motion to affirm — Ball v. James

In The

Supreme Court of the United States

October Term, 1979

No. 79-1740

GERMAIN H. BALL, et al.,

Appellants,

VS.

ROLAND W. JAMES, et al.,

Appellees.

On Appeal from the United States Court of Appeals

for the Ninth Circuit

MOTION TO AFFIRM

BRUCE MEYERSON

AMY J. GITTLER

Arizona Center for Law

in the Public Interest

P.O. Box 2783

Phoenix, Arizona 85002

Tel. (602) 252-4904

Attorneys for Appellees

RSS MIRE. I ee

i

TABLE OF CONTENTS

Page

oops inh eee, LO LENT DRE CR ONE 1

OLE I eS ONCE 1

so apcpup cas rsccbece. cola, ee ET ROE OEE 1

I. THE COURT OF APPEALS CORRECTLY

APPLIED THE HOLDING IN SALYER

LAND CO. v. TULARE LAKE BASIN

WATER STORAGE DISTRICT. ......cccccsecsesesses 4

A. Salyer is a narrow exception to the one

person, one vote requirement ..................06.. 4

B. The holding of the Court of Appeals is en-

tirely consistent with Salyer ...0.....ccccccccssssss. 5

Il. THE DISTRICT’S VOTING SYSTEM

FAILS TO MEET A STRICT STANDARD

Se ineeliciissiniisnctiiinecictinincinesntiniadh ees 9

III. REGARDLESS OF ITS ASSERTED “BUSI-

NESS” CHARACTER, THE DISTRICT’S

VOTING SYSTEM IS NOT IMMUNE

FROM CONSTITUTIONAL SCRUTINY ..... 12

Nn RE ee OL LEAR NT EE EE ee EI 16

li

TABLE OF AUTHORITIES CITED

CASES Page

Brown v. Board of Education, 347 U.S. 483 (1954) 15

Carrington v. Rash, 380 U.S. 89 (1965) «0.0.0.0... 13

Choudry v. Free, 131 Cal. Rptr. 654, 552 P.2d 438

FERRED LO RLST SEN Opt ty for APR NT OS OD 5

Cipriano v. City of Houma, 395 U.S. 710 (1969) ..... 10,11

City of Mesa v. Salt River Project Agricultural

Improvement and Power District, 92 Ariz. 91,

me Cee AE eichasestncesicc nhs vicniennnbioitccnasnsssnccsone 3

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

EIPUTT saliiatsienssthionspisignisialgietsarmnacshsinsnsieanedinbuliaduietctasicn ten 9,10,11,12

Gomillion v. Lightfoot, 364 U.S. 339 (1960) ............. 13

Hadley v. Junior College District of Metropolitan

Kansas City, 397 U.S. 50 (1970) ..............cscccsscseoees 4

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

Holt Civic Club v. Tuscaloosa, 439 U.S. 60 (1978) ..

Kramer v. Union Free School Dist. No. 15, 395

Re SE IEE bition tas hinsasabaicipedigsetdivsdinmiendalecesulitcantaisccns 4

Lockport v. Citizens for Community Action, 430

I I ST elec a a 9

North Carolina v. Alford, 400 U.S. 25 (1970) .......... 15

Police Jury of Parish of Vermilion v. Hebert, 404

| | RR ERT teh ie Sener 7 Oe

Reynolds v. Sims, 377 U.S. 533 (1964) ......ccceeeeeee 4

Salyer Land Co. v. Tulare Lake Basin Water

Storage District, 410 U.S. 719 (1978) .............. 4,passim

Stewart v. Parish School Board of Parish of St.

Charles, 310 F. Supp. 1172 (E.D. LA. 1970),

OIF SSO UT. GE CDI D) wosscisesscnscsubscessaccossencossens 10

Yick Wo v. Hopkins, 118 U.S. 356 (1886) ................ 4

ill

TABLE OF AUTHORITIES CITED (Cont.)

CONSTITUTIONAL AND STATUTORY

PROVISIONS Page

Arizona Constitution, Art. 18, § 7 ....cccccscscscssscssseeeees 3

Arizona Revised Statutes Annotated

Fe AED shnnckctssassnveychinsdbeasnicsnsadacmaianosendbaciaats 3

DS aD FEF CED anscesasecccsssscrcessicdonninssvastnsonags 3,7

Se CR DD ik iis inicaticnsicciccscistpcaccsnrscbsrenvcoses )

§ 45-934-937 (1979 Supp.) .......cssescscscsssesscssseseserees 3

§ 45-935(B) (1979 Supp.) .......cccccccssccccescsorceesescecense 7

ED eitvtiksacticinictiactncsaatdbingicaintabuiscsiainas 14

ee IEE tataseiepinladucteissisioascbancabieiiedaandnadsetndcapsiitens 14

ee IN soca keds hile chvtiaiacasenssneibasitdenwescinaeaiiits 9,10

Arizona Laws

1969 Sess. Laws Ch. 134, § 2 .........cccccccccssesscarcesesere 14

1976 Sess. Laws Ch. 83, § 5. .......cccccccsssssssssssesesereres 14

OTHER AUTHORITIES

American Public Power Association, The People’s

Ue Oe Se OD ii 2

Arizona State Senate Natural Resources Commit-

tee, Minutes (May 25, 1976) ...........cccccccccscsssessssee 14

Letter from Associate Solicitor, Department of In-

RT sccedibiteailichuisnpcthsnabintecenlntcttbneiacctn tania s 7

Rules of the Supreme Court

a REAR TEIN MIN 02: SPOS PPA OM TO ome OR NS 1

In The

Supreme Court of the United States

October Term, 1979

No. 79-1740

GERMAIN H. BALL, et al.,

Appellants,

VS.

ROLAND W. JAMES, et al.,

Appellees.

MOTION TO AFFIRM

Pursuant to Rule 16 of the Rules of the Supreme Court

of the United States, appellees respectfully request that the

final judgment and decree of the Court of Appeals be af-

firmed on the ground that the question is so unsubstantial

as not to warrant further argument.

QUESTION PRESENTED

Whether a multi-purpose political subdivision which pro-

vides electric service to one-quarter million customers and

60% of the municipal water supply for approximately 1.5

million people may condition voting on property ownership.

STATEMENT OF THE CASE

The Salt River Project Agricultural Improvement and

Power District (Salt River District or District) is only one

of the many thousands of units of local government in the

United States. But to the residents of the Phoenix metro-

politan area its pervasive electric and water activities make

it the paramount governmental body in central Arizona.

The Salt River District is most certainly unique among the

many political subdivisions in this country. Wearing one

hat, it operates the Salt River Reclamation Project, the first

2

reclamation project authorized under the Federal Reclama-

tion Act. Facts 7 1, 5.’ Wearing another hat, it

administers a water delivery system, through its agent, the

Salt River Valley Water Users’ Association, which supplies

60% of the water used for municipal purposes in metropoli-

tan Phoenix. Facts 1 42. And finally, wearing its electric

power hat, the District operates the second largest electric

utility in Arizona, and the seventh largest publicly-owned

electric utility in the United States. AMERICAN PUBLIC

PoweR ASSsociATION, THE PEOPLE’s RIGHT To CHOOSE 15

(1978).

Not only does the Salt River District play a pivotal role

in the delivery of energy and water services in Arizona, but

it is key in the development of energy and water policy

formulation in the rapidly growing Phoenix area. Because

of its varied functions it is heavily involved in such diverse

activities as development of alternative. energy sources,

groundwater reform, participation in nuclear power genera-

tion, flood control, participation in the Central Arizona

Project and home energy audits to encourage conservation.

In addition to affecting the lifestyle of all residents in its

geographic area, the District’s activities are financed almost

entirely by its electric customers. Ninety-eight percent of.

District revenues are from sales of electricity. Facts { 46.

Additionally, 83% of water system costs are also financed

by power revenues. Facts { 45. Twenty-five percent of Dis-

trict water is delivered to municipalities, Facts 174, and

paid for from city water revenues. Facts {| 82.

' “Facts” refers to the Stipulated Statement of Facts set forth in

Appendix C to the Jurisdictional Statement.

3

Appellants misstate the relationship of the District’s

water activities to its power functions.” Appellants imply

that the District’s power activities are entirely subordinate

to its water activities. But under Arizona law, the District

has express authority to supply power to its residents with-

out regard to its reclamation purposes. A.R.S. § 45-

903(A) (6) (1956).

Regardless of how appellants choose to characterize the

District, it is, first and foremost, a “political subdivision of

the state ... entitled to all the immunities and benefits

granted to municipalities ....” City of Mesa v. Salt River

Project Agricultural Improvement and Power District, 92

Ariz. 91, 97, 373 P.2d 722 (1962). The District’s enabling act

and the Arizona Constitution place it on par with munici-

palities. Ariz. Const., Art. 13, § 7; A.R.S. § 45-902 (1956).

The Directors of the District, the appellants herein, have

plenary and complete power to direct District operations

and affairs, including the authority to set rates for water

and electric service. A.R.S. §{ 45-934-937 (1956) (1979

Supp.).*

* For example, at page nine of the Jurisdictional Statement, refer-

ring to the Stipulated Statement of Facts, appellants state that the

“development and sale of electrical power ... was not undertaken for the

primary purpose of providing electricity to the public but to support the

primary irrigation functions .... Facts 117.” But paragraph 17 refers to

the “Salt River Project” which describes the reclamation project, Facts

11, not the District. The activities of the federal reclamation project are

distinct and separate from the District’s responsibilities under Arizona

Law.

* In 1955 the Arizona Corporation Commission approved an agree-

ment between Arizona Public Service Co. and the District which

allocated service territory for each utility. Facts 147. The District pro-

vides electricity to about 75% of the combined areas of Phoenix,

Scottsdale, Tempe, Mesa, Glendale, Chandler, Peoria, Tolleson and Gil-

bert. Facts 1 37; Exh. K., p. 8.

4

The dispute in this case centers on whether the District’s

one acre, one vote system is subject to traditional equal

protection analysis or whether it is the type of limited-

purpose unit of government discussed in Salyer Land Co. v.

Tulare Lake Basin Water Storage District, 410 U.S. 719

(1973).

ARGUMENT

I. THE COURT OF APPEALS CORRECTLY AP-

PLIED THE HOLDING IN SALYER LAND CO. v.

TULARE LAKE BASIN WATER STORAGE DIS-

TRICT.

A. Salyer is a narrow exception to the one person,

one vote requirement.

The Court has reiterated many times that the right to

vote is considered one of the most sacred and important

rights in our society. Reynolds v. Sims, 377 U.S. 533 (1964);

Yick Wo v. Hopkins, 118 U.S. 356 (1886). Thus, limitations

on the one person, one vote principle have been struck

down in a variety of circumstances, even though the govern-

mental unit was not a so-called “general purpose” political

subdivision. Police Jury of Parish of Vermilion v. Hebert,

404 U.S. 807 (1971) (road district); Hadley v. Junior Col-

lege District of Metropolitan Kansas City, 397 U.S. 50

(1970) (junior college district); Kramer v. Union Free

School Dist. No. 15, 395 U.S. 621 (1969) (school district).

In Salyer, the Court established a narrow exception to

the traditional one person, one vote standard. Because the

Tulare Water Storage District had a “special limited pur-

pose,” with relatively “limited authority,” 410 U.S. at 728,

and because its activities disproportionately affected land-

owners, id. at 729, land-based voting was reviewed under

the test of reasonableness rather than a stricter standard of

review. In short, the Court found the election process to be

5

of “special interest” to a discrete group primarily affected

by the water district’s activities. Holt Civic Club v. Tusca-

loosa, 439 U.S. 60, 69 (1978); Hill v. Stone, 421 U.S. 289,

295 n.5 (1975).

In Saiyer the Court was confronted with a district en-

gaged in water storage and delivery operations for a remote

agricultural area in which only 77 people resided. All costs

of the water delivery operations were charged against land-

owners in proportion to services rendered. Over three-

fourths of the land was owned by four corporations.‘ The

Court concluded that because of its special, limited pur-

pose, and because its activities disproportionately affected

landowners, land-based ‘voting would be measured against

the reasonableness test.

B. The holding of the Court of Appeals is entirely

consistent with Salyer.

Although appellants characterize the opinion of the

Court of Appeals as undercutting the logic and rationale of

the Court’s holding in Salyer, an objective review of the

opinion reveals that the contrary is true. The Court of Ap-

peals carefully reviewed the functions and effects of the

Salt River District in light of the standard established in

Salyer. Size,> per se, was not used to distinguish the Salt

River District from the water district in Salyer.

* This is to be contrasted with the Salt River District where there

are over 359,000 property owners. Facts { 73.

* Although not “wholly determinative,” differences in the “size of

the population served” should not “be ignored in assessing the effects of

Salyer.” Choudry v. Free, 131 Cal. Rptr. 654, 552 P.2d 438, 443 (1976).

In Choudry the California Supreme Court considered the acreage voting

restrictions of the Imperial Irrigation District, remarkably similar to the

Salt River District. Finding, inter alia, that the directors of the Imperial

District, “decide such issues as rate increases for water and power, the

distribution of water between agricultural and nonagricultural uses, and

other matters which could vitally affect the economic welfare of the resi-

dents,” the court held that it was unconstitutional to condition voting

upon land ownership. 552 P.2d at 441.

6

The Court’s opinion in Salyer identified two criteria

which must be met if the election process of a local govern-

mental unit would not be subject to the careful scrutiny of

preceding cases. Such a governmental body must have (1) a

special limited purpose, and (2) a disproportionate effect of

its activities on landowners as a group. 410 U.S. at 728. The

Court of Appeals’ opinion is clearly predicated upon this

standard.

The Court of Appeals concluded:

[T]oday the size and nature of the projects of the Dis-

trict and the effect of its operation on all of the

residents of Arizona are far more extensive than those

of the district in Salyer.

* * *

In view of the broad scope and impact of its activities,

the Salt River District cannot be characterized as hav-

ing a special limited purpose.

* * *

[U]nlike Salyer, the financial burden of operating the

District does not fall entirely or even primarily on

landowners; it falls instead on the purchasers of elec-

tricity. J.S.,° pp. A-5, 6 (emphasis added).

The Court of Appeals meticulously scrutinized the activities

of the Salt River District in accordance with the holding of

the Court in Salyer.

Although many special purpose districts carry on their

limited activities far from the general population, the Court

of Appeals properly recognized that the Salt River District

provides essential public services. The Court of Appeals

correctly observed that the Salt River District is engaged in

“far-reaching electric power operations. It is the second

* “J.S.” refers to the Jurisdictional Statement.

7

largest electric utility in the State of Arizona and services

nearly a quarter million persons.” J.S., p. A-5.7

Unlike the water district in Salyer, the Salt River Dis-

trict is not concerned solely with providing water for

agriculture. “Its formerly rural area encompasses today

eight Arizona municipalities, including major portions of

Appellants’ explanation of the District’s power functions severely

distorts its independent status under Arizona law. The District’s electric

system, which generates 98% of its total revenues, Facts { 46, is com-

pletely independent of its irrigation activities (except the 4% of the

District’s capacity which is generated by hydro-electric power). The Dis-

trict has the express statutory authority under Arizona law to sell power

without regard to water delivery.

One of the specific purposes for which agricultural improvement dis-

tricts may be organized is to “provide power ... for the use of the

owners or occupants of the lands.” A.R.S. § 45-903(A)(6) (1956)

(emphasis added.) Thus, unlike the ancillary or incidental flood control

activity of the Tulare Water District, the Salt River District has statu-

tory authority to engage in electric operations completely independent of

its water activities. Additionally, the Board of Directors is expressly

granted broad power to secure energy sources such as “coal, oil, gas, oil-

shale, uranium and other nuclear materials, hotwater, steam and other

geothermal materials or minerals, solar energy, wind, water and water

power” outside of Arizona to serve the District’s electric customers.

A.R.S. § 45-935(B) (Supp. 1979). Thus, the District’s legal authority to

carry on its electric operation serving 240,000 customers, Facts 11 46, 85%

of whom live within its boundaries, id., is founded in an express and in-

dependent grant of statutory authority.

The so-called “‘business” purpose of the District’s power activities is

restricted to power generated by its hydro-electric facilities. See Exh. H,

§ VII (A). The authority of the District to build and operate steam gen-

erating plants is not derived from its reclamation activities, but rather

the statutory grant of power under Arizona law. Letter from Moody R.

Tidwell, III, Associate Solicitor, Division of Energy and Resources, De-

partment of Interior, to State Sen. Morris Farr (August 24, 1976). Indeed

the Articles of Incorporation of the Salt River Valley Water User’s Asso-

ciation indicate that it had no authority to build electric plants without

regard to irrigation. See Exh. A. Had the Arizona Legislature not autho-

rized agricultural improvement districts to sell electricity independent of

water operations, the Association as manager of the federal reclamation

project, could never have embarked on the ambitious expansion program

initiated by the District.

Even if the Court of Appeals was mistaken about the complex legal

relationships surrounding the District, the court correctly applied Salyer

on the facts as it understood them.

8

Phoenix. ... In view of the broad scope and impact of its

activities, the Salt River District cannot be characterized as

having a special limited purpose.” J.S., p. A-6.

After discussing the first of the two-prong analysis under

Salyer, the Court of Appeals examined whether landowners

disproportionately assumed the expense of District opera-

tions. With respect to the water operations, -“[u]nlike

Salyer, nearly 40% of the water delivered by the District is

used and paid for in a manner unrelated to agriculture or

landownership.* As to the electric operations, nearly all

the citizens in the district are vitally affected in ways unre-

lated to ownership of real property. ... Ninety-eight

percent of the District’s substantial revenues are produced

‘by its electric utility operations.” Jd. “In view of the magni-

tude of the electric utility operations and the large

percentage of water services which are used and paid for in

a manner unrelated to land ownership, it would elevate

form over substance to characterize the District as func-

tioning solely for the benefit of landowners.” Jd. at A-7.

Thus, the opinion of the Court of Appeals is predicated

exactly on the standard set forth in Salyer. In Salyer the

Court looked at who “benefited” from the water district’s

activities and who was financially “burdened.” 410 U.S. at

* Although appellants describe this statement as “something of a

mystery,” they do not expressly dispute this conclusion. The appellants

argue that the “use to which this water is placed once it is delivered ...

is of no concern to the District. ...” J.S., p.12. It “merely stores, con-

serves, and delivers water that belongs to other people.” Jd. at 11.

Therein, however, lies the telling distinction between the Salt River Dis-

trict and the water district in Salyer. In Salyer, water was stored and

delivered for agricultural purposes. Here the beneficiaries are not only

agriculture, but schools, homeowners, business and the hundreds of thou-

sands of residents of central Arizona who depend upon the District for a

reliable water supply.

9

729-31. Because the benefits and burdens of the Salt River

District’s activities and functions do not track landowner-

ship, the Court of Appeals should be sustained and its

opinion affirmed.

II. THE DISTRICT’S VOTING SYSTEM FAILS TO

MEET A STRICT STANDARD OF REVIEW?

Because the District is not a special-purpose district as

described in Salyer, the Court of Appeals applied the strict

standard of review called for in City of Phoenix v. Kolod-

zlejski, 399 U.S. 204 (1970). Applying that standard, the

* The District’s voting system would not even meet the test of rea-

sonableness. In the proceedings below, the District claimed its acreage-

voting system is reasonable since (1) it permits voting on a “debt-

proportionate” basis, and (2) it connects voting strength to water use.

Even under the more lenient rational basis test the acreage-voting sys-

tem is unconstitutional. As the Court held recently, even in special

district elections, the “classification of voters into ‘interested’ and ‘non-

interested’ givups must still be reasonably precise, .. .” Lockport v. Citi-

zens for Community Action, 430 U.S. 259, 266 (1977).

The District’s voting system is essentially based upon a so-called

“debt-proportionate” system. Under A.R.S. § 45-1047 (1956), District

general obligation bonds are considered to be a lien upon real property in

the District. Debt-proportionate voting is based upon the principle ex-

pressed by the District in a March 18, 1969, Resolution. “(T]he privilege

of voting is commensurate with the burden of debt; that is, the more

land a person owns and puts forth as collateral, the more he has at stake,

and the greater influence he has in Project affairs.” Exhibit Q, p.3.

The voting system, however, does not achieve the goal of authorizing

voting commensurate with debt since all landowners may not participate

in District elections in proportion to land owned. Only land owned by

persons otherwise qualified to vote is eligible to be voted. A.R.S. § 45-909

(1979 Supp.). Land owned by corporations, trusts or partnerships, for

example, is “burdened” with the debt of general obligation bonds but

such lands are excluded from voting. For example, of 236,482 acres in the

District, only 141,474 acres are eligible to be voted in the elections. Facts

W135, 38. The lien on District lands presumably burdens all land-

owners, not simply landowners who are otherwise qualified electors.

Thus, the goal of allowing those to vote in proportion to the debt on

their land is clearly frustrated by restricting voting to only 60% of land-

owners. (footnote continued on page 10).

10

Court of Appeals properly considered whether nonproperty

owners are substantially affected by the District’s activities.

City of Phoenix; Cipriano v. City of Houma, 395 U.S. 701

(1969).

The differences between the interests of nonproperty

owners and the interests of property owners are not suffi-

ciently substantial to justify excluding the former from the

franchise. The claimed risk to appellants’ property, J.S., p.

24, is not considered a sufficient compelling interest to jus-

tify excluding nonproperty owners from voting and has

been specifically rejected by the Court in City of Phoenix,

supra.

A.R.S. § 45-1047 (1956) provides that District general

obligation bonds are a lien on property within the District.

Presently this indebtedness amounts to approximately

$1,221 per acre. Facts {1 49. (The value of the District’s capi-

tal investment is about $3,500 per acre. Facts 154.). The

lien on District lands is similar to the financial interest

claimed by property taxpayers in City of Phoenix.

(footnote continued from page 9)

In Salyer the Court specifically found that all landowners, both cor-

porate and individual, were extended the franchise. 410 U.S. at 730. It is

obviously inconsistent to argue that “entrepreneurial risk” should be

rewarded with absolute voting strength yet exclude business-owned prop-

erty from participation. Stewart v. Parish School Board of Parish of St.

Charles, 310 F. Supp. 1172, 1178 (E.D. La. 1970), aff’d, 400 U.S. 884

(1970). Thus, the exclusion of business entities from the District’s voting

scheme demonstrates conclusively that the so-called “debt-

proportionate” voting system does not achieve its purpose of allowing

voting commensurate with land ownership.

The acreage voting system also bears little relation to the water deliv-

ery functions of the District. The appellants permit voting regardless of

whether the voter actually uses District water. In other words, the

owner of a commercial acre of land has the same vote as the owner of an

agricultural acre. If a purported basis of the voting system is to connect

voting to water use, it is irrational to permit voting without any inquiry

whatsoever as to whether or not the voter does in fact use District water.

11

City of Phoenix general obligation bonds are secured by

the general taxing power of the City. Since property tax

payments are relied upon to make debt service payments if

other revenue sources are insufficient, general obligation

bonds were considered by the Court to be in effect a lien on

the real property subject to taxation. In City of Phoenix,

the Court concluded, however, that the interests of non-

property owners in the bond elections were not substan-

tially different than the interests of property owners. The

Court held that all residents of Phoenix have a substantial

interest in public facilities and the availability of city ser-

vices. 399 U.S. at 209.

Similarly, all residents of the District have a substantial

interest in the electric service and water which it provides.

Cipriano v. City of Houma, supra.° All citizens, whether

they purchase electric service from the District or not, are

affected by its electric operations, since they purchase ser-

vices and products from others who do buy energy from the

District. Even in those District areas served by Arizona

Public Service Co., the District sells A.P.S. its power re-

quirements. Facts 1 47. Certainly, all citizens are interested

in assuring that the District continue to supply power to

the Valley without interruption.

Also as in City of Phoenix, other revenues are available

to meet the District’s debt service obligations. District elec-

tric revenues have always been adequate to meet debt

service assessments. According to the District:

‘° “Of course, the operation of the utility systems — gas, water, and

electric — affects virtually every resident of the city, nonproperty overs

as well as property owners. All users pay utility bills, and the rates n ay

be affected substantially by the amount of revenue bonds outstanding.

Certainly property owners are not alone in feeling the impact of bad util-

ity service or high rates, or in reaping the benefits of good service and

low rates.” Cipriano v. City of Houma, supra at 705.

12

In all years to date, revenues ... have been more than

sufficient to meet all debt service requirements and

the District has never used its taxing power for the

Prior Lien Bonds. [general obligation bonds]

Exh. K, p.36. There is nothing to show that the financial

health of the District will change. See City of Phoenix, su-

pra at 212. Thus, since it is District electric customers who

will ultimately satisfy the debt service requirement, they

have a great interest in the outcome of District elections."

The connection between land ownership and the Dis-

trict’s water operations is likewise not substantially

different than the impact of the water operations on all res-

idents of the District. Almost two-thirds of city water used

in the Phoenix metropolitan area is delivered by the Dis-

trict. Facts 142. About 25% of the water delivered by the

District is for municipal uses; about: 15% is for other non-

agricultural uses. Facts 1 74. It is indisputable that all city

residents, regardless of property ownership, rely upon a

continuous and reliable supply of water from the District.

Thus, all residents are substantially interested in District

actions and therefore the Court of Appeals correctly held

that restrictions on the franchise are impermissible.

III. REGARDLESS OF ITS ASSERTED “BUSINESS”

CHARACTER, THE DISTRICT’S VOTING SYS-

TEM IS NOT IMMUNE FROM CONSTI-

TUTIONAL SCRUTINY.

Section II of the Jurisdictional Statement advances the

novel constitutional theory that public entities may be cre-

ated with all the attributes of sovereignty and act in a

manner which vitally and significantly affects people’s lives,

and yet be completely insulated from the traditional elec-

toral process. Although appellees dispute the asserted

'' General obligation bonds, secured by District lands, were discon-

tinued in 1972. Facts 149. Since then, the District has sold revenue

bonds which are secured by a “pledge of revenues.” Jd.

13

profit-making purpose of the District,” in this section such

a characterization will be accepted as true.

Putting all of the rhetoric about entrepreneurial risk

aside, in appellants’ words, “[t]he net effect of the Arizona

Legislature’s acreage-based board representation, therefore,

is a subsidy for water users.” J.S., p.21 n.10. Appellants fear

that when agricultural interests no longer dominate the

District’s board, there may be some adjustment in the level

of the subsidy."* It is, of course, constitutionally impermis-

sible to deny people the franchise based upon speculation

as to how they might vote. Carrington v. Rash, 380 U.S. 89

(1965).

The fallacy of appellants’ position, however, is that the

Court is not satisfied with the labels attached to govern-

mental action but rather it examines the manner in which

government affects people’s lives.

[T]he Court has never acknowledged that the States

have power to do as they will with municipal corpora-

tions regardless of consequences. Legislative control of

municipalities, no less than other state power, lies

within the scope of relevant limitations imposed by the

United States Constitution.

Gomillion v. Lightfoot, 364 U.S. 339, 344-45 (1960). The

prerogative of the federal courts to review the constitution-

ality of voting schemes purporting to protect the interests

of special segments of society is implicit in Salyer.

' See Footnote 7, supra.

'* Faced with growing public pressure over the water subsidy, the

District board :increased water charges from 30% to 88% in 1976. Facts

971.

14

Accepting the appellant’s protestations that their activi-

ties are purely pecuniary,’ the District could be viewed

similarly to the water district in Salyer. But the Court in

Salyer did not blindly put its imprimatur on the land-based

voting system just because 85% of the land was owned by

four corporations and the business-purpose of the water

district was quite apparent. To the contrary, the Court

examined the water district’s activities and only after find-

ing that it indeed did have a special, limited purpose and

its activities did primarily affect landowners did it apply

the reasonableness standard. Thus, the Court did not pro-

pose to exempt the affairs of the water district from public

accountability simply because its activities served business

interests.

'* Modifications to the District’s one acre, one vote system, already

implemented by the Arizona Legislature, significantly erode the appel-

lants’ contentions.

Until 1969, voting in District elections was restricted to owners of a

minimum of one acre of real property, with owners of more than one acre

entitled to votes equal in number to the acres owned. In response to a

threat of a lawsuit nd local municipalities challenging that voting system,

the District agreed to. support the voting of fractional acres and the Leg-

islature subsequently amended the law to so authorize. 1969 Ariz. Sess.

Laws, Ch. 134, § 2, amending A.R.S. § 45-983 (1956). According to a reso-

lution adopted at the time by the District, the change in the voting

system was designed to acknowledge the increasing urbanization of the

District’s area. Exh. Q.

In 1976, the District again supported amendments to the same stat-

utes, this time expanding the Board to add four at-large members to be

elected by property owners-one property owner, one vote. 1976 Ariz.

Sess. Laws, Ch. 83, § 5, amending A.R.S. § 45-965 (1956).

Mr. Jon Kyl representing the Salt River Project testified that

S.R.P. supports the bill as it came out of the House. He said the

bill would reduce the cost of power and give more representation to

the homeowners who are served electricity by the S.R.P.

Arizona State Senate Natural Resources Committee, Minutes (May 25,

1976).

Thus, there have been periodic legislative inroads into the strict one

acre, one vote standard.

15

Once the State of Arizona elected to establish a political

subdivision to carry out certain activities, the constraints of

the Constitution were invoked. The Court of Appeals cor-

rectly described the issue as whether

having made the decision to create the entity and pro-

vide for the election of its directors, the state can deny

the electoral franchise to citizens whose economic in-

terest and natural environment are vitally affected by

the entity’s operations.

J.S.,p.A-8. Thus, even accepting appellants’ contentions as

true, their acreage voting system is still subject to constitu-

tional scrutiny.

Admittedly, when the reclamation project was formed in

1903 and the District organized in 1936 our community was

predominately agricultural. Landowners were no doubt the

intended beneficiaries of the District’s activities and the

financial burdens fell predominately on them. The many

references from the Stipulated Statement of Facts referred

to by appellants reflect this historical truth.

But over the years our community rapidly became urban-

ized. The District’s predecessor, the Water Users’

Association, had 21 electric customers in 1921; Exh. K, p.A-

5. Now, of course, the District is the second largest electric |

utility in Arizona and the seventh largest publicly-owned

utility in the country. Despite the District’s historical pur-

pose and characterization by the Arizona Supreme Court,

the constitutionality of its voting system must be measured

against the manner in which it affects people’s lives today.

Brown v. Board of Education, 347 U.S. 483, 492-93 (1954).

Regardless of how Arizona chooses to characterize the Dis-

trict, “the Constitution is concerned with the practical

consequences, not the formal categorizations, of state law.”

North Carolina v. Alford, 400 U.S. 25, 37 (1970).

Appellants are correct that the State of Arizona must be

free to make economic choices and obviously may grant

subsidies to certain segments of our community. J.S., p. 21.

Appellants are incorrect to assume that when special favors

16

are to be distributed through activities of governmental

bodies, subject to the electoral process, the states may act

in a manner oblivious to the Constitution. When the func-

tions of local government impact in significant ways on

people’s lives, the Constitution requires equal access to the

ballot. What makes constitutional sense in a remote agricul-

tural water storage district takes on the trappings of

feudalism in an urban, metropolitan community.

CONCLUSION

The Salt River Project Agricultural Improvement and

Power District is unique among local units of government

in this country. It is unique because of its critical role in

supplying essential energy and water service to one of the

fastest growing metropolitan regions in the United States.

The Court of Appeals recognized that under the Court’s

opinion in Salyer, acreage voting in such a situation must

be viewed according to traditional equal protection stan-

dards. The Court of Appeals faithfully applied Salyer and

its opinion is not inconsistent with decisions of this Court

or any other court. Because the issues presented by appel-

lants are so unsubstantial, the opinion below should be

affirmed.

Respectfully submitted,

Bruce Meyerson

Amy J. Gittler

Arizona Center For Law in the

Public Interest

P.O. Box 2783

Phoenix, Arizona 85002

(602) 252-4904

June 6, 1980