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Case 3:65-cv-11297-RGJ Document 170-1 Filed 10/10/16 Page 1 of 10 PageID #: 3164

UNITED STATES DISTRICT COURT


WESTERN DISTRICT OF LOUISIANA
MONROE DIVISION
JIMMY ANDREWS, ET AL
PLAINTIFF,

CIVIL ACTION NO. 3:65-cv-11297

UNITED STATES OF AMERICA,


PLAINTIFF-INTERVENOR,
VERSUS

JUDGE ROBERT G. JAMES

MONROE CITY SCHOOL BOARD, ET AL


DEFENDANTS

MAG. JUDGE KAREN L. HAYES

MEMORANDUM IN SUPPORT OF SUPERINTENDENTS


MOTION FOR JUDGMENT ON THE PLEADINGS
MAY IT PLEASE THE COURT:
The Superintendent of Monroe City Schools, Dr. Brent Vidrine, respectfully prays
that his Rule 12(c) motion for judgment on the pleadings be granted for these reasons:
I. Introduction
This desegregation lawsuit has been pending since 1965. Fifty years after the case
was filed, on December 11, 2015, this court issued the latest of several consent decrees.
The parties to the Consent Decree (Doc. No. 113) are identified in the document as the
United States of America (United States) and the Monroe City School Board (the
District). The Consent Decree imposes affirmative desegregation obligations on the
District and provides that fulfillment of these obligations by the District will result in
termination of judicial supervision over the District in this matter.
On behalf of the United States, the Department of Justice (DOJ) filed the instant
motion for contempt (Doc. No. 144) on June 24, 2016, arguing that the District had failed
to fulfill certain of its affirmative desegregation obligations under the Consent Decree.

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The United States certainly has a right to ask the court to invoke its contempt powers to
coerce the District to comply with the Consent Decree. However, the claim for relief in
DOJs motion for contempt asking the court to impose individual contempt sanctions on
the Superintendent1 is fundamentally and fatally flawed under the doctrine that a court
must exercise the least possible power adequate to the end proposed.
II. Factual and Procedural Background
Anyone with any knowledge whatsoever of the proceedings of the MCSB
appreciates the hurdles faced by the parties in the implementation of the Consent Decree.
From the first MCSB meeting after the Consent Decree was issued through the date this
motion for contempt was filed, a very public conflict existed in the ranks of the MCSB.
Now, DOJ seeks to sacrifice the Superintendent for the bad blood on the board.
The Court is surely aware that conflict on the MCSB delayed the implementation
of the Consent Decree. In addition, many other factors beyond the control of the
Superintendent resulted in joint motions being filed by the parties seeking court-approved
extensions of Consent Decree deadlines. Notwithstanding the fact that DOJ actually
applied to the court as a party seeking extensions, DOJ now takes the position that the
Superintendent should be held in contempt because those extensions delayed full
compliance by the District with Consent Decree obligations.
Fortunately, at this time, the District has fulfilled substantially all of its
obligations under the Consent Decree. Substantial compliance has been achieved despite
many obstacles such as DOJs shifting interpretation of MCSBs desegregation
obligations under the Consent Decree, again beyond the control of the Superintendent.

DOJ is asking that an escalating monetary per diem fine be imposed on each individual for each day the
District is not in full compliance with its affirmative desegregation obligations under Consent Decree.

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In fact, the response filed in opposition to DOJs motion for contempt by counsel
for MCSB (Doc. No. 152) on behalf of the District, the individual MCSB members, and
the Superintendent, cited similar factors as merit-based defenses to DOJs motion for
contempt. These factors included: (a) the numerous desegregation obligations; (b) the
relative inexperience of the MCSB members and the Superintendent; (c) limitations on
the power of the MCSB; (d) substantial compliance; and (e) good faith instances of
misinterpretation or error in understanding consent decree terms defining desegregation
obligations. See Doc. No. 152, p. 4.
The purpose of this Rule 12(c) motion is not to debate the merits. Rather, this
motion accepts DOJs factual allegations as true but asserts that, on the face of the
pleadings, DOJs claim that the Superintendent be held in contempt for the Districts
failure to fulfill its desegregation obligations under the Consent Decree is fatally flawed,
destined to fail, and must be dismissed under Rule 12(c) in light of controlling authority
of the United States Supreme Court.
III. Law and Argument
Rule 12(c) of the Federal Rules of Civil Procedure provides that [a]fter the
pleadings are closed but early enough not to delay trial a party may move for
judgment on the pleadings. The standard for deciding a Rule 12(c) motion is the same as
a Rule 12(b)(6) motion to dismiss. Guidry v. Am. Pub. Life Ins. Co., 512 F.3d 177, 180
(5th Cir. 2007). The motion tests the legal sufficiency of a claim for relief. The Rule
allows the district court to dismiss claims that are fatally flawed in their legal premises
and destined to fail, and thus to spare litigants the burdens of unnecessary pretrial and

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trial activity. Advanced Cardiovascular Systems, Inc. v. Scimed Life Systems, Inc., 988
F. 2d 1157, 1160 (Fed. Cir. 1992).
The court accepts all well-pleaded facts as true, viewing them in the light most
favorable to the complainant. The complainant must plead enough facts to state a claim
to relief that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct.
1955, 1974, 167 L.Ed.2d 929 (2007). [T]he central issue is whether, in the light most
favorable to the plaintiff, the complaint states a valid claim for relief. Hughes v. The
Tobacco Inst., Inc., 278 F.3d 417, 420 (5th Cir.2001).
The DOJ motion fails to state a valid claim for relief as to the Superintendent (and
the individual MCSB members). This contempt proceeding against the individual
defendants is premature and invalid. Under well-settled law, civil contempt sanctions
cannot even be considered against the individual defendants until: (1) MCSB the public
body has first been held in contempt for the Districts failure to fulfill the desegregation
obligations under the Consent Decree; and (2) MCSB thereafter remains non-compliant
with desegregation obligations under the Consent Decree for a reasonable period of time.
A.

The DOJ Motion Fails to State a Valid Claim for Relief.

In selecting a means to enforce a consent decree,2 a district court is entitled to rely


on the axiom that courts have inherent power to enforce compliance with their lawful
orders through civil contempt. When a district court's order is necessary to remedy past
discrimination, the court has an additional basis for the exercise of broad equitable
powers. But while remedial powers of an equity court must be adequate to the task, they

A consent decree no doubt embodies an agreement of the parties and thus in some respects is contractual
in nature. But it is an agreement that the parties desire and expect will be reflected in, and be enforceable
as, a judicial decree that is subject to the rules generally applicable to other judgments and decrees. Rufo v.
Inmates of Suffolk Cty. Jail, 502 U.S. 367, 378, 112 S. Ct. 748, 757, 116 L. Ed. 2d 867 (1992).
2

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are not unlimited. Spallone v. United States, 493 U.S. 265, 276, 110 S. Ct. 625, 632, 107
L. Ed. 2d 644 (1990)(internal citations and quotations omitted).
The federal courts in devising a remedy must take into account the interests of
state and local authorities in managing their own affairs, consistent with the Constitution.
And the use of the contempt power places an additional limitation on a district court's
discretion [I]n selecting contempt sanctions, a court is obliged to use the least possible
power adequate to the end proposed. Id.
In Spallone, a district court held that a city and individual city council members
were in contempt for failing to pass a public housing ordinance required under a consent
decree issued in a civil rights suit. The Supreme Court reversed the district court decision
as to the individual council members and held that the district court had acted improperly
when it imposed fines on individual city council members for civil contempt. Writing for
the majority, Chief Justice Rehnquist, citing ancient principles of judicial restraint, stated:
We hold that the District Court, in view of the extraordinary nature of
the imposition of sanctions against the individual council members, should
have proceeded with such contempt sanctions first against the city alone in
order to secure compliance with the remedial order. Only if that approach
failed to produce compliance within a reasonable time should the question
of imposing contempt sanctions against petitioners even have been
considered. This limitation accords with the doctrine that a court must
exercise [t]he least possible power adequate to the end proposed.
Anderson v. Dunn, 6 Wheat. 204, 231, 5 L.Ed. 242 (1821); In re Michael,
326 U.S. 224, 227, 66 S.Ct. 78, 79, 90 L.Ed. 30 (1945). Shillitani v.
United States, 384 U.S., at 371, 86 S.Ct., at 1536.
Spallone v. United States, 493 U.S. 265, 280, 110 S. Ct. 625, 63435, 107 L. Ed. 2d 644
(1990).
The Spallone decision was followed by the Louisiana Western District Court in
Rambo v. Morehouse Par. Sch. Bd., 37 F. Supp. 2d 482, 485 (W.D. La. 1999). In Rambo,

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an employee of the school district sued the school board, the individual school board
members, and the superintendent, requesting that all defendants be held in civil contempt
for appointing a high school principal in violation of a court order issued in a
desegregation case requiring that the appointment of principals be made in accordance
with specified procedures. In Rambo, the court did find that the district had violated the
order and held the district in contempt, but the individuals were not held in contempt.
In Rambo, Chief Judge Little, citing Spallone, recognized that the district court
was required to exercise the least possible power to achieve compliance, and stated:
The principle that bounds the district court's broad equitable powers is
this: a court must use the contempt sanction that embodies the least
possible power adequate to the end proposed. Anderson v. Dunn, 19 U.S.
(6 Wheat.) 204, 231, 5 L.Ed. 242 (1821).
In Spallone, the Supreme Court held that the district court acted
improperly when it imposed fines on individual city council members for
civil contempt. The city council members had not been parties to the
initial suit, the remedial order from which they had disobeyed. Moreover,
the Court held that the district court should first have attempted to obtain
compliance with its order by sanctioning the city alone. Only if that
approach failed to produce compliance within a reasonable time should the
question of imposing contempt sanctions against petitioners even have
been considered. Spallone, 493 U.S. at 280, 110 S.Ct. 625; see also
Spangler, 384 F.Supp. at 850 ([T]he purpose of a civil contempt
proceeding is actually to secure compliance with a lawful court order and
not to punish its initial violation.).
Though the individually-named defendants are in fact successors in
interest to parties to the original suit, we hold that imposition of fines on
them is not necessary to achieve compliance with the [court] order.
Rambo v. Morehouse Par. Sch. Bd., 37 F. Supp. 2d 482, 490 (W.D. La. 1999).
Likewise, even if DOJ persists in pursuing its motion for contempt despite the
Districts substantial compliance with the Consent Decree, on the pleadings filed by DOJ
in this action, the DOJ is limited to a finding of contempt only against MCSB. The DOJ

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alleges no facts or claims whatsoever to support an individual finding of contempt on the


part of the Superintendent. Nor does DOJ assert any factual basis whatsoever to support
the conclusion that the imposition of individual fines is necessary to achieve compliance
by the District with its desegregation obligations under the Consent Decree.
In short, DOJ should have first proceeded only against the District. Only if a
contempt sanction against the District fails to achieve compliance within a reasonable
time should the question of imposing individual contempt sanctions even be considered.
In fact, in the entire 50-year history of this lawsuit, no Superintendent or any individual
MCSB member has ever been found in contempt and subjected to the imposition of a
personal fine such as that DOJ now demands this court impose.
A.

The Superintendents Motion to Dismiss is Timely.

Now that he is represented by independent counsel, the Superintendent has his


first real opportunity to assert this purely personal defense to the DOJs misplaced motion
for contempt. The motion was filed as soon as feasibly possible by independent counsel
after completing a thorough investigation of the record of prior proceedings in this action.
Under the circumstances set forth below, this motion is timely.
On June 15, 2016, the court held a status conference in which the Superintendent
and several MCSB members participated. During the status conference, the court urged
the participants to continue to work toward compliance before the 2016-2017 school
year. (Doc. No. 143). No mention of contempt was made in the minute entry.
Nevertheless, just nine days later, on June 24, 2016, the United States initiated this civil
contempt proceeding against MCSB, the individual MCSB members, and the
Superintendent in his individual capacity.

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The court held a counsel-only status conference on June 27, 2016 to discuss the
motion for contempt. (Doc. No. 147). During the status conference, counsel for MCSB
advised that a MCSB meeting was scheduled for June 28, 2016, so the court set a followup conference on June 29, 2016 to discuss the outcome of the meeting. The court also set
a contempt hearing for July 6, 2016. (Doc. No. 149).
According to the documents filed under seal by DOJ, by the time of the June 27
status conference, counsel for MCSB had already made statements in email
communications to DOJ which clearly implied that the Superintendent was to blame for
the Districts failure to meet Consent Decree deadlines. For instance, on April 29, 2016,
counsel for MCSB improvidently wrote DOJ stating that the Superintendent responded
by questioning the DOJs request and wanting to know why it is necessary to provide a
response to the DOJ inquiry. The email also stated that at least two individual MCSB
members were so concerned they suggested calling an emergency meeting. (Doc. No.
157 Ex. B).
If these prior statements by counsel for MCSB truly reflected the position of
MCSB or any individual members at the time, when DOJ filed the motion for contempt
shortly thereafter naming individuals as defendants, there is no doubt that an
irreconcilable conflict of interest precluded the joint representation of MCSB, the
individual MCSB members, and the Superintendent.3 Despite the apparent conflict, the
Superintendent was not afforded independent counsel during the June-July proceedings.
On June 29, 2016, the Superintendent participated in another status conference
without independent counsel and, according to the minute entry, engaged in substantive
A conflict exists when defense counsel places himself in a position conducive to divided loyalties.
United States v. Carpenter, 769 F.2d 258, 263 (5th Cir.1985) (citing Mitchell v. Maggio, 679 F.2d 77, 79
(5th Cir.1982), cert. denied, 459 U.S. 912, 103 S.Ct. 222, 74 L.Ed.2d 176 (1982)).
3

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discussions of the facts arguably related to the merits of the motion. (Doc. No. 150).
Fortunately, according to the minutes, the court converted the July 6, 2007 hearing from a
contempt proceeding into a status hearing. However, it is concerning that the
Superintendent testified at the hearing while he was not represented by independent
counsel, particularly when the court took into evidence the emails discussed above.
The contempt hearing was rescheduled for September 13, 2016. During the
interim, the court held two more counsel-only status conferences September 6 and 8,
2016 at which the Superintendent was still not independently represented. (Doc. Nos.
160, 161). The day after the last pre-hearing counsel-only status conference, on
September 9, 2016, the court issued a minute entry clearly notifying the Superintendent
of a conflict of interest this is the first known disclosure of a conflict. (Doc. No. 162).
Given the statements made by MCSB counsel in the above-mentioned emails to
DOJ, the imagination runs wild with wonder about what might have transpired during the
status conference(s) to necessitate the September 9, 2016 minute entry. In the minute
entry, the Superintendent was ominously at least from his perspective instructed to
have counsel present or be prepared to represent himself at the hearing. (Doc. No. 162).
As instructed, the Superintendent enrolled independent counsel on September 19,
2016. On October 8, 2016, undersigned counsel participated, for the first time, in a
conference call with counsel for the parties. At that time, the DOJ communicated its
intent to proceed with the hearing. This motion was filed as soon thereafter as possible.
Frankly, this motion should have already been filed by counsel for MCSB. The
Superintendent should not be prejudiced by the failure of his prior counsel to timely file
this motion. As such, the court should consider this motion timely and properly filed.

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Finally, Rule 12(i) states that a motion under Rule 12(c) must be heard and
decided before trial unless the court orders a deferral until trial. Since further factual
development is unnecessary under the controlling jurisprudence cited above, no basis
exists for deferral of this Rule 12(c) motion until the contempt hearing.
IV. Conclusion
Accordingly, Dr. Brent Vidrine, respectfully requests that this Honorable Court
hear this Rule 12(c) motion prior to the hearing on the motion for contempt and dismiss
the claim for relief against Dr. Vidrine in his individual capacity. Dr. Vidrine further
prays for any and all relief to which he may be entitled.
Respectfully submitted,
BREITHAUPT, DUNN, DUBOS,
SHAFTO & WOLLESON, LLC
1811 Tower Drive, Suite D
P.O. Box 14106
Monroe, Louisiana 71207
Telephone: (318) 322-1202
Facsimile: (318) 322-1984
Email: swolleson@bddswlaw.com
BY: /s/P. Scott Wolleson
P. Scott Wolleson (#22691)

CERTIFICATE OF SERVICE
I hereby certify that a copy of the above and foregoing Memorandum in Support
of Motion for Judgment on the Pleadings has been served on all counsel of record by this
Honorable Courts CM/ECF system.
Monroe, Louisiana, this 10th day of October, 2016.

/s/ P. Scott Wolleson


P. Scott Wolleson
10