Howard Jarvis Taxpayers Assn. v. City & County of S.F. ( 2021 )

Filed 2/22/21 (unmodified opinion attached)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
HOWARD JARVIS TAXPAYERS
ASSOCIATION, et al.,
Plaintiffs and Appellants, A157983
v. ORDER MODIFYING OPINION
CITY AND COUNTY OF SAN AND DENYING REHEARING
FRANCISCO, [NO CHANGE IN JUDGMENT]
Defendant and Respondent.
(San Francisco County
Super. Ct. No. CGC-18-568657)
BY THE COURT:
It is ordered that the opinion filed January 27, 2021 be modified as
follows:
(1) On page 19, in the paragraph that begins the page, replace the
sentence, “But Howard Jarvis does not contend that a single official’s
sponsorship of or involvement in an initiative gives rise to the inference that
a city or county intentionally circumvented Propositions 13 and 218, or
demonstrates that the official effectively controlled the initiative.” with “But
we fail to see how the sponsorship and involvement of the single official here
1
gives rise to the inference that the City intentionally circumvented
Propositions 13 and 218 or effectively controlled the initiative.”
There is no change in the judgment.
Appellants’ petition for rehearing is denied.
Dated: 02/22/2021 SIMONS, J , Acting P.J.
2
Superior Court of San Francisco County, No. CGC-18-568657, Hon. Ethan P.
Schulman, Judge.
Jonathan M. Coupal, Timothy A. Bittle, Laura E. Dougherty for Plaintiffs
and Appellants.
Eversheds Sutherland, Timothy A. Gustafson, Eric J. Coffill, Alexandra M.
Louderback for Council on State Taxation as Amicus Curiae on behalf of
Plaintiffs and Appellants.
Dennis J. Herrera, City Attorney, Wayne K. Snodgrass for Defendant and
Respondent.
Keker, Van Nest & Peters, Thomas E. Gorman, Nathaniel H. Brown, Ann
Niehaus for Children’s Council of San Francisco and Parent Voices San
Francisco as Amici Curiae on behalf of Defendant and Respondent.
3
Filed 1/27/21 (unmodified opinion)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
HOWARD JARVIS TAXPAYERS
ASSOCIATION et al.,
Plaintiffs and Appellants, A157983
v. (San Francisco County
CITY AND COUNTY OF SAN Super. Ct. No. CGC-18-568657)
FRANCISCO,
Defendant and Respondent.
Howard Jarvis Taxpayers Association, Building Owners and Managers
Association of California, California Business Properties Association, and
California Business Roundtable (collectively, Howard Jarvis) appeal from the
trial court’s judgment rejecting their attempt to invalidate an initiative
passed by a simple majority of voters in the City and County of San Francisco
(City). Howard Jarvis argues the initiative needed a two-thirds majority to
pass. We adopt the reasoning of City and County of San Francisco v. All
Persons Interested in the Matter of Proposition C (2020) 51 Cal.App.5th 703(All Persons) and reject Howard Jarvis’s contention that Proposition 13,
Proposition 218 and the San Francisco City Charter compel a supermajority
vote for passage. In addition, we reject the contention that the participation
of an elected official in the initiative process requires us to distinguish All
Persons. We affirm the judgment.
1
BACKGROUND
After garnering sufficient voter signatures to qualify, a proposed
initiative entitled “Universal Childcare for San Francisco Families Initiative”
was placed on the City’s June 2018 ballot as Proposition C. The initiative
sought to impose an additional tax on certain commercial rents to fund early
childcare and education. Approximately 51 percent of votes cast were in
favor of Proposition C.
In August 2018, Howard Jarvis filed the underlying action to invalidate
Proposition C on the ground that it needed a two-thirds majority vote to pass.
The parties filed cross-motions for summary judgment. The trial court
granted the City’s motion and denied Howard Jarvis’s motion, and
subsequently entered judgment for the City. This appeal followed.
DISCUSSION 1
It is undisputed that Proposition C imposes the type of tax that, if
submitted to the voters by the City’s Board of Supervisors, would need a two-
thirds majority vote to pass. The parties dispute whether a two-thirds
majority is also required where, as here, such a tax is presented to the voters
by a voter initiative. Howard Jarvis contends that a two-thirds majority to
approve voter initiatives is required by: (1) Proposition 13, which added
article XIII A to the California Constitution in 1978; 2 (2) Proposition 218,
1 Howard Jarvis requests we take judicial notice of multiple records, but fails
to state, as required, “[w]hether the matter to be noticed was presented to the
trial court.” (Cal. Rules of Court, rule 8.252(a)(2)(B).) However, the City does
not oppose the request and the records are judicially noticeable, so we grant
the request for judicial notice.
2All further article references are to the California Constitution unless
otherwise specified.
2
which added article XIII C in 1996; and (3) the San Francisco Charter. 3 The
same arguments were recently rejected by our colleagues in Division Four in
All Persons, supra, 51 Cal.App.5th 703, about a different Proposition C in a
different City election. All Persons has since been “fully agree[d] with and
endorse[d]” by City of Fresno v. Fresno Building Healthy Communities (2020)
58 Cal.App.5th 884. We will begin with a discussion of All Persons, and then
consider Howard Jarvis’s arguments that All Persons was wrongly decided
and distinguishable. 4
3An amicus brief in support of Howard Jarvis was filed by the Council on
State Taxation, and one in support of the City was filed by Children’s Council
of San Francisco and Parent Voices San Francisco.
4 Because All Persons issued during the briefing in this case, we asked the
parties to submit supplemental briefs discussing its application. We note
that three of the four appellants we refer to collectively as Howard Jarvis
were the appellants in All Persons (albeit represented by different counsel),
and amicus curie Council on State Taxation also submitted an amicus brief in
All Persons (represented by the same counsel). All Persons issued
approximately two months before Howard Jarvis’s reply brief and Council on
State Taxation’s amicus brief were filed, yet neither of these briefs
acknowledge this directly applicable contrary authority. At oral argument
counsel for Howard Jarvis, who signed the reply brief, admitted she was
aware of All Persons at that time, apologized for failing to address it in the
reply brief, and said she chose not to discuss it because this case was
“different” and “we wanted to focus on the difference.” Substantial portions
of the reply brief are devoted to arguments directly addressed in All Persons
without focusing on the “difference” between the cases. We admonish counsel
to candidly acknowledge such authority in the future. (See Eisenberg et al.,
Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2020) ¶ 9:58
[“Your failure to confront unfavorable relevant holdings will be regarded as
an attempt to deceive and mislead the court.”]; Rules Prof. Conduct, rule
3.3(a)(2) [“A lawyer shall not: [¶] . . . [¶] (2) fail to disclose to the tribunal
legal authority in the controlling jurisdiction known to the lawyer to be
directly adverse to the position of the client and not disclosed by opposing
counsel,” fns. omitted].)
3
I. All Persons
In All Persons, as here, a simple majority of City voters voted in favor
of a voter initiative that would impose a special tax. (All Persons, supra, 51
Cal.App.5th at p. 708.) As here, the City contended a simple majority was
sufficient for passage; challengers argued a two-thirds majority was required.
(Ibid.)
A. Voter Initiatives
All Persons began with background on the initiative power. (All
Persons, supra, 51 Cal.App.5th at p. 709.) “Article II describes the initiative
as ‘the power of the electors to propose statutes and amendments to the
Constitution and to adopt or reject them’ (art. II, § 8), and states that this
power ‘may be exercised by the electors of each city or county under
procedures that the Legislature shall provide’ (art. II, § 11). ‘[A]lthough the
procedures for exercise of the right of initiative are spelled out in the
initiative law, the right itself is guaranteed by the Constitution.’ ” (Ibid.) “A
defining characteristic of the initiative is the people’s power to adopt laws by
majority vote. . . . [¶] Currently, article II, section 10, subdivision (a) provides
that an ‘initiative statute . . . approved by a majority of votes cast thereon
takes effect on the fifth day after the Secretary of State files the statement of
the vote for the election at which the measure is voted on.’ Parallel
legislation for local initiatives is found in the Elections Code . . . .” (Id. at
pp. 709–710.)
All Persons noted, “The initiative power is ‘ “one of the most precious
rights of our democratic process” [citation]. “[It] has long been our judicial
policy to apply a liberal construction to this power wherever it is challenged
in order that the right be not improperly annulled.” ’ [Citation.] Pursuant to
our duty to ‘ “ ‘jealously guard’ ” and liberally construe’ this right, we must
4
‘resolve doubts in favor of the exercise of the right whenever possible.’ ” (All
Persons, supra, 51 Cal.App.5th at p. 710.)
B. Proposition 13
All Persons considered whether article XIII A, section 4 (section 4),
added by Proposition 13, required the special tax initiative be approved by a
two-thirds vote. (All Persons, supra, 51 Cal.App.5th at p. 714.) It began with
the plain language of the provision at issue: “The text of article XIII A,
section 4 states that ‘Cities, Counties and special districts, by a two-thirds
vote of the qualified electors of such district, may impose special taxes,’
except for taxes relating to the value, possession, or sale of real property.
This language is ‘ambiguous in various respects,’ ” including “the phrase
‘Cities, Counties, and special districts,’ ” which could either refer only to
governmental entities or could also include the jurisdiction’s electorate.
(Ibid.) “Facing ambiguous language, we turn to context to interpret section 4,
starting with other provisions of the California Constitution. [Citation.]
Neither section 4 nor any other provision in article XIII A mentions the
initiative power, and this silence drives our analysis. When Proposition 13
was approved by California voters in 1978, the initiative power had long been
ensconced in our Constitution. [Citation.] ‘Initiatives, whether constitutional
or statutory, require only a simple majority for passage.’ [Citation.] . . . If the
voters who approved Proposition 13 (by a majority vote) intended to constrain
the constitutionally protected power of future voters to approve initiatives by
majority vote, would they not have manifested that intent by some express
reference to the initiative power?” (Id. at p. 715.)
All Persons proceeded to discuss a Supreme Court case that considered
whether another provision of Proposition 13 precluded state tax increases
from being enacted by voter initiative or, alternatively, required such
5
initiatives be passed by a two-thirds vote, Kennedy Wholesale, Inc. v. State
Bd. of Equalization (1991) 53 Cal.3d 245 (Kennedy Wholesale). 5 (All Persons,
supra, 51 Cal.App.5th at p. 715.) All Persons noted that Kennedy Wholesale
“found the provision ‘ambiguous when read in the context of the whole
Constitution,’ . . . [and] resolved this contextual ambiguity on the basis of
three factors that apply in our case.” (All Persons, at p. 715.) “First is the
general principle that ‘ “the law shuns repeals by implication,” ’ ” leading
Kennedy Wholesale to decline a construction of Proposition 13 that would
“have impliedly repealed the initiative power reserved to the people in article
IV, section 1 . . . . So, here, we will decline to construe section 4 in a manner
that repeals by implication the initiative power to pass local laws by majority
vote. Nowhere does Proposition 13 mention, let alone purport to repeal, the
constitutionally-backed requirement in the Elections Code that a local
initiative measure take effect when it garners a majority of votes cast.” (All
Persons, at pp. 715–716.) Second, Kennedy Wholesale applied the principle
that, because the initiative power is “ ‘ “ ‘ “one of the most precious rights of
our democratic process,” ’ ” ’ . . . ‘we must “resolve any reasonable doubts in
favor of the exercise of this precious right” ’ . . . . [Citation.] Applying that
principle here, we will reject a construction of article XIII A, section 4 that
hobbles the exercise of the initiative power by lashing it to a supermajority
vote requirement.” (All Persons, at p. 716.) Third, Kennedy Wholesale
considered Proposition 13’s official ballot pamphlet and “found no evidence
there to ‘support[] the inference that the voters intended to limit their own
5 The provision at issue in Kennedy Wholesale provided that “ ‘any changes in
State taxes enacted for the purpose of increasing revenues . . . must be
imposed by an Act passed by not less than two-thirds of all members elected
to each of the two houses of the Legislature . . . .’ ” (Kennedy Wholesale,
supra, 53 Cal.3d at p. 248 [quoting art. XIII A, § 3].)
6
power to raise taxes in the future by statutory initiative.’ [Citation.] ‘To the
contrary,’ Proposition 13 was directed against ‘ “spendthrift politicians” ’ and
in favor of restoring ‘ “government of, for and by the people.” ’ [Citation.]
This populist theme, the Court found, was inconsistent with the claim that
voters intended Proposition 13 to limit their own power to raise taxes by
initiative.” (All Persons, at p. 716.) All Persons reasoned that “[n]one of the
evidence Kennedy Wholesale cites is specific to section 3, as distinct from
section 4, of article XIII A;” moreover, All Persons found “multiple references
. . . that characterize the measure as restricting the ability of ‘local
governments to impose’ taxes, with no suggestion the initiative similarly
constrains local electorates.” (Id. at p. 717.) 6
All Persons also relied on two earlier Supreme Court cases interpreting
section 4: “Decrying the ‘fundamentally undemocratic nature of the
requirement for an extraordinary majority,’ these cases insist that ‘the
language of section 4 must be strictly construed and ambiguities resolved in
favor of permitting voters of cities, counties and “special districts” to enact
“special taxes” by a majority rather than a two-thirds vote.’ ” (All Persons,
supra, 51 Cal.App.5th at p. 718 [discussing City and County of San Francisco
v. Farrell (1982) 32 Cal.3d 47 (Farrell) & Los Angeles County Transportation
Commission v. Richmond (1982) 31 Cal.3d 197 (Richmond)].)
6 All Persons rejected the challengers’ reliance on “dictum” in Kennedy
Wholesale that “section 4’s text was strong evidence that ‘the voters knew
how to impose a supermajority voting requirement upon themselves when
that is what they wanted to do,’ ” reasoning that this “simply acknowledged
section 4’s two-thirds vote requirement that applies when local government
entities—‘Cities, Counties, or special districts’—seek to impose special taxes.
The Court did not say or suggest that the same requirement applies to local
initiatives.” (All Persons, supra, 51 Cal.App.5th at p. 718.)
7
All Persons concluded, “when read in harmony with article II’s
reservation of the initiative power and in light of the evidence of voter intent
discussed above, article XIII A, section 4 is no longer ambiguous. . . . [¶]
Section 4 requires governmental entities to gain the approval of a
supermajority of voters before imposing a special tax. It does not repeal or
otherwise abridge by implication the people’s power to raise taxes by
initiative, and to do so by majority vote. Any such partial repeal by
implication is not favored by the law, which imposes a duty on courts to
jealously guard, liberally construe and resolve all doubts in favor of the
exercise of the initiative power.” (All Persons, supra, 51 Cal.App.5th at
p. 721.)
C. Proposition 218
All Persons next considered whether Proposition 218 imposed a two-
thirds vote requirement. (All Persons, supra, 51 Cal.App.5th at p. 721.)
Again, All Persons began with the relevant provision’s plain language—
“Article XIII C, section 2(d) . . . 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’ ”—and considered the
challengers’ contention that the phrase “local government” included the
electorate exercising its initiative power. (Id. at p. 722.)
All Persons turned to California Cannabis Coalition v. City of Upland
(2017) 3 Cal.5th 924, 940 (California Cannabis), which interpreted the
phrase “local government” in a different provision of Proposition 218. (All
Persons, supra, 51 Cal.App.5th at p. 722.) 7 Not only did the phrase “local
7Article XIII C, section 2(b), provides, in relevant part, “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
8
government” appear in both article XIII C, sections 2(b) and 2(d); but
Proposition 218 provided a single definition of the term. (All Persons, at
p. 722; see art. XIII C, § 1(b) [“ ‘Local 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.”].)
All Persons noted that California Cannabis found 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.’ [Citation.] Even
if this term were ambiguous, the Court concluded, extrinsic evidence
established that the voters who adopted Proposition 218 did not intend
article XIII C, section 2 to burden the initiative power. [Citation.] In terms
that apply equally to the issue before us, the Court held that ‘article XIII C
does not limit the voters’ “power to raise taxes” ’ because 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.’ [Citation.] Summing up its
analytical approach, the Court explained: ‘[w]ithout 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.’ ” (All
Persons, supra, 51 Cal.App.5th at p. 723.)
required by this subdivision shall be consolidated with a regularly scheduled
general election for members of the governing body of the local government
. . . .” California Cannabis considered whether this provision required that a
voter initiative seeking to impose a general tax be submitted at a general,
rather than a special, election. (California Cannabis, supra, 3 Cal.5th at
pp. 930–931.)
9
All Persons found “no basis” to interpret “local government” differently
in the case before it: “[Article XIII C, s]ections 2(b) and 2(d) are found in the
same article and section of the state Constitution. They were both added by
Proposition 218. They employ parallel language and incorporate the exact
same definition of local government set forth in article XIII C, section 1. The
California Cannabis Court held that the definition of ‘local government’ in
article XIII C, section 2 of the Constitution is not ‘broad enough to include the
electorate.’ [Citation.] That holding applies here.” (All Persons, supra, 51
Cal.App.5th at p. 723.)
D. City Charter
Finally, All Persons considered the challengers’ contention that a two-
thirds majority was required by the City’s Charter (the Charter): “The
Charter recognizes voters’ initiative power (S.F. Charter, § 14.100), as long as
an initiative measure is ‘within the powers conferred upon the Board of
Supervisors to enact’ (S.F. Charter, Art. XVII). This means ‘the electorate
has no greater power to legislate than the board itself possesses.’ ” (All
Persons, supra, 51 Cal.App.5th at p. 724.) The challengers “argue from this
principle that the electorate, like the Board of Supervisors, cannot impose
special taxes without the concurrence of two-thirds of the voters. But the
Charter imposes a substantive limit on the initiative power; it does not
import into the initiative process any procedural limitation on Board action,
such as the supermajority vote requirements of article XIII A, section 4 or
article XIII C, section 2(d). [¶] . . . [T]he general rule that the voters’
lawmaking power is coextensive with the Legislature’s power does not extend
to ‘legislative procedures, such as voting requirements’ which ‘cannot
reasonably be assumed to apply to the electorate without evidence that such
was intended.’ [Citation.] . . . Because the [challengers] point to no evidence
10
that the Charter intends procedural limitations on the Board of Supervisors’
legislative powers to apply to local initiatives, their challenge under the
Charter fails.” (Id. at pp. 724–725.) Having rejected all of the contrary
arguments, All Persons held the initiative was validly passed by a simple
majority. (Id. at p. 725.)
II. All Persons Governs This Case
Howard Jarvis attempts to cast doubt on or, in the alternative,
distinguish All Persons. The arguments are unavailing.
A. All Persons Is Well-Reasoned and Sound
Howard Jarvis contends All Persons erred in relying on earlier cases
holding that Proposition 13 should be strictly construed. (See All Persons,
supra, 51 Cal.App.5th at p. 718 [citing Farrell, supra, 32 Cal.3d 47 &
Richmond, supra, 31 Cal.3d 197].) Howard Jarvis points to a Court of Appeal
case stating the passage of Proposition 218, which contains a liberal
construction clause, “effectively reversed these cases.” (Capistrano Taxpayers
Assn., Inc. v. City of San Juan Capistrano (2015) 235 Cal.App.4th 1493, 1513,
fn. 19.) However, California Cannabis, in construing Proposition 218,
directed a strict construction of provisions that would limit the initiative
power: “we resolve doubts about the scope of the initiative power in its favor
whenever possible [citation], and we narrowly construe provisions that would
burden or limit the exercise of that power [citation].” (California Cannabis,
supra, 3 Cal.5th at p. 936.) In any event, All Persons noted the strict
construction principle only after finding numerous other considerations
weighed against construing Proposition 13 to apply to voter initiatives. (All
Persons, at pp. 715–717.)
Howard Jarvis also criticizes All Persons’ construction of Proposition
13’s silence with respect to the initiative power as indicative of voter intent
11
not to restrict such power. (See All Persons, supra, 51 Cal.App.5th at p. 715.)
Howard Jarvis argues we should instead construe the silence as indicating
the opposite intent, because of the multiple statewide initiatives imposing a
supermajority voting requirement and prior cases assuming—without
directly considering the issue—that the requirement applied to voter
initiatives. To do so would ignore California Cannabis’s direction that
“[w]ithout 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.” (California Cannabis, supra, 3 Cal.5th at
p. 931.)
Howard Jarvis contends All Persons misreads Kennedy Wholesale,
arguing Kennedy Wholesale “rejected a literal reading of [article XIII A,]
section 3 because it was contrary to voter intent.” Kennedy Wholesale in fact
found section 3 “ambiguous when read in the context of the whole
Constitution;” only because of that ambiguity was it “appropriate to consider
indicia of the voters’ intent other than the language of the provision itself.”
(Kennedy Wholesale, supra, 53 Cal.3d at pp. 249–250.) All Persons
appropriately conducted the same analysis in construing Proposition 13.
Howard Jarvis also contends All Persons misreads California
Cannabis, arguing the provision construed in California Cannabis “dealt only
with the timing of a general tax election” and the Supreme Court “limited its
ruling to the election timing issue.” Howard Jarvis fails to refute All Persons’
well-reasoned explanation as to why California Cannabis’s construction of
“local government” for purposes of article XIII C, section 2(b) applies equally
to section 2(d). (All Persons, supra, 51 Cal.App.5th at p. 723 [the two
provisions “are found in in the same article and section of the state
12
Constitution,” “were both added by Proposition 218,” “employ parallel
language and incorporate the exact same definition of local government set
forth in article XIII C, section 1”].)
Howard Jarvis argues All Persons did not resolve an argument that the
two-thirds requirement “applies only to the voters,” such that “defining ‘local
government’ is irrelevant.” In fact, All Persons considered a related
argument, that “in [article XIII C,] section 2(d) voters explicitly imposed a
two-thirds vote requirement on themselves. . . . But the . . . argument begs
the question, to what kinds of measures does this two-thirds vote
requirement apply? To answer this question, we follow controlling precedent,
including California Cannabis, which construes the precise language that we
are called upon to interpret here. Under California Cannabis the term ‘local
government’ in article XIII C does not include the voting electorate.” (All
Persons, supra, 51 Cal.App.5th at pp. 723–724.) We further decline Howard
Jarvis’s invitation to ignore the phrase “local government,” which would
contravene the principle that “we generally must ‘accord[] significance, if
possible, to every word, phrase and sentence in pursuance of the legislative
purpose,’ and . . . ‘[a] construction making some words surplusage is to be
avoided.’ ” (People v. Valencia (2017) 3 Cal.5th 347, 357.)
Howard Jarvis notes the constitutional provision for majority approval
of initiatives applies only to statewide initiatives, and majority approval of
local initiatives is provided by statute. (See art. II, § 10, subd. (a) [“An
initiative statute or referendum approved by a majority of votes cast thereon
takes effect on the fifth day after the Secretary of State files the statement of
the vote for the election at which the measure is voted on . . . .”]; All Persons,
supra, 51 Cal.App.5th at p. 710 [quoting art. II, § 10, subd. (a) and noting
“[p]arallel legislation for local initiatives is found in the Elections Code;
13
section 9217 provides that ‘if a majority of the voters voting on a proposed
ordinance vote in its favor, the ordinance shall become a valid and binding
ordinance of the city’ ”].) But Howard Jarvis fails to explain why this compels
the conclusion that the two-thirds requirement applies to voter initiatives.
Notably, the constitutional initiative provisions were also silent about the
procedural restriction considered in California Cannabis. (California
Cannabis, supra, 3 Cal.5th at pp. 934–935 [discussing statutes providing for
initiatives to be submitted at special elections].) The absence of
constitutional initiative provisions governing the matter did not prevent the
Supreme Court from concluding that applying Proposition 218’s procedural
restriction to voter initiatives would be “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.”
(California Cannabis, at p. 931.) The absence of a constitutional provision
expressly authorizing majority approval of local voter initiatives is
immaterial.
B. Neither Boling Nor Rider Compel a Different Result
Howard Jarvis argues this case is distinguishable from All Persons
because of the involvement of an elected official in the voter initiative
process. Howard Jarvis points to the undisputed facts that a member of the
City’s Board of Supervisors (Board) was the proponent of Proposition C,
submitted the written “Notice of Intent to Circulate Petitions” for Proposition
C, turned in the signed initiative petition pages, signed ballot arguments in
favor of Proposition C, and used his “Supervisor” title and City Hall address
for various documents related to Proposition C. In addition, two ordinances
nearly identical to Proposition C were pending before the Board in early
2018, around the time of Proposition C’s qualification for the ballot. The
14
Board member withdrew his signature from one of these proposed ordinances
shortly after Proposition C qualified for the ballot.
Howard Jarvis primarily relies on Boling v. Public Employment
Relations Board (2018) 5 Cal.5th 898 (Boling). In Boling, the Supreme Court
construed a public employee relations statute providing that “[g]overning
bodies ‘or other representatives as may be properly designated’ are required
to engage with unions on matters within the scope of representation ‘prior to
arriving at a determination of policy or course of action.’ ” (Id. at p. 904
[quoting Gov. Code, § 3505].) A mayor, whose responsibilities included
bargaining with city unions and complying with the statutory meet-and-
confer requirements, “conceived the idea of a citizens’ initiative pension
reform measure, developed its terms, and negotiated with other interested
parties before any citizen proponents stepped forward. He relied on his
position of authority and employed his staff throughout the process. He
continued using his powers of office to promote the Initiative after the
proponents emerged.” (Id. at pp. 904, 916.)
In considering whether the meet and confer requirement applied, the
Supreme Court noted that the statute’s “broad formulation encompasses
more than formal actions taken by the governing body itself.” (Boling, supra,
5 Cal.5th at p. 904.) 8 The statute “expressly imposes the duty to meet and
confer on ‘[t]he governing body of a public agency, or such boards,
commissions, administrative officers or other representatives as may be
properly designated by law or by such governing body.’ (Italics added.)
8Although the Supreme Court was reviewing an agency’s construction of the
statute that should be “ ‘follow[ed] . . . unless it is clearly erroneous,” the
Court additionally found the agency’s construction was “clearly correct.”
(Boling, supra, 5 Cal.5th at p. 917.)
15
. . . Here, the mayor was the city’s chief executive, empowered by the city
charter to make policy recommendations with regard to city employees and to
negotiate with the city’s unions. Under the terms of [the statute], he was
required to meet and confer with the unions ‘prior to arriving at a
determination of policy or course of action’ on matters affecting the ‘terms
and conditions of employment.’ ” (Boling, supra, 5 Cal.5th at pp. 917–918.)
The Supreme Court continued, “[u]nder the facts presented here, [the
mayor] pursued pension reform as a matter of policy while acting as the city’s
chief executive officer. . . . The obligation to meet and confer did not depend
on the means he chose to reach his policy objectives or the role of the city
council in the process. . . . The relevant question is whether the executive is
using the powers and resources of his office to alter the terms and conditions
of employment. [¶] Here the answer is plainly ‘yes.’ . . . He consistently
invoked his position as mayor and used city resources and employees to draft,
promote, and support the Initiative. The city’s assertion that his support was
merely that of a private citizen does not withstand objective scrutiny.”
(Boling, supra, 5 Cal.5th at p. 919.) The court noted, “The line between
official action and private activities undertaken by public officials may be less
clear in other circumstances. However, when a local official with
responsibility over labor relations uses the powers and resources of his office
to play a major role in the promotion of a ballot initiative affecting terms and
conditions of employment, the duty to meet and confer arises. Whether an
official played such a major role will generally be a question of fact . . . .”
(Ibid.)
Howard Jarvis argues that, under Boling, we should construe
Propositions 13 and 218 as applying to voter initiatives when promoted by
16
elected officials. 9 Critically, however, Boling did not suggest that imposing
the meet-and-confer requirement resulted in any restriction on the initiative
power. Instead, the impact was on “a local agency’s governing functions” and
was “a relatively ‘minimal’ burden.” (Boling, supra, 5 Cal.5th at p. 915; see
ibid. [although the meet-and-confer provision “ ‘encourages binding
agreements resulting from the parties’ bargaining, the governing body of the
agency . . . retains the ultimate power to refuse an agreement and to make its
own decision’ ”].) In contrast, we are obliged to “narrowly construe provisions
that would burden or limit the exercise of” the initiative power (California
Cannabis, supra, 3 Cal.5th at p. 936), and the two-thirds requirement
“hobbles the exercise of the initiative power by lashing it to a supermajority
vote requirement” (All Persons, supra, 51 Cal.App.5th at p. 716). Thus,
Boling’s construction does not apply in this case.
Howard Jarvis characterizes Boling as applying a legislative procedure
to a voter initiative. We disagree. Boling did not impose the meet and confer
requirement on the initiative process—which remained unchanged by the
decision—but rather on the designated representative’s pursuit of policy
changes, regardless of the means chosen. Similarly, Howard Jarvis’s
argument that Boling “assumes the electorate is a part of the ‘public agency’
by insisting on application of the ‘meet and confer’ requirement” is
9 To the extent Howard Jarvis contends the Board member’s involvement in
Proposition C rendered it a legislative initiative, we reject the claim. The
Charter sets forth clear criteria for determining the type of initiative: if it was
submitted by the mayor or at least four Board members, it is a legislative
initiative; if the requisite number of voter signatures on circulated initiative
petitions were obtained, it is a voter initiative. (S.F. Charter, §§ 2.113,
14.101.) Howard Jarvis provides no authority that we may judicially alter
these criteria.
17
unavailing. The electorate was not required to meet and confer with the
union; only the public agency’s designated representative was.
Howard Jarvis also relies on Rider v. County of San Diego (1991) 1
Cal.4th 1 (Rider), which considered whether an agency was a “special
district” for purposes of section 4. The agency at issue was created by
legislative enactment “ ‘solely for the purpose of avoiding the strictures of
Proposition 13.’ ” (Rider, at p. 8.) Although the agency was a separate entity
from the county, the county “retained substantial control over operations and
expenditures” and “the Agency’s boundaries are coterminous with the
County’s.” (Id. at p. 9.) The Supreme Court construed “special district” to
include “any local taxing agency created to raise funds for city or county
purposes to replace revenues lost by reason of the restrictions of Proposition
13,” reasoning that “[t]o hold otherwise clearly would create a wide loophole
in Proposition 13.” (Id. at pp. 10–11.) The Supreme Court noted that, while
it may be difficult to prove an agency was created for purposes of the
“intentional circumvention” of Proposition 13, “courts may infer such intent
whenever the plaintiff has proved the new tax agency is essentially controlled
by one or more cities or counties that otherwise would have had to comply
with the supermajority provision of section 4.” 10 (Ibid.)
Howard Jarvis offers the following tests for voter initiatives: “Did an
elected official sponsor the initiative, or was there collusion between officials
10Relevant considerations in this determination include “the presence or
absence of (1) substantial municipal control over agency operations, revenues
or expenditures, (2) municipal ownership or control over agency property or
facilities, (3) coterminous physical boundaries, (4) common or overlapping
governing boards, (5) municipal involvement in the creation or formation of
the agency, and (6) agency performance of functions customarily or
historically performed by municipalities and financed through levies of
property taxes.” (Rider, supra, 1 Cal.4th at p. 12.)
18
and the citizen sponsor? Did the official’s sponsorship or collusion with the
citizen sponsor cause a duty to disappear that would otherwise exist?” “Is
there overlap between the governing body and the citizens’ initiative
committee? Is a public official causing municipal involvement in the citizens’
initiative committee?” But Howard Jarvis does not contend that a single
official’s sponsorship of or involvement in an initiative gives rise to the
inference that a city or county intentionally circumvented Propositions 13
and 218, or demonstrates that the official effectively controlled the initiative.
Thus, the test proposed does not incorporate the concerns underlying Rider.
More significantly, neither the text nor ballot materials provide the
requisite “unambiguous indication” that the enactors of Propositions 13 and
218 intended to constrain the initiative power when an official is involved in
the initiative process. (California Cannabis, supra, 3 Cal.5th at pp. 945–946
[“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.”].) Absent such a clear
indication, we will not construe the two-thirds requirement to apply to such
initiatives. 11
11California Cannabis acknowledged a “hypothetical city council . . . 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,” “the council
accepts the union’s contract proposal—which will be funded by increasing a
utility tax,” “the union could mobilize city employees to collect signatures on
an initiative proposing the tax increase,” and “[o]nce enough signatures are
collected . . . the city council could simply adopt the ordinance without
submitting the tax increase to the voters,” thereby “effectively skirt[ing]”
Proposition 218’s requirement that the tax be submitted to the electorate.
19
DISPOSITION
The judgment is affirmed. Respondent is awarded its costs on appeal.
(California Cannabis, supra, 3 Cal.5th at p. 947.) Howard Jarvis does not
claim the Board member here colluded with a union or any other group, nor
was the tax adopted by the Board without being submitted to the voters.
Moreover, the Supreme Court noted such “facts are not presented here, and
we decline to take up what would happen should they arise.” (Ibid.)
Although Howard Jarvis argues the Supreme Court’s “negative tone presages
that such a tactic would fail,” we do not derive any relevant insight from this
passage.
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SIMONS, Acting P.J.
We concur.
BURNS, J.
SELIGMAN, J. *
(A157983)
*Judge of the Alameda County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
21
Superior Court of San Francisco County, No. CGC-18-568657, Hon. Ethan P.
Schulman, Judge.
Jonathan M. Coupal, Timothy A. Bittle, Laura E. Dougherty for Plaintiffs
and Appellants.
Eversheds Sutherland, Timothy A. Gustafson, Eric J. Coffill, Alexandra M.
Louderback for Council on State Taxation as Amicus Curiae on behalf of
Plaintiffs and Appellants.
Dennis J. Herrera, City Attorney, Wayne K. Snodgrass for Defendant and
Respondent.
Keker, Van Nest & Peters, Thomas E. Gorman, Nathaniel H. Brown, Ann
Niehaus for Children’s Council of San Francisco and Parent Voices San
Francisco as Amici Curiae on behalf of Defendant and Respondent.
22