NO. 94-499
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
ELIZABETH J. JOHNSON,
Contestant and Respondent,
-vs-
CURTIS KILLINGSWORTH,
Contestee and Appellant.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable John W. Larson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Kevin R. Callaghan; Harris, Callaghan & Velk,
Missoula, Montana
Alan F. Blakley, Attorney at Law, Missoula,
Montana
For Respondent:
Richard R. Buley; Tipp & Buley, Missoula,
Montana
Submitted on Briefs: January 19, 1995
Decided: April 11, 1995
Justice Karla M. Gray delivered the Opinion of the Court.
Curtis Killingsworth (Killingsworth) appeals from the
findings, conclusions, and judgment of the Fourth Judicial District
Court, Missoula County, voiding his election as commissioner of
Division 2 of the Missoula Irrigation District (District) Board.
We affirm.
The facts of this case are undisputed. The District is
comprised of five divisions and is governed by a board consisting
of five commissioners, one elected from each division.
Killingsworth ran unopposed for the commissioner position for
Division 2 and was elected to that position on April 5, 1994.
Killingsworth neither owns irrigable land nor resides within
Division 2 of the District; he leases a storage unit within the
District's boundaries.
Elizabeth Johnson (Johnson), who owns irrigable land within
Division 2, petitioned to have Killingsworth's election set aside.
She alleged that Killingsworth did not possess the statutory
qualifications to be a commissioner because he did not own
irrigable land within the division. Following a hearing on the
petition, the District Court issued findings of fact, conclusions
of law, and a judgment setting aside Killingsworth's election.
Killingsworth appeals.
As a preliminary matter, Johnson has moved this Court to
strike references to evidence contained, and argued, in
Killingsworth's brief but not of record in this appeal. The
2
material consists of Killingsworth's summary of newspaper articles
published after the District Court's judgment regarding possible
public health problems posed by the Missoula irrigation system, an
exhibit attached to a pretrial brief summarizing the annual cost to
Missoula taxpayers for maintenance of the irrigation system, and
Killingsworth's statements regarding the District's use of toxic
chemicals and failure to allow him to erect barriers around an
irrigation ditch.
It is axiomatic that this Court will not consider evidence not
contained in the record on appeal. In re Marriage of Martin
(1994) I 265 Mont. 95, 100, 874 P.2d 1219, 1223. Moreover, a
party's reference to evidence does not incorporate that evidence
into the record. Marriaqe of Martin, 874 P.2d at 1223. We note
that, although this evidence--including the subject matter later
contained in the newspaper articles--generally was described to the
District Court, it was never offered or received as evidence of
record. Therefore, we grant Johnson's motion to strike and do not
consider any of the challenged evidence or references thereto.
Irrigation districts are created, funded, and operated
pursuant to statute. Sixty percent of the holders of title to
irrigable lands sought to be included in a district may petition a
district court to establish the district. Sections 85-7-101(l) and
-104, MCA. If the court determines that the district should be
established, it must divide the district into three, five, or seven
divisions depending on the district's size. Section 85-7-
107(3) (d), MCA. Each division is represented by a commissioner
3
possessing the qualifications set forth in 5 85-7-1501, MCA. See
§ 85-7-107(3) (e), MCA. Pursuant to § 85-7-1501, MCA, "[al person
may not be a commissioner unless he is an owner of irrigable land
within the division of the district he is to represent and is a
resident of the county in which the division of the district or
some portion of the division is situated." It is undisputed that
Killingsworth is not an owner of irrigable land within Division 2
of the District.
Killingsworth contends that the land ownership requirement
contained in § 85-7-1501, MCA, violates the Equal Protection Clause
contained in the Fourteenth Amendment to the United States
Constitution. The District Court concluded that the ownership
requirement was reasonably related to the state's interest
regarding the efficient functioning of the District and, as a
matter of law, did not violate the Equal Protection Clause. We
review a district court's conclusion of law to determine whether it
is correct. Associated Students v. City of Missoula (1993), 261
Mont. 231, 234, 862 P.2d 380, 382.
Did the District Court err in applying the reasonable
relationship standard to its equal protection analysis of
the freeholder requirement contained in 5 85-7-1501, MCA?
Killingsworth's first assertion of error is that the District
Court erred in applying the reasonable relationship test to
determine whether the statutory freeholder requirement in § 85-7-
1501, MCA, violated his right to equal protection, He asserts that
restrictions on candidate qualifications impact on citizens
desiring to vote for that candidate and, as a result, that the
4
United States Supreme Court's voting rights cases applying the
strict scrutiny test are controlling here.
Because voting rights cases involve a fundamental political
right, the Supreme Court generally evaluates state legislation
apportioning representation and regulating voter qualifications
under the strict scrutiny standard. See Dunn v. Blumstein (1972),
405 U.S. 330, 342, 92 S.Ct. 995, 1003, 31 L.Ed.2d 274, 284; Kramer
v. Union School District (1969), 395 U.S. 621, 626-27, 89 S.Ct.
1886, 1889, 23 L.Ed.2d 583, 589; Reynolds v. Simms (1964), 377 U.S.
533, 562, 84 S.Ct. 1362, 1381, 12 L.Ed.2d 506, 527. Under that
standard, legislation is "unconstitutional unless the State can
demonstrate that such laws are 'necessary to promote a compellinq
governmental interest."' Dunn
-, 405 U.S. at 342 (emphasis in
original) (citation omitted).
As early as 1968, however, the Supreme Court recognized the
possibility of an exception to the general rule requiring strict
scrutiny in voting rights-related cases. In Avery v. Midland
County (1968), 390 U.S. 474, 88 S.Ct. 1114, 20 L.Ed.2d 45, the
Supreme Court observed that, while the Equal Protection Clause
prohibits states from distinguishing between citizens on an
arbitrary or invidious basis in regulating voter qualification or
apportioning representation, it does not necessarily prohibit all
such distinctions. Averv, 390 U.S. at 484. The Supreme Court
recognized that, in the event of a special-purpose unit of
government whose functions affect a distinct group of citizens more
than other citizens, a state might be allowed to give greater
5
influence to those citizens most affected. Avery, 390 U.S. at 483-
84. Subsequent to Avery, the Supreme Court determined that
freeholder requirements used to prevent minorities from
consideration for appointment to a general governmental board
violated equal protection under any standard of scrutiny; it did
not, however, "exclud[el the possibility that other circumstances
might present themselves in which a property qualification for
office-holding could survive constitutional scrutiny." Turner v.
Fouche (1970), 396 U.S. 346, 364, 90 S.Ct. 532, 542, 24 L.Ed.2d
567, 581.
Salyer Land Co. v. Tulare Water District (1973), 410 U.S. 719,
93 S.Ct 1224, 35 L.Ed.2d 659, presented the Supreme Court with the
issue foreshadowed in Averv and Turner. The case involved a water
storage district whose primary purpose was the acquisition,
storage, and distribution of water for farming. Salver, 410 U.S.
at 728. The costs of the district's projects were assessed against
land in proportion to the benefits received and service charges
were collectible from those receiving the benefit; in the event of
delinquencies in payment for such services, the charges became a
lien against the land. Salver, 410 U.S. at 729.
The plaintiff in Salver challenged the California statute
limiting the right to vote for water district directors to
landowners within the district on equal protection grounds. The
Supreme Court observed that the water district had some
governmental powers, but provided none of the general public
services ordinarily attributed to a governing body; it also
6
determined that the economic burdens of the district's operations
did not fall on residents per se, but affected primarily those
residents who owned land within the district's boundaries. Salver,
410 U.S. at 728-29.
On the basis of the "special limited purpose and . . . the
disproportionate effect of [the district's] activities on
landowners as a group," the Supreme Court concluded that
application of the strict scrutiny standard was inappropriate.
Salver, 410 U.S. at 728. The Supreme Court held that the
appropriate level of scrutiny for determining whether a statute
limiting voting for water district directors to landowners within
the district violated the equal protection clause was whether the
voting limitation was reasonably related to the state's objectives.
Salver, 410 U.S. at 730.
The Supreme Court confronted the issue again in Ball v. James
(1981), 451 U.S. 355, 101 S.Ct. 1811, 68 L.Ed.2d 150. The primary
purpose of the district in Ball was "the storage, delivery, and
conservation of water." -, 451 U.S. at 357.
Ball Like the district
in Salver, financial responsibility for the Ball district primarily
fell on subscribing landowners who were assessed on an acreage-
proportionate basis with the assessment becoming a lien on the
owners' land until paid; the u district differed from the
district in Salver, however, in that it also raised revenue through
the sale of hydroelectric power generated at the district's dams.
BallI 451 U.S. at 361-62.
-
In -I a class of registered voters who resided within the
Ball
7
district's boundaries, but who owned little or no land, challenged
the voter qualification statute. They alleged that limiting the
election of district directors to landowners, and apportioning
those votes according to acreage, violated their right to equal
protection. ~,
Ball 451 U.S. at 357. The class argued that the
district's ability to condemn land, levy taxes and sell electrical
power to essentially half the population of Arizona, and its
significant influence on environmental management within its
boundaries, had a substantial effect on all residents within the
district regardless of property ownership. Ball, 451 U.S. at 360.
The Supreme Court rejected this argument, relying on Salver.
The Supreme Court determined that while the district included
almost half of Arizona's population within its boundaries, supplied
power to half the state and met its operating costs with revenue
derived from its power generation, the differences between the
Salver and u districts were not constitutionally significant.
- I 451 U.S. at 365-66.
Ball The district did not exercise ordinary
functions of general government such as the imposition of ad
valorem property taxes or sales taxes, "the maintenance of streets,
the operation of schools, or sanitation, health, or welfare
services." -I 451 U.S. at 366.
Ball The district's water functions
were limited to storage, conservation, and distribution of water
based on land ownership. -, 451U.S. at 367.
Ball Finally, even the
district's hydroelectric power functions were only incidental to
the water functions which, as the parties had stipulated, was the
primary function of the district. - I 451 U.S. at 368-69. Based
Ball
on the special, limited purpose of the district, the Supreme court
determined that the appropriate standard of scrutiny was whether
the voting requirement was reasonably related "to its statutory
objectives." -, 451 U.S. at 371.
Ball
Similar to the districts in Salver and m, the establishment
and functions of irrigation districts in Montana relate primarily
to landowners and land within the district's boundaries. A
district can be created only by petition of sixty percent of the
title holders, in terms of both number and acreage, of irrigable
land in a proposed district. Section 85-7-101(l), MCA. Moreover,
the powers and duties of a district's board of commissioners are
strictly limited by statute, with the commissioners being
specifically authorized to:
construct and maintain the necessary dams, reservoirs,
and works for the collection and distribution of water
for the district . . . and do any and every lawful act
necessary to be done in order that sufficient water may
be furnished for irrigation purposes to all the lands in
the district . . . .
Section 85-7-1907, MCA. The entirety of the district's functions
relate to the providing of irrigation water to lands in the
district.
In addition, financial responsibility for an irrigation
district's operations falls entirely on the landowners and lands
within the district. Revenue for the operation of the district may
be raised through bond issues or special taxes or assessments
levied against the irrigable land within the district. Sections
85-7-2101through -2104, MCA. Any special tax or assessment levied
against the land becomes a lien against the land. Section 85-7-
9
2108, MCA.
Thus, like the water districts in Salver and Ball Montana
-r
irrigation districts are special, limited-purpose units of
government, the activities of which have a disproportionate effect
on landowners within such districts as a group. As a result, it is
appropriate to depart from the usual strict scrutiny applied to
statutes impacting on a citizen's right to vote and analyze the
freeholder requirement contained in 5 85-7-1501, MCA, under the
reasonable relationship standard.
In arguing for application of the strict scrutiny standard to
the freeholder requirement at issue here, Killingsworth contends
that this Court "wishe[dl to use" that standard in Sadler v.
Connolly (1978), 175 Mont. 484, 575 P.2d 51. Whatever we may have
"wished" to do, Sadler does not support application of the strict
scrutiny standard in the case presently before us.
Sadler involved an election contest over a city council seat
in which the district court ousted Sadler from the position because
he did not meet the statutory freeholder qualification. Sadler
appealed, contending that the freeholder qualification violated the
equal protection clause of the United States Constitution. Sadler,
575 P.2d at 53. We found persuasive the Supreme Court's reasoning
in Turner that it was unnecessary to determine whether the
freeholder requirement could withstand strict scrutiny. Sadler,
575 P.2d at 53-54; citing Turner, 396 U.S. at 363-64. Indeed, we
held that the freeholder requirement "bears no relation whatsoever"
to a person's ability to serve as a city council member. Sadler,
10
575 P.2d at 54. Nothing in Sadler supports application of the
strict scrutiny standard here.
We conclude that, because of the District's narrow function
and the disproportionate impact of its activities on landowners
within its boundaries, the appropriate level of scrutiny is whether
the freeholder qualification for commissioner bears a reasonable
relationship to its statutory objectives. We hold, therefore, that
the District Court did not err in applying that standard in its
equal protection analysis of the freeholder requirement contained
in § 85-7-1501, MCA.
Did the District Court err in concluding that the
freeholder requirement contained in § 85-7-1501, MCA,
bears a reasonable relationship to a legitimate state
interest and, therefore, does not violate the Equal
Protection Clause of the United States Constitution?
Killingsworth argues that the District court erred in
concluding that the freeholder requirement is reasonably related to
a legitimate state interest and, thus, passes scrutiny under the
Equal Protection Clause. He argues that the court failed to
identify a legitimate interest to which the freeholder requirement
is reasonably related.
While the District Court did not precisely articulate the
"legitimate state interest" on which its decision was based, it did
determine generally that the District commissioners' limited duties
relate to the delivery of water to, and the raising of related
revenues from, landowners within the District. Under such
circumstances, the District Court concluded that the freeholder
requirement for commissioners contained in § 85-7-1501, MCA, was
11
reasonably related to the fair and efficient functioning of the
District. We agree.
In Salver and u, the Supreme Court determined that statutes
limiting voting for directors of those water districts to
freeholders bore a reasonable relationship to a legitimate state
interest. It observed in both instances that the subscription of
land necessary to create the districts may not have occurred if
landowners were not guaranteed a dominant voice in the districts'
control. Salver, 410 U.S. at 731; u, 451 U.S. at 371. In
Salver, the Supreme Court also noted that funding for that district
was obtained solely from assessments against landowners.
"Landowners as a class were to bear the entire burden of the
district's costs, and the State could rationally conclude that
they, to the exclusion of residents, should be charged with
responsibility for its operation." Salver, 410 U.S. at 731.
Here, financial responsibility for the District falls solely
on the landowners within the District as a class. The District
commissioners are authorized to assess taxes against the land and
to issue bonds secured by the land within the District in order to
finance the District's operations. See § 85-7-2101, MCA.
Moreover, it is not unreasonable for Montana to rationally conclude
that landowners, who were required to pledge their land for the
creation of the District and who remain financially responsible for
its operation, should be given the responsibility for governing the
District as commissioners.
Killingsworth contends that the state interest underlying the
12
statutory freeholder requirement for commissioners is not
legitimate because lessees of property within the District--such as
himself--are forced to bear the financial burden for the District's
operation through rent payments. He argues that there is no
distinction between a freeholder directly responsible for levies by
the District and a renter who indirectly pays the levies as part of
a rental payment. This argument is not persuasive.
In Salver, the Supreme Court addressed the status of lessees
in an election scenario involving the freeholder status of voters.
While recognizing that lessees had an interest analogous to
landowners, it stated that, under the reasonable relationship level
of scrutiny, the test was whether any reasonable factual scenario
may be conceived which would allow California to deny the franchise
to lessees while granting it to landowners. Salver, 410 U.S. at
732. The Supreme Court expressed concern that permitting short-
term lessees to vote could lead to manipulation within the voting
process by owners of large tracts of land creating short-term
leases on behalf of loyal employees. Salyer, 410 U.S. at 732.
Landowners also might be less willing to subject their land to
levies supporting the district if the long-term operations were
subject to the influence of short-term lessees. Salver, 410 U.S.
at 732. Moreover, administration of the register of voters could
be difficult because leases need not be recorded. Under such
circumstances, the Supreme Court determined that lessees reasonably
could be denied the right to vote in elections for representation
on a water district board. Salver, 410 U.S. at 733.
13
Here, the District was initiated by landowner petition
pursuant to statutes which subjected the landowners' land to levies
and the issuance of bonds to finance the District and ensured that
only freeholders within the District could serve as commissioners.
Sections 85-7-2101 and 85-7-1501, MCA. Killingsworth, on the other
hand, does not own land within the District, but argues that his
month-to-month leasehold interest in one storage unit located
within the District should suffice in lieu of the statutory
freeholder requirement. As in Salver, landowners certainly could
be leery of subjecting the long-term operation and financial
integrity of irrigation districts, in addition to the assessment of
levies against their land, to the control of lessees with such
tenuous relationships to the districts' purposes and functions. In
order to foster creation and financing of the District via the
necessary subscriptions of land, the State of Montana could
reasonably decide that landowners would require a dominant voice in
the management of the District. For this reason, it is not
unreasonable for the State to achieve its goal by imposing a
freeholder requirement for irrigation district commissioners. We
need not further belabor the point related to landowner control
over management of the District, except to note that
Killingsworth's mere rental of one storage unit within the District
does not qualify him to even participate in the election of the
Division commissioner. See 5 85-7-1710, MCA.
Killingsworth again asserts Sadler as support for his
contention that freeholder requirements are unconstitutional
14
without regard to the nature of the governmental unit involved. As
discussed briefly above, Sadler involved a candidate for election
to the city council which is the general governing body of a
municipality. On that basis alone, Sadler is factually
distinguishable from the case before us involving a special,
limited-purpose governmental entity serving none of the functions
reserved for general governmental entities such as broad taxing
authority, street maintenance, sanitation, health, or welfare
services. As the Supreme Court noted in -I it is those
Ball
functions which are characterized as "the sort of governmental
powers that invoke the strict [one-person, one-vote] demands of
Reynolds." -I 451 U.S. at 366.
Ball
Finally, we observe that Killingsworth does not cite to any
case holding that voter or candidacy qualifications based on land
ownership for special districts such as the District before us
violate equal protection. Thus, we note only briefly that other
jurisdictions have applied the Salver rationale in upholding voter
qualifications for special district elections against equal
protection challenges. In Chesser v. Buchanan (Cola. 1977), 568
P.2d 39, for example, the Colorado Supreme Court rejected an equal
protection challenge by electors and residents of a tunnel
improvement district to a statute permitting only those who paid
personal property taxes within the year preceding the election to
vote for district commissioner. Because of the district's limited
authority involving construction and operation of the tunnel, in
addition to the assessment of costs against the landowners in
15
proportion to the benefits they received, the Colorado court
concluded that "a rational basis [existed] for limiting the
franchise to tax paying electors within the district." Chesser,
568 P.2d at 41. An Illinois appellate court reached the same
result in Goldstein v. Mitchell (Ill.App.2 Dist. 1986), 494 N.E.Zd
914. Since the district was created for the narrow purpose of
managing erosion and flooding problems, and costs of the district
were assessed against the land in proportion to benefits received
and constituted a lien against the land, the court determined that
the voting requirements were "adequately related" to the statutory
goals. Goldstein, 494 N.E.2d at 921.
We conclude that the statutory freeholder qualification. for
irrigation district commissioners, which provides landowners a
dominant voice in the management of irrigation districts, is
reasonably related to the legitimate state interest in creating and
operating those districts in which the financial responsibility
falls on the landowners within the district. Thus, we further
conclude that the freeholder requirement contained in 5 85-7-1501,
MCA, does not violate Killingsworth's right to equal protection
under the Fourteenth Amendment to the United States Constitution.
We hold, therefore, that the District Court did not err in setting
aside and voiding Killingsworth's election as commissioner of
Division 2 of the Missoula Irrigation District Board.
Affirmed.
We concur:
April 11, 1995
CERTIFICATE OF SERVICE
I hereby certify that the following certified order was sent by United States mail, prepaid, to the
following named:
Kevin R. Callaghan
HARRIS, CALLAGHAN & VELK
P.O. Box 7937
Missoula, MT 59807-7937
Alan F. Blakley
ATTORNEY AT LAW
218 East Front Street, Sui ite 200
Missoula MT 59807-7215
Richard R. Buley
TIPP & BULEY
P.O. Box 3778
Missoula, MT 59806-377b
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA