*2 Judge, Circuit BROWNING, Before SCHNACKE, Dis- CROCKER and Judges. trict MEMORANDUM ORDER AND PER CURIAM. jurisdiction sec-

This court has of Title 28 and section 1983 Code, Title of the United States three-judge has been convened court pursuant to section 2284 of Title United States Code. on factual The case was submitted briefs, parties statements argument. testimony oral without Ray represented C. Plaintiffs were Robinson, Esq., Keister and Thomas represented Esq.; defendant was Greer, Esq., M. Newell, and Ernest M. Robert Clark, Jr., Esq. or resident Plaintiffs are landowners registered covered voters within the area defendant, Basin Lake Water Tulare organized Storage which was pursuant law. to California action, plaintiffs contend In this Water Code §§ in that are unconstitutional protection deny equal plaintiffs guaranteed by fourteenth amend- law United the Constitution ment of they permit land- in that States give vote them one owners to vote Thus valuation. of assessed each $100 vote, small cannot non-landowners get votes than fewer large landowners. court an order of this seek Plaintiffs giving effect enjoining defendant may one vote cast Only is situated him holders Qualification. ($100), or dollars one hundred for each vote at are entitled to of title to land land, ex- thereof, of his worth fraction general election. minerals, and improvements, precinct; clusive number 41001. Vote precinct. therein, pre- mineral in each votes. vote Each voter any owned of the land in which cinct remaining requiring sections and defendant these issue in this case is plan whereby malapportionment residents be to submit a of the divisions regardless alleged permitted paragraph one vote XII complaint. land-ownership. pray Plaintiffs the Dis- trict plan to submit a outset, At asks holding large. all elections at *3 rendering court this abstain argues Defendant that 43730 sections decision, proper but abstention is not 41550 California Water Code Supreme this case as the Court California provide adequate remedies, State that constitutionality already upheld has remedy Rights is not within the Civil of these two sections. Act, is, and that if it this should court Defendant is water adequate abstain due to the State organized in law 1926 California remedies. develop- which limits its activities to improvement California ment and water Water Code 43730 §§ provide adequate do supply benefit- 41550 not an within thus remedy ting malapportionment. State the land which alone bears the cost. pertains improper Section 43730 board performs no functions provides action and 41550 means general populace concern to the forcing the board to. hold an election. provides general public no service to the provided redivisioning Section 41152 Burrey such as found the court remedy plaintiffs seek, which but was Municipal Improvement v. Embarcadero repealed September that 1969. From recently Supreme District decided present, date to the there has been Court of California. remedy. adequate State compel- The State of has a grant 39777 will as it Section not relief ling development of its merely segregation requires initial limiting resources, the vote “possessing divisions the same landowners to further this character or interests ' state interest because it is doubtful the water a common Nor source.” would formed un- the District have been help, merely does section 41153 as it persons paying expenses less templates the board make control could them. order; however, redivision is no there requirement mandatory present. While it is true that the activities remedy there is no Where State economy the District affect Rights occurs, a Civil violation 42 U.S.C. area is of interest to residents interpreted provide 1983 been “to has landowners, not is an in remedy . .” [McNeese direct, primary direct interest and not a Education, 83 Board of and substantial entitle would (1963)]. S.Ct. L.Ed.2d limiting them vote. Thus the vote to landowners in this water dis Here we have divisions created plaintiffs’ does not constitu trict violate engineer acting (approved) a state man, rights, and one vote” tional the “one law, have under state and these divisions by plaintiffs cited eases are not control Direc been maintained the Board of ling special purpose in this district. purporting state act under tors also action is within U.S.C. This law. providing one vote Section Pape, [See, Monroe v. for each of assessed valuation $100 (1961)]. L.Ed.2d not unconstitutional as the benefits present been divisions not to each the District burdens landowner in years. proportion Total redivisioned assessed to the assessed value 4 is land, voting permitting of the land in Division in the same valuation so greater voting nearly total proportion fairly times than the three distributes (Divi- of Division 10 assessed valuation influence. applies $688,- $1,954,547; Division where ‘the of state law sion issue 10— 4— ” 425). uncertain’ of assessed v. Constanti- The result is Wisconsin $100 neau, three almost valuation Division 10 has (1971), power of of as- here $100 times the meaning challenged addi- Division 4. state stat- valuation in sessed separate utes land- is clear. tion, Division has only 4. owners, 10 has whereas Division merits, Turning clear at to the director to one Each division is entitled Equal Protection outset of Directors. the District’s Board challenged applies Clause in Di- Consequently, implementa their statutes but- also to repre- vision one-third the by the district. “The compared Board when sentation on the to Equal the ex Protection Clause reaches Division manifest ercise however *4 directly through ed, whether exercised or presents malapportionment Such Avery subdivisions the State.” equal protection a classic and violation of 479, County, 474, Midland to submit therefore defendant ordered (1968). 1117, 20 L.Ed.2d 45 plan malapportionment to correct Defendant and similar entities “are but months of date this deci within six the agents representatives the of the state sion becomes final. locality they the If is unable to redivision They organized pur exist. are the are rea- into divisions which pose carrying purposes out the sonably equal valuation and in assessed legislature provide for to its desire general possess character same general re of the state.” welfare or interest the water of water Irrigation District, 92 Cal. Madera sec- of a common source as See Girth 28 P. Code, Water tion 39777 of the California Cal.App.3d 325, Thompson, may provide plan for elections at (1970).3 Cal.Rptr. 823 large. constitutionality To evaluate (concur- Judge BROWNING, Circuit challenged rules, purpose ring dissenting part): part, must examined and effect rules activity. district's in the context of the court to abstain Defendant asks this determining respect or not a rendering “In whether state with decision Clause, Equal Protection and law violates to California Water Code §§ cireum- must consider the facts and we rule “But abstention regular discharge persons majority on a staff opinion 1. note 1. See at contract the construction and to majority opinion 2. at 1. note projects. § district projects district can initiate The Water declares § California Code completion. supervise powers 42200- §§ their the board conferred property private storage It can condemn water directors projects. regulatory powers police 43530-43533. §§ for use and are “are may cooperate necessary accomplishment contract with pur- with and It to agencies, public federal. pose indispensable state and other to obliga- authorize The district can interest.” Section declares use interest-bearing storage warrants. tions bonds and of of water a water impose carry can also 44900-45900. §§ facilities and to out dis- charges the use of its statute, other tolls or water, “is trict’s functions mechanisms, irrigation and other public use.” levy “as- storage governed It can and facilities. services are Water per up for or- acre $2.50 to sessments” §§ Water Code 39000-48401. California ganizational expenses powers costs incurred has “all The board of each district undertaking specific projects; authority for all to enable it prorated purposes, fully are perform imposed assessments other the duties by the generally of benefit conferred extent ..” § §§ see 43000- See, project. employ 46000-47900. §§ This includes the law, supply major stances behind the the interests ter state concerns.6 protecting, Legislature which the State claims to be has author- variety ized special interests those who are dis a wide instru- advantaged by mentalities, including storage the classification.” Wil dis- Rhodes, provide tricts, liams v. response S. a flexible 5, 10, (1968), quoted problems Ct. 21 L.Ed.2d 24 on a local basis. These special in trict, purpose agencies Kramer v. Union Free School Dis are credited “vastly expanding with water distribu- Rogers facilities” in the state. & Nichols, California, Water for Vol. 448, at 35. I persons Exclusion of from the vote defendant water scrutinized,” “carefully 193,000 intensively and can consists of must acres of “necessary pro cultivated, highly be sustained fertile farm land. The compelling sparsely populated only mote a interest.” — including Kramer persons, v. Union Free School children, live with supra, 1890.4 in its This boundaries. said typical It cannot “those ex be sustained unless of such districts because substantially agricultural, cluded are fact less in lands are and because commonly arid, subject than flooding,7 terested affected stat *5 Nearly ute includes.” at per or Id. both. cent of the land corpo 1892.5 Thus the interest of state the district is farmed four confining of the franchise to owners rations. residents of weighed land in against employees, the district are must be all of em members ployees’ families, the interest said to be of those of one or another of disadvantaged by classification, farming corporations. Only this the four namely, of landowners; two lessees residents di non-landowning rectly, through ownership district residents. but of a cor poration per about farms cent appears compelling there of the district’s land. reason for disenfranchisement of non- owner, of non-lessee residents the dis- a direct and sub- Landowners have trict, not, contrary majority’s but to the interest in efficient ef- stantial holding, for the exclusion of of management fective of district. district land. keeping purpose with the of stor- briefly may The relevant facts age districts, is au- defendant district summarized. plan projects thorized to and execute agricultural acquisition, appropriation, “for di- Much land California’s storage, conservation, version, or, and dis- suffers from mittently, inter- too little water tribution water.” Code too Calif.Water much. Conserva- tion, adopt- distribution, 42200.8 Defendant district has § control wa- plans may “any drainage Cipriano City Houma, 8. also include v. therewith, 701, 704, reclamation works connected 89 S.Ct. 23 L.Ed.2d hydroelectric energy generation (1969). and the thereto, to sale and incident distribu- Cipriano City Houma, 5. See also By the ex- tion thereof.....” supra, 395 U.S. at 89 S.Ct. press statute, however, these terms of the Kolodziejski, L.Ed.2d 647. Phoenix v. may powers additional be used 204, 207, 212-213, 90 S.Ct. plan with and incidental connection L.Ed.2d acquire, divert, store, conserve, and dis- See, g., Constitution, e. no California State tribute water in the district. There XIV, 3; Article en- Water Code evidence 100, 104, gaged generation, sale, §§ note 2. or distribu- power. tion of electric Nearly half of the land in the defendant district was flooded 1969. One third of the district still remains water. projects that contribute to the suc- three such executed ed and operations. proj- in- cess those But this These its formation in 1924. since degree storage purchase terest is different in kind or no involved ects irrigation employees from the interest of other of lands within of water for farming corporations who do not the construction of the district and project delivery system. reside in re- differ- Each is little expendi- quired ent from the interest of non-resident a multi-million dollar suppliers and others economic ture. In accordance with the statute whose well-being 46176), (Calif.Water costs be linked to the success Code farming operations. If assessed the lands were of the district’s constitutionally proportion re- entitled to benefits residents of their each tract. vote in elections because ceived employees, non- interest so too are from district burden The economic and, employees perhaps, oth- resident non-owner, non- projects cannot fall on economically er affected non-residents. no forms There are lessee residents. taxes, non-property assess oriented Against background, factual through which ments, or other means possible interest state’s evaluate the spread others. district costs could be limiting impact the franchise and the Houma, City Cipriano Cf. limitation disenfranchised L.Ed.2d 89 S.Ct. lessees and residents. Kolodziejski, (1969); U. Phoenix v. manage- The state’s 26 L.Ed. S. and, resources, there- ment of its water 2d 523 fore, opera- in the creation effective performs The district no storage and simi- tion water provides of di- function and service obviously agencies, lar one. vital the district. rect concern to residents who Limitation of the franchise Kolodziejski, Phoenix v. Cf. land own or lease district compelling to further this solely relate Its activities *6 for two reasons. in and for use distribution of water farming and the land.9 These functions necessary First, limitation is the at all if no services would not differ join in the crea landowners induce one in district. The district lived the inconceiva It is tion of such districts. nothing furnishing police do has to with owners, con the non-resident ble that protection, schools, roads, and and fire trolling per land of the cent facili- and services other agreed to would defendant usually an provided of to residents ties continued its of the district or formation hap- people reason, who area. For that denied control had been existence physical pen the to reside within of implementation and over the selection are not of the district boundaries projects district multi-million dollar the di- of the officers or board stituents of solely of designed the lands to benefit any real sense. of the district rectors entirely paid for and the district by those lands. See assessment farming corpora- employees the As Irrigation Dis Palo Verde Schindler an tions, district have of the residents trict, Cal. Cal.App.3d 831, op- of the farm interest the success unlikely (1969).10 Rptr. also is and, hence, in the activities eration with and argue connected to flood control district limited that Plaintiffs district’s does, engage to, exercise of power to the incident and has the storage and primary of water activities, functions that these flood control obviously distribution. to residents of interest power the district the district. problems “unique fact, are, any disputed, respect 10. There such but in this is the vote. limit might possess it make would equally of the interested the cost would non-resident expense projects, con- district’s for will participated this had landowner passed by agree- express unpredictable dilu- on to them trol been manipulation or in the ment form increased rentals. tion or deliberate See, Kolodziejski, supra, only g., having a remote e. Phoenix v. votes residents 1990, 26 operations. in the district’s interest obviously L.Ed.2d 523.13 And the state’s na- place, in of the view second intelligent responsible interest upon, the to be voted ture of the issues regarding decisions district’s non-owner, resi- non-lessee exclusion management program not advanced is in a water stor- from the franchise dents by excluding actually those farm who age in- dictated state’s is the land. intelligent obtaining re- terest sponsible effec- to the most decisions as question is wheth- substantial development program for tive water er lessees be excluded to induce must respective districts.12 lands of the participation. Nothing in landowner supports answer; assertedly Turning record an affirmative to those who are contrary strongly suggested disadvantaged, it from is evident foregoing corporations the fact interest the four discussion per that farm 85 cent neither own nor lease district’s residents who major land are substan- land well within the largest tially significant as the than that of landowners. less owners, remote and indirect. and is both Thus, excluding non-owner, non-lessee Their from district elections exclusion advances in- residents the state’s overall impact upon can have a minimal intelligent terest and effective water them, amply justified com- development by encouraging resources pelling state interest. the formation Contrary majority’s view, to the how- by helping in- assure informed ever, this not true of exclusion terested voters elections. who lease lands in the Further, im- minimal reflects farming. group’s This pact of the district’s activities projects district’s to increase the water group. However, analysis shows, con- farming improve its available and to trary majority’s conclusion, indistinguishable distribution excluding justify They considerations owners. ” corporate living Kolodziejski, farms on the cor- . Phoenix v. *7 poration’s 213, 1990, 1996, 204, land. U.S. 90 S.Ct. 26 L.Ed.2d 523 We are told storage some districts Mitchell, 112, 242, Oregon 9 v. 400 U.S. 1 residents, no num- a nominal (opinion 260, (1971) S.Ct. 27 L.Ed.2d 272 ownership ber. Unless of an Marshall, JJ.) ; Brennan, White, of permis- in the district’s land a were Bd., Northampton Elections Lassiter franchise, sible basis such dis- 985, L.Ed. 3 79 S.Ct. tricts could not function at all. 2d 1072 problem A similar faces reclamation organized Division of might suggests that the lessees 13. Defendant Voting in the California Water Code. provision in for a the lease obtain a prop- these districts is also limited to proxy from the lessor as allowed erty no owners. See There are § 50704. infringes If a statute otherwise residents on seven such reclamation dis- Clause, Equal Protection totaling 88,654 lo- tricts acres that are infringement of constitutional cated within the of defendant boundaries possibility that relief not ameliorated water district. through might private be obtained Sixty-six report- persons tracts. now of employees ed to reside

15J changing participat- to meet urban condi land from ments nothing voting. ing in tions. We see the Consti prevent experimentation.’ tution to Education, v. Board of [Sailors II 105, 110-111, L. U.S. S.Ct. (1967)] ownership Ed.2d But once a inter- State aof Since popu process has may required decided to use the as in district land est voting lar election and the class qualification in water stor- ‘once might qualifica 'age elections, it voters chosen and their seem specified, permissible tions we see constitu it follow that would also voting way equality weight proportion tional the votes power may Gray land, majority be evaded.’ v. Sand value voter’s as ers, Ir- U.S. [83 v. Palo Verde holds. See Schindler (Em (1963).” rigation Cal.App.3d at supra,, at 9 L.Ed.2d 821] phasis added.) Cal.Rptr. considera- Brief demonstrates, however, tion id. at 56. As Justice said White Cf. not so. Kolodziejski, supra, Phoenix v. variety In a contexts Su- L.Ed.2d wide preme “Presumptively, emphasized that when citizens are where all Court has important ways by govern- im- an exercise of affected concerns the election having powers portant referendum, mental decision ato impact members substantial weight- permit the Constitution does particular electorate, here, as voting ed the exclusion otherwise the vote to insure that qualified citizens from the franchise every member the electorate counts Placing prop- such practicable, same, far as so only by erty justified owners alone can every of the electo- other member overriding of the owners some College Hadley Dis- rate.14 In v. Junior recognize” is entitled the State trict, 58-59, (emphasis added). (1970), Mr. Jus- L.Ed.2d compel- identified no Supreme Defendants tice Black summarized the weighted ling state interest position language applicable Court’s storage elections. to this case: the conten- weakens cases, The statute itself may, in certain lim- State “[A] decline would landowners right vote participate a water in the formation of group people. or class of As we said weighed each vote governments before, local ‘[v]iable majority equally. of the number A many innovations, numerous need normally required form devices, and new combinations old (Calif.Water Code a district flexibility arrange- great municipal (1964) ; Maryland Avery County, Commit L.Ed.2d 609 Midland *8 1429, 656, Tawes, 1114, (1968) ; 84 S.Ct. U.S. 485, v. tee 377 L.Ed.2d 45 88 20 S.Ct. WMCA, (1964) ; Inc. v. Adams, 440, 595 12 L.Ed.2d v. U.S. 87 S.Ct. Swann 385 1418, 633, Lomenzo, S.Ct. (1967) ; 84 569, 377 U.S. Lucas v. 17 L.Ed.2d 501 Reynolds (1964) ; v. 713, Assembly, 12 L.Ed.2d 568 U.S. Colorado Gen. 377 1362, Sims, (1964) ; 84 S.Ct. 1459, U.S. 12 377 L.Ed.2d 632 84 S.Ct. Wesberry (1964) ; v. 73, Richardson, 12 L.Ed.2d 506 86 v. 384 U.S. Burns Gray (1964) ; 1, (1966) ; Sanders, 1286, 7-8 376 U.S. 16 L.Ed.2d 376 S.Ct. 367, Sanders, Sincock, 695, U.S. v. Roman v. S.Ct. (1963). 801, 1449, (1964) ; 9 L.Ed.2d Davis v. S.Ct. L.Ed.2d 620 1441, Mann, 678, 377 U.S. 39400)15 majority (1970). and a of the number L.Ed.2d 129 required voting ap- Burrey v. Embarcadero Munici- prove project. Improvement pal district a Calif.Water 5 Cal.3d Cal.Rptr. (1971). Code 488 P.2d § can that Neither be said state’s Ill intelligent responsible in voting. by weighted is served elections Depart- The order of the California nothing sup- There record to approving ment Water Resources assumption port that land- a small formation of the defendant district di- likely large owner less than one divisions vided into eleven possess information and understand- election of the district’s directors to ing development problems board.17 intelligent requisite responsi- director, Each division elects but one ble on the affairs a water stor- divi- the number of landowners age Virginia Harper district. Cf. sions varies from 110 division four Elections, Board of rec- four ten.18 division While 86 S.Ct. 16 L.Ed.2d 169 ord does lessees not show number finding And the landowner’s division, be- there is no reason to each implementing to those solutions gross malapportionment lieve problems is no acute his less because among corrected the divisions will be operation production is small. Efficient including among merely by acreage may from smaller his qualified to vote. greater consequence him; economic malapportionment and the lesser absolute does indeed share of the cost Such may16 equal .projects present pro- he classic violation of greater may impose Reynolds to bear Sims, burden. tection. Judge As Wisdom said related 562-563 & n. text, voting responsibility, “In terms of Justice As Mr. there Hadley, is no correlation supra, between Black said after find- ing of an important amount the de- assessment and func- gree taxpayer having of interest a tions were involved sufficient im- particular throughout pact bond A ten constituency, issue. thousand “when person may dollar house to body one mean members of an elected are chosen person more than separate districts, a hundred each district thousand dollar house another.” be established on must a basis that will Stewart insure, v. Parish Board Par- School practicable, as far as is Charles, ish of F.Supp. St. equal pro- numbers of voters can vote (E.D.La.1970), portionally aff’d 400 equal numbers of officials.” posed five, nine, alternative is “not less than 500 seven, into or petitioners, each segregate of whom is the holder eleven so divisions as to into pe- separate title to land possessing therein divisions lands titioners include the of title holders same character of water percent less than 10 in value of the land interests in the water of a common proposed within included district.” source. The divisions shall be numbered first, second, third, § 39400. fourth, fifth, sixth, seventh, ninth, eighth, tenth, eleventh, Project pro- costs are distributed according to the number the division.” portion to the benefit conferred pro- practices weighted voting tract rather than in 18. Even were the portion valid, malapportionment to the tract’s value or size. Cal- ifornia Water Code would be substantial. The assessed value $1,954,547, of the land division four is California Water Code 39777 reads: $688,425. while that ten of division “Division district. order *9 hearing pro- final shall divide also 90 S.Ct. at 25 L.Ed. 2d 45. Wesley BARTHELMES, Jr., A. et al. apportionment suggested that the It is statutory- compliance with reflects Willard MORRIS, individually, A. and as “so division lines be drawn directive Administrator of the State Administra- segregate separate into divisions as to tive Laws, Board of Election et al. possessing the char- lands same Civ. No. 72-275-B. rights.” note acter of Court, United States District unnecessary It consider whether Maryland. D. justify result, if true. this would April 6, 1972. divisional The is clear record Appeal Dismissed June on this lines not drawn basis.19 were also demonstrates that record statutory is irrelevant directive

drawing lines the defend- of division rights for all

ant district same character.20 are of the

Finally, imply that seems defendant malapportionment of does divisions action involve

Equal But noted Clause. as Protection ap-

earlier, present divisions were Department

proved the California required by stat-

Water Resources (see prohibitions 17),

ute note “the

of the Fourteenth Amendment extend to denying pro- equal

all action of the State laws;

tection of whatever taking

agency of the the action State Cooper Aaron,

.” 3 L.Ed.2d Avery also v. Midland

County, supra, 479-480 Schedule, Feasibility Kings “Report Proposed River in the A as stated right Storage its Lake Water Dis- derived Tulare Basin its water California, trict,” to the California District with the state submitted tract equal the lands benefit of as an exhibit for the Securities Commission say, Report there are no Amended is to district’s That District. Project 1, priorities gradations within Dis- Estimate Cost states pages water.” trict as to District 73-74: following appears proposed generally defendant’s follow “The divisions Report existing of Cost for and Estimate dis- Amended the lines of reclamation 19) Project (see : note understood tricts. adjusted repre- say, give all waters —whatever the balance of “That is to acquired quantity parties sentation desired be— ” agreement are to be . . under control acreage prorated equally over words, Or, statement, in other de- that District. Plaintiffs’ factual every equal, things being of land response, acre accepted : fendant without states your District boundaries within the “The water of Tulare Lake your proj- equally Storage District, benefited ex- will Basin Water original.) (Emphasis right Kings ample, ect.” River its water