SALYER LAND CO. v. TULARE WATER DISTRICT
Legal provision: Equal Protection
Argument of Thomas Keister Greer
Chief Justice Warren E. Burger: We’ll hear arguments next in number 71-1456, Salyer Land Company against Tulare Lake District.
Mr. Thomas Keister Greer: Mr. Chief Justice and may it please the Court.
This case is here on appeal from the United States District Court for the Eastern District of California.
Like the case which the Court just heard, it also involves the question of the franchise in a water district.
The Tulare Lake Basin Water Storage District comprehends approximately 193,000 acres, almost entirely in Kings County California in the Southern San Joaquin Valley.
There are nine water storage districts in California.
There is no magic in the word storage in the title.
It functions like an ordinary water or ordinary irrigation district.
The thing which sets a water storage district apart and the reason that these appellants are here today are two California statutes governing a suffrage in a water storage district.
The first is Section 41000 the Water Code.
It’s very short and clear into the point “Only the holders of title to land are entitled to vote at a general election” and the statute immediately following Section 4100, “Each voter may vote in each precinct in which any of the land owned by him is situated and may cast one vote for each $100 or fraction thereof, worth of land.”
The appellants, plaintiffs below include a large land owner.
A Salyer Land Company Farms approximately 28,000 acres of land in the district and about another 28,000 immediately outside.
It includes a small landowner Harold Shawl has one-half interest in 65 acres in the district.
It includes a nonlandowning resident, Lawrence Allison who is 67 years of old, has resided, has worked in the district.
It’s stipulated in the record that he is actively interested in water matters, subscribes the water publications.
Interested in water as is any normal human being in this part of California can’t vote.
Chief Justice Warren E. Burger: What’s the high and the low of these two large and small voters that you mentioned on the $100?
Mr. Thomas Keister Greer: The J. G. Boswell Company, Mr. Chief Justice, owns some 61,000 acres in the district.
I think it leases an additional 8 or 10,000 acres. It farms approximately 40% of the district and has about 40% of its water.
The -- there are some landholdings that are down to lessen -- to less than 20 acres.
I think there are 189 landowners in the district who own about 2.34% of the acreage.
They own up to 80 acres of piece.
So there is a pattern of a good many small landowners and four large landowners.
One of which is that the appellant Salyer Land Company.
Chief Justice Warren E. Burger: Then who -- how many votes did they get under this farm?
Mr. Thomas Keister Greer: The J. G. Boswell Company gets 37,835 votes.
There is an exhibit in the record, the voting list of the last election that was held in the district.
The only election has been held in the district in 25 years.
A special election is called import by my client and that voting list is a source that information 37,825 votes for that one company.
Now, these appellants attack these statutes in the court below and they were both sustained.
The majority sustained each statute, Circuit Judge Browning concurred in the exclusion of residence.
He didn’t think there was enough governmental impact to justify giving the ballot to residents but he dissented on the waiting of the franchise.
Circuit Judge Browning wrote a good and lengthy opinion.
He couldn’t go along with a notion of granting one vote for each $100.
Mr. Chief Justice and members of the Court, to gain a notion of what this country looks like, there is an aerial photograph which is exhibit 1 following page 66 in the appendix.
This district is divided into 11 divisions which brings up what is to me most -- one of the most interesting facets of the case and in its present posture.
Each division is represented by a director.
The directors are supposed to be chosen at these biennial elections which are held.
Now, the plaintiffs below, when they filed their suit, of course the complainant set forth in the appendix, also attacked the manner in which the divisions had been created.
The manner, I should say, in which they have been maintained because the assessed valuation in one of the divisions was as low as $600,000 in assessed valuation of one of my clients, Reid Sawyer was $2 million.
And we said that among the other things we said at any rate, there are to be some equity in the way these are setup according to assessed valuation.
And we got a unanimous ruling of the court below on that.
The all three judges said that these divisions would have to be withdrawn so that they represented the same number of dollars.
The decisions may be considered unique in that extent and would seem to enunciate a doctrine which I might call, one dollar one vote.
Justice Harry A. Blackmun: That issue is not here?
Mr. Thomas Keister Greer: No, sir. Mr. Justice Blackmun, while the district -- while insisting in the court below vigorously insisted that it wasn’t a governmental unit and are continuing to insist that in the briefs before this Court did not file a cross-appeal.
Now, I don’t mean to belabor the point but the court below relied on the Equal Protection Clause and said that those unequal divisions didn’t consist with equal protection.
It had defined, it’s a necessary credit to the decision, that the district had to be a governmental unit for to invoke the Equal Protection Clause as in the other decisions of this Court involving a disparity in the size of districts like the Hadley case or the first case in which this Court met the local governmental issue, the Avery case, Midland County, Texas and we think that since there has, since the Court did rule that way, and since there has been an appeal that the issue of a governmental nature of this district, I can establish it to you without this but we respectfully submit that it maybe the law the case.
Justice Byron R. White: Well, isn’t your opponent’s brief stand the judges below on any ground he wants to even if it was rejected in the lower court?
Mr. Thomas Keister Greer: Well, I think my point Mr. Justice White is that the court below had to say that this is a governmental district in [Voice Overlap].
Justice Byron R. White: I know, but he says it isn’t. His position was rejected below.
Mr. Thomas Keister Greer: To that extent, yes sir.
Justice Byron R. White: Yes, but can he sustain?
Mr. Thomas Keister Greer: I wouldn’t want to foreclose him from any argument you might wish to make but I just say that it occurs to me that the governmental, the nature of district below maybe -- may have been adjudicated without appeal.
Mr. Chief Justice, members of the Court, there are 77 residents unless they be landowners, they can’t vote.
I have mentioned Lawrence Allison.
I said a little bit about the landowners, they are 307 all of them together.
I have mentioned that there are 11 divisions; six of those 11 divisions are controlled by the J. G. Boswell Company with those 37,825 votes.
Two of the divisions are controlled by the Appellant Salyer Land Company.
Two are controlled by another corporation, West Lake Farms and one by South Lake Farms.
Now, the rigidity of that control is made very express in this record.
The Frist (Inaudible) of the district based on 1967, based on my guess 25 years is still present today.
Mr. Louis T. Robinson told the California District Securities Commission in 1967, “I know you shouldn’t forecast elections and that causes me a little hesitancy to say what I’m going to say.”
The 11 divisions in this large farming operation are completely controlled.
You are going to have the same 11 directors on Tuesday that you got today with one exception.
One of the directors is having some health trouble, he is going to be replaced but other than that they are going to be the same 11 directors and he continued (Inaudible).
I have no concern about the election.
Suddenly, if a new board of directors would come in, why then I have nothing but opinion but I have no concern about the election.
The 11 divisions are controlled by people with enough votes, put back the same electors, they have the same directors they have now including the two Sawyers had been sitting at this time, they’ll be returned, the other nine will be returned.
Now, what Mr. Robinson says about an election requires some explanation and I opt to say in the response to a question asked by Mr. Justice Marshall in the preceding argument that the California Water Code provides these elections shall be conducted in all respects as our elections governed by the Elections Code, that’s Section 41367 of the Water Code.
These are supposed to be bona fide public elections without curtaining, without secret ballot upholding and everything else.
And the legislature intended that there would be one every other year.
Section 41300 of the Water Code says an election known as the General Water Storage District Election shall be held in each district on the first Tuesday in February in each odd numbered year, that which a successor shall be chosen to each officer whose term expires in March next thereafter.
Mr. Chief Justice, the last election, the last general election this district presented 1947.
Justice William H. Rehnquist: We have a remedy under state law if you object to that.
Mr. Thomas Keister Greer: There is a provision that 15% of the land owners can call a special election, that election which we called in 1967.
Justice William H. Rehnquist: Does Salyer have that 15%?
Mr. Thomas Keister Greer: No.
Well, I beg your pardon.
Yes, just about 15.9% but we were joined in certainly any other -- of the other people out there joined with us.
West Lake Farms, I think joined us.
And that is the only election and this has made manifest in the record.
That’s the only election which has taken place since 1947.
There is no motive for an election.
Votes already been counted.
An election --
Chief Justice Warren E. Burger: Are you telling us that that’s the reason no election is held is because anyone knowing all the facts, will know the outcome of the election?
Mr. Thomas Keister Greer: I suspect Mr. Chief Justice, that that is true.
I read my good friend and the opponent’s brief in this case.
And he said in defending this system, he said that I’m quoting from him on page 27 “one good test” he said “of an electoral system is artwork’s natural operation.
In the way this one works in actual operation as there hasn’t been a general election for a quarter of a century.”
Chief Justice Warren E. Burger: We’ll resume there after lunch.
Mr. Thomas Keister Greer: Thank you sir.[Noon Recess]
Chief Justice Warren E. Burger: You may resume Mr. Greer.
Mr. Thomas Keister Greer: Mr. Chief Justice, may it please the Court.
This case and the case which the Court just heard, deal with special districts.
The view of these appellants is that in determining whether or not the voting rights cases should apply to a special district.
The crucial question is, but what is the district concern?
Tulare Lake Basin Water Storage District is concerned with water.
And the control of the water in an agriculture -- in an agricultural area is the control of everything.
I seem to recall that the Ancient Greeks spoke of the four basic elements of among others as earth, water and fire.
This one is water.
Now there are myriad of special districts in California, I suppose in most states.
For example, California has Mosquito Abatement Districts.
We wouldn’t have brought this case here from California to determine a question, the franchise in the Mosquito Abatement District.
But to show the enormous impact of this district, the enormous governmental impact.
Consider first at the very beginning Section 43158 of the California Water Code.
Now a question was asked in the preceding argument, does this district -- the district then involved acquire any rights just by the virtue of being formed?
This one does, and I quote the statute “All waters and water rights belonging for the state within the district are given dedicated and set apart for the uses and purposes of a district.”
Justice William H. Rehnquist: What typically, what water rights would belong to the state in a district such as this so they come within the definition?
Mr. Thomas Keister Greer: There would probably be a number of filings of the Director of Finance on the four streams going into Tulare Lake, the Kings, the Kern, the Tule, and the Kaweah Rivers.
Some of them might be in court on a number of might be vested rights if there would be a large number of potential on proscriptive, appropriative, and riparian rights.
Justice William H. Rehnquist: And the state in effect says that the district takes over for the state in that instance?
Mr. Thomas Keister Greer: Yes.
The language was given, dedicated, and set apart for the uses of the district.
Now, the Attorney General of California was asked in 69, what the nature was of this particular district.
The district did have a major flood and it was getting ready to apply for some federal funds and it requested an official Attorney General opinion to submit to the Federal Government on the nature of the district.
The opinion of the California Attorney General is set forth on pages 17 and 18 of the district -- of the appendix and as referred to again on page 61 and the crucial part is this.
This is an answer to your quest for an opinion -- for our opinion on the status of the Tulare Lake Basin Water Storage District as a political subdivision of the State of California.
I have concluded that water storage districts are considered political subdivisions of the state.
The Attorney General cited the leading case, Glenn-Colusa Irrigation District against Ohrt, 31 Cal. App. 2d 619.
And that case contains a very explicit statement of the governmental nature of these districts and also sets forth a very clear distinction between this district on the kind of district that was involved in the case which the Court just heard.
As I read the decision of the Wyoming Supreme Court in the Towtek (ph) case.
The case went off only proprietary nature of the district.
The court used the proprietary and said that that was a proprietary type district.
The Glenn-Colusa case cited as I say by the Attorney General of California and the leading case says this, “State agencies such as irrigation or reclamation districts are agencies of the state whose functions are considered exclusively governmental.
Their property is state-owned, held only for governmental purposes, they own no land in the proprietary sense.”
Now this district has the problem in domain.
It has it, not at exercises.
Its assessments are lands on all land of district.
It’s covered by the special statutes in California governing the immunity of governmental agencies.
There is a special system in California whereby governmental agency can validate its actions to follow suit, to validate a contractor, devote in anything else it does, to get an interim judgment against the world and its -- when its final, its transactions can never be questioned.
A very useful procedure and when it’s a great deal used.
This district has the privilege of using that procedure, Section 860 and following Sections of the California Code of Civil procedure.
This district in a lawsuit filed in Federal Court and for us to know the same court that we’re here today from, the Eastern District California intervened parens patriae in a case which was filed on the issue of acreage limitations.
And said that it had the right to appear parens patriae in behalf of the entire Tulare Lake Basin and we submit that if there is anything which is of a governmental nature, it’s appearing parens patriae.
Mr. Justice Douglas in the case of Georgia against Pennsylvania Railroad back in 1945, who did Mr. Justice Holmes in the case of Georgia against Tennessee Copper Company, saying that that was quasi-sovereign.
This district owned its application to the Federal Government in closing that opinion from the Attorney General that $234,000 in federal funds.
We are told in the briefs of this gentleman opposing us and the amici curiae have insisted on this, all the bills are plead by the landowners.
The landowners didn’t pay that bill.
The -- every citizen in that district had an equal interest in that federal money $234,000 and the rest is nevertheless have not the right to vote.
Justice William H. Rehnquist: Well, counsel on the last case observed it lucky.
He’s gotten a lot of federal money too.
And that presumably that didn’t give the right of every resident in the lucky board of directors.
Are you saying that receipt of federal money is determinative in this case?
Mr. Thomas Keister Greer: No, I say Mr. Justice Rehnquist that it indicates the governmental nature of the district and it also refused the notion that all the financing comes from the lands, that’s all I say.
Justice William H. Rehnquist: Well but the Federal Government does give up money on occasion or a loan money to non-governmental entities, doesn’t it?
Mr. Thomas Keister Greer: Well, if in this particular instance, a statute under which it proceeded was a statute limiting grants to governmental agencies for road repair, dam repairing and that sort of thing fallen by disaster.
This was under the Office of Emergency Preparedness for relief of governmental agencies which had suffered disasters.
Now, the power of this district that I think is the most important is flood control.
The gentleman opposing me and the amici have said, well this district concerns property.
It doesn’t concern people at all. It exists to serve property.
It doesn’t do anything of interest to people and one of the briefs said none of the residents are interested in or affected by anything that this district does.
Second, the -- this matter of flood control jurisdiction is the immediate reason why the appellant Salyer Land Company determined to attack the weighted voting system.
And I would like to speak very briefly about the legal history of flood control and water storage districts.
The Act was passed in 1921.
The declarations of policy are in Section 58 of the Act, Stat. 1921, c. 914 at page 1766.
The expression of prevention of flood is found twice in the paragraph and spoken off as a purpose necessary to the accomplishment of a purpose that is indispensable to the public interest.
Now, the water storage district law was codified in 1951 based on the Water Code and those declarations of policy were omitted to superfluous.
But flood control is still specifically referred to in Section 44001 and telling the purposes which the district may operate that they cooperate in contract with the districts with the state of California or the Federal Government.
It says, for the following purposes, construction, acquisition, purchase, extension, operational maintenance of works through irrigation, drainage, storage, and flood control.
The leading case in California on water storage districts is Tarpey against McClure.
The statute was passed 1921.
A suit was immediately filed to try to get the legislation declared invalid.
The California Supreme Court in Tarpey which was decided two years later in 23 held that the Act was valid.
One of the reasons urged for its invalidity was that contrary to the California Constitution, it embrace more than one subject and the California Supreme Court which deals with water all the time were told that it has decided over 3,000 cases dealing with water law said this.
What they said was, they said the flood control and irrigation are two sides of the same point.
They said that that’s all one subject.
The actual language of the Court is as follows.
The conservation of water by means of flood control work is to restrain flood waters which otherwise, it overflow the land and go to waste.
And incident there to, the reclaiming of the lands which otherwise reveal were floated rendered useless, the storage and distribution of such water purposes, irrigation all seems to us to be so legitimately and eminently connected one with another as not to constitute different subjects within purview of the Constitution.
It may be said that in these respects, the Act Test with a single object to wit, the better control and utilization of water.
Now, this district drew out its career until one time carried out extensive flood control jurisdiction.
Exhibit 5 is a 1953 Report from the present district that goes on for 20 or 30 pages on all the flood control things that it is done.
And I have excerpt it and then printed in a trial -- a printed trial brief re-filed below.
All the matters that pertained to flood control are not in the appendix but they are in a readily accessible form, should the Court wish to see it.
Finally, my learned friend, opposing Counsel Mr. Newell stated in his trial brief, a printed trial brief filed in the court below, that this district he represents is “an agency authorized by the North California to engage in a reclamation of water to reflect protection, drainage and irrigation works.”
And I therefore take it that the flood control jurisdiction of this district is no longer a matter that’s open to question.
That brings me to the major floods of the last 20 years which have led to this litigation.
Tulare Lake Basin Water Storage District occupies a dry lake.
It’s dry in normal years, their dams on all four, all four the streams, the Kings, the Kern, the Tule, and the Kaweah.
But in an extraordinary year, in a flood year, water comes into the district.
Water overflows this rich farmland and in 1906, 1917, 1938 -- 1937, 1938, 1952 and 1969, some more or greater portions of the district were flooded.
1906 was a legendary year and so was 1969.
88,000 acres of the district land is flooded in 1969.
Well now, they can tell when it’s going to be a flood year.
The -- they can see the snow packed up on the mountains and the engineer say that water content is very high and snow pack is much ever unusual, we are going to have a flood.
Buena Vista Lake has a capacity of 235,000 acre feet.
It’s on Kerr County on the Kerr River south of Tulare Lake.
The relation between them is shown on exhibit 4 which is printed in the appendix.
Always, when it’s evident that there is going to be a flood on the Kern River, Tulare, the people of Tulare Lake and the people in this district have notified the governing powers of Buena Vista Lake take your flood water before you turn it down on us.
The record is clearly made on that.
In the appendix, there is -- there’s excerpt from the minutes showing that in 1952 --
Chief Justice Warren E. Burger: What page if --
Mr. Thomas Keister Greer: Beginning at page 41 Mr. Chief Justice.
Chief Justice Warren E. Burger: Thank you.
Mr. Thomas Keister Greer: There is a reference to consulting Engineer Hardy who was a professor, a very eminent professor and his eminence was stipulated too in the record, a leading authority on water matters in the San Joaquin Valley who told this district in effect your about to have a major flood.
Now, Buena Vista Lake should fill the flood water of the Kern River before it comes down here to Tulare Lake.
Tulare Lake is still going to take flood water from three rivers.
And so in 1952, they passed a resolution and it carried unanimously.
It says so right here on the merits which are in the appendix.
To have put those people on notice in the name of this district and the president was authorized to write a letter in the name of Tulare Basin Water Storage District to tell Buena Vista Lake to take that Kern River flood water before they turn it down on us.
Take 235,000 acre feet of it.
The notice was given on 1952.
Incidentally that was another example of the district exercising its flood control jurisdiction.
Well now, the notice was given on 52 and it was acquiesced.
They couldn’t have done anything else.
The geology of the San Joaquin Valley as such no one would claim that Kern River water should go anywhere other than into Buena Vista Lake first as higher up on the River.
Well 17 years went by.
Another major flood was on its way in 1969.
The same situation exactly obtained except with one difference.
One crucial difference in that 17-year-period to wit in the year 1956, the J. G. Boswell Company had at lease all the Buena Vista Lake.
Well now, that wasn’t the legal difference.
That wasn’t the geological difference.
That wasn’t any difference at all as far as the law is concerned but it made an enormous difference in the 1969 flood, and that’s why I’m here today.
The appendix gives the whole story.
Three reclamation districts, smaller units which are shown on the exhibit 3 printed in the appendix, petition this district.
“Please put Buena Vista Lake on notice again.”
A 1,100,000 acre feet of water was on its way to Tulare Lake.
A 1,100,000 acre feet of water, I think actually another 69,000 came to Tulare Lake in the year 1969 and the district was formally petitioned by resolutions drawn by other public bodies notified Buena Vista Lake as you did before.
Those 1952 notices have been effective and they have not been ignored.
There was a meeting of this district on March 4, 1969.
The entire minutes are in evidence as exhibit 6 and portions to the minutes are excerpted in the appendix.
There were 10 directors present, normally 11 but one of them had just died and there had have been a time enough yet to fill his vacancy.
Six of them were associated with the J. G. Boswell Company.
A motion was made fully set forth in the appendix to again give Buena Vista Lake interest notice, a motion -- the motion was made and it was immediately moved that that be tabled.
One Boswell Director moved that it be table in another second, and at that point, counsel appeared for the Boswell Company and what he said is in the minutes.
It’s -- the excerpt is given on page 48 of the appendix.
That is a remarkable statement.
Able counsel for the Boswell Company was Mr. Clauster and the minute state as follows.
Attorney Clauster at this point made disclosure for the record as the association of six of the directors of the J. G. Boswell Company indicating in some detail their stock ownerships and employee affiliations.
And then he gives the six directors and he said stated further that he advised these directors, they were not disqualified to vote on the Buena Vista matter.
The motion to a table carried 6-4, Buena Vista Lake was given no notice in 1969.
One-fifth of the water that came into that lake -- into Tulare Lake in 1969 should have been at Buena Vista.
The crest to the water was 192.5, the residences, most of them, you can see from the topographical map which is exhibit 2 and 3 are both topographical maps, are around 177.
The level of that water was 15-1/2 feet over the homes.
Had a levee broken, those homes had been flooded.
Chief Justice Warren E. Burger: Thank you Mr. Counsel, this is an important, to flush that out this will enlarge your friend’s time.
Mr. Thomas Keister Greer: Oh, thank you sir.
The level of the water was 15-1/2 feet higher than the homes in the district.
Had a levee broken and it was just a nip or tuck matter as to where the north central levee have been held.
There are 60 some persons who would have been an imminent danger of dying from a wall of water, 15-1/2 feet over the heads and these appellants respectively submit that those persons would have been interested in and affected by such a development.
Chief Justice Warren E. Burger: Now that you mentioned that in an emergent terms was this wall that would come suddenly or gradual rising of the water?
Mr. Thomas Keister Greer: It would depend on whether a levee have reached.
Now, typically when a levee goes, the pressure behind it is so great that there is no -- it happens all at once.
Chief Justice Warren E. Burger: Nothing gradual about it?
Mr. Thomas Keister Greer: Sir?
Chief Justice Warren E. Burger: Nothing gradual about it?
Mr. Thomas Keister Greer: No sir not at all.
The water is there and it’s at a very high level.
Justice William H. Rehnquist: Is the district suable at tort in -- under California law?
Mr. Thomas Keister Greer: There is a very complex system relating to governmental immunity in California.
We filed an action which there is exhibit dealing with it to remove the six Boswell directors.
We wanted to get some relief definitely and I’m -- I have to say to the Court that I did not have much success with that case.
It has been pending on the merits since October of 1969 and has become moot by virtue of the election of these directors over again, the reason that we follow the present proceedings.
Justice William H. Rehnquist: Supposing any of these homes had been washed out as a result of claimed, negligence, or misconduct on the part of the directors.
Would the district have been liable for a suit in tort?
Mr. Thomas Keister Greer: I think yes.
I think the tort cause of action could have been stated.
I mentioned that though to show the interests of the residents in the authorities of the district because that water was higher than it otherwise it would have been because of the Boswell records preventing us from giving notice to Buena Vista Lake.
Thank you sir.
Chief Justice Warren E. Burger: Thank you Mr. Greer.
Mr. Newell we’ll enlarge your time if you need it.
Argument of Robert M. Newell
Mr. Robert M. Newell: Mr. Chief Justice, thank you.
May it please the Court.
Let me take the last point of the first because that seems to be the motivating force behind this litigation.
The fact that the Buena Vista Lake is subject to a flood servitude is disputed.
That is not a fact that this Court can take for granted.
Indeed, the most learned treaties I ever read on the subject was written by Mr. Greer when he represented the interest who preceded the J. G. Boswell Company and leasing Buena Vista Lake which includes there is no flood servitude.
That’s not a matter that this Court can take for granted.
It can take for granted however what’s in the record.
And in their brief, it’s just a footnote but the Court should note that this famous meeting in 1969 as indicated on page 28 of the appellant’s reply brief.
The general counsel of the district advised the district it did not have the power to bring the lawsuit.
The request was not to put Buena Vista Lake on notice.
It was a request to bring an action for an injunction which will represent a potential liability to this district as several million dollars that they lost.
Now this district can function over through the device of a district project.
It’s important to understand its limited capacity.
It isn’t the public district that can wheel and deal on governmental matters anytime it wants to.
It can only act so that device of a district project.
There is no district project that would born up the expenditure of that much money and that general counsel of the district advised the district of that fact on that day.
Both Mr. Greer and I were present at the meeting.
Maybe that can be disputed but the matter of flood servitude in Buena Vista Lake is not something that involves the constitutional question in this Court, in my judgment.
We’re dealing here with a district that operates to its district projects, four of which have been enacted in this district.
That’s the important election and then to enact the district project requires the majority of the value of the land and a majority of the landowners voting.
And in our -- in the appendix, we have put for the Court, placed for the Court defendants exhibit R and S which are the ballots for the election on Project 4 which was a project to construct two laterals from the State Aqueduct to the west of Tulare Lake to the lake at a cost $2,500,000 and you vote twice, ballot A and ballot B, and to answer Justice Harlan’s questions to the prior case, these are formal elections conducted by board of election judges, secret ballot with all the formalities of any California election.
And the ballots are twofold, you cast one for the number of votes you have in relation to assess values and one as a landowner so that Tomas J. Amos whose land is assessed at $10 value for Project four has just as many votes on the second ballot as does the J. G. Boswell Company.
It’s not what a 38,715 to 1, its one to one, in that regard.
So the California legislature has provided adequate protection for the small landowner.
Now that doesn’t answer the matter of lessees and residents, we’ll get to that in a moment.
But I object and ask the Court to examine the simplistic and syllogistic reasoning by which counsel for the appellants would suggest this case be reversed as this.
(a) In Avery versus Midland County, Justice White’s opinion, it stated on effect that any time a state exercises power to a local instrumentality of government and whether a popular elections, the one man, one vote rule applies.
(b) The Tulare Lake Basin Water Storage District is a governmental entity, whatever that is.
Therefore, that the one man, one vote rule applies and that’s just not the case.
In the one man, one vote cases, this Court has decided involving local elections.
The elections of concerned matters of interest to all of the populist, schools, sewers, police stations, libraries in Kolodziejski versus Phoenix, matters of general interest to the populist, to the electorate.
And the Court has emphasized that.
I don’t know why I’m lecturing this Court as a decision but that does obtain.
And then secondly there is a statement that where the lien maybe is only on land but in fact the obligation is going to be paid by all of the citizens.
Now the Tulare Lake Basin Water Storage District is not that kind of an entity.
It is an entity created by a petition of land owners who can conduct projects for the benefit of the landowners and they pay for it exclusively.
Justice Byron R. White: Well, do you think the district has validly hold an election under a law that said that, half of the landowners may vote and half may not?
Mr. Robert M. Newell: No, I would not think so.
That would be an invidious discrimination against landowners.
Justice Byron R. White: And it has -- is that anything to do with the reinforcement cases, does it?
Mr. Robert M. Newell: I don’t think so.
Justice Byron R. White: Or one man, one vote?
Mr. Robert M. Newell: I do not --
Justice Byron R. White: The question is whether somebody has invidiously precluded from voting?
Mr. Robert M. Newell: No, I think there is a -- the preliminary question.
Justice Byron R. White: Well now how about my example.
Mr. Robert M. Newell: Well, can I ask the first question.
I would suggest this that the question is, is it a satisfactory classification to say that landowners can vote?
Justice Byron R. White: I got perfectly good question.
So it really isn’t a question to one man one vote, is it?
Mr. Robert M. Newell: I don’t think this case is.
Justice Byron R. White: Well, no it isn’t.
So it’s -- but it is a question whether somebody is validly or invidiously excluded from voting.
Mr. Robert M. Newell: No.
Justice Byron R. White: Well, you just asked me that question.
Mr. Robert M. Newell: I --
Justice Byron R. White: Is it a valid classification?
That’s the same question isn’t it?
Mr. Robert M. Newell: But there are two answers of the question and let me put to the -- the simple answer is, you look at the legislation to see if the classification is reasonable if anybody is invidiously excluded.
Justice Byron R. White: Alright and if it isn’t reasonable, it’s invidiously excluded.
Mr. Robert M. Newell: It’s a tautology if you say that.
Justice Byron R. White: And that so your question is, which is here as whether the vote maybe limited to landowner.
Mr. Robert M. Newell: That’s right but I think there is a preliminary question on the Equal Protection Clause and it’s this.
Whether State of California or any state permits a group of people, any segment of the population to bond together to accomplish a purpose that will concern them all?
Does the federal constitution and the Equal Protection Clause reach that kind of a determination.
Justice Byron R. White: Well, what if the vote here was limited -- every other landowner could vote.
Mr. Robert M. Newell: I would think you wouldn’t have the other landowners joining in the petition to form the district.
They’re not going to be in it.
This is the State of California, Justice White, has taken this device to induce landowners to form these districts.
A large landowner wouldn’t join in the petition unless he could be in it.
Justice Byron R. White: Well, I suppose the -- I suppose the district could be set up in a way that it didn’t accumulate votes based on acreage?
Mr. Robert M. Newell: I don’t think it could.
They petitioned to have their land formed and be in the district.
It’s a fairly complex procedure and you can petition have your land excluded.
I would think one of the easiest ways to be excluded was you are going to vote.
Justice Byron R. White: But you are automatically going -- can you automatically get out if you want it?
Mr. Robert M. Newell: Well, I would assume you would have petitioned to be in, in the first instance.
You would have joined with your neighbors to form the district.
Chief Justice Warren E. Burger: Are you suggesting a contractual type of obligation?
Mr. Robert M. Newell: No but they bond together under the statute to try to accomplish water -- improving their water system but it’s a voluntary thing.
The state doesn’t thrust this classification on them.
The land owners choose to do this.
Justice William H. Rehnquist: But an individual landowner can be involuntary included within the district?
Mr. Robert M. Newell: I don’t think so.
Justice Byron R. White: Well, in that case should go away then.
Mr. Robert M. Newell: It’s not a matter, that’s a matter of state law I think.
Justice Byron R. White: You mean if somebody petitions for a water improvement district to cover certain area that everybody within that area is not included if there is the right kind of a vote in the election.
Mr. Robert M. Newell: That everyone could be included but as a procedure they have the land excluded.
Justice William H. Rehnquist: But that’s discretionary with the board of directors of the district, isn’t it?
Mr. Robert M. Newell: Well, actually I think it’s heard by others than the board of director.
Justice William H. Rehnquist: But you don’t have a matter.
You cannot be excluded as a matter of right.
That’s the reason I feel fairly accomplished Arizona where I tried, has adopted California’s system in this and at least under our law, you could petition for exclusion but it was discretionary with the people who passed on that petition whether or not you would be excluded.
Mr. Robert M. Newell: I’m sure that’s true but I think it would be unusual that some dissident landowner would be included in and certainly was every other landowner that they wouldn’t form the district.
I don’t think.
But you misunderstand the California’s motivation in passing this law is to induce landowner, large landowners to form this kinds of districts.
Justice William H. Rehnquist: But if it’s just voluntary landowners, you don’t need a district.
You could do it by contract.
Mr. Robert M. Newell: No, you wouldn’t have the power of eminent domain.
For example they had to condemn the lands for the laterals to the State Aqueduct.
I mean, they have certain rights that are important in that regard.
But the district’s function is limited to projects that they are going to benefit the people in the district.
It would be --
Justice Byron R. White: You mean the landowner?
Mr. Robert M. Newell: The landowners, yes.
That was a Freudian slip.
The landowners, anytime I seen in the landowners have drawn.
Landowners in the district benefit the land.
It doesn’t engage in activities that are of general concern to the populous, to the voting public, to the electorate, whatever term you want to use for the public in a --
Justice Byron R. White: How about the lessees?
Mr. Robert M. Newell: The lessees of course, you’re interested at.
But the State of California has the right to determine how much of a unit of land will carry a vote.
And the relationship of the lessee to the land is contractual with the lessor.
It eased the negotiating power, he can get a proxy.
If he doesn’t, he can’t but that’s for the State of California to determine.
There’s nothing invidious about excluding them because the state may conclude in its wisdom that a lessees interest is --
Justice Byron R. White: Oh!
I agree if you -- I mean you certainly have solved the case if you start with the premise that you can tie the power to the land.
Mr. Robert M. Newell: That’s right.
Justice Byron R. White: Of course, this is over then.
Mr. Robert M. Newell: While we thought it was over in the court below.
Justice Byron R. White: Yes, I know.
Mr. Robert M. Newell: No, that’s right.
But I think that’s a matter of state court determination.
If you concede, in other words, when you say a lessee should be able to vote, you are conceding the validity of landowner voting and if that concession is made, I think it’s up to the state legislature if it exercise a sound discretion, and say we’ll know we’ll tie a vote to $100 of assessed valuation of land.
However, that land may be divided up between different people.
Justice Byron R. White: What is the -- what’s at issue here as to -- is the voting rights are at issue here?
Mr. Robert M. Newell: The challenge is, that lessees and residents, nonlandowning residents --
Justice Byron R. White: Both are at issue here?
Mr. Robert M. Newell: Yes, lessees and residents, nonlandowning residents, qualified voters who reside in the district.
Now let’s talk about that.
There are 77 people that live in this district, men, women and children.
Maybe, I don’t know how many of them if they are citizens.
We know Lawrence Allison is registered to vote.
He is the only one, the plaintiff, Lawrence Allison but as a matter of record as a registered voter.
In the appendix, there is a list where this people live.
66 of them are employed by one corporate farm, West Lake Farms.
You got 11 people spread it over and what you might say, well 165,000 acres.
I mean having the residence vote is if it will accomplish nothing.
Unless, you are going to tell the J. G. Boswell Company, “well now look, don’t worry, we’ll let this fellow up here in the corner cast a vote as much as yours and they can cost you $817,000.”
Well, that’s the democratic way.
It doesn’t make sense.
If you are going to accomplish the objective that the California Legislature has in mind and I think I can emphasize that too much that the legislature wants to encourage this type of arrangement to finance water improvements and it’s done it.
It’s done successfully in Tulare Lake Basin but they’ve only have four projects in its whole history which is 50 years now.
Chief Justice Warren E. Burger: It might help me.
I’m not sure, if I were to ask this hypothetical question.
If you have no such law as this at all, how would the authority be exercised which be up to the private individuals to form a cooperative on the one hand --
Mr. Robert M. Newell: Yes.
Chief Justice Warren E. Burger: -- or up to the state to move in and do it as a public works?
Mr. Robert M. Newell: It -- it have to be -- the individuals will just have to agree to do it as a matter of private contract but --
Chief Justice Warren E. Burger: In the state as a whole, it doesn’t have that much interest?
Mr. Robert M. Newell: Well, that the state has an interest in the improvement of the availability of water for irrigation purposes in California and has used lots of devices to do this.
Now, this is one way of encouraging people to bond together to take certain steps for this type of thing.
The concept storage by way of explanation, the Water Storage District Act was really passed for Tulare Lake in the first instance and the original Project One which is in the appendix was to – part of it was to acquire 18 sections of land and store this water that routinely flooded.
Justice Byron R. White: What was it?
It was a flood control project.
Mr. Robert M. Newell: No.
Well, in part, there was also -- that that would create a reservoir.
Justice Byron R. White: Yes.
Mr. Robert M. Newell: For the water to be used on the land.
Justice Byron R. White: But if there was private --
But it was partly flood control?
Mr. Robert M. Newell: Yes.
Justice Byron R. White: Which was an interest to, with good many people I suppose?
Other than landowners?
Mr. Robert M. Newell: Well there’s nobody there but landowners, Justice White.
Justice Byron R. White: Only 77 people.
Mr. Robert M. Newell: But 66 of them live on the high ground to the west.
They don’t get flooded.
11 of them live down the bottom and they get out.
They all live in --
Justice Byron R. White: I know but how about as an -- how about in the decision as to whether the former flood control project.
What about people -- just ordinary people nonlandowners who might get flooded.
Mr. Robert M. Newell: Well, I repeat there are no people like that in the district.
The 11 people who are -- not the 66 are all employed by Corporate Farms and live in corporate-own houses.
Those corporations on a calculated --
Justice Byron R. White: I know but I suppose they are likelihood -- their right is their own at least.
Mr. Robert M. Newell: Well the floods aren’t quite as --
Justice Byron R. White: Is there houses?
Mr. Robert M. Newell: This is not like the Johnson flood.
These floods are as Mr. Greer indicated.
They know when they are going to happen.
Usually the levees are cut rationally.
Cut in a certain given areas flooded and it takes a 15-foot wall of water doesn’t come dashing down the side like it starts and spreads gradually and builds up.
But usually the levees are cut.
Now, it gets competitive.
At the picture you will notice, plaintiffs -- I mean defendants exhibit R and S and the appendix shows the 88,000 acres of flood. Exhibit Q, pardon me.
And you’ll notice there’s a sharp line on the east and the west.
Well on north and south levee held.
The El Rico levee held in part to the east and if either -- if there were going to be more flooding, the people that are east of El Rico levee would hope that it held and that the other one went.
But there are no people involved really in this type of flood activity.
It’s dramatic but it just doesn’t exist as a matter of fact.
It’s mainly a district designed for this development of water sources but which is a -- which is amounted to really three things.
The Project One was aborted.
They didn’t buy the 18 Sections, depression came, there was a lot of dry years so it just went by the board.
The next projects involved buying storage space behind the reservoir on the flood control dams build after the lower and another one involved participating in flood control concerned with those dams and then there is Project Four to get the laterals to the district.
But the point -- I think the best analogy would be if you took the analogy of the school district case where the school was built solely for the use of the landowners.
No one else could use it.
And they used it and paid for in proportion to their land.
I -- it occurred to me in reading that decision that the Court might have reached the different conclusion were those the facts, which is the fact in a water storage district.
I repeat that when the state takes a group of people and says now you may voluntarily bond together to accomplish this specific purpose which the state legislature deems in the interest of that objective in this case of agricultural water development.
I don’t think that that gets to a point where there is an equal protection problem.
I don’t think it’s a classification.
It’s imposed by the state that gives the group of people an opportunity to do something much as you could form a private corporation.
Unknown Speaker: What if the law said a flood control district maybe formed by vote of the registered voters of this district and excluded and didn’t permit landowners to vote as landowners.
It’s just that they are registered voters they got to vote or not.
Would you think there would be an equal protection problem posed?
Mr. Robert M. Newell: I think that would be an unrealistic approach by a governmental -- by the legislature to solve a governmental problem.
There aren’t enough registered voters in the district to make any difference.
There aren’t anybody, there’s nobody there.
I mean, you’re not going to get people bonding together to form a cooperative venture if you have registered voters vote.
There aren’t enough, five or six people?
You take it you have each landowner cast one ballot and you do away with the weighted ballot.
As the appendix points out, there was an oil venture some years ago and what’s called the Homeland District which is the southeastern quadrant of the Basin Storage District and they saw a lot of participating interest in an oil well and they’ve got small acre which is there.
Two acres, ten acres only from an oil speculating deal, that group of people if you have one vote per landowner would effectively control the election.
Unknown Speaker: Well if that had been the scheme of the statute, would there be an equal protection problem?
Mr. Robert M. Newell: You mean, if landowners could vote one for one, you wouldn’t have had the district formed.
The large landowners would not join in that.
They wouldn’t participate.
Unknown Speaker: It might -- they might have voted in.
Mr. Robert M. Newell: Well, --
Unknown Speaker: They might get voted in and somebody might refused to let --
Mr. Robert M. Newell: Well, see it’s hypothetical in this instance but the California state legislature protected them from that, might arranging this very rational scheme.
They didn’t place that power and in the handful of small landowners.
In other words, we stand here stating frankly take a look at Project Four.
The question is posed in the brief.
They talked about Thomas J. Amos.
He only got one vote on ballot A. The J. G. Boswell Company got something over 38,000 votes on ballot A on Project Four.
Both Thomas J. Amos and the J. G. Boswell Company had one vote on ballot B.
They give the small landowner that negative protection but the assessment of the J. G. Boswell Company will pay it for Project Four as $817,000 and Thomas J. Amos paid $3.32.
I mean, we are dealing with a practical situation where the statutory scheme is designed to encourage landowners to expand substantial sums of money to improve their water rights.
Their water for agricultural purposes and it seems to me that it’s obvious as an original proposition that the state legislature could encourage this type of participation only with unlike little scheme such as the type they have here.
It’s a limited purpose district.
It doesn’t affect the public.
It affects these landowners and that’s all and the fact that someone might be a resident out there or an employee has very little to do with his participation in these complex projects.
All of this has been stated before and unless there is question, I have no --
Chief Justice Warren E. Burger: Would it be fair to analogize this to a cooperative which has been given by the legislature a special status for public funding purposes.
Mr. Robert M. Newell: I think so.
I think it could be analogized also to a private corporation in terms of voting responsibility.
It’s like that.
These people paid for all themselves for the devices that are limited.
They alone used this.
I again repeat, if suppose only this segment of the population used the school, a school would it be constitutional to limit voting on that particular device.
Justice Thurgood Marshall: But it does have eminent domain power.
Mr. Robert M. Newell: Yes, so does a privately owned public utility in California Justice Marshall.
That’s not any great indicia status.
It does have eminent domain but it cannot exercise that right of eminent domain except to the implementing power of the district project.
The directors, the failure to have routine elections of which are just a matter of some comment here exercise no significant governmental power.
They can’t do anything. Now, there should have been election in 1969 but as the transcript shows, the appendix shows, three of the deviations were wholly flooded, 100% flooded.
One was 56% under water and one was 28% under water and I can assure the Court at this perilous time, these people were not interested in the niceties of taking a polling booth on a style up there to have an election.
They have a polling booth in each precinct, each division.
It couldn’t be too serious.
Now there suppose to be an election in 1973, there has been no petition filed by anybody seeking one of these directorships.
No doubt because as Mr. Greer has indicated you don’t have campaigning in the political sense.
It’s different but there is no petition filed to have any election this year so the incumbent directors will continue on in accordance with the statute, California statute on the subject.
Chief Justice Warren E. Burger: In what respect could it be said that the 66 people on the one high ground farm area and the 11 people in the low lands pay or contribute to this?
Mr. Robert M. Newell: Well, they don’t pay at all.
Chief Justice Warren E. Burger: Only landowners are assessed to cost.
Mr. Robert M. Newell: Only landowners, that’s all and they’re assessed in accordance with the benefit conferred by a project.
It so happened that the projects that have been enacted have the board of assessment, I forget what they called them, but the commissioners have judged that it applied uniformly throughout the district.
So the assessment was equal for each taker of land.
There were no differentials but it’s possible that there could be but only land --
Chief Justice Warren E. Burger: You said, for each acre on the value of each acre?
Mr. Robert M. Newell: No.
Chief Justice Warren E. Burger: Is this one straight geographical?
Mr. Robert M. Newell: Yes, sir.
Project Four was $2,500,000 and there it was determined that there are 188,000 plus acres that were benefited by their project and that was assessed $13.32 per acre irrespective of the assess value of a particular acre.
You have variations and the assess value of acres as I indicated.
But this particular project was assessed uniformly.
Chief Justice Warren E. Burger: So if a man has a good many acres that are simply piles rocks with nothing growing on them he is still paying for it.
Mr. Robert M. Newell: If that had been the case, it so happens that the land in the district however, most of it is [Voice Overlap] except land if for roads or dikes or things from that kind.
Justice William H. Rehnquist: But the man with the pile of rocks being obligated to pay would be dependent upon a finding by the assessors but though that land did in fact benefit.
Mr. Robert M. Newell: That is correct.
There would be that and we assume that on that hypothesis, the board of commissioners which -- by the way none of them can own land in the district.
They are appointed.
They cannot own land in the district at all and I think one must be an engineer.
I forgot what the statute requires but they would make that determination and there’s a right of sort of an appeal on that where if there’s a dispute, one of the commissioners appoints two outside people and they set in a sort of a board of assessment review.
Presumably, a fair-minded assessment board would determine that there was no benefit to the pile of rock that he would pay nothing.
Chief Justice Warren E. Burger: But as the piles of rocks were in scattered about in the midst of rich bearable land, I take it that the assessors would downgrade the value.
Downgrade that benefit rather.
Mr. Robert M. Newell: Yes.
Chief Justice Warren E. Burger: I assumed in that situation, that sense it would reflect the value.
Mr. Robert M. Newell: Right.
And you’ll notice that in the appendix, we refer to the assess or in the brief we refer to the fact that like one acre has got a $60 or 8/10 of an acre is assessed at $60 and I think one acre is assessed at $10.
There are differentials in the assessment depending on the worth of the land but that would be different for the project.
The benefit is fixed there and determined.
Thank you very much.
Chief Justice Warren E. Burger: Very well, thank you gentleman.
The case is submitted.