City of Fresno v. Fresno Building Healthy Communities

Filed 12/30/20 (unmodified opn. attached)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
CITY OF FRESNO,
F080264
Plaintiff and Respondent,
(Super. Ct. No. 19CECG00422)
v.
FRESNO BUILDING HEALTHY MODIFICATION OF OPINION
COMMUNITIES, ON DENIAL OF REHEARING
[NO CHANGE IN JUDGMENT]
Defendant and Appellant,
HOWARD JARVIS TAXPAYER
ASSOCIATION,
Intervener and Respondent.
FRESNO BUILDING HEALTHY
COMMUNITIES, F080265
Plaintiff and Appellant, (Super. Ct. No. 19CECG00432)
v.
CITY OF FRESNO,
Defendant and Respondent,
HOWARD JARVIS TAXPAYER
ASSOCIATION,
Intervener and Respondent.
THE COURT:
It is ordered that the opinion herein filed on December 17, 2020, be modified as
follows:
1. On page 19, delete the entire paragraph that begins with the sentence “First,
Elections Code section 9217 is not specific to voter initiatives.” and insert the following
paragraph in its place:
The trial court places undue significance on California Cannabis’s
reference to Elections Code section 9217 (section 9217). Section 9217
provides in relevant part: “If a majority of the voters voting on a proposed
ordinance vote in its favor, the ordinance shall become a valid and binding
ordinance of the city. … No ordinance that is either proposed by initiative
petition and adopted by the vote of the legislative body of the city without
submission to the voters, or adopted by the voters, shall be repealed or
amended except by a vote of the people, unless provision is otherwise made
in the original ordinance.” Section 9217 is found under the chapter of the
Elections Code governing municipal initiatives and is hence specific to
initiatives, as the trial court observes. However, we disagree that the
Supreme Court’s reference in California Cannabis to section 9217 means
the two-thirds vote requirement applies to voter initiatives. There is no
indication the Court in that passage was trying to formulate an
interpretation of the vote requirement for a special tax measure proposed by
a local governing body. Instead, the Court was explaining that if the voters
desired to impose a certain procedural requirement on themselves, they
would have done so expressly. Additionally, in the sentence immediately
prior to the one referencing section 9217, the Court stated a two-thirds vote
of the voters was required “before a local government can impose” a
special tax; there was no reference to special taxes imposed by voter
initiative.
This modification does not effect a change in the judgment.
Intervener’s petition for rehearing is denied.
SNAUFFER, J.
WE CONCUR:
FRANSON, Acting P.J.
PEÑA, J.
2.
Filed 12/17/20 (unmodified opinion)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
CITY OF FRESNO,
F080264
Plaintiff and Respondent,
(Super. Ct. No. 19CECG00422)
v.
FRESNO BUILDING HEALTHY OPINION
COMMUNITIES,
Defendant and Appellant;
HOWARD JARVIS TAXPAYER
ASSOCIATION,
Intervener and Respondent.
FRESNO BUILDING HEALTHY
COMMUNITIES, F080265
Plaintiff and Appellant, (Super. Ct. No. 19CECG00432)
v.
CITY OF FRESNO,
Defendant and Respondent;
HOWARD JARVIS TAXPAYER
ASSOCIATION,
Intervener and Respondent.
APPEAL from judgments of the Superior Court of Fresno County. Kimberly A.
Gaab, Judge.
Olson Remcho, Thomas A. Willis, Karen Getman and Benjamin N. Gervercer for
Defendant and Appellant in F080264 and Plaintiff and Appellant in F080265.
No appearance for Plaintiff and Respondent in F08264 and Defendant and
Respondent in F080265.
Jonathan M. Coupal, Timothy A. Bittle and Laura E. Dougherty for Intervener and
Respondent.
Eversheds Sutherland (US), Timothy A. Gustafson, Eric J. Coffill and Alexandra
Louderback for Council for State Taxation as Amicus Curiae on behalf of Intervener and
Respondent.
-ooOoo-
In the November 2018 general election, 52.17% of Fresno voters voted for
Measure P, a voter initiative measure entitled the “Fresno Clean and Safe Neighborhood
Parks Tax Ordinance.”1 The City of Fresno (the City) filed a complaint for declaratory
relief to establish whether Measure P has been duly enacted through the voters’ initiative
power. The City’s complaint named as defendant Fresno Building Healthy Communities
(FBHC), a nonprofit corporation that supported Measure P, and the Howard Jarvis
Taxpayers Association (the Association) also intervened as a defendant. The same day
the City filed its action, FBHC filed its own complaint for declaratory relief and petition
for writ of mandate, seeking a declaration Measure P had been duly enacted. The City
was named as the respondent and the Association intervened, and each filed an answer to
FBHC’s action.
1 California Constitution, Article II, section 1 provides in part: “All political
power is inherent in the people,” who retain “the right to alter or reform” government by
voter initiative “when the public good may require.”
2.
The Association filed a motion for judgment on the pleadings in the City’s action,
arguing Measure P is invalid because it imposed a special tax approved by less than two-
thirds of the voting electorate. The Association relied on provisions placed in the
California Constitution by Proposition 13 (in 1978) and Proposition 218 (in 1996),
“which both require a two-thirds vote of the electorate to approve certain taxes adopted
by local governments.” (City and County of San Francisco v. All Persons Interested in
the Matter of Proposition C (2020) 51 Cal.App.5th 703, 708, review denied Sept. 9,
2020, S263753 (All Persons); see Cal. Const., Art. XIII A, § 4 & Art. XIII C, § 2,
subd. (d).)2 The trial court granted the Association’s motion for judgment on the
pleadings without leave to amend, agreeing with the Association that the relevant
provisions of Proposition 13 and Proposition 218 require a two-thirds vote of the
electorate for passage of a voter initiative that imposes a special tax. Judgment was
entered in the City’s action, and the parties stipulated and the superior court ordered that
its ruling in the City’s case be incorporated into a final judgment in FBHC’s case. FBHC
appeals from both judgments. As both cases involve the same parties, facts, and legal
issues, we have consolidated the cases.
After FBHC filed its opening brief, the First District Court of Appeal filed its
opinion in All Persons, supra, 51 Cal.App.5th 703. There, the First District was
presented exactly the same questions presented here, namely, whether Proposition 13 and
Proposition 218 require a two-thirds vote of the electorate for passage of a voter initiative
that imposes a special tax. In that case, the City and County of San Francisco filed a
petition for declaratory relief asking for a determination that a special tax initiative that
received 61 percent of the vote be declared passed. (All Persons, supra, 51 Cal.App.5th
at p. 708.) The trial court granted the City and County of San Francisco’s motion for
judgment on the pleadings, and the First District affirmed. (Id. at pp. 708-709.) The First
2 Unspecified references to “Article” are to the California Constitution.
3.
District ultimately concluded neither Proposition 13 nor Proposition 218 affects the
voters’ initiative power, and therefore neither imposes a two-thirds voting requirement on
the passage of voter initiatives that impose special taxes. (Ibid.) We fully agree with and
endorse the holdings and reasoning of All Persons, and find that case controls the
outcome here. We reverse, and in doing so we quote liberally from All Persons.
CONSTITUTIONAL BACKGROUND
The All Persons, supra, 51 Cal.App.5th 703 court began by providing an overview
of the provisions of Proposition 13 and Proposition 218 that were at issue in that case,
which are the same issues presented in this case. We present that overview here to
provide a helpful backdrop for reading the facts:3
I. The Initiative Power
Our state Constitution was amended in 1911 to include the initiative power.
(California Cannabis [Coalition v. City of Upland (2017) 3 Cal.5th 924, 934 (California
Cannabis)].) “The Constitution ‘speaks of the initiative and referendum, not as a right
granted the people, but as a power reserved by them.’ ” (Ibid; see Art. IV, § 1.)
Article II describes the initiative as “the power of the electors to propose statutes
and amendments to the Constitution and to adopt or reject them” (Art. II, § 8), and states
that this power “may be exercised by the electors of each city or county under procedures
that the Legislature shall provide” (Art. II, § 11). “[A]lthough the procedures for exercise
of the right of initiative are spelled out in the initiative law, the right itself is guaranteed
by the Constitution.” (Associated Home Builders etc., Inc. v. City of Livermore (1976)
18 Cal.3d 582, 594–595 (Associated Home Builders) [affording greater weight to
initiative law than zoning law].)
3In quoting from the All Persons opinion, 51 Cal.App.5th at pages 709-711, the
brackets enclosing material are used to denote our insertions or additions.
4.
A defining characteristic of the initiative is the people’s power to adopt laws by
majority vote. As originally enacted, the 1911 constitutional amendment provided: “Any
act, law or amendment to the constitution submitted to the people by either initiative or
referendum petition and approved by a majority of the votes cast thereon at any election
shall take effect five days after the date of the official declaration of the vote by the
secretary of state.” (Former Art. IV, § 1.) To similar effect, state legislation providing
for passage of a local initiative measure upon majority vote was first enacted in 1912.
(Stats. 1912, 1st Ex. Sess. 1911, ch. 33, p. 131; see Brookside Investments, Ltd. v. City of
El Monte (2016) 5 Cal.App.5th 540, 550.)
Currently, Article II, section 10, subdivision (a) provides that an “initiative
statute … approved by a majority of votes cast thereon takes effect on the fifth day after
the Secretary of State files the statement of the vote for the election at which the measure
is voted on.” Parallel legislation for local initiatives is found in the Elections Code;
section 9217 provides that “if a majority of the voters voting on a proposed ordinance
vote in its favor, the ordinance shall become a valid and binding ordinance of the city.”
And section 9122 has a parallel provision for “a majority of the voters … of the county.”
[fn. omitted.]
The initiative power is “ ‘one of the most precious rights of our democratic
process’ [citation]. ‘[It] has long been our judicial policy to apply a liberal construction
to this power wherever it is challenged in order that the right be not improperly
annulled.” (Associated Home Builders, supra, 18 Cal.3d at p. 591.) Pursuant to our duty
to “ ‘ “jealously guard” ’ and liberally construe” this right, we must “resolve doubts in
favor of the exercise of the right whenever possible.” (California Cannabis, supra,
3 Cal.5th at p. 934.)
II. Restrictions on the Government’s Power to Tax
Over the past four decades, restrictions on the government's taxing power have
been added to the California Constitution by a series of voter initiatives “designed to limit
5.
the authority of state and local governments to impose taxes without voter approval.”
(Citizens for Fair REU Rates v. City of Redding (2018) 6 Cal.5th 1, 10 (Citizens for Fair
REU Rates).) Two of those measures added the supermajority vote requirements at issue
in the present case: Proposition 13 in 1978, and Proposition 218 in 1996.
Proposition 13 “added article XIII A to the state Constitution ‘to assure effective
real property tax relief by means of an “interlocking ‘package’ ” ’ of four provisions.”
(Citizens for Fair REU Rates, supra, 6 Cal.5th at p. 10.) The first two of these four
provisions are not directly relevant here. They “capped the ad valorem real property tax
rate at 1 percent (art. XIII A, § 1)” and “limited annual increases in real property
assessments to 2 percent (art. XIII A, § 2).” (Citizens for Fair REU Rates, at p. 10.) The
third provision “required that any increase in statewide taxes be approved by two-thirds
of both houses of the Legislature.” (Ibid., citing Art. XIII A, § 3.) This was the provision
our Supreme Court construed in Kennedy Wholesale[, Inc. v. State Bd. of Equalization
(1991) 53 Cal.3d 245 (Kennedy Wholesale)]. The fourth provision, the one at issue in
this case, requires “that any special tax imposed by a local government entity be
approved by two-thirds of the qualified electors (Art. XIII A, § 4).” (Citizens for Fair
REU Rates, at p. 10.)
Eighteen years after Proposition 13, Proposition 218 “added articles XIII C and
XIII D to the state Constitution.” (Citizens for Fair REU Rates, supra, 6 Cal.5th at
p. 10.) Article XIII D further limits the authority of local governments to assess real
property taxes and charges. And “[a]rticle XIII C buttresses article XIII D by limiting the
other methods by which local governments can exact revenue using fees and taxes not
based on real property value or ownership.” (Citizens for Fair REU Rates, supra,
6 Cal.5th at p. 10.) Article XIII C categorizes all local taxes as “ ‘either general taxes or
special taxes’ (Art. XIII C, § 2, subd. (a)),” and provides, “[l]ocal governments may not
impose, increase, or extend: (1) any general tax, unless approved by a majority vote at a
general election; or (2) any special tax, unless approved by a two-thirds vote. (Art. XIII
6.
C, § 2, subds. (b), (d).)” (Citizens for Fair REU Rates, at pp. 10–11.) The Supreme
Court in California Cannabis construed the general tax restriction in subdivision (b) of
Article XIII C, section 2 (section 2(b)), while this case concerns the special tax restriction
in subdivision (d) of the same section (section 2(d)). [We end our quotation from All
Persons, supra, 51 Cal.App.5th at pages 709—711.]
FACTUAL AND PROCEDURAL BACKGROUND
In early 2018, citizens of the City of Fresno circulated an initiative petition
seeking to place the “Fresno Clean and Safe Neighborhood Parks Tax Ordinance” on a
future City election ballot. The proposed ordinance sought to impose a 3/8 percent
transaction and use tax (i.e., sales tax) to improve park safety and accessibility for
persons with disabilities, update and maintain playgrounds and restrooms, provide youth
and veteran job training, improve after-school, arts, and recreation programs, beautify
roadways, and create parks and trails in neighborhoods without current access.
The proponents submitted the petition to the City and the City Clerk determined it
contained 27,263 valid signatures of City voters, sufficient to qualify it for placement on
the election ballot. At the same time, the Fresno City Council considered placing its own
sales tax measure, the “Parks and Public Safety Transactions and Use Tax,” sponsored by
the mayor of Fresno, on the ballot. As a local government-proposed tax measure, the
“Parks and Public Safety Transactions and Use Tax” noted its passage was “subject to
approval by two-thirds of the electorate under Proposition 218.” However, this proposal
was removed from the June 28, 2018, city council meeting agenda.
On August 9, 2018, the city council exercised its mandatory and ministerial duty
to place the citizens’ proposed measure on the November 6, 2018, general election ballot.
The initiative was designated as Measure P, and the city council’s resolution submitting it
7.
to the voters stated that a two-thirds vote of the electorate was required for passage.4 At
the election, a majority of those voting—52.17 percent—voted to approve Measure P.
On December 18, 2018, the Fresno City Council determined Measure P failed because
two-third of the electorate had not approved it.
On February 1, 2019, the City filed a complaint for declaratory relief in Fresno
County Superior Court requesting a determination of the voter threshold required for
passage of a special tax brought by voter initiative.5 The City named as the defendant
FBHC, which had supported Measure P and had sent a letter to the City requesting the
City take steps to implement Measure P. FBHC is a California nonprofit corporation, and
was founded by residents of Fresno to foster and encourage thriving communities where
all children and families can live healthy, safe, and productive lives. On February 26,
2019, the Association was granted leave to intervene as a defendant. FBHC and the
Association each filed answers to the City’s complaint, and FBHC also filed a response
to the Association’s answer.
Also on February 1, 2019, FBHC filed its own complaint for declaratory relief and
verified petition for writ of mandate in Fresno County Superior Court requesting a
declaration Measure P had been validly enacted and a directive to the City to implement
it. The City was named as the respondent, Association intervened, and both filed an
answer.
Thereafter, the Association moved for judgment on the pleadings in the City’s
action, arguing that articles XIII A and XIII C of the California Constitution require
approval of two-thirds of the electorate and that this two-thirds approval requirement
applies equally to tax measures proposed by voter initiative, including Measure P. The
4
We take judicial notice on our own motion of Fresno City Council Resolution
No. 2018-188 dated August 10, 2018. (Evid. Code, § 459, subd. (a).)
5
The parties do not dispute the tax Measure P seeks to impose is a special tax, as
opposed to a general tax.
8.
City submitted a statement of neutrality and indicated it would defer to the court’s
guidance. FBHC opposed the motion.
On August 14, 2019, the trial court held a hearing on the Association’s motion and
took the matter under submission. On September 5, 2019, the court granted the motion
for judgment on the pleadings without leave to amend. Judgment was entered in the
City’s action, and the parties stipulated that that judgment be incorporated into a final
judgment in the case initiated by FBHC. In its written order, the trial court concluded
Propositions 13 and 218 each impose a supermajority voting requirement on voter
initiatives. Concerning Proposition 13, the trial court relied on Kennedy Wholesale,
supra, 53 Cal.3d 245, and Altadena Library Dist. v. Bloodgood (1987) 192 Cal.App.3d
585 (Altadena Library), two cases that the trial court believed stood for the proposition
that the voters, via article XIII A, section 4, imposed a two-thirds voting requirement on
themselves for passage of special tax initiatives. We believe the trial court reached the
wrong conclusion.
Regarding Proposition 218, FBHC relied on California Cannabis, supra,
3 Cal.5th 924 to support its contention that the two-thirds voting requirement contained in
article XIII C, section 2(d) does not apply to voter initiatives. The trial court
distinguished California Cannabis on the ground that that case was decided within the
narrow context of a different section of Article XIII C, and therefore is inapposite. The
trial court in turn concluded, by implication, that the term “local government” as used in
article XIII C, section 2(d) includes the electorate. Again, the trial court incorrectly
concluded the electorate is included in the term “local government.”
DISCUSSION
I. Standard of Review
FBHC contends that it, rather than the Association, is entitled to judgment on the
pleadings. The Association is supported by amicus curiae. “Judgment on the pleadings
‘ “is equivalent to a demurrer.” ’ [Citation.] We derive the pertinent facts from properly
9.
pleaded allegations in the challenged pleading and judicially noticeable matters and our
standard of review is de novo. [Citation.] [⁋] De novo review is proper for the
additional reason that we are called upon to construe constitutional provisions.
[Citation.] In undertaking this task, our objective is to give effect to the intended purpose
of these provisions. We begin with the text, ascribing to words their ordinary meaning
and considering their context by taking account of related provisions and the broader
constitutional scheme. If a provision’s intended purpose cannot be gleaned from the text
in context, then we may consider extrinsic sources. And, as to provisions enacted
through voter initiative, we presume electors are aware of existing law.” (All Persons,
supra, 51 Cal.App.5th at pp. 713-714, fn. omitted.)
II. Proposition 13 (Article XIII A, Section 4)
The trial court ruled that under Proposition 13 and the holdings of Kennedy
Wholesale, supra, 53 Cal.3d 245 and Altadena Library, supra, 192 Cal.App.3d 585, a
two-thirds vote of the electorate is required for passage of an initiative measure imposing
a special tax. Specifically, the trial court, relying on a quotation from our Supreme
Court’s holding in Kennedy Wholesale, ruled that Article XIII A, section 4 imposes a
two-thirds voting requirement on the electorate for passage of such a measure. The trial
court also stated in its ruling that the Altadena Library court held that the two-thirds vote
requirement of Article XIII A, section 4 applies to initiative measures. We believe the
trial court erred in concluding Article XIII A, section 4 applies to voter initiatives.
The First District in All Persons, supra, 51 Cal.App.5th 703 answered the same
question presented here, namely, whether Article XIII A, section 4 applies to voter
initiatives. In answering the question in the negative, the First District explained how
neither Kennedy Wholesale, supra, 53 Cal.3d 245—including the specific quotation
therefrom relied on by the trial court in our case—nor Altadena Library, supra,
192 Cal.App.3d 585 lend support to the proposition that Article XIII A, section 4 applies
to initiatives. We fully agree with the First District’s holding and reasoning.
10.
“The text of Article XIII A, section 4 states that ‘Cities, Counties and special
districts, by a two-thirds vote of the qualified electors of such district, may impose special
taxes,’ except for taxes relating to the value, possession, or sale of real property.’ ” (All
Persons, supra, 51 Cal.App.5th at p. 714.) The First District recognized a “source of
potential ambiguity is the phrase ‘Cities, Counties, and special districts.” (Ibid.)
One interpretation “of section 4’s language is that these elected bodies ‘may
impose special taxes’ only if two-thirds of the voters also approve.” (All Persons, supra,
51 Cal.App.5th at p. 714.) By this interpretation, the electorate “is distinct from and not
included in the phrase ‘Cities, Counties, and special districts.’ ” (Ibid.) A second
interpretation—urged by the Association here—is that section 4’s “reference to ‘cities’
and ‘counties’ includes the electorate in these jurisdictions.” (Ibid.) “According to this
interpretation, the people, in exercising their initiative power, are required also to muster
a two-thirds vote to enact a special tax, even though there is no express mention of the
initiative power.” (Ibid.)
The First District recognized both interpretations are plausible “when reading
section 4 in isolation.” (All Persons, supra, 51 Cal.App.5th at p. 715.) “Facing
ambiguous context, [the First District] turn[ed] to context to interpret section 4, starting
with other provisions of the California Constitution.” (Ibid.; citing California Cannabis,
supra, 3 Cal.5th at pp. 933-934.) The court began by noting that no provision in
Article III A, including section 4, mentioned the initiative power. (All Persons, supra, at
p. 715.) The court continued: “When Proposition 13 was approved by California voters
in 1978, the initiative power had been long ensconced in our Constitution. (California
Cannabis, supra, 3 Cal.5th at p. 934.) ‘Initiatives, whether constitutional or statutory,
require only a simple majority for passage.’ (Kennedy Wholesale, supra, 53 Cal.3d at
p. 250.)” (All Persons, supra, at p. 715.) The court then posed the question: “If the
voters who approved Proposition 13 (by a majority vote) intended to constrain the
constitutionally protected power of future voters to approve initiatives by majority vote,
11.
would they not have manifested that intent by some express reference to the initiative
power?” (Ibid.)
Responding to that rather rhetorical question, the First District stated: “[W]e are
not the first court to grapple with Proposition 13’s silence on the initiative power. Our
state Supreme Court in Kennedy Wholesale, supra, 53 Cal.3d 245, first rejected an
argument that another provision of Proposition 13—section 3 of Article XIII A—
impliedly repealed the people’s power to increase state taxes by voter initiative, and then
interpreted section 3’s two-thirds vote requirement as inapplicable to statewide initiative
statutes. The approach to constitutional interpretation and the result reached in Kennedy
Wholesale compel our conclusion that the two-thirds vote requirement in section 4 does
not apply to local initiatives.” (All Persons, supra, 51 Cal.App.5th at p. 715.)
“Kennedy Wholesale was a constitutional challenge to Proposition 99, a 1988
initiative statute that increased state taxes on tobacco products. [Citation.] Plaintiff, a
tobacco product distributor, argued that Proposition 99 violated Article XIII A, section 3,
which at the time provided, ‘any changes in State taxes enacted for the purpose of
increasing revenues … must be imposed by an Act passed by not less than two-thirds of
all members elected to each of the two houses of the Legislature.’ [Citation.] According
to the plaintiff, a plain reading of this provision signified that ‘only the Legislature can
raise taxes.’ [Citation.] The Kennedy Wholesale Court recognized that section 3 was
susceptible to that interpretation because, read literally, section 3 required that any state
tax increases ‘ “be imposed by … the Legislature.” ’ [Citation.] Yet the Court found the
provision ‘ambiguous when read in the context of the whole Constitution,’ particularly
those provisions preserving the initiative power. [Citation.] The Kennedy Wholesale
Court resolved this contextual ambiguity on the basis of three factors that apply in our
case.” (All Persons, supra, 51 Cal.App.5th at p. 715.)
“First is the general principle that ‘ “the law shuns repeals by implication.” ’
[Citation.] To interpret Article XIII A, section 3 as giving the Legislature exclusive
12.
power to raise taxes would have impliedly repealed the initiative power reserved to the
people in Article IV, section 1, despite the fact that section 3 did ‘not even mention the
initiative power, let along purport to restrict it.’ [Citation.] Kennedy Wholesale refused
to construe section 3 in this manner, reminding courts of our obligation to harmonize,
whenever possible, potentially conflicting constitutional provisions.” (All Persons,
supra, 51 Cal.App.5th at pp. 715-716.) The All Persons court, abiding by this principle,
“decline[d] to construe section 4 in a manner that repeals by implication the initiative
power to pass local laws by majority vote.” (Id. at p. 716.) We agree with All Persons
that Proposition 13 fails to even mention “the constitutionally-backed requirement in the
Election Code that a local initiative measure take effect when it garners a majority of
votes cast.” (All Persons, supra, 51 Cal.App.5th at p. 716.)
The All Persons court proceeded: “The second principle of construction applied in
Kennedy Wholesale is specific to citizen initiatives. Calling the power of initiative,
‘ “ ‘ “one of the most precious rights of our democratic process,” ’ ” ’ the Supreme Court
declined to adopt an interpretation of section 3 that would limit the initiative power: ‘we
must “resolve any reasonable doubts in favor of the exercise of this precious right,” ’
Kennedy Wholesale instructs. (Kennedy Wholesale, supra, 53 Cal.3d at p. 250.)
Applying that principle here, we will reject a construction of Article XIII A, section 4
that hobbles the exercise of the initiative power by lashing it to a supermajority vote
requirement.” (All Persons, supra, 51 Cal.App.5th at p. 716.)
The third relevant factor under Kennedy Wholesale that the First District Court
recognized “considers evidence bearing on the meaning of the text in question.” (All
Persons, supra, 51 Cal.App.5th at p. 716.) The Kennedy Wholesale court considered the
official ballot pamphlet as evidence of the intent of the voters who passed Proposition 13.
(Ibid.) The Kennedy Wholesale court found no evidence in the pamphlet to “ ‘support[]
the inference that the voters intended to limit their own power to raise taxes in the future
by statutory initiative.’ ” (All Persons, supra, 51 Cal.App.5th at p. 716; quoting Kennedy
13.
Wholesale, supra, 53 Cal.3d at p. 250.) Instead, the Supreme Court noted
“Proposition 13 was directed against ‘ “spendthrift politicians” ’ and in favor of restoring
‘ “government of, for and by the people,” ’ ” and this theme is inconsistent with the
notion that voters enacted Proposition 13 to limit their own power to raise taxes by
initiative. (All Persons, supra, 51 Cal.App.5th at p. 716; quoting Kennedy Wholesale,
supra, 53 Cal.3d at pp. 250-251.)
The All Persons court correctly recognized that “[n]one of the evidence Kennedy
Wholesale cites is specific to section 3, as distinct from section 4, of Article XIII A.” (All
Persons, supra, 51 Cal.App.5th at p. 716.) The trial court here therefore erred in
suggesting Kennedy Wholesale is inapplicable because it was decided in the context of
section 3. Like the All Persons court, “we find in the official ballot pamphlet nothing to
support an inference that the voters adopting Proposition 13 intended to limit their own
ability to raise local taxes by initiative, and to adopt such initiatives by majority vote.”
(All Persons, supra, 51 Cal.App.5th at p. 716.) Therefore, we likewise conclude an
analysis of each of the three foregoing factors compels a conclusion that the two-thirds
vote requirement codified in Article XIII A, section 4 does not apply to local citizens’
initiatives.
We next address another aspect of Kennedy Wholesale. The trial court, in its order
granting the Association’s motion for judgment on the pleadings, stated:
“The California Supreme Court noted, in Kennedy Wholesale,
Inc. v. State Bd. Of Equalization (1991) 53 Cal.3d 245, that
article XIII A, section 4’s two-thirds vote requirement
‘demonstrates, unambiguously, that the voters knew how to
impose a supermajority vote requirement upon themselves
when that is what they wanted to do.’ (Id. at p. 252.)
Article XIII A, section 4 was referenced in contrast to
article XIII A, section 3: ‘That the voters expressly adopted
such a requirement in section 4 strongly suggests that they did
not do so implicitly in section 3.’ (Ibid., emphasis in
original.)”
14.
This quotation was also used by the appellants in All Persons—as well as by the
Association here—“to argue that Article XIII A, section 4 applies to voter-circulated
initiatives.” (All Persons, supra, 51 Cal.App.5th at p. 718.) However, the Association
has misconstrued what the Kennedy Wholesale court said. “The Court simply
acknowledged section 4’s two-thirds vote requirement that applies when local
government entities—‘Cities, Counties, or special districts’—seek to impose special
taxes. The Court did not say or suggest that the same requirement applies to local
initiatives.” (All Persons, supra, at p. 718.)
The trial court and the Association also both rely on Altadena Library, supra,
192 Cal.App.3d 585. That case “involved a 1983 ballot initiative that would have
authorized the Altadena Library District to levy a special parcel tax to offset losses
resulting from the passage of Proposition 13. The measure was approved by 64.8 percent
of the district’s voters, but the county controller refused to levy the new tax because the
measure did not satisfy Proposition 13’s supermajority vote requirement, which he took
to apply. [Citation.] The Library District and its supporters sought mandate relief, which
was denied. On appeal, they argued that (1) the Library District was not a special district
within the meaning of Article XIII A, section 4, and (2) applying the supermajority vote
requirement to a library district that provides constitutionally protected educational
services violates equal protection. [Citation.] The Court of Appeal rejected both
contentions and affirmed the judgment.” (All Persons, supra, 51 Cal.App.5th at p. 719.)
The Association here, just like the appellants in All Persons, argues the Altadena
Library court held the two-thirds vote requirement codified in Article XIII A, section 4,
applies to voter initiatives. The Association is incorrect. The court there did not address
the question of whether section 4’s supermajority vote requirement applies to voter
initiatives. Rather, the appellants in that case “limited their appeal to the question
whether the supermajority vote requirement could be constitutionally applied to a library
district[, and] never argued that the voters had validly exercised their initiative power
15.
when they approved the measure by a majority vote, so that issue was not before the
court.” (All Persons, supra, 51 Cal.App.5th at p. 719.) “ ‘Opinions are not authority for
propositions not considered.’ ” (Ibid.) Indeed, the Altadena Library court stated that its
“ ‘opinion is confined to the specific constitutional issue the library supporters raised,’
not purporting to decide “every other constitutional challenge which might be lodged
against the supermajority requirement in art. XIII A, section 4.” (All Persons, at p. 719,
quoting Altadena Library, supra, 192 Cal.App.3d at p. 592, fn. 1.)
Following the sound reasoning of the All Persons court’s resolution of the
controlling issues, we conclude the trial court here erred in concluding Proposition 13
imposes a supermajority voting requirement on the electorate for passage of voter
initiatives.
III. Proposition 218 (Article XIII C, Section 2)
Separately, the trial court concluded Measure P is invalid under Article XIII C,
section 2(d), which was added to the state constitution by Proposition 218. That section
reads in full: “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.”
The trial court concluded that this provision imposes a two-thirds vote requirement on all
measures that seek to impose special taxes, regardless if the measure originates from a
voter initiative or from a governing body. On appeal, the Association defends the trial
court’s ruling by arguing that the term “local government,” as used in section 2(d), should
be construed to include the electorate. However, the All Persons court has squarely
addressed this issue as well, and correctly arrived at the conclusion that the term “local
government” does not include the electorate, and that section 2(d) does not apply to voter
initiatives.
The Association here, as did the appellants in All Persons, supra, 51 Cal.App.5th
at p. 722, “contend[s] that the term ‘local government’ in section 2(d) is broad enough to
include voters exercising their initiative power, so that initiatives imposing a special tax
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require a two-thirds vote. 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 government entity.’ ” (All Persons, supra,
51 Cal.App.5th at p. 722.) Obviously, this definition, which is the only definition of
“local government” applicable to the entirety of Article XIII C, does not reference the
electorate. “This definition also contains a catch-all for ‘other … governmental
entit[ies],’ which only strengthens the City’s argument that ‘local government’ refers to
constituted governmental entities, not to the electorate exercising its initiative power.”
(All Persons, supra, 51 Cal.App.5th at p. 722.)
More importantly, the California Supreme Court in California Cannabis, supra,
3 Cal.5th 924 has already determined that “local government”—which, again, has only
one enumerated definition applicable to the whole of Article XIII C—does not include
the electorate. (See All Persons, supra, 51 Cal.App.5th at p. 722.) “California Cannabis
involved a 2014 voter initiative to repeal a citywide ban on medical marijuana
dispensaries and impose licensing and inspection fees on dispensaries. [Citation.]
Proponents of the initiative requested that it be placed before voters at a special election,
but the City determined the initiative had to await the next general election ballot because
the licensing and inspection fee was a general tax under Article XIII C, section 2.
[Citation.] The initiative proponents filed a mandate petition, arguing, inter alia, that
Article XIII C did not apply to voter initiatives. While the case was pending, the medical
marijuana initiative was defeated in a general election, but the Supreme Court exercised
discretion to decide the case because of ‘important questions of continuing public interest
that may evade review.’ ” (All Persons, at p. 722.)
“The California Cannabis court framed the dispositive issue as whether
Article XIII C restricts the ability of voters to impose taxes via initiative.” (All Persons,
supra, 51 Cal.App.5th at p. 723.) The high court ultimately found: “ ‘nothing in the text
of article XIII C, or its context, supports the conclusion that the term “local government”
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was meant to encompass the electorate.’ ” (All Persons, supra, 51 Cal.App.5th at p. 723;
quoting California Cannabis, at pp. 936 & 946-947.) The Association contends that
California Cannabis is inapplicable to our case because, while voters may not be “local
government” for purposes of determining whether a general tax must be submitted to
voters at a general election (Article XIII C, section 3), they are “local government” for
purposes of applying the supermajority vote requirement. Unsurprisingly, the appellants
in All Persons raised this exact argument, and the All Persons court succinctly and
accurately disposed of the faulty contention thusly: “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 here.” (All Persons, supra, 51
Cal.App.5th at p. 723.) In short, the California Supreme Court, in California Cannabis,
has already determined the meaning of “local government” for all purposes of Article
XIII C, and we are bound by its determination.
Notwithstanding, the Association, like the All Persons appellants, attempts to
distinguish California Cannabis by seizing on the fact that section 2(b) is materially
different from section 2(d) because in section 2(d) voters explicitly imposed a two-thirds
vote requirement on themselves. The trial court also attempted to make the same
distinction. The trial court relied on the following quotation from California Cannabis:
“[A]s we observed in Kennedy Wholesale, 53 Cal.3d at page
252, 279 …, when an initiative’s intended purpose includes
imposing requirements on voters, evidence of such a purpose
is clear. In article XIII C, section 2, subdivision (d), for
example, the enactors adopted a requirement providing that,
before a local government can impose, extend, or increase
any special tax, voters must approve the tax by a two-thirds
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vote. That constitutes a higher vote requirement than would
otherwise apply. ([Elec. Code,] § 9217 [providing for a
majority].) That the voters explicitly imposed a procedural
two-thirds vote requirement on themselves in article XIII C,
section 2, subdivision (d) is evidence that they did not
implicitly impose a procedural timing requirement in
subdivision (b).” ([California Cannabis, supra, 3 Cal.5th] at
p. 943, underlining added by trial court.)
The trial court continued:
“In the above-referenced provision, the Court refers to
Elections Code section 9217, a statute specific to local voter
initiatives, and which provides that such initiatives pass with
a simple majority vote. Thus, it appears that the Court was
referring to initiatives, then, when it stated that, under
article XIII C, section 2, subdivision (d), voters must approve
special taxes ‘by a two-thirds vote’ and such ‘constitutes a
higher vote requirement than would otherwise apply’
pursuant to Elections Code section 9217. The two-thirds vote
requirement applies to all special tax proposals, regardless of
the proponent of the proposal.”
First, Elections Code section 9217 is not specific to voter initiatives. That section
provides in relevant part: “If a majority of the voters voting on a proposed ordinance
vote in its favor, the ordinance shall become a valid and binding ordinance of the city. …
No ordinance that is either proposed by initiative petition and adopted by the vote of the
legislative body of the city without submission to the voters, or adopted by the voters,
shall be repealed or amended except by a vote of the people, unless provision is otherwise
made in the original ordinance.”
More fundamentally, given that the term “local government” in Article XIII C
does not include the voting electorate and that the California Cannabis court found no
evidence from the official ballot materials that Proposition 218 was intended to affect the
voters’ power of initiative, the trial court’s above-quoted provision does not stand for the
proposition that a supermajority voting requirement applies to voter initiatives.
(California Cannabis, supra, 3 Cal.5th at p. 940.)
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“ ‘Proposition 218 simply extends the long standing constitutional protection
against politicians imposing tax increases without voter approval.’ [Citation.] It does not
constrain the people’s initiative power.” (All Persons, supra, 51 Cal.App.5th at p. 724.)
IV. Policy argument
Aside from its constitutionally based arguments, the Association also contends
that our failing to construe Propositions 13 and 218 as imposing a supermajority voting
requirement on voter initiatives would create a playground for mischief. It contends that
local politicians who support a tax increase could qualify an initiative as private citizens
and then, when the initiative comes before the local governing body, they could enact the
measure without putting it on the ballot, as would be allowed by Elections Code
section 9215, subdivision (a). Elections Code section 9215 provides that a city must do
one of the following when it receives a valid initiative petition: “(a) Adopt the ordinance
as passed, without alteration, at the regular meeting at which the certification of the
petition is presented, or within 10 days after it is presented[, or] (b) Submit the ordinance,
without alteration, to the voters pursuant to Section 1405[,] or (c)” order a report from
appropriate city agencies regarding the impact of the ordinance and then, upon receipt of
the report, adopt the ordinance or submit it to the electorate for a vote.6 However, since
this case does not involve any government action taken under Elections Code
section 9215, subdivision (a), we decline to address the Association’s hypothetical
scenario. Instead, this is a concern that should be addressed to the Legislature, as our
limited function as a court is to construe the texts of Propositions 13 and 218 in the
factual context presented here.
Additionally, although we are not required to do so, we address a related argument
the Association raised for the first time at oral argument. (Haight Ashbury Free Clinics,
6 While section 9215 applies only to initiatives in cities, there are comparable
statutes in the Elections Code for other jurisdictions.
20.
Inc. v. Happening House Ventures (2010) 184 Cal.App.4th 1539, 1554, fn. 9 [“We do not
consider arguments that are raised for the first time at oral argument.”].) The gist of the
argument as we understand it is that even when, as happened here, an initiative petition is
submitted to the city council and the city council elects to submit the ordinance to the
electorate for a vote, the city council would still be “imposing” the ordinance, which
would implicate the provisions of Articles XIII A, section 4 and XIII C, section 2.
Implicit in this argument is that all initiative petitions end up as local government
“impositions” even when all the local government does is perform the ministerial
function of submitting the measure as written to the electorate. Thus, regardless of
whether a local government elects to proceed under subdivision (a) or subdivision (b) of
Elections Code section 9215, the local government would still be “imposing” the
ordinance. We reject the notion that all initiative petitions are transmuted into local
government “impositions” in this manner.
DISPOSITION
The judgments are reversed. On the City of Fresno’s action, the trial court is
ordered to enter a new judgment in favor of Fresno Building Healthy Communities
declaring Measure P has passed. On Fresno Building Healthy Communities’s action, the
trial court is directed to enter a new judgment granting Fresno Building Healthy
Communities’s request for declaratory relief and declaring Measure P has passed. Any
need for the issuance of a writ of mandate and the terms of that writ shall be decided in
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the first instance by the trial court on remand. Fresno Building Healthy Communities is
awarded its costs on appeal.
SNAUFFER, J.
WE CONCUR:
FRANSON, Acting P.J.
PEÑA, J.
22.