Opposition Brief — Sacramento County Board of Supervisors v. Sacramento County Local Agency Formation Commission

Supreme Court brief1993

Ask Donna

What actually matters in this document.

Text

No. 92-1313

IN THE

Supreme Court of the United States

OCTOBER TERM, 1992

SACRAMENTO COUNTY BOARD OF SUPERVISORS,

Petitioner,

Respondents.

On Petition for Writ of Certiorari to the

California Supreme Court

BRIEF IN OPPOSITION

RICHARD D. WAUGH

(Counsel of Record)

PATRICK J. BORCHERS

Dow NEY, BRAND, SEYMOUR

& ROHWER

555 Capitol Mall, Suite 1050

Sacramento, CA 95814

(916) 441-0131

Attorneys for Real Party in

Interest and Respondent

Citrus Heights Incorporation

Project

WILSON - EPES PRINTING CO inc. - 789-0096 - WASHINGTON Dc 200901

QUESTION PRESENTED

Does California Government Code § 57103—-which pro-

vides that voters residing within the boundaries of a

proposed city are the ones to vote on the question of

whether the new city shall be formed—violate the equal

protection clause of the fourteenth amendment?

(i)

iia i Niece

TABLE OF CONTENTS

Page

QUESTION PRESENTED ........................0.000--scseeecesscoeees i

ee Oe re EB ieecccsccsctvastnenensononnseencsesocctons iv

STATEMENT OF THE CASE ......................--..-..seeeceeee ; me

SUMMARY OF ARGUMENT. .......0 222... eeeeeceeeeeeeenees 4

eT O tensitiaieshiorotncpesatonsmeunanse 5

I. DECISIONS OF THIS COURT DEMON-

STRATE THE STATUTE’S CONSTITUTION-

REECE NE ee eR 5

Il. DECISIONS OF LOWER COURTS DEMON-

STRATE THE STATUTE’S CONSTITUTION-

I icicenstenesntetnionene 1l

Ill. STATE PRACTICE ALLOWS A CITY-WIDE

es eessneinnnonnebanenanndiiiinehes 13

i ssigpbabnanhieetennthnctiaenensustacnn 16

(iii)

TABLE OF AUTHORITIES

CASES Page

Adams v. City of Colorado Springs, 308 F. Supp.

1397 (D. Colo.), aff’d, 399 U.S. 901 (1970) ......... 18

Anderson v. Dunn, 6 Wheat. 204 (1821) .~............... 11

Burnham v. Superior Court, 495 U.S. 604 (1990).. 18

Carrington v. Rash, 380 U.S. 89 (1965) ....... 5, 6,10, 11,18

Cipriano v. City of Houma, 395 U.S. 701 (1969) .... 10

Curtis v. Board of Supervisors, 7 Cal.8d 942, 501

P.2d 587, 104 Cal.Rptr. 297 (1972)...................... 9

Evans v. Common, 398 U.S. 419 (1969).................. 10

Givorns v. City of Valley, 598 So.2d 1838 (Ala.

I desoncsscaeche oceint-eacedeeecaidetnen ticmnaneenimniattiiasss 12

Gomillion v. Lightfoot, 364 U.S. 339 (1960) .......... 10, 11

Holt Civic Club v. Tuscaloosa, 489 U.S. 60 (1978) ..passim

Hunter v. City of Pittsburgh, 207 U.S. 161 (1907)... 4,9,

10, 11, 13

Kusper v. Pontikes, 414 U.S. 51 (1978) -.................. 10

Kramer v. Union Free School District, 395 U.S. 621

6 | RSI Toa RL CRN oe? a ee 10, 11

Lockport v. Citizens for Community Action at the

Local Level, Inc., 480 U.S. 259 (1977) -................ passim

Moorman v. Wood, 504 F. Supp. 467 (E.D. Ky.

CERES RR eEN Le I Bh Shale eh NO OOO 12, 16

Murphy v. Kansas City, 347 F. Supp. 837 (W.D.

OO cas 12

Phoeniz v. Kolodziejski, 399 U.S. 201 (1970) ......... 10

Provance v. Shawnee Mission Unified School Dist.

No. 512, 231 Kan. 636, 648 P.2d 710 €1982) ........ 12

Rosario v. Rockefeller, 410 U.S. 752 (1972) -......... 10

St. Louis v. The City of Town and Country, 590

Wh. a, Taam, BE, TD vn ccinesiinccnticeesncinics 11, 12

Thompson v. Whitley, 344 F. Supp. 480 (E.D.N.C.

ERNE ART Te reel ls SOIT AS A A : 12

STATUTES, CONSTITUTIONS AND RULES

SS emacs 18

Be anna nc nec ccteceeendnbencan inches 18

Aves, Bee, Heme. ee. B ORG... es scsccc..ecesnss 18, 14

i I oasis iscoslemtsiensanscne 1,2,4

COREA, BRU. Tes 0 ee inectnssnenenennsicnstosscnmiccnceminn 14

an einen

TABLE OF AUTHORITIES—Continued

Page

a ee en Be ee Te I erin cicerenesiin ce ceennensccessnsewnne 14

. I eciscccticnecdetinincsanirieneenenennsecssnnisaniens 14

I sa cpesntnctnnreeminetele 14

Md. Code Ann. art. 238A, $ 26 .................................-....- 14

Mass. Const. amend. art. II, § 3 .......................-...--..--. 14

Mich. Comp. Laws § 123.1010 .......:..................---.------ 14

ee ae I acini cen secscncescesnenssinccssnanavese 14

N.M. Stat. Ann. § 8-2-6(B) ..........................-...-..-22-..- 14

EF ee eB intcidinsns cscs cise nsncasiineneesacesese 14

N.D. Century Code § 40-02-06 .................22.0....22eeeee 14

Ohio Rev. Code Ann. § 707.30(D) .................-............. 14

i scssscendiscennnnncesansanersunce - 14

Ce, a Ts Fe GD vise cin ins csssvncncncccccnncsssnneseese 14

ee . sasnsteennnnnneninencenninnenaits - 14

TIE TE 1 csairacammsenavanssvetioneunenenies 14, 15

a anecienannnnenansaetiinnwtwninnin 15

ai csenntesimnisinnnntsmsnssteneaesntn 15 ‘

S.D. Codified Laws § 9-8-6 ....................--........-2--00..0++8 15

Supreme Court Rule 24.2 ...............................-2...20..-- “ 2

Supreme Court Rule 29.1 ...........................--..00---ss-0-+0+- 1

Tenn. Code Ann. § 6-1-204 (a) ~..............22220-.22222222e--- 15

Tex. Local Gov’t Code Ann. § 7.006 ............----. _ 15

eae ae eee a i

Utah Code Ann. § 10-2-101.6 ....................................... 15

Wash. Rev. Code § 35.02.0900 ....................................... 15

On a a csseeniseninannirennwnsismntels 15

eS EC EE Ne 15

Woe, Geek. S 1-2-eec) (id..................-................ 15

a TT

IN THE

Supreme Court of the United States

OCTOBER TERM, 1992

No. 92-1313

SACRAMENTO COUNTY BOARD OF SUPERVISORS,

Petitioner,

Vv.

SACRAMENTO COUNTY LOCAL AGENCY

FORMATION COMMISSION, et al.,

Respondents.

On Petition for Writ of Certiorari to the

California Supreme Court

BRIEF IN OPPOSITION

: STATEMENT OF THE CASE

Pursuant to Supreme Court Rule 29.1, Respondent

Citrus Heights Incorporation Project informs the Court

that it is a non-profit California corporation with no

affiliated entities. The Petition in this case contains a

lengthy “Statement of the Case.” Petition at 3-12. Much

of what is contained in this statement is irrelevant to the

merits of the Petition, and some of it is inaccurate. A

more concise and accurate statement of the case appears

at the beginning of the unanimous opinion of the Cali-

| fornia Supreme Court holding California Government

}

Code Section 57108 constitutional. App. to Cert. at

la-10a.

Respondent agrees with the California Supreme Court’s

summary, and pursuant to Supreme Court Rule 24.2,

wishes to highlight two specific disagreements with Peti-

tioner’s statement of the case. First, as Petitioner points

out, under California law, the incorporation of a new city

requires the approval of the incorporation by a supra-

local body called a Local Agency Formation Commission

(hereafter “LAFCO”) prior to the submission of the

question of incorporation to the electorate. Petition at

3-4. Sacramento County, like all other California coun-

ties, has a LAFCO. Petition at 4-5. And, as Petitioner

notes, LAFCOs have “broad authority” to notify or dis-

approve unsatisfactory incorporation proposals. Petition

at 4-5.

There are several salient omissions from Petitioner’s

recitation. As the California Supreme Court noted, Sacra-

mento County is one of only four counties to have a

larger, seven-member LAFCO. App. to Cert. at 6a. Two

of the LAFCO members represent the County, two repre-

sent existing Sacramento County cities, two others come

from other governmental units in the County, and one

other is a member of the general public appointed by the

other six. App. to Cert. at 6a. LAFCOs have limited dis-

cretion in approving incorporation petitions. Before a

LAFCO does so, it must conduct a comprehensive fiscal

analysis of the proposed incorporation, consider public

hearing testimony and otherwise consider “a multitude of

factors.” App. to Cert. at 7a-8a. One of these factors is

“the effect of the proposed action .. . on adjacent areas.”

App. to Cert. at 8a.

At trial, one of the Petitioner’s claims was that LAFCO

abused its discretion by failing to consider these statu-

tory criteria, including—of importance here—an as-

serted failue to consider the financial impact of the Citrus

Heights Incorporation on other county residents. The

}

trial court, after considering the evidence, ruled against

the Petitioner on this point stating:

the Court has examined the question of whether or

not there was any abuse of discretion for failure to

preserve revenue neutrality in this matter. And the

Court is satisfied that there is evidence insutncient

for that purpose. App. to Cert. at 81a.

This portion of the judgment, including this finding, was

not appealed. App. to Cert. at 29a (describing appellate

posture of the case).

As will appear, this is a matter of no small conse-

quence. Petitioner is desperate to portray the citizens of

the rest of Sacramento County as “fenced out” of the

incorporation process to their detriment. Petition at 28.

But a more complete recitation reveals that LAFCOs are

charged with protecting the interests of other county

residents and that there is, in this case, an unchallenged

judicial determination that LAFCO fulfilled its role.

Thus, while Petitioner is anxious to focus solely on the

election, this focus is misplaced. As the California Su-

preme Court put the matter:

the voters’ role under [California law] is rather like

that of the masons who place a keystone at the apex

of a high and intricate arch. The voters’ approval is

an essential piece, but as we have shown, by the time

the question reaches the electorate the incorporation

proposal will have undergone a labyrinthine process

containing elaborate safeguards designed to protect

the political and economic interests of affected local

governments, residents and landowners. App. to

Cert. at 10a.

CHIP’s second major point of disagreement centers on

Petitioner’s representations of the fiscal impact of the

incorporation proposal. Petitioner quotes a figure of a

total impact of about $3.7 million, although it notes in a

footnote that this figure in error since it comes not from

the proposal that LAFCO actually approved, but from an

earlier version. Petition at 6. As the California Supreme

Court suggested, it is doubtful that the specific fiscal

projections are of constitutional consequence. App. to

Cert. at 23a. But it nonetheless bears pointing out that

Petitioner’s figure is purely fictional. Reviewing the rec-

ord, a unanimous California Supreme Court found that

“the facts of this case do not belie any unusual financial

detriment.” App. to Cert. at 23a. The California high

court further found that the impact amounted to about

$5 per county resident annually, and was less than 1%

of the Sacramento County budget, even using Petitioner’s

figures. App. to Cert. at 23a-24a. Petitioner does not

attempt to demonstrate that the California Supreme

Court’s findings are in error, nor could it do so.

SUMMARY OF ARGUMENT

California Government Code § 57103 provides that in

elections regarding the creation of a new city the resi-

dents of the proposed city vote on the matter. Petitioner

asserts that this common-sense arrangement violates the

equal protection clause, but it clearly does not. The deci-

sions of this Court that bear on this matter are Holt

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

v. Citizens for Community Action at the Local Level, Inc.,

430 U.S. 259 (1977) and Hunter v. City of Pittsburgh,

207 U.S. 161 (1907). Holt, Lockport and Hunter make

clear that a State’s decision to draw voting lines along

municipal lines merits only deferential “rational basis”

review. The California statute obviously survives such

review and Petitioner does not contend otherwise.

None of the decisions cited by Petitioner involve geo-

graphic limitations. They all involve limitations of the

franchise on such bases as race and property ownership.

In fact, the case that Petitioner specifically claims is in

“conflict” with the persuasive and unanimous opinion of

the California Supreme Court below actually involves a

limitation of the franchise to persons not employees of

the military.

The opinion of the California Supreme Court is consist-

ent with the decisions of other courts. There is no conflict

in the authority. In fact, 32 states have statutes func-

tionally identical to California’s, so that is no conflict in

State practice. The writ should be denied.

ARGUMENT

The Petition is long on generalities, short on specifics.

This is understandable, because Petitioner has no authori-

ties even remotely analogous to this case to support its

remarkable assertion that the California incorporation

statute is unconstitutional. Petitioner’s argument was

rejected by a unanimous California Supreme Court, is

foreclosed by the decisions of this Court and finds no

support in either lower court opinions or the practices of

the other States.

I. DECISIONS OF THIS COURT DEMONSTRATE THE

STATUTE’S CONSTITUTIONALITY

Perhaps the best indication of the weakness of Peti-

tioner’s legal argument is its asserted justification for

granting the writ. Petitioner asserts that the writ should

be granted because the California Supreme Court’s deci-

sion “is in conflict with this Court’s opinion in Carring-

ton v. Rash, 380 U.S. 89 (1965).” Petition at 12. From

this, the uninitiated reader might anticipate that Car-

rington deals with a factual situation similar to the one

at hand here. But, as it turns out, Carrington has little,

if anything, to do with this case.

Carrington dealt with a Texas state law discriminat-

ing against military personnel with regard to voting

eligibility. The rather bizarre—or at least “unique,” id.

at 91—Texas provision provided that a person must

retain his or voting domicile on entry into military serv-

ice until termination of the relationship with the service.

Id. at 91-92. This Court held that this was unconstitu-

tional discrimination against those who wear “the uni-

form of our country.” Id. at 97.

Carrington has nothing to do with this case. This

Court did not purport to question the legitimacy of geo-

graphical limitations on voting. Quite to the contrary,

the Carrington majority stated: “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.” Id. at 93-94

(emphasis added). This, of course, is what the Cali-

fornia statute does. In common-sense fashion, it provides

that those who vote on whether a community is to become

is to become a city “be bona fide residents of the com-

munity.”” It makes no restrictions. It does not discrimi-

nate against military personnel or any other class of

adult citizens. And contrary to the Petition’s outlandish

assertion, the California statute certainly does not dis-

criminate against voters “on the basis of how they may

vote.” Petition at i.

Having disposed of the case that Petitioner evidently

regards as the primary support for its position, let us

turn to this Court’s decisions that actually relate to the

case at hand. Holt Civic Club v. Tuscaloosa, 439 U.S. 60

(1978) involved an Alabama statute giving “police juris-

diction’’ to incorporated cities extending three miles beyond

their boundaries. This statute gave Alabama cities a

wide array of powers beyond their borders, including

enforcement of police and sanitary restrictions, business

and professional restrictions, and extension of the city’s

criminal court jurisdiction. Jd. at 60-61. Additionally,

the Alabama statute allowed the cities to collect license

fees from the borderland residents up to 50% of the

normal amount Jd. at 62.

The borderland residents sued, claiming that the Ala-

bama statute violated equal protection by denying them

the right to vote in municipal elections. This Court

rejected the constitutional challenge. This Court empha-

sized that it has upheld constitutional challenges to voting

schemes only if they “deny the franchise to individuals

who were plysically resident with the geographical

boundaries of the governmental entity concerned.” Jd.

at 68. But, as this Court held, the Alabama statute did

| no such thing. The majority noted that municipal activi-

) ties almost inevitably have influence beyond their borders.

' Id. at 69. “Yet no one would suggest that nonresidents

likely to be affected by this sort of municipal action have

a constitutional right to participate in the political proc-

esses bringing it about.” Jd.

These “indirect extraterritorial effects,” id. at 70,

were insufficient to bring the borderland residents within

the presumptive franchise of municipal elections. As long

as the “line .. . coincides with the geographical boundary

of the governmental unit at issue” the majority concluded

that only “rational basis” review was indicated, and

rejected the constitutional attack under that standard.

Id. at 70-75.

Petitioner is understandably reluctant to deal with

Holt and thus mentions it only in passing. Petition at 8,

21, 25. But if the challenge to the Alabama scheme

failed, it is impossible to see how this challenge can

succeed. In contrast to the substantial effects of the Ala-

bama statute—financial and otherwise—the effect of in-

corporation on residents of the rest of unincorporated

Sacremento County is at most financial, and, as the

California Supreme Court found, slight and “not .. .

unusual.” App. to Cert. at 28a-24a. Moreover, the

California statute goes to great lengths to protect the

interests of non-residents, lengths not pursued in the

Alabama statute. As noted above, before any incorpora-

; tion proposal goes to ballot it must be approved by a

\ LAFCO. LAFCOs must consider effects, financial and

otherwise, on non-residents, and counties are heavily

represented on LAFCOs, and especially so on the Sacra-

mento County LAFCO. There is an unchallenged judicial

finding that LAFCO performed its statutory duties in

this case.

Holt thus makes two things perfectly clear. The first

is that geographical restrictions on voting that follow

municipal lines are subject only to rational basis review;

the second is that voting schemes that do not exclude any

class of adults within those boundaries easily survive

constitutional review. All of this makes obvious that the

case for constitutionality here is even stronger than it

was in Holt.

Holt was preceded by Lockport v. Citizens for Com-

munity Action at the Local Levei, Inc., 480 U.S. 259

(1977). Lockport is fully consistent with Holt’s approach.

In Lockport this Court considered an attack on a New

York statute that required concurrent majorities of city

and non-city dwellers to approve a change in county

charters. The charter at issue was rejected by a narrow

margin of the non-city dwellers but approved by a sub-

stantial majority of city dwellers and thus carried in the

county as a whole. Jd. at 262.

This Court concluded that there was no constitutional

violation in New York’s refusal to allow the charter to

take effect. A unanimous court began its analysis by

examining the threshold question of whether New York

could justify the differing treatment of city and non-city

dwellers. This Court concluded that the statute appro-

priately recognized that “the real and long-term impact

of a restructuring of local government is felt quite dif-

ferently by different county constituent units... .” IZd.

at 272. “The provisions of the New York law . .. do no

more than recognize the realities of these substantially

differing electoral interests. Jd. Employing deferential

review, this Court thus upheld the statute.

Just as the Lockport statute recognized differing inter-

ests, the California statute does too. The proposition that

the interests of those within the borders of the proposed

a nO a ae

city have a materially greater interest than those outside

is too obvious for extended discussion. Those residing in

the new city will feel the force of its regulatory authority

and otherwise be subjected to its direct influence. This

influence is of a different order of magnitude than the

slight and “not . . . unusual,” App. to Cert. at 23a-24a,

financial effect outside the city’s borders. As the Cali-

fornia Supreme Court once noted: “It is the residents of

a region ... who as a class are most concerned with its

government.” Curtis v. Board of Supervisors, 7 Cal.3d

942, 962, 501 P.2d 587, 104 Cal.Rptr. 297 (1972). The

California statute does nothing more than recognize this

truism. For those inside the new city’s borders, the stat-

ute mandates an election before they can be subjected to

the city’s authority. For those outside the city, the statute

protects them by requiring LAFCOs to consider their in-

terests and mandating county representation on that body.

The lineal ancestor of both Lockport and Holt is Hunter

v. City of Pittsburgh, 207 U.S. 161 (1907). At issue in

Hunter was a Pennsylvania statute allowing a consolida-

tion of the cities of Pittsburgh and Allegheny upon a

combined majority vote in the two cities. Consolidation

passed in Pittsburgh, lost in Allegheny, but carried over-

all. This Court sustained the consolidation against con-

stitutional attack, stating that municipal powers rest in

“the absolute discretion of the State” and that a State

may “at its pleasure modify or withdraw all such pow-

ers.” Id. at 178.

It is doubtless true, as the California high court recog-

nized here, that this language in Hunter “bespeaks the

judicial confidence of a simpler era.” App. to Cert. at

14a. But it is equally clear that this Court continues to

find Hunter instructive in the equal protection context.

In Holt, for instance, the majority noted that although

the Hunter language quoted above had becn qualified by

later cases, “the case continues to have substantial con-

stitutional significance in emphasizing the extraordinarily

wide latitude that States have in creating various types

of political subdivisions and conferring authority upon

them.” Jd. at 71.

The simple message of Holt, Lockport and Hunter—a

message that Petitioner tries mightily not to hear—is

that drawing the limits of the franchise along municipal

lines suggests no constitutional violation and triggers

only minimal scrutiny under the equal protection clause.

This Court has given States great, and appropriate, def-

erence in formulating their internal workings.

None of the eases that Petitioner cites undercut this

tradition of deferential review. In fact, aside from Holt,

Lockport and Hunter, none of the cases that Petitioner

discusses even deal with geographical restrictions on a

voting franchise. Carrington, supra, 380 U.S. 89, as

noted above, dealt with discrimination against persons

employed by the military. Phoenix v. Kolodziejski, 399

U.S. 201 (1970) and Cipriano v. City of Houma, 395

U.S. 701 (1969) both dealt with a restriction of the

franchise to real property taxpayers in revenue bond elec-

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

with a redrawing of municipal borders in such a way

as to intentionally exclude African-American voters.

Kramer v. Union Free School District, 395 U.S. 621

(1969) dealt with a limitation of the franchise to real

property taxpayers and parents of schoolchildren in school

elections. Rosario v. Rockefeller, 410 U.S. 752 (1972)

and Kusper v. Pontikes, 414 U.S. 51 (1973) both dealt

with State laws designed to “lock in” persons to a party

affiliation for purposes of voting in primaries. Evans v.

Common, 398 U.S. 419 (1969) dealt with a state statute

forbidding patients at a federally-run mental hospital

from voting.

The point is that all of these cases involve restrictions

that exclude some class of adults resident within the

relevant boundaries from voting. In Kramer it was non-

parents and non-real property taxpayers, in Gomillion it

was African-Americans, in Carrington it was military

personnel, and so on.

At the risk of repetition, the California statute does not

work this way at all. It allows all adults—African-

American and white, parents and singles, real property

owners and non-owners—to vote as long as they live

within the relevant borders. The statute simply recognizes

that persons on different sides of municipal lines have

differing interests, and Lockport, Holt and Hunter make

clear that States are entitled to wide latitude in weighing

those interests. California has chosen a rational approach

in its scheme, and there is no reason to disturb this judg-

ment. As this Court once observed, government “is the

science of experiment.” Anderson v. Dunn, 6 Wheat. 204,

226 (1821). Petitioner quite evidently does not find the

California experiment to its liking, but there is no reason

to believe it constitutionally infirm.

II. DECISIONS OF LOWER COURTS DEMONSTRATE

THE STATUTE’S CONSTITUTIONALITY

The message of these cases is lost on Petitioner, but

not on lower courts. A review of the decisions of lower

courts facing similar issues reveals that they are in ac-

cord with the California Supreme Court’s excellent opin-

ion in this case.

In St. Louis v. The City of Town and Country, 590

F, Supp. 731 (E.D. Mo. 1984) the district court con-

sidered a situation exactly analogous to the one at hand

here. Missouri law allowed for the annexation of un-

incorporated portions of the county to existing munici-

palities. Residents in the unincorporated and unannexed

portion of the county sued claiming that the ensuing “loss

of government revenue” to the county gave them the right

to vote on annexation matters. Jd. at 736. The district

court rejected this contention and upheld the voting

scheme under rational basis review. /d. at 737.

In Provance v. Shawnee Mission Unified School Dist.

No. 512, 231 Kan. 636, 648 P.2d 710 (1982), the Kansas

Supreme Court considered and rejected an argument much

like the one raised here by Petitioner. In Provance a

Kansas statute required a vote on the issue of a school

closing only within the geographical subdistrict in which

the school was located. A resident of the school district,

but not the subdistrict, challenged the statute arguing

that the financial interdependence of the district neces-

sitated a district-wide vote. Citing Holt and Lockport,

the Kansas high court applied minimal scrutiny and

rejected the challenge.

In Moorman v. Wood, 504 F. Supp. 467 (E.D. Ky.

1980) the district court faced a Kentucky statute that

allowed only the residents of a de-annexing portion of a

city to vote on whether to annex to another city. The

district court upheld this statute against constitutional

attack. The court employed rational basis review and

expressly endorsed the right of the State to “experiment.”

Id. at 477. Nearly the same problem was faced by the

Alabama Supreme Court when it considered whether the

State could limit the franchise in an annexation election

to the residents of the annexing area. Givorns v. City

of Valley, 598 So. 2d 1338 (Ala. 1992). Citing Holt, the

Alabama high court upheld the statute under the rational

basis test. Jd. at 1340.

At least three district courts have faced the question

of whether the franchise on an annexation can be with-

held from those in the annexed territory, thus effectively

giving the city the right to “unilaterally” annex adjacent

areas. All three decisions, one of which was summarily

affirmed by this Court, employed deferential review and

sustained the statutes against constitutional attack. See

Murphy v. Kansas City, 347 F. Supp. 887 (W.D. Mo.

1972); Thompson v. Whitley, 344 F. Supp. 480 (E.D.

N.C. 1972); Adams v. City of Colorado Springs, 308

F. Supp. 1897 (D. Colo.), aff'd, 399 U.S. 901 (1970).

The message from the lower courts could not be clearer.

Lower courts have understood Holt, Lockport and Hunter

to mandate deferential review in circumstances like the

case at hand. The California Supreme Court’s unanimous

opinion is in line with these decisions and this provides

an additional reason to deny the writ.

Itl. STATE PRACTICE ALLOWS A CITY-WIDE VOTE

The uniform practice among the States is to allow only

the residents of a proposed city, town or village to vote

on the matter of its incorporation. In Carrington, supra,

380 U.S. 89, 91-92—the case relied upon so heavily by

Petitioner—this Court referred to the “unique” nature

of the Texas statute, and bolstered its analysis by a com-

parative review of other State practices. More recently,

this Court has emphasized that the prevalence of a prac-

tice is a factor in assessing its constitutionality. Cf.

Burnham v. Superior Court, 495 U.S. 604, 615 (1990)

(continuing use “in a substantial number of the States”

of the rule of in-state service to establish in personam

jurisdiction is a factor tending to show its constitution-

ality) ; id. at 627 (White, J., concurring in part and con-

curring in the judgment) (in-state service is “so widely

accepted throughout this country that I could not possibly

strike it down’’); id. at 658 (Stevens, J., concurring in

the judgment) (wide acceptance of the practice a factor

in making its validity an “easy case”).

At least 32 States provide for incorporation elections.

All of the 32 States—including, of course, California—

limit the franchise to voters residing within the bound-

aries of the proposed municipality. See Ala. Code § 11-

41-3 (franchise limited to those who have “resided within”

the proposed boundaries for three months . . .); Alaska

Stat. § 29.05.110 (voter must be “resident within” the

proposed boundaries for 30 days); Ariz. Rev. Stat. Ann.

§ 9-101 (“only qualified electors of the community shall

vote on the question”) ; Colo. Rev. Stat. § 31-2-102 (fran-

chise extends to “all the registered voters residing within

the territory’’) ; Ill. Rev. Stat., ch. 24, § 2-3-6 (matter to

be submitted to “the electors of such area’’) ; Lowa Code

§ 368.19 (“qualified electors of the territory or city may

vote”); La. Rev. Stat. 33:3(B) (“All of the qualified

electors residing within the area proposed for incorpora-

tion shall be entitled to vote.”) ; Md. Code Ann. art. 23A,

$25 (“the question of incorporation under the proposed

charter shall be submitted to the registered voters of the

area proposed to be incorporated”) ; Mass. Const. Amend.

Art II, §3 (adoption of charter must be submitted “to

the voters of the city or town”); Mich. Comp. Laws

§ 128.1010 (“a referendum on the question of incorora-

tion to be held in the area approved for incorporation”) ;

Nev. Rev. Stat. § 266.016 (eligible voter is “a person

registered to vote in this state and is a resident of the

area to be included in the proposed city”); N.M. Stat.

Ann. § 8-2-6(E) (“Any registered voter who is a resi-

dent of the territory proposed to be incorporated may

vote on the question of incorporating the territory as a

municipality.”); N.Y. Village Law § 2-216 (“Each resi-

dent in such territory qualified to vote for town officers

may vote at such election.”) ; N.D. Century Code § 40-02-

06 (election to be held “within the boundaries of the

proposed municipality”) ; Ohio Rev. Code Ann. § 707.30

(D) (“Every elector residing in the territory sought to

be incorporated under the petition shall be permitted to

vote.”); 11 Okla. Stat. §8-102 (election held by “sub-

mitting to the registered voters of the proposed town the

question of whether or not such territory shall become an

incorporated town”); Or. Rev. Stat. § 221.050(1) (“The

county court shall submit the proposition for incorpora-

tion . . . to the electors registered in the area to be

incorporated’’) ; 53 Penn. Stats. § 35202 (question of in-

corporation to be submitted “to the qualified electors

thereof”); R.I. Const. art. 18, §7 (charter must be

a eee ae

approved by “the electors of the city or town qualified to

vote”; § 45-2-1 of the Rhode Island Code allows for city

formation only by adoption of a charter) ; S.C. Code Ann.

§ 5-1-50 (election held among “all registered voters living

in the area sought to be incorporated”); S.D. Codified

Laws § 9-3-6 (incorporation requires “the assent of the

qualified voters thereof”); Tenn. Code Ann. § 6-1-204

(a) (“All registered voters of the municipality or of the

territory of the proposed municipality are eligible to vote

in the election.) ; Tex. Local Gov’t Code Ann. § 7.006

(“Each qualified voter who resides within the boundaries

of the proposed municipality may vote at the election.”) :

Utah Code Ann. § 10-2-101.5 (petition for incorporation

must call for submission “to the legal voters resident

within the territory described, for their approval or re-

jection at a special election”) ; Wash. Rev. Code § 35.090

(“No person is entitled to vote thereat unless he or she

is a qualified voter . . . and has resided within the limits

of the proposed city or town for at least 30 days”);

W. Va. Code § 8-2-6 (“each qualified elector of the terri-

tory sought to be incorporated shall have the right to

cast his vote for or against such incorporation”); Wis.

Stat. § 66.018 (incorporating by reference § 66.021(5)’s

requirement that election be “a referendum of the electors

residing in the area”) ; Wyo. Stat. § 15-1-205(b) (i) (“an

election of all qualified electors residing within the

territory” ).

The Petition cites statutes from 15 states granting

the franchise both to the detaching and remaining area

of a city in the context of municipal detachment. Peti-

tion at 10, n. 6. This is of no relevance for several

reasons. First, as we have seen, the universal practice

among the States on this issue—incorporation of a new

municipality—is to require a vote only within the bound-

aries of the new city. In fact, most of the States to which

Petitioner refers have statutes specifically confining the

franchise in incorporations to the borders of the new city.

Second, detachments are a very different matter. By

incorporating, a new municipality does not “secede” from

the county in which it lies. As the trial court pointed

out, the proponents of the Citrus Heights incorporation are

attempting to create a new city, not a new county. App.

to Cert. at 83a. And the trial court could “not find that

the City of Citrus Heights is seceding from the County

of Sacramento... .” App. to Cert. at 83a. Thus, even

granting Petitioner its doubtful premise that there is a

widespread practice of granting a broader franchise in

cases of municipal detachments, it is clear that this is

not such a case, and that in the formation of new cities

the universal practice is to limit the franchise to the

borders of the new city.

Third, even assuming that States often grant a broader

franchise is detachments, this is simply a policy choice.

It is clear that States are under no constitutional com-

sion to do so, see, e.g., Moorman v. Wood, 504 F. Supp.

467 (E.D. Ky. 1980), and indeed the Petition cites stat-

utes from many States that limit the franchise to the

detaching area. Petition at 10, n. 6.

In the final analysis, then, there is nothing to suggest

that any United States election on the incorporation of a

new city ever involved a county-wide vote. The decisions

of this Court do not require such a vote, the decisions of

the lower courts reject any suggestion that such an elec-

tion is constitutionally-compelled, and the 32 states that

provide for incorporation elections all limit the franchise

to the voters residing within the proposed city.

CONCLUSION

Granting this petition would serve no purpose. The

decisions of this Court are clear and reject Petitioner’s

contentions. The decisions of the lower courts, including

the persuasive and unanimous opinion of the California

Supreme Court below, are not in conflict and universally

reject Petitioner’s position. Thirty-two of our Nation’s

states have statutes like California’s, and no State has

extended the franchise in incorporation elections in the

way that Petitioner suggests is constitutionally-mandated.

For these reasons, this Court should deny the petition for

certiorari.

Respectfully submitted,