In 1978, California voters enacted Proposition 13, which amended the California Constitution by adding article XIII A (article XIII A). The amendment "plac[ed] significant limits on the taxing power of local and state governments." (State Building & Construction Trades Council of California v. City of Vista (2012) 54 Cal.4th 547, 562, fn. 3 [143 Cal.Rptr.3d 529, 279 P.3d 1022].)
In 1996, California voters enacted Proposition 218, which added article XIII C (article XIII C) and article XIII D (article XIII D) to the California Constitution in order to "close government-devised loopholes in Proposition 13." (Apartment Assn. of Los Angeles County, Inc. v. City of Los Angeles (2001) 24 Cal.4th 830, 839 [102 Cal.Rptr.2d 719, 14 P.3d 930] (Apartment Assn. of Los Angeles County, Inc.).) Article XIII C, section 2, subdivision (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." (Italics added.)
In this appeal, we must determine whether an election held by the City of San Diego (the City) to authorize the levying of a special tax complied with these provisions of the California Constitution. In the election at issue, the City did not permit the City's registered voters to vote on the special tax. Instead, the City passed an ordinance that specifically defined the electorate to consist solely of (1) the owners of real property in the City on which a hotel is located, and (2) the lessees of real property owned by a governmental entity on which a hotel is located.
We conclude that the election was invalid under the California Constitution because such landowners and lessees are neither "qualified electors" of the City for purposes of article XIII A, section 4 (see Neilson v. City of California City (2005) 133 Cal.App.4th 1296, 1313 [35 Cal.Rptr.3d 453] (Neilson) ["the term `qualified electors' means registered voters," quoting art. XIII A, § 4]), nor do they comprise a proper "electorate" under article XIII C, section 2, subdivision (d). (See Greene v. Marin County Flood Control & Water Conservation Dist. (2010) 49 Cal.4th 277, 297 [109 Cal.Rptr.3d 620, 231 P.3d 350] (Greene) ["[E]lections pertaining to special ... taxes in article XIII C, section 2, do not permit property qualifications."].)
We further conclude that the election was invalid under the San Diego City Charter (City Charter) because City Charter section 76.1 (section 76.1) requires the approval of two-thirds of the "qualified electors" voting in an election on a special tax, and section 6 of the City Charter (section 6) defines "[q]ualified [e]lectors" as those persons who are registered to vote in general state elections under state law. (Boldface omitted.) Accordingly, we reverse the trial court's judgment validating the special tax and remand the matter to the trial court with directions to enter judgment against the City.
The San Diego City Council (the City Council) passed an ordinance enacting a new division of the San Diego Municipal Code (the Division) in November 2011. (San Diego Mun. Code, ch. 6, art. 1, div. 27.) The Division authorizes the City to form a convention center facilities district (CCFD) in order to help finance the potential expansion of the San Diego Convention Center through the imposition of a special tax. The ordinance explains that the CCFD would "compris[e] the entire City," but that only hotels within the CCFD "would be subject to [the] special tax," which would be "based upon a percentage of room revenues." (San Diego Ord. No. 20106.)
The Division incorporates and modifies numerous provisions of the Mello-Roos Community Facilities Act of 1982 (Gov. Code, § 53311 et seq.)
"(a) The legislative body shall ... submit the levy of any special taxes to the qualified electors of the proposed community facilities district or to the qualified electors of the territory to be annexed by the community facilities district in the next general election or in a special election.... [¶] .... [¶]
"(c) If the proposed special tax will not be apportioned in any tax year on any portion of property in residential use in that tax year, as determined by the legislative body, the legislative body may provide that the vote shall be by the landowners of the proposed district whose property would be subject to the tax if it were levied at the time of the election. Each of these landowners shall have one vote for each acre, or portion thereof, that the landowner owns within the proposed district that would be subject to the proposed tax if it were levied at the time of the election."
The Division incorporates and modifies the election procedures of the Mello-Roos Act as follows:
"(a) The qualified electors shall in all cases be the Landowners.
"(b) The City Clerk shall in all cases be the elections official.
"(c) Votes shall not be allocated on the basis of acreage of real property, but instead shall be allocated to each Landowner on the basis of one vote for each dollar of special tax that would have been the obligation of that parcel (as determined by the City Council) if the proposed special tax had been in place for the 12-month period ending at the end of the month which is three months prior to the month in which the resolution calling the special mailed-ballot election is adopted by the City Council." (San Diego Mun. Code, § 61.2710.)
The Division defines landowner (Landowners) as follows: "Landowner means the owner of the real property upon which a Hotel[
The Division further provides, "Any special tax imposed pursuant to this Division shall be levied on the property for use of the property as a Hotel (or, as the case may be, levied on the leasehold interest of a publicly-owned Hotel parcel). The special tax shall not, in any year, be levied on the residential use of the property for that year. Hotel use is not residential use." (San Diego Mun. Code, § 61.2712.)
The City Council passed a resolution of formation in January 2012, through which the City finalized the proposal to finance the CCFD. (San Diego Res. No. 307243.) The resolution of formation incorporates a rate and method of apportionment (RMA) of the proposed special tax to be levied upon eligible taxable parcels within the CCFD. (Ibid.) The RMA provides that the special tax would be calculated based on a percentage of hotel room revenues at one of three different rates, depending on the hotel's geographic location. (Ibid.) Hotels in the downtown area would pay 3 percent of room revenues, while those in other areas would pay either 1 or 2 percent of their room revenues. (Ibid.)
The City Clerk conducted a mailed-ballot election of the Landowners in the CCFD in March and April 2012. On April 24, 2012, the City Clerk certified that 19,454,222.42 votes were cast in the election, and that 92.03 percent, or 17,904,588.30 of the total votes cast, were "Yes" votes. (San Diego Res. No. 307413.) Based on these results, the City Council declared that the special tax measure had been approved. (Ibid.)
The City Council directed the City Clerk to record a notice of special tax lien in connection with the CCFD in May 2012 that states that "no special tax shall be levied until the City has obtained a final validation judgment determining that the special tax was lawfully authorized and is valid." (San Diego Res. No. 307414.)
In October 2012, the City Council took action to delay implementation of the special tax at issue pending a final judgment in this case by adopting an ordinance levying the special tax within the CCFD, conditioned upon, among other events, a final determination by the court "that the special tax is valid." (San Diego Ord. No. 20209.)
In May 2012, the City filed a complaint that contains a single cause of action seeking validation of the CCFD special tax. In its complaint, the City
Appellants Melvin Shapiro and San Diegans for Open Government (SDOG) each answered the City's complaint.
The parties filed briefs in the superior court pertaining to the validity of the special tax.
"Under Article [XIII] A, the imposition of a special tax is subject to voter approval. Section 53326 of the [Mello-Roos] Act (adopted in 1982 after Proposition 13) establishes who or what is a qualified elector for voting purposes within a community facilities district. Subdivision (c) authorizes an election by landowners, rather than registered voters, irrespective of the number of registered voters residing with a community facilities district, in cases where the special tax will by its own terms not be apportioned in any tax year on property in residential use. [(§ 53326, subd. (c).)] Hotel property, and transitory occupancy of hotel rooms, are not residential properties or residential uses. [Citation.]
"The Division mandates that special taxes under its provisions may only be levied on hotel properties.... Accordingly, the hotel landowners, as defined under the Division and the [Mello-Roos] Act, are the proper qualified electors for voting purposes within the District.
"To confine the vote on a special tax to the owners of the real property that is going to be subject to the special tax is as old as `no taxation without representation.' In fact, it is the opposite side of the same coin — no representation without taxation. Where a citizen is not going to be asked to pay the special tax, it deprives her of no constitutionally protected interest that she is not permitted to vote on it. In fact, giving the decision-making to those directly affected by a tax — those who will pay it — is the policy goal
The City further argued that the special tax did not violate article XIII C, section 2, subdivision (d) (adopted by the voters in 1996 through Prop. 218) because "[t]he City sought and received a more than two-thirds affirmative vote from the landowner qualified electors within the CCFD."
Shapiro and SDOG each filed briefs in opposition. Appellants contended that the special tax was invalid under both the California Constitution and the City Charter because the special tax had not been approved by San Diego's "registered, natural-person voters."
With respect to the California Constitution, SDOG argued that, "hoteliers — those who own or lease the land on which the City's hotels are located — are not U.S. Citizens or registered to vote and thus [are] not `qualified electors.'" SDOG contended that the City's argument that the qualified electors could be comprised only of those individuals and entities that would pay the special tax was incorrect, arguing that there was "[n]othing in the California Constitution or any other controlling legal authority [that] equates `qualified electors' with `the persons paying the tax.'" SDOG argued that while weighted landowner voting was permissible under article XIII D, with respect to assessments, articles XIII A and XIII C require that the general electorate vote on taxes. SDOG noted that the Neilson court held that a municipality's registered voters comprised the proper electorate to vote on a special tax imposed under article XIII A, section 4, and specifically rejected the argument that the electorate should be comprised of only the property owners who would actually pay the tax. (Citing Neilson, supra, 133 Cal.App.4th at pp. 1312-1313.)
SDOG further argued: "Also absent from the opening brief ... is any case law that allows a local government imposing a special tax to make up its own definition of `qualified electors' for purposes of satisfying the California Constitution. No case stands for that proposition because such a glaring loophole in the constitutional protections for taxpayers would be quickly abused by tax-crazed local governments who would raise taxes by defining `qualified electors' in a way that ensures victory at the ballot box while
With respect to the legality of the special tax election under the City Charter, both Shapiro and SDOG argued that section 76.1 provides that the "the qualified electors of the City" must approve all special taxes authorized under article XIII A, and that section 6 of the City Charter provides that the qualifications of electors for all City elections are the same as those provided under state law for the qualification of electors in general state elections. It is undisputed that state law specifies that persons who are United States citizens and residents of California are qualified electors for purposes of general state elections (Cal. Const., art. II, § 2), and thus may register to vote (Elec. Code, § 2000, subd. (a) [specifying that "[e]very person who qualifies under Section 2 of Article II of the California Constitution and who complies with this code governing the registration of electors may vote ..."]). According to appellants, the special tax was not validly imposed under the City Charter, because, as SDOG argued, "There can be no dispute that the City's residents who are qualified to vote in California general elections were not given the opportunity to vote on the special tax."
The City filed reply briefs to both appellants' opposing briefs. In its reply to Shapiro's opposition, the City argued that, "In adopting section 53326, subdivision (c), the Legislature determined that, in certain situations, the undefined constitutional term `qualified electors' means landowners, not registered, natural person voters," and argued that "[t]he Legislature's definition carries great weight." (Citing San Francisco v. Industrial Acc. Com. (1920) 183 Cal. 273, 279 [191 P. 26] ["where a constitutional provision may well have either of two meanings, it is a fundamental rule of constitutional construction that, if the legislature has by statute adopted one, its action in this respect is well nigh, if not completely, controlling"].) The City further maintained that the City's adaptation of the election procedures specified in the Mello-Roos Act was consistent with the Legislature's desire to "allocate voting power in proportion to the special tax each owner would pay if approved."
The City's summarized its argument by stating: "[T]he CCFD voting procedures, the limitation of `qualified electors' to CCFD `Landowners,' and the use of a weighted vote allocation did not violate the Constitution. As
With respect to the City Charter, the City argued in its reply to Shapiro's opposition that the definition of "qualified elector" in section 6 does not apply to special taxes because the first clause of section 76.1 of the City Charter provides, "Notwithstanding any provision of this Charter to the contrary...." The City also argued that section 76.1 "explicitly permits limiting the qualified electorate for votes on special taxes within special districts" in cases in which a special tax will be "`levied upon less than the entire City,'" and contended that the CCFD special tax would be levied upon less than the entire City because it would be imposed only on the "hotel `Landowners' identified with the CFFD."
After a hearing, the court issued a ruling in favor of the City, validating the special tax. In its ruling, the trial court first quoted the applicable provisions of the California Constitution and the City Charter, and then stated the following:
"[Section 53326] of the [Mello-Roos] Act establishes who or what is a qualified elector for voting purposes within a community facilities district (`CFD'). Section 53326[, subdivision (c)] authorizes an election by landowners, rather than registered voters, where the special tax will not be apportioned in any tax year on property in residential use. Thus, the Legislature established that, in certain situations, qualified electors means landowners. (See San Francisco v. Industrial Acc. Com.[, supra, 183 Cal. at p. 279].) Notably, section 53326[, subdivision (c)] provides, `the legislative body may provide that the vote shall be by the landowners of the proposed district whose property would be subject to the tax if it were levied at the time of the
"Consistent with the [Mello-Roos] `Act', the Division defined `qualified electors' as `Landowners' within the CCFD, those who own or lease land on which hotels operate. (San Diego Mun. Code, § 61.2710.) The Division mandates that special taxes authorized under its provisions may only be levied on hotel properties. (See San Diego Mun. Code, §§ 61.2706(i), 61.2712), and that qualified electors `shall in all cases be the Landowners.' (San Diego Mun. Code, § 61.2710(a).)"
The trial court entered a validation judgment in favor of the City that states in relevant part: "All proceedings encompassed by this validation action by and for the City and the [CCFD] in connection with satisfaction of the voter approval requirement to authorize the [CCFD] special tax, to authorize the issuance of [CCFD] bonds, to levy the special tax, and to establish the appropriations limit for the [CCFD], were and are valid and legally effective and were and are in conformity with the applicable provisions of all laws and enactments at any time in force or controlling upon such proceedings, whether imposed by law, charter, constitution, statute or ordinance, and whether federal, state or municipal."
Appellants each timely appealed the trial court's judgment. On appeal, appellants contend that the trial court erred in concluding that the manner in which the special tax was enacted does not violate either the California Constitution or the City Charter.
Appellants claim that the City's special tax is invalid because it was not approved by a two-thirds vote of either the "qualified electors" (art. XIII A, § 4) or the "electorate" (art. XIII C, § 2, subd. (d)) of the City, as required by the California Constitution. Appellants maintain that the City's registered voters are the "qualified electors" (art. XIII A, § 4) of the City and are the City's "electorate" (art. XIII C, § 2, subd. (d)). In contrast, the City contends that "the qualified electors [under article XIII A, section 4] may be comprised of different constituents depending on the nature of the district and the special tax to be imposed." The City further contends that Proposition 218 (which adopted art. XIII C, § 2, subd. (d)) "does not apply to landowner qualified electors in community facilities district elections." Resolution of these issues requires that we interpret the California Constitution.
"Because interpretation of a constitutional provision ... is a question of law, we perform that interpretation de novo, or independently, and are not bound by the trial court's analysis or conclusion." (Taxpayers for Accountable School Bond Spending v. San Diego Unified School Dist. (2013) 215 Cal.App.4th 1013, 1026 [156 Cal.Rptr.3d 449].)
Article XIII A, section 4 (added by Prop. 13, § 4) provides: "Cities, Counties and special districts, by a two-thirds vote of the qualified electors of such district, may impose special taxes on such district, except ad valorem taxes on real property or a transaction tax or sales tax on the sale of real property within such City, County or special district."
Article XIII C, section 2, subdivision (d) (added by Prop. 218, § 3) provides in relevant part: "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."
The text, constitutional history, and purpose of both article XIII A, section 4, and article XIII C, section 2, subdivision (d) support the conclusion that the City's special tax election was invalid under the state Constitution. Neither public policy considerations nor Government Code section 53326, subdivision (c), part of the Mello-Roos Act, warrants a contrary conclusion.
In Neilson, a "nonresident landowner challenged a flat-rate parcel tax imposed by a city after the city's registered voters approved the tax by a two-thirds majority." (Neilson, supra, 133 Cal.App.4th at p. 1301.) The nonresident landowner contended that "the affected property owners, not the registered voters of [City of California City], were the `qualified electors' for purposes of section 4 of article XIII A." (Id. at p. 1312.) The City of California City argued in response that "section 4 of article XIII A should be harmonized with section 2 of article XIII C [(added by Prop. 218)] and that various definitions [that were] in place at the time Proposition 218 was adopted lead to the conclusion that City's resident voters are the relevant electorate." (Id. at pp. 1312-1313.) The Neilson court outlined those definitions as follows: "The Elections Code defines `elector' to mean `any person who is a United States citizen 18 years of age or older and a resident of an election precinct at least 15 days prior to an election.' (Elec. Code, § 321.) The Elections Code does not contain a formal definition of the word `qualified,' but it does contain variations of that word that are useful in determining its meaning. For example, division 2 of the Elections Code is titled `Voters' and it contains chapters titled `Voter Qualifications' (ch. 1, beginning with § 2000) and `Registration' (ch. 2, beginning with § 2100). Pursuant to section 2000 of the Elections Code, `[e]very person who qualifies under Section 2 of Article II of the California Constitution and who complies with this code governing the registration of electors may vote at any election held within the territory within which he or she resides and the election is held.' (Italics added.) Article II, section 2 provides that a `United States citizen 18 years of age and resident in this state may vote.' Also, Elections Code section 359 provides that `voter' means `any elector who is registered under this code.'" (Id. at p. 1313.)
In light of these provisions, the Neilson court concluded that "section 4 of article XIII A required the special tax to be approved by two-thirds of [City of California City's] registered voters who voted in the election concerning [the special tax]." (Neilson, supra, 133 Cal.App.4th at p. 1313, italics added; see Foothill-De Anza Community College Dist. v. Emerich (2007) 158 Cal.App.4th 11,
As both Neilson and the Attorney General's opinion suggest, interpreting the phrase "vote of the qualified electors" in article XIII A, section 4 (italics added), to refer to a vote of registered voters is fully consistent with the text of the provision. The term "qualified elector" is a term that has long been used in California law to refer to registered voters, without further qualification.
Further, we are aware of no authority, and the City has cited none, that suggests that the phrase "qualified electors" has ever been used generically to describe a group of persons entitled to vote based on qualifications other than those specified by our state Constitution. (See Cal. Const., art. II, § 2 ["A United States citizen 18 years of age and resident in this State may vote."; Elec. Code, § 2000, subd. (a) [stating that every person who "qualifies" under
The City offers no textual argument to counter the Neilson court's conclusion that the phrase "qualified electors" in article XIII A, section 4 refers to the registered voters of the entity (e.g., city, county, or special district) imposing a special tax. However, the City notes that the Neilson court stated, "[T]he prepositional phrase `of such district' [(in art. XIII A, § 4)] means [City of California City] because the tax is imposed by [City of California City] on all parcels within its geographical limits." (Neilson, supra, 133 Cal.App.4th at p. 1313.) The City contends that Neilson's "holding does not apply," because, according to the City, "the CCFD special tax will not be imposed on all City parcels, but only on parcels on which hotels operate." We do not read the Neilson court's statement as interpreting article XIII A, section 4 to mandate an election of all of a city's registered voters only where the special tax will be imposed on all parcels in a municipality.
Interpreting the term "qualified electors" as synonymous with registered voters is consistent with the materials that were presented to the voters in connection with the approval of Proposition 13. The Legislative Analyst's
Interpreting "qualified electors" as describing a single, defined set of persons, i.e. registered voters, is consistent with California voters' intent in enacting article XIII A, section 4. In Rider v. County of San Diego (1991) 1 Cal.4th 1 [2 Cal.Rptr.2d 490, 820 P.2d 1000] (Rider), the Supreme Court explained that the voters adopted section 4 of Proposition 13 in order "to restrict the ability of local governments to impose new taxes to replace property tax revenues lost under the other provisions of [Proposition 13]." (Rider, supra, at p. 11; see Howard Jarvis Taxpayers Assn. v. County of Orange (2003) 110 Cal.App.4th 1375, 1384 [2 Cal.Rptr.3d 514] [the "raison d'être [of Proposition 13] was to limit municipalities' taxing power"].) The Rider court considered this intent in determining whether an agency that adopted an ordinance to impose a "supplemental sales tax ... throughout the [County of San Diego] for the purpose of financing the construction of justice facilities" (Rider, supra, at p. 5) constituted a "special district" under article XIII A, section 4 subject to the two-thirds supermajority requirement, despite
In reaching this holding, the Rider court explained, "We must attempt to determine whether the framers, in using the term `special district,' intended to adopt a definition that could so readily permit circumvention of section 4." (Rider, supra, 1 Cal.4th at p. 11.) In concluding that the justice facilities financing agency was a special district subject to Proposition 13's limitations on special taxation, the Rider court stated that the intent of the voters in enacting article XIII A, section 4 "would be frustrated if cities and counties were ... permitted to arrange for the formation of local taxing districts to finance municipal functions without securing the requisite two-thirds voter approval." (Rider, supra, at p. 11.)
Similarly, in this case, we must determine whether the same voters who enacted Proposition 13 in order to "circumscribe the taxing power of local government" (Rider, supra, 1 Cal.4th at p. 6) nevertheless intended for local governments to be able to define the class of electors who would be eligible to vote on a special tax, depending on, as the City argues, the "nature of the district and the special tax to be imposed." We think it is clear that the voters who enacted Proposition 13 did not so intend. In our view, the City's interpretation of article XIII A, section 4 would allow the City to: "readily circumvent the super-majority vote requirement of section 4 `by the simple creation of a district which is geographically precisely coterminous with [the City], but which [has different `qualified electors'] ... [and thereby] cut a hole in the financial fence which the people in their Constitution have erected around their government. Governmental entities may be expected, instinctively, to pour through the opening seeking the creation of similar revenue-generating [mechanisms] in myriad forms which will be limited only by their
Interpreting the term "qualified electors" (art. XIII A, § 4) to refer to registered voters is consistent with the voters' intent to limit the taxing power of local governments. Indeed, the intent of the voters at issue in this case is far more evident than was that intent in Rider, since unlike the "ambiguous" (Rider, supra, 1 Cal.4th at p. 7) term "special district" (art. XIII A, § 4) that was at issue in Rider, the voters used the well-defined term "qualified electors" (art. XIII A, § 4) to prescribe the body of persons whose assent would be required prior to a local government's imposition of a special tax. (See pt. III.A.3.a., ante.) Since "`the intent of the voters is the paramount consideration'" in our interpretation of article XIII A, section 4, this analysis strongly supports the conclusion that the election approving the special tax was invalid. (Silicon Valley Taxpayers' Assn. v. Garner (2013) 216 Cal.App.4th 402, 407 [156 Cal.Rptr.3d 703].)
In addition, "because Proposition 218 was designed to close government-devised loopholes in Proposition 13, the intent and purpose of the latter
The fact that Proposition 218 did expressly permit property owners to vote on certain assessments (art. XIII D) provides strong support for the conclusion that the voters who enacted Proposition 218 did not intend to permit local governmental entities to impose property qualifications for electors in elections involving taxes (art. XIII C).
Article XIII D, section 4, subdivision (g) expressly contrasts "electors" and the "electorate" with "property owners": "Because only special benefits are assessable, electors residing within the district who do not own property within the district shall not be deemed under this Constitution to have been deprived of the right to vote for any assessment.[
The ballot pamphlet materials that were presented to the electorate that voted on Proposition 218 further support the conclusion that the election on the special tax in this case was invalid. Those opposed to Proposition 218 referred to the voting format specified in the proposition related to assessments and argued, "YOU LOSE RIGHTS; CORPORATIONS, DEVELOPERS, NON-CITIZENS GAIN VOTING POWER."
In its brief on appeal, the City alludes to an argument, more fully developed in its trial brief, that "the appropriate qualified electors to approve or reject the CCFD special tax were those `landowners' that will have to pay it." There are several problems with this contention. To begin with, regardless of any policy merits of having only Landowners vote on the special tax, our state Constitution mandates that qualified electors and the electorate approve the imposition of special taxes.
The voters who enacted Proposition 218 reasonably believed that the general electorate should be the body to decide how to apportion the benefits
Finally, despite the superficial normative appeal of allowing those who "pay" for a tax to approve its imposition, it is often difficult to calculate the true economic incidence of any given tax. (See Fulton Corp. v. Faulkner (1996) 516 U.S. 325, 341 [133 L.Ed.2d 796, 116 S.Ct. 848] [noting the "extreme complexity of economic incidence analysis"].)
In short, the City's policy argument is unpersuasive, and does not provide support for the conclusion that the special tax election at issue in this case was valid.
In seeking to uphold the special tax election in this case, the City does not provide any argument based on the text of the relevant constitutional provisions, their constitutional histories, or the intent of the voters in enacting these provisions. For the reasons described above, these traditional sources of constitutional interpretation overwhelmingly support the conclusion that the special tax election in this case was invalid because the City's registered voters were not permitted to vote in the election.
The City's sole theory that the special tax is constitutional is its contention that article XIII A, section 4 did not expressly "define or identify the qualified electors of the local government entities to which the two-thirds majority vote requirement applied" and that the term "qualified electors" is ambiguous. The City further contends that "[i]n the [Mello-Roos] Act, ... four years after Proposition 13, the Legislature explicitly defined qualified electors for purposes of community facilities districts" (citing San Francisco v. Industrial Acc. Com., supra, 183 Cal. at p. 279 [stating that courts ordinarily defer to Legislature's specification of a definition for an ambiguous constitutional term]). This is the only theory that the trial court provided in support of its conclusion that the special tax election met constitutional requirements. (See pt. II.D.3., ante.) We are not persuaded.
The term "qualified electors" (art. XIII A, § 4) is not ambiguous, for the reasons stated in part III.A.3.a., ante. We thus have no occasion to defer to the Legislature's purported interpretation of the term "qualified electors" (art. XIII A, § 4) contained in the Mello-Roos Act. Moreover, the Legislature's interpretation of Proposition 13 is found in its 1979 enabling legislation of the proposition (Gov. Code, § 50075 et seq.), not in the 1986 amendment of the Mello-Roos Act on which the City relies (Gov. Code, § 53326, subd. (c)).
"That rule has been expressly applied to article XIII A, section 4 by the Richmond[, supra, 31 Cal.3d 197] court.... [T]he court specifically stated that sections 50075 to 50077 were intended by the Legislature as enabling legislation for section 4. [Citation.] A review of the legislative history for these sections bears this out." (California Bldg. Industry Assn., supra, 206 Cal.App.3d at p. 231.)
The Legislature's Proposition 13 enabling legislation is fully consistent with the conclusion that article XIII A, section 4 requires that two-thirds of a district's registered voters approve a special tax. The Legislature entitled its enabling legislation, "Voter-Approved Special Taxes" (Stats. 1979, ch. 903, § 1, p. 3112, italics added) and included the following provision: "The legislative body of any city or county may, following notice and public hearing, propose by ordinance the adoption of a special tax. The ordinance shall include the type of tax and rate of tax to be levied, the method of collection, and the dates upon which an election shall be held to approve the levy of such tax. Such proposition shall be submitted to the voters of the city or county, and, upon the approval of two-thirds of the voters voting upon such proposition, the city or county may levy such tax." (Former Gov. Code, § 50077, subd. (a); Stats. 1979, ch. 903, § 1, p. 3112, italics added.) Thus, the Legislature interpreted Proposition 13, as we do — to require the approval of two-thirds of a city's voters before a city may impose a special tax.
Government Code section 53326, subdivision (b) in turn specifies that the qualified electors will ordinarily be either the registered voters of the proposed community facilities district, or in the case of a predominantly uninhabited proposed district, the landowners of the district: "(b) Except as otherwise provided in subdivision (c), if at least 12 persons, who need not necessarily be the same 12 persons, have been registered to vote within the territory of the proposed community facilities district for each of the 90 days preceding the close of the protest hearing,[
There is nothing in either the text or the legislative history of Government Code section 53326, subdivision (c) that indicates that in enacting this statute, the Legislature considered the meaning of "qualified electors" under article
In light of the fact that Proposition 13, section 4 "was intended to circumscribe the taxing power of local government" (Rider, supra, 1 Cal.4th at
As an additional basis for reversing the judgment, appellants contend that the City's special tax is invalid because it was not approved by a two-thirds vote of the qualified electors of the City, as the City Charter requires.
Section 6 of the City Charter provides:
"Qualified Electors
"The qualifications of an elector at any election held in the City under the provisions of this Charter shall be the same as those prescribed by the general law of the State for the qualification of electors at General State Elections. No person shall be eligible to vote at such City election until he has conformed to the general State law governing the registration of voters." (Italics added & boldface omitted.)
City Charter section 76 provides in relevant part, "No special tax shall be permitted except as expressly authorized by this Charter."
Section 76.1 of the City Charter provides:
"Special Taxes
"Notwithstanding any provision of this Charter to the contrary, a special tax, as authorized by Article XIIIA of the California Constitution may be levied by the Council only if the proposed levy has been approved by a two-thirds vote of the qualified electors of the City voting on the proposition; or if the special tax is to be levied upon less than the entire City, then the tax may be levied by the Council only if the proposed levy has been approved by a two-thirds vote of the qualified electors voting on the proposition in the area of the City in which the tax is to be levied." (Italics added & boldface omitted.)
The express reference to article XIII A and the use of the term "qualified electors" in the text of section 76.1 strongly support the conclusion that the provision should be interpreted consistently with article XIII A, section 4 to require an election by registered voters. (See Mason v. Retirement Board (2003) 111 Cal.App.4th 1221, 1229 [4 Cal.Rptr.3d 619] ["We do not interpret... charter provisions ... in isolation," and stating that courts must interpret a charter provision "`"with reference to the entire scheme of law of which it is part so that the whole may be harmonized and retain effectiveness"'"].)
The voter information pamphlet from the election at which the City's voters enacted section 76.1 supports this conclusion,
"The California State Constitution presently allows voters in a city or community to approve, by a two-thirds vote, special tax levies for desired additional improvements or services. [¶] .... [¶]
"This concept already is permitted by our State Constitution and is entirely consistent with the 1978 Jarvis-Gann Initiative (Proposition 13), which enjoyed widespread voter approval. The remaining step needed to permit communities in San Diego to take advantage of this technique is an enabling amendment to City Charter section 76." (City of San Diego Sample Ballot & Voter Information Pamp., Gen. Mun. Elec. (Nov. 8, 1983) argument in favor of Prop. B., italics added.)
None of the arguments that the City makes in support of its claim that section 76.1 does not require a vote of registered voters is persuasive. The City's primary argument is that section 6's express definition of "[q]ualified [e]lectors" (boldface omitted) does not apply to the "qualified electors" referred to in section 76.1 because the first clause of section 76.1 provides, "Notwithstanding any provision of this Charter to the contrary...." In this regard, the City argues, "As [the] language states, section 6 (or any other provision) does not control with respect to special taxes." The City's reading of the "notwithstanding" clause is unpersuasive. The definition of qualified electors set forth in section 6 is not contrary to any provision in section 76.1. Rather, section 6 provides a definition of a term that is not otherwise
The City also contends that the special tax in this case is governed by the last clause of section 76.1, which applies when a "special tax is to be levied upon less than the entire City." We have serious doubts as to whether a special tax that will be levied upon all parcels in the City that are, or will be, used for a hotel,
Accordingly, we conclude that the City's special tax is invalid because it was not approved by a two-thirds vote of registered voters, as is required under the City Charter.
In Rider, in ruling that a local government's attempt to fund new courtrooms and jails violated the special tax election procedures mandated by Proposition 13, the Supreme Court concluded its opinion with the following remarks: "We are sympathetic to the plight of local government in attempting to deal with the ever-increasing demands for revenue in the post-Proposition 13 period.... Yet Proposition 13 and its limitations on local taxation are constitutional mandates of the people which we are sworn to uphold and enforce." (Rider, supra, 1 Cal.4th at p. 16.)
Similarly, in this case, while we understand that the City would like to expand the convention center, we are duty bound to uphold the provisions of the California Constitution and the City Charter that require that the City's registered voters approve the special tax at issue in the case.
The judgment is reversed. The matter is remanded to the trial court with directions to enter judgment in favor of appellants and to conduct any further necessary ancillary proceedings that are consistent with this opinion. Appellants are entitled to costs on appeal.
McConnell, P. J., and O'Rourke, J., concurred.
Shapiro maintains that the judgment should be reversed because the City's alteration of the Mello-Roos Act's voting procedures exceeded its home rule authority. Shapiro also contends, in the alternative, that the special tax is invalid because it is akin to either an assessment or a hotel occupancy tax, and the City did not comply with the legal requirements to impose either an assessment or a hotel occupancy tax.
We need not consider these additional arguments in light of our reversal of the judgment on the grounds stated in the text.
While this "state constitutional provision prohibiting property qualification for electors and the one-person, one-vote requirement rooted in the state and federal equal protection provisions do not apply to fee and assessment elections conducted by limited purpose government agencies that disproportionately affect certain property owners" (Greene, supra, 49 Cal.4th at p. 297, fn. 8, italics added), we are aware of no authority holding that this provision does not apply to tax elections. Our conclusion that the special tax election was invalid for the reasons stated in the text obviates the need to determine the substantial constitutional question of whether the special tax election in this case also violated the state Constitution prohibition concerning property qualifications in elections or the one-person, one-vote guarantee of the equal protection clause of the Fourteenth Amendment to the federal Constitution. (Cf. Southern Cal. Rapid Transit Dist. v. Bolen, supra, 1 Cal.4th at pp. 659-660 [holding that "under the narrow circumstances presented" a statute prescribing a "voting scheme" concerning the establishment of "`assessment districts'" that "condition[ed] the right to vote on the ownership of real property and alloting votes on the basis of its assessed value" "survive[d] constitutional scrutiny" (italics added)].)
