Bolden, Martha Whatley &amp; Sue Ellen Whisker Mike Wilson 602 W. Main Street Jacksonville, AR 72076 (501) 982-9411 Will Bond Bond &amp; Chamberlin 602 W. Main Street Jacksonville, AR 72076 (501) 982-9411 John C. Fendley, Jr. John C. Fendley, Jr. P.A. 51 Wingate Drive Little Rock, AR 72205 (501) 907-9797 Attorneys for Movants B:Yiimc. ~t-~,~ Fendley, Jr. Page 3 of 4 CERTIFICATE OF SERVICE I certify that a copy of the foregoing has been served on the following people via handdelivery on August 5, 2003: Mr. Christopher Heller Friday, Eldredge &amp; Clark 2000 Regions Center 400 W. Capitol Little Rock, AR 72201 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 Finn 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. Timothy Gauger Assistant Attorney General Office of the Attorney General 323 Center Street 200 Tower Building Little Rock, AR 72201 Mr. Mark A. Hagemeier Assistant Attorney General Office of the Attorney General 323 Center Street 200 Tower Building Little Rock, AR 72201 Mr. Mark Burnette Mitchell, Blackstock, Barnes, Wagoner, Ivers &amp; Sneddon 1010 W. Third Street Little Rock, AR 72201 Mr. Scott Smith General Counsel Arkansas Department of Education #4 Capitol Mall, Room 404-A Little Rock, AR 72201 Page 4 of 4 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DNISION UTILE ROCK SCHOOL DISTRICT V. NO. 4:82CV00866WRW PULASKI COUNTY SPECIAL SCHOOL DISTRICT, ET AL. MRS. LORENE JOSHUA, ET AL. KA THERINE KNIGHT, ET AL. GREG BOLLEN, JAMES BOLDEN, MARTHA WHATLEY AND SUE ANN WHISKER MOTION TO DISMISS PLAINTIFF DEFENDANTS INTERVENORS INTERVENORS INTERVENORS THE PCSSD'S FOURTH MOTION TO ENFORCE SETTLEMENT AGREEMENT Greg Bollen, James Bolden, Martha Whatley and Sue Ann Whisker (hereinafter the "Bollen Intervenors") for their Motion to Dismiss the PCSSD's Fourth Motion to Enforce Settlement Agreement state: 1. The Bollen Intervenors seek to create a new school district in northeast Pulaski County by detaching territory from the PCSSD through the process set forth in Ark. Code Ann. 6-13-1501 through 1505 (Michie Supp. 2002). In accord with that process, 1 the State Board 1The election will be the fourth step in the process established by Ark. Code Ann. 6- 13-1501 through 1505. The Bollen Intervenors initiated the process by commissioning an independent feasibility study. Next, they gathered petition signatures and submitted them to the State Board of Education, along with additional information required by statute. 'Third, on July 14, 2003, the State Board of Education held a hearing on the petition, found it complied with the detachment statute and voted to order an election. Page 1 of 4 Exhibit A of Education on July 16, 20032 ordered an election to be held September 16, 2003 so that voters residing in the proposed new school district may vote on whether to detach from the PCS SD. If a majority of voters favor detachment, the State Board of Education will order the creation of the new district. See Ark. Code Ann. 6-13-1505(a). 2. In its Fourth Motion to Enforce Settlement Agreement, the PCS SD argues that detachment will violate the Court's Consent Decree arising out of the parties' 1989 Settlement Agreement and asks this Court to order the State Board of Education to rescind its July 16, 2003 order and to stop the September 16, 2003 election on detachment. 3. Also in the PCSSD's Fourth Motion to Enforce Settlement Agreement, individual PCSSD board members claim that the detachment statute denies them due process and equal protection because only those residing in the territory to be detached will be permitted to vote in - the September 16, 2003 election. See PCSSD's Motion, ,r 9. 4. This Court lacks jurisdiction over both the PCSSD's claims based on the Consent Decree and the individual board members' claims based on the U.S. Constitution. The Court has no jurisdiction over the PCSSD's claims because the PCSSD's alleged harm (detachment) is contingent upon a majority of voters approving detachment, and therefore, the PCSSD's claims are not ripe for adjudication. The Court has no jurisdiction over the individual board members' claims because their claims do not implicate the Consent Decree and because the board members, in their individual capacities, are not parties to this case. For these reasons, the PCSSD's Fourth Motion to Enforce Settlement Agreement should be dismissed. 2 Although the hearing was July 14, 2003, the State Board of Education did not actually issue its order until July 16, 2003. Page 2 of 4 WHEREFORE, the Bollen Intervenors pray that the PCSSD's Fourth Motion to Enforce Settlement Agreement be dismissed; that they be awarded their costs and attorneys' fees expended herein; and that they be awarded all other just and proper relief to which they may be entitled. Respectfully Submitted, Greg Bollen, James Bolden, Martha Whatley &amp; Sue Ellen Whisker Mike Wilson 602 W. Main Street Jacksonville, AR 72076 (501) 982-9411 Will Bond Bond &amp; Chamberlin 602 W. Main Street Jacksonville, AR 72076 (501) 982-9411 John C. Fendley, Jr. John C. Fendley, Jr. P.A. 51 Wingate Drive Little Rock, AR 72205 (501) 907-9797 Attorneys for Movants Page 3 of 4 CERTIFICATE OF SERVICE I certify that a copy of the foregoing has been served on the following people via handdelivery on August 5, 2003: Mr. Christopher Heller Friday, Eldredge &amp; Clark 2000 Regions Center 400 W. Capitol Little Rock, AR 72201 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 Finn 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. Timothy Gauger Assistant Attorney General Office of the Attorney General 323 Center Street 200 Tower Building Little Rock, AR 72201 Mr. Mark A. Hagemeier Assistant Attorney General Office of the Attorney General 323 Center Street 200 Tower Building Little Rock, AR 72201 Mr. Mark Burnette Mitchell, Blackstock, Barnes, Wagoner, Ivers &amp; Sneddon IO 10 W. Third Street Little Rock, AR 72201 Mr. Scott Smith General Counsel Arkansas Department of Education #4 Capitol Mall, Room 404-A Little Rock, AR 72201 Page 4 of 4 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT V. NO. 4:82CV00866WRW PULASKI COUNTY SPECIAL SCHOOL PISTRICT, ET AL. MRS. LORENE JOSHUA, ET AL. KATHERINE KNIGHT, ET AL. GREG BOLLEN, JAMES BOLDEN, MARTHA WHATLEY AND SUEANN WHISKER PLAINTIFF DEFENDANTS INTERVENORS INTERVENORS INTERVENORS MEMORANDUM BRIEF IN SUPPORT OF MOTION TO DISMISS THE PCSSD'S FOURTH MOTION TO ENFORCE SETTLEMENT AGREEMENT I. Ripeness. This Court must presume that it lacks jurisdiction "unless 'the contrary appears affirmatively from the record."' Bender v. Williamsport Area School Dist., 475 U.S. 534, 546 (1986) (quoting King Bridge Co. v. Otoe County, 120 U.S. 225,226 (1887)). "It is the responsibility of the complainant clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute and the exercise of the court's remedial powers." Bender, supra, at 546, n. 8 (quoting Warth v. Seldin, 422 U.S. 490, 517-518 (1975)). The PCSSD fails to allege facts demonstrating that its Fourth Motion to Enforce Settlement Agreement is ripe for adjudication. "The basic rationale of the ripeness doctrine is 'to prevent the courts, through avoidance Page I of 6 Exhibit B of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effect felt in a concrete way by the challenging parties.'" National Right to Life Political Action Committee v. Conner, 323 F.3d 684, 692 (8th Cir. 2003) (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 148-49 (1967), overruled on other grounds by Califano v. Sanders, 430 U.S. 99 (1977)). Consistent with this rationale, "courts deciding whether a dispute is ripe should consider (1) the hardship to the plaintiff caused by delayed review; (2) the extent to which judicial intervention would interfere with administrative action; and (3) whether the court would benefit from further factual development." Id. Each of the three factors weighs in favor of a finding that the PCSSD's motion is not ripe. First. the PCSSD will suffer no hardship by delaying review until after the September 16. 2003 election. The detachment statute requires this Court's approval before detachment may actually take place. See Ark. Code Ann. 6-13-1505(b)(2). Consequently. the PCSSD will not suffer any harm before this Court has an opportunity to resolve the issues raised in its Fourth Motion to Enforce Settlement Agreement. Next, this Court granting the relief sought by the PCSSD would substantially interfere with administrative action taken by the State Board of Education. The State Board of Education ordered an electio.n based on its finding that the Bollen Intervenors satisfied the requirements of the detachment statute. The PCSSD's request that the State Board of Education be directed to rescind its order would, if granted, directly interfere with the State Board of Education's action taken pursuant to state law. Page 2 of 6 Finally, this Court could benefit from further factual development, in that the Court needs to wait and see whether the voters approve detachment. If they do not, the PCSSD's motion will be rendered moot. It is well-settled that "[a] claim is not ripe for adjudication if it rests upon 'contingent future events that may not occur as anticipated, or indeed may not occur at all."' Texas v. United States, 523 U.S. 296, 300 (1998)(quoting Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 580-81 (1985)). The PCSSD's Fourth Motion to Enforce Settlement Agreement is not ripe for adjudication because the alleged harm is contingent upon voter approval of detachment in the September 16, 2003 election ordered by the State Board of Education. Accordingly, this Court lacks jurisdiction to hear the motion, and it should be dismissed. II. Individual Board Member Claims. The PCSSD may argue that a live controversy exists based on the constitutional claims made by individual PCSSD board members. In their individual capacities, they claim that the detachment statute denies them due process and equal protection because only those residing in the territory to be detached will be permitted to vote in the September 16, 2003 election. See PCSSD's Motion, ,r 9. However, this Court does not have jurisdiction to decide these claims as a part of the present case for two reasons. First, this Court's remedial authority is limited to interpretation and enforcement1 of its Consent Decree. Knight v. PCSSD, 112 F.3d 953, 955 (8th Cir. 1997). In that case, this Court (the Honorable Susan Webber Wright) enjoined a strike by the PCSSD's teachers. The teachers 1Enforcement includes modification of the Consent Decree based on changed factual circumstances. See Rufo v. Inmates of the Suffolk County Jail, 502 U.S. 367,388 (1992). Page 3 of 6 appealed, and the Eighth Circuit noted that the Consent Decree does not address the teachers' right to strike and reversed holding, "The jurisdiction of the District Court to enforce [the Consent Decree] does not include the authority to resolve other disputes among the parties or to adjust their legal rights and responsibilities arising from other sources." Id. Similarly, the individual board members' constitutional claims have nothing to do with the Consent Decree. They allege that the detachment statute denies them due process and equal protection because they cannot vote in the detachment election. The Consent Decree simply does not address who should be permitted to vote in a detachment election. Therefore, this Court does not have jurisdiction to address the constitutional claims being asserted by the individual board members. Second, this Court lacks jurisdiction over the constitutional claims of the board members because they are not parties to this case in their individual capacities. See Bender v. Williamsport Area School Dist., 475 U.S. 534, 543-44 (1986)(individual school board member sued in his official capacity lacks standing to appeal grant of declaratory judgment against school district); Doe v. Claiborne County, Tenn., 103 F.3d 495, 511 ((5111 Cir. 1996) (individual school board members cannot act under of color of state law as required for liability under 1983 ); Ark. Code Ann. 6-13-620 (establishing the power and duties of school boards). To pursue their individual claims, the board members must file a separate case. ill. Conclusion. In sum, this Court lacks jurisdiction over both the PCSSD's claims based on the Consent Decree and the individual board members' claims based on the U.S. Constitution. The Court has no jurisdiction over the PCSSD's claims because the PCSSD's alleged harm (detachment) is Page 4 of 6 contingent upon a majority of voters approving detachment, and therefore, the PCSSD's claims are not ripe for adjudication. The Court has no jurisdiction over the individual board members' claims because the claims do not implicate the Consent Decree and because the board members, in their individual capacities, are not parties to this case. For these reasons, the PCSSD's Motion to Fourth Enforce Settlement Agreement should be dismissed. Respectfully Submitted, Greg Bollen, James Bolden, Martha Whatley &amp; Sue Ellen Whisker Mike Wilson 602 W. Main Street Jacksonville, AR 72076 (501) 982-9411 Will Bond Bond &amp; Chamberlin 602 W. Main Street Jacksonville, AR 72076 (501) 982-9411 John C. Fendley, Jr. John C. Fendley, Jr. P.A. 51 Wingate Drive Little Rock, AR 72205 (501) 907-9797 Attorneys for Movants Page 5 of 6 CERTIFICATE OF SERVICE I certify that a copy of the foregoing has been served on the following people via handdelivery on August 5, 2003: Mr. Christopher Heller Friday, Eldredge &amp; Clark 2000 Regions Center 400 W. Capitol Little Rock, AR 72201 Mr. John W. Walker JOHNW. 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 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. Timothy Gauger Assistant Attorney General Office of the Attorney General 323 Center Street 200 Tower Building Little Rock, AR 72201 Mr. Mark A. Hagemeier Assistant Attorney General Office of the Attorney General 323 Center Street 200 Tower Building Little Rock, AR 72201 Mr. Mark Burnette Mitchell, Blackstock, Barnes, Wagoner, Ivers &amp; Sneddon 1010 W. Third Street Little Rock, AR 72201 Mr. Scott Smith General Counsel Arkansas Department of Education #4 Capitol Mall, Room 404-A Little Rock, AR 72201 Page 6 of 6 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT V. NO. 4:82CV00866WRW PULASKI COUNTY SPECIAL SCHOOL DISTRICT, ET AL. MRS. LORENE JOSHUA, ET AL. KATHERINE KNIGHT, ET AL. GREG BOLLEN, JAMES BOLDEN, RECEIVED AUG 5 2003 OFFICE OF DESEGREGATION MONITORING PLAINTIFF DEFENDANTS INTERVENORS INTERVENORS MARTHA WHATLEY AND SUEANN WHISKER MOV ANTS/INTERVENORS MEMORANDUM BRIEF IN SUPPORT OF MOTION TO INTERVENE Greg Bollen, James Bolden, Martha Whatley and Sue Ann Whisker (hereinafter collective referred to as the "Bollen Intervenors") move to intervene in this case pursuant to Fed. R. Civ. P. 24(a). Fed. R. Civ. P. 24(a) requires the Court to permit intervention where (1) the party seeking intervention claims an interest relating to the property or transaction which is the subject of the action, (2) the party seeking intervention is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, and (3) the interest of the party seeking intervention is not adequately represented by existing parties. For the reasons set forth in the accompanying Motion, the Bollen Intervenors satisfy each of these requirements and should be granted leave to intervene. It may be argued that the State of Arkansas adequately represents the interest of the Page 1 of 3 Bollen Intervenors in this case. However, the State cannot be expected to litigate this case with the same commitment to detachment as the Bollen Intervenors. Toe State's commitment will be tempered by other considerations, such as the financial impact on the State. The Bollen Intervenors, on the other hand, have expended an incredible amount of time and money to create the new district, and they want detachment as soon as possible so that they may take control of their childrens' educational future. "The burden resting on intervenors to show that their interests are not adequately represented by existing parties is a 'minimal' one." LRSD v. PCSSD, 738 F.2d 82, 84 (8th Cir. 1984). This burden is more than met in the present case. Respectfully Submitted, Greg Bollen, James Bolden, Martha Whatley &amp; Sue Ellen Whisker Mike Wilson 602 W. Main Street Jacksonville, AR 72076 (501) 982-9411 Will Bond Bond &amp; Chamberlin 602 W. Main Street Jacksonville, AR 72076 (501) 982-9411 John C. Fendley, Jr. John C. Fendley, Jr. P.A. 51 Wingate Drive Little Rock, AR 72205 (501) 907-9797 Page 2 of 3 CERTIFICATE OF SERVICE I certify that a copy of the foregoing has been served on the following people via handdelivery on August 5, 2003: Mr. Christopher Heller Friday, Eldredge &amp; Clark 2000 Regions Center 400 W. Capitol Little Rock, AR 72201 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 Finn 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. Timothy Gauger Assistant Attorney General Office of the Attorney General 323 Center Street 200 Tower Building Little Rock, AR 72201 Mr. Mark A. Hagemeier Assistant Attorney General Office of the Attorney General 323 Center Street 200 Tower Building Little Rock, AR 72201 Mr. Mark Burnette Mitchell, Blackstock, Barnes, Wagoner, Ivers &amp; Sneddon 1010 W. Third Street Little Rock, AR 72201 Mr. Scott Smith General Counsel Arkansas Department of Education #4 Capitol Mall, Room 404-A Little Rock, AR 72201 Page 3 of 3 FILED U.S. DISTRICT COURT EASTERN DISTRICT ARKANSAS A 11r, 6 2003 IN THE UNITED ST ATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS LITTLE ROCK DIVISION JAMES W. McCORMACK, CLER!&lt; By:. _______ -===:-:::-= DEP CLER~ LITTLE ROCK SCHOOL DISTRICT V. No. 4:82CV00866 WRW/JTR PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL. MRS. LORENE JOSHUA, ET AL. KATHERINE KNIGHT, ET AL. ORDER PLAINTIFF DEFENDANTS INTERVENORS INTERVENORS On July 25, 2003, Pulaski County Special School District (PCSSD) filed a Fourth Motion to Enforce Settlement Agreement and for Allied Relief (Doc. No. 3760). If any party wishes to file a response to this motion, it should do so by 12:00 p.m., noon, Monday, August 11 , 2003 . On August 5, 2003, Greg Bollen, James Bolden, Martha Whatley, and Sue Ann Whisker filed a Motion to Intervene (Doc. No. 3766). If any party wishes to respond to the "Bollen Intervenors"' (as they styled it) motion, this response should also be filed by 12:00 p.m., noon, Monday, August 11 , 2003. A hearing to address PCCSD's Motion to Enforce is schedule for 10:00 a.m., Monday, August 18, 2003. The Motion to Intervene by the "Bollen Intervenors" will also be addressed at this hearing. Lawyers for each party, including the Arkansas Department of Education, 1 are 1In an Order entered January 18, 1991 (Doc. No. 1418), Judge Wright dismissed the State/ADE as a party to this action "pursuant to the terms of the parties' settlement agreement." However, the Settlement Agreement expressly provides "that the Court may retain jurisdiction to 7 6 8 directed to be present at the hearing no later than 9:30 a.m .. Each party must have at least one representative, other than its lawyers, present at the hearing. IT IS SO ORDERED this 6th day of August, 2003. THIS DOCUMENT ENTERED ON DOCKET SHEET IN COMPLIANCE Wifil:ULE58AN~~C~ ON ~3 BY ... ~ address issues regarding implementation of the Plans." Attachments A, B, C, and D to the Settlement Agreement (Doc. No. 1174). Solidifying this position, in an Order entered August 18, 1993 (Doc. No. 1947), Judge Wright emphasized that, while the State/ADE was no longer a formal party in this action, "it is the law of the case that the Court retains jurisdiction to ensure that the parties, including the State, comply with the terms of the settlement agreement as well as the settlement plans." EDWARD L. WRIGHT ( 1903 -1977) ROBERT S. LINDSEY (1913-1991) ISAAC A. SCOTT . JR. JOHN G. LILE WRIGHT, LINDSEY &amp; JENNINGS LLP ATTORNEYS AT LAW GORDON S. RATHER. JR . ROGER A. GLASGOW C . DOUGLAS BUFORD. JR. PATRICK J. GOSS ALSTON JENNINGS, JR. JOHN R. TISDALE KATHLYN GRAVES M. SAMUEL JONES Ill JOHN WILLIAM SPIVEY Ill LEE J. MULDROW N.M. NORTON CHARLES C. PRICE CHARLES T. COLEMAN JAMES J. GLOVER EDWIN L . LOWTHER, JR. WALTER E. MAY GREGORY T. JONES H. KEITH MORRISON BETTINA E. BROWNSTEIN WALTER McSPADDEN JOHN D. DAVIS JUD'Y SIMMONS HENRY VIA HAND DELIVERY The Honorable Wm. R. Wilson, Jr. U.S. District Courthouse 600 West Capitol Avenue, Suite 360 Little Rock, Arkansas 72201 200 WEST CAPITOL AVENUE SUITE 2300 LITTLE ROCK, ARKANSAS 72201 -3699 (501) 371 - 0808 FAX (501) 376-9442 www . wlj .com OF COUNSEL ALSTON JENNINGS RONALD A. MAY BRUCE R. LINDSEY JAMES R. VAN DOVER Writer 's Direct Dial No. 501 -212-1273 mjoDes@wlj .com August 8, 2003 KIMBERLY WOOD TUCKBR RAY F. COX , JR . TROY A. PRICE PATRICIA SIEVERS HARRIS KATHRYN A. PRYOR J. MARK DAVIS CLAIRE SHOWS HANCOCK KEVIN W. KENNEDY JERRY J. SALLINGS WILLIAM STUART JACKSON MICHAEL D. BARNES STEPHEN R. LANCASTER JUDY ROBINSON WILBER KYLE R. WILSON C. TAD BOHANNON KRISTI M. MOODY J. CHARLES DOUGHERTY M. SEAN HATCH J. ANDREW VINES JUSTIN T. ALLEN MICHELLE M. KAEMMERLING SCOTT ANDREW IRBY PATRICK D. WILSON REGINA A. SPAULDING UaasodMJJ11(11CdcebebrelbeUl1icdSIMO hfl:li ud Tndt!mvt O~ RECEIVED AUG 11 2003 OFRCEOF DESEGREGATION MOKITORIMG Re: Little Rock School District v. Pulaski County Special School District; et al. USDC Docket No.: 4:82CV00866WRW Dear Judge Wilson: Enclosed is a courtesy copy of PCSSD' s Board Members Motion to Intervene In Their Individual Capacities, together with supporting memorandum brief. The originals have been filed and the parties served. Thank you for your consideration in this matter. MSJ:ao Encls. cc/w/encls.: 439660-vl Cordially yours, WRIGHT, LINDSEY &amp; JENNINGS LLP Honorable J. Thomas Ray (via hand delivery) All Counsel of Record (via U.S. Mail) Mr. Ray Simon (via U.S. Mail) Mr. Scott Smith (via facsimile and U.S. Mail) Mr. Will Bond (via facsimile and U.S. Mail) Mr. Mike Wilson (via facsimile and U.S. Mail) Mr. John C. Fendley, Jr. (via facsimile and U.S. Mail) Mr. Timothy Gauger (via hand delivery) Mr. Mark Burnett (via U.S. Mail) IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT V. NO. 4:82CV00866WRW PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL. MRS. LORENE JOSHUA, ET AL. KATHERINE KNIGHT, ET AL. RECEIVED AUG 11 2003 OFFICE OF DESEGREGATION MONITORING PLAINTIFF DEFENDANTS INTERVENORS INTERVENORS MILDRED TATUM, GWEN WILLIAMS, PAM ROBERTS, JEFF SHANEYFELT and DON BAKER MOV ANTS/INTERVENORS PCSSD BOARD MEMBERS MOTION TO INTERVENE IN THEIR INDIVIDUAL CAPACITIES The following PCSSD Board Members, for their Motion to Intervene state: 1. Mildred Tatum, Gwen Williams, Pam Roberts, Jeff Shaneyfelt, and Don Baker, are duly elected members of the Board of Directors of the Pulaski County Special School District. They are also residents in different areas of the PCSSD and taxpayers contributing to the funding of the PCSSD. 2. In such capacity, these board members are defendants in this action in their official capacities. 3. In their proposed Motion to Intervene, certain individuals (the Bollen Intervenors) residing in the Jacksonville area assert that the claims of the foregoing board members relating to equal protection of the law must be brought in a separate action. 438898-v1 4. To cure any such technicality, these board members, who are already defendants in this action, seek to intervene for the limited but substantial purpose of enforcing their individual rights to equal protection guaranteed by the United States and Arkansas Constitutions. Specifically, these intervenors contend that they will be denied equal protection of the law as they are precluded by state law from voting in the "detachment election" scheduled for September 16, 2003, even though they are all registered voters in the PCSSD, taxpayers in the PCSSD, have or have had children or grandchildren in the PCSSD schools, and otherwise have a vested interest in the operation, governance and vitality of the PCSSD as a whole. 5. Such an intervention will foster principles of judicial economy since these board members are already parties to this action in their official capacities and allowing their limited - intervention to assert their individual rights will neither prolong this action nor contribute to any judicial inefficiencies. 6. Your individual directors therefore request permission to intervene in their individual capacities for the limited but substantial purpose of protecting their rights to equal protection as guaranteed by the United States and Arkansas Constitutions. 7. As part of their request for intervention, these individual school board members request permission to adopt that certain motion, statement of material facts and brief in support of motion all filed by the PCSSD on July 25, 2003 . 8. Further, these intervenors observe that they and those situated similarly to them are further being denied equal protection of the law since they are required to pay the expenses of the special election for detachment pursuant to Ark. Code Ann. 6-14-118. Thus, both as 438898-v1 2 individual taxpayers and in their capacity as directors, your intervenors are required to pay for the expenses of an election in which they are denied the right to vote. WHEREFORE, Mildred Tatum, Gwen Williams, Pam Roberts, Jeff Shaneyfelt and Don Baker pray for an order of this Court allowing their limited intervention as described above and authorizing their adoption of the previous motion, statement of material facts and brief all as filed by the PCSSD on July 25, 2003. 438898-v1 Respectfully submitted, WRIGHT, LINDSEY &amp; JENNINGS LLP 200 West Capitol Avenue, Suite 2300 Little Rock, Arkansas 72201-3699 (501) 371-0808 FAX: (501) 376-9442 3 CERTIFICATE OF SERVICE On August 1. 2003, a copy of the foregoing was served via hand delivery on Mr. Timothy Gauger, Assistant Attorney General, 323 Center Street, Suite 200, Little Rock, Arkansas 72201. via facsimile and U.S. Mail on the following: Mr. Scott Smith General Counsel Arkansas Department of Education #4 Capitol Mall, Room 404-A Little Rock, AR 72201 Mr. John C. Fendley, Jr. John C. Fendley, Jr., P.A. 51 Wingate Drive Little Rock, AR 72205 and via U.S. Mail on 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 Mr. Ray Simon Director of the Arkansas Department of Education 4 State Capitol Mall Little Rock, Arkansas 72201-1071 438898-v1 Mr. Mike Wilson Mr. Will Bond 602 W. Main Jacksonville, AR 72076 Mr. Mark A. Hagemeier Assistant Attorney General Arkansas Attorney General's Office 323 Center Street, Suite 200 Little Rock, Arkansas 72201 Mr. Stephen W. Jones 3400 TCBY Tower 4 425 West Capitol Avenue Little Rock, Arkansas 72201 Mr. Richard Roachell Roachell Law Firm Plaza West Building 415 N. McKinley, Suite 465 Little Rock, Arkansas 72205 Mr. Mark Burnett 1010 W. Third Street Little Rock, AR 72201 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DMSION LITTLE ROCK SCHOOL DISTRICT V. NO. 4:82CV00866WRW PULASKI COUNTY SPECIAL SCHOOL -DISTRICT NO. 1, ET AL. MRS. LORENE JOSHUA, ET AL. KATHERINE KNIGHT, ET AL. RECEIVED AUG 11 2003 OFRCEOF DESEGREGATION MONITORING PLAINTIFF DEFENDANTS INTERVENORS INTERVENORS MILDRED TATUM, GWEN WILLIAMS, PAM ROBERTS, JEFF SHANEYFELT and DON BAKER MOV ANTS/INTERVENORS MEMORANDUM IN SUPPORT OF MOTION TO INTERVENE Mildred Tatum, Gwen Williams, Pam Roberts, Jeff Shaneyfelt and Don Baker adopt in their individual capacities the motion, statement of material facts and brief filed by the PCSSD on July 25, 2003. Equal Protection Considerations As the Supreme Court of the United States recently observed, federal courts presented with an appropriate controversy bear a duty to ensure that voting procedures adopted by a state "are consistent with its obligation to avoid arbitrary and disparate treatment of the members of its electorate." Bush v. Gore, 531 U.S. 98, 121 S. Ct. 525, 530 (2000). Furthermore, "[b]ecause our democracy was founded on the principle that 'the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights,' our courts vehemently protect every citizen's right to vote, carefully and 439246-v1 meticulously scrutinizing any alleged infringement." Charfauros v. Board of Elections, 249 F.3d 941, 951 (9th Cir. 2000) (quoting Reynolds v. Sims, 377 U.S. 533, 562 (1964)). The equal protection clause of the fourteenth amendment guarantees fundamental rights to every person, including the right to vote, and these rights may not be impaired for reasons that are arbitrary or discriminatory. Id. This freedom has been rooted in our justice system for at least . a century, for the Supreme Court long ago recognized that the right to vote was a "fundamental political right." Wick Yo v. Hop.kins, 118 U.S. 356, 370 (1886). Nor does the right to the franchise end with the mere right to cast a ballot; there is in addition a "constitutionally protected right to participate in elections on an equal basis with other citizens in the jurisdiction." Dunn v. Blumstein, 405 U.S. 330, 336 (1972). It is true that some restrictions on these rights have been permitted, but only when "no discrimination is made between individuals" in ways that violate the constitution. Carrington v. Rush, 380 U.S. 89, 91 (1965); when the state acts to disenfranchise, the limitations must be "appropriately defined and uniformly applied." Dunn, 405 U.S. at 343. Imposition of Election Costs The rights of the intervenors to equal protection of the law are further compromised and vitiated by the operation of Ark. Code Ann. 6-14-118, which requires the school district to reimburse the County Board of Election Commissioners for the entire cost of any school election. Section (b) further states: At all annual or special elections, the board of directors of each district shall pay the expenses of the election out of the school fund. 439246-v1 2 Your intervenors submit that both in their role as individual taxpayers and patrons and in their official capacity as directors, they are denied the equal protection of the laws when they are denied the right to vote in an election the cost of which they must pay. Violation of Substantive Due Process Rights The immeasurable impact of the planned election on the individual Board members' . rights as voters also constitutes a violation of their right to substantive due process in matters that impinge on important rights. "[A]n election is a denial of substantive due process if it is conducted in a manner that is fundamentally unfair." Bennett v. Yoshina, 140 F.3d 1218, 1226 (1998). Of course, there is a distinction between "garden variety" election irregularities and error that "undermines the integrity of the vote." Id. The ultimate question is whether the election is fundamentally unfair . Id. and n.3 (citing as one example voter reliance on established procedures followed by a change in procedures that results in significant disenfranchisement). There is no precise definition of "fundamentally unfair," but the Court is free to draw on precedent and the particular facts of the case to determine whether voters have been disenfranchised in a way that is arbitrary or capricious, and yet substantial. The Inconsistent Statutory Scheme Your intervenors further note that the companion statutory scheme to the detachment statutes does not deny equal protection of the laws. For instance, if consolidation of districts is proposed via an election, Ark. Code Ann. 6-13-1404(a)(2) requires that: A majority of the qualified electors in the affected districts votes to approve consolidation of the affected districts into a resulting district or districts pursuant to a valid election.. . . Likewise, if a proposal to annex school districts via an election is presented, then Ark. - Code Ann. 6-13-1403(a)(2)(A) requires that: 439246-v1 3 A majority of the qualified electors in the affected district or districts vote to approve the annexation of an affected school district or districts to a receiving district or districts .... Thus, it is only under the circumstances of a "detachment" that the State has sought fit to restrict the grant of the franchise, a matter which your intervenors submit the State cannot properly do and comply with the equal protection clauses of the Arkansas and United States .Constitutions. Conclusion lntervenors pray that their motion to intervene be granted and for all proper relief. 439246-v1 Respectfully submitted, WRIGHT, LINDSEY &amp; JENNINGS LLP 200 West Capitol Avenue, Suite 2300 Little Rock, Arkansas 72201-3699 (501) 371-0808 FAX: (501) 376-9442 ..... ) Special 4 CERTIFICATE OF SERVICE On August .e., 2003, a copy of the foregoing was served via hand delivery on Mr. Timothy Gauger, Assistant Attorney General, 323 Center Street, Suite 200, Little Rock, Arkansas 72201. via facsimile and U.S. Mail on the following: Mr. Scott Smith General Counsel Arkansas Department of Education #4 Capitol Mall, Room 404-A Little Rock, AR 72201 Mr. John C. Fendley, Jr. John C. Fendley, Jr., P.A. 51 Wingate Drive Little Rock, AR 72205 and via U.S. Mail on 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 Mr. Ray Simon Director of the Arkansas Department of Education 4 State Capitol Mall Little Rock, Arkansas 72201-1071 439246-v1 Mr. Mike Wilson Mr. Will Bond 602 W. Main Jacksonville, AR 72076 Mr. Mark A. Hagemeier Assistant Attorney General Arkansas Attorney General's Office 323 Center Street, Suite 200 Little Rock, Arkansas 72201 Mr. Stephen W. Jones 3400 TCBY Tower 5 425 West Capitol Avenue Little Rock, Arkansas 72201 Mr. Richard Roachell Roachell Law Firm Plaza West Building 415 N. McKinley, Suite 465 Little Rock, Arkansas 72205 Mr. Mark Burnett 1010 W. Third Street Little Rock, AR 72201 Mark_A. Hagemeier Assistant Attorney General M. Samuel Jones, III Wright, Lindsey &amp; Jennings 2000 NationsBank Bldg. 200 W. Capitol Little Rock, AR 72201 John W. Walker John Walker, P.A. 1723 Broadway Little Rock, AR 72201 Richard Roachell P.O. Box 17388 Little Rock, AR 72222-7388 Mike Wilson 602 W. Main Street Jacksonville, AR 72076 John C. Fendley, Jr. 51 Wingate Drive Little Rock, AR 72205 THE ATTORNEY GENERAL STATE OF ARKANSAS MIKE BEEBE RECEIVED AUG 11 2003 OFFICE OF DESEGREGATION MONITORING Direct dial: (501) 682-3643 E-mail: mark.hagemeier@ag.state.ar.us August 8, 2003 Christopher Heller Friday, Eldredge &amp; Clark 2000 Regions Center 400 W. Capitol Little Rock, AR 72201-3493 Stephen W. Jones Jack, Lyon &amp; Jones 3400 TCBY Tower 425 W. Capitol Little Rock, AR 72201 Ann Marshall Office of Desegregation Monitoring 1 Union National Plaza 124 W. Capitol, suite 1895 Little Rock, AR 72201 Will Bond Bond &amp; Chamberlin 602 W. Main Street Jacksonville, AR 72076 Re: Little Rock School District v. Pulaski County Special School District, et al. USDC No. LR-C-82-866 323 Center Street Suite 200 Little Rock, Arkansas 72201 (501) 682-2007 FAX (501) 682-2591 Internet Website http://www.ag.state.ar.us/ Dear Counselors and Ms. Marshall: Please find enclosed the State's Request for Entry of Appearance and its Response to PCSSD'S "Fourth Motion to Enforce Settlement Agreement" and for "Allied Relief' which we filed today. MAH Enclosures cc: Mr. Scott Smith Very truly yours, ~.~. MARK A. HAGEM~ Assistant Attorney General IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT v. No. 4:82CV00866 WRW PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, et al. RECEIVED AUG 11 2003 OFFICE OF DESEGREGATION MOMITORlNG PLAINTIFF DEFENDANTS RESPONSE TO PCSSD'S "FOURTH MOTION TO ENFORCE SETTLEMENT AGREEMENT" AND FOR "ALLIED RELIEF" The Arkansas Department of Education submits this response to the PCSSD's1 "Fourth Motion to Enforce Settlement Agreement and for Allied Relief." For the reasons discussed below, PCSSD's motion should be dismissed. The PCSSD seeks an order that would squelch an election in which voters residing in the Jacksonville area will have the opportunity to vote on whether a proposal to create a new school district in the area should proceed. The election in question was approved by the State Board of Education pursuant to state statutes that govern the creation of new school districts by "detachment" of territory from existing districts.2 Those statutes require an election as a step in the process by which such a school district might be created. Furthermore, those statutes contain provisions that guarantee that the creation of such a district will not come to final fruition if 1 The opening paragraph of the motion states that the motion is brought by the PCSSD, its Board, and certain members of its Board "in both their official and individual capacities." In this response the ADE will refer to all of the purported movants collectively as the "PCSSD" unless the context requires otherwise. 2 PCSSD asserts -- erroneously -- in Footnote 2 of its Brief that the statutes governing the creation of school districts by detachment "appl[y] by definition only to the PCSSD and to no other school district." Arkansas Act 1397 of 2003 (a copy of which is attached as Exhibit A) amended Ark. Code Ann. 6-13-1502(d) so that, in addition to school districts that now or in the future serve 15,000 to 20,000 students, the detachment process might also be invoked in school districts that now or in the future encompass an area of 700 square miles or more. Presently, in addition to the PCSSD, the Waldron School District in Scott County encompasses an area in excess of750 square miles. doing so will hamper or impede desegregation efforts of school districts (such as the PCSSD) that operate under court-ordered or court-approved desegregation plans. The PCSSD ignores the possibility that the voters of the Jacksonville area might reject the proposed detachment, an occurrence that would put an end to the detachment process. 3 Instead, the PCSSD filed the instant motion in this Court seeking an order "directing the State Board of Education to rescind its order of July 16, 2003, and cancel its authorization for an election." Additionally, the PCSSD filed an action in state court, which is still pending, that seeks essentially the same relief. See Exhibit 21 to PCSSD's Motion. As is discussed below, the PCSSD's motion is premature at best and should be dismissed on ripeness grounds. Under the applicable state statutes, no district can be created by detachment unless and until electors residing in the territory of the proposed new district vote in favor of the proposed detachment. If the voters reject the proposed detachment on September 16, that will be the end of the matter -- the PCSSD's motion will become moot and this Court will not have to consider the various factual and legal matters presented in the PCSSD's motion. Alternatively, a vote for the proposed detachment by electors on September 16 will not end the matter either. Under this circumstance, an appointed board of the proposed new district would be required by state law to come to this Court and secure any and all orders necessary to ensure that the creation of the new district will not undermine the districts' desegregation efforts. If this new Board ultimately does not seek and successfully obtain all such orders, for whatever reason, the new district will also not come into being. While the day may come when this Court is squarely and concretely presented with a proposed "detachment" district to consider, that day has not yet arrived, and indeed, it may never arrive. Furthermore, if PCSSD prevails in its pending 3 The State, unlike the PCSSD, does not presuppose or assume how the matter will fare at the election. 2 state court action on the state-law grounds it has asserted there, the motion filed in this Court will become moot. As regards the PCSSD's request for "allied relief' -- a claim that the detachment statutes violate due process and equal protection because certain electors who reside in the PCSSD are not, under the statutes, eligible to vote on the proposed detachment -- this Court lacks _jurisdiction to grant such relief as well. The claim for "allied relief' does not involve an allegation of an alleged breach of the Settlement Agreement, and in any event none of the purported movants has standing to assert the "allied relief' claim in the context of this case. A. The PCSSD's Motion is Not Ripe for Review and Should Be Dismissed As noted, the relief sought is an order directing the State Board to "rescind" its order authorizing an election on the question of detachment, which would have the effect of canceling the upcoming election. The basis for this requested relief is the PCSSD's claim that the ultimate creation of the school district cannot happen in such a manner as will not violate some provision of the Settlement Agreement and/or impede their desegregation efforts. The PCSSD's motion should be dismissed because it is not ripe. The detachment process is governed by state law, specifically Ark. Code Ann. 6-13- 1501 et seq. The statutory scheme sets up a multi-step process, and the election is but one necessary step. Section 6-13-1503(2) provides that the detachment process can be initiated, as it was here, by a petition presented to the State Board of Education. If the State Board believes that the petition meets the statutory requirements, the State Board may, as it did here, "order an election on the proposition of detachment to be held at the next annual school election or general election." Ark. Code Ann. 6-13-1504(b)(l). Such an election, however, does not end the process. Ark. Code Ann. 6-13-1505 further provides as follows: 3 6-13-1505. Creation of district. (a) If all the requirements of this subchapter are met and a majority of the votes are cast for the proposition, the State Board of Education shall order the creation of the new school district. (b)(l) At the time the order creating the district is made, the state board shall appoint a board of seven (7) members for the new district to serve until the next regular election of members, when a board of directors shall be elected in compliance with Arkansas law. (2) Following the entry of the order creating the new district and the appointment of a board of directors for the new district but prior to the transfer of any assets, territory, property, liabilities, duties, or responsibilities, any new district created by detachment from an existing district that is a party to any court-ordered desegregation plan shall petition the court having jurisdiction in the desegregation matter and obtain any and all court orders or other relief necessary to ensure that the detachment will not cause the state or any affected school district to be in violation of any orders of the court or any consent orders or decrees entered into by the parties with regard to the desegregation plan. - (Emphasis added). The statutory scheme therefore makes it clear that (a) if the voters reject the proposed detachment, the process comes to an end; and (b ), if the voters approve the proposed detachment, a district with an appointed Board will be created but that "district" will have no assets, territory, property liabilities, duties or responsibilities unless and until that Board successfully secures from this Court all orders necessary to ensure that the creation of the district will not cause the State or any other school district to be in violation of any orders, consent orders or decrees entered in this case. If the Board of the proposed detached district is not successful in that regard, the process ends as well. By seeking to quash the election before it occurs, the PCSSD has "jumped the gun" because before any new district can be created, and before the statutory process can go forward, the voters must approve the proposed detachment at an election. 4 "Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree. It is to be presumed that a cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction." Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375,377 (1994) (internal citations omitted). The "ripeness" doctrine, which flows both from the Article III "case or controversy" jurisdictional requirement and from prudential considerations, requires federal courts to determine whether a particular dispute is "fit for judicial resolution" and whether the parties would "experience hardship if the court withheld consideration of the case's merits." American Canoe Assoc. v. E.P.A., 289 F.3d 509, 512 (8th Cir. 2002) (citing Ohio Forestry Ass'n, Inc. v. Sierra Club, 523 U.S. 726, 733 (1998)). Though it has been said that the ripeness doctrine is something of a "cantaloupe," see Nebraska Public Power v. MidAmerican Energy, 234 F.3d 1032, 1038 (8th Cir. 2000), the Eighth Circuit has noted that the "touchstone" of a ripeness inquiry is "whether the harm asserted has 'matured enough to warrant judicial intervention."' Vogel v. Foth and Van Dyke Associates, Inc., 266 F.3d 838, 840 (8th Cir. 2001) (quoting Paraquad, Inc. v. St. Louis Housing Authority, 259 F.3d 956, 958 (8th Cir. 2001)). The Eighth Circuit has also made it clear that "a claim is not ripe for adjudication if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all." National Right to Life Political Action Committee v. Connor, 323 F.3d 684, 693 (8 th Cir. 2003). (quoting Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 580-81 (1985)). Here, the PCSSD seeks to derail the process under which a new school district might be created out of its existing territory. It is clear that such an "injury," if any, to the PCSSD "rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all," 5 namely, an election outcome favorable to detachment. While the PCSSD claims that the new district, if created, would harm its ability to comply with its desegregation obligations, it has not articulated any concrete harm that the election, by itself, will cause it to suffer. Unless and until at least the election is held and an outcome favorable to detachment occurs, PCSSD's claims are plainly not ripe for review, and they should be dismissed. B. This Court Lacks Jurisdiction Over The Request For "Allied Relier' As regards the PCSSD' s request for "allied relief," this Court lacks jurisdiction to grant such relief and that part of the PCSSD's motion should be dismissed as well. The "allied relief' claim does not purport to be brought to address any alleged breach of the Settlement Agreement, and as PCSSD candidly concedes in the brief in support of its motion, "the current jurisdiction of the District Court is 'only' to enforce the Settlement Agreement." (See PCSSD Brief at p. 23).4 If the claims for "allied relief' are to be brought at all, such claims would have to be presented in a new, separate lawsuit, not as a "motion" filed in this case. Indeed, tacitly conceding this point, the PCSSD has already purported to bring this same claim in the separate action it has initiated in state court. See Exhibit 21 to PCSSD's motion. Further, the PCSSD, its Board, and its Board members in their "official" capacities lack standing to assert the rights of electors residing within the district. The PCSSD and its Board are not "voters" (see Conway School District v. Wilhoit, 854 F.Supp. 1430 (E.D. Ark. 1994)) and, in their "official capacities," the Board members' claims must be treated as if they are brought by the PCSSD Board and the District itself, if at all. The PCSSD's effort to sidestep this issue by purporting to bring the motion on behalf of certain board members in their "individual" 4See Knight v. PCSSD, 112 F.3d 953, 955 (8th Cir. 1997). Ironically, the Knight case involved an effort by the PCSSD to stretch the District Court's jurisdiction beyond its proper bounds after efforts in other forums to spare the PCSSD from dealing with a teachers' strike failed. 6 capacities is equally unavailing. Even if in some long-buried pleading in this case there is some reference to some particular member of the PCS SD Board as a party in an "individual" capacity, the course of proceedings in this case plainly demonstrates that the members of the PCSSD Board were parties in their "official" capacities only. No relief of any kind was ever awarded as against any Board member in his or her "individual" capacity. See Bender v. Williamsport Area School Dist., 475 U.S. 534 543 (1986).5 The Board members have not moved to intervene in this action in their "individual" capacities so as to present their claim for "allied relief," and there is no authority for such intervention in any event. For the foregoing reasons, the PCSSD's "Fourth Motion to Enforce Settlement Agreement and for Allied Relief' should be dismissed. 5 Indeed, if public school funds are being used by the PCSSD to, in part, pay for legal representation for board members for legal work that benefits the Board members personally, i.e., to pursue claims brought by Board members in their "individual" capacities to vindicate their personal rights under the due process or equal protection clauses, a serious question arises as to whether the PCSSD is improperly expending public school funds. See Ark. Constitution, Art. 14, 2 and 3. Ark. Code Ann. 6-13 -623 authorizes governing authorities of school districts to spend public school funds to employ legal counsel, but only to "defend" claims asserted against the governing authority "or against any member thereof, by virtue of his actions in connection with his duties as such member." This statue would not appear to authorize the PCSSD board to employ legal counsel and use public school funds to initiate legal proceedings that purport to vindicate board members' personal rights in those members ' "individual" capacity. 7 Respectfully Submitted, MIKE BEEBE Attorney General #95019 Senior Assistant Attome General MARK A. HAGEMEIER #94127 Assistant Attorney General 323 Center Street, Suite 200 Little Rock, Arkansas 72201 (501) 682-2007 Attorneys for Arkansas Department of Education CERTIFICATE OF SERVICE I, Mark A. Hagemeier, certify that on August _8_, 2003, a copy of the foregoing document was be served by first-class U.S. mail, postage prepaid, on the following person(s) at the address(es) indicated: M. Samuel Jones, III Wright, Lindsey &amp; Jennings LLP 200 W. Capitol, Suite 2300 Little Rock, AR 72201-3699 John W. Walker John Walker, P.A. 1723 Broadway Little Rock, AR 72201 Richard Roachell Roachell Law Firm Plaza West Building 415 N. McKinley, Suite 465 Little Rock, AR 72205 Christopher Heller Friday, Eldredge &amp; Clark 2000 Regions Center 400 W. Capitol Little Rock, AR 72201-3493 Stephen W. Jones Jack, Lyon &amp; Jones 3400 TCBY Tower 425 W. Capitol Little Rock, AR 72201 Ann Brown Marshall ODM One Union National Plaza 124 West Capitol, Suite 1895 Little Rock, AR 72201 8 Mike Wilson 602 W. Main Street Jacksonville, AR 72076 John C. Fendley, Jr. 51 Wingate Drive Little Rock, AR 72205 Will Bond Bond &amp; Chamberlin 602 W. Main Street Jacksonville, AR 72076 . Mark A. Hagemeier 9 ...., 1 2 3 4 Stricken language would be deleted from and underlined language would be added to the law as it existed prior to this session of the General Assembly. State of Arkansas 84th General Assembly Regular Session, 2003 Act 1397 of 2003 HOUSE BILL 2608 5 By: Representative Bond 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 For An Act To Be Entitled AN ACT TO AMEND THE LAWS PERTAINING TO CREATION OF A SCHOOL DISTRICT BY DETACHMENT; AND FOR OTHER PURPOSES. Subtitle AN ACT TO AMEND THE LAWS PERTAINING TO CREATION OF A SCHOOL DISTRICT BY DETACHMENT. BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF ARKANSAS: SECTION 1. Arkansas Code 6-13-1502(d), concerning minimum area and 22 attendance requirements for creation of a school district by detachment, is 23 amended to read as follows: 24 (d) This subchapter shall apply only to school districts that in the 25 school year immediately preceding the detachment had an average daily 26 membership of at least fifteen thousand (15,000) students but not more than 27 twenty thousand (20,000) students, or the school district encompasses a total 28 area of seven hundred (700) square miles or more, now or in the future. 29 30 31 32 33 34 35 36 SECTION 2. EMERGENCY CLAUSE. It is found and determined by the General Assembly of the State of Arkansas that the Arkansas Constitution requires the State of Arkansas to provide a general, suitable, and efficient system of public education; that procedures to ensure a general, suitable, and efficient system of public education need to be in place prior to the beginning the 2003-2004 school year; and that this act is immediately necessary to allow school districts and the electors of those districts ... llllillllllllllllllllllllll~IIIIIII :"! 'EXHIBIT 03081003KAS f.,. ,,, ~, l 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 - 36 As Engrossed: H4/2/03 HB2608 sufficient time to organize and plan to for a general, suitable, and efficient system of education in the district prior to the beginning of the 2003-2004 school year. Therefore, an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto. Isl Bond APPROVED: 4/15/2003 2 03082003KAS1250.TW0018 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT v. No. 4:82CV00866 WRW PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, et al. REQUEST FOR ENTRY OF APPEARANCE RECEIVED AUG 11 2003 OFFICE OF DESEGREGATION MONITORING PLAINTIFF DEFENDANTS Senior Assistant Attorney General Timothy G. Gauger hereby requests that the Court enter his appearance as additional counsel of record for the Arkansas Department of Education for the limited purpose of this Court's consideration and disposition of the PCSSD's "Fourth Motion to Enforce Settlement Agreement and for Allied Relief." Respectfully Submitted, MIKE BEEBE Attorney General Senior Assistant orney General MARK A. HAGEMEIER #94127 Assistant Attorney General 323 Center Street, Suite 200 Little Rock, Arkansas 72201 (501) 682-2007 CERTIFICATE OF SERVICE I, Mark A. Hagemeier, certify that on August .8.__, 2003, a copy of the foregoing document was be served by first-class U.S. mail, postage prepaid, on the following person(s) at the address( es) indicated: M. Samuel Jones, III Wright, Lindsey &amp; Jennings LLP 200 W. Capitol, Suite 2300 Little Rock, AR 72201-3699 John W. Walker John Walker, P.A. 1723 Broadway Little Rock, AR 72201 Richard Roachell Roachell Law Firm Plaza West Building 415 N. McKinley, Suite 465 Little Rock, AR 72205 Mike Wilson 602 W. Main Street Jacksonville, AR 72076 John C. Fendley, Jr. 51 Wingate Drive Little Rock, AR 72205 Christopher Heller Friday, Eldredge &amp; Clark 2000 Regions Center 400 W. Capitol Little Rock, AR 72201-3493 Stephen W. Jones Jack, Lyon &amp; Jones 3400 TCBY Tower 425 W. Capitol Little Rock, AR 72201 Ann Brown Marshall ODM One Union National Plaza 124 West Capitol, Suite 1895 Little Rock, AR 72201 Will Bond Bond &amp; Chamberlin 602 W. Main Street Jacksonville, AR 7207 6 2 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>

</dcterms_description>

</item>
</items>