Judge Rejects Argument That Upland Allows Special Tax to Pass Without a Two-Thirds Vote

The California Supreme Court’s Upland decision cannot be used as justification for the city of Fresno to impose a special tax that wasn’t approved by at least two-thirds of the voters, a Fresno County Superior Court judge ruled September 5.

In City of Fresno v. Fresno Building Healthy Communities, the proponents of Measure P, the “Fresno Clean and Safe Neighborhood Parks Tax,” argued that the tax could take effect even though only 52 percent of the voters supported it in the November 2018 election.

The proponents claimed that the Supreme Court’s 2017 ruling in California Cannabis Coalition v. City of Upland allows special taxes such as Measure P to be approved by a simple majority, rather than the two-thirds required by the state constitution, if the measure is placed on the ballot via a citizens’ initiative.

Taxpayers argued that the Upland decision applied to the timing of elections, not the vote threshold for local taxes, and that the constitutional two-thirds requirement remains in effect.

Judge Kimberly Gaab sided with taxpayers, ruling that “Upland is confined to its limited holding concerning the election date for an initiative.” The discussion in Upland of Article XIIIC of the California Constitution related to when “the governing body of a local government is scheduling the election,” not the vote threshold required to pass a ballot measure, the judge wrote.

Measure P would have authorized Fresno to impose a 3/8 percent sales and use tax to fund parts and art-related programs. In December, the Fresno City Council declared that the measure failed because it didn’t receive two-thirds approval from the electorate. Fresno Building Healthy Communities (FBHC), the proponent of Measure P, sued the city, arguing that only a simple majority was needed. The Howard Jarvis Taxpayers Association intervened in the suit and filed a motion for judgment on the pleadings.

The judge’s order also states that “Under Proposition 13 and Altadena Library, in order to impose a special tax through initiative, local voters must vote in favor by a supermajority” and “the two-thirds vote requirement applies to all special tax proposals, regardless of the proponent of the proposal.”

Judge Gaab pointed to the Legislative Analyst’s Office’s (LAO) conclusion shortly after the Upland decision to support her ruling. The LAO concluded that “citizen initiatives that increase taxes must secure the same vote of the electorate – majority vote for general taxes and two-thirds vote for special taxes – as those placed on the ballot by local governing bodies.”

The defendants are likely to appeal the decision.

“It is likely for this issue to eventually go the California Supreme Court,” Sandra Celedon, chief executive officer of FBHC, acknowledged.

Judge Gaab expressed the same belief during the early stages of the litigation, stating that the issue is “likely to be decided by the Supreme Court or Legislature.”

This is one of several cases litigating the proper vote threshold for tax measures placed on the ballot via local initiatives.

With local government lawyers, taxpayers and trial courts expressing many different interpretations of Upland, it appears unlikely that the vote threshold issue will be resolved without a final determination by the California Supreme Court.

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