California Cannabis Coalition v. City of Upland ( 2017 )

Filed 8/28/17 (reposted to provide complete concurring & dissenting opinion)
IN THE SUPREME COURT OF CALIFORNIA
CALIFORNIA CANNABIS COALITION )
et al., )
)
Plaintiffs and Appellants, )
) S234148
v. )
) Ct.App. 4/2 E063664
CITY OF UPLAND et al., )
) San Bernardino County
Defendants and Respondents. ) Super. Ct. No. CIVDS1503985
____________________________________)
Here we consider the interplay of two constitutional provisions. First,
sections 8 and 11 of article II of the state Constitution contain the people’s
initiative power, which we have described as “ ‘one of the most precious rights of
our democratic process.’ ” (Associated Home Builders etc., Inc. v. City of
Livermore (1976) 18 Cal.3d 582, 591 (Associated Home Builders); Cal. Const.,
art. II (article II), §§ 8 [statewide power], 11 [local power].) Second,
article XIII C — added by one of several successful initiative constitutional
amendments concerning taxation — limits the ability of “local governments . . . to
impose, extend, or increase any general tax.” (Cal. Const., art. XIII C (article XIII
C), added by initiative, Gen. Elec. (Nov. 5, 1996), commonly known as Prop. 218;
Greene v. Marin County Flood Control & Water Conservation Dist. (2010) 49
Cal.4th 277, 284-285 (Greene) [summarizing the purpose of Prop. 218].)
SEE CONCURRING AND DISSENTING OPINION.
The question before us is whether article XIII C also restricts the ability of
voters to impose taxes via initiative. The Court of Appeal here concluded that
article XIII C does not constrain voters’ constitutional power to propose and adopt
initiatives, and that under article II, section 11 and Elections Code section 9214,1
the initiative at issue should be submitted to the voters at a special election, not at
a general election, as article XIII C would require. In light of the text and other
indicia of the purpose associated with the relevant constitutional and statutory
provisions, we agree with the Court of Appeal that article XIII C does not limit
voters’ “power to raise taxes by statutory initiative.” (Kennedy Wholesale, Inc. v.
State Bd. of Equalization (1991) 53 Cal.3d 245, 251 [reaching the same conclusion
with regard to article XIII A of the state Constitution] (Kennedy Wholesale).) 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. (E.g., Associated Home Builders, supra, 18
Cal.3d at p. 591.) As Ulysses once tied himself to the mast so he could resist the
Sirens’ tempting song (Homer, The Odyssey, Book XII), voters too can
conceivably make the clear and important choice to bind themselves by making it
more difficult to enact initiatives in the future. The electorate made no such clear
choice to tie itself to the mast here. Without a direct reference in the text of a
provision — or a similarly clear, unambiguous indication that it was within the
ambit of a provision’s purpose to constrain the people’s initiative power –– we
will not construe a provision as imposing such a limitation. (See Kennedy
Wholesale, at p. 252.) We therefore affirm the Court of Appeal’s judgment.
1 Subsequent unlabeled statutory references are to the Elections Code.
2
I.
The California Cannabis Coalition is a nonprofit corporation that drafted
the medical marijuana initiative at issue here in 2014.2 The initiative proposed
to repeal an existing City of Upland (City) ordinance banning medical marijuana
dispensaries; to adopt regulations permitting and establishing standards for the
operation of up to three dispensaries within the City; and to require that each
dispensary pay the City an “annual Licensing and Inspection fee” in the amount of
$75,000.
In September 2014, initiative proponents Nicole De La Rosa and James
Velez3 filed a notice of their intent to circulate the initiative petition (§ 9202), and
the city attorney prepared a ballot title and summary (§ 9203). The petition
plaintiffs circulated included a request that the initiative be considered by voters at
a special election. At least 15 percent of the City’s registered voters signed the
petition, meeting the statutory threshold for triggering consideration of the
initiative (§ 9214), and the City accepted a certificate of sufficiency from the San
Bernardino County Registrar of Voters on February 9, 2015. At that point, section
9214 obliged the City to either (1) adopt the initiative without alteration;
(2) immediately order a special election; or (3) order an agency report and, once
the report was presented, adopt the initiative or order a special election.
(Tuolumne Jobs & Small Business Alliance v. Superior Court (2014) 59 Cal.4th
1029, 1033 (Tuolumne Jobs); see §§ 1405 [time for special election], 9212
[referral to city agency for report].) The City elected to order an agency report.
Various city departments thereafter prepared a joint agency report. Among
other things, the report concluded that the $75,000 “fee” for the initiative would
2 We base this discussion of the facts on the Court of Appeal’s opinion.
3 We refer to De La Rosa, Velez, and the California Cannabis Coalition
collectively as “plaintiffs.”
3
exceed the costs incurred from issuing a license to and conducting annual
inspections of the dispensaries. The report estimated actual costs to be slightly
more than $15,000 and found the excess amount of the fee to constitute a general
tax. As such, the report determined that the initiative could not be voted on during
a special election as required by section 9214, but rather, under article XIII C,
section 2, had to be submitted to the voters at the next general election.4 On
March 9, 2015, the city council received the agency report and adopted a
resolution consistent with the report’s conclusions. The city council also provided
notice and direction for submitting the initiative to the voters on November 8,
2016, the next general election.
Plaintiffs then filed a petition for writ of mandate in superior court. They
alleged that the City violated section 9214 by failing to submit the initiative to the
voters at a special election.5 They also argued that article XIII C, section 2 did not
apply because the $75,000 charge proposed by the initiative was not a tax, nor was
it imposed by local government. The court denied the writ petition, determining
that the charge constituted a tax and had to be placed on the next general election
ballot. The court, however, did not specifically address whether article XIII C,
section 2 applies to taxes imposed by voter initiative.
Plaintiffs appealed, and the Court of Appeal reversed. The court held that
article XIII C, section 2 only governs levies that are imposed by local government
4 Article XIII C, section 2, subdivision (b) prohibits a local government from
imposing a general tax unless the tax is first submitted to and approved by the
voters at an election “consolidated with a regularly scheduled general election for
members of the governing body of the local government.”
5 Plaintiffs also alleged that the City’s true motivation in declaring the charge
a general tax was its opposition to medical marijuana dispensaries.
4
and, therefore, it does not apply to the voter initiative at issue here.6 Moreover,
the court noted that the people’s initiative power must be protected and construed
liberally, with doubts resolved in favor of its exercise whenever possible. (E.g.,
Rossi v. Brown (1995) 9 Cal.4th 688, 695 (Rossi); Associated Home Builders,
supra, 18 Cal.3d at p. 591.) The court determined that neither the text nor the
history of article XIII C contains any evidence that the enactors’ intended purpose
included constraining future voters’ ability to raise taxes via statutory initiative.
The court accordingly directed the superior court to issue a writ of mandate
compelling the City to place the initiative on a special ballot in accordance with
section 9214.
We granted the City’s petition for review on June 29, 2016. On November
8, 2016, the initiative at issue was submitted to the voters and defeated, with 64.38
percent voting no.7 While the case is thus technically moot, it nonetheless
presents important questions of continuing public interest that may evade review.
(Peterson v. City of San Diego (1983) 34 Cal.3d 225, 227.) We therefore exercise
our discretion to retain the matter and address the issues.8 (People v. Carbajal
(1995) 10 Cal.4th 1114, 1120, fn. 5.)
II.
We apply similar principles when construing constitutional provisions and
statutes, including those enacted through voter initiative. (Silicon Valley
Taxpayers’ Assn., Inc. v. Santa Clara County Open Space Authority (2008) 44
6 In light of its holding, the Court of Appeal did not address whether the
$75,000 charge is a fee.
7 (San Bernardino County Registrar of Voters, Elections Office, City of
Upland, Measure U
[as of Aug. 28, 2017].)
8 Moreover, we note that neither party has sought dismissal on mootness
grounds.
5
Cal.4th 431, 444.) Our primary concern is giving effect to the intended purpose of
the provisions at issue. (Id. at p. 448 [explaining that we construe provisions “in a
manner that effectuates the [enactors’] purpose in adopting the law”].) In doing
so, we first analyze provisions’ text in their relevant context, which is typically the
best and most reliable indicator of purpose. (Larkin v. Workers’ Comp. Appeals
Bd. (2015) 62 Cal.4th 152, 157; Kwikset Corp. v. Superior Court (2011) 51
Cal.4th 310, 321 [when interpreting voter initiatives, “ ‘we begin with the text’ ”].)
We start by ascribing to words their ordinary meaning, while taking account of
related provisions and the structure of the relevant statutory and constitutional
scheme. (Los Angeles County Bd. of Supervisors v. Superior Court (2016) 39
Cal.5th 282, 293; Bighorn-Desert View Water Agency v. Verjil (2006) 39 Cal.4th
205, 212 (Bighorn).) If the provisions’ intended purpose nonetheless remains
opaque, we may consider extrinsic sources, such as an initiative’s ballot materials.
(Larkin, at p. 158.) Moreover, when construing initiatives, we generally presume
electors are aware of existing law. (In re Lance W. (1985) 37 Cal.3d 873, 890,
fn. 11 (Lance W.).) Finally, we apply independent judgment when construing
constitutional and statutory provisions. (Western States Petroleum Assn. v. Board
of Equalization (2013) 57 Cal.4th 401, 416.)
A.
The people’s initiative power is contained in article II, sections 8 and 11.
The former section provides, “The initiative is the power of the electors to propose
statutes and amendments to the Constitution and to adopt or reject them.” (Art. II,
§ 8, subd. (a).) The latter contains the local power, providing that “[i]nitiative and
referendum powers may be exercised by the electors of each city or county under
procedures that the Legislature shall provide.” (Id., § 11, subd. (a).) In Associated
Home Builders, supra, 18 Cal.3d 582, we briefly described the history and
longstanding judicial interpretation of the initiative power.
6
The state Constitution was amended to include the initiative power in 1911.
The Constitution “speak[s] of the initiative and referendum, not as a right granted
the people, but as a power reserved by them.” (Associated Home Builders, supra,
18 Cal.3d at p. 591.) Since then, courts have consistently declared it their duty to
“ ‘jealously guard’ ” and liberally construe the right so that it “ ‘be not improperly
annulled.’ ” (Ibid.; see, e.g., Perry v. Brown (2011) 52 Cal.4th 1116, 1140.)
Moreover, when weighing the tradeoffs associated with the initiative power, we
have acknowledged the obligation to resolve doubts in favor of the exercise of the
right whenever possible. (Associated Home Builders, at p. 591.) We more
recently explained that the enactment of the initiative power was sparked by
“dissatisfaction with the then governing public officials and a widespread belief
that the people had lost control of the political process.” (Perry, at p. 1140.) Its
purpose, in effect, was empowering voters to propose and adopt provisions “that
their elected public officials had refused or declined to adopt.” (Id. at p. 1140.)
When the right of initiative was grafted onto the Constitution, the
Legislature also enacted statutory procedures for city and county voters to exercise
the right. (Tuolumne Jobs, supra, 59 Cal.4th at p. 1042, citing Stats. 1911, Ex.
Sess. 1911, ch. 33, § 1, pp. 131-132.) Most relevant here is section 9214, the
current statute setting forth a local government’s duty with respect to initiatives
whose proponents request a special election. The provision requires the city
government, upon receipt of a petition signed by not less than 15 percent of the
city’s voters, to (1) adopt the ordinance without alteration; (2) immediately order a
special election; or (3) order an agency report and, once the report is presented to
the city council, adopt the ordinance or order a special election. (§ 9214;
Tuolumne Jobs, at p. 1033.) Section 9212 requires that an agency report be
presented to the city council no later than 30 days after the initiative petition has
been certified as having the sufficient number of signatures. (§ 9212, subd. (b).)
7
And section 1405 generally requires that the special election “be held not less than
88 nor more than 103 days after the date of the order of election.” (§ 1405,
subd. (a).) Collectively, the intended purpose of these statutes is to require “public
officials to act expeditiously on initiatives.” (Tuolumne Jobs, at p. 1037.)
Against this constitutional and statutory backdrop, we have held that the
people’s power to propose and adopt initiatives is at least as broad as the
legislative power wielded by the Legislature and local governments. (See, e.g.,
Santa Clara County Local Transportation Authority v. Guardino (1995) 11
Cal.4th 220, 253 (Guardino) [discussing statewide right to initiative]; DeVita v.
County of Napa (1995) 9 Cal.4th 763, 775 (DeVita) [discussing local right to
initiative]; Rossi, supra, 9 Cal.4th at p. 696 [noting “local initiative power may be
even broader than the initiative power reserved in the Constitution”].) When
voters exercise the initiative power, they do so subject to precious few limits on
that power.9 (Rossi, at p. 695.) Moreover, we have explained that procedural
requirements imposed on the Legislature and local governments do not similarly
constrain the electorate’s initiative power without evidence that such was their
intended purpose. (E.g., DeVita, at p. 785 [“existence of procedural requirements
for the adoptions of local ordinances generally does not imply a restriction of the
power of initiative”]; Associated Home Builders, supra, 18 Cal.3d at pp. 588, 593-
596.) In Kennedy Wholesale, supra, 53 Cal.3d at pages 251 to 252, for example,
we held that the constitutional requirement that the Legislature obtain a two-thirds
vote before raising taxes (Cal. Const., art. XIII A, § 3) is a requirement that does
not apply to voters’ initiative power.
9 The most often invoked limitation is the single-subject requirement. (Art.
II, § 8, subd. (d); see also art. II, §§ 8, subds. (e) & (f), 11, subds. (b) & (c), 12
[containing other narrow limitations]; see Elec. Code, § 9218 [prohibiting two
special municipal elections on the same subject matter within a 12-month period].)
8
Just how that power relates to taxation was the subject of our holding in
Rossi, supra, 9 Cal.4th 688, which concerned a city ordinance added by voter
initiative. When the statewide initiative power was originally adopted, we
observed, “taxation was not only a permitted subject for the initiative, but was an
intended object of that power.” (Id. at p. 699.) We found evidence of that purpose
in the history of the measure that added the initiative power in 1911, the
contemporary understanding of the measure, and statements made by the
measure’s drafter and leading proponent. (Ibid.) We also considered subsequent
unsuccessful attempts to amend the initiative power “to exclude measures related
to taxation,” efforts that “would have been unnecessary if tax-related measures
were not permissible subjects of the initiative.” (Ibid.; see id. at pp. 699-702.)
There is no restriction, we concluded, “on the use of the initiative in the area of
taxation.” (Id. at p. 702.) That is, electors may “use the initiative process to
prospectively adopt or annul (repeal) statutes imposing taxes.” (Ibid.; id. at
p. 696.)
Whether the context involves taxation or not, all of these cases underscore
how courts preserve and liberally construe the public’s statewide and local
initiative power. Indeed, we resolve doubts about the scope of the initiative power
in its favor whenever possible (Associated Home Builders, supra, 18 Cal.3d at
p. 591), and we narrowly construe provisions that would burden or limit the
exercise of that power (see Rossi, supra, 9 Cal.4th at p. 696; see also DeVita,
supra, 9 Cal.4th at p. 781). It is against this backdrop that we consider whether
article XIII C, section 2 applies when voters seek to impose taxes via initiative.10
10 Article XIII C, section 1, subdivision (e) defines “ ‘tax’ ” as “any levy,
charge, or exaction of any kind imposed by a local government,” with certain
exceptions. (Italics added.) In light of our conclusion that article XIII C, section 2
does not apply to voter initiatives, our use of the word “tax” throughout this
9
B.
Article XIII C was added by Proposition 218, an initiative constitutional
amendment adopted at the 1996 general election. Article XIII C, section 2,
subdivision (b) provides, “No local government may impose, extend, or increase
any general tax unless and until that tax is submitted to the electorate and
approved by a majority vote. . . . The election required by this subdivision shall be
consolidated with a regularly scheduled general election for members of the
governing body of the local government . . . .” Despite no mention of voter
initiatives, the City and the concurring and dissenting opinion (conc. & dis. opn.,
post, at pp. 1-2) contend this provision nonetheless applies to such instruments
and, notwithstanding section 9214, requires that initiatives imposing, extending, or
increasing a general tax must first be submitted to the electorate at a regularly
scheduled general election, rather than a special election. We disagree.
By its terms, article XIII C, section 2 only applies to actions taken by a
“local government.” To cabin uncertainty about what “local government”
connotes, article XIII C then defines the term to mean “any county, city, city and
county, including a charter city or county, any special district, or any other local or
regional governmental entity.” (Id., § 1, subd. (b).) The crux of the City’s
argument is that this definition is broad enough to include the electorate. (See
conc. & dis. opn., post, pp. 4-5.) It is true enough that in the contemporary
understanding of our democracy, governmental entities exist to serve the public,
and not the other way around. (See art. II, § 1 [“[g]overnment is instituted for [the
people’s] protection, security, and benefit”].) But this important principle does
(footnote continued from previous page)
opinion is meant not as the term is defined in subdivision (e), but as it is
commonly understood.
10
not, in the abstract or in the context of the laws at issue in this case, imply that we
should assume the public and the governmental entity corresponding to where the
public resides to be one and the same. While one understanding of a city or
comparable jurisdiction might blur the distinction between its residents, electorate,
and government (e.g., American Heritage Dict. of the English Language (4th ed.
2000) p. 339 [“city” includes “[t]he inhabitants of a city considered as a group”];
conc. & dis. opn., post, at p. 5 [“city . . . refers to the municipal corporation and
body politic”]), such an interpretation is unpersuasive –– at least in this context —
and a survey of rationales specific to this provision, as well as broader principles
in our jurisprudence, shows why.
First, the common understanding of local government does not readily lend
itself to include the electorate, instead generally referring to a locality’s governing
body, public officials, and bureaucracy.11 (See Bighorn, supra, 39 Cal.4th at
p. 212 [using term’s ordinary meaning]; see also Black’s Law Dict. (4th ed. 1951)
p. 824 [defining “local government” as “[t]he government or administration of a
particular locality; especially, the governmental authority of a municipal
corporation, as a city or county, over its local and individual affairs”].) Arguing to
11 The City argues that the separate use of the term “governing body” in article
XIII C, section 2, subdivision (b) demonstrates that local government means
something more than a city council. We agree. But the existence of a distinction
between a local government and its governing body does not mean that local
government must therefore include the electorate, any more than separate references
to, say, the California Environmental Protection Agency and its top official imply the
absence of a meaningful distinction between the agency and the public it serves. Nor
can we ignore the distinction between the electorate and the governmental entities
identified in article XIII C, section 1, subdivision (b). Consistent with its statutory
definition here and its usage elsewhere in our law, the term “local government”
plausibly refers to the entire organization constituting the local or regional
governmental entity in question — including its bureaucracy and its corporate form
— and not simply a locality’s elected officials. (E.g., Banning Ranch Conservancy v.
City of Newport Beach (2017) 2 Cal.5th 918, 925 [“every local government in the
coastal zone must submit a local coastal program for Coastal Commission approval”
(italics added)].)
11
the contrary, the concurring and dissenting opinion relies on In re Pfahler (1906)
150 Cal. 71 (Pfahler), a 111-year-old case cited by none of the briefs. (Conc. &
dis. opn., post, at pp. 5-7.) But that case considered whether a constitutional
provision conferring local legislative power on “[a]ny county, city, town, or
township” precluded a city’s charter from authorizing voters to exercise the city’s
power via initiative. (Pfahler, at p. 81.) Answering in the negative, we explained
that legislative power is not inherently reserved to representative assemblies. (Id.
at p. 83.) We did not suggest, however, that the terms “local government” and
“electorate” are equivalent or not meaningfully distinguishable, particularly when
considering whether explicit restrictions on the former should impliedly be
imposed on the latter. (See id. at p. 87 [distinguishing between actions of a city
council and electors].)12
Moreover, construing local government as an entity distinct from the public
is consistent not only with how the term is used in the provision’s text, but also
with how it is used in its findings and declarations. (Ballot Pamp., Gen. Elec.
(Nov. 5, 1996) text of Prop. 218, p. 108 [“This measure protects taxpayers by
limiting the methods by which local governments exact revenue from taxpayers”
(italics added)]; see also Orange Citizens for Parks & Recreation v. Superior
Court (2017) 2 Cal.5th 141, 154 [“The Governor’s Office of Planning and
Research encourages local governments to structure their procedures to facilitate
public involvement . . . .” (italics added)].) Contrary to the concurring and
dissenting opinion (conc. & dis. opn., post, at pp. 2, 5, 8), this understanding also
12 Of course, in the 111 years since we decided Pfahler, California has borne
witness to significant developments affecting the extent and significance of the
initiative power. The 1906 earthquake occurred months before Pfahler was issued
— and a political earthquake in the form of the constitutional initiative power
followed five years later. Since then, we have spilt much ink regarding the nature
and scope of direct democracy in this state.
12
proves compatible with section 9200, which provides that “[o]rdinances may be
enacted by and for any incorporated city,” encompassing situations where the
electorate enacts an ordinance, via initiative, for the city.
Second, the only portion of article XIII C even mentioning the voters’
direct democracy rights appears in section 3. (Art. XIII C, § 3 [citing art. II, §§ 8
& 9, respectively the people’s initiative and referendum powers].) The concurring
and dissenting opinion (conc. & dis. opn., post, at p. 9) concludes this language
means the voters knew the initiative power could affect local taxes and, further,
must mean voters intended to (silently) subsume tax-related initiatives within the
ambit of article XIII C, section 2. But section 3’s single reference to the initiative
power proves, at best, too slender a reed to support the substantial limitations that
the City and the concurring and dissenting opinion would have us read into
Proposition 218’s provisions. If anything, the reference in section 3 makes the
omission of any limitations on the initiative power in section 2 –– or anywhere
else in article XIII C –– even more glaring. To infer from that absence a
calculated decision to squelch voters’ initiative rights is essentially to embrace a
presumption against the initiative power, rather than in favor of it. Such a
conclusion would be profoundly at odds with our obligation to “ ‘jealously guard’
” the voters’ exercise of their initiative power. (Associated Home Builders, supra,
18 Cal.3d at p. 591.) Confronted with the text of article XIII C, a reasonable
reader would be unlikely to infer that Proposition 218 was designed to regulate the
initiative power through an explicit reference in section 3 and an implicit one in
section 2.
Third, even if it were conceivably possible to treat the term “local
government” in article XIII C as an unusually oblique reference to the voters who
comprise the relevant electorate, the difficulty in accepting this inference ratchets
up given how the definition of “local government” closes with the phrase, “or any
13
other local or regional governmental entity.” (Art. XIII C, § 1, subd. (b).) That
the elected officials and civil servants more commonly understood to be part of a
local government can be surprised by the actions of the voters they serve belies the
idea that the amalgam of individuals who constitute the electorate comprise a local
or regional governmental entity.
What’s more, the principle of ejusdem generis suggests that when “specific
words follow general words in a statute or vice versa,” the general words
ordinarily are best construed in a manner that underscores their similarity to the
specific words. (International Federation of Professional & Technical Engineers,
Local 21, AFL-CIO v. Superior Court (2007) 42 Cal.4th 319, 342.) Interpreting
“city” to include the electorate would give that term a much broader meaning than
the adjoining specific term, “local or regional governmental entity.” (Art. XIII C,
§ 1, subd. (b).) Thus, our interpretation of local government is consistent with the
ordinary understanding of the term, the text of related provisions, and the ejusdem
generis principle. By contrast, the interpretation of the City and the concurring
and dissenting opinion would require us to insert words — such as “electorate,”
“voters,” or “people” –– into section 1, subdivision (b) and section 2, subdivision
(b) of article XIII C. (See Code Civ. Proc., § 1858 [“In the construction of a
statute or instrument, the office of the Judge is simply to ascertain and declare
what is in terms or in substance contained therein, not to insert what has been
omitted . . .”].)
Our interpretation is also consistent with article XIII D of the state
Constitution, which, like article XIII C, was added by Proposition 218. (Greene,
supra, 49 Cal.4th at p. 285.) Article XIII D addresses the imposition of
assessments and property-related fees by local agencies, and section 4 of that
article contains a variety of procedural requirements that must be fulfilled before
an “agency” may adopt an assessment (Cal. Const., art. XIII D, § 4 [e.g., notice
14
and hearing requirements].) Article XIII D defines agency as “any local
government as defined in subdivision (b) of Section 1 of [article XIII C].” (Id.,
§ 2, subd. (a).) Under the City’s interpretation then, “agency” in article XIII D
also includes voters — an understanding that seems, at best, quite an improbable
version of what was plausibly contemplated when this provision was enacted.
The alternative is to treat the term “local government” as encompassing the
entire coterie of individuals constituting the electorate –– thus burdening voters’
power to propose and adopt initiatives concerning taxation. (Rossi, supra, 9
Cal.4th at p. 702.) If this quite significant consequence were consistent with the
most reasonable understanding of Proposition 218’s purpose despite the absence
of text in articles XIII C or D bolstering this view, one would assume there would
be some mention of such a goal elsewhere in Proposition 218 or its ballot
materials. (Whitman v. American Trucking Assns., Inc. (2001) 531 U.S. 457, 468
[enactors do not “hide elephants in mouseholes”]; see Kennedy Wholesale, supra,53 Cal.3d at p. 250.) The City and the concurring and dissenting opinion cite no
such evidence. Nor can we find any. To the contrary: The crux of the concern
repeatedly reflected in the ballot materials is with local governments and
politicians –– not the electorate –– imposing taxes. Nowhere in the materials is
there any suggestion that Proposition 218 would rescue voters from measures they
might, through a majority vote, impose on themselves.
For example, Proposition 218’s findings and declarations state, “local
governments have subjected taxpayers to excessive tax, assessment, fee and
charge increases . . . . This measure protects taxpayers by limiting the methods by
which local governments exact revenue from taxpayers without their consent.”
(Ballot Pamp., Gen. Elec. (Nov. 5, 1996) text of Prop. 218, p. 108, italics added
(1996 Ballot Pamp.).) The ballot materials are in accord. The argument in favor
of the measure, for example, stated that it “does NOT prevent government from
15
raising and spending money for vital services. . . . If politicians want to raise
taxes they need only convince local voters that new taxes are really needed.”
(1996 Ballot Pamp., supra, argument in favor of Prop. 218, p. 76, italics added;
id., rebuttal to argument against Prop. 218, p. 77 [“Proposition 218 simply gives
taxpayers the right to vote on taxes and stops politicians’ end-runs around
Proposition 13” (italics added)].)13 In short, these materials indicate both that
article XIII C employs the term “local government” as it is commonly understood
and that the provision’s intended purpose did not include limiting voters’ “power
to raise taxes . . . by statutory initiative.”14 (See Kennedy Wholesale, supra, 53
Cal.3d at p. 250.)
This reading finds further support in the ballot materials concerning two
related initiative constitutional amendments: Proposition 13, which added article
XIII A in 1978, and Proposition 26, which amended article XIII C in 2010. The
ballot materials concerning both initiatives similarly evince a specific concern
with politicians and their imposition of taxes without voter approval. (E.g., Ballot
Pamp., Primary Elec. (June 6, 1978) rebuttal to argument against Prop. 13, p. 59
[“We must not let the spendthrift politicians continue to tax us into poverty”
(italics added)]; Voter Information Guide, Gen. Elec. (Nov. 2, 2010) argument in
13 The concurring and dissenting opinion (conc. & dis. opn., post, at p. 10)
cites other statements discussing the electorate’s right to vote on taxes and on local
government’s actions. The opinion rightly focuses on the purpose of article
XIII C. (E.g., conc. & dis. opn., post, at pp. 2, 6 [highlighting the “stated
purposes” of Prop. 218], 10 [emphasizing the provision’s “overarching purpose”].)
But it identifies no evidence or other reason to conclude that the provision
encompasses the imposition of taxes by the electorate via initiative.
14 The City identifies another purpose of requiring that general taxes only be
considered during regularly scheduled general elections. It contends that this
requirement forces politicians to face the voters at the same time as any tax
proposal he or she may have supported or to answer questions about the
politicians’ stance on tax measures. But such a purpose makes limited sense in the
context of taxes imposed by voter initiatives.
16
favor of Prop. 26, p. 60 [“STOP POLITICIANS FROM ENACTING HIDDEN
TAXES” (italics added)]; ibid. [“[l]ocal politicians have been calling taxes ‘fees’
so they can bypass voters” (italics added)]; ibid. [“Proposition 26 requires
politicians to meet the same vote requirements to pass these Hidden Taxes” (italics
added)].) All of this is more evidence that the drafters of these propositions, like
the drafters of Proposition 218, simply did not contemplate that they were
affecting the power of voters to propose taxes via initiatives. (See Jacks v. City of
Santa Barbara (2017) 3 Cal.5th 248, 258-260 [discussing relationship between the
various propositions]; see also Kennedy Wholesale, supra, 53 Cal.3d at p. 250
[“Nothing in the official ballot pamphlet supports the inference that the voters
intended to limit their own power to raise taxes in the future by statutory
initiative”].)15
What the City contends in the alternative is that, even if “local government”
does not directly encompass the electorate, article XIII C, section 2, subdivision
(b) indirectly applies to voters for two reasons. The City contends it applies to the
electorate because, in the City’s view, the voters are the ones who ultimately
impose every local tax. The City notes that, under the provision, no local
government may impose a general tax “unless and until” (art. XIII C, § 2,
subd. (b)) the tax is submitted to the voters and approved by a majority vote. For
support the City cites Guardino, supra, 11 Cal.4th 220. But in that case, we
15 The concurring and dissenting opinion posits that the ballot materials’
repeated reference to “politicians,” and silence regarding voter initiatives, simply
reflects that “most local tax increases have, indeed, been initiated by elected
officials.” (Conc. & dis. opn., post, at p. 10.) That is certainly one possibility.
Another more plausible one is that the silence with regard to initiatives reflects
that the drafters either were not concerned with initiatives proposing taxes —
perhaps because such was a rare or unheard of occurrence or because such would
constitute an expression of direct democracy — or they simply did not have that
issue in mind.
17
simply noted that a local government’s imposition of a general tax “will not take
effect” absent subsequent approval by the voters — in other words, the voters’
approval acts as a precondition (id. at p. 240) to a tax measure becoming
operative. But that does not transform voters into the “local government”
referenced in article XIII C, section 2. Nor does it mean it is always and only the
electorate that imposes a tax. Suppose a constitutional provision required that no
city council could impose a zoning restriction unless and until the restriction was
submitted to and approved by the city attorney. Does that mean that it is the city
attorney –– and not the city council –– that actually imposes zoning restrictions?
No.
The City also argues that article XIII C, section 2, subdivision (b)
constrains voter initiatives because “statutory and constitutional limits on the
power of local government apply equally to local initiatives.” The City primarily
relies on Legislature v. Deukmejian (1983) 34 Cal.3d 658, but that case offers the
City no support. It involved a statutory initiative that proposed to adjust state
legislative and congressional district boundaries after the Legislature had already
engaged in decennial redistricting. (Id. at p. 663.) Noting that the state
Constitution prohibited the Legislature from redistricting more than once per
decade (id. at p. 668), we concluded that the initiative was impermissible (id. at
p. 663). We explained that “the power of the people through the statutory
initiative is coextensive with the power of the Legislature.” (Id. at p. 675.) Yet, as
we later indicated, Legislature v. Deukmejian simply stands for the proposition
that “neither the Legislature nor the voters may enact a law of a nature that
exceeds a limitation on the state’s lawmaking power.” (Kennedy Wholesale,
supra, 53 Cal.3d at p. 252; DeVita, supra, 9 Cal.4th at p. 776 [discussing local
initiatives].) By contrast, procedural requirements imposed on the Legislature or
local governments are presumed not to apply to the initiative power absent
18
evidence that such was the intended purpose of the requirements. (DeVita, at
p. 776; Kennedy Wholesale, at p. 252.) To illustrate: When a local government
lacks authority to legislate in an area, perhaps because the state has occupied the
field (e.g., American Financial Services Assn. v. City of Oakland (2005) 34
Cal.4th 1239, 1252 [predatory lending practices]), that limitation also applies to
the people’s local initiative power. (DeVita, at p. 776.) In contrast, where
legislative bodies retain lawmaking authority subject to procedural limitations,
e.g., notice and hearing requirements (Associated Home Builders, supra, 18 Cal.3d
at p. 594) or two-thirds vote requirements (Kennedy Wholesale, at p. 251), we
presume such limitations do not apply to the initiative power absent evidence that
such was the restrictions’ intended purpose. (DeVita, at p. 785; Kennedy
Wholesale, at p. 252.)
The concurring and dissenting opinion interprets these cases more
narrowly, as applying exclusively when the procedural requirements at issue are
“incompatible with initiative procedures.” (Conc. & dis. opn., post, at pp. 14-15.)
Yet this reading proves too cramped an understanding of these cases’ holdings or
their significance. While our cases noted that the restrictions at issue made little
sense in light of the distinct initiative process (e.g., Kennedy Wholesale, supra, 53
Cal.3d at p. 252, fn. 5 [“electorate does not generally follow ‘legislative’
procedures when exercising the initiative power”]), nothing suggests those
observations formed the metes and bounds of our holding. To the contrary, our
reasoning was broader and grew out of our presumption in favor of the initiative
power. (E.g., DeVita, supra, 9 Cal.4th at pp. 785 [“it is well established in our
case law that the existence of procedural requirements for the adoptions of local
ordinances generally does not imply a restriction of the power of initiative or
referendum”], 786 [this “rule is a corollary to the basic presumption in favor of the
electorate’s power of initiative and referendum”].)
19
Taking account of this legal context, along with the relevant provision’s
text and other indicia of purpose, we conclude that the requirement in article XIII
C, section 2, subdivision (b) — mandating that general taxes be submitted to the
voters at a regularly scheduled general election — applies only to local
governments and not to the electorate’s initiative power without evidence that
such was the intended purpose of the requirement. The City cites no such
evidence, because there is none here.
Indeed, as we observed in Kennedy Wholesale, 53 Cal.3d at page 252, 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 vote. That constitutes a higher vote requirement than
would otherwise apply. (§ 9217 [providing for a majority vote].) 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). (See Kennedy
Wholesale, at p. 252.) Moreover, had the voters wanted the procedural
requirements contained in article XIII C, section 2, subdivision (b) to apply to the
initiative power, Proposition 218 could have made that clear by providing, “No
local government or initiative may impose, extend, or increase . . . ,” by defining
local government to include the electorate exercising its initiative power, or by
imposing an absolute ban, i.e., “No general tax shall be imposed, extended, or
increased . . . .” (See Kennedy Wholesale, at p. 253 [discussing similar language
in Cal. Const., art. XIII A, § 1, subd. (a)].) The voters did not do so, and we will
not infer such a purpose. (Rossi, supra, 9 Cal.4th at p. 694; Kennedy Wholesale, at
p. 252 [“ ‘Where the electorate has demonstrated the ability to make their intent
20
clear, it is not the province of this court to imply an intent left unexpressed’ ”].)
Particularly because, given that article XIII C was enacted via initiative
constitutional amendment, its enactors were certainly well aware of the initiative
power. (Lance W., supra, 37 Cal.3d at p. 890, fn. 11.)
The City offers a final reason for applying article XIII C, section 2,
subdivision (b) to the electorate here. It contends that the term “impose” in that
provision includes the collection of taxes by a local government, so subdivision
(b) precludes the City from collecting a general tax imposed via initiative unless
and until the tax is approved by the voters at a regularly scheduled election. Not
so. The Court of Appeal in this case concluded that the ordinary meaning of
“impose” is “to establish,” not to collect (e.g., Ponderosa Homes, Inc. v. City of
San Ramon (1994) 23 Cal.App.4th 1761, 1770, citing Webster’s 3d New Internat.
Dict. (1970) p. 1136), and because it found no reason to depart from this
understanding of the term, it construed the meaning of “impose” in article XIII C,
section 2, subdivision (b) as consistent with this understanding. We agree.
Indeed, in Guardino, supra, 11 Cal.4th 220, we interpreted nearly identical
language and reached the same conclusion. In that case, we construed a statute
added by Proposition 62, a statutory initiative adopted at the 1986 general election.
The relevant language provided, “No local government or district may impose any
special tax unless and until such special tax is submitted to the electorate . . .”
(Gov. Code, § 53722), and we explained that “impose” “in this context means
enacted.” (Guardino, at p. 240; see Howard Jarvis Taxpayers Assn. v. City of
Riverside (1999) 73 Cal.App.4th 679, 681-682 [using “impose” and “enact”
interchangeably when discussing Proposition 218]; see also Weisblat v. City of San
Diego (2009) 176 Cal.App.4th 1022, 1034 [same with regard to Prop. 13].) This
is also consistent with usage in the relevant ballot materials. (E.g., 1996 Ballot
21
Pamp., supra, analysis of Prop. 218 by the Legis. Analyst, p. 73 [using “create,”
“establish,” and “impose” interchangeably].)16
The City then seeks to bolster its argument for equating “impose” with
“collect” by relying on Howard Jarvis Taxpayers Assn. v. City of La Habra (2001)
25 Cal.4th 809. There we construed Proposition 62 for purposes of determining
when the statute of limitations began to run on the plaintiffs’ action against the
city for wrongfully “imposing and collecting a general tax.” (Howard Jarvis, at
p. 812.) What we concluded is that the ongoing collection of the tax at issue
constituted a continuing injury but, in reaching that conclusion, we relied on
language stating that taxes imposed prior to the measure’s enactment “shall
continue to be imposed only if approved by a majority vote of the voters.” (Gov.
Code, § 53727, subd. (b); Howard Jarvis, at p. 823; see also Gov. Code, § 53728
[providing a remedy when a government continues to collect an unauthorized
tax].) We explained that, “[c]learly, in this provision, ‘imposition’ is not limited
16 Indeed, a critical aspect of our analysis involves understanding what
“impose” means in the context of article XIII C. The concurring and dissenting
opinion conveniently assumes its conclusions about this term by concluding in
effect that only local governments can impose taxes because, administratively,
only local governments can collect and spend them. (E.g., conc. & dis. opn., post,
at pp. 2 [“A tax passed by voter initiative, no less than a tax passed by vote of the
city council, is a tax of the local government, to be collected by the local
government, to raise revenue for the local government”], 4 [“A local government
tax is a local government tax, no matter how it may have been legislated into
being”].) Here, “impose” most plausibly means to establish or enact, and article
XIII C, section 2 applies only if it is the local government doing so. The
concurring and dissenting opinion emphasizes that when the electorate exercises
its initiative power, it is acting in a legislative capacity. (E.g., conc. & dis. opn.,
post, at pp. 4-5.) No doubt. But that is not sufficient to establish that the
electorate is indistinguishable from representative politicians for the purposes of
triggering article XIII C, section 2, particularly when that provision gives no
indication whatsoever that it was designed to interfere with the exercise of the
initiative power.
22
to the time of initial enactment . . .” and Proposition 62’s intended purpose extends
to cover “continued imposition or collection of [an unauthorized] tax as well.”
(Howard Jarvis, at pp. 823-824, italics added.) So Howard Jarvis is inapposite.17
C.
Given the language and other indicia of intended purpose for article XIII C,
section 2, subdivision (b), we conclude the provision’s requirements apply only
when a local government seeks to impose, extend, or increase a general tax. (See
DeVita, supra, 9 Cal.4th at p. 785.) By contrast, its requirement that a general tax
be submitted to the voters at a general election does not apply to taxes that are
imposed by initiative after securing the electorate’s approval in a manner
consistent with section 9214. (See Kennedy Wholesale, supra, 53 Cal.4th at
pp. 251-252.) A contrary conclusion would work an implied repeal of
section 9214, something against which we have a strong presumption. (E.g.,
Tuolumne Jobs, supra, 59 Cal.4th at p. 1039 [noting we will find an implied repeal
only where there is no way to reconcile the two provisions].)
Without an unambiguous indication that a provision’s purpose was to
constrain the initiative power, we will not construe it to impose such limitations.
Such evidence might include an explicit reference to the initiative power in a
provision’s text, or sufficiently unambiguous statements regarding such a purpose
in ballot materials. The concurring and dissenting opinion queries “ ‘by what
17 Although the City does not cite the provision, we note that article XIII C,
section 2, subdivision (c) provides, “Any general tax imposed, extended, or
increased, without voter approval, by any local government on or after January 1,
1995, and prior to the effective date of this article, shall continue to be imposed
only if approved by a majority vote of the voters voting in an election on the issue
of the imposition . . . .” But this language does not alter our conclusion since,
here, the tax would only have been imposed if a majority of the voters had voted
for it.
23
authority’ ” we require clear evidence of an intended purpose to constrain exercise
of the initiative power. (Conc. & dis. opn., post, at p. 14.) Our answer is rooted
firmly in the longstanding and consistent line of cases emphasizing courts’
obligation to protect and liberally construe the initiative power (e.g., Associated
Home Builders, supra, 18 Cal.3d at p. 591) and to narrowly construe provisions
that would burden or limit its exercise (see, e.g., Rossi, supra, 9 Cal.4th at
p. 696).18 Those cases underscore the centrality of direct democracy in the
California Constitution, and the status of our presumption liberally construing the
initiative power as a paramount structural element of our Constitution. (E.g.,
Associated Home Builders, at p. 591 [describing the initiative as “ ‘one of the most
precious rights of our democratic process’ ”].) A clear statement rule is consistent
with, and indeed, appropriately advances our duty to safeguard the exercise of the
initiative power. Although limits may be placed on it, and in some cases they
have been, the best way to implement our oft-repeated references to the
importance of the initiative is to avoid presuming that a provision constrains that
power without a clear statement or equivalent evidence that such was the
provision’s intended purpose.
18 The concurring and dissenting opinion indicates it has “no quarrel with this
general principle” (conc. & dis. opn., post, at p. 14), but its analysis does not
sufficiently grapple with the necessary implications of that presumption. Our
cases underscore courts’ obligation to “ ‘jealously guard’ ” (Associated Home
Builders, supra, 18 Cal.3d at p. 591) and “liberally construe” (Perry v. Brown,
supra, 52 Cal.4th at p. 1145, fn. 16) the initiative power, preserving its exercise
“[i]f doubts can reasonably be resolved in favor of [its] use.” (Associated Home
Builders, at p. 591.) While the concurring and dissenting opinion acknowledges
our precedent in passing (conc. & dis. opn., post, at p. 14), it nonetheless begins its
analysis looking for evidence that article XIII C, section 2 –– which makes no
reference to initiatives –– evinces an intent to exempt initiatives from its
provisions (conc. & dis. opn., post, at p. 1). This approach relegates our previous
conclusions regarding the initiative power to the status of an afterthought, likely to
hold little relevance in this case or perhaps any case.
24
In reaching a contrary conclusion, the concurring and dissenting opinion
starts from the premise that the electors must have wanted to tie their own hands
with respect to the imposition of local taxes. This very premise then undergirds
the opinion’s reading of the term “local government” as necessarily including the
electorate. Nothing supports this premise, despite the opinion’s confident
assertion –– as if it were discussing the attitudes of an individual well known only
to select observers –– that “[w]hether a local government tax has been enacted by
voter initiative or by vote of the city council is not article XIII C’s concern.”
(Conc. & dis. opn., post, p. 18). Defending this assertion is difficult for the simple
reason that nothing in the text of article XIII C, or its context, supports the
conclusion that the term “local government” was meant to encompass the
electorate. Any reasonable construction of article XIII C, section 2 must take into
account the robust importance of the initiative power in other constitutional
provisions — irrespective of whether or not the “voter initiative” is “article XIII
C’s concern” (conc. & dis. opn., post, p. 18). (See, e.g., Associated Home
Builders, supra, 18 Cal.3d at p. 591 [describing the importance of the initiative
power].)
In playing down the importance of giving full effect to these provisions, the
concurring and dissenting opinion turns our case law on its head — by essentially
demanding evidence that the electors intended to exempt the initiative power from
article XIII C, section 2 as a precondition for preserving that power in
unencumbered form. (E.g., conc. & dis. opn., post, pp. 1-2, 9.) To impose this
requirement would be a stark departure from our precedent, and one impossible to
square with our decisions on the power of initiative. (E.g., DeVita, supra, 9
Cal.4th at pp. 785-786 [refusing to infer limits]; Rossi, supra, 9 Cal.4th at p. 696
[emphasizing breadth of initiative power and looking for express evidence of
intent to limit].) Our analysis in those decisions consistently begins with the
25
presumption that the initiative power is not constrained, then searches for clear
evidence suggesting that electors could reasonably be understood to have imposed
restrictions upon their constitutional power. (E.g., Kennedy Wholesale, supra, 53
Cal.3d at p. 253 [concluding the plaintiff failed to identify evidence of intent to
limit initiative power]; DeVita, at pp. 785-786; Rossi, at pp. 695-696.)
What the City maintains is that our interpretation, whatever its merits
otherwise, would create a kind of loophole in article XIII C, section 2. A
hypothetical city council, it suggests, could conceivably collude with a public
employee union to place a levy on the ballot as a means of raising revenue for a
goal supported by both. To repay the union for campaign support, or simply
because the union and council agree on the policy, the council accepts the union’s
contract proposal –– which will be funded by increasing a utility tax. Under our
interpretation, the City reasons, the city council could meet with the union, and the
union could mobilize city employees to collect signatures on an initiative
proposing the tax increase. Once enough signatures are collected — 15 percent
under section 9214 or 10 percent under section 9215 — the city council could
simply adopt the ordinance without submitting the tax increase to the voters.
(§§ 9214, subd. (a), 9215, subd. (a).) Thus, the city council could effectively skirt
article XIII C, section 2’s command that “[n]o local government may impose,
extend, or increase any general tax unless and until that tax is submitted to the
electorate and approved by a majority vote.” (Ibid.) These facts are not presented
here, and we decline to take up what would happen should they arise.
D.
The sequence of the City’s actions with respect to the initiative causes us to
make a final observation. Upon receiving a petition signed by not less than 15
percent of the city’s voters, section 9214 obliges a city to (1) adopt the ordinance
without alteration; (2) immediately order a special election; or (3) order an agency
26
report and, once the report is presented to the city council, adopt the ordinance or
order a special election. These deadlines are mandatory (Tuolumne Jobs, supra,
59 Cal.4th at p. 1038), and the City erred when it ignored them. Its unilateral
determination that the proposed initiative constituted a general tax and was
therefore governed by article XIII C, section 2 did not relieve it of its obligation to
adhere to section 9214 — particularly given that the initiative purported to propose
a “fee” and was thus, facially at least, not a tax measure. In the future, cities
should follow section 9214 and order a special election. At that point, either the
city or other interested parties may pursue any appropriate legal challenge to the
measure either in the pre-, or more likely, postelection context. (E.g., Legislature
v. Deukmejian, supra, 34 Cal.3d at pp. 665-666 [discussing the propriety of
preelection review].)
27
III.
Multiple provisions of the state Constitution explicitly constrain the power
of local governments to raise taxes. But we will not lightly apply such restrictions
on local governments to voter initiatives, “ ‘one of the most precious rights of our
democratic process.’ ” (Associated Home Builders, supra, 18 Cal.3d at p. 591.)
Only by approving a measure that is unambiguous in its purpose to restrict the
electorate’s own initiative power can the voters limit such power, tying themselves
to the proverbial mast as Ulysses did. Unless a provision explicitly constrains the
initiative power or otherwise provides a similarly clear indication that its purpose
includes constraining the voters’ initiative power, we will not construe provisions
as imposing such limitations. (See Kennedy Wholesale, supra, 53 Cal.3d at
p. 252.) We conclude that article XIII C, section 2, subdivision (b) does not limit
voters’ power to propose and adopt initiatives concerning taxation. Neither the
provision’s text nor anything else shedding light on its intended purpose support a
contrary conclusion. We affirm the Court of Appeal’s judgment in its entirety.
CUÉLLAR, J.
WE CONCUR:
CANTIL-SAKAUYE, C. J.
WERDEGAR, J.
CHIN, J.
CORRIGAN, J.
28
CONCURRING AND DISSENTING OPINION BY KRUGER, J.
Having gathered the necessary number of signatures, proponents of a local
voter initiative requested that the city council of the City of Upland order a special
election to present the initiative to the voters. The city council refused, concluding
that one of the initiative’s provisions imposed an “annual Licensing and Inspection
fee” that was in fact a disguised general tax, and, as such, required voter approval
at a general, rather than special, election under article XIII C of the California
Constitution. (Cal. Const., art. XIII C (article XIII C), added by Prop. 218,
approved by voters, Gen. Elec. (Nov. 5, 1996) (Proposition 218).) I agree with the
majority that the city council erred in refusing the request, though for a narrow
reason: The city council should have put the initiative on the special election
ballot and left questions about the validity of the fee to be sorted out in the courts.
That conclusion would suffice to dispose of this case, which, as the majority says,
is now moot in any event. (See maj. opn., ante, at p. 5.)
The bulk of the majority opinion, however, addresses the separate question
whether article XIII C, which imposes certain requirements for voter approval of
local government taxes, applies at all to taxes enacted by initiative. The majority
says no: In the majority’s view, when article XIII C speaks of taxes imposed by
local government, it means taxes enacted by the city council or other public
officials; local taxes enacted by voter initiative are exempt. (See maj. opn., ante,
at p. 23.) But article XIII C contains no such exemption, and I see no basis for
1
interpreting it as though it did. It is a basic tenet of the system that when a city’s
voters enact legislation by initiative, they do so “by and for” the city itself. (Elec.
Code, § 9200.) A tax passed by voter initiative, no less than a tax passed by vote
of the city council, is a tax of the local government, to be collected by the local
government, to raise revenue for the local government. None of this could have
been lost on the electorate that, also by initiative, amended the California
Constitution to set ground rules for voter approval of local taxes.
I concur in the judgment and in part II.D. of the majority opinion. I
respectfully dissent from the rest.
I.
A.
Proposition 218, which added articles XIII C and XIII D to the California
Constitution, is one of a series of voter initiatives imposing certain limitations on
state and local governments’ taxing authority. (See Jacks v. City of Santa Barbara
(2017) 3 Cal.5th 248, 258–260 (Jacks).) Since the first of these initiatives was
passed in 1978, a recurring theme has been the expansion of voter approval
requirements for the imposition of taxes. (See ibid.) Proposition 218, passed for
the stated purposes of “ ‘limiting local government revenue and enhancing
taxpayer consent’ ” (Jacks, at p. 267), is no exception to the rule.
Borrowing and extending requirements introduced in previous voter
initiatives, Proposition 218 set out two basic requirements for voter approval of
local tax levies. (Art. XIII C, § 2; cf. Gov. Code, §§ 53722–53724 [voter approval
requirements of Prop. 62, approved by voters in 1986].) As to general taxes,
article XIII C provides: “No local government may impose, extend, or increase
any general tax unless and until that tax is submitted to the electorate and
approved by a majority vote. . . . The election required by this subdivision shall be
2
consolidated with a regularly scheduled general election for members of the
governing body of the local government . . . .” (Art. XIII C, § 2, subd. (b)
(section 2(b)); see id., § 1, subd. (a) [defining “ ‘[g]eneral tax’ ” as “any tax
imposed for general governmental purposes”].) As to special taxes, article XIII C
provides: “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.” (Id., § 2, subd. (d) (section 2(d)); see id., § 1, subd. (d) [defining
“ ‘[s]pecial tax’ ” as “any tax imposed for specific purposes”].) For purpose of
both provisions, the term “ ‘[l]ocal 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.” (Id., § 1, subd. (b).)
Both of these voter approval requirements differ from the statutory rules
that ordinarily govern passage of local voter initiatives.1 If a local ordinance is
proposed by an initiative petition with the necessary level of support, the initiative
must, on request, be presented to the voters at a special (rather than general)
election. (See Elec. Code, §§ 1405, subd. (a), 9214; see also id., §§ 9116, 9310.)
Such a proposed local ordinance ordinarily becomes law if a majority of the voters
(rather than a supermajority) votes in favor of it. (See id., § 9217; see also id.,
§§ 9122, 9320.)2
1 The Elections Code provides initiative procedures for general law cities,
counties, and districts. Charter cities may set their own initiative procedures. (See
Cal. Const., art. II, § 11, subd. (a); Elec. Code, § 9247; e.g., S.F. Charter,
§ 14.101.) The City of Upland is a general law city subject to the general statutory
requirements. (See Elec. Code, § 9200 et seq.)
2 A city council or other local legislative body may also directly adopt an
ordinance proposed by initiative petition; if it does so, it is not required to submit
the proposed ordinance to the voters. (See Elec. Code, §§ 9214–9215; see also id.,
§§ 9116, 9118, 9310–9311.) Like the majority, I set to one side this method of
enactment, which is not at issue in this case (see maj. opn., ante, at pp. 26–27),
3
We are here specifically concerned with the rule in article XIII C,
section 2(b) requiring that general taxes be approved by the voters at a general
election. The rule, by its terms, applies to taxes imposed by “local
government” — a term defined to include cities and counties, as well as other
local and regional governmental entities.3 The question is whether a tax is
imposed by local government — here, the City of Upland — when the tax has
been enacted by voter initiative, rather than by the city council directly. The
answer, as I see it, is yes: A local government tax is a local government tax, no
matter how it may have been legislated into being.
The argument to the contrary depends on the idea that there is for these
purposes some relevant difference between a tax enacted by the City of Upland
and a tax enacted by City of Upland voters exercising their initiative power. There
is not. The initiative power is the people’s power to enact the legislation by which
they will be governed in the name of the state or relevant political subdivision.
(See Professional Engineers in California Government v. Kempton (2007) 40
Cal.4th 1016, 1042 (Professional Engineers); see also, e.g., American Federation
of Labor v. Eu (1984) 36 Cal.3d 687, 695 [the voter initiative “is not a public
opinion poll. It is a method of enacting legislation”].) This means that when a
city’s voters exercise the power of initiative, they do not act merely as members of
(footnote continued from previous page)
and instead focus on ordinances proposed by initiative petition and submitted to
the voters for approval. As I read it, however, article XIII C, section 2(b) applies
equally to all local general taxes, without regard to the manner of proposal or
enactment.
3 By its terms, article XIII C applies to charter cities and other local
governments alike (art. XIII C, § 1, subd. (b)), whereas the Elections Code’s
initiative procedures do not necessarily apply to charter cities (see ante, fn. 1).
4
the public (cf. maj. opn., ante, at p. 11), but as legislators; in this capacity, their
power to legislate is “generally co-extensive with the legislative power of the local
governing body” (DeVita v. County of Napa (1995) 9 Cal.4th 763, 775 (DeVita)).
When the electorate of a city exercises the power of initiative, it exercises the
legislative authority of the city, to enact laws “by and for [the] city.” (Elec. Code,
§ 9200.) And if the initiative succeeds, the ordinance “become[s] a valid and
binding ordinance of the city,” just as an ordinance enacted by the city council
would. (Id., § 9217.)
These concepts are not remotely novel, and they point to a simple answer
here. It is, as a matter of fact, much the same answer as the one this court gave
more than a century ago, when it was asked to consider whether a constitutional
provision granting legislative authority to “ ‘[a]ny county, city, town, or
township’ ” included the exercise of the initiative power by the voters of the City
of Los Angeles. (In re Pfahler (1906) 150 Cal. 71, 80 (Pfahler), quoting Cal.
Const., art. XI, former § 11.)4 The court held that it did. In so holding, the court
made short work of the argument that the provision’s reference to a “ ‘city’ ”
“must be construed as meaning some board or officers of the city.” (Pfahler, at
p. 81 [“Manifestly, there is nothing in this claim.”].) The city, the court
concluded, instead refers to the municipal corporation and body politic. On that
understanding, the court concluded that the California Constitution’s reference to
lawmaking by the “city” encompassed the “direct exercise of legislative power by
the people” of the City of Los Angeles. (Id. at p. 83; see id. at pp. 81–84.)
4 Pfahler, supra, 150 Cal. 71, predated the 1911 amendment to the California
Constitution reserving the people’s powers of initiative and referendum. The
initiative at issue had been enacted pursuant to a provision of the charter of the
City of Los Angeles.
5
So too here, when article XIII C speaks of taxes imposed by “local
government” — a term it defines to include “city” — the reference is naturally
read to include local taxes enacted by voter initiative, just as it includes taxes
enacted by vote of the city council or of any other legislative or governmental
body. And that reading makes perfect sense in the context of Proposition 218 —
an initiative passed for the stated purposes of “ ‘limiting local government revenue
and enhancing taxpayer consent’ ” (Jacks, supra, 3 Cal.5th at p. 267) — and
particularly in the context of article XIII C (entitled “Voter Approval for Local
Tax Levies”), a provision we have previously described as applicable to “all local
taxes” (Jacks, at p. 256). After all, a local tax law passed by initiative is still a
local tax law, just like any law passed by elected officials — a law of the local
government, to be enforced by local government, for the purpose of raising
revenue for local government.
B.
The majority’s primary response is that the term “local government” is an
“unusually oblique” way of referring to voters, if that is what article XIII C was
meant to do. (Maj. opn., ante, at p. 13.) The majority also points to article XIII C’s
definition of “ ‘[l]ocal government,’ ” which includes the catchall phrase “any other
local or regional governmental entity” (art. XIII C, § 1, subd. (b)), and to the
definition of the term “ ‘[a]gency’ ” in article XIII D, which was also added by
Proposition 218 and which incorporates article XIII C’s definition of local
government (maj. opn., ante, at pp. 13–15, citing art. XIII D, § 2, subd. (a)).
According to the majority, it is “improbable” that Proposition 218 voters would
have chosen the words “local government,” “local or regional governmental
entity,” and “agency” to refer to the voters acting by initiative. (Maj. opn., ante, at
p. 15; see id. at pp. 13–15.) In the majority’s view, these terms are more readily
6
read as “referring to a locality’s governing body, public officials, and bureaucracy.”
(Id. at p. 11; see id. at pp. 11–15.)
As I see it, there is nothing improbable about the conclusion that when
article XIII C says “[n]o local government may impose” taxes without satisfying
certain voter approval requirements, it means that all local government taxes must
satisfy these requirements. (Art. XIII C, § 2(b).) The power to tax is a power of
government. (See Watchtower B. & T. Soc. v. County of L.A. (1947) 30 Cal.2d
426, 429; see also Cal. Const., art. XI, § 11 [the Legislature may not delegate the
power to levy taxes to a private person].) And inasmuch as only government can
impose taxes, it should not be surprising that Proposition 218 is directed to
government and “governmental entit[ies].” (Art. XIII C, § 1, subd. (b).)
But equally to the point, Proposition 218’s enactors did not leave us
guessing about what they meant by the term “local government”: The term is
defined, and the definition includes, as relevant here, “city.” (Ibid.) It is true, as
the majority emphasizes, that the voters are not the city itself. But neither is the
city council. (See Pfahler, supra, 150 Cal. at p. 81 [“The common council or
other local legislative body and other charter officers do not constitute the ‘city,’
but are merely agents or officers of the city.”]; id. at pp. 85–86 [rejecting “the
erroneous assumption . . . that the city council is the ‘city’ ”].) Both bodies are,
however, empowered to exercise the legislative authority of the city, and the
products of their efforts equally become the city’s law. If a tax enacted by the city
council is a tax imposed by the city, so too is a tax enacted by the voters on the
city’s behalf.
As should by now be clear, this understanding of article XIII C does not
require us to conclude, as the majority suggests, that the term “local government”
is simply a synonym for “voters,” or vice versa. We likely would not, for
example, read a provision requiring local government to submit a “local coastal
7
program for Coastal Commission approval” as calling for citizen drafting sessions
in local polling places. (Maj. opn., ante, at p. 11, fn. 11.) But what this example
illustrates is a point about the allocation of power and responsibility within local
government, not any fundamental incompatibility in terms. We do not read the
coastal program provision in this manner, not because we believe the voter
initiative process is categorically outside the bounds of local government, but
because we understand that the voter initiative process is not the sum total of local
government; many local government functions (including, typically, the drafting
of local coastal programs) are discharged by other means.
The case before us, by contrast, concerns the government’s power to
establish taxes — a power that is shared by the people and their elected
representatives. (See Rossi v. Brown (1995) 9 Cal.4th 688, 699–705 (Rossi); maj.
opn., ante, at p. 9.) The question is whether a tax law of a local government —
here, the City of Upland — is a tax imposed by the local government, even though
it happens to have been enacted by vote of the electorate rather than of the city
council. (Art. XIII C, § 2(b).) To answer that question in the affirmative in no
way implies that the terms “local government,” “local or regional governmental
entity,” and “agency” are interchangeable with “voters.” (See maj. opn., ante, at
pp. 13–15.) It simply requires reaffirmation of the settled principle that when the
voters act in their legislative capacity through the initiative process, they enact
legislation “by and for” the governmental entity in question. (Elec. Code, § 9200;
see id., § 9217; see also id., §§ 9100, 9125, 9300, 9323.)5
5 Elections Code section 9200 provides in full: “Ordinances may be enacted
by and for any incorporated city pursuant to this article.” The majority says its
reasoning is “compatible with section 9200” because “the electorate enacts an
ordinance, via initiative, for the city.” (Maj. opn., ante, at p. 13.) This response
simply ignores the first preposition (“by”). If what the majority means to suggest
8
The majority also relies on section 3 of article XIII C, which provides that
“the initiative power shall not be prohibited or otherwise limited in matters of
reducing or repealing any local tax, assessment, fee or charge,” and “[t]he power
of initiative to affect local taxes, assessments, fees and charges shall be applicable
to all local governments . . . .” (Art. XIII C, § 3; see maj. opn., ante, at p. 13.) But
section 3 cuts against, not in favor of, the majority’s conclusion. It confirms that
Proposition 218’s enactors were aware of “[t]he power of initiative to affect local
taxes,” and, moreover, understood the connection between the initiative power and
the conduct of local government. Had the enactors intended to exempt voter
initiatives from article XIII C, section 2’s restrictions on new or increased local
government taxes, it would have been easy enough to say so. That the enactors
provided for no such exemption, despite clearly signaling their awareness of “[t]he
power of initiative to affect local taxes,” is strong evidence that no such exemption
exists.
C.
The majority attempts to derive support for its voter initiative exemption
from various extratextual considerations, but its efforts are unavailing. The
majority begins by observing that Proposition 218’s ballot materials do not say, in
terms, that the voter approval requirements in article XIII C, section 2 were
designed to apply to voter initiatives, and at various points indicate that
(footnote continued from previous page)
is that some ordinances enacted under that article of the Elections Code are
enacted “by” a city, while others may be enacted “for” a city by some group of
third party actors, it suffices to observe that no such distinction appears on the face
of the statute, and long-held understandings of the nature of the initiative power
are to the contrary. (See Pfahler, supra, 150 Cal. at p. 81.)
9
Proposition 218 was concerned with “politicians” raising taxes. (Maj. opn., ante, at
pp. 15–17.) These references are not surprising, given that most local tax increases
have, indeed, been initiated by elected officials, and few political campaigns are
hampered by inveighing against “politicians.” But the ballot materials make clear
that the overarching purpose of Proposition 218 was more generally to “constrain
local governments’ ability to impose fees, assessments, and taxes.” (Ballot Pamp.,
Gen. Elec. (Nov. 5, 1996) analysis of Prop. 218 by Legis. Analyst, p. 73.) And the
arguments in favor of Proposition 218 also refer generally to guaranteeing the right
to vote on local taxes and fees, with the particulars depending on the type of
exaction at issue. (See, e.g., Ballot Pamp., argument in favor of Prop. 218, at p. 76
[“Proposition 218 guarantees your right to vote on local tax increases”]; id.,
rebuttal to argument against Prop. 218, at p. 77 [“Proposition 218 expands your
voting rights. It CONSTITUTIONALLY GUARANTEES your right to vote on
taxes.”].) Nothing in the ballot materials suggests that Proposition 218’s enactors
intended to create an exemption for the subset of local taxes that are enacted by
voter initiative.
As the majority acknowledges, despite the broad statements in the ballot
materials concerning the right to vote on taxes, article XIII C does more than
simply secure the right to vote on taxes (a right voters generally have, with or
without article XIII C, when a tax is proposed by initiative petition).
Article XIII C secures the right to vote in a particular manner, and defines the
applicable margin of victory. In particular, article XIII C, section 2(b) secures the
right to vote on local general taxes at a general, rather than special, election, and
section 2(d) provides that the imposition of local special taxes requires a two-
thirds supermajority, rather than a simple majority. Article XIII C thus secures for
10
the voters a set of rights concerning local taxes that they might not otherwise have
under the usual rules governing passage of voter initiatives.6
The majority suggests in passing that the specific aim of article XIII C,
section 2(b)’s general election requirement may be one specific to taxes proposed
by elected officials: that is, to ensure that politicians are required to face the
voters on the same ballot as the taxes they have proposed. (Maj. opn., ante, at
p. 16, fn. 14.) Perhaps. Or perhaps the aim is to ensure that general taxes are
“voted on in general elections with their traditionally larger turnouts, not done in a
corner in the middle of January in an odd-numbered year.” (Jeffrey v. Superior
Court (2002) 102 Cal.App.4th 1, 8 [“The obvious import of Government Code
section 36502 is that a local term-limits initiative should not be sneaked through
the electorate by scheduling it in a special municipal election where the turnout
percentage is unlikely to reach double digits.”].) Certainly the proponents of the
6 The majority suggests that construing article XIII C, section 2(b) to apply
to initiative measures “would work an implied repeal of [Elections Code]
section 9214, something against which we have a strong presumption.” (Maj.
opn., ante, at p. 23.) That is, according to the majority, section 2(b)’s requirement
of a general election for a local general tax would effectively override a city
council’s statutory duty to call a special election for certain ordinances proposed
by initiative petition. But the way to harmonize these provisions is to recognize
that, while Elections Code section 9214 sets out the general requirements for local
initiatives, the more specific requirement of article XIII C, section 2(b) applies
when an initiative measure — or a provision thereof, if severable — concerns
general taxes. As a technical matter, a city council can fulfill its duty to call a
special election under section 9214 even if the measure voted on at the special
election cannot go into effect because it imposes, extends, or increases a general
tax, and must be approved by the voters at a general election under section 2(b).
But to the extent there is any conflict, section 2(b) must control, since
article XIII C applies “[n]otwithstanding any other provision of th[e] Constitution”
(art. XIII C, § 2), including the provision allowing the Legislature to prescribe
procedures for local initiatives (Cal. Const., art. II, § 11, subd. (a)). (Cf.
Professional Engineers, supra, 40 Cal.4th at pp. 1037–1048.)
11
initiative here appear to regard the requirement as a meaningful constraint on their
ability to enact the proposed legislation; otherwise the case would not be before
us. We cannot, in any event, simply dismiss article XIII C, section 2(b)’s general
election requirement as beside the point in the context of local taxes enacted by
voter initiative (and I do not understand the majority to seriously contend
otherwise).
The critical language we are construing here, moreover, appears in
essentially identical form in article XIII C, section 2(d), which requires that special
taxes be approved by a two-thirds vote of the electorate. That provision, in
language that closely parallels that of section 2(b), provides that “[n]o 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.” (Art. XIII C,
§ 2(d).) If a local tax enacted by voter initiative is not a tax “impose[d]” by “local
government,” as the majority insists, then from here on out, special taxes can be
enacted by a simple majority of the electorate, as long as proponents can muster
the necessary quantum of support to require consideration of the measure. (See
Elec. Code, §§ 9122, 9217, 9320 [a proposed initiative measure is enacted if
approved by a majority of the voters]; see also, e.g., id., §§ 9116, 9118, 9214,
9215, 9310, 9311 [ballot thresholds for counties, general law cities, and districts];
S.F. Charter, § 14.101 [ballot thresholds for one charter city].) It is unlikely that
Proposition 218’s enactors, who deliberately chose a supermajority requirement
for the imposition of special taxes, intended such a result.7
7 The majority opinion contains language that could be read to suggest that
article XIII C, section 2(d) should be interpreted differently from section 2(b).
(See maj. opn., ante, at p. 20 [noting that the enactors of Prop. 218 “explicitly
imposed a procedural . . . requirement on themselves in” art. XIII C, § 2(d), which
“is evidence that they did not implicitly” do so in § 2(b)].) I see no basis for
12
Finally, even if any doubts might remain after considering article XIII C’s
text, purposes, and history, those doubts ought to be resolved in favor of applying
article XIII C’s requirements to the enactment of new city taxes by voter initiative.
Proposition 218 instructs that its provisions must “be liberally construed to
effectuate its purposes of limiting local government revenue and enhancing
taxpayer consent.” (Prop. 218, § 5, reprinted at Historical Notes, 2B West’s Ann.
Cal. Const. (2013 ed.) foll. art. XIII C, § 1, p. 363.) The majority instead adopts a
cramped interpretation of article XIII C that undermines, rather than effectuates,
those purposes.
II.
Although the majority insists that its interpretation reflects the better
reading of the constitutional text, it implicitly acknowledges otherwise when it
invokes a new clear statement rule to guide its interpretation: “Unless a provision
explicitly constrains the initiative power or otherwise provides a similarly clear
indication that its purpose includes constraining the voters’ initiative power, we
will not construe provisions as imposing such limitations.” (Maj. opn., ante, at
p. 28.) In other words, according to the majority, it is not enough that
article XIII C imposes generally applicable voter approval requirements for the
(footnote continued from previous page)
construing the two provisions differently. Sections 2(b) and 2(d) are, in all
pertinent respects, indistinguishable. They are written in almost identical
language, each providing that “[n]o local government may impose, extend, or
increase” a particular kind of tax “unless and until that tax” is approved in a
particular manner. (Art. XIII C, § 2(b) & (d).) The same definition of “local
government” applies to both subdivisions. (Id., § 1.) If the majority is unwilling
to accept the logical consequences of its interpretation of article XIII C, its
reservations should cause it to reexamine its position; simply avoiding the
implications of its approach will not do.
13
enactment of local taxes; the law must contain a “clear statement or equivalent
evidence” that the requirements are meant to apply to local taxes enacted by voter
initiative. (Maj. opn., ante, at p. 24.)
What we have said of other such clear statement rules is equally true here:
It is not clear “by what authority” the majority proposes to “dictate to legislative
drafters the forms in which laws must be written to express the legislative intent.”
(In re Pedro T. (1994) 8 Cal.4th 1041, 1048–1049.) The majority attempts to
draw support for its clear statement rule from the general background principle
that the initiative right must be “ ‘jealously guard[ed],’ ” and that doubts
accordingly must generally be resolved in favor of the exercise of the right.
(Associated Home Builders etc., Inc. v. City of Livermore (1976) 18 Cal.3d 582,
591 (Associated Home Builders); see maj. opn., ante, at pp. 6–9.) I have no
quarrel with this general principle. But there is an important difference between a
rule that resolves “reasonable doubts” in favor of preserving the right of initiative
(Rossi, supra, 9 Cal.4th at p. 711) — that is, the rule established by our cases —
and the majority’s novel clear statement rule, which would authorize courts to
override the most natural reading of an across-the-board voter approval
requirement simply because there are no “explicit reference[s] to the initiative
power” or “sufficiently unambiguous statements . . . in ballot materials” (maj.
opn., ante, at p. 23).
The cases on which the majority relies do not support the heightened
standard it applies here. In most of those cases, this court declined to extend
procedural requirements obviously aimed at the conduct of a city council or other
governing body because the requirements were incompatible with the initiative
power — not simply for want of an “explicit reference” to an intent to place
parallel limitations on professional legislators and the electorate. (Maj. opn., ante,
14
at p. 23.) In Associated Home Builders, supra, 18 Cal.3d 582, for example, this
court held that state zoning laws imposing notice and hearing requirements on
certain ordinances had been drafted “with a view to ordinances adopted by vote of
the city council,” and did not apply to initiative measures, because the procedural
requirements would “effectively bar[] initiative action” and thus “would be of
doubtful constitutionality.” (Id. at pp. 594, 595.) Similarly, in DeVita, supra, 9
Cal.4th 763, this court held that general plans can be amended by initiative
without meeting the public hearing and consultation requirements applicable to
local governing bodies, because those requirements would be incompatible with
initiative procedures. (Id. at pp. 785–787; see also Tuolumne Jobs & Small
Business Alliance v. Superior Court (2014) 59 Cal.4th 1029, 1038 [direct adoption
of a proposed initiative measure by a city council is not subject to CEQA review
because “if prior CEQA review is required, a city could never adopt a voter
initiative . . . if that initiative had any potential impact on the environment”].) In
each case, the procedural requirements at issue were clearly aimed at governing
bodies and would have been incompatible with initiative procedures; the court
declined to infer from the existence of these requirements an intent to extinguish
the initiative power altogether.
Here, by contrast, no similar considerations are present. Article XIII C,
section 2(b) does not “squelch voters’ initiative rights,” as the majority claims.
(Maj. opn., ante, at p. 13.) It does not constrain the voters’ ability to propose
ordinances by initiative petition, and it expressly envisions a specific avenue for
voter participation — approval at a general election. Section 2(b) does not
“ ‘place an insurmountable obstacle in the path of the initiative process and
effectively give legislative bodies the only authority to enact this sort of . . .
ordinance.’ ” (DeVita, supra, 9 Cal.4th at p. 786.)
15
Nor does Kennedy Wholesale, Inc. v. State Bd. of Equalization (1991) 53
Cal.3d 245 support the majority’s heightened standard. In Kennedy Wholesale, the
plaintiff argued that article XIII A, section 3 of the California Constitution, which
requires state tax increases to be approved by a two-thirds vote of the Legislature,
barred initiatives raising state taxes or, in the alternative, required initiatives
raising state taxes to be approved by an analogous two-thirds vote of the
electorate. This court rejected both arguments. As to the first argument, the court
found the language ambiguous, and declined to construe it to impliedly repeal the
reserved constitutional right of initiative. (Kennedy Wholesale, at pp. 249–251.)
As to the second argument, the court noted that the supermajority voting
requirement was addressed expressly and exclusively to the Legislature, and, if
applied to initiatives, would expressly conflict with another constitutional
provision providing for a majority vote. (Kennedy Wholesale, at pp. 251–252,
citing Cal. Const., art. II, § 10, subd. (a).) Moreover, with respect to both
arguments, the court stated: “For the voters to have limited their power in the
manner that plaintiff suggests would . . . have made no sense,” because “it would
still be possible for a simple majority of voters to raise taxes by amending
section 3.” (Id. at p. 250.)
Here, again, article XIII C, section 2(b) is not explicitly aimed at governing
bodies and is not plausibly understood to eliminate the power of the voters to
impose, extend, or increase local general taxes by initiative. Construing
section 2(b) to apply to initiatives would not expressly conflict with any other
constitutional provision,8 nor is there anything nonsensical about this construction.
8 As the majority points out, construing article XIII C, section 2(b) to apply
to initiative measures may conflict with statutory provisions (see maj. opn., ante,
at p. 23), but this conflict is much less of a cause for concern (see ante, fn. 6).
16
While statewide voters can override a constitutional provision by majority vote
(Kennedy Wholesale, at p. 250), local voters acting by initiative cannot do the
same.
If precedent does not explain the majority’s clear statement rule, what
does? Ultimately, the majority tells us, the rule is for the voters’ own good: to
prevent voters from too readily “tying themselves to the proverbial mast as
Ulysses did” to resist the siren song of power. (Maj. opn., ante, at p. 28; see id. at
p. 2.) And so in the name of cutting the voters loose from their self-imposed
restraints, the majority thwarts the evident intent of the voters who passed
Proposition 218 for the sake of governing all local taxes, not just some.
III.
The final part of the majority opinion does make one point with which I
agree. (Maj. opn., ante, at p. 27.) This case arose because plaintiffs submitted a
valid initiative petition containing signatures of at least 15 percent of the voters of
the City of Upland, which obligated the city council either to adopt plaintiffs’
proposed medical marijuana ordinance outright or to submit it to the voters at a
special election. (Elec. Code, § 9214.) The city council did neither; it instead
unilaterally determined that the annual licensing and inspection fee included in the
proposed ordinance, if enacted, would be a new general tax, such that the measure
had to be voted on at a general, not special, election. This was not the city
council’s determination to make, and plaintiffs were entitled to a writ of mandate
compelling the city council to order a special election for the purpose of
considering the proposed initiative measure. (See, e.g., Farley v. Healey (1967)
67 Cal.2d 325, 327; Blotter v. Farrell (1954) 42 Cal.2d 804, 812–813.) I would
affirm the judgment on that basis alone.
Although I agree with the majority that plaintiffs were entitled to have their
proposed ordinance submitted to the voters at a special election, I cannot agree
17
that approval at a special election would have sufficed if, in fact, the challenged
licensing and inspection fee was a general tax. Article XIII C is a constitutional
restriction on the taxation power of local government, and, by its terms, it applies
to the imposition of all local government taxes. Whether a local government tax
has been enacted by voter initiative or by vote of the city council is not
article XIII C’s concern. Accordingly, while I concur in the majority’s judgment,
I do not join most of its reasoning.
KRUGER, J.
I CONCUR:
LIU, J.
18
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion California Cannabis Coalition v. City of Upland
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 245 Cal.App.4th 970Rehearing Granted
__________________________________________________________________________________
Opinion No. S234148
Date Filed: August 28, 2017
__________________________________________________________________________________
Court: Superior
County: San Bernardino
Judge: David Cohn
__________________________________________________________________________________
Counsel:
Roger Jon Diamond for Plaintiffs and Appellants.
Munger, Tolles & Olson, Ronald L. Olson, Fred A. Rowley, Jr., Mark R. Yohalem and David J. Feder for
Chargers Football Company as Amicus Curiae on behalf of Plaintiffs and Appellants.
Howard Jarvis Taxpayers Foundation, Jonathan M. Coupal, Trevor A. Grimm, Timothy A. Bittle, Brittany
A. Sitzer; Jones & Mayer, James R. Touchstone and Krista MacNevin Jee for Defendants and Respondents.
Nick Bulaich as Amicus Curiae on behalf of Defendants and Respondents.
Dakessian Law, Mardiros H. Dakessian and Ruben Sislyan for California Taxpayers Association as Amicus
Curiae on behalf of Defendants and Respondents.
William A. Adams, Rick A. Waltman and Robert T. Bryson II for Public Interest Advocacy Clinic as
Amicus Curiae on behalf of Defendants and Respondents.
Jack Cohen as Amicus Curiae on behalf of Defendants and Respondents.
Daniel S. Hentschke; Remcho, Johansen & Purcell, Robin B. Johansen; Colantuono, Highsmith & Whatley,
Michael G. Colantuono and Ryan Thomas Dunn for League of California Cities as Amicus Curiae on
behalf of Defendants and Respondents.
Meriem L. Hubbard and Harold E. Johnson for Pacific Legal Foundation as Amicus Curiae on behalf of
Defendants and Respondents.
Nikki E. Dobay, Fredrick J. Nicely and Karl A. Frieden for Council on State Taxation as Amicus Curiae on
behalf of Defendants and Respondents.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Roger Jon Diamond
2115 Main Street
Santa Monica, CA 90405
(310) 399-3259
Timothy A. Bittle
Howard Jarvis Taxpayers Foundation
921 Eleventh Street, Suite 1201
Sacramento, CA 95814
(916) 444-9950