The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)
CONSTITUTIONAL LAW:
ELECTIONS:
SOIL CONSERVATION DISTRICTS:
Voter eligibility in soil conservation district elections
Section 9301(h) of the Natural Resources and Environmental Protection Act, which requires a person to own or occupy land within a soil conservation district to be eligible to vote in district elections, does not violate the Equal Protection Clause of US Const, Am XIV, � 1.
Section 9301(h) of the Natural Resources and Environmental Protection Act, which requires a person to own or occupy at least 3 acres of land within a soil conservation district to be eligible to vote in district elections, constitutes an unreasonable and arbitrary classification and, therefore, violates the Equal Protection Clause of US Const, Am XIV, � 1.
Opinion No. 6991
August 12, 1998
Honorable Mike Rogers
State Senator
The Capitol
Lansing, MI
Honorable John T. Llewellyn
State Representative
The Capitol
Lansing, MI
Honorable Howard Wetters
State Representative
The Capitol
Lansing, MI
You have asked two questions concerning the constitutionality of certain portions of Part 93 of the Natural Resources and Environmental Protection Act (NREPA), MCL 324.9301(h); MSA 13A.9301(h), which limits those persons eligible to vote for members of the board of directors of a soil conservation district to persons owning or occupying land of 3 acres or more in the soil conservation district.
The Department of Agriculture, the state agency which oversees the operation of soil conservation districts, advises that every acre of land within the state falls within one of the state's 82 soil conservation districts. Most soil conservation district boundaries are coterminous with the territory comprising a single county. Three districts are comprised of all of the territory of two adjoining counties. The territory of one county is divided and each part is attached to the territory of an adjoining county to comprise a single district. Five soil conservation districts are composed of the territory of a portion of a county. Thus, all the territory of every county in the state is part of a particular soil conservation district.
Your first question asks whether section 9301(h) of the NREPA, which requires a person to own or occupy land within a soil conservation district to be eligible to vote in district elections, violates the Equal Protection Clause of US Const, Am XIV, � 1.
Part 93 of the NREPA governs the establishment, operation and dissolution of soil conservation districts. Section 9306, which provides for the election of 3 soil conservation district directors to be nominated by at least 25 occupiers of land lying within the district, limits eligible voters to occupiers of land in the district.
All occupiers of land lying within the district shall be eligible to vote in the election.
(Emphasis added.)
Section 9301(h) defines the term "occupiers of land" as:
[A]ny person who holds title to, or is in possession of, any land 3 acres or more in extent lying within a district organized under this part or former Act No. 297 of the Public Acts of 1937, whether as owner, lessee, renter, tenant, or otherwise. An individual shall be of legal age to qualify as an occupier of land.
Likewise, eligible voters in referendums to create and to dissolve a soil conservation district are restricted to occupiers of land. Sections 9305(3) and 9311.1 The act's definition of occupiers of land clearly limits the electorate in soil conservation district elections to those who hold title to or some possessory interest in real property. Thus, according to the clear and unambiguous language of the act, only a portion of all registered voters may participate in soil conservation district elections.
The United States Supreme Court has made it clear that the right to vote in public elections is a fundamental right, and its decisions give careful scrutiny to any impairment of that franchise. See, Reynolds v Sims, 377 US 533, 561; 84 S Ct 1362; 12 L Ed 2d 506 (1964). The Supreme Court's decisions analyzing an alleged impairment of the franchise are based on the US Const, Am XIV, � 1, which prohibits any state from denying persons equal protection of the laws. In Kramer v Union Free School Dist, 395 US 621, 626; 89 S Ct 1886; 23 L Ed 2d 583 (1969), the Supreme Court struck down as violative of the Equal Protection Clause, a New York statute governing certain public school elections which rendered persons ineligible to vote if they did not own or lease taxable property, or have children enrolled in the school district. There the Court held as follows:
"In determining whether or not a state law violates the Equal Protection Clause, we must consider the facts and circumstances behind the law, the interests which the State claims to be protecting, and the interests of those who are disadvantaged by the classification." Williams v. Rhodes, 393 U.S. 23, 30 [89 S. Ct. 5, 21 L. Ed. 2d 24] (1968). And, in this case, we must give the statute a close and exacting examination. "[S]ince the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights, any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized." Reynolds v. Sims, 377 U.S. 533, 562 [84 S. Ct. 1362; 12 L. Ed. 2d 506 (1964) applying the principle of one-person-one-vote to the election of state legislators]. See Williams v. Rhodes, supra, at 31; Wesberry v. Sanders, 376 U.S. 1, 17 [84 S. Ct 526; 11 L. Ed. 2d 481] (1964). This careful examination is necessary because statutes distributing the franchise constitute the foundation of our representative society. Any unjustified discrimination in determining who may participate in political affairs or in the selection of public officials undermines the legitimacy of representative government.
Kramer, 395 US at 626.
Without abandoning the test noted in Kramer, supra, the Supreme Court has, however, held that states may allow special interest elections that limit the franchise to those voters who have the required special interest. For example, in Salyer Land Co v Tulare Lake Basin Water Storage Dist, 410 US 719; 93 S Ct 1224; 35 L Ed 2d 659 (1973), the Court upheld an exclusion of electors who did not own land within a water storage district from the district's general elections because of the district's "special limited purpose and . . . the disproportionate effect of its activities on landowners as a group." Id. at 728. The Court placed significance on the fact that the special limited purpose district did not exercise "'normal governmental'" authority, such as providing general public services, and the further fact that the costs of district projects were borne by landowners in proportion to the benefits received. Id. at 729.
At the same time it decided Salyer, supra, the Supreme Court also rendered its opinion in Associated Enterprises, Inc v Toltec Watershed Improvement Dist, 410 US 743; 93 S Ct 1237; 35 L Ed 2d 675 (1973), which addressed an issue similar to that presented by your first question. In Associated Enterprises, the Court affirmed a decision of the Wyoming Supreme Court upholding a Wyoming statute which limited the electorate for the establishment of water conservation district elections to those owning land within the district. The Wyoming Supreme Court had held as follows:
Appellants cite no precedent for applying the one man, one vote rule in connection with the establishment and regulation of such entities as watershed improvement districts, soil conservation districts, and irrigation districts, where functions are special and akin to private corporation purposes. We therefore say appellants have failed in their burden of showing that the watershed improvement districts law is unconstitutional.
Moreover, it makes sense not to attempt to apply the one man, one vote concept in the establishment and regulation of districts such as a watershed improvement district. The owners of land within the boundaries of a proposed watershed district are the persons primarily concerned.
Associated Enterprises, Inc v Toltec Watershed Improvement Dist, 490 P2d 1069, 1071 (1971).
More recently, in Ball v James, 451 US 355, 101 S Ct 1811, 68 L Ed 2d 150 (1981), the Supreme Court upheld a system of voting for directors of an Arizona water conservation district where votes of landowners were apportioned based on the acreage owned within the district (or fraction of an acre for those who owned less than an acre), leaving those who were not district landowners without a vote. Much like the analysis in Salyer, supra, the Court focused on: a) whether the purpose of the district is sufficiently specialized and narrow so as to distinguish it from public entities with general governmental purposes and functions, and b) whether the burden of the district's activities is disproportionately borne by landowners within the district. The Court there found that the Arizona water conservation district had no taxing power, had no power to enact laws governing the conduct of its residents, and did not provide normal governmental services. The Court rejected the argument that because the district sold electricity to nearly half of Arizona's population and exercised significant influence over flood control and environmental management within the district, all eligible voters within the district should have the right to vote, regardless of land ownership.
This analysis adopted by the Supreme Court in Ball v James, supra, is applicable to your first question. First, the purpose of a soil conservation district, as expressed in Part 93 of the NREPA, is to provide for conservation of soil and water resources of the state and to control and prevent soil erosion. Section 9302. A soil conservation district is empowered to conduct research and publish its studies, to conduct demonstration projects, to carry out prevention and control measures, to furnish fertilizer, seeds and seedlings for conservation of the soil and prevention of soil erosion, to develop plans for conservation of the soil, and to administer soil conservation programs by agreement with the United States or any state agencies. Section 9308. Like the special purpose district at issue in Ball, supra, a Michigan soil conservation district cannot impose taxes, cannot enact laws governing the conduct of citizens, and does not provide the normal functions of government such as the maintenance of streets, or the provision of public services. Indeed, a soil conservation district has even less power of a "governmental" nature than did the district in Salyer, supra, inasmuch as it lacks the power to condemn property, to issue bonds or levy and collect special assessments.2 Hence, like the districts in Salyer and Ball, supra, the purpose of a soil conservation district is sufficiently specialized and narrow and its power is sufficiently limited so as to distinguish it from other public entities possessing general governmental purposes and functions.
Secondly, as its very name implies, the activities of a soil conservation district focus generally upon land use, and specifically upon agricultural land use and land development practices designed to prevent or minimize soil erosion. For example, a soil conservation district is authorized to develop soil conservation plans that include specifications for engineering operations, cultivation methods, growing vegetation, cropping programs, tillage practices, and changes in land use designed to prevent soil erosion. Section 9308(h). When implemented, each of these activities will directly impact real property within the district. The impact of such soil conservation measures upon property other than real property is minimal and perhaps nonexistent. Consequently, the burden of soil conservation measures implemented through the powers of a soil conservation district is borne primarily, if not exclusively, by owners and occupiers of land within the district.3 Thus, the burdens of district activities are borne disproportionately by owners and occupiers of land within the district.4
Because it is clear that the NREPA, through its definition of occupiers of land, specifically limits the electorate for soil conservation districts to those who hold title to, or some possessory interest in, real property, and because the Supreme Court's test adopted in Salyer and Ball, supra, for special interest elections has been satisfied in the instant case, I am constrained to conclude that voters in soil conservation district elections may be restricted to only those persons who own or occupy land within the district. A similar result was reached in OAG, 1983-1984, No 6123, p 23, 28 (February 4, 1983), which concluded that the governing board of a forest improvement district need not be selected in accordance with the one person one vote principle.
It is my opinion, therefore, in answer to your first question, that section 9301(h) of the Natural Resources and Environmental Protection Act, which requires a person to own or occupy land within a soil conservation district to be eligible to vote in district elections, does not violate the Equal Protection Clause of US Const, Am XIV, � 1.
Your second question asks whether section 9301(h) of the NREPA, which requires a person to own or occupy at least 3 acres of land within a soil conservation district to be eligible to vote in district elections, constitutes an unreasonable and arbitrary classification and, therefore, violates the Equal Protection Clause of US Const, Am XIV, � 1.
The Supreme Court's analysis in Salyer and Ball, supra, is also applicable to your second question. In both of these cases, the Court considered whether the districts' voting scheme bore a reasonable relationship to the statutory objective. In both cases the Court answered this question in the affirmative. The Court, however, would not be likely to reach the same result if it were to consider the 3-acre requirement imposed by section 9301(h) of the NREPA.
The objective of Part 93 of the NREPA is to promote the use of soil conservation measures on all lands throughout the state, including urban areas. See, sections 9302 and 9305(11). Every acre of land within the state falls within one of the state's 82 soil conservation districts. There is no minimum acreage limitation for inclusion of lands within a district. Likewise, there is no minimum acreage limitation governing availability for or application of a district's conservation measures. The benefits of a district’s conservation measures may extend to lands of less than 3 acres. According to the Department of Agriculture, at least one district has a soil erosion program that is directed at parcels of land as small as one-half acre. Additionally, the Department of Agriculture advises that soil conservation districts receive funding from all landowners within the district, regardless of the amount of land they own, through, for example, payment of license fees for the sale of pesticides.
The Legislature's intent in requiring that lands occupied by eligible voters consist of at least 3 acres is unclear. Part 93 of the NREPA has as its origin the Soil Conservation Districts Law, 1937 PA 297, MCL 282.1 et seq; MSA 13.1781 et seq. Section 3 of that act included the concept of an occupier of land, although in its original form there was no 3-acre minimum.5 The 3-acre requirement for meeting the definition of an occupier of land was added 8 years later by 1945 PA 280, and has since remained a statutory requirement. There is no legislative history from which one may discern the rationale for imposing the 3-acre requirement. It may have been included to reflect what was then expected to be the minimum size of lands primarily affected by soil conservation measures, namely, farmlands. Now that all lands in the state fall within a soil conservation district, including urban lands, such a rationale would, however, no longer bear a logical relationship to the principal objective of Part 93 of the NREPA, specifically to prevent soil erosion on all lands, not just farmlands or other tracts of 3 or more acres. Moreover, the 3-acre requirement discriminates against persons owning or occupying a smaller parcel in the soil conservation district because it denies to the owner or occupier of the under 3-acre parcel the right to vote for the directors of the district.
The decision of the Texas Court of Civil Appeals in Ground Water Conservation Dist No 2 v Hawley, 304 SW2d 764, 767 (Tex Civ App, 1957), writ of error refused, 157 Tex 643; 306 SW2d 352 (Tex, 1957), is instructive. There, a statute providing for the organization of water conservation districts authorized persons to seek exclusion from the district of their tracts of grazing lands if the tract was not less than 640 acres in size. The court, however, could find no reasonable basis for the classification except that a tract of 639 acres was one acre smaller than the other. Accordingly, the court declared the statutory provision unconstitutional as a denial of equal protection of laws to the person owning the smaller tract.
Since the policy of the state is to conserve the soil on every parcel of land in a soil conservation district regardless of its size and since the application of the conservation measures adopted by a district are not limited only to tracts of land 3 acres in size or larger, the 3-acre classification adopted in section 9301(h) is unreasonable and arbitrary. The soil on a 3-acre parcel, as well as that on a smaller parcel of land, is both deserving of conservation and of protection against erosion. The fact that one parcel is larger than the other does not justify discriminatory treatment.
It is my opinion, therefore, in answer to your second question, that section 9301(h) of the Natural Resources and Environmental Protection Act, which requires a person to own or occupy at least 3 acres of land within a soil conservation district to be eligible to vote in district elections, constitutes an unreasonable and arbitrary classification and, therefore, violates the Equal Protection Clause of US Const, Am XIV, � 1.
Having concluded that the 3-acre requirement is unconstitutional, it is necessary to consider whether this portion of the statute may be severed from Part 93 of the NREPA. Under MCL 8.5; MSA 2.216, invalid language in a statute is considered severable unless this would be inconsistent with a manifest legislative intent to the contrary. There is no language in Part 93 of the NREPA indicating a legislative intent that the remaining valid portions of this statute not be implemented. Further, the invalid language in Part 93 is easily severed by deleting the 3-acre requirement from the section 9301(h) definition of the term occupier of land. The valid portion of section 9301(h) can be read and enforced independently of the invalid portion and remains reasonable in view of the act as originally drafted. See, Pletz v Secretary of State, 125 Mich App 335, 374-376; 336 NW2d 789 (1983); Citizens For Logical Alternatives and Responsible Environment, Inc v Clare County Bd of Comm'rs, 211 Mich App 494, 498; 536 NW2d 286 (1995); OAG, 1995-1996, No 6871, p 96, 98 (September 18, 1995); OAG, 1989-1990, No 6598, p 208, 211 (August 30, 1989).
FRANK J. KELLEY
Attorney General
1 Nearby states have similar restrictions on voting in soil conservation district elections. The soil conservation district acts in Illinois, 70 ILCS 405/1 et seq, and Indiana, Indiana Code �14-32-1-1 et seq, both restrict the electorate to occupiers of land. Neither of these statutes, however, include the further restriction of minimum acreage owned or possessed by the occupiers.
2 Although soil conservation districts do not have the power to levy taxes, some districts do benefit from tax revenues by receipt of county funding or services (e.g., office space), and one Michigan county (Schoolcraft) includes a taxpayer-approved millage for operation of the soil conservation district.
3 It is noteworthy that soil conservation districts do not have the power to require all owners and occupiers of land within the district to employ the soil conservation practices promoted by the soil conservation plan but merely have the power to enter into agreements with landowners to restrict land uses or implement soil conservation measures. See, section 9308(b).
4 As previously noted, the expenses of districts may to some varying degree be borne by the taxpayers of a county, who may not always be landowners. County expenditure of these funds, however, has either been approved by the electorate in the case of a county which levys a tax for district operations or, in other districts, approved by county officials who must in turn answer to the electorate. In both situations, the electorate as a whole has been represented in the decision to use public funds for district operations.
5 The original definition of "occupier of land" was: "'Land occupier' or 'occupier of land' includes any person, firm or corporation who shall hold title to, or shall be in possession of, any lands lying within a district organized under the provisions of this act, whether as owner, lessee, renter, tenant, or otherwise." 1937 PA 297.