Opposition Brief — Winburn v. Bennington-Rutland Supervisory Union

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Supreme Court, U.S, } -

- FILED

No. 90 - 445 SEP 27

JOSEPH F. SPANIOL, JR.

CLUBRK

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1990

D. PATRICK WINBURN, Petitioner,

v.

BENNINGTON-RUTLAND SUPERVISORY UNION,

Respondent

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

RESPONDENTS BRIEF IN OPPOSITION

PETER S. CULLEN

Theriault & Joslin, P.C.

141 Main Street

Montpelier, VT 05601-0552

Counsel for Respondent

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QUESTION PRESENTED FOR REVIEW

Does the United States Constitution require that

the voting apportionments of a school supervisory union

be proportional to the populations of the towns it serves

when the voting members are elected from local school

boards after being elected by their respective towns and

there is no statutorily mandated direct election between

the two boards?

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW

TABLE OF AUTHORITIES ............... i

STATUTES INVOLVED ................

ES

1. There is no conflict between the

Second Circuit decision in this

case and the decision in Mons v.

Board of Estimate, 489 U.S.__

EEE SE Se eee

II. There is no conflict between the

decisions in Morris v. Board of

Estimate, 489 U.S. (1989) and

in Rosenthal v. Board of Education,

385 F.Supp. 223 (E.D.N.Y. 1974),

i inion, 420 U.S.

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Cases

Morris v. Board of Estimate, 489 U.S. __ (1989) 4, 7, 8

Reynolds v. Sims, 377 U.S. 533 (1964) ......... 8

Rosenthal v. Board of Education, 385 F.Supp. 223

(E.D.N.Y. 1974), affirmed without opinion, 420 U.S.

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Statutes

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Other

Section 61 of the New York City Charter ...... 4

Section 1901 of New York Education Law ...... 8

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STATUTES INVOLVED

16 Vt. Stat. Ann. $423 Directors, number, election; term

(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.

(b) The electorate may vote at an annual or

special town school district meeting te elect not more

than two additional directors for terms of either one or

two years. When the terms are to be for two years, the

warning for the meeting shall so specify. If two

additional directors are elected they shall have terms of

the same length, but if the terms are to be for two

years, when the additional directors are first elected, one

shall be elected for one year and the other director for

two years. Terms of these additional directors shall end

on annual meeting days. If the additional directors are

elected at a special meeting the term of those elected

for one year shall expire on the next annual meeting

day and those elected for two years shall expire on the

second annual meeting day following their election.

(c) The electorate shall continue to elect

additional school directors until it votes at a meeting

duly warned for the purpose to rescind its previous

action under subsection (b) of this section; but the

additional directors then in office shall continue in office

until the end of the term to which they were elected.

(d) A town school district which holds its

annual meeting on a day other than annual town

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meeting day may vote to elect its officers and its

representative directors to union school districts on town

meeting day. Their terms of office shall commence on

the annual school district meeting day unless the district

votes to have the terms of office commence on town

meeting day.

IN THE

SUPREME COURT OF THE UNITED STATES

Docket No. 90-445

D. PATRICK WINBURN, Petitioner,

Vv.

BENNINGTON-RUTLAND

SUPERVISORY UNION, Respondent

RESPONDENTS BRIEF IN OPPOSITION

The Respondent, Bennington-Rutland Supervisory

Union, respectfully requests that this court deny the

petition for writ of certiorari, seeking review of the

Second Circuit's opinion in this case. The opinion is

unreported.

STATEMENT OF THE CASE

The Bennington-Rutland Supervisory Union

(BRSU) has been created, defined and governed by 16

Vt. Stat. Ann. §$§261-267 (1989). The BRSU board

consists of 21 voting members each of whom has been

elected to a town school board. Joint Appendix to the

a7

Second Circuit Briefs at 10. A town school board which

employs a teacher gets three voting representatives on

the BRSU board; a town school board which does not

employ any teachers gets one voting representative. In

essence, those towns which operate schools themselves

(as opposed to sending children to other towns on a

tuition basis) have three votes; those towns that do not

operate a school have one vote.

There is no consideration of town population in

the apportionment of votes. 16 Vt. Stat. Ann. §266

(1989).

In cach town the members of the local board

elect among themselves who is to be the delegate (or

are to be the delegates) to the BRSU board. 16 Vt.

Stat. Ann. §266 (1989).

The other local school board members are free

to attend the BRSU board meetings and participate in

the discussions, however, they cannot vote. The public

can also attend and participate in the discussions but,

likewise, cannot vote.

Winburn is a resident of the town of Manchester;

that local board has five members but only three voting

members on the BRSU board. At one time Winburn

was a member of the Manchester School Board but

resigned prior to completing his term.

Although Mr. Winburn, as a taxpayer in the town

of Manchester, feels he should have more controi over

the way his tax dollars are spent, he conceded in oral

argument before the Second Circuit Court of Appeals

that a child in the Manchester schools receives neither

less aid nor fewer services when compared with any

other child attending a school within the BRSU.

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SUMMARY OF THE ARGUMENT

The decision of the Second Circuit does not

conflict with this Court's decision in Momis v. Board of

Estimate, 489 U.S. __ (1989), because the delegates to

the BRSU board are not directly elected. Absent a

direct election there is no violation of the 14th

Amendment of the United States Constitution.

ARGUMENT

I. There is no conflict between the Second

Circuit decision in this case and the

decision in Morris v. Board of Estimate, 489

US. (1989).

In Momis this court found that there was a direct

election; the eight officials of the New York City Board

of Estimate automatically became members of the Board

of Estimate upon election to their initial posts. Section

61 of the New York City Charter mandated that direct

election. Unlike the New York City Charter, Vermont

Statutes do not mandate a direct election. This is the

distinction between this case and Mons.

In this case, there is no such automatic or direct

election. In Vermont, a school board is required to

have at least three members; however, it can choose to

have more. Although petitioner is correct that 16 Vt.

Stat. Ann. §423(a) requires that a town school district

have a school board made up of a minimum of three

directors, he neglects to mention that 16 Vt. Stat. Ann.

$423(b) allows a district to elect two additional directors

at any time during the year so long as the election is

duly warned. Once a town adds the additional directors

to the board those two positions can only be rescinded

by an election at town meeting which is held on the

first Tuesday in March. Even if the positions are

rescinded the additional directors are to serve out the

remainder of their respective terms. 16 Vt. Stat. Ann.

$423(c) (1989).

Each town is given the option and can choose to

have additional directors or rescind the choice in an

election on town meeting day. In eight of the nine

school districts which make up the BRSU, the local

school board has more members than they have

delegates to the BRSU. App. at 28.

The townspeople of Manchester chose to have

five members on their local school board; they are

entitled to have three members and votes on the BRSU

board. There has not been, and it is impossible for

there to be, a direct election of the Manchester school

board delegates to the BRSU.

Rupert, the one district that has the same

number of local board members as it has delegates to

the BRSU voluntarily chose to have it that way. There

are any number of reasons why Rupert would have

chosen to have only three members on its school board.

At the very least, it may have been pragmatic; their

school system only has three teachers. Rupert, like the

other five towns which operate a school and have three

votes on the BRSU, could have chosen to have five

members on its local board. Instead, the townspeople

chose not to do so.

If the town of Rupert voluntarily chose to have

the same number of school directors as delegates to the

BRSU then it is free to do so. The decision to have

the same number is not mandated by any Vermont

Statute. That free choice to have the same number of

local board members as delegates to the BRSU does

not offend the 14th Amendment of the United States

Constitution.

Regardless of the choice made by the

townspeople of Rupert, the Vermont statutes do not

mandate a direct election of local ; school board

members to the BRSU board. Therefore there is no

conflict between the Second Circuit decision in this case

and the decision in Morris v. Board of Estimate, 489

US. _ (1989)

:

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Il. There is no conflict between the decisions

in Morris v. Board of Estimate, 489 U.S.

(1989) and in Rosenthal v. Board of

Education, 385 F.Supp. 223 (E.D.N.Y.

1974), affirmed without opinion, 420 U.S.

985 (1975).

In Rosenthal v. Board of Education, 385 F.Supp.

223 (E.D.N.Y. 1974), affirmed without opinion, 420 U.S.

985 (1975), the court ruled on an appointment scheme

similar to the one in this case and was not faced with

a direct election as was in Morris. Section 1901 of New

York Education Law did not create a situation where

the local school board members become members of the

central high school district as a matter of law upon their

various elections so that the constitutional safeguard

enunciated in Reynolds v. Sims, 377 U.S. 533 (1964), was

triggered. Without a direct election mandated by statute

there is no conflict between the decisions in Morris v.

Board of Estimate, 489 U.S.__ (1989) and Rosenthal v.

Board of Education, 385 F.Supp. 223 (E.D.N.Y. 1974),

affirmed without opinion, 420 U.S. 985 (1975).

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SO

CONCLUSION

There is no conflict between the cases decided —

in this court and the Second Circuit Court of Appeals

decision in this case. Therefore, the respondent

respectfully requests this court deny the petition for writ

of certiorari.

lier, VT 05601-0552

Telephone: (802) 223-2381

Attorney for Respondent

Dated: September 18, 1990