Amicus Curiae Brief — Hill v. Stone

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| Supreme Court, U, 3,

| LIBRARY, > FILED

SUPREME COURT, U, a DEC 99 ww74

In THE.

Supreme Court of the United States

Octoser TERM, 1974

Joun L. Hm, Attorney General of Texas,

Appellant,

v.

Micuak. L. STong, ET AL.,

Appellees.

On APPEAL FROM THE Unitep States District Court -

FOR THE NortTHERN District oF TExas

BRIEF FOR AMICUS CURIAE

Marsua.u Boykin III

Attorney for Amicus Curiae

William O. Harrison, Jr.,

Adam Basaldua, Jr.,

Mrs. Jimmie H. King and

Richard Bonner

2000 Bank and Trust Tower

B & T 249

Corpus Christi, Texas 78477

December 1974

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INDEX

Interest of the Amicus Curiae .o...c.cccecceecceeeeeeseeeeceeececcceeeereeeeeecen®

Argument :

A. The Decision of the Distriyf Court that the Texas

Laws in Question Violate ‘the U.S. Constitution's

Equal Protection Clause Slreuld be Affirmed ........

B. The Decision of the Distrivt-Court Should Apply

to all Texas Cases Arising after the City of Fort

Worth Election in which the Dual-Box Election

Procedure was Followed 00..........sccccecccssctecorsessseereeeees

CCOPRCRURBIINN, acs cisecsescnsepecsdsrdercessecnpanvodedosichivadsdeneebaesdevesasnsdouecbesieusoes

Certificate Of Service ciicccccccceccccceeeccceccccceeecececseesceceeseces qeeseeeeesecea

TABLE OF AUTHORITIES

Cases

Associated Enterprises, Inc. v. Toltee Watershed Improre-

ment District, 410 U.S. 743, 35 L.Ed.2d 675, 93 S.Ct. 1237

CPOT DY wichesatcsnsninencedsthannennrtnsseniosmareiesenseciuaienentiistbdenieraesniten progam

Avery v. Midland County, 399 U.S. 474, 20 L.Ed.2d 45,

88 S.Ct. LITE (19GS) ....cceccccocccersorecssccesiacccnccsscecsocscecscecascocsoosece

Carrington v. Rash, 380 US. 89. 85 S.Ct. TI9 cecccccceseeeceesees

Cipriano v. Houma, 395 U.S. 701, 23 L.Ed.2d 647, 89 S.Ct.

p897 CRY + aicnecsisccnrertescsscse veaeestawabvesecsiesonainnensonisemeneseannnictnts

Dunn vy. Blumstcin, 405 US. 330, 31 L.Ed.2d 274, 92 S.Ct.

DOD cccccreccccvoeprocssotescceccocesvessosonss bovscscecescccessosssscsecossoossesenesoneceveness

Great Northern R. Co. vy. Sunburst Oil & Refining Co., 287

UB, BEG CADSR) cereccectasssnsnisersstastsvsinscesczsiorsecstzarivcrnpseserovensessnve

Hadley vy. Junior College District, 397 US. 50, 25 L.Ed.2d

45, 90 8.Ct. 791 (1970) ........000 ssbatenusndnektemnberhesbenessisestiesebiieers

Harper vy. Virginia State Board of Elections, 353 U.S. 665,

16 L.Bd.2d 169, 86 8.Ct. 1079 (1966) .....cccrcccccrncgeoreecscsesccseces

Kramer vy. Union Free School District, 395 U.S. 621, 23

L.Ed.2d 583, 89 S.Ct. 1886 (1969) ........ccccrccrcerssscesrsseceersncsess

Lassiter vy. Northampton County Board of Elections, 360

U.8. 45, 3 L.Ed.2d 1072, 79 S.Ct. 985 .........ccrcccsccercocscseseesoress

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PAGE

Montgomery Independent School District v. Martin, 464

S.W ied GBS CT ex. LOT1) ccc ccccccccceeccecceesceeeceeseeessseeeneeeneees 6.

Phoenix vy. Kolodziejski, 399 U.S. 204, 26 L.Ed. 24.523, 90

SSC, VOD, occ cccvevevchecssvedeseseictee-4ssssebasctesvessesevenusenesbavanesstuvnsesestens 2

Reynolds v. Sims, 377 U.S. 533, 12 L.Ed. 2d 506, 84 S.Ct.

T3G2 CLOG) ccccoserceocccesonccssscccsosscessseusbocceosesvsesicosessezssvssensecdevenseas 2

Salyer Land Company v. Tulare Lake Basin Storage District,

410 U.S. 719, 35 L.Ed.2d 659, 93 S.Ct. 1224 (1973) ....... 2

Williams v. Rhodes, 393 U.S. 23, 21 L.Ed.2d 24, 89 S.Ct. 5

(UGGS) iccsccccccsccsscccqpeesscvececcdcesseencesccacscnsssnscusscsccctecsstocesssusesseseeens 2

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In THE

Supreme Court of the United States

| No. 73-1723

Joun L. Hix, Attorney General of Texas,

Appellant,

¥

Micuaew L. Stone, ET AL.,

Appellees.

On APPEAL FROM TERE Unirep States District Court

FOR THE NortTHERN District oF TExas

BRIEF OF WILLIAM O. HARRISON, JR.,

ADAM BASALDUA, JR., MRS. JIMMIE H. KING, AND

RICHARD BONNER AS AMICUS CURIAE

INTEREST OF THE AMICUS CURIAE

William O. Harrison, Jr.. Adam Basaldua, Jr., Mrs.

Jimmie H. King and Richard Bonner are Plaintiffs in a

cause numbered 74-C-60 styled William O. Harrison, Jr.,

et al. v. The City of Corpus Christi, et al. presently pendir

before the United States District Court for the Southefn

Such bonds were not approved by a majority of owpers

»

rendering property for taxation but were apxroved by a

majority of all voters. In the ease pending in the United

States District Court for the Southern District of Texas,

Corpus Christi Division, the Corpus Christi eleetion was

held on December ‘9, 1902 submitting to the voting publie

a proposed bond issue for convention center bonds. Like

the Fort Worth election, the bonds were not approved by

a majority of the voters classified as owners of property

rendered fog taxation, but were approved by a majority of

all voters.

This brief is filed with written consent of all parties to

the case at bar.

This brief is filed in support of the position of Appellees

and in support of the conelusion reached by the three-

judge trial court except insofar as that court limited its

opinion to apply prospectively only. This brief is also

otfered urging this Court to modify the judgment in the

instant case to give it application to all Texas cases arising

in which the dual-box election procedure was followed.

ARGUMENT

A. The Decision of the District Court that the Texas

Laws in Question Violate the U. S. Constitution’s

Equal Protection Clause Should be Affirmed. ~—

State voting laws resulting in invidious discrimination

do not afford equal protection of the laws. Reynolds v.

Sims, 377 U.S. 533, 12 L.Kd.2d 506, 84 S.Ct. 1362 (1964) ;

Avery v. Midland County, 390 U.S. 474, 20 L.Ed.2d 45, 88

S:Ct. 1114 (1968); Williams v.- Rhodes, 393 U.S. 28, 21

L.Ed.2d 24, 89 S.Ct. 5(1968); Hadley v. Junior College

Distriq\, 397 U.S. 50, 25 L.Ed.2d 45, 90 S.Ct. 791 (1970) ;

Kamar Union Free School District, 395 U.S. 621, 23

L.Ed.2d 583, 89 S.Ct. 1886 (1969); Cipriano v. Touma, 395

U.S. 701, 23 L.Ed.2d 647, 89 S.Ct. 1897 (1969); Phoenia

v. Kolodziejski, 399 U.S. 204, 26 L.Ed.2d 523, 90 S.Ct. 1990;

Salyer Land Company v. Tulare Lake Basin Storage Dis-

?

’

a)

trict, 410 U.S. 719, So Liidkd.2d 659, 93 S.Ct. 1224 (1973).

The paramount question in this case is what constitutes

invidious discrimination.

lxeluding those grounds which rationally protect. the

intelligent exercise of the voting franchise, almost any

limitation upon or denial of the voting franchise is invi-

diously discriminatory, even when authorized by a non-

discriminatory majority decision of the voters, if it rele-

gates to a nunority status in the democratie decision mak-

ing process any citizen or group of citizens having

a historically recognizable substantial interest therein.

Reynolds vy. Sims, supra; Avery v. Midland County, supra;

Kramer vy. Union Free School Distria, sup ‘a; Cipriano v.

Houma, supra; Phoenix vy. Kolodziejski, supra. But if no

such substantial interest exists, neither does invidious dis-

crimination. Salyer Land Company v. Tulare Lake Basin

Storage District, supra.

Residence and length thereof, age, competence and

similar qualifications are related to the ability to participate

intelligently in the electoral process. Lassiter v. Northamp-

ton County Board of Elections, 360 U.S. 45, 3 L.Ed.2d

1072, 79 S.Ct. 985; Carrington v. Rash, 380 U.S. 89, 85 S.Ct.

70; Dunn v. Blumstein, 405 U.S. 330, 31 L.Ed.2d 274,

92 S.Ct. 995. Wealth, like race, creed or color is not ger-

mane to one’s ability to participate intelligently. Harper

v. Virginia Board of Elections, 383 U.S. 663, 16 L.Ed.2d

169, 86 S.Ct. 1079 (1966). Neither is ownership or non-

ownership of property germane to one’s ability to partici-

pate intelligently. Kramer v. Union Free School District,

supra: Phoenix v. Kolodzicjski, supra. Rendition of such

property should be even less germane to one’s ability to

participate intelligently.

If a state is to otherwise limit, restrict or deny the vote

of any citizen or group of citizens in any matter in which

+

such citizen has a historically recognizable interest, it may

only be for reasons of compelling State interest. Aramer v.

Union Free School District, supra; Phoenix v. Kolodziejski,

supra. Or, recognizing the test advocated by some of the

justices of this Court, by reason of a purpose rationally

related to a permissible legislative end. See dissenting

opinion of Justice Stewart joined in by Justices Black

and Harlan in Kramer vy. Union Free School District, supra.

In each case in which there is some restriction upon or

denial of the voting franchise upon grounds other than

those rationally protecting the intelligent exercise of such

franchise the first question becomes whether such denial

of or limitation upon the right to vote affects a citizen or

citizens having a historically recognizable substantial in-

terest therein. Kramer v. Union Free School District,

supra; Phoenix v. Kolodziejski, supra; Salyer Land Com-

pany v. Tulare Lake Basin Storage District, supra. Because

of our historical tradition, at least since the time of

the Fourteenth Amendment, of unrestricted franchise upon

a one person to one vote basis it would seem that

the burden would be upon those claiming that the state

laws relating to voting did not result in invidious discrim-

ination against a particular citizen or group of citizens

to show that such citizen or group of citizens did not have

a historically recognizable interest in the particular demo-

cratic decision making process in question.

Salyer Land Company v. Tulare Lake Basin Water Stor-

age District, supra, seems to be a case in which such a

burden was met. In Tulare, a special type of water district

in which, at least by majority view, both the burdens (taxa-

tion) and the benefits (water use) were shared only by the

owners of land in the district and then proportionately,

and in which voting was limited to such owners, and then

proportionately to tax base, was not invidious discrimina-

D

lion as it did not relegaic to a minority status in the parti-

cdlar democratic decision making process any citizen or

grou) of citizens ‘having. a historically recognized sub-

stantial interest therein. Put another way, in that case

the parties complaining of being denied a right to vote in

the water storage district elections had no recognizable

interest therein as they neither shared in the burdens nor

the benefits resulting therefrom! A similar analysis would

apply to Associated Enterprises, Inc. v. Toltee Watershed

Improvement District, 410 U.S. 743, 35 L.Ed.2d 675, 93

S.Ct. 1237 (1973).

The interest of one group of citizens to the exclusion of

another and the fair distribution of votes based on benefits

and burdens is not so easily recognized in other situations; .

and in most situations, other than special purpose districts -

as existed in Tulare and Voltec, the historical tradition of

equality, proven in practice as superior to any other system

in proteeting the democratic process, is one person-one

vote, Reynolds v. Sims, supra.

.

The case at bar most nearly resembles the ease before

the court in Phoenix. The major differences are that in

the case at bar: (1) questionability @f the Texas laws liad

been recognized by the Attorney General and a dual system

of voting installed in recognition thereof; (2) the complain-

ing citizens object to the defeat of the bond election where-

as in Phoenix the complaint was with regard to passage’

ot the bond issues; (3) the Texas law restricts voting in

hond issues to rendering owners of any property not spe-

cifically exempted by statute whereas in Phoenix voting

was restricted to real property owners; and (4) the princi-

pal and interest on the bonds would be repaid solely from

revenues from property taxes whereas in Phoenix property

taxes were to be levied to service such indebtedness but

6

the city was legally privileged to use other revenues in pay-

ment of the bonds.

There are other peculiarities in Texas law which are

relevant to the issue of discrimination. There is a possi-

bility not only of self-discrimination by reason of the

citizen failing to render his property (whether the result

of ignorance, negligence, or a reluctance to pay iiuxes,

particularly on personality) but of discrimination by the

tax-assessor and collector in the exereise and non-exercise

of such official’s power to search out and place upon the

tax rolls any properties subject to taxation. See Mount-

gomery Independent School District v. Martin, 464 S.W.2d

658 (Tex. 1971).

The Attorney General argues that “[t]he very nature

of a general obiigation bond and the universality of prop-

erty subject to taxation in Texas combine to lend constitu-

tional validity to the property rendering requirements. ...”

and that the Texas laws while disenfranchising no one

“limits the vote to those who are ‘primarily interested’ in

the outeonie of ...” a bond election. The components of the

arguinent are contradictory.

The mere fact that the citizen makes the choice will not

rescue from such laws being classified as invidious diserim-

ination. Harper v. Virginia State Board of Elections, supra.

sut, even so, in the case of the Texas laws the very purpose

can be defeated at least in part if not in whole by the

action of the tax-assessor and collector, if, indeed, the

purpose could be considered worthwhile when the rendition

of one single property of smallest value would suflice.

The State argues that the Texas laws limit the vote to

those who are “primarily interested” in the outcome of an

election and by reason thereof does not fail to afford the

7

equal protection of the laws. Primary interest doesnot

rest exclusively in those bearing the burden of ad valorem

taxation, if it can truly be said that the burdens would

only be imposed upon the rendering taxpayers. (The fact

that principal and interest of the bonds may only be paid

from such revenues means that other citizens will bear a

burden by increase in sales taxes, utility revenues, and the.

like, to support other city services otherwise paid by such

ad valorem taxes as well as increased rents and other cost.

of goods and services by reason thereof.) Users of the

facilities to be built as a result of the bond issue, that is, :

beneficiaries thereof, have as much “primary interest,” that

is, recognizable substantial! —,, in such an election.

That all citizens, be they property owners or non-prop-

erty owners, have a substantial interest in public libraries

has been recognized by a prior opinion of this Court.

Avery v. Midland County, supra, at page 53. Likewise, it

would seem all citizens have such an interest in convention

centers and similar public facilities.

Restriction upon or denial of voting rights to any part

of that public must therefore rest upon some other recog-

nizable state interest whether it be tested by the “com-

pelling state interest” test or by determination of a purpose

rationally) Yelated to a permissible legislative (or state

constitutionally authorized) end.

The State has urged as such interest or purpose forcing

the non-rdnderer of property to render such property for

taxation, But such purpose is at best a myth sinee any

citizen may make a mere token rendition and secure voting

privileges,

Further, the Texas laws in question are not rationally

related to accomplishment of such purpose not only by

8

reason of token rendition being sufficient but also because

the act of the tax-assessor and collector may relieve the

non-renderer from any aflirmative act.

Tested by all standards the Texas laws limiting bond

issue elections to owners of property rendering property

for taxation relegates to a minority status in the democratic

decision making process a group of citizens having a histor-

ically recognizable substantial interest in such elections

without justification by reason of compelling state interest

or, alternatively, by reason of a purpose rationally related

to a permissible legislative (or state constitutionally au-

thorized) end. |

Comparison with Phoenix demonstrates no distinction

of such merit as to justify not following the rule of stare

decisis.

B. The Decision of the District Court should Apply to

all Texas Cases Arising After the City of Fort Worth

Election in Which the Dual-Box Election Procedure

was Followed.

The District Court in its opinion noted that “many

communities have relied on the Texas law and have ap-

proved or disapproved bonds in elections that excluded the

votes of citizens not rendering property for taxation.” (em-

phasis supplied) The District Court ordered prospective

relief only. .

As this Court observed in Great Northern R. Co. v. Sun-

burst Oil & Refining Co., 287 U.S. 358 (1932), ancient

dogma suggests that all court decisions are to have a

retroactive effect. Such question is not one of constitutional

dimension. Great Northern R. Co, v. Sunburst Oil & Refin-

ing Co., supra. In stewarding the Federal law and the U.S.

Constitution, the Federal courts have reserved unto them-.-

selves the discretionary lattitude to avoid giving full retro-

9)

active effect to Judgments where the goal is “avoiding the

‘injustice or hardship’ by a holding of non-retroactivity.”

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

Bond elections held in the Texas cities of Fort Worth and

Corpus Christi were held after this Court’s rulings in

Cipriano and Phoenix. Both cities recognized that the Texas

law was subject to the same attacks made in Arizona and

Louisiana. Accordingly, both cities held elections which

could be effected under both extant Texas law and the law

as may soon be announced by this Court. Given a retroactive

application of the Fort Worth decision, neither city will

have suffered for reliance upon the Texas statute. Neither

will any other Texas municipality which has held a dual-

box election as in the case of Fort Worth and Corpus

Christi if such retroactive effect is limited to such elections

as it should be. To the contrary, Fort Worth and Corpus

Christi have held elections in reliance upon their belief

that should their dilemma become real, such dilemma would

be resolved by the Courts. Each city has sought to avoid

the uncertainty occasioned by holding a potentially void

election and each has sought to obviate the expense of

monies and time which a second election would necessitate.

Making the decision in this case retroactive as to all dual-

box elections could spare the State and its municipal sub-

division as well. as the Courts multiplicity of suits.

One other limitation to avoid the possibility of undue

hardship upon such retroactive effect should be that the

decision would be prospective only as to any election in

which property owners rendering property for taxation

approved the issue and the total vote disapproved the issue

in the unlikely event that the Attorney General may have

approved issuance of bonds in such a case and which bonds

may have been sold or be in the process of being sold.

Otherwise, no harm can result from sale of bonds or from

prohibiting the sale thereof as the result of any dual-box

election, and substantial waste of time, money and courts’

10

time can result from a judgment applying only to elections

occurring subsequent to its announcement.

CONCLUSION

For the, reasons stated the decision of the three-judge

district court that the Texas laws in question violate the

U. S. Constitution’s equal protection clause should be af-

firmed; however, the judgment of that court should be

modified to make it applicable to other Texas cases such

as the Corpus Christi case in which the dual-box election

procedure was followed.

Respectfully submitted,

ere eee ees Ce

Marshall Boykin III,

Attorney for the named

Amicus Curiae

2000 Bank & Trust Tower

B.& T 249

Corpus Christi, Texas 78477

CERTIFICATE OF SERVICE

I, Marshall Boykin III, as of counsel for Amicus Curiae

herein named and member of the Bar of the Supreme Court,

hereby certify that true and correct copies of the above

foregoing Amicus Curiae Brief have been served upon the

several parties thereto, in compliance with Rule 33(1) of

the United States Supreme 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, Leon-

ard KE. Briscoe, Taylor Gandy, Jess M. Johnston, Jr., W. S.

11

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 by

placing three copies in the mail, first class postage prepaid,

to Don Gladden and Marvin Collins, Attorneys for Appel-

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

76102; and by placing three copies in the mail, first class

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

Texas, Larry F. York, First Assistant Attorney General,

Mike Willatt, Assistant Attorney General, and G. Charles

Kobdish, Assistant Attorney General, Attorneys for Appel-

lant, State of Texas, at Box 12548, Capitol Station, Austin,

Texas 78711. I further certify that ! also placed three copies

in the mail, first class postage prepaid to James R. Riggs, -

City Attorney of Corpus Christi, Texas, and James F.

McKibben, Jr., Assistant City Attorney of Corpus Christi,

Texas at P. O. Box 9277, Corpus Christi, Texas 78408. All

parties required to be served have been served.

Witness my hand thist™®™.. day Mt tim ke 1974.

Marshall Boykin IIT

2000 Bank & Trust Tower

B & T 249

Corpus Christi, Texas 78477

TEETER

Beers ET Re