Petition — Regional High School District No. 5 v. Baker

IN THE

Supreme Court of the Un

October Term, 1975

Docket Nog 5- 496 {

Recionat Hicu Scuoon District No. 5, Recronat Boarp or

EpucatTion or Recionat High Scuoot District No. 5,

Henry W. Benepict, as Treasurer of the Town of Bethany,

James Berry, as Treasurer of the Town of Woodbridge,

Sipney Svirsky, as Town Clerk of the Town of Bethany,

and Jean Hanna, as Town Clerk of the Town of Wood-

bridge,

Petitioners,

Vs.

Joun E. Baker and GERALDINE S. GEORGE,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT

S. Ropert JELLEY,

J. MricHAEL EISNER,

195 Church Street,

New Haven, Connecticut 06508.

GeraLtp P. Dwyer,

246 Church Street,

New Haven, Connecticut 06510.

FREDERICK 8. Moss,

273 Orange Street,

New Haven, Connecticut 06510.

-— —_——

a

INDEX

PAGE

I a i aeaenaiebunion 2

Jurisdiction ae, »

IS TINE indicsicerieiaseaniasninteiennsinnissegetatintciinininntininients 2

Constitutional Provision Involved ...................-----.--0--+--- 3

SI Oe I I aaiticiesnsisssssnicieinstecintertntiicinecanticaienenones 3

Reasons for Granting the Writ ........................---0--0---+0-+- 8

Conclusion ; cascininnsaaiaadabeasnaaianns 16

PIII Uh -sceccieisiichecinesiisleeehibaditehdiniaiaiaidtadeintiniainieatiiaeniasiiainin la

TIE TT ‘sciricsslsttiinssideishasiasmnnctaniadiadinsilibeasdidentnietnanenccueesiticionies 9a

PO een aiaeiaiheininioeann lla

pp REN rer ht te TO 21a

Citations

Cases:

Abate v. Mundt, 403 U.S. 182 (1971) ......... pesnamcesninone 10

Associated Enterprises, Inc. v. Toltec District, 410

Se Se SEED cxbiiiniciiiiniaatinieaiiethinatininiantshiiiemnnmes 10

Avery v. Midland County, 390 U.S. 474 (1968) ........ 9, 10,

11,12

Baker v. Carr. 369 U.S. 186 (1962) .....................0-2-+- 14

Bloomfield v. Charter Oak Bank, 121 U.S. 121

ESNITTTED stdehisachitesumiphaeicideinnitadiassitandageiielaiiibiabinsasentinines oneiaaioes 13

Cashman v. Amador & Sacramento Canal Co., 118

Re I iidicsiaiicniialatihiehieinaibindineennasunniicsonsintianinnatniie 14

Dusch v. Davis, 387 U.S. 112 (1967) .....2.2...2......-20-- 11

Flast v. Cohen, 392 U.S. 83 (1968) ee

il

Hadley v. Junior College District, 397 U.S. 50 wa!

SPITE sishailadinicisdchanipaebesalaateiiatcdiddlabeibiadiciaticenansiil 2, 8, 9, 10, 11, 12

Kramer v. Union Free School District, 395 U.S. 621

OUTED. suistndiiadeasindchaceeeaiiiaeiActiabiiiidaiasesnss disiatiliiliaieameninigininn 10

N.A.A.C.P. v. Button, 371 U.S. 415 (1963) -............... 15

Reynolds v. Sims, 377 U.S. 533 (1964) -...00.0..22.......... 11, 13

Salyer Land Co. v. Tulare Water District, 410 U.S.

Reb NAME NOES NTE ey Be 10, 11

United States v. Beebe, 127 U.S. 338 (1888) ............ 14

Wells v. Edwards, 409 U.S. 1095 (1973) .................... 11

Statutes:

Connecticut General Statutes (1958 Rev.)

SUSU cksiciacdicelasieentadhaehdasenicediabadnadanieasedibeaeeisdacdbasiineinademniiamiaaaesioan 6

STII scseastcouietedhesipcesieiheeibtecinecsineiabioedianiainunidaabahiichd 6,13

SUSE - andiipseatenutsbiscaceodsbasinistinlinentulisdmanniitibiinsmeshidatene 6

SUITE sesetdntenatiacammniettabinbassaneliepbindistetahagasididiicaiuabshietiaiaetaima tigate 6,12

SITY “senisensidnsiipsitgpilatndaiebiashaddeianiaiabiapiiaeaipneinianininapiioanbinbeadbuases 6

RRR Rene een nn ONO ETOP er a 6,7

SUITE actscisesnicisboisatadllceiieanibadincniaaaebdanamiceanaseaibiaamnseititiat ialiuan 7

Federal Rules of Appellate Procedure, Rule 3(b) ...... 8

Federal Rules of Civil Procedure

I A racial cane a siiiies 8

a a 8

I I I a a 2

A ae ee 7

I I I a 15

United States Constitution, Amendment XIV, §1 ...... 3,11

Others:

Bh RU I TI CID acctresttescesstteesienstets 12, 13

Webster’s Third New International Dictionary .......... 12

IN THE

Supreme Court of the United States

October Term, 1975

No.

—EeE ee

RecionaL Hick Scuoor District No. 5, Recionat Boarp or

EpucaTion oF RecionaL High Scuoou Disrrict No. 5, Henry

W. Benepict, as Treasurer of the Town of Bethany, James

Berry, as Treasurer of the Town of Woodbridge, Smnry

Svirsky, as Town Clerk of the Town of Bethany, and Jean

Hanna, as Town Clerk of the Town of Woodbridge,

Petitioners,

Vs.

Joun E. Baker and Geracpine S. Georce,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT

Regional High School District No. 5, Regional Board of

Education of Regional High School District No. 5, Henry

W. Benedict, James Berry, Sidney Svirsky and Jean Hanna

petition for a writ of certiorari to review the judgment of

the United States Court of Appeals for the Second Circuit

entered July 23, 1975, affirming a judgment of the United

States District Court for the District of Connecticut entered

January 8, 1975.

SS ee es

Opinions Below

The opinion of the Court of Appeals, dated July 23, 1975

(Appendix I, infra, pp. la-8a), is not yet reported. The

opinion of the District Court, dated November 22, 1974

(Appendix III, infra, pp. 1la-20a), is not reported.

Jurisdiction

The judgment of the Court of Appeals (Appendix IT,

mfra, pp. 9a-10a) was entered on July 23, 1975. The juris-

diction of this Court is invoked under 28 U.S.C. §1254(1).

Questions Presented

1. Whether the one person-one vote principle has applica-

tion to the board of education of a regional school district

comprising towns of unequal population where:

(a) the board of education of the district has sig-

nificantly fewer powers than the board in Hadley vy.

Junior College District, 397 U.S. 50 (1970),

(b) the powers of the board of education are effec-

tively controlled by the i gional district meeting and

by the referendum, both of which embody the one

person-one vote principle in its purest form, and

(c) the board members are elected by town meet-

ings in each of the towns rather than by individual

voters at town elections.

2. Whether there is present the necessary standing,

justiciability, and jurisdiction to raise the one person-one

vote issue where the suit was really instituted by the

3

regional school district’s largest town, which chose the

plaintiffs, announced that it had “authorized its attorneys”

to bring the suit, and is paying for the suit.

Constitutional Provision Involved

The United States Constitution, Amendment XIV, §1

provides:

All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are

citizens of tie United States and of the State wherein

they reside. No State shall make or enforce any law

which shall abridge the privileges or immunities of

citizens of the United States; nor shall any State

deprive any person of life, liberty, or property, with-

out due process of law; nor deny to any person within

its jurisdiction the equal protection of the laws.

Statement of the Case

Regional High Schoo! District No. 5 comprises the three

towns of Orange (population 13,524), Woodbridge (popula-

tion 7,673), and Bethany (population 3,857), which are

suburbs of New Haven, Connecticut. District No. 5 pro-

vides the educational program for grades 7 through 12 in

the District.' The average number of pupils in the District

is 3,377, with 1,835 from Orange, 998 from Woodbridge, and

543 from Bethany. For the school year 1972-73, Orange

contributed 55.04% of the District’s budget, Woodbridge

contributed 29.34%, and Bethany contributed 15.62%.

District No. 5 is one of the sixteen regional school dis-

tricts in Connecticut, and those sixteen districts comprise

44 of the 169 towns into which Connecticut is divided.

Except for Districts No. 17 and No. 18, each of the regional

1. Each of the towns has a separate school system for kindergarten

through sixth grade, administered by a town board of education.

4 4)

boards of education has equal representation from each of (Footnote continued from preceding page)

gee ee

the towns in the district.’ Number of

Children in

2. Connecticut Regional School Districts. Regional —_ Represent-

District atives on

Number of Population Population Schools Regional!

Children in 1970 July 1, 1972 Octber 1, District

Regional Represent- Census Estimate 1973 Board

Population Population Schools Regio nal

pt ° °

1970 July 1,1972 October 1, District District #9

Census Estimate 1973 Board Easton 4885 5400 461 4

District #1 Redding 5590 6200 493 4

Canaan 931 970 40 1 District #10

Cornwall 1177 1200 74 1 Burlington 4070 4300 1240 4

Kent 1990 2000 92 1 Harwinton 4318 4500 1246 4

North Canaan 3045 3100 190 1 —

- 11

Salisbury 3573 3600 183 1 — =

Sharon 2491 2300 143 1 one — ae = :

Hampton 1129 1100 129 3

District #4 Scotland 1022 1000 121 3

Chester 2982 300C 323 3 District #12

Deep River 5690 5900 393 3 Bridgewater 1277 1400 323 3

Essex 4911 5100 445 3 Roxbury 1238 1300 268 3

District #5 Washington 3121 3200 641 3

Bethany 3857 4100 557 3 District #13

Orange 13524 14000 1840 3 Durham 4489 4700 1461 4

Woodbridge 7673 8000 1014 3 Middlefield 4132 4200 990 o

District #6 District #14

Goshen 1351 1400 220 3 Bethlehem 1923 2000 302 4

Morris 1609 1700 432 3 Woodbury 5869 6300 1429 a

Warren 827 920 341 3 District + 15

District +7 Middlebury 5542 5800 1203 4

Barkhamsted 2066 2300 262 2 Southbury 7852 6700 1485 4

Colebrook 1020 1000 125 2 District #16

New Hartford 3970 4000 495 2 Beacon Falls 3546 3700 946 4

Norfolk 2073 2100 228 2 Prospect 6543 6700 1636 4

District #8 District #17

Andover 2099 2100 264 3 Haddam 4934 5200 1361 6

Hebron 3815 4300 591 3 Killingworth 2435 2800 724 3

Marlborough 2991 3300 363 3 :

District #18

(Footnote continued on next page) Lyme 1484 1600 318 2

Old Lyme 4964 5300 1392 7

6

District No. 5 is administered by a regional board of

education made up of three members from each town who

are elected at town meetings, not at town elections.» At

town meetings a moderator is chosen, and thereafter the

meeting is conducted in accordance with parliamentary

procedure. None of the general safeguards provided in

Connecticut statutes dealing with general elections apply

to town meetings.

Sections 10-39 through 10-63i of the Connecticut General

Statutes deal specifically with regional school districts, and

in addition a number of sections of Title 10, dealing gen-

erally with education, have application not only to town

school boards but also to regional school boards. Under the

statutory scheme, the administrative power over the district

is divided between the board of education and the regional

district meeting. C.G.S. §§ 10-47,10-51. A regional district

meeting is similar to a town meeting, except that all of the

electors in each of the towns in the district are entitled to

participate and vote at a regional district meeting. As at

town meetings, the regional district meeting operates by

electing a moderator and functioning like a parliamentary

body. C.G.S. $§ 10-47, 10-51, 7-6, 7-7.

The primary document governing the activities and

operations of District No. 5 is the annual budget. The bud-

get is proposed by the regional board, and thereafter must

he presented to a district meeting where “any person may

recommend the inclusion or deletion of expenditures.”

After the public hearing, the regional board prepares the

annual budget and submits it to the district meeting for

approval or disapproval. If the budget is disapproved, the

regional board must continue submitting the same or

3. Section 10-46 of the Connecticut General Statutes permits a

town to elect members of the Regional Board of Education either in

town elections or at town meetings. Bethany, Orange, and Wood-

bridge all have chosen the town meeting method.

7

revised budgets to subsequent district meetings until a

budget is finally approved. C.G.S. § 10-51.

After the approval of the annual budget, neither the

district nor the regional board has power to levy and collect

taxes. The board merely allocates to each of the towns in

the district its share of the budget in proportion to its

number of pupils in the district schools, and the towns pay

such amounts to the regional board. C.G.S. §§ 10-51, 10-5la.

The regional board also has no power to issue bonds. The

regional district may issue bonds only if the issuance is

approved by referendum in the regional school district.

C.G.S. § 10-51.

This action was brought en April 4, 1974 by plaintiffs,

who reside in Orange, seeking a declaratory judgment that

the present apportionment of the regional board of educa-

tion is unconstitutional, and certain injunctive relief. Juris-

diction is based on 28 U.S.C. § 1343(3) and (4). One of

the plaintiffs, Mrs. George, became a plaintiff because the

First Selectman of the Town of Orange (the First Select-

man is the Town’s chief executive officer) and the Chairman

of the Democratic Town Committee asked her to become a

plaintiff. The other plaintiff, Mr. Baker, the Republican

Town Chairman of Orange, became a plaintiff because the

Town had to have somebody who was complaining, and he

was complaining. Just prior to the filing of the suit, the

Board of Selectman of the Town of Orange announced that

it had “authorized its attorneys” to bring the suit. The

Town of Orange is paying for the suit. Neither of the

plaintiffs spoke to their attorney prior to institution of the

action. Mr. Baker did not see the complaint before the

action was filed, and Mrs. George could not remember

whether she first saw it before or after it was filed.

On May 9, 1974, plaintiffs moved for summary judgment.

After hearing on June 12, 1974, Judge Newman filed his

memorandum of decision on November 22, 1974, declaring

8

that the apportionment of the regional board was uncon-

stitutional but denying injunctive relief. On January 3,

1975, Judge Newman made a determination and directed

judgment in accordance with Rule 54(b), aud judgment in

favor of the plaintiffs on their claim for declaratory judg-

ment was entered on January 8, 1975. On appeal, the Sec-

ond Circuit affirmed.‘

Reasons for Granting the Writ

In Hadley v. Junior College District, 397 U.S. 50 (1970),

this Court held “that as a general rule, whenever a state

or local government decides to select persons by popular

election to perform governmental functions, the Equal

Protection Clause of the Fourteenth Amendment requires

that each qualified voter must be given an equal oppor-

tunity to participate in that election, and when members of

an elected body are chosen from separate districts, each

district must be established on a basis that will ensure, as

far as is practicable, that equal numbers of voters can vote

for proportionately equal numbers of officials.” 397 U.S.

at 56.

But since Hadley, it has not had before it a case giving

it opportunity to explain what it meant by “popular elec-

tion,” to explain what it meant by “governmental func-

4. Decided with the instant case was Scott v. Nonnewaug Regional

School District No. 14, which seeks reapportionment of the regional

board of education of District No. 14, comprising the towns of

Woodbury and Bethlehem, Connecticut. The Scott defendants are

also planning to petition for a writ of certiorari.

Scott was decided on a stipulation of facts, some of which stipula-

ted facts differ from the facts in the instant case. In Scott, the

defendants have not raised the issues of whether the plaintiff is a

proper party and whether the board members are elected by “popular

election.” Although the instant case and Scott were decided together

in both courts below, they have never been consolidated under either

Rule 42(a) of the Federal Rules of Civil Procedure or Rule 3(b)

of the Federal Rules of Appellate Procedure.

9

tions,” and to determine whether the Hadley holding has

appheation at all in a case, such as this one, where the

powers of the regional board of education are effectively

controlled by the regional district meeting and by the refer-

endum. These are important questions of federal law,

because Hadley has potential application to more than

80,000 units of local government in the United States

(Avery v. Midland County, 390 U.S. 474, 499-500 (1968)),

and lower courts require guidance in determining the limits

of its applicability. They are particularly important for

the fourteen regional school districts in Connecticut (incelud-

ing District No. 5) which, as shown in the table in footnote

2, supra, have boards that will probably be reapportioned

unless this Court reverses the decision of the Court of

Appeals.°

a. “Governmental functions.” In Hadley, this Court

recognized that an analysis of the powers of the trustees

was necessary in order to determine whether the “one

person-one vote” principle applied. It said:

Appellants argue that since the trustees can levy

and collect taxes, issue bonds with certain restric-

tions, hire and fire teachers, make contracts, collect

fees, supervise and discipline students, pass on peti-

tions to annex school districts, acquire property by

condemnation, and in general manage the operations

of the junior college, their powers are equivalent, for

apportionment purposes, to those exercised by the

county commissioners in Avery. We feel that these

powers, while not fully as broad as those of the Mid-

land County Commissioners, certainly show that the

trustees perform important governmental functions

within the districts, and we think these powers are

general enough and have sufficient impact through-

5. The contingency legislation referred to in footnote 2 of the

decision of the Court of Appeals, Appendix I, infra, p. 3a, will not

become effective unless and until this case and Scott are finally

resolved in plaintiffs’ favor.

10

out the district to justify the conclusion that the

principle which we applied in Avery should also be

applied here. 397 U.S. at 53-54

It also described the powers of the county commissioners

involved in Avery v. Midland County, 390 U.S. 474 (1968):

The Midland County Commissioners established and

maintained the county jail, appointed numerous

county officials, made contracts, built roads and

bridges, administered the county welfare system,

performed duties in connection with elections, set the

county tax rate, issued bonds, adopted the county

budget, built and ran hospitals, airports, and libra-

ries, fixed school district boundaries, established a

housing authority, and determined the election

districts for county commissioners. 397 U.S. at

53-54 n.6.

Avery and Hadley are the only two cases in which this

Court has decided whether or not one person-one vote prin-

ciples were applicable to a popularly-elected local govern-

mental body.® This Court has never decided the important

Constitutional question of what minimum kind and quan-

tity of powers a local governmental body must have in

order for one person-one vote principles to be applicable.

Clearly there is some minimum, or this Court wonld not

have compared in the Hadley opinion the powers of the

Hadley trustees and the Avery commissioners, and com-

mented that the powers of the Hadley trustees were “gen-

eral enough and have sufficient impact throughout the dis-

6. Other cases, such as Kramer v. Union Free School District, 395

U.S. 621 (1969), Salyer Land Co. v. Tulare Water District, 410

U.S. 719 (1973), and Associated Enterprises, Inc. v. Toltec District,

410 U.S. 743 (1973) decided whether or not popular elections

(rather than elections where only certain people could vote) were

required for particular local governmental bodies; Abate v. Mundt,

403 U.S. 182 (1971) decided that the reapportionment plan for the

local governmental body there involved met Constitutional standards.

| |

11

trict” to make one person-one vote principles applicable.’

In the absence of a minimum stated by this Court, lower

courts have applied the principles of Avery and Hadley to

numerous local governmental units, almost invariably

holding one man-one vote principles to be applicable.

Whatever the minimum kind and quantity of powers

required to make one person-one vote principles applicable,

the regional board of education in this case must fall below

it. It cannot adopt its budget; it cannot levy and collect

taxes; it cannot issue bonds or otherwise borrow money

except upon prior approval either by referendum in the

district or by the regional district meeting; it cannot annex

or otherwise add to the school district. Even the powers

it does have, such as the power to acquire property for

school purposes, the power to build schools and the power

to enter into contracts, are severely circumscribed by its

lack of taxing and borrowing power.

b. Control by regional district meeting and referendum.

In the one person-one vote cases, the test under the

Equal Protection Clause is whether there is “invidious dis-

crimination.” Reynolds y. Sims, 377 U.S. 533, 561 (1964),

Dusch v. Davis, 387 U.S. 112, 116 (1967), Salyer Land Co. v.

Tulare Water District, 410 U.S. 719, 725 (1973). But the

discrimination alleged in this case, that the voters of

Orange (which has 55% of the District’s population) elect

only 3314% of the members of the regional board of edu-

cation, is not invidious, because the voters of the District,

both through the regional district meeting (which has the

sole power to adopt the annual budget and to approve cer-

tain borrowing) and through the referendum (necessary to

approve bonding), effectively control the exercise of power

by the regional board of education. Thus, although mem-

7. In addition, Wells v. Edwards, 409 U.S. 1095 (1973) affirmed

a lower court’s holding that one man-one vote principles did not

apply to the judiciary.

12

bership on the regional board of education is not propor-

tionate to population, this fact is not controlling here,

because the regional district meeting and the referendum

(at both of which one person-one vote prevails) cause any

discrimination not to be invidious.

This Court has said that “the Constitution does not

require that a uniform straightjacket bind citizens in devis-

ing mechanisms of local government suitable for local needs

and efficient in solving local problems,” and that “the Con-

stitution and this Court are not roadblocks in the path of

innovation, experiment, and development among units of

local government.” Avery v. Midland County, 390 U.S.

474, 485 (1968). But it has never had an oceasion to ex-

amine a mechanism whereby a representative body (the

regional board of education) has its exercise of power

effectively controlled by a democratic body, the regional

district meeting,’ or by its equivalent, the referendum.

Such an examination, which the courts below failed to

undertake, will show that the Hadley rule should not apply

here.

c. “Popular Election.” By its terms, Hadley is only

applicable to officials elected by “popular election” (397

U.S. at 56), and it is clear that the Hadley Court under-

stood “popular election” to mean an election in which

“citizens participate individually by ballot.” 397 U.S. at

04. “Ballot” means secret voting. Webster’s Third New

international Dictionary 168.

But in the instant case, the members of the regional

board of education are elected at town meetings in each

town.’ At a town meeting, a moderator is chosen by the

8. Judge Swift, in his “System of the Laws of the State of Con-

necticut” (1795), speaks of the town meeting as “an epitome of a

pure, unmixed, democracy.” 1 Swift's System 116.

9. Under Connecticut law, members of regional boards of educa-

tion may be elected either in town meetings or in town elections.

C.G.5. § 10-46. In Scott, the parties stipulated merely that the mem-

bers of their regional board were elected, without indicating how.

13

assembled electors of the town, and thereafter the meeting

is conducted as if it were a parliamentary body. Nomina-

tions are from the floor, and voting is by voice vote or show

of hands. Appendix I, infra, p. 5a, n.7. None of the usual

attributes of popular election, such as primaries, absentee

ballots, polls open for a period of time, voting machines

or paper ballots,’ and formal procedures for canvassing

election results are applicable.

Although the same electors may participate and vote at

a town meeting for election of members of the regional

board of education as may vote in a town election, they

do so in a different capacity. At a town meeting they are

acting and voting as members of the municipal corporation,

Bloomfield v. Charter Oak Bank, 121 U.S. 121, 129 (1887),

rather than as individual voters as at a popular election.

They are engaging in an exercise of pure democracy, 1

Swift’s System 116 (1795), rather than of representative

government. It is the institution of representative govern-

ment, not pure democracy, that is the bedrock from which

the one person-one vote principle springs. Reynolds v.

Sims, 377 U.S. 533, 562 (1964). Accordingly, one person-one

vote principles should not be extended to the election at

town: meeting of members of the regional board of edn-

cation.

2. This is really a suit by the Town of Orange, which

chose the plaintiffs, announced through its Board of Select-

men that it had “authorized its attorneys” to bring the suit,

and is payin; for the suit." Obviously the Town of Orange

cannot itself complain that it is being deprived of equal

protection in connection with voting rights, since it cannot

10. When petitioned for by 200 persons twenty-four hours before

the meeting, voting machines or paper ballots must be used for voting

on questions coming before the town meeting. C.G.S. § 7-7.

11. Since plaintiffs’ motion for summary judgment was heard two

months after the complaint was filed, there was little time for other

occurrences showing that this is a suit by the Town of Orange.

14

vote, and there is a question as to whether the Town could

even bring suit in a representative capacity. Baker v. Carr,

369 U.S. 186, 204 (1962). Therefore it is understandable

that the Town chose to bring the suit in the names of

Mr. Baker and Mrs. George, two residents and electors of

the Town.

Although defendants raised both in the District Court

and in the Court of Appeals the interrelated issues of stand-

ing, justiciability, and jurisdiction, both Courts held for

plaintiffs on these issues on narrow grounds. Appendix

III, infra, p. 13a, n.5; Appendix I, infra, p. 4a, n.6. But

neither Court dealt with those issues in the broader con-

text in which defendant raised them: May and should the

federal courts entertain a suit where a person or organiza-

tion, such as the Town of Orange, wishes to assert constitu-

tional rights which it does not itself possess, and therefore

brings suit in the name of plaintiffs, such as Baker and

George, who do possess those rights but are merely acting

as agents or strawmen for the initiating organization. This

Court has never decided this important question, although

it has decided some closely related questions.

In United States v. Beebe, 127 U.S. 338 (1888), the

United States had brought suit to set aside land patents

issued by it many years earlier, which it alleged had been

fraudulently obtained by the defendant. The suit had been

brought at the behest of persons who claimed that they were

entitled to the land. The defendant raised the defense of

laches. This Court held that even though the United States

had the right and duty to bring the suit to set aside the

patent, and even though laches could not be raised as a

defense against the United States, the persons who claimed

to be entitled to the land were the real parties in interest

and laches was therefore a good defense.

In Cashman vy. Amador & Sacramento Canal Co., 118

U.S. 58 (1886), a diversity case, the County of Sacramento

——EOoovVOOrr SS...

15

wished to bring suit in Federal Court, but, because there

was no diversity, could not do so. It therefore solicited

Cashman, an alien, who also had rights against the defend-

ant, and entered into an agreement with him that it might

bring suit in his name. This Court affirmed a dismissal for

lack of jurisdiction under the predecessor of 28 U.S.C.

§ 1359.

N.A.A.C.P. vy. Button, 371 U.S. 415 (1963) does not deal

with the issue raised by petitioners here since it deals with

the N.A.A.C.P.’s solicitation of plaintiffs in First Amend-

ment terms.

The Courts below failed to focus on the question of

whether plaintiffs are proper parties which is the essence

of the doctrine of standing:

The fundamental aspect of standing is that it

focuses on the party seeking to get his complaint

before a federal court and not on the issues he

wished to have adjudicated. ... In other words, when

standing is placed in issue in a case, the question is

whether the person whose standing is challenged

is a proper party to request an adjudication of a

particular issue and not whether the issue itself is

justiciable. ... A proper party is demanded so that

federal courts will not be asked to decide ‘ill-defined

controversies over constitutional issues,’... Flast v.

Cohen, 392 U.S. 83, 99-100 (1968)

This Court should resolve that question.

16

Conclusion

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

S. Ropert JELLEY,

J. Micuaet EIsner,

Attorneys for Petitioners.

Of Counsel:

Geratp P. Dwyer

FREDERICK 8S. Moss

September 1975.

la

APPENDIX I

UNITED STATES COURT OF APPEALS

For THE Seconp Circuit

Nos. 845, 898-99, 921-22—September Term, 1974.

(Argued June 6, 1975 Decided July 23, 1975.)

Docket Nos. 75-7001, 75-7009, 75-7015, 75-7039-40

rr

Joun E. Baker and Grera.pine 8S. Georae,

. Appellees,

‘RecronaL Hien Scnoont District No. 5, Recionat Boarp

or Epucation or RecgionaL Hicu Scuoor District No. 5,

Henry W. Benepict, James Berry, Smney Svirsky and

Jean Hanna, Appellants.

JosepxH M. Scort, Sr. Appellee,

Vv.

NonnewaucG Recionau Scuoou District No. 14, e¢ al.,

Appellants.

B e f o r e—Smitn, Anverson and Oakes, Circuit Judges.

— ——————

Appeal from a decision of the United States District

Court for the District of Connecticut, Jon O. Newman,

Judge, which held on motion for summary judgment that

certain Connecticut regional school boards performed a

range of activities sufficiently extensive to require the appli-

cation of one person-one vote principles. Held that not-

2a

withstanding the fact that the boards in question could

neither levy taxes nor issue bonds, their powers were gov-

ernmental in nature, thus requiring that election to the

boards be in accordance with one person-one vote principles.

Oakes, Circuit Judge:

At issue in this appeal is the applicability of one person-

one vote principles (Reynolds v. Sims, 377 U.S. 533 (1964),

and Wesberry v. Sanders, 376 U.S. 1 (1964)) to the elee-

tion of school board members in two Connecticut regional

school districts.! The districts in question are each com-

prised of towns with substantial population differences,

but, as presently organized, each participating town has

an equal number of elected representatives serving on the

regional school board and voting with equal weight. The

United States District Court for the District of Connecti-

eut, Jon O. Newman, Judge, relying on Hadley vy. Junior

College District, 397 U.S. 50 (1970) (trustees of a junior

college school district performing governmental functions

must be elected in accordance with one person-one vote

standards); Avery v. Midland County, 390 U.S. 474 (1968)

(applying one person-one vote standards to the election

of county officials); Rosenthal v. Board of Education of

Central High School District #3, 497 F.2d 726 (2d Cir.

1974) (finding a substantial federal question presented by

a requested application of one person-one vote principles

to an elected school board which had the power to issne

honds and propose taxes); Leopold v. Young, 340 F. Supp.

1014 (D. Vt. 1972) (applying one person-one vote stan-

dards to a school board with substantial publie functions),

1. A number of other districts throughout Connecticut will pre-

sumably be affected by this decision since most, although not all,

of Connecticut’s regional boards are not apportioned on the basis of

one person-one vote. The statutes under which regional school dis-

tricts were created did not require malapportionment, but permitted

towns to agree among themselves on the terms of their consolidation.

3a

held, on motion for summary judgment, that the school

boards in question performed a range of governmental

activities sufficiently extensive to require the application

of one person-one vote principles.2 We affirm.’

The facts presented by these two consolidated appeals

are the same in all significant aspects. The school district

in Scott, Connecticut Regional District No. 14 (Nonne-

waug), is comprised of two towns, Woodbury (population

9,869) and Bethlehem (population 1,923). As of May, 1973,

1,887 pupils were attending the school district with 1,385

from Woodbury and 492 from Bethlehem. For each of the

three years ending with 1973-74, Woodbury contributed

to the regional district budget in an amount equal to two

and one-half times the amount contributed by Bethlehem.

Each of the towns, however, is equally represented on the

regional school board by four members.

The school district in Baker is comprised of three

towns, Bethany (population 3,857), Woodbridge (popula-

tion 7,673), and Orange (population 13,524). The average‘

number of pupils in the district is 3,377, with 543 pupils

from Bethany, 998 from Woodbridge and 1,835 from

Orange. Orange contributed in 1972-73 55.04 per cent of

2. In fashioning a remedy for these constitutional violations,

Judge Newman, whose opinion is unpublished, granted declaratory

relief only. His denial of injunctive relief was premised on his

unwillingness “to disrupt on-going educational activities pending

legislative action.” In response to Judge Newman’s decision, we are

advised, the Connecticut General Assembly has enacted contingency

legislation which would apply one person-one vote principles to school

districts, while providing that towns so inclined may withdraw from

regional school districts. (H.R. Bill No. 6596.)

3. Jurisdiction is grounded upon 28 U.S.C. § 1343/3), and

injunctive and declaratory relief was sought under 42 U.S.C. § 1983,

28 U.S.C. § 2201. A three-judge court is not required as there is no

facial attack on the Connecticut statutes which create regional boards,

and any special acts involved relate only to the particular district

involved and hence are not of statewide applicability.

4. An average student census was compiled from the actual daily

membership as of June, 1973; October, 1973; and February, 1974.

ta

the total school budget, with Bethany’s share amounting

to 15.62 per cent and Woodbridge’s 29.34 per cent. How-

ever, each of the three towns is equally represented on

the regional board by three members. In both districts,

the members of the boards are selected through an elective

process.°

Plaintiffs-appellees in both Scott and Baker are resi-

dents, taxpayers and electors of Woodbury and Orange

respectively,° who claim that the present apportionment

on their regional boards of education dilutes their voting

power and deprives them of the equal protection of the

law. The critical question on this appeal therefore is

whether these school boards are elective bodies perform-

ing regulatory functions of a kind that can be characterized

as governmentai. Hadley v. Junior College District, 397

U.S. at 53-54. An affirmative answer to this question re-

quires the additional finding that the boards are con-

structed unconstitutionally, since all parties concede that

their members are not elected according to strict one

person-one vote principles, nor do they vote in accordance

with any kind of weighted formula which would reflect the

population differences in the towns they represent.

The towns in Scott elect members directly to the school

board; the towns in Baker, however, maintain that their

regional board is not elective in the sense the Supreme

Court intended for application of the one person-one vote

principle. The essence of this claim is that the board

5. See text at note 7 infra.

6. The Baker appellants maintain that this court’s jurisdiction has

been improperly invoked through “collusive joinder.” Their theory

seems to be that voters of the town are not the real parties in interest

here. Fed. R. Civ. P. 17(a). It is, however, the electors whose

vote is being diluted and as such their interests are quite properly

before the court. This is clearly not a case where collusion has been

used to manufacture diversity jurisdiction.

5a

members are “appointed” through a “legislative” town

meeting’ rather than elected through a “popular election.”

We find no merit to this line of argument. While the

forum for selecting board members was a town meeting,

any person who was an elector of the town had the right

to cast a vote at the meeting, and the majority prevailed.

The suggested distinction is one of form, not substance.

On the question whether the board is governmental in

character, appellants make much of the powers which the

school boards lack. By reading Hadley v. Junior College

District as narrowly as possible, they maintain that, since

the Connecticut regional boards lack the powers to, levy

and collect taxes and to issue bonds, then their powers are

not sufficiently broad or general to be governmental. But

as Judge Newman recognized in his opinion below, “[t]he

proper question is rather whether the power the Boards

do have, in fulfilling what ‘has traditionally been a vital

governmental function,’ Hadley v. Junior College District,

397 U.S. at 56, make it reasonable to describe the board

members as ‘governmental officials in every relevant sense

of the term.’ Ibid.”

The powers of Connecticut’s regional school districts

are detailed in what is now Chapter 164 of the Connecti-

cut General Statutes,’ with Conn. Gen. Stats. § 10-47 pro-

viding as follows:

7. In the traditional town meeting, a moderator is chosen by the

assembled electors of the town, and thereafter the meeting is con-

ducted as if it were a parliamentary body.

8. The Baker appellants maintain that there are material facts in

issue concerning the powers of the boards so as to preclude a sum-

mary judgment. Because the regional boards’ powers are statutory

and are for our purposes unambiguous summary judgment was

properly rendered in the present case. See Leopold v. Young, 340

F. Supp. at 1015.

6a

Rex onal boards of education shall have all the

powers and duties conferred upon boards of educa-

tion by the general statutes not inconsistent with

the provisions of this part. Such boards may pur-

chase, lease or rent property for school purposes

and, as part of the purchase price may assume and

agree to pay any bonds or other capital indebted-

ness issued by a town for any land and buildings so

purchased; shall perform all acts required to imple-

ment the plan of the committee for the transfer of

property from the participating towns to the re-

gional school district and may build, add to or equip

schools for the benefit of the towns comprising the

district. Such boards may receive gifts of real and

and personal property for the purposes of the

regional school districts. .

In the area of school financing, a regional board may auth-

orize bond anticipation notes for periods of up to four

years, and may treat the proceeds of the notes as other

school districts or municipalities. Conn. Gen. Stats. § 10-

56(¢c)-(d). In addition, the board may also borrow money

for periods up to five years. Conn. Gen. Stats. § 10-60.

While such actions by the board must be approved by the

voters of the regional district in a referendum, it is or

should be clear that this does not substantially undercut

the significance of the boards’ function. As stated in the

amicus brief of the town of New Hartford, “whether to

propose a bond ordinance, for what purpose, when, for

how much, and in what form are all within the exclusive

jurisdiction of the regional board.” While the voters have

the final word, what they ratify or disapprove can be only

what the board decides to present to them. See also Leo-

pold y. Young, supra.

Similarly, with respect to the budget-making process,

the board has the exclusive power to initiate and propose.

The voters may choose not to ratify, but it is within the

sole power of the board to draw up the budget, and if it

7a

is disapproved, the board then decides whether to amend

and how to amend. Conn. Gen. Stats. § 10-51.

In addition, the regional school boards hire and fire

teachers, supervise and discipline students, and in gen-

eral manage all of the schools within their district.2 As

such, there can be no question but that the board members

perform important governmental functions within

the districts and... these powers are general enough

and have sufficient impact throughout the district to

justify the conclusion that [one person-one vote]

should be applied here.

Hadley vy. Junior College District, 397 U.S. at 53-54.

With respect to collective bargaining agreements, again

the contract is negotiated by the board: a district meet-

ing must ratify the board’s action only if the chief execu-

tive officer of a constitutent town requests that a meeting

be called. Conn. Gen. Stats. § 10-153d.

The power to tax is not a sine qua non to a determina-

tion that a local board serves a governmental function.

The regulatory and supervisory powers possessed by the

regional boards here at issue are sufficiently broad to he

classified as governmental activity. See generally Powers

v. Maine School Administrative District No. 1, 359 F. Supp.

30 (D. Me. 1973); Leopold v. Young, supra.’®

Appellants’ last line of argument focuses upon the

Supreme Court’s decisions in Salyer Land Co. v. Tulare

Lake Basin Water Storage District, 410 U.S. 719 (1973).

9. Nor is this a complete list of the boards’ powers and duties.

The boards also have duties in connection with school curriculum,

transportation and a wide range of support services. In short, this

is not a case like Sailors v. Board of Education, 387 U.S. 105 (1967),

where an appointed school board, whose duties were largely admin-

istrative, was exempted from application of one person-one vote

principles.

10. Nor does having the power to tax make a given body govern-

mental in nature. Salyer Land Co. v. Tulare Lake Basin Water

Storage District, 410 U.S. 719 (1973).

8a

and Associated Enterprises, Inc. v. Toltec Watershed

Improvement District, 410 U.S. 743 (1973), to diminish the

force of Hadley. In Salyer and Toltec the Court held that

one person-one vote principles did not apply to the elec-

tion of members of the governing board of a California

water and a Wyoming watershed district. Since the dis-

tricts in issue in Salyer and Toltec had a “special limited

purpose” and since the districts’ action had a substan-

tially “disproportionate effect . . . on landowners as a

group,” 410 U.S. at 728, 410 U.S. at 744, it was acceptable

for the officers of the district to be elected by weighted

vote of the district’s landowners. The regional school

hoards’ impact is general and related to all voters of the

towns as such. In Salyer, the Court was careful to note

that it was the land which was being benefited and the

landowners only paying the costs; the Court also empha-

sized that the water district “provides no other general

publie services such as a school.” Id. at 728-29 (emphasis

added). Here we have school districts in which those

towns which are paying the most for the districts’ sup-

port have to accept a diluted vote" in the running of the

schools. Salyer and Toltec are simply not relevant. The

boards here are elective bodies serving governmental

functions. They must be organized to reflect one person-

one vote principles.

Judgment affirmed.

11. It is of no aid to appellants that the manner in which the

regional boards were to be organized was voted upon and accepted

by a majority of the voters of each of the towns in the district. As

the Supreme Court held in Lucas v. Forty-fourth General Assembly

of Colorado, 377 U.S. 713, 736-37 (1964):

An individual’s constitutionally protected right to cast an

equally weighted vote cannot be denied even by a vote of a

majority of a State’s electorate, if the apportionment scheme

adopted by the voters fails to measure up to the requirements

of the Equal Protection Clause. Manifestly, the fact that an

apportionment plan is adopted in a popular referendum is

insufficient to sustain its constitutionality or to induce a court

of equity to refuse to act.

Nor is the fact that the districts were formed pursuant to agreement

of the towns. See Leopold v. Young, supra.

9a

APPENDIX II

UNITED STATES COURT OF APPEALS

* FOR THE

Seconp Circuit

ee

At a stated Term of the United States Court of Appeals

for the Second Circuit, held at the United States Court-

house in the City of New York, on the twenty-third day of

July one thousand nine hundred and seventy-five

Present—Hon. J. Josepn Smrru,

Hon. Rosert P. ANpERSON,

Hon. James L. Oakes, Circuit Judges.

75,7001, 75-7009, 75-7015, 75-7039, 75-7040.

Joun E, Baker, and Geratprne S. Georcr,

Appellees,

v.

Recionat Hicu Scuoor District No. 5, Recionat Boarp or

Epvucation or Recionat Hic Scroor District No. d, Mrs.

Marion P. Crocco, Mr. Grorce P. Davis, Jr., Mrs. Jean

Virsuvup, Mr. Louis Kurzner, Mrs. Jean S. Mippteton, Dr.

Freperick Sreicert, Mrs. Frank GrusKkay, Dr. HERBERT

HersHenson, and Mr. Leonarp Loune, individually and in

their official capacities as members of the Recionat Boarp

or Epucation or Recionan High Scnoon District No. 5,

Dovetas J. Sairu, individually and in his official capacity

as Acting Superintendent or Recionat HicH Scuoo. Dis-

trict No. 5, Mr. Freperick Ross, Mr. Henry W. Benepict,

Mr. Harry I. Witson, as Treasurers respectively of the

Towns of Orange, Bethany, and Woodbridge, and Mrs.

Marsorre B. Wannequist, Mr. Smpney Svirsky and Mrs.

JEAN Hanna, as Town Clerks respectively of the Towns of

Orange, Bethany and Woodbridge,

Defendants,

10a

RecionaLt Hicu ScwHootr District No. 5 and Recionat Boarp

or Epucation or Recionat HicgH Scuoou District No. 5,

JAMES Berry, as Treasurer of the Town of Woodbridge

(succeeding Harry I. Witson, deceased)

Defendants-Appellants,

JosePpH M. Scort, Sr.,

Plaintiff-Appellee,

Vv.

NonNEWAUG RecionaL Scnoor District No. 14, THe Town

or Woopsury, Connecticut, THe Town or BetHLEHEM

Connecticut, Towns or Woopsury, and Samvet J. Swenp-

SEN, First SeELEctMAN, Town or BETHLEHEM,

Defendants

NonnewauG Recionat Scuoot District No. 14, Town or

JSETHLEHEM,

Defendants-A ppellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF CONNECTICUT.

—EE

This cause came on to be heard on the transcript of record

from the United States District Court for the District of

Connecticut, and was argued by counsel.

On ConstperaTION WHEREOF, it is now hereby ordered,

adjudged, and decreed that the judgment of said District

Court be and it hereby is affirmed with costs to be taxed

against the appellants.

lla

APPENDIX III

UNITED STATES DISTRICT COURT

District or CONNECTICUT

Civil No. B-538

Civil No. N-74-75

Ee

JosePpH M. Scort, Sr.

v.

NonnewaucG Recionat Scuoor District No. 14, et al.

,

Joun E. Baker, et al.

v.

Recionat Hien Scuoor District No. 5, e¢ al.

OL

MEMORANDUM OF DECISION

These motions for summary judgment present identical

questions concerning the applicability of one person-one vote

principles to boards of education of Connecticut’s regional

school districts. See generally, Conn. Gen. Stat. §§ 10-39 to

10-631. Plaintiff in Civil No. B-538 (Scott), a resident, tax-

payer, and elector of the Town of Woodbury, seeks the

reorganization of the Board of Education of Nonnewaug

Regional School District No. 14, which administers the joint

elementary and secondary school systems of the Towns of

Woodbury and Bethlehem.' In Civil No. N-74-75 (Baker),

1. Plaintiff Scott seeks to pursue the suit as a class action.

Since “any equitable relief to which [plaintiff] may be entitled would

benefit all persons similarly situated, there is no compelling reason

to designate a class.” Bridgeport Guardians, Inc. v. Members o

Bridgeport Civil Service Commission, 354 F. Supp. 778, 783 (D.

Conn. 1973), modified on other grounds, 482 F.2d 1333 (2d Cir.

1973). Class action designation is accordingly denied.

12a

plaintiffs are residents, taxpayers, and electors of the Town

of Orange, and they seek re-organization of the Board of

Education of Regional High School District No. 5, which

includes the Towns of Orange, Bethany and Woodbridge.

The defendants in Scott are Regional District No. 14, the

chairman of the District’s Board of Education, the Towns

of Woodbury and Bethlehem, and the First Selectman of

each Town.? In Baker the defendants are Regional Dis-

trict No. 5, its Board of Education and the members of the

Board, the District’s superintendent, and the treasurers and

clerks of the Towns of Orange, Woodbridge and Bethany.

In addition, the Towns of Bethany and Woodbridge have

moved to intervene as defendants in Baker. They argue

that they have significant interests not adequately protected

by the present defendants, and that only they are properly

situated to protect the interests of their residents and elec-

tors.2 However, the elected representatives of the voters

who are already parties to this action are equal to that task.

Cf. Powers v. Maine School Administrative District No. 1,

359 F.Supp. 30(D. Me. 1973) ; Leopold v. Young, 340 F.Supp.

1014 (D. Vt. 1972). The Towns as such do not have any

substantial interest in the controversy; they are merely

election districts from which board members are chosen.

Cf. Butterworth v. Dempsey, 229 F.Supp. 754, 798-99 (D.

Conn. 1964) (three-judge court), aff'd sub nom. Town of

Franklin v. Butterworth, 378 U.S. 562 (1964). See Rey-

nolds v. Sims, 377 U.S. 535, 562 (1964). Moreover, an ap-

propriately fashioned remedy will adequately protect the

Towns. See 3A Moore’s Federal Practice 7 19.07-2[2]. The

motions to intervene are denied.

2. The Town of New Hartford has moved to appear in Scott as

amicus curiae. The motion is granted.

3. Other defendants have raised the same issue in the form of an

affirmative defense alleging that the Towns are necessary parties

without whose joinder the action cannot go forward, Fed. R. Civ.

P. 19.

l3a

In both actions plaintiffs argue that the present appor-

tionment of membership on their respective regional boards

of education impermissibly dilutes their voting power and

deprives them of the equal protection of the laws. They

claim jurisdiction under 28 U.S.C. §1343(3), and request a

variety of injunctive relief pursuant to 42 U.S.C. §1983. In

Scott the parties have stipulated to the material facts,‘

and both actions are before the Court on motions for sum-

mary judgment.5

Preliminarily, the Baker defendants dispute this Court’s

jurisdiction and urge that a three-judge court must be con-

vened to hear the suit. They rely primarily on Judge Tim-

4. Defendants in Baker note that in their action the parties have

not entered into a stipulation and urge that summary judgment is

inappropriate because a triable issue of fact is presented by disagree-

ment about the powers of their Board. There is no dispute, however,

that the powers of the Boards are defined by the Connecticut Gen-

eral Statutes, compare Education/Instruccion, Inc. v. Moore,

F.2d (2d Cir. 1974), Slip op. at 5321 (August 21, 1974) (Oakes,

J. dissenting); the only disagreement is whether as a matter of law

the powers conferred by statute are sufficient to bring the Boards

within apportionment requirements.

5. The Buker defendants oppose summary judgment on the

ground that the plaintiffs are not real parties in interest, Fed. R.

Civ. P. 17(a), and on the additional ground that jurisdiction of this

Court has been invoked by “improper or collusive joinder,” 28 U.S.C.

§ 1359. Rule 17(a) is designed to make certain that an action is

brought by one who, by the substantive law, has the right sought to

be enforced. Rackley v. Board of Trustees of Orangeburg Regional

Hospital, 35 F.R.D. 516 (E.D. S.C. 1964); 3A Moore’s Federal

Practice { 17.07, text at n. 1. But as this opinion explains, text fol-

lowing n. 2, supra, the right sought to be protected in this case is

that of the Orange electors in an undiluted vote. Section 1359 is

similarly designed to prevent collusive attempts to “manufacture”

diversity jurisdiction, O’Brien v. Avco Corporation, 425 F.2d 1030

(2d Cir. 1969). It thus has no application in the present context.

Moreover, even if, as defendants allege, officials of the Town of

Orange solicited plaintiffs’ participation, and even if the Town of

Orange is paying the expenses of the litigation, it does not follow

that there has been the kind of “collusion” at which the statute is

directed Allstate Ins. Co. v. Lumbermens Mutual Casualty Co., 204

F.Supp. 83 (D. Conn. 1962).

l4a

bers’ tentative opinion in Giordano vy. Amity Regional High

School District #5, 313 F.Supp. 403 (D. Conn. 1970). The

simple answer to this claim is one not raised by the parties

in Giordano (although recognized as persuasive by Judge

Timbers, 313 F.Supp. at 408-09, n. 9), but pressed strenu-

ously by all plaintiffs in the present actions. Plaintiffs here

do not seek to enjoin enforcement of a statute of statewide

application. Compare Hadley v. Junior College District of

Metropolitan Kansas City, 397 U.S. 50, 57 (1970), with

Leopold v. Young, 340 F.Supp. 1014, 1017 (D. Vt. 1972).

The Connecticut statutory system at issue “does not require

malapportionment, but only permits towns to agree among

themselves on the terms under which they will consolidate,

including the apportionment of school board members.”

Ibid. See C. Wright, Handbook of the Law of the Federal

Courts 190, text at n. 21 (1970).

The situation is no different as to Special Act 74-69,

regardless of the interpretation placed on it. If, as plain-

tiffs urge, it merely sets the time at which board members

will take office, there is no question of enjoining its enforce-

ment. And even if, as defendants urge, it represents a

“fixing” of the present apportionment of board members,

it applies by its terms only to District No. 5 and is there-

fore not a statute of statewide application.

Moreover, as the remainder of this opinion makes clear,

the law has progressed considerably since Giordano, and

what Judge Timbers concluded was a question requiring

three judges for resolution is now so clearly settled that

the issue lacks the substantiality requiring a three-judge

court. In snch cireumstances a single judge possesses the

power to dispose of the ease. Bailey vy. Patterson, 369 US.

51 (1962); Anderson v. Nemet>, 474 F.2d 814 (9th Cir.

1973); Consumer Party vy. Tucker, 364 F.Supp. 594, 604

(B.D. Pa. 1973). See Utica Mutual Ins. Co. vy. Vincent, 375

F.2d 129, 131 n. 1 (2d Cir. 1967).

| |

15a

Regional District No. 14 began operating on July 1,

1968, having been approved several months earlier by

separate referenda conducted in Woodbury and Bethle-

hem. The District’s board consists of eight members, with

four chosen by the electors of each of the two member

towns. Plaintiff Seott bases his objection to the equal divi-

sion of the membership on a comparison of the populations

of the two communities. According to the 1970 census,

Woodbury’s population was 5,869 and Bethlehem’s was

1,923, and of the 1,887 pupils attending school in the Dis-

trict as of May, 1973, 1,385 were from Woodbury and 492

were from Bethlehem. Finally, for each of the three con-

secutive academic years ending with 1973-74, Woodbury’s

contribution to the Regional District’s budget was approxi-

mately two and one-half times as large as Bethlehem’s. In

short, plaintiff complains that Woodbury has roughly 75%

of the joint district’s population and pupils, and contrib-

utes a similar proportion of the joint district’s budget, but

has only 50% of the votes on the body that administers

the District.

The comparable statisties for District No. 5, which com-

menced operations in the 1952-53 academic year, reflect a

similar imbalance. Orange, the largest of the three towns,

has approximately 55% of the population, 55% of the

student body, and contributes 55% of the District’s budget.

Bethany accounts for approximately 15% of each category,

and Woodbridge 30%. Each Town, however, elects three

members of the nine-member joint Board of Education.

Defendants do not dispute the contention that the votes

of the Woodbury and Orange electors are in fact substan-

tially diluted. Cf. Powers v. Maine School Administrative

District No. 1, supra, 359 F.Supp. at 35. Nor do they

seriously contest the proposition that because the members

of the Regional Boards are chosen by election® the one per-

6. The Baker defendants do suggest that the town meetings from

which their Board members are elected are exercises of legislative

I

l6a

son—one vote rules must apply. E.g., Hadley v. Junior

College District of Metropolitan Kansas City, 397 U.S. 50,

54 (1970); Rosenthal v. Board of Education of Central

High School District No. 3 of Town of Hempstead, 497

F.2d 726, 729 (2d Cir. 1974).

On the merits of the motions for summary judgment

defendants press only two contentions. The first is that

the Regional Boards whose composition is at issue perform

an insufficiently broad range of governmental functions and

are therefore not the type of elective bodies to which appor-

tionment requirements apply. Compare Salyer Land Co. v.

Tulare Lake Basin Water Storage District, 410 U.S. 719,

728-29 (1973). Both Regional Boards lack several signi-

ficant powers that were possessed by the junior college

board of trustees in Hadley, and defendants contend that

these were essential both in Hadley and in similar cases.

These include the power to levy and collect taxes, to issue

bonds, and to pass on petitions to annex school districts

and acquire property by condemnation.

Defendants’ approach, enumerating the powers that these

Regional Boards lack, is misconceived. Cf. Hadley v. Jun-

ior College District, supra, 397 U.S. at 53-54; Rosenthal

v. Board of Education, supra, 497 F.2d at 728. The proper

question is rather whether the powers the Boards do have

in fulfilling what “has traditionally been a vital govern-

mental function,” Hadley v. Junior College District, supra,

power and rot “popular elections” within the meaning of Hadley,

and that one person-one vote requirements for that reason do not

apply. Defendants do not dispute, however, that in each member

town all registered voters are eligible to vote for board members,

Conn. Gen. Stat. § 10-46(b). Nothing in Hadley indicates that the

Court intended to limit its holding to elections of a particular type.

On the contrary, Justice Black took pains to observe that at the

center of each of the Supreme Court’s reapportionment cases was

“the decision of the government to have citizens participate individu-

ally by ballot in the selection of certain people who carry out govern-

mental functions.” 397 U.S. at 54. To accept the consequences of

defendants’ characterization would be to exalt form over substance

at the expense of the right to vote.

17a

397 U.S. at 56, make it reasonable to describe the board

members as “government officials in every relevant sense

of that term.” Ibid.

With the question thus posed, the answer becomes clear.

The powers of the two Boards before this Court do not

differ significantly from those of the Board in Rosenthal,

supra, and the only question that troubled the Court of

Appeals in Rosenthal was whether the manner of selection

of board members was more nearly clective than it was

appointive; it was obvious to the Court that if the board

members were elected, their powers were sufficiently gov-

ernmental to invoke one person-one vote requirements. 497

F.2d at 729, text at n. 10. As the Court of Appeals has

more recently observed, “there was no question [in Rosen-

thal] that the body in question performed substantial gov-

ernmental functions.”” Education/Instruccion, Inc. v.

Moore, —— F.2d . (2d Cir. 1974), Slip op. at 5320

(August 21, 1974). Compare, e.g., Dameron v. Tangipahoa

Parish Police Jury, 315 F.Supp. 137, 138 (E.D. La. 1970).

See also, Regional High School District No. 3 v. Town of

Newtown, 134 Conn. 613, 620-21 (1948).

Defendants’ second argument relies on dictum in Avery

v. Midland County, 390 U.S. 474 (1968). They suggest that

regional districts are a form of educational innovation and

are for that reason immune from judicial interference, even

interference in the name of equal protection. Defendants

contend that requiring equal apportionment will make it

unlikely that smaller towns will join regional districts, and

that a legitimate attempt by the State to provide for more

efficient operation of schools and improved educational

opportunity for students will thereby be frustrated.

In Avery, which held that elections for County Commis-

sioners Court in Texas must be conducted in accordance

7. The Rosenthal Board also lacked the power to set taxes. 497

F.2d at 728, n. 7 and accompanying text.

18a

with principles of voting equality, the Supreme Court

acknowledged in passing that local governments are under

immense pressures to solve local problems, and denied that

such experimentation is foreclosed by the Constitution. The

two cases cited by the Court, however, indicate that these

observations were in no way intended to encourage retreat

from the Constitutional imperative. Sailors v. Board of

Education, 387 U.S. 105 (1967), exempted a board whose

members were appointed and whose duties were adminis-

trative, and in Dusch vy. Davis, 387 U.S. 112 (1967), the

Court upheld residence requirements imposed on the

members of a multicounty legislative body, finding that the

voting power of the electors of the component counties

was not diluted. Defendants express a legitimate concern

in urging that there be no needless thwarting of experi-

mentation with regional arrangements in general or in the

field of education in particular. The desirability of such

arrangements, however, cannot suspend the Fourteenth

Amendment’s apportionment requirements. If regional

school districts are to be encouraged, it will have to be

done by creative legislative authorization and cooperative

local arrangements that resolve the competing large and

small town interests within Constitutional standards.

Although the Constitution leaves a great deal of room for

legitimate experimentation and innovation, it also “imposes

one ground rule for the development of arrangements of

lecal government: a requirement that units with general

governmental powers over an entire geographic area not be

apportioned among. . . districts of substantially unequal

population.” Avery v. Midland County, supra, 390 US.

at 485-86.

The only question remaining is oae of remedy. Plaintiffs

in both actions have requested a broad range of coercive

injunctive relief, both permanent and interlocutory. Plain-

tiffs have clearly established that they are entitled to a

19a

declaratory judgment, but it does not follow that the

requested permanent mandatory injunction is also appro-

priate at this time. While it is true that the violations

could be cured without legislative action, compare Hadley

v. Junior College District, supra, the relatively few options

presently available to defendants were designed by a legis-

lature that may well have thought that regional districts

would be free from one person-one vote requirements.

Respect for the pre-eminence of the states in matters of

educational policy requires, therefore, that the legislature

be given a reasonable opportunity to develop new alterna-

tives in light of this Court’s declaration before an injunc-

tion issues requiring defendants to act. Cf. Powers v.

Maine School Administrative District No. 1, supra. For

example, the legislature may want to consider the pro-

cedures for forming new districts and for dissolving, or

permitting withdrawal from, present districts now that one

person-one vote principles are applicable. The General

Assembly is to convene in January and should have at

least two months to consider whether it wishes to frame

legislation responsive to the concerns of these and other

aspects of regional districts. Permanent injunctive relief

will therefore be denied, without prejudice to a renewed

application after March 1, 1975. At any time prior to that

date, any parties may submit to the Court their proposals

for reapportionment plans and implementation procedures,

which the Court will review before formulating a final

decree after March 1, 1975.

With respect to the requests for interim relief pending

entry of a final decree, the Court is not willing needlessly

to disrupt on-going educational activities pending legisla-

tive action. The requested decrees would work a substan-

tial departure from the status quo, and the request for

such relief is therefore denied. Plaintiffs are free to seek

supplemental interim relief if it should appear that the

20a

Regional Districts are about to undertake substantial

building programs or make other substantial capital

commitments.

Accordingly, plaintiffs’ motions for summary judgment

are granted,® and judgment will enter declaring that the

allocation of membership on the Boards of Education of

Nonnewaug Regional School District No. 14, and of

Regional High School District No. 5, deprives plaintiffs

of the equal protection of the laws in violation of the

Fourteenth Amendment.

Dated at New Haven, Connecticut, this 22 day of

November, 1974.

Jon O. Newman

United States District Judge

8. The motion of defendants in Scott is correspondingly denied.

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APPENDIX IV

UNITED STATES DISTRICT COURT

District or CoNNECTICUT

Civil No. B-538

Civil No. N-74-75

SE

JosePH M. Scort, Sr.

v.

Nonnewauc Recionat Scuoor District No. 14, et al.,

Joun E. Baker, et al.,

v.

RecionaL Hicw Scuoor District No. 5, et al.

En

JUDGMENT

The above cases having come on for consideration by the

Court on plaintiffs’ Motions for Summary Judgment and

the Court having rendered its Memorandum of Decision,

under date of November 22, 1974, granting said motions;

and the Court having rendered its Ruling on Request for

Rule 54(b) Certification, under date of January 3, 1975,

finding that there is no just reason for delay and specifically

directing the Clerk to enter judgment on the claims for

declaratory relief,

It is ORDERED and apsupcep that judgment be and is hereby

entered declaring that the allocation of membership on the

Boards of Education of Nonnewaug Regional School Dis-

22a

trict No. 14, and of Regional High School District No. 5,

deprives plaintiffs of the equal protection of the laws in

violation of the Fourteenth Amendment.

Dated at New Haven, Connecticut, this 8th day of Janu-

ary, 1975.