California Supreme Court Clarifies that Voter Initiatives Are Not Subject to Certain of Proposition 218’s Limitations on Local Governments, Though the Full Implications Remain to be Seen

Public Finance Alert | September.11.2017

Since Proposition 218 was passed in 1996, which added Article XIIIC to the California Constitution (“Article XIIIC”), local governments have faced heightened restrictions in their abilities to impose taxes.  Specifically, Article XIIIC, section 2(b) requires local governments to obtain majority voter approval at a general election before imposing, extending, or increasing any general tax.  Further, Article XIIIC, section 2(d) requires that no local government may impose, extend, or increase a special tax without a two-thirds vote of the electorate.

The California Supreme Court’s recent decision in California Cannabis Coalition v. City of Upland (August 2017) (“California Cannabis Coalition”) held that Article XIIIC, section 2(b)’s requirement that a general tax be submitted to voters at a general election does not apply to taxes proposed via voter initiatives.  A voter initiative is a proposed change in law that is submitted by voters for inclusion on an election ballot.  Additionally, as pointed out in the concurring and dissenting opinion, the reasoning of the Court in California Cannabis Coalition could be interpreted as suggesting that the procedural two-thirds voter approval requirement for special taxes in Article XIIIC, section 2(d) would likewise not apply to special taxes proposed by a voter initiative.  Despite the Court’s holding and some of its analysis regarding Article XIIIC as a whole, the effective voter threshold for local special taxes may not have necessarily been lowered from the two-thirds requirement specified in Article XIIIC, section 2(d) to the simple majority vote otherwise required under the California Elections Code (the “Elections Code”).  The Court in California Cannabis Coalition did not expressly address whether its analysis that exempted voter initiatives from Article XIIIC, section 2(b) would likewise apply to Article XIIIC, section 2(d) and the two-thirds voter threshold for local special taxes.  Additionally, Article XIIIA, section 4 of the California Constitution (“Article XIIIA, section 4”), enacted by Proposition 13 in 1978, also carries a two-thirds voter approval requirement for special taxes imposed by “Cities, Counties and special districts” and was not addressed by the Court in California Cannabis Coalition.  Accordingly, the full implications of California Cannabis Coalition are currently unknown, and future legislation and/or litigation can likely be expected to further shape the legal landscape in this area of Public Finance.

Facts of the Case

The California Cannabis Coalition (the “Plaintiffs”), a non-profit that drafts cannabis laws for California municipalities, prepared a medical marijuana initiative for submission to the voters of the City of Upland (the “City”) in 2014.  Among other effects, the initiative would have allowed for up to three medical marijuana dispensaries to operate in the City and would have imposed an annual “Licensing and Inspection fee” on each of the dispensaries.  The Plaintiffs submitted the initiative, which had been signed by at least 15% of the City’s registered voters, to the City and requested that, consistent with section 9214 of the Elections Code, the City hold a special election.  The City then ordered that various city departments prepare a joint agency report.  The report concluded that the proposed annual fee would exceed the City’s costs in issuing a license to and conducting an annual inspection of each of the dispensaries.  The report also determined that the excess amount of the annual fee constituted a general tax and that the initiative could not be voted on during a special election.  Instead, according to the report, the initiative was to be submitted to the City’s voters, pursuant to Article XIIIC, section 2(b), at the next general election, which was scheduled for over 18 months later.

Holding

The Court's opinion had two holdings.  First, the Court held that a general tax proposed via voter initiative need not comply with the requirements of Article XIIIC, section 2(b) because these requirements only apply to general taxes imposed by a “local government,” not voters.  As a result, local general taxes imposed via voter initiative do not necessarily need to be submitted for voter approval at a general election, as otherwise required by the text of Article XIIIC, section 2(b), and can instead be approved after complying with the requirements of the Elections Code.  Second, the Court’s holding included a narrow recitation of the procedure the City must follow under the Elections Code upon receiving a petition signed by at least 15% of the City’s registered voters.  The Court explained that section 9214 of the Elections Code requires the City, after receiving a petition with the requisite number of signatures, to either: (i) adopt the ordinance without alteration; (ii) immediately order a special election; or (iii) order an agency report and, once the report is presented to the city council, adopt the ordinance or order a special election.

Court’s Analysis

The Court begins from the principle that the voter initiative process is a power reserved by the people, not a right granted to them.  Since 1911, case law has affirmed the need to guard and liberally construe the initiative power.  Article XIIIC, section 2(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,” where the term “local government” is defined as “any county, city, city and county, including a charter city or county, any special district, or any other local or regional governmental entity.”  The Court reasoned that this definition does not include the electorate because the common understanding of the term “local government” is as a reference to the locality’s governing body, officials and bureaucracy, not the voters.  Additionally, the Court declined to broaden the definition of “local government” in Article XIIIC to include the electorate because the text of Article XIIIC, its ballot materials, and contextual references do not lend themselves to interpretations of the term “local government” that extend to the voters.

The Court further noted that Article XIIIC’s enactors explicitly referenced the initiative power in another section of Article XIIIC.  The Court observed, however, that there is no similarly explicit language referencing the initiative power in the text of Article XIIIC, section 2(b).  Given the precedent that the voters’ initiative power must be strongly guarded, the Court refused to infer an implicit regulation of the initiative power in Article XIIIC, section 2(b), endorsing the view that Article XIIIC’s enactors had intentionally omitted such language from section 2(b).

The Court also rejected arguments from the concurring and dissenting opinion, reasoning that it had failed to begin with the important presumption that the initiative power should not be constrained absent clear evidence of an intent to do so.

Finally, the Court observed that the City erred in proceeding under Article XIIIC when the initiative had been submitted to the City in compliance with the Elections Code.  Instead of applying the requirements of Article XIIIC to Plaintiffs’ initiative, the City should have followed the procedures and deadlines of the Elections Code.  The proper course in cases like this are for cities to order the special election, and a city or other interested parties may pursue a legal challenge pre- or post-election.

Issues Relevant to Public Finance

California Cannabis Coalition has some potentially significant consequences for the field of Public Finance because special tax measures are often developed as a source of repayment for bonds.  The implications of this case are especially relevant given the current environment of budget stress and the difficulty governments can face when raising new funds.  Accordingly, it seems likely that the boundaries of this decision will be tested in the years to come, particularly with respect to voter-initiated special taxes.  These issues are discussed below.

General TaxesThe Court’s definition of “local government” means that Article XIIIC, section 2(b) does not apply to voter initiatives seeking to impose a local general tax. Therefore, such a voter initiative need not be submitted to the voters at a local general election, unless otherwise required by the Elections Code and/or the city’s charter, if applicable.

Special Taxes. Article XIIIC, section 2(d) requires local governments to obtain two-thirds voter approval before imposing a local special tax.  The Court in California Cannabis Coalition did not make clear whether its holding exempting voter initiatives from Article XIIIC, section 2(b) would also apply equally to Article XIIIC, section 2(d).  As noted in the concurring and dissenting opinion, the Court’s definition of “local government” could, if wholly applied to Article XIIIC, section 2(d), suggest that voter initiatives for local special taxes are exempt from Article XIIIC, section 2(d)’s requirements.  However, because the Court’s holding only expressly applied to Article XIIIC, section 2(b), not section 2(d), the question of whether Article XIIIC, section 2(d) applies to voter initiatives was not resolved by the Court.  Legislation and/or litigation attempting to clarify Article XIIIC, section 2(d)’s applicability to local special taxes can be expected.

Further, there is an additional consideration that may be applicable for special taxes beyond Article XIIIC.  Proposition 13 amended Article XIIIA, section 4 to, among other things, require two-thirds voter approval for local special taxes.  Whether this provision of Article XIIIA, section 4 would be subject to the same interpretation as Article XIIIC with respect to voter initiatives is unclear.  The text of Article XIIIA, 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 on such district . . . .”  The Court’s reasoning as to the common understanding of the term “local government” in California Cannabis Coalition could similarly be applied by a court to Article XIIIA, section 4’s reference to “Cities, Counties and special districts.”  Alternatively, a court could distinguish this language from the term “local government” under Article XIIIC and find that Article XIIIA, section 4’s reference to “Cities, Counties and special districts” does encompass the electorate, thereby requiring a two-thirds vote whenever a measure is presented to the voters for approval.  Further, in a prior case, Kennedy Wholesale, Inc. v. State Board of Equalization (1991), the California Supreme Court found that there was no evidence that the enactors of Proposition 13 intended to limit voters’ initiative power but instead intended to limit the Legislature’s power.  However, we caution against extending the reasoning in Kennedy Wholesale, Inc. prematurely.  The Court’s opinion in Kennedy Wholesale, Inc. only directly addressed Article XIIIA, section 3 (which relates to the State’s ability to raise taxes), as opposed to section 4 (which relates to cities’, counties’ and special districts’ abilities to raise taxes).  Therefore, a similar analysis of Article XIIIA may or may not yield the same conclusion as it did in California Cannabis Coalition, and the two-thirds voter approval requirement for local special taxes in Article XIIIA, section 4 could be construed by a court to still apply to voter initiatives.

Avoiding the BallotThe Court also mentioned a hypothetical that could arise under its holding that it chose not to address in its opinion.  Under the Elections Code, a city council, for example, has the option to immediately adopt a voter initiative that has secured the requisite number of signatures, thereby avoiding an election altogether.  The defendant in California Cannabis Coalition suggested that cities could collude with interested parties to raise a tax, whereby such interested parties would collect the required signatures and the city would immediately adopt the ordinance imposing the tax, violating the spirit, if not the letter, of Proposition 218.  Because the Court didn’t rule on these facts, nothing in California Cannabis Coalition should be read to either endorse or oppose such a strategy to implement a new tax without first submitting it to the voters.

Further Developments.  On September 6, 2017, California Assembly Member Mayes introduced Assembly Constitutional Amendment 19 to modify the definition of “local government” within Article XIIIC to include “the electorate exercising its initiative power.”  The proposed amendment will require a two-thirds vote in the California State Assembly and Senate after which it may be submitted as a ballot measure at a future election, requiring a majority approval of California voters.  If approved by the California Legislature and voters, the proposed amendment would undo the Court’s holding in California Cannabis Coalition by expressly requiring that voter initiatives for local general taxes comply with Article XIIIC, section 2(b)’s requirements.  The proposed amendment would also make clear that local special taxes proposed via voter initiatives would be subject to Article XIIIC, section 2(d)’s two-thirds voter threshold.  Additionally, since the Court’s opinion was announced, at least one taxpayer group has expressed interest in pursuing a voter initiative to make a similar change to the California Constitution and has also suggested that if any new tax is imposed without voter approval they would pursue litigation to challenge it.

Advice from competent bond counsel can help local governments and other stakeholders evaluate their options in this evolving legal environment.  Attorneys for Orrick, Herrington & Sutcliffe LLP have assisted many clients over the years in the issuance of billions of dollars of bonds secured by special taxes for a wide variety of projects.  For additional information regarding any aspect of structuring special tax measures, please contact the authors or your Orrick lawyer or visit orrick.com.