Opinion
Review Granted and Transferred
to Court of Appeal
Dec. 20, 1990.
Previously published at 223 Cal.App.3d 507
Lawrence L. Hoffman, Philip A. Olsen and Hoffman, Lien & Faccinto, Tahoe City, for plaintiffs and respondents.
Paul M. Bartkiewicz, Sacramento, Stephen A. Kronick, and Bartkiewicz, Kronick & Shanahan, Sacramento, for real party in interest and appellants.
E. Mark Himelstein, H. Sinclair Kerr, Jr., and Sonnenschein, Nath & Rosenthal, San Francisco, for amicus curiae William J. Oudegeest.
DAVIS, Associate Justice.
In this appeal we hold Water Code section 30700.6 unconstitutional under the equal protection clauses of the California and federal Constitutions. (U.S. Const., 14th Amend.; Cal. Const., art. I, § 7.) That section is a special law and provides that only one designated landowner per parcel in the Sierra Lakes County Water District--regardless of his or her residency--can vote in a district election or be a member of the district's governing board of directors. BACKGROUND
The Fourteenth Amendment to the United States Constitution provides in pertinent part: "... [N]or shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
Water Code section 30700.6 provides: "Notwithstanding Section 30021 or any other provision of the law, in the Sierra Lakes County Water District every owner of real property within the district, but no others, may vote at elections for directors or otherwise. Such owners need not be residents of the district in order to qualify as voters. The last equalized county assessment roll is conclusive evidence of ownership of the real property so owned. Where land is owned in joint tenancy, tenancy in common, or any other multiple ownership, the owners of such land shall designate in writing which one of the owners shall be deemed the owner of such land for purposes of qualifying as a voter. [p] The legal representative of a corporation or estate owning real property may vote on behalf of such corporation or estate. As used in this section, legal representative means an official of a corporation owning real property or a guardian, executor, or administrator of the estate of the holder of title to real property who: [p] (a) Is appointed under the laws of this state. [p] (b) Is entitled to the possession of the estate's real property. [p] (c) Is authorized by the appointing court to exercise the particular right, privilege, or immunity which he seeks to exercise. [p] Before a legal representative votes at a district election he shall present to the precinct board a certified copy of his authority which shall be kept and filed with the returns of the election. [p] Every voter, or his legal representative, may vote at any district election either in person or by a person duly appointed as his proxy, but shall be entitled to cast only one vote. The appointment of a proxy shall be as provided in Section 35005. Elections shall be conducted pursuant to Article 1 (commencing with Section 35106) of Chapter 2, Part 4, Division 13. [p] This section shall not affect incumbent directors of the district, but in the event of a vacancy or upon the expiration of each present term, each such director, upon taking office or commencing a new term, shall be a voter as defined in this section."
The critical facts are not in dispute. The Sierra Lakes County Water District (Sierra) was formed in 1961 pursuant to the County Water District Law set forth in Water Code section 30000 et seq. In 1969 the landowner electoral system of section 30700.6 was enacted. (Stats.1969, c. 100, p. 221, §§ 1-2.)
All further references to sections are to the Water Code unless otherwise indicated.
See footnote 2, ante.
Sierra serves an area of 2520 acres, which is slightly under four square miles. Of this amount, 2153 acres (about 85 percent of the total acreage in the district) are still owned by the developer of the land within the district. (Ibid.) Sierra's service area includes the Serene Lakes development located near the Soda Springs Ski Resort in the Sierra Nevada Mountains. Sierra also provides services to the Royal Gorge Lodge and cross-country ski area.
Presently, there are 1056 parcels of land in the District, of which 1043 are residential lots each approximately one-quarter acre in size. Of the residential lots, 474 are improved with homes or cabins; the remaining 569 (or 55 percent of the total number of residential lots) are vacant. (Ibid.) District officials believe most of the homes and cabins are vacation homes. The number of year-round residents is unknown, but is estimated by plaintiffs to be around 200; Sierra contends the figure is substantially lower.
There are 68 registered voters residing in Sierra; 40 of these 68 are landowners within the district. By virtue of property ownership, 982 voters--including persons, corporations and personal representatives--qualify as voters in Sierra elections.
Although authorized under the County Water District Law (§ 30000 et seq.) to provide other services, Sierra presently furnishes only domestic water and sewage disposal. These two services are charged to the landowners. Owners of the vacant parcels pay standby charges. (Ibid.)
Sierra's revenues for the 1987-1988 and 1988-1989 fiscal years were $657,000 and $681,000 respectively. Approximately one-third of these amounts was derived from property taxes on Sierra land levied to retire general obligation bonds secured by that land. (Ibid.) Another one-third of these revenues was derived from water and sewer service charges for the respective years. (Ibid.) The remaining one-third was derived from connection fees, general property taxes, standby assessments, penalties and interest earned.
After being denied the opportunity to participate fully in the electoral process, Sierra residents Richard Bjornestad, Richard Clauser and Elizabeth Clauser (plaintiffs) petitioned for a writ of mandate and filed a complaint for injunctive and declaratory relief. Plaintiffs sought a declaration that section 30700.6 is unconstitutional under the equal protection clauses of the California and federal Constitutions (U.S. Const., 14th Amend.; Cal. Const., art. I, § 7) and unconstitutional under article I, section 22 of the California Constitution, which provides that "[t]he right to vote or hold office may not be conditioned by a property qualification." Plaintiffs also sought to postpone a Sierra board election scheduled for November 1989 and prohibit nonresidents from seeking election to the board. Additionally, Bjornestad and Elizabeth Clauser sought to become candidates for the board and voters in the board election; Bjornestad was foreclosed from the electoral process because he did not own land in Sierra; Elizabeth Clauser was foreclosed from participating because Richard Clauser was the single designated voter for the Clauser parcel.
The trial court ruled that section 30700.6 was unconstitutional under the equal protection clause of the federal Constitution.
DISCUSSION
Before we consider the constitutionality of section 30700.6, we must address two preliminary points raised by Sierra.
First, Sierra claims the trial court erred in issuing the Elections Code section 10015 writ of mandate postponing the November 1989 election. Under that statutory section, a writ of mandate is not to issue if it will substantially interfere with the conduct of the election. However, this part of the trial court's judgment was stayed and the November 1989 election took place as scheduled under the auspices of section 30700.6. This issue is therefore moot and need not be considered. (9 Witkin, Cal.Procedure (3d ed. 1985) Appeal, § 243, p. 249; Finnie v. Town of Tiburon (1988) 199 Cal.App.3d 1, 10, 244 Cal.Rptr. 581.) At oral argument, Sierra argued the issue was still alive on the following two grounds: (1) the trial court's order could be reinstated; and (2) the trial calendar priority of Elections Code section 10015 actions caused this matter to be litigated without the time for adequate factual development. As for Sierra's first point, our disposition does not reinstate the trial court's order. As for the second point, we remind Sierra that a declaratory relief action--which was also litigated below--is given trial calendar priority as well. (Code Civ.Proc., § 1062.3, subd. (a).) In any event, this case involves the constitutional issue of equal protection. As we shall see, all of the constitutionally relevant facts were presented and litigated below and are undisputed.
Second, Sierra contends the trial court erred in failing to require that certain indispensable parties be named and served in this case. (Code Civ.Proc., § 389.) These alleged indispensable parties are comprised of two groups: (1) two nonresident landowner candidates for the November 1989 board election; and (2) the 900-plus nonresident landowners who would be disenfranchised if landowner voting were deemed unconstitutional.
Code of Civil Procedure section 389 provides: "(a) A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. If he has not been so joined, the court shall order that he be made a party. [p] (b) If a person as described in paragraph (1) or (2) of subdivision (a) cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed without prejudice, the absent person being thus regarded as indispensable. The factors to be considered by the court include: (1) to what extent a judgment rendered in the person's absence might be prejudicial to him or those already parties; (2) the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; (3) whether a judgment rendered in the person's absence will be adequate; (4) whether the plaintiff or cross-complainant will have an adequate remedy if the action is dismissed for nonjoinder."
As for the first group, the issue is again moot because the November 1989 election took place as scheduled under section 30700.6 and the two nonresident landowners were allowed to run in that election despite plaintiffs' desire that their names be struck from that ballot. Consequently, we need not consider this issue. (9 Witkin, Cal.Procedure, supra, Appeal, § 243, p. 249; Finnie v. Town of Tiburon, supra, 199 Cal.App.3d at p. 10, 244 Cal.Rptr. 581.)
In support of its argument regarding the second group of alleged indispensable parties, Sierra relies on Ash v. Superior Court (1917) 33 Cal.App. 800, 166 P.
Ultimately, Code of Civil Procedure section 389 is a rule of fairness in procedure. (4 Witkin, Cal.Procedure (3d ed. 1985) Pleading, § 168, p. 200; Kraus v. Willow Park Public Golf Course (1977) 73 Cal.App.3d 354, 368-369, 140 Cal.Rptr. 744.) To require the joinder of 900-plus nonresident landowners in these proceedings--in light of the facts noted above--would stymie the assertion of important constitutional interests without any corresponding interest being served. That is not the intent of section 389.
With these preliminary issues resolved, we turn to the heart of this lawsuit: the constitutionality of section 30700.6's landowner requirement for the right to vote in a Sierra election and be a member of the Sierra board.
A. The Landowner Requirement for the Right to Vote
The first step in evaluating an equal protection contention is to determine the test to be applied in considering the validity of the classification. (Choudhry v. Free (1976) 17 Cal.3d 660, 664, 131 Cal.Rptr. 654, 552 P.2d 438; Fullerton Joint Union High School Dist. v. State Bd. of Education (1982) 32 Cal.3d 779, 798, 187 Cal.Rptr. 398, 654 P.2d 168.) Under the "compelling interest" test, the state must show the classification serves a compelling governmental interest and that the distinction drawn is necessary to further that interest. (Choudhry v. Free, supra, 17 Cal.3d at p. 664, 131 Cal.Rptr. 654, 552 P.2d 438; Dunn v. Blumstein (1972) 405 U.S. 330, 342-343, 92 S.Ct. 995, 1003-1004, 31 L.Ed.2d 274, 284-285.) Under the less demanding "rational relation" test, a classification does not deny equal protection if facts may reasonably be conceived to support it. (Choudhry, supra, 17 Cal.3d at p. 664, 131 Cal.Rptr. 654, 552 P.2d 438; McGowan v. Maryland (1961) 366 U.S. 420, 426, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393, 399.) In most equal protection cases, the rational relation test is used; however, in cases involving "suspect classifications" or "fundamental interests", the compelling interest test is employed. (Curtis v. Board of Supervisors (1972) 7 Cal.3d 942, 951-952, 104 Cal.Rptr. 297, 501 P.2d 537.)
The equal protection principle of "one person, one vote" plays the key role in determining which test applies here. That principle was established in the seminal decision of Reynolds v. Sims (1964) 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 and applied to the apportionment of state legislatures. Subsequently, the principle was extended to local government (Avery v. Midland County (1968) 390 U.S. 474, 484, 88 S.Ct. 1114, 1120, 20 L.Ed.2d 45, 53, [holding the principle applicable to county government officials who had general governmental powers over the entire county] ) and then to a special district--a junior college district. (Hadley v. Junior College District (1970) 397 U.S. 50, 53, 90 S.Ct. 791, 793, 25 L.Ed.2d 45, 49, [holding the principle applicable to junior college trustees who exercised general governmental powers and performed important governmental functions that had sufficient impact throughout the district].)
Interspersed amongst these cases was a trio of United States Supreme Court decisions employing the "one person, one vote" principle in the context of landowner voting schemes. (Kramer v. Union Free School Dist. (1969) 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583; Cipriano v. City of Houma (1969) 395 U.S. 701, 89 S.Ct. 1897, 23 L.Ed.2d 647; Phoenix v. Kolodziejski (1970) 399 U.S. 204, 90 S.Ct. 1990, 26 L.Ed.2d 523; see also Salyer Land Co. v. Tulare Water District (1973) 410 U.S. 719, Kramer involved a challenge to a New York statute that limited eligibility to vote in local school board elections essentially topersons who owned or leased taxable real property in the school district, or who had children enrolled in the district. (395 U.S. at p. 623, 89 S.Ct. at p. 1887.) Kramer held that in an election of general interest, voting restrictions other than residence, age, and citizenship must be analyzed under the compelling interest test. (Id. at pp. 625-627, 89 S.Ct. at pp. 1888-1890; see also Hill v. Stone (1975) 421 U.S. 289, 297, 95 S.Ct. 1637, 1643, 44 L.Ed.2d 172, 179.) Strict scrutiny was necessary, said the court, "because statutes distributing the franchise constitute the foundation of our representative society." (395 U.S. at p. 626, 89 S.Ct. at p. 1889.) The court in Kramer expressed no opinion on whether a state might limit the franchise to those " 'primarily interested' " in or " 'primarily affected' " by the election because the statute at issue was not sufficiently tailored to further those purposes. (Id. at p. 632, 89 S.Ct. at p. 1892.) In striking down the legislation, the court in Kramer noted that the fact that the school district was supported by a property tax did not mean that only those subject to direct assessment felt the effects of the tax burden. (Id. at pp. 631-633, 89 S.Ct. at pp. 1891-1893; see Hill v. Stone, supra, 421 U.S. at p. 295, 95 S.Ct. at p. 1642.)
In Cipriano, decided the same day as Kramer, the court invalidated a Louisiana statute limiting the franchise in local revenue bond elections to real property taxpayers. (395 U.S. at p. 702, 89 S.Ct. at p. 1898.) The bonds in Cipriano were to finance the extension and improvement of a city's utility system. (Id. at p. 703, 89 S.Ct. at p. 1899.) The court noted that the operation of a utility system substantially affects both landowners and nonlandowners. (Id. at p. 705, 89 S.Ct. at p. 1900.) Consequently, as in Kramer, the government had failed to prove that those excluded from voting were in fact substantially less interested or affected than those permitted to vote. (Id. at pp. 704-706, 89 S.Ct. at pp. 1899-1901.)
Finally, in Phoenix, the court invalidated Arizona laws that limited the franchise in general obligation bond elections to real property taxpayers. (399 U.S. at pp. 205-209, 90 S.Ct. at pp. 1992-1994.) The court stated that even where the government looks only to real property tax revenues for servicing general obligation bonds, the franchise cannot be restricted to landowners because the costs of taxes will normally be passed on in the form of higher rents and consumer prices. (Id. at pp. 210-211, 90 S.Ct. at pp. 1994-1995.) The court concluded that although landowners and nonlandowners have somewhat different interests in the issuance of general obligation bonds, nonlandowners are not substantially less interested in the issuance of such bonds than are landowners. (Id. at p. 212, 90 S.Ct. at p. 1995.)
That brings us to the line of United States Supreme Court decisions that addressed the issue posed but not resolved in Kramer: whether a state may limit the franchise to those " 'primarily interested' " in or " 'primarily affected' " by a particular election. (395 U.S. at p. 632, 89 S.Ct. at p. 1892.) This issue was also noted but not addressed in Avery and Hadley. (390 U.S. at pp. 483-484, 88 S.Ct. at pp. 1119-1120; 397 U.S. at p. 56, 90 S.Ct. at p. 795.) As Hadley explained: "It is of course possible that there might be some case in which a State elects certain functionaries whose duties are so far removed from normal governmental activities and so disproportionately [a]ffect different groups that a popular election in compliance with [the 'one person, one vote' principle] might not be required, ..." (397 U.S. at p. 56, 90 S.Ct. at p. 795.)
Such cases were found in Salyer Land Co. v. Tulare Water District, supra, 410 U.S. 719, 93 S.Ct. 1224, Associated Enterprises v. Toltec Watershed Improvement District (1973) 410 U.S. 743, 93 S.Ct. 1237, 35 L.Ed.2d 675, and Ball v. James (1981) 451 U.S. 355, 101 S.Ct. 1811, 68 L.Ed.2d 150.
In Salyer, the scheme for electing the directors of a California water storage district survived an equal protection challenge. The court in Salyer recognized that the district was vested with some typical governmental powers, including the power to hire and fire workers, contract for construction projects, condemn private property and issue general obligation bonds. (Id. at p. 728, n. 7, 93 S.Ct. at p. 1230, n. 7.) However, the court concluded that the district had "relatively limited authority" because its "primary purpose, indeed the reason for its existence, is to provide for the acquisition, storage, and distribution of water for farming" in the district. (Id. at p. 728, 93 S.Ct. at p. 1229.) The court also noted that the district's financial burdens could fall only on landowners in proportion to the benefits they received from the district. (Id. at pp. 729, 731, 93 S.Ct. at pp. 1230, 1231.) For these reasons, the Salyer court concluded: "[T]he ... water storage district, by reason of its special limited purpose and of the disproportionate effect of its activities on landowners as a group, is the sort of exception to the [one person, one vote] rule laid down in Reynolds which ... Hadley ... and the decision in Avery ... contemplated." (Id. at p. 728, 93 S.Ct. at p. 1229.)
Because the Salyer court deemed the one person, one vote principle inapplicable, it also deemed inapplicable Kramer's compelling interest test. (410 U.S. at pp. 730-731, 93 S.Ct. at pp. 1230-1231.) Applying the rational relation test, the Salyer court concluded that the California Legislature could reasonably have assumed that without voting power apportioned according to the value of their land, the landowners may have been unwilling to subject their lands to assessment liens which made the creation of the district possible. (Ibid.)
Toltec, decided the same day as Salyer, involved a landowner voting scheme apportioned according to acreage. (410 U.S. at p. 744, 93 S.Ct. at p. 1237.) Like the water storage district in Salyer, the watershed district in Toltec was determined to be a limited purpose one disproportionately affecting landowners; similarly, the equal protection challenge in Toltec fell victim to the rational relation test. (Id. at pp. 744-745, 93 S.Ct. at pp. 1237-1238.)
Ball completed the trilogy of landowner voting cases pertinent here. At issue in Ball was the constitutionality of a landowner voting scheme, apportioned according to acreage, for a large water reclamation district in Arizona. (451 U.S. at p. 357, 101 S.Ct. at p. 1814.) Unlike the water storage district in Salyer, the reclamation district in Ball exercised its statutory authority to generate and sell electric power and had become one of Arizona's largest suppliers of electricity. (Id. at pp. 357, 363-365, 101 S.Ct. at pp. 1814, 1817-1818.) Furthermore, unlike the Salyer district, which delivered water solely for agricultural use, the Ball district delivered roughly 40 percent of its water to urban areas or agricultural areas for nonagricultural use. (Id. at p. 365, 101 S.Ct. at p. 1818.) Finally, whereas all operating costs of the Salyer district were borne by landowners, most of the capital and operating costs of the Ball district had been met through its electric power revenues. (Id. at pp. 365-366, 101 S.Ct. at pp. 1818-1819.) Nevertheless, said the court in Ball, a careful examination disclosed that Salyer applied and the voting scheme was constitutional. (Id. at p. 366, 101 S.Ct. at p. 1818.)
This careful examination was centered on three factors. First, the district in Ball did not exercise the sort of governmental powers that invoke the one person, one vote principle. The district could not impose ad valorem property taxes or sales taxes nor could it enact any laws governing the conduct of its citizens. It also did not administer such normal governmental functions as the maintenance of streets or the operation of schools, or sanitation, health, or welfare services. (451 U.S. at p. 366, 101 S.Ct. at p. 1818.)
Second, even the district's water functions were relatively narrow. The district Finally, the size of the district's power business did not affect the legality of the landowner voting scheme. The court in Ball noted that the provision of electricity is not a traditional element of governmental sovereignty. Moreover, the parties had stipulated that the district's electric power functions were merely incidental to its water functions, which were the district's primary purpose. (451 U.S. at pp. 368-369, 101 S.Ct. at pp. 1819-1820.) The court also noted that only landowners were subject to land assessment liens to secure district bonds and subject to the district's acreage-based taxing power; and only landowners had ever committed capital to the district. (Id. at pp. 368, 370, 101 S.Ct. at pp. 1819, 1820.) The court applied the rational relation test and concluded the voting scheme was constitutional, largely for the reasons expressed in Salyer. (Id. at p. 371, 101 S.Ct. at p. 1821.)
Recently, the United States Supreme Court had occasion to characterize the essence of the Salyer-Toltec-Ball line of cases. In Quinn v. Millsap (1989) 491 U.S. 95, 109 S.Ct. 2324, 105 L.Ed.2d 74, the court invalidated, under the equal protection clause, a landowner requirement for membership on a public board charged with drafting a plan of municipal reorganization to be submitted to voters in a general election. In distinguishing the Salyer-line of cases, the court in Quinn stated: "Whereas it was rational for the States in those cases to limit voting rights to land owners [citations], the 'constitutionally relevant fact' there was 'that all water delivered by [those districts was] distributed according to land ownership.' [Citations]. The purpose of the board [here], however, is not so directly linked with land ownership." (491 U.S. at p. ----, 109 S.Ct. at p. 2333, 105 L.Ed.2d at p. 90.) The Quinn court also emphasized " 'the peculiarly narrow function of [the] local government body' " in Ball and that body's " 'special relationship' " to landowners. (Ibid. quoting Ball v. James, supra, 451 U.S. at p. 357, 101 S.Ct. at p. 1814.)
One California decision is of particular importance. In Choudhry v. Free, supra, 17 Cal.3d 660, 131 Cal.Rptr. 654, 552 P.2d 438, the California Supreme Court held that a landowner requirement for serving on the board of directors of the Imperial Irrigation District (§ 20500 et seq.) violated the equal protection clauses of the California and federal Constitutions. (17 Cal.3d at pp. 662, 668, 131 Cal.Rptr. 654, 552 P.2d 438.) The court used the compelling interest test in reaching this decision. (Id. at p. 668, 131 Cal.Rptr. 654, 552 P.2d 438.) Salyer was distinguished on three bases. First, the powers a California irrigation district may exercise are broader than the powers exercisable by a California water storage district, with which Salyer was concerned. (Id. at pp. 663, 667, 131 Cal.Rptr. 654, 552 P.2d 438.) Second, unlike a water storage district, assessments against land are not the sole means by which an irrigation district's expenses are paid; an irrigation district may collect charges for the sale of domestic water, electric power, and sewage disposal, and such charges are paid by both landowners and nonlandowners. (Id. at p. 667, 131 Cal.Rptr. 654, 552 P.2d 438.) Finally, there was a significant difference between the actual functions and effects of the Imperial Irrigation District and the water storage district in Salyer. (Id. at pp. 667-668, 131 Cal.Rptr. 654, 552 P.2d 438.)
The court in Choudhry limited its holding to the Imperial Irrigation District because other irrigation districts had not had the opportunity to express their views, and the Imperial Irrigation District had more residents, land and employees than any other irrigation district in the state. (17 Cal.3d at p. 669, 131 Cal.Rptr. 654, 552 P.2d 438.)
That brings us to the application of these cases to the landowner voting scheme of Sierra. Our first inquiry concerns Sierra's powers. In undertaking that inquiry, however, A greater reliance on authorized powers seems appropriate in this case where nonresident landowners of unimproved parcels hold the majority of voting power. Placing the focus on exercised powers would mean that these nonresident landowners--who by definition do not require many governmental services--could restrict the provision of services and then justify their perpetuation of power by arguing their district provides only limited services. That does not seem fair, especially where there is a meaningful segment of disenfranchised residents.
County water districts, like Sierra, have much broader powers than water storage districts (See Salyer, supra, [landowner scheme upheld] ) and somewhat broader powers than irrigation districts (See Choudhry, supra, [landowner scheme invalidated] ). (Cf. §§ 30000 et seq., 39000 et seq., 20500 et seq.) County water districts can: store, conserve, appropriate, and acquire water and water rights (§ 31021); operate water works (§ 31022); sell water and establish regulations for the sale, distribution and use of water (§§ 31023, 31024); fix and collect water rates (§ 31025); restrict the use of water, enact ordinances to implement restrictions and make the violation of the ordinances a misdemeanor (§§ 31026-31029); drain and reclaim lands (§ 31033); acquire, divert, store, and transport flood and storm waters (§ 31033); undertake water conservation programs and require that water-saving devices be installed (§ 31035); generate and sell hydroelectric power (§§ 31022.5, 31149.1, 31149.2); acquire, construct and operate sewage, waste, and storm water collection and treatment facilities and impose charges for such services (§§ 31100, 31101); adopt ordinances, subject to misdemeanor penalties, applicable to sewage collection and disposal (§§ 31105-31106); declare nuisances (§ 31103); acquire, operate and exercise the functions of a fire protection district, including powers to operate an ambulance service, and inspect buildings, issue citations and exercise peace officer powers related to fire prevention and suppression (§ 31120, 31121; see Health & Saf.Code, § 13851 et seq.); construct, maintain and operate recreational facilities and prescribe rules governing their use (§§ 31130, 31131); acquire, construct and operate garbage and waste collection and disposal facilities and prescribe and collect charges for such services (§§ 31135, 31136); adopt ordinances, subject to misdemeanor penalties, applicable to such sanitation services (§§ 31141, 31142); issue revenue bonds (§ 31030); issue general obligation bonds (§ 31370); take, hold and sell property (§§ 31040, 31041); and cause ad valorem property taxes to be levied at a rate the district fixes. (§§ 31650, 31700, 31701, 31702.1-31703.)
These are indeed broad powers. As noted by the trial court, county water districts' power to pass ordinances with penal provisions, to cause taxes to be levied, to issue bonds, and to provide domestic water, sewer, garbage, sanitation, electricity, fire protection and recreational services parallel many of the general governmental functions traditionally exercised by municipalities and constitute vital services to the residents of any area. By contrast, California irrigation districts (see Choudhry, supra, [landowner scheme invalidated]; § 22075 et seq.) which are vested with broader powers than California water storage districts (see Salyer, supra, [landowner Sierra contends, however, that it actually furnishes only domestic water and sewer services. But a county water district's primary purpose is to "furnish[ ] water to its inhabitants." (Glenbrook Development Co. v. City of Brea (1967) 253 Cal.App.2d 267, 274, 61 Cal.Rptr. 189, emphasis added.) The power to pass misdemeanor ordinances in the context of this primary purpose implicates important interests for county water district inhabitants. The chief function of an irrigation district, by contrast, "is to supply water for irrigation to landowners within its boundaries." (Rock Creek, etc., Dist. v. County of Calaveras (1946) 29 Cal.2d 7, 9, 172 P.2d 863, emphasis added.) One pre-Choudhry California appellate decision that upheld landowner voting for an irrigation district--Schindler v. Palo Verde Irrigation Dist. (1969) 1 Cal.App.3d 831, 82 Cal.Rptr. 61--intimated that its analysis may well have been different had the district actually been providing domestic water service. (Id. at pp. 835, n. 4, 839, 82 Cal.Rptr. 61; see also Johnson v. Lewiston Orchards Irrigation District (1978) 99 Idaho 501, 584 P.2d 646.)
Schindler found a compelling state interest in land reclamation through irrigation works to justify limiting the franchise to landowners who enjoyed the benefits and suffered the burdens of the irrigation district at issue. (1 Cal.App.3d at p. 839, 82 Cal.Rptr. 61.) The California Supreme Court, in Burrey v. Embarcadero Mun. Improvement Dist., supra, 5 Cal.3d at page 682, footnote 8, 97 Cal.Rptr. 203, 488 P.2d 395, noted that Schindler may be difficult to reconcile with the Kramer -line of cases, particularly Phoenix.
Sierra argues that an invalidation of its landowner voting scheme would unfairly disenfranchise 900-plus nonresident landowners so as to allow about 70 residents (of whom 40 are landowners) the electoral privilege. But those numbers nowhere near add up to the whole story. We simply fail to see how the provision of domestic water and sewer services, and the possible provision of garbage, fire, ambulance and recreational services, disproportionately affects nonresident landowners in comparison to permanent residents. Our difficulty is compounded given that the majority of nonresident landowners own unimproved parcels. The consistent theme of the Kramer -line of cases is that the disenfranchised class--to be valid under the equal protection clause--must be substantially less interested or affected by the results of the election than those who are entitled to vote. It cannot be said that nonlandowners who reside in Sierra are substantially less interested or affected by Sierra elections than are landowners, especially nonresident landowners of unimproved parcels.
Currently there are about 70 Sierra residents who are registered to vote. The total number of permanent residents is unknown; plaintiffs estimate the number at 200, but Sierra contends the figure is much lower.
The Salyer exception to the Kramer -line of cases is therefore inapplicable. The essence of Salyer is that landowner voting is permissible where the governmental unit is of "special limited purpose" and "disproportionate[ly] [a]ffects" landowners as a group. (410 U.S. at p. 728, 93 S.Ct. at p. 1229.) As we have seen, Sierra fails both of those tests.
We realize that Ball stretched the Salyer exception considerably. But the factors that led the court in Ball to apply the Salyer exception do not apply here. First, Sierra exercises or can exercise the sort of governmental powers that invoke the one person, one vote principle. Using the examples set forth in Ball, Sierra can cause the imposition of ad valorem property taxes and can enact laws governing the conduct of its citizens; it does administer such normal governmental functions as the operation of sanitation and health services--through its provision of domestic water and sewage services. (451 U.S. at p. 366, 101 S.Ct. at p. 1818.)
Second, unlike the district in Ball, Sierra's water functions are comprehensive. Sierra does own, sell and buy water, and does control the use of water it has delivered. In fact, Sierra can pass ordinances, Finally, the litany of statutory powers that are exercised or exercisable by Sierra are general and important governmental functions. And many of these functions are subject to misdemeanor ordinances that can be enacted by Sierra.
In passing, the Ball decision noted that the landowners there were the only ones subject to the district's acreage-based taxing power and to land assessment liens securing the district's bonds. (451 U.S. at p. 370, 101 S.Ct. at p. 1820.) Similarly, it is argued that the Sierra landowners face all the financial risk and put up all the money for that district's operation. We note, however, that one-third of Sierra's annual revenues is typically comprised of charges for water and sewer services. Although the landowners may be billed for these charges, the Phoenix decision and our common sense and experience tell us that these costs are often passed through in the form of higher rents and prices. (399 U.S. at pp. 210-211, 90 S.Ct. at pp. 1994-1995.) Furthermore, California county water districts have the statutory power to charge residential tenants for domestic water service. (§ 31007.5.) And unlike the disenfranchised citizens in Ball who merely purchased electricity as an incidental service of their district, the primary function of a California county water district is to "furnish[ ] water to its inhabitants." (Glenbrook Development Co. v. City of Brea, supra, 253 Cal.App.2d at p. 274, 61 Cal.Rptr. 189; emphasis added; Ball v. James, supra, 451 U.S. at pp. 368, 370, n. 19, 101 S.Ct. at pp. 1819, 1820, n. 19.)
In a 1989 unanimous opinion, the United States Supreme Court explained its Ball decision by noting that the reclamation district in Ball involved a " 'peculiarly narrow function' " and a " 'special relationship' " to landowners, and that the constitutionally relevant fact was that the district was "directly linked with land ownership." ( Quinn v. Millsap, supra, 491 U.S. at p. ----, 109 S.Ct. at p. 2333, 105 L.Ed.2d at p. 90.) The same cannot be said for Sierra. Furthermore, the "one parcel, one vote" landowner voting scheme of Sierra belies the claim that the district is fundamentally land-related; this scheme is not linked to the amount of land owned--instead it allows the designated landowner only one vote regardless of the number of parcels he or she owns.
Since we conclude the Salyer exception is inapplicable, the compelling interest test set forth in the Kramer -line of decisions applies.
The state proclaimed its interest in Sierra's voting scheme when it originally enacted section 30700.6: "The provisions of this section are necessary because a substantial portion of the land in the Sierra Lakes County Water District is owned by persons not resident within the district and the owners, and not the resident nonowners, are primarily concerned with the affairs and support of the district." (Stats.1969, c. 100, p. 221, § 2.) The state proclaimed essentially the same interest to justify the landowner voting scheme at issue in Burrey v. Embarcadero Mun. Improvement Dist., supra, 5 Cal.3d 671, 97 Cal.Rptr. 203, 488 P.2d 395. In finding that interest less than compelling, the Burrey court stated: "The Legislature's stated interest in excluding nonproperty owners is precisely the one rejected in Kramer, Cipriano and [Phoenix ]. In each of those cases, the state urged in justification of excluding nonlandowners the primary concern of property owners with the matters voted upon. In each case, the Supreme Court analyzed the interests of other residents and concluded that the interests of nonlandowning residents were such that they could not be deprived of their right to vote. [ ] As pointed out above, the residents of the EMID have at least as much interest in the affairs of the district as did the nonlandowning residents in those cases." (Id. at pp. 681-682, 97 Cal.Rptr. 203, 488 P.2d 395, n. omitted.) This passage, in light of our analysis above, aptly describes why section 30700.6 fails the compelling interest test. We realize that landowner voting may in some circumstances be necessary in the formative stages of a governmental district to ensure the development proceeds. (Burrey v. Embarcadero Mun. Improvement Dist., supra, 5 Cal.3d at pp. 682-684, 97 Cal.Rptr. 203, 488 P.2d 395; Cooper v. Leslie Salt Co. (1969) 70 Cal.2d 627, 75 Cal.Rptr. 766, 451 P.2d 406.) However, to be constitutional, such a voting scheme must transfer voting power in a coherent and correlative fashion to residents as they populate the developing district, at least if the district has somewhat general governmental powers. (Ibid.) Sierra will soon enter its fourth decade of operation and contains approximately 500 developed parcels, rendering a "formative stages" argument unpersuasive. And section 30700.6 does not even contemplate a graduated transfer of voting power from nonresident landowners to resident registered voters.
Sierra sees statewide chaos if we invalidate its voting scheme. It claims there are well over 300 "water districts" in California which have landowner voting. The flaw in Sierra's argument concerns its definition of "water districts." Sierra uses that term broadly, encompassing many districts with water functions that have significantly less statutory powers and effects than county water districts. Our research has disclosed there is only one other California county water district, operating under the County Water District Law, with landowner voting: Pleasant Valley County Water District in Ventura County. (§§ 30700.5, 30205, 30000.) It bears repeating that our holding in this sphere is simply that Sierra's landowner voting scheme (§ 30700.6) is unconstitutional under the equal protection guarantees of the California and federal Constitutions.
Because of our reliance upon the equal protection clauses, there is no need to inquire whether section 30700.6 violates article I, section 22 of the California Constitution which prohibits property qualifications on the right to vote.
B. The Landowner Requirement For Board Membership
Essentially, the reasons and precedents that lead us to invalidate section 30700.6's landowner voting scheme lead us to invalidate the same section's landowner requirement for board membership.
In Turner v. Fouche (1970) 396 U.S. 346, 90 S.Ct. 532, 24 L.Ed.2d 567, the high court used the equal protection clause to invalidate a requirement that members of a local school board own real property. The Turner court did not decide whether the compelling interest test applied because the court decided the requirement was not rationally related to any legitimate state purpose. (396 U.S. at pp. 361-364, 90 S.Ct. at pp. 540-542.) The holding in Turner was later used to strike down a local-property ownership requirement for membership on a local airport commission. (Chappelle v. Greater Baton Rouge Airport District (1977) 431 U.S. 159, 97 S.Ct. 2162, 52 L.Ed.2d 223.) In Choudhry, the California Supreme Court used the compelling interest test to invalidate a landowner requirement for board membership on the Imperial Irrigation District. (17 Cal.3d at p. 668, 131 Cal.Rptr. 654, 552 P.2d 438.)
Given the broad governmental powers exercised and exercisable by Sierra, we hold that the landowner requirement for Sierra board membership is incompatible with the rational relation test set forth in Turner and Chappelle. Sierra has focused on the landowner voting requirement and has not offered any distinctive interest for the landowner office-holding requirement. We cannot conceive of any. Consequently, the office-holding requirement, like the voting requirement, is unconstitutional under the equal protection clauses of the California and federal Constitutions.
DISPOSITION
The judgment is affirmed. The Sierra Lakes County Water District and its board of directors is to disregard section 30700.6 and to conduct a board election, and all future elections, in accordance with the Uniform District Election Law (Elec.Code, § 23500 et seq.), applicable Water Code sections, and the one person, one vote rule required by the equal protection guarantees of the California and federal Constitutions, as set forth in this opinion. As soon
CARR, Acting P.J., and MARLER, J., concur.
Article I, section 7 of the California Constitution provides in pertinent part: "(a) A person may not be deprived of life, liberty, or property without due process of law or denied equal protection of the laws; ..."