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

Boprems Court, U.S

BIDEOD

MAR 4 1993

No. 92-1313

Orrice OF THE CLERK

Cr

In The

Supreme Court of the United States

October Term 1992

.

SACRAMENTO COUNTY BOARD

OF SUPERVISORS,

Petitioner,

SACRAMENTO COUNTY LOCAL AGENCY

FORMATION COMMISSION,

Respondent.

+

On Petition For A Writ Of Certiorari

To The California Supreme Court

¢

RESPONDENT'S BRIEF IN OPPOSITION

¢

Nancy C. Mitter*

Kirk E. Trost

MatTINA R. KOLOKOTRONIS

Hype, Miter & Owen

428 J Street, Suite 400

Sacramento, CA 95814

Telephone: (916) 447-7933

Attorneys for Respondent

Sacramento Local Agency

Formation Commission

*Counsel of Record

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

OR CALL COLLECT (402) 342-283

QUESTION RESTATED

Does a California statute granting voting rights in

incorporation elections only to residents within the pro-

posed city boundaries violate the Equal Protection Clause

of the Fourteenth Amendment?

TABLE OF CONTENTS

Page

TABLE OF CONTENTS.......... axes asin Meas

TASLE OF AUTHORITHRR oo cccse ec eee iii

RESTATEMENT OF THE CASE................ I

i. STATEMENT OF PACTS... 2

Il. COURSE OF PROCEEDINGS ................ 4

REASONS FOR DENYING THE WRIT............. 6

l. STATE STATUTES GOVERNING INCOR-

PORATION ELECTIONS ARE PROPERLY

REVIEWED UNDER THE RATIONAL BASIS

STANDARD

WEPCPre ery eee ee ree eee 5

Il. SECTION 57103 DOES NOT “FENCE OUT” A

CLASS OF VOTERS BECAUSE OF THE WAY

THEY MAY VOTE. 304 17

TABLE OF AUTHORITIES

Page

CASES

Board of Supervisors v. Local Agency Formation

Comm'n, 3 Cal. 4th 903, 13 Cal. Rptr. 2d 245,

Goo F.a@ 1196 (1992)................. -eeeees. passim

Burdick v. Takushi, 112 S. Ct. 2059 (1992). ig, ta

Carrington v. Rash, 380 U.S 89 (1965)......... P, ia, I7

Cipriano v. City of Houma, 395 U.S. 701 (1969) 1]

Citizens Against Forced Annexation v. Local

Agency Formation Comm'n, 32 Cal. 3d 816, 187

Cal. Rptr. 423, 654 P.2d 193 (1982) 5

City of New York v. State, 158 A.D.2d 169, 557

N.Y.S.2d 914 (N.Y. App. Div. 1990), aff'd, 76

N.Y.2d 479, 562 N.E.2d 118 | 11

Evans v. Cornman, 398 U.S. 419 (1969) 13

Fullerton Joint Union High School Dist. v. State

Bd. of Educ., 32 Cal. 3d 779, 187 Cal Rptr. 398,

654 P.2d 168 (1982) 5, 18

Givorns v. City of Valley, 598 So. 2d 1338 (Ala

|.) SRE 12

Gomillion v. Lightfoot, 364 U.S. 339 (1960) 1]

Gray v. Saunders, 372 U.S. 368 (1963). 9

Hill v. Stone, 421 U.S. 289 (1975) . 16

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

Tee eee eR ERE Tee ee is - Bh, Bd, 15, 16

TABLE OF AUTHORITIES —- Continued

Page

Hunter v. Pittsburgh, 207 U.S. 161 (1907)............ 10

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

eR tS, Sen en ee Ren er reece ee 11

Kusper v. Pontikes, 414 U.S. 51 (1973) .............. 14

Little Thunder v. State of South Dakota, 518 F.2d

bk Ee | rere e ee eer es errr: eee Te 12

Lockport v. Citizens for Community Action, 430

Dee A REO ET on en ens i cetnchaw eed 11, 13, 14, 16, 18

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

re errr rey meter rrr ea yas pare ee 11

People v. Saunders, 51 Cal. 3d 471, 273 Cal. Rptr.

Og TOE ee Oe CUI 6 we kk cae V eG sya keehend bens 5

Phoenix v. Kolodziejski, 399 U.S. 204 (1970)......... 11

Plyler v. Doe, 457 U.S. 202, reh’g denied, 485 U.S.

SR ee Ss re ei een eee da eee ake ees 6

Rosario v. Rockefeller, 410 U.S. 752, reh’g denied,

Sy eer iene nee 14

St. Louis County, Mo. v. City of Town and Coun-

try, 590 F. Supp. 731 (E.D. Mo. 1984) ............. 1]

CONSTITUTIONAL AND STATUTORY PROVISIONS

Cal. Const., art. 11, § 1(a) (West Supp. 1993)......... 2

Cal. Const., art. 11, § 2 (West Supp. 1993) ........... 2

Cal. Gov’t Code §§ 56000 et seq. (West Supp. 1993) passim

TABLE OF AUTHORITIES - Continued

Page

Cal. Gov’t Code § 56001 (West Supp. 1993) ...... 13, 17

Cal. Gov’t Code § 56021(a) (West es 2

Cal. Gov’t Code § 56069 (West Supp. 1993) .......... 2

Cal. Gov’t Code § 56375(a) (West supp. 1993)......:. 2

Cal. Gov’t Code § 56750 (West Supp. 1993) .......... 2

Cal. Gov’t Code § 56836(b) (West Supp. 1993)........ 2

Cal. Gov’t Code § 57103(a) (West Supp. 1993)... passim

No. 92-1313

+

In The

Supreme Court of the United States

October Term 1992

*

SACRAMENTO COUNTY BOARD

OF SUPERVISORS,

Petitioner,

SACRAMENTO COUNTY LOCAL AGENCY

FORMATION COMMISSION,

Respondent.

¢

On Petition For A Writ Of Certiorari

To The California Supreme Court

*

RESPONDENT’S BRIEF IN OPPOSITION

.

RESTATEMENT OF THE CASE

Respondent must clarify portions of Petitioner’s

Statement of the Case.

A new city can be created in the State of California by

citizen petition pursuant to the Cortese-Knox Local Gov-

ernment Reorganization Act of 1985. Cal. Gov’t Code

§§ 56000 et seq. (West Supp. 1993) (hereinafter “Cortese-

Knox Act”). The petition must be signed by at least

twenty-five percent (25%) of the registered voters within

the proposed city boundaries. Cal. Gov’t Code § 56750

(West Supp. 1993). In 1986, sufficient signatures were

gathered to commence review by the Sacramento Local

Agency Formation Commission of the proposal to incor-

porate the city of Citrus Heights, whose population was,

at that time, approximately 69,000 persons.

I.

STATEMENT OF FACTS

Petitioner, the Sacramento County Board of Super-

visors, is the existing local government within the Citrus

Heights area. If incorporation is successful, the County

would retain jurisdiction over the area for state govern-

ment purposes, but local police power and land use

authority would rest with the new city. Cal. Const., art.

11, §§ 1(a), 2 (West Supp. 1993).

The filing of a citizen petition does not ensure that an

incorporation proposed will be placed on the ballot.

Under the Cortese-Knox Act, the Local Agency Formation

Commission (hereinatter “LAFCO”) is charged with

reviewing the petition and conducting public hearings on

the matter. Cal. Gov’t Code §§ 56021(a), 56069, 56375(a),

56836(b) (West Supp. 1993). Rather than reiterate the

numerous protections contained in the Cortese-Knox Act

to check and balance the competing interests of local

government, Respondent respectfully refers the Court to

the California Supreme Court’s discussion in the decision

below. See Board of Supervisors, 3 Cal. 4th at 909-912 (Pet.

App. at 5a-10a.)

Contrary to Petitioner’s assertion that “it is undis-

puted that the incorporation of the City of Citrus Heights

will cause a significant loss of revenue to the County”

(Pet. at 6 n.4), no such impacts are established by the

record below. Indeed, at the commencement of the

LAFCO proceedings, documents were filed with LAFCO

claiming that the incorporation as proposed would have

an adverse financial impact upon Sacramento Couniy.

However, the proponents of incorporation also filed

numerous documents disputing the severity of this

impact. As a result, LAFCO adopted several measures

and conditions on the incorporation proposal to mitigate

these impacts. Board of Supervisors, 3 Cal. 4th at 908 (Pet.

App. at 3a.)

These measures (discussed by the California Supreme

Court) included excluding several sales tax-rich shopping

centers from the proposed area of incorporation and

requiring that the new city’s receipt of property taxes be

phased in more slowly. Id. Disengenuously ignoring these

mitigation measures and conditions, Petitioner’s

“Selected Excerpts from the Administrative Record

Below” (Pet. App. at 86a-105a) predate the mitigation mea-

sures and conditions imposed by LAFCO.' Board of

1 See Pet. App. E: “Selected Excerpts from the Administra-

tive Record Below”. The one exception is the Memorandum

dated May 24, 1988, from the County Executive to the Board of

Supervisors. While this Memorandum was submitted after the

lengthy LAFCO hearing process and contained an estimate of

financial impacts that LAFCO disputed, LAFCO in fact used

that estimate as a basis for concluding that the financial impacts

of incorporation were not severe. Board of Supervisors, 3 Cal. 4th

at 923 (Pet. App. at 23a-24a.)

Supervisors, 3 Cal. 4th at 907-09, 922-23 (Pet. App. at

3a-4a; 23a-24a.)

The trial court found that LAFCO’s mitigation mea-

sures and conditions resulted in insubstantial financial

impacts on Sacramento County. (Pet. App. at 81a, 83a.) By

unanimous decision, the California Supreme Court

agreed. Board of Supervisors, 3 Cal. 4th at 907-09, 923 (Pet.

App. at 2a-4a, 24a.)

Finally, as discussed more fully below, Respondent

disputes Petitioner’s contention that the state law grant-

ing voting rights in incorporation elections only to resi-

dents within the proposed city boundaries excludes a

class directly and substantialiy affected by the incorpora-

tion.

Il.

COURSE OF PROCEEDINGS

The trial court did not, as Petitioner claims at page 7

of the Petition, find substantially different interests

between annexations and incorporations. The trial court

rendered an oral statement of decision which is attached

to the Petition at Appendix C. This Court will recognize

that an oral statement of decision can be less precise than

a written one. Nonetheless, the trial court found a lack of

evidence to support the County’s claim that the voting

franchise was unconstitutional and found no abridge-

ment of the franchise in an incorporation. (Pet. App. at

83a.)

Not surprisingly, Petitioner relies most heavily on the

opinion of the Third District Court of Appeal. (Pet. at

7-10.) It is important to note that the appellate court, in

rendering its decision, relied primarily on two California

Supreme Court cases, Citizens Against Forced Annexation v.

Local Agency Formation Comm’n, 32 Cal. 3d 816, 187 Cal.

Rptr. 423, 654 P.2d 193 (1982), and Fullerton Joint Union

High School Dist. v. State Bd. of Educ., 32 Cal. 3d 779, 187

Cal. Rptr. 398, 654 P.2d 168 (1982).

However, the California Supreme Court subsequently

determined that these cases, Citizens and Fullerton, were

not controlling authority. Fullerton was a plurality opin-

ion that lacked authority as precedent. Board of Super-

visors, 3 Cal. 4th at 918 (Pet. App. at 17a.) The court found

Citizens, in which a bare majority concurred, constitu-

tionally infirm and not to be followed to the extent incon-

sistent with the ruling in this case. Id. at 920-921 (Pet.

App. at 20a-21a.) The California Supreme Court has thus

removed the foundation upon which the appellate deci-

sion relied.

Likewise, Petitioner’s characterization of the Califor-

nia Supreme Court’s ruling requires clarification. The

California Supreme Court did not find, as stated in the

Petition at page 12, that there was just “some fair rela-

tionship,” between the voting franchise and a legitimate

state purpose. Rather, the court held that, “Giving section

57103 the presumption of constitutionality to which every

statute is entitled (People v. Saunders, 51 Cal. 3d 471, 495,

273 Cal. Rptr. 537, 797 P.2d 561 (1990)), we conclude that

it must be given effect if it bears some fair relationship to

a legitimate public purpose. (Plyler v. Doe, 457 U.S. 202,

206.)” Board of Supervisors, 3 Cal. 4th at 923 (Pet. App. at

24a.)

The court then applied the “fair relationship” test to

the facts presented and held that the legislature's

expressed statutory policy evidenced a legitimate pur-

pose and that Section 57103 was fairly related to that

purpose. Recognizing that the Cortese-Knox Act con-

tained an elaborate mechanism to balance the competing

political forces present in many government reorganiza-

tion requests, the California Supreme Court concluded

that the Cortese-Knox Act “was constructed with a

mighty bulwark against the exercise of arbitrary discre-

tion.” Id. at 924 (Pet. App. at 25a.)

Contrary to Petitioner’s statement on page 13, the

California Supreme Court did not find that the state

statute resulted in the “disenfranchisement of a class of

otherwise qualified voters.” Rather, the court held that

the “mere fact that a state law touches on the right to vote

does not necessarily require the application of strict scru-

tiny.” Id. at 914 (Pet. App. at 12a.) In analyzing the facts

of the case, the court determined that the application of

the rational basis test was the appropriate constitutional

test. Ruling that the Cortese-Knox Act survived this anal-

ysis, the court properly applied federal precedent.

o--

REASONS FOR DENYING THE WRIT

The California Supreme Court’s decision does not

conflict with any decision of this Court or any other

court. The decision below turned on its own facts and it

will affect few others than the litigants. In its ruling, the

California Supreme Court actually chose not to follow its

previous rulings because the court found it impossible to

reconcile those decisions with the “federal high court's

prescription.” Id. at 920-921 (Pet. App. at 20a.)

Contrary to Petitioner’s assertion, this case does not

raise an unsettled constitutional issue of national signifi-

cance. (Pet. at 12.) To Respondent’s knowledge, in an

incorporation election, no state grants the right to vote to

persons residing outside the boundaries of the proposed city.?

Although the petition is unclear as to whether the

constitutional challenge to section 57103 is a “facial” or

“as applied” challenge, Petitioner seeks to have this

Court determine that Sacramento County residents be

treated differently from every other County in the nation.

The constitutional question here is not substantial. Peti-

tioner’s rights are adequately protected by the state statu-

tory process for municipal creation adopted by the

California legislature.* In this case there is no substantial

2 While Petitioner cites numerous state statutes in the Peti-

tion’s footnotes, all these statutes reference either municipal

detachment or incorporation. None of the statutes allow resi-

dents outside the proposed area of an incorporation to vote.

(Pet. at 10 n.6, 14 n.8.) (Detachment occurs when voters within

an existing municipality desire to detach and join another city

or form their own. Incorporation is the creation of a munici-

pality.)

* The factual controversy in this case is not material. Peti-

tioner cites to selected documents in the record below which

were prepared prior to the mitigation measures adopted by

Respondent to lessen the financial impacts of incorporation. See

financial detriment to persons residing outside the

boundaries of the proposed incorporation. Id. at 923 (Pet.

App. 23a-24a.) In addition, the decision by the California

Supreme Court preserves the uniformity of decisions of

other states and of this Court.

STATE STATUTES GOVERNING INCORPORATION

ELECTIONS ARE PROPERLY REVIEWED UNDER THE

RATIONAL BASIS STANDARD.

The sole issue for review in the California Supreme

Court was whether California Government Code section

57103 was unconstitutional as applied in Sacramento

County. Section 57103 grants voting rights in an incor-

poration election to only those residing within the pro-

posed boundaries of the new city.

The California Supreme Court unanimously ruled that

the statute survived a “facial” as well as an “as applied”

challenge under the federal and state due process clauses.

Board of Supervisors, 3 Cal. 4th at 907 (Pet. App. at 1a.)

Petitioner argues that the court improperly applied the

“rational basis test” to the statute and should have

reviewed the statute under the more rigorous “strict scru-

tiny” test. (Pet. at 15.) However, the California Supreme

supra at 3-4. Respondent believes Petitioner incorrectly conveys

to this Court that these impacts were not addressed. (See Pet. at

5-6, 9-10.) The Administrative Record in this case exceeds

eleven (11) volumes and over three thousand (3000) pages of

documents. After factoring the mitigation measures imposed by

Respondent, the trial court and the California Supreme Court

did not find any unusual or significant financial impacts. Board

of Supervisors, 3 Cal. 4th at 922-23 (Pet. App. at 23a-24a.)

Court's treatment is fully consistent with the decisions of

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

In Carrington, the Texas Constitution absolutely pro-

hibited servicemen and women from registering to vote.

Id. No other state in the union had such a restrictive

franchise. Id. at 93. The rationale for this provision was to

protect the state from “transients” and to prevent the

concentrated balloting of military personnel. /d. However,

the statute effectively deprived all who wore a uniform

the right to vote, no matter how long they had lived in

the State of Texas. The Court concluded that “[T]here is

no indication in the Constitution that occupation affords

a permissive basis for distinguishing between qualified

voters within the State.” Id. at 96, quoting Gray v. Saun-

ders, 372 U.S. 368, 380 (1963). The Court struck down the

classification as unreasonable and lacking a rational basis

for its breadth. The Court also indicated that the State

could reach its goals of requiring bona fide residence by a

less restrictive means. /d. at 93, 96.

In contrast to our case, no state extends voting rights

to persons outside the proposed boundaries of an incor-

poration to our knowledge. Carrington supports applica-

tion of the rational relationship standard of review, since

there exists a permissive basis for distinguishing between

voters within the proposed boundaries of incorporation

and those outside.

Carrington does not mandate that all persons with

varying interests in an election are constitutionally enti-

tled to vote. In fact, Carrington is one of a long line of

unbroken authority recognizing the state’s broad power

to regulate municipal elections and confine the vote to

those most interested in the election.

10

In the seminal constitutional case challenging state

regulation of local government organization, Hunter v.

Pittsburgh, 207 U.S. 161, 178-179 (1907), this Court

described that broad power as follows:

Municipal corporations are political subdivi-

sions of the State, created as convenient agen-

cies for exercising such of the governmental

powers of the State as may be entrusted to

them. . . . The number, nature and duration of

the powers conferred upon these corporations

and the territory over which they shall be exer-

cised rests in the absolute discretion of the State.

The State . . . at its pleasure may modify or

withdraw all such powers . . . expand or con-

tract the territorial area, unite the whole or a

part of it with another municipality, repeal the

charter and destroy the corporation. All this

may be done, conditionally or unconditionally,

with or without the consent of the citizens, or

even against their protest. In all these respects,

the State is supreme, and its legislative body,

conforming its action to the state constitution,

may do as it will, unrestrained by any provision

of the Constitution of the United States.

Petitioner claims that the reliance on Hunter by the

California Supreme Court was misplaced, and argues that —

the state’s power to create municipalities is qualified by a

citizen’s right to vote. (Pet. at 19.) We do not read Peti-

tioner’s cited cases so broadly.

4 Petitioner alleges the California Supreme Court failed to

take note that in the Hunter case, the First Assignment of Error

was rejected. (Pet. at 18 n.10.) However, the manner of the due

process violation was set forth in the First Assignment of Error

and was properly quoted by the Court. Hunter, 207 U.S. at 168.

1]

Restrictions on the state’s broad discretion are lim-

ited. Certainly, the state may not manipulate boundaries

for purposes of race discrimination, Gomillion v. Lightfoot,

364 U.S. 339, 343-44 (1960), nor may a state exclude

qualified voters if others similarly impacted and situated are

granted voting rights, Kramer v. Union Free School Dist.,

395 U.S. 621, 632-33 (1969); Cipriano v. City of Houma, 395

U.S. 701, 702, 806 (1969); Phoenix v. Kolodziejski, 399 U.S.

204, 212-13 (1970). However, this Court has long recog-

nized the power of the state to regulate local government

creation. Holt Civic Club v. Tuscaloosa, 439 U.S. 60, 68-69

(1978); Lockport v. Citizens for Community Action, 430 U.S.

259, 272 (1977).

The rational basis test has been applied by federal

courts to statutes which exclude nonresidents from vot-

ing on a change in municipal organization. The California

Supreme Court recognized these cases, citing City of New

York v. State, 158 A.D.2d 169, 557 N.Y.S.2d 914 (N.Y. App.

Div. 1990), aff'd, 76 N.Y.2d 479, 562 N.E.2d 118; St. Louis

County, Mo. v. City of Town & Country, 590 F. Supp. 731

(E.D. Mo. 1984)5; Moorman v. Wood, 504 F. Supp. 467 (E.D.

5 In St. Louis County, Mo. v. City of Town & Country, county

and unincorporated area residents sued various municipalities

in the process of annexing unincorporated territory within the

county. 590 F. Supp. at 732. Pursuant to state law, the munici-

palities held elections and the vote was limited to residents of

the annexing municipality and the unincorporated area terri-

tory to be annexed. Id. at 733-44. Plaintiffs raised essentially the

same arguments raised by Petitioners here, inter alia, that

municipalities were annexing areas which were a major source

of revenue to the county and that the loss of those revenues

would severely impact and curtail the municipal services pro-

vided to the unincorporated areas. Id. at 736. The court ruled

12

Ky. 1980); Givorns v. City of Valley, 598 So. 2d 1338 (Ala.

1992); Board of Supervisors, 3 Cal. 4th at 922 (Pet. App. at

22a.)

Most recently, this Court, in Burdick v. Takushi, 112 S.

Ct. 2059, 2061 (1992), reviewed an election statute placing

a total ban on write-in candidates in state elections. The

Court applied the rational basis test despite the absolute

ban. Id. at 2064. In Burdick, the Court explained that a

burden on the.right to vote does not invoke strict scrutiny

unless voting rights are subjected to severe restrictions.

Id. at 2063. If, however, the law only imposes “reasonable,

nondiscriminatory restrictions,” the law need only bear a

rational relationship to the state’s interest. Id. at 2064.

That restriction of the franchise to those within the

proposed new city boundaries as set forth in section

that “impact alone is not enough to give the latter a right to vote.

Just as the residents of a municipality may take actions which

affect those residing outside the municipality, even though the

latter are not allowed to vote, (Holt, 439 U.S. at p- 69), so may the

residents of the geographic area allowed to vote here approve

annexations which affect those who reside in surrounding areas

of the County.” Id. at 737.

Likewise, In Little Thunder v. State of South Dakota, 518 F.2d

1253, 1256 (8th Cir. 1975), the court recognized that voters have

a constitutionally recognized interest in an election of govern-

ment officials that will “exercise general governmental func-

tions” over the disenfranchised individuals. Id. Little Thunder is

distinguishable and consistent with this case: to wit, it con-

cerned a statutory scheme which disenfranchised residents in

unorganized counties in elections for officials that would exer-

cise general government authority over those very individuals.

In this case, there is no suggestion that the proposed new city

would exercise any general governmental power over those not

entitled to vote.

13

57103 is a reasonable restriction linked to a legitimate

State purpose. The exclusion of other residents of the

county is not an “invidious or suspect classification” as

existed in Carrington or in Evans v. Cornman, 398 U.S. 419

(1969) but necessary to the orderly growth and develop-

ment of the State of California as set forth in the Cortese-

Knox Act. Cal. Gov’t Code § 56001 (West Supp. 1993).

Consequently, the California Supreme Court was correct

in finding that there was no “suspect classification

involved” and properly invoked the deferential standard

of review in accordance with this Court’s ruling in Bur-

dick.®

Petitioner argues that the California Supreme Court

misapplied the findings of Lockport v. Citizens for Commu-

nity Action, 430 U.S. 259 (1978) (Pet. at 22-28.) In Lockport,

a New York law provided for concurrent majorities in

order to create a new county; a majority of the voting city

dwellers and a majority of noncity dwellers. Id. at 262.

Two separate votes on the referendum were conducted.

Both times a majority of the city voters approved the

referendum while a majority of the noncity dwellers did

not. Id. Of total votes cast, a majority of the entire county

favored the charter. Id. A constitutional challenge ensued

© We believe that the dissenting argument in Burdick also

supports Respondent’s position. The history of the legislation

was highly relevant to the dissenting Justice’s conclusion that

the election law was overly restrictive and not related to a

rational state purpose. No such restrictive history is present in

this case. In fact, the California Supreme Court found a respon-

sive state legislative process which protects against arbitrary

discretion. Board of Supervisors, 3 Cal. 4th at 923-24 (Pet. App. at

24a-25a.)

14

based upon the Equal Protection Clause Ruling that there

were genuine differences in the relevant interests of the

city and noncity dwellers, this Court unanimously upheld

the concurrent-majority requirement. Id. at 272. Addi-

tionally, this Court did not find any “invidious” discrimi-

nation in the statutory scheme. Id.

Petitioner seeks to distinguish Lockport on the basis

that no voting rights are granted in this case to unincor-

porated area voters living outside the proposed city

boundaries, and therefore strict scrutiny should apply.

Petitioner cites Rosario v. Rockefeller, 410 U.S. 752, reh’g

denied, 411 U.S. 959 (1973), and Kusper v. Pontikes, 414 U.S.

51 (1973), for the proposition that absolute disen-

franchisement subjects the voting scheme to strict scru-

tiny. (Pet. at 26-27.)? These citations are misplaced.

Absolute disenfranchisement of otherwise similarly situ-

ated and interested qualified electors may subject a vot-

ing restriction to strict scrutiny. But in this case, we do

not have such a class and no state recognizes such a class

of voters.

]

The error in Petitioner’s argument is that it assumes

that unincorporated area residents have a constitutionally

7 In Rosario, the State of New York enacted the most severe

registration restrictions in the nation on previously unaffiliated

voters. 410 U.S. at 763. In upholding the restriction, the Court

ruled that the restriction was reasonably related to an important

state goal. Id. at 760. Petitioner argues that since the registration

restrictions did not absolutely preclude a voter from affiliating,

it is to be contrasted with our case, where an absolute prohibi-

tion on voting to nonresidents. (Pet. at 26-27.) However, in our

case, these nonresidents do not have a similar interest in the

election as residents, nor are they similarly situated.

15

protected interest in the proposed city. These nonresident

unincorporated area voters are not as interested in the

incorporation as the proposed new residents since they

will not be subject to the representative government of

the proposed new city, nor will they be required to sub-

mit to any of the city’s police power.

The ruling in Burdick also provides guidance. In

applying the rational relationship test to a total ban on

write-in voting, the Court viewed the ban as a reasonable

restriction. In this case nonresidents were found by the

trial court, and a unanimous California Supreme Court,

to be relatively disinterested in the incorporation. Board of

Supervisors, 3 Cal. 4th at 923. (Pet. App. at 24a.) Certainly

these nonresidents’ interests are more attenuated than

those interests reviewed in Burdick. Therefore, application

of the rational basis test is appropriate.

Moreover, even though relatively disinterested, these

nonresidents are protected in California through the stat-

utory process. The Cortese-Knox Act has numerous pro-

visions requiring LAFCO to mitigate financial impacts

upon nonresidents through the statutorily required

administrative proceedings. Rather than provide a

lengthy recitation of the Cortese-Knox Act’s safeguards

and how they were applied in this case, Respondent

respectfully refers this Court again to the opinion of the

California Supreme Court. See Board of Supervisors, 3 Cal.

4th at 904-912, 922-925. (Pet. App. at 2a-10a, 22a-24a.)

In light of this reality, Petitioner attempts to focus on

Sacramento County as the governmental entity con-

cerned. Petitioner cites Holt for the theory that strict

scrutiny is required. (Pet. at 25.) However, Holt denied

16

voting rights to a group which was subjected to the gen-

eral government and police powers of a city, unlike the

facts of this case. Holt, 439 U.S. at 69. In fact, Holt recog-

nizes that “extra-territorial impacts” alone are not suffi-

cient to warrant the right to vote. Id.

If this Court accepts Petitioner’s “impacts” analysis,

an individual owning real property within the proposed

city boundaries, but not domiciled there, must be enfran-

chised since he or she too will be impacted by incorpora-

tion. Others, as yet unidentified, may also be impacted

and thus need to be enfranchised. But this approach

defies the history of residency requirements in voting

rights cases.

Residency is a prerequisite long identified as a

proper restriction on the franchise. Hill v. Stone, 421 U.S.

289, 297 (1975). It, along with age and citizenship, are

historically rooted in our democratic principles. Id. at 297.

The California Supreme Court recognized the need to

clarify its own rulings in order to avoid precisely the type

of impacts analysis advanced by Petitioner. While the

California Supreme Court recognized that Lockport “did

not decide what standard of deference applies when

voters with a more diffuse interest in an incorporation are

excluded from voting to confirm the result of a legislative

scheme that tries to balance competing interests in the

politically freighted process,” it recognized that the ratio-

nal relationship test is entirely consistent with analogous

decisions. Board of Supervisors, 3 Cal. 4th at 917 (Pet. App.

at 15a-16a.)

17

Il.

SECTION 57103 DOES NOT “FENCE OUT” A CLASS

OF VOTERS BECAUSE OF THE WAY THEY MAY

VOTE.

Petitioner’s last argument, that Section 57103 “fences

out” a class of voters, reinvokes the ruling in Carrington.

(Pet. at 28.) Carrington’s prohibition against “fencing out”

a class of voters has no application in this case for the

following reasons.

First, no state recognizes the interests of Petitioner as

a class of “otherwise qualified electors.”

Second, Petitioner mischaracterizes the ruling of the

California Supreme Court. The California Supreme Court

did not rule, as Petitioner states at page 29, that “Section

57103 fairly serves a legitimate state purpose ‘for if large

relatively disinterested majorities could veto incorpora-

tion, the state’s interest in orderly growth and develop-

ment would be thwarted.’ ” Rather, the ruling was:

In section 56001, the legislature announced

a policy ‘to encourage orderly growth and

development . . . essential to the social, fiscal, and

economic well-being of the state,’ and stated that

‘the logical formation and determination of local

agency boundaries is an important factor in pro-

moting orderly development. . . . The Legisla-

ture further finds and declares that this policy

should be effected by the logical formation and

modification of the boundaries of local agen-

cies.’

The foregoing sufficiently shows a legitimate

purpose in enacting section 57103. And we con-

clude that section 57103 is fairly related to the

18

Legislature’s declared purpose, for if large, rela-

tively disinterested majorities could veto incor-

poration decided through the Cortese-Knox

Act’s elaborate process, the result might well

hinder orderly growth and development. Thus,

there is no invidious discrimination of the type

referred to in Lockport, supra, 430 U.S. 259.

Unlike in Fullerton, supra, 32 Cal.3d 779,

which involved a discretionary agency decision

to hold an election, the Cortese-Knox Act was

constructed with a mighty bulwark against the

exercise of arbitrary discretion. The Act accom-

modates competing local governmental and pri-

vate interests, narrowly channeling the

commission’s ultimate determination before the

territory’s voters consider the decision. The

election merely asks the affected residents to

confirm that they desire self-government. To

deny the Legislature the authority to let the poten-

tially incorporating territory's voters have the final

say in the matter would be to lessen political partict-

pation, not increase it. We do not believe that

result is required by our federal and state con-

stitution. Board of Supervisors, 3 Cal. 4th at

923-24 (Pet. App. at 24a-25a.) [Emphasis Added]

This ruling does not conflict with this Court's prior

decisions. The voters were not excluded solely because of

the way they may vote, but because of the Legislature's

declaration of intent in section 56001 and the Cortese-

Knox Act’s accommodation of their interests during the

administrative hearing before LAFCO.

The California Supreme Court found that the Cor-

tese-Knox Act contained a legitimate intent rationally

related to section 57103. The statute, therefore, not only

19

serves a constitutionally permissible purpose but is

essential to the social, fiscal, and economic well-being of

the State of California.

CONCLUSION

Based on the foregoing, the Petition should be

denied

Respectfully submitted,

Nancy C. MILLER

(Counsel of Record)

Kirk E. Trost

MaTINA R. KOLOKOTRONIS

Hype Mitter & Owen

428 “|” Street, Suite 400

(916) 447-7933

Attorneys for Respondent,

Sacramento Local Agency

Formation Commission