Opposition Brief — English v. Board of Education of the Town of Boonton

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- ORR.

IN THE

Supreme Court of the United States

PATRICK C. ENGLISH and THE BOARD OF EDUCATION

OF THE BOROUGH OF LINCOLN PARK,

Petitioners,

Vv.

THE BOARD OF EDUCATION OF THE TOWN OF BOONTON

and WILLIAM L. LIBRERA, COMMISSIONER OF EDUCATION,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

BRIEF IN OPPOSITION FOR RESPONDENT

THE BOARD OF EDUCATION OF

THE TOWN OF BOONTON

HERBERT J. STERN

Counsel of Record

JEFFREY SPEISER

Joet M. SILVERSTEIN

STERN GREENBERG & KILCULLEN

75 Livingston Avenue

Roseland, NJ 07068

(973) 535-1900

Attorneys for Respondent

The Board of Education of

The Town of Boonton

177692 ce

COUNSEL PRESS

(800) 274-3321 + (800) 359-6859

TABLE OF CONTENTS

ica a yao e bee woubee es

Table of Cited Authorities .....................

Reasons for Denying the Petition ...............

I. The Third Circuit’s Decision Was A Straight-

forward Application Of The Principles Stated

ly Eee eT eee ee ee

II. Holt Resolved Against Petitioners Each Of

The Grounds On Which They Seek Certiorari

eee eee eee eee eee eee ee eee eee eee ee eee ee

Holt Held That Cases Such as Hadley,

Which Concern the Voting Rights of

Residents of the Voting District In

Question, Are Inapposite to Cases Like

This One, Which Concerns the Voting

Rights Of Non-Residents ...........

Holt Belies Petitioners’ Attempt to

Equate this Case to Little Thunder and

| Sines nt tama ay pare Fe eee eee

III. Misstatements Of Law And Fact In The

TELE SRE Ies 3 Spee rege aey id see

Conclusion

i oe oe oe ee ee ee ee ee ee ee ee ee

16

19

il

TABLE OF CITED AUTHORITIES

Page

Federal Cases

Baker v. Carr, 369 U.S. 186 (1962) ............. 6

Evans v. Cornman, 398 U.S. 419 (1970) ...... 10, 11, 12

Gray v. Sanders, 372 U.S. 368 (1963) ........... 7

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

ten eeee © eee kee eee 1, 4, 5, 6, 8,9

Haney v. County Board of Education of Sevier

County, 410 F2d. 920 (8th Cir. 1969) ......... 7

Hawkins v. Johanns, 88 F. Supp. 2d 1027 (D. Neb.

WG)... sti eee 9

Holt v. City of Tuscoloosa, 439 U.S. 60 (1978) ... passim

Hoots v. Commonwealth of Pennsylvania, 672 F.2d

REZ4 C36 Coe BIGGER i vos vee cee eee 10

Little Thunder v. South Dakota, 518 F.2d 1253

(Ste Cr. 1979) <i sss ikive cae 10-11, 12

Milliken v. Bradley, 418 U.S. 717 (1974) ........ 7,8

Mixon v. State of Ohio, 193 F.3d 389 (6th Cir. 1999)

lil

Cited Authorities

Page

Sailors v. Board of Education, 387 U.S. 105 (1967)

Township of Marlboro v. Board of Education of

Freehold Regional High School, 9 F. Supp. 2d

500 (D.N.J. 1998)

Township of Marlboro v. Board of Education of

Freehold Regional High School, 992 F. Supp.

756 (D.N.J. 1998)

State Cases

Borough of Sea Bright v. State Department of

Education, 242 N.J. Super. 225 (App. Div.), cert.

denied, 127 N.J. 320 (1990)

Jenkins v. Township of Morris School Dist., 58 N.J.

483 (1971)

State Statutes

N.J.S.A. § 18A:13-5

N.J.S.A. § 18A:13-23

N.J.S.A. § 18A:38-8.1

N.J.S.A. § 18A:38-8.2

iv

Cited Authorities

Page

DU.F.M. G PEAS G.AUMMED 66 cdiccneeseecenss 9

ee ee Pe eee Te eT e 10

eS FOE 56o0ea kee fieeeRi denen 14, 18

State Regulations

Ps SE nea success beter rerereeees 18

ee eee ere re 18

eS oe eR Pe ree ere 5

Rule

ER I sich cc aeen 16

|

REASONS FOR DENYING THE PETITION

Petitioners pretend that certiorari is necessary to

“reconcile” the holdings of Hadley v. Junior College District,

397 U.S. 50 (1970), and Holt v. City of Tuscoloosa, 439 U.S.

60 (1978), and “clarify” whether the “one person, one vote”

doctrine is violated when residents of one town that pays

another to educate its high school students are denied the

right to vote for the board of education of that other town.

In truth, Hadley is inapposite, and Holt so clearly answers

Petitioners’ question in the negative that the Third Circuit

unanimously directed the entry of summary judgment against

Petitioners. In doing so, the Circuit reversed the patently

erroneous judgment of the District Court, whose opinions

nowhere so much as mention either Holt or the settled, and

in this case determinative, principle that the one person, one

vote doctrine does not apply across two separate voting

jurisdictions. Nor is there any conflict among the Circuits:

The Third Circuit’s decision accords with that of the only

other Circuit that has addressed the issues here presented.

See Mixon v. State of Ohio, 193 F.3d 389, 404-05 (6th Cir.

1999). Under these circumstances, there is no reason to grant

certiorari.

2

I.

THE THIRD CIRCUIT’S DECISION WAS A

STRAIGHTFORWARD APPLICATION OF

THE PRINCIPLES STATED IN HOLT

In Holt, this Court recognized that: (1) a voting district

“may legitimately restrict the right to participate in its

political processes to those who reside within its borders,”

even when its decisions have a “dramatic” effect upon non-

residents (439 U.S. at 68-70); and (2) only where a voting

district is “exercising precisely the same governmental

powers over [non-residents] as it does over those residing

within its [borders]” may disenfranchisement of the

non-residents implicate the one person, one vote principle

(439 U.S. at 72 n.8).

Applying these principles (see Pet. App. at 15a-20a), the

Third Circuit concluded that in this case “the residents of

Lincoln Park have no right to vote in the election of Boonton’s

School Board.” The Circuit explained, in part, as follows:

This is not a case in which the Boonton Board

“exercis[es] precisely the same governmental

powers over residents of [Lincoln Park] as it does

over those residing within its [district’s] limits.”

Id. at 72 n. 8. Lincoln Park residents are subject

to the extraterritorial powers of the Boonton Board

only with respect to their high school-aged

children. For matters concerning K-8 education,

the residents of Lincoln Park exercise exclusive

control through their own school board elected

solely by Lincoln Park residents. Moreover,

the Boonton Board’s control over high school

3

education is only one of its many responsibilities

affecting the residents of Boonton. The Board is

also responsible for the district’s K-8 educational

program, as well as matters that affect the district

as a whole, such as school facilities and the

district’s central administrative staff.

.... [W]e think that the extraterritorial power

over educatiun exercised by the Boonton Board

is itself “limited” for the reasons described above:

the Boonton Board controls only four of the

thirteen years of a Lincoln Park child’s education

and Lincoln Park possesses its own school board

elected exclusively by Lincoln Park residents for

the governance of K-8 affairs. Moreover, Lincoln

Park residents are not without any voice in the

governance of Boonton High, for state law, as

explained above, entitles the Lincoln Park Board

to appoint a representative to the Boonton Board.

That person may speak at Board meetings to

convey Lincoln Park’s view. He or she also has a

vote on matters that primarily affect the high

school. See N.J.S.A. § 18A:38-8.1.

Pet. App. at 20a-22a.

As the Third Circuit’s opinion was but an unremarkable

application of the principles enunciated in Holt, certiorari is

unwarranted.

4

HOLT RESOLVED AGAINST PETITIONERS

EACH OF THE GROUNDS ON WHICH

THEY SEEK CERTIORARI

A. Holt Held That Cases Such as Hadley, Which Concern

the Voting Rights of Residents of the Voting District

In Question, Are Inapposite to Cases Like This One,

Which Concerns the Voting Rights Of Non-Resideuts

Petitioners overlook a critical distinction between Hadiey

and this case: While Petitioners are non-residents of Boonton,

the plaintiffs in Hadley were residents of the voting district

in question. See Hadley, 397 U.S. at 51-52 (“[We] hold that

the Fourteenth Amendment requires that the trustees of this

junior college district be apportioned in a manner that does

not deprive any voter of his right to have his own vote given

as much weight, as far as is practicable, as that of any other

voter in the junior college district.”) (emphasis added).'

1. Hadley involved a junior college district comprised of eight

otherwise separate school districts that had, pursuant to the applicable

Missouri law, expressly and voluntarily combined, by a vote of the

residents of each constituent district, to form the junior college

district. While New Jersey law also provides for the formation of

combined or “regional” school districts, it clearly distinguishes

between such a regional district and a sending-receiving relationship,

such as exists between Boonton and Lincoln Park. As the court

explained in Borough of Sea Bright v. State Department of Education,

242 N.J. Super. 225, 232-233 (App. Div.), cert. denied, 127 N.J. 320

(1990): “A regional school district is a single political entity for the

purpose of providing educational services to residents of its

constituent municipalities . . . whereas sending and receiving districts

remain distinct political entities which enter contracts for educational

(Cont'd)

5

The Holt majority unequivocally declared cases such as

Hadley — which predated, and was cited by the dissenters

in, Holt (439 U.S. at 81 (dissenting opinion of Justice

Brennan)) — inapposite to cases which, like this one, concern

the voting rights of non-residents of the voting district in

question:

No decision of this Court has extended the “one man,

one vote” principle to individuals residing beyond

the geographic confines of the governmental entity

concerned, be it the State or its political subdivisions.

On the contrary, our cases have uniformly recognized

(Cont'd)

services under the supervision of the Commissioner of Education.”

Id. (emphasis added). It is equally clear that the relationship between

Boonton and Lincoln Park is not a “regional” school district: Under

New Jersey law, a vote by the citizens of each constituent school

district is a prerequisite to the formation between those districts of a

regional school district (N.J.S.A. 18A:13-5), and it is undisputed

that Boonton and Lincoln Park never intended or agreed, much less

voted, to form a regional school district. See also Holt, 439 U.S. at

71 (reaffirming “the extraordinarily wide latitude that States have in

creating various types of political subdivisions and conferring

authority upon them.”). Further, Lincoln Park’s right to proportionate

representation on a regional board of education would have been

accompanied by substantial financial obligations that Lincoln Park

avoids in its sending-receiving relationship with Boonton. Perhaps

most notably, while in the sending-receiving relationship Lincoln

Park has no responsibility for the principle amounts of capital

expenditures, which are born solely by Boonton, as a participant in a

regional school district, Lincoln Park would be liable for its

proportionate share of those amounts. Compare N.J.S.A. 18A:13-23

(concerning apportionment of appropriations among regional school

districts) with N.J.A.C. 6A:23-3.1(e)(6) (concerning “building use

charges” billable by a receiving district to a sending district as

“tuition”).

ee

6

that a government unit may legitimately restrict the

right to participate in its political processes to those

who reside within its borders.

Id., 439 U.S. at 68-69.

2. Township of Marlboro v. Board of Education of Freehold

Regional High School, 9 F. Supp. 2d 500 (D.N.J. 1998), and Township

of Marlboro v. Board of Education of Freehold Regional High School,

992 F. Supp. 756 (D.N.J. 1998) (discussed in Pet. at 13-14), which,

like Hadley, involved the voting rights of residents of a regional

school district, are distinguishable from this case on the same grounds

as is Hadley. Accordingly, Petitioner’s assertion that “[w]hile not

directly overruling Zownship of Marlboro, the Third Circuit’s decision

in the case at hand certainly casts doubt on its legal underpinnings”

(Pet. at 14 n.3), is plainly untrue: It bears repeating that the Third

Circuit’s decision in this case turns on the fact that English, like the

other residents of Lincoln Park, is a non-resident of Boonton, the

voting district here at issue. As Marlboro involved only the rights of

residents of the regional school district there at issue, its holding is

unaffected by the Third Circuit’s decision here.

—

Similarly distinguishable are the reapportionment cases cited

by Petitioners in support of their contention that this Court should

simply ignore the geographic/political boundaries between Boonton

and Lincoln Park (Pet. at 12-13): In each of those cases, the plaintiffs

who complained that state apportionment statutes diluted their votes

in state elections were residents of the state in question. Reynolds

v. Sims, 377 U.S. 533, 568, 577 (1964) (“[A]n individual’s right to

vote for state legislators is unconstitutionally impaired when its

weight is in a substantial fashion diluted when compared with

votes of citizens living in other parts of the State.”) (emphasis

added); Baker v. Carr, 369 U.S. 186, 187-88, 192-93 (1962) (holding

justiciable and subject to the jurisdiction of the district court the

claim that a Tennessee statute apportioning state legislators by county

(Cont’d)

(Cont'd)

violated equal protection by arbitrarily “debasing” the votes of some

Tennessee residents verses others); Gray v. Sanders, 372 U.S. 368,

379-80 (1963) (holding that in statewide elections, each person’s

vote must be counted equally with those of all other voters “in his

state”).

The other cases Petitioners cite in support of their contention

that this Court should ignore the geographic/political boundaries

between Boonton and Lincoln -Park (Pet. at 12-13) expressed a

willingness to consider overriding such boundaries not because such

boundaries are to be lightly disregarded, as Petitioners insinuate, but

only because, and to the extent that, the particular boundaries at issue

were established with the purpose or effect of fostering racial

segregation — a wrong never even suggested in this case, much less

pled or proven. See Milliken v. Bradley, 418 U.S. 717, 741-42 (1974)

(cited in Pet. at 12) (Class action brought by parents, children, and

others against various state and school district officials seeking relief

from alleged illegal racial segregation in the Detroit public school

system: “Boundary lines may be bridged where there has been a

constitutional violation calling for interdistrict relief, but the notion

that school district lines may be casually ignored or treated as a mere

administrative convenience is contrary to the history of public

education in our country.”); Haney v. County Board of Education of

Sevier County, 410 F.2d 920, 926 (8th Cir. 1969) (cited in Pet. at 12-

13) (“We find as a matter of law that the school district lines of Sevier

County were created to reflect racial separation by schools.”); Jenkins

v. Township of Morris School Dist., 58 N.J. 483, 500-01 (1971) (cited

in Pet. at 13) (While governmental subdivisions of the state “may

readily be bridged when necessary to vindicate state constitutional

rights ... [t]his does not entail any general departure from the

historic home rule principles and practices in our State in the field

of education . . . [T]he State Commissioner must have power to cross

district lines to avoid ‘segregation in fact.’”). While the Courts have

expressed willingness to override racially discriminatory geographic/

(Cont'd)

8

As Hadley did not involve the voting rights of non-

residents, it did not address at all the question presented here

and in Holt — the inapplicability of the one person, one vote

principle to non-residents of the voting district in question.

Rather, the question in Hadley was whether the powers of

the trustees of the Junior College District — the election

of whom was at issue — were “general enough and

ha[d] sufficient impact throughout the district” to justify

application of the one person, one vote principle as between

residents of that district. Hadley, 397 U.S. at 53-54.

Thus, while petitioners make much of this Court’s comment

in Hadley that “[e]ducation has traditionally been a vital

governmental function,” it is clear from the context that the

Court intended merely to distinguish the election of the

educational officials there at issue from elections of “certain

functionaries whose duties are so far removed from normal

governmental activities and so disproportionately affect

different groups that a popular election in compliance with

[the one person, one vote principle] might not be required.”

Hadley, 397 U.S. at 56.

(Cont'd)

political boundaries between school districts in order to remedy racial

segregation — a blatant constitutional wrong — Holt plainly holds

that, except in circumstances that are absent here, withholding the

franchise from non-residents of the voting district in question — the

only “misconduct” here alleged — is not a constitutional wrong at

all. Milliken and Jenkins confirm that, because disregard of the

geographic/political boundaries between Boonton and Lincoln Park

is not necessary to remedy racial discrimination or any other

constitutional wrong, the Court of Appeals was obligated to respect

those boundaries. See Milliken, 418 U.S. at 741-42; Jenkins, 58 N.J.

at 500-01.

9

Under these circumstances, Petitioner’s logical leap —

from Hadley’s reference to education as a “vital governmental

function” to the conclusion that Holt’s nearly complete

refusal to apply the one person, one vote principie to non-

residents is simply overridden in cases involving education

— is untenable. Accordingly, the Court of Appeals correctly

“doubt[ed] the viability of’ Petitioners’ attempt to distinguish

Holt from this case on the ground that “this case concerns

education, ‘a vital governmental function,’ Hadley, 397 U.S.

at 56.” Pet. App. 21a. Accord Mixon v. State of Ohio, 193

F.3d 389, 404-05 (6th Cir. 1999) (Ohio statute empowering

Cleveland’s Mayor to appoint school board for Cleveland

School District — which extends beyond Cleveland’s city

limits — does not violate the “one person, one vote principle”

notwithstanding that those who live within the School

District, but outside the City, cannoi vote for Cleveland’s

Mayor); Hawkins v. Johanns, 88 F. Supp. 2d 1027, 1044

(D. Neb. 2000) (Nebraska statutes requiring “elementary

only” school districts to affiliate with “K-12” school districts

for the provision of post-elementary education did not violate

equal protection even though voters in the elementary only

district were not entitled to vote for the school board that

ran the affiliated K-12 district, because, although “affiliated,”

the elementary and K-12 districts remained separate,

geographically distinct, voting districts.).°

3. Equally untenable is Petitioners’ attempt to bootstrap a

constitutional right to proportionate representation on Boonton’s Board

of Education from Lincoln Park’s right to have one voting member on

that Board pursuant to N.J.S.A. 18A:38-8.2(a)(2)). Pet. at 14 (“As the

Board of Education of the Town of Boonton has Lincoln Park

representation on it, albeit woefully disproportionate, Judge Hochberg

was not applying the principle of ‘one person, one vote’ across

geographical/political boundaries of its current and existing authority.”’).

(Cont'd)

10

B. Holt Belies Petitioners’ Attempt to Equate this Case

to Little Thunder and Evans

In attempting to distinguish Holt, Petitioners implausibly

equate this case to: (1) Little Thunder v. South Dakota, 518

(Cont’d)

The argument is entirely fallacious. First, N.J.S.A. 18A:38-8.1 and 8.2,

enacted to “provide the sending district with a voice on the receiving

district board of education” (Governor’s Recommendations to Senate

Bill No. 151 (Second Reprint), October 20, 1994 (emphasis added)),

make clear that the single representative on Boonton’s Board of

Education allotted to Lincoln Park as a sending district is not an elected

position; rather that representative is designated by the sending districts

board of education. See N.J.S.A. 18A:38-8.2(d) (“[a] representative of

a sending district board of education shall be designated at [a] meeting

of the board”) (emphasis added). The fact that Lincoln Park’s

representative on the Boonton Board is a non-elective office precludes

Petitioners’ argument, because it is well settled that the one person, one

vote doctrine is completely inapplicable to non-elective offices.

See, e.g., Hoots v. Commonwealth of Pennsylvania, 672 F.2d 1124, 1130

(3d Cir. 1982) (Sailors v. Board of Education, 387 U.S. 105 (1967)

“address[ed] the question whether the principle of proportional

representation has any bearing on non-elective offices, and held that it

does not.”).

Further, insofar as Petitioners’ argument confuses the extraterritorial

scope of the Boonton Board’s “authority” with Boonton’s “geographic/

political boundaries,” it is precluded both by the New Jersey caselaw

holding that “sending and receiving districts remain distinct political

entities” (Borough of Sea Bright, 242 N.J. Super. at 232-233 (emphasis

added)), and by this Court’s rejection of the argument of the non-resident

appellants in Holt that “extraterritorial extension of municipal powers

requires concomitant extraterritorial extension of the franchise.”

Holt, 439 U.S. at 69-70 (“The line heretofore marked by this Court’s

voting qualifications decisions coincides with the geographical boundary

of the governmental unit at issue, and we hold that appellants’ case, like

their homes, falls on the farther side.”’).

1]

F.2d 1253 (8th Cir. 1975), in which “a city ha[d] annexed

outlying territory in all but name, and [wa]s exercising precisely

the same governmental functions over residents of surrounding

unincorporated territory as it d[id] over those residing within

its corporate limits,” * and (2) Evans v. Cornman, 398 U.S. 419,

423, 424, 426 (1970)), in which persons living on the grounds

of the National Institutes of Health, a federal enclave located

within the geographical boundaries of Maryland, were denied

the right to vote as Maryland residents in federal, state, and

local elections, notwithstanding that they “were subject to such

‘important aspects of state powers’ as Maryland’s authority

‘to levy and collect [its] income, gasoline, sales, and use taxes,”

and “were just as interested in and connected with electoral

decisions as they were prior to 1953 when the area came under

federal jurisdiction and as their neighbors who live off the

enclave.”° Pet. at 1la-12a.

It is patent, however, that Lincoln Park bears no resemblance

to the disenfranchised territories to which Petitioners equate it.

Unlike those territories, Lincoln Park is an independent town,

with its own separate, fully functioning municipal government

— including its own separate board of education — elected

solely by Lincoln Park’s own residents. Indeed, the only

relationship between Boonton and Lincoln Park is the sending-

4. See Holt, 439 U.S. at 72 n.8 (discussing Little Thunder v. South

Dakota, 518 F.2d 1253 (8th Cir. 1975)).

5. See Holt, 439 U.S. at 71, 72 nn.7 and 8 (discussing Evans v.

Cornman, 398 U.S. 419, 423, 424, 426 (1970)); see also id. at 71 n.7

(“Treatment of the plaintiffs in Evans as nonresidents of Maryland had

repercussions not merely with respect to their right to vote in city

elections, but with respect to their right to vote in national, state, school

board, and referendum elections.”).

12

receiving relationship between them with respect to Lincoln

Park’s high school students.°

Under these circumstances, English’s attempt to

distinguish Holt on the basis of Evans and Little Thunder

must fail. In Holt this Court found that, because the

disenfranchised non-residents of Tuscaloosa had neither

alleged nor shown “that the authority exercised by the city

of Tuscaloosa within the police jurisdiction is no less than

6. Significantly, that relationship is the result of the voluntary

choice made by Lincoln Park’s own elected Board of Education over

fifty years ago and continually reaffirmed by it thereafter — most recently

in its brief as intervener in before the Court of Appeals — to educate its

high school students at Boonton High School through a sending-receiving

relationship, thereby avoiding the substantial capital expenses of building

its own high school or of participating in a regional school district.

See Brief of the Intervenor, Board of Education of Lincoln Park,

In Opposition to the Appeal of the Board of Education of the Town of

Boonton and David Hespe, The New Jersey Commissioner of Education

(“Lincoln Park Brief on Appeal”) at 4 (“Boonton correctly points out

that Lincoln Park has never advised that it wants to sever the relationship

with Boonton. Nor would Lincoln Park be interested in severing the

relationship with Boonton.”). Were English or other Lincoln Park

residents dissatisfied with that relationship, they could elect to the Lincoln

Park Board of Education members who would seek severance of Lincoln

Park’s sending-receiving relationship with Boonton pursuant to New

Jersey law, as the Boonton Board is now in the process of doing.

See Boonton’s Supplemental Appendix on Appeal at 1 (formal resolution

of the Boonton Board of Education authorizing application to the

New Jersey Commissioner of Education for permission to sever its

sending-receiving relationship with Lincoln Park). Cf Holt, 439 U.S. at

77 (concurring opinion of Justice Stevens) (“Unlike the [appellants] in

Evans ... appellants are not without any voice in the election of the

officials who govern their affairs ... /T]hrough their state

representatives, they participate directly in the process which has created

their governmental relationship with the city.”) (emphasis added).

<< * ### — -

13

that exercised by the city within its corporate limits,” the

one person, one vote doctrine was inapplicable. Holt, 439

U.S. at 72 n.8. Significantly, the Court made clear that, in

determining whether the extraterritorial authority exercised

is “no less than” the authority exercised over residents, the

extraterritorial powers are to be compared to all of the

governmental powers that the jurisdiction exercises over its

own residents. Thus, in finding the one person, one vote

principle inapplicable, the Court stated as follows:

The minute catalog of ordinances of the city of

Tuscaloosa which have extraterritorial effect

set forth by our dissenting Brethren, post, at 396,

n. 10, is as notable for what it does not include as

for what it does. While the burden was on appellants

to establish a difference in treatment violative of the

Equal Protection Clause, we are bound to observe

that among the powers not included in the

“addendum” to appellants’ brief referred to by the

dissent are the vital and traditional authorities of

cities and towns to levy ad valorem taxes, invoke

the power of eminent domain, and zone property

for various types of uses.

Id. (emphasis in original); accord id., 439 U.S. at 76 (concurring

opinion of Justice Stevens) (“appellants have shown no more

than that they . . . are subject to some — but by no means all —

of the regulations and services afforded by the cities to their

residents. . . . Such a showing is plainly insufficient to justify a

holding that the Alabama statutes are unconstitutional.”’)

Here, even more clearly than in Holt, Petitioners failed to

meet their burden of showing that the extraterritorial authority

14

Boonton exercises over English and other Lincoln Park residents

is “no less than” that which Boonton exercises over its own

residents. Like the non-resident appellants in Holt, Petitioners

failed to allege or show that Boonton exercises over Lincoln

Park “the vital and traditional authorities of cities and towns to

levy ad valorem taxes, invoke the power of eminent domain,

[or] zone property for various types of uses.” See id. Petitioners

also failed to allege or show that Boonton exercises over English

and other Lincoln Park residents any of the powers that

Tuscaloosa did exercise over the non-resident appellants in

Holt, to wit, police and sanitary regulations, criminal court

jurisdiction, and licensing of businesses, trades, and professions.

Id., 439 U.S. at 61-62, 72 n.8.’

Further, as the Third Circuit stressed, even limiting the

inquiry to Boonton’s authority over education, the extraterritorial

7. While petitioners argue that by virtue of the sending-receiving

relationship Boonton has the power to “tax” Lincoln Park residents

(Petition at 11-12), that is simply untrue. In fact, the governing New

Jersey statute provides that the tuition Boonton receives for educating

Lincoln Park’s students is paid as follows:

such tuition shall be paid by the custodian of school

moneys of the sending district out of any moneys in his

hands available for current expenses of the district upon

order issued by the board of education of the sending

district, signed by its president and secretary, in favor of

the custodian of school moneys of the receiving district.

N.J.S.A. 18A:38-19.

Accordingly, despite the sending-receiving relationship,

Boonton has no more power to “tax” English or the other residents

of Lincoln Park than does any vendor who gets paid by the town for

supplying it with goods or services.

15

authority Boonton exercises over English and other Lincoln Park

residents is plainly far less than the authority it exercises over

Boonton residents:

[While] Lincoln Park residents are subject to the

extraterritorial powers of the Boonton Board only

with respect to their high school-aged children. . .

the Boonton Board’s control over high school

education is only one of its many responsibilities

affecting the residents of Boonton. The Board is

also responsible for the [Boonton] district’s K-8

educational program, as well as matters that affect

the district as a whole, such as school facilities

and the district’s central administrative staff.

Pet. App. at 20a-21a.

Under these circumstances, Petitioners clearly failed to

meet their burden of showing that the extraterritorial powers

Boonton exercises over English and the other residents of

Lincoln Park are “no less than” those that Boonton exercises

over its own residents. Holt, 439 U.S. at 72 n.8. Accordingly,

the Third Circuit correctly held that, because this is not a

case in which the Boonton “exercis[es] precisely the same

governmental powers over residents of [Lincoln Park] as it

does over those residing within its [district’s] limits,” the

one person, one vote principle is inapplicable, and “the

residents of Lincoln Park have no right to vote in the election

of Boonton’s School Board.” 20a-21a, 25a.®

8. While Justice Stevens mentioned in his concurring opinion

in Holt that “Tuscaloosa, for example, does not tax the residents of

Holt, nor does it control the zoning of their property or the operation

of their schools” (id. at 77 (emphasis added)), he never suggested

(Cont'd)

16

iil.

MISSTATEMENTS OF LAW AND FACT

IN THE PETITION

In addition to the previously mentioned misstatements

of law and of fact contained in the Petition, we point out,

pursuant to Rule 15(2) of this Court, the following:

1. While Petitioners’ assert that The Board of Education

of the Township of Branchburg, et al. v. David Livingston,

Somerset County Superintendent, et al., Civil. No. 98-557

(Cont'd)

that the Holt decision “does not apply to important aspects of state

power such as school governance,” as Petitioners contend. Pet. lla

(citing Holt, 439 U.S. at 76). On the contrary, Justice Stevens:

(1) stated unequivocally that he “join[ed] the opinion of the Court”

(id.); and (2) expressly agreed with the majority’s rationale for holding

that the non-residents in Ho/t had no constitutional right to vote in

Tuscaloosa’s elections. As Justice Stevens put it,

appellants have shown no more than that they .. . are

subject to some — but by no means all — of the

regulations and services afforded by the cities to their

residents, in return for which they pay license fees half

as great as those paid by city residents. Such a showing

is plainly insufficient to justify a holding that the

Alabama statutes are unconstitutional. . . .

Id. at 78 (emphasis added); see also id. at 76 (where Justice Stevens

observed that “[c]ertainly there is nothing in the Federal Constitution

to prevent a suburb from contracting with a nearby city to provide

municipal services for its residents, even though those residents have

no voice in the election of the city’s officials or in the formulation of

the city’s rules.”).

ee

17

(AET) and 99-822 (consol.) is a “related case” (Pet. at 1), in

fact, it has been neither designated nor processed as such by

either the District Court or the Court of Appeals. Petitioners’

characterization of it as such, and their inclusion in the

appendix to their Petition of the District Court’s opinion in

Branchburg, appear to be an improper attempt to obtain from

this Court an advisory opinion concerning another case

which, as Petitioners admit, has not yet been decided by the

Court of Appeals. Pet. at 1.

2. Petitioners mischaracterize in several respects

New Jersey’s statutory and regulatory provisions concerning

the tuition paid by the sending school district to the receiving

school district in a sending-receiving relationship.

Specifically, Petitioners erroneously assert that, pursuant to

New Jersey statutes and regulations, the tuition Lincoln Park

pays to Boonton to educate Lincoln Park’s high school

students is: (1) “based upon its [Lincoln Park’s] proportion

of actual operating expenses” (Pét. at 2); (2) “not negotiated”

(id. at 4); (3) “imposed by N.J.S.A. 18A:38-19 and by

N.J.A.C. 6:20-3.1” (id.); and (4) “required to [be] the majority

of the operating costs of the [Boonton] high school” (id.).

Petitioners also erroneously assert that “[a]ny increase in the

cost per pupil for high school students is automatically, by

regulation and statute, passed on to Lincoln Park taxpayers”

(id.).

In fact, the governing statute provides in pertinent part

that

the board of education of the receiving district

shall determine a tuition rate to be paid by

the board of education of the sending district to

an amount not in excess of the actual cost per

18

pupil as determined under rules prescribed by the

commissioner and approved by the state board. .. .

N.J.S.A. 18A:38-19 (emphasis added). The pertinent regulation

merely defines in detail “‘actual cost.” See N.J.A.C. 6A:23-3.1.°

Accordingly, the tuition Lincoln Park pays Boonton is neither

“imposed” by statute and regulation nor “automatic”; rather, it

is determined by Boonton’s Board of Education, subject to a

maximum set by statute and regulation.

3. Finally, Petitioners’ attempt to support their Petition on

the grounds that the sending-receiving relationship between

Boonton and Lincoln Park is involuntary (Pet. at 4-5) both

misstates the record and contradicts Petitioners’ express

concessions before the Court of Appeals:

a. While Petitioners argued in the District Court that

severance of the sending-receiving relationship would occasion

substantial negative economic and educational consequences

to Boonton and Lincoln Park, Petitioners’ contentions that

Boonton and the New Jersey Commissioner of Education

“conceded” (i) that point (Pet. at 4) and (ii) that the

Commissioner of Education was “unable” to identify any

instance in which an application for severance of a sending-

receiving relationship involving more than 25% of the student

body of the receiving school was granted (Pet. at 4-5), though

credited by the District Court, are flatly belied by the record.

See Brief for Defendants-Appellants at 20-33 and portions of

the Appendix referenced therein; Reply Brief for Defendants-

Appellants at 9-16 and portions of the Appendix referenced

therein.

9. N.J.A.C. 6:20-3.1, cited by Petitioners (Pet. at 4) has nothing

to do with tuition rates; in fact, that section number is “reserved.”

19

b. Petitioners’ attempt to support their Petition on the

grounds that the sending-receiving relationship between

Boonton and Lincoln Park is involuntary contradicts Petitioners’

express concessions in the Court of Appeals. Before that Court,

Lincoln Park affirmatively represented that it “has never advised

that it wants to sever the relationship with Boonton. Nor would

Lincoln Park be interested in severing the relationship with

Boonton.” Lincoln Park Brief on Appeal at 4. English, in turn,

argued to that Court that whether the New Jersey Commissioner

of Education would grant severance of the sending-receiving

relationship between the two school districts is “not relevant or

dispositive.” Brief for Plaintiff/Appellee at 22-23.

CONCLUSION

For all of the foregoing reasons, Respondent The Board

of Education of The Town of Boonton respectfully requests

that the Petition be denied.

Respectfully submitted,

HERBERT J. STERN

Counsel of Record

JEFFREY SPEISER

Joet M. SILVERSTEIN

STERN GREENBERG & KILCULLEN

75 Livingston Avenue

Roseland, NJ 07068

(973) 535-1900

Attorneys for Respondent

The Board of Education of

The Town of Boonton