County of Alameda v. Alameda County Taxpayers' Assn., Inc. ( 2024 )

Filed 1/29/24
CERTIFIED FOR PARTIAL PUBLICATION *
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
COUNTY OF ALAMEDA,
Plaintiff and Respondent, A166401
v.
ALAMEDA COUNTY TAXPAYERS’ (Alameda County
ASSOCIATION, INC. et al., Super. Ct. No. RG20070099)
Defendants and Appellants.
ALAMEDA COUNTY TAXPAYERS’
ASSOCIATION, INC. et al.,
A166404
Plaintiffs and Appellants,
v.
(Alameda County
COUNTY OF ALAMEDA et al., Super. Ct. No. RG20070495)
Defendants and Respondents.
In these consolidated appeals, the Alameda County
Taxpayers’ Association, Inc., Marcus Crawley, Thomas Rubin,
Steve Slauson, and Montclair Village Hardware (collectively, the
Association) appeal from the trial court’s judgments, which
rejected the Association’s attempt to invalidate a citizen’s tax
initiative (Measure C) to fund early childhood education and
pediatric health care in Alameda County. At the March 3, 2020
primary election, Measure C was approved by a simple majority
of county voters. The Association contends that the trial court
* Pursuant to California Rules of Court, rules 8.1105(b) and
8.1110, this opinion is certified for publication with the exception
of Discussion sections A., C., and E.-G.
1
erroneously rejected its numerous challenges to Measure C,
including its argument that the tax initiative required the
approval of two-thirds of the voting electorate, pursuant to
Proposition 13 (Cal. Const., art. XIII A, § 4) 1 and Proposition 218
(art. XIII C, § 2, subd. (d)).
In the published portion of this opinion, we reject that
argument and, additionally, conclude that Measure C does not
violate article II, section 12 by “nam[ing] or identif[ying] any
private corporation to perform any function or to have any power
or duty.” In the unpublished portion of this opinion, we reject the
Association’s remaining challenges. Finding no error, we affirm.
BACKGROUND
A.
Two years before Measure C’s adoption, the Alameda
County Board of Supervisors placed a similar measure on the
ballot, Measure A, which sought voter approval of a 30-year, one-
half percent sales tax to fund childcare and early education. At
the June 2018 election, Measure A failed to receive the two-thirds
voter approval that it needed to pass. About a month later, the
board considered adopting a slimmed down version—a 20-year,
one-half percent sales tax—subject to two-thirds voter approval
at the November 2018 election. The board tabled that proposal.
Soon after, a voter initiative emerged, with support from a
county official and a county employee. In August 2019, the
county’s Registrar of Voters received a “Notice of Intention to
Circulate Petition” for a proposed citizens’ initiative, which
recommended a 20-year, one-half percent sales tax to fund
childcare and pediatric health care. The notice was signed by five
proponents, including Wilma Chan, who was a supervisor on the
board at the time. Dave Brown, who also served as Chan’s chief
1Undesignated article references are to the California
Constitution.
2
of staff, was the principal officer of the campaign committee
proposing the initiative. The county submitted evidence that
Brown served on the campaign committee in his individual
capacity, using vacation time.
After receiving an initiative petition signed by 86,513
voters, the registrar certified that the requisite number of valid
signatures had been received to qualify the proposed initiative for
the ballot (Elec. Code, §§ 9113-9115, 9118). 2 The board placed
the initiative on the ballot for the March 3, 2020 primary election
(§§ 1405, subd. (a), 9118, subd. (b)).
According to the official voter information guide, Measure
C sought a vote on the following: “Alameda County Care for
Kids. To improve critical early health and education for Alameda
County children by: protecting local childrens’ [sic] healthcare
safety net and Level 1 Pediatric Trauma Center; and increasing
access to high quality, affordable childcare and preschool to
improve kindergarten readiness, school success and high school
graduation rates; shall a County of Alameda ordinance enacting a
20-year half-percent sales tax providing approximately
$150,000,000 annually with citizens’ oversight and mandatory
annual audits be adopted?” The guide also included an impartial
analysis of Measure C, written by County Counsel, as well as an
argument in its favor. No argument against the measure was
submitted.
The guide included the full text of Measure C. Section 2
sets out the electorate’s findings, including that “[e]arly
education and health care are two of the important components”
in ensuring the health and success of children; that “[a] child’s
health and educational advancement are essential and dependent
on one another”; that only 31 percent of the county’s children
2 Undesignated statutory references are to the Elections
Code.
3
with working parents had access to licensed child care, preschool,
or other early education; and that, in 2017, only 44 percent of the
county’s children entering kindergarten were ready. Section 3
states that the purpose and intent of the measure is “to ensure
that Alameda County children receive the high quality early
education and health care they need to be successful adults.”
Enactment of the tax, its implementation and collection, along
with the use of proceeds, are governed by additional provisions of
the ordinance, which we discuss in more detail below.
Measure C passed with more than 64 percent of the votes.
B.
Following the election, the county filed an action to validate
Measure C. (Code Civ. Proc., § 860 et seq.; Rev. & Tax. Code,
§ 7270.5.) Only the Association responded to the summons. The
Association also filed its own reverse validation action, under
Code of Civil Procedure section 863, contending Measure C was
invalid under various theories.
After a joint hearing on the merits of the related actions,
the trial court rejected each of the Association’s arguments,
concluded Measure C was valid, and entered judgments in the
county’s (and its registrar’s) favor.
DISCUSSION
A.
To start, we disagree with the county that the Association’s
appeals are untimely.
A notice of appeal in an action filed under the validation
statutes must be filed “within 30 days after the notice of entry of
the judgment.” (Code Civ. Proc., § 870, subd. (b); Davis v.
Mariposa County Bd. of Supervisors (2019) 38 Cal.App.5th 1048,
1051-1052, 1055.) Although it is undisputed that the Association
filed its two notices of appeal (one in each of the actions) within
4
30 days of service of the notices of entry of judgment, the county
moved to dismiss the appeals as untimely. 3
In its motion, the county argues that the 30-day time limit
began running months earlier when it served a “notice of entry”
of the written order after hearing—in which the trial court
rejected all the Association’s claims. We originally deferred ruling
on the motion to dismiss but now deny it.
The question is whether the written order after hearing
constitutes a final judgment, which is to be determined from its
substance rather than its label. (Griset v. Fair Political Practices
Com. (2001) 25 Cal.4th 688, 698.) A final judgment completely
disposes of the matter in controversy and leaves no further
action—such as preparation of another order or judgment—for
the trial court. (See Code Civ. Proc., §§ 577, 904.1, subd. (a)(1);
Griset, supra, at p. 698; Laraway v. Pasadena Unified School
Dist. (2002) 98 Cal.App.4th 579, 583-584.)
Here, the written order after hearing did not provide a final
determination of the parties’ rights. The first paragraph states,
“judgment is to be entered in [the County’s] favor.” (Italics
added.) Thus, the order contemplated further action—the
subsequent preparation and entry of judgment—and the 30-day
period is properly calculated from that later date. (Code Civ.
Proc., § 870; cf. Laraway v. Pasadena Unified School Dist., supra,98 Cal.App.4th at pp. 581-582 [order that resolved all issues
between parties and that “did not contemplate nor direct the
preparation of any further order or judgment” was appealable
final judgment].) The motion to dismiss is denied.
3 The motion to dismiss was filed before the appellate
record and both the county and the Association filed requests for
judicial notice to support their moving and opposition papers.
However, because all the relevant documents establishing our
jurisdiction are now found in the appellate record, the requests
for judicial notice are denied as unnecessary.
5
B.
The Association insists that the tax imposed by Measure C
violates the state constitution—specifically Proposition 13 (art.
XIII A, § 4) and Proposition 218 (art. XIII C, § 2, subd. (d))—
because it was not approved by a two-thirds vote of the
electorate. After independently reviewing the trial court’s
construction of constitutional provisions (California Cannabis
Coalition v. City of Upland (2017) 3 Cal.5th 924, 934 (California
Cannabis)), we reject the Association’s argument.
1.
Under our state constitution, “the people reserve to
themselves the powers of initiative and referendum.” (Art. IV, §
1.) Voters may use the initiative power to enact legislation at the
state, county, and city levels. (Ibid.; art. II, §§ 8, 11, subd. (a).)
“A defining characteristic of the initiative is the people’s power to
adopt laws by majority vote.” (City and County of San Francisco
v. All Persons Interested in Matter of Proposition C (2020) 51
Cal.App.5th 703, 709 (Proposition C); accord, art. II, § 10, subd.
(a); § 9122.)
Our Supreme Court affords “extraordinarily broad
deference” to the electorate’s power to enact laws by initiative.
(Pala Band of Mission Indians v. Board of Supervisors (1997) 54
Cal.App.4th 565, 573-574 (Pala Band); accord, California
Cannabis, supra, 3 Cal.5th at pp. 934-936; Rossi v. Brown (1995)
9 Cal. 4th 688, 695, 711 (Rossi).) California courts have a duty to
“ ‘ “ jealously guard” ’ ” the voters’ exercise of their initiative
power, and courts must therefore liberally construe the initiative
right, “resolve doubts in favor of [its] exercise . . . whenever
possible,” and “narrowly construe provisions that would burden
or limit the exercise of that power.” (California Cannabis, supra,
at pp. 934, 936.)
6
There are “precious few limits” on the initiative power.
(California Cannabis, supra, 3 Cal.5th at p. 935.) By design, the
initiative power is intended to circumvent the ordinary legislative
process. (Id. at p. 934.) Procedural requirements imposed on
state and local governments do not apply to initiatives unless
there is unambiguous evidence that they were so intended. (Id.
at pp. 935, 945-947.) This includes the procedural requirements
that Propositions 13 and 218 added to our constitution. (See
California Cannabis, at pp. 935, 948; Kennedy Wholesale, Inc. v.
State Bd. of Equalization (1991) 53 Cal.3d 245, 251-253 (Kennedy
Wholesale).)
Two such requirements are at issue here. Proposition 13
added 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.” Proposition 218 added article XIII C, section 2,
subdivision (d): “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.” 4
Our Supreme Court has examined related provisions of
Propositions 13 and 218 and concluded that they apply to taxes
imposed by local government (or the state legislature) but not to
taxes imposed by voter initiative. (California Cannabis, supra, 3
Cal.5th at pp. 931, 936 [art. XIII C, § 2, subd. (b)’s restriction on
local government tax increases does not limit voters’ power to
raise taxes by initiative]; Kennedy Wholesale, supra, 53 Cal.3d at
pp. 248-249, 251, 253 [art. XIII A, § 3’s supermajority
requirement for taxes enacted by state legislature does not limit
voters’ initiative power to raise taxes by majority vote].) In
4 A special tax is one that earmarks or dedicates its
proceeds to a specific purpose. (Bay Area Cellular Telephone Co.
v. City of Union City (2008) 162 Cal.App.4th 686, 696; accord, art.
XIII C § 1, subd. (d).) It is undisputed that Measure C qualifies.
7
California Cannabis, the court explained that a “contrary
conclusion would require an unreasonably broad construction of
the term ‘local government’ at the expense of the people’s
constitutional right to direct democracy, undermining our
longstanding and consistent view that courts should protect and
liberally construe it.” (California Cannabis, supra, at p. 931; see
id. at p. 945.) A local tax enacted by voter initiative is not a tax
“impose[d]” by “local government” within the meaning of
Proposition 218. 5 (Id. at pp. 943-944.)
Following California Cannabis, the California appellate
courts have uniformly concluded that the supermajority
requirements applicable to special taxes imposed by local
government (art. XIII A, § 4; art. XIII C, § 2, subd. (d)) do not
limit the electorate’s initiative power. (Alliance San Diego v. City
of San Diego (2023) 94 Cal.App.5th 419, 430-434, review den.
Nov. 21, 2023, S281846 (Alliance San Diego); City and County of
San Francisco v. All Persons Interested in the Matter of
Proposition G (2021) 66 Cal.App.5th 1058, 1070, 1075
(Proposition G); Howard Jarvis Taxpayers Assn. v. City and
County of San Francisco (2021) 60 Cal.App.5th 227, 230-237,
review den. April 28, 2021, S267516 (Howard Jarvis); City of
Fresno v. Fresno Building Healthy Communities (2020) 59
Cal.App.5th 220, 226, 235-236, review den. Mar. 30, 2021,
S266846; Proposition C, supra, 51 Cal.App.5th at pp. 708-709,
721, 724, review den. Sept. 9, 2020, S263753.)
We agree that, if a local special tax is imposed via citizens’
initiative, only a simple majority vote is required to adopt it.
5 Proposition 218 provides a single definition of local
government: “ ‘Local government’ means any county, city, city
and county, including a charter city or county, any special
district, or any other local or regional governmental entity.” (Art.
XIII C, § 1, subd. (b).)
8
(Proposition G, supra, 66 Cal.App.5th at p. 1070; Howard Jarvis,
supra, 60 Cal.App.5th at p. 237; § 9122.)
2.
The Association acknowledges that the foregoing rule is
settled but argues that the cases listed above are distinguishable.
Those cases, it says, involved bona fide citizens’ initiatives, while
Measure C—due to the involvement of a board supervisor and
her chief of staff—was merely a “ ‘quasi-initiative’ ”
masquerading as a voters’ initiative. It asks us to declare that,
when an initiative campaign is “effectively controlled” by local
government in “ ‘intentional circumvention’ ” of Propositions 13
and 218, the tax was enacted by local government, not by voter
initiative, and thus subject to the two-thirds vote requirement.
This Division rejected a similar argument in Howard Jarvis,
supra, 60 Cal.App.5th at pages 239-242. The Association asks us
to reconsider that decision. We have taken a fresh look at the
issue, but we remain unpersuaded.
First, the Association, rather cavalierly, is asking us to
annul a voter initiative by judicial fiat. Measure C was enacted
by voter initiative, not by the board. (See California Cannabis,
supra, 3 Cal.5th at pp. 934-935, 945 [distinguishing between
taxes enacted by initiative and taxes enacted by local
government]; see also Friends of Sierra Madre v. City of Sierra
Madre (2001) 25 Cal.4th 165, 175, fn. 7, 187-190 (Sierra Madre)
[distinguishing between city council-generated initiatives (also
known as referenda) and voter-sponsored initiatives].) It was
placed on the ballot by voter petition and approved at the March
2020 election by a majority of voters. (See §§ 9118, subd. (b),
9122.) We cannot ignore reality.
The Association makes no serious attempt to explain how
we can set aside the votes of 287,027 people (more than 64
percent of total votes cast) while honoring our duty to
“ ‘ “jealously guard” ’ ” the voters’ exercise of their initiative
9
power, liberally construe the initiative right, and “resolve doubts
in favor of [its] exercise . . . whenever possible.” (California
Cannabis, supra, 3 Cal.5th at p. 934.) Nor does it explain how a
court can declare—consistent with separation of powers
principles (art. III, § 3; City Council v. Superior Court (1960) 179
Cal.App.2d 389, 394-396)—that a county’s board of supervisors
enacted a specific tax measure that, in fact, it never voted to
enact. (See Rose v. County of San Benito (2022) 77 Cal.App.5th
688, 716 [“a county acts only through its board of supervisors;”
individual officer cannot alone exercise legislative function].)
Because Measure C was imposed by voter initiative, the tax was
not “impose[d]” by local government within the meaning of
Proposition 13 and Proposition 218, and the supermajority rules
do not apply. 6 (See art. XIII A, § 4; art. XIII C, § 2, subd. (d);
California Cannabis, supra, at pp. 943-944; Howard Jarvis,
supra, 60 Cal.App.5th at pp. 231, 237-239.)
Second, Rider v. County of San Diego (1991) 1 Cal.4th 1(Rider)—which the Association relies on as authority for
judicially declaring Measure C to be a special tax imposed by
local government, rather than by initiative–has nothing to do
with initiatives. The Rider court considered whether Proposition
13 (art. XIII A, § 4) applied to a special tax imposed by a regional
6 To be sure, there are important limits on the degree to
which public officials may advocate for, or expend public
resources on, a voter initiative. (See, e.g., Stanson v. Mott (1976)
17 Cal.3d 206, 223; League of Women Voters v. Countywide Crim.
Justice Coordinating Com. (1988) 203 Cal.App.3d 529, 548-550.)
But the Association is not seeking relief on these grounds. Its
purpose, instead, is to invalidate the election result by
reclassifying the initiative as a local government enactment,
thereby making Proposition 13’s and Proposition 218’s
supermajority requirements applicable. Because we reject this
approach, we have no reason to consider whether any public
official breached any rules.
10
financing agency. (Rider, supra, at p. 5.) The case primarily
turns on whether the agency was a “special district” under article
XIII A, section 4. The agency had been transparently designed to
evade Proposition 13 by taking advantage of an earlier Supreme
Court case that narrowly construed the term “special district.”
(Rider at pp. 9-10; see Los Angeles County Transportation Com. v.
Richmond (1982) 31 Cal.3d 197, 205-206.) The Rider court
recognized that Richmond had created a loophole, revisited the
issue (Rider, supra, at pp. 10-11), and concluded that the
“framers of Proposition 13, and the voters who adopted it”
intended a broader definition of “special district.” (Id. at p. 11.)
Rider is inapposite. Proposition 13 expressly applies to
special districts. (Art. XIII A, § 4.) So the Rider court’s holding—
that the special district at issue must comply with Proposition
13—fits squarely within the language and intent of the
constitutional language. (Rider, supra, 1 Cal.4th at p. 11.) But
our case concerns a voter initiative, and the courts have
uniformly concluded that the language and intent of Propositions
13 and 218 do not apply to voter initiatives. (See, e.g.,
Proposition C, supra, 51 Cal.App.5th at pp. 708-709, 721, 724.)
Rider does not cast doubt on those cases, much less give us
license to invalidate an initiative. We thus stand by our
conclusion in Howard Jarvis: Rider does not apply because
“neither the text nor ballot materials provide the requisite
‘unambiguous indication’ that the enactors of Propositions 13 and
218 intended to constrain the initiative power when an official is
involved in the initiative process.” (Howard Jarvis, supra, 60
Cal.App.5th at p. 242, citing California Cannabis, supra, 3
Cal.5th at pp. 945-946; see Proposition G, supra, 66 Cal.App.5th
at pp. 1079-1081 [following Howard Jarvis].)
We acknowledge that our colleagues in the Fourth District,
citing Rider, recently suggested that “too much government
involvement” could potentially “convert a voter [tax] initiative
11
into a local government initiative.” (Alliance San Diego, supra,
94 Cal.App.5th at pp. 447-448.) For the reasons stated above, we
disagree.
We need not address the Association’s related discovery
and pleading arguments.
C.
The Association also contends that Measure C violates the
single-subject rule. We disagree.
1.
The single-subject rule refers to article II, section 8,
subdivision (d), which provides: “An initiative measure
embracing more than one subject may not be submitted to the
electors or have any effect.” The rule applies to both local and
statewide initiatives (Shea Homes Limited Partnership v. County
of Alameda (2003) 110 Cal.App.4th 1246, 1255) and is intended to
minimize the risk of voter confusion and deception. (Senate of the
State of Cal. v. Jones (1999) 21 Cal.4th 1142, 1156.) However,
because “ ‘the initiative process occupies an important and
favored status in the California constitutional scheme,’ ” the rule
“ ‘should not be interpreted in an unduly narrow or restrictive
fashion that would preclude the use of the initiative process to
accomplish comprehensive, broad-based reform in a particular
area of public concern.’ ” (Briggs v. Brown (2017) 3 Cal.5th 808,
828 (Briggs).)
There are two tests for measuring compliance with the
single-subject rule. (One Technologies, LLC v. Franchise Tax Bd.
(2023) 96 Cal.App.5th 748, 760 (One Technologies).) Under the
first, courts will uphold an initiative measure if its component
provisions are “ ‘reasonably germane’ ” to a common theme or
purpose. (Briggs, supra, 3 Cal.5th at p. 829, italics omitted; One
Technologies, supra, at p. 760.) Yet the common purpose to which
the initiative’s various provisions relate cannot be “ ‘so broad that
12
a virtually unlimited array of provisions could be considered
germane,’ ” which would “ ‘essentially obliterat[e] the
constitutional requirement.’ ” (Senate of the State of Cal. v.
Jones, supra, 21 Cal.4th at p. 1162; Brosnahan v. Brown (1982)
32 Cal.3d 236, 253 [rule “forbids joining disparate provisions
which [are] germane only to topics of excessive generality such as
‘government’ or ‘public welfare’ ”].)
Under the second test, an initiative complies with the
single-subject rule if its provisions are “functionally related to one
another.” (Harbor v. Deukmejian (1987) 43 Cal.3d 1078, 1100.)
We are obligated to resolve any reasonable doubts in favor of the
people’s initiative right. (Brosnahan v. Brown, supra, 32 Cal.3d
at p. 241.)
2.
The Association does not challenge Measure C’s own
findings that its education and health care provisions are
functionally related—because outcomes in both areas are
interdependent. Rather, it argues that there is no common
theme because some revenue may be spent on health care for
young adults.
Proceeds from the tax must be deposited into a special
fund, comprised of two accounts, that may be used to support
pediatric health care, childcare, and early education. The
revenue deposited in the “Child Care, Preschool, and Early
Education Account” fund will support childcare and early
education services for “low- and middle-income children from
birth to age twelve.” (Italics added.) The revenue deposited in
the “Pediatric Health Care Account” will be spent to (1)
“maintain, upgrade, and expand . . . a Level 1 pediatric trauma
center in Alameda County”; (2) “assure the financial viability of
the local children’s health care safety net and its accessibility,
including the maintenance and expansion of specialized staff and
facilities that provide board certified pediatric and pediatric
13
subspeciality care . . . for children and young adults without
regard to insurance status or their ability to pay;” and (3)
“implement innovative programs that enable pediatric and young
adult patients and their families to better access pediatric health
care services.” (Italics added.)
The Association maintains that Measure C thus promotes
not only early childhood education but—because young adults
and children 12 years old and younger are necessarily different
groups—also health programs that are not aimed at improving
early education outcomes. Therefore, they argue that Measure C
has no common theme.
The Association’s approach is too strict. Measure C’s
provisions are united by the common goal of “ensur[ing] that
Alameda County children receive the high quality early
education and health care they need to be successful adults.”
This goal is not so broad that accepting it would essentially
negate the constitutional requirement. (See California Assn. of
Retail Tobacconists v. State of California (2003) 109 Cal.App.4th
792, 811-812.) And funding health care for young adults—who
are in the transition period from childhood to adulthood that
Measure C explicitly seeks to enhance— is reasonably germane
to the initiative’s purpose. At most, allowing some funding to
support health care for young adults would be a collateral effect
of the initiative, which is permissible. (Kennedy Wholesale,
supra, 53 Cal.3d at pp. 254-255; see also, One Technologies,
supra, 96 Cal.App.5th at pp. 762-763.)
Ultimately, the Association disagrees with Measure C’s
strategy. We know of no reason that the people (in their
legislative role) cannot decide that health care is important
enough to a child’s developmental success—on both the
individual and intergenerational level—to fund throughout the
child’s development into adulthood. It is not the courts’ role to
question an initiative’s economic or social wisdom. (Briggs,
14
supra, 3 Cal.5th at p. 828.) We reject the notion that the single-
subject rule requires Measure C to set uniform age limits across
the entirety of its spending provisions.
D.
Next, the Association argues that Measure C is
unconstitutional because its findings identify a private
corporation, UCSF Benioff Children’s Hospital, Oakland
(Children’s Hospital Oakland), in violation of article II, section
12. This argument also lacks merit.
1.
Article II, section 12 provides: “No amendment to the
Constitution, and no statute proposed to the electors by the
Legislature or by initiative, that names any individual to hold
any office, or names or identifies any private corporation to
perform any function or to have any power or duty, may be
submitted to the electors or have any effect.” (Italics added.)
This constitutional prohibition was “enacted to prevent the
initiative [power] from being used to confer special privilege or
advantage on specific persons or organizations.” (Calfarm Ins.
Co. v. Deukmejian (1989) 48 Cal.3d 805, 832 (Calfarm).) It
applies equally to both “for profit” corporations and to “ ‘nonprofit
public benefit corporation[s]’ ” (id. at pp. 833-834), such as the
Children’s Hospital Oakland. Article II, section 12’s prohibition
also applies to county initiatives, just as it does to state
initiatives. (Pala Band, supra, 54 Cal.App.4th at pp. 579-583.)
An initiative measure “ ‘must be upheld unless [its]
unconstitutionality clearly, positively, and unmistakably
appears.’ ” (Rossi, supra, 9 Cal.4th at p. 711.) “If the validity of
the measure is ‘fairly debatable,’ it must be sustained.” (Calfarm,
supra, 48 Cal.3d at p. 815.) When a portion of an initiative
violates article II, section 12 but is severable, “the rule is clear:
15
the offending part must be stricken from the initiative, and the
remainder may take effect.” (Calfarm, at p. 836.)
2.
The question is whether Measure C violates article II,
section 12 by granting a specific “name[d] or identifie[d]” private
corporation an exclusive privilege or role that is superior to
others. (See Calfarm, supra, 48 Cal.3d at pp. 832, 834; Tain v.
State Bd. of Chiropractic Examiners (2005) 130 Cal.App.4th 609,
633-634.) We agree with the county that it does not.
Children’s Hospital Oakland is named in Measure C’s
findings, which describe it as a critical provider of pediatric care
in the community without assigning it any function, power, or
obligation.
The Association focuses on section 2.08.302 A. of the
measure, which explains how the board can spend revenue and
refers to the “local pediatric hospital”: “In each year during the
term of this article, the board of supervisors shall, in consultation
with the local pediatric hospital and specialty provider
representatives, expend monies from the Pediatric Health Care
Account based on demonstrated need for any of [three pediatric
health care related] purposes,” including “[t]o maintain, upgrade,
and expand, as needed, a Level 1 pediatric trauma center in
Alameda County” and “[t]o assure the financial viability of the
local children’s health care safety net.” (Italics added.) Section
2.08.302 B. continues: “Monies from the Pediatric Health Care
Account may be expended for the purposes set forth herein as
direct grants, as contractual or program payments for services
and activities, as the nonfederal share of Medicaid payments or
other federal program payments through certified public
expenditures or intergovernmental transfers, as reimbursement
or other compensation for costs, as incentives, or through
programs or other vehicles identified or developed in conjunction
16
with the local pediatric hospital and specialty provider
representatives.” (Italics added.)
The italicized language imposes a duty on the board to
consult with multiple experts, including the local pediatric
hospital, before spending revenue from the Pediatric Health Care
Account. The experts themselves have only a passive role as
consultees with no duties and no authority to make decisions—
not even an obligation to answer the phone when the board calls.
(Cf. Pala Band, supra, 54 Cal.App.4th at pp. 584-585, 591
[initiative violated article II, section 12 when it imposed duties on
named private developer to determine and prepare a site plan,
secure permits, and consult with various agencies].)
We are not troubled by the passive consultation role. Given
that a primary objective of Measure C is to support “a local Level
1 pediatric trauma center” and to “maint[ain] and expan[d] . . .
specialized staff and facilities . . . [to treat] complex illnesses and
conditions,” it is impossible to imagine that the board would not
consult the trauma center and other health care experts when
deciding how to spend the revenue Measure C raises. As a
matter of good governance and fiscal prudence, the board would
presumably consult with them regardless of whether Measure C
required it to do so. The Association fails to persuade us that this
is the kind of special privilege that article II, section 12 was
intended to proscribe. (See Calfarm, supra, 48 Cal.3d at pp. 832-
833 [discussing legislative history].)
Finally, Measure C’s section 2.08.302 was carefully drafted
to avoid naming a specific private corporation in any exclusive
role (Calfarm, supra, 48 Cal.3d at pp. 832, 834), instead using the
generic terms “the local pediatric hospital and specialty provider
representatives.” The former term is undefined. As noted,
separate findings name Children’s Hospital Oakland without
assigning it any function, power, or duty. We agree that, as a
matter of logic, they can be linked. But because the initiative
17
keeps them separate, if the hospital is sold during the 20-year life
of the tax, Measure C would require the board to consult with
(among other experts) the new owners, not Children’s Hospital
Oakland. (See Hernandez v. Town of Apple Valley (2017) 7
Cal.App.5th 194, 211, 213 [finding no article II, section 12
violation where initiative referred to Walmart generically as
“developer” or “owner” and gave it no rights superior to others if
it sold the property].) Article II, section 12, bars an initiative
from assigning functions, powers, and duties to a specific
corporation, not a generic owner or developer. (See Hernandez,
supra, at pp. 211, 213; Pala Band, supra, 54 Cal.App.4th at p.
587 & fn. 22 [striking definition of “ ‘[a]pplicant’ ” that named a
specific private developer but leaving generic references to
“ ‘[a]pplicant’ ” to whom the initiative assigned functions, powers,
and duties].) 7
The Association fails to meet its burden to show that the
initiative “ ‘clearly, positively, and unmistakably’ ” violates article
II, section 12. (Rossi, supra, 9 Cal.4th at p. 711.) Therefore we
7 The Association also observes that some of the revenue
from Measure C will support the services Children’s Hospital
Oakland provides to the community as it is undisputedly the only
existing “Level 1 pediatric trauma center” in the county. This
nonexclusive benefit (§§ 2.08.301-2.08.302) does not appear to be
a duty, power, or function proscribed by article II, section 12.
Moreover, by identifying Children’s Hospital Oakland in the
findings, Measure C provided the voters important information
about where some of their tax money will be spent. It is hard to
see how withholding this information would serve the underlying
constitutional purpose of article II, section 12. (See Calfarm,
supra, 48 Cal.3d at pp. 832-833.) In any event, the Association
offers no coherent argument or authority to support the position
that this benefit is a function, power, or duty proscribed by that
provision. Thus, we do not address it further. (See Cal. Rules of
Court, rule 8.204(a)(1)(B); Hernandez v. First Student, Inc. (2019)
37 Cal.App.5th 270, 277.)
18
must uphold Measure C. (Calfarm, supra, 48 Cal.3d at pp. 814-
815.)
E.
The Association next argues that imposition of Measure C’s
tax would violate Revenue and Taxation Code section 7251.1,
which provides: “The combined rate of all [transactions and use]
taxes imposed . . . in any county may not exceed 2 percent. No
tax shall be considered to be in accordance with this part if, upon
its adoption, the combined rate in the county will exceed 2
percent.” The Association fails to meet its burden to show error
on appeal.
In rejecting the same argument below, the trial court
explained that the Association failed to account for the
application of Revenue and Taxation Code section 7292.2,
subdivision (b). Subdivision (a) of that statute provides:
“Notwithstanding any other law, the County of Alameda may
impose a transactions and use tax for general or specific purposes
to support countywide programs at a rate of no more than 0.5
percent that would, in combination with all taxes imposed in
accordance with the Transactions and Use Tax Law . . . , exceed
the limit established in Section 7251.1, if all of the following
requirements are met: [¶] (1) The county adopts an ordinance
proposing the transactions and use tax by any applicable voting
approval requirement. [¶] (2) The ordinance proposing the
transactions and use tax is submitted to the electorate and is
approved by the voters voting on the ordinance pursuant to Article
XIIIC . . . . [¶] (3) The transactions and use tax conforms to the
Transactions and Use Tax Law . . . , other than Section 7251.1.”
(Rev. & Tax. Code, § 7292.2, subd. (a), italics added.)
Since January 1, 2020, subdivision (b)(1) of the very same
statute has provided: “Notwithstanding Section 7251.1, neither of
the following shall be considered for purposes of the rate limit
established by that section: [¶] (A) A transactions and use tax
19
rate imposed pursuant to subdivision (a). [¶] (B) A transactions
and use tax rate imposed by the County of Alameda pursuant to
authority previously granted by Chapter 327 of the Statutes of
2011, as amended by Chapter 194 of the Statutes of 2013.” (Rev.
& Tax. Code, § 7292.2, subd. (b)(1), as amended by Assem. Bill
No. 723 (2019-2020 Reg. Sess.), Stats. 2019, ch. 747, § 3, eff. Jan.
1, 2020, italics added.) “This subdivision does not constitute a
change in, but is declaratory of, existing law.” (Id., subd. (b)(2).)
The Association appears to assume the imposition of
Measure C’s one-half percent tax would have exceeded the two
percent cap set by Revenue and Taxation Code section 7251.1—
thus requiring Measure C to comply with Revenue and Taxation
Code section 7292.2, subdivision (a), to exempt itself from the
cap. In support, the Association cites only a chart prepared by
California’s Department of Tax and Fee Administration, which
lists the name, rate, and effective date of various taxes imposed
within Alameda County. However, the county correctly points
out that, because of the passage of Assembly Bill No. 723, certain
taxes are not counted towards the two percent limit. (Rev. &
Tax. Code, § 7292.2, subd. (b); Pub. Util. Code, § 29140.)
The Association has not met its burden on appeal. We
cannot assume that the two percent limit applies to all the taxes
listed in the chart. Because the Association fails to point us to
anything in the record establishing otherwise, we must presume
that the trial court correctly determined that the additional one-
half percent to be imposed by Measure C implicates neither
Revenue and Taxation Code section 7251.1 nor Revenue and
Taxation Code section 7292.2, subdivision (a). (See Howard v.
Thrifty Drug & Discount Stores (1995) 10 Cal.4th 424, 443
[appellant bears burden of affirmatively demonstrating error];
Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246.)
20
F.
Implicitly recognizing that our Legislature granted
Alameda County relief from the two percent limit, in Senate Bill
No. 703 and Assembly Bill No. 723, the Association attacks those
statutes as unconstitutional special legislation. The argument
lacks merit.
Article IV, section 16 provides: “(a) All laws of a general
nature have uniform operation. [¶] (b) A local or special statute is
invalid in any case if a general statute can be made applicable.”
“[A]rticle IV, section 16 does not prohibit the Legislature from
enacting statutes that are applicable solely to a particular county
or local entity.” (White v. State of California (2001) 88
Cal.App.4th 298, 305, italics added.) In determining whether a
general statute can be made applicable, the focus is whether
there is any “ ‘rational relationship’ ” between the purpose of the
statute and the statute’s singling out of a specific county. (Ibid.)
The Legislature’s finding of such a rational relationship “is
entitled to great weight and will not be reversed unless the
determination is arbitrary and without any conceivable factual or
legal basis.” (Ibid.)
“If any state of facts can reasonably be conceived which
would sustain a statutory classification, there is a presumption
that this state of facts exists and the burden of demonstrating
arbitrariness rests upon the party who assails the classification.”
(Board of Education v. Watson (1966) 63 Cal.2d 829, 833.) The
Association fails to meet that burden.
In 2017, the Legislature enacted Senate Bill No. 703 to
exempt Alameda County, along with another county and city,
from the statewide cap on local sales taxes (Rev. & Tax. Code,
§ 7251.1) if certain requirements are met. In doing so, the
Legislature determined a special statute was necessary to
address the “unique fiscal pressures” preventing Alameda County
21
from funding “essential programs,” such as childcare. (Stats.
2017, ch. 651, §§ 3, 5, eff. January 1, 2018.)
In 2019, the Legislature enacted Assembly Bill No. 723 to
provide that neither the one-half percent exemption for Alameda
County previously enacted by Senate Bill No. 703, nor a sales tax
imposed by the Bay Area Rapid Transit District, would be
counted in considering compliance with the statewide sales tax
cap. Again, the Legislature identified “unique fiscal pressures”
placed on Alameda County by transportation infrastructure.
(Stats. 2019, ch. 747, § 4 and accompanying Legislative Counsel’s
Digest.)
In both instances, the Legislature identified reasonable
bases for legislation targeting Alameda County. The Association
wholly fails to meet its burden to demonstrate why the
Legislature’s rationale is arbitrary or unreasonable. (Board of
Education v. Watson, supra, 63 Cal.2d at p. 833.)
G.
Finally, the Association raises two challenges to Measure
C’s ballot materials. It contends that the county failed to comply
with the Elections Code in setting (and providing notice of) a
“reasonable date” for submission of arguments against the
measure. The Association also maintains that the ballot
materials were misleading because, while the text of the proposed
ordinance provides that (absent extension) the tax will
automatically terminate at the end of the 2040-2041 fiscal year,
the ballot materials state that Measure C is a “20-year” tax.
Neither challenge can be raised after the election.
1.
During a 10-day examination period, the public may
examine ballot materials before they are printed (§ 9190, subd.
(a)) and “seek a writ of mandate or an injunction requiring any or
all of the materials to be amended or deleted.” (§ 9190, subd.
22
(b)(1); accord, § 9106 [“[a]ny elector of the county may seek a writ
of mandate requiring the ballot title or summary prepared by the
county counsel to be amended”].) Section 13314 similarly permits
a voter to seek a preelection writ of mandate “alleging that an
error or omission has occurred, or is about to occur . . . in the
printing of, a ballot [or] county voter information guide, . . . or
that any neglect of duty has occurred.” (§ 13314, subd. (a)(1).)
Given the existence of such remedies, the general rule is
that an attack on the sufficiency or impartiality of ballot
materials can only be brought before an election. (See e.g., Sierra
Madre, supra, 25 Cal.4th at pp. 192-194; Denny v. Arntz (2020) 55
Cal.App.5th 914, 920-922.) Section 16100 enumerates a narrow
(and exclusive) list of circumstances under which we have
postelection authority to invalidate the results of an election.
(Sierra Madre, supra, at pp. 192-193.) The rationale is both
important and fundamental: “ ‘Voters, not judges, mainly run
our democracy. It would threaten that core tenet if one person
who did not like the election result could hire lawyers and with
ease could invalidate an expression of popular will.’ ” (Owens v.
County of Los Angeles (2013) 220 Cal.App.4th 107, 124.)
There is also a constitutional exception to the preelection-
challenge rule: “the California appellate courts have recognized
the ‘possibility’ that an impartial analysis of a county measure or
other ballot materials can be so misleading and inaccurate ‘that
constitutional due process requires invalidation of the election.’ ”
(Owens v. County of Los Angeles, supra, 220 Cal.App.4th at p.
123.) However, the bar is “very high” for such a postelection due
process challenge. (Ibid.) “[W]here the complained-of
irregularities consist of omissions, inaccuracies or misleading
statements in the ballot materials” the challenger must
demonstrate that the ballot materials “were so inaccurate or
misleading as to prevent the voters from making informed
23
choices.” (Horwath v. City of East Palo Alto (1989) 212
Cal.App.3d 766, 777.)
2.
As we noted previously, no argument against Measure C
appeared in the voter information guide. The Association
suggests that it would have submitted an argument against
Measure C but could not do so because the registrar set
December 11, 2019 as the deadline for submission of
arguments—the very same day that notice of the deadline was
published in a general circulation newspaper. 8 The Association
maintains that it is therefore entitled to declaratory and
injunctive relief—including an injunction prohibiting the county
from enforcing Measure C—because the registrar violated
Elections Code section 9163 and related provisions of the
Government Code.
Elections Code section 9162 provides that any individual
voter or association of citizens may file a written argument “for or
against any county measure” and the “county elections official
shall cause [any such] argument . . . to be printed, and shall
enclose a copy of both arguments preceded by the [impartial
analysis] with each county voter information guide.” “Based on
the time reasonably necessary to prepare and print the
arguments, analysis, and county voter information guides and to
permit the 10-calendar-day public examination . . . for the
particular election, the county elections official shall fix and
determine a reasonable date before the election after which no
arguments for or against any county measure may be submitted.”
(Elec. Code, § 9163, italics added.) Notice of the fixed deadline
“shall be published [once] in a newspaper of general circulation.”
(Gov. Code, §§ 6060, 6061; Elec. Code, § 9163.)
8The registrar did post notice of the argument submission
deadline on the county’s official election website weeks earlier.
24
The county does not argue that, by publishing notice of the
deadline on the day opposition arguments were themselves due,
the registrar set a reasonable deadline or provided constructive
notice in compliance with section 9163. Nonetheless, we agree
with the county that, having failed to invoke its preelection
remedy to challenge the deadline and omission of opposition
argument, the Association cannot obtain relief now. (See §§ 9190,
subd. (b)(1), 13314; McKinney v. Superior Court (2004) 124
Cal.App.4th 951, 957 [“one cannot pass up a preelection remedy
in favor of a postelection challenge”].)
The Association does not maintain that section 16100
allows it to bring its claim as a postelection challenge. Moreover,
the Association, in its reply brief, disavows any reliance on the
constitutional due process exception. Instead, the Association
seeks to fashion a new exception to the preelection challenge rule.
It asserts that we should order the trial court to grant equitable
relief—including an injunction prohibiting the county from
enforcing the Measure C ordinance—because the problem it
complains of is likely to be repeated and will not otherwise be
subject to review.
The Association is wrong. Should anything similar occur,
any aggrieved party may file a preelection petition for writ of
mandate or seek an injunction. (See §§ 9190, subd. (b)(1), 13314.)
The Association seems to recognize as much because the only
authority it cites involved a preelection challenge. (See Sonoma
County Nuclear Free Zone ’86 v. Superior Court (1987) 189
Cal.App.3d 167, 170, 176.)
3.
The Association also contends that the ballot materials
were misleading because, although the measure would impose an
increased sales tax for purportedly “more than twenty years,” the
ballot materials described Measure C as a “20-year half-percent
sales tax.”
25
The ballot materials were not misleading. The tax imposed
by Measure C became operative on July 1, 2020 and it expires 20
years, 11 months, and 29 days later—on June 30, 2041. (See
Gov. Code, § 13290.) Measure C will expire after 20 full years,
just before its 21st birthday. It is perfectly reasonable to describe
it as a 20-year tax.
In any event, the Association could have raised any
purported inaccuracy in the ballot materials by filing a
preelection petition for writ of mandate or by seeking a
preelection injunction. (See §§ 9190, subd. (b)(1), 13314, subd.
(a)(1).) The Association’s allegations of unfairness do not come
anywhere close to meeting the constitutional standard. (See
Horwath v. City of East Palo Alto, supra, 212 Cal.App.3d at pp.
776–778.)
DISPOSITION
The judgments are affirmed. The county is entitled to its
costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)
BURNS, J.
WE CONCUR:
JACKSON, P.J.
CHOU, J.
County of Alameda v. Alameda County Taxpayers’ Association, Inc. et al. (A166401)
Alameda County Taxpayers’ Association, Inc. et al. v. County of Alameda et al.
(A166404)
26
Alameda County Superior Court, Nos. RG20070099 and
RG20070495, Hon. Jeffrey S. Brand.
Colantuono, Highsmith & Whatley, PC, Michael G. Colantuono,
John A. Abaci, and Conor W. Harkins, for Plaintiff and
Respondent in A166401 and Defendants and Respondents in
A166404.
Law Offices of Jason A. Bezis, Jason A. Bezis, for Defendants and
Appellants in A166401 and Plaintiffs and Appellants in A166404.
Howard Jarvis Taxpayers Foundation, Jonathan M. Coupal,
Timothy A. Bittle, and Laura E. Dougherty for Howard Jarvis
Taxpayers Association as Amicus Curiae on behalf of Defendants
and Appellants in A166401 and Plaintiffs and Appellants in
A166404.
27