# Motion — Hill v. Stone

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0406%3A04

## Record

- **Collection:** Supreme Court brief
- **Document type:** Motion
- **Published:** January 1, 1975
- **Citation:** 421 U.S. 289

## Text

i

a a ee ee ee

tee RE ere

ARGUMENT AND AUTHORITIES ...............-...0-.

THIS COURT SHOULD SUMMARILY AFFIRM THE
DECISION OF THE THREE-JUDGE COURT BELOW
BECAUSE THIS CASE IS INDISTINGUISHABLE
FROM THE DECISION OF THIS COURT IN
PRUE VY. PAPIAPORERIORL 245 cc cece ke wee

A. The Facts of Phoenix v. Kolodziejski
are Closely Analogous to Those of
RN RN Oe i i ee WN oo ote 8 o

B. The Judge Below Who Disagreed With
This Court's Decision in Phoenix v.
Kolodziejski Concurred in the Unani-
mous Judgment Below Because He Could:
Find No Basis for Distinguishin
This Case From Phoenix v. Kolodzie-

PD EO RO i ee ae ae re
C. In 1970 This Court Summarily Affirmed

the Judgment of a Three-Judge Dis-
trict Court in Parish School Board of

the Parish of St. Charles v. Stewart,

Citing Phoenix v. Kolodziejski, on
the Basis of Facts Closely Analogous
to Those of the Case at Bar .........

12

(ii)

THIS COURT SHOULD SUMMARILY AFFIRM THE
DECISION OF THE THREE-JUDGE COURT BE-

LOW BECAUSE APPELLANT HAS NOT RAISED A
SUBSTANTIAL BASIS FOR REVERSAL IN ITS
JURISDICTIONAL STATEMENT ............... 20

. THIS COURT SHOULD SUMMARILY AFFIRM THE
DECISION OF THE THREE-JUDGE COURT BE-

LOW BECAUSE THAT DECISION. IS SO CLEARLY
CORRECT THAT THERE IS NO POSSIBILITY

THAT THIS COURT WOULD BE INDUCED TO RE-
VRRINE bW es als 0h 6 6k hk ene Ek Ow Lee Oe ve 31

A. The Texas Supreme Court has Upheld
the Constitutionality of the Votin
Classification Challenged in This
Case in the Face of This Court's
Decisions of Kramer v. Union Free
School District and Phoenix v.

ee I Or

REE eC T ENG nee boss 31
B. The Challenged Provisions of Texas

Law Are Not Entitled to a Presump-

tion of Constitutionality ........... 33

C. None of the Purported Purposes of
the Texas Voting Classification
Meet the Constitutional Standard
Laid Down by This Court in Harper
v. Virginia State Board of Elec-

SE Be PIE VS PEGE TIES PLE TS are 33

1. Texas has no right to encourage —
disclosure and rendition of tax-
able property by conditioning the
right to vote upon such disclo-
sure and rendition, because that
purpose bears no relation to
voter qualifications ............. 34

oe
RCA GDR Say OY iG AP Se eter ID REN LG ELLEN IER A DONLEY LAE AADE VSS LITLE LEGO MEAD eperwamng tte i

(iii)

2. Texas has no right to limit the
franchise to those who will pay
for the obligations assumed in
the bond election because this
purpose bears no relation to
voter qualifications ...........-.

3. Texas has no right to limit the
franchise in bond elections to
those who are primarily inter-
ested in the outcome of the
election because this putpose
bears no relation to voter
qualifications .......... nea ek 0 ews

4. In deciding whether the Texas
voter classification meets the
constitutional standard of Har-
pez v. Virginia State Board of

ections, the degree of dis-

crimination is irrelevant ........

D. The Only Three Conceivable Purposes
of the eye Voting Classification
Fail to Meet the Constitutional
Standard Laid Down by This Court

in Kramer v. Union Free School

WRGERECe csi oils cacnsvvees ee ed bes

1. The interests of the state in
encouraging its citizens to dis-
close and render for taxation
some property, however little,
is not a compelling state inter-
OGG opewhke bee 2 OH 082828 Oe 8 2 ee

2. The challenged Texas voting
classification is not necessary
to promote the state interest,
if any, of encouraging each

(iv)

citizén to disclose and render
for taxation some of his
EE ci we Ebadi oe ease seh oe 39

3. The interest of the state in
aes the franchise to those
who will pay for the obligations
assumed in the election is not a
compelling state interest ........ 39

4. The classification challenged
herein is not necessary to pro-
mote the state's interest, if
any, of sar the franchise “0
to those who will pay for the
obligations assumed in the
RRO ES OR IEE ree 40

5. The interest of the state in
limiting the franchise to those
who are primarily interested in
the outcome of the election is .
not a compelling state interest .. 41

6. The challenged voting restric-
tions are not necessary to pro-
mote the state's interest, if
any, of limiting the franchise
to those who are primarily in-
terested in the outcome of the
RM AE og book 6c doe su 0 6 ay eee 42

E. The Clear Mandate of Kramer v.
Union Free School District and the

Three Cases Subsequently Based Upon
Tt is That. These Five Texas iT.
sions Are Unconstitutional .......... 43

gro case cee Secs Te cesncss 47

Ce ee ee ee a ee ee ee ee

APPENDIX A:

APPENDIX B:

APPENDIX C:

APPENDIX D:

(v)

NEW YORK STATUTES INVOLVED IN
KRAMER V. UNION FREE SCHOOL
ME Piso see ere beerbeneereces

LOUISIANA STATUTES INVOLVED IN

CIPRIANO V. HOUMA .......... qc sFoee

ARIZONA STATUTES AND CONSTITUTIONAL
PROVISIONS INVOLVED IN PHOENIX V.
KOLODZIEIJSKI ... ccc crcvcvecsvece

LOUISIANA STATUTES AND CONSTITU-
TIONAL PROVISIONS INVOLVED IN

(vi)

TABLE OF AUTHORITIES
CASES: . Page
Associated Enterprises, Inc.v. Toltec

Watershed Improvement District ,410
Us Ee ROP is Powe oe hea es oes tae

Cipriano v. Houma, 395 U.S. 701 (1969)....7,9,11,
; —6-24,29543,45

Harper v. Virginia State Board of :
Elections, | ee ER be, Fe 8 Ree dae 7
30,31,33,34,35,36,46

Kramer v. Union Free School District,
Jen U8, a Vy Pee SE Be. Ot ee
; 33,37,42 ,43,44,45

_Montgomery Independent School
District v. Martin, 464 SW2d 638

Cae: We, BOT ESS 6G5s ce ee Fe & Be? Oe

+ 33,36,38,45
Parish School Board of the Parish

RS OR ee 7.22,

19,20,24

Phoenix v. Kolodziejski, 399 U.S.
Pe CUSIP Os ces vnc oe ee yam. ee Re ok eS ae eee
£5, 20,87 , £6. 30 520 eee,
25 .26,27;28 29,31 ,44,45

Salyer Land Co. v. Tulare Lake Basin
Water Storage District, 410 U.S.
hi We ek 7g > Fa ee OE ee ee re. See
28,29,44

oe--—"3

(vii)

TABLE OF AUTHORITIES

CASES: : Page
San Antonio Independent School
District v. Rodriguez, 411
. ES BE 2) Re A ee 8 28
Stewart v. Parish School Board of :
St. Charles Parish, 310 F. Supp.
a mem. , 400 U.S.
884 (1970) 10,17,48,19,20,
29,40,42,44,45
CONSTITUTIONAL PROVISIONS:
Constitution of Texas ;
Tex: Const. Art. VI $3a (1955)........-.-s- 20 3

OTHER AUTHORITIES:

"The Property Tax in Texas Under State

and Federal Law", 51 Texas L. Rev.
885 (1973) (Professor Yudof).........-- 18,19
E
.
é 5
F

Breese roger

NO. 73-1723

IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1973

JOHN L. HILL, ATTORNEY GENERAL OF TEXAS,
APPELLANT

V.

MICHAEL L. STONE, ET AL,
APPELLEES

ON APPEAL
FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS

MOTION TO AFFIRM

_ TO THE HONORABLE UNITED STATES SUPREME COURT:

3 Appellees Michael Stone, et al, move this Court
_to summarily affirm the judgment of the three-
_ judge court below pursuant to Rule 16(1)(c), (d)

i

2

of the Rules of this Court. The unusual length of
this Motion to Affirm is attributable to the desire
of counsel to include herein all relevant material
and argument necessary to a resolution of this case
without further hearing, oral argument, or briefing. =

STATEMENT

I. Nature of the Case

The judgment on March 25, 1974 of the three
judge court below holding unconstitutional and
enjoining the implementation of the herein chal-
lenged Texas provisions was stayed by this Court
only to the extent of permitting the Attorney
General to continue enforce the dual balloting
procedures effectuated by him in 1969 as a "tem-
porary measure" pénding resolution of the consti-
tutional issues involved in Phoenix v. Kolodzie-

jski. ‘| U. S. 204 (1970). (pp. 8, 11, AG Juris.
tate.

II. Facts of the Case

There are no disputed facts in this case. On
April 11, 1972 the City of Fort Worth held a bond
election. A $6.8 Million Library Bond issue and a
$3.0 Million Transportation System Bond issue were
submitted to the electorate in dual box election. :
(Stip. #22, 23, pp. 12d-17d, AG Juris. State.) The ©
Transportation System bonds passed in the property

aM NEY ono

es ead

‘ror convenience of reference, all citations to the
judgment and opinions below as well as facts stipulated by
the parties in the Pre-Trial Order will be to the appropriate
pages in the Jurisdictional Statement of the Texas Attorney
General, cited hereafter as "p. » AG Juris. State.".

8 SRNR OER

| orn APTN

owner box and the non-property owner box. (Stip.
#47, p. 29d, AG Juris. State.) Those bonds have
long since been certified by the Attorney General
and sold by the City of Fort Worth. (Stip. #48,
pp. 29d, 30d, AG Juris. State.) The Library Bonds
passed in the non-property owner box, passed in
the aggregate majority of persons voting in both
boxes, but failed in the property owner box.
(Stip. #47, p. 29, AG'Juris. State.)

The Attorney General, whose approval is a pre-
requisite to sale of any general‘obligation bonds
in Texas, has continuously refused since 1969 to

_ approve any bonds unless such bonds received a
_ majority vote of the aggregate of property owners

and non-property owners and a majority vote of

_ property owners. (Stip. #24; p. 17d, AG Juris.
_ State.) While everyone otherwise qualified is
_ theoretically entitled to vote, property owners
_ are given a veto.

The City considered the Library Bond issue to

“have failed. (Stip. #29, p. 22d, AG Juris. State.)

The decision to sell the bonds is a legislative

- decision resting with the governing body of the
‘ appropriate political subdivision. In this case,

'the City Council of the City of Fort Worth is

Se A lobo

Braille

Bi

vested with such discretion. (Stip. #10, pp. 5d,
6d, AG Juris. State.) However, in this case, there
is absolutely no question how the council would

' exercise its discretion. They would seli the

Library Bonds if they could. The following facts
make that clear:

1. Unless the city had intended to sell such
bonds it is absurd to believe that they
would adopt an ordinance submitting the
proposition to the voters and spénd the money
necessary to conduct a city-wide election on
that proposition. (See Stip. #9, p. 5d, AG
Juris. State. ; Pl. Ex. B)

ee eee re ee aes

4

2. The City Council has in fact sold the bonds
approved by a majority of the rendering pro-
perty owners in Proposition 1 (Transportation!
System Bonds) which was submitted at the same?
time as Proposition 2 (Library Bonds). (Stip.
#48, pp 29d, 30d, AG Juris. State.) : j

3. The City Council has stated in a motion a-
dopted unanimously on April 17, 1972, that
their legal discretion would be exercised in ©
favor of the sale of the bonds if legal en- |
tanglements did not exist. (Stip. #28, pp.
21d, 22d, AG Juris, State.)

4. The City Council, the city attorney, and the |
mayor have stipulated that if the property q
rendition requirements did not exist, they
would take the necessary steps to sell the
Library Bonds as soon as possible. (Stip. -
#26, 26, 30, pp. 20d-22d, AG Juris. State.)2

Appellees, property owners and non-property
owners who voted in that election, brought this
suit challenging Texas provisions of law limiting ~
the right to vote in bond elections to rendering
property owners, and seeking to enjoin the Attor-
ney General and the City from considering the pro-
perty ownership requirements of Texas law in de-
termining whether the bonds passed.

eae

2 There are a number of technical procedural steps the
City would have to take as__ prerequisite to issuance and
sale of the Library Bonds. An exhaustive list of these
steps appears in Stipulation #19, pp. 26, 27, P-T. All city
officials involved have stipulated that they would take all
of such necessary steps. (Stip. #26, 27, 30, pp. 34-37, P-T)

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SUMMARY OF ARGUMENT

: S PRIMARY INDISTINGUISHABLE DECISION OF THIS
COURT.

In Phoenix v. Kolodziejski, 399 U. S. 204
(1970) this Court held unconstitutional Arizona
statutes and constitutional: provisions which limit-
ed the right to vote in general obligation bond e-
lections to real property taxpayers. There is no
substantial distinction between that case and the
case at bar. Both cases involve general obliga-
tion bond elections. While Phoenix, supra, in-
volved restriction of the franchise to real pro-
perty taxpayers, the case at bar involves restrict-
ion of the franchise to rendering property owners
("property" including personal property), but there
is no rational distinction between Phoenix and the
case at bar.which can be made on that basis. Both
Phoenix and the case at bar involve municipal im-
provements of general public interest such as
parks, playgrounds, libraries, transporation sys-
tems, etc. In Phoenix, it was certain that more
than half the debt service requirements on the
bonds would be satisfied from revenues of the ot-

-her local taxes paid by non-property owners. In .
the case at bar the testimony was the-the general

2
3
-
4
>

—

i

obligation bonds would be paid off solely from the

proceeds of taxes of persons who own real and per-
sonal property. However, this Court in Phoenix,
spoke directly to that issue stating that,

“justification for restricting the fran-
chise to the property owners seems to be
the strongest in the case of municipality
which, unlike Phoenix, looks only to pro-
perty tax revenues for servicing general
obligation bonds. But even in such a case
the justification would be insufficient."
[emphasis added], Phoenix, supra, at page 210

6
One of the district judges below who concur-
red in the result reached by the unanimous court
below could find no way to distinguish Phoenix,
supra. He stated in his opinion,

"I deeply regret that I have been
unable to find a legitimate way to
distinguish the cases above cited.
[Phoenix]."" (Concurring opinion of
Judge Brewster, p. 22 AG Juris. State.).

There is direct precedent for this court sum- ~
marily affirming the decision of the court below in ©
this case. In Parish School Board of the Parish of ©
St. Charles v. Stewart, aff"g 310 F. Supp. I172
(EDLa...1970), 400 U. S. 884 (1970), a three judge
district court within the Fifth Circuit held that
Louisiana provisions limiting the right to vote in
general obligation bond elections to "property tax-
payers" were unconstitutional. The term "property
taxpayers" included those who paid tax on personal
property. This Court affirmed in a memorandum o-
pinion citing Phoenix, supra.

Ei. APPELLANT ATTORNEY GENERAL OFFERS NO ARGU-
MENT WHATSOEVER IN HIS JURISDICTIONAL
STATEMENT THAT THE TEXAS CLASSIFICATORY
SCHEME CHALLENGED IN THIS CASE MEETS THE
COMPELLING STATE INTEREST TEST ANNOUNCED
BY THIS. COURT IN KRAMER V. UNION FREE
SCHOOL DISTRICT,395 U. S. 621 (1969) and |
PHOENIX V. KOLODZIEJSKI, 399 U. S. 204 (1970)

The argument contained
3
¥
”

4 See Appendix D herein for full text of those

» provisions.

18

supra. and in the case at bar, the argument for up-
peidine the cl&ssification in Stewart, supra, would
be stronger than the argument for upholding the classi
fication in Phoenix, supra, or the case at bar.
This is so because in Stewart, supra, there was
some attempt to make the weight of each voter's:
vote proportional to.his potential tax liability
as the result of casting his vote. On the other
hand in Phoenix, supra, and in the case at bar,
once a voter is on the rolls in any amount, he is
permitted to vote.

The three judge panel in Stewart, supra, re-
cognized that the term property” as used in the
challenged Louisiana provisions included personal
‘property, and thus specifically held that the dis-
tinction between personal and real property in
bond election cases is of no signficance. More-
over, the Court there took judicial notice of the
fact that in Louisiana few persons pay any person-
al property taxes, and that those do usually pay
them based upon the value of their automobile.
It.was there noted that while Louisiana law does ©
provide that all property in the state is subject
to taxation, that the tax assessors in fact pri- 4
marily place business, commercial, and corporate q
-_personal property (merchandise inventory) on the 4
assessment rols. Stewart, supra, at page 1173, z
note 3.

The same observation has been made with res-
pect to Texas by tax experts. It has been recognized 4
that Texas is one of a declining number of states
which provide that all property is taxable unless
specifically exempted by the state constitution.
Yudof, "The Property Tax in Texas Under State and
Federal Law", 51 Texas L. Rev. 885 at 888 (1973).
Professor Yudof observed in that article that

Ee oe ary i pe a —

| Soe eg ee ae thee

19

"the net effect is that laws of Texas
give little indication of the true size
of the tax base. In practice personal
property is rarely included - except
for automobiles, which some 400 districts
tax."' (fudof, supra, at page 889.)

He further observes that mortgages, savings ac-
cownts, stocks, bonds, and the whole panoply of
household goods and chattels are largely un-

touched by the property tax. Yudof, supra, at
page 889, note 27.

On November 9, 1970, this court summarily
affirmed the judgment in Stewart, supra, citing
City of. Phoenix v. Kolodziejski, 399 U. S. 204
(1970): Parish School Board of the Parish of St.
Charles vs. Stewart, 400 U. S. 884 (19/70). Thus

this Court has* had a specific occasion to determine

whether requirement of ownership of personal pro-
perty would be treated any differently than a re-
quirement of real property ownership, and has
held that there is no distinction.

*(p.8)

(p.11)

20

II. THIS COURT SHOULD SUMMARILY AFFIRM THE
DECISION OF THE THREE JUDGE COURT BELOW
BECAUSE APPELLANT HAS NOT RAISED A SUB-
STANTIAL BASIS FOR REVERSAL IN ITS JURIS-
DICTIONAL STATEMENT.

The Attorney General argues taht the issue
involved in this case is important because more
than one-fourth of all the states still base the
right to vote in general bond elections on pro-

perty ownership or taxation. In 1970, this Court 5

specifically recognized the then remaining four-
teen states which had such limitations. Phoenix
v. Kolodziejski, 399 U.S. 204:at 213, note II
(1970). The Louisiana constitutional provisions
cited in that. footnote have now been held uncon-
stitutional by this Court in Parish School Board
of the Parish of St. Charles v. Stewart, 400 U.S.
884 (1970), aff’g Stewart v. Parish School Board
of St. Charles, 310 F. Supp. - Sya3s
Article 6, §3(a) of the Texas Constitution was
also cited in that footnote and has been held
unconstitutional by the District Court below.
Thus there are no more than twelve remaining
states which so limit the right to vote ir. bond
elections.

The Attorney General of Texas recognized
the importance of the issue hercin at least as
early as 1969, since in that year the Attorney
General adopted a dual box election procedure as

¢

a "temporary measure" for the purpose of insuring

validity of bonds voted after that date. The
Attorney General suggests that this temporary
measure was adopted on the assumption that a fi-

(p.12)nal determination of Phoenix,supra, would put

*Note - Page numbers in the left-hand margin
herein locate specific contentions in the Attorney
General's Jurisdictional Statement to which the re-
sponse is being made.

Dest peer esce caer erie ANTE a reer ae rE SPOR ARTETA Be

21

the question to rest. In spite of direct and
positive language in the Phoenix decision to the
contrary, the Attorney General chose to believe
that Phoenix did not put the question to rest.
This Court’s opinion in Phoenix, in reference

to the fourteen states listed in note 11 therein
as restricting the franchise to property owners
in bond elections, stated as follows: .

Nor have we been shown that the fourteen
states now restricting the franchise have
unique problems that make it necessary to
limit the vote to property owners."
Phoenix, supra at 213.

Such language may not have been necessary
to a decision of the Phoenix case, but the death
knell for the challenged Texas provision was
clearly sounded.

(p.12) While the Attorney General correctly states
j that the test applied by the District Court be-
low was whether the challenged voter exclusions
are "necessary to promote a compelling state
interest", Judge Woodward's concurring opinion
below makes it clear that there is another inde-
pendent basis upon which the challenged provisions
should be held unconstitutitonal, to-wit: the
traditional rational basis equal protection test
announced by this Court in Harper v. Virginia
State Board of Elections, 3 .5. 66 . On
the basis of Harper, supra, Judge Woodward's con-
curring opinion provided:

SO eee wea oa 4 ake i

The ownership of property, like race,
creed or color, has no relationship

to one's ability to participate intelli-
gently in the electoral processes, and a
state may only limit the eligibility re-
é quirements of voters to those factors
which would affect a citizen's ability to
intelligently cast his vote." (Concurring
Opinion of Judge Woodward below,p. 18a,
AG Juris. State.).

Patecisvensesowtia

(p.13)

(p. 14)

22

Whether the compelling state interest test A
or che traditional rational basis test is employed |
therefore makes no difference as to the result :
which should be reached by this Court in the case
at bar. .

The Attorney General suggests that it is im-
material to the right to vote in a bond election
in Texas whether one's ownership of property be
great or small. This contention is literally
correct, if somewhat misleading. Ownership of A
property alone does not qualify anyone to vote
in a bond election in Texas. Property ownership ~
is a necessary but not a sufficient condition to ~—
voting. The voter must also have rendered at ;
least a token amount of that property. Under 4
Texas law, a multi-millionaire can render a ten- :
cent pencil for taxation and thereby become quali-=
fied to vote in a bond election. The Texas 2
Attorney General suggests that this property own- |

3

das Sho 4s
ee.

ership and rendition requirement is so petty,
like the poll tax struck down by this Court in
Harper v. Virginia State Board of Elections, supra,
that it constitutes no impediment to anyone who
really desires to vote. This requirement of~
Texas law is no more petty than the requirement
of a poll tax under consideration in Harper v.
Virginia State Board of Elections, supra. if
the requirement 1s so petty as to be no impedi-
ment at all, how could that token ownership and
rendition requirement be of any tax significance
to a political sub-division of the State of
Texas?

It may be assumed that there is some mini-
mum value of property below which a tax assessor- ©
collector would not render an item. Whether that ©
value would be ten dollars, five dollars, or one =
cent is purely speculation. But, if there is
such a minimum requirement, then this would be
tantamount to saying that any citizen who desires —

i

23

to vote must own and render at least. that amount
of property. This court forcefully and completely
foreclosed the possibility of any such requirement
in Harper v. Virginia State Board of Elections,

Supra:

"We say the same whether the citizen
otherwise qualified to vote,has a

dollar fifty cents in his pocket or

nothing at all, pays the fee or fails

to pay it.***The degree of the discrimina-
tion is irrelevant." Harper, supra, 383 U.S.
at 668 (1966).

The requirement of property ownership is
confusing to many citizens who in daily life
equate the term "property" with the term "real
property". The Attorney General's dual box elet-
tion procedure has added greatly to the confusion,
and the lengthy explanations appearing in local
newspapers in the City of Fort Worth prior to

f each bond election do nothing to clarify the
situation in the minds of most voters. Many

4 voters, upon realizing that there must be some

A complication requiring a two-column front page

% story attempting to explain who may vote, and

where, must Simply give up and decide not to
vote. Virtually no voter can have guessed that
the propery rendition requirement is merely a
token requirement.

15) The Texas Supreme Court in Montgomery
Independent School District v. Martin, S.W.2d
638 (Tex. Supp. 1971), upheld the challenged
voting classification in this case for the reason
that, among others, "one who is willing to vote
for and impose a tax on the property of another
should be willing to assume his distributive

share of the burden." Montgomery, supra, 464 S.
W.2d at 638. The Texas Supreme ES rt is mis-

24

%

taken. These Texas laws do not encourage a
citizen to assume his distributive share of the
-tax burden. A multi-millionaire who renders a
ten-cent pencil for taxation may vote, but the
tax on that item is hardly his distributive share
of the tax burden.

(p.18) The Attorney General alleges that only pro- —
‘perty owners will ever-be called upon to repay e
the bonded indebtedness. That allegation would
be more correctly stated that only persons who
are rendering property owners during the years
the bonds are. paid off, not at the time of the
election, plus all those who pay indirect taxes
by purchasing items or services from rendering
property owners, will, ever be called upon to
repay the bonded indebtedness. That group would ~
contain almost everyone alive at the time of the’ —
bond election whether they were permitted to vote ©
or not, except for those persons who have expired |
awaiting the final resolution of this litigation. ©

ETL AEE SHORE GRA

(p.18) The Attorney General, has suggested that it
is rational for the Texas Election laws to ex-
clude non-renderers in tax bond elections since
such persons have no incentive to vote either
cautiously or intelligently. Thus, the Attorney
General seems to concede that these laws do not
meet the conpelling state interest test announced
by Kramer v. Union Free School District, 395 U.S.
621 (1969), Cipriano v. Houma, 395 U.S. 701, (1969)
Phoenix v. Kolodziejski, 399 U.S. 204 (1970), and
Parish School,Board of the Parish of St. Charles
v. Stewart, 400 U.S. 884 (1970), aff g 310 F.
Supp. L172 (EDLa....1970).

(p.18) The Attorney General also suggests that non-
renderers have no reason to vote against any such.
tax proposal. However, it would appear that the
following persons would conceivably have ample

Ree RAO AQIS OTT ARLE AN INTRT HA TRIBE ET tee Co

‘Zo.
reasons for voting against such proposals:

1. Any non-renderer who anticipates
owning property in the future and
becoming a renderer, since tax
bonds take many years to pay off;

2. Persons who have rendered property
for taxation, but who do not desire
to have their right to vote based
upon their rendition or n@n-rendi-
tion of property for taxation, or
who may be unwilling to state that
they have property rendered for the
purpose of gaining access to the
voting booth;

3. Citizens who have a direct interest
and concern as-to whether or not the
particular item for which the bond
election was being held is desirable.

In the instant case, 1132, of the 4880 non-
renderers voting on the library bonds voted
against that proposition. (Stip. #47, p. 29d, AG
Juris. State.). There is no proof on this record
that those 1132 non-renderers had "no reason" for
voting against the proposition. It is reasonable
to assume that such persons were, in fact, quite
intelligent and realized that their vote would
increase the tax burden upon themselves as well
as all other citizens of the City of Fort Worth.
Moreover, this Court noted in Phoenix, supra, that
those persons excluded from the franchise
have a great interest in approving or disapproving
municipal improvements...'' Phoenix, supra, 399
U. S. at 210 [Emphasis added].

p. 18) The Attorney General's assertion that the
Texas Election laws create a minimum qualifica-
tion requirement which serves to protect and en-
hance the electoral process is belied by his

. A

26

failure to point out how the electoral process
is protected or enhanced. What quality does a
renderi property owner have which makes him
uniqug@ly qualified to determine whether the City
of Fort Worth shall build a $6.8 million library?

(pp.20, The Attorney General has suggésted SaJyer

21,22)Land Co. v. Tulare Lake Basin Water Storage
District, 419 U.S. 719 (1973) as authority for
refusing to apply the compelling state interest .
test in the case at bar. That case is distin-
guishable in several fundamental ways from both
the case at bar and Phoenix, supra. The Water
Storage District involved in Saicer Land Co.,
Supra, had as its primary purpose the acquisition,
storage, and distribution of water for farming.
The District had no other general services which
it provided such as schools, housing, transporta-
tion, utilities, roads, or any other type of
service ordinarily furnished or financed by a
municipality. Therefore, the restriction of the
franchise to land owners within the District had
the effect of limiting the ballot to those per-
sons primarily affected by the outcome of the
election. In the case at bar, as well as in
Phoenix, by no reach of the imagination can it
be suggested that the property ownership require-
ment restricted the vote to persons primarily
interested in the outcome of the election. No
logic or experience indicates that only property
owners have a significant interest in such things
as libraries, parks, police and public safety
buildings, playgrounds and sewer systems.

Moreover, in Salyer, supra, all the costs
of the District's projects were assessed against
the land in proportion to the benefits received.
Just the opposite obtains in the cade at bar.
The Texas classification scheme in no way dis-
tributes the burden of taxation proportionately
between those who receive the most and the least

27

benefit from the outcome of the election, or
from the operation of the issue voted on in

the election. In fact, it permits a rendering
property owner to vote without ever paying any
tax whatsoever. Neither failure to pay the tax
nor tex delinquency has any disqualifying effect
under Texas law. Thus, this Court in Salyer held
that, by reason of the Water District's special
limited purposes and itssdisproportionate effect
upon the activities of land owners as a group,
the statute there involved did not violate the
Equal Protection Clause. Also, Salyer, supra,
did not involve a bond election but rather in-
volved the election of directors to the Board of
Governors for is District.

(Du22, The Attorney General suggests Associated
23)Enterprises Inc. v. Toltec Watershed Improvement

District, 410 U.S. 743 (1973), decided the same
day as Salyer, supra, as a basis for this Court
refusing to apply the compelling state interest
test. That case is also clearly distinguishable
from Phoenix, supra, and the case at bar, since,
like Salyer, supra, it. involved a special pur-
pose district which had a disproportionate ef-
feet on landowner's as such within the district.
The operation of the watershed district in that
case was conducted through special projects,
assessments being made on the land for any bene-
fits received, and such assessments constituting
a lien upon the land itself until paid.
The persons primarily affected by the outcome of
the election were clearly and easily identifi-
able. These same persons were also liable for
payments in direct proportion to the benefit
they received. This court held that the state
could rationally give landowners the exclusive
right to vote.

~ (p.23) The Attorney General has asserted that the
only distinction between the non-landowner resi-

.23,

- 28

dent's relationship to the elections in Salyer
and Associated Enterprises compared with the
relationship of the non-rendering appellees to
the tax bond election is the difference between
a "special purpose district’ and a special pur-
pose bond election. That assertion of the
Attorney General is demonstrably false. The
classificatory schemes involved in Salyer and
Associated Enterprises successfully identified
and isolated those persons who were almost ex-
clusively affected by the operations of the
special purpose district, to-wit: landowners.
If there were to be an analogy between Salyer
amd Associated Enterprises and the case at bar,
then the Texas classificatory scheme would have
to somehow limit the franchise to those persons
almost exclusively affected by the outcome of

the bond election. It does not do so. There is

simply no manner, rational or irrational, in

which property ownership or rendition of property —

for taxation may be related to the use of a
public library.

The Attorney General urges this Court's

24)decision in San Antonio Independent School

District v. Rodriguez, 411 U.S. I (1973) as a
basis for urging this Court to apply the tradi-
tional rational basis test in the case at bar,
since this Court there decided to “restrain the

expansion" of the fundamental rights analysis in

equal protection cases. If use of the compell-
ing state interest test in the case at bar con-
stitutes an "expansion" of the analysis of this
Court in Phoenix, supra, why has the Attorney

General not suggested to this Court in what res-

pect an application of that test herein would
constitute an "expansion"? As pointed out
above in Point I. A. above, there is simply no
substantial distinction between Phoenix, supra,
and the case at bar, and application of the

M7
\

Pe

compelling state interest test to the case at
bar could not conceivably be viewed as an
"expansion" of the fundamental ‘rights analysis.
However, the failure of this Court to apply the
compelling state interest test in the case at
bar would overrule this Court's decisions in
Phoenix, supra, Kramer, supra, Cipriano, supra,
and Stewart, supra.

If the Attorney General is urging this Court
to overrule those four cases, he should say so.

(p. 27) The Attorney General has asserted that Judge
Thornberry, author of the memorandum opinion below,
fails to consider that the general obligation tax
bond election in Texas will have a direct and
disproportionate effect on property owners. He
cites Salyer, supra, as the authority for that
proposition. Salyer, supra, simply is not anala-
gous, since in that case virtually the only thing
affected by the election was land. In general
obligation tax bond elections, land and property
is one of the least significant things affected.
The most significant thing affected is people.
Additionally, the Attorney General's analysis
makes no allowance whatsoever for the indirect
payment of taxes.

(p.27) The Attorney General has suggested that one
of the important facts to this Court in Salyer,
supra, was that lessees could bargain with their
lessors for the franchise by proxy. Is the
Attorney General suggesting that there is some
provision in Texas law which permits voting by
proxy in general obligation tax bond elections?
If he is, he should cite the relevant provisions
to this Court. Counsel for appellees have un-
covered no such provisions.

p.29)

30

If the Attorney General desires for this
Court to apply the rational basis test in de-
ciding the case at bar, why does he not devote
at least two paragraphs in his Jurisdictional
Statement to discussing the rational basis test
set forth in Harper under the facts of the in-
stant case? It zr respectfully submitted that
his failure to do so is based upon his realiza-
tion that even under the traditional rational
basis test, these challenged Texas provisions
would completely fail to pass constitutional
muster. These restrictions have no relation-
ship whatsoever to the intelligent use of the
ballot. Judge Woodward below specifically
based his concurrance upon Harper, supra, in
which this Court struck down a poll tax under
the rational basis standard for the reason that
such tax bore no relationship to the intelligent
use of the ballot. Neither does property owner-
ship.

Ce Ei ese e |

aban

o

ee

cS
31

III. THIS COURT SHOULD SUMMARILY AFFIRM THE DECISION
OF THE THREE JUDGE COURT BELOW BECAUSE THAT
DECISION IS SO CLEARLY CORRECT THAT THERE IS NO
POSSIBILITY THAT THIS COURT WOULD BE INDUCED TO
REVERSE.

A. The Texas Supreme Court has Upheld the Con-
stitutionality of the Voting Classification
Challenged in This Case in the Face of This
Court's Decisions of Kramer v. Union Free
School District and Phoenix v. Kolodziejski.

In Montgomery Independent School District v.
Martin, 464 Td 638 Giles: Sup. 1971) the Texas
Supreme Court held that the Texas laws being
attacked in the present case are not violative of
the Equal Protection Clause of the Fourteenth Amend-
ment. The opinion of the Court does not analyze
whether the voting classj{fication bears any relation
to voter qualifications,’ nor does it analyze
whether the voting classification is necessary to
promote a compelling state interest, which are the

S"But we must remember that the interest of the State,
when it comes to voting is limited to the power to fix the
qualifications. Wealth, like race, creed, or color, is not
germane to one's ability to participate intelligently in the
electoral process." Harper v. Virginia State Board of
Elections, 383 U.S. 663 at 668 (1966).

"Therefore, if a challenged state statute grants the
right to vote to some bona fide residents of requisite age
and citizenship and denies the franchise to others, the
Court must determine whether the exclusions are necessary
to promote a compelling state interest." Kramer v. Union
Free School District, 395 U.S. 621 at 627(1969).

32

applicable constitutional standards. ’ Two purposes
of the voting classification are set forth in the
opinion:

(1) to limit the franchise to those who will
pay for the obligations assume in the
election, and

(2) to encourage disclosure and rendition of
taxable property.

7The tradtional "rational basis" standard is not appli-
cable to this case, Kramer v. Union Free School District,

395 U.S. 621 at 628 (1969).

8"Qne who is willing to vote for and impose a tax on
the property of another should be willing to assume his
distributive share of the burden. ... To allow some property
owners to vote in that kind of an election, and at the same
time to permit them to avoid their fair share of the result-
ing obligation, would confer preferential rights. This would
be a denial of equal protection to another segment of citizens."
Montgomery Independent School District v. Martin, 464 S.W.2d
638 at 641, 642 (Tex. Sup. 1971).

=

ast

meee

9"In our opinion, the requirement that the voter in a
general obligation bond election must get his property on the
rolls is in the interest of sound government and affords equal
treatment to all citizens. ... This is the manner in which the
Texas Constitution, as approved by the entire citizenry of the
State, provides inducement for those who wish to participate
in the decision making process in a School District to assume
their rightful portion of the burden they help to create.

Personal property such as stocks, bonds, cash, auto-
mobiles, and livestock furnishes a great deal of the State's
taxable property. No class of property is so susceptible to
concealment and escapte from taxation as personal property.
... There may be other means: to reach personal property, but

NYT SRY C9

=

Bete caresses ernenyereae gin swingers

33

: The only other conceivable state interest

arguably promoted by the classification is to limit
the franchise to those who are primarily interested
in the outcome of the election.

B. The Challenged Provisions of Texas Law are

not Entitiet to a Presumption of Constitu-

tionality.

The clear mandate of Kramer v. Union Free
School District, 395 U.S. 621 (1969) is that these
challenged Texas provisions are not entitled to the
general presumption of constitutionality afforded
state laws.1l

C. None of the Purported Purposes of the Texas
Voting Classification Meet the Constitutional
Standard Laid Down by This Court in Harper v.
Virginia State Board of Elections.

The constitutional standard of Harper v. Vir-
ginia State Board of Elections, 383 U.S. 663 (1966)
is best stated in the language of its opinion:

"But we must remember that the interest
of the State, when it comes to voting
is limited to the power to fix qualifi-
cations. Wealth, like race, creed, or
color, is not germane to one's ability

experience has shown that every means must be pressed into
service if the obligations of government are to be spread
equally." Montgomery Independent School District v. Martin,
464 S.W.2d 638 at 641 (Tex. Sup. 1971).

10Vamer v. Union Free School District, 395 U.S. 621
at 627, 628 (1969)

34

to participate intelligently in the
electoral process." Harper v. Vir-
ginia State Board of Elections, supra,
383 U.S. 668 (1966).

1. Texas has no right to encourage disclo-
sure and rendition. of taxable property
by conditioning the right to vote upon
such disclosure and rendition, because
that purpose bears no relation to voter
qualifications.

It is undoubted that a state has the right
to encourage disclosure and rendition of taxable
property, just as it has the right to promote high-
way safety by appropriate legislation. But this
does not mean a state is free to withhold the right
of its citizens to vote in order to enforce these
goals.

In Harper v. Virginia State Board
of Elections, supra, this Court held
that a state does not have the right to impose a
tax on the right to vote because "(v)oter qualifi-
cations have no relation to wealth nor to paying or
not paying this ‘or any other tax." 383 U.S. 666.
Disclosure and rendition of taxable property has no
more relation to voter qualifications than does
wealth, highway safety, building codes, or any
number of other topics in which the state is other-
wise legitimately interested. A state simply is

not free to clutter up the voting laws with require-
ments which have no relation to voter qualifications

2. Texas has no right to limit the franchise
to those who will pay for the obligations
assumed in the bond election because this
purpose bears no relation to voter quali-
fications.

~~

35

The fact that a person may or may not have
to pay the taxes which fund an issue on which he is
voting may influence how he wishes to vote. But it
has no bearing on his ability to intelligently par-
ticipate in the electoral process. Therefore, this
purpose also fails to meet the constitutional stand-
ard of Harper v. Virginia State Board of Elections,

supra.

3. Texas has no right to limit the franchise
in bond elections to those who are pri-
marily interested in the outcome of the
election because this purpose bears no
relation to voter qualifications.

Assuming arguendo that the challenged voting
classification does somehow roughly limit the fran-
chise to those primarily interested in the outcome
of an election, that purpose bears only a specula-
tive relationship to the ability or potential of a
person to exercise his franchise intelligently. It
may be generally true that persons primarily inter-
ested in the outcome of an election exercise more
care in the casting of their vote, but this certain-
ly does not mean that persons no primarily inter-
ested are incapable of exercising their franchise
intelligently. For example, a Fort Worth resident
voting in a statewide election on a proposition to
abolish a hospital district in Waco certainly is

"one not primarily interested in the outcome" of
such election. But this in.no way implies that the
voter is ancepabie of casting an informed, intelli-
gent ballot.

The State law which requires a statewide election in
such cases is anamolous. Perhaps the Fort Worth resident
shouldn't have a vote on such a proposition. But that is
because he doesn't reside in or come under the control of
such hospital district, and not because he is incapable of
casting an intelligent ballot.

36

4. In deciding whether the Texas voter
classification meets the constitutional
standard of Harper v. Virginia State
Board of Elections, the degree of dis-
crimination is irrelevant.

The Texas Supreme Court has stated that the
challenged voting scheme i§ no impediment to anyone
who really wants to vote. This argument was
emphatically answered in Harper v. Virginia State
Board of Elections, supra:

"We say the same whether the citizen,
otherwise qualified to vote, has $1.50
in his pocket or nothing at all, pays

the fge or fails to pay it." 383 U.S.
668.

laure is the contention of the Attorney General, and
we agree, that voter qualifications of ownership under the
Texas constitutional and statutory provisions stated above,
as interpreted by our decisions, are so universal as to
constitute no impediment to any elector who really desires
to vote in a bond election. A voter is qualified if he
renders any kind of property of any value, and he need not
have actually paid the tax." Montgomery Independent School
District v. Martin. 464 S.W.2d 638 at 640 (Tex. Sup. 1971).

13e79 introduce wealth or payment of a fee as a
measure of a voter's qualifications is to introduce a
capricious or irrelevant factor. The degree of the discrim-
ination is irrelevant." Harper v. Virginia State Board of
Elections, supra, 383 U.S. 668 (1966).

ale A eS aca aia Ne 326s bMS EAN aS TAR ne WU Sa QS ey Wee ae a

SUES GAS a OR vy

Re Ce aN ee

a7

D. The Only Three Conceivable Purposes of the
Texas Voting Classification Fact to Meet
the Constitutional Standard Laid Down b
This Court in Kramer v. Union Free School

District.

This Court announced a strict standard
for measuring state action in elections in Kramer
vy. Union Free School District:

"(L)£f a challenged state statute grants
the right to vote to some bona fide resi-
dents of requisite age and citizenship
and denies the franchise to others, the
Court must determine whether the exclu-
sions are necessary to promote a compell-

ing state interest." Kramer v. Union
Free School District, 395 U.S. 621 at

627 (1969).
It should be observed that this standard has
two distinct requirements:

(1) there must be a compelling state interest
for the classification; and

(2) the classification must be necessary to
promote that compelling state interest.

Thus, in order to decide whether or not these
five Texas provisions are consistent with the Equal
Protection Clause of the Fourteenth Amendment, we
must answer one or both of the following questions:

(1) is there a compelling state interest for
the classifications made by these five
provisions?

38

(2) even if there is, is the classification
adopted necessary to promote that compell-
ing state interest?

1. The interests of the state in encouraging
its citizens to disclose and render for
taxation some property, however little,
is not a compelling state interest.

It is perfectly clear that the challenged
Texas provisions do not require the voter to assume
his pro rata share of the tax burden in order to
vote. ,

A voter is qualified if he renders
any kind of property of any value,
and he need not have actually paid
the tax, Montgomery Independent
School District’v. Martin, 464 ? W.
at Tex. Sup. 1971).14

\4there ts however some language in the same opinion
indicating that the challenged provisions do encourage each
citizen to assume his fair sahre of the tax burden.

"To disclose one's share of the total burden for
which he is responsible in a bond election re-
quires no more than the law universally expects.
To allow some property owners to vote in that
kind of an election, and at the same time per-
mit them to avoid their fair share of the re-
sulting obligation, would confer perferential
rights." 464 S.W.2d 641, 642.

This language cannot be reconciled with the language
of the Court in that case quoted in the text.

ma ee Se ee a oe

EPS 5

Becseuteene sear

PF ame ae

a9

The interest of the State in securing dis-
closure and rendition for tax purposes of a thirty-
cent pencil is something less than compelling. The
cost of accounting for such an item probably exceeds
the tax that can be collected.

2. The challenged Texas voting classifica-
tion is not necessary to promote the
state interest, if any, of encouraging
each citizen to disclose and render for
taxation some of his property.

A law which exacts a monetary penalty for
failure to render property for taxation is an
appropriate and recognized technique for collecting
taxes. Employment of a tax-collector assessor to
discover and render taxable property is another
recognized way to collect taxes. Both of these
means are tailored to the end sought to be accom-
plished. Voting laws are not designed primarily to
collect taxes, but are designed to give the citizen
a voice in his government. Since there are other,
better ways to encourage rendition of taxable prop-
erty, these voting laws are certainly not necessary
to promote that goal.

It is difficult to assess how many persons
who otherwise would not render some property for
taxation are persuaded to render taxable property
by these Texas laws. The number of such persons is
probably not very great. There are surely many more
persons whose uncertainty over the property rendi-
tion requirements keeps them from the poll Since
these voting laws largely fail to encourage rendi-
tion of taxable property, they are not necessary {to
promote that goal.

3. The interest of the state in limiting
the franchise to those who will pay for
the obligations assumed in the election
is not a compelling state interest.

40

The five Texas provisions attacked in this
suit disenfranchise many voters who are directly
affected by the results of the elections which are
held pursuant to the challenged provisions. The
bond election held on April 11, 1972, was for the
purpose of submitting two propositions to the
electorate: .

Proposition 1 .............. $ 3,000.000
(Transportation System Bonds)
Proposition 2 .............. $ 6,860,000

(Library Bonds)

Certainly there is no compelling reason to
adopt a classification which keeps otherwise quali-
fied voters from voting on matters such as these.
Each of these improvements vitally affects all the
residents of Fort Worth: Most bond elections do
affect all residents. Thus, while the Constitution
and Statutes of Texas attempt to enfranchise only a
limited class of voters in this type of election,
it in no way limits the subject matter of the elec-
tions to matters concerning only those allowed to
vote.

It is true that those who must pay the taxes
for the improvements do have a special interest
apart from the general public, but the Court in
Stewart v. Parish School Board of St. Charles, 310
F. Supp. 11 a mem. , .W. (3.970)
held that the special interests of property tax-
payers is not a compelling state interest. 310 F.
Supp. at 1181.

s

4. The classification challenged herein is
not necessary to promote the-state's
interest, if any, of limiting the fran-
chise to those who will pay for the
obligations assumed in the election.

Perirreesiieconcesznrs VLAD MOOG a 9

=

Ae

AE IRENE ONLINE NES EMEDIA ENLIST LES IAAP LAAT NN A Se Be Le PERE Secor RS

PAIR nestip oye

FAIS

41

The Texas provisions disenfranchise many
persons who will have to pay for the improvements
voted on. There are many persons otherwise quali-
fied to vote who will not have rendered property
for taxation in the year of the election, but who
will render property in future years. The tax on
that property will be applied to the retirement of
the bonds. There are other people who will effec-
tively pay property tax in the form of rent, or
overhead added to a seller's cost of goods sold.
There are still others who will be deterred from
voting because although they have rendered some
property, they do not understand that these pro-
visions of Texas law require only token rendition
of taxable property as a condition to the right to
vote.

The voting laws is no place to require
token compliance with the legitimate objective of
tax collection, and it is certainly no place for
such token compliance when, as here, the law
limits the right to vote in an imprecise and
easily misunderstood fashion.

Clearly, there is a large amount of over-
kill in these provisions. These provisions are
not necessary to promote the state interest of
limiting the vote to those who will, in the long
run, pay for the obligations. Indeed, these pro-
visions do not even reasonably promote that inter-
est.

5. The interest of the state in limiting
the franchise to those who are primarily
interested in the outcome of the elec-
tion is not a compelling state interest.

Even though there is no hint that the
challenged voting classification even begings to
limit the franchise to those primarily interested

42

LA WPT

in the outcome of the election, such a purpose is
not a compelling one. :

This is the same state interest suggested
in Kramer v. Union Free School District, supra, and
this Court there held that the New York statute was
not necessary to promote that interest since many
persons vitally interested in the issues voted on
were disenfranchised. 395 U.S. 632, 633.

The Court in Stewart v. Parish School Board

of St. Charles, 310 F. Supp. 1172 (1970), aff'd men.

1970), held that the special interests

of property taxpayers is not a compelling state in-
terest. 310 F. Supp. 1181.

The challenged Texas provisions suffer pre-
cisely the same infirmity, since the bond elections
governed by the five Texas provisions are of vital
concern to all voters. These bonds can be used to
finance virtually any governmental eae

6. The challenged voting restrictions are
not necessary to promote the state's
interest, if any, of limiting the fran-
chise to those who are primarily inter-
ested in the outcome of the election.

It is difficult to even make an argument
that the challenged voting classification limits
the franchise, even imprecisely, to persons who are
, primarily interested in the outcome of the election.
Under the facts of the present case, a person who
has no property rendered for taxation may have
children who would be benefited to a great extent
by the building of a new library or the improvement
of existing facilities. And as has already been
pointed out, even though this voter may have no
property rendered for taxation, if he pays rent on
his house or any other property which is taxable

43

in Texas, he is in effect paying the tax without
having any property rendered. Indeed, by paying
the tax he has done more to fulfill the state's
objective of tax collection than a person meeting
the minimum requirement for voting in a bond elec-
tion. . A renderer need not have paid any tax in
order to vote. To say that a person is less inter-
ested, or is not primarily interested, in the out-
come of an election such as the one held in this
case simply is not true. The further difficulty
with such an argument is that any attempt to decide
by whatever means who is "primarily interested" in
the outcome of an election for something of as much
general interest as a library is necessarily highly
subjective and speculative.

It is respectfully suggested that the
challenged voting classification is not necessary
to limit the franchise to persons primarily inter-
ested in the outcome of the election. Indeed, it
doesn't even begin to so limit the franchise.

E. The Clear Mandate of Kramer v. Union Free
School District and the Three Cases Sub-
sequently Based Upon It is That These Five
Texas Provisions Are Unconstitutional.

In Kramer v. Union Free School District, supra,
this Court struck down a provision of the New York
Education law which required a voter in school
board elections to be either a parent of a child
attending school in the district, or the owner or
lessee of real property, or the spouse of an owner
or lessee.

In Cipriano v. City of Houma,
395 U.S. Bt (1969), a companion

'Ssee Appendix A for a full text of the statute.

aaa

44

case to Kramer v. Union Free School District, this
Court held unconstitutional a Louisiana statute
which limited the right to vote in a | ed revenue
bond elections to "property owners". 16

In Phoenix v. Kolodziejski. 399 U.S. 204 (1970)
this Court held unconstitutional Arizona statutes
and constitutional provisions which limited the
right to vote in general obligation bond elections
to real property taxpayers.

SLE RC ALES I EM

In Stewart v. Parish School Board of St. .
Charles, 310 F. Supp. 1172. (1970) aff'd mem., 400
U.S. 884 (1970), a three-judge district court with- ~
ing the Fifth Circuit held that Louisiana constitu-
tional and statutory provisions limiting the right
to vote in general obligation bond elections to
“property taxpayers" were unconstitutional.18 The
term "property taxpayers" included those who pay
tax on personal property. This Court affirmed the
judgment of the three-judge court in a memorandut
opinion, citing Phoenix v. Kolodziejski, supra.

The Kramer doctrine has been applied by the
Federal Courts in every subsequent case where the
issue of restriction of the franchise in bond
elections to property taxpayers has been raised. 19

coe Appendix B for a full text of this Louisiana
statute.

see Appendix C for a full text of the Arizona
provisions.

'8ce6 Appendix D for a full text of these provisions.

'SNeither Salyer Land Co. v. Tulare Lake Basin Water
Storage District, 410 U.S. 719 (1973) nor Associated Enter-
prises, Inc. v. Toltec Watershed Improvement District, 410

Poy cy Mad, eed

45

Without fail, the Courts have held the challenged
state provisions unconstitutional. It will be

necessary for this Court to overrule Kramer, Phoenix,

Cipriano, and Stewart, supra, if these Texas provi-
Sions are to be held constitutional.

On June 23, 1970, this Court announced its
decision in Phoenix v. Kolodziejski, 399 U.S. 204
(1970). This Court thete held that a 1969 bond
election in which the franchise was reserved to
property owners was void. Issuance of those bonds
was enjoined. In that opinion, this Court stated:

"kkkNor have we been shown that the four-
teen states now restricting the fran-
chise have unique preblems that make it
necessary to limit the vote to property
owners." Phoenix v. Kolodziejski, 399

U.S.:2122205 970) «

Texas is one of those fourteen states.

In the face of the Phoenix decision, the
Texas Supreme Court has squarely held that the
Texas voting scheme challenged in this suit is not
violative of the Equal Protection Clause of the
Fourteenth Amendment. Montgomery Independent
School District v. Martin, FOL S.W.2d et: (Tex.

Sup. 19/1).

U.S. 743 (1973) involved bond elections. More fundamentally,
both of such cases basically held that when land is virtually
the only thing affected by an election, and the impact of the
election on land alone is clear, then the franchise may be
restricted to real property owners. See II above pp. 26-28.

46

Since virtually the complete record in this
case is before the Court and all evidentiary matters
are undisputed, this Court should affirm on the
merits without briefing, oral argument, or further

hearing.

"For to repeat, wealth or fee paying has,
in our view, no relation to voting quali-
fications; the right to vote is too
precious, too fundamental to be so bur-
dened and conditioned." Harper v. Vir-
ginia State Board of Elections, 383 U.S.

663 at 6/0 (1966).

AN DSIRE

SEEN OM TERRE EIR RA WOR EIS I ATR

REPT tae Pan

Raver RE ED

: oe Wistar oN oy a aa aH RUE ie oe Signy
Boe: WR Aaa ia ete

47

CONCLUSION

Therefore, the Texas classificatory scheme
limiting the right to vote in general obligation
bond elections to rendering property owners is
unconstitutional.

PRAYER
Wherefore, Appellees pray as follows:
1. That this Court decide the case
without briefing, oral argument,
or further hearing, and,
2. That this Court affirm the judgment

of the three judge district court
below.

RESPECTFULLY SUBMITTED,
LAW OFFICES OF DON GLADDEN
702 Burk Burnett Building
Fort Worth, Texas 76102
BY

“DON GLADDEN

MARVIN COLLINS

48

PROOF OF SERVICE

The undersigned, a member of the Bar of this
Court, hereby certifies that a copy of the fore-
going Motion has this the 26th day of April, 1974,
been served upon each counsel of record for appell-
ees, in accordance with Rule 33 of this Court, by
depositing the same in a United States mail box,
with first class postage prepaid, addressed to.
said counsel at their post office addresses.

DON GLADDEN

SE RRS SA ee

Rey

EEE ERY RIG FE TRIES TE PE

ay

Pesesee eee rss earner ess

BIS OE Bs ie Ba RS PER es RR ARS

4 RAGES pipe tes «oh He os

To Bia

Se

Se ee ee es

49

APPENDIX A: NEW YORK STATUTES INVOLVED
IN KRAMER V. UNION FREE SCHOOL DISTRICT

1. Section 2012, New York Election Law.

A person shall be entitled to vote at any school
meeting for the election of school district officers,
and upon all other matters which may be brought
before such meeting, who is: 1. A citizen of the
United States. 2. Twenty-one years of age. 3. A
resident within the district for a period of thirty
days next preceding the meeting at which he offers
to vote; and who in addition thereto possesses one
of the following three qualifications:

(a) Owns or is the spouse of an owner, leases,
hires, or is in the possession under a contract of
purchase or is the spouse of one who leases, hires
or is in possession under a contract of purchase of,
real property in such district liable to taxation
for school purposes, but the occupation of real
property by a person as a lodger or boarder shall
not entitle such person to vote, or

(b) Is the parent of a child of school age, provided
such a child shall have attended the district school
in the district in which the meeting is held for a

* period of at least eight weeks during the year

preceding such school meeting, or

(c) Not being the parent, has permanently residing
with him a child of school age who shall have attended
the district school for a period of at least eight
weeks during the year preceding such meeting. No
person shall be deemed to be ineligible to vote at
any such meeting, by reason of sex, who has the
other qualifications required by this section.

Wm Sn PO bk Mei TOE Ap RS A we OL ene as “NEAR GAMERS Bin te OO:

50

APPENDIX B: LOUISIANA STATUTES INVOLVED
IN CIPRIANO V. HOUMA

1. Article 39: 501°LA. STAT. ANN.

Elections. Except as otherwise provided in special
cases, no subdivision may incur any debt, issue any
bonds, levy any special tax, or assume any indebted-
ness unless it has been authorized by vote of a
majority in number and amount of the property tax-
payers qualified to vote under the constitution and
laws of this state who vote at an election hereunder.
The governing authority of any subdivision may call
a ‘special election for any of these purposes at any
time; and it shall call an election for any of these
purposes when requested so to do by the petition in
Ty | of one-fourth of the property taxpayers
eligible to vote at the election.

2. See Also
Article 33: 4258 LA. STAT. ANN.

Election to authorize the issuance of bonds;
validation. Before the resolution authorizing
the issuance of bonds under this Subpart is adopted
by the governing body, the question of the issuance
of the bonds shall be submitted and approved at
either a special or general election which shall
be ordered, conducted and canvassed in accordance
with either of the following election procedures,
at the discretion of the governing body;

(1). The question of the issuance of the bonds
may be submitted to and approved by votes of a
majority in number and amount of the property tax-
payers who vote at an election held hereunder. In
the event the governing body elects to order a
property taxpayers’ election, all matters pertaining
thereto, including the qualifications of voters
and the manner of calling ‘and conducting the election

51

Serer |

ae

and canvassing and promulgating the results thereof
shall be governed by the provisions of Chapter 4,
Subtitle II, Title 39.

(2). The question of the issuance of the bonds may
' be submitted to and approved by a majority of the
“| qualified electors of .the municipal corporation who
| vote at an election held therein substantially in
accordance with the general election laws of the
+ state of Louisiana except that the election shall
be ordered, conducted, canvassed and notice thereof
published by the governing body in accordance with
the procedures set forth in Chapter 4, Subtitle II,
Title 39, except where inconsistent with the provi-
5 sions of this section. In the event the governing
| body elects to order such an election, all qualified
'4 resident electors shall be entitled to vote in the
election and:voters shall not be required to sign a
ballot. Voting machines shall be used in the holding
of this igen oF election and assessed valuation shall
not be voted in the election.

In the event a property taxpayers’ election has
heretofore been held and promulgated approving the
issuance of bonds under this Subpart, as contemplated
in Subparagraph (1) above, the governing body may
proceed with the issuance and sale of such bonds

without complying with the provisions of this section
4 and without any further election approval.

All bonds heretofore issued under the provisions
gof this Subpart are hereby validated, ratified and
confirmed and declared to be valid and binding
jobligations of the municipal corporation in accord-
ance with the terms of their issuance in spite of
@any one.or more irregularities which may have
occurred in the passage of this Subpart or question
Gwhich might be raised as to the constitutionality of
any procedural provision of this Subpart. All
proceedings heretofore had in connection with the

52

issuance of such bonds are hereby ratified, validated
and confirmed.

3. sed arzo

Article 39.508 LA. STAT. ANN.

Qualifications of voters. Only property taxpayers
qualified as electors under the constitution and
laws of this state are entitled to vote in any elec-
tion held under the provisions of this Part. ~ The
qualifications of taxpayers as voters are those of
age, residence, and registration as voters, without
regard to sex. There shall be no voting by proxy.

With reference to Part IV of this Chapter if the
limits and boundaries of any municipal corporation
has been extended and the assessment roll that is
to include the property in the extended limits has
not already been made for the municipal corporation,
those who have become property taxpayers by the

extension of the limits and who are otherwise
qualified to vote shall be permitte vote in the
election and the assessed valuatio of their property

shall be ascertained by reference to the last
assessment roll of the parish.

nw

33

APPENDIX C: ARIZONA STATUTES AND CONSTITUTIONAL
PROVISIONS INVOLVED IN PHOENIX V. .KOLODZIEJSKI

1. Article 7, Section 13 ARIZ. CONST.

Submission of questions upon bond issues or special
assessments.

Questions upon bond issues or special assessments
shall be submitted to the vote of real property tax-
payers, who shall also in all respects be qualified
electors of this State, and of the political sub-
divisions thereof affected by such question.

2. Article 9, Section 8 ARIZ. CONST.

Local debt limits; assent of taxpayers. No county,
city, town, school district, or other municipal
corporation shall for any purpose become indebted
in any manner to an amount exceeding four per centum
of the taxable property in such county, city, town,
school district, or other municipal corporation,
without the assent of a majority of the property
taxpayers, who must /also in all respects be qual-
ified electors, therein voting at an election
provided by law to be held for that purpose, the

value of the taxable property therein to be

ascertained by the last assessment for State and
county purposes, previous to incurring such
indebtedness; except, that in incorporated cities

, and towns assessments shall be taken from the last

assessment for city or town pruposes; Provided,
that under no circumstances shall any county or
school district become indebted to an amount
exceeding ten per centum of such taxable property,
as shown by the last assessment roll thereof; and

>) Provided further, that any incorporated city or

town, with such assent, may be allowed to become
indebted to a larger amount, but not exceeding
fifteen per centum additional, for supplying such

54

city or town with water, artificial light, or sewers,
when the works for supplying such water, light, or
sewers are or shall be owned and controlled by the
municipality.

3. Section 9-523 ARIZ. STAT. ANN.

Bond election. Questions on bond issues under
this article shall be submitted to the qualified
electors of the municipality. No bonds shall be
issued without the assent of a majority of the
qualified electors voting at an election held
for that purpose as provided in this article.

4. Section 35-452 ARIZ. STAT. ANN.

Election to authorize indebtedness; qualifications
of electors.

A. The governing body or board of a political
subdivision enumerated in Section 35-451 may, and
upon petition signed by fifteen per cent of its
real property taxpayers who are qualified.electors
thereof shall, order an election by such taxpayers
and electors to determine whether such indebtedness
shall be authorized.

B. The order for the election in a school district
shall be made by the board of supervisors in the
county where such election will be held, either upon
petition or upon request of the board of school
trustees.

C. If a majority of the real property taxpayers
who are qualified electors voting at the election
vote in tavor of creating an indebtedness in an
amount exceeding four per cent of the value of the
taxable property of the political subdivision,
such political rubdivision may become so indebted.

So RE ball BPP a SES,

I Se ee a ae ean Pe ee Le Fa

aS?

as ee ta

55

5. Section 35-455 ARIZ. STAT. ANN.

Issuance and sale of bonds; call for election.

A. When the political subdivision designated in
this article desires to issue bonds or other
evidences of indebtedness, the governing body or
board thereof may, with assent of a majority of the
real property taxpayers who are qualified electors
therein voting at the election held as provided by
Section 35-454, issue and sell bonds in the amount
authorized at the election.

B. The call for the election shall set forth the
amount of each bond and the aggregate amount of
the bonds, the maximum rate of interest to be
paid thereon, when the interest is payable, the
number of years such bonds or any series thereof
are to run from the date of such bonds or series
and the purposes for which the money derived from
the sale of the bonds will be expended. .

ne

56

APPENDIX D: LOUISIANA STATUTES AND CONSTITUTIONAL
PROVISIONS INVOLVED IN PARISH SCHOOL
BOARD OF THE PARISH OF ‘ :
STEWART

1. Article 14, Section 14a LA. CONST.

Municipal corporations, parishes and school,
road, subroad, sewerage, drainage, subdrainage
(waterworks and sub-waterworks) districts, here-
inafter referred to as subdivisions of the State
may incur debt and issue negotiable bonds, when
authorized by a vote of a majority in number and
amount, of the property taxpayers qualified to
vote under the Constitution and laws of this State,
' who vote at an election held for that purpose after
notice published or posted for thirty (30) days in
such manner as the Legislature may prescribe, and
the governing authorities of such subdivisions
shall impose and collect annually, in excess of
all other taxes, a tax sufficient to pay the interest
annually or semi-annually and the principal falling
due each year, or such amount as may be required
for any sinking fund necessary to retire said bonds
at maturity.

2. Article 39-508, LA. STAT. ANN.

‘Qualifications of voters. Only property taxpayers
qualified as electors under the constitution and
laws of this state are entitled to vote in any
election held under the provisions of this Part.

The qualifications of taxpayers as voters are those
of age, residence, and registration as voters,
without regard to sex. There shall be no voting by
proxy.

With reference to Part IV of this Chapter if the
limits and boundaries of any municipal corporation
have been extended and the assessment roll that is

57

to include the property in the extended limits has
not already been made for the municipal corporation,
those who have become property taxpayers by the
extension of the limits and who are otherwise

_ qualified to vote shall be permitted to vote in the

SBA ED Be tah SB IR Be RE

8 er eee

election and the assessed valuation of their
property shall be ascertained by reference to the
last assessment roll of the parish.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0406%3A04. Public record. Not legal advice.