Motion to Affirm — Millis v. High Drive Water District

In the Supreme Court of the United States

OCTOBER TERM, 1977

No. 77-1570

WILLIAM CRAIG MILLIS and R. STEVE ACERS,

Appellants,

vs.

HIGH DRIVE WATER DISTRICT, a public corporation;

BOARD OF COUNTY COMMISSIONERS OF LARIMER

COUNTY, COLORADO; ROBERT E. MOORE, and

RICHARD M. GREEN,

Appeliees.

MOTION TO AFFIRM

Roger E. Clark

Suite 9, First National

Bank Building

Post Office Box 701

Loveland, Colorado 80537

Attorney for Appellees

TT elected POR ET

QUESTION PRESENTED...

STATEMENT OF THE CASE

FRI vnc ecnceceeccccecescscens

ERIE SSSR aaa Snee eae Oe Pee

APPENDIX A: CONSTITUTIONAL PROVI-

SIONS AND STATUTES INVOLVED ....

Index of Authorities

Cases

Associated Enterprises, Inc. v. Toltec Watershed

Improvement District, 410 U.S. 743 (1973) (per

RETIREE IY RENE os SR Ee ly SRC pc ca mame |

Carrington v. Rash, 380 U.S. 89 (1965)

Cipriano v. City of Houma, 395 U.S. 701 (1969)

City of Phoenix v. Kolodziejski, 399 U.S. 204

Dunn v. Blumstein, 405 U.S. 330 (1972)

Evans v. Cornman, 398 U.S. 419 (1970) .

Hill v. Stone, 421 U.S. 289 (1975)...

Kollar v. City of Tucson, 319 F. Supp. 482 D.

Ariz. (1970), aff'd mem. 402 U.S. 967 (1971)

Kramer v. Union Free School District, 395 US.

oe Gee

Lassiter v. Northampton County Board of Elec-

tions, 360 U.S. 45 (1959) ..... Nats

Oregon v. Mitchell, 400 U.S. 112 (1970)

Pope v. Williams, 193 U.S. 621 (1904)

Salyer Land Company v. Tulare Lake Basin

Water Storage District, 410 U.S. 719 (1973)

mm ON NH

3, 4, 5, 6,7

4, 10

Snowden v. Hughes, 321 U.S. 1 (1944)... 3

Spahos v. Mayor and Councilmen of Town of

Savannah Beach, Tybee Island, Georgia, 207 F.

Supp. 688 (S.D. Ga. 1962), aff'd per curiam, 371

Cr fe eS ee Scoala, )

Constitutional Amendments and Statutes

Tenth Amendment to the Constitution of the ~

ETE, SiS 4,7

Fourteenth Amendment to the Constitution of

ES NE SE 2, 3,4, 8

ae 2

hf SL en 2

Rule

Rule 16 (1) (c), Rules of the Supreme Court of the

EE CSN 1,11

In the Supreme Court of the United States

OCTOBER TERM, 1977

No. 77-1570

WILLIAM CRAIG MILLIS and R. STEVE ACERS,

Appellants,

VS.

HIGH DRIVE WATER DISTRICT, a public corporation;

BOARD OF COUNTY COMMISSIONERS OF LARIMER

COUNTY, COLORADO; ROBERT E. MOORE, and

RICHARD M. GREEN,

Appellees.

MOTION TO AFFIRM

INTRODUCTION

For the reasons hereinafter set forth, Appellees submit

that the decision of the District Court herein should be

affirmed by the Court. The result reached herein by the

three-judge panel was clearly indicated by previous deci-

sions of this Court. The questions on which the decision of

the cause depends are thus so unsubstantial as not to need any

further argument and briefing before this Court. The Dis-

trict Court’s judgment should therefore be affirmed pur-

suant to the provisions of Rule 16 (1) (c) of the Rules of the

Supreme Court.

2

The Jurisdictional Statement filed by Appellants herein

characterizes this case as a novel one “involving the disen-

franchisement of a large percentage of property owners in a

taxing district” which “has never been before the Court.” The

matter is novel only because it involves an assertion by

property owners who are residents of one state of a constitu-

tional right to vote in local matters in another state. This

assertion of such a “right” is, indeed, novel because it is

completely inconsistent with prior holdings of this Court.

QUESTION PRESENTED

The sole question before the Court herein is the narrow

issue decided by the three-judge Court—Do those Colorado

Statutes establishing qualifications for electors in water

district elections [C.R.S. 1973, §32-1-101 (1976 Cum. Supp.)

and 32-1-802 (3)] violate the Fourteenth Amendment to the

United States Constitution by providing that such electors

must be qualified to vote in general elections in Colorado?”

The effect of this requirement is to exclude Colorado

property owners not residents of Colorado from the group of

qualified electors.

STATEMENT OF THE CASE

For purposes of this Motion, the background of this case

is adequately presented in the lower court's Memorandum

‘” Other issues were presented by Appellants to the District Court

including alleged violations of due process and the privileges and

immunities clauses of the Fourteentt \mendment. These additional

issues were noted in Appellants’ No'ice of Appeal. Appellants’

Jurisdictional Statement, Appendix C dowever, Appellants now limit

themselves to the equal protection question decided by the District

Court and apparently do not appeal any other questions herein.

Appellants’ Jurisdictional Statement, Pages 6-7.

3

Opinion and Order at Appendix A, Pages 19-23 of Appel-

lants’ Jurisdictional Statement. To repeat that background

material here would be unnecessarily repetitious.

The three-judge District Court held, of course, that the

relevant statutory provisions were not violative of the equal

protection of the laws guaranteed by the Fourteenth

Amendment.

ARGUMENT

I. Previous decisions of this Court have clearly estab-

lished the power of the states to restrict the franchise to bona

fide state residents.

As noted by the District Court, there is no constitutional

right to vote in state elections. Pope v. Williams, 193 U.S. 621

(1904); Snowden v. Hughes, 321 U.S. 1 (1944). The sole issue

herein is thus whether the distinction between Colorado

resident property owners and property owners who reside in

other states is permissible.

Appellants have implied that the decisions of this Court

in durational residency and other voter qualification cases

are not applicable here because “this appeal does not involve

the right to vote in general elections,” Appellants’ Jurisdic-

tional Statement, Page 13. This is an understandable

attempt to distinguish cases such as Pope v. Williams, supra,

Carrington v. Rash, 380 U.S. 89 (1965) and Kollar v. City of

Tucson, 319 F. Supp. 482 (D. Ariz., 1970), aff'd mem. 402 US.

967 (1971), which recite the well-established interest of the

states in excluding non-residents from their elections. As

discussed more fully below, those decisions are certainly not

helpful to Appellants’ position herein. However, any such

attempt to distinguish the water district elections as “special

purpose” rather than “general” is not helpful to Appellants’

case anyway. In a “special purpose” district election, the

4

rational basis test clearly applies and the state needs only a

minimal interest to justify excluding a class from the

franchise. Salyer Land Company v. Tulare Lake Basin Water

Storage District, 410 U.S. 719 (1973); and Associated

Enterprises, Inc. v. Toltec Watershed Improvement District,

410 U.S. 743 (1973) (per curiam).

The right of the states to restrict the franchise to state

residents is a fundamental exercise of the powers reserved to

the states under the Tenth Amendment to the United States

Constitution. As the limitations of this Court’s voting rights

decisions make clear, the Fourteenth Amendment qualified

the Tenth Amendment only to the extent of prohibiting

invidious discrimination between state residents. In this

case, the power reserved to the state by the Tenth Amend-

ment, is the right to maintain certain essential controls over

their own political processes. At the very least, the Tenth

Amendment assures to the states a right of meaningful

existence as political entities, which right would be violated

by federally mandated intrusion of non-residents into state

political processes.

Pope v. Williams, supra, involved state laws which

allowed voter registration only after a declaration of intent

to become a state resident. In holding that this requirement

did not violate the Equal Protection Clause of the Four-

teenth Amendment, the Court stated:

“,..the privilege to vote in a state is within the

jurisdiction of the state itself, to be exercised as the state

may direct, and upon such terms as to it may seem

proper...” 193 U.S. at 632.

It should be noted that the District Court did find the High Drive

Water District (sometimes hereinafter referred to as the “District”) to be

“a quasi-municipal corporation, with municipal powers for accomplish-

ing the limited municipal purpose of providing water,” citing C.R.S. 1973

§31-12-103 (10) (1975 Cum. Supp.). Appellants’ Jurisdictional Statement,

Appendix A, Page 20.

5

The approval of durational residency requirements in

Pope has, of course, been overruled by more recent decisions

of this Court, including Dunn v. Blumstein, 405 U.S. 350

(1972). Nevertheless, those decisions in which the Supreme

Court has considered restrictions on the franchise over the

last twenty (20) years have, virtually without exception,

been couched in such terms as to leave no doubt as to the

power of a state to limit the franchise to its residents. This

has been true even in decisions striking down state

restrictions on the franchise.

In Lassiter v. Northampton County Board of Elections,

360 U.S. 45 (1959), the Court affirmed the power of a state to

impose literacy tests on prospective voters and in its opinion

stated:

“There is wide scope for exercise of its [the state’s]

jurisdiction. Residence requirements, age, previous

criminal record...are obvious examples indicating

factors which a state may take into consideration in

determining the qualifications of voters.” 360 U.S. at 51,

(emphasis added).

In Carrington v. Rash, supra, the Court held unconstitu-

tional a Texas statute which created an unrebuttable

presumption that members of Armed Forces living in Texas

were not state residents. The Court nevertheless felt

constrained to state that:

“Texas has unquestioned power to impose reasonable

residence restrictions on the availability of the ballot.

{Citing Pope, Lassiter. |... We stress—and this is a theme

to be reiterated—that Texas has the right to require

that all military personnel enrolled to vote be bona fide

residents of the community. But if they are in fact

residents...they, as all other qualified residents have a

6

right to an equal opportunity for political representa-

tion.” 380 U.S. at 91.

In Evans v. Cornman, 398 U.S. 419 (1970), the Court held

that residents of a federal enclave in Maryland were

Maryland residents and could not be denied the franchise for

that reason. Again, however, the Court was careful to note

that:

“Maryland may, of course, require that ‘all applicants for

the vote actually fulfill the requirements of bona fide

residence’.” (Citing Carrington.) 398 U.S. at 421.

In Kollar v. City of Tucson, supra, this Court affirmed the

finding of a three-judge district court that the state had a

compelling interest in a requirement which limited the

franchise in municipal revenue bond elections to municipal

residents.

As previously noted, in Dunn v. Blumstein, supra, this

Court struck down durational residency requirements. The

Court again qualified its opinion in saying:

“We emphasize again the difference between bona fide

residence requirements and durational residence

requirements. We have in the past noted approvingly

that the states have the power to require that voters be

bona fide residents of the relevant political subdivision.

[Citing Evans, Kramer, Carrington, and Pope.}...An

appropriately defined and uniformly applied require-

ment of bona fide residence may be necessary to preserve

the basic conception of a political community, and

therefore could withstand close constitutional scrutiny.

[Citing Pope, inter alia.|...{A] state does have an

interest in limiting the franchise to bona fide members

of the community.” 405 U.S. at 343-4, 354; (emphasis

added).

In a similar fashion, the decisions of this Court in those

cases more directly concerned with voting rights in local

7

elections have been so phrased as to leave no doubt as to the

continuing power of the states to impose bona fide residency

requirements, Kramer v. Union Free School District, 395

U.S. 621 (1969); City of Phoenix v. Kolodziejski, 399 U.S. 204

(1970); Cipriano v. City of Houma, 395 U.S. 701 (1969). In

each of these decisions the Court framed the issue before it as

involving the denial of the franchise to those otherwise

qualified by age, residence, and citizenship. Likewise, in

Hill v. Stone, 421 U.S. 289, (1975), the Court stated:

“In Kramer v. Union Free School District No. 15, supra,

we held that in an election of general interest, restric-

tions on the franchise other than residence, age, and

citizenship, must promote a compelling state interest in

order to survive constitutional attack...The basic

principle expressed in these cases [Kramer, Cipriano,

and Phoenix |is that as long as the election in question is

not one of special interest, any classification restricting

the franchise on grounds other than residence, age, and

citizenship cannot stand unless the district or states can

demonstrate that the classification serves a compelling

state interest.” 421 U.S. at 295, (emphasis added).

The lengths to which this Court has gone to preserve the

Tenth Amendment powers of the states with regard to

restrictions on the franchise are, thus, clearly evident

throughout these recent voting rights decisions. The

challenge by Appellants to the Colorado Statutes in question

here flies in the face of the language of those decisions and

basic tenets of federalism as well. As Mr. Justice Black, in

announcing the judgments of the Court in Oregon v. Mitchell,

400 U.S. 112 at 125, (1970), states:

“No function is more essential to the separate and

independent existence of the States and their govern-

ments than the power to determine within the limits of

the Constitution the qualifications of their own voters

for state, county, and municipal offices. [Citing

Pope.|...It is obvious that the whole Constitution

8

reserves to the States the power to set voter qualifica-

tions in state and local elections, except to the limited

extent that the people through constitutional amend-

ments have specifically narrowed the powers of the

States... [T jhe Equal Protection Clause of the Four-

teenth Amendment was never intended to destroy the

States’ power to govern themselves...”.

Il. There is a rational basis for restriction of the

franchise in water district elections to state residents.

The District Court correctly determined that the

“rational relationship” standard of equal protection scrutiny

was applicable in this case. As that Court's opinion stated,

"[t}he classification of property owners by state residence is

neither invidious or suspect.” Appellants’ Jurisdictional

Statement, Appendix A at Page 24."

Again, in the language of the District Court,

“The Colorado General Assembly used a combination of

interests to establish the requirements for qualification

as an elector of a water district. All such electors must

have sufficient residence in the State of Colorado to be

able to participate in general elections in the state.

‘ However, it should also be noted that the long line of decisions

discussed above approving bona fide residence requirements certainly

would lead to the conclusion that such requirements would satisfy the

compelling state interest test as well. That this is so clearly indicated by

the Court's affirmance of the three-judge Court in Kollar, supra, where

the lower court at 319 F. Supp. 485 stated as follows:

“The necessity of a boundary restriction in municipal elections,

rather than some other less definitive qualification, the generally

greater stake of residents in local elections, and the necessity to

define the electorate in advance of election date and properly to

administer the elections are sufficiently compelling interests, in

this instance, for Arizona's limitation on an absolute right to vote.

To allow the municipal franchise to all persons with a pecuniary

interest would not permit of a manageable standard or adequately

define a cohesive interested group of electors.”

eet a a te ca

9

Additionally, each elector must have a more particular

or localized interest in the service area of the district.

That requirement can be met either by residence in that

area for 32 days or by the ownership of real or personal

property within the district...” Appellants’ Jurisdic-

tional Statement, Appendix A at Page 23.

In other words, what the state has done is to enfranchise two

classes, district residents, and a second, property owners

who are state residents but not residents of the district. As

set forth in the discussion above, the State clearly has the

constitutional power to define its electorate in terms of bona

fide residence. The state has then expanded that residence

requirement to include an additional class of state-resident

property owners. Such an expansion has been approved by

previous ruling of this Court. In Spahos v. Mayor and

Councilmen of Town of Savannah Beach, Tybee Island,

Georgia, 207 F. Supp. 688 (S.D. Ga. 1962), aff'd per curiam,

371 U.S. 206 (1962), this Court affirmed the decision of the

District Court upholding a statute permitting non-resident

property owners to vote in municipal elections provided they

were residents of the county in which the municipality was

located. The attack on the statute in that case was by citizens

of the municipality who alleged their vote had been diluted.

Thus, as stated by the lower court, the narrow issue becomes

simply whether there is a rational relationship in “the

classification of landowners according to Colorado resi-

dency,” i.e., whether there is a valid interest in limiting the

expansion of the class of property owners based on state

residence. Appellants’ Jurisdictional Statement, Appendix

A at Page 25.

Several possible rational bases for the subject statutes

are evident. As mentioned by the District Court, they

include “convenience in identifying voters, protection

against fraud, the inextricable relationship between state

and local financing and voter awareness of local issues.” The

10

interest most persuasive to the lower court was that of a

common interest of state residents “in the matter of urban

development and the protection of the environment” and

“the allocation of a vital natural resource which affects all in

the state.” Appellants’ Jurisdictional Statement, Appendix

A at Page 25.

Appellants, at Pages 14 and 15 of their Jurisdictional

Statement, make much. of the fact that some out-of-state

property owners might actually live closer to the District

than some Colorado property owners not residing in the

District and, therefore, would presumably be as interested in

urban development and resource allocation. However, as

this Court noted in Dunn v. Blumstein, supra, at Page 1012,

“classifications are always imprecise.” All we are concerned

with here is whether there is any rational basis for the

classification. As the District Court found, the particular

interest of Colorado residents as a class in urban develop-

ment and the allocation of a vital resource, water, is not

shared by the residents of other states as a class. “It is

therefore, a rational relationship to a legitimate state

interest which is sufficient to support the statutory dis-

crimination which excludes the plaintiffs from voting.” Appel-

lants’ Jurisdictional Statement, Appendix A at Page 25.

What Appellants argue in this matter, in essence, is that

because they are in some way affected by the District’s

activities, they have some constitutional right to participate

in District elections, regardless of their state of residence.

However, as Justice Rehnquist stated in Salyer Land

Company v. Tulare Lake Basin Water Storage District, 410

U.S. 719 (1973), there is no such constitutional requirement:

“No doubt residents within the district may be affected

by its activities. But this argument proves too much.

Since assessments imposed by the district become a cost

11

of doing business for those who farm within it, and that

cost must ultimately be passed along to the consumers of

the produce, food shoppers in faraway metropolitan

areas are to some extent ‘affected’ by the activities of the

district. Constitutional adjudication cannot rest on any

such ‘house that Jack built’ foundation, however.” 410

U.S. at 731-32.

CONCLUSION

Appellees submit, for the foregoing reasons, that the

questions upon which a decision in this matter depend are

not so substantial as to require full argument and briefing

before this Court. Rather, the decision of the three-judge

District Court was a well-reasoned analysis of this cause

which is entirely consistent with and foreshadowed by

numerous decisions of this Court. Appellees therefore ask

that the decision of the District Court be affirmed pursuant

to the provisions of Rule 16 (1) (c) of the Rules of the Supreme

Court.

Respectfully submitted,

ROGER E. CLARK

Suite 9, First National Bank Building

Post Office Box 701

Loveland, Colorado 80537

Telephone: 303-667-1023

Attorney for Appellees

Admission Date: April 17, 1978

12

APPENDIX A

CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED

United States Constitution

Amendment X

“The powers not delegated to the United States by the

Constitution, nor prohibited by it to the States, are

reserved to the States respectively, or to the people.”

Amendment XIV, Section 1

“All persons born or naturalized in the United States,

are subject to the jurisdiction thereof, are citizens of the

United States and of the State wherein they reside. No

State shall make er enforce any law which shall abridge

the privileges or immunities of citizens of the United

States; nor shall any State deprive any person of life,

liberty, or property, without due process of law; nor deny

to any person within its jurisdiction the equal protection

of the laws.”

Colorado Revised Statutes, 1973

§ 32-1-101 (1)

“(a) ‘Elector’ of a district means a person who, at the

designated time or event, is qualified to vote in

general elections in this state and:

(I) Who has been a resident of the district or the

area to be included in the district for not less

than thirty-two days; or

(II) Who, or whose spouse, owns taxable real or

personal property within the district or the

area to be included in the district, whether said

person resides within the district or not.”

13

“(b) “Taxpay.ng elector’ of a district means an elector of

a district who, or whose spouse, owns taxable real or

personal property within the district or the area to

be included in the district, whether said person

resides within the district or not.”

§ 32-1-802 (3)

“(a) An ‘elector’ of a district, within the meaning of this

part 8, is a person who, at the designated time or

event, is qualified to vote in general elections in this

state and:

(I) Who has been a resident of the district or the

area to be included in the district for not less

than thirty-two days; or

(II) Who or whose spouse owns taxable real per-

sonal property within the district or the area to

be included in the district, whether said person

resides within the district or not.

“(b) A person who is obligated to pay general taxes

under a contract to purchase real property within

the district shall be considered an owner within the

meaning of this subsection (3).

|

ET Se EE rr Mg en