Contest of a Certain Special Election, Matter of
| Decision Date | 05 May 1981 |
| Docket Number | 11 and 12,J,Nos. 9,10,s. 9 |
| Citation | 659 P.2d 1294,135 Ariz. 149 |
| Parties | In the Matter of a CONTEST OF A CERTAIN SPECIAL ELECTION; Special Road Districtsoint Powers Authority (Fountain Hills) of Maricopa County, Arizona, Consolidated Election Precinct, |
| Court | Arizona Court of Appeals |
The appellants challenge a two-thirds affirmative vote requirement in the statute authorizing the issuance of special road district bonds. The trial court rejected the challenge, and we affirm its decision.
The appellant special road districts were organized in 1973 pursuant to A.R.S. §§ 18-251 et seq. The districts are located in the Fountain Hills area of Maricopa County. The four districts have consolidated and operate through a joint board of trustees. In 1974 they sought and received from the voters within their districts the right to issue $24,000,000 in bonds at a maximum interest rate of 9 percent. Approximately $6,000,000 of the bonds were sold in 1974.
Because the subsequent general rise in interest rates prevented the successful marketing of the remaining bonds, the trustees decided in 1979 to ask the district electorate to authorize an increase in the maximum interest rate to 12 percent. 1 Issuance of special road district bonds may only be authorized upon the affirmative vote of two-thirds of those voting. A.R.S. § 18-259(B). An election was held, and 52.9 percent of those lawfully voting approved the proposed increase in the interest rate. The districts nevertheless certified the results of the election to the Board of Supervisors as if there had been approval by two-thirds of those voting, and they have maintained that the issue carried.
Appellees are voters in the districts who opposed the proposal to increase the maximum interest rate. They brought an election contest in the Superior Court pursuant to A.R.S. § 16-1201. The appellants MCO Properties, Inc., developer of Fountain Hills, and Johanna Kobli, a proponent of the proposal, were allowed to intervene. The appellants contended below as they do here that the two-thirds "super-majority" voting requirement violates the Equal Protection Clause of the 14th Amendment to the United States Constitution because special road districts are the only bonding districts in the state for which a two-thirds affirmative vote is required. Based upon the assumed correctness of that position, appellants further contend that A.R.S. § 18-259(B) can and should be construed as authorizing approval of an increase in the interest rate by a simple majority vote. Appellants thus take the position that the issue passed. The parties stipulated to the material facts in the trial court, and based thereon the trial court rendered summary judgment in favor of appellees, holding that the issue did not pass.
By way of brief historical background, it appears that the development of the Erie Canal ushered in an expansive period of state and municipal financing. There were excesses, and concern over the large indebtedness of local governments was heightened by the Panic of 1873. In the more cautious atmosphere that followed, many states enacted requirements that bonds be approved by more than a simple majority. In 1970, the constitutions of 20 states required referendum approval by special majorities ranging from 55 percent to 75 percent. See generally, Note, "Judicial Activism and Municipal Bonds: Killing Two-Thirds With One Stone?", 56 Va.Law Review 295 (1970).
Citing the federal Constitution's own super-majority requirements, the United States Supreme Court rejected a challenge to a 60 percent affirmative vote requirement in a school bond election. Gordon v. Lance, 403 U.S. 1, 91 S.Ct. 1889, 29 L.Ed.2d 273 (1971). It also affirmed per curiam a three-judge federal district court decision rejecting a challenge to a two-thirds affirmative vote requirement in another school bond case. Brenner v. School District of Kansas City, Missouri, 403 U.S. 913, 91 S.Ct. 2225, 29 L.Ed.2d 692 (1971), affirming 315 F.Supp. 627 (W.D.Mo.1970). Challenges to extraordinary majority voting requirements have been rejected in other courts. Amador Valley Joint Union High School District v. State Board of Equalization, 22 Cal.3d 208, 149 Cal.Rptr. 239, 583 P.2d 1281 (1978); Lefkovits v. State Board of Elections, 400 F.Supp. 1005 (N.D.Ill., 1975); Tiews v. Timberlane Regional School District, 111 N.H. 14, 273 A.2d 680 (N.H.1971); Adams v. Fort Madison Community School District, 182 N.W.2d 132 (Iowa 1970); Bogert v. Kinzer, 93 Idaho 515, 465 P.2d 639 (1970).
The appellants nevertheless argue here that appellees must and cannot show a "compelling state interest" to justify the two-thirds requirement, or, in the alternative, that they cannot show a rational basis for the legislation. These arguments are advanced in connection with appellants' basic position that they are denied the equal protection of the laws because voters in cities and towns 2 and in general improvement districts 3 may obtain passage of road construction or improvement programs by a simple majority vote. The cases which appellants rely upon to support their argument that appellees must demonstrate a "compelling state interest" for the provision in question are cases where some group of citizens have been excluded from participating in an election. See Hill v. Stone, 421 U.S. 289, 95 S.Ct. 1637, 44 L.Ed.2d 172 (1975), City of Phoenix v. Kolodziejski, 399 U.S. 204, 90 S.Ct. 1990, 26 L.Ed.2d 523 (1970), Cipriano v. City of Houma, 395 U.S. 701, 89 S.Ct. 1897, 23 L.Ed.2d 647 (1969), and Police Jury of the Parish of Vermilion v. Herbert, 404 U.S. 807, 92 S.Ct. 52, 30 L.Ed.2d 39 (1971), reversing per curiam, 258 La. 41, 245 So.2d 349 (1971), each involving the ownership or "rendering" of property as a prerequisite to the right to vote; and see also Kramer v. Union Free School District, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969); Harper v. Virginia State Board of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966); Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675 (1965); and Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960) 4 The United States Supreme Court has developed in these cases a standard of "strict judicial scrutiny" which places the burden of justification on the proponent of legislation which creates a suspect classification or impacts adversely upon some basic constitutional right. See San Antonio Independent School District v. Rodriquez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973); Arizona Downs v. Arizona Horsemen's Foundation, 130 Ariz. 550, 637 P.2d 1053 (1981). This Hill v. Stone line of cases is plainly inapposite to the present case, however, because it is without dispute that every otherwise qualified elector in the districts is entitled to vote in a bond election.
The crux of the holding in Gordon v. Lance is that so long as a more-than-majority vote requirement in a bond case does not "discriminate against or authorize discrimination against any identifiable class ... [it does] not violate the Equal Protection Clause." 403 U.S. at 6, 91 S.Ct. 1891. Gordon v. Lance must itself be taken as standing for the proposition that, unless they are in some manner otherwise identified, the proponents of a bond issue are not themselves such an "identifiable class", or a "discrete and insular minority."
Appellants argue, however, that this case is distinguishable from Gordon v. Lance and that this case presents the situation reserved in Gordon v. Lance for future decision. Appellants refer to the following passages at 403 U.S. at 5, 91 S.Ct. at 1891:
Unlike the restrictions in our previous cases, The West Virginia Constitution singles out no "discrete and insular minority" for special treatment. The three-fifths requirement applies equally to all bond issues for any purpose, whether for schools, sewers, or highways. We are not, therefore, presented with a case like Hunter v. Erickson, 393 U.S. 385 [89 S.Ct. 557, 21 L.Ed.2d 616] (1969), in which fair housing legislation alone was subject to an automatic referendum requirement.
The class singled out in Hunter was clear--"those who would benefit from laws barring racial, religious, or ancestral discriminations," supra, at 391 [89 S.Ct. at 560, 21 L.Ed.2d at 662]. In contrast, we can discern no independently identifiable group or category that favors bonded indebtedness over other forms of financing. Consequently no sector of the population may be said to be "fenced out" from the franchise because of the way they will vote. Cf. Carrington v. Rash, supra, at 94 [85 S.Ct. at 779, 13 L.Ed.2d at 679].
We are not persuaded, upon a reading of Gordon v. Lance in its entirety, that uniformity of an affirmative vote requirement within a state is essential to the force of the general principles set forth. A lack of uniformity would, of course, be a critical factor if a design to discriminate was otherwise apparent.
Appellants have cited in their briefs 21 bond-authorizing provisions in the Arizona Revised Statutes applicable to a variety of issuers, including hospitals, utilities, municipalities and various districts. Appellants...
To continue reading
Request your trial
-
Santa Clara County Local Transportation Authority v. Guardino
... ... certain transportation projects, and the tax was approved by a ... a statutory initiative adopted at the 1986 General Election, or (2) the requirement of a two-thirds voter approval ... absolutely required to do so to dispose of the matter before us." (People v. Williams, supra, 16 Cal.3d 663, ... : "No local government or district may impose any special tax unless and until such special tax is submitted to the ... into his decision to vote yea or nay." (Matter of Contest ... ...