Untitled California Attorney General Opinion

OFFICE OF THE ATTORNEY GENERAL
State of California
JOHN K. VAN DE KAMP
Attorney General
______________________________________
OPINION :
: No. 89-604
of :
: MAY 3, 1990
JOHN K. VAN DE KAMP :
Attorney General :
:
JACK R. WINKLER :
Assistant Attorney General :
:
______________________________________________________________________________
THE HONORABLE SAM FARR, MEMBER OF THE CALIFORNIA ASSEMBLY,
has requested an opinion on the following question:
May a county board of supervisors levy an additional 0.5 percent sales tax pursuant
to Revenue and Taxation Code section 7285 without submitting the proposal to the voters of the
county for their approval?
CONCLUSION
The requirement in section 7285 of the Revenue and Taxation Code that county
voters must approve the additional 0.5 per cent sales tax is unconstitutional and is not severable from
the remainder, making section 7285 void in its entirety. A board of supervisors has no authority to
levy an additional 0.5 percent sales tax pursuant to section 7285 with or without the approval of
county voters.
ANALYSIS
Revenue and Taxation Code section 72851 provides:
"The board of supervisors of any county with a population of 350,000 or less
on January 1, 1987, may levy a transactions and use tax [2] at a rate of 0.5 percent,
1
All references hereafter to the Revenue and Taxation Code are by section number only.
2
A transaction and use tax is commonly referred to as a "sales tax." A sales tax is imposed in
California at the rate of 6 percent, with 4.75 percent going to the state (§ 6051) and 1.25 percent
going to city and county governments (§ 7202). An additional 0.5 percent may be added to finance
certain rapid transit systems. (§§ 7251-7265.) Currently an additional 0.25 percent is being added
to the tax until January 1, 1991, to fund earthquake disaster relief. (§§ 6051.1, 6201.1.)
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if the ordinance or resolution proposing that tax is approved by a two-thirds vote of
all members of the board of supervisors and the tax is approved by a majority vote
of the qualified voters of the county voting in an election on the issue. The
transactions and use tax shall conform to Part 1.6 (commencing with Section 7251)."
(Emphasis added.)
The question presented is whether a county board of supervisors may levy the additional sales tax
under section 7285 without submitting the proposal to the voters of the county as required by the
statute. We conclude that a county board of supervisors has no authority to levy such an additional
tax.
Section 24 of article XIII of the Constitution provides: "The Legislature may not
impose taxes for local purposes but may authorize local governments to impose them." The
Legislature has specifically authorized counties to levy such taxes as sales and use taxes (§ 7201),
transient occupancy taxes (§ 7280), and taxes upon instruments transferring real property (§ 11911).3
Section 7285 was recently enacted (Stats. 1987, ch. 1257) to allow additional 0.5
percent to be added to the sales tax in the less populated counties.4 The Legislature has authorized
the additional tax on condition that the board of supervisors approve the levy by a two-thirds vote
and the voters of the county approve the levy by a majority vote. The Legislature has exceedingly
broad powers in enacting statutes, including the conditioning of a grant of authority in the
furtherance of some perceived public policy. As routinely stated, the Legislature may "exercise all
legislative powers which are not expressly or by necessary implication denied to it by the
Constitution." (Methodist Hosp. of Sacramento v. Saylor (1971) 5 Cal. 3d 685, 691.) Hence, we
must look to the Constitution to determine whether the Legislature is prohibited from including a
voter approval requirement in section 7285.
Article IV, section 1 of the California Constitution reserves the legislative powers
of initiative and referendum to the people. Article II, section 9(a) states that "[t]he referendum is
the power of the electors to approve or reject statutes or parts of statutes except urgency statutes,
statutes calling elections, and statutes providing for tax levies or appropriations for usual current
expenses of the State." Article II, section 11 provides that referendum powers may be exercised by
the electors of each city or county under procedures that the Legislature shall provide.
For our purposes, we need not distinguish between a "sales tax," a "use tax," and a
"transactions tax," whether levied by the state, a county, a city, or some other governmental entity.
(See §§ 6003-6004, 6051, 6201, 7202-7203, 7253.) The collection of these related taxes is under
the uniform administration of the State Board of Equalization. (See §§ 7051-7058, 7202, 7204,
7212, 7271-7273.)
3
We note that the addition of article XIIIA to the Constitution in 1978 caused a substantial
reduction in the amount of property tax revenues available to cities, counties, and other local
governmental entities. As a consequence, the Legislature has encouraged local governments to seek
alternative sources of funding for necessary services, including the imposition of other types of
taxes. (See Gov. Code, § 16270; Martin Hospital Dist. v. Rothman (1983) 139 Cal. App. 3d 495,
499.)
4
We are informed that 43 of California's 58 counties had a population of 350,000 or less on
January 1, 1987.
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The Constitution, however, prohibits referendums of certain types of legislation,
including statutes and ordinances "providing for tax levies or appropriations for usual current
expenses." (Cal. Const., art. II, § 9, subd. (a).)5 In Geiger v. Board of Supervisors, (1957) 48 Cal. 2d
832, the Supreme Court rejected the argument that the Legislature had the authority under section
11 of article II to allow county voters to approve or reject county tax ordinances. The court
explained:
"The constitutional provisions which reserve the referendum powers to the
people expressly except 'tax levies or appropriations for the usual current expenses
of the State.' It is apparent that the same exception applies to the referendum powers
reserved to the county electors, and, therefore, the Constitution, standing alone, does
not secure to county electors the right of referendum over tax levies or appropriations
for the usual current expenses of county government. (Cf. Hunt v. Mayor & Council
of Riverside, 31 Cal. 2d 619, 623-624.) The next question is whether the Constitution
prohibits the Legislature from granting to county electors the power of referendum
over tax measures. It is not disputed that the revenue from the tax in question is to
be used for the usual current expenses of the county, and it follows that the ordinance
is not subject to referendum unless the Legislature has authority to expand and
extend the referendum powers reserved by section 1 of article IV of the Constitution
and unless it has exercised that authority.
"The listing of exceptions in the Constitution amounts to a declaration of
policy against subjecting legislation concerning the excepted matters to a vote of the
people. While section 1 of article IV does not expressly prohibit the Legislature
from extending the right of referendum to include a county sales tax ordinance, any
holding that such measures are subject to referendum would be contrary to this
policy and against the clear implication of the constitutional provision. Section 1 is
expressly made self-executing, and, in addition, the Legislature is empowered to
enact legislation to facilitate its operation. It is obvious, however, that the
authorization to adopt procedural regulations does not include the power to enact
substantive measures which would extend the scope of the basic referendum right.
There is no provision authorizing substantive changes, and we have concluded that
it was not intended that the Legislature should have the power to extend or expand
the scope of referendum." (Id., at pp. 836-837, fn. omitted.)6
Geiger thus interprets the Constitution as prohibiting a statutory authorization for voters to approve
local tax ordinances. (See Fenton v. City of Delano (1984) 162 Cal. App. 3d 400, 405-407;
Community Health Assn. v. Board of Supervisors, supra, 146 Cal. App. 3d 990, 993-996; Ortiz v.
5
It has never been decided whether the constitutional phrase "for usual current expenses"
modifies "tax levies" as well as "appropriations." (See Geiger v. Board of Supervisors, supra, 48
Cal. 2d 832, 836.) Conceivably, a tax levy to pay for the cost of a capital improvement may be the
subject of a referendum. We need not resolve this issue here, since we will conclude that a section
7285 tax levy must be "for usual current expenses."
6
The constitutional provisions at issue were formerly contained in section 1 of article IV of the
Constitution.
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Board of Supervisors, supra, 107 Cal. App. 3d 866, 871; Campen v. Greiner (1971) 15 Cal. App. 3d
836, 841; Dare v. Lakeport City Council (1970) 12 Cal. App. 3d 864, 867.)7
Geiger dealt specifically with authorizing the exercise of the referendum power
following the usual procedure of filing a petition by the people requesting an election with respect
to an already adopted legislative act. If a petition has sufficient signatures and meets certain other
criteria, an election is held pursuant to this constitutional and statutory procedure. (See Cal. Const.,
art. II, § 9; Elec. Code, §§ 4050-4061; Chase v. Brooks (1986) 187 Cal. App. 3d 657, 663;
Referendum Committee v. City of Hermosa Beach, supra, 184 Cal. App. 3d 152, 160.)
Section 7285, on the other hand, sets forth a different mechanism for exercising the
referendum power. Instead of allowing a petition to be filed after a particular legislative act has
been adopted, it requires a referendum with respect to all future tax levies as described therein. (See
City of Westminster v. County of Orange, supra, 204 Cal. App. 3d 623, 627; Referendum Committee
v. City of Hermosa Beach, supra, 184 Cal. App. 3d 152, 157; Lee v. City of Monterey Park (1985)
173 Cal. App. 3d 798, 811-812; Goetz, Direct Democracy in Land Use Planning (1987) 19 Pacific
L.J. 793, 800-804; Lowe, Public Safety Legislation and the Referendum Power: A Reexamination
(1986) 37 Hastings L.J. 591, 592; Note, The Proper Use of Referendum in Rezoning (1977) 29
Stan.L.Rev. 819, 823; Comment, The Initiative and Referendum's Use in Zoning (1976) 64
Cal.L.Rev. 74, 98).
This difference in procedure does not affect the applicability of the constitutional
limitations placed upon referendums. A referendum may not be held with respect to a tax levy
whether it follows the filing of a petition or is the result of a prior legislative act requiring all such
levies to be voted upon by the people. (See City of Westminster v. County of Orange, supra, 204
Cal. App. 3d 623, 628; City of Atascadero v. Daly (1982) 135 Cal. App. 3d 466, 470; Gibbs v. City of
Napa (1976) 59 Cal. App. 3d 148, 153; Campen v. Greiner, supra, 15 Cal. App. 3d 836, 843; Myers
v. City Council of Pismo Beach (1966) 241 Cal. App. 2d 237, 243; see also Eastlake v. Forest City
Enterprises, Inc. (1976) 426 U.S. 668 [49 L. Ed. 2d 132, 96 S. Ct. 2358].) Accordingly, we believe
that section 7285 is unconstitutional under article II, sections 9 and 11.
It should also be observed that the Legislature has not expressly restricted the
purposes for which a section 7285 tax may be levied. If the statute authorizes a majority vote for
a "special tax,"8 it would violate article XIIIA of the Constitution. This constitutional provision
requires "a two-thirds vote of the qualified electors" for the imposition of a special tax.
We construe section 7285 as a general tax measure authorization. The legislative
history of section 7285 indicates that a tax levy for only general revenue purposes was contemplated
by the Legislature at the time of the statute's enactment. The report of the Senate Rules Committee
concerning the proposed legislation stated with respect to the majority vote requirement:
7
A city charter provision may require voter approval of a tax levy by a charter city. (See Hunt
v. Mayor & Council of Riverside (1948) 31 Cal. 2d 619, 622-623; City of Westminster v. County of
Orange (1988) 204 Cal. App. 3d 623, 631; Campen v. Greiner, supra, 15 Cal. App. 3d 836, 843.)
8
"Special taxes" are imposed for a specific purpose, while "general taxes" are levied for general
governmental purposes. (Gov. Code, §§ 50076, 53721; City and County of San Francisco v. Farrell
(1982) 32 Cal. 3d 47, 57; California Bldg. Industry Assn. v. Governing Bd. (1988) 206 Cal. App. 3d
212, 235; Fenton v. City of Delano, supra, 162 Cal. App. 3d 400, 408.)
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"In November, 1986, voters approved an initiative statute requiring any
general tax increase be submitted to the voters by a two-thirds vote of the governing
body and approved by a majority vote of the people. This bill is consistent with this
initiative statute."9
The report's reference to a 1986 initiative measure was to Proposition 62 which added sections
53720-53730 to the Government Code. These statutes not only define special and general taxes, but
require a two-thirds approval vote for the former and a majority approval vote for the latter. Since
the Legislature intended the section 7285 tax levy to be consistent with these initiative provisions,
section 7285 should be construed as authorizing only a general tax measure.10 "Where a statute is
theoretically capable of more than one construction, we choose that which most comports with the
intent of the Legislature." (California Mfrs. Assn. v. Public Utilities Com. (1979) 24 Cal. 3d 836,
844; see also Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal. 3d 1379, 1387.)11
We conclude that section 7285 authorizes a general tax and not a special tax subject to article XIII
A.
We next consider whether the invalid portion of section 7285 may be severed from
the remainder so as to authorize the levy of the tax without voter approval. The rules for severability
were recently stated in California Ins. Co. v. Deukmejian (1989) 48 Cal. 3d 805, 821:
"Although not conclusive, a severability clause normally calls for sustaining
the valid part of the enactment, especially when the invalid part is mechanically
severable. . . . Such clause plus the ability to mechanically sever the invalid part
while normally allowing severability, does not conclusively dictate it. The final
determination depends on whether the remainder . . . is complete in itself and would
have been adopted by the legislative body had the latter foreseen the partial
invalidity of the statute . . . or constitutes a completely operative expression of the
legislative intent . . . [and is not] so connected with the rest of the statute as to be
inseparable. [Citations.]"
Section 26 is a general severability clause applicable to all provisions of the Revenue
and Taxation Code. It provides: "If any provision of this code, or its application to any person or
circumstance, is held invalid, the remainder of the code, or the application of the provision to other
persons or circumstances, is not affected." Because the voter approval requirement is "mechanically
serverable" (by deleting the words "and the tax is approved by a majority vote of the qualified voters
of the county in an election on the issue") a court would normally sever the invalid voter approval
requirement leaving the remainder of section 7285 operative without the voter approval requirement.
This would mean that the 0.5 percent transaction and use tax could be adopted by a vote two-thirds
9
"[R]eports of legislative committees and commissions are part of a statute's legislative history
and may be considered when the meaning of a statute is uncertain." (Hutnick v. United States
Fidelity & Guaranty Co. (1988) 47 Cal. 3d 456, 465, fn. 7.)
10
As a general tax measure, section 7285 authorizes a "tax lev[y] . . . for usual current expenses
. . . ." (Cal. Const., art. II, § 9, subd. (a); see Hunt v. Mayor & Council of Riverside, supra, 31
Cal. 2d 619, 623; 28 Ops.Cal.Atty.Gen. 351, 353 (1956).)
11
The constitutionality of Government Code sections 53720-53730 is beyond the scope of this
opinion. (See City of Westminster v. County of Orange, supra, 204 Cal. App. 3d 623 [invalidating
the Proposition 62 requirement for voter approval of a local general tax imposed between August
1, 1985, and November 5, 1988].)
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of all members of the board of supervisors and implemented without approval by the voters.
However, as the California Ins. Co. case stresses the severability clause saves the unsevered part
of the statute only if the court determines that the unsevered remainder of the statute "is complete
in itself and would have been adopted by the legislative body had the latter foreseen the partial
invalidity of the statute." We examine that question next.
Section 7485 was added by section 2 of Chapter 1257, Statutes of 1987. Section 4
of that chapter states: "The Legislature finds and declares that this act complies with, and is intended
to implement, the provisions of Article 3.7 (commencing with Section 53720) of Chapter 4 of Part
1 of Division 2 of Title 5 of the Government Code, as added by Proposition 62 at the November 4,
1986 general election." Since the Legislature's expressed intent in enacting section 7485 was to
implement Government Code sections 53720 - 53730 as enacted by voter approval of Proposition
62 we look to those sections to determine their purpose. Government Code section 53723 provides:
"No local government, or district, whether or not authorized to levy a
property tax, may impose any general tax unless and until such general tax is
submitted to the electorate of the local government, or district and approved by a
majority vote of the voters voting in an election on the issue."
Thus the purpose of the voter approval requirement in section 7285 was to implement Government
Code section 53723. In view of the Legislature's expressly declared intent we believe that the
Legislature would not have enacted section 7285 without the voter approval requirement. This is
consistent with the view of the court in City of Westminster v. County of Orange (1988) 204 Cal.
App. 3d 623, 633 that "the major thrust of Proposition 62, at least as it was presented to the voters,
was the fatally defective attempt to shift control of local taxation to the local electorate." (That case
held that Government Code section 53727 was unconstitutional.) We therefore conclude that a court
would not hold that the voter approval requirement may be severed leaving the rest of section 7285
stand but instead would hold the entire section unconstitutional.
It is our conclusion that a board of supervisors has no authority to levy a 0.5 percent
transactions and use tax pursuant to Revenue and Taxation Code section 7285 with or without
approval of county voters. Should a board of supervisors adopt and levy the 0.5 per cent added tax
pursuant to section 7285 before the courts have decided the issue, the validity of the added tax will
remain subject to a judicial determination that section 7285 is unconstitutional. In view of the
questionable constitutionality of section 7285 (in our view) a board of supervisors would be well
advised to anticipate the possible consequences of a judicial challenge to the added tax. Of course
if the court determined that section 7285 is constitutional, or that the voter approval requirement is
unconstitutional but severable from the rest of section 7285, the court would no doubt uphold the
validity of the added tax. But if the court determined that section 7285 is void in its entirety (as we
believe) the court would not only prohibit future levies of the added tax but could also order the
added taxes already collected under section 7285 refunded to the taxpayers. (See Mills v. County
of Trinity (1979) 98 Cal. App. 3d 859.)
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