Associated Enterprises v. Toltec Dist., 410 U.S. 743 (1973)

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Author: Justice Douglas

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Associated Enterprises v. Toltec Dist., 410 U.S. 743 (1973)

MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BRENNAN and MR. JUSTICE MARSHALL concur, dissenting.

I

For the reasons set forth in my dissenting opinion in Salyer Land Co. v. Tulare Water District, ante p. 735, I cannot agree that the voting provisions of Wyoming’s Watershed Improvement District Act pass muster under the Equal Protection Clause. Accordingly, I dissent.

At issue is Wyoming’s Watershed Improvement District Act, Wyo.Stat.Ann. §§ 41-354.1 to 41-354.26 (Supp. 1971). Appellee Toltec Watershed Improvement District was established as a result of a referendum held pursuant to this Act, May 12, 1969.{1}

The purposes of the Wyoming Act are

to provide for the prevention and control of erosion, floodwater and sediment damages, and the storage, conservation, development, utilization, and disposal of water.

Id. § 41-354.2. These are not purposes related only to special, narrow interests of landowners. As noted in the Salyer Land Co. case, flood control is a purpose that affects at least everyone in a watershed district, whether he be owner, lessee, or a resident not engaged in farming, grazing, or other agricultural activity.

In June, 1970, appellee sought a right of entry onto lands owned by appellant Associated Enterprises, and leased by appellant Johnston Fuel Liners, for the purpose of carrying out foundation studies for a dam site. When appellant Associated Enterprises resisted, Toltec sought to enforce its right of entry in state court. The trial court agreed with appellants that, if Toltec had been illegally formed, they would have a good defense to the asserted right of entry, but held against them on the merits, despite appellants’ objections that the referendum which authorized the creation of the watershed improvement district violated the Equal Protection Clause, the franchise being limited to property owners, and the votes being weighted by the amount of property owned. On appeal, the Wyoming Supreme Court affirmed.

I conclude that the presumption set out in Phoenix v. Kolodziejski, 399 U.S. 204, has not been overcome, for

[p]lacing voting power in property owners alone can be justified only by some overriding interest of those owners that the State is entitled to recognize.

Id. at 209. Here, the suggestion was made below that property owners are those "primarily concerned" with the affairs of the watershed district. But assuming, arguendo, that a State may, in some circumstances, limit the franchise to that portion of the electorate "primarily affected" by the outcome of an election, Kramer v. Union School District, 395 U.S. 621, 632, the limitation may only be upheld if it is demonstrated that "all those excluded are in fact, substantially less interested or affected than those the [franchise] includes." Ibid.

Other than the bald assertion by the court below that it "makes sense" to limit the franchise in watershed district referenda to property owners, there is nothing in the record to support the exclusion. Appellant Johnston is a lessee of land in the District. Why a lessee is "substantially less interested" in the creation of a watershed district than is a titleholder is left to speculation.{2} And mere speculation is insufficient to justify an infringement on the right to vote, a right which is "the essence of a democratic society," Reynolds v. Sims, 377 U.S. 533, 555.

Moreover, we recently stated that

a percentage reduction of an individual’s voting power in proportion to the amount of property he owned would be [constitutionally] defective. See Stewart v. Parish School Board, 310 F.Supp. 1172 (ED La.), aff’d, 400 U.S. 884 (1970).

Gordon v. Lance, 403 U.S. 1, 4 n. 1.

II

It is argued, however, that, unlike "units of local government having general governmental powers over the entire geographic area served by the body," Avery v. Midland County, 390 U.S. 474, 485, a watershed improvement district is

a special purpose unit of government assigned the performance of functions affecting definable groups of constituents more than other constituents,

id. at 483-484. The court below sought to make such an analysis.

The Avery test, however, was significantly liberalized in Hadley v. Junior College District, 397 U.S. 50. At issue was an election for trustees of a special purpose district which ran a junior college. We said,

[S]ince the trustees can levy and collect taxes, issue bonds with certain restrictions, hire and fire teachers, make contracts, collect fees, supervise and discipline students, pass on petitions to annex school districts, acquire property by condemnation, and in general manage the operations of the junior college, their powers are equivalent, for apportionment purposes, to those exercised by the county commissioners in Avery. . . . [T]hese powers, while not fully as broad as those of the Midland County Commissioners, certainly show that the trustees perform important governmental functions . . . and have sufficient impact throughout the district to justify the conclusion that the principle which we applied in Avery should also be applied here.

Id. at 53-54. (Emphasis added, footnote omitted.) Measured by the Hadley test, the Toltec Watershed Improvement District surely performs "important governmental functions" which "have sufficient impact throughout the district" to justify the application of the Avery principle. The District may: levy and collect special assessments, Wyo.Stat.Ann. § 41-354.13(A); acquire and dispose of property, § 41-354.13(b); exercise the power of eminent domain, § 41-354.13(C); and borrow money and issue bonds, § 41-354.13(E) -- all to exercise flood control. 41-354.2.

The lower court characterized these functions as "proprietary" in nature, rather than "governmental." But that is a meaningless distinction when control of public affairs is at issue. Cipriano v. City of Houma, 395 U.S. 701; Stewart v. Parish School Board of St. Charles, 310 F.Supp. 1172, 1176, aff’d, 400 U.S. 884. It is hardly to be argued that a public body with the power to take land by eminent domain, to issue bonds, to levy taxes, and to provide plans for flood control does not "perform important governmental functions."

It is also inconceivable that a body with the power to destroy a river by damming it, and so deprive a watershed of one of its salient environmental assets, does not have "sufficient impact" on the interests of people generally to invoke the principles of Avery and Hadley.

lt is said that there is a difference between an election to create a special purpose district and an election either to authorize the district to issue bonds or to elect district officers. In my view, such a distinction is not tenable.

Our exacting examination [of statutes which selectively distribute the franchise] is not necessitated by the subject of the election; rather, it is required because some resident citizens are permitted to participate and some are not.

Kramer v. Union School District, supra, at 629.

As we said in Hadley:

If the purpose of a particular election were to be the determining factor in deciding whether voters are entitled to equal voting power, courts would be faced with the difficult job of distinguishing between various elections. We cannot readily perceive judicially manageable standards to aid in such a task. It might be suggested that equal apportionment is required only in "important" elections, but good judgment and common sense tell us that what might be a vital election to one voter might well be a routine one to another.

397 U.S. at 55. The mere creation of the Watershed Improvement District subjects residents of the area to constraints. The District may condemn land without further electoral approval; and it has the power to finance improvements through special taxes levied against land to be benefited by the improvements without further electoral approval. While such assessments fall in the first instance on the landowner, lessees and tenants would be substantially affected, as well.{3} And its power to reshape or control the watershed and to provide flood control enable it to turn rivers into flumes or to destroy them by erecting dams to build reservoirs. Dams may be vital or they may be disastrous. The sedimentation rate in some areas is so fast as to reduce the life of dams to a few decades. Dams may destroy valued fish runs. Dams substitute a reservoir for a river and wipe out the varied life of a river course, including its wildlife, canoe waters, camping and picnic grounds, and nesting areas of birds. This reshaping of the face of the Nation may be disastrous, no matter who casts the ballots. The enormity of the violation of our environmental ethics, represented by state and federal laws, is only increased when the ballot is restricted to or heavily weighted on behalf of the few who are important only because they are wealthy.

The issues I tender are disposed of by the suggestions that the members of the Legislature of Wyoming passed the Act now challenged, that they represented the people of Wyoming, and that they could therefore put the landowners in command of the environmental problems tendered by this case. That would, of course, be true if the case presented no federal question. But adherence to Reynolds v. Sims and its progeny makes the federal rule dominant, viz., that important governmental functions may not be assigned to special groups, whether powerful lobbies or other discrete groups to which a state legislature is often beholden.

I would reverse the judgment below.

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Chicago: Douglas, "Douglas, J., Dissenting," Associated Enterprises v. Toltec Dist., 410 U.S. 743 (1973) in 410 U.S. 743 410 U.S. 746–410 U.S. 751. Original Sources, accessed January 22, 2020, http://www.originalsources.com/Document.aspx?DocID=4LALXD5WRXV1YTM.

MLA: Douglas. "Douglas, J., Dissenting." Associated Enterprises v. Toltec Dist., 410 U.S. 743 (1973), in 410 U.S. 743, pp. 410 U.S. 746–410 U.S. 751. Original Sources. 22 Jan. 2020. www.originalsources.com/Document.aspx?DocID=4LALXD5WRXV1YTM.

Harvard: Douglas, 'Douglas, J., Dissenting' in Associated Enterprises v. Toltec Dist., 410 U.S. 743 (1973). cited in 1973, 410 U.S. 743, pp.410 U.S. 746–410 U.S. 751. Original Sources, retrieved 22 January 2020, from http://www.originalsources.com/Document.aspx?DocID=4LALXD5WRXV1YTM.