Fuller v. Volk
| Decision Date | 03 February 1966 |
| Docket Number | Civ. No. 847-63. |
| Citation | 250 F. Supp. 81 |
| 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. |
| Court | U.S. District Court — District of New Jersey |
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.
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 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 counsel were directed to brief the questions involved, and to advise the Court as to the need for additional proofs.
At the hearing, the only testimony adduced related to the issue of standing. In this connection it was stipulated that among the members of the Volpe group, Edward Robbins and Gloria Robbins, his wife, had one child, Andrea Robbins, in the fifth grade in the Roosevelt School, and Lloyd Pollard and Blanche Pollard, his wife, had one child, Blanche Pollard, in the fifth grade in the Quarles School. None of the other members of the Volpe group have any child or children in grades one through six, inclusive, in any of the Englewood public schools. On this aspect of the case the Court of Appeals said,
All parties at the hearing of January 7, urged this Court to accord standing to the parents of the Robbins and Pollard children. It may fairly be inferred from the language used in the Court of Appeals opinion, that the parents of children in the fifth grade in the Englewood public schools would have standing to maintain the action. These parents of fifth-graders, whose children will soon be required to attend the Engle Street School, should be permitted to challenge now, in advance of the happening of that event, the right of the Englewood Board of Education to compel attendance at that school. To hold otherwise would require that locus standi be denied to a parent until such time as he has a child actually in the sixth grade and that, in order to avoid mootness, the child remain there until the litigation has run its course. This Court does not believe such an absurd situation was ever intended. Under the circumstances, it is concluded that the parents of the Robbins and Pollard children have standing to sue. See Rule 23(a) of the Federal Rules of Civil Procedure; 39 Am.Jur., Parties, § 52. The action will be dismissed as to all other members of the Volpe group because of mootness.
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...individual interests which are being represented by defendant. See also Fuller v. Volk, 351 F.2d 323 (3 Cir. 1965), rehearing 250 F.Supp. 81 (D.N.J.1966); Ahto v. Weaver, 39 N.J. 418, 189 A.2d 27 (1963). There is additional basis for concluding that plaintiff labor union also lacks standing......
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...action the intervenors were allowed to continue in court upon a showing that their children were directly affected. See Fuller v. Volk, D.C., 250 F.Supp. 81. This case is factually distinguishable from the one at bar because the specific holding in Fuller v. Volk, 3 Cir., 351 F.2d 323, rela......
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