Byron White

“ We stand on different ground when we review the modifications to the District Court's order made by the Court of Appeals. As explained supra, at 43, the Court of Appeals held that the District Court in the future should authorize KCMSD to submit a levy to the state tax collection authorities adequate to fund its budget and should enjoin the operation of state laws that would limit or reduce the levy below that amount. ”

“ It is therefore clear that a local government with taxing authority may be ordered to levy taxes in excess of the limit set by state statute where there is reason based in the Constitution for not observing the statutory limitation. In Von Hoffman, the limitation was disregarded because of the Contract Clause. Here, the KCMSD may be ordered to levy taxes despite the statutory limitations on its authority in order to compel the discharge of an obligation imposed on KCMSD by the Fourteenth Amendment. ”

“ Respondents argue that the original order is more probative of the Eighth Circuit's contemporaneous treatment of the State's petition, and they contend that order clearly does not treat the petition as requesting panel rehearing. They insist that the Eighth Circuit cannot, post hoc, amend its order to make it appear that it took an action which it never took. ”

“ As the Reporter for the Advisory Committee drafting the Rules has observed: " [A] party who desires a hearing or rehearing in banc may 'suggest' the appropriateness of such a hearing. . . . The term 'suggest' was deliberately chosen to make it clear that a party's sole entitlement is to direct the attention of the court to the desirability of in banc consideration. A suggestion is neither a petition nor a motion ”

“ The court reasoned that the State should pay for most of the desegregation cost under the principle that " 'the person who starts the fire has more responsibility for the damages caused than the person who fails to put it out,' " id. at 111a, and that apportionment of damages between the State and KCMSD according to fault was supported by the doctrine of comparative fault in tort, which had been adopted by the Missouri Supreme Court in Gustafson v. ”

“ In this case, the State styled its filing as a "Petition for Rehearing En Banc." [15] There is technically no provision for the filing of a "Petition for Rehearing En Banc" in the Rules of Appellate Procedure. A party may petition for rehearing before the panel under Rule 40, file a suggestion for a rehearing in banc under Rule 35, or do both, separately or together. The State's filing on its face did not exactly comport with any of these options. If the filing was no more than a suggestion for rehearing in banc, as respondents insist, the petition for certiorari was untimely. ”

“ In its original remedial order, the District Court had directed KCMSD to prepare a study addressing the usefulness of "magnet schools" to promote desegregation. [6] Jenkins v. Missouri, supra, at 34-35. A year later, the District Court approved KCMSD's proposal to operate six magnet schools during the 1986-1987 school year. [7] The court again faced the problem of funding, for KCMSD's efforts to persuade the voters to approve a tax increase had failed, as had its efforts to seek funds from the Kansas City Council and the state legislature. ”

“ We denied the petitions of Jackson County and Clark Group. 490 U.S. 1034, 109 S.Ct. 1931, 104 L.Ed.2d 403 (1989) . We granted the State's petition, limited to the question of the property tax increase, but we requested the parties to address whether the petition was timely filed. 490 U.S. 1034, 109 S.Ct. 1930, 104 L.Ed.2d 402 (1989) .
We deal first with the question of our own jurisdiction. Title 28 U.S.C. § 2101 (c) requires that a petition for certiorari in a civil case be filed within 90 days of the entry of the judgment below. This 90-day limit is mandatory and jurisdictional. ”

“ Missouri, 639 F.Supp. 19 (1985) . [4] The District Court originally estimated the total cost of the desegregation remedy to be almost $88 million over three years, of which it expected the State to pay $67,592,072 and KCMSD to pay $20,140,472. Id., at 43-44. The court concluded, however, that several provisions of Missouri law would prevent KCMSD from being able to pay its share of the obligation. Id., at 44. The Missouri Constitution limits local property taxes to $1.25 per $100 of assessed valuation unless a majority of the voters in the district approve a higher levy, up to $3.25 per $100 ”

“ Again hesitating to impose a tax increase itself, the court continued its injunction against the Proposition C rollback to enable KCMSD to raise an additional $6.5 million. App. 138-142.
In November 1986, the District Court endorsed a marked expansion of the magnet school program. It adopted in substance a KCMSD proposal that every high school, every middle school, and half of the elementary schools in KCMSD become magnet schools by the 1991-1992 school year. ”

“ This suggestion was also made by the judge dissenting below and by Clark Group. See 855 F.2d, at 1318 (Lay, C.J., concurring and dissenting) ; Brief for Icelean Clark et al. as Amici Curiae 25-26.↑ The old cases recognized two exceptions to this rule, neither of which is relevant here. ”

“ United States v. New Orleans, 98 U.S. 381, 25 L.Ed. 225 (1879) ; Heine v. Levee Commissioners, 19 Wall. 655, 657, 22 L.Ed. 223 (1874) ; City of Galena v. Amy, 5 Wall. 705, 18 L.Ed. 560 (1867) ; Von Hoffman v. ”