Little Rock School Dist. v. PULASKI COUNTY SP. S., LR-C-82-866.

• Decision Date: 15 November 1991
• Docket Number: No. LR-C-82-866.,LR-C-82-866.
• Citation: 778 F. Supp. 1013
• Parties: LITTLE ROCK SCHOOL DISTRICT, Plaintiff, v. PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, et al., Defendants, Mrs. Lorene Joshua, et al., Katherine W. Knight, et al., Intervenors.
• Court: U.S. District Court — Eastern District of Arkansas

778 F. Supp. 1013

LITTLE ROCK SCHOOL DISTRICT, Plaintiff, v. PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, et al., Defendants Mrs. Lorene Joshua, et al., Katherine W. Knight, et al., Intervenors.

No. LR-C-82-866.

United States District Court, E.D. Arkansas, W.D.

November 15, 1991.

Christopher Heller, Little Rock, Ark., for Little Rock School Dist.

Samuel M. Jones, III, Little Rock, Ark., for Pulaski County Special School Dist.

Stephen W. Jones, Little Rock, Ark., for North Little Rock School Dist.

John W. Walker, Little Rock, Ark., for Mrs. Lorene Joshua, et al., intervenors.

Richard Roachell, Little Rock, Ark., for Katherine W. Knight, et al., intervenors.

MEMORANDUM AND ORDER

SUSAN WEBBER WRIGHT, District Judge.

The parties ask the Court to extend certain millages in the three school districts that are scheduled to expire between the years 1995 and 2003. These millages were not included in a previous order signed by Judge Henry Woods and filed on January 7, 1987, which rededicated and extended various school millages due to expire on or before December 31, 2007. For the reasons explained below, the Court finds that the parties' motion should be and hereby is denied.

On December 24, 1986, the Little Rock School District (LRSD), Pulaski County Special School District (PCSSD), and the North Little Rock School District (NLRSD) filed a joint motion to continue at least until the year 2007 the following millages dedicated to retirement of bonded indebtedness: for the LRSD, 2.74 mills due to expire between 1988 and 1994; for the PCSSD, 9.99 mills due to expire between 1987 and 1994; and for the NLRSD, 4.98 mills due to expire between 1988 and 1996.¹ Five days later, on December 29, 1986, Judge Woods issued an order approving the continuation of the millage amounts, which he later rescinded and then reinstated on January 7, 1987. The order extended each millage

until at least the collection year 2007 and beyond if the school district elects to convert the millage from debt retirement to maintenance and operation, or as otherwise ordered by the Court. In the event the school district converts the millage to maintenance and operation, it shall continue in the same manner as all other maintenance and operation millage and will continue until changed in accordance with state law.

Little Rock School District v. Pulaski County Special School District No. 1, No. LR-C-82-866, slip op. at 2 (E.D.Ark. Dec. 29, 1986).

The attorney who drafted the order for Judge Woods inadvertently did not include all of the millages due to expire before or during the year 2007. At a hearing on September 26, 1989, then Special Master Aubrey McCutcheon requested that the parties prepare a new order to extend the millages omitted from the initial order. A lengthy discussion concerning the millages ensued, focusing on whether a federal court has the power to rededicate a millage, especially if that millage is not going to be used to fund desegregation. See Transcript of Hearing on Proposed Amended Settlement Agreement at 199-215. According to the parties, the proposed order was prepared and submitted to Mr. McCutcheon on September 27, 1989.

Judge Woods, however, says that no new motion or order was ever submitted to him to correct the earlier omission, nor was it included in Mr. McCutcheon's recommendations to him (see Exhibit A to this Order). In fact, as Judge Woods points out, Mr. McCutcheon recommended that

the parties' Agreement to petition for rededication of millages erroneously omitted from the petitions of December, 1986, and January, 1987, should be granted only on condition that this court's ordered sic regarding desegregation requirements be accepted and implementation commenced no later than July 1, 1989. Without such conditions the court will place the public in a position of having millages rededicated without assurance that the money raised will be used to comply with orders of the court.

Little Rock School District v. Pulaski County Special School District No. 1, 716 F.Supp. 1162, 1188 (E.D.Ark.1989) (Exhibit C to Judge Woods' opinion of June 27, 1989 setting forth findings and recommendations of the special master). Judge Woods indicates that these conditions were not complied with, and that no recommendation concerning millage extensions were included in the October 4, 1989 recommendations from Mr. McCutcheon.

The "Agreement" referred to in Mr. McCutcheon's recommendation appears as a provision in the settlement agreement with the State of Arkansas, which was approved by the court of appeals on December 12, 1990. It states:

The court ordered on December 29, 1986 (reinstated on Jan. 7, 1987) the rededication of certain millages of the Districts. It was the intent of the Districts and the court that all millages due to expire before the year 2007 be rededicated. The motion seeking the extension, however, failed to list all of the millages and consequently not all of the millages sought to be rededicated have actually been rededicated. The parties agree that the court's order of December 29, 1986 (reinstated January 7, 1987) should be corrected to include all millages of the Districts which would otherwise expire before or during the year 2007. Pursuant to this settlement, a corrected order has been submitted to the court for approval following final approval of the settlement. Upon approval, the order will be delivered to the responsible county officials.

Pulaski County School Desegregation Case Settlement Agreement (March 1989) at 10-11.

The timing of the present request to extend the omitted millages is prompted, in part, by the PCSSD's need to market bonds to acquire a site for the proposed interdistrict school in the Crystal Hill area. However, the parties also ask this Court to find that "the continuation of all millages due to expire before 2007 are necessary to raise funds for implementation of the districts' respective desegregation plans," and that "continuation of these desegregation programs for the long-term will depend on the availability of the monies from the rededicated millages and other sources." Proposed Order at 1-2.

I.

It may be helpful out the outset to clear up any confusion over the nature of the requested relief. The parties say they are not asking the Court to raise taxes. Instead, they simply want the Court to correct a "clerical mistake" in Judge Woods' previous order. Extending the omitted millages, in their view, does not constitute a raise in the amount or rate of tax.

Of course it does. Without the extension, the rate or amount of tax would decrease. To extend a millage is to impose a tax that would not exist but for the extension. The "rededication" of millages involves making permanent what was voted as a temporary tax for a specific purpose. For example, a millage approved by voters to support a bond issue to pay for a specific school, if extended, would continue to be collected after the school is paid for. This is a convenient subtlety — the taxpayer likely will not notice the increase, since he will pay the same amount or rate of tax after the extension as before. Still, such an act, in effect, raises taxes. It makes little difference whether Court extends an old tax or creates a new one; the taxpayer still pays more. The parties twist words, then, when they suggest that rededication of the omitted millages will not raise taxes.

II.

Before turning to whether the millage rededication is permissible under Missouri v. Jenkins, 495 U.S. 33, 110 S.Ct. 1651, 109 L.Ed.2d 31 (1990), and Liddell v. Missouri, 731 F.2d 1294 (8th Cir.) (Liddell VII), cert. denied sub nom. Leggett v. Liddell, 469 U.S. 816, 105 S.Ct. 82, 83 L.Ed.2d 30 (1984), two arguments advanced in favor of the extension must be considered. The parties argue that the omitted millages were not included in Judge Woods' order due to inadvertence, thus constituting a "clerical mistake" under Rule 60(a) of the Federal Rules of Civil Procedure. Rule 60(a) provides in part that "clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party." (What the parties seek to correct actually is not a "clerical mistake" under Rule 60(a), but an "error" supposedly arising from oversight or omission.) They claim that Judge Woods originally intended to rededicate all millages due to expire before or during 2007, but attorney error resulted in a request for some, not all, to be extended.

There is nothing ambiguous or uncertain about Judge Woods' December 29 order. It refers to "continuation of various millage amounts" and rededication of "the following millages." Little Rock School District v. Pulaski County Special School District No. 1, No. LR-C-82-866, slip op. at 1-2 (E.D.Ark. Dec. 29, 1986) (emphasis added). It does not purport to rededicate all the millages. More significant is the failure to correct the "mistake" by subsequent order, as permitted under Rule 60(a) on either the court's own initiative or motion of the parties. The three districts never filed a new motion to correct the earlier omission, nor was a simple correction due to error included in Mr. McCutcheon's recommendations to Judge Woods. In fact, as noted above, the special master recommended that any extension of the omitted millages be conditioned upon acceptance and commencement of implementation of the court's desegregation requirements no later than July 1, 1989. Even if Judge Woods intended at the time he signed the December 29 order to extend all, rather than some, of the millages, subsequent events demonstrate that the omission took on a significance of its own, and was not treated as a mere clerical mistake or scrivener's error.

The parties also urge that a rededication of the omitted millages is necessary to implement the court of appeals' mandate approving the settlement agreement, which,...