Reply Brief — Save Palisade Fruitlands v. Todd

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Saprome Court, U.S.

No. 01-1651 chaeageies

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In The OFFICE OF THE CLERK

Supreme Court of the United States

,

Vv

SAVE PALISADE FRUITLANDS, a Colorado

unincorporated nonprofit association,

HARRY C. TALBOTT, GALEN R. WALLACE, and ALLEN

M. (MAC) WILLIAMS,

Petitioners,

MONIKA TODD, in her official capacity as County Clerk

of Mesa County, Colorado and BOARD OF COUNTY

COMMISSIONERS OF MESA COUNTY,

Respondents.

4

Vv

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Tenth Circuit

&

Vv

REPLY BRIEF IN SUPPORT OF PETITION

FOR WRIT OF CERTIORARI

,

Vv

RICHARD W. DAILY

ALLAN L. HALF

Scott E. GESSLER

RICHARD A. WESTFALL

Counsel of Record

HALE HACKSTAFF TYMKOVICH, LLP

1430 Wynkoop Street, Suite 300

Denver, CO 80202

(720) 904-6000

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

NPS

TABLE OF CONTENTS

Page

TOTTI TN iva caicitssscncnincsccssrasccsasesnscserseccasssacess 1

REASONS FOR GRANTING THE WRIT ................. 1

I. THE DISTRIBUTION AND EXERCISE OF

THE DIRECT DEMOCRACY VOTING

FRANCHISE IS AN IMPORTANT QUES-

TION OF FEDERAL LAW. ............ssseseeeeeeeeeees 1

II. THE COURT SHOULD CLARIFY THE STAN-

DARD OF REVIEW THAT APPLIES TO STATE

RESTRICTIONS PLACED ON THE CITI-

ZENRY’S RIGHT TO INITIATIVE................0000 a

CONCLUSION ...........sscccccccssssecssscsssssscseceesococscoenccees 7

TABLE OF AUTHORITIES

Page

CASES

Anderson v. Celebrezze, 460 U.S. 780 (1983) ..............00000 6

BE & K Construction Co. v. NLRB, No. 01-518,

2002 WL 1357297 (U.S. June 24, 2002)................scccceeees 3

Bullock v. Carter, 405 U.S. 134 (1972).............cccsssccesseceeees 4

Burdick v. Takushi, 504 U.S. 428 (1992) .............ssceessoee 4,6

Carrington v. Rash, 380 U.S. 89 (1965).............:cssseceeeeees 5

Cipriano v. City of Houma, 395 U.S. 701 (1969)................ 4

Citizens Against Rent Control Coalition for Fair

Housing v. City of Berkeley, 454 U.S. 290 (1981)........... 4

City of Phoenix v. Kolodziejski, 399 U.S. 204 (1970)....... 4,5

Dunn v. Blumstein, 405 U.S. 330 (1972) ..............ceeesesseees 5

Evans v. Cornman, 398 U.S. 419 (1970).............csscccssesereees 5

Kelly v. Macon-Bibb County Board of Elections, 608

Bh I: BI Gis GI, BD ccs cisicccdeccvessncccessecenin<essesens 2

Meyer v. Grant, 486 U.S. 414 (1988) .......... cc ceeeeeeseeeeeeeeees 4

Taxpayers United for Assessment Cuts v. Austin,

SN ee ee Ce Ce Se assccsctsscsensccisnactasnsseisesetiovesees 2

Town of Lockport, New York v. Citizens for Com-

munity Action at Local Level, Inc., 430 U.S. 259

Watchtower Bible & Tract Society of New York, Inc.

v. Village of Stratton, No. 00-1737, 2002 WL

1805851 (U.S. June 17, 2002) ...........ccccccccccsssssssscccecessenee 3

TABLE OF AUTHORITIES — Continued

Page

CONSTITUTIONAL PROVISIONS

Be ee ee Bs cssss shaniiniabniilestaanvenibnensenntigbaini 3,6

Br ee nr I TN ie ici nisnanlintahammenenans 6

STATUTES

Colorado Enabling Act, 18 Stat. 474 (1875) ................ssee00 2

RULES

IIL TY SII seth is onsseatcannanaanpnidbiihanenteenondanniemnsinnaiiias 1

OTHER AUTHORITIES

Letter to William Charles Jarvis, September 28,

1820, 10 WRITINGS OF THOMAS JEFFERSON (Ford

1

INTRODUCTION

The decision of the Tenth Circuit should not be al-

lowed to stand, because it incorrectly suggests that gov-

_ ernments have the right to exclude whole classes of

citizens from the exercise of a set of fundamental rights,

simply because of where they live.

Respondents’ Brief in Opposition to the Petition for Writ

of Certiorari demonstrates why the Petition should be

granted, because it accurately identifies the crucial issues

and illustrates the confusion surrounding the proper stan-

dard of review. Because of this confusion in the applicable

standard, this Court should directly address the application

of the Equal Protection Clause to the distribution and

implementation of the direct democracy franchise.

4

v

REASONS FOR GRANTING THE WRIT

I. THE DISTRIBUTION AND EXERCISE OF

THE DIRECT DEMOCRACY VOTING FRAN-

CHISE IS AN IMPORTANT QUESTION OF

FEDERAL LAW.

Petitioner asks this Court to articulate the Equal

Protection standards that apply to the right to participate

in direct democracy. Direct democracy forms a critical part

of American self-governance, and this Court has not

applied the Equal Protection Clause to the distribution of

the direct democracy voting franchise when a state denier

certain citizens the right to hold initiative elections, while

allowing other similarly situated citizens to exercise that

right. Accordingly, this is “an important question of federal

law that has not been, but should be, settled by this

Court,” Sup. Ct. R. 10(c).

2

Direct democracy, in the form of initiative and refer-

endum, plays a critical role in the American form of self-

governance. In many instances, it forms the foundation of

political power. For example, the United States Congress

requires that all state constitutions receive the approval of

a majority of the people of a state. See, e.g., Colorado

Enabling Act, 18 Stat. 474 (1875). The vast majority of

American citizens exercises the right to initiate and pass

legislation, particularly on the local level. Indeed, Ameri-

cans’ widespread use of the initiative and referendum most

accurately reflects Thomas Jefferson’s belief that there is

“no safe depository of the ultimate powers of the society

but the people themselves. ... ” Letter to William Charles

Jarvis, September 28, 1820, 10 WRITINGS oF THOMAS

JEFFERSON (Ford ed., 1899) at 161.

In light of the profound importance that direct democ-

racy has in American government — particularly at the

state and local level — this Court should take the opportu-

nity to provide guidance in evaluating Equal Protection

standards as they affect the distribution of the direct

democracy franchise. Respondent Todd claims that Tax-

payers United for Assessment Cuts v. Austin, 994 F.2d 291

(6th Cir. 1993) and Kelly v. Macon-Bibb County Board of

Elections, 608 F. Supp. 1036 (M.D. Ga. 1985) have conclu-

sively settled the proper Equal Protection standards that

apply to the exercise and distribution of the right to

initiative and referendum. In fact, this Court has not

directly applied Equal Protection standards to access to

the direct democracy franchise, leaving it an open question

of law. In Town of Lockport, New York v. Citizens for

Community Action at Local Level, Inc., 430 U.S. 259, 266-

272 (1977), this Court upheld the New York law which

required dual-majority approval of a county self-

= =

3

government charter, i.e., approval both by all city voters

who resided in cities within the affected county, voting as a

unit, and by all other voters in the affected county, also

voting as a unit. In approving this dual-majority voting

scheme, the Court noted that “[tJhere is no indication that

the classifications created by New York law work to favor

city voter over town voter, or town voter over city voter.”

Id, at n. 18. That Court specifically recognized the possibil-

ity that such geographic classification schemes could in

fact result in constitutional injury, but did not address the

standard to determine whether such an injury has oc-

curred. This Court should complete the analysis begun in

Town of Lockport, and review Colorado’s denial of the right

of direct democracy to residents of statutory counties,

while allowing that right to residents of home rule coun-

ties, cities and towns.

This Court has ruled on related issues, but never

directly on the issue presented in the presen! Petition for

Certiorari. Direct democracy is an amalgam of a number of

fundamental rights, the regulation of which has received

strict constitutional scrutiny. These rights include anony-

mous door-to-door solicitation and canvassing, and the

right to petition. See, eg., Watchtower Bible & Tract

Society of New York, Inc. v. Village of Stratton, No. 00-

1787, 2002 WL 1305851, at *10-11 (U.S., June 17, 2002)

(reiterating the principle that requiring a censorship through

license which makes impossible the free and unhampered

distribution of pamphlets strikes at the heart of constitu-

tional guarantees); BE & K Construction Co. v. NLRB, No.

01-518, 2002 WL 1357297, at *6 (U.S., June 24, 2002) (the

right to petition is one of the most precious of the liberties

safeguarded by the Bill of Rights). The Court has applied

First Amendment protections to individuals participating in

4

initiative elections. Meyer v. Grant, 486 U.S. 414 (1988);

Citizens Against Rent Control Coalition for Fair Housing v.

City of Berkeley, 454 U.S. 290 (1981). The Court has also

used the Equal Protection Clause to analyze citizen’s right

to vote in elections, as well as candidates’ right to access

the ballot. See, e.g., Bullock v. Carter, 405 U.S. 134 (1972);

Anderson v. Celebrezze, 460 U.S. 780 (1983); Burdick v.

Takushi, 504 U.S. 428 (1992). Likewise, the Court has

relied on an equal protection analysis to hold that indi-

viduals who do not own property may not be barred from

participation in direct democracy elections. See, e.g., City

of Phoenix v. Kolodziejski, 399 U.S. 204 (1970) (persons

who are not owners of property may not be barred from

voting in a bond referendum); Cipriano v. City of Houma,

395 U.S. 701 (1969) (persons who are not owners of prop-

erty may not be excluded from bond election). This case

now gives the Court the opportunity to articulate clear

Equal Protection standards that states must meet when

regulating the distribution and exercise of the direct

democracy voting franchise.

Il. THE COURT SHOULD CLARIFY THE STAN-

DARD OF REVIEW THAT APPLIES TO STATE

RESTRICTIONS PLACED ON THE CITI-

ZENRY’S RIGHT TO INITIATIVE.

This is a case of first impression. In the present case,

Colorado denied certain citizens the ability to participate

in the direct democracy franchise, while at the same time

granting it to others similarly situated. Accordingly, this

Court should articulate the proper standard of Equal

Protection review. That review is based on three factors:

“the character of the classification in question; the indi-

vidual interests affected by the classification; and the

5

governmental interests asserted in support of the classifi-

cation.” Dunn v. Blumstein, 405 U.S. 330, 335 (1972). This

Court has used more than one test in determining the

proper standard of review, depending on the character of

the classification or the individual interests affected by the

classification. Id.

This Court has not previously articulated an Equal

Protection standard governing a state’s distribution and

implementation of the direct democracy franchise. Specifi-

cally, the Court has not evaluated the types of classifica-

tions that arise from selective implementation of the direct

democracy franchise, nor has it examined the individual

interests affected by those classifications.

Respondent's assertion that the right to initiative is

not a fundamental right guaranteed by the U.S. Constitu-

tion is irrelevant, because this Court has not required

invocation of a fundamental right prior to applying stricter

Equal Protection scrutiny. Rather, it has looked at the

distribution of the voting franchise and the practical

impact on individual voters. Evans v. Cornman, 398 U.S.

419, 422 (1970). Likewise, Respondent's focus on suspect

classifications is misplaced. This Court’s balancing test

has disallowed voting distinctions based on various classi-

fications that normally would not be considered “suspect,”

including geography, Cornman, supra, military status,

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

property. City of Phoenix v. Kolodziejski, 390 U.S. 204

(1970). Indeed, in Town of Lockport, 430 U.S. at 272, n. 18,

this Court suggests that any scheme that would automati-

cally favor one voter over another based on residence in a

particular type of political subdivision is inherently

suspect.

. re 2 ogee oon ee

6

Respondent’s reliance on Burdick v. Takushi, 504 U.S.

428 (1992) is misplaced, because Burdick relied on a First

and Fourteenth Amendment analysis, not an Equal

Protection analysis. Although this Court has used an

Equal Protection Clause analysis to inform its approach to

First and Fourteenth Amendment claims, it has nonethe-

less unequivocally stated that an analysis under the First

and Fourteenth Amendments is separate from an Equal

Protection Clause analysis. Anderson v. Celebrezze, 460

U.S. 780, 786 n. 7 (1983). Respondent’s misapplication of

the proper test only reinforces the need for this Court to

adopt clear Equal Protection standards. As one example,

Respondent posits a classification scheme that distin-

guishes sovereign political entities from non-sovereign

political entities. It indicates Respondent’s efforts to

identify and apply a proper standard by which to evaluate

Petitioner’s claims, despite the absence of authority for

such a distinction. This Court should provide such a

standard.

5

7

CONCLUSION

The Court should grant this petition and directly

address the application of the Equal Protection Clause to

the distribution and implementation of the direct democ-

racy franchise.

Respectfully submitted,

HALE HACKSTAFF TYMKOVICH LLP

RICHARD W. DAILy

ALLAN L. HALE

Scott E. GESSLER

RICHARD A. WESTFALL

1430 Wynkoop St.

Suite 300

Denver, Colorado 80202

Telephone: (720) 904-6019

Counsel for Petitioners

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