Howard Jarvis Taxpayers Assn. v. County of Yuba CA3 ( 2021 )

Filed 7/22/21 Howard Jarvis Taxpayers Assn. v. County of Yuba CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Yuba)
----
HOWARD JARVIS TAXPAYERS ASSOCIATION C090473
et al.,
(Super. Ct. No.
Plaintiffs and Respondents, CVPT1802127)
v.
COUNTY OF YUBA et al.,
Defendants and Appellants.
Defendants and appellants County of Yuba and the Yuba County Board of
Supervisors (collectively, County) appeal a decision by the trial court that Measure K, a
sales tax ordinance approved by a majority of voters, was not a general tax but a special
tax requiring a two-thirds vote under article XIII C, section 2, of the California
Constitution. Measure K added to the county code the “Public Safety/Essential Services
Protection Ordinance,” imposing a 1 percent retail sales tax in unincorporated areas of the
county. Plaintiffs and respondents Howard Jarvis Taxpayers Association, Charlie
Mathews and John Mistler (collectively, HJTA) successfully challenged this provision in
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a reverse validation and declaratory relief action alleging the ordinance was invalid
because Measure K proposed a special tax requiring approval by two-thirds of the
electorate.
“The essence of a special tax . . . is that its proceeds are earmarked or dedicated in
some manner to a specific project or projects.” (Neecke v. City of Mill Valley (1995)
39 Cal.App.4th 946, 956 (Neecke); Johnson v. County of Mendocino (2018)
25 Cal.App.5th 1017, 1025 (Johnson); Gov. Code, § 53721 [“Special taxes are taxes
imposed for specific purposes”].) On appeal, the County contends Measure K proposed a
general tax for “[g]eneral fund services like police, fire protection, administrative and
social services, and economic development . . . .” HJTA responds that Measure K
proposed a special tax for the “ ‘specified purposes’ of funding county ‘public safety
services’ and ‘essential services.’ ”
We agree with the County. The terms “public safety services” and “essential
services” do not constitute earmarks for specified projects. The judgment is reversed.
FACTUAL AND PROCEDURAL BACKGROUND
On November 6, 2018, Measure K was submitted on the ballot and approved by
53 percent of voters. The ballot question was stated as follows: “YUBA COUNTY
PUBLIC SAFETY/ESSENTIAL SERVICES PROTECTION MEASURE. To maintain
and protect essential services such as 9-1-1 emergency medical/fire response; improving
wildland fire containment; maintaining 24-hours sheriff’s patrol; attracting/retaining jobs,
businesses, and qualified sheriff deputies; and other essential services, shall the measure
to establish a 1 cent sales tax of 10 years in unincorporated Yuba County, providing an
estimated $4,300,000 annually requiring accountability, citizens’ oversight/audits, and all
revenue controlled locally, be adopted?”
The full text of the proposed ordinance was included in the ballot pamphlet.
Section 5.60.160 of the ordinance headed the “Use of Sales Tax Proceeds” provides that
“[t]he Public Safety/Essential Services Protection Ordinance will provide a secure, local
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revenue stream to the County that shall be used entirely to maintain and improve public
safety services and essential services for the benefit of the unincorporated areas of the
County. All proceeds of the tax levied and imposed hereunder shall be accounted for and
paid into a public safety/essential services trust fund or account designated for use by the
County for such specified purposes.”
Section 5.60.170 regarding “Accountability – Citizens’ Oversight Committee”
establishes a five-member committee of residents of the unincorporated areas of the
county “to oversee revenues received by the County from the transactions and use taxes
imposed pursuant to this ordinance, and to ensure that tax revenues are used by the
County in a manner consistent with the voter approved measure adopting this ordinance.”
The committee is required to “review the revenue collected pursuant to this ordinance
and provide an audit report on the use of that revenue to the Board of Supervisors at least
annually . . . .”
“Impartial Analysis” by the county counsel included in the ballot materials stated
that “[a]pproval of Measure K would allow the County of Yuba to impose and collect
from the residents and citizens of unincorporated Yuba County a 1% retail sales tax for a
period of 10 years for the purpose of providing additional funding for public safety and
essential services.” “The County has expressed its intent to spend [the tax revenue] on
areas of public safety and essential protection services, including 9-1-1 response,
wildland fire containment, 24-hour Sheriff’s deputy patrols, and other essential services.”
The argument in favor of Measure K in the ballot materials stated that the tax will:
“Protect/maintain fire protection services [¶] Improve the ability to react to/contain
wildland fires [¶] Maintain/improve emergency response times [¶] Maintain 24-hour
sheriff’s patrols [¶] Attract and retain businesses to the County.” The proponents further
argued that Measure K would improve response times by sheriff’s deputies to 911 calls
and stop gang members from selling hard drugs on the streets. The proponents also
maintained that “Independent Citizen Oversight and financial audits will ensure the
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money is spent as promised to voters.” The proponents signing the argument in favor of
Measure K included the current county sheriff, a retired county sheriff, the county district
attorney, a fire protection district chief, and a wildland fire victim.
The argument against Measure K stated: “Measure K is not a sales tax for public
safety. Not one dime is legally dedicated to this end. Proponents of the tax increase use
public safety to garner sympathy of voters.” The argument continued: “A Citizens
Advisory Panel to oversee county spending has zero authority to direct tax dollars
collected.” The remainder of the argument contended that the county’s budget shortfalls
were attributable to “rising payroll, pension and health insurance costs of county
employees and Supervisors” and the electorate’s only recourse “is to stop giving
politicians money where we can.”
There was no rebuttal argument to the argument in favor of Measure K. The
rebuttal to the argument against the measure listed a series of “facts”: the state had
endangered county residents by cutting funding to prosecute crimes; an independent
report warned that without Measure K “ ‘essential law enforcement services are in
jeopardy’ ” and response times to emergency calls are “ ‘in excess of 19 minutes, 90% of
the time’ ”; the local economy suffers if the county is not safe; and Measure K is fiscally
responsible because “[f]unding can only be spent locally on vital services like public
safety.” Proponents signing the rebuttal included a volunteer firefighter, a children’s
advocate, an economic development and local business advocate, a victim’s rights
advocate, and a taxpayer advocate and lifelong county resident. They urged: “Vote Yes
on K - keep our communities safe, support volunteer firefighters, improve our local
economy and make sure a sheriff’s deputy, medical responder or firefighter can show up
when you call!”
On December 21, 2018, HJTA filed a reverse validation action and a complaint for
declaratory and injunctive relief contending the ordinance adopted by Measure K was
invalid. The complaint named as defendants the County and the California Department
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of Tax and Fee Administration (CDTFA), the state agency that administers sales taxes.
On February 19, 2019, the County answered the complaint. On the same day, the
CDTFA filed a demurrer. On February 21, 2019, HJTA filed a motion for preliminary
injunction. On April 24, 2019, the trial court sustained the demurrer and dismissed
CDTFA. On March 26, 2019, the court denied HJTA’s motion for preliminary
injunction.
The parties submitted briefs on the merits to the trial court. On August 27, 2019,
the trial court heard oral argument and took the matter under submission.
On September 9, 2019, the court issued a statement of decision concluding that
“Measure K proposed a special tax.”
In the statement of decision, the court examined the question put to voters in the
ballot materials and determined that it “clearly asks whether the voters are in favor of a
tax to fund public safety services, giving specific examples. Public safety and essential
services are made equivalent in status and meaning by this text.” The court also quoted
section 5.60.160, the “Use of Sales Tax Proceeds” provision of the ordinance. The court
found that the “ordinary and common meaning of these two portions of the ballot is that
the tax revenue is dedicated to specific purposes only and not for general government
purposes. In fact, at no place in the ballot is the voter plainly informed that the revenue
can be used for any and all purposes.”
The trial court also cited the impartial analysis from county counsel, which the
court said “unequivocally equates essential services to public safety.” Further, the court
noted that “the arguments in favor of the measure authored by public safety officials
overwhelmingly advocate for public safety needs.”
With respect to “economic development” included in “essential services,” the
court reasoned that “Measure K gives examples of what are traditional public
safety/essential services and includes economic development (job and business
attraction/retention) as an essential service. Economic development is essential to the
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existence of all other government services and is undoubtedly benefitted by more public
safety services.”
In addition, the court noted that Measure K provides that tax revenues would be
“ ‘accounted for and paid into a public safety services and essential services trust fund
entirely’ for ‘such specified purposes.’ ” “This language assures voters that revenues will
be spent exclusively on the specified purposes of public safety and economic
development and not for anything in the budget.”
Lastly, the court referred to “matters outside the ballot,” including proceedings
before the board of supervisors, which “discloses an overwhelming, almost exclusive,
emphasis on the need for revenue from Measure K for public safety purposes. Ninety-
two percent of the proposed revenue allocation is for public safety and the rest is for
economic development. No other purposes are identified. This proposed allocation
aligns exactly with the language of Measure K.”
The trial court granted judgment in favor of HJTA, finding that the ordinance was
invalid because Measure K failed to obtain approval by two-thirds of voters.
On September 18, 2019, the County appealed. On December 3, 2019, we granted
the parties’ joint motion for calendar preference and expedited briefing.1 (Cal. Rules of
Court, rule 8.240.)
1 Since the trial court ruled the ordinance invalid, CDTFA has continued to collect the
tax and placed the revenues in an escrow account, per Revenue and Taxation Code
section 7270, subdivision (c), pending final judgment in this matter. (See also Rev. &
Tax. Code, § 7277 [procedures for refund after final judgment that tax is
unconstitutional].) All further undesignated statutory references are to the Revenue and
Taxation Code.
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DISCUSSION
Postelection Challenge to Tax Measure
We reject the County’s preliminary argument that HJTA’s postelection challenge
to Measure K is barred. The County contends that HJTA could have sued preelection
alleging that the Measure K ballot materials were false or misleading and “[w]hen a pre-
election remedy is available, it is exclusive.” The authority the County cites for this
supposed bar is McKinney v. Superior Court (2004) 124 Cal.App.4th 951 (McKinney),
which involved a suit to annul the San Diego mayoral election. The court in McKinney
did not in fact articulate the broad principle that the County espouses. The court held that
postelection challenges must be brought on the grounds enumerated in the Elections Code
or be based on a violation of the Constitution. (McKinney, supra, at pp. 957-959.)
To be sure, “a postelection challenge to ballot materials is not permitted by the
Elections Code. [Citations.]” (Owens v. County of Los Angeles (2013) 220 Cal.App.4th
107, 123 (Owens); see also Denny v. Arntz (2020) 55 Cal.App.5th 914, 919-923.)
However, HJTA’s reverse validation action does not challenge the Measure K ballot
materials but rather contends that the ordinance is a special tax that is invalid under
article XIII C of the California Constitution. This is a substantive constitutional
challenge appropriately made postelection. (See Johnson, supra, 25 Cal.App.5th at
pp. 1019-1020.) Indeed, as the California Supreme Court has observed, “ ‘it is usually
more appropriate to review constitutional and other challenges to ballot propositions or
initiative measures after an election rather than to disrupt the electoral process by
preventing the exercise of the people’s franchise, in the absence of some clear showing of
invalidity. [Citations.]’ [Citation.]” (Legislature v. Deukmejian (1983) 34 Cal.3d 658,
665; Costa v. Superior Court (2006) 37 Cal.4th 986, 1005 (Costa); Bailey v. County of El
Dorado (1984) 162 Cal.App.3d 94, 99-100; 7 Witkin, Summary of Cal. Law (11th ed.
2017) Constitutional Law, § 117, pp. 224-225 [“in a preelection challenge, a ballot
measure will be removed only on a ‘compelling showing’ of invalidity,” while
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postelection the issue is “only whether the ballot measure is valid”].) “The general rule
favoring postelection review contemplates that no serious consequences will result if
consideration of the validity of a measure is delayed until after an election. Under those
circumstances, the normal arguments in favor of the ‘passive virtues’ suggest that a court
not adjudicate an issue until it is clearly required to do so. If the measure passes, there
will be ample time to rule on its validity. If it fails, judicial action will not be required.”
(Deukmejian, supra, at p. 666.)
In this instance, had the measure garnered two-thirds of the vote, the election
likely would have rendered HJTA’s challenge to the ordinance moot. (See Costa, supra,37 Cal.4th at p. 1007.)
Standard of Review
The question whether Measure K is a general tax validly approved by majority of
the voters or a special tax that is invalid because it did not obtain two-thirds of the vote is
a question of law for this court to determine on an independent review of the facts.
(Weisblat v. City of San Diego (2009) 176 Cal.App.4th 1022, 1040 (Weisblat); Tesoro
Logistic Operations, LLC v. City of Rialto (2019) 40 Cal.App.5th 798, 806; Neecke,
supra, 39 Cal.App.4th at p. 953.) “The construction of a statute or an initiative, including
the resolution of any ambiguity, is a question of law that we review de novo.” (Schmeer
v. County of Los Angeles (2013) 213 Cal.App.4th 1310, 1317.) “Our review of the trial
court’s interpretation of a statute or constitutional provision is also de novo.” (Gonzalez
v. City of Norwalk (2017) 17 Cal.App.5th 1295, 1305, citing California Cannabis
Coalition v. City of Upland (2017) 3 Cal.5th 924, 933-934 (California Cannabis).)
In California Cannabis, the California Supreme Court summarized the interpretive
process we employ here: “We apply similar principles when construing constitutional
provisions and statutes, including those enacted through voter initiative. [Citation.] Our
primary concern is giving effect to the intended purpose of the provisions at issue.
[Citation.] In doing so, we first analyze provisions’ text in their relevant context, which
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is typically the best and most reliable indicator of purpose. [Citations.] We start by
ascribing to words their ordinary meaning, while taking account of related provisions and
the structure of the relevant statutory and constitutional scheme. [Citations.] If the
provisions’ intended purpose nonetheless remains opaque, we may consider extrinsic
sources, such as an initiative’s ballot materials. [Citation.]” (California Cannabis,
supra, 3 Cal.5th at pp. 933-934.)
Measure K Is Not a Special Tax
Article XIII C defines a “ ‘[g]eneral tax’ ” as “any tax imposed for general
governmental purposes” and a “ ‘[s]pecial tax’ ” as “any tax imposed for specific
purposes, including a tax imposed for specific purposes, which is placed into a general
fund.” (Cal. Const., art. III C, § 1, subds. (a) & (d); Howard Jarvis Taxpayers Assn. v.
City of Roseville (2003) 106 Cal.App.4th 1178, 1185 (Roseville).) A local general tax
requires approval of a majority of voters while a special tax requires a two-thirds
majority. (Cal. Const., art. XIII C, § 2, subds. (b) & (d); Roseville, supra, at pp. 1185-
1186.)2
As numerous courts have stated, “[t]he essence of a special tax . . . is that its
proceeds are earmarked or dedicated in some manner to a specific project or projects.”
(Neecke, supra, 39 Cal.App.4th at p. 956; Bay Area Cellular Telephone, supra,
162 Cal.App.4th at p. 696; Owens, supra, 220 Cal.App.4th at p. 131; Building Industry
Assn. of Bay Area v. City of San Ramon (2016) 4 Cal.App.5th 62, 85 (Building Industry);
Johnson, supra, 25 Cal.App.5th at p. 1028.)
2 We will not revisit in detail the legal background of the voters’ adoption of article XIII,
Proposition 62 and Proposition 218, which enacted the constitutional and statutory
provisions we apply here. This history has been covered in numerous cases including our
opinion in Roseville, supra, 106 Cal.App.4th at pp. 1182-1185. (See, e.g., Johnson,
supra, 25 Cal.App.5th at pp. 1024-1028; Bay Area Cellular Telephone Co. v. City of
Union City (2008) 162 Cal.App.4th 686, 692-693 (Bay Area Cellular Telephone).)
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The County initially argues that the plain language of Measure K “demonstrates it
imposes a general tax,” because “[i]t incorporates a statute authorizing general taxes,
Revenue and Taxation Code section 7285.” The County refers to section 5.60.030 of the
ordinance listing four “purposes,” the first of which states in relevant part: “To impose a
retail transactions and use tax in accordance with . . . Section 7285, which authorizes the
County to adopt this tax chapter, which will be operative if a majority of the electors
voting on the measure vote to approve imposition of the tax at an election called for that
purpose.” Reference to section 7285, however, does not indicate whether or not the tax is
“earmarked or dedicated in some manner to a specific project or projects.” (Neecke,
supra, 39 Cal.App.4th at p. 956.) Section 7285 simply authorizes a county to impose a
general tax if approved by a majority of voters.3 As the County acknowledges, section
7285.5 is a similar authorizing statute for a special tax adopted by two-thirds of the
voters.
The County also argues Measure K is a general tax because “it is based on
CDTFA’s model general tax ordinance.” The model, as the County also acknowledges,
is suitable for any sales tax ordinance administered by CDTFA. “Because CDTFA
administers transactions and use taxes, local governments must use CDTFA’s form of
ordinance or risk CDTFA’s refusal to administer it. The vast majority of Measure K is
therefore identical to other transactions and use taxes adopted throughout the state.”
3 Section 7285 provides in relevant part: “The board of supervisors of any county may
levy, increase, or extend a transactions and use tax throughout the entire county or within
the unincorporated area of the county for general purposes at a rate of 0.125 percent or a
multiple thereof, if the ordinance proposing that tax is approved by a two-thirds vote of
all members of the board of supervisors and the tax is approved by a majority vote of the
qualified voters of the entire county if levied on the entire county or the unincorporated
area of the county if levied on the unincorporated area of the county, voting in an election
on the issue. . . . The revenues derived from the imposition of a tax pursuant to this
section shall only be used for general purposes within the area for which the tax was
approved by the qualified voters.”
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Nonetheless, the County maintains that the reference to section 7285 in the recitation of
“purpose” in the model, reproduced in Measure K, is “relevant” to the determination on
appeal whether it is a general or special tax. We disagree. The language of additional
“purposes” set forth in the model ordinance and Measure K—i.e., to adopt an ordinance
that conforms with state sales tax law and can be administered by CDTFA, as well as the
provision requiring the county to contract with CDTFA to administer the tax—confirm
that the purpose of the model ordinance is to facilitate the state agency’s administration
of a county sales tax ordinance. CDTFA also requires local government to use a model
ordinance for a special tax. The only difference from the model ordinance for a general
tax is the reference to section 7285.5, instead of section 7285, and the ordinance
becoming operative if approved by a two-thirds vote, instead of a majority.
We note that, unlike Measure K, the model ordinance does not include a section
on use of the tax proceeds, which would be relevant to the issues on appeal.
We turn to the County’s more persuasive contention that the provision in Measure
K that tax proceeds will be used for “public safety services” and “essential services” does
not render the ordinance a special tax. As mentioned, section 5.60.160 of the ordinance
provides that the revenue from the tax “shall be used entirely to maintain and improve
public safety services and essential services for the benefit of the unincorporated areas of
the County.” Given the broad nature of these terms, in interpreting them, we also
consider the ballot materials. (California Cannabis, supra, 3 Cal.5th at pp. 933-934.)
In Roseville, we observed that “a tax is special whenever expenditure of its
revenues is limited to specific purposes; this is true even though there may be multiple
specific purposes for which revenues may be spent.” (Roseville, supra, 106 Cal.App.4th
at p. 1185; Monterey Peninsula Taxpayers Assn. v. County of Monterey (1992)
8 Cal.App.4th 1520, 1535.) Thus, we held that a tax measure providing that “all revenue
from the tax shall ‘be budgeted and appropriated solely for police, fire, parks and
recreation or library services’ ” on its face “proposed a special tax that required a two-
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thirds majority for approval pursuant to Proposition 218.” (Roseville, supra, at p. 1186;
see also Neilson v. City of California City (2005) 133 Cal.App.4th 1296, 1302 [special
tax provided proceeds would be used “ ‘to pay for police, fire, and recreational services,
and to repair streets, parks, water line replacement and repair, and building
maintenance’ ”].) By contrast, a tax measure that provides examples of revenue use but
does not limit expenditure to the enumerated uses is not a special tax. In Owens, the
court found that the ballot summary of a tax measure did not indicate that the proposed
tax was a special tax. “The summary stated that the tax would fund ‘essential services,
including sheriff’s deputies, parks, libraries, street repairs, and other general fund
services.’ ” (Owens, supra, 220 Cal.App.4th at p. 131, fn. 13.) The court concluded that
tax revenues “are not earmarked for any specific project” and therefore the tax was “a
general tax.” (Id. at p. 131.)
We conclude that Measure K is like the tax measure in Owens and not like the
measure in Roseville. As in Owens, the Measure K ballot summary stated that tax was
“[t]o maintain and protect essential services such as 9-1-1 emergency medical/fire
response; improving wildland fire containment; maintaining 24-hours sheriff’s patrol;
attracting/retaining jobs, businesses and qualified sheriff deputies; and other essential
services . . . .” (Italics added.) The trial court referred to the fact that the ballot materials
gave “specific examples” of services included in “public safety services.” But in
employing the phrase “such as,” the ballot also indicated tax revenues could be used for
unspecified services. Examples are not the equivalent of earmarks. In Johnson, the court
said “while the ballot argument listed some of the general services that could be funded,
none of the funds were ‘earmarked or dedicated’ to any specific project, but instead were
intended to provide funding for general county services.” (Johnson, supra,
25 Cal.App.5th at p. 1029.)
The trial court addressed the meaning of “other essential services,” where the
ballot summary did not provide examples, by equating “public safety” and “essential
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services.” However, this analysis renders the term “essential services” surplusage, which
we must avoid in interpreting the measure. (City and County of San Francisco v. Farrell
(1982) 32 Cal.3d 47, 54; Building Industry, supra, 4 Cal.App.5th at p. 75.) The court
also strained to categorize the “essential services” of “attracting/retaining job,
businesses” as “public safety services” by explaining that “[e]conomic development is
essential to the existence of all other government services and is undoubtedly benefitted
by more public safety services.” In this formulation, the terms “public safety services”
and “other essential services” can be stretched to mean almost any expenditure that is
“essential to the existence of all other government services,” rather than funds earmarked
for specific projects.4
It is conceivable that a special tax could earmark the proceeds for specific
purposes by defining public safety services. (See Gov. Code, § 53102 [defining
“ ‘[p]ublic safety agency’ ” as “a public agency which provides firefighting, police,
medical, or other agency services” in statute establishing 911 as the primary emergency
telephone number].) However, in Johnson, the argument in favor of the tax measure in
the ballot pamphlet described “ ‘public safety’ ” as including “ ‘general County
services.’ ” (Johnson, supra, 25 Cal.App.5th at p. 1029, italics omitted.) The Johnson
court also cited Owens where the “ballot summary of [the] measure in question, which
stated that ‘the tax would fund “essential services, including sheriff’s deputies, parks,
libraries, street repairs, and other general fund services,” ’ did not change the nature of
[the] tax from a general to a special tax.” (Johnson, supra, 25 Cal.App.5th at p. 1029;
Owens, supra, 220 Cal.App.4th at p. 131, fn. 13.) In both Johnson and Owens, “public
4 The range of “essential services” that the tax proceeds might fund is reflected in the
diversity of proponents of Measure K, including law enforcement and fire protection
officials but also a children’s advocate, economic development/local business advocate
and a victim’s rights advocate.
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safety” and “sheriff’s deputies” were described as “general” services provided by county
government whose funding by the proposed tax did not transform a general tax into a
special tax. Indeed, we find the closest parallel to Measure K in Owens where, as here, a
general tax used the term “ ‘essential services’ ” to include “ ‘sheriff’s deputies.’ ”
(Owens, supra, 220 Cal.App.4th at p. 131, fn. 13.)
HJTA attempts to distinguish Johnson and Owens on the basis that the ballot
materials in both cases explicitly referred to the tax as funding “general” purposes or
services. As did the trial court, HJTA points out that “the County never informed voters
in the text of Measure K or in any of its official election materials that Measure K
proposed a tax for general governmental purposes.” Use of the term “general” or not
does not differentiate a general from a special tax. The question is whether the tax
proceeds are earmarked for specific projects. A tax measure providing that “all revenue
from the tax shall ‘be budgeted and appropriated solely for police, fire, parks and
recreation or library services,’ ” would be a special tax even if the measure characterized
these services as “general county services.” (Roseville, supra, 106 Cal.App.4th at
p. 1186.) By contrast, ballot materials for a tax measure like Measure K that is open-
ended and refers to “including” specified services, or “such as” specified services given
as examples, while informing the electorate that unspecified “other essential services”
will also be funded, is indicative of a general tax.
Moreover, there appears to be no fixed meaning of the term “other essential
services.”5 In City of Oakland v. Digre (1988) 205 Cal.App.3d 99, the court
distinguished between “ ‘essential’ services such as police and fire protection and
5 The dictionary definition of “essential” as “of the utmost importance: BASIC,
INDESPENSABLE, NECESSARY” does not settle the question of what are “essential
services” so much as reiterate it. (Merriam-Webster’s Collegiate Dictionary (11th ed.
2006) p. 427, col. 1.)
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‘elective’ services not automatically enjoyed by all residents, such as parks, libraries,
museums, and youth centers.” (Id. at p. 108.) However, Business and Professions Code
section 13410 regarding mandatory sale of motor vehicle fuels and lubricants to a city or
county defines “ ‘essential services’ ” as “police, fire, health, and transportation services
provided by public agencies.” (Bus. & Prof. Code, § 13410, subd. (c).) Revenue and
Taxation Code section 42100, subdivision (b)(3), states that local charges collected for
prepaid mobile telephone services “are used to pay for such essential governmental
services as public safety, streets, parks, libraries, senior centers, and many more.” In
Public Resources Code section 5780 regarding a municipality’s authority to acquire
property for open-space and recreational use, the Legislature declared that “the provision
of recreation, park, and open-space facilities and services are essential services which are
important to the public peace, health, and welfare of California residents.”
Echoing the trial court, HJTA points to the accountability provisions of Measure K
as indicative of a special tax, including section 5.60.160 that “[a]ll proceeds of the tax
levied and imposed hereunder shall be accounted for and paid into a public
safety/essential services trust fund or account designated for use by the County for such
specified purposes,” as well as section 5.60.170 that establishes a Citizens’ Oversight
Committee with a duty to “review the revenue collected pursuant to this ordinance and
provide an audit report on the use of that revenue to the Board of Supervisors at least
annually . . . .” HJTA notes that Government Code section 50075.1 requires that a local
special tax subject to voter approval shall provide accountability measures including
“ ‘[t]he creation of an account into which the proceeds shall be deposited’ ” and “ ‘[a]n
annual report . . . .’ ”
However, in Weisblat, supra, 176 Cal.App.4th 1022, the court concluded that a
levy was a general tax where the proceeds were “tracked in accounts separated from other
tax receipts” but ultimately could be used for general governmental purposes. (Id. at
pp. 1044-1045; but see Building Industry, supra, 4 Cal.App.5th at pp. 88-89
15
[distinguishing Weisblat where tax “was consistently identified as a special tax”].) Here,
tax proceeds deposited in a separate account for unspecified “other essential services”
may be used for any and all government services that qualify as “essential services,” and
are not dedicated to a specific project or purpose. The function of the separate account
and Citizens’ Oversight Committee’s annual audit provisions in Measure K is to inform
and assure voters that the tax revenues have been spent on “public safety services” and
“other essential services.” But these terms do not define a special tax and the inclusion of
accountability provisions in Measure K does not alter the nature of the tax.
In sum, we find that Measure K proposed a general tax that was approved by a
majority of voters and is therefore a valid tax.6
DISPOSITION
The judgment is reversed. The County shall recover costs. (Cal Rules of Court,
rule 8.278(a)(1), (2).)
/s/
RAYE, P. J.
We concur:
/s/
MAURO, J.
/s/
RENNER, J.
6 HJTA submitted a request for judicial notice of materials other than the ballot
materials, including Facebook posts, and both parties requested judicial notice of
materials related to the current coronavirus crisis. We deferred ruling on the requests and
now deny them.
16