Johnson v. Killingsworth

Decision Date11 April 1995
Docket NumberNo. 94-499,94-499
Citation894 P.2d 272,271 Mont. 1
PartiesElizabeth J. JOHNSON, Contestant and Respondent, v. Curtis KILLINGSWORTH, Contestee and Appellant.
CourtMontana Supreme Court

Kevin R. Callaghan, Harris, Callaghan & Velk, Alan F. Blakley, Missoula, for appellant.

Richard R. Buley, Tipp & Buley, Missoula, for respondent.

GRAY, Justice.

Curtis Killingsworth (Killingsworth) appeals from the findings, conclusions, and judgment of the Fourth Judicial District Court, Missoula County, voiding his election as commissioner of Division 2 of the Missoula Irrigation District (District) Board. We affirm.

The facts of this case are undisputed. The District is comprised of five divisions and is governed by a board consisting of five commissioners, one elected from each division. Killingsworth ran unopposed for the commissioner position for Division 2 and was elected to that position on April 5, 1994. Killingsworth neither owns irrigable land nor resides within Division 2 of the District; he leases a storage unit within the District's boundaries.

Elizabeth Johnson (Johnson), who owns irrigable land within Division 2, petitioned to have Killingsworth's election set aside. She alleged that Killingsworth did not possess the statutory qualifications to be a commissioner because he did not own irrigable land within the division. Following a hearing on the petition, the District Court issued findings of fact, conclusions of law, and a judgment setting aside Killingsworth's election. Killingsworth appeals.

As a preliminary matter, Johnson has moved this Court to strike references to evidence contained, and argued, in Killingsworth's brief but not of record in this appeal. The material consists of Killingsworth's summary of newspaper articles published after the District Court's judgment regarding possible public health problems posed by the Missoula irrigation system, an exhibit attached to a pretrial brief summarizing the annual cost to Missoula taxpayers for maintenance of the irrigation system, and Killingsworth's statements regarding the District's use of toxic chemicals and failure to allow him to erect barriers around an irrigation ditch.

It is axiomatic that this Court will not consider evidence not contained in the record on appeal. In re Marriage of Martin (1994), 265 Mont. 95, 100, 874 P.2d 1219, 1223. Moreover, a party's reference to evidence does not incorporate that evidence into the record. Marriage of Martin, 874 P.2d at 1223. We note that, although this evidence--including the subject matter later contained in the newspaper articles--generally was described to the District Court, it was never offered or received as evidence of record. Therefore, we grant Johnson's motion to strike and do not consider any of the challenged evidence or references thereto.

Irrigation districts are created, funded, and operated pursuant to statute. Sixty percent of the holders of title to irrigable lands sought to be included in a district may petition a district court to establish the district. Sections 85-7-101(1) and -104, MCA. If the court determines that the district should be established, it must divide the district into three, five, or seven divisions depending on the district's size. Section 85-7-107(3)(d), MCA. Each division is represented by a commissioner possessing the qualifications set forth in § 85-7-1501, MCA. See § 85-7-107(3)(e), MCA. Pursuant to § 85-7-1501, MCA, "[a] person may not be a commissioner unless he is an owner of irrigable land within the division of the district he is to represent and is a resident of the county in which the division of the district or some portion of the division is situated." It is undisputed that Killingsworth is not an owner of irrigable land within Division 2 of the District.

Killingsworth contends that the land ownership requirement contained in § 85-7-1501, MCA, violates the Equal Protection Clause contained in the Fourteenth Amendment to the United States Constitution. The District Court concluded that the ownership requirement was reasonably related to the state's interest regarding the efficient functioning of the District and, as a matter of law, did not violate the Equal Protection Clause. We review a district court's conclusion of law to determine whether it is correct. Associated Students v. City of Missoula (1993), 261 Mont. 231, 234, 862 P.2d 380, 382.

Did the District Court err in applying the reasonable relationship standard to its equal protection analysis of the freeholder requirement contained in § 85-7-1501, MCA?

Killingsworth's first assertion of error is that the District Court erred in applying the reasonable relationship test to determine whether the statutory freeholder requirement in § 85-7-1501, MCA, violated his right to equal protection. He asserts that restrictions on candidate qualifications impact on citizens desiring to vote for that candidate and, as a result, that the United States Supreme Court's voting rights cases applying the strict scrutiny test are controlling here.

Because voting rights cases involve a fundamental political right, the Supreme Court generally evaluates state legislation apportioning representation and regulating voter qualifications under the strict scrutiny standard. See Dunn v. Blumstein (1972), 405 U.S. 330, 342, 92 S.Ct. 995, 1003, 31 L.Ed.2d 274, 284; Kramer v. Union School District (1969), 395 U.S. 621, 626-27, 89 S.Ct. 1886, 1889, 23 L.Ed.2d 583, 589; Reynolds v. Sims (1964), 377 U.S. 533, 562, 84 S.Ct. 1362, 1381, 12 L.Ed.2d 506, 527. Under that standard, legislation is "unconstitutional unless the State can demonstrate that such laws are 'necessary to promote a compelling governmental interest.' " Dunn, 405 U.S. at 342, 92 S.Ct. at 1003 (emphasis in original) (citation omitted).

As early as 1968, however, the Supreme Court recognized the possibility of an exception to the general rule requiring strict scrutiny in voting rights-related cases. In Avery v. Midland County (1968), 390 U.S. 474, 88 S.Ct. 1114, 20 L.Ed.2d 45, the Supreme Court observed that, while the Equal Protection Clause prohibits states from distinguishing between citizens on an arbitrary or invidious basis in regulating voter qualification or apportioning representation, it does not necessarily prohibit all such distinctions. Avery, 390 U.S. at 484, 88 S.Ct. at 1120. The Supreme Court recognized that, in the event of a special-purpose unit of government whose functions affect a distinct group of citizens more than other citizens, a state might be allowed to give greater influence to those citizens most affected. Avery, 390 U.S. at 483-84, 88 S.Ct. at 1119-20. Subsequent to Avery, the Supreme Court determined that freeholder requirements used to prevent minorities from consideration for appointment to a general governmental board violated equal protection under any standard of scrutiny; it did not, however, "exclud[e] the possibility that other circumstances might present themselves in which a property qualification for office-holding could survive constitutional scrutiny." Turner v. Fouche (1970), 396 U.S. 346, 364, 90 S.Ct. 532, 542, 24 L.Ed.2d 567, 581.

Salyer Land Co. v. Tulare Water District (1973), 410 U.S. 719, 93 S.Ct. 1224, 35 L.Ed.2d 659, presented the Supreme Court with the issue foreshadowed in Avery and Turner. The case involved a water storage district whose primary purpose was the acquisition, storage, and distribution of water for farming. Salyer, 410 U.S. at 728, 93 S.Ct. at 1229-30. The costs of the district's projects were assessed against land in proportion to the benefits received and service charges were collectible from those receiving the benefit; in the event of delinquencies in payment for such services, the charges became a lien against the land. Salyer, 410 U.S. at 729, 93 S.Ct. at 1230.

The plaintiff in Salyer challenged the California statute limiting the right to vote for water district directors to landowners within the district on equal protection grounds. The Supreme Court observed that the water district had some governmental powers, but provided none of the general public services ordinarily attributed to a governing body; it also determined that the economic burdens of the district's operations did not fall on residents per se, but affected primarily those residents who owned land within the district's boundaries. Salyer, 410 U.S. at 728-29, 93 S.Ct. at 1229-30.

On the basis of the "special limited purpose and ... the disproportionate effect of [the district's] activities on landowners as a group," the Supreme Court concluded that application of the strict scrutiny standard was inappropriate. Salyer, 410 U.S. at 728, 93 S.Ct. at 1229-30. The Supreme Court held that the appropriate level of scrutiny for determining whether a statute limiting voting for water district directors to landowners within the district violated the equal protection clause was whether the voting limitation was reasonably related to the state's objectives. Salyer, 410 U.S. at 730, 93 S.Ct. at 1230-31.

The Supreme Court confronted the issue again in Ball v. James (1981), 451 U.S. 355, 101 S.Ct. 1811, 68 L.Ed.2d 150. The primary purpose of the district in Ball was "the storage, delivery, and conservation of water." Ball, 451 U.S. at 357, 101 S.Ct. at 1814. Like the district in Salyer, financial responsibility for the Ball district primarily fell on subscribing landowners who were assessed on an acreage-proportionate basis with the assessment becoming a lien on the owners' land until paid; the Ball district differed from the district in Salyer, however, in that it also raised revenue through the sale of hydroelectric power generated at the district's dams. Ball, 451 U.S. at 361-62, 101 S.Ct. at 1816-17.

In Ball, a class of registered voters who resided within the district's boundaries, but who owned little or no land, challenged the voter qualification statute. They...

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