Ball v. James, 451 U.S. 355 (1981)

JUSTICE WHITE, with whom JUSTICE BRENNAN, JUSTICE MARSHALL, and JUSTICE BLACKMUN join, dissenting.

In concluding that the District’s "one-acre, one-vote" scheme is constitutional, the Court misapplies the limited exception recognized in Salyer Land Co. v. Tulare Lake Basin Water Storage District, 410 U.S. 719 (1973), on the strained logic that the provision of water and electricity to several hundred thousand citizens is a "peculiarly narrow function." Because the Court misreads our prior cases and its opinion is conceptually unsound, I dissent.

I

The right to vote is of special importance because the franchise acts to preserve "other basic civil . . . rights." Reynolds v. Sims, 377 U.S. 533, 562 (1964). It is presumed that "when all citizens are affected in important ways by a governmental decision," the Fourteenth Amendment "does not permit . . . the exclusion of otherwise qualified citizens from the franchise." Phoenix v. Kolodziejski, 399 U.S. 204, 209 (1970). Any state statute granting the franchise to residents on a selective basis poses the "danger of denying some citizens any effective voice in the governmental affairs which substantially affect their lives." Kramer v. Union Free School District No. 15, 395 U.S. 621, 627 (1969).{1} See Avery v. Midland County, 390 U.S. 474 (1968). As a result, any classification restricting the franchise, except those involving residence, age, or citizenship, is unconstitutional "unless the district or State can demonstrate that the classification serves a compelling state interest." Hill v. Stone, 421 U.S. 289, 297 (1975). See Kramer, supra, at 626-627; Phoenix, supra, at 209 (giving power to property owners alone "can be justified only by some overriding interest of those owners that the State is entitled to recognize").

This fundamental principle has been applied in a variety of contexts to invalidate discriminatory election schemes limiting the franchise, in whole or in part, to property owners. In Kramer, the Court found invidious a system for local school district elections which limited eligibility to those who either (1) owned or leased taxable realty in the locality; or (2) were parents or custodians of children enrolled in the local public schools. In Cipriano v. City of Houma, 395 U.S. 701 (1969), a case with particular relevance to the present action, the Court invalidated a state law which limited participation in a bond election for the support of a municipal utility system to property holders. The revenue bonds, secured by funds generated by the utility system itself, did not create any enforceable lien against any property in the city. Id. at 705. Noting that the impact fell on property and nonproperty owners alike, since all persons "use the utilities and pay the rates," the Court rejected the voting classification scheme disenfranchising nonproperty owners. Nor may the vote be limited to property owners in bond issuance elections with respect to general obligation bonds secured by property tax revenues. Phoenix, supra, at 209-213. See also Police Jury of Parish of Vermilion v. Hebert, 404 U.S. 807 (1971), summarily rev’g 258 La. 41, 245 So.2d 349 (cannot limit vote for road improvement bonds to property holders). The Court has thus rejected the view that, simply because property is directly burdened because of some governmental action, that fact alone justifies limiting the franchise to property owners where nonowners are also substantially affected. Hill, supra, at 299.

To be sure, the Court approved limiting the vote to landowners in electing the board of directors of a Water Storage District in Salyer Land Co. v. Tulare Lake Basin Water Storage District.{2} See Associated Enterprises, Inc. v. ToltecWatershed Improvement District, 410 U.S. 743 (1973). But nothing in Salyer changed the relevant constitutional inquiry. Rather, the Court held the Reynolds-Avery-Kramer line of cases inapplicable to the water district because of its "special limited purpose and the disproportionate effect of its activities on landowners as a group. . . ." 410 U.S. at 728 (emphasis supplied). Although the water district there involved exercised certain governmental authorities, its purposes were quite narrow. The Water Storage District was also found to have only an insubstantial effect on nonvoters. Only 77 persons lived within its boundaries, and most worked for one of the four corporations which owned 85% of the land within the District. On the other hand, the burdens of the District fell entirely on landowners, since all of the costs associated with the District’s projects were assessed against landowners in proportion to the benefits received. There was "no way that the economic burdens of district operations can fall on residents qua residents. . . ." Id. at 729.

An analysis of the two relevant factors required by Salyer demonstrates that the Salt River District possesses significant governmental authority, and has a sufficiently wide effect on nonvoters to require application of the strict scrutiny mandated by Kramer.

II

The District involved here clearly exercises substantial governmental powers. The District is a municipal corporation organized under the laws of Arizona, and is not, in any sense of the word, a private corporation. Pursuant to the Arizona Constitution, such districts are

political subdivisions of the State, and vested with all the rights, privileges and benefits, and entitled to the immunities and exemptions granted municipalities and political subdivisions under this Constitution or any law of the State or of the United States.

Ariz. Const., Art. 13, § 7. Under the relevant statute controlling agricultural improvement districts, the District is

a public, political, taxing subdivision of the state, and a municipal corporation to the extent of the powers and privileges conferred by this chapter or granted generally to municipal corporations by the constitution and statutes of the state, including immunity of its property and bonds from taxation.

Ariz.Rev.Stat.Ann. § 4902 (1956).{3} The District’s bonds are tax-exempt, and its property is not subject t;o state or local property taxation. This attribute clearly indicates the governmental nature of the District’s function. The District also has the power of eminent domain, a matter of some import. The District has also been given the power to enter into a wide range of contractual arrangements to secure energy sources.{4} Inherent in this authorization is the power to control the use and source of energy generated by the District, including the possible use of nuclear power. Obviously, this broad authorization over the field of energy transcends the limited functions of the agricultural water storage district involved in Salyer.

The District here also has authority to allocate water within its service area. It has veto power over all transfers of surface water from one place or type of use to another, and this power extends to any "watershed or drainage area which supplies or contributes water for the irrigation of lands within [the] district. . . ." Ariz.Rev.Stat.Ann. § 45-172.5 (Supp. 1980-1981).

Like most "private" utilities, which are often "natural monopolies," see Otter Tail Power Co. v. United States, 410 U.S. 366 (1973), private utilities in Arizona are subject to regulation by public authority. The Arizona Corporation Commission is empowered to prescribe "just and reasonable rates," as well as to regulate other aspects of the business operations of private utilities. See Ariz.Rev.Stat.Ann. § 40-321 (1974). The rate structure of the District now before us, however, is not subject to control by another state agency, because the District is a municipal corporation, and itself purports to perform the public function of protecting the public interest that the Corporation Commission would otherwise perform. See Ariz. Const., Art. 13, § 7, Art. 15, § 2. See also Rubenstein Construction Co. v. Salt River Project Agricultural Improvement Power Dist., 76 Ariz. 402, 265 P.2d 455 (1953) (Salt River Project is not a public service corporation, and therefore statute forbidding certain business practices did not apply). Its power to set its own rates and other conditions of service constitutes important attributes of sovereignty. When combined with a consideration of the District’s wide-ranging operations which encompass water for agricultural and personal uses, and electrical generation for the needs of hundreds of thousands of customers, it is clear that the District exercises broad governmental power. With respect to energy management and the provision of water and electricity, the District’s power is immense, and its authority complete.

It is not relevant that the District does not do more -- what is detailed above is substantially more than that involved in the Water Storage District in Salyer, and certainly enough to trigger application of the strict standard of the Fourteenth Amendment under our prior cases. Previous cases have expressly upheld application of the strict requirements of the Fourteenth Amendment in situations where somewhat limited functions were involved. Salyer itself suggested that it would be a different case if a water district like the one involved in that case generated and sold electricity. In concluding that the Tulare District did not exercise normal governmental authority, the Court specifically noted that the District provided

no other general public services such as schools, housing, transportation, utilities, roads, or anything else of the type ordinarily financed by a municipal body.

410 U.S. at 728-729 (emphasis supplied). In Cipriano v. City of Houma, 395 U.S. 701 (1969), we held that a bond election which concerned only a city’s provision of utilities involved a sufficiently broad governmental function. In Kramer, the Court noted that the "need for close judicial examination" did not change,

because the district meetings and the school board do not have "general" legislative powers. Our exacting examination 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.

395 U.S. at 629. In Hadley v. Junior College District, 397 U.S. 50 (1970), the Court applied Kramer despite the fact that the powers exercised by the trustees of a Junior College District were substantially less significant than those exercised in Avery v. Midland County, 390 U.S. 474 (1968). It was sufficient that the trustees performed important governmental functions with sufficient impact throughout the District.

I therefore cannot agree that this line of cases is not applicable here. The authority and power of the District are sufficient to require application of the strict scrutiny required by our cases. This is not a single-purpose water irrigation district, but a large and vital municipal corporation exercising a broad range of initiatives across a spectrum of operations. Moreover, by the nature of the state law, it is presently exercising that authority without direct regulation by state authorities charged with supervising privately owned corporations involved in the same business. The functions and purposes of the Salt River District represent important governmental responsibilities that distinguish this case from Salyer.

III

In terms of the relative impact of the Salt River District’s operations on the favored landowner voters and those who may not vote for the officers of this municipal corporation, the contrast with the Water District in Salyer is even more pronounced. A bird’s-eye view of the District’s operations will be helpful. Historically, the Salt River District was concerned only with storing water and delivering it for agricultural uses within the District. This was a crucial service, but it proved too expensive for a wholly private concern to maintain. It needed public help, which it received. It became a municipal corporation, a transformation which rendered its bonds and property tax exempt. It also needed a public subsidy, which was provided by authorizing it to engage in the generation and sale of electricity. It was also authorized to supply water for municipal and other nonagricultural uses.

The area within the District, once primarily rural, now encompasses eight municipalities and a major part of the city of Phoenix. Its original purpose, the supply of irrigation water, now provides only a tiny fraction of its gross income. For the fiscal year ending April 30, 1980, the District had a total operating income of approximately $450 million, 98% of which was derived from the generation of electricity and its sale to approximately 240,000 consumers. See Salt River Project, 1979-1980 Annual Report, p. 25. The District is now the second largest utility in Arizona. Furthermore, as of April 30, 1980, the District had outstanding long-term debt of slightly over $2 billion. Approximately $1.78 billion, or about 88%, of that debt are in the form of revenue bonds secured solely by the revenues from the District’s electrical operations. All of the District’s capital improvements since 1972 have been financed by revenue bonds, and the general obligation bonds, now representing a small fraction of the District’s long-term debt, are being steadily retired from the District’s general revenues. It must also be noted that, at the present time, 40% of the water delivered by the District is used for nonagricultural purposes -- 25% for municipal purposes and 15% to schools, playgrounds, parks, and the like.

With these facts in mind, it is indeed curious that the Court would attempt to characterize the District’s electrical operations as "incidental" to its water operations, or would consider the power operations to be irrelevant to the legality of the voting scheme.{5} The facts are that, in Salyer, the burdens of the Water District fell entirely on the landowners who were served by the District. Here the landowners could not themselves afford to finance their own project and turned to a public agency to help them. That agency now subsidizes the storage and delivery of irrigation water for agricultural purposes by selling electricity to the public at prices that neither the voters nor any representative public agency has any right to control. Unlike the situation in Salyer, the financial burden of supplying irrigation water has been shifted from the landowners to the consumers of electricity.{6} At the very least, the structure of the District’s indebtedness, together with the history of the District’s operations, compels a finding that the burdens placed upon the lands within the District are so minimal that they cannot possibly serve as a basis for limiting the franchise to property owners.

Like the Court of Appeals, I cannot help but conclude as follows:

[T]he operation of the utility has taken on independent significance. In view of the magnitude of the electric utility operations and the large percentage of the water services which are used and paid for in a manner unrelated to land ownership, it would elevate form over substance to characterize the District as functioning solely for the benefit of the landowners.

613 F.2d at 184. In Cipriano, the only item at issue was an election concerning bonds to be used solely for the improvement of the municipally owned utility system. Of substantial importance to the resolution of this case, the Court said:

Of course, the operation of the utility systems -- gas, water, and electricity -- affects virtually every resident of the city, nonproperty owners as well as property owners. All users pay utility bills, and the rates may be affected substantially by the amount of revenue bonds outstanding. Certainly property owners are not alone in feeling the impact of bad utility service or high rates, or in reaping the benefits of good service and low rates.

395 U.S. at 705.{7}

It is apparent in this case that landowning irrigators are getting a free ride at the expense of the users of electricity. It would also seem apparent that, except for the subsidy, utility rates would be lower. Of course, subsidizing agricultural operations may well be in the public interest in Arizona, but it does not follow that the amount of the subsidy and the manner in which it is provided should be totally in the hands of a select few.{8}

To conclude that the effect of the District’s operations in this case is substantially akin to that in Salyer ignores reality. As recognized in Salyer, there were

no towns, shops, hospitals, or other facilities designed to improve the quality of life within the district boundaries, and it does not have a fire department, police, buses, or trains.

410 U.S. at 729. In short, there was nothing in the Water Storage District for its operations to affect except the land itself. The relationship between the burdens of the District and the land within the District’s boundaries was strong. Here, the District encompasses one of the major metropolitan areas in the country. The effects of the provision of water and electricity on the citizens of the city are as major as they are obvious. There is no strong relationship between the District’s operation and the land qua land. The District’s revenues and bonds are tied directly to the electrical operation. Any encumbrance on the land is, at best, speculative. Certainly, any direct impact on the land is no greater than in Phoenix v. Kolodziejski, 399 U.S. 204 (1970), where we rejected the same argument presented today. Simply put, the District is an integral governmental actor providing important governmental services to residents of the District. To conclude otherwise is to ignore the urban reality of the District’s operations.{9}

IV

Underlying the Court’s conclusion in this case is the view that the provision of electricity and water is essentially private enterprise, and not sufficiently governmental -- that the District "simply does not exercise the sort of governmental powers that invoke the strict demands" of the Fourteenth Amendment because it does not administer "such normal functions of government as the maintenance of streets, the operation of schools, or sanitation, health, or welfare services." Ante at 366. This is a distinctly odd view of the reach of municipal services in this day and age. Supplying water for domestic and industrial uses is almost everywhere the responsibility of local government, and this function is intimately connected with sanitation and health. Nor is it any more accurate to consider the supplying of electricity as essentially a private function. The United States Government and its agencies generate and sell substantial amounts of power, and, in view of the widespread existence of municipal utility systems, it is facetious to suggest hat the operation of such utility systems should be considered as an incidental aspect of municipal government. Nor will it do, it seems to me, to return to the proprietary-governmental dichotomy in order to deliver into wholly private hands the control of a major municipal activity which acts to subsidize a limited number of landowners.{10}

In Indian Towing Co. v. United States, 350 U.S. 61, 67-68 (1955), the Court remarked:

"Government is not partly public or partly private, depending upon the governmental pedigree of the type of a particular activity or the manner in which the Government conducts it." Federal Crop Insurance Corp. v. Merrill, 332 U.S. 380, 383-384. On the other hand, it is hard to think of any governmental activity on the "operational level," our present concern, which is "uniquely governmental," in the sense that its kind has not, at one time or another, been, or could not conceivably be, privately performed."

In Lafayette v. Louisiana Power & Light Co., 435 U.S. 389 (1978), JUSTICE STEWART, after quoting the above passage from Indian Towing Co., described the distinction between "proprietary" and "governmental" activities as a "quagmire" involving a distinction "`so finespun and capricious as to be almost incapable of being held in the mind for adequate formulation.’" Id. at 433 (dissenting opinion) (quoting Indian Towing Co., supra, at 68). JUSTICE STEWART went on to conclude that, whether proprietary or not, the action of providing electrical utility services "is surely an act of government." 435 U.S. at 434.

In Salyer, the Court nowhere suggested that the provision of water for agricultural purposes was anything but governmental action for a public purpose. The Court expressly recognized that the Water District was a public entity. The question presented, in part, was whether its operations and authority were so narrow as not to require application of the Kramer rule. In Cipriano, the Court necessarily held that the provision of electrical, water, and gas utility services was a sufficiently important governmental service to require application of the Fourteenth Amendment’s strict scrutiny safeguards. 395 U.S. at 705. If the provision of electrical and other utility services by a municipal corporation was so "proprietary" or "private" as not to require application of the stricter standards of the Fourteenth Amendment, Cipriano could not have been decided as it was. The Court’s facile characterization of the electrical service provided by the municipal corporation in this case as essentially a private function is a misreading of our prior holdings.

V

The purpose and authority of the Salt River District are of extreme public importance. The District affects the daily lives of thousands of citizens who, because of the present voting scheme and the powers vested in the District by the State, are unable to participate in any meaningful way in the conduct of the District’s operations.{11} In my view, the Court of Appeals properly reasoned that the limited exception recognized in Salyer does not save this voting arrangement. I cannot agree with the Court’s extension of Salyer to the facts of the case, and its unwise suggestion that the provision of electrical and water services are somehow too private to warrant the Fourteenth Amendment’s safeguards. Accordingly, I dissent.

1. States, of course, have substantial latitude in structuring local government, and nonlegislative positions need not be elected at all. Kramer v. Union Free School District No. 15, 395 U.S. at 629. But once a State provides for elections, the Fourteenth Amendment requires that any discriminations be scrutinized under the principles enunciated in Kramer and its progeny.

2. The possibility of departing from the one-person, one-vote logic of Reynolds in the case of special purpose districts was suggested in Avery v. Midland County, 390 U.S. 474 (1968). But the Court left open the question whether a special purpose unit of government assigned the performance of functions affecting definable groups of constituents more than other constituents "may be apportioned in ways which give greater influence to the citizens most affected by the organization’s functions." Id. at 483-484. Thus, even assuming that the landowners are more directly affected, Avery suggests that there may be situations where total exclusion is unconstitutional, but where the exact one person, one vote rule does not apply. The Court’s decision today ignores the possibility of some alternative plan and instead sanctions an unjustifiable total exclusion.

3. Arizona state court decisions have described such agricultural improvement districts as primarily business-oriented. See ante at 368. See also Local 266, International Brotherhood of Electrical Workers v. Salt River Project Agricultural Improvement & Power Dist., 78 Ariz. 30, 275 P.2d 393 (1954); Mesa v. Salt River Project Agricultural Improvement & Power Dist., 92 Ariz. 91, 373 P.2d 722 (1962), appeal dism’d, 372 U.S. 704 (1963). Of course, these state court descriptions do not control the question whether the municipal corporation possesses sufficient authority or function to require application of the voting procedures mandated.by the Fourteenth Amendment. That inquiry is a constitutional question to be resolved by the courts.

4. Arizona Rev.Stat.Ann. § 45-935.B (Supp. 1980-1981) provides:

For the purpose of acquiring or assuring a supply of electric power and energy to serve the district’s customers, the board, for the and in the name of the district may, without the boundaries of the state, acquire, develop, own, lease, purchase, construct, operate, equip, maintain, repair and replace, and contract for . . . any form of energy or energy resources including but not limited to coal, oil, gas, oil shale, uranium and other nuclear materials, hot water, steam, and other geothermal materials or minerals, solar energy, wind, water, and water power and compressed air. . . .

5. The parties did not stipulate that the electrical services were unimportant or legally insignificant. In the context of the historical development of the District’s power and authority, it was stipulated that the electrical generating function was "incident" to the primary purpose of providing water to District members. Stipulated Statement of Facts, Nos. 12, 17. This historical view, however, in no way undercuts the present inquiry. Even acknowledging that water service remains the "primary" function of the District in some legal sense, the relevant question here is whether the other services are of such a nature to require application of the strict standards of the Fourteenth Amendment. The fact that the generation of electricity is an incident of the water function of the District is not the same as concluding that the provision of electricity is "incidental" in the sense that it is insignificant. Indeed the parties also stipulated that the

District provides a reliable supply of essential electric energy and water in substantial portions of the Salt River Valley; thus, the District operation is important to the development of the Salt River Valley.

Id., No. 46.

6. The extent of the subsidy is substantial. The parties stipulated that:

During the last ten years, about 83% of the water system costs have been financed with power revenues. In 1974, revenues from water and irrigation activities were $2,613, 184. The expenses, including depreciation, for irrigation and water operations exceeded revenues by about $14,000,000, and that deficit was met from power revenues. Water support has averaged approximately $10,000,000 annually since 1965. These amounts do not include expenditures for additions and improvements to the irrigation plant and for repayment of long-term debt, which must also be met from power revenues. Any decrease in support from power revenues would have to be met from increased water delivery charges.

Id., No. 45.

7. The Salt River District authorities thought the issue in Cipriano to be so substantially akin to the issue with respect to its operations that it decided to file an amicus brief in that case. See Brief for the Salt River Project Agricultural Improvement and Power District as Amicus Curiae, O.T. 1968, No. 705. The District argued that the bonds at issue in Cipriano went only to the city’s conduct of its utility function, and thus affected "only a particular segment of those general governmental powers," id. at 5, so that Kramer should not be applied. We necessarily rejected the District’s arguments on the merits in Cipriano.

8. It may well be that, if given a chance to participate, nonproperty owners will seek to lessen the subsidy. But this is no excuse for denying them the vote. A State is constitutionally prohibited from disenfranchising any "sector of the population because of the way they may vote. . . ." Carrington v. Rash, 380 U.S. 89, 94 (1965).

9. Nothing in Cipriano turned on the fact that the city’s utility activities were connected with its broader grants of police power and were not conducted by a separately elected board or commission. While the Court noted that any profits from the utility operations would go into the city’s general fund, this fact did not contribute to the Court’s decision to extend the franchise. Rather, the Court noted that property and nonproperty taxpayers may have different views concerning provision of city funds for utilities, and that it was this concern with the utility services which required application of Kramer.

It is also significant that the Court’s decision today is inconsistent with the narrow, and correct, reading given Salyer in various other courts in circumstances akin to those in the present case. See, e.g., Choudhry v. Free, 17 Cal.3d 660, 552 P.2d 438 (1976); Johnson v. Lewiston Orchards Irrigation Dist., 99 Idaho 501, 584 P.2d 646 (1978).

10. In this regard, the Court’s citation of Jackson v. Metropolitan Edison Co., 419 U.S. 345 (1974), is totally misplaced. In that case, the Court held that actions of a privately owned utility do not constitute state action for purposes of the Fourteenth Amendment. The Court noted that the provision of utility services is "not traditionally the exclusive prerogative of the State." Id. at 353. But this observation necessarily implies that the provision of utilities, if actually provided by the State, is a valid government activity. Thus, the question whether the Fourteenth Amendment may require certain safeguards if the State, in fact, does itself provide utility services is in no way reached by Jackson.See id. at 354, n. 9 (States may not segregate public schools so as to exclude any religious group while private religious schools may so exclude). Once a State provides such services, constitutional safeguards necessarily apply.

11. It is suggested by the Court in a footnote, see ante at 371, n. 20, and by JUSTICE POWELL in his concurring opinion, that, since the nonvoters living in the District may, of course, vote in the state legislature elections, their interests are sufficiently represented, since the state legislature maintains ultimate control over the operation and authority of the District. This suggestion lacks merit, and has been specifically rejected in past decisions of this Court. Avery v. Midland County, 390 U.S. at 481. See Kramer, 395 U.S. at 628, n. 10. In most situations involving a state agency or even a city, the state legislature, and ultimately the people, could exercise control, since any municipal corporation is a creature of the State. The Fourteenth Amendment requires a far more direct sense of democratic participation in elective schemes which is not satisfied by the indirect and imprecise voter control suggested by the Court and by JUSTICE POWELL. Cf. Lafayette v. Louisiana Power & Light Co., 435 U.S. 389, 406 (1978) (rejecting argument that Sherman Act should not apply to municipally owned utility because dissatisfied consumers had recourse in state legislature).