Appellees Brief — Salyer Land Co. v. Tulare Lake Basin Water Storage Dist.

Supreme Court brief1973

Ask Donna

What actually matters in this document.

Text

i 7”

IN. THE

i Court of the United

October Term, 1972

No. 71-1456

. ‘Lanp Company, a California corporation,

Appellants,

VS.

iB LAKE BASIN WATER STORAGE DisTRICT, a

district,

Appellee.

. the Eastern District of California.

BRIEF FOR THE APPELLEE.

ERNEST M. CLARK, JR.,

600 South Spring Street,

Los Angeles, Calif. 90014,

RoBERT M. NEWELL,

650 South Grand Avenue,

Suite 500,

The State of California Acted Permissibly When

It Excluded Residents of the District From the

The State of California Acted Permissibly in Ex-

cluding Lessees From the Electorate

If the Franchise Is Limited to Landowners, It Is

Permissible to Permit Each Landowner to Cast

One Vote for Each $100 Worth of Property

Owned by Him

Conclusion

TABLE OF AUTHORITIES CITED

Cases Page

Associated Enterprises, Inc. v. Toltec Watershed Im-

provement District, 490 P.2d 1069 (1971)..........

— 15; 19, 2, 27

Barber v. Galloway, 195 Cal. 373 13

Burrey v. Embarcadero Municipal Improvement Dis-

trict, 5 Cal. 3d 671 (1971) a oa, 27

Gray v. Sanders, 372 U.S. 368 ‘eg 2s ghia cate 19

Hadley v. Junior College District, 397 U.S. 50 ....11, 12

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

245 So.2d 349 16, 27

Kramer v. Union Free School Dist., 395 US. 621

(1969) 11, 13, 14, 27

People v. Reclamation Dist. No. 551, 117 Cal. 114

: 13

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

Reynolds v. Sims, 377 U.S. 533 . wild

Sailors v. Board of Education, 387 U.S. 105 (1967)

pee BA AEE 13, 27

Schindler v. Palo Verde Irrigation Dist., 1 Cal.App.

3d 831 (1969) 14, 27

Tarpey v. McClure, 190 Cal. 593 (1923) .......... Re &

Wallegham v. Thompson, 185 N.W.2d 649 (1971)

15, 27

Statutes

California State Constitution, Art. XIV, Sec. 3 ........ 4

California Water Code, Sec. 100 4

California Water Code, Sec. 104 4

California Water Code, Sec. 105 4

California Water Code,

California Water Code, Sec. 46175

United States Code, Title 28, Sec. 2284

United States Constitution, Fourteenth Amendment.. 27

Sec.

Sec

Supreme Court of the United States

October Term, 1972

No. 71-1456

SALYER LAND COMPANY, a California corporation,

C. EVERETTE SALYER; FRED SALYER; LAWRENCE

ELLISON; and HAROLD SHAWL,

: Appellants,

vs.

TULARE LAKE BASIN WATER STORAGE District, a

- public district,

Appellee.

On Appeal from the United States District Court for

the Eastern District of California.

BRIEF FOR THE APPELLEE.

Status of the Case.

"Appellants (a corporate farmer in the Tulare Lake

Basin of California, two individual officers and share-

holders of the corporation, and an employee of the

corporation residing in the Basin) sought in the United

States District Court For the Eastern District of Cali-

omnia, a judicial declaration that the formula adopted

| by the-California legislature for the election of direc-

Ses tors of a Water Basin Storage District, a special purpose

_ disttict formed for the purpose of developing and im-

Eee

proving the supply of water for agricultural purposes

within the District, is discriminatory and in violation of

the ‘equal protection clause of the Fourteenth Amend-

ment. The Act, pursuant to which the District was

formed, apportioned voting rights among landowners in

proportion to the assessed value of their holdings i in the

District.’

A three-judge court was convened to hear the case.’

The Court in a Memorandum and Order dated Febru-

ary 17, 1972, signed by United States District Judges

M. D.: Crocker and Robert H. Schnacke, held that

apportionment of voting rights: g landowners in

accordance with the California Yaw did not violate the

Constitution in that (1) the District performed no gov-

ernmental functions of general concern to the populace

and provided no service to the general public as found

by the Court in Burrey vy. Embarcadero Municipal Im-

provement District, 5 Cal, 3d 671 (1971), (2) the

State of California has a compelling interest in the de-

velopment of its water resources, and limiting the

vote to landowners is necessary to further this state in-

terest because it is doubtful if the District would have

been formed unless the persons paying the expenses

could control them, and (3) while the activities of

specific statutes attacked by Appellants i

41000 and 41001 of the California Water Storage District Law

(Water Code, Sections 41000 and 41001) as follows:

“Section 41000. Qualification. the holders of title

to land are entitled to vote at a election.

“Section 41001. pdf sry number of votes.

Naas Fear. woe Icom in which any of

biay caer “cane ane for

mma Gio,

Ng ogy

sini.

the District affect the economy of the area, which is of

interest to the residents who are not landowners, this is

an indirect interest and not a direct primary and sub-

stantial interest that would entitle them to vote. For

these reasons Judge Crocker and Judge Schnacke con-

sidered the voting procedure provided by California law

for special purpose districts such as the Tulare Lake

Basin Water Storage District to be proper. The two

judges also held that the statutory method whereby the

District was divided into divisions did violate the Con-

stitution, and the District was ordered to submit a plan

to correct the malapportionment. No appeal is taken

from this holding.

_ The third judge, Circuit Judge James R. Browning,

concurred in part and dissented in part from the

Memorandum and Order of the majority. He agreed that

the District performs no governmental functions and

provides no service of direct concern to residents of the

District. Further, he agreed that the State of California

has a compelling reason for excluding from the vote

nonresidents of the District who neither own nor lease

land within the District. However, he disagreed in part

with the majority when he concluded that lessees of

land, as well as landowners, should be permitted to

vote, and that weighted voting as provided by the Cali-

fornia statute was improper. :

The Memorandum and Order of Judge Crocker and

Judge Schnacke is printed at page 103 of the Appendix

filed herein. The Opinion of Judge Browning is printed

at page 108.

“Appellants ask this Court to overturn the Memoran-

__ dum and Order of the three-man court.

oinacpinee*

The Facts.

In 1921, the California legislature enacted the Cali-

fornia Water Storage Act in order to provide a flexible

response ‘to water problems on a local basis* The

legislation was enacted in furtherance of a compelling

state interest.* —

Water storage districts under the Act are formed for

the limited purpose of storing and distributing water for

irrigation.’ They are formed by owners holding title

to a majority in value of the land within the District,

or by not less than 500 title holders whose holdings

constitute at least ten percent in value of the land.°

The landowners petition the California Department of

Water Resources for its approval. The petition states the

boundaries of the proposed district and a description

of the land, the proposed source of water supply,. the

location proposed for the storage of water for irriga-

tion, any drainage or reclamation connected with the

project, any incidental development of hydroelectric

energy, the nature of the proposed works, and a prayer

that the territory be formed into a water storage dis-

trict.’ The Department holds a hearing after notice

and makes an order containing a determination of the

practicability, feasibility, and utility of the proposed

studies, examinations, surveys, plans and estimates of

cost. The question of formation is then submitted to _

an:@legtinn.. in which only landowners, or their repre-

sentatives, may vote.’ If the majority vote is favorable,

as those for general elections, that is, only holders of

title to land may vote and each voter may cast one

vote. for each $100 worth of his land.” Landowners

may vote in person or by proxy.” Fiduciaries and

ao may vote if they represent or hold title to

woe its formation a water storage district operates

only through the device of a district project which has

been approved by the Department of Water Resources

of the State of California.” The issuance of bonds to

finance such projects is under the general supervision

of the State Treasurer." The Board of Directors of the

district makes a report of each district project and its

estimated cost to the State Treasurer of the State of

California." The State Treasurer makes an independent

investigation of the project and enters an order either

' 8California Water Code, Sections 39775-39800.

\ 8California Water Code, Section 41000.

California Water Code, Section 41001.

California Water Code, Section 41002.

18California Water Code, Section 41003.

8California Water Code, Section 42200, et seq.

“California Water Code, Sections 42275, et seq. (Amended

oe State Treasurer for District Securities Commis-

California Water Code, Section 42276.

af <a

declaring the project abandoned or approving the re-

port of’ the Board.”* If the State Treasurer approves

the report, the Board calls a special election on the

project." To adopt a project it is necessary that there

be a favorable majority of all votes cast and of the

qualified voters who voted at the election.” ,

After the adoption of a project, involving as it does

the action of the Board; the State Treasurer, the De-

partment of Water Resources, and the landowners of the

District, the State Treasurer appoints three commis-

sioners, none of whom can have any interest, directly

or indirectly, in any land in the District, to assess the

cost of the project and apportion the cost in accord-

ance with the benefits that will accrue to each tract of

land held in separate ownership by reason of the ex-

penditure of the money and the completion of the

project.”

‘The Commissioners prepare an assessment roll which

delineates the assessment charges to each tract of land

and states the nature of the benefit to each tract of

land, Should objections be filed, the Commissioners ap-

point two disinterested persons to sit with the President

of the Board of Directors as an “adjustment board” to

hear the objections. The charges set forth in the as-

sessment roll, certified by the Secretary or approved by

the adjustment board if need be, constitute a’ lien on

the land prior:to.all other liens, except state, county,

and municipal taxes and assessments or levies assessed

by or under statutory authority.”

16California Water Code, Sections 42300-42301.

- "California Water Code, Sections 42325, et seq.

-A8California Water Code, Sections 42355-42550.

"Water Code, Section 42355.

*California Water Code, Sections 46175, et seq.

aa, a8

»Im addition to the formation election and project

elections, there are general elections at which directors

of the district are elected.” The duties of the board of

directors are carefully stated by the California legis-

lature. Specifically, the board’s functions are limited to

examining proposed projects, estimating costs, and re-

porting thereon.”

“The board has no power .to legislate. It only per-

forms carefully prescribed administrative functions con-

cerned: with the storage and distribution of water for

The Tulare Lake Basin Water Storage District encom-

passes approximately 193,000 acres, most of which is

located in the Tulare Lake Basin. Tulare Lake Basin in

turn is a shallow depression of about 270,000 acres in

area located west of Corcoran, California.”

: The Basin is subject to flooding from time to time,

principally from the flows of the Kings, Kaweah, Tule

or Kern Rivers or combinations thereof. For example,

in 1969 one of the largest floods in history inundated

portions of the Basin, flooding over 88,000 acres of

California Water Code, Sections 41300, et seq.

*California Water Code, Section 42200 reads as follows:

/° Duties of board

. organization of a district, the board shall make

i Pan arte Gace ob crushes, tvoe eee

and specifications,

Qs ~

rich farmland.™ At:the peak of the flood, 100 percent

of ‘divisions 3;'5 and 6, ‘56 percent of division’4 ‘and

28 percent of division’7 were under water.

use of the recurrent floods, very. few people live

in. the.District. At the present time, there are 77 men,

women. and children living in the District. Many of the

families are permanent or semi-permanent employees of

Westlake Farms, Inc.; which owns approximately 15,000

adres of land on the west side of the Basin. For example,

38 people reside at that company’s Nevada Avenue

Labor Camp; 6, at its Kettleman City Labor Camp; 10,

at its} eadquarters complex; and 12, at its South Ranch

quarters, making a total of 66 people affiliated —

with Westlake Farms, Inc. ‘living in the District. In

addition, 2 people live at the El Rico headquarters of

the J. G. ‘Boswell Company and 4 at that company’s

Homeland. headquarters. Four people live at the South-

lake Farms headquarters, and Lawrence Ellison, one of

the plaintiffs inthis action, lives in a home owned by

plaintiff Salyer Land Company at its North Central

headquarters.

Among these people, only the members of the Howe

families, who ate the owners of Westlake Farms, a

corporation, own land in the District.

There are 307 landowners in the District. The pat-

tern of land fee varies greatly in different por-

MAY a oe oe ee the flooded area on

October 5, is Defendant’s O, printed following

nt fe Neat

A map showing the location of place indicated, wd

tees Sou La enue eo ss

tions ‘of: the District. For example, in the lower portions

the: dand'is held; for the most part, in sizable owner-

_ ships. However, in the southeastern quadrant, in an

area sometimes referred to as to the Homeland Dis-

trict, there are many small ownerships. This pattern is

due to the fact that some years ago there was some

ships were sold by the promoters of this venture. These

small holdings are all leased for farming to larger

operatots, who usually vote these smaller holdings by

proxy.”

The District provides no public services, such as

schools, housing, transportation, utilities, roads, or any-

thing else of the type ordinarily financed and operated

by a municipal body. There are no towns, shops, hos-

pitals, fire departments, police, buses, trains or other

facilities of a type designed to improve the quality of

life within the boundaries of a governmental entity.

The Tulare Lake Basin Water Storage District was

divided into eleven divisions, and a Director was elected

for each division by its landowners, with each landown-

er receiving one vote for each $100 worth of his land.

It is these divisions that the three-judge court deter-

mined to be improper and which will be corrected by

_ ‘The District has adopted four projects since its for-

mation in 1926. Each of the projects was limited to

**Defendant’s Exhibit Q is a schedule showing the relative

eS ee re eer he eee Slee

<eatilloes

the District’s primary function of water storage and dis-

tribution: Each project involved a multi-million dol-

2 eee eee en

benefited Mgrs Keely

"The Question Before the Court.

ig We asia hikes Seto

limits when it granted the franchist in water storage dis-

tricts only to landowners and weighed each landown-

er’s vote in proportion to the value of the land owned

byhim?

*TEach District project is described in the Appendix beginning

at page 75.

ak TEs 88 ARGUMENT.

The Appellants contend that the classification en-

acted by’ the California legislature as to who shall be

permitted to vote in a water storage district general

élection is unconstitutional for two reasons. First, it is

trict. Second, it is contended that even if it should be

deemed constitutionally permissible to limit the fran-

chise’to landowners, it is unconstitutional to permit one

landowner to cast more ballots than another because

he owns land worth more than the latter.

The Appellants base their two contentions upon the

oné man, one vote decisions of this Court, particularly

those which have struck down statutes which condi-

tioned the right to vote upon the ownership of prop-

erty, ¢.g., Kramer v. Union Free School Dist., 395 U.S.

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

(1970). However, Appellants do not mention that in

each of these decisions the Court has emphasized that

the election in question was concerned with matters of

general concern to the populace as a whole and that all

citizens, not just property owners, would be required

to bear the cost of the governmental function in ques-

tion. The Court found no overriding reasons which es-

tablished that the legitimate interests of the state would

be furthered by limiting the electorate to property own-

ers. Therefore the statutes in question were held uncon-

stitutional. On the other hand, in these decisions, the

Court has recognized that there may be areas in which

a state might limit the franchise to those “primarily

interested” or “primarily affected” by a given set of cir-

cumstances (Kramer, supra, p. 632). In Hadley v.

Junior College Disrc 397. US. 80, ——-

iceman

iad iit: sak daac emibiacthet: sheen miele

tome; ease in. which-a. State elects certain func

tionaries, whose..duties are so far removed. from

eye meee ae tl

ee ee ee

» not. be required . ;

and a pag 5: FRIES

a Dl eed wevkuae biased“

right’ to ‘vote to a particular group or class of

people. As we said before, ‘viable local govern-

ments may need many innovations, numerous com-

‘binations of old and new devices, great flexibility

in municipal arrangements to meet changing

urban conditions. Wevece sothing in: the constitu-

tion to prevent experimentation.’ ”

The question then is whether the State of California

acted within constitutional limits in granting the fran-

chise in water storage district elections only to land-

~ owners, and further, weighing a landowner’s vote in

proportion to the value of the land owned by him.

The Supreme Court of Califonia ruled on this ques-

tion in 1923, shortly after the enactment of the water

storage district act. In Tarpey v. McClure, 190 Cal.

593 (1923), that Court upheld the constitutionality

of the Act, stating at page 606:

“By this and like provisions, the legislature is

at not dealing with elections, with suffrage, or with

__ the ballot, within the meaning of the constitution

.. and the election laws of the state. The formation

of this and similar districts is a function pertaining

——13—

:: udeediieteidhs Inglelatinnn-beanch of the-govemenent

ae | Wieaeinee it may.do 90-by- giving euch peesons 2s

“a lapel lia

hfe SS")

ta ied of wCamceia wee sharegs Sauninne

contrary to the statements in Appellants’ brief, exer-

cise ‘virtually no governmental power whatsoever. Ex-

cept for administrative and housekeeping chores, all

they can do is investigate and report on the feasibility

and: cost»of a district project.” They have no power

to legislate. They are not comparable to elected offi-

cials in the typical unit of local government such as

members of a city council, school board, county board

of supervisors in whom is invested a considerable

amount of governmental power to act in areas of gen-

eral concern to all citizens and who have the power to

levy taxes, make assessments or even enact criminal

statutes. Under such circumstances, this Court has

held. that the one man-one vote cases do not apply.

Sailors v. Board of Education, 387 U.S. 105 (1967).

‘In Kramer, this Court held that a statutory classifi-

cation which disenfranchises persons otherwise quali-

fied to vote must meet the following tests: (1) The

classification must be necessary to promote a “compel-

ling state interest” and (2) The statute must be drawn

with such precision that a citizen having a direct and

primary interest in the matter voted upon is not ex-

cluded. Following Kramer, the three-judge court in this

case held unanimously that California had a compel-

“Other California cases also support. the reasoning, of Tar

v, McC . Galloway, 195 Cal. 373. People v.

Rasanition Di. No. 5: No. S51, “117 Cal. 114, 123-124.

*California Water Code, Section 42200, as amended 1969,

quoted footnote 22, supra.

the reclamation of waste lands through flood pro-

baer eople v. Sacramento Drainage Dist., 155. Cal.

973, 379-381 [103 P. 297].) In many circum-

‘Merde Valley-in 1923, the lands to be reclaimed

“are virtually uninhabited. The grant of election

_ franchise to landowners, resident and nonresident,

corporate and. individual, is necessary to ‘further a

-» compelling state interest.’ Absent the voting quali-

fication provided, by the Act, it is doubtful that

the District could have been formed or functioned.

‘The activities of the District. no doubt affect

the economy of the area and to that extent Dis-

_.. trict affairs maybe of interest to all inhabitants

irrespective of land ownership, but such general

interest, standing alone, cannot be said to consti-

~) tute; as*a matter of law; a direct, primary and

substantial. interest entitling all inhabitants to

California Water Code.

conten:

_3°*-yote: “Such general economic interest is indirect,

es ‘primary and substantial. (See Atchison etc.

# nay re Kings County Water Dist., 47 Cal. 2d

3 ~ 149,, 144-145 [302 P. 2d 1].)

_.» »“Since the benefits and burdens accrue to each

og coal ag rampage

owned, the grant of franchise in proportion to the

_, _ assessed value of land ownership fairly distributes

Voting influence among those primarily and direct-

‘ly interested in direct proportion to the stake each

has in the District. We conclude that the existing

method of allocating voting rights among land

owners satisfies the constitutional standards pre-

scribed by. Kramer.

. “In view of the conclusion we have reached, it

--ds umnecessary to consider in detail the alternative

'.. voting rights demanded by plaintiff. Absent con-

_ stitutional infirmity in the existing statute, there is

no justification for judicial fashioning of the al-

_ ternative rights demanded. * * *”

Other states agree with California. In Associated

Enterprises, Inc. v, Toltec Watershed Improvement Dis-

trict, oy P.2d {069 (1971), the Supreme Court of

Wyoming held that the one-man, one-vote concept of

equal protection will not be applied to entities such as

watershed improvement districts, soil conservation dis-

tricts,’and irrigation districts. In Wallegham v. Thomp-

son, 185 N.W.2d 649 (1971), the Supreme Court of

North Dakota held that a statutory formula for voting

_ fights, in proportion to an anticipated assessment to

which land in a drainage district may be subjected,

fairly and properly distributed voting influence among

_ the landowners, as those “landowners who own more

as land will be burdened more and have more at stake.”

—16~.

In: Hebert.v.-Police Jury.of Parish.of Vermilion, La.,

- 24% Soi2d 349, the Supreme Court. of Louisiana held

that: it was ;proper ‘ina "bond election ‘involving’ purely

nit participation in the election to prop-

(3 theme whose ptopetty would benefit and who

“t ey eS *”

vimana ch Pt on Seige

owners may band. together to improve the manage-

ment of :water which they receive from a common

source: "They ate directly affected by and concerned

with ‘bringing “water to theit land. The interest of a

co ARES

1g sesident in such affairs is Bittle more

than that of a spectator, Moreover, in an area such as

the Tulare Lake Basin there are practically ‘no residents

: at all. Seventy-seven men, women and children reside

within the boundaries of the Tulare Lake Basin Water

Storage District, which encompasses 193,000 acres of

land. Sixty-six.of them either work for or are affiliated

with Westlake Farms, Inc. which owns. approximately

15,000 acres:om the west side of the Basin.”

| StDefendant’s Exhibit P, which is at page 85 of the Appendix

as |

he. wae ‘reason for this sparse number of inhabitants

eo ‘js dué'to the fact that the Basin is subject to recurrent

| flooding. For example, a major flood occurred in 1969

nich inundated over 88,000 acres of farm land.”

Because of the fact that the Basin is actually a sump,

having no outlet, and the land of the Basin is a tight,

impermeable clay, which prevents water from percolat-

ing through it, the flood waters remain on: the land

GI May thee ‘pcb Gc ete “aaa fa vig

on the ‘surrounding farm land. As a consequence of

the 1969 flood, which was one of the largest in history,

some of the land remained under water until the sum-

mer of 1971, representing a loss of three years of crops

for the area affected. In this vast area of practically

no inhabitants, it is absurd to suggest that the non-

landowning residents, most of whom live many miles

from each other, have the same interest in deciding

whether a water storage district shall be formed as do

~The State of California Acted Permissibly in Excluding

Lessees From the Electorate.

“ Justice Browning dissented, in part, from the ma-

jority Opinion herein, which, although silent on the

point, had the effect of affirming the exclusion of lessees

from. the electorate. Justice Browning would permit

lessees, as well as landowners, to vote, but not mere

residents, and he would not permit any vote to be

weighted by the value of land owned or leased. How-

*Appendix, Page 84.

Co) * >.

os payee, :

> wy m4 Hy.

* a ee ‘ ae

ae “ Pee o Fae ‘

. be ¥ » mE se ta » w

: .; a ‘ ey = =x wea ¢

wat C , “4 Me rnd “ * ; ~

’ ei 4K) ‘ ‘ ‘ x m :

bh ae ‘s % . * * +s ‘ led 2 ®

: ee v4 x 4 ey .. "2

‘ ’ Y

; and (c) the

the land is separately

| assessment roll; (b) a copy of

‘required to be paid under

stract is filed. with the secretary at least thirty

prior to the date of the election

ee.

Le 4 ¥ ‘h ; s ;

4s not delinquent for more ‘than six months

V the

“ ‘sCélifornia Water Code, Section 41006.

in’ the payment of any sums

F'the Franchise Is Limited to Landowners, It Is Per-

ee ge ne Lestower 20 Shite

: area ‘qutatci is’ whether it is ssiaitltnatty

een } to permit éach laridowner to cast one vote

; - foreach $100 worth of property owned by him. Before

_. discussing this question, Appellee suggests that~ such

3 cases a8 Gray v. Sanders, 372 U.S. 368 (1963), and

Rey olds v. Sims, 377 US. 533 (1964), cited on page

of A nts’ brief, which dealt with situations in

which one person’s vote was debased in’ relation to

_ gniother’s, usually by the manner in which an area of

"government was divided into districts, are no longer in

wint in this case. Based on the authority of these de-

_ Gisions, the lower court ordered the district “!. . to

__ submit a plan to correct this malapportionment within

_ six months of the date this decision becomes. final.”™

_ The District did not appeal from this position of the

_ judgment, and when this judgment is final, the District

will be redivisioned in such a fashion that each vote

2 ert lenlon el lew te me a0

be ems: have excised quotations from the

FRA b oe Windiy-0nn Vote telndshteh‘deos toed com.

pél'a reversal of the décision of this case. They pose

the issue of weighted voting by reference to two recent

-. state court decisions, stating at page 24 of their brief:

~ “It is not possible to reconcile the reasoning and re-

rer een Sed Sevelt in Baovey,

ae ye ee ee. :

=< ree oe es tl cited

3 ge ey eat tec is along with cases

Masenaalen: obithe eoreneramet Depend st Barrey

by stating: 9 —

“Tt [the District} performs. no governmental

functions of general concern to the populace and

provides no service to the general public such as

found by the court in Burrey v. Embarcadero

Municipal Improvement District recently decided

by the Supreme Court of California.””

Toltec, on the other hand, involved a limited pur-

pose district, such as a water storage district, which

does not concern itself with matters of general interest

to all citizens. Therefore, analogizing to shareholders

yoting in a private corporation, the Supreme Court of

Wyoming ruled that in such limited purpose districts,

it is altogether proper for the legislature to permit the

landowners to vote in proportion to their acreage.

The legislatures of most western states have author-

ized ‘the creation of public .and quasi-public districts

dealing with water development, reclamation of land,

legislatures have permitted voting participation in such

special purpose entities on the basis of one’s owner-

ship of land, the so-called “weighted vote.” The ques-

tion then is, assuming that it is constitutionally permis-

eae

A fortiori, the Appellee contends that, if the state

can permit a holder of title to land, even a corporation,

to vote in a water storage district, it is within the power

of the state in the exercise of its own judgment to de-

termine that the objectives which it seeks to achieve

can -best be accomplished by weighted voting.

“The majority below upheld weighted voting because

“. . . the benefits and burdens to each landowner in

the District are in proportion to the assessed value of

the land, so permitting voting in the same proportion

fairly distributes the voting influence.”

‘Justice Browning judged the matter differently, stat-

ing:

“Defendant has identified no compelling state

interest in weighted voting in water storage district

"_ elections. —~ |

“The statute itself weakens the contention that

landowners would decline to participate in the

formation of water storage district if each vote

‘ weighed equally. A majority of the number of

‘ landowners is normally required to form such a dis-

trict (California Water Code Section 39400),

‘and a majority of the number of landowners vot-

“ing is required to approve a district project. Cali-

' fornia Water Code, Section 42550."

“Neither can it be said that the state’s interest

‘in intelligent and responsible elections is served by

weighted voting. There is nothing in the record

edna kar ange Samad oy ge | ity of

is required to form a district.

majority of value of the land. Cali-

understanding of water develop-

ment problems that is requisite to intelligent and

-_responsible voting.on the affairs of a water stor-

age district. Cf., Harper v. Virginia Board of Elec-

“tions, 383,.U.S...663, 688. (1966). And the

landowner’s interest in finding and implementing

solutions to these problems is.no less acute because

his operation may be of greater economic con-

sequence to him; and is small. Efficient production

from his smaller acreage the lesser absolute share

of the cost of district projects he may be required

to bear may impose a greater burden.”

With all due respect to the analysis of Justice

Browning, the Appellee suggests that the California

legislature could rationally and properly draw a dif-

ferent conclusion from the facts.

; are 307 landowners in the District. The pat:

tern of land ownership varies greatly in different por-

tions of the District. For example, in the lower portions

of the Basin, the land is held, for the most part, in siz-

able, ownerships. However, in the southeastern quadrant,

in an area sometimes referred to as the Homeland

District, there are many small ownerships. This pattern

is. due, to the fact that some years ago there was some

tors, who usually vote these small holdings by proxy.”

One hundred eighty-nine landowners, representing 2.34

“WAppendix, Page 85, Defendant's Exhibit Q.

~a3i.-

pereent of the acreage in the Basin, represent an ab-

solute majority of landowners.

Furthermore, as the State legislature knows, district

projects are apt to be multi-million dollar undertakings.

For example, General District Project No. 4 involved

the construction by the District of two laterals from the

Basin to the California State Aqueduct. The capital cost

of the laterals was approximately $2,500,000.”

’ Some facts concerning the relative cost of the Project

to the three landowners, Thomas J. Amos, Ada Horn-

beak, and Rose Catanz, mentioned on page 16 of the

Appellants’ brief as having only one vote compared

with the position of the J. G. Boswell Company which

cast 34,825 votes for Project 4, illustrate the reason

why it was altogether proper for the California legis-

lature to provide for weighted voting in water storage

district elections. The foregoing allocation of votes was

based upon the July 11, 1967 assessment roll, the one

applicable to the Project 4 special election.“

The assessed valuation of Rose Catanz’ 2% acres

of land was $10.00; of Thomas J. Amos’ one-quarter

of an acre, $20.00; and of Ada Hornbeak’s eight-

tenths of an acre, $60.00. Therefore, they were each

entitled to cast one vote at the Project 4 election. The

assessed valuation of the 61,665.54 acres .of land

owned by the J. G. Boswell Company was $3,782,-

_ 220.00, entitling that Company to cast 37,825 votes.

However, the assessment commissioners determined

that the benefits of Project 4 would be uniform as to

all 188,514.46 acres of land in the District affected by

Project 4; and therefore assessed the capital cost of

~ SAppendix, Page

tesa, ean bi ak Godcba ae Arcs

that project equally as to. all of the acreage. As a con-

sequence, each acre of land has to bear $13.26 of cost

of the $2,500,000.00 capital expenditure for Project 4.

Therefore, Thomas J. Amos’ share of the cost of

Project. 4 is $3.32; Ada Hornbeak’s, $10.61; Rose

Catanz’, $33.15; and the J. G. Boswell Company's,

$817,685.06. ae

Given these circumstances, the California legislature

could well conclude that J. G. Boswell Company has

a much greater stake in a district project than Thomas

J. Amos, and that it is altogether proper that that Com-

pany cast 37,825 votes to Thomas J.. Amos’ one,

where such a project would cost the Boswell Com-

pany $817,685.00 to his $3.32. ;

‘Therefore, while the California state legislature by

weighted voting has made it impossible for a majority

in numbers of landowners to impose a district project

against the wishes of a majority in value of the land,

it has also protected the small landowners on the

downside by providing that a majority in value cannot

enact a District project over the objections of a major-

of. the landowners.’ This type of elec-

| ae

‘By the same token, this voting procedure recognizes

that, since these projects are for the benefit of the lands

in the District and will be paid for by each landowner in

proportion to the value of his land, it is essential that

a majority in value agree that a project should be

adopted. Otherwise, the large landowners could not

be induced to join in the formation of a water storage

district. Stated differently, it would be rather absurd

to assume that the J. G. Boswell Company would be

willing to participate in the affairs of the Tulare Lake

Basin Water Storage District if Thomas J. Amos and 188

of his friends could at their whim visit a $817,685.00

asse¢ssment upon that Company.

~The plain truth is that contrary to Justice Brown-

ing’s statement, Thomas J. Amos does not have the

same interest in the efficient management of water as

does the J. G. Boswell Company. However, there is no

gauge by which to measure the degree of interest or

understanding of water development problems between

landowners. On the other hand, the burden of paying

for the cost of district projects is in proportion to the

value of one’s land and can be determined with pre-

cision. Therefore, as the majority said, “permitting

voting. in the same proportion fairly distributes the

voting influence.”

In addition to the economic realities which justify

weighted voting based upon apportioning the vote in

proportion to the burden, there are other reasons which

dictate that weighted voting is the only practical way

of distributing the franchise. For example, if one would

and Thomas J. Amos only cast 1 vote on

Boswell Company

Official Ballot “B” [Deft. Ex. S]. With to Official Ballot

aaa eh Sees ae Oe Aas the same voting

—26—.

accept the Appellants’ argument that landowner voting

is proper, but each landowner should have the same

voting power, then, in the Tulare Lake Basin Water Stor-

age District as it exists today, whoever holds the proxies

of. the. collectionof small. landowners in the Homeland

District who came into land ownership through speculat-

No doubt, such a situation would be intolerable to

some of: the larger landowners, quite possibly even

the Salyer Land Company. If so, there would be nothing

to prohibit that Company or any landowner from selling

ten dollars worth of land to as many relatives, em-

ployees, or other captive landowners as he felt neces-

sary to win an election. His neighbor, fearful of such

electoral: tyranny, could offer more people land in five

dollar units, with the process repeated until land own-

ership in the Tulare Lake Basin would be in such small

units that they couldn’t be seen by the naked eye.

The fact that such an absurd situation as that noted

above would be possible in the absence of weighted

landowner voting establishes the good judgment of

the California legislature in drawing the Water Storage

District’ Act the way it did. One vote for each $100

worth of land is a fixed measure of voting power. It is

the same whether the land is leased under a long or

short-term lease; whether the land is owned by a cor-

poration, partnership or an individual; whether the

owner is actively interested in District affairs or en-

tirely indifferent to them.

Finally, the experience of this District, where all but

one of its projects were enacted by a unanimous elec-

torate,: indicates dramatically that multi-million dollar

water projects are not apt to be undertaken, in the ab-

sence of a general consensus of all landowners.

ee Ee

One good test of an electoral system is how it

works in actual operation. The projects of the Tulare

Lake Basin Water Storage District have accomplished a

great deal toward an improvement in the management

of water for the landowners in the District. The objec-

tive sought to be accomplished by the legislature have

been achieved under the Water Storage District Act.

Therefore, limiting the franchise to landowners, who

vote in proportion to the value of their land, has indeed

furthered a compelling state interest.

Conclusion.

Following the principles established by-this Court in

Sailors and Kramer, by the California court in Schind-

ler and Burrey, by the Nebraska court in Toltec, by

the North Dakota court in Wallegham, and by the Loui-

siana court in Hebert, it is clear that California Water

Code Sections 41000 and 41001, which permit only

landowners to vote and give them one vote for each

$100 of assessed valuation, do not violate the equal

protection of law guaranteed by the Fourteenth Amend-

ment of the Constitution insofar as applied to elections

of the Tulare Lake Basin Water Storage District. Ac-

cordingly, and as stated in Schindler,

“Absent constitutional infirmity in the existing

Statute, there is no justification for judicial fash-

ioning of the alternative rights demanded.”

September 1, 1972.

Respectfully submitted,

ROBERT M. NEWELL,

ERNEST M. Car, JR.,

Counsel for Appellee.

Service of the within and receipt copy

thereof is hereby admitted this......... day

of September, A.D. 1972.

preefeaf A essaae Eansce hoina

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.