I recently asserted that the Citizens’ Plan for San Diego ballot measure – which would raise funds to promote San Diego tourism, expand the Convention Center, build a football stadium, and other inter-related matters – requires a majority and not a two-thirds vote, even though others disagreed. A landmark appellate court decision issued last week confirms that only a majority vote is needed.

In a unanimous March 18 ruling, the state’s Fourth District Court of Appeal concluded that the provision in the California Constitution regarding a two-thirds vote for approving “special” taxes earmarked for a particular purpose only applies when a city council or board of supervisors is pushing the tax increase, and not when the tax increase is placed on the ballot through a citizens’ initiative. The court certified its ruling for publication so that it will be binding on future courts in San Diego and throughout the state.

The case, California Cannabis Coalition v. Upland, arose out of a dispute between a citizens’ coalition that wanted its medical marijuana initiative to appear on a special election ballot in late 2015, and the city of Upland, which claimed that the constitutional provision mandated that the initiative appear on the regular November 2016 election ballot. When the coalition submitted the petition signatures, the city sued and obtained a ruling that the initiative could not be voted on at a special election.

But the appellate court overturned that decision and made an important distinction between taxes imposed by local government and taxes imposed by a voter-approved citizens’ initiative. Whereas the regularly scheduled election rule and two-thirds vote requirement apply to taxes imposed by the government, they do not apply to taxes proposed by citizens through the initiative process. The court put it simply: “taxation imposed by initiative is not taxation imposed by local government.”

The Upland case extends an earlier appellate court decision that upheld a 10-cent surcharge on paper bags in Los Angeles County even though the funds are being used for specific purposes. In sum, these two opinions deliver a one-two punch to the argument that the Citizens’ Plan requires a two-thirds vote. The Upland case also improved the chances of passage for another proposed measure to increase hotel taxes to pay for a new Convention Center/football stadium, or convadium.

The court took a walk down memory lane with respect to constitutional restrictions on tax increases: Proposition 13, the original groundbreaking statewide initiative that limited the power of local government to increase property taxes; Proposition 62, which gave voters powers to approve or reject certain tax increases proposed by state and local government; Proposition 218, which expanded these powers and Proposition 26 (2010), which shut down the practice of mislabeling “taxes” as “fees.” The court confirmed that these constitutional amendments were all designed to protect taxpayers by limiting the power of local government to impose taxes, but were not limits on the power of the people to impose taxes via the initiative process. As the court confirmed, the initiative is “one of the most precious rights of our democratic process.”

We Stand Up for You. Will You Stand Up for Us?

As this important democratic process plays out, the voters will decide whether the Citizens’ Plan and/or the new convadium measure are good public policy. In the meantime, let’s be clear that when one or both of these measures appear on the November ballot, they will only need 50 percent plus one, not two-thirds, of the votes to become law.

Jim Sutton is a political and election law attorney and the managing partner of the Sutton Law Firm. You can reach him at jsutton@campaignlawyers.com.

    This article relates to: Citizens' Plan, Opinion

    Written by Opinion

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    Dean Cunliffe
    Dean Cunliffe

    Looks like Barrio Logan is going to get the short end of the stick.

    Let's look at who's behind this so called Citizens Plan, and call it what it is.

    Legal challenges are to be expected. The same happened with Petco park, and in the end, not only did we have a baseball stadium, but a bunch of condos that took years to fill. The building continues to this day, which tells me, this deal is done! "We'll let the public feel like they contributed to this decision " ......

    Trust me, they'll have no problem selling this to gullible voters who won't be impacted by this.

    I live in the 1700 block of National avenue, from where I stand, this neighborhoods days are numbered.

    Grammie subscribermember

    Mr Sutton, you're telling us that the Chargers can get their favored new stadium plan on the ballot, promise  

    the voters anything they think will get their approval, such as free admission the first season, and they only need to convince half to vote for this. In addition, with the ticket guarantee, the taxpayers will also pay for the unsold tickets, as the freebees will not be sales. Sounds like a total win for the Chargers, and they should start to talk it up sooner rather than later. 

    Jeff Sanders
    Jeff Sanders subscriber

    It's kind of remarkable that this had not come up in all the years since Prop 218. Was the issue never raised before? Have there been previous votes on initiative special taxes that would have passed at a simple majority? I read the decision and the referenced section of the California Constitution yesterday. The later says:

    “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.”

    “(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.”

    I wonder if those who drafted those provision meant to exempt initiative taxes or simply neglected to specify them?

    Bill Bradshaw
    Bill Bradshaw subscribermember

    Seems to me that one thing is very clear on this flap:  If the shakers and movers behind this “citizens” initiative press on, manage to get a majority and start to spend money on their plan before the state supreme court makes a final ruling, they are gambling with both the public’s money and their personal reputations.  Not being a constitutional scholar like our esteemed president, I won’t comment on whether THAT decision would possibly be appealable to the U.S. supreme court, but if it is, this is a whole new ballgame.  

    Hopefully, the voters will see through the Convadium scam, which falls apart if the need for additional convention space is demonstrated to be nonsense, and settle the matter without the need for the lawyers to get more “billable hours”.  

    Chris Brewster
    Chris Brewster subscribermember

    It's important to remember that the person on the other side of this debate is a partisan political operative lacking a law degree. (Why VOSD allowed her to list herself as a " campaign finance expert" is beyond me.) One of the standard political devices to defeat a proposal is to imply that it is legally flawed. In reality, as the case noted here illustrates, the legality of an initiative is never certain until it has been adjudicated. Thus, the best course of the voters is to vote in accordance with their beliefs, ignoring the noise.

    Dean Plassaras
    Dean Plassaras

    Goodbye Sutton, you uneducated legal clown daring to even think that long established public rights could be usurped by flawed technicalities of confused legal practitioners.

    Desde la Logan
    Desde la Logan subscriber

    You're saying our state's 4th circuit appeals court judges are confused legal practitioners? It appears you are the uneducated clown.

    Richard Rider
    Richard Rider subscribermember

    @Desde la Logan Actually, it's likely that the court has it wrong. Again.

    When I filed suit against the simple majority vote that passed the county "jails" sales tax in 1989, this appellate court ruled against me, declaring that a 2/3 vote wasn't needed.  

    But the California State Supreme Court ruled 5-2 in my favor, saving San Diego County taxpayers 3.5 BILLION dollars and establishing the 2/3 vote for special local taxes across the state ("Rider vs. County of San Diego").

    Desde la Logan
    Desde la Logan subscriber

    Considering the destruction that your anti-tax policies have wrought on communities like mine I'm hoping the appeals course has it correct. Unfortunately that would mean the Chargers have a higher chance of getting their East Village castle which will help destroy the fabric of my community. Either way Barrio Logan always gets screwed.

    Dean Plassaras
    Dean Plassaras

    @Desde la Logan Are you suggesting that a CA court based in Riverside is of any particular legal caliber? Do your research and homework please.