Opposition Brief — Musser v. Pasadena Unified School District

Suman, Court, US.

' BILPTED

1} MAY 27 1993

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No. 92-1672 OFFICE

ie ,

~ ULERK

In The

Supreme Court of the United States

October Term, 1992

*

JOHN MUSSER,

Petitioner,

PASADENA UNIFIED SCHOOL DISTRICT,

CALIFORNIA STATE BOARD OF EDUCATION,

Respondents.

oa

On Petition For Writ Of Certiorari

To The California Court Of Appeal,

Second Appellate District

S

BRIEF OF RESPONDENT

PASADENA UNIFIED SCHOOL DISTRICT

IN OPPOSITION

e

CAROLYN H. Carisurc, Esa.

Law OFFICES OF

CAROLYN H. CARLBURG

540 El Dorado Street

Pasadena, California 91101-2558

(818) 440-9100

Attorneys for Respondent

Pasadena Unified School District

COCKLE LAW BRIEF PRINTING CO, (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

1. Whether the California Court of Appeal, in hold-

ing that the State Board of Education was subject to strict

scrutiny in its determination of the area of election,

applied the correct standard of review.

2. Whether the California State Board of Education

demonstrated a compelling state interest in limiting the

franchise to the electorate of the 71-family transfer area,

and excluding the electorate of the Pasadena Unified

School District.

3. Whether the California Court of Appeal correctly

determined that the limitation of the franchise to the

electorate of the 71-family transfer area violated equal

protection guarantees.

Page

QUESTIONS PRESENTED .......... PA

STATEMENT OF THE CASE........ Diva RKC ae ea l

PB: 5 raat han feacge es ee eee anes 6

I.

ITT.

TABLE OF CONTENTS

THE CALIFORNIA COURT OF APPEAL

CORRECTLY APPLIED THE STRICT SCRU-

TINY TEST TO THE DECISION OF THE

STATE BOARD OF EDUCATION, LIMIT-

ING THE FRANCHISE TO THE ELECTO-

RATE OF THE TRANSFER AREA .........

THE CALIFORNIA STATE BOARD OF EDU-

CATION FAILED TO SHOW A COMPEL-

LING STATE INTEREST IN LIMITING THE

FRANCHISE TO THE ELECTORATE OF

THE TRANSFER AREA, AND EXCLUDING

THE ELECTORATE OF THE PASADENA

UNIFIED SCHOOL DISTRELT .....<:.-..

THE CALIFORNIA COURT OF APPEAL

CORRECTLY DETERMINED THAT THE

LIMITATION OF THE FRANCHISE TO THE

71-FAMILY TRANSFER AREA VIOLATES

EQUAL PROTECTION GUARANTEES.....

THIS CASE RAISES NO FEDERAL ISSUE OF

GENERAL IMPORTANCE THAT WAR-

RANTS REVIEW BY THIS HONORABLE

CRPRFIE 6k s0vnscecaedsuennneee eee

~a

ill

TABLE OF AUTHORITIES

Page

CASES

Bullock v. Carter, 405 U.S. 134, 31 L.Ed.2d 92, 92

ee 6, 14

Choudhry v. Free, 17 Cal.3d 660, 131 Cal.Rptr. 654,

Oe oy) a ee,

Cipriano v. City of Houma, 395 U.S. 701, 23 L.Ed.2d

UE, BOF REPOS D soc cc ccs esse snees 6, 8, 14

Curtis v. Board of Supervisors, 7 Cal.3d 942, 104

Cal.Rptr. 297, 501 P.2d 537 (1972)....... Tee ee eer

Evans v. Corman, 398 U.S. 414, 26 L.Ed.2d 370, 90

Ec Ay 7) Se ep eey 7

Fullerton Joint Union High School District v. State

Board of Education, 32 Cal.3d 779, 187 Cal.Rptr

398, 654 P.2d 168 (1982) ...... rere ee A Pe) ee

Hawn v. County of Ventura, 73 Cal.App.3d 1008,

pen Seer, bat CU977)............. bo 7,9

Kramer v. Union Schoo! District, 395 U.S. 621, 23

Lee.ag gos, ©F S.Ct. 1686 (1969)............. passim

Lockport v. Citizens for Community Action, 430 U.S

£97, 91 L.BG.2d 313, 97 S.Ct. 1047 (1977)...... 13

Pasadena Unified School District v. State Board of

Education, 9 Cal.App.4th 767, 4 Cal.Rptr.2d 532

eG ce GAs ka RAS DAK aac esannes 5, 12, 14

Phoenix v. Kolodziejski, 399 U.S. 204, 26 L.Ed.2d

ee ts BO AEBTO). cece eee 6, 8, 14

Sacramento County Board of Supervisors, et al. v.

Sacramento Local Agency Formation Commission,

et al., 3 Cal.4th 903, 13 Cal.Rptr.2d 245, 838 P.2d

Lo Re ee: ae

Cy)

TABLE OF AUTHORITIES - Continued

Page

San Dieguito Union High School District v. Rosander,

171 Cal.App.3d 968, 217 Cal.Rptr. 737 (1985).....6, 9

Westbrook v. Mihaly, 2 Cal.3d 765, 87 Cal.Rptr. 839,

Bre Wee We SPE cand 6 hao ees cee eeednee sows 8

Wesberry v. Sanders, 376 U.S. 1, 11 L.Ed.2d 481, 84

eee 2, | Se oe rr er sere 14

STATUTES

Code of Civil Procedure § 1085.... 4

Education Code § 35753......... 3

Government Code § 57103..... iz

Government Code § 56000 et seq 12

Water Code § 21100......... y)

No. 92-1672

4

In The

Supreme Court of the United States

October Term, 1992

+

JOHN MUSSER,

Petitioner,

PASADENA UNIFIED SCHOOL DISTRICT,

CALIFORNIA STATE BOARD OF EDUCATION,

Respondents.

re

On Petition For Writ Of Certiorari

To The California Court Of Appeal,

Second Appellate District

®

BRIEF OF RESPONDENT

PASADENA UNIFIED SCHOOL DISTRICT

IN OPPOSITION

€

STATEMENT OF THE CASE

This dispute arises from a petition to the California

State Board of Education to transfer territory from the

Pasadena Unified School District (“PUSD”) to the San

Marino Unified School District (“SMUSD”). Forty-seven

school age children reside in the transfer area, which

1

consists of 71-homes located in a portion of an unincorpo-

rated area of Los Angeles County. The entire unincorpo-

rated territory includes 900 homes, and has been served

by the PUSD for more than 70 years.

The same group of homeowners requesting the

school territory transfer also filed a petition with the

Local Agency Formation Commission (“LAFCO”) for

annexation of the 71-home area to the City of San Marino.

The residents of the remaining 829 homes in the unincor-

porated area initiated separate annexation proceedings

with LAFCO to join the City of San Marino. At the time of

the State Board’s approval of the petition to transfer, in

September, 1990, neither area had been approved for

annexation by the City of San Marino. On February 7,

1991, the City of San Marino rejected both petitions for

annexation.

In September, 1990, when the petition to transfer was

approved, the population of the community served by the

PUSD was approximately 55.5% White, 22.4% Black,

15.3% Hispanic and 6.5% Other. The student population

of the PUSD was 39% Black, 35% Hispanic, 21% White

and 5% Asian and Other. In contrast, the SMUSD was

approximately 57.3% White, 39.4% Asian, 2.8% Hispanic,

and 0.6% Black and Other.

The PUSD, which operated under a court ordered

desegregation program from October, 1970, to October,

1979, and since the latter date has operated under a court

approved voluntary desegregation plan, has seen the

White student population drop from 57.3% in 1970 to 21%

as of September, 1990. Consequently, the transfer was

opposed by the PUSD on the grounds that it would

perpetuate the historic pattern of White flight from the

racially diverse PUSD. The PUSD further argued that if

the transfer were allowed, the entire unincorporated area,

of which the subject transfer area is but a small part,

would also leave the PUSD by means of similar, numer-

ically insignificant transfer petitions.

On November 1, 1989, the Los Angeles County Com-

mittee on School District Organization found that while

the criteria in Education Code § 35753 were met, there was

no compelling reason to approve the transfer. It is note-

worthy that the Committee recommended that if the State

Board of Education approved the transfer, the election

should be held in the PUSD and the SMUSD. On June 8,

1990, the State Board denied the petition on the same

grounds.

On June 29, 1990, Petitioner herein, John Musser,

requested a rehearing of the petition to transfer. Hearings

on the request for a rehearing and on the merits of the

petition were conducted on September 13-14, 1990. The

state Board of Education granted a rehearing, approved

the petition, and limited the election on the transfer to the

voters in the transfer area.

The State Board’s decision to limit the election to

only those voters residing in the transfer area rested on

the conclusion that, “the area under petition would prob-

ably be overwhelmed by a much larger number of unin-

terested or incidentally interested voters” in the PUSD

and the SMUSD, and that, “there is a compelling state

interest in reducing the area of election to the area pro-

posed to be transferred.” The State Board’s decision was

largely influenced by the assumption that the number of

students actually enrolled in the PUSD would be the same

number of students transferred to the SMUSD [3 of 47

students residing in the transfer area], and that the impact of

such a student transfer would be negligible. Thus, the State

Board concluded that the voters in the PUSD and the

SMUSD had no substantial interest in the matter.

Following the State Board’s reversal of its prior decision

denying the petition, the PUSD sought a writ of mandate in

the Los Angeles Superior Court pursuant to Code of Civil

Procedure § 1085. On February 19, 1991, the Honorable

Ronald M. Sohigian denied the petition, dismissing the

PUSD’s claims regarding the severe isolation of racial minor-

ities in the PUSD, and the further claim that the proposed

transfer would perpetuate a historic trend of racial segrega-

tion in the PUSD. Judge Sohigian also rejected the PUSD’s

claim that the decision restricting the election to the transfer

area was impermissibly based on the conclusion that the

votes of those residents would be “overwhelmed” by the

votes of the entire PUSD and SMUSD, and thus violated

equal protection guarantees.

On February 28, 1991, the PUSD filed a Notice of

Appeal of the trial court’s decision denying the petition

for a writ of mandate. The PUSD also sought a writ of

supersedeas to enjoin the election in the transfer area

from going forward pending the appeal. The petition for

the writ of supersedeas was denied, and on March 5,

1991, the residents of the 71-homes in the transfer area

voted overwhelmingly to leave the PUSD and join the

SMUSD.

In an opinion issued on February 6, 1992, the Court

of Appeal for the Second Appellate District reversed the

decision of the trial court denying the petition for writ of

mandate. The Court of Appeal determined that the exclu-

sion of qualified voters within the PUSD was subject to

strict scrutiny, and rejected the contention that the voters

in the PUSD were disinterested in the transfer. Pasadena

Unified School District v. State Board of Education, 9

Cal.App.4th 767, 4 Cal.Rptr.2d 532 (1992). The court fur-

ther held that the interests of the voters in the PUSD in

retaining a declining White student population could not

be dismissed as insubstantial. 9 Cal.App.4th at 778.

On February 21, 1992, Petitioner sought a rehearing

in the California Court of Appeal, Second Appellate Dis-

trict. The request for a rehearing was denied on February

28, 1992.

On March 17, 1992, Petitioner filed a Petition for Review

in the California Supreme Court. The petition was granted

on April 23, 1992, but review was stayed by order of the

Court, pending its decision in the related case of Sacramento

County Board of Supervisors, et al. v. Sacramento Local Agency

Formation Commission, et al., 3 Cai.4th 903, 13 Cal. Rptr.2d 245,

838 P.2d 1198 (1992). The issue in that case was whether an

election on an incorporation of a portion of Sacramento

County territory could be constitutionally limited to the

incorporating electors.

On November 17, 1992, the California Supreme Court

rendered its decision in the Board of Supervisors case,

upholding under the rational basis test the constitu-

tionality of the State statute [Government Code § 57103]

limiting the franchise to the electors in the incorporating

area, and finding no violation of equal protection guaran-

her

tees. However, as wiii be expiaine ereinbelow, the

Court’s decision included two (2) critical distinctions

between that case and the case at bar. Consequently, the

decision in the Board of Supervisors case was not binding

upon the Court in its subsequent deliberations in this

case. On December 17, 1992, the Court dismissed Peti-

tioner’s request for review.

ARGUMENT

I.

THE CALIFORNIA COURT OF APPEAL CORRECTLY

APPLIED THE STRICT SCRUTINY TEST TO THE

DECISION OF THE STATE BOARD OF EDUCATION,

LIMITING THE FRANCHISE TO THE ELECTORATE

OF THE TRANSFER AREA

The threshold issue is whether the Court of Appeal

correctly applied strict scrutiny to the State Board’s deci

sion limiting the franchise to the transfer area, and

excluding the electorate of the existing governmental

entity [PUSD] from which the territory would be trans-

ferred. The decisions of this Honorable Court and the

California Supreme Court strongly indicate that the Court

of Appeal applied the correct standard of judicial review

See, Bullock v. Carter, 405 U.S. 134, 144, 31 L.Ed.2d 92, 92

S.Ct. 849 (1972), Cipriano v. City of Houma, 395 U.S. 701

706, 23 L.Ed.2d 647, 89 S.Ct. 1987 (1969), Phoenix

Kolodziejski, 399 U.S. 204, 26 L.Ed.2d 523, 90 S.Ct. 1990

(1970), Kramer v. Union School District, 395 U.S. 621,

626-632, 23 L.Ed.2d 583, 89 S.Ct. 1886 (1969), and Fullerton

Joint Union High School District v. State Board of Education,

32 Cal.3d 779, 799, 187 Cal.Rptr. 398, 654 P.2d 168 (1982)

See also, San Dieguito Union High School District

Rosander, 171 Cal.App.3d 968, 978, 217 Cal.Rptr. 737

(1985), and Hawn v. County of Ventura, 73 Cal.App.3d

1009, 1018, 141 Cal.Rptr. 111 (1977). In each of the cited

cases, the courts applied the strict scrutiny test to the

exclusion of qualified voters within an existing govern-

mental entity of general jurisdiction, and invalidated the

exclusion on equal protection grounds.

IT.

THE CALIFORNIA STATE BOARD OF EDUCATION

FAILED TO SHOW A COMPELLING STATE INTER-

EST IN LIMITING THE FRANCHISE TO THE ELEC-

TORATE OF THE TRANSFER AREA, AND

EXCLUDING THE ELECTORATE OF THE PASADENA

UNIFIED SCHOOL DISTRICT

In Kramer v. Union School District, supra, 395 U.S. at

626, this Honorable Court determined that,

‘.... [W]e must give the statute a close and

exacting examination. ‘[S]ince the right to exer

cise the franchise in a free and unimpaired man-

ner is preservative of other basic civil and

political rights, any alleged infringement of the

right of citizens to vote must be carefully and

meticulously scrutinized.’ (Citations omitted.)”

The State may avoid the strict scrutiny of equal pro-

tection if the classification or designation of election terri-

tory has only minimal, if any, effect on the fundamental

right to vote. Fullerton Joint Union High School District v.

State Board of Education, supra, 7 Cal.3d at 799; Kramer v.

Union School District, supra, 395 U.S. at 632; Evans v

Cornman, 398 U.S. 419, 422-423, 26 L.Ed.2d 370, 90 S.Ct

1752 (1970).

Petitioner’s contention on this issue is that because of

the small number of school age children (47) in the trans-

fer area (71 homes), and the even smaller number (3) of

students actually attending PUSD schools, there is no

substantial impact on the electoral process. But Real

Party’s analysis misperceives the substantial impact rule.

It is what the exclusion does to the process that is the

issue. If the exclusion lacks constitutional integrity

because of its unequal effect on similarly situated voters,

it has a real and appreciable impact on the electoral

process. Put another way, if interested voters are

excluded and disinterested voters are included, the classi-

fication cannot pass constitutional muster. Kramer v

Union School District, supra, 395 U.S. at 632

Respondent acknowledges that there is authority for

the proposition that the state may, in a proper case,

exclude qualified voters whose interest in the outcome of

the election is di minimus, or peripheral. However, the

overwhelming body of authority has been reluctant to

discount the interests of a particular class of voters on the

grounds that their interest is di minimus. Kramer v. Union

School District, supra, 395 U.S. 621 (exclusion of single

adult without children struck down); Cipriano v. City of

Houma, supra, 395 U.S. 701 (Louisiana property taxpayer

limitation on franchise violates equal protection clause);

Phoenix v. Kolodziejski, 399 U.S. 204 (Arizona property

taxpayer limitation on franchise struck down); Westbrook

v. Mihaly, supra, 2 Cal.3d 765, 837 Cal.Rptr. 839, 471 P.2d

487 (1970) (super majority voting requirement held

invalid, the Court defining its task as deciding whether

“the challenged provision is compatible with the

demands of equal protection as they apply in contempor-

ary society”); Curtis v. Board of Supervisors, supra, 7 Cal.3d

942, 104 Cal.Rptr. 297, 501 P.2d 537 (1972) (landowner

veto on incorporation protest held invalid on equal pro-

tection grounds); Choudhry v. Free, supra, 17 Cal.3d 660,

131 Cal.Rptr. 654, 552 P.2d 438 (1976) (Water Code § 21100

requiring director of irrigation district to be freeholder

invalid on equal protection grounds); Fullerton Joint

Union High School District, supra, 32 Cal.3d 779 (exclusion

of voters in Fullerton High School District from voting on

secession of Yorba Linda held invalid on equal protection

grounds); Hawn v. County of Ventura, supra, 73 Cal.App.3d

1009 (exclusion of non-city voters in the county from

voting on location of airport held invalid on equal protec-

tion grounds); San Dieguito Union High School District v

Rosander, supra, 171 Cal.App.3d 968 (exclusion of electors

in high school district from vote on withdrawal of ele-

mentary high school district invalid under equal protec-

tion clause).

In the instant case, there are 47 school age children

residing in the 71-home transfer area. Axiomatically, not

every household in the transfer area has a child who will

be effected by the transfer. Indeed, almost one third (1/3)

of the homes transferred would apparently be uneffected

As to those families, there can be no “primary” interest

Nor can there be any presumption made about the signif-

icance of their interests as compared to the interests of

the qualified electors excluded from voting by the State

Board’s decision. Consequently, the subject exclusion of

eligible electors in the PUSD, and in the remaining unin-

corporated area, as well as the entire SMUSD, fails to

10

demonstrate “sufficient precision” to survive the “exact-

ing scrutiny” which the law requires. Kramer v. Union

School District, supra, 395 U.S. at 632.

Il.

THE CALIFORNIA COURT OF APPEAL CORRECTLY

DETERMINED THAT THE LIMITATION OF THE

FRANCHISE TO THE 71-FAMILY TRANSFER AREA

VIOLATES EQUAL PROTECTION GUARANTEES

In finding that the designation of the election area

violates equal protection guarantees, the Court of Appeal

reasoned as follows:

With commendable candor, Pasadena Uni-

fied School District appropriately acknowledges

that the instant secession, per se, would repre

sent no significant financial impacts and it is

unlikely the loss of the small number of stu-

dents directly involved would have a substan-

tial effect upon either curriculum or facilities

Nevertheless, the racial impact upon the whole

would be significant; immediately upon morale,

and in the future when this reorganization

would serve as a model against the acute social

problems of its predominantly minority district

Today segregation is more apt to occur in nib-

bles than gulps.

It is true that at least some of the Green-

wood Addition residents would be more

Sharply affected at the outset, since those with

children would be able to enroll them in the

public schools in the San Marino School District.

However, the other residents of the Pasadena

Unified School District concerned with their

11

public schools might feel the loss of that terri-

tory and the undermining of historic efforts to

integrate the district more strongly than do the

residents of the Greenwood Addition who have

no school-aged children or whose children

would continue to attend private schools.

We do not doubt that the interests of the

residents of the Greenwood Addition and those

of the Pasadena and San Marino Unified School

Districts coincide to the extent that they all

desire the greatest possible educational oppor-

tunities for their children. That they may take

opposing positions regarding the transfer does

not mean that any group of voters is merely

selfish or disinterested, but only that different

interests are at stake. The fact that the Pasadena

Unified School District’s includes a desire to

retain a declining White student base is not a

reason to disenfranchise its citizenry. Conse-

quently, we find the holding of the court in

Fullerton Joint Union High School District v. State

Board of Education, supra, 32 Cal.3d at page 806,

equally apposite here:

“In sum, we do not view the classification at

issue here as one which separates interested and

uninterested voters, but one which divides two

groups, each with a substantial although differ-

ent interest in the election. In such a case the

state has no compelling interest to grant the

franchise to one group and deny it to the other.

We therefore conclude that the decision of the

State Board, to the extent it excluded [Pasadena

Unified School District] residents from voting at

the election to approve the proposed secession

12

~

of [the Greenwood Addition] from the [Pas-

adena Unified School District], denied such resi-

dents the equal protection of the laws.” 9

Cal.App.4th at 778.

The Court’s reasoning finds substantial support in,

and is consistent with, the Board of Supervisors decision.

There, the California Supreme Court, in an opinion writ-

ten by Justice Mosk, upheld the constitutionality of

§ 57103 of the California Government Code against a chal-

lenge on equal protection grounds. The Court held that

the proper standard of judicial review was the rational

basis test. There were two (2) bases for the Court’s deter-

mination on the issue. First, the Court gave great weight

to the fact that the statute limiting the area of election to

the incorporating electors was grounded in “the state’s

plenary power to oversee and regulate the formation of

its political subdivisions, and the same power entitles the

State to identify as differing in degree the interests of

those who may vote under § 57103 and those who may

not.” 3 Cal.4th at 914. In the case at bar, there is no statute

that requires limitation of the area of election.

In this same regard, the Court recognized in The Knox

Cortese Act of the California Government Code [56000 et seq.] a

“labyrinthine” process containing elaborate safe-guards

designed to protect the political and economic interests of

affected local governments, residents, and landowners. Board

of Supervisors, supra, 3 Cal.4th at 912. Here, the statute at

issue gives the State Board, an appointed body, discretion to

decide the area of election.

Furthermore, the Court expressly noted that there

were no racial impacts before it. In this regard, the Court

wrote that:

13

Moreover, Fullerton’s plurality opinion

evinces a great concern that failure to apply

strict scrutiny to the election at issue could

result in racial segregation. It acquiesces in but

describes as “questionable” an administrative

decision that the secession would not promote

segregation. (32 Cal.3d at p. 793) Hence, not-

withstanding the agency finding, the plurality

found an equal protection violation in part

because “the racial and financial impact of that

-Plan are matters of great concern to the resi-

dents who will remain in the Fullerton [high

school district].” 3 Cal.4th at 918.

The Board of Supervisors decision [3 Cal.4th at 916] of

the California Supreme Court follows the decision of this

Honorable Court in Lockport v. Citizens for Community

Action, 430 U.S. 259, 51 L.Ed.2d 313, 97 S.Ct. 1047 (1977).

There, the rational basis test was applied to a New York

State statute that forbade the implementation of a new

Niagra County charter unless approved by concurrent

majorities of both the city and non-city residents of the

county. Based on the “realities of the distribution of gov-

ernmental power in New York, and “the wide discretion

the states have in forming and allocating governmental

tasks to local subdivisions”, this Honorable Court held

that the classification did not violate equal protection

guarantees. °

In effect, the California Supreme Court acknowl-

edged that cases involving the exclusion of qualified

voters and racial impacts are properly subject to greater

scrutiny. In so doing, the Court approved the reasoning of

the Court of Appeal in the instant case that, “[wJhile we

do not agree with the view of a transfer which might

14

provide a blueprint for the flight of other predominantly

White neighborhoods, neither are we able to say the

decision was necessarily arbitrary, capricious, or without

evidentiary support.” 9 Cal.App.4th at 795

IV.

THIS CASE RAISES NO FEDERAL ISSUE OF GEN-

ERAL IMPORTANCE THAT WARRANTS REVIEW BY

THIS HONORABLE COURT

The issues of law raised by the instant petition for

certiorari are well settled. The level of review, where the

right to vote is at stake, and an existing governmental

entity is “carved up”, is strict scrutiny. Wesberr

Sanders, supra, 376 U.S. 1, 17 (1964); Kramer v. Union School

District, supra, 395 U.S. 621, 632; Bullock v. Carter, supra,

405 U.S. 134, 144; Cipriano v. City of Houma, supra, 395 U.S

701, 706; and Phoenix v. Kolodziejski, supra, 399 U.S. 204

The decision of the Court of Appeal follows settled

law in terms of the level of review and its analysis of the

issues. The Court’s determination that the State Board of

Education had no compelling interest in “granting the

franchise to one group and denying it to the other” raises

no issue worthy of review by this Honorable Court

V.

CONCLUSION

For each of the foregoing reasons, the PUSD respect

fully opposes the instant petition for certiorari, and asks

that it be denied

Respectfully submitted,

CAROLYN H. Carispura, Esa

LAw OFFICES Of

CAROLYN H. CARLBURG

540 El Dorado Street

Pasadena, California 91101-2558

(818) 440-9100

Attorneys for Respondent

Pasadena Unified School Distri

No. 92-1672

In The

Supreme Court of the United States

October Term, 1992

¢

JOHN MUSSER,

Petitioner,

PASADENA UNIFIED SCHOOL DISTRICT,

CALIFORNIA STATE BOARD OF EDUCATION,

Respondents.

¢

On Petition For Writ Of Certiorari

To The California Court Of Appeal,

Second Appellate District

¢

REPLY BRIEF OF PETITIONER, JOHN MUSSER, TO

BRIEF OF RESPONDENT PASADENA UNIFIED

SCHOOL DISTRICT IN OPPOSITION

¢

STANWOOD SMITH — LAWYERS

CLIFTON S. SMITH, JR.

611 West Sixth Street

20th Floor

Los Angeles, California 90017

(213) 623-1059

Counsel for Petitioner

John Musser

COCKLE LAW BRIEF PRINTING CO, oo 225-6964

OR CALL COLLECT (402) 342-283

EST AVAILABLE COPY

Ae ELI LANE TN TNS a UR

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TABLE OF CONTENTS

SUMMARY OF ARGUMENT.......................

I.

IT.

ITT.

IV.

THE “RACIAL IMPACT” OF THE PRO-

POSED TRANSFER, RELIED ON BY THE

COURT OF APPEAL TO STRIKE DOWN

AN INTERNAL BOUNDARY DECISION OF

THE STATE OF CALIFORNIA, IS AT MOST

A OD.1SZ7% “EMPACT.” 2... ccc cccecccse

PUSD IGNORES THE NEED TO ESTABLISH

A PERSON’S “INTEREST” IN AN ELEC-

TION BEFORE THAT PERSON MUST VOTE

lalla Ma dR i ed A nea ee ee ee ee ee

THIS COURT HAS AN INTEREST IN

INSURING THAT ALLEGATIONS OF

“RACIAL IMPACT” WHEN USED TO SUP-

PORT JUDICIAL INTERVENTION INTO

LEGISLATIVE MATTERS ARE BASED ON

a PES Perr ere Soe eee

THE CALIFORNIA STATE BOARD OF EDU-

CATION ACTED LAWFULLY AND CON-

STITUTIONALLY IN ESTABLISHING THE

ELECTION TERRITORY; NOTHING CITED

BY THE COURT OF APPEAL OR RESPON-

DENT JUSTIFIED JUDICIAL INTRUSION

EGE GRUE CUM 6s ccc cnccacccucece,

RAW AAMIIUS 66566 65 nau dade ao es 650deunéercusncecs

ii

TABLE OF AUTHORITIES

Page

CAsEs

Swann v. Charlotte-Mecklenburg Board of Education,

402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971)..... 2

Freeman v. Pitts, __ U.S. ___, 112 S.Ct. 1430, 118

Be RB ePeeeerrr rr Tr ST Pre er 6

UnrtEeD STATES CONSTITUTION

Fourteenth Amendment to United States Constitu-

SUMMARY OF ARGUMENT

Respondent, the Pasadena Unified School District

(“PUSD”) opposes the right of 126 voters in 71 homes

containing 47 school-age children (the “Transfer Terri-

tory”) to transfer their homes to the adjacent San Marino

Unified Schoo! District (“SMUSD”), as ordered by the

California State Board of Education, unless 109,000 voters

of the entire 21,600 student PUSD vote in a one-time

ratification election. That election is the final step in an

arduous, multi-level hearing process during which PUSD

and the Petitioner presented their cases at seven public

hearings. The process was concluded by the granting of

Petitioner’s petition by the California State Board of Edu-

cation, which is vested by California law with the author-

ity to determine such matters (subject to the final

ratification vote of the residents affected).!

The Superior Court below found that the non-Trans-

fer Territory voters had no interests at stake in this rat-

ification election and upheld the State Board of

Education’s decision to limit the election territory to the

Transfer Territory voters. The California Court of Appeal

reversed holding that the transfer itself had a “racial

impact” on the PUSD and ordered the election expanded

to include the 109,000 voters of the-entire PUSD, but

otherwise upheld the transfer (as though a vote can ren-

der a supposedly adverse “racial impact” constitutionally

acceptable).

1 The eleven members of the California Board of Education

are appointed by the Governor and must be confirmed by the

California State Senate.

The Opposition Brief of Respondent, by omission,

targets the precise reason this case should be heard by

this Court: Whether any facts must be shown by a litigant

to exist before a court will overturn a quasi-legislative

decision on constitutional grounds? In this case, no facts

exist which can support the conclusion of the California

Court of Appeal that the interest of racial balance is at

risk, implicated, compromised, or involved in any way.

The claim of race was made by the PUSD. No facts were

ever shown to sustain that claim. The only facts showed

that the presence or absence of this tiny territory has no

measurable impact on the PUSD, racial or otherwise.? Thus,

no demonstrable link exists between the interests of the

non-Transfer Territory voters and the election in question.

The Court of Appeal is wrong and this Court should

correct the error.

I.

THE “RACIAL IMPACT” OF THE PROPOSED TRANS-

FER, RELIED ON BY THE COURT OF APPEAL TO

STRIKE DOWN AN INTERNAL BOUNDARY DECI-

SION OF THE STATE OF CALIFORNIA, IS AT MOST A

00.1527% “IMPACT.”

This Court, in Swann v. Charlotte-Mecklenburg Board of

Education, 402 U.S. 1, at 16, 91 S.Ct. 1267 at 1276 (1971)

held:

. . . [JJudicial powers may be exercised only on

the basis of a constitutional violation. .. .

2 PUSD conceded the absence of any impact on its financial

condition, attendance, curriculum or facilities resulting from the

transfer.

In this case, there was no constitutional violation by

the California State Board of Education on which to pred-

icate the exercise of judicial power.

The issue can rightly be called the “00.1527% ques-

tion.” Despite the constitutional rhetoric of the PUSD and

the Court below, the facts here are compelling but simple:

PUSD has 21,600 students. 21% are white (4,536 white

students). The Transfer Territory has 47 school-age chil-

dren, 70% of whom are white (33 white school-age chil-

dren). Of the total PUSD population, the Transfer

Territory white children would represent only 00.1527%

of the student population if they attended PUSD schools.

Fifteen one-hundredths of a percent is a constitutional

case? That is why this case should be reviewed by this

Court. The California Court of Appeal has invoked the

Fourteenth Amendment to the United States Constitution

to overturn a legitimate action of the State of California —

regulating the boundaries of its own political subdivi-

sions — on the basis of “racial impact” where that impact

is fifteen one-hundredths of a percent. That sort of judi-

cial activism should not be permitted.

3 Only two white children attended PUSD schools at the

inception of this process in 1988; no children of any race now

attend PUSD schools from the Transfer Territory.

Il.

PUSD IGNORES THE NEED TO ESTABLISH A PER-

SON’S “INTEREST” IN AN ELECTION BEFORE THAT

PERSON MUST VOTE.

PUSD necessarily argues that any election held

within the boundary of a particular political subdivision

of a state must include all of the electors of that subdivi-

sion, unless limiting the vote to a smaller territory sur-

vives “strict scrutiny.” Petitioner and the Superior Court

judge below submit that a preliminary step to such a

conclusion is a finding that all the electors of the subdivision

have a substantial interest in the outcome of that election in

order to vote. Respondent would have this court eliminate

the need to identify that substantial interest because the

voters the PUSD wants included simply do not have such

an interest.

PUSD’s Opposition Brief, at page 8, clearly demon-

strates this crucial difference between its position and

Petitioner’s position:

Petitioner’s contention on this issue is that

because of the small number of school age chil-

dren (47) in the transfer area (71 homes), and the

even smaller number (3) of students actually

attending PUSD schools, there is no substantial

impact on the electoral process. . . . It is what the

exclusion does to the process [emphasis in origi-

nal] that is the issue. . . . If the exclusion lacks

constitutional integrity because of its unequal

effect on similarly situated voters, it has a real

and appreciable impact on the electoral pro-

ae

This case is not about the “process.” It is about who

has an interest in the first place. Petitioner submits that

the “process” is not implicated if the non-voters’ interests

aren't affected by the outcome of the election. This is not

the case of “similarly situated voters.” The Transfer Terri-

tory voters are interested; the non-Transfer Territory

voters are disinterested. Neither the PUSD nor the Court

of Appeal can find facts which show that the non-voters

have an interest in this election.

The “interests” of the Transfer Territory voters

include: the district in which they reside (non-Transfer

Territory voters remain where they are — no change); who

will be their elected school district officials (non-Transfer

Territory voters will retain the same representatives — no

change); whether to be subject to the SMUSD school

district parcel tax (non-Transfer Territory voters will not

be subject to such a tax — no change); whether to approve

future funding for the schools in their district (non-

Transfer Territory voters will vote when and if asked to

approve financing for their district - no change).

There is not one single fact affecting non-Transfer

Territory voters to which Respondent can point which is

changed, amended, altered, affected, touched, implicated

or modified in any way by this proposed election. PUSD

and the California Court of Appeal have simply begged

the question that the non-Transfer Territory voters have a

“substantial interest.” (Unless, of course, one subscribes

to the theory that a 00.1527% impact on school attendance

is a “substantial impact.)

The cases cited by the-PUSD in its Opposition Brief

support Petitioner’s position. In each of those cases, a

demonstrable link existed between each voter’s interest

and the outcome of those elections. See, cases cited and

discussed by Respondent at pages 8 and 9 of its Opposi-

tion Brief. There is no such link in this case.

Instead, PUSD attempts to hide its lack of facts

behind the desegregation history of the PUSD. That his-

tory is not implicated by this proposed transfer because

the racial makeup of the PUSD is not affected. PUSD also

makes much of the racial makeup of the district, as told

in racial percentages. If PUSD wants to cite percentages,

let’s cite percentages:

*PUSD Before PUSD After

Percentages Transfer Transfer

Black 39% 39%

White 21% 21%

Hispanic 35% 35%

Asian/Other 5% 5%

Attendance 21,600 21,600

So just exactly where is the “racial impact” which

justifies judicial intervention on constitutional grounds?

4 This Court recently required a much higher threshhold

showing of “racial impact” before a Court would intervene.

(See, Freeman v. Pitts, __. U.S. __ , 112 S.Ct. 1430 at 1438 (1992).

Percentages discussed ranged from 27% to 90%; non-black

minority population of “[not] even one percent” noted.)

This transfer makes no discernible impact one way or

another on PUSD’s racial and ethnic makeup. Yet it is

precisely that supposed “impact” which justified the

Court of Appeal’s intrusion on U.S. Constitutional

grounds into California’s quasi-legislative process.

The PUSD also tries to characterize these 71-homes as

a “white enclave,” obviously because such a characteriza-

tion conjures up an image of isolated privilege amidst a

sea of “poor people of color.” That is simply not the case.

The truth is that these three blocks are racially indis-

tinguishable from mile after mile of adjacent PUSD and

San Marino Unified School District neighborhoods,

stretching in every direction. These 71-homes are simply

a small handful of people in the middle of an 8,863,164

population county whose homes happen to be closer to

the schools of the SMUSD than the PUSD.

Petitioner and his fellow residents simply would like

the opportunity to let their children walk to school.

ITI.

THIS COURT HAS AN INTEREST IN INSURING

THAT ALLEGATIONS OF “RACIAL IMPACT” WHEN

USED TO SUPPORT JUDICIAL INTERVENTION INTO

LEGISLATIVE MATTERS ARE BASED ON FACT.

Never in the course of this case has the PUSD been

able to establish any rational connection between the

racial makeup of its student population and the election

at issue here.

Petitioner could locate no cases involving schools,

desegregation, voting rights, antitrust, copyright, or any-

thing else (except scientific measurement of toxics in

environmental cases and DUI cases) where fifteen one-

hundredths of one percent justified judicial intervention

into anything. Such a meaningless threshhold for judicial

intervention into quasi-legislative functions of a state

agency acting pursuant to its authorizing statutes should

be unacceptable to this Court.

IV.

THE CALIFORNIA STATE BOARD OF EDUCATION

ACTED LAWFULLY AND CONSTITUTIONALLY IN

ESTABLISHING THE ELECTION TERRITORY; NOTH-

ING CITED BY THE COURT OF APPEAL OR RESPON-

DENT JUSTIFIED JUDICIAL INTRUSION INTO THIS

PROCESS.

The state of California did not delegate to its resi-

dents the power to veto or ratify every minor boundary

adjustment. California did, however, give everyone,

whether interested or not, the right to appear and be

heard in the process now before the Court. PUSD was

heard seven times and lost. The power to fix boundaries

of its political subdivisions rightfully belongs to the Cali-

fornia legislature and the agencies to which the legisla-

ture has delegated that authority. The California State

Board of Education properly applied the law. The Califor-

nia Court of Appeal and the PUSD have failed to show

any facts which justify court intervention in this legisla-

tive/quasi-legislative process.

This Court should reestablish the “wall of separa-

tion” between court and legislature when it comes to

adjusting political subdivision boundaries in California,

or at least demand that inferior courts limit their inter-

vention to cases in which allegations of constitutional

failings of agencies are supported by some facts. A maxi-

mum theoretical racial impact of 00.1527% is not a “fact”

on which the exercise of judicial power should be based.

Because the area of race is so sensitive, it is increasingly

incumbent upon this Court to demand that all courts

limit the exercise of their powers to governmental acts

which really do have an impact. The mere accusation of

“race” has been in this case every bit as damning to the

Petitioner as if it were true, when it is not.

CONCLUSION

This Court should rule that before a litigant can

succeed on the basis of an allegation of “racial impact”

(which is the entire foundation of PUSD’s and the Court

of Appeal’s position), that litigant must first establish

facts which demonstrate that a racial issue exists. There

are no such facts here.

Unless a 00.1527% theoretical impact on the racial

makeup of the PUSD student body is “substantial” for

constitutional purposes, the non-Transfer Territory voters

of the PUSD have no interest in this election. Their inclu-

sion violates John Musser’s right to equal protection. This

Court should grant a Writ of Certiorari to make clear that

judicial intrusion, on racial grounds, into the plenary

authority of a state and its agencies to fix the boundaries

10

of its internal subdivisions constitutionally requires more

than a 00.1527% theoretical impact.

May 28, 1993

Respectfully submitted,

STANWOOD SMITH — LAWYERS

CLIFTON STANWOOD SMITH, JR.

611 West Sixth Street, 20th Floor

Los Angeles, California 90017

(213) 623-1059

Attorneys for Petitioner

John Musser