does not expressly include fees imposed by initiative. Because Article 13C is silent in
this regard, we decline to construe Article 13C as applying to taxes imposed by initiative.
The City relies on Howard Jarvis Taxpayers Assn. v. City of La Habra (2001) 25
Cal.4th 809 (La Habra) for the proposition a tax imposed by local government refers to,
not only enactment of a tax by local government, but also its continuing collection by and
payment to a local government. But La Habra is not on point. It concerns Proposition
62, which in 1986, added Government Code sections 537271 and 53728.2 These
1 Government Code section 53727 states: “(a) Neither this Article, nor Article XIII A of the California Constitution, nor Article 3.5 of Division 1 of Title 5 of the Government Code (commencing with § 50075) shall be construed to authorize any local government or district to impose any general or special tax which it is not otherwise authorized to impose; provided, however, that any special tax imposed pursuant to Article 3.5 of Division 1 of Title 5 of the Government Code prior to August 1, 1985 shall not be affected by this section.
“(b) Any tax imposed by any local government or district on or after August 1, 1985, and prior to the effective date of this Article, shall continue to be imposed only if approved by a majority vote of the voters voting in an election on the issue of imposition, which election shall be held within two years of the effective date of this Article. Any local government or district which fails to seek or obtain such majority approval shall cease to impose such tax on and after November 15, 1988.” (Italics added.)
17
provisions address taxes imposed by government without voter approval, before
Proposition 62 took effect, which the city continues to collect.
In La Habra, supra, 25 Cal.4th 809, the city adopted an ordinance establishing a
utility users tax to raise revenue for general government purposes. The La Habra court
held the statute of limitations had not run on the petitioner’s challenge to the City of La
Habra’s continuing collection of a tax without obtaining voter approval of the tax. In
reaching its holding, the court stated in La Habra that “the City’s allegedly illegal actions
include not only the Ordinance’s initial enactment, but also the City’s continued
collection, through the agency of the service providers, of an unapproved tax.”
“Government Code section 53728, moreover, provides a remedy against a city’s
continued collection of a tax that has not been approved by the voters, requiring the
responsible county official to withhold property tax transfers in a dollar amount equal to
the illegal collections. Clearly the intent of Proposition 62’s enactors was not merely to
preclude enactment of a tax ordinance without voter approval, but to preclude continued
[footnote continued from previous page] 2 Government Code section 53728 states: “If any local government or district imposes any tax without complying with the requirements of this Article, or in excess of its authority as clarified by Section 53727, whether or not any provision of Section 53727 is held not applicable to such jurisdiction, the amount of property tax revenue allocated to the jurisdiction pursuant to Chapter 6 of part 0.5 of Division 1 of the Revenue and Taxation Code (commencing with Section 95) shall be reduced by one dollar ($1.00) for each one dollar ($1.00) of revenue attributable to such tax for each year that the tax is collected. Nothing in this section shall impair the right of any citizen or taxpayer to maintain any action to invalidate any tax imposed in violation of this Article.”
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imposition or collection of such a tax as well.” (La Habra, supra, 25 Cal.4th at p. 824;
italics added.)
In La Habra, supra, 25 Cal.4th at pages 823-824, the court further explained:
“[T]he City appears to contend that Proposition 62 can be violated only at the time a tax
ordinance is first enacted because, in the City’s view, all Proposition 62 prohibits is
‘imposition’ of a tax without voter approval, and imposition is limited to the time of
initial enactment. Both premises are faulty. Government Code section 53727,
subdivision (b), which governs taxes imposed prior to the measure’s passage, provides
that no such tax ‘shall continue to be imposed’ without a vote within two years of the
measure’s effective date, and that a taxing jurisdiction that fails to obtain a majority vote
‘shall cease to impose such tax on and after November 15, 1988.’ Clearly, in this
provision, “imposition” is not limited to the time of initial enactment, and nothing in
Proposition 62 suggests that it was used in a more restricted sense in Government Code
section 53723,[3] the prohibitory provision at issue here. Government Code section
53728, moreover, provides a remedy against a city’s continued collection of a tax that has
not been approved by the voters, requiring the responsible county official to withhold
property tax transfers in a dollar amount equal to the illegal collections. Clearly the
intent of Proposition 62’s enactors was not merely to preclude enactment of a tax
3 Government Code section 53723 states: “No local government, or district, whether or not authorized to levy a property tax, may impose any general tax unless and until such general tax is submitted to the electorate of the local government, or district and approved by a majority vote of the voters voting in an election on the issue.”
19
ordinance without voter approval, but to preclude continued imposition or collection of
such a tax as well.” (Italics added.)
The instant case is distinguishable from La Habra. La Habra is founded on
Proposition 62 and statutory language that expressly prohibits, not only taxes imposed by
government without voter approval, but also taxes imposed by local government before
adoption of Proposition 62, which the government has continued to impose without
obtaining voter approval of the taxes. There is no similar language in Proposition 218
(Article 13C) or Proposition 26, from which this court can reasonably infer Propositions
218 and 26 are intended to encompass taxes local government collects after they have
been imposed by initiative, in which there has been voter approval.
The purpose and intent of Propositions 13 and 218 is to limit the power of local
governments to impose taxes by imposing voting requirements. “‘Section 5 of
Proposition 218 required that the provisions of the act be “liberally construed to
effectuate its purposes of limiting local government revenue and enhancing taxpayer
consent.”’ [Citation.]” (Weisblat, supra, 176 Cal.App.4th at p. 1039, quoting Pajaro,
supra, 150 Cal.App.4th at p. 1378 and Bay Area Cellular, supra, 162 Cal.App.4th at p.
692; italics added; see Howard Jarvis Taxpayers Assn. v. City of Riverside (1999) 73
Cal.App.4th 679, 681-682.) As explained in Howard Jarvis Taxpayers Assn. v. City of
In Ponderosa, supra, 23 Cal.App.4th 1761, the court addressed the question of
“whether the ‘imposition of fees’ in [Ponderosa] occurred when the City first set the
traffic mitigation fees as a condition on its tentative subdivision map approval, or when
Ponderosa paid an installment on the fees already required by the City.” (Id. at p. 1669.)
Ponderosa Homes, Inc. (Ponderosa Homes) argued that no cause of action protesting
development project fees Government Code section 66020 accrues “‘until the challenged
fee is paid, because section 66020, subdivision (a) establishes as the two prerequisites for
a fee protest both the tender of the required payment in full and written notice that the
payment is being tendered under protest.’” (Ponderosa at p. 1770.)4 The Ponderosa
court disagreed, stating: “The phrase ‘to impose’ is generally defined to mean to
establish or apply by authority or force, as in ‘to impose a tax.’ (Webster’s Third New
Internat. Dict. (1970) p. 1136.) There is a logical distinction between the act of imposing
4 Government Code section 66020 states in relevant part: “(a) Any party may protest the imposition of any fees, dedications, reservations, or other exactions imposed on a development project, as defined in Section 66000, by a local agency by meeting both of the following requirements . . .” (Italics added.)
23
something and the act of complying with that which has been imposed. As applicable
here, the phrase refers to the creation of a condition or fee by authority of local
government; it is not synonymous with the act of complying with that condition or fee.
Just as creation is different from compliance, so is ‘imposition’ of a fee different from
payment thereof.” (Ponderosa, at p. 1770; italics added.)
The court in Ponderosa further explained that “[t]he statutory definition of
‘imposition of fees’ does not contradict this interpretation. Section 66020, subdivision
(h) states that ‘imposition of fees, dedications, reservations, or other exactions occurs . . .
when they are imposed or levied on a specific development.’ The statute does not say
that imposition occurs ‘when they are paid or complied with.’” (Ponderosa, supra, 23
Cal.App.4th at p. 1770, citing Webster’s Third New Internat. Dict., supra, p. 1301.) The
court in Ponderosa therefore concluded that Ponderosa Homes’s payment of the required
map processing fee “simply constituted the satisfaction of the condition already imposed
earlier,” and was not paid at the time the government imposed the fee. (Id. at p. 1771.)
Likewise, here, based on our review of Propositions 13, 218, and 26 as whole and
taking into consideration the stated intent of these propositions (preventing government
from imposing taxes without voter approval), we conclude the drafters, proponents, and
voters of Propositions 13, 218 and 26 did not intend the language, “imposed by local
government,” to encompass taxes imposed by initiative, but later collected or received by
local government.
The only mention of the initiative power in Article 13C is in section 3, which
clarifies that, “[n]otwithstanding any other provision of this Constitution, including, but
24
not limited to, Sections 8 and 9 of Article II, the initiative power shall not be prohibited
or otherwise limited in matters of reducing or repealing any local tax, assessment, fee or
charge. The power of initiative to affect local taxes, assessments, fees and charges shall
be applicable to all local governments and neither the Legislature nor any local
government charter shall impose a signature requirement higher than that applicable to
statewide statutory initiatives.” (Italics added.) Even though there is no mention also of
initiatives that impose, increase, or extend a local tax, there is no language in Article 13C
stating it applies to such initiatives. To conclude otherwise would interfere with the
initiative power provided in Article 2, sections 8 and 11 of the California Constitution.
CCC’s Initiative and Article 2, sections 8 and 11, “must be construed liberally in
favor of the people’s right to exercise the reserved powers of initiative and referendum.
The initiative and referendum are not rights ‘granted the people, but . . . power[s]
reserved by them. Declaring it “the duty of the courts to jealously guard this right of the
people” [citation], the courts have described the initiative and referendum as articulating
“one of the most precious rights of our democratic process” [citation]. “[I]t has long been
our judicial policy to apply a liberal construction to this power wherever it is challenged
in order that the right not be improperly annulled. If doubts can reasonably be resolved
in favor of the use of this reserve power, courts will preserve it.”’” (Rossi v. Brown
(1995) 9 Cal.4th 688, 695 (Rossi); Associated Home Builders etc., Inc. v. City of
Livermore (1976) 18 Cal.3d 582, 591.) This is because, “as its name suggests, the
initiative allows voters to propose new legislation” (Jahr v. Casebeer (1999) 70
Cal.App.4th 1250, 1259; see Cal. Const., art. II, § 8), and allows “local as well as
25
statewide voters to take legislative action without the aid or interference of their elected
officials.” (Id. at p. 1259; see Cal. Const., art. II, § 11; AFL-CIO v. Deukmejian (1989)
212 Cal.App.3d 425, 430.)
Article II, section 8 of the California Constitution creates the statewide initiative
power. (Rossi, supra, 9 Cal.4th at p. 695.) It provides in pertinent part:
“(a) The initiative is the power of the electors to propose statutes and amendments
to the Constitution and to adopt or reject them.
“(b) An initiative measure may be proposed by presenting to the Secretary of State
a petition that sets forth the text of the proposed statute . . . and is certified to have been
signed by electors equal in number to 5 percent in the case of a statute . . . of the votes for
all candidates for Governor at the last gubernatorial election.
“(c) The Secretary of State shall then submit the measure at the next general
election held at least 131 days after it qualifies or at any special statewide election held
prior to that general election. The Governor may call a special statewide election for the
measure. . . .”
Article 2, section 11 of the Constitution further provides: “(a) Initiative and
referendum powers may be exercised by the electors of each city or county under
procedures that the Legislature shall provide.” “The local initiative power may be even
broader than the initiative power reserved in the Constitution.” (Rossi, supra, 9 Cal.4th at
p. 696.) The initiative procedures that the Legislature has enacted are included in
Elections Code sections 1405 and 9214. The constitutional grant of authority to the
26
Legislature to pass laws regarding taxation does not limit the people’s plenary power of
initiative, and that power may be used to enact or repeal taxes. (Rossi, at p. 709.)
The City has agreed to place CCC’s Initiative on the next regularly scheduled
general election ballot, in November 2016. CCC argues, however, that the City’s refusal
to place the Initiative on a special ballot unlawfully interferes with CCC’s right of
initiative by delaying voting on the Initiative until the next general election in November
2016. We agree. Article 2, sections 8 and 11, provide that at the request of an initiative’s
proponents, an initiative shall be placed on the ballot in accordance with procedures
provided by the Legislature. Elections Code section 9214 provides that if the Initiative is
not adopted by City ordinance, the City shall either immediately order a special election,
to be held pursuant to subdivision (a) of section 1405, or the City shall order a report
pursuant to Elections Code section 9212. The City ordered a report pursuant to Elections
Code section 9212 and presented the report to the City council, which was then required
to either adopt the Initiative by City ordinance within 10 days or order a special election
for the Initiative.
Elections Code section 1405 provides in relevant part:
“(a) Except as provided below, the election for a county, municipal, or district
initiative that qualifies pursuant to Section 9116, 9214, or 9310 shall be held not less than
88 nor more than 103 days after the date of the order of election.
“(1) When it is legally possible to hold a special election on an initiative measure
that has qualified pursuant to Section 9116, 9214, or 9310 within 180 days prior to a
regular or special election occurring wholly or partially within the same territory, the
27
election on the initiative measure may be held on the same date as, and be consolidated
with, that regular or special election.
“(2) When it is legally possible to hold a special election on an initiative measure
that has qualified pursuant to Section 9116, 9214, or 9310 during the period between a
regularly scheduled statewide direct primary election and a regularly scheduled statewide
general election in the same year, the election on the initiative measure may be held on
the same date as, and be consolidated with, the statewide general election.”
Here, the Initiative qualifies under section 9214 for a special election, since the
Initiative petition was signed by at least 15 percent of the City voters and the initial
Initiative petition contained a request that the initiative be submitted immediately to a
vote of the people at a special election. Therefore the City is required to place the
Initiative on a special election ballot. Where the City council “refuses to discharge its
duty and fix a proper time for the election, it may be compelled to do so by mandamus.”
(Blotter v. Farrell (1954) 42 Cal.2d 804, 812-813.) The trial court therefore abused its
discretion by denying CCC’s writ petition to compel the City to place CCC’s Initiative on
a special ballot, as required under Article 2, sections 8 and 11, and Elections Code
sections 1405 and 9214.5
5 CCC urges this court to include in this decision and in the disposition guidance on when the special election on the Initiative should be set. Doing so would be premature and constitute an inappropriate advisory opinion, since this is matter which will turn on the facts and circumstances existing when the case is remanded to the trial court. The parties have not had an opportunity to fully consider the scheduling of the special election, taking into consideration the applicable law and circumstances affecting
[footnote continued on next page]
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VII
DISPOSITION
The trial court’s ruling and judgment denying CCC’s writ petition is reversed, and
the trial court is directed to issue a writ of mandate compelling the City to place the
Initiative on a special ballot, in accordance with Article 2, sections 8 and 11, and
Elections Code sections 1405 and 9214. CCC is awarded its costs on appeal as the
prevailing party.
CERTIFIED FOR PUBLICATION
CODRINGTON J.
We concur:
HOLLENHORST Acting P. J.
McKINSTER J.
[footnote continued from previous page] the scheduling of the special election and whether the Initiative election must be consolidated with another election under the Elections Code and California Constitution.
29
AI Brief
AI-generated · verify before citing
Holding. Article XIIIC of the California Constitution, which governs taxes imposed by local governments, does not apply to voter-sponsored initiatives. Consequently, the City of Upland is required to place the initiative on a special election ballot pursuant to Elections Code sections 1405 and 9214.
Issues
Whether Article XIIIC of the California Constitution applies to taxes imposed by voter initiative.
Whether the City of Upland is required to place a voter-sponsored initiative on a special election ballot under Elections Code sections 1405 and 9214.
Disposition. Reversed with directions.
Quotations verified verbatim against the opinion
“Article 13C is silent as to taxes imposed by initiative.”
“Article 13C, section 2 does not apply to CCC’s Initiative.”
“Article 13C, section 1(e) does not expressly include fees imposed by initiative. Because Article 13C is silent in this regard, we decline to construe Article 13C as applying to taxes imposed by initiative.”