CITY OF SAN DIEGO, Plaintiff and Respondent, v. MELVIN SHAPIRO et al., Defendants and Appellants.
No. D063997
Fourth Dist., Div. One.
Aug. 1, 2014.
228 Cal.App.4th 756
Law Office of Craig A. Sherman and Craig A. Sherman for Defendant and Appellant Melvin Shapiro.
Briggs Law Corporation, Cory J. Briggs, Mekaela M. Gladden and Anthony N. Kim for Defendant and Appellant San Diegans for Open Government.
Jan I. Goldsmith, City Attorney, Donald R. Worley, Assistant City Attorney, Michael Travis Phelps and Glenn Spitzer, Deputy City Attorneys; Orrick Herrington & Sutcliffe, Michael C. Weed and Daniel C. Bort for Plaintiff and Respondent.
OPINION
AARON, J.—
I.
INTRODUCTION
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
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.).)
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
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. 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.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Convention Center Facilities District
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 (
“(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:
“All election procedures set forth in the [Mello-Roos Act] shall apply to this Division with the following exceptions:
“(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 Hotel2 is located, except that if the fee owner of the real property is a government entity, Landowner means the lessee of the government entity.” (San Diego Mun. Code, § 61.2705.)
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.)
B. The CCFD special tax election
The City Clerk conducted a mail-in 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.)
C. The City directs that the City Clerk record a notice of special tax lien and adopts an ordinance authorizing the levying of the special tax upon a final judicial determination that the special tax is valid
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.)
D. This validation action
1. The City‘s complaint and appellants’ answers
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.
2. The parties’ briefing
The parties filed briefs in the superior court pertaining to the validity of the special tax.3 In its opening brief, the City contended that the election approving the special tax was valid under the California Constitution. The City argued in part:
“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
underlying taxpayer protections such as Proposition 13 that are embedded in California law.” (Fn. omitted.)
The City further argued that the special tax did not violate
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.”4
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
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 (
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 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 CCFD.”8
3. The trial court‘s ruling
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
election.’ (Emphasis added.) Thus, not even all landowners within a CFD must get a vote—only those whose property would be subject to the tax are eligible to vote. That is how the CCFD was structured. Hotel property and transitory occupancy of hotel rooms are not residential properties or residential uses. (See San Diego Mun. Code, §§ 61.2705, 35.0102.) The [Mello-Roos] Act provides for weighted voting allocation based on the amount of property owned, reflecting a legislative desire to allocate voting power in proportion to the special tax each owner would pay if approved. (See California Bldg. Industry Assn. v. Governing Bd. (1988) 206 Cal.App.3d 212, 238 [253 Cal.Rptr. 497].)
“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.”
4. The appeals
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.9
DISCUSSION
A. The City‘s special tax is invalid because it was not approved by a two-thirds vote of either the “qualified electors” or the “electorate” of the City, as is required by the California Constitution
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” (
1. Applicable principles of interpretation and standard of review
As our Supreme Court emphasized in Silicon Valley Taxpayers’ Assn., Inc. v. Santa Clara County Open Space Authority (2008) 44 Cal.4th 431 [79 Cal.Rptr.3d 312, 187 P.3d 37] (Silicon Valley), in a case that challenged the legality of local government‘s actions under Proposition 218, “We ’ “must enforce the provisions of our Constitution and ‘may not lightly disregard or blink at a clear constitutional mandate.’ ” ’ [Citation.] In so doing, we are obligated to construe constitutional amendments in a manner that effectuates the voters’ purpose in adopting the law.” (Silicon Valley, supra, at p. 448.)
The Silicon Valley court outlined the principles that govern our interpretation of those provisions of the California Constitution that were adopted by the voters: “[W]e apply the familiar principles of constitutional interpretation, the aim of which is to ‘determine and effectuate the intent of those who enacted the constitutional provision at issue.’ [Citation.] ‘The principles of constitutional interpretation are similar to those governing statutory construction.’ [Citation.] If the language is clear and unambiguous, the plain meaning governs. [Citation.] But if the language is ambiguous, we
“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].)
2. The relevant constitutional provisions
3. The City‘s “qualified electors” for purposes of article XIII A, section 4, and the City‘s “electorate” for purposes of article XIII C, section 2, subdivision (d) are the registered voters of the City
The text, constitutional history, and purpose of both
a. The text of article XIII A, section 4 makes clear that the City‘s “qualified electors” are the City‘s registered voters
The text of
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 [the 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.’ (
In light of these provisions, the Neilson court concluded that ”
The California Attorney General has reached the same conclusion as did the Neilson court. (See 66 Ops.Cal.Atty.Gen. 321, 330 (1983) [interpreting the “the two-thirds majority vote provision[] of...
As both Neilson and the Attorney General‘s opinion suggest, interpreting the phrase “vote of the qualified electors” in
In Bergevin, after noting that the state Constitution prescribes the “qualifications of an elector” (Bergevin, supra, 127 Cal. at p. 88), the Supreme Court explained that voting registration requirements are a method of determining which individuals are “qualified electors.” (Ibid., italics added; see Minges v. Board of Trustees (1915) 27 Cal.App. 15, 18 [citing Bergevin and stating, “A qualified elector, then, is a person whose qualifications measure up to the constitutional standard“].) Thus, in requiring a “vote of the qualified electors,” the text of
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
The City offers no textual argument to counter the Neilson court‘s conclusion that the phrase “qualified electors” in
b. The constitutional history of article XIII A, section 4 is consistent with the conclusion that the City‘s “qualified electors” are its registered voters
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
c. The intent of the voters in enacting article XIII A, section 4 to restrict the taxing authority of local governments supports the conclusion that the City‘s special tax election violated the state Constitution
Interpreting “qualified electors” as describing a single, defined set of persons, i.e. registered voters, is consistent with California voters’ intent in enacting
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
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 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
Interpreting the term “qualified electors” (
d. The text, history, and purpose of Proposition 218 support the conclusion that registered voters also comprise the “electorate” in article XIII C, section 2, subdivision (d)
The City does not dispute that the terms “qualified electors” in
In addition, “because Proposition 218 was designed to close government-devised loopholes in Proposition 13, the intent and purpose of the latter
In light of the similarity of the relevant text of
The fact that Proposition 218 did expressly permit property owners to vote on certain assessments (
amounts greater than other owners’ properties a proportionately greater say as to whether the proposed assessment will be instituted.“].)
The lack of any provision comparable to the weighted property owner voting provisions mandated for assessments in
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.”25 (Ballot Pamp. on Prop. 218, supra, argument against Prop. 218, p. 77.) In rebuttal to the argument against Proposition 218, those supporting Proposition 218 stated, “Under Proposition 218, only California registered voters, including renters, can vote in tax elections. Corporations and foreigners get no new rights.” (Ballot Pamp. on Prop. 218, supra, rebuttal to argument against Prop. 218, p. 77, italics added.) In the special tax election in this case, the City‘s registered voters were not permitted to vote—unless they happened to be Landowners, and to the extent Landowners were a corporation or a foreigner, they were permitted to vote.
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.26 If the voters who adopted Propositions 13 and 218 had desired that only qualified property owners be permitted to vote on the imposition of special taxes, they were clearly aware of the text to use to evince such intent. (See, e.g.,
Second, the specification of a voting scheme for the imposition of taxes in
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“].)28 While the City argues that only Landowners should vote on the special tax since they are the taxpayers who will pay the tax, it is far from clear that the incidence of the special tax will actually fall only on Landowners and not on those individuals who pay for hotel rooms and generate the room revenue on which the tax is based.29 Further, even assuming that the incidence of the tax would fall solely on Landowners, this would not support the conclusion that Landowners are the proper class of persons to vote on the tax. That is because “[n]othing is more familiar in taxation than the imposition of a tax upon a class or upon individuals who enjoy no direct benefit from its expenditure, and who are not responsible for the condition to be remedied.” (Silicon Valley, supra, 44 Cal.4th at p. 442, quoting Knox, supra, 4 Cal.4th at p. 142.) Giving Landowners the unilateral right to determine how to apportion the benefits
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.
f. The landowner voting format outlined in Government Code section 53326, subdivision (c), part of the Mello-Roos Act, does not demonstrate the constitutional validity of the City‘s special tax election
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
The term “qualified electors” (
the court explained that the Legislature‘s contemporaneous construction of
“Building Industry correctly argues that in [interpreting] article XIII A, section 4 . . . we should also apply the rule of construction which states that ambiguities in an enactment may be resolved by referring to the contemporaneous construction given to the enactment by the Legislature or by the administrative agency charged with implementing the enactment. [Citations] ‘[W]here a constitutional provision may well have either of two meanings, it is a fundamental rule of constitutional construction that, if the [L]egislature has by statute adopted one, its action in this respect is well nigh, if not completely, controlling.’ (San Francisco v. Industrial Acc. Com.[, supra, 183 Cal. at p. 279] . . . .)
“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
In any event, a consideration of the election provisions contained in the Mello-Roos Act does not persuade us that the special tax election in this case complied with
There is nothing in either the text or the legislative history of
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 p. 6), the City‘s argument that we should defer to the Legislature‘s purported intent in enacting
Even assuming that, in enacting
Accordingly, we conclude that the City‘s special tax is invalid because it was not approved by a two-thirds vote of either the “qualified electors” (
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.36 This claim turns on the proper interpretation of the City Charter, an issue that we review de novo. (See, e.g., City of Oakland v. Oakland Police & Fire Retirement System (2014) 224 Cal.App.4th 210, 226, fn. 7 [169 Cal.Rptr.3d 51] [“we will resolve this appeal through our de novo review of legal issues, such as the interpretation of the [Oakland City Charter]“]; Conde v. City of San Diego (2005) 134 Cal.App.4th 346, 350 [36 Cal.Rptr.3d 54] [“the interpretation of a city charter is reviewed de novo on appeal“].)
1. The legal effect of the City Charter
In San Diego City Firefighters, Local 145 v. Board of Administration etc. (2012) 206 Cal.App.4th 594, 608 [141 Cal.Rptr.3d 860], this court outlined the legal effect of the City Charter: ” ‘[T]he charter represents the supreme law of the City, subject only to conflicting provisions in the federal and state Constitutions and to preemptive state law. [Citation.] . . . “[T]he charter operates . . . as an instrument of limitation and restriction on the exercise of power over all municipal affairs which the city is assumed to possess . . . .” [Citations.]’ [Citations.]’ [Citation.] ‘[I]t is well settled that a charter city may not act in conflict with its charter. [Citations.] Any act that is violative of or not in compliance with the charter is void. [Citation.]’ [Citation.] The provisions of the city‘s charter thus ‘supersede all municipal laws, ordinances, rules or regulations inconsistent therewith’ [citation] and ‘an ordinance [or resolution] violative of or not in compliance with the city charter is void.’ (5 McQuillin, The Law of Municipal Corporations (3d ed.) § 15:17, p. 144.)”
2. Principles of interpretation
“Generally, the same principles of construction applicable to statutes apply to the interpretation of municipal charters. [Citations.] The courts must always look first to the express language of the [law] to ascertain its meaning.” (United Assn. of Journeymen v. City and County of San Francisco (1995) 32 Cal.App.4th 751, 760 [38 Cal.Rptr.2d 280].)
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.)
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.)
4. “Qualified electors” for purposes of the City Charter are the City‘s registered voters
Section 6 of the City Charter provides that the qualified electors for “any election held in the City” shall be those persons who are registered to vote under state law. Thus, pursuant to section 6, “qualified electors” means registered voters. Section 76.1, in turn, mandates that a special tax may be imposed only upon the approval of two-thirds of “qualified electors.” Reading sections 6 and 76.1 together, as we must,37 sections 6 and 76.1 provide that
The express reference to
The voter information pamphlet from the election at which the City‘s voters enacted section 76.1 supports this conclusion,38 stating in relevant part:
“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.)39
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” 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,41 may be deemed to be a tax levied upon less than the entire City within the meaning of section 76.1. Even assuming that a noncontiguous special district could be considered an area “less than the entire City” under section 76.1, it is unclear, at best, whether this portion of section 76.1 would permit the qualified electors in an area “less than the entire City” to authorize the potential imposition of a tax on any parcel within the City, whenever any such parcel becomes used as a hotel in the future. In any event, even with respect to tax levies that are geographically limited, section 76.1 requires a vote of “qualified electors,” which we have interpreted to mean registered voters. Thus, even assuming that the final clause of section 76.1 applies, the City‘s special tax election violated the City Charter because the City identified Landowners, rather than registered voters, as the “qualified electors” who would be permitted to vote in the election.42
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.
V. DISPOSITION
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.
Notes
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