Petition for Writ of Certiorari — Winburn v. Bennington-Rutland Supervisory Union

& :

_ . Supreme Court, U.S,

90-4 45 > FILED

Wo. AUG 27 we

JOSEPH F. SPARBOL, JR.

CLERK

a

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1990

D. PATRICK WINBURN, Petitioner

Ve

BENNINGTON-RUTLAND SUPERVISORY

UNION, Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

PETITION FOR WRIT OF CERTIORARI

D. Patrick Winburn

Attorney for Petitioner

Post Office Box 975

Manchester, Vermont 05254

Telephone: (802) 362-5100

eo

QUESTION PRESENTED FOR REVIEW

i Are ex officio boards, which

are exclusively made up of elected lower

board officials (but which do not

automatically include all of those

elected lower board officials), “selected

by popular election", thereby requiring

the application of the one person/one

vote principle given this Court's ruling

in Morris v. Board of Estimate, 109 S.Ct.

1433 (1989)?

as

TABLE OF CONTENTS

Page

QUESTION PRESENTED FOR REVIEW...... I

Ps or SCE Mco cece dé ee cceesesee II

De a MPR se ccc cc esc ccees IV

REFERENCE TO OFFICIAL OPINIONS BY

OTHER COURTS...... cee ee ee eee eee eee IV

CONCISE STATEMENT OF THE GROUNDS

ON WHICH JURISDICTION IS INVOKED .. VII

REED UUW EMEEWENEP ss cc cccceccceccccecs VIII

UNITED STATES CONSTITUTIONAL

PGE « UPWUMSWEEE sc cece cccccccccecese IX

STATEMENT OF THE CASE AND FACTS.... xX

eee eee nae hee ee ee eee ee 6 1-14

he ROSENTHAL IS IN CONFLICT

Fo 0 8 1-8

II. THE BRSU BOARD IS

"SELECTED BY POPULAR

ELECTION" WITHIN THE

MEANING OF THE EQUAL

PROTECTION CLAUSE OF THE

14TH AMENDMENT........... 9-10

IIi. VERMONT STATUTES REQUIRE

THREE MEMBERS LOCAL

SCHOOL BOARDS AND THREE

Iil

MEMBERS ON BRSU BOARD

THEREBY CAUSING ALL

REQUIRED LOCAL BOARD

MEMBERS TO AUTOMATICALLY

BE BRSU MEMBERS.......... 10-14 2

APPENDIX........ v¥e0400606660040045 XIV

IV

TABLE OF AUTHORITIES

CASES

Bianchi v. Griffing

393 F. 2d 457 (2d

CAB a BPOC) cect cecscncece 3, @ tf, aa

Hadley v. Junior College

District —

390 U.S. 50, 90 S.

Ga Fee GEEEO? eb éesenecn 2 ee

Morris v. Board of

Estimate

707 F.2d 686 (2d. Cir.

1983) affd. 489 U.S.

cae bse n6ee « ee ON ae Pe oo

Rosenthal v. Board

of Estimate

497 F.2d. 726, 729

(2d. Cir. 1974) 385

F. Supp. 726 (2d.

Gals SET El eeeecenseecsocecee Be as 20

Sailors v. Board of

Education

se? U.S. 165 87 S.

a eee SEED cece eeccacsevecse Gs 7

Winburn v. bennington-

Rutland Supervisory Union

U.S. Dist. Court

for the Dist. of

Vermont, Civ. No. 89-181

U.S. Court of Appeals,

2nd Cir., Docket

Page

Be. SReTARG cc cccceer V2, Vit, BI, 5

STATUTES

= = a | Srey orc. S97 38, ia

a me wae ee er VIII, 10

V1

REFERENCE TO OFFICIAL

OPINIONS BY OTHER COURTS

Ae Judgment of United States

District Court, District of Vermont, Case

No.: 89-181 granting Defendant's Motion

for Summary Judgment and denying

Plaintiff's Cross-Motion for Summary

Judgment dated February 23, 1990.

y Summary Order of United States

Court of Appeals for the Second Circuit,

Docket No.: 90-7226 affirming Judgment

of District Court filed June 14, 1990 and

issued as mandate July 5, 1990.

|

VII

CONCISE STATEMENT OF THE GROUNDS

ON WHICH JURISDICTION IS INVOKED

A. Date of entry of Judgment or

Decree: Summary Order of United States

Court of Appeals for the Second Circuit,

Docket No.: 90-7226 affirming Judgment

of District Court filed June 14, 1990 and

issued as mandate July 5, 1990.

B. Statutory provision believed to

confer jurisdiction to review the

Judgment: Rule 28, $1254, United States

Code.

VIII

STATUTES INVOLVED

16 V.S.A. $266:

For the purpose of holding

meetings and transacting the

business of a supervisory

union, the school board of any

district assigned to a

supervisory union, and having

more than three members, shall

elect from such boards three

members who shall represent and

act for it in meetings of the

supervisory union to which it

is assigned. But the school

board of any district which

employs no teacher shall have

only one vote in said

supervisory union meeting.

16 V.S.A. $423(a)

Each town school district

shall have a school board

consisting of three directors,

one of whom shall be elected by

ballot at each annual meeting

of the town school district for

a term of three years,

beginning the day of election

Or until a successor is elected

and qualified, unless a town

school district is a member of

a unified union district.

IX

UNITED STATES

CONSTITUTIONAL PROVISION INVOLVED

Le AMENDMENT XIV

Section 1. All persons born or

naturalized in the United States, and

subject to the jurisdiction thereof, are

citizens of the United States and of the

State wherein they reside. No States

shall make or enforce any law which shall

abridge the privileges or immunities of

the citizens of the United States; nor

shall any State deprive any person of

life, liberty or property, without due

process of law; nor deny to any person

within its jurisdiction the equal

protection of the laws.

STATEMENT OF THE CASE AND FACTS

This action was filed in the

District Court of the District of Vermont

on June 15, 1989 alleging that the

make-up of the Bennington-Rutland

Supervisory Union constituted a violation

of the Equal Protection Clause of the

14th Amendment in that the membership is

not apportioned according to the

population of it's member districts. The

lower Court had jurisdiction pursuant to

28 USC $1343. Thereafter, the Defendant,

BRSU, filed its Motion for Summary

Judgment alleging that the BRSU is not

governmental in nature and that the BRSU

members were not elected. The Plaintiff,

Winburn, thereafter filed his Motion for

Summary Judgment alleging that the BRSU

was “selected by popular election" and

was sufficiently governmental to trigger

XI

constitutional safeguards.

On February 23, 1990, the District

Court entered Judgment by granting the

Defendant, BRSU's, Motion for Summary

Judgment and denying the Plaintiff,

Winburn's, Cross-Motion for Summary

Judgment.

The Plaintiff, Winburn, brought his

Appeal to the Second Circuit Court of

Appeals based on the said Judgment. The

United States Court of Appeals for Second

Circuit affirmed the District Court's

Judgment by Summary Order dated February

23, 1990.

The Bennington-Rutland Supervisory

Union is an entity created by the Vermont

Legislature and adopts policy for and

supervises the various town school

districts that are within se"s

jurisdiction.

XII

The BRSU is made up exclusively of

elected local town school board members.

A person outside of the elected local

board cannot be on the BRSU board. All

local board members are participating

members of the BRSU but the state law

limits the boards to a maximum of three

votes.

As the lower District Court noted,

some local boards have three members and

all three members automatically become

voting members of the BRSU. Other local

boards have five members’ and three of

those five members become voting members

on the BRSU board and the other two

members become alternate but

participating members of the BRSU.

It was the lower Court's opinion

that the BRSU members were not "selected

by popular election" as required by

XIII

Hadley v. Junior College Dist., 390 U.S.

50, 90 S. Ct. 791 (1970) so that the

Equal Protection Clause of the 14th

Amendment to the Constitution does not

guarantee the citizens within the

districts the right to the one person/one

vote principle. Winburn believes that

this is unfair in that his town,

Manchester, ls entitled to three out of

the twenty-one total votes on the BRSU

board but pays up to forty percent of the

expenses of the BRSU board.

ARGUMENT

I. ROSENTHAL IS IN CONFLICT WITH

MORRIS

The lower Court heavily relied on

Rosenthal v. Board of Education, 385 F.

Supp. 726 (2d. Cir. 1974) in rejecting

Winburn's contention that the BRSU board

is “selected by popular election"!,

noting that Rosenthal states that

“restricting the class of people who may

be appointed does not change appointment

l. Hadley v. Junior College District,

supra and its progeny provide that the

standard is “is selected by popular

election” or similar variations rather

than being merely "elected" apparently

contemplating a broader standard for this

requirement as found in the Supreme

Court's recent ruling in Morris v. Board

of Estimate, 109 S.Ct. 1433 (1989).

to election"?.

A similar question was put before

this Court in the case of Morris v. Board

of Estimate, 707 F2d. 686 (208. Cir.

1983), aff'd 109 S.Ct. 1433 (1989) and

this Court rejected an argument similar

to the one that the BRSU proposes here.

In Morris, a challenge was made to

the composition of New York's Board of

Estimate. Upon election to their borough

councils, the borough Presidents (and

others) became members of the Board of

Estimate. In rejecting the argument

a. This statement is dicta in a

District Court case and changes the case

history that has always held the

Opposite. In Rosenthal, this Court never

specifically found that the ex officio

board was made up of exclusively of lower

board members. The Court noted that

there was an “implication" (See Rosenthal

at Page 223) but never made such a strong

and precedent setting statement.

3

y

that

the board was not “selected by

popular election" this Court stated at

Page 689:

"It follows that the Board of

Estimate is not an appointed

body; its membership is

definitively determined by

election and by election alone.

Moreover, the question of

applicability of the Equal

Protection Clause to "ex

officio" boards was settled in

this Circuit in Bianchi v.

Griffing, 393 F.2d 457 (2d

Cir.1968). In Bianchi, we held

the one person, one vote

principle applicable to a

county board of supervisors

selected in a manner virtually

indistinguishable from the

process by which the Board of

Estimate is chosen. The Board

at issue in Bianchi consisted

of elected town supervisors who

served on the county board as

"delegates" of their own towns.

The language used in rejecting

the appellee's argument in

Bianchi describes the situation

presented here:

"The mere fact that the

board members may be

characterized as

'delegates' and perform

functions in addition to

their duties on the

board, does not provide a

meaningful distinction...

We are impelled to the

realistic recognition

that a citizen entering

the voting booth chooses

at one and the same time

a member of the Board of

Supervisors and his town

supervisors."

The BRSU argues, however, that the

instant case is different from Morris and

Bianchi heebena here only three of the

five elected lower board members serve on

the ex officio board. The five decide

which three of their members will serve

on the ex officic board. According to

the BRSU's argument, this makes’ them

"appointed" and deprives the voters of

their right to the one person/one vote

guarantees.

~The application of this logic to

Morris would lead to illogical results

lacking in any meaningful substantive

distinction whatsoever. According to the

lower Court's reasoning in Winburn, all

the Board of Estimate has to do now is

change its charter to call for any one of

the borough membership to be on the Board

of Estimate, instead of the borough

President and this will make the practice

"constitutional". If the charter

designates the President, it is

constitutional. If the charter

designates any of the members’ the

practice is unconstitutional. Surely,

Hadley did not intend for such fine and

meaningless distinctions to be made.

This is significant when viewed in

light of the case history of how Courts

have distinguishei hetween elected and

truly appointed boards. Essentially,

Courts have looked at whether there is a

direct connection between the voter

and the board representative to determine

applicability of the one person/one vote

guarantees. If there is no direct

connection then there is no guarantee

of the one person/one vote principle. If

the connection is direct then the one

person/one vote principle is applied.

For example, in Sailors v. Board of

Education, 387 U.S.105 87 §. Ct. 1549

(1967) the Court, in holding that a local

board was appointed and not elected made

this distinction evident at Page 110,

Note 6 when they stated:

"There is not even a formal

method by which a delegate

{from a local school

board] can determine the

preferences of the people in

his district. It is evident,

therefore, that the membership

of the county board is not

determined directly or

indirectly, through an

election in which the residents

of the county participate."

The Sailors Board was made up of

anyone - including “outsiders”. As the

Court similarly states in Sailors at

Pages 106-107:

"Each board sends a-delegate to

a biennial meeting and those

delegates elect a County board

of five members, who need not

be members of the local boards,

from candidates nominated by

school electors." Emphasis

added.

The policy considerations in Sailors

and the subsequent cases interpreting

this policy (See also Morris v. Board of

Estimate, supra and Bianchi v. Griffing,

supra) are that it is vital to determine

the connection between the voters who

elect representatives and those who

represent them. The significance of

excluding “outsiders” and making election

to a locai board a requirement is that

the members cannot be considered

"appointed" if election is a

prerequisite. It is the same as saying

that the voters “appoint" their elected

representatives by voting for them.

The rationale is _ clear and

Significant - if voters are responsible

for putting people in a governmental

position then they should be entitled to

have their votes equally weighted with

those of others who select like

representatives.

The BRSU is made up exclusively of

elected local board members. See 16

V.S.A. 8 266. A person outside of the

elected local boards cannot be on the

BRSU Board. See 16 V.S.A. 8266. All

local Board members are participating

members of the BRSU but State law limits

the boards to a maximum of three votes.

See 16 V.S.A. 8 266.

II. THE BRSU BOARD IS "SELECTED BY

POPULAR ELECTION" WITHIN THE MEANING OF

THE EQUAL PROTECTION CLAUSE OF THE

14TH AMENDMENT

The BRSU board is "selected by

popular election" within the meaning of

the Equal Protection Clause of the 14th

Amendment of the Constitution in that

election to the local board automatically

causes all local board members to either

be a voting member of the BRSU board or

an alternate and participating member of

the BRSU board. See 16 V.S.A. §$ 266. As

the lower Court noted, the members of

some local boards are all automatically

BRSU members upon election by their

towns. Other local boards that have five

members elect three of their number to be

voting members and the other two members

of the local board become alternate but

participating members. As this Court has

noted in Morris v. Board of Estimate, 707

10

F.2d 686 (2d. Cir. 1983) affd. 489

U.S. (1989) citing Rosenthal v. Board of

Education, 497 F2d. 726, 729 (2d. Cir.

1974) if election as a member of a local

board serves automatically to designate

that elected member also as a member of

an “ex officio" board the one person/one

vote concept is violated.

III. VERMONT STATUTES REQUIRE THREE

MEMBERS ON LOCAL SCHOOL BOARDS AND THREE

MEMBERS ON BRSU BOARD THEREBY CAUSING ALL

REQUIRED LOCAL BOARD MEMBERS TO

AUTOMATICALLY BE BRSU MEMBERS

It should be noted that 16 V.S.A.

§423(a, requires that a town district

a town district have a school board made

up of a minimum of three directors. They

are also, with one exception,

Mandated by law to have three BRSU board

members. See 16 V.S.A. 8266. If a

11

school board chooses to increase it's

number of local board members in excess

of three it may do so but it is not

mandated.

It is clear that the legislature, in

setting up local school boards as well as

the BRSU, contemplated that all local

board members would be BRSU members. If

a town chooses’ to have more than three

local board members, the legislature has

determined to continue to limit them to

three members on the BRSU board.

What the BRSU is reaily arguing is

that the "automatic"? nature of local

board membership to the BRSU is defeated

by a towns' decision to increase its

3. The BRSU admits that if the

local board members were "automatically"

elected to the BRSU when they are elected

as local board members, the one

person/one vote principle would be

violated.

12

local board membership beyond that which

is mandated by the state

statute. Following the BRSU's logic,

this then, is what makes the BRSU board's

selection process to be "non-automatic"

and therefore appointed and not subject

to the one person/one vote principle.

This is clearly a distinction without

substance.

Such a narrow argument should not be

permitted to defeat the control the

voters have over their elected

leadership. It is clear that this is not

what the legislature was originally

intending. It can be presumed

that this is why the local board members

who do not cast votes are allowed to

freely participate in meetings and are

considered full participating members.

This also presumably explains why the

legislature in 16 ¥.8.A. $266

contemplates a direct connection between

the BRSU board and their constituency by

directing that the members "shall

represent and act for" the local board in

meetings of the Supervisory

Union. The BRSU does not dispute that

BRSU board members are selected asa

result ot a popular election. Their

argument is merely that local board

members names were not put on the ballot

as BRSU board members and therefore

should be considered appointed.

This is the same argument made by

the Board of Estimate in Morris v. Board

of Estimate and Bianchi v. Griffing,

supra, and it should be similarly

rejected in this case since it does not

provide a "meaningful distinction".

WHEREFORE, Petitioner requests that

this

Petition

14

enter an Order granting its

for Writ of Certiorari on the

above-stated grounds.

Dated:

Respectfully submitted,

D. PATRICK WINBURN

Attorney for Petitioner

Post Office Box 975

Manchester, Vermont 05254

Telephone: (802) 362-5100

August 22, 1990

XIV

APPENDIX

l. Opinion and Order, Winburn v.

Bennington-Rutland Supervisory Union,

U.S. District Court for the District of

Vermont, Civ. No.: 89-181.

2. Summary Order, Winburn ¥.

Bennington-Rutland Supervisory Union,

U.S. Court of Appeals for the Second

Circuit, Docket No.: 90-7226.

UNITED STATES DISTRICT COURT

FOR THE

DISTRICT OF VERMONT

D. PATRICK WINBURN, $

Plaintiff :

Vv. ~ : Civ. No. 89-181

BENNINGTON-RUTLAND

SUPERVISORY UNION, :

Defendant :

OPINION AND ORDER

The sole issue in this case is

whether the voting apportionment of the

Bennington-Rutland Supervisory Union

violates the equal protection clause of

the United States Constitution. For the

forthcoming reasons the court finds that

16

the Bennington-Rutland Supervisory Union

Board is not subject to the fourteenth

amendment's guarantee of equal voting

strength; therefore, the defendant's

motion for summary judgment is GRANTED

while the plaintiff's cross-motion for

summary judgment is DENIED.

I. BACKGROUND

The material facts in this case are

not in dispute. The Bennington-Rutland

Supervisory Union (BRSU) was established

pursuant to Vt. Stat. Ann. tit. 16, 8261

which authorized the creation of

Supervisory unions throughout Vermont by

combining appropriate school districts

into one supervisory union. The BRSU

consists of the school districts of

Danby, Dorset, Manchester, Mt Tabor,

Pawlet, Rupert, Sandgate, Sunderland, and

17

Union District #23. The duties of a

supervisory union are prescribed by

Vermont law. In general, supervisory

unions are required to: coordinate and

implement curriculum plans for the

sending and receiving schools in the

union; disburse federal and state funds;

establish policies in the professional

development of teachers employed in the

Supervisory union; and provide special

education services to the member

districts. Ve. ‘@¢ate. Asm. 6ats-— 36,

$261a(1)-(7). In addition, supervisory

unions are empowered to provide the

following services to their member

districts: centralized purchasing;

construction management; budgeting and

accounting; teacher negotiations; and-

transportation. 8261la(8).

The implementing statute authorized

18

three members of the school boards of the

member school districts to serve as the

supervisory union representatives. 8266.

Thus, in general, each school district

has three votes in conducting the

business of the supervisory union.! When

union representatives. Id. Regardless

of the number of school board members,

however, the BRSU By-Laws allows’ the

school board to elect a single member to

the school board of a school district has

more than three members, the school board

is required to elect three of its members

to act as the school board's supervisory

represent it and thus cast the school

1 If a_ school district, however,

does not employ any teachers, the school

district is entitled only to one vote in

conducting supervisory union business.

Vt. Stat. Ann. tit. 16, 8266.

19

district's votes on BRSU business.” BRSU

By-Laws, Art. 5.

As structured, the implementing

statute allows smaller towns to have as

many representatives or votes on the

supervisory union as larger towns. The

Manchester School District, for example,

has a total population of approximately

2 The BRSU By-Laws were adopted at

the annual meeting of the BRSU in March,

1974. In 1983, however, the Vermont

Legislature repealed Vt. Stat. Ann. tit.

16 $265 which had authorized school

boards to eiect one member to represent

it and cast three votes in conducting

supervisory union business. The parties

do not address whether the repeal of £265

invalidates the corresponding provision

of the By-Laws. To its benefit,

defendant does not dispute plaintiff's

assertion that the By-Laws are in full

force and effect. At any rate, while

this provision of the By-Laws may support

defendant's contention that the BRSU

representatives are "appointed" as

opposed to "elected," it is not a

determinative element of the court's

holding; therefore it would be

improvident for the court to pass

judgment on its validity.

20

3,580 and has three representatives or

votes on the BRSU while the Sunderland

School District has a total population of

approximately 850 and also has three

representatives or votes; thus, in

Manchester one vote on the BRSU

represents approximately 1,190 persons

while in Sunderland one vote represents

approximately 280 persons. In light of

these figures, it is not disputed that

the apportionment of voting in the BRSU

is disproportional to the population of

each individual school district;

therefore, this court need only decide,

as a matter of law, whether the BRSU is

subject to the fourteenth amendment's

guarantee of equal voting strength as

espoused by Reynolds v. Simms, 377 U.S.

533 (1964), and progeny.

21

II. DISCUSSION

The determination of whether the

equal protection clause's guarantee of

equal voting strength applies to a

governmental body requires a two prong

analysis. First, the body must be

"elected." Hadley v. Junior College

Dist., 397 U.S. 50, 56 (1970). Second,

the entity must perform governmental

functions which are general enough and

have sufficient iepact throughout the

district as to require that elections to

that body comply with equal protection

strictures. Id. at 54; Barnes v. Board

of Directors, Mt. Anthony Union High

School Dist., 418 F.Supp. 845, 847 (D.Vt.

1976).

A. Elected Officials

The equal protection clause is not

22

violated if a State chooses to select

members of an official body by

appointment rather ‘than election even

though the officials appointed do not

represent the same number of people.

Hadley, 397 U.S. at 58. At first blush,

it appears that the selection process for

the BRSU Board falls somewhere between

two Supreme Court decisions. On the one

hand is Board of Estimate v. Morris, 489

U.S. _—_, 109 S.Ct. 1433, 103 L.ED.2d

717, 727 #£=(1989), where the Court held

that members of New York City's Board of

Estimate were "elected" officials

because, as a matter of law, the borough

presidents automatically became Board of

Estimate members upon their election as

borough president. Morris, however, is

not directly analogous to the instant

controversy because BRSU representatives

23

are selected from among the school board

members of local school districts and are

not, as a matter of law, automatically

BRSU representatives upon their election

to the local school boards. 3

On the other hand, is Sailors v.

Board of Educ., 387 U.S. 105 (1967),

where the Court held that county school

board members were "appointed" rather

than "“elected" notwithstanding that the

3 The court recognized that the

local school boards of school districts

are often comprised of only three members

and thus, as a practical matter, all

three might “automatically" act as the

Supervisory union representatives. This

result, however, is not mandated by

Vermont law and is therefore,

inconsequential for equal protection

urposes. See Vt. Stat. Ann. tit. 16,

423(b) (school board of school district

may consist of up to five members). The

fact that a local school district chooses

to have only three iocal school board

members is beside the point; it is not

required to do so.

24

local school board members, in effect,

elected the members of the county school

board. 4 Sailors, however, also differs

from the instance case because, unlike

the BRSU, election to the local school

board in Sailors was not a prerequisite

to serving on the regional board. Id.

at 207. Because of these distinctions

neither Morris nor Sailors provide a

definitive answer to whether BRSU

representatives are "elected" when they

are chosen by and consist of members of

the local school boards.

Fortunately, the court is not

without further guidance to resolve this

important question. Specifically, in

4 The local school board in Sailors

would first select delegates amongst

themselves who would in turn elect the

regional board members. 337.6 6U.8. at

106-07.

ve ee a> ot, as bt

25

Rosenthal v. Board of Educ., 385 F.Supp.

223 (E.D.N.Y. 1974), affirmed without

opinion, 420 U.S. 985 (1975), which is

not cited by either party, a three judge

panel held that a regional school board

was "appointed" even though the local

school boards were each required to

choose the regional school board members

from those persons serving on their

"elected" local school boards. In

rejecting the equal protection claim, the

court reasoned that restricting the

Class of people who may be appointed does

not change appointment to election.'"

Id. at 226 (quoting Rosenthal, Civ. No.

72-821 at 11 (E.D.N.¥. Oct. 9, 1973)

(district court decision prior to

convening three-judge panel)). Rosenthal

thus expressly refutes plaintiff's

contention that BRSU Board " members

,

26

cannot be considered "appointed" if

election is a perquisite [sic]."

Plaintiff's Memorandum in Support of

Motion for Summary Judgment at 14

(November 29, 1989). Furthermore, the

Rosenthal court revtected the argument

—

that because the general electorate

possessed the power to remove - the

regional school board members by refusing

to reelect them _ to the local school

board, the regional board was in effect

"elected": "[I]t does not follow that the

power of removal is the test of whether a

person is appointed or elected." Id.

The method by which the regional

board members were chosen in Rosenthal is

virtually the same method in which

representatives to supervisory unions in

Vermont. are chosen, to wit: the regional

board must be both comprised of and

selected by the local board members.

27

Moreover, Rosenthal and the present case

both involve a statutory scheme in which

the total number serving on the local

board could equal the number allowed to

serve on the regional board; thus, in

such circumstances, as a practical matter

the election of the local board members

also determined who would serve on the

regional board. >

> The statute involved in Rosenthal

goes further than the Vermont statute and

provides that when the school district

has one trustee that member represents

the district on the regional board. 385

F.Supp. at 225. The court does not

believe this provision renders

Rosenthal in conflict with Morris because

there the applicable statute apparently

allowed the election of only one

president for each borough who in turn

would automatically serve as a board of

estimate member. 103 L.Ed.2d at 727. [In

contrast, in Rosenthal the applicable

statute did not mandate that the elected

members of the local board per se became

members of the regional board; rather,

they did so only if the electors of the

local school district chose to elect only

one trustee.

28

In light of :°senthal and the

Supreme Court's summary affirmance

thereof, the court concludes that the

school district representatives on the

BRSU are "appointed" rather than

"elected" officials; therefore, the BRSU

is not subject to the equal protection

clause's guarantee of proportional

voting.® See also Burton v. Whittier

Regional _Vo-Tech School, 587 F.2d 66, 70

(lst Cir. 1978) (relying on Rosenthal to

uphold a two-tier system of selecting

regional school board members). Notably,

this holding also comports with the

6 A summary affirmance by the

Supreme Court is binding precedent and

constitutes an endorsement of the lower

court's result though not necessarily its

reasoning. See Soto-Lopez . New York

cit Civil Serv. Comm'n, 5 F.2d 266,

272 (2d Cir. 1985), aff'd, 476 U.S. 898

(1986); Picou v. Gillum, 813 F.2d 1121

(llth Cir. 1987).

29

Supreme Court's observation that "The

Constitution does not require that a

uniform straitjacket bind citizens in

devising mechanisms of local government

suitable for local needs and efficient in

solving local problems." Avery v.

Midland County, 390 U.S. 474, 485 (1968).

2. Governmental Functions

Because the court holds that BRSU

representatives are "appointed" rather

than “elected” officials, there is no

need to reach the issue of whether the

BRSU performs governmental functions

which are general enough and have

sufficient impact throughout the

supervisory union as to require “that

elections to that body comply with equal

protection strictures.

'

a

30

CONCLUSION

The plaintiff has failed to

establish that the BRSU Board is selected

by popular election; consequently, the

equal protection clause's guarantee of

one-person, one-vote does not apply.

Plaintiff's cross-motion for summary

judgment is thus DENIED while the

defendant's motion for summary judgment

is GRANTED.

SO ORDERED

Dated at Rutland in the District of

Vermont this 23rd day of February, 1990.

/s/ Franklin S. Billings, Jr.

Franklin S. Billings, Jr.

Chief Judge

31

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

At a stated Term of the United

States Court of Appeals for the Second

Circuit, held at the United States

Courthouse in the City of New York, on

the 14th day of June, one thousand nine

hundred and ninety.

Filed June 14, 1990, Elaine B.

Goldsmith, Clerk.

, = O86 6:3 2S

HONORABLE J. EDWARD LUMBARD,

HONORABLE THOMAS J. MESKILL,

HONORABLE GEORGE C. PRATT,

Circuit Judges.

D. PATRICK WINBURN,

Plaintiff-Appellant,

Vv. Docket No.

90-7226

BENNINGTON-RUTLAND

SUPERVISORY UNION,

Defendant-Appellee.

This is a pro se appeal froma

judgment entered in the United States

32

District Court for the District of

Vermont, Billings, C.J., granting

defendant-appellee's motion for summary

judgment and denying

plaintiff-appellant's cross-motion for

summary judgment. The district court

held that representatives of local school

districts on the Bennington-Rutland

Supervisory Union (BRSU) are not elected

officials, and therefore the fact that

the apportionment of voting in the BRSU

is disproportionate to the population of

each local school district does not

violate the equal protection principle of

one person, one vote.

This cause came on to be heard on

the transcript of record from. said

district court - and was argued by

appellant pro se and by counsel for the

appellee.

--

33

The judgment of the district court

is AFFIRMED.

We agree with the district court

that the Fourteenth Amendment's guarantee

of equal voting strength does not apply

in this case because the BRSU

representatives are appointed, not

elected officials. Accordingly, we

affirm the judgment of the district court

substantially for the reasons stated by

Chief Judge Billings in his Opinion and

Order dated February 23, 1990.

/s/ J. Edward Lumbard

J. Edward Lumbard, U.S.C.J.

/s/ Thomas J. Meskill

Thomas J. Meskill, U.S.C.J.

34

/s/ George C. Pratt

George C. Pratt, U.S.C.J.

N.B.: This Summary Order will not be

published in the Federal Reporter and

should not be cited or otherwise relied

upon in related cases before this or any

other court.

35

CERTIFICATE OF SERVICE

I hereby certify that three true and

exact copies of the foregoing have been

forwarded by pre-paid registered mail to

Peter S. Cullen, Esquire at Theriault &

Joslin, P.C., 141 Main Street, Post

Office Box 552, Montpelier, Vermont

05601-0552, on this the 22nd day of

August, 1990.

D. PATRICK WINBURN

Attorney for Petitioner

Post Office Box 975

Manchester, Vermont 05254

Telephone: (802) 362-5100