Egan v. WISCONSIN STATE BOARD OF VOCATIONAL, T. & A. ED.

• Decision Date: 13 October 1971
• Docket Number: Civ. A. No. 70-C-430.
• Citation: 332 F. Supp. 964
• Parties: James EGAN, as an individual and on behalf of all others similarly situated, Plaintiffs, v. WISCONSIN STATE BOARD OF VOCATIONAL, TECHNICAL AND ADULT EDUCATION, et al., Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

332 F. Supp. 964

James EGAN, as an individual and on behalf of all others similarly situated, Plaintiffs, v. WISCONSIN STATE BOARD OF VOCATIONAL, TECHNICAL AND ADULT EDUCATION, et al., Defendants.

Civ. A. No. 70-C-430.

United States District Court, E. D. Wisconsin.

October 13, 1971.

Michael J. Spector, Milwaukee, Wis., for plaintiffs.

John William Calhoun, Asst. Atty. Gen., Madison, Wis., for Wisconsin State Board of Vocational, Technical and Adult Education and State Board Additional Defendants.

James Urdan, Milwaukee, Wis., for Area 9 Board of Vocational, Technical and Adult Education and District 9 Additional Individual Defendants.

Before DUFFY, Senior Circuit Judge, REYNOLDS, Chief District Judge, and TEHAN, Senior District Judge.

OPINION AND ORDER

REYNOLDS, Chief District Judge.

This is an action to enjoin § 38.155 of the Wisconsin Statutes establishing and empowering vocational, technical, and adult education districts within Wisconsin. In addition, a declaratory judgment of unconstitutionality is sought. A cause of action is alleged under Title 42 U.S.C. § 1983, and jurisdiction of this court is established under Title 28 U.S. C. §§ 1343 and 2201. Pursuant to Title 28 U.S.C. §§ 2281 and 2284, a three-judge district court has been convened. The facts of this case have been stipulated and issues of law briefed and argued before us. We are agreed that judgment should be granted to the defendants.

The named plaintiff is resident elector and property owner of Ozaukee County, Wisconsin. He is representative of a class composed of residents of that part of the four Wisconsin counties contained in the Area 9 Board of Vocational, Technical and Adult Education (hereinafter "Area 9 Board"). The Area 9 Board, the Wisconsin State Board of Vocational, Technical and Adult Education (hereinafter "State Board"), and the individual members of those two boards constitute the defendants.

Section 38.155 of the Wisconsin Statutes, the subject of this lawsuit, provided and provides as follows: Between 1965 and 1970 a state master plan of vocational districts was to be prepared. Prior to July 1, 1970, any county, municipality, or school district operating a high school could apply to the State Board to form or become part of an area vocational, technical, and adult education district. By July 1, 1970, all areas of the state were to be included in some vocational school districts. If any areas failed to join a district, the State Board was to order such areas into a district. In other words, the State Board was to draw up a master plan of vocational districts and then implement it, first through so-called voluntary application and then by mandate.

The statute at issue further empowers each area vocational board to levy a property tax of no more than two mills in order to finance operations and improvements. The area boards may also issue bonds and notes and levy a tax to pay both the principal and interest. The tax levied to cover bond obligation is not to be considered for purposes of the two mill limit on general taxing power. In addition to these fiscal powers, each area board is granted broad administrative discretion.

Finally, the statute directs that each area board shall consist of seven members. Six of the seven are to be appointed by either (depending on the circumstances) the various chairmen of the county boards or chairmen of the school districts or the municipal executives comprising the vocational district. Insofar as possible in electing the six board members, representation is to be proportionate to the population of the various units which make up the district. The six board members appointed shall in turn select a seventh member. It is further provided that upon setting up the initial board, two members each shall be appointed for two-year, four-year, and six-year terms. Thereafter terms shall be for six years.

Area 9 was created on July 1, 1969, upon the applications from various local government units in Milwaukee County. In 1970 various public school districts from Ozaukee County petitioned for inclusion in Area 9. These districts were apparently part of vocational Area 11 at the time, and Area 11 opposed the transfer. Approval, however, for the transfer was granted, and on July 1, 1970, the petitioning districts from Ozaukee County, along with various districts of Milwaukee County previously not part of any vocational area, became part of Area 9.

When Area 9 was initially created, board members were appointed pursuant to § 38.155 for terms to end in 1971, 1973, and 1975. Three of these appointed members resided in the City of Milwaukee, two resided in other parts of Milwaukee County, and one resided in Ozaukee County. When the various Ozaukee and Milwaukee County districts were added to Area 9 on July 1, 1970, no changes or additions were made with regard to the Area 9 Board membership. On June 16, 1971, the various presidents of the public school districts comprising Area 9 met to elect two members to the Area 9 Board in anticipation of the expiration of the terms of office of two of the Area 9 Board. At the election meeting the participants were informed by a representative of the State Board that:

"A. Upon the creation of Area 9 in 1969, the Presidents of the School Districts comprising the original District allocated Board seats by population * * *. This allocation took account of the fact that the District would be expanded to include all high school districts in Milwaukee County and most high school districts in Ozaukee County.

"B. The present allocation of the Board * * * is (a) three seats to the City of Milwaukee, (b) two seats to those areas of Milwaukee County not included within the City of Milwaukee and (c) one seat to those areas of Ozaukee County included within Area 9.

"C. As the two Board members whose terms of office end on June 30, 1971, both reside in the City of Milwaukee, the persons to be appointed to such seats must also reside within the City of Milwaukee." (Order entered June 25, 1971.)

Apparently after some dispute, two individuals residing within the City of Milwaukee were nominated and by divided vote elected to the Area 9 Board.

On June 30, 1970, various municipalities within Area 9 commenced an action in the Wisconsin Circuit Court of Milwaukee County challenging § 38.155 and naming Area 9 as a defendant. On July 30, 1970, the instant action was commenced in this court. On October 1 and December 28, 1970, when it was discovered that the municipalities were not proper parties in the state action, individual parties (not including the named plaintiff in this case) intervened in the state court suit on behalf of themselves and all other taxpayers and property owners similarly situated. On January 6, 1971, the state circuit court sustained a demurrer to the complaint, and the plaintiffs in the state action appealed. On June 2, 1971, the Wisconsin Supreme Court affirmed the demurrer holding (1) that the municipalities which originally commenced the action on June 30, 1970, were not proper parties but the individuals which intervened on October 1 and December 28, 1970, were; (2) that Area 9 was within the scope of § 38.155 and § 38.155 was in accordance with the Wisconsin Constitution; and (3) that § 38.155 was in keeping with the Constitution of the United States. West Milwaukee v. Area Board, 51 Wis.2d 356, 187 N.W.2d 387 (1971). On June 25, 1971, oral arguments were made before this court.

RES JUDICATA

The defendants in the instant action initially argued that this court abstain until the Supreme Court of Wisconsin passed upon § 38.155. Plaintiff in his reply brief states that "In good faith, and consistent with the principle of abstention as recently interpreted sic by the Supreme Court, he the plaintiff voluntarily agreed to delay oral argument to this panel until after the Wisconsin Supreme Court had decided the West Milwaukee case." In any case the decision of the Wisconsin Supreme Court having come down, the defendants now interpose a defense of res judicata, alleging that under Wisconsin law the plaintiff herein is bound as part of the class represented by the named plaintiffs in the Wisconsin suit.

In England v. Louisiana State Bd. of Medical Examiners, 375 U.S. 411, 415, 84 S.Ct. 461, 464, 11 L.Ed.2d 440 (1964), the Supreme Court found that:

"There are fundamental objections to any conclusion that a litigant who has properly invoked the jurisdiction of a Federal District Court to consider federal constitutional claims can be compelled, without his consent and through no fault of his own, to accept instead a state court's determination of those claims. * * *"

In that case the Supreme Court recognized that the post Civil War civil rights statutes enunciating a congressional policy that the national citizenry have a right to seek the aid of the federal judiciary in asserting their civil rights overcomes at least to some extent the policy of giving res judicata effect to state judgments in federal courts. Plaintiff's present plight is virtually identical in substance with the precise holding of England that a plaintiff who first applies to a federal court but is then compelled to litigate his claim in the state courts can by "reserving" his federal claims in the state court proceedings avoid any res judicata bars upon his return to the federal domain. But in any case it is implicit in England that that holding is to be enforced equitably. In England the court denied application of defendant's plea of res judicata despite the fact that the plaintiff had not "reserved" his federal claims in the state court litigation. In Sweet Briar Institute v. Button, 387 U.S. 423, 87 S.Ct. 1710, 18 L.Ed.2d 865 (1967), the Supreme Court on the basis of England reversed a lower court application of res judicata when "The State court decision, in effect upholding the racial restriction, was announced almost a year before the Federal suit was filed." D.C., 280 F....