UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT. MRS. LORENE JOSHUA, et al.

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1 Case 4:82-cv DPM Document 4895 Filed 09/23/13 Page 1 of 7 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT PLAINTIFF v. No. 4:82-cv-866 DPM/HDY PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, et al. MRS. LORENE JOSHUA, et al. KATHERINE KNIGHT, et al. DEFENDANTS INTERVENORS INTERVENORS BRIEF IN SUPPORT OF THE MOTION FOR STAY OF PROCEEDINGS ON JURISDICTIONAL GROUNDS Statement of the Case This case is scheduled for a two-week trial beginning December 9, One of the most important and potentially dispositive issues for trial is whether the State has complied in good faith with the 1989 Settlement Agreement. Doc. 4723, State's Motion for Release, p.3 para. 12 (alleging substantial compliance); Doc. 4724, State s Brief in Support of Motion for Release, pp (arguing good faith compliance); Doc. 4743, LRSD's Motion to Dismiss (alleging State has failed to comply); Doc. 4744, LRSD's Brief (discussing State's lack of good faith compliance); Doc. 4810, Order (Evidence of State's good-faith compliance "creates a sufficient basis for an evidentiary hearing on the motion for release."). To terminate the consent decree, the State of Arkansas, an adjudicated constitutional violator, must prove that it has complied in good faith with the consent decree and

2 Case 4:82-cv DPM Document 4895 Filed 09/23/13 Page 2 of 7 that it has eliminated the vestiges of its past discrimination. Little Rock Sch. Dist. v. Arkansas, 664 F.3d 738, 744 (8th Cir. 2011). LRSD and Joshua contend that the State has violated the 1989 Settlement Agreement by authorizing open-enrollment charter schools in Pulaski County. E.g. Doc and Doc This Court held "as a matter of law, the State did not do so." Doc LRSD and Joshua have appealed that decision to the Eighth Circuit Court of Appeals. Doc and Doc The issue before the Court of Appeals is whether or not the State has complied in good faith with the 1989 Settlement Agreement with respect to charter schools. Argument A federal district court and a federal court of appeals should not attempt to assert jurisdiction over a case simultaneously. Liddell v. Bd. of Educ., 73 F.3d 819, 822 (8th Cir. 1996). The general rule is that the filing of a notice of appeal " divests the district court of its control over those aspects of the case involved in the appeal. " Little Rock Sch. Dist. v. N. Little Rock Sch. Dist., No. 482-cv-866 DPM, 2011 U.S. Dist. LEXIS , at *7 (E.D. Ark. Sept. 23, 2011) (quoting Liddell, 73 F.3d at 822). The issue that is pending in the Court of Appeals is whether the State has complied in good faith with the 1989 Settlement Agreement, specifically with respect to open-enrollment charter schools. That same question is central to this Court s determination of the issues presented by the State's Motion 2

3 Case 4:82-cv DPM Document 4895 Filed 09/23/13 Page 3 of 7 for Release. Little Rock Sch. Dist., 664 F.3d at 744. The question of whether the State is currently violating the 1989 Settlement Agreement with respect to charter schools cannot be separated from the question of whether the State has generally complied in good faith with that same agreement. The general rule against simultaneous jurisdiction was devised by courts in civil appeals "to avoid confusion or waste of time resulting from having the same issues before two courts at the same time." United States v. Gedeon, 514 F. App x 341, 341 (4th Cir. 2013) (quoting United States v. Montgomery, 262 F.3d 233, (4th Cir. 2001)). It serves to "promote judicial economy and avoid the confusion and inefficiency that might flow from putting the same issue before two courts at the same time." Hughes v. Jamestown Square LLC (In re Hughes), 356 F. App x 300, 301 (11th Cir. 2009) (quotations and citations omitted); see also Express Scripts, Inc. v. Aegon Direct Mktg. Servs., No. 4:06-cv-1410 CAS, 2007 U.S. Dist. LEXIS 24787, at *5 (E.D. Mo. Apr. 3, 2007) (The rule applies "to prevent duplicative waste of resources, to reduce uncertainty and unnecessary litigation, and to avoid inconsistent determinations' in multiple fora.") (quotations and citation omitted). "This rule is necessary to prevent one court's stepping on the toes of the other, which would waste judicial time as well as forcing the parties to proceed in two courts in the same case at the same time." Boyko v. Anderson, 185 F.3d 672, 674 (7th Cir. 1999). Where related issues are pending in a court of 3

4 Case 4:82-cv DPM Document 4895 Filed 09/23/13 Page 4 of 7 appeals, a district court should not require "an evidentiary hearing or other timeconsuming procedure that would have the potential to whipsaw the parties between the trial and appellate courts." Id. at 675. The general rule that the filing of a notice of appeal confers jurisdiction on the court of appeals and divests the district court of its control of those aspects of the case involved in the appeal is not without exceptions. Liddell, 73 F.3d at 822. For instance, an exception to the general rule applies "in the kinds of cases where the court supervises a continuing course of conduct and where as new facts develop additional supervisory action by the court is required." Id. (quoting Hoffman v. Beer Drivers & Salesmen's Local Union No. 888, 536 F.2d 1268, 1276 (9th Cir. 1976)). But, this exception does not include "every district court order that arises in the context of ongoing supervision." Id. at 823. "Given the important concerns represented by the general rule of limiting jurisdiction of a case to a single court at any given time, such an expansion of this exception would be ill conceived." Id. The purpose of the "continuing course of conduct" exception is to allow the district court to "maintain a status quo" where "new facts are created by the parties and the maintenance of the status quo requires new action." Hoffman, 536 F.2d at 1276 (describing the purpose behind the continuing course of conduct exception to jurisdictional divestiture); cf. United States v. Michigan, 508 F. Supp. 480,

5 Case 4:82-cv DPM Document 4895 Filed 09/23/13 Page 5 of 7 (W.D. Mich. 1980) (holding that a district court had continuing jurisdiction "to see that the status quo is maintained while the appeal is pending" and to intercede when necessary due to the parties "continuing course of conduct"). This Court retains jurisdiction to insure that desegregation plans and agreements are properly implemented and "to provide a quality integrated education system." Bd. of Educ. of St. Louis v. Missouri, 936 F.2d 993, (8th Cir. 1991) (quotations and citation omitted). The State s Motion for Release, however, seeks to end rather than enforce desegregation obligations. The State seeks to disrupt the status quo. A trial on the State s motion could substantially change the relationship between the parties while LRSD and Joshua s appeal is pending. This Court also retains jurisdiction to adjudicate matters collateral or tangential to the appeal. Desert Orchid Partners, L.L.C. v. Transaction Sys. Architects, Inc., Nos. 8:02CV553 and 8:02CV561, 2007 U.S. Dist. LEXIS (D. Neb. July 24, 2007). The question of State compliance with the 1989 Settlement Agreement, however, is central to both the pending appeal and the State's Motion for Release. Conclusion This Court has previously recognized that the charter school issues must be resolved before the State's Motion for Release can be decided. Doc. 4855, Order, p. 5

6 Case 4:82-cv DPM Document 4895 Filed 09/23/13 Page 6 of 7 4 ("The State's motion has been pending for more than a year. The Court could not address it because the charter-school issues needed handling first."). The Court of Appeals has jurisdiction to decide whether there is a current violation of the 1989 Settlement Agreement with respect to charter schools. This Court has lost jurisdiction of that issue. Because the issue of State compliance with the 1989 Settlement Agreement is at the core of the State s Motion for Release, this Court may not proceed to trial on that motion until the Eighth Circuit Court of Appeals issues its mandate. Respectfully submitted, LITTLE ROCK SCHOOL DISTRICT Friday, Eldredge & Clark Christopher Heller (#81083) 400 West Capitol, Suite 2000 Little Rock, AR (501) heller@fridayfirm.com By: /s/ Christopher Heller Christopher Heller and Clay Fendley (#92182) John C. Fendley, Jr., P.A. 51 Wingate Drive Little Rock, AR (501) clayfendley@comcast.net 6

7 Case 4:82-cv DPM Document 4895 Filed 09/23/13 Page 7 of 7 John W. Walker JOHN W. WALKER, P.A Broadway Little Rock, Arkansas (facsimile) johnwalkeratty@aol.com and Robert Pressman 22 Locust Avenue Lexington, MA EHPressman@Verizon.net MA Bar Member of Bar of this Court CERTIFICATE OF SERVICE I certify that on September 23, 2013, I have electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which shall send notification of such filing to the parties of record. /s/ Christopher Heller Christopher Heller 7