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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appellees Brief
- **Published:** January 1, 1973
- **Citation:** 410 U.S. 719

## 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

je

California Water Code,
California Water Code,
California Water Code,
California Water Code,
California Water Code,
California Water Code,
California Water Code,
California Water Code,
California Water Code,
California Water Code,
California Water Code,
California Water Code,
California Water Code,
California Water Code,
California Water Code,
California Water Code,
California Water Code,
California Water Code,
California Water Code, Sec. 46175
United States Code, Title 28, Sec. 2284

United States Constitution, Fourteenth Amendment.. 27

Sec.
Sec.
Sec.
Sec.
Sec.
Sec.
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

Hi
i

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 .
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

iy

; and (c) the

the land is separately

| assessment roll; (b) a copy of

4

‘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.

i
it

in’ the payment of any sums

an

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

*

<i

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

|
|
|

ie

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

-

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