The California Constitution proclaims that “[a]ll political power is inherent in the people. Government is instituted for their protection, security, and benefit, and they have the right to alter or reform it when the public good may require.” Article II, Section 8 of the California Constitution grants citizens the power to directly propose laws and taxes upon themselves by way of the initiative. A defining characteristic of the initiative is the people’s power to adopt laws by majority vote, but that issue has come into tension with other provisions of the California Constitution that suggest a supermajority vote is required for certain actions.
This tension has come to a head multiple times in the past few years as courts are left to interpret whether the initiative power means that a special tax proposed by initiative only requires a simple majority vote, rather than a supermajority. For the second time this year, the Court of Appeal has provided an answer: special taxes proposed by initiative only require a simple majority. In City of Fresno v. Fresno Building Healthy Communities, the Fifth District Court of Appeal followed the First District Court of Appeal’s recent decision in City and County of San Francisco v. All Persons Interested in the Matter of Proposition C (2020) 51 Cal.App.5th 703, in declaring that special taxes proposed by initiative require only a simple majority vote.
In City of Fresno, the citizens of Fresno proposed a voter initiative, Measure P, entitled the “Fresno Clean and Safe Neighborhood Parks Tax Ordinance.” The measure sought to impose a three-eighths percent special sales tax for park related services, job training, and recreation programs. Measure P received just over 52 percent voter approval and Fresno subsequently filed a complaint in Fresno County Superior Court for declaratory relief to determine whether Measure P was 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 also intervened as a defendant. FBHC filed its own complaint to affirm the election results. The trial court concluded that a supermajority of two thirds was required for approval of a special tax and therefore Measure P did not pass. The Court of Appeal, in its December 17, 2020 opinion, reversed.
In reversing the trial court, the Court of Appeal largely duplicated the analysis from City and County of San Francisco. First, the Court of Appeal reviewed the plain language of Proposition 13 and its requirement that “cities, counties and special districts” obtain two-thirds voter approval for special taxes. Noting that there was no language in Proposition 13 that spoke expressly to limiting the powers of the initiative, the Court declined to construe Proposition 13 in a manner that repeals by implication the initiative power to pass local laws by majority vote. In analyzing Proposition 218, the Court of Appeal similarly concluded that the term “local government” from that proposition did not extend to include the electorate.
While City of Fresno closely follows City and County of San Francisco, a third case, Jobs and Housing Coalition v. City of Oakland, involving a parcel tax initiative that was approved by 62.5% of voters, was found to be ineffective by the trial court due to the failure to meet a two-thirds supermajority. The City of Oakland has appealed that decision and the matter is pending before the First District Court of Appeal (Case No. A158977) with briefing scheduled to be completed early next year.
Ultimately, these decisions may have broad implications for future local efforts seeking to raise taxes and is likely to lead to citizens (and even lawmakers acting in their private capacity) using the initiative process more often to try and increase local tax revenues.
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