Stone v. Stovall

Decision Date15 October 1974
Docket NumberNo. CA-4-1975.,CA-4-1975.
Citation377 F. Supp. 1016
PartiesMichael L. STONE et al., Plaintiffs, v. R. M. STOVALL, Mayor, et al., Defendants.
CourtU.S. District Court — Northern District of Texas

Don Gladden and Marvin Collins, Greater Fort Worth Chapter of American Civil Liberties Union, Fort Worth, Tex., for plaintiffs.

S. G. Johndroe, City Atty., Fort Worth, Tex., Crawford Martin, Atty. Gen., Robert B. Davis, Asst. Atty. Gen., Austin, Tex., for defendants.

Before THORNBERRY, Circuit Judge, and BREWSTER and WOODWARD, District Judges.

Probable Jurisdiction Noted October 15, 1974. See 95 S.Ct. 35.

MEMORANDUM OPINION

THORNBERRY, Circuit Judge:

This class action challenges the constitutionality of state and city laws which restrict suffrage in bond elections to persons who have made available for taxation some item of real, personal, or mixed property.1 We believe the defendants2 have failed to demonstrate that this diminution of the electorate is necessary to promote a compelling state interest and therefore declare the provisions attacked to be in violation of the equal protection clause of the Fourteenth Amendment.

I.

On April 11, 1972, the city of Fort Worth, Texas, held a bond election that submitted to the voting public two proposed bond issues, one for transportation bonds and one for library bonds. The voters approved the transportation bonds without incident, and the bonds have been sold. The library bonds were not so successful.

Under the laws of Texas3 and the city charter of Fort Worth,4 one must have some item of property on the tax rolls to be eligible to vote in a bond election. The property may be of any type—real, personal, or mixed. It can be of any value so long as it is not covered by an exemption.5 One's eligibility depends upon his making the property available for taxation ("rendering" it), not upon paying the tax. In theory at least, one might gain eligibility by rendering his wrist watch, clothing, or any common item of personal property.

The Texas Supreme Court has held that the rendering requirement is constitutional. Montgomery Independent School District v. Martin, 464 S.W.2d 638 (Tex.1971). The U. S. Supreme Court, however, has held similar voting prerequisites unconstitutional.6 To ensure the validity and marketability of the transportation and library bonds, should they be approved, the City of Fort Worth held two separate but simultaneous elections on April 11, 1972. This was done by separately tabulating the votes of those who owned taxable property in Fort Worth and had rendered it for taxation, and those who had not rendered property for taxation. Both groups, the renderers and the non-renderers, approved the transportation bonds by a majority vote. But the library bonds were given a mixed reception at the polls. A majority of the renderers rejected the proposal to issue library bonds, but the non-renderers approved it by a three-to-one margin. Adding together the votes of both groups showed that a majority of all the voters participating favored issuing the library bonds.7 The net result was the library bonds could be sold only if the non-renderers were constitutionally entitled to vote despite the contrary Texas and Fort Worth laws. Convinced that the Texas rendering requirement was constitutionally valid, the city fathers of Fort Worth refused to sell the library bonds, precipitating this lawsuit.

The individual plaintiffs in this case seek to represent a class composed of all those who voted for Proposition Two, the library bonds. Having measured these representatives and their proposed class against the criteria of F. R.Civ.P. 23, we believe the class and representatives are proper. A total of 14,607 persons voted for Proposition No. 2, making the class too numerous for joinder of all. The class members have a common question of law: whether the provisions in question are consistent with the principles of equal protection. The claims of the representatives are identical with those of the class. The plaintiffs' excellent brief leaves no doubt that they will fairly and adequately protect the interests of the class. And the defendants have refused to act on grounds generally applicable to the class by blocking issuance of the bonds because existing law requires approval by a majority of the rendering property owners who cast ballots. Thus we conclude that this is a proper class action under F.R.Civ.P. 23(b)(2). Having established the plaintiffs' class character, we turn now to their grievance.

II.

Plaintiffs' equal protection arguments are bottomed upon the theory that the state, through its rendering requirement, has divided its otherwise eligible voters into two classifications, one of which cannot vote in bond elections. We think this theory is correct.

Defendants appear to argue that the state has made no one ineligible to vote and thus has created no classifications. They say that since Texas law subjects all property to taxation, anyone who is willing to render his property may vote. Voters choosing not to render their property simply disenfranchise themselves.8 Defendants' argument proves too much; it would also support a poll tax, a practice long since declared an impermissible burden on the right to vote. Harper v. Virginia State Board of Electors, 1966, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169. The poll tax, too, was a trivial financial requirement that virtually everyone could meet. It is sheer sophistry to say the classes create themselves, or that the voters disenfranchise themselves, when the state requires would-be voters to meet requirements entirely irrelevant to the needs of sound election administration or voter competence.

We might add that we suspect the Texas rendering requirement has created a class of citizens who own too little property to merit a vote in bond elections. The record fails to indicate the number of people who render for taxation personalty other than automobiles, but we doubt that many do. Cf. Stewart v. Parish School Board, E.D.La.1970, 310 F.Supp. 1172, aff'd mem., 400 U.S. 884, 91 S.Ct. 136, 27 L.Ed.2d 129. If, as a practical matter, nonautomobile personalty virtually is never rendered, and rendering an item of property is a prerequisite to voting, then Texas has dis-enfranchised an indeterminate number of citizens who possess neither real estate nor car. Thus these laws on their face disenfranchise those who own property but do not render it, and in practice may well deny the ballot to a group of citizens whose possessions have been adjudged too meager.

III.

A brief survey of the relevant case law will place plaintiffs' case in perspective. We start with the proposition that the states have "broad powers to determine the conditions under which the right of suffrage may be exercised." Lassiter v. Northampton Election Board, 1959, 360 U.S. 45, 50, 79 S.Ct. 985, 989, 3 L.Ed.2d 1072. But "once the franchise is granted to the electorate, lines may not be drawn which are inconsistent with the Equal Protection Clause of the Fourteenth Amendment." Harper v. Virginia Board of Elections, 1966, 383 U.S. 663, 665, 86 S.Ct. 1079, 1081, 16 L. Ed.2d 169. See Evans v. Cornman, 1970, 398 U.S. 419, 90 S.Ct. 1752, 26 L. Ed.2d 370. When a state excludes citizens from the electorate, it must justify the exclusion under the harsh "compelling state interest" test. Kramer v. Union Free School District, 1969, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583; Cipriano v. City of Houma, 1969, 395 U.S. 701, 89 S.Ct. 1897, 23 L.Ed.2d 647; City of Phoenix v. Kolodziejski, 1970, 399 U.S. 204, 90 S.Ct. 1990, 26 L.Ed.2d 523; Dunn v. Blumstein, 1972, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274. The test has two steps: (1) whether the exclusions are necessary to promote the state's articulated interest and (2) whether the interest is compelling. Kramer, supra. To qualify as necessary, exclusions must be tailored with precision. E. g., Dunn v. Blumstein, supra. And the state must pursue its compelling interest in the way that burdens constitutionally protected activity least. Id.

IV.

Defendants advance two state interests that are served by excluding nonrenderers from bond elections. The first interest is limiting the ballot to those who have a financial stake in the election's outcome. This interest is based on notions of fairness: those whose taxes will service the bonds should be the only ones deciding whether the debt is worth undertaking. To permit non-renderers a "free ride," we are told, would be tantamount to depriving the renderers of their property without due process, and would at least constitute preferential treatment.

The other (and primary) interest advanced is the necessity of encouraging the citizens to render their property so that the public treasury will be fortified by an efficiently collected property tax. See Montgomery Independent School District v. Martin, 464 S.W.2d 638 (Tex. 1971); Markowsky v. Newman, 134 Tex. 440, 136 S.W.2d 808 (1940). We shall subject these state interests to close judicial scrutiny and the compelling interest test.

We examine first the state's interest in limiting the electorate to those who will be primarily affected by its outcome, i. e., those who will pay the financial obligation created by the bonds. Defendants' argument is strengthened by the fact that the City of Fort Worth intends to issue general obligation bonds, not revenue bonds. Revenue bonds are serviced by the income from the enterprise they finance. General obligation bonds are serviced by general tax revenues. In this case the parties have stipulated that the proposed library bonds' principal and interest will be paid from taxes on real, personal, and mixed property rendered by the city's taxpayers. Thus the impact on property owners is significantly greater than it was in similar cases decided by the Supreme Court. For example, in City of Phoenix v. Kolodziejski, 1970, 399 U.S....

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2 cases
  • Hill v. Stone 8212 1723
    • United States
    • United States Supreme Court
    • May 12, 1975
    ...voting classifications, this Court's decision should apply only to elections not final as of the date of this decision. Pp. 301-302. 377 F.Supp. 1016, David M. Kendall, Jr., Austin, for appellant. Don Gladden, Fort Worth, Tex., for appellees. Mr. Justice MARSHALL delivered the opinion of th......
  • Ex parte Southland Independent School District, 8515
    • United States
    • Court of Appeals of Texas. Court of Civil Appeals of Texas
    • December 16, 1974
    ...insofar as they condition the right to vote in bond elections on citizens' rendering property for taxation.' Stone v. Stovall, 377 F.Supp. 1016 (N.D.Texas 1974). In their first amended motion for rehearing, appellants observe that we did not mention Stone v. Stovall, supra, and protest beca......
1 books & journal articles
  • Colorado Municipal Bonds - a Revolution
    • United States
    • Colorado Bar Association Colorado Lawyer No. 4-6, June 1975
    • Invalid date
    ...not to expand the vote at city elections to include non-resident property owners. 41. 95 S. Ct. 37 (1974). 42. Stone v. Stovall, D.C., 377 F. Supp. 1016 (1974). 43. Session Laws of Colo., 1970, ch. 42, pp. 135-146; ch. 71, pp. 253-313; ch. 80, pp. 330-339; and ch. 98, pp. 400-410. 44. U.S. ......

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