Delozier v. Tyrone Area School Board

• Decision Date: 29 October 1965
• Docket Number: Civ. A. No. 65-388.
• Citation: 247 F. Supp. 30
• Parties: Thomas F. DELOZIER, President the Pennsylvania Association of Tax Leagues, Inc., Tyrone Area and Individually and Albert J. Shope and James W. Hoover, Plaintiffs, v. TYRONE AREA SCHOOL BOARD and the Blair County Board of Elections, Huntingdon County Board of Elections and Centre County Board of Elections, Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

247 F. Supp. 30

Thomas F. DELOZIER, President the Pennsylvania Association of Tax Leagues, Inc., Tyrone Area and Individually and Albert J. Shope and James W. Hoover, Plaintiffs, v. TYRONE AREA SCHOOL BOARD and the Blair County Board of Elections, Huntingdon County Board of Elections and Centre County Board of Elections, Defendants.

Civ. A. No. 65-388.

United States District Court W. D. Pennsylvania.

October 29, 1965.

Thomas J. Reinstadtler, Jr., Pittsburgh, Pa., John R. Strawmire, Altoona, Pa., for plaintiffs.

James R. Orr, Pittsburgh, Pa., Benjamin C. Jones, Tyrone, Pa., for defendants.

WEBER, District Judge.

This action is based on a complaint of denial of equal protection of the law under the 14th Amendment of the Constitution of the United States. Jurisdiction of the United States District Court is founded on the provisions of 42 U.S.C. §§ 1983 and 1988, and 28 U.S.C. § 1343 (3). Baker v. Carr, 369 U.S. 186, 82 S. Ct. 691, 7 L.Ed.2d 663 (1962).

There is no question raised here of the application of the provisions of 28 U.S.C. § 2281, requiring a three judge district court, because there is no claim here that the Pennsylvania statute, under which defendants purport to act, offends the Equal Protection Clause of the 14th Amendment. See Ellis v. Mayor and City Council of Baltimore, 234 F. Supp. 945 (D.C.Md.1964); Simon v. Lafayette Parish Police Jury, 226 F. Supp. 301 (W.D.La.1964). In fact the Pennsylvania statute has the requirement of the equal protection clause as to equal voting rights incorporated in its very language.

A suggestion of the defendants in the later stages of this proceeding that the Attorney General of the Commonwealth of Pennsylvania was a necessary party to the action resulted in both parties submitting notice and copies of pleadings and briefs to that officer and he declined their invitation to intervene. We hold that he is not a necessary party to this Federal action.

The Pennsylvania "New School Reorganization Act" of 1963, Aug. 8, P.L. 564, Act No. 299; 24 P.S. § 3-303 provided for the creation of new school districts by the consolidation of former ones. It provided that in school districts of the 2nd, 3rd and 4th class there should be a school board of nine members, elected at large in the new district, except as otherwise provided in the Act.

The exception is contained in Art. III, § 4(b), 24 P.S. § 3-303(b) which provides that the interim operating committee of a new school district may, if it so chooses, develop a plan to divide the school district into three or nine regions.

"The boundaries of the regions shall be fixed and established in such manner that the population of each region shall be as nearly equal as possible and shall be compatible with the boundaries of election districts."

Where a three region plan is adopted, three directors are to be elected from each region. Where a nine region plan is chosen, one director is to be elected from each region.

There is no language in this section that any other factors, such as topography or geography, prior local districts, or other such matters than pure population and existing election districts shall be considered. Other sections of the Act, Art. I, § 3 (24 P.S. § 2-290 et seq.), provide for consideration of factors of topography, pupil population, community characteristics and the like. These apply solely to the composition and boundaries of the new school district to be formed, and have no application to the elective representation within the district. An administrative procedure in the State Board of Education is provided to examine and pass on these factors.

The plan of elective representation selected by the within Defendant Interim School Board provided for nine regions, each to elect one representative as school director. The regions and their populations are as follows:

                    REGION            AREA INCLUDED                            POPULATION
                     I       First and Second Wards, Borough of Tyrone
                                              Blair County                          2257
                    II       Third, Fourth and Fifth Wards, Borough of Tyrone
                                              Blair County                          2876
                   III       Sixth and Seventh Wards, Borough of Tyrone
                                              Blair County                          2467
                    IV       First District, Township of Snyder, Blair County       1720
                     V       Second District, Township of Snyder, Blair
                                              County                                1784
                    VI       Township of Tyrone, Clair County                        659
                   VII       Township of Taylor, Centre County                       508
                  VIII       Township of Warriors Mark and Borough of
                                             Birmingham, Huntingdon County          1169
                    IX       Township of Franklin, Huntingdon County                 410
                

Thus the one representative from Franklin Township, having 410 population, represents seven times the voting power of the representative from the Third, Fourth and Fifth Wards of the Borough of Tyrone. The other disparities are self-evident.

The Pennsylvania statute provides that any such regional representation plan shall be submitted to the Court of Quarter Sessions of the County involved (or to the Court of Quarter Sessions of the County containing the largest portion of land involved in multi-county districts, as here) for approval. This was done here and the approval secured. We have no opinion of that Court before us to inform us of the questions considered, but it appears from an offer of defendants and an agreement by plaintiffs to stipulate to any such facts, that the evidence presented to that Court was based on the criteria of geography, topography and the like, such as are mentioned by the Act in connection with the creation of new school districts, but which are factors unrelated to the complaint of denial of constitutional rights raised here.

Plaintiffs applied to this District Court for relief, but the Court abstained on the grounds that no appeal had been taken to the highest appellate court of the state from the determination of the Court of Quarter Sessions and on the further ground that the Pennsylvania legislature was considering the whole problem of legislative apportionment and should be allowed to work out the solution.

No appeal from the determination of the Court of Quarter Sessions being provided in the Act, the within plaintiff Delozier filed a Petition in the Pennsylvania Supreme Court for Special Allowance of Supersedeas and for Allowance of Appeal in the Nature of Certiorari. This petition was denied without hearing or opinion and the plaintiffs returned to this Court.

Defendants claim that plaintiffs Shope and Hoover did not join in this petition and are thus barred from returning to this Court. We find it unnecessary to pass on this objection, since we find that plaintiff Delozier is properly before this Court in a representative capacity.

Nor do we find plaintiff Delozier barred by the doctrine of England v. Louisiana State Board of Medical Examiners, 375 U.S. 411, 84 S.Ct. 461, 11 L.Ed. 2d 440 (1964) that he freely and without reservation submitted his Federal claim to the state courts, litigated them there, and has had them decided there, and is thus barred from returning to the United States District Court, but should rather appeal his United States constitutional claim to the United States Supreme Court, by petition for certiorari from the State Supreme Court. We believe that this is an untenable argument since it does not appear either that Delozier has litigated his constitutional rights in the state courts, nor that he has had them decided there. In the absence of any opinion from any of the state courts here, how can we know what was decided? And certainly, it cannot be stated that his constitutional rights were litigated or decided by the Pennsylvania Supreme Court, which refused to hear the petition for appeal.

Any person, whose right to vote is impaired, has standing to sue. Gray v. Sanders, 372 U.S. 368 at p. 375, 83 S.Ct. 801, 9 L.Ed.2d 821 (1963).

To come to the merits of this issue, Defendants, while they admit the jurisdiction of this court over the subject matter, argue that this is not a justiciable issue for lack of a substantial Federal question, relying on Tedesco v. Board of Supervisors of Elections, 339 U.S. 940, 70 S.Ct. 797, 94 L.Ed. 1357 (1950). That case involved the apportionment of seats on a City Council according to wards, which were unequal in population. The case was not brought under the Equal Protection Clause. The Supreme Court in a per curiam decision dismissed the appeal from the Louisiana state court "for want of a substantial federal question."

We doubt that Tedesco was ever intended to mean that the Equal Protection Clause did not extend to the rights of voters in municipal elections or that no relief for the deprivation of the constitutional right to equal representation was available in the Federal Courts. Justice Brennan, speaking for the majority in Baker v. Carr, 369 U.S. 186, at p. 234, 82 S.Ct. 691, at p. 719, 7 L.Ed.2d 663 (1962), said of it:

"Indeed, the refusal to award relief in Colegrove (Colegrove v. Green, 328 U.S. 549, 66 S.Ct. 1198, 90 L.Ed. 1432) resulted only from the controlling view of a want of equity. Nor is anything contrary to be found in those per curiams that came after Colegrove.

* * * * * *

(369 U.S. p. 235, 82 S.Ct. p. 720) Tedesco v. Board of Supervisors, 339 U. S. 940 70 S.Ct. 797, indicates solely that no substantial federal question was raised by a state court's refusal to upset the districting of city council seats, especially as it was urged that there was a rational justification for the challenged districting. See La.App. 43 So.2d 514.

* * * * * *

(369 U.S. p. 236, 82 S.Ct. p. 720). Lastly, Colegrove v. Barrett, 330 U. S. 804 67 S.Ct. 973, 91 L.Ed. 1262 * * * is sufficiently explained * * * `The discretionary

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