James v. Ball

PEIRSON M. HALL, District Judge,

dissenting:

Upon a study of the majority opinion and a close reexamination of the briefs of the parties, I cannot escape the conclusion that what the court is holding is essentially that the plaintiffs, solely because they are users, are entitled to participate in all of the benefits as owners in the management and the operation of the defendant District. I fail to find anything in any of the cases cited or any of those upon separate research to indicate any “constitutional protection” to the plaintiffs who are simply owners and renters of property and have no interest or obligation whatsoever, substantial or otherwise, in repaying the hundreds of millions of dollars which have been borrowed and are now owed by the District to enable the district to give the plaintiffs the water and electricity which the plaintiffs use. The sale of electric power by the District was authorized by Congress in 1906, 34 Stats. 117: 43 U.S.C. § 522, when it was necessary to or would help in development of the project. The plaintiffs cannot make a claim that development and sale of power was not, and is not, necessary for the water. The majority opinion disregards this preemption of power.

The nonagricultural owners, who are residents and state voters, are given the equal right to vote as the agricultural owners, proportionate to the acreage ownership. But the plaintiffs seek here to make the owner of one-eighth of an acre [50 X 100 lot] and the renter who owns nothing, the same right to participate in the management of the hundred million dollar business of defendants as the landowner of any 500 acres of agricultural land whose land has stood as security throughout the history of building the project and whose present share of lien for indebtedness is more than $3,000 an acre or a total of one and a half million dollars. The development of this project began 119 years ago in 1860. It became government operated after the Federal Reclamation Act of 1902. 32 Stats. 388: 43 U.S.C. § 371. To apply the same one man one vote to the Southern Califor*187nia Edison Company, for instance, would mean that user could have the same rights in management as the owner of $1,000,000 worth of stock.

Not only is there no provision in the Constitution, due process, equal protection or otherwise which suggests such a far-out result, but that is the logical result of the plaintiffs’ contention.

The plaintiffs allege no property damage of any kind, no personal inconvenience, no personal injuries, nor anything which is measurable in the equivalent of money. In fact, their claim is founded, according to their Opening Brief, page 1, upon the claims that the “District’s electric and water operations have an important and substantial effect and impact on their lives such that they are entitled to participate in district elections "on an equal basis with all qualified electors regardless of property ownership.” They ultimately actually seek a mandatory injunction, the equitable remedy which requires that the damage be great and irreparable.

The case, in my judgment, falls squarely within the holding of the Supreme Court in Salyer Land Co. v. Tulare Lake Basin Water Storage District, 410 U.S. 719, 93 S.Ct. 1224, 35 L.Ed.2d 659 (1973) and the Associated Enterprises, Inc. v. Toltec Watershed Improvement District, 410 U.S. 743, 93 S.Ct. 1237, 35 L.Ed.2d 675 (1973).

I will not attempt to improve upon the discussions concerning Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964); Phoenix v. Kolodziejski, 399 U.S. 204, 90 S.Ct. 1990 (1970); Hadley v. Junior College District of Metropolitan Kansas City, 397 U.S. 50, 90 S.Ct. 791, 25 L.Ed.2d 45 (1970); Cipriano v. City of Houma, 395 U.S. 701, 89 S.Ct. 1897, 23 L.Ed.2d 647 (1969); Kramer v. Union Free School District, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969); Avery v. Midland Company, 390 U.S. 474, 88 S.Ct. 1114, 20 L.Ed.2d 45 (1968); Jackson v. Metropolitan Edison Co., 419 U.S. 345, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974); and Hill v. Stone, 421 U.S. 289, 95 S.Ct. 1637, 44 L.Ed.2d 172 (1975) which are done by the Supreme Court in the Salyer case.

The furnishing of electricity for public use, whether done by a city or otherwise, is a proprietary business and not a municipal or state business. It is “vested with public interest” only in the sense that it can be regulated by the state, Nebbia v. New York, 291 U.S. 502, 54 S.Ct. 505, 78 L.Ed. 940 (1934), which it is. It is not naturally for the protection of use of all persons. It is conducted for those persons who use it and pay for it. Thus, it is unlike a street, a road, a sewer, a gutter, street lights and so forth. Moreover, the granting of this right of a customer to the control of the property to which one has contributed nothing merely because he is a customer raises the question as to whether or not that in itself is in violation of the clause prohibiting the taking of private property for public use without just compensation as well as the due process clause.

The plaintiffs (Plaintiffs’ Reply Brief, page 16) claim that the defendants are attempting to rely upon “undue deference to legislative schemes conceived of in days now gone by.” Yet they claim to depend upon the legislative schemes set forth in the Constitution which have been adopted in “days gone by,” more than 125 years before the defendants came into existence.

A detailed discussion of the controlling authorities in the case is as follows:

I. Equal Protection Claim

A. Applicability of Salyer Test

Appellants challenge the voter qualification requirements for election of District officials, claiming that these requirements violate the equal protection clause of the fourteenth amendment by invidiously discriminating against them and persons similarly situated who own less than one acre of real property.1

*188In Salyer Land Co. v. Tulare Water District,;410 U.S. 719, 98 S.Ct. 1224, 35 L.Ed.2d 659 (1973), plaintiff challenged the voting system for a water district that allowed only landowners to vote, with votes apportioned according to the assessed valuation of the land owned. Tracing the development of equal protection analysis of apportionment and voter qualifications in local elections, the Supreme Court observed that in cases invoking a rigid one person, one vote standard, the local entities involved exercised “general governmental power”2 or performed “important governmental functions.” 3 Id. at 727, 93 S.Ct. 1224. By contrast, the water storage district in Salyer, “although vested with some typical governmental powers, ha[d] relatively limited authority.” Its primary purpose was simply to provide for the acquisition, storage, and distribution of water within the district. It provided “no other general public services” such as schools, fire or police protection, buses, or roads. Moreover, the Court noted, the district’s actions “disproportionately affect landowners,” thus supporting limitation of the franchise to them. Id. at 728-29, 93 S.Ct. 1224.

By distinguishing the Tulare Water Storage District from the government bodies involved in previous representation decisions, the Court explicitly denied the applicability of strict one person, one vote equal protection analysis to such special districts. See Holt Civic Club v. Tuscaloosa, 439 U.S. 60, 68, 99 S.Ct. 383, 58 L.Ed.2d 292 (1978). The Court based this distinction largely upon its decisions in Hadley v. Junior College District, 397 U.S. 50, 90 S.Ct. 791, 25 L.Ed.2d 45 (1970) and Avery v. Midland County, 390 U.S. 474, 88 S.Ct. 1114, 20 L.Ed.2d 45 (1968).

Avery involved an equal protection challenge to the method of selecting Midland County, Texas, officials that gave disproportionate influence to voters in thinly populated districts. The Court stated the general rule:

When the State apportions its legislature, it must have due regard for the Equal Protection Clause. Similarly, when the State delegates lawmaking power to local government and provides for the election of local officials ... it must insure that those qualified to vote have the right to an equally effective voice in the election process.

390 U.S. at 480, 88 S.Ct. at 1118. The county argued that this rule should not extend to the county governing board because the board performed administrative rather than legislative functions. The Court noted, however, that the board possessed the “law-making power” “to make a large number of decisions having a broad range of impact on all the citizens of the county.” The board determined tax rates, equalized assessments, issued bonds, and allocated the county’s funds with broad statutory authority. The board also made “both long-term judgments about the way Midland County should develop — whether industry should be solicited, roads improved, recreation facilities built, and land set aside for schools — and immediate choices among competing needs.” Id. at 483, 88 S.Ct. at 1120. Given these broad powers, the Court concluded that the general rule should apply to the county board. Id. at 484-85, 88 S.Ct. 1114.

The county also argued that the extra influence of the thinly populated districts was justified because the county officers’ work “disproportionately concern[ed]” rural areas. Id. at 483, 88 S.Ct. 1114. Because *189the board possessed authority to make numerous decisions affecting all of the county’s citizens, the Court did not decide whether this claim, if true, would support apportionment “in ways which give greater influence to the citizens most affected . . . Id. at 484, 88 S.Ct. at 1120. Instead, the Court summarized its decision:

We hold today only that the Constitution permits no substantial variation from equal population in drawing districts for units of local government having general governmental powers over the entire geographic area served by the body.
This Court is aware of the immense pressures facing units of local government, and of the greatly varying problems with which they must deal. The Constitution does not require that a uniform strait jacket bind citizens in [designing] mechanisms of . local government suitable for local needs and efficient in solving local problems. .
Our decision today is only that the Constitution imposes one ground rule for the development of arrangements of local government: a requirement that units with general governmental powers over an entire geographic area not be apportioned among single-member districts of substantially unequal population.

Id. at 484-86, 88 S.Ct. at 1120-1121. (emphasis added).

Thus, Avery recognized the necessity for an escape from the “straitjacket” application of equal protection requirements when dealing with local government units lacking general governmental powers. This contemplated exception did not require the alternative justification for disproportionate voting rights argued in that case: that the exercise of the county officers’ powers had a disproportionate impact upon particular citizens.

The Court similarly decided Hadley, involving an equal protection challenge to apportionment that diluted plaintiffs’ votes for school district trustees. Though the Court opined that an exception to the strict application of equal protection requirements would be observed where a local body’s functions were “far removed from normal governmental activities and . disproportionately affect different groups,” 397 U.S. at 56, 90 S.Ct. at 795 (emphasis added), its analysis demonstrates that strict one person, one vote requirements will not be imposed when the first of these elements is absent. The Court stated:

Appellants . . argue that the junior college trustees exercised general governmental powers over the entire district and that under Avery the State was thus required to apportion the trustees according to population on an equal basis, as far as practicable. Appellants argue that . the trustees can levy and collect taxes, issue bonds . . . , hire and fire teachers, make contracts, collect fees, supervise and discipline students, pass on petitions to annex school districts, acquire property by condemnation, and in general manage the operations of the junior college . . . . We feel that these powers, while not fully as broad as those [in Avery], certainly show that the trustees performed important governmental functions [which] have sufficient impact throughout the district to justify the conclusion that . . . Avery should also be applied here.
. [W]e see nothing in the present case that indicates that the activities of [the] trustees fit in [the Avery exception]. Education has traditionally been a vital government function, and these trustees are governmental officials in every relevant sense of that term.

Id. at 53-54, 56, 90 S.Ct. at 794-795 (emphasis added). Thus the Court concluded that the exception enunciated in Avery was inapplicable solely because the officials in Hadley possessed vital and traditional governmental powers. Indeed, its conjunctive inclusion of the fact that these powers had an effect “throughout the district” appears as a prerequisite to application of the strict equal protection requirements of Avery, not to the availability of an exception from them.

*190Salyer reinforces this emphasis on whether the local body possesses “general governmental powers” and performs “important governmental functions.” The Salyer court explicitly relied upon Hadley and Avery in fashioning its exception to the strict one person, one vote standard. And although the Court noted that the Tulare Water Storage District also had a disproportionate impact on landowners, its reference to this fact in “not only, but also” fashion underscored its primary reliance upon the fact that the district lacked general governmental powers. I conclude that Salyer’s reference to disproportionate effect was not meant to expand the constitutional requirements of Avery and Hadley; the critical inquiry remains focused on whether the local body performs traditional general governmental functions. See Salyer, 410 U.S. at 727, 90 S.Ct. 791.

The Salt River District does not perform traditional general governmental functions. The legislature has defined the District’s purpose as securing water necessary to improve agricultural land. Ariz.Rev.Stat. § 45-903. See Uhlmann v. Wren, 97 Ariz. 366, 374, 401 P.2d 113, 124 (1965). The District’s powers are incidental to that task. Local 266 v. Salt River Project Agricultural Improvement & Power District, 78 Ariz. 30, 43, 275 P.2d 393, 402 (1954). This limited role does not entail the exercise of general governmental powers.

Moreover, though some municipalities furnish water and electric service, these functions are not traditionally governmental services. In another context, the Supreme Court has noted that “the supplying of utility service is not traditionally the exclusive prerogative of the State” and is not “traditionally associated with sovereignty.” Jackson v. Metropolitan Edison Co., 419 U.S. 345, 353, 95 S.Ct 449, 455, 42 L.Ed.2d 477 (1974). Cf. National League of Cities v. Usery, 426 U.S. 833, 854 n. 18, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976). And the Arizona Supreme Court has described the Salt River District as having business and economic rather than governmental purposes. Local 266, 78 Ariz. at 43, 275 P.2d at 402.

Finally, even if some publicly owned utilities can be compared to vital governmental services, this District is not such a utility. The Arizona Supreme Court has written of the District:

Most municipal corporations are owned by the public and managed by public officials. . . . Such is not the ease here. The public does not own the District. A governmental entity such as a city or town does not manage or benefit from the profits of this District. Instead the owners are private landholders. The profits from the sale of electricity are used to defray the expense in irrigating these private lands for personal profit. The public interest is merely that of consumers of its product, for which they pay. The District does not function to “serve the whole people” but rather the District operates for the benefit of these “inhabitants of the district” who are private owners.

Local 266, 78 Ariz. at 44, 275 P.2d at 402-03. (emphasis added).

In short, the District does not perform functions akin to those of general governmental bodies. Accordingly, the Salyer test and not the strict one person, one vote standard of equal protection is applicable in evaluating the District’s voter qualification requirements.

The District’s disproportionate impact upon District landowners strengthens our conclusion that the Salyer test should be employed here. Although the District’s policies affect electrical consumers both within and without the District’s geographical area as well as landowners within the District, both the legislative purpose and practical effect of the District’s activities disproportionately concern the landowners.

The Arizona legislature created the District to benefit landowners in the District. See Uhlmann, 97 Ariz. at 374, 401 P.2d at 118-19; Local 266, 78 Ariz. at 43, 275 P.2d at 402-03. For example, the District may sell surplus water and power to those outside the District in order “[t]o reduce the cost of irrigation, drainage and power to *191the owners of the lands in the district . Ariz.Rev.Stat. § 45-903(A)(7). Accordingly, revenues from electrical operations have been used to subsidize water functions. The parties characterize this subsidy to District landowners as equivalent in amount to dividends paid to common stockholders in electric utility companies. The parties’ concept of the District’s electric operations as a form of income for District landowners underscores the District’s purpose to benefit District landowners.

Just as landowners within the District benefit disproportionately from successful District operations, so too financial reverses of the District disproportionately affect them. Arizona state law provides that bonds issued by the District create liens upon the real property within the District. Ariz.Rev.Stat. § 45-1047(A). And a state statute specifically provides for raising District revenues by taxing the landowners in the District. Ariz.Rev.Stat. § 45-1014(B). Thus, District financial losses have a disproportionate effect on landowners. This potential liability is particularly significant since the Supreme Court in Salyer based its finding of disproportionate effect largely on the fact that Tulare Water District charges constituted a lien upon land within the district. 410 U.S. at 729, 93 S.Ct. 1224.

I conclude that the District’s actions disproportionately affect District landowners as a group in terms of District purposes, its successful operations, and the liabilities it may create. Thus, whether Salyer is read as emphasizing possession of general governmental powers, as we think proper, or as warranting consideration of the proportionality of effect as well, the challenge to the District’s electoral system must be evaluated according to the standards set forth in that decision.

B. Acceptability of District’s Voting System
In Salyer, the Supreme Court wrote: Even though appellants derive no benefit from the [strict one person, one vote] cases, they are, of course, entitled to have their equal protection claim assessed to determine whether the State’s decision to deny the franchise to residents of the district while granting it to landowners was “wholly irrelevant to achievement of the regulation’s objectives,” Kotch v. River Port Pilot Comm’rs [Commissioners], 330 U.S. 552, 556, 67 S.Ct. 910, 91 L.Ed. 1093 (1947).

410 U.S. at 730, 93 S.Ct. 1224, 1231. I find that the Salt River District’s voting scheme is not wholly irrelevant to the legislative objectives in creating the District.

In providing for the creation of the District, the Arizona legislature intended to assist landowners in irrigating their land. See Uhlmann, 97 Ariz. at 374, 401 P.2d at 118-19; Local 266, 78 Ariz. at 43, 275 P.2d at 402-03; Ariz.Rev.Stat. § 45-903. Vesting voting control in those landowners, thereby allowing them to control the agency designed to benefit them, is clearly not irrelevant to that legislative objective.

Moreover, in Salyer, the Supreme Court found that the California legislature “could quite reasonably have concluded” that landowners should be given control of the Tulare district because the district’s liabilities would fall upon the landowners in the form of liens upon their lands. 410 U.S. at 730, 93 S.Ct. 1224. Potential liabilities of the Salt River District also fall upon the District landowners as liens and tax assessments upon the land. Ariz.Rev.Stat. §§ 45-1047(A), 45-1014(B). The Arizona legislature, therefore, could similarly have reasonably concluded that the same landowners responsible for the District’s potential liabilities should have voting control of the District.

Appellants respond that all persons who use District water or electricity are interested in District policies. But as the Supreme Court wrote in Salyer:

No doubt residents within the district may be affected by its activities. But this argument proves too much. Since assessments imposed by the district become a cost of doing business for those who farm within it, and that cost must ultimately be passed along to the consumers of the produce, food shoppers in far *192away metropolitan areas are to some extent likewise “affected” by the activities of the district. Constitutional adjudication cannot rest on any such “house that Jack built” foundation, however.

410 U.S. at 730-31, 93 S.Ct. at 1231.

I conclude that the District’s voting system is not wholly irrelevant to the legislature’s objectives in creating the District. Accordingly, the system does not violate the equal protection provisions of the fourteenth amendment.4

II. Irrebuttable Presumption Claim

Appellants additionally claim that the District’s voting system impermissibly creates two irrebuttable presumptions: that only landowners are qualified to participate in District elections, and that individual interests in District matters are affected by the size of land holdings.

The Supreme Court has indicated that at times determination of eligibility for public benefits must be made on a case-by-case basis because generalized rules of eligibility inadequately reflect variations within administratively defined classes. See, e. g., Vlandis v. Kline, 412 U.S. 441, 452, 93 S.Ct. 2230, 37 L.Ed.2d 63 (1973). In the instant case, however, the underlying basis of appellants’ claim is not that individualized resolution of voter qualification is needed to reflect differences in voters’ interests. Instead, appellants argue that the present voting system deals unfairly with the entire class of small landowners and renters. Irrebuttable presumption analysis is not well suited for such claims.

Moreover, within the context of Supreme Court decisions dealing with irrebuttable presumptions, the presumptions embodied in the District’s voting system are acceptable. In Matthews v. Lucas, 427 U.S. 495, 509, 96 S.Ct. 2755, 2764 (1976), the Supreme Court instructed that

presumptions in aid of administrative functions, though they may approximate, rather than precisely mirror, the results that case-by-case adjudication would show, are permissible under the Fifth Amendment, so long as that lack of precise equivalence does not exceed the bounds of substantiality tolerated by the applicable level of scrutiny.

See Weinberger v. Salfi, 422 U.S. 749, 784, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975). Because we concluded earlier that the District’s voting system meets the standard of Salyer, the “applicable level of scrutiny” in the instant case, the presumptions implicit within that system are not impermissible. Indeed, the Supreme Court’s conclusion in Salyer that a voting system similar to the instant scheme was constitutional implies that the Arizona legislature may make precisely the kind of presumptions necessarily underlying such voting systems.

III. Class Action Certification

Appellants argue finally that the district court erred in refusing to certify the suit as a class action. The determination of class action status rests within the sound discretion of the district court. Montgomery v. Rumsfeld, 572 F.2d 250, 255 (9th Cir. 1978); Hornreich v. Plant Industries, Inc., 535 F.2d 550, 552 (9th Cir. 1976). Having reviewed the record, I cannot say that the district court abused its discretion. Moreover, given my rejection of appellants’ claim that the voting statutes are unconstitutional on their face, the denial of class certification, even if improper, could not have infringed the rights of plaintiffs or members of the purported class.

I would affirm the lower court in all respects.

. The district court granted summary judgment in favor of the District. Summary judgment may be granted “ ‘only where there is no genuine issue of any material fact or where viewing the evidence ... in the light most favorable to the adverse party, the movant is clearly *188entitled to prevail as a matter of law.’ ” Captan v. Roberts, 506 F.2d 1039, 1042 (9th Cir. 1974). See Fed.R.Civ.P. 56.

Here the parties have stipulated to the facts. Such stipulations conclusively establish the material facts they contain. United States v. Huston, 547 F.2d 104, 107 (9th Cir. 1976). Our task, then, is to determine whether the district court reached the proper legal conclusion in granting summary judgment.

. E. g., Phoenix v. Kolodziejski, 399 U.S. 204, 90 S.Ct. 1990, 26 L.Ed.2d 523 (1970); Cipriano v. City of Houma, 395 U.S. 701, 89 S.Ct. 1897, 23 L.Ed.2d 647 (1969).

. E. g., Hadley v. Junior College District, 397 U.S. 50, 90 S.Ct. 791, 25 L.Ed.2d 45 (1970); Kramer v. Union School District, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969).

. Appellants suggest that corporations are unconstitutionally denied the right to vote in District elections. I conclude below, § IV infra, that the District court did not abuse its discretion in refusing class certification. Because the plaintiffs are all noncorporate individuals, “the [corporate] claim of these petitioners falls squarely within the prudential standing rule that normally bars litigants from asserting the rights or legal interests of others in order to obtain relief from injury to themselves.” Warth v. Seldin, 422 U.S. 490, 509, 95 S.Ct. 2197, 2210, 45 L.Ed.2d 343 (1975). See Construction Industry Association of Sonoma County v. City of Petaluma, 522 F.2d 897, 904 (9th Cir. 1975), cert. denied, 424 U.S. 934, 96 S.Ct. 1148, 47 L.Ed.2d 342 (1976). I therefore do not consider this contention.