Lumbard, Chief Judge, and Kaufman and Hays, Circuit Judges. Irving R. Kaufman, Circuit Judge (concurring). Lumbard, Chief Judge (dissenting).
Plaintiff, Morris H. Kramer, appeals from an order entered in the United States District Court for the Eastern District of New York denying his motion to convene a three-judge court under 28 U.S.C. § 2281,*fn1 and dismissing his complaint in an action to declare unconstitutional New York State Education Law McKinney's Consol.Laws, c. 16, § 2012,*fn2 which establishes qualifications for voting at school district meetings, and to enjoin its enforcement. The opinion of the district court is reported at 259 F. Supp. 164 (E.D.N.Y.), petition for writ of mandamus denied sub nom. Davis v. Union Free School District No. 7, 385 U.S. 807, 87 S. Ct. 172, 17 L. Ed. 2d 121 (1966). We hold that plaintiff's claim that the school district voting qualifications deny him equal protection of the laws raises a constitutional question which is not frivolous and which should therefore be heard by a three-judge court.
Plaintiff, a twenty-eight year old bachelor, is a resident of Atlantic Beach, New York, where he has lived with his parents in their private home for the past twenty years. Atlantic Beach is one of the communities included in Union Free School District No. 15.
Plaintiff's complaint alleges that, although he is a citizen of the United States and has voted in federal and state elections since 1959, he has been denied the right to vote in school district elections because he does not possess the special voter qualifications required by Section 2012 of the New York Education Law (set out in full in footnote 2, supra). Plaintiff asks that a three-judge court be convened to declare Section 2012 unconstitutional. The district court ruled against plaintiff, rejecting as insubstantial his contention that by enfranchising taxpayers, parents and certain others, while disenfranchising him, Section 2012 denies him equal protection of the laws in violation of the Fourteenth Amendment to the Federal Constitution.
Plaintiff's appeal is properly before this court. See Utica Mutual Ins. Co. v. Vincent, 375 F.2d 129 (2d Cir. 1967), citing Bell v. Waterfront Comm'n, 279 F.2d 853, 858 (2d Cir. 1960).
The fact that defendants are a local school board and its members rather than state officials does not furnish a basis for the denial of the application to convene a three-judge court, since "this is a case where the state statute that is challenged applies generally to all * * school boards of the type described." Sailors v. Board of Education, 387 U.S. 105, 107, 87 S. Ct. 1549, 18 L. Ed. 2d 650 (1967) (footnote omitted).
The principles to be applied in deciding whether a three-judge court should be convened have been succinctly stated by the Supreme Court:
"When an application for a statutory three-judge court is addressed to a district court, the court's inquiry is appropriately limited to determining whether the constitutional question raised is substantial, whether the complaint at least formally alleges a basis for equitable relief, and whether the case presented otherwise comes within the requirements of the three-judge statute." Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 715, 82 S. Ct. 1294, 1296, 8 L. Ed. 2d 794 (1962); see Schneider v. Rusk, 372 U.S. 224, 83 S. Ct. 621, 9 L. Ed. 2d 695 (1963); Ex parte Poresky, 290 U.S. 30, 31-32, 54 S. Ct. 3, 78 L. Ed. 152 (1933); cf. Bailey v. Patterson, 369 U.S. 31, 33, 82 S. Ct. 549, 7 L. Ed. 2d 512 (1962).
While we express no view as to what should be the ultimate disposition of plaintiff's claim, we hold that he has raised a constitutional claim of sufficient substance to require that a three-judge court be convoked.
It may be true, as the appellees argue, that the state need not permit its citizens to vote on the matter with which Section 2012 is concerned. See Sailors v. Board of Education, supra. However, as the Supreme Court has held, "once the franchise is granted to the electorate, lines may not be drawn which are inconsistent with the Equal Protection Clause of the Fourteenth Amendment." Harper v. Virginia Bd. of Elections, 383 U.S. 663, 665, 86 S. Ct. 1079, 1081, 16 L. Ed. 2d 169 (1966).
Appellees concede that "the Equal Protection Clause of the Fourteenth Amendment restrains the States from fixing voter qualifications which invidiously discriminate" (Harper v. Virginia Bd. of Elections, supra, 383 U.S. at 666, 86 S. Ct. at 1081), but they contend that the classification scheme of Section 2012 rests "on real and not feigned differences," and that the distinctions drawn "have some relevance to the purpose for which the classification is made" and are not wholly arbitrary. See Walters v. St. Louis, 347 U.S. 231, 237, 74 S. Ct. 505, 98 L. Ed. 660 (1954). They argue that the statute is therefore consistent with the equal protection clause, that plaintiff's constitutional claim is frivolous and that a three-judge court need not be convened.
We do not consider frivolous the claim that a voter classification system which disregards plaintiff's interest in issues of public education while recognizing a taxpayer's economic interest constitutes an unreasonable discrimination in violation of the Fourteenth Amendment. In the Harper case the Supreme Court held
"that a State violates the Equal Protection Clause of the Fourteenth Amendment whenever it makes the affluence of the voter or payment of any fee an electoral standard. Voter qualifications have no relation to wealth nor to paying or not paying this or any ...