Fuller v. Volk, Civ. No. 847-63.

• Court: United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
• Citation: 250 F. Supp. 81
• Docket Number: Civ. No. 847-63.
• Parties: Gertrude P. FULLER et al., Plaintiffs, v. Austin A. VOLK et al., constituting the Board of School Estimate of the City of Englewood, the City of Englewood, and John H. Perry, et al., constituting the Board of Education of the City of Englewood, Defendants. Jerry Volpe et al., Intervening Plaintiffs, and Frederick M. Raubinger, Commissioner of Education of the State of New Jersey, and Kenneth Ancrum et al., and Deborah Spruill, Intervening Defendants.
• Decision Date: 03 February 1966

250 F. Supp. 81

Gertrude P. FULLER et al., Plaintiffs,
v.
Austin A. VOLK et al., constituting the Board of School Estimate of the City of Englewood, the City of Englewood, and John H. Perry, et al., constituting the Board of Education of the City of Englewood, Defendants.
Jerry Volpe et al., Intervening Plaintiffs, and
Frederick M. Raubinger, Commissioner of Education of the State of New Jersey, and
Kenneth Ancrum et al., and
Deborah Spruill, Intervening Defendants.

Civ. No. 847-63.

United States District Court D. New Jersey.

February 3, 1966.

250 F. Supp. 82

Breslin & Breslin, by John J. Breslin, Jr., Hackensack, N. J., for defendants Austin A. Volk and others, constituting Board of School Estimate of City of Englewood, and City of Englewood.

Sidney Dincin, Englewood, N. J., for defendants John H. Perry and others, constituting Board of Education of City of Englewood.

Major & Major, by James A. Major, Hackensack, N. J., for intervening plaintiffs Jerry Volpe and others.

Arthur J. Sills, Atty. Gen. of New Jersey, by Joseph A. Hoffman, Deputy Atty. Gen., for intervening defendant Frederick M. Raubinger.

Barbara A. Morris, New York City, for intervening defendants Kenneth Ancrum and others.

Morton Stavis, Newark, N. J., for intervening defendant Deborah Spruill.

AUGELLI, District Judge:

This matter is before the Court on remand from the Court of Appeals. See 351 F.2d 323 (1965).

In Fuller v. Volk, D.C., 230 F.Supp. 25, this Court upheld the validity of the action taken by the Board of Education of the City of Englewood pursuant to a plan that had been promulgated by the Board and approved by the Commissioner of Education of the State of New Jersey. The plan provided for the establishment of a city-wide, sixth-grade school (Engle Street School), and required attendance thereat of all sixth grade pupils in the Englewood public schools.

The constitutionality of the plan, in its application and operation, was attacked by two groups of plaintiffs, the Fullers and the Volpes. The Fuller group initiated the action by complaint filed on October 11, 1963. The Volpe group intervened on November 15, 1963. The Fuller group claimed standing to sue as taxpayers to enjoin the expenditure of public funds for an unconstitutional purpose. The Volpe group claimed standing to sue as parents of children in the Englewood public schools. For the reasons stated in the opinion of the Court of Appeals, the complaint filed in this Court by the Fuller group will be dismissed for lack of jurisdiction. With the Fullers eliminated, consideration will now be given to the mandate of the Court of Appeals as it relates to the Volpe group.

This Court is satisfied that the Volpe intervenors, independent of the Fullers, alleged a separate basis for jurisdiction with respect to their cause of action. But the open question is whether any members of this group possess the requisite locus standi to maintain the action. When the matter was before this Court, no proof was adduced that any member of the Volpe group had any child or children in the Engle Street School. This lack of proof was noted by the Court of Appeals, and one of the directions of the mandate is for this Court to ascertain the facts in this regard.

Other matters to be considered by this Court on the remand are the following: assuming the existence of jurisdiction and standing, does the doctrine of exhaustion

250 F. Supp. 83

of state administrative remedies have any relevancy in light of Booker v. Board of Education, Plainfield, 45 N.J. 161, 212 A.2d 1 (1965); also, should this Court apply to the facts of this case, the doctrine of federal abstention in accordance with the principles laid down in Harman v. Forssenius, 380 U.S. 528, 85 S.Ct. 1177, 14 L.Ed.2d 50 (1965); and, finally, has the original decision of this Court on the constitutional issue, been materially altered by the decision of the New Jersey Supreme Court in Booker. Upon the coming down of the mandate, this Court fixed January 7, 1966, as the date for hearing argument on the issues posed by the Court of Appeals, and...