# Amicus Curiae Brief — Hill v. Stone > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0406%3A08 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1975 - **Citation:** 421 U.S. 289 ## Text bes | 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 a FIDELITY PRINTING COMPANY, HOUSTON ‘ ; Mas i ! i a ’ ‘ "Sasa, Sale Ue tedediee dh eA ee ‘ —" £ ‘ { s i ’ ! é * ‘ i i ' * . ; ! PEG LATER ee TM “ . 1s * i . i . 4 * i a « ‘ * ‘ Re A te i 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 to to Se | PUATEA TE Rew Nghe il 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 : » dhe * 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0406%3A08. Public record. Not legal advice.