Amicus Curiae Brief — Hill v. Stone

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In the Supreme Court of the United States

OCTOBER TERM, 1974

No. 73-1723

JOHN L. HILL, Attorney General of Texas, °

Appellant,

vs.

MICHAEL L. STONE, et al.,

Appellees.

BRIEF AMICUS CURIAE ON BEHALF OF EL PASO

COUNTY JUNIOR COLLEGE DISTRICT,

URGING AFFIRMANCE

Epwakp W. DuNBAR

Mark Berry

1808 State Nations) Plaza

E] Paso, Texas 79901

Attorneys for Amicus Cure

December, 1974

F BE. L. Mewpewmat, Inc., 926 Cherry Street, Kansas ity, Mo. 64106, 421-8080

Sam

TABLE OF CONTENTS

I. The Texas constitutional and statutory pro-

visions restricting the franchise in general ob-

ligation bond elections to citizens who have

rendered property for taxation must be strictly

scrutinized to determine if the provisions are

necessary to promote a compelling state interest

A. An infringement on a constitutionally pro-

tected right requires that the infringement be

reviewed to determine if it is necessary to

promote a compelling state interest _.............

B. A narrowed application of the test of strict

scrutiny would be inapplicable to the case

EN a 0:06 Ce ree

C. Strict scrutiny is the test to be applied to any

alleged dilution or debasement of voting

rights in a unit of local government having

a broad range of impacts on all citizens ....

D. Citizens of requisite age and residency may

not -be denied the right to vote in local elec-

tions in which they are substantially inter-

ested and affected 00 nn. eves

E. The test of strict scrutiny is applicable to

governmental units having governmental

powers less than those examined in Avery

v. Midland County .... ")

F. The indirect tax contributions made through

rents and costs by residents owning no real

20—

ee,

a &

property must be taken into account in weigh-

ing Equal Protection claims .....................-.-.------- 25

II. The holding in Salyer Land Co. v. Tulare Lake

Basin Water Storage District is inapplicable to

Ui CGE AE TTI ccc ce y ee 27

III. The Texas constitutional and statutory provi-

sions restricting the franchise in general obliga-

tion bond elections to persons who have rendered

property for taxation is violative of the Equal

Protection Clause of the Fourteenth Amendment 33

A. The restrictive franchise excludes citizens

who have a stake in, and will be affected by,

théSutcome of general obligation bond elec-

RAN cic ce seen tsetse pene ener nsec eeseentecnemcrerresencrnes 33

B. The restrictive franchise is not necessary to

promote any compelling state interest .......... 37

C. The restrictive franchise places an unequal

burden on citizens who own property un-

sought for taxation by the state ...................... 38

CROTON arsenic cesta snctpeaesexie seer encendaniencepmsnncetecncseed B acecsei 43

gets | nara nec ne eee care 44

APPeNdix —........--.--c-seseseesseceeeeseeeseeecetecnentececeeceeeseeneteneanesenenenes Al

Table of Authorities

CASES

Avery v. Midland County, 390 U.S. 474 (1968) ................

agate cece ey ey Savecas tes sreteneneustia pe aesaeaa ae enceesneene es 8, 17, 18, 19, 20, 24

Bose v. Ainsworth, 139 S.W. 2d 307 (Tex. Civ. App.—

San Antonio 1940, error dismd.) .........................-.0-- 39

Brown v. Board of Education, 347 U.S. 483 (1954) ... 14

Bullock v. Carter, 405 U.S. 134 (1972) 0.0... 16

Carrington v. Rash, 380 U.S. 89 (1965) ..............0.... 9

\ III

Cipriano v. City of Houma, 395 U.S. 701 (1969) ....17, 22, 25

Dunn v. Blumstein, 405 U.S. 330 (1972) ............ epee 9,15

In re Griffiths, 413 U.S. 717 (1973) ...0.............eentetm. 10

Hadley v. Junior College Dist., 397 U.S. 50 (1970) ......: ee

Sey beheencaseun eu caevoasnasaeetoivaeedeaveeceyesesnerstcytsageenpeetencaterss 8, 17, 23, 27, 29

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

Galveston 1955, no WIit) 2.0.0.0... cece cece eee cette 33

Harper v. Virginia Bd. of Elections, 383 U.S. 663

(1966) oocccccccccceccccesececsesesssessseseneeeesensee .....9, 10, 11, 15, 35, 43

Korematsu v. United States, 323 U.S. 214 (1944) ....../ 10

Kotch v. Board of River Pilot Commissioners, 330 US.

<5 yn © b> Y 9 Seen ee 11, 28

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

(1969)... 8, 12, 17, 20, 21, 22, 23, 25, 27, 29, 32, 33, 34

Lassiter v. Northampton Election Board, 360 U.S. 45

DY orc cencsnne ec cnsctnsncntelsscyntsn teses roteree peer etaeseeneviensdasetiapevans 43

Louisiana v. United States, 380 U.S. 145 (1965) sane eeues 43

Markowsky v. Newman, 134 Tex. 440, 136 S.W. 2d 808

snes ecg ba eee cct erg och ectnrpceecayanten eters ecre veqeoannctenecaees 34

Montgomery Independent School Dist. v. Martin, 464

S.W. 2d 638 (Tex. 1971) ....... See 33, 34, 35, 36, 37, 38, 40

McGowan v. Maryland, 366 U.S. 420 (1961) ......0..0.2...... 11, 28

McLaughlin v. Florida, 379 U.S. 184 (1964)

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

hee euseaphabbeseanel iaawaetees seen 17, 25, 26, 27, 33, 34

Reynolds v. Sims, 377 U.S. 533 (1964) .0.00..0. ee

spa seae cee cieiravie eereeseepessaedaiyesrenreueeen 9,17, 18, 19, 23; 27, 29, 31

Rosario v. Rockefeller, 410 U\S. 752 (1973)... 12, 15, 16

Royalty v. Nicholson, 411 S.W. 2d 565 (Tex. Civ. App.—

Houston 1967, writ ref. n.r.e.) 0 ne 40

San Antonio Independent School Dist. v. Rodriguez,

411 U.S. 1 (1973) 0... 10, 12, 13, 14, 15, 17

Salyer Land Co. v. Tulare Lake Basin Water Storage

Dist. 410 U.S, TIS C1915). cee tees ...17, 27, 29, 30, 32

Shapiro v. Thompson, 394 U.S. 618 (1969) ................-... 9

Shepard v. San Jacinto Junior College Dist., 363 S.W.

el TAD CUR TG acca eee 2

Stewart v. Parish School Board, 310 F. Supp. 1172 (E.D.

La. 1970), aff'd, 400 U.S. 884 (1970) (mem.) ....35, 36, 41

Stone v. Stovall, 377 F. Supp. 1016 (W.D. Tex. 1974),

prob. juris. noted sub nom. Hill v. Stone, 95 S.Ct. 37

CCYC DRE E.On ene Cee enna rN otrenenensener rceae 16, 18, 32

Sugarman v. Dougall, 413 U.S. 634 (1973) ................... 10

Williams v. Rhodes, 393 U.S. 23 (1968) ...........--.--- 16

Yamini v. Gentle, 488 S.W. 2d 839 (Tex. Civ. App.—

Dallas 1972, writ ref. n.r.e.) -.......2...2.0....0cceeeeeteeee teers 39

Yick Wo v. Hopkins, 118 U.S. 356 (1886) ...................... 9

STATUTES

Tex. Rev. Civ. Stat. ANN. art. 1043 (1963) -.......00...2..... 39

Tex. Rev. Civ. Stat. ANN. art. 7145 (1960) .................... 33, 39

Tex. Rev. Civ. Stat. ANN. art. 7151 (Supp. 1974) ........ 39, 40

Tex. REv. Civ. Stat. ANN. art. 7152 (Supp. 1974) .......... 39

Tex. REV. Civ. StaT. ANN. art. 7189 (1960) 222... 39, 40

Tex. Rev. Civ. Stat. ANN. art. 7193 (1960) ~...........0......... 40

Tex. Rev. Crv. SiATt. ANN. art. 7207 (1960) ....020002200222... 39

Tex. Rev. Civ. Stat. ANN. art. 7208 (1960) ..........0..20....... 39

Tex. Epuc. Cope ANN. §130.003 (Supp. 1974) ....... es 3

Tex. Epuc. Cope ANN. §130.032 (1972) -........2...22..e eee 2

Tex. Epuc. CopE ANN. $130.035 (1972) ....02...22..2-e eee 2

Tex. Epuc. Cope ANN. $130.036 (1972). ...................-- a -

Tex. Epuc. Cope ANN. $130.037 (1972) Joc 2

Tex. Epuc. Cope ANN. $130.038 (1972) 0... spate 2

TEx

. Epuc. Cope ANN. §130.122 (1972)... 3, 4

TEX. ELECTION CopE ANN. art. 5.03 (Supp. 1974) ....4, 33, A2

Tex. ELECTION CopE ANN. art. 5.04(a) (Supp. 1974) ....

so os eiersb nog ce dsu.puesesanpess usavccenuaeenuspusvascesuseeecayatsadisacvethesoseesonys 4, 33, A3

CONSTITUTIONAL PROVISIONS

U. S. Const. amend. XIV ............. seiaes desta foovcneseettepuvteose passim

TEX. CONST. art. VI, §8a o0.......0ceccceee cee eeeeeeeeeeeeeees 2, 4, 32, Al

TEX. CONST. art. VII, §3 .o......cceccec cece ccc eeeeeeceeeeeeeeeseeees 2,4, Al

OTHER

1 Apvisory COMMISSION ON INTERGOVERNMENTAL RELA-

TIONS, THE ROLE OF THE STATES IN STRENGTHENING THE

PROPERTY TAX 4 (1963) _202...2..22ceceeceeceeceeeeeeeeeeeeeeeeeeee . 40

Goodpaster, The Constitution and Fundamental Rights,

15 Ariz. L. Rev. 479 (1973) -.........ec2cceeceeeeceeeeeeteseeeeeeeeee: 17

Lee, Mr. Herbert Spencer and the Bachelor Stock-

broker: Kramer v. Union Free School District No.

15, 15 Ariz. L. Rev. 457 (1973) ....2.....0.2...eeeeeeeeeeee 12

Note, Property Ownership Versus the Right to Vote: A

Question of Equal Protection, 25 Sw. L. J. 633 (1971) 37

Note, Salyer Land Co. v. Tulare Lake Basin Water

Storage District: Opening the Floodgates in Local

Special Government Elections, 72 Mich. L. Rev. 868

TY usecase rare tacec sn cece cect eee essa nese esme csp anenetgeeeecses 30

Note, 49 Texas L. Rev. 1113 (1971) 00. 38

Note, 55 Va. L. Rev. 559 (1969) 2.22... eee 36

The Supreme Court, 1968 Term, 83 Harv. L. Rev. 7, 81

6: 2 an 34

The Supreme Court, 1972 Term, 87 Harv. L. Rev. 94, 97

1 5 9 eee cee eee ne en ne Sn ee 28

Tex. Att’y GEN. Op. No. M-1139 (1972) 2000000220... Z

Yudof, The Property Tax in Texas Under State and

Federal Law, 51 Texas L. Rev. 855 (1973) ........ 39, 40, 41

Bie LIPO Se Re ae |

In the Supreme Court of the United States

OCTOBER TERM, 1974 ~

No. 73-1723

JOHN L. HILL, Attorney General of Texas,

Appellant,

vs.

MICHAEL L. STONE, et al.,

Appellees.

BRIEF AMICUS CURIAE ON BEHALF OF EL PASO

COUNTY JUNIOR COLLEGE DISTRICT,

URGING AFFIRMANCE

The respective counsel for the Attorney General of

Texas, the Mayor and City Council of the City of Fort

Worth, and Michael L. Stone have filed with the Clerk

written consents to the filing of this Brief Amicus Curiae,

pursuant to Rule 42(2) of the Supreme Court Rules.

‘Written consent has been obtained from all parties to the

case.

QUESTION PRESENTED

Are the Texas constitutional and statutory provisions

restricting the franchise in general obligation bond elec-

tions to persons who have rendered property for taxation

violative of the Equal Protection Clause of the Fourteenth

Amendment to the Constitution of the United States?

INTEREST OF AMICUS CURIAE

The El] Paso County Junior College District (herein-

after referred to as the “College District’) is a political

subdivision of the State of Texas organized and maintained

under the provisions of the Texas Education Code.’ Its

purpose is to provide “(1) technical programs up to two

years in length leading to associate degrees or certificates;

(2) vocational programs leading directly to employment

in semi-skilled or skilled occupations; (3) freshmen and

sophomore courses in arts and sciences; (4) continuing adult

education programs for occupational or cultural upgrading;

1. Tex. Epuc. Cope ANN. §130.001 (1972) et seq. The forma-

tion of a county junior college is initiated by ten percent of the

qualified taxpaying electors of the proposed district petitioning

the county school board or, if there is no county school board, the

county commissioners’ court. Tex. Epuc. CopDE ANN. §130.033(c)

(1972). The board or court examines the petition, and if it is

legally sufficient, it is forwarded to the Coordinating Board, Texas

College and University System. TEx. Epuc. CopE ANN. §130.035

(1972). The coordinating board, with the advice of the commis-

sioners of higher education, determines if the requisite statutory

conditions have been met, and if “it is feasible and desirable to

establish a junior college district.” TEx. Epuc. CoDE ANN. §130.036

(1972). The coordinating board is obligated to consider “the

welfare of the state as a whole, as well as the welfare of the com-

munity involved.” Id. The interests of the taxpayers or renderers,

therefore, are not the only interests considered, even though the

amount of taxable property valuation of a proposed district must

be at a certain level in order to create a junior college district.

Tex. Epuc. Cope ANN. §130.032 (1972).

The decision of the coordinating board is issued to the county

school board or the county commissioners’ court, and, if favor-

able, the appropriate county body orders an election. TEx. EDuc.

Cope ANN. §130.037 (1972). A majority of all voters ‘shall de-

termine the question of the creation of the junior college dis-

trict . . . and the election of the original trustees.” Tex. Epbuc.

Cope ANN. §130.038 (1972). If the election also determines propo-

sitions for the issuance of bonds or the levying of taxes, only

those electors who satisfy the requirements of Article VII, §3 and

Article VI, §3a of the Texas Constitution may vote on the propo-

sitions. Tex. ATT’y GEN. Op. No. M-1139 (1972). See also Shepard

v. San Jacinto Junior College Dist., 363 S.W. 2d 742 (Tex. 1963).

All electors may vote on the creation of the district, but if the

district is to issue bonds or levy taxes the electorate is restricted.

(5) compensatory education programs designed to fulfill

the commitment of an admissions policy allowing the en-

rollment of disadvantaged students; (6) a continuing pro-

gram of counseling and guidance designed to assist students

in achieving their individual educational goals; and (7)

such other purposes as may be prescribed by the Coordinat-

ing Board, Texas College and University System, c. local

governing boards, in the best interest of post-secondary

education in Texas.”

The College District receives money appropriated from

the state treasury* and from the collection of tuition and

fees.‘ All funds so received must be used solely “for the

purpose of paying salaries of the instructional and admin-

istrative forces [of the College District] and the purchase

“of supplies and materials for instructional purposes.’® Ifa

junior college district is to have classroom buildings and

other structures it must issue general obligation bonds sup-

ported by a tax levied for their payment. On September

21, 1974, in order to construct campus buildings, the College

District conducted an election to determine (1) if a Junior

College Maintenance Tax should be implemented, and

(2) if general obligation bonds should be authorized to-

gether with a tax to support their payment.

The conduct and outcome of the E] Paso election was

similar to the April 11, 1972, Fort Worth election. The

propositions in both elections were submitted to the elec-

torate by a system of dual balloting. Qualified electors

who had rendered property for taxation voted separately

TEx. Epuc. CoDE ANN. §130.003(e) (Supp. 1974).

TEx. Epuc. CODE ANN. §130.003(a) (Supp. 1974).

TEx. Epuc. CoDE ANN. §130.003(b) (4) (Supp. 1974).

TEx. Epuc. CoDE ANN. §130.003(c) (Supp. 1974).

TEx. Epuc. Cope ANN. §130.122 (1972).

Ao ew Le

from qualified electors who had not rendered property for

taxation. As in the case of the Fort Worth library bonds,

a majority of all El Paso voters approved the bond issue

and tax, but a majority of those who had rendered property

for taxation disapproved the issuance and tax.’

Under the authority of Articles VI, $3a and VII, §3 of

the Texas Constitution,* and Articles 5.03 and 5.04 of the

Texas Election Code,’ the ballots ¢ast by the non-renderers

are invalid. The non-renderers’ votes were canvassed only

to assure “that bonds issued were compatible with both the

Texas Constitution and the United States Constitution.’’”

It has been the policy of the Texas Attorney General, who

is required to approve bonds issued by junior college dis-

tricts,!! not to grant such approval unless a majority of

7. The election results were as follows:

Owners of Property Non

Rendered for Taxation Renderers Total

Proposition One

Junior College

District Main-

tenance Tax

For 9,614 2,026 11,640

Against 9,734 370 10,104

Proposition Two

The Issuance of

Junior College

District Bonds

and Levying the

Tax in Payment

Thereof

For 9,547 2,016 11,563

Against 9,791 378 10,169

8. TEx. CONST. arts. VI, §3a; VII, §3. See page Al, infra.

9. TEx. ELECTION CODE ANN. arts. 5.03; 5.04(a) (Supp. 1970).

See pages A2 and A3, infra.

10. Brief of Appellant at 3.

11. Tex. Epuc. Cope ANN. §130.122 (d) (1972).

both renderers and non-renderers have voted in favor of

the bond issue. Although the majority of citizens voting

in the election favored the issuance of the bonds, no issue

has taken place because of Texas’ constitutional and statu-

tory prohibitions.

Certain non-rendering electors residing in the College

District have challenged the Texas rendering scheme in

the United States District Court for the Western District

of Texas in a suit styled David E. Hilles, et al. v. John L.

Hill, Attorney General of Texas, et al., No. EP-74-CA-215.

The College District is a party defendant to said suit, and

has answered that the laws of Texas prohibit the issuance

and sale of the bonds.

The laws which have discriminated against a large

segment of the E] Paso population, also have stymied the

ability of the College District to provide adequate facilities

for its students. The College District has an interest in the

outcome of case at hand, and would urge that the Texas

constitutional and statutory provisions restricting the fran-

chise in bond elections be held as violative of the Equal

Protection Clause of the Fourteenth Amendment. The

situation presented by the City of Fort Worth and that of

the College District are dissimilar in only one way: the

breadth of the powers of the city exceed those of the

college. The College District, therefore, maintains an addi-

tional interest in expressing the views of a governmental

unit possessing powers less than those of a city. The

amicus curiae would assert that its powers and functions

are sufficiently broad to be considered as normal govern-

mental activities having a substantial impact upon the

entire community. The College District is especially inter-

ested in any definition that the Court might frame setting

out the relation between voting rights and local govern-

mental powers.

EP cee a |

Wests

NSRP Rea a Seed: ttl

- SUMMARY OF ARGUMENT

The State of Texas, through constitutional and statu-

tory provisions prohibits a definable class of citizens from

voting in general obligation bond elections. Unless a resi-

dent renders his property, or a portion thereof, for taxation,

he cannot vote in such a bond election. By restricting the

franchise in this manner, the state has infringed on a

constitutionally protected right. The laws authorizing this

infringement must be strictly reviewed to determine if they

are necessary to promote a compelling state interest.

The well-established doctrine of “one person, one vote”

extends to political subdivisions of the state which exercise

general governmental powers and affect the interests of

its constituents. Intangible as well as concrete financial

interests are affected by the outcome of bond elections, and

both interests must be weighed in determining Equal Pro-

tection claims. An interest im educational quality or civic

improvement need not be exclusively tied to economic

considerations in order to be entitled to constitutional pro-

tection. Recognition also has been granted to indirect

economic interests. The citizen whose rental payments

and consumer costs will be affected by a bond election is

entitled to cast a ballot. %exas has unconstitutionally re-

strained members of the disenfranchised class from pro-

tecting these justiciable interests at the polls.

The right to vote, however, does not extend to ex-

tremes of the governmental spectrum. This narrow excep-

tion to the “one person, one vote” rule applies to specialized

units of government which have a disproportionate effect

- on a particular group. Both a “special function” and a

“disproportionate effect” are required to invoke the ex-

ception. A special-function governmental unit having a

substantially equal effect on all constituent groups’ would

be required to have an unrestricted franchise.

The City of Fort Worth is not a specialized unit of

government and the issuance of bonds is not a special

function of government. The citizenry as a whole has a

stake in, and will be affected by, a general obligation bond

election, but the state recognizes only direct economic

interests. A large class of citizens has been excluded from

bond elections even though they have a recognized interest

in the outcome.

The restrictive franchise is not necessary to promote

any compelling state interest. The statutory scheme is

vaguely directed toward the collection of taxes. By con-

ditioning the franchise on rendition, the state reasons, prop-

erty holders will be encouraged to render their property

for taxation. Not only is this goal ill-served by the ren-

dition requirement, but it is totally unrelated to the estab-

lishment of legitimate voter qualifications. Any amount

of property may be rendered to satisfy the voting require-

ment; rendition of near valueless property will entitle the

owner to vote. It cannot be urged seriously that the

renderer has become a better voter or that his stake in

the election outcome has increased. . Nonetheless, he is

allowed to vote, while other citizens who will be sub-

stantially affected by the election cannot.

The rendition requirement is discriminately admin-

istered. The local tax assessor seeks out certain types of

property, thereby enfranchising the owners either when

the property is voluntarily rendered or when the assessor

places it on the tax olls. Owners of property unsought

by the assessor must render items which the assessor re-

quires no other citizen to render. An unequal burden is

placed on this class of citizens.

Sa RRS OEY |

ARGUMENT

I. The Texas Constitutional and Statutory Provisions

Restricting the Franchise in General Obligation

Bond Elections to Citizens Who Have Rendered

Property for Taxation Must Be Strictly Scrutinized

to Determine If the Provisions Are Necessary to

Promote a Compelling State Interest.

A. An Infringement on a Constitutionally Protected

Right Requires That the Infringément Be Re-

viewed to Determine If It Is Necessary to Pro-

mote a Compelling State Interest.

The extent to which the Constitution requires the

franchise to be extended within local governmental units

has been measured by an emerging standard. At various

times, the Court has considered whether a governmental

unit has “power to make a large number of decisions hav-

ing a broad range of impacts on all citizens of the county,”

whether a limitation upon the local franchise denies some

citizens_an “effective voice in the governmental affairs

which substantially affect their lives,”? and whether such

a limitation is applied to the selection of “persons by popu-

Mar election to perform governmental functions.’*

In examining statutory classifications challenged as

being violative of the Equal Protection Clause, a court

must first choose the degree of judicial scrutiny to be ap-

plied. The inquiry into the nature of local governmental

power and its corresponding impact on the interests of

1. Avery v. Midland County, 390 U.S. 474, 483 (1968).

2. Kramer v. Union Free School Dist., 395 U.S. 621, 627

(1969).

3. Hadley v. Junior College Dist., 397 U.S. 50, 56 (1970).

the citizen is undertaken for this reason. “The character of

the classification in question, the individual interests af-

fected by the classification, and the governmental interests

in support of the classification’* must be analyzed in order

to select the level of scrutiny.

If an individual interest is “an established constitu-

tional right, [the Court] gives to that right no less protec-

tion than the Constitution itself demands.’® Such protec-

tion takes the form of strict scrutiny because, “where

fundamental rights and liberties are asserted under the

Equal Protection Clause, classifications which might invade

or restrain them must be closely and carefully confirmed.’’*®

The right to vote is “a fundamental right, because pre-

servative of all rights’’ requiring, as a consequence, that

any infringement thereupon be carefully and meticulously

scrutinized.* As Justice Douglas stated in Harper v.

Virginia State Board of Elections, “[O]nce the franchise is

granted to the electorate, linés may not be drawn which

are inconsistent with the Equal Protection Clause of the

Fourteenth Amendment.’”® The right to vote in state and

local elections is “close to the core of our constitutional

system’’® and is entitled to rigorous protection by the

courts. If it cannot be shown that statutory infringements

upon voting rights are necessary to promote a compelling

state interest, the statute should fall.

4. Dunn v. Blumstein, 405 U.S. 330, 335 (1972).

5. Shapiro v. Thompson, 394 U.S. 618, 642 (1969).

Harper v. Virginia Bd. of Elections, 383 U.S. 663, 670

7. Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886).

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

9. 383 U.S. at 665.

10. Carrington v. Rash, 380 U.S. 89, 96 (1965).

AEM OBESE ON TITAS REA 1

shied earearnre MODS AE OMENS

Exacting scrutiny} also is applied to classifications

found to be “suspect.”| When race or national origin are

made the basis of withholding a benefit, the statute author-

izing the distinction must be shown to be necessary to

promote a compelling/state interest.‘ The same close

judicial scrutiny is applied to discriminations based on

alienage. A state must meet this “heavy burden of justi-

fication’’’* if its exclusion of all aliens from either the state

bar association’* or competitive civil service employment"*

is to be permitted.

Classifications based on wealth also are ‘“‘traditionally

disfavored: ”

To 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 discrimination

is irrelevant.’®

However, wealth discrimination, in and of itself, is not an

“adequate basis for invoking strict scrutiny.”’® Strict re-

view of “wealth classifications has been applied only where

the discrimination affects an important individual inter-

est.”"" The two criteria which normally will cause the

invocation of strict scrutiny overlap in wealth discrimina-

tion cases. “Suspect classifications” and ‘fundamental

rights” both may be discerned in the same fact situation.

11. McLaughlin v. Florida, 379 U.S. 184 (1964) and Kore-

matsu v. United States, 323 U.S. 214 (1944).

12. McLaughlin, supra note 11 at 185.

13. In re Griffiths, 413 U.S. 717 (1973).

‘14. Sugarman v. Dougall, 413 U.S. 634 (1973).

15. Harper, supra note 6 at 668.

16. San Antonio Independent School Dist. v. Rodriguez, 411

U.S. 1, 29 (1973).

17. Id. at 102, note 61 (Marshall, J., dissenting).

In Harper, for example, it is stated that, “Wealth, like race,

creed or color, is not germane to one’s ability to participate

in the electoral process,’"* thus identifying the criterion of

a suspect classification, and that, “the right to vote is too

precious, too fundamental to be so burdened,” thus identi-

fying the criterion of a fundamental right.’®

State statutory and constitutional schemes are not uni-

formly subjected to strict scrutiny. The Federal Courts,

rather, generally presume that the laws of a state are con-

stitutionally sound: the law under examination must be

“wholly irrelevant to the achievement of the regulation’s

objectives,”*° in order to fail. “If any state of facts

reasonably may be conceived to justify the statutory

scheme,”*! that scheme is constitutionally permissible.

Under the “rational basis” test, “state legislatures are

presumed to have acted within their constitutional power

despite the fact that, in practice, their laws result in some

inequality.”*? Such a “wide scope of discretion” allows

states the necessary latitude to conduct “effective regula-

tion in the public interest.”**

The presumption favoring constitutionality, however,

does not attach to statutes which grant the franchise to

residents on a selective basis. Such classifications have

been carefully scrutinized to determine if each citizen has

the opportunity for equal participation in the electoral

process. The presumption of constitutionality gives way

18. 383 U.S. at 668.

19. 383 U.S. at 670.

20. Kotch v. Board of River Pilot Commissioners, 330 U-S.

552, 556 (1947).

21. McGowan v. Maryland, 366 U.S. 420, 426 (1961).

22. Id. at 425-426.

23. Kotch, supra note 20 at 556.

to strict scrutiny. It yields to the more stringent test be-

cause of the basis for the approval normally given to state

law:

[It is] based on an assumption that the institutions of

state government are structured so as to represent

fairly all people. However, when the challenge to the

statute is in effect a challenge of this basic assumption,

the assumption can no longer serve as the pass for

presuming constitutionality.**

B. A Narrowed Application of the Test of Strict

Scrutiny Would Be Inapplicable to the Case at

Hand.

It has been argued in some quarters”’ that recent re-

fusals by the Court to strictly scrutinize certain statutes,

may be the harbingers of a severely narrowed application,

or complete demise, of that test. San Antonio Independent

School District v. Rodriguez** and Rosario v. Rockefeller?" —

are cited as supporting this view. This thesis, even if cor-

rect, does little to shore up constitutional defects in the

Texas plan,

The Rodriguez Court disagreed with the lower court

holding that a school financing system was based on wealth

and hence was a “suspect classification” to be strictly

scrutinized. Mr. Justice Powell wrote that the district

court’s conclusion was arrived at “through a simplistic

analysis’’** which ignored the basic “threshold’’** questions

24. Kramer, supra note 2 at 628.

25. Lee, Mr. Herbert Spencer and the Bachelor Stockbroker:

Kramer v. Union Free School District No. 15, 15 Ariz. L. Rev. 457

(1973).

26. 411 U.S. 1 (1973).

27. 410 U.S. 752 (1973).

28. 411 US. at 19.

29. Id.

required of Equal Protection determinations. The unposed

questions should have asked whether the poor as a class

were capable of being defined in customary Equal Protec-

tion terms, and whether the relative nature of their depriva-

tion was of “significant consequence.”*?

The Court found that while the class was undelineated,

the claimed discrimination in Rodriguez might have been

described as running against (1) persons with incomes

below a certain level, (2) persons relatively poorer than

other persons, or (3) persons residing in relatively poorer

school districts.** The issue was framed as being whether

the state had “been shown to discriminate on any of these

possible bases and, if so, whether the resulting classification

may be regarded as suspect.’’?

Persons with incomes below a certain level were not

shown to be discriminated against by the state law. In

making this determination, the other cases of wealth dis-

crimination previously decided by the Court were exam-

ined. The shared characteristics of those cases were the

inability to pay for the desired benefit and the “absolute

deprivation of a meaningful opportunity to enjoy that bene-

fit.”"** This first category of poor was shown not to be dis-

criminated against by the financing system because no

evidence established that its members were concentrated

in the poorest districts. Moreover, the poor in industrial

areas might well be located in relatively wealthy districts.

The Rodriguez appellees also failed to show that the im-

pecunity of the class caused an “absolute deprivation of

the desired benefit.”** The Court held that no such depriva-

30. Id.

31. 411 US. at 19-20.

32. 411 U.S.‘at 20.

33. Id.

34. 411 U.S. at 23.

I TEN TARA SOK 3 4

tion had occurred: The state had met its self-imposed

minimal standards and children in all districts were guar-

anteed an adequate education.

The Court also discarded the second and third potential

definitions of a disadvantaged poor class. The Court could

discern no factual basis “upon which to found a claim of

comparative wealth discrimination’ against the second

category, the “relative poor’. The final category, composed

of persons in the poorer school districts, was neither re-

duced to ‘“‘a position of political powerlessness’’** nor sub-

jected to any of the other “traditional indicia of suspect-

ness.”** Thus, the’ourt disallowed the application of

strict scrutiny on the grounds of a suspect classification.

The class of persons delineated in the instant case is

totally dissimilar to the Rodriguez categories. Eligible Fort

Worth voters are divided into two classes by the Texas con-

stitutional and statutory rendering requirements. Those

who do not render cannot vote in bond elections and are

thereby disenfranchised in elections which affect the cit-

izenry as a whole.

The Rodriguez appellees additionally urged that educa-

tion is a fundamental right entitled to the protection of

strict scrutiny. If explicitly or implicitly guaranteed by

the Constitution, a right may be said to be fundamental,

and any infringement upon that right will be carefully

and meticulously scrutinized.** The Court reaffirmed that

“education is perhaps the most important function of state

and local governments,’”*® but was unpersuaded that it

35. 411 US. at 27.

36. 411 US. at 28.

gas 1d.

38. 411 US. at 33-34.

39. 411 U.S. at 29 quoting Brown v. Board of Education, 347

U.S. 483 (1954).

was a fundamental right. The appellees sought to place

education within the sphere of strict judicial scrutiny by

arguing that its essential relation to the First Amendment

Rights made it implicitly fundamental. This argument was

rejected.

| W Je have never presumed to possess either the ability

or the authority to guarantee to the citizenry the most

effective or the most informed electoral choice.*®

According to Rodriguez, education may assist fundamental

rights, but it cannot thereby become fundamental.

The Texas rendering requirement, unlike the school

financing scheme, does intrude on “the constitutionally

protected right to participate in elections on an equal foot-

ing with other citizens in the jurisdiction.’”*! Although the

right to vote in state elections is “nowhere expressly men-

tioned’’*? in the Constitution, “the right of all persons to

vote, once the state has decided to make it available to

some, becomes a basic one under the Constitution.’’**

In Rosario, the Court upheld a New York statute which

required persons wishing to vote in a political party’s pri-

mary to enroll in that party at least thirty days prior to the

last general election preceding the primary. ‘he would-

be voter who challenged the registration provision argued

that in order to be held constitutional, the provision would

have to be necessary to promote a compelling state interest.

The Court did not accept that contention because in the

cases cited in support of strict scrutiny “the state totally

denied the electoral franchise to a particular class of resi-

40. 411 U.S. at 36 (emphasis original).

41. 411 U.S. at 34, note 74 quoting Dunn v. Blumstein, supra

note 4 at 336.

42. Harper, supra note 6 at 665.

43. Rosario, supra note 27 at 764 (Powell, Douglas, Brennan,

Marshall, J.J., dissenting).

eet Tat aa oat pememenag

Ag een

dents, and there was no way in which the members of

that class could have made themselves eligible to vote.’’**

The New York law did not absolutely disenfranchise

the plaintiff class, it “merely imposed a time deadline on

their enrollment, which they had to meet in order to par-

ticipate in the next primary.”** The law was adopted in

service of the goal of preserving “the integrity of the elec-

toral process.’”*® The declared supporters of a particular

party were kept within their party’s primary. Party

“raiding” or “crossovers” were effectively curtailed.

Rosario cannot be read as allowing onerous conditions

to be placed on voter registration. It would be untenable

to argue that the poll tax could be revived because ‘“‘mem-

bers of the class could [make] themselves eligible to vote.’’”

It is equally clear that the unconstitutional practices struck

down in Williams v. Rhodes** and Bullock v. Carter*® could

not be reinstated just because potential candidates could

make themselves eligible to be placed on the ballot.

A Fort Worth voter might make himself eligible to vote

in a bond election, but the rendering requirement is totally

unrelated to “the integrity of the electoral process.”*” As

the District Court correctly pointed out, Rosario does not

stand for the allowance of a conditional right to vote based

on submission to taxation."

44. 410 US. at 757.

45. Id.

46. 410 U.S. at 761.

47. 410 U.S. at 757.

48. 393 U.S. 23 (1968).

49. 405 U.S. 134 (1972).

50. 410 U:S. at 761.

51. Stone v. Stovall, 377 F. Supp. 1016, 1020, note 8 (W.D.

Tex. 1974), prob. juris. noted sub nom. Hill v. Stone, 95 S.Ct. 37

(1974) (mem.).

In urging that Rodriguez and Rosario have confined

the test of strict scrutiny to “restricted circumstances,’

Appellant has overlooked the fact that the Texas rendering

scheme creates such a circumstance. Even if the Court has

checked the “expansibility of the list of fundamental

rights,’** the right to vote in local elections is constitution-

ally protected. A radical and, as yet, unforeseen demise of

strict scrutiny would have to occur before the Texas plan

could prevail. It is submitted that Appellant’s argument,

when fully developed, suggests that the Court disregard

or misapply a series of decisions which safeguard equal

political participation.

C. Strict Scrutiny Is the Test to Be Applied to Any

Alleged Dilution or Debasement of Voting Rights

in a Unit of Local Government Having a Broad

Range of Impacts on All Citizens.

The District Court holding is based in large part upon

Reynolds v. Sims.** The extensions of the Reynolds stan-

dard, as set out in Avery v. Midland County,** Kramer v.

Union Free School District,*° Cipriano v. Houma," Hadley

v. Junior College District” and Phoenix v. Kolodziejski,™

together with its exception, as applied in Salyer Land Co. v.

Tulare Lake Basin Water Storage District,’ comprise much

of the body of law applicable to the case at hand.

52. Brief of Appellant at 21.

53. Goodpaster, The Constitution and Fundamental Rights,

15 Ariz. L. Rev. 479, 500 (1973).

54. 377 U.S. 533 (1964).

55. 390 U.S. 474 (1968).

56. 395 U.S. 621 (1969).

57. 395 U.S. 701 (1969).

58. 397 U.S.-50 (1970).

59. 399 U.S. 204 (1970).

60. 410 U.S. 719 (1973).

Re a Gat |

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PLEYEL SISY

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The lower court agreed with Appellees that “the state,

through its rendering requirement, has divided its other-

wise eligible voters into two classifications, one of which

cannot vote in bond elections.” The state was required

to ‘justify the exclusions under the harsh ‘compelling state

interest’ test’®? because it had denied some residents the

right to vote. This test previously has been applied to

various classifications which had either diluted or denied

voting rights.

In Reynolds, the Court held that each citizen is guar-

anteed, under the Equal Protection Clause, the opportunity

for a full and effective voice in his state’s legislature. A

dilution or debasement of this right through the mal-

apportionment of voting districts is violative of the Equal

Protection Clause. The facts before the Reynolds Court

showed that glaring discrepancies existed among the popu-

lations of the various legislative districts, with the result

that residents of different districts did not have votes of

equal weight. Reviewing the state law authorizing the

malapportionment with strict scrutiny, the Court held

that legislative apportionment must be based on popula-

tion:

The Equal Protection Clause demands no less than

substantially equal state legislative representation

for all citizens, of all places, as well as all races.”

- The doctrine of “one person, one vote” was extended

to local government in Avery v. Midland County.** The

Court recognized that regardless of how the state exercises

its power, whether directly or through a subdivision, the

61. Stone, supra note 51 at 1019-20.

62. Id. at 1020.

63. Reynolds, supra note 54 at 568.

64. Supra note 55.

limits of that power are proscribed by the Equal Protec-

tion Clause. Like Reynolds, Avery is concerned with

malapportionment. Population imbalance in local voting

units, in this case the county commissioners’ districts, had

diluted the strength of the county’s only urban area, while

artificially bolstering that of the less populous areas. The

urban center, having a population far greater than all other

. combined areas of the county, was represented by one com-

missioner, while the remainder of the county was repre-

sented by three commissioners.

The Court held that every qualified resident had the

right to a ballot of equal weight. The facts of Avery sup-

ported such a ruling because certain local governmental

entities, like their statewide counterparts, engage in diverse

governmental functions affecting the citizenry as a whole.

The county commissioners’ court qualified as such because

it possessed the “power to make a large number of decisions

having a broad range of impacts on all the citizens of the

county.”* Substantial variations from equal population

within district boundaries of units with “general responsi-

bility and power for local affairs’* cannot be sanctioned.

In applying the rule in Reynolds to Avery, the Court

reserved for future consideration the issue of whether the

rule would be applicable to local governments having an

unequal effect on different groups of citizens:

Were the Commissioners Court a special-purpose unit

of government assigned the performance of functions

affecting definable groups of constituents more than

other constituents, we would have to confront the

question whether such a body may be apportioned in

ways which give greater influence to the citizens most

65. 390 U.S. at 483.

66. Id.

99 LO REELS PENT ER

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Bearers rc eeise ee

affected by the organization’s functions. That ques-

tion, however, is not presented by this case.”

Avery was limited to “units of local government having

general governmental powers over the entire geographic

area served by the body.’

D. Citizens of Requisite Age and Residency May

Not Be Denied the Right to Vote in Local Elec-

tions in Which They Are Substantially Interested

and Affected.

The Equal Protection Clause also reaches statutory

classifications which deny the right to vote. While Rey-

nolds and Avery dealt with population imbalance and its

resultant weighted voting, the case of Kramer v. Union

School District® was concerned with the outright denial of

voting rights to a particular class. In striking down the

law authorizing this practice, the Court applied “no less

rigid examination to statutes denying the franchise” than

to statutes which might “dilute the effectiveness of some

citizens’ votes.””°

The challenged statute restricted voting in local school

board elections to resident citizens over the age of 21 years

who also were (1) owners or lessees of real property within

the district, (2) a spouse of an owner or lessee, or (3) a

parent or guardian of a child enrolled in a district school

during the preceding year. The state asserted that it had

a legitimate interest in limiting the vote to “those primarily

interested in such elections.”"' In addition to the parents

67. 390 U.S. at 484.

68. 390 U.S. at 485.

69. Supra note 56.

70. \395 U.S. at 626 (emphasis original).

71. 395 U.S. at 631.

of school children, who have an obvious interest, the state

argued that owners of real property, who paid taxes to

support the schools directly, and lessees of real property,

who paid these taxes indirectly, were “primarily inter-

ested.”

In closely scrutinizing the restriction placed on the

excluded voters, the Court found that the statute included

“many persons who have, at best, a remote and indirect ~

interest in school affairs and, on the other hand, exclude[d]

others who have a distinct and direct interest in the school

meeting decisions.’””* The excluded class member who

brought suit argued that, although he was neither a parent

nor a real property owner or lessee, he and other “mem- -

bers of the community have an interest in the quality and

structure of public education.””

By crediting the class members with haying an interest,

the Court recognized that a person need not’finan¢cially sup-

port the schoo] or be responsible for a student to have

a justiciable interest in public education. In sum, the per- —

sons disenfranchised for board elections were not “substan-

tially less interested or affected than those the statute

includes.”’"*

Left open, however, was the issue of whether the

state might be permitted to limit the franchise in situations

where one group of citizens actually was “primarily in-

terested or affected””* by the activities of the unit of gov-

ernment. The Kramer decision turned upon the fact that

the statute was not “sufficiently tailored to limiting the

franchise to those ‘primarily interested’ in school affairs to

72. 395 U.S. at 632.

73. 395 U.S. at 630.

74. 395 U.S. at 632.

75. Id.

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justify the denial of the franchise.’"* The statute was im-

precise, wrongfully including “interested” citizens within

its prohibition. It was possible, therefore, that a carefully

drawn statute might withstand the constitutional test. But

the Court noted: .

Statutes granting the franchise to residents on a se-

lective basis always pose the danger of denying some

citizens any effective voice in the governmental affairs

which substantially affect their lives. Therefore, if a

challenged state statute grants the right to vote to

~ some bona fide residents of requisite age and citizen-

ship and denies the franchise to others, the Court must

determine whether the exclusions are necessary to

promote a compelling state interest.”

Decided on the same day as Kramer was the suit of

Cipriano v. City of Houma."* At issue was the constitu-.

tionality of a state law which, like that of Kemmer forbade

a group of citizens to vote in a certain election. The two

suits differed from one another in that the purpose of the

Cipriano eléttion was not to choose public officials, but

was to determine if utility revenue bonds should be issued.

The municipality owned the utility systems and planned

to use the bond sale proceeds to improve the city’s gas,

water and electric service. Approval by a majority of.the

property taxpayers, representing a majority of the value

of all assessed property owned by the voters in an elec-

tion, was necessary for the bonds to be isued.

The city resisted the attack on the state law which au-

thorized the limited franchise, maintaining that the prop-

erty owners had a “‘special pecuniary interest’ in the

76. 395 U.S. at 633.

77. 395 U.S. at 626-27.

78. Supra note 57.

election, because the efficiency of the utility system directly

affects ‘property and property values’ and thus ‘the basic

security of their investment in [their] property [is] at

stake.’ ””®

Because the revenue bonds were to be paid by utility

operations, supported in turn by all persons who used those

services, the interest of the property owners was no

greater than any other utility subscriber. The respective

interests of the citizenry were equal:

[T]he benefits and the burdens of the bond issue fall

indiscriminately on property owned and non-property

holder alike.*

Consequently, the statute did not satisfy the “exacting

standards of precision’’*! required of limitations upon the

franchise.

E. The Test of Strict Scrutiny Is Applicable to Gov-

ernmental Units Having Governmental Powers -

Less Than Those Examined in Avery v. Midland

County. ,

In Hadley v. Junior College District,** the “one person,

one vote” doctrine of Reynolds was examined once again.

The voting districts for junior college trustees were chal-

lenged as being malapportioned. The Court held that the

trustees must “be apportioned in a manner that does not

deprive any voter of his right to have his own vote given

79. 395 U.S. at 704.

80. 395 U.S. at 705.

81. 395 U.S. at 706 quoting Kramer, supra note 56 at 632.

«2. Supra note 58.

PYLE DL GOO

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Beret st orien ee mre

as much weight, as far as is practicable, as that of any other

voter in the junior college district.”**

As in Avery, the touchstone was the “general govern-

mental powers over the entire geographic area’”** possessed

by the board of trustees. Although its powers were not as

broad as those of the Midland County Commissioners, the

trustees, nonetheless, performed important governmental

functions which were “general enough” and had “sufficient

impact throughout the district”* to make the trustee selec-

tion: process answerable to the Fourteenth Amendment.

Moreover, the Court held that:

[A]s a general rule, whenever a state or local govern-

ment decides to select persons by popular election to

perform governmental functions, the Equal Protection

Clause of the Fourteenth Amendment requires that

each qualified voter must be given an equal oppor-

tunity to participate in the election. . .*

The Court stressed, as it had done in the past, that this

rule might not reach the extremes of the governmental

spectrum:

It is of course possible that there might be some case

in which a state elects certain functionaries whose

duties are so far removed from normal governmental

activities and so disproportionately affect different

,. groups that a popular election in compliance with

Reynolds, supra, might not be required. . .*

Concrete exceptions might exist, but they had yet to be

brought before the Court.

83. 397 U.S. at 52. .

84. 397 US. at 53 quoting Avery, supra note 55 at 485.

85. 397 US. at 54. a

86. 397 U.S. at 56.

87. Id.

F. The Indirect Tax Contributions Made Through

Rents and Costs by Residents Owning No Real

Property Must Be Taken into Account in Weigh-

ing Equal Protection Claims.

No exception to the rule in Kramer was to come forth

in Phoenix v. Kolodziejski,** the next case to test a re-

strictive franchise. The issue before the Phoenix Court

was stated as follows:

Does the Federal Constitution permit a state to restrict

to real property taxpayers the vote in elections to ap-

prove the issuance of general obligation bonds?®

The Court affirmed the lower court holding that the re-

striction was unconstitutional under’*the guidelines of

Cipriano and Kramer.

The City of Phoenix took the position that general

obligation bonds, unlike the revenue bonds of Cipriano,

place an unavoidable burden on the real property owners

because the bonds are “in effect a lien on the real property

subject to taxation.’”®° Because of this special status, the

State of Arizona felt justified in recognizing “the unique

interests of real property owners.’*! The entire community

would benefit from the civic improvements. caused by the

bonds’ passage, but the burden was to be placed on the

property owners.

This argument failed because the Court found that:

The differences between the interests of property

owners and the interests of non-property owners are

88. Supra note 59.

89. 399 U.S. at 205.

90. 399 US. at 208.

91. Id.

Salad

PREC LER SIG LE SOSA LIT EE ML LE PAPIE NLR ONTO E EDEN ME: LIE MI Cr CON SPOIL SLAIN MN IM LPAI EE AK TOR,

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not sufficiently substantial to’ justify excluding the

latter from the franchise.”

This was obviously the case as to a portion of the debt ser-

vice requirements of the bonds. Revenues from other local

taxes paid by both property holders and non-property

holders were to be applied to service the bonds. With non-

property owners contributing to the bond servicing, it was

difficult to maintain that they did not have an interest

equal to the owners. Stated differently, the owners could

not be said to have a special interest.

It was equally difficult to overlook the significant in-

terest non-owners had in the public improvements to be

financed by the bonds. All citizens are affected by the

facilities and services a city offers the public at large.

One need not be financially affected to have an interest in

parks and playgrounds, police and public safety buildings,

and libraries.

The main thrust of Phoenix, however, is not the pro-

tection of these clearly evident interests, but the recogni-

tion of the indirect tax burden borne by the non-owners.

The Court took into account the fact that property taxes,

the very basis for extending exclusive voting privileges to

the owners, are also paid by non-owners. The payment is

indirect, but it is meaningful: Landlords pass property

taxes on to the renter, while commercial establishments

pass the taxes on to the consumer. The property tax is a

business expense ultimately paid by persons other than the

property owner. A selective franchise, granting the owners

the power to decide civic issues affecting all citizens is

constitutionally defective.

92. 399 U.S. at‘209.

II. The Holding in Salyer Land Co. v. Tulare Lake

Basin Water Storage District Is Inapplicable to the

Case at Hand.

Phoenix, like the other progeny of Reynolds, required

the statute in question to be necessary to promote a com-

pelling state interest. A particular statutory classification

might either restrict the franchise or dilute the effective-

ness of the franchise, but in both cases the statute was

strictly scrutinized. Kramer invoked the test of strict

scrutiny when a restriction denied some citizens “any ef-

fective voice in the governmental affairs which substan-

tially affect their lives.”** Hadley applied strict scrutiny

when citizen participation in a “popular election [of per-

_ sons] to perform governmental functions’”** had been di-

luted.

The exception to the doctrine of ‘‘one person, one vote”,

the possibility of which both these cases acknowledged,

finally took form in Salyer Land Co. v. Tulare Lake Basin

Water Storage District.

The facts of Salyer combine elements previously seen

in both the restriction and dilution cases. The board of

directors of a California water storage district was chosen

by an electorate restricted to real property owners whose

votes then were weighted according to the amount of land

the voter owned. As land ownership was the sole re-

quirement, corporations were allowed to vote. Residency

was not required.

In upholding these provisions, the Court did not subject

them to strict scrutiny:

93. 395 U.S. at 627.

94. 397 US. at 56.

95. Supra note 60.

Although relying on the fact that prior cases had left

open the possibility that preferential voting for spe-

cial-function units might be valid, the Salyer Court did

not apply the strict scrutiny actually used in those

cases to review the permissibility of voting restrictions

and dilutions.”

Instead, the Court employed the ‘‘rational basis” test, which

asks if the statutory scheme is “wholly irrelevant to the

achievement of the regulation’s objectives”™ or “if any

state of facts reasonably may be conceived to justify’®® the

scheme. Under this standard Salyer held that the state

could rationally allow those whose land would be sub- ©

jected to taxes to exert control over the water storage

district. It was reasoned that the state could conclude that

without a guarantee of electoral primacy, a sufficient num-

ber of landowners might not be inclined to vote for the

creation of the district.

The excluded lessees might have interests similar to

landowners, but the “rational basis” test merely inquires

if ‘any reasonable state of facts may be conceived to justify

the exclusion.’”*® Such a conception, noted by the Court,

maintained that leaseholds might be manipulated by their

owners, whereby short-term leases, and incidental voters,

would be created for the purpose of controlling an election.

California could limit the franchise to prevent such an oc-

currence as well as to encourage owners to participate

without fear of election irregularities.

96. The Supreme Court, 1972 Term, 87 Harv. L. Rev. 94, 97

(1973). es

97. 410 U.S. at 730 quoting Kotch v. Board of River Pilot

Commissioners, supra note 20 at 556.

98. 410 U.S. at 732 quoting McGowan v. Maryland, supra

note 21 at 426.

99. Id.

Similarly, the state could allow weighted voting. The

benefits to the land are “uniform as to all acres affected’

and the cost to each landowner is the same per acre.

Writing for the majority, Mr. Justice Rehnquist agreed

with the lower court finding that “the benefits and burdens

to each landowner . . . are in proportion to the assessed

value of the land.’"*' Therefore, the California legislative

decision to permit voting in the same proportion was found

to be rationally based.

Salyer applied the less severe test because the water

storage district exercised limited functions which dispro-

portionately affected landowners:

[T]here is no way that the economic burdens of the

district operations can fall on residents qua residents,

and the operation of the districts primarily affect the

land within their boundaries.’

The board of directors, then, are “functionaries whose

duties are... far removed from normal governmental ac-

tivities,”’1°

Salyer does not spell an end to the strict judicial pro-

tection of those interests recognized in the Reynolds line of

cases. The recognition of a citizen’s interest in education,

unconnected to any economic stake,’ still is valid. The

recognition of a citizen’s interest in civic improvements,

brought about in part by indirect tax contributions through

rents and costs,’ still has force and effect.

100. 410 US. at 734.

101. Id., quoting 342 F. Supp. 144, 146 (E.D. Cal. 1972).

102. 410 US. at 729.

103. Hadley v. Junior College Dist., supra note 58 at 56.

104. Kramer v. Union Free School Dist., supra note 56.

105. Phoenix v. Kolodziejski, supra note 59.

REET ASMA N ERIE NY AEA TN 4

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aE a Bee at eas

SSE a NS

The importance of Salyer lies in its analysis of the dis-

parate interests of competing groups. The analysis sug-

gested by the Court initially takes into account the in-

terests of definable groups classified as such by statute.

A finding that one group’s inierest is disproportionately

affected by a “far removed” unit of government will cause

strict protection of the less affected group to be abandoned.

The infringements upon the latter group’s right will be

measured by the “rational basis” test.

The Salyer Court did not suggest that preferential re-

view would be granted merely because one group might

be affected to a greater degree, or in a different manner,

than another group. The “effect”? must reach a dispropor-

tionate 'evel: that it is greater or different is not enough.

Strict . utiny of infringements on the rights of a com-

peting , vup will not give way unless this level is attained.

The test announced by the Court is said to have a

potential for misapplication because:

“Although the result in Salyer seems sound, a super-

ficial analysis in future cases could give inadequate

protection to t:.e constitutional right of equal political

representation.”!°

This potential lies in the interrelated use of the phrases

“specialized units of government” and “disproportionate

effects.” The combined use of these analytic tools “en-

courage[s] a tendency to presume that, if a unit does en-

gage in activities not normally provided by a governmental

unit, its impact will be disproportionate.’ The author

of this thesis warns that it is possible to have a specialized

106. Note, Salyer Land Co. v. Tulare Lake Basin Water

Storage District: Opening the Floodgates in Local Special Gov-

ernment Elections, 72 Mich. L. Rev. 868 (1974).

107. Id. at 884.

unit that has a substantially equal effect on all citizens."

Effects that vary to a small degree should not be construed

as disproportionate just because they emanate from a unit

far removed from normal government activities.

The College District would urge that even if a bond

election could be viewed as a specialized governmental

function, it should not be concluded automatically that the

effect of the bond’s passage is disproportionate.

Reynolds spoke of legislators representing “people, not

trees or acres,”!” and of representatives “elected by voters,

not farms or cities or economic interests.”""” In Salyer the

Court examined a governmental unit whose purpose was

held to be so limited that it approximates the references

made in Reynolds. The water district “focuses on the land

benefited, rather than on people as such.”

The case at hand and that of the El Paso Junior Col-

lege District are concerned with general purpose districts

which substantially affect all citizens.".2 Both districts

focus directly upon people and any limitation upon the

franchise must be examined by the Reynolds line of cases.

Texas elections conducted “for the purpose of issuing

bonds or otherwise lending credit or expending money or

assuming any debt”''* unconstitutionally limit the fran-

chise to qualified residents who own taxable property and

who have rendered same for taxation. The classification

set out in the constitutional and statutory provisions of

108. Id.

109. 377 U.S. at 562.

110. Id.

i111. 410 U.S. at 730.

112. See infra text accompanying notes 127 through 136.

113. TEx. Const. art. VI §3a.

a SSSR Te ee Se ae

MPLA ITN Hen aI

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Texas contains “an exclusion from what [is] otherwise a

delineated class.”"'* In this respect, the classification is

much like that of Kramer: the franchise is open to all resi-

dents of requisite age and citizenship, but with exceptions.

The Salyer classification enfranchised landowners regard-

less of residency, but extended the franchise no further.

For the Salyer Court, allowing others to vote would have

required engrafting a wholly new class of voters upon the

statutory scheme.’ This is not the case in Texas where

the state has granted the franchise universally and then

placed a restriction, inconsistent with Equal Protection,

upon that grant.

The District Court did not err when it wrote that the

principle of ‘one man, one vote” applied “to the City of

Fort Worth, a unit of local government exercising general

governmental power.’"'*® The City obviously performs

broad governmental functions, one of which is the main-

tenance of a library system. The financial stake of ren-

derers is not disproportionate to the non-economic stake

of all Fort Worth citizens in public libraries. Any differ-

ence between the tangible interests of the citizens is mini-

mized by the indirect contributions by non-renderers to the

taxes which will service the bonds."*7 The Salyer ruling

does not apply to the case at hand.

114. 410 U.S. at 730.

115. Id.

116. Stone, supra note 51 at 1021, note 9.

117. ‘This does not mean that the franchise could be extended

ad infinitum to consumers “in far away metropolitan areas” who

might be arguably affected by taxes on Fort Worth goods and

services. The Salyer Court expressed concern over such an

argument because the Tulare Lake Basin Water Storage District

did not condition voting on residency, but upon land ownership.

410 U.S. at 30-731. In general purpose districts, few of which

allow corporations or non-residents to vote, the franchise would

be proscribed by citizenship, residence and age requirements.

III. The Texas Constitutional and Statutory Provisions

Restricting the Franchise in General Obligation

Bond Elections to Persons Who Have Rendered

Property for Taxation Is Violative of the Equal

Protection Clause of the Fourteenth Amendment.

“A. The Restrictive Franchise Excludes Citizens

Who Have a Stake in, and Will Be Affected by,

the Outcome of General Obligation Bond Elec-

tions.

The restrictions of the Texas franchise differ some-

what from the laws invalidated in Kramer and Phoenix.

The state, consequently, has offered different justifications

for its limited franchise. All defenses of its voting scheme

center on the fact that Texas does not limit voting rights

to real property holders only. All property, except as may

be exempted, is subject to taxation,"* and any person who

renders his real, personal or mixed property may vote in

a bond election,” provided he is otherwise qualified. As

the Texas Supreme Court stated in Montgomery Indepen-

dent School District vy. Martin,’ the elector who renders a

bicycle may cast a vote equal to that of a man who owns

a herd of cattle.!*!

Montgomery justifies the state voting classification on

the grounds of “sound government” and “equal treatment

of all citizens.’"** By conditioning the vote upon rendering

property for taxation, it is reasoned, an inducement is pro-

vided “for those who wish to participate in the decision

118. Tex. Rev. Crv. Stat. ANN. art. 7145 (1960).

119. Tex. ELECTION CopE ANN. arts. 5.03, 5.04 (Supp. 1974).

120. 464 S.W. 2d 638 (Tex. 1971).

121. Id. at 640. See Handy v. Holman, 281 S.W. 2d 356

(Tex. Cix. App.—Galveston 1955, no writ).

122. 464 S.W- 2d at 641.

SCT pe Ae RON ee ge

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making process .. . to assume their rightful portion of the

burden they help to create.”!** Montgomery is premised

upon a feeling that it is basically unfair to allow non-

renderers to vote, “and at the same time permit them to

avoid their fair share of the resulting obligation.”"* Be-

cause there is a correlation between the rights of the cit-

izen and the obligations of citizenship,’** it is permissible

to induce the citizenry to come forward to share in the

tax burden. To allow non-rendering citizens to placé

rendering citizens under a financial obligation by the

issuance of bonds “would confer preferential rights.””'*°

While the statutes examined in Kramer and Phoenix

conditioned the franchise differently than does Texas, the

rights defined in those cases have direct bearing on the case

at hand. While renderers (assuming that they subsequently

pay the tax) will be financially affected by a general ob-

ligation bond election, other citizens will be substantially

affected in the election’s outcome. Under Kramer, “the

Court’s concept of ‘interest’ will not permit the exclusion of

residents who do not own property, since they share a con-

cern for and a stake in the quality”’” of general civic im-

provements.. Under Phoenix, any substantial difference

between owners and non-owners is minimized by the in-

direct contribution to property taxes by non-owners through

increased rents and costs.

The Texas Court defines “affect” exclusively in eco-

nomic terms, but fiscal considerations are not the only

123. Id.

124. 464S.W. 2d at 641-42.

125. Markowsky v. Newman, 134 Tex. 440, 136 S.W. 2d 808

126. 464 S.W. 2d at 642.

127. The Supreme Court, 1968 Term, 83 Harv L. Rev. 7, 81

interests to be weighed in examining Equal Protection

challenges:

[T]he Equal Protection Clause is not satisfied by a

finding that it was reasonable to recognize the special

interest property owners have in a bond issue; the laws

are unacceptable in they exclude non-property electors

who have a substantial stake in the result of the elec-

tion.’**

Paralleling the argument that citizens are substantially af-

fected only in economic terms, is the argument that non-

renderers will not vote “either cautiously or intelligently”

unless they have an economic stake in the election.’2” In-

telligence or caution have never been based on economic

factors, and to argue that they are is to urge the introduc-

tion of “wealth as a measure of a voter’s qualifications.”

A non-rendering citizen of Fort Worth may determine the

need for a library with a facility equal to the wealthiest

citizen’s. . |

One of the several cases held inapplicable by the Mont-

gomery Court was Stewart v. Parish School Board,’ where

a three judge court examined a voting scheme similar to

that of Texas. Bond electors were required to be property

[ taxpayers. The Louisiana Constitution additionally re-

quired that all bond issues_be approved by voters owning

a majority of the assessed property, thereby giving more

weight to the vote of the large property owners. Stewart

held both the exclusion of non-property taxpayers and the

dilution of the vote of the small property owners to be in

violation of the Equal Protection Clause.

128. Stewart v. Parish School Board, 310 F. Supp. 1172, 1176

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

129. Brief of Appellant at 18.

130. Harper, supra note 6 at 668.

131. Supra note 128.

}

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Montgomery distinguished Stewart as turning upon the

inequity of the weighted voting, and as having, therefore,

no effect on the Texas plan." By ignoring the case in its

entirety, the Texas Court failed to consider the portion of

the opinion that was applicable: the finding that the lim-

ited franchise was unconstitutional. This especially merited

discussion because the Louisiana Law, like the law of Texas,

provided that “all properties situated within the state . . .

shall be subject to taxation.”

The Louisiana restriction, according to Stewart, was

based on the apparent assumption that property owners

have a special pecuniary interest. This is not unlike Mont-

gomery’s finding that persons permitted to vote “must

assume their rightful portion of the burden they help to

create.””"**

The Stewart Court questioned the presumption that

property owners are more competent to vote in bond elec-

tions than non-property owners, ndting that under such a

presumption it is possible to disenfranchise a bank presi-

dent who happens to rent rather than own his own home.’*

It required that “the general public interest must be

weighed against allowing a particular private group decide

whether a public school be built and where.”*** In Texas,

renderers hold a veto power over the civic improvements

desired by the public at large, many of whom have non-

economic or indirect economic stakes in those improve-

ments.

132. 464 S.W. 2d at 640.

133. La. Stat. ANN. art 47: 1951-1956.

134. 464 S.W. 2d at 641.

135. 310 F. Supp. at 1178 quoting Note, 55 Va. L. Rev. 559,

566 (1969). -

136. 310 F. Supp. at 1178.

B. The Restrictive Franchise Is Not Necessary to

Promote Any Compelling State Interest.

Montgomery alludes to the state’s interest in “spread-

ing the obligations of government equally”,’*? but does not

determine if Texas has a compelling state interest, and if

the rendering scheme is necessary to promote it. The ab-

sence of any discussion of this issue has led one commenta-

tor to state:

One reason for the avoidance of a direct confrontation

with the compelling state interest test may rest in the

apparent absence of such a constitutionally compelling

interest. But again this forces one to question the

wisdom of the supreme court in entirely avoiding an

issue so fundamental to the equal protection clause.

While the “obligation of citizenship” argument raised

by the court merits some philosophical discussion, it

is extremely questionable that the discusssion of an

issue as important as voting rights and the compelling

state interest question should be neglected under the

auspices of a theoretical “you can’t get something for

nothing” attitude.'*

Rendering appears to be an “interest” or goal in itself

because the vote is said not to depend on actual payment

of the tax.

If “sound government” and “equal treatmer: of all cit-

izens” could be viewed as definable compelling interests,

they are not served by the Texas Constitution and stat-

utes. A citizen desiring to vote in a bond election, yet

unwilling to reveal his full assets, could render personalty

137. 464 S.W. 2d at 641.

138. Note, Property Ownership Versus the Right to Vote:

A Question of Equal Protection, 25 Sw. L. J. 633, 643 (1971).

EEL IRE LID BERR: EL ELS

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of small value and be allowed to cast a ballot. “He thereby

would avoid paying his fair share; indeed, he could refuse

to pay any share and still be permitted to vote. Residents

are not goaded into radia their wealth by the restric-

tive franchise:

The law will achieve its purpose only for that minute

segment of the electorate so close to destitution that

to render any property necessitates rendering all. The

restriction will thus compel few citizens to render all

their property for taxation; consequently, it has little

impact on revenue production. Therefore, no ap-

propriate compelling state interest has been advanced

to justify this restriction of the franchise.'®

In the instant case, Judge Thornberry correctly focused on

the questionable necessity of rendition when he asked, “If

disenfranchisement can be avoided by rendering only a

small portion of one’s property, and a nearly valueless por-

tion at that, how does the state further its interest in pro-

tecting the fisc?”**®

C. The Restrictive Franchise Places an Unequal

Burden on Citizens Who Own Property Unsought

for Taxation by the State.

The inequity of Texas’ restricted franchise is amplified

by the state’s irrational property taxation system. All cit-

izens of requisite age and residency are potential property

taxpayers and, by definition, voters in bond elections. Mont-

gomerg, assumes, without directly speaking to it, that all

citizens re under a duty to come forward and render their

139. Note, 49 Texas L. Rev. 1113, 1118 (1971).

140. Stone, supra note 51 at 1022.

property.'*' The only statute cited by the Court as related

to this issue is Article 7145, which provides that, “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 listed as herein pre-

scribed.”'** The impetus for rendition, however, comes not

from the state’s ill-defined duty of citizenship, but from

the local tax assessor-collector. This official is required as

follows:

... take a list of taxable property, real and personal,

in his county and assess the value thereof in the man-

141. One of the most direct statements of the duty to render

is not found in Title 122 of the Texas Revised Civil Statutes, the

general taxation statutes, Tex. Rev. Civ. Stat ANN. arts. 7041

et seq. (1960), but in Title 28 of the Texas Revised Civil Statutes.

Tex. Rev. Civ. Stat. ANN. art. 1043 (1963). Article 1043 states

that each person, partnership and corporation owning property

within the municipal corporation’s limits shall “hand to the city

assessor and collector a full and complete sworn inventory of

the property possessed or controlled. . .”. The annual time for

rendition, however, has been held to be “directory” rather than

“mandatory”. Bose v. Ainsworth, 139 S.W. 2d 307 (Tex. Civ.

App.—San Antonio 1940, error dismd.). Title 122 appears to

leave the initiative in the hands of the assessor. Tex. REv. Cv.

Stat. ANN. arts. 7151 (Supp. 1974), 7189 (1960). See also Tex.

Rev. Civ. Stat. ANN. art. 7152 (Supp. 1974). Professor Yudof

has written:

Texas statutes direct taxpayers to list or render all taxable

property upon request by the assessor. Nonetheless, the only

legal burden imposed on a taxpayer who fails to render vol-

untarily is the denial of access to the local board of equaliza-

tion, which may grant an exception. Because rendition is

not mandatory, the statutes require the assessor to call on

every taxpayer to request a listing of all property. (citations

omitted)

Yudof, The Property Tax in Texas Under State and Federal

Law, 51 Texas L. Rev. 855, 889-90 (1973).

The assessor is empowered to retroactively assess both real and

personal property which he shall “discover” have not been as-

sessed or rendered previously. Tex. Rev. Civ. Stat. ANN. arts. 7207,

7208 (1960); Yamini v. Gentle, 488 S.W. 2d 839 (Tex. Civ. App.—

Dallas 1972, writ ref. n.r.e.).

142. Tex. Rev. Civ. Stat. ANN. art. 7145 (1960).

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ner following, to-wit: By calling at the office, place

of business or the residence of the person, and listing

the property required by law in his name, and requir-

ing such person to make a statement under said oath

of such property in the form hereinafter prescribed.’**

Owners shall list for taxation, during a specific annual time

period, all property “when required by the assessor, with

reference to the quantity held or owned on the first day

of January in the year for which the property is required

to be listed or rendered.’’**

The assessor becomes “‘a sort of one-man legislature’”’*

whose assessment and collection practices are inefficient

and subject to local political pressure.'*® In addition, he

indirectly dictates the size of the electorate in bond elec-

tions. Virtually every person he “calls upon” becomes a

voter. If the potential taxpayer refuses to render, the as-

sessor must make a “valid and binding’’’” assessment of

the property “as if such property had been rendered by

the proper owner thereof.”'** The assessor’s placement of

the property on the rolls, even without the owner’s consent,

entitles the owner to vote in bond elections, provided that

he is otherwise qualified.** The number of bond issue

143. Tex. Rev. Crv. Stat. ANN. art. 7189 (1960).

144. Tex. Rev. Crv. Stat. ANN. art. 7151 (Supp. 1974).

145. 1 Apvisory COMMISSION ON INTERGOVERNMENTAL RELA-

TIONS, THE ROLE OF THE STATES IN STRENGTHENING THE PROPERTY

Tax 4 (1963), quoted by Yudof, supra note 141 at 886.

146. “Most taxpayers would be outraged if the assessor ac-

tually complied with the applicable laws on the property tax base.

An assessor who insisted on taxing personal property would be

courting political suicide.” Yudof, supra note 141 at 889.

147. Tex. Rev. Civ. Star. ANN. art. 7193 (1960).

148. Id.

149. Montgomery, supra note 120 at 641; Royalty v. Nichol-

son, 411 S.W. 2d 565, 575 (Tex. Civ. App.—Houston 1967, writ

ref. n.r.e.).

voters is in direct proportion to the energy the assessor ex-

pends in seeking out property.

It is extremely doubtful that a property owner will

even know of the possibility of rendering, much less ac-

tually undertake to render, unless he is requested to list

his property. As the District Court observed, “The record

fails to indicate the number of people who render, for taxa-

tion personalty other than automobiles, but we doubt that

many do.” This doubt echoed the finding of the three

judge court in Stewart where judicial notice was taken “of

the fact that in Louisiana few individuals pay any personal

property taxes; those who do pay a nominal tax usually

based on the value of their automobile.”"™ In Texas most

personalty is not rendered because the assessor never re-

quires its rendition. The discretion of the assessor is great

and the tax base varies from county to county. Professor

Yudof has written that the broad tax base which includes

all property has eroded:

[It] results from the helter-skelter, informal exemp-

tions that assessors grant taxpayers. The net effect is

that the laws of Texas give littlé’indication of the true

size of the tax base. In practice, personal, property

is rarely included - - - except for automobiles, which

some 400 districts tax.’ Likewise, business personal

property is exempted in many districts, and inventory ~

is assessed only after it has been largely depleted.'**

A vast class of personal property owners are never re-

quired to render their property, yet they are disenfran-

150. Stone, supra note 51 at 1020.

151. Stewart, supra note 128 at 1173, note 3.

152. Taxing districts within El] Paso County do not require

the rendition of automobiles.

153. Yudof, supra note 141 at 889.

ee |

chised. That members of this class may offer property

to the assessor on their own initiative cannot excuse an

obvious discrimination: the state makes it more difficult

for one class of citizens to vote in bond elections than for

another class. A landlord may be required to render his

real property and perhaps his automobile, while a renter

who owns no automobile receives no such demand. Even

if the landlord refuses to render, and the assessor places

the property on the tax rolls, the landlord is entitled to

vote. In either case, the landlord is made a voter in bond

elections not through his own volition, but by the demand

of the assessor. The landlord is sought out by the tax as-

sessor, but the renter is forced to seek out the tax assessor.

Moreover, the landlord may be several years delinquent in

the payment of his taxes, but his status as an elector is un-

changed.

Citizens of requisite wealth, therefore, have their vot-

ing rights.conferred upon them by the assessor even though

all citizens are under a duty to render.

The renter, however, becomes a voter only if he takes

affirmative steps to render his theretcfore unsolicited per-

sonal property. In so doing, the renter places on the tax

rolls property that the landlord was never required to

render. For the privilege of voting in bond elections, the

renter assumes a tax liability on particular items the asses-

sor has sought of no other citizen.

The burden placed on owners of property unsought

by the tax assessor is violative of the Equal Protection

Clause. Such owners have been placed in a class which is

required to perform an act demanded of no other class.

The result of this act is to render for taxation property

which otherwise would be untaxed. Even if it could be said

that the Texas plan is concerned with legitimate voting

standards and qualifications,’ the administration of the

plan is discriminatory.'** The method by which a citizen

becomes eligible to vote in a bond election is not even-

handed; an identifiable class is discriminated against be-

cause of economic status.

The restricted franchise has “no relation to standards

designed to promote intelligent use of the ballot." The

restriction is imposed in order to achieve an end wholly

unrelated to voting: the rendition of property for the col-

lection of taxes. Texas has a variety of ways to enforce this

ostensible policy without intruding on voting rights. The

state should address itself directly to its articulated inter-

ests, rather than indirectly and impretisely seeking to foster

them.

CONCLUSION

For the reasons stated it is respectfully submitted that

the judgment of the court below should be affirmed.

Respectfully submitted,

hae” ot DUNBAR

MARK SSERRY

1808 State National Plaza

E] Paso, Texas 79901

Attorneys for Amicus Curiae, El Paso

County Junior College District

154. See, e.g., Lassiter v. Northampton Election Board, 360

U.S. 45 (1959).

155. See, e.g., Louisiana v. United States, 380 U.S. 145 (1965).

156. Harper, supra note 6 at 666 quoting Lassiter, supra

note 154 at 51. F

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CERTIFICATE OF SERVICE

I, Edward W. Dunbar, as counsel for the amicus curiae

El Paso County Junior College District, and a member of

the Bar of the Supreme Court, hereby certify that true

and correct copies of the above foregoing Brief Amicus

Curiae has been served upon the several parties, in com-

pliance with Rule 33 of the Supreme Court Rules, by plac-

ing three copies in the mail, airmail postage prepaid, to

S. G. Johndroe, Jr., City Attorney and Attorney for Ap-

pellees R. M. Stovall, S. G. Johndroe, Jr., Roy A. Bateman,

Leonard E. Briscoe, Taylor Gandy, Jess M. Johnstcn, 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, airmail postage pre-

paid, to Don Gladden and Marvin Collins, attorneys for

Appellees, at 702 Burk Burnett Building, Fort Worth, Texas

76102; and that three copies were placed in the mail, airmail

postage prepaid, to John L. Hill, Attorney General of Texas

and Larry F. York, Mike Willatt and G. Charles Kobdish,

‘Assistant Attorney Generals, attorneys for Appellant, at

Box 12548, Capitol Station, Austin, Texas 78711. All par-

ties required to be served have been served.

EpwarRpD W. DUNBAR

1808 State National Plaza

E] Paso, Texas 79901

APPENDIX

TEx. Const. art. VI, §3a

When an election is held by any county, or any num-

ber of counties, or any political sub-division of the State,

or any political sub-division of a county, or any defined

district now or hereafter to be described and defined within

the State and which may or may not include towns, vil-

lages or municipal corporations, or any city, town or vil-

lage, for the purpose of issuing bonds or otherwise lending

credit, or expending money or assuming any debt, only

qualified electors who own taxable property in the State,

county, political sub-division, district, city, town or village

where such election is held, and who have duly rendered

the same for taxation, shall be qualified to vote and all

electors shall vote in the election precinct of their residence.

Tex. Const. art. VII, §3

One-fourth of the revenue derived from the State oc-

cupation taxes and poll tax of one dollar on every inhab-

itant of the State, between the ages of twenty-one and

sixty years, shall be set apart annually for the benefit of

the public free schools; and in addition thereto, there shall

bé levied and collected an annual ad valorem State tax of

such an amount not to exceed thirty-five cents on the

one hundred ($100.00) dollars valuation, as with the avail-

able school fund arising from all other sources, will be

sufficient to maintain and support the public schools of this

State for a period of not less than six months in each year,

and it shall be the duty of the State Board of Education

to set aside a sufficient amount out of the said tax to pro-

vide free text books for the use of children attending the

public free schools of this State; provided, however, that

Fo a nn |

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Sense

Biteerreneesrs: oeas

should the limit of taxation herein named be insufficient

the deficit may be met by appropriation from the general

funds of the State and the Legislature may also provide for

the formation of schoo] district by general laws; and all

such school districts may embrace parts of two or more

counties, and the Legislature shall be authorized to pass

laws for the assessment and collection of taxes in all said

districts and for the management and control of the public

school or schools of such districts, whether such districts

are composed of territory wholly within a county or in

parts of two or more counties, and the Legislature may

authorize an additional ad valorem tax to be levied and

collected within all school districts heretofore formed or

hereafter formed, for the further maintenance of public

free schools, and for the erection and equipment of school

buildings therein: provided that a majority of the qualified

property taxpaying voters of the district voting at an elec-

tion to be held for that purpose, shall vote such tax not to

exceed in any one year one ($1.00) dollar on the one

hundred dollars valuation of the property subject to taxa-

tion in such district, but the limitation upon the amount of

school district tax herein authorized shall not apply to in-

corporated cities or towns constituting separate and in-

dependent schoo] districts, nor to independent or common

school districts created by general or special law.”

Tex. ELECTION Cope ANN. art. 5.03 (Supp. 1974)

When an election is held by any county, or any number

of counties, or any political subdivision of the state, or

any political subdivision of a county or any defined district

now or hereafter to be described and defined within the

state, and which may or may not include towns, villages, or

municipal corporations, or any city, town, or village, for

the purpose of issuing bonds or otherwise lending credit, or

expending money or assuming any debt, only qualified

electors who own taxable property in the state, county,

political subdivision, district, city, town, or village where

such election is held, and who have duly rendered the same

for taxation, shall be qualified to vote and all electors shall

vote in the election precinct of their residence. Property

shall be deemed to have been duly rendered for taxation,

for the purpose of determining eligibility to vote in an

election as provided in this code and in Article VI, Section

3a, of the Texas Constitution, only if the property was ren-

dered to the county, city, district, or other political sub-

division holding the election within the period of time

fixed by law for such rendition, or was placed on the tax -

rolls by the tax assessor prior to the date on which the

election was ordered, if the regular rendition period ex-

pired before that date.

TEx. ELEcTION Cope ANN. art. 5.04 (a)

(a) Before any person is allowed to vote in an elec-

tion for the purpose of issuing bonds or otherwise lending

credit, or expending money or assuming any debt, he shall

sign and swear to an affidavit to the effect that he owns

property, giving a description of one item, which has been

duly rendered for taxation to the political subdivision hold-

ing the election at a time and in a manner which entitles

him to vote in the election, as provided in Section 35 (Arti-

cle 5.03) of this code. The voter's registration certificate

number shall be shown on the affidavit, and it shall contain

a statement that the affiant understands that the giving of

false information in the affidavit is a felony punishable

by a fine not to exceed $5,000 or by imprisonment in the

. penitentiary not to exceed five years, or by both such fine

and imprisonment.

TSS SIME NEN TS a eT EET IE LM PO RET LP RTS PONE NE

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