City and County of S.F. v. All Persons Interested etc. ( 2021 )

Filed 8/17/21 (unmodified opinion attached)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
CITY AND COUNTY OF SAN A160659
FRANCISCO,
Plaintiff and Respondent, (City & County of San Francisco
Super. Ct. No. CGC-18-569987)
v.
ALL PERSONS INTERESTED IN ORDER MODIFYING OPINION;
THE MATTER OF PROPOSITION AND ORDER DENYING
G (NOWAK), PETITION FOR REHEARING
Defendants and Appellants.
[NO CHANGE IN JUDGMENT]
THE COURT:
It is ordered that the opinion filed herein on July 26, 2021, be modified
in the following particulars:
1. On page 4, line 17, the sentence beginning “By mid-November
2017” is deleted and replaced with the following sentence:
By Autumn 2017, the District and Union were considering whether
the parcel tax could be proposed as a citizens’ initiative.
2. On page 24, lines 3 and 4, the clause “Without disputing that
Proposition G met the criteria set forth in the Charter” is deleted and
replaced with the following clause:
Without disputing that Proposition G met the criteria set forth in
Section 14.101 of the Charter . . .

Pollak, P.J., Tucher, J. and Brown, J. participated in the decision.
1
These modifications do not effect a change in the judgment.
Appellant’s petition for rehearing is denied.
Dated:___________________ _______________________ P.J.
2
Trial Court: City & County of San Francisco Superior Court
Trial Judge: Hon. Ethan P. Schulman
Counsel for Appellants: Greenberg Traurig: Bradley R. Marsh and
Colin W. Fraser
Counsel for Amicus Curiae Howard Jarvis Taxpayers Foundation;
on behalf of Appellants: Jonathan M. Coupal, Timothy A. Bittle, Laura
E. Dougherty
Counsel for Respondents: Dennis J. Herrera, City Attorney; Wayne K.
Snodgrass, Deputy City Attorney
CCSF v. All Persons – Prop G (A160659)
3
Filed 7/26/21 (unmodified opinion)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
CITY AND COUNTY OF SAN
FRANCISCO,
Plaintiff and Respondent, A160659
v. (City & County of San Francisco
ALL PERSONS INTERESTED IN Super. Ct. No. CGC-18-569987)
THE MATTER OF PROPOSITION
G,
Defendants and Appellants.
Proposition 13 and Proposition 218 amended the California
Constitution to require that any special tax adopted by a local government
entity take effect only if approved by a two-thirds vote of the electorate. We
recently interpreted these constitutional provisions “as coexisting with, not
displacing, the people’s power to enact initiatives by majority vote.” (City and
County of San Francisco v. All Persons Interested in the Matter of Proposition
C (2020) 51 Cal.App.5th 703, 708 (Matter of Prop. C).) In Matter of Prop. C
we held that a measure placed on the ballot as a local citizens’ initiative
requires a majority, not a supermajority, vote to pass. (Id. at pp. 708–709.)
This case raises the questions whether Matter of Prop. C was properly
decided and whether it can be distinguished.
In 2018, some 60 percent of San Franciscans voting on Proposition G—
an initiative measure entitled “Parcel Tax for San Francisco Unified School
1
District”—approved the measure. Thereafter, the City and County of San
Francisco (the City) filed this action to establish that Proposition G was
validly enacted. The City’s complaint against “All Persons Interested” was
answered by defendant Wayne Nowak, who contends that Proposition G is
invalid because it failed to garner the two-thirds vote required by article
XIII A, section 4 of the California Constitution1 (added by Proposition 13) and
article XIII C, section 2 (added by Proposition 218), the same arguments we
rejected in Matter of Prop. C. Nowak also contends that a provision of
Proposition 218 unique to parcel taxes—article XIII D, section 3,
subdivision (a) (art. XIII D, § 3(a))—requires a two-thirds vote of the
electorate to enact Proposition G. Although the argument is new, it fails for
similar reasons, as does Nowak’s alternative argument that an older
constitutional provision precludes a per-parcel tax on real property. Finally,
Nowak seeks to distinguish Matter of Prop. C on the grounds that Proposition
G was conceived and promoted by local government officials and is thus not a
valid citizens’ initiative. We reject this argument as based on a
misunderstanding of the initiative process.
Because we stand by our decision in Matter of Prop. C and reject
Nowak’s additional arguments, we affirm the trial court’s grant of summary
judgment to the City.
BACKGROUND
I. The Pleadings
In September 2018, the City filed a complaint to validate Proposition G,
seeking a judicial declaration that Proposition G was “duly enacted by the
voters . . . and is legal, valid and binding.” (See Code Civ. Proc., § 867 et seq.)
The complaint describes Proposition G as a proposal to authorize the City to
1 Citations to “articles” refer to the California Constitution.
2
collect an annual parcel tax, with all revenues from the tax to be transferred
to the San Francisco Unified School District (District) and placed in a fund
for restricted uses, including paying teacher salaries and funding staff at
high-needs schools. The City alleges that proponents of Proposition G
circulated petitions to the San Francisco electorate, qualifying the measure
for placement on the ballot in the June 5, 2018 election. The City also alleges
that Proposition G was “legally and validly adopted” because its passage
required only a simple majority of votes cast and it “received the affirmative
votes of 60.76% of the 238,133 San Francisco voters who voted on the
measure.”
In his answer to the complaint, Nowak admits the City’s description of
Proposition G is accurate and that it was approved by 60.76 percent of the
voters, but he denies that Proposition G was legally and validly adopted.
Nowak alleges that Proposition G violates state constitutional requirements
precluding local government from imposing a special tax absent approval of a
two-thirds vote of the electorate. (Art. XIII A, § 4; Art. XIII C, § 2, subd. (d)
(art. XIII C, § 2(d)); Art. XIII D, § 3(a).)
Nowak also alleges that Proposition G represents an invalid attempt by
the District to evade the constitution’s supermajority vote requirement.
According to this theory, the District and “its union,” the United Educators of
San Francisco (Union), agreed to a “16 percent pay increase for union
employees that was contingent upon additional revenue being approved by
San Francisco voters.” Then, instead of the District proposing “its own tax,”
the “union members and others crafted . . . Proposition G as a citizen
initiative,” so they could argue that it was “subject to only a 50% vote
threshold.” Nowak alleges that this “deliberate action to reduce the vote
threshold requirement is impermissible.”
3
II. Summary Judgment Proceedings
In May 2020, the trial court heard cross-motions for summary
judgment and granted judgment to the City. In a 20-page order, the court
found the material facts to be undisputed and concluded that Proposition G
was validly enacted by a majority of the voting electorate.
A. Undisputed Material Facts
In February 2017, the District and Union began negotiating the terms
of their 2017–2020 labor contract. During an initial meeting, both the
District and Union expressed the view that “ ‘teachers deserve and will
receive a raise, the question is how the funds for the raise will be realized.’ ”
The District “ ‘expressed its willingness to work collaboratively with the
Union to find’ ” a solution. In the following months, the District considered
raising funds via a parcel tax measure to be placed on the ballot in 2018,
discussed that option with the Union, and participated with Union
representatives and “political consultants” in a Parcel Tax Planning
Committee.
By mid-November 2017, the District and Union were considering
whether the parcel tax could be proposed as a citizens’ initiative. In late
November, an attorney named James Sutton circulated to the planning
committee and others a confidential draft of a citizens’ initiative measure
proposing the parcel tax. A deputy superintendent of the District who served
on the planning committee proposed edits to Sutton’s draft.
On December 8, 2017, the San Francisco Department of Elections
(Department) received a “Notice of Intention to Circulate Petitions” for a
proposed citizens’ initiative, which was accompanied by the proposed text of
Proposition G. The notice of intent was signed by three San Francisco voters:
Jose Tengco, David Strother, and Catherine Sullivan. Later that month, the
4
Department received documentation establishing “Proof of Publication” of the
notice of intent, ballot title and initiative summary. The proof of publication,
which was submitted by the Sutton Law Group, reflects that the text of the
published notice identified Tengco, Strother and Sullivan as the official
proponents of Proposition G.
Union representatives had asked Tengco, Strother and Sullivan to
serve as proponents of Proposition G. The three individuals did not
participate in drafting Proposition G, and they did not personally pay any of
the filing fees. Strother did not even read the ballot measure before agreeing
to serve as a proponent, though he understood the Union was organizing to
put Proposition G on the ballot because if the District sponsored the measure
it would require a two-thirds vote to pass. Tengco, after becoming a
proponent, attended meetings and had discussions about the parcel tax, and
he gathered signatures to get Proposition G on the ballot.
Sullivan “turned in to the Department initiative petitions signed by a
reported 16,656 San Francisco voters.” After reviewing a random sampling of
signatures, the Department certified to Sullivan that the petitions contained
a sufficient number of valid signatures to qualify Proposition G for the ballot.
Proposition G appeared as a citizens’ initiative on the San Francisco ballot for
the June 5, 2018 Consolidated Statewide Primary Election and received 60.76
percent affirmative votes.
B. The Trial Court’s Findings
The trial court framed its May 2020 summary judgment order to
address three theories Nowak presented in support of his contention that
Proposition G was invalid.
First, Nowak claimed that Proposition G is not a valid citizens’
initiative within the meaning of the City’s charter because the three
5
individuals who signed the notice of intent were not genuine proponents.
Based on evidence the District worked with the Union and others to get
Proposition G passed, Nowak argued that Proposition G was the District’s
“ ‘product,’ ” and that the District had misappropriated the people’s power to
propose initiatives. The trial court rejected this claim as “irreconcilable” with
the plain language of the City Charter and governing provisions of the
Elections Code.
The court reasoned that the Charter empowers San Francisco voters to
“enact initiatives” (S.F. Charter, § 14.100), and provides that an initiative
may be proposed by “presenting to the Director of Elections a petition
containing the initiative and signed by voters in a number equal to at least
five percent of the votes cast” in the preceding mayoral election (S.F. Charter,
§ 14.101). Here, the court found, undisputed evidence establishes that
Proposition G satisfied these requirements. The court also rejected as
groundless Nowak’s claim that the three individuals who signed the notice of
intent to circulate petitions on behalf of Proposition G were not its
“proponents.” The court based this conclusion on the definition of a
proponent codified in section 342 of the Elections Code, which “governs the
circulation and qualification of initiative petitions in San Francisco.” (Citing
S.F. Muni. Elec. Code, § 310.) Section 342 defines a proponent or proponents
as “the person or persons who publish” the notice of intent. (Elec. Code,
§ 342.) The court found that undisputed evidence shows that Tengco,
Strother and Sullivan signed the notice of intent to circulate petitions for
Proposition G, caused it to be submitted and published, and turned in
petitions containing the requisite number of signatures.
Nowak’s second claim was that Proposition G is invalid as a matter of
law under provisions of the California Constitution requiring special taxes
6
imposed by local governments to be approved by a two-thirds vote of the
electorate. (Art. XIII A, § 4; Art. XIII C, § 2(d); Art. XIII D, § 3(a).) Rejecting
Nowak’s interpretation of these constitutional provisions, the trial court
found that “the constitutional requirements of a supermajority vote for taxes
proposed by local governments do not apply to taxes proposed by voter
initiative, such as Proposition G.” As authority for this finding, the court
relied primarily on California Cannabis Coalition v. City of Upland (2017)
3 Cal.5th 924 (California Cannabis) and Kennedy Wholesale, Inc. v. State Bd.
of Equalization (1991) 53 Cal.3d 245 (Kennedy Wholesale). In addition, the
court stated it was reaffirming its ruling in prior cases raising the same
“principal issues.” One of these prior decisions we affirmed the following
month, in Matter of Prop. C, supra, 51 Cal.App.5th 703.
Finally, Nowak argued that the supermajority vote requirement for
special taxes imposed by local governments applies to voter initiatives by
virtue of the San Francisco Charter, which limits initiatives to those
measures “within the powers conferred upon the Board of Supervisors to
enact.” (S.F. Charter, Art. XVII.) Rejecting this claim, the trial court found
that the two-thirds vote requirement is not a substantive limitation on the
authority of the Board of Supervisors, but a procedural requirement
presumed not to apply to the initiative power. (Citing e.g. California
Cannabis, supra, 3 Cal.5th at p. 942.) In other words, the court found, “the
procedural two-thirds vote requirement in the California Constitution that
limit[s] the Board of Supervisors’ authority to impose new taxes does not
apply to the voters’ initiative power, either directly under those provisions or
indirectly under the San Francisco Charter.”
7
DISCUSSION
I. Guiding Principles
Summary judgment may be granted when “there is no triable issue as
to any material fact” and “the moving party is entitled to a judgment as a
matter of law.” (Code Civ. Proc., § 437c, subd. (c); Aguilar v. Atlantic
Richfield Co. (2001) 25 Cal.4th 826, 850.) “Rulings on motions for summary
judgment are reviewed de novo.” (Brown v. Mid-Century Ins. Co. (2013) 215
Cal.App.4th 841, 850.)
Nowak’s theories for declaring Proposition G invalid share a common
premise, which is that the initiative power to adopt laws by majority vote
does not apply to Proposition G. The initiative power is a constitutional
power reserved by the people, pursuant to which electors may propose
statutes and amendments to the constitution and adopt or reject them.
(Art. II, § 8; Art. IV, § 1.) “A defining characteristic” of the initiative power is
that the people may “adopt laws by majority vote.” (Matter of Prop. C., supra,51 Cal.App.5th at p. 709.)
Nowak contends that passage of Proposition G is nevertheless subject
to a supermajority vote requirement because the measure proposed a special
tax on property and the California Constitution restricts the authority of
state and local governments to impose such taxes without the approval of
two-thirds of the voting electorate. (Art. XIII A, § 4; Art. XIII C, § 2(d); Art.
XIII D, § 3(a).) There is no dispute in this case that Proposition G involves a
special tax. All taxes imposed by a local government are either general taxes
“imposed for general governmental purposes” or special taxes, which are
taxes “imposed for specific purposes.” (Art. XIII C, §§ 1, subds. (a) & (d); 2.)
The dispute in this case pertains to whether constitutional provisions
8
establishing a two-thirds vote requirement for special taxes imposed by state
and local governments also apply to Proposition G.
II. The State Constitution’s Supermajority Vote Requirements
In Matter of Prop. C, this court held that the supermajority vote
requirements of article XIII A, section 4 and article XIII C, section 2(d)
constrain only local government entities such as the Board of Supervisors,
and do not displace the people’s power to enact initiatives by majority vote.
(Matter of Prop. C, supra, 51 Cal.App.5th at pp. 721, 724.) We affirm that
holding here and extend it to include article XIII D, section 3(a), rejecting
Nowak’s theory that these provisions require a citizens’ initiative enacting a
special tax to command a supermajority vote. We also reject a new argument
Nowak presents for the first time on appeal, that if these supermajority vote
provisions do not apply, then an older provision in the state Constitution,
article XIII, section 1, prohibits a citizens’ initiative from imposing a parcel
tax.2
A. The Constitution’s Supermajority Vote Requirements Do Not
Constrain the People’s Initiative Power
1. Article XIII A, Section 4 (Proposition 13)
Nowak relies first on article XIII A, section 4, which provides in
relevant part: “Cities, Counties and special districts, by a two-thirds vote of
the qualified electors of such district, may impose special taxes on such
district, except ad valorem taxes on real property.” (Art. XIII A, § 4.) In this
context, the terms “Cities, Counties and special districts” must be construed
to refer to these governmental entities exercising their power to tax through
an elected board of public officials. The terms do not reach the electorate
Amicus curiae Howard Jarvis Taxpayers Association makes the same
2
argument.
9
exercising its initiative power. (Matter of Prop. C, supra, 51 Cal.App.5th at
p. 722.) Thus, although this provision “requires governmental entities to gain
the approval of a supermajority of voters before imposing a special tax,” it
“does not repeal or otherwise abridge by implication the people’s power to
raise taxes by initiative, and to do so by majority vote. Any such partial
repeal by implication is not favored by the law, which imposes a duty on
courts to jealously guard, liberally construe and resolve all doubts in favor of
the exercise of the initiative power.” (Id. at p. 721.)
Nowak argues that article XIII A, section 4 has long been interpreted to
impose its two-thirds vote requirement on citizen initiatives. (Citing Kennedy
Wholesale, supra, 53 Cal.3d 245; Altadena Library Dist. v. Bloodgood (1987)
192 Cal.App.3d 585, 587; City of Dublin v. County of Alameda (1993) 14
Cal.App.4th 264.) Nowak is mistaken, as none of these cases addresses
whether the supermajority vote requirement in article XIIIA, section 4
applies to a citizens’ initiative. (Matter of Prop. C, supra, 51 Cal.App.5th at
pp. 715, 719.) Indeed, we are aware of only two appellate cases other than
Matter of Prop. C that have ever addressed the issue, and both agree with
Matter of Prop. C. (See City of Fresno v. Fresno Building Healthy
Communities (2020) 59 Cal.App.5th 220, 226 (Fresno) [“We fully agree with
and endorse the holdings and reasoning of [Matter of Prop. C], and find that
case controls the outcome here”]; Howard Jarvis Taxpayer Assn. v. City and
County of San Francisco (2021) 60 Cal.App.5th 227, 237 (HJTA) [“attempts to
cast doubt on or . . . distinguish [Matter of Prop. C] . . . are unavailing”].)
Although Kennedy Wholesale does not address whether the two-thirds
vote requirement in article XIII A, section 4 applies to local citizens’
initiatives, the Court’s analysis of a different provision in Proposition 13
compels the conclusion that the supermajority requirement does not apply.
10
In Kennedy Wholesale, our Supreme Court found that article XIII A, section 3
does not impliedly repeal the people’s power to increase state taxes by
initiative, and section 3’s two-thirds vote requirement does not apply to
statewide initiative statutes. (Kennedy Wholesale, supra, 53 Cal.3d at
pp. 248–252.) By parity of reasoning, section 4’s two-thirds vote requirement
does not apply to local initiative statutes. (Matter of Prop. C, supra, 51
Cal.App.5th at pp. 715–718.)
Nowak urges this court to reconsider our findings and conclusions in
Matter of Prop. C. We decline that invitation. With one exception, Matter of
Prop. C has already addressed and rejected the arguments regarding article
XIII A, section 4 that Nowak presents here. Rather than re-plowing the same
ground, we confine our discussion to the one issue that is new since we
decided Matter of Prop. C.3
Nowak questions Matter of Prop. C’s reliance on cases that strictly
construe ambiguous language in article XIII A, section 4 in order to cabin
Proposition 13’s “fundamentally undemocratic” requirement of a
supermajority vote. (Citing Los Angeles County Transportation Com. v.
Richmond (1982) 31 Cal.3d 197, 201 (Richmond); accord City and County of
San Francisco v. Farrell (1982) 32 Cal.3d 47, 52 & 57 (Farrell).) Nowak
argues that Proposition 218 effectively reversed this strict construction rule
by including a liberal construction clause. (Citing Capistrano Taxpayers
Assn., Inc. v. City of San Juan Capistrano (2015) 235 Cal.App.4th 1493, 1512,
fn. 19.)
3 We grant Nowak’s unopposed request for judicial notice of ballot
materials pertaining to several voter initiative measures, including a 1978
“California Voters Pamphlet concerning Proposition 13.”
11
We disagree, seeing no conflict between Proposition 218’s liberal
construction clause and the maxim of Richmond and Farrell, that “the
language of section 4 must be strictly construed and ambiguities resolved in
favor of permitting voters of cities, counties and ‘special districts’ to enact
‘special taxes’ by a majority rather than a two-thirds vote.” (Richmond,
supra, 31 Cal.3d at p. 205; see also Farrell, supra, 32 Cal.3d at pp. 52, 57.)
Proposition 218 instructs that its provisions “be liberally construed to
effectuate its purposes of limiting local government revenue and enhancing
taxpayer consent.” (Ballot Pamp., Gen. Elec. (Nov. 5, 1996) argument in
favor of Prop. 218, § 5, p. 109; Historical Notes, 2A West’s Ann. Const. (2008
supp.) foll. Cal. Const., art. XIII C, p. 85.) But the Richmond/Farrell rule
does limit local government revenue except to the extent taxpayers have
expressly consented, by proposing and adopting a citizens’ initiative.
“Proposition 218 was designed to prevent a local legislative body from
imposing a special tax disguised as an assessment,” or from otherwise
evading any requirement for voter approval of revenue measures. (Silicon
Valley Taxpayers’ Assn., Inc. v. Santa Clara County Open Space Authority
(2008) 44 Cal.4th 431, 449.) It was not designed to circumscribe the people’s
power to impose special taxes on themselves by a majority, instead of a two-
thirds, vote. (California Cannabis, supra, 3 Cal.5th at pp. 938–939.)
Our Supreme Court endorsed the Richmond/Farrell rule in Kennedy
Wholesale (53 Cal.3d at p. 252, fn. 6), and has not since retracted it. Rider v.
County of San Diego (1991) 1 Cal.4th 1 (Rider), on which Nowak relies to
argue otherwise, declined to extend Richmond to uphold a special tax in the
peculiar circumstances of that case, but Rider recounted Richmond’s strict
construction rule without casting doubt on its continuing validity. (Rider, at
p. 9; but see Howard Jarvis Taxpayers’ Assn. v. State Bd. of Equalization
12
(1993) 20 Cal.App.4th 1598, 1603 [construing Rider as having retracted
Richmond’s strict construction rule].)
In any event, Matter of Prop. C does not depend on the continuing
viability of the Richmond/Farrell rule. Our guiding principle there was a
different maxim of liberal construction: Because the initiative power is
“ ‘ “one of the most precious rights of our democratic process,” ’ ” courts must
“ ‘ “apply a liberal construction to this power wherever it is challenged in
order that the right be not improperly annulled.” ’ ” (Matter of Prop. C,
supra, 51 Cal.App.5th at p. 710, quoting Associated Home Builders, etc. Inc. v.
City of Livermore (1976) 18 Cal.3d 582, 594–595; see also HJTA, supra, 60
Cal.App.5th at p. 237.) It was on that basis that we declined to “hobble[] the
exercise of the initiative power by lashing it to a supermajority vote
requirement.” (Matter of Prop. C, supra, 51 Cal.App.5th at p. 716.)
2. Article XIII C, Section 2(d) (Proposition 218)
Nowak also relies on article XIII C, section 2(d), which states: “No local
government may impose, extend, or increase any special tax unless and until
that tax is submitted to the electorate and approved by a two-thirds vote.”
(Art. XIII C, § 2(d).) Nowak contends that the phrase “local government” is
broad enough to encompass the electorate exercising its initiative power, and
that excluding voter initiatives from the reach of this provision would be
inconsistent with the intent of the voters who passed Proposition 218.
Proposition 218’s definition of the term proves otherwise. “Article XIII
C, section 1 defines ‘ “Local government” ’ to mean ‘any county, city, city and
county, including a charter city or county, any special district, or any other
local or regional governmental entity.’ This definition—like article XIII A,
section 4—lists specific governmental entities but does not reference the
electorate,” and its “catch-all for ‘other . . . governmental entit[ies]’ . . . only
13
strengthens the City’s argument.” (Matter of Prop. C, supra, 51 Cal.App.5th
at p. 722.)
Nowak’s interpretation of article XIII C, section 2(d) is inconsistent
with our Supreme Court’s decision in California Cannabis, which found that
“nothing in the text of article XIII C, or its context, supports the conclusion
that the term ‘local government’ was meant to encompass the electorate.”
(California Cannabis, supra, 3 Cal.5th at pp. 946–947.) The Court also found
that even if this term could be construed as ambiguous, extrinsic evidence
establishes that the voters who adopted Proposition 218 did not intend article
XIII C, section 2 to burden the initiative power. (California Cannabis, at
pp. 938–939.) On this basis, California Cannabis held that article XIII C,
section 2, subdivision (b) (section 2(b))—which requires that a local measure
imposing a general tax appear on the ballot in a general election—applies
only to measures proposed by local government, not to measures the people
place on the ballot in exercising their initiative power. (Id. at p. 945.)
Nowak contends that the term “ ‘local government’ has a different
meaning in section 2(b)” from its meaning in section 2(d) of article XIII C, an
argument we consider untenable. “Sections 2(b) and 2(d) are found in the
same article and section of the state Constitution. They were both added by
Proposition 218. They employ parallel language and incorporate the exact
same definition of local government set forth in article XIII C, section 1. The
California Cannabis court held that the definition of ‘local government’ in
article XIII C, section 2 of the Constitution is not ‘broad enough to include the
electorate.’ (California Cannabis, supra, 3 Cal.5th at p. 937.) That holding
applies” in Matter of Prop. C and here. (Matter of Prop. C, supra, 51
Cal.App.5th at p. 723; accord Fresno, supra, 59 Cal.App.5th at p. 236; HJTA,
supra, 60 Cal.App.5th at p. 238.)
14
Nowak resists this application of California Cannabis on the ground
that section 2(b) differs from section 2(d) in one respect. California Cannabis
observes, “the voters explicitly imposed a procedural two-thirds vote
requirement on themselves in article XIII C, section 2, subdivision (d),” and
this provision was absent from subdivision (b). (California Cannabis, supra,
3 Cal.5th at p. 943.) But in pointing out this distinguishing feature of section
2(d), California Cannabis characterizes section 2(d)’s supermajority
restriction as a procedural requirement that must be met “before a local
government can impose” a special tax. (California Cannabis, 3 Cal.5th at
p. 943, italics added.) This two-thirds vote requirement “constitutes a higher
vote requirement than would otherwise apply,” the Court explained,
contrasting the margin required when a measure is placed on the ballot by a
local citizens’ initiative. (Ibid., citing Elec. Code, “§ 9217 [providing for a
majority vote]”.)4 Because this passage is specific to “local government”
measures (in contrast local citizens’ initiatives), nothing it says about section
2(d) suggests the electorate, exercising its initiative power, requires a
supermajority to impose such a tax.
4 Nowak argues that by citing Election Code section 9217, instead of
Election Code section 9222 prescribing the vote threshold for a government-
sponsored measure, California Cannabis conveys that section 2(d)’s two-
thirds vote requirement applies to local citizens’ initiatives as well as
government-sponsored measures. We decline to read so much into a mere
parenthetical citation, especially when Nowak’s construction of the passage
ignores the contrast the Court is drawing and is inconsistent with the Court’s
many pages of explanation as to why “local government” should be
understood to exclude the citizens exercising their initiative power. (See
California Cannabis, supra, 3 Cal.5th at pp. 936–943; see also Fresno, supra,
59 Cal.App.5th at pp. 237–238 [rejecting same argument regarding
California Cannabis’s citation to section 9217].)
15
3. Article XIII D, Section 3(a) (Proposition 218)
Finally, Nowak relies on article XIII D, section 3(a), a provision we did
not address in Matter of Prop. C. This provision states in relevant part: “No
tax, assessment, fee, or charge shall be assessed by any agency upon any
parcel of property or upon any person as an incident of property ownership
except . . . (2) Any special tax receiving a two-thirds vote pursuant to Section
4 of Article XIII A.” (Art. XIII D, § 3(a).)
Pursuant to the plain language of this provision, no parcel tax that is a
special tax may be assessed by an “agency” unless approved by a two-thirds
vote of the electorate. (Ibid.) Article XIII D defines the term “agency” to
mean “any local government as defined in subdivision (b) of Section 1 of
Article XIII C,” which is the same definition California Cannabis construed
as excluding the electorate. (Art. XIII D, § 2, subd. (a); California Cannabis,
supra, 3 Cal.5th at p. 937; see also id. at pp. 939–940 [notion that “ ‘agency’ in
Article XIII D also includes voters” is “at best . . . improbable”].)
We conclude that article XIII D, section 3(a) does not constrain the
initiative power for the same reasons that the supermajority vote
requirements in article XIII A and article XIII C do not apply to citizens’
initiatives. The text of the constitutional provision does not reach the
electorate because the electorate is not an “agency.” And the Proposition 218
ballot materials “evince a specific concern with politicians and their
imposition of taxes without voter approval,” a concern inapplicable to a tax
levied by citizens’ initiative. (California Cannabis, supra, 3 Cal.5th at
p. 941.)
Nowak contends article XIII D, section 3(a) is different from the other
provisions upon which he relies because it limits when a tax may be
“ ‘assessed,’ ” rather than “ ‘ “imposed.” ’ ” This distinction is critical, Nowak
16
argues, because the word “assess” has a narrow meaning, which refers
specifically to the executive function of collecting a tax. Nowak posits that
because this constitutional provision uses the word “ ‘assessed,’ ” it bars local
governments from collecting a special tax, even one proposed by a citizens’
initiative, unless the tax has been approved by a two-thirds vote.
This argument fails because Nowak is mistaken about the meaning of
“assess.” First, the authority on which he relies defines the related term
“ ‘[a]ssessment’ ” as meaning “the process of listing the property to be taxed
and estimating its value.” (State Bd. of Equalization v. Ceniceros (1998) 63
Cal.App.4th 122, 125.) Proposition 218 defines “ ‘[a]ssessment’ ” differently,
as a “levy or charge upon real property by an agency for a special benefit
conferred upon the real property.” (Art. XIII D, § 2(b).) Because article XIII
D does not adopt the technical definition on which Nowak relies, nor does it
otherwise define the term “assess,” we construe the word according to its
ordinary meaning. (See De Vries v. Regents of University of California (2016)
6 Cal.App.5th 574, 591.) Pursuant to one dictionary definition, “assess”
means “to subject to a tax, charge, or levy,” or “to impose (as a tax) according
to an established rate.” (See Merriam-Webster’s Collegiate Dict. (10th ed.
2001) p. 69.) With this definition equating “assess” and “impose,” Nowak’s
“critical” distinction evaporates. (See also California Cannabis, supra,
3 Cal.5th at pp. 944–945 [rejecting parallel argument that “the term ‘impose’
. . . includes the collection of taxes by a local government”].)
But even if the term “assessed” were to create an ambiguity, nothing in
the text of article XIII D or its context supports the conclusion that article
XIII D, section 3(a) constrains the initiative power. Nor does Nowak provide
evidence that such a meaning was intended. “Without a direct reference in
the text of a provision—or a similarly clear, unambiguous indication that it
17
was within the ambit of a provision’s purpose to constrain the people’s
initiative power—we will not construe a provision as imposing such a
limitation.” (California Cannabis, supra, 3 Cal.5th at p. 931.)
B. Article XIII, Section 1 Does Not Prohibit a Special Parcel
Tax
Nowak now argues, in the alternative, that if the constitutional
provisions requiring a supermajority vote of the electorate for a special tax do
not apply to citizens’ initiatives, then Proposition G’s parcel tax lacks
constitutional authority and is invalid under article XIII, section 1.
Article XIII, section 1 states that, “[u]nless otherwise provided by this
Constitution or the laws of the United States . . . (a) All property is taxable
and shall be assessed at the same percentage of fair market value.” This
provision establishes the general rule that property taxes in California must
be ad valorem. (City of Oakland v. Digre (1988) 205 Cal.App.3d 99, 110
(Digre).) Proposition G imposes a flat annual tax on each parcel of real estate
in San Francisco without regard to the value of the property, and so is not an
ad valorem tax; it is a parcel tax. Nowak acknowledges that article XIII D,
section 3 provides an exception to the rule of article XIII, section 1 for certain
parcel taxes. In particular, article XIII D, section 3(a) authorizes a parcel tax
that is also a special tax receiving supermajority approval under article XIII
A, section 4. Nowak argues that if these provisions added by Proposition 13
and Proposition 218 do not apply to voter initiatives, then nothing saves the
parcel tax in Proposition G from the prohibiting force of article XIII,
section 1.
Nowak reads the prohibition of article XIII, section 1 too broadly, for
case law interprets the provision as not reaching a special tax. Nowak relies
on precedents that construe article XIII, section 1 to prohibit a parcel tax that
is a general tax (see Digre, supra, 205 Cal.App.3d at pp. 110–111; Thomas v.
18
City of East Palo Alto (1997) 53 Cal.App.4th 1084, 1090), ignoring cases in
which a parcel tax that is a special tax survives constitutional challenge (see
Heckendorn v. City of San Marino (1986) 42 Cal.3d 481, 487; Neilson v. City
of California City (2005) 133 Cal.App.4th 1296, 1308). Even Nowak’s
authority recognizes the distinction between general and special taxes as
significant. (See Digre, supra, 205 Cal.App.3d at p. 110 [Heckendorn can “be
read as permitting non-ad valorem property taxes approved as ‘special taxes’
by two-thirds of the voters, while not permitting general ad valorem property
taxation”].)
Neilson is particularly instructive because of the court’s reasoning in
rejecting the idea that local governments lack the power to impose a parcel
tax. The taxpayer in Neilson contended that the California Constitution
requires real property taxes to be ad valorem, and that article XIII A, section
4 excludes such ad valorem real property taxes from its grant of authority to
local governments to impose special taxes, with the result that local
governments may impose no tax that is a non-ad valorem (i.e., parcel) tax on
real property at all. (Nielson, supra, 133 Cal.App.4th at p. 1308.) Neilson
rejected this theory because article XIII D, section 3(a) expressly allows any
parcel tax that is a special tax adopted pursuant to article XIII A, section 4.
Harmonizing these constitutional provisions led the court to conclude that a
parcel tax may be imposed “if the tax is a ‘special’ tax dedicated to specific
purposes and approved ‘by a two-thirds vote of the’ ” local electorate. (Ibid.;
see also Valley Baptist Church v. City of San Rafael (2021) 61 Cal.App.5th
401, 422 [“Proposition 218 confirmed that local government can impose a
non-ad valorem special tax ‘upon any parcel of property . . .’ if the tax is
approved by a two-thirds vote of the electorate”].) As our colleagues in
Division One of this court recently explained, “The ad valorem property tax
19
imposed under section 1 of article XIII . . . is, as its name suggests, a general
tax based upon the value of the property assessed.” (Valley Baptist Church,
at p. 408, fn. 2.) Article XIII, section 1 does not reach a special tax.
We recognize that these cases upholding special parcel taxes, like the
plain language of article XIII D, section 3(a), address parcel taxes approved
by a two-thirds vote of the local electorate. But the constitutional provisions
the cases construe must also be harmonized with the initiative power
reserved to the people in articles II and IV. (See Board of Supervisors v.
Lonergan (1980) 27 Cal.3d 855, 866 [constitutional provisions should be
harmonized whenever possible].) We know that “the people’s power to
propose and adopt initiatives is at least as broad as the legislative power
wielded by the Legislature and local governments.” (California Cannabis,
supra, 3 Cal.5th at p. 935.) Moreover, “procedural requirements imposed on
the Legislature and local governments do not similarly constrain the
electorate’s initiative power without evidence that such was their intended
purpose.” (Ibid.) Although “[n]either the Legislature nor the voters may
enact a law of a nature that exceeds a limitation on the state’s lawmaking
power, such as the right of free speech,” the electorate need “not generally
follow ‘legislative’ procedures when exercising the initiative power.”
(Kennedy Wholesale, supra, 53 Cal.3d at p. 252 & fn. 5.) Such legislative
procedures, superfluous to the initiative process, include the requirement for
a two-thirds vote. (California Cannabis, supra, 3 Cal.5th at p. 942; infra at
p. 21.) Thus, just as article XIII, section 1 does not prohibit a local
government from adopting a special parcel tax with voter approval, so it
cannot prevent the people, exercising their initiative power, from adopting an
identical tax.
20
We are confirmed in this conclusion by the observation that to hold
otherwise would be to construe Proposition 13 and Proposition 218 as having
expanded local government’s authority to tax property. Amicus supporting
Nowak asserts that Proposition 13, specifically article XIII A, section 4, “gave
rise to a new kind of property tax—a non-ad valorem special tax approved by
a two-thirds vote” and Nowak asserts that but for article XIII A, section 4,
such a tax would violate article XIII, section 1. Both are characterizing
article XIII A, section 4 as having given local governments taxing authority
they would not otherwise have had. But section 4 “was intended to
circumscribe the taxing power of local government.” (Rider, supra, 1 Cal.4th
at p. 6.) And when California voters subsequently passed Proposition 62, we
added to the Government Code this directive: “Article XIII A . . . shall [not]
be construed to authorize any local government or district to impose any
general or special tax which it is not otherwise authorized to impose.” (Gov.
Code, § 53727, subd. (a).) Nowak’s construction of article XIII, section 1, as
prohibiting parcel taxes even when they are framed as special taxes, creates
a conflict with this directive.
III. Charter Restrictions on the Initiative Power
Nowak contends that even if these constitutional provisions imposing a
supermajority vote of the electorate do not apply to voter-proposed initiatives,
the San Francisco Charter applies the same requirement to initiative
measures.
Nowak argues that although the Charter recognizes the voters’ power
to “enact initiatives” (S.F. Charter, § 14.100), this power is limited by the
Charter’s definition of an initiative as “a proposal by the voters with respect
to any ordinance, act or other measure which is within the powers conferred
upon the Board of Supervisors to enact” (S.F. Charter, art. XVII). Invoking
21
the principle that “the electorate has no greater power to legislate than the
board itself possesses” (City and County of San Francisco v. Patterson (1988)
202 Cal.App.3d 95, 104), Nowak argues that the electorate, like the Board of
Supervisors, cannot impose special taxes without the concurrence of two-
thirds of the voters. We reject this argument because, although the Charter
“imposes a substantive limit on the initiative power,” it “does not import into
the initiative process any procedural limitation on board action, such as the
supermajority vote requirements of article XIII A, section 4 or [article XIII C,]
section 2(d).” (Matter of Prop. C, supra, 51 Cal.App.5th at p. 724.)
Nowak contends that Proposition G’s parcel tax is not a measure
“within the powers conferred upon the Board of Supervisors to enact” because
the Board can do no more than submit such a measure to the voters for
consideration. (S.F. Charter, art. XVII, italics added.) We view this
argument as nothing more than a repackaging of the erroneous argument
that the supermajority vote requirement is substantive, not procedural. Our
Supreme Court has rejected that argument twice. (See Kennedy Wholesale,
supra, 53 Cal.3d at p. 251 [declining to apply “section 3’s requirement of a
two-thirds vote . . . to the electorate” because “legislative procedures, such as
voting requirements” do not “apply to the electorate”]; California Cannabis,
supra, 3 Cal.5th at p. 942 [“where legislative bodies retain lawmaking
authority subject to procedural limitations” including “two-thirds vote
requirements [citation], we presume such limitations do not apply to the
initiative power absent evidence that such was the restrictions’ intended
purpose”].)
Nowak’s construction would also effect a silent repeal of the people’s
right to adopt a special tax by citizen’s initiative in San Francisco. There is
no evidence the people of San Francisco intended this charter provision to tie
22
their own hands in this manner, and “ ‘the law shuns repeals by
implication.’ ” (Kennedy Wholesale, supra, 53 Cal.3d at pp. 249, 252; see also
California Cannabis, supra, 3 Cal.5th at p. 931 [“Without a direct reference
in the text of a provision—or a similarly clear, unambiguous indication that it
was within the ambit of a provision’s purpose to constrain the people’s
initiative power—we will not construe a provision as imposing such a
limitation”].) In sum, none of Nowak’s arguments dissuades us from
following Matter of Prop. C to conclude that Proposition G was adopted in
compliance with the City Charter.
IV. Collusion or Cooperation in Qualifying Initiative for the Ballot
Finally, Nowak contends that the two-thirds vote requirement in
Proposition 13 and Proposition 218 applies to Proposition G because the
District’s attempt to evade this very requirement appropriated and
undermined the citizens’ initiative power. A similar argument was made and
rejected in Howard Jarvis Taxpayer Association v. City and County of San
Francisco, and we reject Nowak’s argument for the same reasons here. (See
HJTA, supra, 60 Cal.App.5th at pp. 239–241.)
As the trial court explained, San Francisco’s charter recognizes two
ways to put a measure on the ballot: voters may propose a measure by
initiative petition; or a legislative body such as the Board of Supervisors may
propose a measure. (See HJTA, supra, 60 Cal.App.5th at p. 241, fn. 9.) As to
the first method, the Charter states that a voter initiative “may be proposed
by presenting to the Director of Elections a petition containing the initiative
and signed by voters in a number equal to at least five percent of the votes
cast for all candidates for mayor in the last preceding general municipal
election for Mayor.” (S.F. Charter, § 14.101.) Here, the City’s evidence shows
that Proposition G qualified for the ballot in this manner. That evidence
23
consists of a declaration from the Director of Elections and copies of the
material that was submitted to the Director by the three citizen proponents
of Proposition G.
Without disputing that Proposition G met the criteria set forth in the
Charter, Nowak argues that Proposition G was nonetheless subject to a
supermajority vote requirement because the District “undermined and
improperly appropriated” the initiative process, “improper[ly] collu[ding]”
with the Union and others to get Proposition G passed. Nowak bases this
argument on Boling v. Public Employee Relations Board (2018) 5 Cal.5th 898(Boling).
In Boling, several unions filed unfair business practice claims against
the city of San Diego after its mayor refused to meet and confer with them
regarding a citizens’ initiative designed to eliminate pensions for new
municipal employees. (Boling, supra, 5 Cal.5th at pp. 903–904.) The
evidence showed that the mayor chose to pursue pension reform by drafting
and promoting the citizens’ initiative because, among other things, he wanted
to avoid compromises that might result if he was required to negotiate with
the unions. (Id. at p. 905.) Plaintiffs argued, and our Supreme Court agreed,
that the city’s refusal to negotiate with employee representatives was a
violation of the Meyers-Milias-Brown Act, Government Code section 3500 et
seq. (the MMBA). (Boling, at pp. 903, 908, 918.) The Court explained that
the meet-and-confer requirement is a “central feature of the MMBA,” which
requires governing bodies “to engage with unions on matters within the scope
of representation ‘prior to arriving at a determination of policy or course of
action.’ [Citation.] This broad formulation encompasses more than formal
actions taken by the governing body itself.” (Boling, at p. 904, quoting Govt.
Code, § 3505, italics added.) The meet-and-confer obligation arose when the
24
city’s mayor chose to pursue pension reform through a citizens’ initiative
because the MMBA obligated him, as a policymaker, to meet and confer
whether he pursued his pension reform objectives by voter initiative or other
course of action. (Boling, at pp. 913 & 919.) The Court observed that
“[a]llowing public officials to purposefully evade the meet-and-confer
requirements of the MMBA by officially sponsoring a citizens’ initiative
would seriously undermine” the statute’s policies of fostering communication
and relations between public employers and employees. (Id. at pp. 918–919.)
Nowak contends that Proposition G should be declared invalid because
the facts of the present case are “nearly identical” to Boling and the “same
result should follow.” This argument ignores that Boling was all about the
MMBA, a statute of no relevance to this case. The unlawful conduct in
Boling was not that the mayor sponsored a citizens’ initiative, but that he did
so without meeting and conferring with the unions. (Boling, supra, 5 Cal.5th
at p. 918.) “Boling did not impose the meet and confer requirement on the
initiative process—which remained unchanged by the decision—but rather on
the designated representative’s pursuit of policy changes, regardless of the
means chosen.” (HJTA, supra, 60 Cal.App.5th at p. 241.)
Taking a different tack, Nowak contends that Proposition G should be
declared invalid under provisions of the Elections Code that require
proponents of an initiative measure to file a notice of intent and related
documents with the City’s elections official and to pay filing fees. (See Elec.
Code, §§ 9202 & 9206.) Nowak contends that the summary judgment
evidence shows the individuals who identified themselves as proponents of
Proposition G did not meet these “mandatory responsibilities” because they
did not “file or publish the notice of intent, pay the filing fee, or play any role
in the process of authorizing arguments” in favor of Proposition G. These
25
factual allegations are patently argumentative, unsupported by case law
addressing the obligations of a ballot measure proponent. The summary
judgment evidence shows that the proponents of Proposition G did not draft
ballot materials or use personal funds to pay filing fees, but Nowak cites no
authority for the proposition that the City Charter or the Elections Code
requires proponents to do these things personally. Nowak’s briefs do not
argue that the District misused public funds or misrepresented facts
pertaining to Proposition G, and no law precludes a governmental entity
“from publicly expressing an opinion with regard to the merits of a proposed
ballot measure.” (Vargas v. City of Salinas (2009) 46 Cal.4th 1, 36 (Vargas).)5
Undisputed evidence supports the trial court’s finding that the official
proponents of Proposition G were the three individuals who signed the notice
of intent, caused it to be published, and submitted initiative petitions
containing the required number of voter signatures. Like the trial court, we
find nothing inherently sinister about the fact that the District and the Union
supported this proposition.
Our conclusion is reinforced by Chula Vista Citizens for Jobs and Fair
Competition v. Norris (2015) 782 F.3d 520, a case cited to us by Nowak. The
case involved a local ballot measure that ultimately prohibited the City of
Chula Vista from entering into agreements requiring city contractors to pay a
5 At oral argument, counsel for Nowak urged that we invalidate
Proposition G because the District had devoted resources, in the form of time
and money, to the initiative’s passage. But Nowak’s briefs do not cite or
discuss the case counsel quoted in urging this point, Stanson v. Mott (1976)
17 Cal.3d 206, nor the more recent case in which our Supreme Court found
permissible a city’s expenditure of resources to disseminate its view of the
cuts in city services that would ensue if citizens adopted a proposed anti-tax
initiative. (Vargas, supra, 46 Cal.4th at p. 40.) Significantly, Nowak’s
statement of uncontested facts mentions no City moneys used to qualify
Proposition G for the ballot or to promote its passage.
26
prevailing wage. (Id. at p. 524.) Initially, an association of construction-
related businesses and an unincorporated ballot measure committee
designated themselves as the official proponents of this initiative. But the
city clerk refused to process the ballot measure because provisions of the
state Elections Code require that an official proponent of an initiative
measure be an elector, and his or her name must appear on the face of
circulated petitions submitted in support of the measure. (Id. at pp. 525–
526.) After two city residents agreed to serve as official proponents, the
measure was qualified for placement on the city’s municipal election ballot
and approved by the voters. (Id. at p. 526.) Meanwhile, plaintiffs filed a
federal action alleging that their constitutional rights to free speech and
association were impinged by Elections Code restrictions requiring an official
proponent to be an elector and a natural person. (Ibid.) The Ninth Circuit
rejected this claim, concluding “both the California Constitution and the
Chula Vista City Charter plainly reserve to electors the right to be
proponents.” (Id. at p. 527.) In reaching this conclusion, the Chula Vista
court was unconcerned by the fact that the driving force behind the initiative
was not its official proponents but the two associations that “paid for all of
the expenses associated with qualifying the initiative for the municipal
ballot.” (Id. at p. 524.)
Nowak also relies on San Francisco Forty-Niners v. Nishioka (1999) 75
Cal.App.4th 637 for the proposition that “noncompliance with the Elections
Code can result in an initiative’s disqualification from the ballot.” (Id. at
pp. 643–644.) In San Francisco Forty-Niners, the appellate court affirmed a
judgment prohibiting the city’s Director of Elections from qualifying an
initiative measure for the ballot because the text of the initiative petition
contained “deliberately false statements” designed to induce voters to sign
27
the petition, a violation of the Elections Code. (San Francisco Forty-Niners,
at p. 645.) Nothing comparable is alleged to have happened here. Moreover,
Nowak ignores pertinent language in San Francisco Forty-Niners confirming
this court’s duty to “jealously guard the people’s right of initiative,” and to
refrain from intervening in the initiative process unless “there are clear,
compelling reasons to do so.” (Id. at pp. 643–644.) These principles are
inconsistent with Nowak’s attempt to overturn a citizens’ initiative that was
approved by majority vote, on the nebulous and legally unsupported ground
that the measure’s official proponents did not play a sufficiently active role in
securing its passage.
DISPOSITION
The judgment is affirmed.
TUCHER, J.
WE CONCUR:
POLLAK, P. J.
BROWN, J.
28
Trial Court: City & County of San Francisco Superior Court
Trial Judge: Hon. Ethan P. Schulman
Counsel for Appellants: Greenberg Traurig: Bradley R. Marsh and
Colin W. Fraser
Counsel for Amicus Curiae Howard Jarvis Taxpayers Foundation;
on behalf of Appellants: Jonathan M. Coupal, Timothy A. Bittle, Laura
E. Dougherty
Counsel for Respondents: Dennis J. Herrera, City Attorney; Wayne K.
Snodgrass, Deputy City Attorney
CCSF v. All Persons – Prop G (A160659)
29