# Missouri v. Jenkins
## Concurring Opinion

    Kennedy
United States Supreme Court
495 U.S. 33
Missouri v. Jenkins
No. 88-1150 Argued: Oct. 30, 1989. --- Decided: April 18, 1990
Syllabus by the Court
In an action under 42 U.S.C. § 1983, the District Court found that the Kansas City, Missouri, School District (KCMSD) and petitioner State had operated a segregated school system within the KCMSD. The court issued an order detailing a desegregation remedy and the financing necessary to implement it. Although it allocated the costs of the remedy between the governmental entities, the court determined that several state-law provisions would prevent KCMSD from being able to pay its share. Rather than exercising what it believed to be its power to order a tax increase to fund the remedy, the court chose to impose other means including enjoining the effect of one of the state-law provisions to allow KCMSD to raise additional revenue. The Court of Appeals affirmed most of the initial order, but ordered the lower court to divide the remedy's cost equally between the entities. On remand, however, the District Court held that the State and KCMSD were 75% and 25% at fault, respectively, ordered them to share the cost of the remedy in that proportion, and held them jointly and severally liable. Subsequently, the court determined that KCMSD had exhausted all available means of raising additional revenue, and, finding itself with no choice but to exercise its remedial powers, ordered the KCMSD property tax levy increased through the 1991-1992 fiscal year. On appeal, the Court of Appeals rejected the State's argument that a federal court lacks judicial power to order a tax increase. Accepting the District Court's conclusion that state-law limitations prevented KCMSD from raising sufficient funds, it held that those limitations must fall to the Constitution's command and affirmed all of the District Court's actions taken to that point. However, concluding that federal/state comity principles required the District Court to use minimally obtrusive methods to remedy constitutional violations, it required that in the future the lower court should not set the property tax rate itself but should authorize KCMSD to submit a levy to state tax collection authorities and should enjoin the operation of state tax laws hindering KCMSD from adequately funding the remedy. The Court of Appeals' judgment was entered on August 19, 1988. On September 16, the State filed with the court a document styled "State Appellants' Petition for Rehearing En Banc." On October 14, 1988, the Court of Appeals denied this and two similarly styled petitions by other parties seeking to intervene and issued its mandate. One of the would-be intervenors filed with this Court an application for extension of time to file a petition for certiorari 78 days after the issuance of the order denying rehearing and 134 days after the entry of the Court of Appeals' judgment. The application was returned as untimely pursuant to 28 U.S.C. § 2101(c)-which requires that a civil certiorari petition be filed within 90 days after the entry of the judgment below and that any application for an extension of time be filed within the original 90-day period-since, while the filing of a "petition for rehearing" under Federal Rule of Appellate Procedure 40 tolls the running of the 90-day period, the filing of a "suggestion for rehearing in banc" under Rule 35 does not. On January 10, 1989, the Clerk of the Court of Appeals issued an amended order, recalling the October 14 mandate and entering nunc pro tunc effective October 14 an order denying the three "petitions for rehearing with suggestions for rehearing en banc." The State filed a petition for certiorari within 90 days of the October 14, 1988, order, which was granted, limited to the question of the property tax increase.
Held:
1. The State's certiorari petition was timely filed. The Court of Appeals appears to have interpreted and actually treated the State's papers as including a petition for rehearing before the panel. Had it regarded the State's papers as only a suggestion for rehearing in banc, without a petition for rehearing, it would have, as required by Federal Rules of Appellate Procedure 35(c) and 41(a), issued its mandate within 21 days of the entry of the panel's judgment or would have, under Rule 41(a), issued an order extending the time for the issuance of the mandate. Although this Court of Appeals may not on every occasion have observed these technicalities, it cannot be concluded that the court has engaged in a systematic practice of ignoring them. Although a court cannot, post hoc, amend an order to make it appear that it took an action which it never took, the Court of Appeals actually amended its order to reflect the reality of the action taken on October 14, at which time it had entered an order denying the "petitions for rehearing en banc" because this was the manner in which the papers filed with the court had been styled. While the court below, unlike other Courts of Appeals, does not have a published practice of treating all suggestions for rehearing in banc as containing both petitions for rehearing and suggestions for rehearing in banc, this Court will not assume that the court's action in this case is not in accord with its regular practice. Pp. 45-50.
2. The District Court abused its discretion in imposing the tax increase, which contravened the principles of comity. Although that court believed that it had no alternative to imposing the tax itself, it, in fact, had the very alternative outlined by the Court of Appeals. Authorizing and directing local government institutions to devise and implement remedies not only protects the function of those institutions but, to the extent possible, also places the responsibility for solutions to the problems of segregation upon those who have themselves created the problems. While a district court should not grant local government carte blanche, local officials should at least have the opportunity to devise their own solutions to such problems. Here, KCMSD was ready, willing, and, but for the operation of state law, able to remedy the deprivation of constitutional rights itself. Pp. 50-52.
3. The Court of Appeals' modifications of the District Court's order satisfy equitable and constitutional principles governing the District Court's power. Pp. 52-58.
(a) This Court accepts the Court of Appeals' conclusion that the District Court's remedy was proper. The State's argument that the funding ordered by the District Court violates the principles of equity and comity because the remedial order itself was excessive aims at the scope of the remedy rather than the manner in which the remedy is to be funded and thus falls outside this Court's limited grant of certiorari. P. 53.
(b) Under the circumstances of this case, the District Court did not abuse its discretion in ruling that KCMSD should be responsible for funding its share of the remedy. Milliken v. Bradley, 433 U.S. 267, 97 S.Ct. 2749, 53 L.Ed.2d 745, did not hold that a district court could never set aside state laws preventing local governments from raising funds sufficient to satisfy their constitutional obligations just because those funds could also be obtained from the States. To the contrary, § 1983 is authority enough to require each tortfeasor to pay its share of the cost of a remedy if it can, and apportionment of the cost is part of the District Court's equitable powers. Here, the court believed that the Court of Appeals had ordered it to allocate the costs between the two entities. Had the court chosen, as the State argues, to allow the monetary obligations that KCMSD could not meet to fall on the State rather than interfere with state law to permit KCMSD to meet them, the implementation of the order might have been delayed if the State resisted efforts by KCMSD to obtain contribution. Pp. 53-54.
(c) The modifications are not invalid under the Tenth Amendment, since that Amendment's reservation of nondelegated powers to the States is not implicated by a federal-court judgment enforcing the express prohibitions of unlawful state conduct enacted by the Fourteenth Amendment. P. 55.
(d) The Court of Appeals' order does not exceed the judicial power under Article III. A court can direct a local government body to levy its own taxes. See, e.g., Griffin v. Prince Edward County School Bd., 377 U.S. 218, 233, 84 S.Ct. 1226, 1234, 12 L.Ed.2d 256. The State's argument that federal courts cannot set aside state-imposed limitations on local taxing authority because that requires local governments to do more than exercise the power that is theirs has been rejected, Von Hoffman v. City of Quincy, 4 Wall. 535, 18 L.Ed. 403, and fails to take account of local governments' obligations, under the Supremacy Clause, to fulfill the requirements that the Constitution imposes on them. Pp. 55-58.
855 F.2d 1295 (CA 8 1988), affirmed in part, reversed in part, and remanded.
WHITE, J., delivered the opinion for a unanimous Court with respect to Parts I and II, and the opinion of the Court with respect to Parts III and IV, in which BRENNAN, MARSHALL, BLACKMUN, and STEVENS, JJ., joined. KENNEDY, J., filed an opinion concurring in part and concurring in the judgment, in which REHNQUIST, C.J., and O'CONNOR and SCALIA, JJ., joined, post, p. 58.
H. Bartow Farr, III, Washington, D.C., for petitioners.
Allen R. Snyder, Washington, D.C., for respondents.
Justice WHITE delivered the opinion of the Court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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