                                 No. 94-4035



In re: Kansas City Star                *
Company,                               *    Petition for Writ of Mandamus
                                       *
                    Petitioner.        *




                         Submitted:   February 1, 1995

                            Filed:    January 4, 1996



Before MCMILLIAN, HEANEY, and JOHN R. GIBSON, Circuit Judges.



HEANEY, Circuit Judge.


       The United States District Court for the Western District of

Missouri held that the Missouri Sunshine Law does not prevent the

Kansas City, Missouri School District Board of Directors from

appearing before the district court's Desegregation Monitoring

Committee in closed session.          Petitioner seeks a writ of mandamus

instructing the district court to hold its order in abeyance.               We

deny   the   writ   of    mandamus,   but   remand   the   case   for   further

tailoring of the district court's order in consideration of ideals

of comity and the underlying concerns of state law.
                                      BACKGROUND



       In    1986,   the     United     States     District   Court   created   a

Desegregation Monitoring Committee (DMC), consisting of citizens

and experts, to "oversee implementation of the court's orders by

conducting evaluations, collecting information, and recommending

modifications in the orders" regarding the implementation of the

desegregation remedy.         Jenkins v. Missouri, 639 F. Supp. 19, 41-43
(1986).     This court confirmed the propriety of the DMC.            Jenkins v.

Missouri, 807 F.2d 657 (8th Cir. 1986), cert. denied, 484 U.S. 816

(1987).      In effect, the DMC serves as a buffer among the various

parties in the Jenkins litigation:              parties are required to submit

their disputes to the DMC, which then attempts to find a resolution

without formal litigation.            Any DMC action is subject to de novo

review by the district court.               At the DMC's request, the Kansas

City, Missouri School District Board of Directors (the Board)

attended occasional closed-door meetings with the DMC Executive

Committee.



       Following one such meeting on June 20, 1994, a representative

of the Kansas City Star Company (the Star) contacted the Board to

complain that the closed meetings violated the Missouri Sunshine

Act,   Mo.    Ann.   Stat.    ch.     610   (Vernon   Supp.   1995)   (the   Act).

Specifically, the Star asserted that the meetings in question were

"public meetings" as defined by § 610.010(5) of the Act, and

therefore, the meetings violated the Act's prohibition on closed


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sessions unless the meetings were limited to the Act's designated

exclusions.       See Mo. Ann. Stat. § 610.021.


       On July 18, 1994, the Board's general counsel advised the DMC

of the dispute and the Board's conclusion that the Act prevented it

from attending closed meetings.                 On September 7, 1994, the DMC

Executive Committee notified the Board that matters relating to the

desegregation litigation compelled the DMC to exercise its power to

meet   in    closed    session   with   litigant          parties;    moreover,   it

considered the closed meetings to be "consistent with areas of

exception under the [Act] and reasonable in view of the DMC's

responsibility to the Federal District Court."                        (Letter from

Eubanks, DMC Chair, to Dittmeier, the Board's general counsel, of

9/7/94, at 2).         It then informed the Board that its presence was

required at a September 19th closed-door meeting.                     The meeting's

agenda      was   to   include   1)   the       Board's    intended   direction   in

complying with the district court's August 15, 1994 order regarding

status reports and the Long-Range Magnet Renewal Process ("LRMRP"),

2) the parameters of future discussions regarding the LRMRP, 3) the

type of information that the DMC would be requesting during the

renewal process and the intended dissemination of such material,

and 4) the qualifications and selection process for the Director of

Traditional Schools and principals for King and Nowlin middle

schools.




                                            3
     A separate letter to the President of the Board, Dr. Julia H.

Hill, officially advised Board members that their presence was

required.    After learning of the DMC's position, the Star advised

the Board that it would file suit if Board members met behind

closed doors.   In a letter dated September 9, 1994, Hill informed

the DMC that the Board did not feel at liberty to attend the closed

session scheduled for September 19th without a judicial resolution

of the dispute.   Board members did not attend the meeting.



     On September 20, 1994, the DMC's Executive Committee voted to

take exception to the Board's failure to appear.                 It further

directed the Board to attend a meeting scheduled for October 17,

1994.   On    September   29,   1994,   the   Board   appealed   the   DMC's

September 20th resolution to the district court.            The Star was

permitted to file an amicus curie brief.        On November 2, 1994, the

district court entered an order denying the Board's appeal. In the

order, the district court expressly authorized the DMC to require

members of the Board, either individually or jointly, to attend

closed session with the DMC for the purpose of discussing any issue

relevant to the implementation of the remedial plan.



     The district court found that the closed meetings between the

DMC and the litigants had resulted in "candid discussion about the

issues involved with implementing the remedial plan which, in turn,

[decreased] the amount of time, energy, and expense required by the

great number of appeals."        As the basis for its decision, the


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district court found that 1) the DMC was not a "public governmental

body" as defined by the Act, but rather an arm of the court; and 2)

the proposed meetings were not "public meetings" of the Board,

which neither convenes nor takes official action at such meetings,

but were DMC meetings at which the Board's attendance was required.



     On November 19, 1994 the Board met in a closed session with

the DMC to discuss the agenda items of the September 19th meeting.

No public notice was posted, nor a reason for the closed meeting

provided.   The Star petitioned this court for a writ of mandamus

directing the district court to hold its order in abeyance.     On

January 13, 1995, this court ordered the DMC Executive Committee to

refrain from holding closed meetings until further instruction was

given from this court.



     The only issue before this court is the application of the Act

to the DMC Executive Committee closed-door meetings at which the

Board appears; a First Amendment challenge to the district court's

order has not been raised and is not considered.



                            DISCUSSION



I.   Writ of Mandamus



     Mandamus relief is an extraordinary remedy that is appropriate

only under exceptional circumstances where a judicial usurpation of


                                5
power is established.   Allied Chemical Corp. v. Daiflon, Inc., 449
U.S. 33, 35 (1980).     To avoid placing the district court in the

place of a litigant and creating piecemeal appellate litigation,

the Supreme Court has required that a party seeking issuance of a

writ of mandamus must have no other adequate means to attain relief

and must demonstrate that its right to issuance of the writ is

"clear and indisputable".    Id.; accord In re Burlington Northern,

Inc., 679 F.2d 762, 767 (8th Cir. 1982).



     In determining whether to grant mandamus relief, the following

factors are relevant considerations: 1) the party seeking the writ

has no other adequate means to attain relief; 2) the petitioner

will be damaged or prejudiced in a way not correctable on appeal;

3) the district court's order is clearly erroneous as a matter of

law; 4) the district court's order is an oft-repeated error, or

manifests a persistent disregard of the federal rules; and 5) the

district court's order raises new and important problems or issues

of law of first impression.     In re Bieter, 16 F.3d 929, 993 (8th

Cir. 1994) (adopting Bauman v. United States Dist. Court, 557 F.2d

650, 654-55 (9th Cir. 1977)).



     As a threshold issue, we focus on the third factor:    Was the

district court's decision that the closed-door meetings are not

subject to the Act clearly erroneous as a matter of law?




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     First, the district court determined that the DMC was not

covered by the Act.        On appeal, the Star argues that the DMC is a

public governmental body, citing language of the Act regarding

"judicial entities when operating in an administrative capacity,"

§ 610.010(4).      Yet reading the statute as a whole, including the

definition    of   a     public    governmental        body,   leads    us    to   the

conclusion that the statute is aimed at state-created bodies.

Specifically,      the    Act   defines       public   governmental      bodies     as

entities "created by the constitution or statutes of this state, by

order or ordinance of any political subdivision or district,

judicial entities when operating in an administrative capacity, or

by executive order."        § 610.010(4).        The Star's argument fails to

recognize the important distinction between federal and state

governmental bodies by ignoring the fact that the DMC was created

by a federal court to monitor the implementation of a remedy for

constitutional      violations.          The    Star   would    read    the    phrase

"judicial entities" without any limitation to those created by the

state   constitution       or     statutes.        Thus,       according      to   its

interpretation, any governmental body created by any federal court,

such as the case here, or even one created by the President of the

United States through executive order would be subject to the

limitations   imposed      by     this   state    statute.       This    cannot    be

accurate.     The Star's interpretation would permit the Missouri

State Legislature to subject the federal government to all state

regulations, including those found in the Act.                   Reference to the

Supremacy Clause of the United States Constitution is sufficient to


                                          7
refute this claim.     Therefore, the district court's holding that

the DMC, as an arm of the federal court, falls outside the scope of

the Act is correct.1


     Second, the district court found that the Board was a public

governmental body as defined by the Act, and therefore its meetings

were subject to the requirements imposed by the Act.        There is no

disagreement on this point.



     Finally, the district court held that the closed-door meetings

in question were DMC meetings, called and controlled by the DMC, in

which the Board neither formally convenes nor takes official

action.   It therefore concluded that the meetings did not trigger

the Act's provisions.    The Star disagrees:      it argues that the Act

prevents the Board, as a public governmental body, from meeting

behind closed doors in any context except for those instances

expressly provided by the Act.      Consistent with this position, the

Star claimed at oral argument that if a state governmental body

appeared as a party at a settlement conference ordered by a federal

district court, such a conference could not be closed without

violating the Act.   We reject this argument.      The Supreme Court has

unequivocally   stated   that   a    "state-law    prohibition   against

compliance with [a federal] district court's decree cannot survive

     1
      The Attorney General of the State of Missouri supports this
construction of the Act. (Br. of Attorney Gen. at 9). While the
representations of the Attorney General are not binding on the
state courts or legislature, we assume that they are authoritative
within the executive branch.

                                    8
the command of the Supremacy Clause." Washington v. Fishing Vessel
Ass'n, 443 U.S. 658, 695 (1979) (citing Cooper v. Aaron, 358 U.S.

1 (1958)).



      In this case, the district court has determined that DMC

meetings with the litigants are necessary to the implementation of

the desegregation remedy.         Thus, rather than accepting the Star's

interpretation     of    the    Act,   which    would    conflict   with     the

functioning of federal governmental bodies, we believe it is

abundantly clear and hold that the Act does not cover official

meetings     of   federal      governmental    bodies,   even   where      state

governmental bodies appear at such meetings for the purpose of

federal concerns.       Therefore, the district court's decision is not

clearly erroneous as a matter of law.          As such, a writ of mandamus

cannot be justified.



II.   Supervisory Power



      While our interpretation of the Act suggests no error in the

district court's decision, there is another overarching federalism

concern that must be addressed--comity.             Although the district

court's order does not violate the Act by ordering the Board to

appear before it or the DMC in closed session, the extent to which

such action imposes on the policies that underlie the Act must be

considered.




                                       9
     In ascertaining the scope of the Act, we interpret Missouri

law as would a Missouri state court.                   Erie R.R. v. Tompkins, 304
U.S. 64 (1938).           State courts have held that the Act's affirmative

provisions          should   be    interpreted    broadly     and   its   exceptions

narrowly.      Kansas City Star v. Fulson, 859 S.W.2d 934, 939 (Mo. Ct.

App. 1993).          With this in mind, as well as the Act's triggering

provision, which includes "all matters which relate in any way to

the performance of the public governmental body's functions or the

conduct of its business," Mo. Ann. Stat. § 610.010(3), we must

delineate where the Act's underlying concerns are present.



     Even though the Act is binding on the Board, the statute is

not without limitations.            If only a few members of the Board attend

a closed-door meeting, the Act would not be triggered.                        If the

Board       meets    in   closed    session,     but   does   not   discuss   public

business, then concerns of infringing upon the Act's objectives

disappear.          Thus, if Board members merely were to provide the DMC

with information, receive the DMC's views, or even discuss subjects

other than its public business, such as improving communication,

see Fulson, 859 S.W.2d at 940 ("Matters of public business are not

synonymous with matters of public interest."), no conflict with the

policies of the Act would occur.2




        2
      We take note that the Attorney General of Missouri supports
this interpretation of the Act. (Br. of Attorney Gen. at 9.)

                                          10
       As   the       Board    is    bound       by     the   Act,     subject      to   these

limitations, we think it is desirable as a matter of comity that

the district court give careful attention to the restrictions under

which the Board acts.                 While under the Supremacy Clause, the

district court can, under appropriate circumstances, order the

Board to attend closed meetings, it is a power that the court

should use sparingly and with full consideration of the principles

of comity.



       While we acknowledge the district court's finding that closed-

door    meetings         increase          the        efficiency       and     efficacy       of

implementation, these benefits must be weighed against the concerns

of comity for state law.                  The authority of the DMC, as an arm of

the court, must be strictly monitored and carefully tailored to

match the requirements of its mission:                           implementation of the

remedy.          The    district      court's          order,    however,      provides       no

limitation or guidelines for exercising the authority it granted

the DMC to close its sessions.                        Therefore, on the basis of our

supervisory powers, see In re Williamson, 786 F.2d 1336, 1337 (8th

Cir. 1986), we advise the district court to tailor its order.

Specifically,          the    district       court      should       provide    that     1)   in

instances        in    which    the        prohibitions         of    the    Act    might     be

contravened, the DMC seek a court order stating that such a closed

meeting     is    necessary         for    remedy      implementation;         2)   in   other

instances, the meeting's agenda be controlled so as not to infringe

on the policies regarding discussion of public business; and 3) in


                                                 11
all cases, the agenda of DMC meetings be limited to only those

areas   clearly   within   the    mission     of   remedy   implementation.

Clearly, the DMC remains unhampered to call closed meeting with the

Board or its members in cases which do not fall within the

parameters of the Act, as set forth above.



     The   case   is   remanded   to    the   district   court   for   action

consistent with this decision.



     A true copy.



        Attest:



              CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




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