91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Where a summary judgment motion is properly made and supported, "an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). If the adverse party fails to respond with a showing that there is a genuine issue for trial, "summary judgment, if appropriate, shall be entered against the adverse party." Id. In making this determination, the Court must draw all reasonable inferences in favor of the non-movant. See National State Bank v. Federal Reserve Bank of New York, 979 F.2d 1579, 1581 (3d Cir. 1992).
The Court's function at the summary judgment stage of litigation is to determine whether there is a genuine issue for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). An issue of material fact is genuine if the evidence would permit a reasonable jury to return a verdict for the nonmoving party. See id.; Coolspring Stone Supply, Inc. v. American States Life Ins. Co., 10 F.3d 144, 148 (3d Cir. 1993). Absent evidence sufficient to permit a jury to return a verdict for the non-moving party, there is no issue for trial, and summary judgment must be granted. See Anderson, 477 U.S. at 249. The issues presented in this case are appropriate for disposition by summary judgment.
The Statute as Applied is Unconstitutional
The critical inquiry to be determined by this Court is whether the involved statute, N.J. Stat. Ann. 18A:13-8, as applied, is constitutionally infirm. The Court holds that the statute as applied is unconstitutional. This infirmity arises from the failure to apportion school board votes in contravention of the well established principle of "one person, one vote."
The seminal case of Reynolds v. Sims, 377 U.S. 533, 12 L. Ed. 2d 506, 84 S. Ct. 1362 (1964) held that a qualified voter has a constitutional right to vote in a state legislative election without having his vote wrongfully denied, debased, or diluted; "full and effective participation by all citizens in state government requires . . . that each citizen have an equally effective voice in the election of members of his state legislature." 84 S. Ct. at 1383. The United States Supreme Court has consistently applied the constitutional principle of "one man, one vote" -- giving approximately
equal weight to each vote cast -- to congressional, state legislative, and local elections. See Hadley v. Junior College Dist. of Metro. Kansas City, Missouri, 397 U.S. 50, 54, 25 L. Ed. 2d 45, 90 S. Ct. 791 (1970) (applying the principle to the office of junior college trustee) (citing, in part, Wesberry v. Sanders, 376 U.S. 1, 11 L. Ed. 2d 481, 84 S. Ct. 526 (1964) (congressional election); Avery v. Midland County, 390 U.S. 474, 20 L. Ed. 2d 45, 88 S. Ct. 1114 (1968) (Texas county commissioners)). However, the "one person, one vote" principle was determined to have no relevancy to a county board appointed by a popularly elected local board where the county board's functions were essentially administrative. See Sailors v. Board of Educ. of the County of Kent, 387 U.S. 105, 18 L. Ed. 2d 650, 87 S. Ct. 1549 (1967). The fact that the county board did not perform legislative functions cornerstoned the Court's reasoning. See id. at 110. In contrast, the parties in the current case are in agreement that the Board's functions are a combination of legislative or governmental and not purely administrative. (See 1/26/98 Oral Hrg. Tr. at 8:16-22.)
Further, although Sailors is urged upon the Court and is facially appealing, it is of limited application and incongruous with the principle espoused through "one person, one vote." In addressing the extent to which "one person, one vote" applies in the election of a local government official, the Supreme Court in Hadley discarded any distinction between administrative and legislative elections; "governmental activities 'cannot easily be classified in the neat categories favored by civics texts.'" 397 U.S. at 54-55 (quoting Avery, 390 U.S. at 482). Indeed, the Supreme Court characterized education as a traditional vital government function whose trustees act as government officials. 397 U.S. at 56. Consequently, the Supreme Court held that:
as a general rule, whenever a state or local government decides to select persons by popular election to perform governmental functions, the Equal Protection Clause of the Fourteenth Amendment requires that each qualified voter must be given an equal opportunity to participate in that election, and when members of an elected body are chosen from separate districts, each district must be established on a basis that will insure, as far as practicable, that equal numbers of voters can vote for proportionally equal numbers of officials.
Id. In essence, the Supreme Court held that all elections must comply with the "one person, one vote" principle. Nevertheless, Sailors remains good law. All members of the Hadley court approved of the Sailors decision, saying, "We have also held that where a State chooses to select members of an official body by appointment rather than election, and that choice does not itself offend the Constitution, the fact that each official does not 'represent' the same number of people does not deny those people equal protection of the laws." Id. at 58 (citing Sailors, 387 U.S.). Yet, Sailors' continuing vitality is in question in light of the current atmosphere as exemplified by Hadley, and as discussed infra, Franklin.
Beyond Hadley, the New Jersey Supreme Court has had the opportunity, in a case very similar to the current case, to interpret both Hadley and Sailors. And in a cogent majority opinion joined by all justices of the court without dissent, the New Jersey Supreme Court held in Franklin that the "one person, one vote" principle was applicable to a high school district school board election, and declared the apportionment formula embodied in N.J. Stat. Ann. 18A:13-8 unconstitutional as applied to the North Hunterdon Regional High School District.
Although not bound by New Jersey precedent in resolving the current case, this Court gives great credence to the New Jersey Supreme Court in Franklin, which interprets Hadley and places Sailors in its proper perspective. Indeed, the New Jersey Supreme Court noted that although Sailors has not been expressly overruled, the Court "did appear willing to confine its holding strictly to the situation presented in that case." 74 N.J. at 352. Further, the New Jersey Supreme Court followed Hadley in concluding that because the present board members were elected, Sailors would not affect the case's outcome. See id. Thus, Sailors is inapposite in the current controversy. Moreover, as set forth supra, the parties in the current case do not contest that the Board performs important government functions. And the Franklin decision cited to Hadley's characterization of education as a traditional government function. See id. at 353. Additionally, Franklin cited to a line of authority to emphasize that governmental bodies are bound by the "one person, one vote" constitutional rule. See id. at 354 (citing Avery v. Midland County, Texas, 390 U.S. 474, 20 L. Ed. 2d 45, 88 S. Ct. 1114 (1968) (county commissioners court); Baker v. Regional High School District No. 5, 520 F.2d 799 (2d Cir.), cert. denied, 423 U.S. 995, 46 L. Ed. 2d 369, 96 S. Ct. 422 (1975) (regional school district); Cantwell v. Hudnut, 419 F. Supp. 1301 (D. Ind. 1976), reversed in part on other grounds and aff'd in part, 566 F.2d 30 (7th Cir. 1977), cert. denied, 439 U.S. 1114 (1979) (special district performing general governmental powers including police and fire services); Barnes v. Board of Dirs., Mt. Anthony Union High School Dist., 418 F. Supp. 845 (D. Vt. 1976) (school district's board of directors)); see also Council of Alternative Political Parties v. Hooks, 121 F.3d 876 (3d Cir. 1997) (granting preliminary injunctive relief in favor of alternative political parties' § 1983 action challenging the constitutionality of a New Jersey statute governing the filing of nominations of candidates seeking placement on the general election ballot).
By the authority of Hadley and Franklin, this Court deems that the constitutional principle of "one person, one vote" is applicable to the Board at issue in the current case. And N.J. Stat. Ann. 18A:13-8 as applied to the Board is unconstitutional.
Because the Board currently provides for one vote per member of the Board, the current "one municipality, one vote" voting scheme results in unequal apportionment due to population. Accordingly, the Board is unconstitutional as presently constituted. Several of the other issues advanced that relate to constitutional estoppel, waiver, laches, statute of limitations, the Eleventh Amendment, sovereign immunity, pendent jurisdiction, due process, joinder, and standing are without merit and do not warrant further discussion.
(See, e.g., 1/26/98 Oral Hrg. Tr. at 40:3-5, 8-9.)
The Inability to Withdraw From the Regional School District
Beyond the constitutional infirmity of systematic discrimination against voters in the more populous districts, there exists a parallel concern that the less populated districts will now be deprived of a meaningful voice in the affairs of the regional school district. Although it may be argued that such a result is the product of win-lose constitutional skirmishes, the loss here is pernicious.
Those municipalities whose weighted vote is cumulatively less than that of Howell's, Marlboro's, or Manalapan's on an individual basis are correct to question whether they should continue to participate in the regional school district following reapportionment. Yet, the provisions that permit withdrawal from a regional school district are so onerous that a withdrawal application is not a reasonable option.
Thus, these constituent municipalities, which possessed one vote each prior to this application, are now reduced to a whisper in the wind, yet remain obligated to pay their apportioned share of the appropriations of the regional district. The stunning effect of taxation without representation contrary to the 1954 formation accords of one vote per constituent municipality is the type of distress that calls for a legislative solution. Although this Court writes on a clean slate, it is not the Court's prerogative to legislate through judicial fiat. This regional school district must provide a voice to all, not just some of its citizens. Accordingly, the New Jersey State Legislature is the appropriate body to reconcile and remedy these disparate imperatives.
Meanwhile, awaiting a legislative solution, the Court will retain jurisdiction and rely on the Commissioner of Education or his designee to apportion the votes of the constituent municipalities in a constitutionally acceptable manner. To assist the Commissioner in his endeavor, the parties have agreed to participate in a standstill agreement
and will defer consideration of voting on any substantive issues except financial matters that occur in the normal course of events. Because the Court will retain jurisdiction, any party may petition the Court on short notice for appropriate review not inconsistent with the tenor of this Opinion.
For the foregoing reasons, plaintiffs the Township of Marlboro, Marcus, Greenstein, the Township of Manalapan, and Bachman's summary judgment motion will be granted in part and denied in part in conformity with the body of this Opinion, and defendants the Board of Education of the Freehold Regional High School District, Maddaluna, Klagholz, and Colts Neck's cross-motions for summary judgment will be denied. The Court calls upon the Legislature for a legislative solution and in the interim, the Commissioner of Education or his designee shall apportion the Board's votes in a manner consistent with the expressed concerns of the Court.
An appropriate Order is attached.
Dated: February 4, 1998
ALFRED M. WOLIN, U.S.D.J.
In accordance with the Court's Opinion filed herewith,
It is on this 4th day of February, 1998
ORDERED that plaintiffs Township of Marlboro and Township of Manalapan's Complaints are consolidated; and it is further
ORDERED that defendant Colts Neck's motion to intervene is granted; and it is further
ORDERED that plaintiffs' summary judgment motion is granted in part as N.J. Stat. Ann. 18A:13-8 is unconstitutional as applied; and it is further
ORDERED that defendants' summary judgment motions are denied; and
THIS MATTER is referred to the New Jersey State Legislature for a legislative solution; and it is further
ORDERED in the interim that the Commissioner of Education or his designee is appointed to apportion the Board's votes.
ALFRED M. WOLIN, U.S.D.J.