Bjornestad v. Hulse

CourtCalifornia Court of Appeals
Writing for the CourtDAVIS; CARR, Acting P.J., and MARLER
Citation281 Cal.Rptr. 548,229 Cal.App.3d 1568
PartiesRichard W. BJORNESTAD, et al., Plaintiffs and Respondents, v. Mary Ann HULSE, Placer County Clerk, Defendant, SIERRA LAKES COUNTY WATER DIST., et al., Real Party in Interest and Appellants. Civ. C007526.
Decision Date22 May 1991

Lawrence L. Hoffman, Philip A. Olsen and Hoffman, Lien & Faccinto, Tahoe City, for plaintiffs and respondents.

Paul M. Bartkiewicz, 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.

As originally presented, this case involved federal and state constitutional challenges to Water Code section 30700.6. At that time, the section specified that only landowners in the Sierra Lakes County Water District could vote in district elections or be a member of the district's governing board of directors. As a result of this statute, Sierra residents who did not own land in Sierra were denied any voice in the district affairs that substantially affected them. In a published opinion filed September 5, 1990, we held these landowner-only provisions unconstitutional under the equal protection guarantees of the federal and state Constitutions. (U.S. Const., 14th Amend.; Cal. Const., art. I, s. 7.) 1

On September 30, 1990, Assembly Bill No. 3548 (AB 3548) was approved by the Governor. (Stats.1990, c. 1652, §§ 1-4, pp. 6695-6696.) AB 3548 amended Water Code section 30700.6 (hereafter, section 30700.6) and added section 31015 to that Code. The AB 3548 substantive amendment to section 30700.6 provides that "qualified voters at elections for directors or otherwise in the Sierra Lakes County Water District shall be (1) voters who are residents of the district, and (2) every owner of real property within the district, who is not a resident of the district." (Under § 30700.6, only qualified voters can hold office as directors.) The Water Code section added by AB 3548--section 31015--provides: "The Sierra Lakes County Water District shall not exercise any of the [generally applicable county water district] powers and purposes set forth in Article 7 (commencing with Section 31120) [Fire Protection Facilities], Article 8 (commencing with Section 31130) [Recreational Facilities], and Article 9 (commencing with Section 31135) [Sanitation Service]." 2

On October 12, 1990, Sierra Lakes County Water District (Sierra) petitioned the California Supreme Court for review of our September 5 decision. Two months later, the Supreme Court granted review and transferred the cause to this court with directions to vacate our September opinion and reconsider the matter in light of AB 3548. (Cumulative Subsequent History No. 7 Advance Sheet 1991, p. 6.) Pursuant to those directions, we requested supplemental briefing on the following issues: "(1) The constitutionality of the enfranchisement of the nonresident landowner class as specified in amended section 30700.6, subdivision (a). [p] (2) The effect, if any, of our decision constitutionally invalidating prior section 30700.6--under which the incumbent directors were elected--in light of amended section 30700.6, subdivision (e). (Please also specify the length of the directors' current terms of office.) [p] (3) The effect, if any, of section 31015--curtailing Sierra's authorized powers--on the analysis set forth in our opinion of September 5, and on the two issues specified above. [p] (4) Any other issue deemed relevant by the parties."

Initially, we consider whether Sierra is correct that AB 3548 renders this case moot. As we explain, it is appropriate for us to consider certain issues. After considering those issues, we hold: (1) that under AB 3548, Sierra is not a governmental district akin to a special land-serving district of limited purpose and powers where landowner-only voting is permissible (see Salyer Land Co. v. Tulare Water District (1973) 410 U.S. 719, 93 S.Ct. 1224, 35 L.Ed.2d 659; Associated Enterprises v. Toltec 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); consequently, the pre-AB 3548 landowner-only voting scheme that placed the current directors in office cannot be used to validate those elections and a new election will have to be held; (2) that section 30700.6's enfranchisement of Sierra's nonresident landowners does not unconstitutionally dilute the votes of Sierra's residents in contravention of the equal protection guarantees of the federal and state Constitutions; and (3) that section 30700.6's enfranchisement of landowners--individual, corporate and estate--does not violate the voting qualifications set forth in article I, section 22, and in article II, sections 1 through 3, of the California Constitution.

The Nature of Sierra

The critical facts are not in dispute. Sierra was formed in 1961 pursuant to the County Water District Law set forth in Water Code section 30000 et seq. (All further references to undesignated sections are to the Water Code.) In 1969 the landowner-only voting scheme of section 30700.6 was enacted. 3 (Stats.1969, c. 100, §§ 1-2, pp. 221-222.)

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 Sierra. 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 Sierra, of which 1043 are residential lots each approximately one-quarter acre in size. Of the residential lots, 470-some are improved with homes or cabins; the remaining 560-plus (or over 50 percent of the total number of residential lots) are vacant. Sierra 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 60-some registered voters residing in Sierra; 40 or so of these are Sierra landowners. By virtue of property ownership, over 975 voters--including persons, corporations, and estate representatives--qualify as voters in Sierra elections.

Sierra presently furnishes only domestic water and sewage disposal services. These two services are charged to the landowners. Owners of the vacant parcels pay standby charges.

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. Another one-third of these revenues was derived from water and sewer service charges for the respective years. The remaining one-third was derived from connection fees, general property taxes, standby assessments, penalties and interest earned.

The Proceedings Below

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); 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;" and unconstitutional under article II, section 2 of the California Constitution, which provides that "[a] United States citizen 18 years of age and resident in this state may vote." Plaintiffs also sought to postpone a Sierra board election scheduled for November 1989 and to prohibit nonresidents from voting or 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 the pre-AB 3548 section 30700.6 was unconstitutional under the equal protection clause of the federal Constitution. The court also postponed the November 1989 election so an election could take place under the Uniform District Election Law (Elec.Code, § 23500 et seq.; see Wat.Code, § 30068), which would govern in the absence of section 30700.6. Subsequently, the trial court stayed this judgment pending the outcome of this appeal. The November 1989 election took place under the dictates of the pre-AB 3548 section 30700.6. 4

1. This Court Can Consider This Appeal

Sierra as well as a Sierra landowner, as an amicus party, contend this appeal is moot because AB 3548 substantially changed the posture of this case and because plaintiffs obtained through AB 3548 the relief they sought in their complaint: the ability to vote in Sierra elections and be a member of Sierra's board of directors.

The law regarding the mootness of an appeal is set forth in Alernatives for California Women, Inc. v. County of Contra Costa (1983) 145 Cal.App.3d 436, 193 Cal.Rptr. 384: "An appeal may become moot if an ordinance or statute which constitutes the basis for the judgment under review is amended during the pendency of the appeal. [Citations.] The appeal may not be moot if the...

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