Unpublished Disposition, 869 F.2d 1497 (9th Cir. 1989)

No. 88-6016.

United States Court of Appeals, Ninth Circuit.

Before FARRIS and BEEZER, Circuit Judges, and WILLIAM W. SCHWARZER,^**  District Judge.

MEMORANDUM^*** 

The Lake Elsinore Citizens' Committee for Voters' Rights and Edith Stafford appeal from a decision dismissing their claims pursuant to Federal Rule of Civil Procedure 12(b) (6). Plaintiff-appellants sought declaratory relief on their claims that (1) the Elsinore Valley Municipal Water District wrongfully entered into a contract with the United States Bureau of Reclamation regarding the commencement of a stabilization plan for Lake Elsinore without obtaining the prior approval of local voters, and (2) the Water District wrongfully refused to act on an initiative petition signed by 4,000 local citizens proposing that a 2/3 vote of the registered voters of the district be required before a portion of the stabilization could be acted on. Plaintiffs had unsuccessfully challenged the Water District's actions in two earlier lawsuits filed in California state courts. The district court held that their present claims were barred by these earlier actions. It also held that plaintiff-appellants failed to allege a proper basis for federal jurisdiction.

The district court's dismissal for lack of subject matter jurisdiction is reviewed de novo. See Peter Starr Production Co. v. Twin Continental Films, Inc., 783 F.2d 1440, 1442 (9th Cir. 1986). Plaintiff-appellants allege federal jurisdiction under 28 U.S.C. § 1343(3), Sec. 1343(4), and Sec. 1357. Section 1343(4) provides federal jurisdiction over actions " [t]o recover damages or to secure equitable or other relief under any Act of Congress providing for the protection of civil rights, including the right to vote." (Emphasis supplied). This subsection is inapplicable to the present case. Plaintiff-appellants claim that Section 71724 of the California Water Code required voter approval of the stabilization plan and obligated the Water District to place the initiative on the ballot. They cite no act of Congress guaranteeing them such participation rights.

Sections 1343(3) and 1357 also provide no basis for federal jurisdiction. Section 1343(3) provides federal jurisdiction over actions:

To redress the deprivation, under color of state law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of Citizens or of all persons within the jurisdiction of the United States.

Section 1357 provides federal jurisdiction over actions:

commenced by any person to recover damages for any injury to his person or property on account of any act done by him, under any Act of Congress, for the protection or collection of any revenues, or to enforce the right of the citizens of the United States to vote in any state.

Both sections require that there be a federal right, of Constitutional or statutory origin, to direct citizen participation in the decisions made by the Elsinore Water District.

Citing Kramer v. Union Free School District, 395 U.S. 621 (1969), plaintiff-appellants claims a federal constitutional right to equal treatment in state and local elections. In Kramer, a state law granted only real property owners, renters, and parents and guardians of children the right to vote in local school board elections. The Supreme Court struck down the law, holding that exacting judicial scrutiny was called for where a local ordinance denied voting rights to particular groups of qualified voters. Reliance upon Kramer is therefore misplaced. Plaintiff-appellants do not allege that the Water District discriminated among groups in deciding who should participate in decisions involving the lake stabilization project. They claim, rather, that the Water District incorrectly determined that the stabilization project was not an issue on which citizen participation was required.

Plaintiff-appellants argue, without citation, that the United States Constitution requires municipal authorities to follow voting procedures established under state law. We find no due process violations in the Water District's actions. There is thus no substantial federal question raised. We need not reach the res judicata question.

The Water District's request for costs and attorney's fees pursuant to Fed. R. App. P. 38 is denied. See Grimes v. Commissioner of Internal Revenue, 806 F.2d 1451, 1454 (9th Cir. 1986).

AFFIRMED.