Hellebust v. Brownback, s. 93-3164

• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)
• Citation: 42 F.3d 1331
• Docket Number: 93-3238,Nos. 93-3164,s. 93-3164
• Parties: Lynn HELLEBUST, John R. Craft, Kansas Natural Resource Council, and Common Cause of Kansas, Plaintiffs-Counter-Defendants/Appellees, v. Sam BROWNBACK, in his official capacity as Secretary of the Kansas State Board of Agriculture; Jay Armstrong; Victor Krainbill; Alvin Epler; Altis Ferree; Thayne Larson; Ralph H. Rindt; F.E. Bliss; Lois Schlickau; Floyd O. Coen; Bob L. Moore; Anne Marie Worley; Art Howell, in their capacities as members of the Kansas Board of Agriculture, Defendants-Counter-Claimants/Appellants.
• Decision Date: 19 December 1994

Page 1331

42 F.3d 1331 Lynn HELLEBUST, John R. Craft, Kansas Natural Resource
Council, and Common Cause of Kansas,
Plaintiffs-Counter-Defendants/Appellees,
v.
Sam BROWNBACK, in his official capacity as Secretary of the
Kansas State Board of Agriculture; Jay Armstrong; Victor
Krainbill; Alvin Epler; Altis Ferree; Thayne Larson;
Ralph H. Rindt; F.E. Bliss; Lois Schlickau; Floyd O.
Coen; Bob L. Moore; Anne Marie Worley; Art Howell, in
their capacities as members of the Kansas Board of
Agriculture, Defendants-Counter-Claimants/Appellants. Nos. 93-3164, 93-3238. United States Court of Appeals,
Tenth Circuit. Dec. 19, 1994.

Page 1332

William J. Craven (Donn J. Everett of Everett, Seaton, Miller, and Bell, Manhattan, KS, with him on the briefs), Lecompton, KS, for plaintiffs-counter-defendants/appellees.

David D. Plinsky, Asst. Atty. Gen. (Robert T. Stephan, Atty. Gen., with him on the briefs), Topeka, KS, for defendants-counter-claimants/appellants.

Before MOORE, LAY, ^* and MCWILLIAMS, Circuit Judges.

JOHN P. MOORE, Circuit Judge.

This appeal involves the constitutionality of the procedure of electing members to the Kansas State Board of Agriculture (Board). Challenged here is the district court's order declaring the current statutory method violates the Equal Protection Clause of the Fourteenth Amendment and enjoining the Board from conducting further elections until the Kansas State Legislature enacts a scheme consistent with the principles set out in Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964). Hellebust v. Brownback, 824 F.Supp. 1511 (D.Kan.1993) (Hellebust I ). Finding no error in the district court's analysis of the constitutional violation or its choice of a remedy, we affirm.

I. Background

Because the district court's order fleshes out the facts and history of this case, id. at 1512-14, we shall simply note its skeletal frame for our review. By statute, Kan.Stat.Ann. Secs. 74-502 and 74-503, delegates from Kansas agricultural organizations ¹ attend the Board's annual meeting where they elect either all twelve Board members, or fewer, depending upon when terms expire. Board members then elect their Secretary. Plaintiffs charged this method violates the principle of one person, one vote because the Board, a state governmental agency, exercises broad authority affecting arguably all Kansans and is not limited solely to agriculture or agribusiness interests.

In their effort to persuade the district court otherwise, defendants, Sam Brownback, Secretary of the Board, and its twelve members contended not only that the election process is constitutional; but, also, in the absence of the legislature as a necessary party, the court should defer to that body to remedy the present system. Rejecting both arguments, the district court subsequently declared the terms of the present Board and Secretary expired and appointed the Governor of the State of Kansas receiver for the Board. Hellebust v. Brownback, 824 F.Supp. 1524, 1527 (D.Kan.1993) (Hellebust II ).

Central to its legal conclusion and remedy was the district court's factual finding the Board's reach far extends the fields of agriculture and agribusiness. While the Board insisted the approximately eighty laws which the legislature has entrusted it to enforce are confined to the narrow purposes of the state's agricultural industries, the court found, for example, anyone who pumps gas in Kansas relies on a facility subject to the Board's inspection. "Any commercial pump or scale used in Kansas, such as the ones

Page 1333

used to fill cars with gasoline at the local filling station, is subject to inspection by the Board of Agriculture. Kan.Stat.Ann. Sec. 83-206 (Supp.1992)." Hellebust I at 1514. All meat and dairy inspection is entrusted to the Board whose appointee, the State Dairy Commissioner, has the authority to enter any business premises, conduct inspections, issue subpoenas, and otherwise enforce state regulations on safe dairy and meat products. The Secretary regulates the use of pesticides whether applied to residential lawns or farmlands. The Board's Chief Engineer of the Division of Water Resources controls not only farm and agricultural water uses but also "water rights held by cities, utilities and individuals not connected with agriculture." Id.

With its approximately 330 employees and a budget of about $15 million allocated from the general fund, the district court found the Board "is not simply an agricultural promotion or marketing agency or an entity which deals with matters disproportionately affecting those who elect it. The Board has broad regulatory powers which affect all residents of Kansas daily." Id. at 1513.

The Board challenges these findings and the conclusions of law they propagate, arguing: (1) the district court should have permitted the Kansas legislature to remedy the voting procedures; ² (2) the legislature is an indispensable party; (3) the Secretary and Board members have been constitutionally appointed by operation of law; (4) the Board cannot independently exercise legislative powers; and (5) the voting procedures are subject only to rational review to uphold their constitutionality. That is, the Board maintains the voting procedure here is preserved by the explicit reservation for "a special-purpose unit of government assigned the performance of functions affecting definable groups of constituents more than other constituents." Avery v. Midland County, Tex., 390 U.S. 474, 483-84, 88 S.Ct. 1114, 1119-20, 20 L.Ed.2d 45 (1968). The Court articulated this exception in Salyer Land Co. v. Tulare Lake Basin Water Stor. Dist., 410 U.S. 719, 93 S.Ct. 1224, 35 L.Ed.2d 659 (1973), and Ball v. James, 451 U.S. 355, 101 S.Ct. 1811, 68 L.Ed.2d 150 (1981); and the Board urges we apply it here.

II. One Person, one vote

Our review must begin with the principle announced in Reynolds and recited in its progeny that "in an election of general interest, restrictions on the franchise other than residence, age, and citizenship must promote a compelling state interest in order to survive constitutional attack." Hill v. Stone, 421 U.S. 289, 295, 95 S.Ct. 1637, 1642, 44 L.Ed.2d 172 (1975) (citing Kramer v. Union Free School Dist. No. 15, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969)). The breadth of this mandate does not tolerate constitutional distinctions on the basis of the purpose of the election or the function--legislative or administrative--of the elected official. Hadley v. Junior College Dist., 397 U.S. 50, 54-56, 90 S.Ct. 791, 794-95, 25 L.Ed.2d 45 (1970). In the line of cases stemming from Reynolds, "[t]he consistent theme ... is that the right to vote in an election is protected by the United States Constitution against dilution or debasement." Id. 397 U.S. at 54, 90 S.Ct. at 794.

The Court has fashioned a narrow exception to this rule. In Ball, 451 U.S. at 355, 101 S.Ct. at 1812-13, and Salyer Land Co., 410 U.S. at 719, 93 S.Ct. at 1225, the Court held the one person, one vote rule does not apply to units of government having a narrow and limited focus which disproportionately affects the few who are entitled to vote. In...