Contest of a Certain Special Election v. Special Road Districts Nos. 9, 10, 11 and 12

In the Matter of a A CER- CONTEST OF ELECTION; Special

TAIN SPECIAL 9, 10,

Road Districts Nos. 11 and Authority (Fountain Hills)

Joint Powers Arizona, County, Maricopa Consoli- Precinct, May 5,

dated 1981: Election Genin, GENIN,

Jesse Bella Edward Sol Connor,

Joseph Connor, Frances Jean Stephen and

Clifford Kozlow Kasimir Tritschler, Appellees,

Moran Petitioners 9, 10, ROAD

SPECIAL DISTRICTS NOS. Authority

11 AND Joint Powers Hills) (Fountain Maricopa County Ar- Marks, Langerman, Begam, Lewis & P.A. izona, Respondents Appellants Lewis, Phoenix, petitioners Frank appellees. Ralston, Ryley, Joseph Carlock & P.A. by Properties, MCO Inc. and Johanna K. Ralston, Phoenix, P. respondents appel- Kobli, Appellants. Intervenors lants. No. 1 CA-CIV 6254. Martori, Victor, Meyer, Hendricks & P.A. Hammond, Nelson, Larry A. Randall C. Appeals Arizona, Court of Phoenix, appellants. for intervenors 1, Department Division B. Nov. 1982. OPINION Rehearing Denied Dec. DAVIS, Judge RICHARD M. Tern. Pro Review Denied Feb. af- challenge a two-thirds

firmative in the statute authorizing the dis- issuance of trict rejected bonds. The trial court challenge, and we affirm its decision. The appellant special road districts were organized pursuant in 1973 18-251 The districts are located Maricopa Fountain Hills area of County. The four districts have consolidat- ed operate through joint board of trustees. they sought In 1974 and received within .from voters their districts $24,000,000 to issue at a in bonds maximum interest rate 9 percent. Ap- $6,000,000 proximately of the were bonds sold in 1974.

Because the rise in subsequent general prevented interest rates the successful mar- bonds, keting remaining the trustees decided in 1979 to ask the district electorate to authorize an increase in maximum 150

interest rate percent.1 to 12 by simple majority. Issuance of more than a special road district bonds au- refer- the constitutions of 20 states upon thorized the affirmative vote of two- rang- approval by special majorities endum thirds of voting. 18-259(B). those A.R.S. § 75 ing percent percent. from 55 An held, election was and 52.9 percent of Note, and Mu- generally, “Judicial Activism those lawfully voting approved the pro- With nicipal Killing Bonds: Two-Thirds posed increase in the interest rate. The Stone?”, (1970). One 56 Va.Law Review 295 districts nevertheless certified the results of su Citing federal Constitution’s own the election to the Supervisors Board of as per-majority requirements, the United if there had approval been by two-thirds of rejected Supreme challenge States voting, those they have maintained percent require to a 60 affirmative vote that the issue carried. ment in a school bond election. Gordon v. Appellees are voters in the districts who 403 91 29 U.S. L.Ed.2d opposed the proposal to increase the maxi- 273 It also affirmed curiam a per mum interest rate. They brought an elec- three-judge federal district court decision tion contest in the Superior Court pursuant rejecting a to a affirm challenge two-thirds to A.R.S. 16-1201. The appellants § MCO ative vote requirement another school Properties, Inc., developer of Fountain bond case. District of Brenner Hills, Kobli, and Johanna proponent Kansas 403 U.S. proposal, were allowed to intervene. 2225, 29 The appellants affirming contended below 315 they as do here that “super-majority” F.Supp. (W.D.Mo.1970). two-thirds 627 Challenges to voting requirement violates Equal Pro- extraordinary majority voting requirements tection Clause of the 14th Amendment rejected have been in other courts. Ama the United States Constitution spe- because dor Valley High Joint Union District cial road districts are the only bonding dis- Equalization, Board of 22 State Cal.3d tricts in the state for which a two-thirds 208, 149 Cal.Rptr. (1978); 583 P.2d 1281 affirmative vote is required. Based upon Elections, Lefkovits v. State Board of the assumed position, correctness of that (N.D.Ill., F.Supp. 1975); Tiews Tim appellants further contend that A.R.S. District, berlane Regional School 111 N.H. 18-259(B) can and should be construed as (N.H.1971); 273 A.2d 680 Adams v. Fort authorizing approval of an increase in the District, Madison Community School by simple rate majority vote. interest (Iowa 1970); Kinzer, N.W.2d 132 Bogert v. position thus take the that Idaho passed. parties stipulated issue to the argue nevertheless here court, material facts in the trial and based that appellees must and cannot show a thereon the trial court summary rendered “compelling state judgment justify in favor of interest” to appellees, holding that or, pass. requirement, issue did not two-thirds in the alterna- tive, they that cannot show a rational basis By way of brief historical background, legislation. These arguments are appears development that of the Erie advanced in connection with ba- appellants’ Canal ushered in an expansive period of sic position equal are denied the state municipal There financing. were protection of the laws because voters excesses, and large concern over the indebt- general improve- cities and towns2 and in edness of governments heightened local was passage ment obtain districts3 Panic of 1873. In the more cautious atmosphere followed, many programs states en- construction or requirements acted approved simple that bonds be vote. seq. expressly

1. While there is no statute 2. See 9-781 et authoriz- ing interest, alone, an election on the rate of appeal. that is not an issue on this 11-771 3. See A.R.S. § holding in Gordon The crux of appellants rely The cases more-than-major- long so Lance is that argument must support appellees their in a does not bond case ity interest” “compelling demonstrate state discrimi- against authorize “discriminate are cases provision question ... any identifiable class against nation [it group some of citizens have been where Protection Equal not violate does] from in an election. participating excluded 6, Gor- 403 at 91 Clause.” U.S. S.Ct. Stone, 289, v. Hill 421 95 S.Ct. See U.S. itself as stand- v. Lance must be taken don 1637, (1975), 44 172 Phoenix City L.Ed.2d of that, they are ing proposition unless 1990, 204, Kolodziejski, v. 399 90 U.S. S.Ct. identified, the manner otherwise in some (1970), of City 26 L.Ed.2d 523 v. Cipriano not them- of a bond issue are proponents Houma, 701, 1897, 395 23 U.S. 89 S.Ct. class”, or a “dis- an “identifiable selves such (1969), Jury L.Ed.2d 647 and Police minority.” crete and insular Herbert, of Vermilion v. 404 U.S. Parish 807, 52, (1971), 92 30 re however, S.Ct. L.Ed.2d 39 that this case argue, Appellants curiam, 41, versing per 258 La. 245 So.2d Lance and from Gordon v. distinguishable (1971), or involving ownership 349 each re- presents the situation this case to “rendering” prerequisite deci- v. Lance for future served in Gordon vote; to v. right following pas- and see also Kramer refer to sion. District, 621, 5, Free 395 89 at at 1891: Union U.S. at 403 U.S. 91 sages S.Ct. 1886, (1969); Harper L.Ed.2d v. 23 583 S.Ct. previous the restrictions in our Unlike Elections, Board 383 Virginia U.S. State cases, Virginia sin- The West Constitution 1079, (1966); 663, 16 L.Ed.2d 169 86 S.Ct. gles out no “discrete and insular minori- Rash, 89, 85 Carrington v. 380 U.S. S.Ct. treatment. The three- ty” 775, 13 (1965); 675 v. L.Ed.2d and Gomillion to all requirement applies equally fifths 339, 125, 5 Lightfoot, 364 U.S. 81 S.Ct. any bond issues for whether for purpose, (1960)4 110 Su schools, sewers, L.Ed.2d The United States We are highways. therefore, has in these cases preme developed not, like presented with a case judicial which scrutiny” Erickson, of “strict standard 385 S.Ct. Hunter v. 393 U.S. [89 justification 557, (1969), the burden of on which fair places 21 L.Ed.2d 616] to legislation subject which creates proponent housing legislation alone was impacts adversely requirement. suspect classification or an automatic referendum right. See upon some basic constitutional was singled The class out in Hunter Independent District v. Antonio San who benefit from clear —“those would 1278, 1, 36 racial, 411 U.S. 93 Rodriquez, S.Ct. or ancestral barring religious, laws (1973); v. Arizo discriminations,” Arizona Downs supra, at at 391 S.Ct. [89 Foundation, 550, contrast, na Horsemen’s 560, at we 21 L.Ed.2d 662]. v. line This Hill Stone independently no identifiable can discern present in- plainly inapposite category of cases is that favors bonded group or however, case, dispute financing. because is without over other forms of debtedness population no every qualified Consequently otherwise elector sector of from the is entitled to bond elec said to be “fenced out” vote in a will way they franchise because tion. authority. v. cases, lending per- Cf. Gordon Tangential this line of these and supra. them, spective person, one are the “one Carr, 369 Baker v. which vote” cases followed parties and discussed cited 186, 691, (1962), James, 82 S.Ct. 7 L.Ed.2d 663 U.S. cases, Ball purpose district Sanders, including Grey v. 368, 372 U.S. 83 355, 1811, 150 68 L.Ed.2d 451 U.S. Reynolds 801, (1963), 821 9 L.Ed.2d and Salyer S.Ct. Tulare Lake Land (1981), Co. and Sims, District, 84 12 L.Ed.2d Storage 377 U.S. S.Ct. 93 Water 410 U.S. Basin College Hadley Dis- v. Junior in- 35 L.Ed.2d 659 S.Ct. weight of Kansas 397 U.S. trict to be to vote and volved (1970) specific appli- cited 25 L.Ed.2d and cases These have no votes. accorded Appellant argued from here has not therein. cation here. Rash, vote. Carrington supra, pose Cf. at for which bonds are to be issued. S.Ct. at 13 L.Ed.2d at Cities and towns are also to be [85 679]. i.e., compact, “urban in nature.” A.R.S. persuaded, We are not reading 9-101(E). county highway bond is- Gordon v. entirety, Lance in its that uni- procedure suing appointment involves the formity of an affirmative vote county highway of a commission and the within a state is essential to the force of the preparation report maps of a indicating general principles set forth. A lack uni- proposed improvements and construc- would, course, formity be a critical factor tion, and these must accompany call for if design to discriminate was otherwise 18-231, 18-232, election. 18-233 A.R.S. §§ apparent. When sought 18-236. bonds are to be Appellants have cited in their briefs 21 35-451, issued pursuant to A.R.S. bond-authorizing provisions in the Arizona seq., required. a statement of Revised applicable Statutes to a variety of A.R.S. 35-455. issuers, including hospitals, utilities, munici- Thus, apart special from the fact that a palities and various districts. Appellants road district well be formed a might in assert without rebuttal from appellees that area, rural with few relatively property special road districts are Arizona bill, special owners to foot the road issuers for which simple major- more than a district provisions unique bond are in the ity vote required. arguing is In special lack of information to be furnished road districts are unreasonably distinct in to the prior voters to election. regard bonds, to the issuance of Nothing of which we are aware re comparison general focus a with im- quires provide the state to creation provement (A.R.S. 11-771 et § special grant road districts or to them cities, towns, seq.) and counties and entities bonding power. bonding power with pursuant authorized to issue bonds to potential its lien nonap on the 9-782, A.R.S. 18-236 and 35-452. §§ proving is in sharp derogation landowners legislation, district in- of the law. An common election authoriz bonds, cluding provisions respect in to pre- ing a bond issue binds not only present, but dates statehood. Bartlett v. MacDo- taxpayers. future Gordon v. nald, 149 P. 752 A supra. And as at least one court has ob special road district can be no more than served, apt bond referenda are to attract one mile long. wide and ten miles It is few voters. Brenner v. District of upon presentation created a petition by Missouri, supra. Notwith Kansas taxpayers to supervisors the board of standing the Mansfield to rationale Lord subsequent and a two-thirds affirmative the effect that those who do not vote for vote of the district electorate. When the Foxcroft, Rex v. complain, feit the to bonds, propose trustees to sell more nothing 2 Burr. 1017 a state has an interest amount, denominations, than the maximum providing for a broader consensus for rate of interest and terms of the bonds need a public substantial indebtedness than bare 18-251, be stated in the notice. A.R.S. §§ perhaps might of what be small 18-253 and 18-258. Brenner v. District of minority. Kansas City, supra. contrast,

By general the creation of a requires district certain af- that when appel- It should also be noted firmative findings by supervi- board of general lants that a seek to demonstrate public sors as to benefit and when bond can be used for the improvement district sought, district, authorization is a declaration of ne- special road purposes same cessity improvements and statement of Assuming they demonstrate too much. 11-771.02, appel- purpose required. determining accuracy is A.R.S. without incorporated and 11-771.22. An a case of discrimination proposition, 11-771.05 lants’ city issuing pursuant or town bonds to made out of the fact that hardly can has, effect, its interested pur- state state offered seq. 9-781 et must Davis, end, optional citizens routes to a desired one NOTE: The Honorable Richard M. record, does not involve the asserted dis- has of which of a court of Judge pro tempore condition.5 criminatory to in this mat- participate been authorized the Arizona ter the Chief Justice of com- closely invited us to Const, pursuant Arizona Supreme Court pare legislation road district VI, art. accept- with other enactments and we have invitation to do ed the so. We should JACOBSON, Judge, concur- Presiding as how- holding implying, be understood ring. ever, every argu- surface distinction in in the cor- majority opinion The result analogous legislation such ably demands requires rect. What me to write a concur- rigorous analysis. Legislating per- is not a is the of the ma- ring opinion, tacit failure fect science and even with the best data jority opinion fully grips come to processing equipment never will probably residing spe- whether or not individuals be. pursuant cial road districts created everything While we would endorse class 18-251 et constitute a A.R.S. § Kin- majority’s Bogert decision in pro- invoking equal zer, we endorse supra, the idea advanced Arizona and tection clauses both the Shepherd high- Judge an attack on my opinion, United States constitutions. an margin essentially such a class. these individuals constitute on procedure govern- attack or method of out, majority opinion points As the high premi- ment —a method which places bonding provisions to a applicable numerous stability Equal um on consensus. The units, governmental only of resi- myriad Clause, hand, on is Protection the other singled road special dents of districts are aimed at vitally invidious discrimination majority requirements. super voting out for See, against people, and groups people. of statutory the sharp This is in contrast Doud, e.g., Morey 354 U.S. in scheme under consideration Gordon (1957). 1 L.Ed.2d 1485 There is no 29 L.Ed.2d 403 U.S. S.Ct. hint of invidious discrimination here. To principal authority relied on that the extent idea of classification Gordon, at issue majority opinion. In at all to weighted relevant this kind of of a scheme constitutionality was the himself, voting, only the voter classifies politi- which that all Virginia West myriad he A after votes. of factors not incur cal subdivisions state could gone yea into his to vote or decision approval indebtedness without the bonded nay. a resolu- the voters. Essential to of 60% of Every duly enacted statute is enti not a issue was whether or tion of this presumption constitutionality. to a of tled was a simple majority approval of denial Lockport Town of Citizens for Communi The court held equal protection. of denial Action, 430 U.S. ty with agree it was not. I therefore we have some While Gordon, neces- conclusion that of majority’s subject has been doubt statute propo- sity, proposition stands for called into as to re effectively question so an issue not constitute nents of a bond do basis, of see Bren showing a rational quire class.” “identifiable Mis ner v. District of Kansas souri, very it supra, to the extent it has question does answer This muster. clearly passes here, Virginia’s West for unlike presented Arizo- majority requirement, super uniform affirmed. Judgment for singles out na, of Gordon in the words and insular a “discrete GRANT, J., treatment special concurs. general A Commu- legislation authorizing Vehicle For Planned tricts Statute: nity Development,” creation of 5. The the Social 1972 Law and improvement appears been to have developing Order for new communities. created Comment, Improvement Dis- “Arizona General classification, minority” special approaching of road dis- In the issue of —residents tricts. I might agree correctly While that there is no finds that the court absolute requirement provide that the state determine whether a reasonable only need bonding authority to build roads for use classification, basis exists for the rather citizens, having its once undertaken to do stringent than the more test of “strict scru- has, fortiori, so the state a created a class interest.” tiny” “compelling See State subjected citizens whose tax- property Levy’s, 119 Ariz. ation for the creation of those roads. Since a reasonable basis exists for my opinion I can no difference be- discern in needs treating special differently road districts property tween landowners whose is taxed improvement than districts. other road general for roads under dis- by majority, special As stated trict and those whose is taxed for nature, road districts are rural district, special ap- roads under a carry of citizens to the finan- small number pears to me that the state must treat all burden, issues cial and the bond equally, principles those needs under subject are not the citizens vote equal protection. This Arizona has not are many requirements of need and cost as _ done. The need for roads of residents placed other issues before bond general improvement districts are satisfied in the charac- on the ballot. The difference by a simple majority affirmative vote. statutory prerequi- ter of the area and the corresponding needs of residents of provides of the district sites for creation road districts can by be satisfied treatment ac- rational basis for different disparity two-thirds affirmative vote. This the citizens legislature corded my opinion treatment creates a dis- vio- within road districts. I find no purposes applying cernable class for the or Arizona Con- lation of the United States equal protection principles. equal protection stitutions’ clauses. However, simply finding such a class therefore, I, with the result concur equal protection exists for does majority. reached imply finding that such a class unconstitutionally has been created. This

principle Schrey is articulated in v. Allison Co., 282, 286,

Steel Manufacturing (1953): P.2d

All discrimination or for- inequality is not

bidden. privileges may grant- Certain be P.2d ed some and denied others under some ELECTRIC WHOLESALE BROWN circumstances, granted if or de- COMPANY, corpora- a California upon the same there nied terms and if tion, Plaintiff-Appellee, exists a reasonable basis therefor. When presented showing partiality, law COMPANY OF INSURANCE SAFECO always inevitably we are led into the AMERICA, corporation, of classification. problem troublesome Defendant-Appellant. principle legisla- involved is not that tion burdens or may impose 6331. No. 1 CA-CIV on or grant special privileges imposed Arizona, Appeals others; granted it is that no law B. Department Division good principle without reason. A do so 12, 1982. Nov. none can is that a statute dispute operate unequally be allowed to be- Dec. Rehearing Denied operates uniformly if it tween classes Feb. Review Denied class, upon provided all members of a classification is founded reason whimsical, arbitrary. capricious

is not

(Cite omitted).

Case Details

Case Name: Contest of a Certain Special Election v. Special Road Districts Nos. 9, 10, 11 and 12

Court Name: Court of Appeals of Arizona

Date Published: Sep 10, 2011

Citation: 659 P.2d 1294

Docket Number: 1 CA-CIV 6254

Court Abbreviation: Ariz. Ct. App.