Appellants Brief — Hill v. Stone

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OCTOBER TERM, 1974

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NO. 73-1723

k * &

JOHN L. HILL,

ATTORNEY GENERAL OF TEXAS,

Appellant

Vv.

MICHAEL L. STONE, ET AL.,

Appellees

* * *

On Appeal from the United States District

Court for the Northern District of Texas

x * *

BRIEF FOR THE APPELLANT

x * *

JOHN L. HILL

Attorney General of Texas

LARRY F. YORK

First Assistant

MIKE WILLATT

SUPREME COURT OF THE UNITED 9 INACHAES RODE 7S

Assistant Attorney General

G. CHARLES KOBDISH

Assistant Attorney General

P. O. Box 12548

November, 1974 Austin, Texas

NESTA ET LIT ME IIL ET SN ONE EL I ELUTE

SAE SE EIA

ep

Berries

. ee ee z PRS 8 PAE

Page

The Opinions Below. ............. 1

SUTIBCICIION ow 6 6 ee HEED 4 we oS l

Question Presented by the Appeal ...... 2

Constitutional and Statutory Laws Involved. . 2

Statement of the Facts of the Case a 2

Summary of Argument ............. 6

ATQUIMIEN 2 ic be ce He eee 7

A. Previous Supreme Court Deci-

sions on Voting Restrictions and _

the Fourteenth Amendment, ... 8

B. Texas Property Rendering Re-

/ quirements Do Not Create a

Classification .......6.... 16

C, “Reasonableness” is the Proper

Constitutional Standard to be

Conclusion

| eascaatetemmeieaeaatatial ieee . heen 9 Melia LSC UML EARN OE DH

4

-ii-

| TABLE OF AUTHORITIES

CASES Page

Associated Enterprises, Inc. v. Toltec

» Watershed Improvement District, |

410 U.S. 7435 (1973)... 2. evo e 24, 25, 26,

27, 28, 29, 34

Avery v. Midland County, 390 U.S.

Yt) | ree 23, 24, 30, 31, 32

Baker v. Carr, 369 U.S, 186 (1962) ...... 9

Bogert v. Kinzer, 93 Idaho 515, 465 P.2d

559 (1970), appeal dismissed, 403 U.S.

i bl) fos Sr i ee a ae 42

Campbell v. Wright, 95 S.W.2d 149 (Tex.

Civ.App. 1936, nowrit) ........... 15

Carrington v. Rash, 380 U.S. 89 (1965) .... 8

Cipriano v. City of Houma, 395 U.S...

10 CD 6 ee wee ly we a ee a et me §

13, 16, 23, 41

City of Phoenix v. Kolodziejski,

399 U.S; 204 (1970) .........9, 10, Ll,

13, 23, 35, 37, 38

Cypert v. Washington County School

District, 473 P.2d 887 (1970)........ 38

DuBose v. Ainsworth, 139 S.W.2d 307

(Tex.Civ.App. 1940, writ dis.) ....... 12

Dunn v. Blumstein, 405 U.S, 330 (1972). . 20, 21

Edelman v. People of State of Cali-

fornia, 344 U.S, 357 (1953) ... 1.2... 42

-iii-

_ CASES (Continued) Page

Franklin v. Krause, 32 N.Y.2d 234, 298

N.E.2d 68 (1973), reh. denied, 33 N.Y.

2d 646, 348 N.Y.S.2d 554, appeal dis-

missed, U.S, , 948.Ct. 1397 °

CROP O eS oe: 0 ee 8 Oe 8 8 wo 29

Gordon v. Lance, 403 U.S. 1

2) i ee 40, 41, 42, 43, 44

Gray v. Sanders, 372 U.S. 368 (1963). ..... 4

Hadley v. Junior College District, 397

U.S. 30 (1970)... : Soe: o 23, 30, 31

Handy v. Holman, 281 S.W.2d 356 (Tex.

Civ. App. 1955, no writ), .....-+.-. 13, 15

Harper v. Virginia Board of Electors,

S60 U.S. GOS (1900). 2 0 2 0 1 4 0 8 9, 18, 27

Kramer v. Union Free School District

No. 15, 395 U.S. 621 (1969). ...... passim

Lassiter v. Northampton Election

Board, 360 U.S. 45 (1959) ...... *, . 8, 18

Louisville, etc. R.Co. v. Woodford,

Kentucky, 234 U.S. 46 (1914). ....... 42

Lucchese v. Mauermann, 195 S.W.2d 422

(Tex.Civ.App. 1946, writ ref. n.r.e.),

cert. denied, 329 U.S. 812 (1974). ..... 14

Markowsky v. Newman, 134 Tex. 440,

136 S.W.2d 808 (1940) .......... 14, 15

McDonald v. Board of Election Com-

missioners of Chicago, 394 U.S.

ee) | re re a 17, 21, 34

-iv-

CASES (Continued) Page

McGowan v. Maryland, 366 U.S. 420 ;

(CC) 5 rr 20, 22

Minor v. Happersett, 88 U.S. (21 Wall.)

$62 (1070) & <-& xe © HR Ee ee Rw OS 27

Montgomery Independent School District

v. Martin, 464 S.W.2d 638 (Tex.Sup.

Flt ee RRS SR CSE EE RES 13, 34

Muench v. Paine, 93 Idaho 473, 463 P.2d

939 (1970)... 2 ee ew ee goo ee noe ae

Oregon v. Mitchell, 400 U.S, 112 (1970)... . a

Police Jury of Vermillion Parish v.

Hebert, 404 U.S. 807 (1971)... ...... 23

Pope v. Williams, 193 U.S, 621 (1904)... . . 20

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

oS) rn ee ee ee 9, 20, 24,

Richter v. Martin, 342 S.W.2d 342 (Tex.

Civ.App. 1961, no writ) ....... ee

Rosario v. Rockefeller, 410 U.S. 752

(1973) . see eee ee ees 17, 18, 27, 28

Royalty v. Nicholson, 411 S.W.2d 565

(Tex.Civ. App. 1967, writ ref. n.r.e.)....14

Salyer Land Co. v. Tulare Lake Basin

Water Storage District, 410 U.S.

TER LARD) CaN Oe os ees A passim

San Antonio Independent School District

v. Rodriguez, 411 U.S. 1 (1973)... .. 26, 27

CASES (Continued) Page

Stewart v. Parish School Board of Parish

of St. Charles, 310 F.Supp. 1172 (E.D.

La. 1970), aff'd mem., 400 U.S. 884

(1970). we wee ee ew es 12. t3;.20

Texas Public Utilities Corporation v.

Holland, 123 S.W.2d 1028 (Tex.Civ.

App. 1939, writ dis.)........-4- 13, 14

STATUTES:

Vernon’s Texas Civil Statutes

Are. TO ok aw ee OOS SS 2

MO FEE, 6 Cae ot eRe Ee EOD 12

Texas Election Code Ann.

RIOD ie 6 ow SES 4 & eS eee

AT Se 5S Sse OR Ee ee eH HS OS 2

RO SU thes oe Sk a OS eK SS Se HS 2

Charter of the City of Fort Worth,

I ET ey ne =a See

United States Code:

Title 2813S C. Seetion 12708 66 6. ew aes 2

Title 28 U.S.C. Section 2101(b). . ... . ...-. 2

Title 28 115 ©. Section Zeek ..« i ss 6 io

Title 28 USC. Sécripn 2704.. 6ok sc ks ws |

Federal Rules of Civil Procedure,

Bie 25 Oe Ce Ae ee OR ee we ee 3

CONSTITUTIONAL PROVISIONS

Constitution of the United States

Fourteenth Amendment. . .2, 5, 6, 7, 9, 11, 20

Constitution of Texas

Att. Vi, Se SS ee ke SS SS eas 2

Att WI SOC OO or 6 a we ee te ee 2

a I Me RS

ean igen ERR RS 4

-vi-

OTHER AUTHORITIES ae Page

Constitutional Law - Equal Protection:

Supermajority Voting Requirements -

Gordon v. Lance, 403 U.S. 1 (1971),.

47 Wash.L. Rev. 386 (1972). .......- 41

Lee, Mr. Herbert Spencer and the Bachelor

Stockbroker: Kramer v. Union Free School

District No. 15, 15 Ariz.L.Rev. 457 - 477

CA9TS) oc a ee eR ew Ne oe we 28

Municipal Corporation: Validity of Voting

Restrictions in Bond Elections, 27 Okla.

273-279 (1974) 2. 2 eo ee ee wees 35, 39

Salyer Land Co. v. Tulare Lake Basin Water

Storage District: Opening the Floodgates

in Local Special Government Elections,

72 Mich.L.Rev. 868-895 (1974). .... 30, 32

The Supreme Court, 1972 Term, 87 Harv.

L.Rev. 94-105 (1973)... 2.22 eee eee 28

Voting - Property Qualifications for Voting

in Special Purpose Districts: Beyond the

Scope of “One Man - One Vote”, 59 Cornell

L.Rev. 687 - 708 (1974). ......-.-. 23, 21

IN THE

SUPREME COURT OF THE UNITED STATES

NO. 73-1723

JOHN L, HILL, Attorney General of Texas

Appellant,

Vv.

MICHAEL L, STONE, et al.,

Appellees.

ON APPEAL FROM THE

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

BRIEF FOR THE APPELLANT

THE OPINIONS BELOW

The opinion of the three-judge federal court

sitting as the District Court for the Northern Dis-

trict of Texas, Fort Worth Division, (J.S. Sa-27a)

is reported at 377 F.Supp. 1016 (1974).

JURISDICTION

The judgment of the three-judge federal

court declaring certain laws of the State of Texas

unconstitutional, empaneled pursuant to 28 U.S.C.

Sections 2281 and 2284, was entered on March 25,

1974, (J.S. la - 4a). Notice of Appeal was filed by

. Appellant on April 18, 1974 (J.S. 1b). On April 25,

1974, this Court granted Appellant’s application for

a partial stay. The appeal wasdocketedon May 17, .

1974, and probable jurisdiction noted on October iS;

1974. The jurisdiction of this Court to review this

-2-

decision by direct appeal is conferred by 28 U.S.C.

Sections 1253 and 2101(b).

QUESTION PRESENTED BY THE APPEAL

The following question is presented by this

appeal:

Are Texas election laws limit-

ing the franchise in general ob-

ligation tax bond elections to

persons who own taxable pro-

perty which has been rendered

for taxation consistent with the

Equal Protection Clause of the

Fourteenth Amendment to the

United States Constitution?

CONSTITUTIONAL AND STATUTORY

LAWS INVOLVED

The validity of Art. VI, Sections 3 and 3a,

Tex. Const., Articles 5.03, 5.04(a) and 5.07, Tex.

Election Code and the Charter of the City of Fort

Worth, Ch. 25, Section 19, are here involved. (J.S.

lc - 6c).

STATEMENT OF THE FACTS OF THE CASE

Article VI, Section 3a (J.S. 1c) of the Texas

Constitution provides that voters voting on bond

issues which will be paid in whole or in part from

tax revenues must be “only qualified electors who

own taxable property inthe... political subdivi-

sion. . .where such election is held, and who have

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|

”

duly rendered the same for taxation, .. . In

1969, when it first became apparent from the deci-

sions of this Court in Cipriano v. Houma, 395 U.S.

701 (1969), and Kramer v. Union Free School Dis-

trict No. 15, 395 U.S. 621 (1969), that the above and

related provisions of the Texas Constitution and

Statutes might be incompatible with the United States

Constitution, the Texas Attorney General’s Office,

and the bond industry and their attorneys, devised a

dual-box election procedure whereby at each tax

bond election two separate ballot boxes are provided

(App. 65-67). In one box only resident qualified

electors who own taxable property and who have

duly rendered the same for taxation are allowed to

vote, and in the other box, all other resident quali- .

fied electors (who are otherwise qualified, but do

not own taxable property which has been duly ren-

dered for taxation) are allowed to vote. The votes

cast in each box are recorded separately, and the

returns are’ canvassed in such manner as reflects

separately the votes cast by the two respective

groups of electors. ‘

Bonds have only been approved by the Texas

Attorney General if a majority of the property

owners who have rendered their property approved,

and if additionally, a majority of all voters approved.

This procedure assured that bonds issued were

compatible with both the Texas Constitution and the

United States Constitution. The dual-box election

procedure was followed inthe general obligation tax

bond election made the subject of this case (App.

65-67, 74).

On April 11, 1972, the City of Fort Worth

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held a tax bond election to seeR authorization to

issue bonds to build a library system (App. 86).

The ordinance authorizing the election stated that

the election was to “. . . be held and conducted, in

effect, as two separate but simultaneous elections,

to-wit: one election at whichonly the resident, qual-

ified electors who own taxable property in the City

and who have duly rendered the same for taxation

shall be entitled to vote on said propositions, and

another election at which all other resident, quali-

fied electors of the City shall be entitled to voteon

said propositions. The votes cast at each of said

separate but simultaneous elections shall be re-

corded, returned, and canvassed separately.” (App.

64)

The result of the election was as follows

(App. 53-54, 86-87):

OWNERS OF PROPERTY

RENDERED FOR TAXATION

FOR 10,849

AGAINST 12,234

NON-RENDERERS

FOR 3,758

AGAINST 1,132

TOTAL FOR 14,607

TOTAL AGAINST 13,366

On April 17, 1972, the City Council approved

and adopted the election (App. 53-54) and, there-

wie

after, acting pursuant to the Texas election laws,

refused to sell the library bonds. Onthat same day,

the appellees filed a class action pursuant to Rule

23, F.R. Civ. P. requesting that a tisee-judge dis-

trict court be convened under the authority of 28

U.S.C. Sections 2281 and 2284 (App. 11-12).

John L, Hill, Attorney General of Texas, was

joined as defendant because Texas law requires that

said official certify the legal validity of the proposed

municipal bond issue (App. 33, 51). V.T.C.S. Art.

709d (App. 49-50). After the bonds have been ap-

proved by the Attorney General, Texas statutes pro-

vide that they are incontestable except for fraud and

unconstitutionality.

Appellees requested the District Court to

declare the Texas election laws involved to be in

irreconcilable conflict with the Equal Protection

Clause of the Fourteenth Amendment to the United

States Constitution (App. 16-17). Appellees further

requested the District Court to enjoin appellants

from giving any forceor effect to the Texas election

laws in controversy as they might relate to the out-

come of the bond election held on April 11, 1972,

or any other such elections thereafter held (App.

17-20).

The case was submitted to the District Court

on stipulated facts as they appeared in pages 19

through 43 of the District Court’s Pre-Trial Order

entered on November 8, 1972 (App. 38-87).

On March 25, 1974, the three-judge court

entered a judgment and opinion (J.S. la - 27a)

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declaring the questioned Texas election laws to be

in violation of the Fourteenth Amendment to the

United States Constitution and enjoined appellants

from giving any force or effect to said laws, The

District Court stayed its judgment for ten days to

enable the parties to submit an application for stay

to the Circuit Justice, the Supreme Court, ora Jus-

tice thereof (J.S. 3a).

On the 2nd day of April 1974, appellant

filed a Motion to Modify Judgment and/or for

Partial Stay in the District Court requesting a

modification of the judgment to provide that the

Texas dual-box election procedure in bond elections

be continued pending the final outcome of this

cause before the Supreme Court. The District

Court entered an order on April 9, 1974, denying

the appellant’s Motion. The District Court granted

an additional five day stay of their judgment to

enable the parties to submit an application for stay

to the Circuit Justice, the Supreme Court, ora Jus-

tice thereof.

Appellant filed an application for a partial

stay of the District Court’s judgment with the

Circuit Justice, Mr. Justice Powell, on April 15, —

1974. The Circuit Justice requested a reply to

appellant’s application from appellees. Upon

receipt of the reply, this Court granted a partial

stay of the District Court’s judgment by order en-

tered on April 25, 1974.

SUMMARY OF ARGUMENT

The Texas constitutional and statutory elec-

Fn

tion laws limiting the franchise in general obligation

tax bond elections to persons who own taxable pro-

perty which has been duly rendered for taxation

fully comply with the Equal Protection Clause of the

Fourteenth Amendment to the United States Consti-

tution. The very nature ofa general obligation bond

and the universality of property subject to taxation

in Texas, combine to lend constitutional validity to

the property rendering requirements which, al-

though involuntarily disenfranchising noone, limits

the vote to those who are “primarily interested” in

the outcome of an election, the object of which is

to authorize an issue of bonds payable solely

from property taxes. The Equal Protection Clause

and recent decisions of this Court indicate that the

challenged Texas election laws serve a valid state

interest in 4 constitutionally permissible manner.

ARGUMENT

The issue involved in this appeal isof great

importance to the State of Texas and the political

subdivisions thereof, as well as more than one-

fourth of all the states which in one manner or

another qualify the right to vote in general obligation

bond elections on the basis of property ownership

or taxation. The importance of the issue is accen-

tuated by its potential effect_on the financing which

is vital to the function of the states and their sub-

divisions in erecting and maintaining needed public

improvements. In making a final determination of

the issue involved in this appeal, this Court will

unquestionably and substantially affect the functions

of local government as well as the continued

viability of reasonable state voting qualifications in

this area,

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2.

A, PREVIOUS SUPREME COURT DECI-

SIONS ON VOTING RESTRICTIONS AND THE

FOURTEENTH AMENDMENT

The United States Supreme Court has been

presented over the last decade with numerous

controversies concerning the qualifications which

various states have placed upon the exercise of

the franchise in state and local elections, Although

each of the decisions of this Court has been con-

cerned with the particular type of election at hand

and its circumstances, those same decisions have

been applied generally in virtually every area of

election law by this Court as well as the various

lower courts, state and federal.

As a general proposition, the states have

“, .broad powers to determine the conditions

under which the right of suffrage may be exer-

cised.” Lassiter v. Northampton Election Board,

360 U.S. 45, 50 (1959). This Court in Lassiter

upheld North Carolina’s literacy requirement and

determined that voter qualification requirements

may be sustained either when they promote intel-

ligent or responsible voting (voting competence),

- or when they perform either of these functions.

This Court also cited as constitutionally permiss-

ible qualifications based on age, residence, and

previous criminal record.

In keeping with the principle of Lassiter,

this Court. has condemned voter qualifications

which bear no demonstrable relation to the promo-

tion of intelligence and responsibility in voting.

Carringion v. Rash, 380 U.S. 89 (1965) (military

Xi

personnel); and Harper v. Virginia Board of

Elections, 383 U.S. 663 (1966) (poll tax).

An equally important basic premise stress-

ed by this Court is that the issues in any election

should be decided by a majority of the people con-

cerned with the outcome. Reynolds v. Sims, 377

U.S. 533 (1964); Gray v. Sanders, 372 U.S. 368

(1963); and Baker v. Carr, 360 U.S. 186 (1962).

However, “. . .once the franchise is granted tothe

electorate, lines may not be drawn which are incon-

sistent with the Equal Protection Clause of the

Fourteentn Amendment.” Harper, supra.

In 1969 and 1970, this Court rendered

several decisions holding invalid state laws which

selectively granted the right to voteon grounds that

they denied equal protection under the Fourteenth

Amendment. The first of these decisions was

Kramer v. Union Free School District No. 15, 395

U.S, 621 (1969). In Kramer, this Court struck down

a New York statute which granted the right to vote

in a local school board election only to those who

owned or leased taxable real property inthe district

or were parents or custodians of children enrolled in

the public schools. On the same day this Court

decided Kramer, it also handed down Cipriano v.

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

decision invalidated a Louisiana statute which per-

mitted only property owners to vote onthe question

of approving bonds that were to be financed ex-

clusively from the revenues of a municipal public

utility. The third important decision was City of

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

which an Arizona constitutional limitation of the

See ee ae 3

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franchise in general obligation bond elections to

persons who are qualified electors and also real

property taxpayers, was held to be in violation of

the Equal Protection Clause.

The decisions of this Court in Cipriano and

Kramer were carefully reviewed by appellant,

Texas Attorney General, with respect to their

application to the Texas election laws governing

general obligation tax bond elections, No changes

in Texas voter qualifications were deemed neces-

sary in light of those decisions because this Court’s

opinions were not inclusive of the facts or the law

surrounding Texas tax bond elections, However, in

- order to protect the outstanding public securities of

this State and to insure that any subsequently voted

securities would not be subject to attack based

upon a controlling, unfavorable decision of tne

Phoenix case, which was at that time pending in

this Court, it was decided that tax bond proposi-

tions should be covered by a dual-box election.

(App. 65-67) ‘

The result of this dual-box election policy

was to require that issuers of tax bonds be required

to meet all the voter qualification tests of the

Texas Constitution and statutes, and in addition

thereto, be required to submit tax bond propositions

to the balance of the otherwise qualified electorate.

Before approva’ would be given in the form of the

Attorney General’s opinion as to the validity of

securities, any and all underlying propositions must

have been approved not only by the owners of taxable

property duly rendered, voting in a separate box,

but also by the aggregate of all electors.

-ll-

This policy was viewed originally as a

temporary measure, on the assumption that the

final determination of the Phoenix case would put

the question to rest. However, that decision did

not settle the issue in Texas tax bond elections.

The precedents of Kramer, Cipriano and

Phoenix constitute the framework for the District

Court’s judgment that the Texas constitutional and

statutory qualifications for the exercise of the fran-

chise in a general obligation tax bond election are

in violation of the Fourteenth Amendment. The

basic test announced in those cases and ostensibly.

applied by the District Court in this case requires

that the Court determine whether the voter exclu-

sions are“. . .necessary to promote a compelling

state interest.” Kramer, at 627. 7

There are significant differences between

the three cases cited above and the provisions

of the Texas election laws relevant to this case.

In Cipriano, this Court held that ownership of pro-

perty, as a restriction, is irrelevant to an election

for the approval of bonds that would be financed by

revenues of a public utility, thereby substantially

and directly affecting property owners and non-

property owners aliké. The present case does not

concern revenue bonds (App. 78-79). Both Kramer

and Phoenix basically involved voting restrictions

based on real property taxation under circum-

stances which indicated that such a classification

excluded many persons significantly affected by way

of both burden and benefit. Pointedly, this Court

in Phoenix limited its review to this question: “Does

the Federal Constitution permit a State to restrict

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to real property taxpayers the vote in elections to

approve.the issuance of general obligation bonds?”

The Texas law does not restrict voting rights to

owners of real property. Indeed, under Art. 7145

(1960), V.T.C.S. “All property, real, personal or

mixed, except such as may be hereinafter expressly

exempted, is subject to taxation and the same shall

be rendered and listedas herein prescribed.” (App.

25) . —

Stewart v. Parish School Board of Parishof

St. Charles, 310 F.Supp. 1172 (E.D,La. 1970), aff'd

mem., 400 U.S. 884 (1970), is another case in the

progression which merits discussion. The United

States District Court for the Eastern District of

Louisiana strick down Louisiana statutes which

restricted eligibility to vote in tax bond elections

to property taxpayers and also weighted each

elector’s vote by the monetary value of his assessed

property. This District Court said that the affluence

of the voter was not sucha compelling state interest

as to justify the denial of the vote to some and the

dilution of the votes of the majority. Texas has no

such problem. It is immaterial to the right to

vote in a bond election whether one’s ownership

of property be greator small. DuBose v. Ainsworth,

139 S.W.2d 307 (Tex.Civ. App. 1940, writdis.). Also,

in Stewart, the District Court noted in footnote three

(page 1173) that under Louisiana law the term

“property taxpayer” equates with the term “real

property taxpayer” or “landowner”. Texas makes

no such distinction and, to the-contrary, generates

a substantial amount of tax revenues from personal

property as evidenced in the Pre-Trial Order (App.

67, 80-82).

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In Montgomery Independent School District

v. Martin, 464 S.W.2d 638 (Tex. 1971), the Texas

Supreme Court faced the precise issue of this case.

After consideration of the Kramer, Cipriano,

Phoenix and Stewart cases, the Court determined

that,

“Unlike those restrictive voting

laws which have beendeclared uncon-—

stitutionally narrow and limited, the

laws in Texas have consistently grant-

ed the right to vote in general obliga-

tion bond elections to all who own per-

sonal property as well as to those Ms

own real property. Texas Public

Utilities Corporation v. Holland, 123

S.W.2d 1028 (Tex.Civ.App. 1939, writ

dis.). In Handy v. Holman, 281 S.W.

2d 356 (Tex.Civ.App. 1955, no writ),

the right to vote of forty resident

citizens was challanged because im-

mediately before participating in a

bond election, they had each rendered

personal property valued at $100 for

the very purpose of voting ina bond

election. The court upheld their right

to vote and also said that electors

should not be ‘parsed’ out of their

constitutional right to vote by rea-

son of any shortcoming incompliance

with statutory requirements concern-

ing the proper and timely rendition

of personal property.

It is the contention of the Attorney

Bseniciose AERA

=e

General, and we agree, that voter

qualifications of ownership under the

Texas constitutional and statutory

provisions stated above, as inter-

preted by our decisions, are so uni-

versal 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.

The quoted provisions of the Con-

stitution and the Education.Code re-

quiring the property owner to duly

render his property for taxation have

been often construed by the Texas

courts in connection with voting

rights. Property is ‘duly rendered’

within the meaning of the Texas Con-

stitution if the property is placed on

the tax rolls by the tax assessor in-

stead of by the property owner. Texas

Public Utilities Corporation v.

Holland, supra, or by some other

person such as a husband, partner,

agent or co-tenant and even though

the owner’s name may not appear on

the tax rolls; Markowsky v. Newman,

134 Tex. 440, 136 S.W.2d 808 (1940);

Royalty v. Nicholson, 411 S.W.2d 565

(Tex. Civ.App. 1967, writ ref. n.r.e.);

Lucchése v. Mauermann, 195 S,W. 2d

422 (Tex.Civ.App. 1946, writ ref.

n.r.e.), cert. denied, 329 U.S. 812, 91

eS DRE NEN RM IER AP TIO LESS AEA TBA BR

£8.

L.Ed. 693, 67S.Ct. 633 (1947); Richter

v. Martin, 342 S.W.2d 342 (Tex.Civ.

App. 1961, no writ); Campbell v.

Wright, 95 S.W.2d 149 (Tex.Civ. App.

1936, no writ); or when one makes

his rendition out of time and for the

very purpose of qualifying as a voter.

Markowsky v. Newman, supra; Handy

v. Holman, 281 S.W.2d 356 (Tex.Civ.

App. 1955, no writ).

It thus appears that those who own

anything can vote in a bond election

if they render their property; and

they are deemed by the decisions of

Texas to have rendered their property

if they get their property on the rolls

in any manner in advance of the elec-

tion. 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 treat-

ment of all citizens. One who is willing

to vote for and impose a tax on the

property of another should be willing

to assume hisdistributive share of the

burden. This is the manner in which

the Texas Constitution, as approved by

the entire citizenry of the state, pro-

vides inducement for those who wish

to participate in the decision making

process in aSchool District to assume

their rightful portion of the burden

they help to create.”

* * *

+A eI

Biase Ba ak fancied Senn tg

-16-

“To disclose one’s share of the total

burden for which he,is responsible in

a bond election requires 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 to permit them to avoid their fair

share of the resulting obligation,

would confer preferential rights. This

would be a denial of equal protection

to another segment of citizens.”

This Court, in Kramer and Cipriano, left

open the question of whether a state might under

some set of circumstances qualify the franchise by

limiting access to the ballot to those “primarily

interested.” This Court in Kramer explained that:

“. . .whether classifications alleg-

edly limiting the franchise to those

resident citizens ‘primarily interest-

ed’ deny those excluded equal protec-

tion of the laws depends, inter alia,

on whether all those excluded are in

fact substantially less interested or

affected than those the statute in-

Cludes.” at 395 U.S. 632

It is significant to note that the test was

Stated in terms of “primarily interested” rather

than sole or exclusive interest.

B. TEXAS PROPERTY RENDERING RE-

QUIREMENTS DO NOT CREATE A CLASSIFICA-

TION.

2%

Appellant further contends that the Texas

election laws do not create a classification at all.

Since Texas law subjects all property to taxation,

the only additional qualification required for eligi-

bility to vote in a general obligation bond election

is that of rendering property for taxation. Electors,

such as appellees, who have either ignored or who

refuse to comply with their legal duty to render

their property simply disenfranchise themselves.

Also, as was the situation in the absentee ballot

case of McDonald v. Board of ElectionCommission-

ers of Chicago, 394 U.S. 802, 807 (1969), there is

no evidence that the applicable Texas election laws

absolutely prohibit anyone from exercising the fran-

chise. Kramer, supra at 627. More recently in

Rosario v. Rockefeller, 410 U.S. 752 (1973), this

Court, in reviewing cases cited for the proposition

that the New York political party enrollment dead-

line disenfranchised otherwise qualified voters un-

constitutionally, stated at 410 U.S. 757 and 758:

“In each of those cases, the State

totally denied the electoral franchise

to a particular class of residents, and

there was no way in which the mem-

bers of that class could have made

themselves eligible to vote. . .

* * *

Hence, if their (petitioners) plight

can be characterized as disenfran-

chisement at all, it was not caused by

Section 186, but by their own failure

to take timely steps to effect their

enrollment.”

Pita See aes CN AS i At et

is.

The District Court contended that extending

the rationale of Rosario to the Texas rendering laws

woul: be inappropriate because such an extension

could also support an impermissible poll tax. (J.S.

9a) Harper v. VirginiaState Board of Electors, 383

U.S. 663 (1966). Also the District Court concluded

that Rosario was inapplicable here because New

York’s enrollment requirement “. . .was a reason-

able state effort to preserve the integrity of the

electoral process, a goal the Court called ‘legiti-

mate and valid.’ TheTexas rendering requirement,

by contrast, is primarily an attempt to aid the

States’ taxation efforts, and is not designed to pro-

tect or improve the electoral process,” (J.S. 26a)

The District Court, although certainly re-

cognizing the tax collection aspects of the Texas

rendering system, failed to recognize the valid state

interest in protecting the integrity and quality of

the electoral process through the rendering re-

‘ quirement. Since only property renderers Will ever

be called upon to repay the bonded indebtedness

(App. 79), and the definition of property in Texas

is so universal in scope (App. 25), the state has a

sufficient interest in seeking to exclude those not

“primarily interested” in the election subject.

Indeed, it is essentially the responsibility of the

State to establish reasonable “. . .standards de-

signed to promote the intelligent use of the ballot.”

Lassiter, supra at 51. In light of this duty, it is

entirely rational for the Texas election laws toex-

clude non-renderers in tax bond elections since

they have no cognizable incentive to vote either

cautiously or intelligently. Indeed, non-renderers

have no reason to vote against any such tax proposal

-19-

at all. Such a non-renderer would stand to reap

benefit withqut corresponding burden. By excluding

those otherwise qualified voters who refuse to ren-

der their own property according tothe lawsof this

State while attempting to impose a tax on the pro-

perty of others, the Texas election laws create a

minimal qualification requirement which serves to

protect and enhance the electoral process. How-

ever, the Texas laws do not exclude anyone because

of the way they might vote. That principle is

true whether applied to the non-renderer, who

arguably would be more inclined to approve any tax

bond issue because he would not be asked to pay

the indebtedness incurred, or to the property

renderer, who would be inclined to make a more

critical analysis of the need for the tax bond issue

in view of his ultimately increased tax burden Non-

renderers are excluded because their participation

in a tax bond election does not correspond and, in

fact, is minimal in comparison to the interest of

property renderers who, being primarily affected,

necessarily. bear the entire burden of the resulting

tax indebtedness,

Furthermore, equating the Texas rendering

laws with an impermissible poll tax fails to recog-

nize the basic distinction between the two, to-wit:

a poll tax is a fee paid for the privilege of casting

a vote, whereas the Texas election laws require the

rendering of property precedent to voting on the

privilege of paying taxes, the very subject of the

election. Also, a poll tax applies to every election

held, no matter what the subject of the election

might be.

SE ee eee

OE AL ee ee Re ee

-90-

C, “REASONABLENESS” ISTHE PROPER

CONSTITUTIONAL STANDARD TO BE APPLIED.

In Reynolds v. Sims, 377 U.S. 533 (1964),

this Court summarized the historical application

of the Fourteenth Amendment stating that “. . .the

concept of equal protection has been tranditionally

viewed as requiring the uniform treatment of per-

sons standing in the same relation to the govern-

mental action questioned or challenged.” This

Court has recognized that the traditional application

of the Equal Protection Clause was restricted to a

view of the “reasonableness” of the state classifica-

tion made the subject of complaint. McGowan v.

Maryland, 366 U.S. 420, 426 (1961). Indeed, it was

not until Kramer that state voter qualifications came

under the full impact of the strict judicial scrutiny

of the compelling-state-interest test. Dunn v.

Blumstein, 405 U.S. 330, 363 (97a ackmun, J.,

concurring).

Mr. Chief Justice Burger dissenting in Dunn

pointedly described the impracticality of the com-

pelling-state-interest test stating that

“The holding of the Court in Pope

v. Williams, 193 U.S. 621, 24 S.Ct.

573, 48 L.Ed. 817 (1904), is as valid

today as it was at the turn of the

century. It is no more a denial of

equal protection for a State to re-

quire newcomers to be exposed to

state and local problems for a rea-

sonable period suchas one year before

voting, than it is to require children

-—

~~.

~>

|

to wait 18 years before voting. Cf.

Oregon v. Mitchell, 400 U.S. 112, 91

S.Ct. 260, 27 L.Ed.2d 272 (1970). In

both cases some informed and respon-

sible persons are denied the vote,

while others less informed and less

responsible are permitted to vote.

Some lines must be drawn. To

challenge such lines by the ‘com-

pelling state interest’ standard is to

condemn them all. So far as I am

aware, no state law has ever satisfied

this seemingly insurmountable stan-

dard, and I doubt one ever will, for it

demands nothing less than perfec-

tion.”

Mr. Chief Justice Burger’s dissent in Dunn

foreshadowed the rendition of four decisions by this

Court in 1973 which further illustrate the inadequacy

of the compelling-state-interest test as an equal

protection standard, as well as confining it to re-

stricted circumstances, if not actually forewarning

of its eventual demise.

3 In Salyer Land Co. v. Tulare Lake Basin

Water Storage District, 410 U.S. 719 (1973), Mr.

Justice Rehnquist expressing the view of six mem-

bers of this Court held that the provisions of the

California Water Code which permitted only land-

owners to vote in water storage district general

elections and by apportioning votes in the election

according to the assessed valuation of the land to

be constitutionally permissible. This Court went

to great lengths to explain that by reason of the

-22-

water storage district’s limited purpose and its

disproportionate effect on landowners as a group,

the California laws did not deny equal protection by

limiting the franchise to district landowners, there-

by denying the vote to non-landowner residents, even

though they may be farm lessees, or by weighting

votes according to the assessed valuation of the

land. Although obviously dealing with state qualifi-

cations on the franchise which “absolutely prohib-

ited” interested persons, otherwise qualified to

vote, from exercising the franchise, Kramer, supra

at 627; McDonald, supra at 807-808, this Court in

Salyer refused to apply the compelling-state-inter-

est test. Rather, this Court returned to the more

practical McGowan test stating that

“., ,the question for our deter-

mination is not whether or not we

would have lumped them together

had we been enacting the statute in

question, but instead whether ‘if any

state of facts reasonably may be con-

ceived to justify’ California’s decision

to deny the franchise to lessees while

granting it to landowners. McGowan

v. Maryland, 366 U.S. 420, 426, 6 L.

Ed.2d 393, 81 S.Ct. 1101 (1961).

Mr. Justice Douglas, speaking for the dis-

sent stated that

“Provisions authorizing a selective

franchise’ are disfavored, because

they ‘always pose the danger of deny-

ing some citizens any effective voice

-23-

in the governmental affairs which

substantially affect their lives.’

Kramer v. Union School District, 395

U.S. 621, 627, 23 L.Ed.2d 583, 89 S.

Ct. 1886. In order to overcome this

strong presumption, it had to be shown

up to now (1) that there is acompelling

state interest for the exclusion, and ~

(2) that the exclusions are necessary

to promote the State’s articulated

goal. Phoenix v. Kolodziejski, supra,

Cipriano v. City of Houma, 395 U.S.

701, 23 L.Ed.2d 647, 89 S.Ct. 1897;

Kramer v. Union School District,

supra. See also Police Jury of

Vermillion Parish v. Hebert, 404 U.S.

807, 30 L.Ed.2d 39, 92 S.Ct. 52;

Stewart v. Parish School Board of

St. Charles, 310 F.Supp. 1172, aff’d.,

400 U.S. 884, 27 L.Ed.2d 129, 91

S.Ct. 136." ,

The dissent went on to point out that the

characterization of the water storage district as a

“special-purpose unit of government assigned the

performance ‘of functions affectiving definable

groups of constitutents more than other constitu-

ents,” citing Avery v. Midland County, 390 U.S.

474, 485 (1968), was unrealistic in view.of Hadley

v, Junior College District, 397 U.S. 50(1970). This

Court in Hadley applied, the compelling state

interest test because the special purpose junior |

college district exercised generalized powers which

«| .while -not fully.as_broad as those of the Mid-

land County Commissioners, certainly show that

PENGRS eee

+e ee

-24-

the trustees perform important governmental func-

tions. . .and have sufficient impact throughout the

district to justify the conclusion that the principle

which we applied in Avery should also be applied

here.” (Emphasis added by the Court).

On the same day that Salyer was handed

down, this Court rendered a per curiam decision

in Associated Enterprises, Inc. v. Toltec Watershed

Improvement District, 410 U.S. 743 (1973). In

Associated Enterprises, this Court determined that

a Wyoming law providing that a watershed district ©

could be established only by referendum in which

only landowners could vote and their votes were

weighted according to acreage owned was constitu-

tionally valid. Again, this Court based its decision

on the premise that the watershed district was a

‘special-purpose unit of government with limited

purposes. Quite significantly however, this Court

went on to note that no denial of equal protection

was involved because the challenged statute “. . .

was enacted by a legislature in which all of the

State’s electors have the unquestioned right to be

fairly represented. . .” and because the popularly -

elected board of supervisors of the affected conser-

vation district must approve the creation of a

watershed district. Id., at 744 and 745.

The popular representation of all qualified

voters in Texas at the state level, like those in

Wyoming, is unquestioned through compliance with

Reynolds. Likewise, there is no question that

Appellees are adequately and fairly represented by

the popularly-elected City Council of Fort Worth

under the holding of Avery. Therefore, the only

S

ld

-25-

distinction between the non-landowner residents’

relationship to the elections in Salyer and Associ-

ated Enterprises compared with the relationship

of the non-rendering Appellees to the tax bond

elections is the difference between a “special -pur-

pose district ” and a special purpose bond election.

Certainly this is a distinction without a difference.

._In Kramer Mr. Justice Stewart, in his dis-

sent, maintained, in effect, that the franchise is not

necessarily fundamental in special purpose elec-

tions because through application of Reynolds, a

person’s interests are well protected through the

right to vote inall general, representative elections

on a federal as well as state and local level. Specif-

ically, Mr. Justice Stewart stated, at 395 U.S. 640,

that

mA IS RIT RES ENE RHP BEST RPE ERR EET ee

Soe

“(W)e are dealing here, not with a

general election, but with a limited,

special-purpose election. The appel-

lant is eligible to vote in all state,

. local, and federal elections in which

general governmental policy is deter-

mined. . .He clearly is not locked

into any self-perpetuating status of

exclusion from the electoral pro-

cess,”

Mr. Justice Stewart’s reasoning was interpreted, in —

59 Cornell L.Rev. 687, 705 (1974), to indicate that ~

“(W)hat underlies these opinions is

a philosophy articulated by Justice

Stewart that when voters are protected

BE SOE

s

-_

by the one man - one vote principle

in general elections on the state and

federal levels, it is both unnecessary

and undesirable to rigidly apply the

Reynolds rule to situations where

different groups have substantially

different interests in the matters of

a particular unit of local government. -

In a third decision rendered the same day

as Salyer and Associated Enterprises, this Court

determined in San Antonio Independent School Dis-

trict v. Rodriguez, 411 U.S. 1 (1973) thatthe Texas

dual approach to public school financing was consti-

tutional. Mr. Justice Powell speaking for the major-

ity upheld the Texas school financing system against

an equal protection challenge. The Texas school

financing system, to a significant degree, appor-

tioned school district revenues on the basis of the

value of taxable property in the district. The

varying wealth of each district resulted in dispro-

portionate school revenues being allocated to the

different districts. Although no compelling reason

for the Texas system was apparent, the constitu-

tionality of the system was upheld because the

majority concluded that it was rational. The com-

pelling-state-interest test was not applied because

the “fundamental” interest necessary to invoke

strict judicial scrutiny was found lacking.

Significantly, this Court in Rodriguez de-

cided to restrain the expansionof the “fundamental”

rights analysis in equal protection cases. In the

past, this Court had extended the “fundamental”

rights approach to voter qualification cases even

oF.

though such rights were not explicitly found in the

United States Constitution. Rodriguez, (Marshall,

J., dissenting), Furthermore, the Constitution of

the United States has never specifically guaranteed

the right to vote in state elections. Minor v.

Happersett, 88 U.S, (21 Wall.) 162 (1875); Harper,

383 U.s. at 665; Rodriguez, 411 U.S. at 35.

Furthe.more, in analyzing the Salyer de-

cision, it was stated in 59 Cornell L.Rev. 687,

702 (1974), that

“It has been observed that under-

lying the early reapportionment de-

cisions was a basic recognition of the

right to vote as fundamental, and that

this recognition was a generating fac-

tor in the development of the one man -

one vote principle. In Salyer, by ex-

pressly finding the Reynolds rule to

be inapplicable to this special purpose

district, the Court has implicitly ac-

» knowledged that within this context,

the right to vote is not fundamental.

Once divested of this status, albeit

implicitly, Justice Rehnquist’s appli-

cation of the rational relationship

test logically follows.”

a

3

§

é

%

:

“

:

iT MINS

This Court’s decisions inSalyer, Associated

Enterprises, Rodriguez and Rosario v. Rockefeller,

have been interpreted as follows:

“In the context of voter qualifica-

tions, neither history, reason nor the

~98.

Court’s opinions in Salyer and Associ-

ated Enterprises suggest any basis for

a distinction based upon the generality

* of governmental services offered.

Voter qualification problems do not

involve the same political sensitiv-

ities as apportionment problems, and

there is no history of refusal to decide

voter qualification cases on the

grounds of non-justiciability. Ac-

cordingly, a logical inference from

the limitation on the compelling state

interest test as an equal protection

standard in voter qualification cases

to elections for officials of local

units of government exercising gener-

al governmental powers is adissatis-

faction with the basic rule being lim-

ited, and a determination, at the very

least, not to permit its further expan-

sion. The recent decision in Rosario

v. Rockefeller holding the compelling

interest standard inapplicable to pro-

cedural limitations on voting qualifi-

cations further bears this out.” (Em-

phasis added. )

Lee, Mr. Herbert Spencer and the Bachelor Stock-

broker: Kramer v. Union Free School District

No. 15, 15 Ariz. L.Rev. 457-477 (1973). See also,

The Supreme Court, 1972 Term,. 87 Harv.L.Rev.

94-105 (1973).

The decisions of this Court in Salyer and

Associated Enterprises were also analyzed by the

~ 29.

Court of Appeals of New YorkinFranklinv. Krause,

32 N.Y.2d 234, 298 N.E.2d 68, 71 (1973). The

Court there determined that the plan of apportion-

ment and voting for the Nassau County board of

supervisors and the system of weighted voting

involved were not in.violation of the Equal Protec-

tion Clause. The Court, 298 N.E.2d at 71, stated

in a footnote that:

“In two very recent cases it was

held that special-purpose units of

government such as water and sewage

districts could operate outside strict

one man, one vote principles because

they affected ‘definable groups of con-

stituents more than other constitu-

ents’, and that certain groups could

thus have disproportionate voting

power (Salyer Land Co. v. Tulare Lake

Basin Water Stor. Dist., 410U.S.719,

93 S.Ct. 1224, 35 L.Ed.2d 659 (1973);

Associated Enterprises v. Toltec Wa-

tershed Improvement Dist., 410 U.S.

743,° 93 S.Ct. 1237, 35 L.Ed.2d 675

(1973). These decisions do not specif-

ically extend to units of general local

government apportionment such as we

find in the instant case. There may

be, however, further indication in

these cases that the Supreme Court

does not demand strict one man, one

vote principles at the local level.”

Significantly, that Court interpreted the Salyer and

Associated Enterprises decisions as indicating this

bent ol

-30-

Court’s intention to return the question of general

local government apportionment plans, from a

constitutional standpoint, to the “reasonableness”

standard,

In a lengthy analysis of the Salyer decision,

in 72 Michigan L.Rev. 868 (1974), it was stated at

pages 878 and 879 that

“Again, like the popular-election

test (Hadley), the Kramer test’s prime

virtues are simplicity of application

and assured protection for the disen-

franchised citizen. Its disadvantages

are twofold. First, it is a rigid test

that is difficult to satisfy. Evenifthe

precision requirement is met, a re-

striction of the franchise to a specially

interested group will apparently be ’

upheld only if it is necessary to pro-

mote a compelling state interest.

Moreover, under Avery, the critical

decision is made by focusing on the

unit’s powers and its impacts onCiti-

zens generally, while the Kramer

method, at the strict scrutiny stage,

analyzes and compares the interests

of specific individuals. The standard

of precision required by the latter

analysis is very high; the former

method, in contrast, can be satisfied

by looking at general conditions, rath-

er than at the situations of particular

individuals.

ik.

Second, the Kramer method is over-

inclusive, as was the Hadley popular-

election test. The application of

strict scrutiny to all selective enfran-

chisements without a preliminary in-

quiry similar to the powers-and-im-

pacts analysis of Avery neglects the

possibliity that, in some restriction

cases, it may not be appropriate to

give the disenfranchised citizen polit-

ical influence in the unit or decision

in question because he is not affected

by that unit or decision to the same

degree as are others. For the Court

in Kramer, however, the presumed

possibility that the disenfranchised

citizen needs representation was suf-

ficient to trigger the application of

strict scrutiny. The Court may have

felt that it was not necessary tomaké

an initial inquiry into impacts in re-

striction cases, as it was in malap-

portionment cases such as Avery,

because _the-total denial of the vote

seems a more grievous violation of

the right to effective representation

than does dilution of malapportion-

ment. However, a restriction on the

franchise in an election involving a

local government unit the activities of

which have varying degrees of impact

may be a less serious violation ofthe

interest in representative government

than severe malapportionment of dis-

tricts in a general governing unit. In

FTES

REO a ee RATER SRT at

Pad

Ve Bee

~39.

short, in restrictioncases, also, there

exists a need for a method that can

accommodate this possibility.

At pages 882-884, the analysis continues stating

that

“Like Avery, Salyer does not pro-

pose a blanket test. Rather, it at-

tempts to define those cases in which

a structure in accord with one per-

son - one vote and the unrestricted

franchise is not the most appropriate

solution to the representational pro-

blem. Again like the test applied in

Avery to a malapportionment case,

this method focuses on the nature of

the individual-institutional link by

inquiring whether all citizens are af-

fected in ways that are sufficiently

uniform that each citizen should have

equal representation. In extending

this approach to Salyer, which also

involved a restriction, the Court re-

laxed the prior rigid approach it had

taken in restriction cases.”

* * *

“The question asked by the Court

was whether the duties of the unit or

official in question are ‘far removed

from normal governmental activi-

ties.’ The Tulare Lake Basin Water

Storage District met this test because

it does. not provide ‘general public

in

services such as schools, housing,

transportation, utilities, roads or

anything else ordinarily financed bya

municipal body.’ To fulfill this ele-

ment, then, the primary requirement

_. seems to be that the unit in question

be functionally specialized or unusual,

but whether a unit provides an unusual

or specialized ‘service should not be

determinative in an evaluation of the

constitutionality of the related voting

scheme. The critical question is,

rather, whether the impact onthe citi-

zens is so uniform that each citizen

should participate equally in political

decision-making.” (Emphasis added. )

Judge Thornberry, in his Memorandum

Opinion in this case, argues that the interest of

the State of Texas in limiting the electorate to

those who will be primarily affected by its outcome,

ie., those upon whom the financial burden created

by the bonds will fall, is insufficient to withstand

judicial scrutiny (J.S. 12a), Although Judge

Thornberry admits that the principal and interest

on the bonds will be paid solely from taxes on real,

personal and mixed property rendered by the City’s

taxpayers, he concludes that the Texas laws exclude

non-renderers who arguably will contribute to the

repayment of the bonds indirectly through rents and

purchased goods (J.S. 13a - 14a),

Judge Thornberry’s analysis fails to con-

sider two important factors: first, the tax bond

election ‘will unquestionably have a direct and

PTL TS ATOR AR ENT ARNEL RR

-34-

“disproportionate effect” .on renderers, Salyer,

supra at 728; Associated Enterprises, supra at 744;

second, the Texas general obligation tax bond

election laws do not absolutely prohibit anyone from

rendering any item of property, and, therefoye,

qualify to vote. Montgomery Independent School

District; Kramer; and McDonald. Furthermore, all

those non-renderers who “indirectly” contribute to

the payment of property taxes as lessees or pur-

chasers of goods are in positions analogous to the

lessees in Salyer. The Court in Salyer noted that

the lessees had interests in the activities of the

water storage district quite similar to thatof land-

owners. However, this Court determined that those

lessees could bargain with their lessors for the

franchise by proxy. Also, it was reasoned that

“_, ,just as the lessee may by contract be required

to reimburse the lessor for the district assessments

so he may by contract acquire the right to vote for

district directors.” Salyer, at 733. Therefore, the

lessees were not absolutely disenfranchised nor

were they denied equal protection, although excluded

from the franchise by state law, even though their

lease contracts required the lessee to carry the

proportionate share of the districts financial bur-

den ostensibly assessed against and to be paid by

his lessor. Obviously, non- renderers are not denied

equal protection of the laws by virtue of the Texas

rendering qualification since they have either

ignored or refused to render some item of property,

as required by law, even though they may be in-

directly contributing to the payment of taxes which

will be used to retire the bond indebtedness made

the subject of the election. Pie

In interpreting the treatment of alleged

tists

+.

‘interests of lessees in the Salyer case, it was

noted in 27 Oklahoma L.Rev. 273, 278 (1974), that

“An argument similar to the one in

Phoenix was made in Salyer concern-

ing lessees of real property. It was

argued that lessees have interests

indistinguishable from landowners

and should be given the franchise since

the cost of district projects would be

passed along to the lessees in the form

of higher rent. The Court reasoned

that allowing lessees to vote would |

allow manipulation of the district by

large landowners who could gain a

majority on the board of directors

through the use of numerous short

term leases. This reasoning is ques-

tionable since there was evidence that

the district was presently being ma-

nipulated by the one large landowner.

The Court also reasoned that if a

lessee ‘feels that the right to vote in

the election of directors of the dis-

trict is of sufficient import to him,

he may bargain for that right at the

time he negotiates his lease.’ This

reasoning is also questionable when

one considers the bargaining position

of the lessee with a large landowner

at the time he negotiates his lease.

The Court appeared to be intent on

rejecting the lessee argument of

Phoenix.”’

aN Bar

SADR AD TS RBERD AR RS EG Nae PREY

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Dissenting in Kramer, Mr. Justice Stewart

noted generally, at 395 U.S. 637, that |

“Clearly a State may reasonably

assume that its residents have a

greater stake in the outcome of elec-

tions held within its boundaries than

do other persons. Likewise, it is

entirely rational for a state legisla-

ture to suppose that residents, being

generally better informed regarding

state affairs than are non-residents,

will be more likely than nonresidents

to vote responsibly. And the same

may be said of legislative assump-

tions regarding the electoral compe-

tence of adults and literate persons

on the one hand, and of minors and

illiterates on the other. It is clear,

of course, that lines thus drawn can-

not infallibly perform their intended

legislative function. Just as ‘(i)llit-

erate people may be intelligent vot-

ers,’ nonresidents or minors might

also in some instances be interested,

informed, and intelligent participants

in the electoral process. Persons

who comm jte across a State line to

work may well have a great stake in

the affairs of the State in which they

are employed; some college students

under 21 rnay be both better informed

and more passionately interested in

political affairs than many adults.

But such discrepancies are the inev-

me

itable concomitant of the line drawing

that is essential to taw making. So

long as the classificationis rationally

related to a permissible legislative

end, therefore - as are residence,

literacy, and age requirements im-

posed with respect to voting - there

is no denial of equal protection.”

Later, in the context of Phoenix, Mr. Justice

Stewart added, at 399 U.S, 217 and 218, that

ee ee eee

_ “Under Arizona law acity’s general

bonded indebtedness effectively oper-

ates as a lien on all taxable real

estate located within the city’s bor-

ders. During the entire life of the

bonds the, privately owned real pro-

perty in the city is burdened by the

city’s pledge - and statutory obliga-

tion - to use its real estate taxing

powér for the purpose of repaying

both interest and principal under the

bond obligation. Whether under these

circumstances Arizona could consti-

tutionally confer upon its municipal

governing bodies exclusive and abso-

‘lute power to incur general bonded

‘indebtedness without limit at the ex-

pense of real property owners is a

question that is not before us.” For

the State has chosen a different policy,

reflected in both its constitutional

and statutory law. It has told the

governing bodies of its cities that

SOR PR PRR ETS

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-38.

while they are free to plan and pro-

pose capital improvements, general

obligation bonds cannot be validly

issued to finance them without the

-approval of a majority of those upon

whom the weight of repaying those

bonds will legally fall. .

This is not the invidious discrimi-

nation that the Equal Protection

Clause condemns, but an entirely

rational public policy.”

Commenting upon the “primarily interest-

ed” analysis’ developed in Phoenix, the Supreme

Court of Utah inCypert v. Washington County School

District, 473 P.2d 887,892 (1970), stated. that

“In order to justify their declara-

tions above quoted it would be neces-

sary for the majority of that court

to make a satisfactory answer to this

question: If it be true that the non-

taxpayers contribute ‘as directly as

property owners’ to the servicing of

the bonds,. why is it so necessary

that the bonds be general obligation

bonds? The answer is obvious and

inescapable: It is in order to make

them salable; and they are salable

because there stands behind them the

power and the agreement for the levy-

ing of taxes upon the property within

the district to guarantee their pay-

ment. Anyone who will take anhonest

<7.

and realistic look at such a financing

plan, and consider a comparison be-

tween a bond issue without such a

‘general obligation’ feature and one

with it, will see very clearly that it

is this power to tax the property in

the district as the ultimate guarantee

behind the bonds that makes such a

project feasible. Whereas, if the

bond issue were only to be paid

through the indirect sources, as from

those who pay no property tax, the

bond purchasers would only be general

creditors, without security. The re-

sult would be that the bonds would

not be salable, nor the financing pro-

ject feasible. It requires no further

elaboration to show beyond peradven-

ture of doubt that the taxpayers and

their property have avery substantial

commitment beyond those who are

not such property taxpayers, and to

demonstrate the complete unsound-

ness of the statement that the latter,

‘contribute as directly as property

owners,’ ”’

In further interpreting the Salyer case, itis

noted, at 27 Oklahoma L.Rev. 273, 279 (1974), that

“As was pointed out in Salyer:

‘Nor, since assessments against land-

owners were to be the sole means by

which the expenses of the district

were to be paid, could it be saidto be

- 4(-

unfair or inequitable to repose the

franchise in landowners but-not resi-

dents.’ The Salyer case indicates

- that if one class solely is to pay for

something, it is more substantially

interested and affected than are those

who are not to pay even though those

who do aot pay may be substantially

interested and affected in some other

way. In other words, the interested

and affected test as applied appears

to mean economically interested and

affected.” °

In 1971, this Court rendered a decision in

Gordon v. Lance, 403 U.S. 1 (1971), which upheld

West Virginia laws requiring a 60% supermajority

vote in referendum elections held to approve bonded

indebtedness or tax incréases above limits estab-

lished by the Constitution of West Virginia. Mr.

« Chief Justice Burger, speaking for the majority,

stated at 403 U.S.7 and 8, that |

“Whether these matters of finance

and taxation are to be considered as

less ‘important’ than matters of trea-

ties, foreign policy or impeachment

of public officers is more properly

left to the determination by the Stafes

and the people than to the courts

operating under the broad mandate of

the Fourteenth Amendment. It must

be remembered that in voting to issue

bonds voters are committing, inpart,

the credit of infants andof generations

-4]-

yet unborn, and some restriction on

such commitment is not anunreason-

able demand. That the bond issue

may have the desirable objective of

providing better education for future

generations goes to the wisdom of

an indebtedness limitation: it does

not alter the basic fact that the bal-

ancing of interests is one for the

State to resolve.

Wisely or not, ,the people of the

State of West Virginia have long since

resolved to remove from a simple ma-

jority vote the choice oncertain deci-

sions as to what indebtedness may be

incurred and what taxes their children

will bear.”

This Court’s decision in Gordon was inter- a

preted in a footnote, in 47 Washington L.Kev. 391]

(1972), to indicate that

“It can be said that the only reason

for supermajority requirements in

local bond elections is the protection

of property taxpayers from high tax

indebtedness placed on them by non-

property owners. The protection of

property owners would seem to be

unconstitutional under Cipriano v.

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

although a distinction might be made.

because Cipriano involved the outright

denial of the franchise to non-property

ke

=42.

owners. ‘The Court’s avoidance of

attributing an impermissible purpose

». to,.a legislature in order to uphold

a statute -is in accord with general

Court precedent.”

Although this Court was not properly pre-

sented with the issue of the property ownership

qualifications required in Idaho bond elections be-

Cause that issue was not timely raised in the State

courts, Edelman v. People of State of California,

344 U.S. 357 (1953); Louisville, etc. R.Co. v.

Woodford, Kentucky, 234 U.S. 46 (1914), this Court

dismissed the appeal in Bogert v. Kinzer, 93

= —

403 U.S. 914 (1971) for want of a substantial fed-

eral question. That appeal, as presented to this

Court, involved a challange to Idaho laws requiring

a two-thirds supermajority vote in general obliga-

tion bond elections. Limited to those facts, this

Court dismissed the appeal relying on Gordon.

However, the challenged Idaho laws, as admitted |

in the state court decision, permit only rea! pro-

perty taxpayers to cast votes in the general obliga-

tion bond election, therefore, requiring a two-thirds

majority of real property taxpayers. The dissent

in the state court recognized the true reason for

the Idaho laws stating that:

“The articulated state interest in

requiring a 2/3 majority vote in bond

elections. is a prudent fiscal policy

which requires that there be a sub-

* stantial approval of a given projeci

before a municipality embarks on a

-43-

voyage of increased indebtedness.

This state policy of fiscal restraint

would: have more weight if it was not

already safeguarded by the constitu-

tional requirement that voters at bond

elections must be property owners.

In the recent caseof Muench, et al. v.

Paine, et al., 93 Idaho 473, 463 P.2d

939 (January 16, 1970) this Court

upheld this constitutional provision.

This Court held that property owners

aS taxpayers, by. and large have a

greater and more permanent econom- _

ic staké in the community than non-

property owners.” 465 P.2d at 650.

Since protection of property taxpayers is the

essential state interestin requiring supermajori-

ties in bond elections, it is significant to note that

had Texas laws required a 60% supermajority

rather than rendition of property for taxation as

a means of protecting the primary interests of

those who would bear the burden of retiring the

bond indebtedness, then the; April 11, 1972 Fort

Worth general obligation bond election would still

have failed, receiving the approval of only 52.2%of

all votes cast.

It is submitted that, given the important

State interest in protecting property taxpayers as

implicitly approved in Gordon, the Texas property

rendering laws not only attain that important state

goal, but doit with a greater degree of precision

than any supermajority requirement could possibly

reach,

| = ERT

-44-

Also, Judge Thornberry argues that the pre-

sent rendering voters will not be exactly the same

renderers who will eventually repay the bonds due

to “upward mobility” of the people and other factoxs.

(J.S. 13a - 14a), Judge Thornberry’s concern with

the fact that the present voting renderers will not

be the same ones who will eventually repay the bonds

Simply fails to recognize the fact that the exact

Same voters who cast votes in any election of any

duration, will not be the exact same people who will

have to abide by that decisionas time passes, Judge

Thornberry’s argument is thoroughly answered in

Gordon wherein the importance of a bond election

is deemed reason enough to permit a state to re-

quire even Supermajority approval because“. . . in

voting to issue bonds voters are committing, in

part, the credit of infants and of generations yet

unborn, and some restriction on such commitment

is not an unreasonable demand.”

CONCLUSION

For the reasons stated it is respectfully

Submitted that the judgment of the court below

should be reversed.

Respectfully submitted,

JOHN L. HILL

Attorney General of Texas

LARRY F, YORK

First Assistant Attorney General

Mahe. NS thre

MIKE WILLATT

Assistant Attorney General

. -45-

~

OD. fb Ft hak

G. CHARLES KOBDISH

Assistant Attorney General

Box 12548, Capitol Station

Austin, Texas 7871]

e TPA RI rey

-46-

CERTIFICATE OF SERVICE

1, Mike Willatt, Assistant Attorney General

of Texas, as of counsel! for Appellant herein and

member of the Bar of the Supreme Court, hereby

certify that true and correct copies of the above

foregoing Brief for the Appellant have been served

upon the several parties thereto, in compliance

with Rule 33(1) of the United States SA€preme Court

Rules, by placing three copies in the mail, first

class postage prepaid, to S. G. Johndroe, Jr., City

Attorney and Attorney for Appellees R.M. Stovall,

S. G. Johndroe, Jr., Roy A. Bateman, Leonard E.

Briscoe, Taylor Gandy, Jess M. Johnston, Jr., W.

S. Kemble, Jr., John O'Neill, Ted C. Peters, Pat

Reece, Mrs. Margaret Rimmer, and the City of Fort

Worth, at 1000 Throckmorton Street, Fort Worth,

Texas 76102; and that three copies were placed in

the mail, first class postage prepaid, to Don

Gladden and Marvin Collins, attorneys for Ap-

pellees, at 702 Burk Burnett Building, Fort Worth,

Texas 76102. All parties required to be served

have been served.

Witness my hand this 295 4A day of

Novi b 2 , 1974,

MIKE Mike

Box 12548, Capitol Station

Austin, Texas 78711