Special Taxes by Voter Initiative Only Require Majority Voter Approval
For the Second Time This Year, California Appellate Court Upholds Voting Requirement
Initiative power is the power of the electorate to propose new laws subject to approval by voters, including the right to impose taxes for specialized purposes. Only simple majority voter approval is required for special taxes proposed by a citizen initiative, according to the Fifth District Court of Appeal’s recent decision in City of Fresno v. Fresno Building Healthy Communities. In reversing the trial court decision, the court found that the requirement under articles XIII A and XIII C of the California Constitution to obtain two-thirds does not apply where the special tax is proposed by citizen initiative. The court relied heavily on a separate appellate court decision earlier this year in City and County of San Francisco v. All Persons Interested in the Matter of Proposition C.
Fresno involved a voter initiative, Measure P, entitled the “Fresno Clean and Safe Neighborhood Parks Tax Ordinance,” which proposed to impose a three-eighths percent special sales tax with the limited purpose of improving park safety and accessibility for persons with disabilities, updating and maintaining playgrounds and restrooms, and providing other related services and improvements. 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 trial court concluded that articles XIII A (Proposition 13) and XIII C (Proposition 218) each impose a supermajority voting requirement on voter initiatives. Thus, according to the trial court, Measure P did not pass.
In reversing the trial court’s decision, the appellate court looked to the plain language of Proposition 13, which requires that “cities, counties and special districts” seeking to impose special taxes must first obtain two-thirds voter approval. None of the provisions of the California Constitution amended by Proposition 13 spoke expressly to the powers of initiative. When the voters approved Proposition 13, “the initiative power had long been ensconced in our Constitution.” If the intent was to constrain future voters to approve initiatives by two-thirds vote, that requirement would have been clear. Instead, the California Constitution expressly states that an initiative requires a majority vote only, a “defining characteristic of the initiative” that must be “jealously guard[ed]” by the courts, and where doubts exist, must be resolved in favor of the exercise of that right. The Elections Code further states that the people’s power by initiative to raise taxes was similarly subject only to a majority vote.
The court further found article XIII C, section 2(d) of the California Constitution did not create a super-majority voter approval requirement for citizen initiatives. Article XIII C was added to the Constitution as a part of Proposition 218, and its plain language does not show an intent to restrict the initiative power.
Fresno is the second appellate-level decision to address the voter approval requirement for special taxes placed on the ballot by citizen initiative. Fresno follows City and County of San Francisco, which similarly held that only simple-majority voter approval is required. The third case, Jobs and Housing Coalition v. City of Oakland is pending before appellate court. If the court in Oakland reaches a different conclusion than the courts in San Francisco and in Fresno, these conflicting appellate court decisions could lead to further review by the California Supreme Court.
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