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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2003
- **Citation:** 537 U.S. 1148

## Text

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No. 02-680 ” 4 os

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_0665%3A2. Public record. Not legal advice.