NO. 94-499

IN THE SUPREME COURT OF THE STATE OF MONTANA

1995

ELIZABETH J. JOHNSON,

Contestant and Respondent,

-vsCURTIS KILLINGSWORTH,

Contestee and Appellant.

APPEAL FROM: District Court of the Fourth Judicial District,

In and for the County of Missoula,

The Honorable John W. Larson, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Kevin R. Callaghan; Harris, Callaghan & Velk,

Missoula, Montana

Alan F. Blakley, Attorney at Law, Missoula,

Montana

For Respondent:

Richard R. Buley; Tipp & Buley, Missoula,

Montana

Submitted on Briefs: January 19, 1995

Decided: April 11, 1995
Justice Karla M. Gray delivered the Opinion of the Court.

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

2
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) I 265 Mont. 95, 100, 874 P.2d 1219, 1223. Moreover, a

party's reference to evidence does not incorporate that evidence

into the record. Marriaqe 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(l) 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

3
possessing the qualifications set forth in 5 85-7-1501, MCA. See

§ 85-7-107(3) (e), MCA. Pursuant to § 85-7-1501, MCA, "[al 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 5 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

4
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. Simms (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 compellinq

governmental interest."' -,Dunn 405 U.S. at 342 (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. Averv, 390 U.S. at 484. 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

5
influence to those citizens most affected. Avery, 390 U.S. at 483-

84. 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[el 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 Averv and Turner. The case involved a water

storage district whose primary purpose was the acquisition,

storage, and distribution of water for farming. Salver, 410 U.S.

at 728. 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. Salver, 410 U.S. at 729.

The plaintiff in Salver 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

6
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. Salver,

410 U.S. at 728-29.

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.

Salver, 410 U.S. at 728. 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.

Salver, 410 U.S. at 730.

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. Like the district

in Salver, financial responsibility for the Ball district primarily

fell on subscribing landowners who were assessed on an acreageproportionate basis with the assessment becoming a lien on the

owners' land until paid; the u district differed from the

district in Salver, however, in that it also raised revenue through

the sale of hydroelectric power generated at the district's dams.

- I Ball 451 U.S. at 361-62.

In Ball -I a class of registered voters who resided within the

7
district's boundaries, but who owned little or no land, challenged

the voter qualification statute. They alleged that limiting the

election of district directors to landowners, and apportioning

those votes according to acreage, violated their right to equal

protection. ~,Ball 451 U.S. at 357. The class argued that the

district's ability to condemn land, levy taxes and sell electrical

power to essentially half the population of Arizona, and its

significant influence on environmental management within its

boundaries, had a substantial effect on all residents within the

district regardless of property ownership. Ball, 451 U.S. at 360.

The Supreme Court rejected this argument, relying on Salver.

The Supreme Court determined that while the district included

almost half of Arizona's population within its boundaries, supplied

power to half the state and met its operating costs with revenue

derived from its power generation, the differences between the

Salver and u districts were not constitutionally significant.

- I Ball 451 U.S. at 365-66. The district did not exercise ordinary

functions of general government such as the imposition of ad

valorem property taxes or sales taxes, "the maintenance of streets,

the operation of schools, or sanitation, health, or welfare

services." -IBall 451 U.S. at 366. The district's water functions

were limited to storage, conservation, and distribution of water

based on land ownership. -,Ball 451U.S. at 367. Finally, even the

district's hydroelectric power functions were only incidental to

the water functions which, as the parties had stipulated, was the

primary function of the district. Ball 451 U.S. at 368-69. Based - I
on the special, limited purpose of the district, the Supreme court

determined that the appropriate standard of scrutiny was whether

the voting requirement was reasonably related "to its statutory

objectives." -,Ball 451 U.S. at 371.

Similar to the districts in Salver and m, the establishment

and functions of irrigation districts in Montana relate primarily

to landowners and land within the district's boundaries. A

district can be created only by petition of sixty percent of the

title holders, in terms of both number and acreage, of irrigable

land in a proposed district. Section 85-7-101(l), MCA. Moreover,

the powers and duties of a district's board of commissioners are

strictly limited by statute, with the commissioners being

specifically authorized to:

construct and maintain the necessary dams, reservoirs,

and works for the collection and distribution of water

for the district . . . and do any and every lawful act

necessary to be done in order that sufficient water may

be furnished for irrigation purposes to all the lands in

the district . . . .

Section 85-7-1907, MCA. The entirety of the district's functions

relate to the providing of irrigation water to lands in the

district.

In addition, financial responsibility for an irrigation

district's operations falls entirely on the landowners and lands

within the district. Revenue for the operation of the district may

be raised through bond issues or special taxes or assessments

levied against the irrigable land within the district. Sections

85-7-2101through -2104, MCA. Any special tax or assessment levied

against the land becomes a lien against the land. Section 85-7-

9
2108, MCA.

Thus, like the water districts in Salver and Ball -r Montana

irrigation districts are special, limited-purpose units of

government, the activities of which have a disproportionate effect

on landowners within such districts as a group. As a result, it is

appropriate to depart from the usual strict scrutiny applied to

statutes impacting on a citizen's right to vote and analyze the

freeholder requirement contained in 5 85-7-1501, MCA, under the

reasonable relationship standard.

In arguing for application of the strict scrutiny standard to

the freeholder requirement at issue here, Killingsworth contends

that this Court "wishe[dl to use" that standard in Sadler v.

Connolly (1978), 175 Mont. 484, 575 P.2d 51. Whatever we may have

"wished" to do, Sadler does not support application of the strict

scrutiny standard in the case presently before us.

Sadler involved an election contest over a city council seat

in which the district court ousted Sadler from the position because

he did not meet the statutory freeholder qualification. Sadler

appealed, contending that the freeholder qualification violated the

equal protection clause of the United States Constitution. Sadler,

575 P.2d at 53. We found persuasive the Supreme Court's reasoning

in Turner that it was unnecessary to determine whether the

freeholder requirement could withstand strict scrutiny. Sadler,

575 P.2d at 53-54; citing Turner, 396 U.S. at 363-64. Indeed, we

held that the freeholder requirement "bears no relation whatsoever"

to a person's ability to serve as a city council member. Sadler,

10
575 P.2d at 54. Nothing in Sadler supports application of the

strict scrutiny standard here.

We conclude that, because of the District's narrow function

and the disproportionate impact of its activities on landowners

within its boundaries, the appropriate level of scrutiny is whether

the freeholder qualification for commissioner bears a reasonable

relationship to its statutory objectives. We hold, therefore, that

the District Court did not err in applying that standard in its

equal protection analysis of the freeholder requirement contained

in § 85-7-1501, MCA.

Did the District Court err in concluding that the

freeholder requirement contained in § 85-7-1501, MCA,

bears a reasonable relationship to a legitimate state

interest and, therefore, does not violate the Equal

Protection Clause of the United States Constitution?

Killingsworth argues that the District court erred in

concluding that the freeholder requirement is reasonably related to

a legitimate state interest and, thus, passes scrutiny under the

Equal Protection Clause. He argues that the court failed to

identify a legitimate interest to which the freeholder requirement

is reasonably related.

While the District Court did not precisely articulate the

"legitimate state interest" on which its decision was based, it did

determine generally that the District commissioners' limited duties

relate to the delivery of water to, and the raising of related

revenues from, landowners within the District. Under such

circumstances, the District Court concluded that the freeholder

requirement for commissioners contained in § 85-7-1501, MCA, was

11
reasonably related to the fair and efficient functioning of the

District. We agree.

In Salver and u, the Supreme Court determined that statutes

limiting voting for directors of those water districts to

freeholders bore a reasonable relationship to a legitimate state

interest. It observed in both instances that the subscription of

land necessary to create the districts may not have occurred if

landowners were not guaranteed a dominant voice in the districts'

control. Salver, 410 U.S. at 731; u, 451 U.S. at 371. In

Salver, the Supreme Court also noted that funding for that district

was obtained solely from assessments against landowners.

"Landowners as a class were to bear the entire burden of the

district's costs, and the State could rationally conclude that

they, to the exclusion of residents, should be charged with

responsibility for its operation." Salver, 410 U.S. at 731.

Here, financial responsibility for the District falls solely

on the landowners within the District as a class. The District

commissioners are authorized to assess taxes against the land and

to issue bonds secured by the land within the District in order to

finance the District's operations. See § 85-7-2101, MCA.

Moreover, it is not unreasonable for Montana to rationally conclude

that landowners, who were required to pledge their land for the

creation of the District and who remain financially responsible for

its operation, should be given the responsibility for governing the

District as commissioners.

Killingsworth contends that the state interest underlying the

12
statutory freeholder requirement for commissioners is not

legitimate because lessees of property within the District--such as

himself--are forced to bear the financial burden for the District's

operation through rent payments. He argues that there is no

distinction between a freeholder directly responsible for levies by

the District and a renter who indirectly pays the levies as part of

a rental payment. This argument is not persuasive.

In Salver, the Supreme Court addressed the status of lessees

in an election scenario involving the freeholder status of voters.

While recognizing that lessees had an interest analogous to

landowners, it stated that, under the reasonable relationship level

of scrutiny, the test was whether any reasonable factual scenario

may be conceived which would allow California to deny the franchise

to lessees while granting it to landowners. Salver, 410 U.S. at

732. The Supreme Court expressed concern that permitting shortterm lessees to vote could lead to manipulation within the voting

process by owners of large tracts of land creating short-term

leases on behalf of loyal employees. Salyer, 410 U.S. at 732.

Landowners also might be less willing to subject their land to

levies supporting the district if the long-term operations were

subject to the influence of short-term lessees. Salver, 410 U.S.

at 732. Moreover, administration of the register of voters could

be difficult because leases need not be recorded. Under such

circumstances, the Supreme Court determined that lessees reasonably

could be denied the right to vote in elections for representation

on a water district board. Salver, 410 U.S. at 733.

13
Here, the District was initiated by landowner petition

pursuant to statutes which subjected the landowners' land to levies

and the issuance of bonds to finance the District and ensured that

only freeholders within the District could serve as commissioners.

Sections 85-7-2101 and 85-7-1501, MCA. Killingsworth, on the other

hand, does not own land within the District, but argues that his

month-to-month leasehold interest in one storage unit located

within the District should suffice in lieu of the statutory

freeholder requirement. As in Salver, landowners certainly could

be leery of subjecting the long-term operation and financial

integrity of irrigation districts, in addition to the assessment of

levies against their land, to the control of lessees with such

tenuous relationships to the districts' purposes and functions. In

order to foster creation and financing of the District via the

necessary subscriptions of land, the State of Montana could

reasonably decide that landowners would require a dominant voice in

the management of the District. For this reason, it is not

unreasonable for the State to achieve its goal by imposing a

freeholder requirement for irrigation district commissioners. We

need not further belabor the point related to landowner control

over management of the District, except to note that

Killingsworth's mere rental of one storage unit within the District

does not qualify him to even participate in the election of the

Division commissioner. See 5 85-7-1710, MCA.

Killingsworth again asserts Sadler as support for his

contention that freeholder requirements are unconstitutional

14
without regard to the nature of the governmental unit involved. As

discussed briefly above, Sadler involved a candidate for election

to the city council which is the general governing body of a

municipality. O n that basis alone, Sadler is factually

distinguishable from the case before us involving a special,

limited-purpose governmental entity serving none of the functions

reserved for general governmental entities such as broad taxing

authority, street maintenance, sanitation, health, or welfare

services. As the Supreme Court noted in Ball it is those -I

functions which are characterized as "the sort of governmental

powers that invoke the strict [one-person, one-vote] demands of

Reynolds." -IBall 451 U.S. at 366.

Finally, we observe that Killingsworth does not cite to any

case holding that voter or candidacy qualifications based on land

ownership for special districts such as the District before us

violate equal protection. Thus, we note only briefly that other

jurisdictions have applied the Salver rationale in upholding voter

qualifications for special district elections against equal

protection challenges. In Chesser v. Buchanan (Cola. 1977), 568

P.2d 39, for example, the Colorado Supreme Court rejected an equal

protection challenge by electors and residents of a tunnel

improvement district to a statute permitting only those who paid

personal property taxes within the year preceding the election to

vote for district commissioner. Because of the district's limited

authority involving construction and operation of the tunnel, in

addition to the assessment of costs against the landowners in

15
proportion to the benefits they received, the Colorado court

concluded that " a rational basis [existed] for limiting the

franchise to tax paying electors within the district." Chesser,

568 P.2d at 41. An Illinois appellate court reached the same

result in Goldstein v. Mitchell (Ill.App.2 Dist. 1986), 494 N.E.Zd

914. Since the district was created for the narrow purpose of

managing erosion and flooding problems, and costs of the district

were assessed against the land in proportion to benefits received

and constituted a lien against the land, the court determined that

the voting requirements were "adequately related" to the statutory

goals. Goldstein, 494 N.E.2d at 921.

We conclude that the statutory freeholder qualification. for

irrigation district commissioners, which provides landowners a

dominant voice in the management of irrigation districts, is

reasonably related to the legitimate state interest in creating and

operating those districts in which the financial responsibility

falls on the landowners within the district. Thus, we further

conclude that the freeholder requirement contained in 5 85-7-1501,

MCA, does not violate Killingsworth's right to equal protection

under the Fourteenth Amendment to the United States Constitution.

We hold, therefore, that the District Court did not err in setting

aside and voiding Killingsworth's election as commissioner of

Division 2 of the Missoula Irrigation District Board.

Affirmed.
We concur: 
April 11, 1995

CERTIFICATE OF SERVICE

I hereby certify that the following certified order was sent by United States mail, prepaid, to the

following named:

Kevin R. Callaghan

HARRIS, CALLAGHAN & VELK

P.O. Box 7937

Missoula, MT 59807-7937

Alan F. Blakley

ATTORNEY AT LAW

218 East Front Street, Sui

Missoula MT 59807-7215

ite 200

Richard R. Buley

TIPP & BULEY

P.O. Box 3778

Missoula, MT 59806-377b

ED SMITH

CLERK OF THE SUPREME

STATE OF MONTANA

COURT