Welch v. BOARD OF ED. OF BALTIMORE CTY., Civ. No. K-79-1102.

CourtUnited States District Courts. 4th Circuit. United States District Court (Maryland)
Writing for the CourtFRANK A. KAUFMAN
Citation477 F. Supp. 959
PartiesNancy L. WELCH et al. v. BOARD OF EDUCATION OF BALTIMORE COUNTY, etc., et al.
Docket NumberCiv. No. K-79-1102.
Decision Date22 July 1979

Alan Edgar Harris, Baltimore, Md., for plaintiffs.

Leonard S. Jacobson, County Sol. for Baltimore County, Towson, Md., Joseph Kiel, Asst. County Sol., Baltimore, Md., and Arnold Jablon, Asst. County Sol., Towson, Md., for defendants Board of Education of Baltimore County, et al.

Stephen H. Sachs, Atty. Gen., and Ellen M. Heller, Asst. Atty. Gen., Baltimore, Md., for State defendants.

FRANK A. KAUFMAN, District Judge:

Plaintiffs, residents of eight Baltimore County school districts,1 seek in this class action, instituted under 42 U.S.C. §§ 1983 and 1985, punitive and declaratory relief to prevent defendants, Board of Education of Baltimore County, Maryland ("County Board"), State of Maryland Superintendent of Schools David W. Hornbeck, and State of Maryland Board of Education Hearing Examiner Mitchell J. Cooper, from closing or converting to other-than-present educational uses the eight schools.2 A temporary restraining order, issued by this Court on June 14, 1979, expired on June 22, 1979. During a hearing on the record that latter day, plaintiffs' quest for further preliminary relief was denied. Defendants have moved for summary judgment. That motion presents five issues of law: (1) whether this Court should abstain from determining plaintiffs' constitutional claims; (2) whether Md.Educ.Code Ann. §§ 3-108 and 3-109 violate the Equal Protection Clause of the Fourteenth Amendment; (3) whether the actions taken by defendants relating to school closings and conversions violate plaintiffs' substantive or procedural due process rights; (4) whether Md.Educ.Code Ann. § 4-119(a) is void for vagueness; and (5) whether in some way, only vaguely asserted by plaintiffs, the actions sought to be restrained violate any statute or regulation under Maryland law. Because this Court is of the opinion that plaintiffs' constitutional claims are devoid of merit, this Court need not reach the abstention issues, which are tangled and difficult.3 Nor, since plaintiffs' constitutional claims are deemed meritless, will this Court exercise pendent jurisdiction over or reach on the merits any possible state claims which plaintiffs may be raising. Sigmon v. Poe, 564 F.2d 1093, 1096 (4th Cir. 1977) (per curiam).

In the summary judgment context of this case, all facts alleged by plaintiffs are taken as true.4 On that basis, the relevant and material facts are as follows:

1. In 1976, the Superintendent of the County Board expressed the opinion that that Board should close Towson Elementary School.

2. In December, 1976, citizens in the Towson area formed a "Task Force" to support keeping the school open.

3. In the Spring of 1977, a staff committee was appointed by the County Superintendent to study the problem of declining school enrollments.

4. On May 26, 1977, the County Board adopted that staff committee's report which recommended study of the closing, consolidation and conversion of schools in designated cluster areas by a planning staff which would present its findings to a community task force in each cluster area and subsequently report to the County Superintendent.

5. On or about September 15, 1977, the County Board asked community groups to form cluster area task forces to study which school in each area should be closed. Those task forces later recommended closing Parkville, Ruxton, Hampton and Dundalk Elementary Schools.

6. On January 26, 1978, the County Superintendent and his staff recommended that the County Board close the oldest school in certain older areas, namely, Parkville, Towson, Gray Manor and Dundalk Elementary Schools, and convert Ruxton and Eastwood Elementary Schools to special education facilities by June 30, 1978, and that Lutherville and Inverness Elementary Schools be closed by June 30, 1979.

7. On February 13, 1978, the County Superintendent and his staff presented certain information to the County Board. No prior notice of that presentation was given. (Plaintiffs' allegation.)

8. On February 25, 1978, 16 of the 22 delegates representing Baltimore County in the Maryland House of Delegates introduced House Bill 1811. That bill provided a one-year moratorium on any school closure in Baltimore County.

9. On March 9, 1978, the County Superintendent and his staff recommended a one-year delay in the school closing process.

10. The County Board refused the input of the then County Executive and the help of the Director of the Office of Planning and Zoning of Baltimore County when deciding which schools to close. (Plaintiffs' allegation.)

11. In June, 1978, the President of the County Board appointed a Board Committee to study school closings.

12. Every two weeks during the months of June through October, 1978, that Board Committee held meetings in violation of state "Sunshine Laws." (Plaintiffs' allegation.)

13. On November 7, 1978, members of the Maryland House of Delegates and a new Baltimore County Executive were elected.

14. Sometime after November 7, 1978, the County Superintendent submitted to the County Board additional proposals concerning certain cluster areas.

15. On January 8, 1979, one of the herein named plaintiffs, Anderson, attended a meeting in the office of the Baltimore County Executive. Those present included the Chief Executive, two of his assistants, the then Director of Baltimore County Planning and Zoning, the County School Superintendent and the Assistant School Superintendent for Capital Planning.

16. On January 8, 1979, the then Director of Baltimore County Planning and Zoning was invited to speak before the County Board of Education.

17. On January 11, 1979, two of the named plaintiffs in this case, Anderson and Silver, filed suit in the Circuit Court for Baltimore County (Case No. 98629, Equity) against the County Board and the State Superintendent of Schools, asking that Court (1) to declare that the County must have the permission of the State Superintendent of Schools prior to closing any school, (2) to declare that citizens had been denied due process because they had not been allowed verbally to comment and give their opinions or factual data to the County Board at its work sessions, and (3) to restrain further proceedings concerning school closings or conversions until all interested citizens could be afforded the opportunity verbally to present information and/or opinions.

18. On January 11, 1979, Judge Paul E. Alpert, sitting in the Circuit Court for Baltimore County, (1) issued an order declaring that the County Board must seek and obtain the approval of the State Superintendent of Schools prior to closing any school, and (2) denied plaintiffs' quest for injunctive relief. Order, Anderson, et al. v. Board of Education of Baltimore County, et al., Case No. 98629, Equity.

19. On January 11, 1979, Judge Alpert stated in chambers that citizens have a right to speak to the County Board, and issued an "informal advisory opinion." (Alleged by plaintiffs in Count 2 of the complaint. Seemingly, no record of that conference is in evidence.)

20. On January 11, 1979, during one of the regular meetings of the County Board, citizens expressed verbally their views on the school closings and conversions. There was no notice to any citizen in advance that he would be given the opportunity to speak at that meeting. (Plaintiffs' allegation.)

21. At the January 11, 1979 meeting, the County Superintendent and his staff recommended that the County Board close Lutherville, Towson, Parkville, Dundalk, Gray Manor and Inverness Elementary Schools. The recommendation was also made that the County Board convert Ruxton and Eastwood Elementary Schools and Towsontown Junior High School to special education facilities. The County Board accepted the recommendations except that it determined that Dundalk Elementary School should remain open and Merritt Point Elementary School should be closed. Appropriate parliamentary procedures and requests were ignored, and citizens in the Merritt Point area were not afforded advance notice that their school might be affected as a result of that meeting. (Plaintiffs' allegations.)

22. On January 15, 1979, the County Superintendent wrote to the State Superintendent of Education requesting the latter's approval of the County Board's decision to close or convert the eight schools.

23. On January 26, 1979, the County Board and the State Superintendent filed demurrers to the state court complaint of Anderson and Silver.

24. On February 16, 1979, 939 citizens of Baltimore County appealed to the State Board the County Board's decision to close the eight schools.

25. On February 16, 1979, the State Superintendent wrote to the County Superintendent to inform him that he would review the decision of the County Board. The State Superintendent also wrote to certain named and unnamed interested citizens to inform them that they would have the opportunity to submit written information to him up to March 1, 1979, and set forth the standard of review he would use in examining the County Board's proposals. The State Superintendent refused to speak personally with any citizens. (Plaintiffs' allegation.)

26. On February 27, 1979, the County Superintendent wrote to the State Superintendent to explain the County Board's decision and the procedures followed in reaching that decision.

27. On March 1, 1979, plaintiff Anderson filed a petition in the Circuit Court for Baltimore County, Case No. 98629, referred to supra, requesting temporary and permanent injunctive relief to restrain the State Superintendent of Education from acting on the County Superintendent's submission until the State Board of Education could hold a hearing and decide certain issues.

28. On March 1, 1979, Judge Alpert extended the time period in which the State Superintendent would receive written material from citizens...

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    ...by the First Amendment does not include the absolute right to speak in person to officials, Welch v. Board of Educ. of Baltimore Cty., 477 F.Supp. 959 (D.Md.1979). Where written communications are considered by government officials, denial of a hearing does not infringe upon the right to pe......
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