The opinion
IN THE SUPREME COURT OF
CALIFORNIA
LEGISLATURE OF THE STATE OF CALIFORNIA et al.,
Petitioners,
v.
SHIRLEY N. WEBER, as Secretary of State, etc.,
Respondent;
THOMAS W. HILTACHK,
Real Party in Interest.
S281977
June 20, 2024
Justice Liu authored the opinion of Court, in which Chief
Justice Guerrero and Justices Corrigan, Kruger, Groban,
Jenkins, and Evans concurred.
LEGISLATURE OF THE STATE OF CALIFORNIA v. WEBER
S281977
Opinion of the Court by Liu, J.
Petitioners — the Legislature of the State of California,
Governor Gavin Newsom, and elector and former Senate
President Pro Tempore John Burton — filed this original
proceeding seeking a writ of mandate or prohibition to bar the
Secretary of State (Secretary) from placing an initiative
measure on the November 2024 general election ballot. The
measure at issue has been designated Attorney General
Initiative No. 21-0042A1 and Secretary of State Initiative
No. 1935, and has been named the “Taxpayer Protection and
Government Accountability Act” by its drafters. We refer to it
as the “TPA.” The petition primarily contends that the TPA is
invalid because it attempts to revise the California Constitution
via citizen initiative. Petitioners also argue that the TPA is
invalid because it would seriously impair essential government
functions. Petitioners named Thomas W. Hiltachk, the
proponent of the challenged measure (Proponent), as real party
in interest.
We issued an order to show cause and established an
expedited briefing schedule in order to resolve this matter before
the date that the Secretary must formally qualify the initiative
for the ballot and prepare related materials for the voter
information guide.
“We stress initially the limited nature of our inquiry. We
do not consider or weigh the economic or social wisdom or
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Opinion of the Court by Liu, J.
general propriety of the initiative.” (Amador Valley Joint Union
High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d
208, 219 (Amador Valley).) The only question before us is
whether the measure may be validly enacted by initiative. After
considering the pleadings and briefs filed by the parties and
amici curiae as well as the parties’ oral arguments, we conclude
that Petitioners have clearly established that the challenged
measure would revise the Constitution without complying with
the appropriate procedure. The changes proposed by the TPA
are within the electorate’s prerogative to enact, but because
those changes would substantially alter our basic plan of
government, the proposal cannot be enacted by initiative. It is
instead governed by the procedures for revising our
Constitution. We therefore issue a peremptory writ of mandate
directing the Secretary to refrain from taking any steps to place
the TPA on the November 5, 2024 election ballot or to include
the measure in the voter information guide.
I.
We begin by summarizing the terms of the TPA and then
recount the procedural history of this matter.
A.
The complete text of the initiative is set forth in the
appendix. In the original, proposed deletions to constitutional
text are denoted in strikeout and proposed additions are denoted
by italics and underscoring. When quoting the text here, we
have omitted italics and underscoring, except where necessary
to identify the proposed modifications.
Section 1 provides that the initiative shall be known as the
“Taxpayer Protection and Government Accountability Act.”
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Opinion of the Court by Liu, J.
Section 2 sets forth several “Findings and Declarations.”
Subdivision (a) declares that “Californians are overtaxed”; cites
U.S. Census Bureau data concerning the state’s combined state
and local tax burden, which the initiative declares to be “the
highest in the nation”; and notes that legislation proposed in
2021 continued to raise taxes and fees despite recent revenue
surpluses. Subdivision (b) declares that the state’s tax burden
is “only part of the reason for California’s rising cost-of-living
crisis” and refers to “hidden ‘fees’ passed through to consumers
in the price they pay for products, services, food, fuel, utilities
and housing.” Subdivision (c) declares that the state’s high cost
of living “not only contributes to the state’s skyrocketing rates
of poverty and homelessness,” but also “push[es] working
families and job-providing businesses out of the state.”
Subdivision (d) recounts prior voter attempts “to assert control
over whether and how taxes and fees are raised,” including
Proposition 13 in 1978, Proposition 62 in 1986, Proposition 218
in 1996, and Proposition 26 in 2010. Subdivision (e) declares:
“Contrary to the voters’ intent, these measures that were
designed to control taxes, spending and accountability, have
been weakened and hamstrung by the Legislature, government
lawyers, and the courts, making it necessary to pass yet another
initiative to close loopholes and reverse hostile court decisions.”
Section 3 says the initiative’s purpose is to enable voters
to “reassert their right to a voice and a vote on new and higher
taxes by requiring any new or higher tax be put before voters for
approval.” (TPA, § 3, subd. (a).) Section 3 goes on to state
additional purposes of the initiative: “to increase transparency
and accountability . . . by requiring any tax measure placed on
the ballot — either at the state or local level — to clearly state
the type and rate of any tax, how long it will be in effect, and the
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Opinion of the Court by Liu, J.
use of the revenue generated by the tax” (id., subd. (b)); to
ensure that any new or increased form of state government
revenue is “broadly supported and transparently debated” by
requiring that any exaction “be authorized only by a vote of the
Legislature and signature of the Governor” (id., subd. (c)); and
“to ensure that taxpayers have the right and ability to effectively
balance new or increased taxes and other charges with the
rapidly increasing” cost of living and to “protect the existing
constitutional limit on property taxes and ensure that the
revenue from such taxes remains local” (id., subd. (d)). The final
purpose of the initiative, set forth in subdivision (e), is “to
reverse loopholes in the legislative two-thirds vote and voter
approval requirements for government revenue increases
created by the courts including, but not limited to,” California
Cannabis Coalition v. City of Upland (2017) 3 Cal.5th 924
(Cannabis Coalition), California Chamber of Commerce v. State
Air Resources Bd. (2017) 10 Cal.App.5th 604, Schmeer v. County
of Los Angeles (2013) 213 Cal.App.4th 1310, Johnson v. County
of Mendocino (2018) 25 Cal.App.5th 1017, Citizens Assn. of
Sunset Beach v. Orange County Local Agency Formation Com.
(2012) 209 Cal.App.4th 1182, and Wilde v. City of Dunsmuir
(2020) 9 Cal.5th 1105 (Wilde).
Section 4 is the first substantive provision of the initiative.
It would amend article XIII A, section 3 of the California
Constitution, first, by adding a new subdivision (a) to provide
that “[e]very levy, charge, or exaction of any kind imposed by
state law is either a tax or an exempt charge.” (TPA, § 4.) The
term “ ‘tax’ ” is currently defined as “any levy, charge, or
exaction of any kind imposed by the State,” with enumerated
exceptions. (Cal. Const., art. XIII A, § 3, subd. (b); all
undesignated articles hereafter refer to provisions of the
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California Constitution.) The TPA would amend this definition
to provide that, as used in article XIII A and in section 9 of
article II, “ ‘tax’ means every any levy, charge, or exaction of any
kind imposed by the State state law that is not an exempt
charge,” and current exceptions to the definition of “tax” would
be amended and incorporated into a new definition of “exempt
charge.” (TPA, § 4 [proposed art. XIII A, § 3, subds. (d), (e)].)
Section 9 of article II recognizes the electorate’s referendum
power to approve or reject statutes “except . . . statutes
providing for tax levies or appropriations for usual current
expenses of the State.” (Art. II, § 9, subd. (a).) Thus, under the
TPA, every state exempt charge would be subject to referendum
because it does not qualify as a “tax.” The term “state law”
would be defined in this context to include, but not be limited to,
“any state statute, state regulation, state executive order, state
resolution, state ruling, state opinion letter, or other legal
authority or interpretation adopted, enacted, enforced, issued,
or implemented by the legislative or executive branches of state
government,” while excluding actions taken by The Regents of
the University of California, the Trustees of the California State
University, or the Board of Governors of the California
Community Colleges. (TPA, § 4 [proposed art. XIII A, § 3,
subd. (h)(4)].)
Second, section 4 imposes what Proponent refers to as the
“State Tax Provision,” renumbering what is now article XIII A,
section 3, subdivision (a) as new subdivision (b)(1) and
amending that provision as follows: “Any change in state
statute law which results in any taxpayer paying a new or
higher tax must be imposed by an act passed by not less than
two-thirds of all members elected to each of the two houses of
the Legislature, and submitted to the electorate and approved by
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a majority vote, except that no new ad valorem taxes on real
property, or sales or transaction taxes on the sales of real
property, may be imposed.” (TPA, § 4 [proposed art. XIII A, § 3,
subd. (b)(1)].) New subdivision (b)(1) would also specify the
contents of any such act for voter approval, including, among
other things, the duration of the time the tax would be imposed
and an estimate of the annual amount of revenue derived (TPA,
§ 4 [proposed art. XIII A, § 3, subd. (b)(1)(A)]) and “[a] specific
and legally binding and enforceable limitation on how the
revenue from the tax can be spent” (ibid. [proposed art. XIII A,
§ 3, subd. (b)(1)(B)]). Any such limitation could be changed only
through a new legislative act passed by not less than two-thirds
of all members of each house and submitted to the voters for
approval by a majority vote. (Ibid.) Tax revenue “can be spent
for ‘unrestricted general revenue purposes,’ ” but only if set forth
as such in a statement contained in a separate, stand-alone
section. (Ibid.) Proposed subdivision (b)(2) would set forth
additional requirements for ballot materials to accompany any
initiative that would impose a tax, including any measure
proposed by an elector.
Third, section 4 of the TPA would enact what Proponent
refers to as the “State Exempt Charge Provision.” This
provision would add a new subdivision (c) to article XIII A,
section 3, providing that “[a]ny change in state law which results
in any taxpayer paying a new or higher exempt charge must be
imposed by an act passed by each of the two houses of the
Legislature.” (TPA, § 4 [proposed art. XIII A, § 3, subd. (c)].)
The TPA would put the burden on the state to prove “by a
preponderance of the clear and convincing evidence” that a levy,
charge, or other exaction is an exempt charge rather than a tax
by showing that “the amount of the exempt charge is reasonable
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Opinion of the Court by Liu, J.
and that the amount charged does not exceed the actual cost of
providing the service or product to the payor,” with “actual cost”
defined as set forth in the initiative. (Ibid. [proposed art. XIII A,
§ 3, subds. (g)(1), (h)(1)].)
Fourth, section 4 of the initiative amends what is
currently subdivision (c) of article XIII A, section 3 to provide
the first of two rollback provisions, stating that “[a]ny tax or
exempt charge adopted after January 1, 2022 . . . , but prior to
the effective date of this act, that was not adopted in compliance
with the requirements of this section is void 12 months after the
effective date of this act unless the tax or exempt charge is
reenacted . . . in compliance with the requirements of this
section.” (TPA, § 4 [proposed art. XIII A, § 3, subd. (f)].)
Section 5 of the initiative would amend article XIII C,
section 1 of the California Constitution, which defines terms
relevant to voter approval for local tax levies, in much the same
manner as state tax levies. (TPA, § 5 [proposed art. XIII C, § 1,
subds. (f) defining “local law,” (i) defining “tax,” (j) defining
“exempt charge”].) Among other changes, section 5 would
subject all local fines and fees that qualify as exempt charges,
including license fees and rental fees, to voter referendum.
(Ibid. [proposed art. XIII C, § 1, subds. (i) redefining “tax” for the
purposes of Cal. Const., art. II, § 9, which governs referenda, (j)
defining “ ‘ exempt charge’ ”].)
Section 6 of the initiative would enact what Proponent
refers to as the “Local Tax Provision” by amending
article XIII C, section 2 of the California Constitution in several
aspects. First, it would extend the current two-thirds voter
approval requirement for local special taxes to apply not only
when the tax is proposed by a local governing body but also when
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proposed “by an elector.” (TPA, § 6 [proposed art. XIII C, § 2,
subd. (c)].) Second, it would require that any exempt charge be
imposed by “the governing body of a local government” or via
initiative, and it would prohibit local governments from
imposing a tax or exempt charge by way of charter amendment.
(Ibid. [proposed art. XIII C, § 2, subds. (e), (f)].) Third, it would
enact the second rollback provision of the initiative, providing
that “[a]ny tax or exempt charge adopted after January 1, 2022,
but prior to the effective date of this act, that was not adopted
in compliance with the requirements of this section is void 12
months after the effective date of this act unless the tax or
exempt charge is reenacted in compliance with the requirements
of this section.” (Ibid. [proposed art. XIII C, § 2, subd. (g)].)
Section 7 of the TPA proposes to amend section 3 of
article XIII D, which limits property taxes, assessments, fees,
and charges. It would add surcharges, including those “based
on the value of property,” to the list of levies that state and local
governments are barred from assessing “upon any parcel of
property” or property ownership. (TPA, § 7 [proposed
art. XIII D, § 3, subd. (a)].) Section 7 would also revise two of
the enumerated exceptions to this bar. First, article XIII D,
subdivision (a)(1), which currently exempts ad valorem property
taxes “imposed pursuant to article XIII and article XIII A,”
would be modified to exempt ad valorem property taxes that are
“described in Section 1(a) of Article XIII and Section 1(a) of
Article XIII A” (TPA, § 7) as well as those “described and enacted
pursuant to the voter approval requirement in Section 1(b) of
Article XIII A” (ibid.). Second, article XIII D, subdivision (a)(2),
which now exempts “[a]ny special tax receiving a two-thirds vote
pursuant to section 4 of article XIII A” (i.e., those imposed by
cities, counties, and special districts), would be modified to
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exempt “[a]ny special non-ad valorem tax receiving a two-thirds
vote of qualified electors pursuant to section 4 of article XIII A”
(TPA, § 7 [proposed art. XIII D, § 3, subd. (a)(2)]) or “a two-
thirds vote of those authorized to vote in a community facilities
district by the Legislature pursuant to statute” (ibid.).
Section 8 of the initiative proposes to amend sections 1 and
14 of article XIII. It would add a new provision to section 1,
subdivision (c) that would require “[a]ll proceeds from the
taxation of property” to be apportioned “to the districts within
the counties.” (TPA, § 8 [proposed art. XIII, § 1, subd. (c)].)
Section 14 of article XIII would be amended to clarify that
“[n]otwithstanding any other provision of law,” state and local
property taxes must also be apportioned “to the districts within
the counties.” (TPA, § 8 [proposed art. XIII, § 14].)
Section 9 contains several general provisions, including a
severability clause (TPA, § 9, subd. C).
B.
On January 4, 2022, Proponent submitted the initiative
measure to the Attorney General for preparation of a circulating
title and summary, which are required before an initiative may
be circulated for signature. (Art. II, § 10, subd. (d); Elec. Code,
§ 9002.) On February 1, 2023, the Secretary certified that the
initiative petition had received the required number of
signatures to qualify for the November 2024 general election
ballot.
On September 26, 2023, Petitioners filed an emergency
petition for writ of mandate, asserting that the proposed
initiative is an impermissible attempt to revise rather than
amend the California Constitution. Secondarily, Petitioners
argued that the proposed initiative is invalid because it would
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impair essential government functions. Petitioners further
claimed that preelection review was necessary for various
reasons explained below. Several amici curiae filed briefs in
support of the petition.
The petition named the Secretary as respondent and
Proponent as real party in interest. After requesting and
reviewing preliminary responses from the Secretary and
Proponent, and after receiving amicus curiae briefs opposing the
petition, we issued an order to show cause and set the case for
expedited briefing and decision.
The Secretary filed a return to the petition in order to
apprise the court of relevant election deadlines for the
November 5, 2024 General Election as they relate to this
proceeding. Specifically, she requests that this matter be
resolved by June 27, 2024, the date she must formally qualify
the TPA for the November 5, 2024 General Election ballot. The
Secretary also provides some factual background on the
potential effects of the initiative on election administration, as
well as the processes and costs of conducting special elections.
She takes no substantive position on the issues presented.
II.
We typically review constitutional challenges to an
initiative after an election in order to avoid disrupting the
electoral process and the exercise of the franchise. (Brosnahan
v. Eu (1982) 31 Cal.3d 1, 4.) But preelection review is proper for
challenges that go “to the power of the electorate to adopt the
proposal in the first instance.” (Legislature v. Deukmejian
(1983) 34 Cal.3d 658, 667.) Preelection review is available
where, as here, “the challenge is based upon a claim . . . that the
proposed measure may not properly be submitted to the voters
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Opinion of the Court by Liu, J.
because the measure is not legislative in character or because it
amounts to a constitutional revision rather [than] an
amendment.” (Senate of the State of Cal. v. Jones (1999) 21
Cal.4th 1142, 1153 (Jones); see McFadden v. Jordan (1948) 32
Cal.2d 330, 331–332 (McFadden) [granting preelection relief
upon holding that proposed initiative sought to revise, not
amend, the Constitution].)
Most recently, we exercised preelection review in Jones to
consider a challenge by the Senate and others to a proposed
initiative that sought to restrict state officers’ pay and to
transfer the power to reapportion state legislative districts from
the Legislature to this court. (Jones, supra, 21 Cal.4th at
pp. 1146–1149.) Petitioners claimed the measure was invalid
because it amounted to a constitutional revision rather than an
amendment, because the measure violated the single-subject
rule of the California Constitution, and because the petitions
circulated to qualify the measure for the ballot contained
misleading statements and omissions. (Jones, at p. 1150.) We
found preelection review to be appropriate because “[u]nder
such circumstances, deferring a decision until after the election
not only will defeat the constitutionally contemplated procedure
. . . , but may contribute to an increasing cynicism on the part of
the electorate with respect to the efficacy of the initiative
process.” (Id. at p. 1154.) “ ‘The presence of an invalid measure
on the ballot steals attention, time, and money from the
numerous valid propositions on the same ballot. It will confuse
some voters and frustrate others, and an ultimate decision that
the measure is invalid, coming after the voters have voted in
favor of the measure, tends to denigrate the legitimate use of
the initiative procedure.’ ” (Ibid., quoting American Federation
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of Labor v. Eu (1984) 36 Cal.3d 687, 697 (American Federation
of Labor).)
As relevant here, article XVIII of the California
Constitution provides that the electorate “may amend the
Constitution by initiative” (art. XVIII, § 3) but that an effort “to
revise the Constitution” must proceed by way of a constitutional
convention and popular ratification (id., § 2) or by submission to
the voters from a supermajority of the Legislature (id., §§ 1, 3).
(See Amador Valley, supra, 22 Cal.3d at p. 221.) After reviewing
the petition and the opposition filed by Proponent, we
determined that Petitioners had made a prima facie showing
that the TPA would amount to an invalid constitutional revision
based on its far-reaching changes to existing processes by which
revenue measures are enacted and maintained at the state and
local levels.
In the present matter, postelection review would be more
challenging than in a typical case because of the TPA’s rollback
provisions. Those provisions would void any state or local “tax
or exempt charge” adopted after January 1, 2022 and prior to
the TPA’s effective date if it was “not adopted in compliance
with” the newly proposed requirements, unless it is reenacted
with voter approval within one year of the TPA’s effective date.
(TPA, § 4 [proposed art. XIII A, § 3, subd. (f)]; id., § 6 [proposed
art. XIII C, § 2, subd. (g)].) The TPA, if enacted, would thus
require the state and localities to start preparing to administer
special elections if they wish to avoid nullification of taxes or
charges imposed after January 1, 2022. These provisions would
effectively transform any postelection review of the TPA into
another form of preelection review in advance of the special
elections expected to take place the following year. The rollback
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provisions also generate uncertainty before the election as to
whether already enacted revenue measures will be later voided.
For these reasons, we find that preelection review is
appropriate in this matter.
III.
Petitioners’ primary claim is that the TPA would work an
impermissible revision of the California Constitution. Where a
preelection challenge asserts that a proposed initiative would
effect an unlawful revision, “[o]ur prior decisions have made it
clear that to find such a revision, it must necessarily or
inevitably appear from the face of the challenged provision that
the measure will substantially alter the basic governmental
framework set forth in our Constitution.” (Legislature v. Eu
(1991) 54 Cal.3d 492, 510.) “Particularly when a preelection
challenge is brought against an initiative measure that has been
signed by the requisite number of voters to qualify it for the
ballot, the important state interest in protecting the
fundamental right of the people to propose statutory or
constitutional changes through the initiative process requires
that a court exercise considerable caution before intervening to
remove or withhold the measure from an imminent election.
Only when a court is confident that the challenge is meritorious
and justifies withholding the measure from the ballot, should a
court take the dramatic step of ordering the removal of a
measure that ostensibly has obtained a sufficient number of
qualified signatures.” (Costa v. Superior Court (2006) 37 Cal.4th
986, 1007–1008.)
We begin with the relevant provisions of the California
Constitution governing amendment and revision, and a review
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of our case law on the distinction between the two. With those
concepts in mind, we then analyze the TPA.
A.
Article II of the California Constitution, which pertains to
voting and the initiative, referendum, and recall powers, begins
with the following principle: “All political power is inherent in
the people. Government is instituted for their protection,
security, and benefit, and they have the right to alter or reform
it when the public good may require.” (Art. II, § 1.) As relevant
here, article II sets out the basic framework for voter initiatives,
defining “initiative” as “the power of the electors to propose
statutes and amendments to the Constitution and to adopt or
reject them” (id., § 8, subd. (a)) and setting forth procedural and
substantive requirements for voter initiatives (id., subds. (b)–
(f)).
Whereas article II reserves to the people the power to
amend the Constitution via citizen initiative, article XVIII sets
forth the applicable procedures to either amend or revise the
Constitution. Article XVIII is comprised of four sections:
“SEC. 1. The Legislature by rollcall vote entered in the
journal, two-thirds of the membership of each house concurring,
may propose an amendment or revision of the Constitution and
in the same manner may amend or withdraw its proposal. Each
amendment shall be so prepared and submitted that it can be
voted on separately.
“SEC. 2. The Legislature by rollcall vote entered in the
journal, two-thirds of the membership of each house concurring,
may submit at a general election the question whether to call a
convention to revise the Constitution. If the majority vote yes
on that question, within 6 months the Legislature shall provide
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for the convention. Delegates to a constitutional convention
shall be voters elected from districts as nearly equal in
population as may be practicable.
“SEC. 3. The electors may amend the Constitution by
initiative.
“SEC. 4. A proposed amendment or revision shall be
submitted to the electors and, if approved by a majority of votes
cast thereon, takes effect on the fifth day after the Secretary of
State files the statement of the vote for the election at which the
measure is voted on, but the measure may provide that it
becomes operative after its effective date. If provisions of two or
more measures approved at the same election conflict, the
provisions of the measure receiving the highest number of
affirmative votes shall prevail.”
In Strauss v. Horton (2009) 46 Cal.4th 364, 414 (Strauss),
we summarized the import of these provisions as follows:
“[U]nder these constitutional provisions an amendment to the
California Constitution may be proposed to the electorate either
by the required vote of the Legislature or by an initiative
petition signed by the requisite number of voters. A revision to
the California Constitution may be proposed either by the
required vote of the Legislature or by a constitutional
convention (proposed by the Legislature and approved by the
voters). Either a proposed amendment or a proposed revision of
the Constitution must be submitted to the voters, and becomes
effective if approved by a majority of votes cast thereon at the
election. Under these provisions, although the initiative power
may be used to amend the California Constitution, it may not be
used to revise the Constitution.” (Ibid., abrogated on another
ground in Obergefell v. Hodges (2015) 576 U.S. 644, 685.)
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In elucidating the distinction between an amendment and
a revision, Strauss “examine[d] the origin and history of this
distinction in our state Constitution as well as the numerous
California decisions that have analyzed and applied the
distinction over the course of many years.” (Strauss, supra, 46
Cal.4th at p. 414; see id. at pp. 414–440.) From that lengthy
discussion, we distill a few points here. As an initial matter, the
distinction between amendment and revision dates back to the
original 1849 Constitution, under which “[a]ny amendment or
amendments” to the Constitution could be proposed by the
Legislature upon a majority vote of both houses and thereafter
submitted directly to the people. (Cal. Const. of 1849, art. X,
§ 1.) By contrast, if the Legislature, by a two-thirds vote of both
houses, “th[ought] it necessary to revise or change this entire
constitution,” it could recommend to the voters that they
convene a constitutional convention. (Cal. Const. of 1849, art. X,
§ 2.) These provisions show “that the amendment/revision
distinction long predates the appearance of the initiative
process in California.” (Strauss, at p. 416.)
The provisions for revision and amendment were retained
with modifications in the 1879 Constitution and placed in
article XVIII. Among other changes, the 1879 Constitution
increased the required legislative support for constitutional
amendment from a majority of both houses to a two-thirds vote
in both houses, which is the same threshold for presenting
voters the question of whether to call a constitutional
convention. What is significant for our purposes is that “under
the 1879 Constitution as originally adopted, as under the 1849
Constitution, a revision of the constitution could be proposed
only by a constitutional convention and contemplated a
potentially broad reworking of the constitutional structure and
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provisions, whereas ‘any amendment or amendments’ to the
Constitution could be proposed, and submitted directly to a vote
of the people, by the Legislature.” (Strauss, supra, 46 Cal.4th at
p. 418.)
From early on, our case law has distinguished between
amendment and revision in similar terms: “The very term
‘constitution’ implies an instrument of a permanent and abiding
nature, and the provisions contained therein for its revision
indicate the will of the people that the underlying principles
upon which it rests, as well as the substantial entirety of the
instrument, shall be of a like permanent and abiding nature. On
the other hand, the significance of the term ‘amendment’ implies
such an addition or change within the lines of the original
instrument as will effect an improvement, or better carry out
the purpose for which it was framed. Experience may disclose
defects in some of its details, or in the practical application of
some of the principles or limitations which it contains. The
changed condition of affairs in different parts of the state, or the
changes of society or time, may demand the removal of some of
these limitations, or an extended application of its principles.
So, too, some popular wave of sociological reform, like the
abolition of the death penalty for crime, or a prohibition against
the manufacture or sale of intoxicating liquors, may induce a
legislature to submit for enactment, in the permanent form of a
constitutional prohibition, a rule which it has the power itself to
enact as a law, but which might be of only temporary effect.”
(Livermore v. Waite (1894) 102 Cal. 113, 118–119.)
In 1948, we held in McFadden that a proposed initiative
was an impermissible revision because its effect would have
been to “substantially alter the purpose and to attain objectives
clearly beyond the lines of the Constitution as now cast” rather
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than working “ ‘within the lines of the original instrument’ ” to
achieve “ ‘an improvement or better carry out the purpose for
which it was framed.’ ” (McFadden, supra, 32 Cal.2d at p. 350.)
McFadden involved a preelection challenge to a proposed
initiative that would have repealed or substantially altered “at
least 15 of the 25 articles” contained in the Constitution at that
time, while also introducing at least four new topics to the
Constitution and “substantially curtail[ing]” the legislative and
judicial functions of the state government. (Id. at p. 345.) Our
summary of the initiative and its effects spanned more than 10
pages (id. at pp. 334–345) and did “not purport to be exhaustive”
(id. at p. 345), “demonstrat[ing] the wide and diverse range of
subject matters proposed to be voted upon, and the revisional
effect which it would necessarily have on our basic plan of
government” (id. at pp. 345–346).
“In 1956, the California Legislature created a Citizens
Legislative Advisory Commission to study and evaluate the
organization and procedures of the Legislature, and a few years
later that commission was requested to study and to provide a
recommendation with regard to problems and methods of
constitutional revision.” (Strauss, supra, 46 Cal.4th at p. 425.)
In response to the commission’s recommendations, the
Legislature approved and submitted to the voters a
constitutional amendment to permit the Legislature to submit
constitutional revisions, as well as amendments, to the
electorate for approval. Among the ballot materials
accompanying this measure was the following description from
the Legislative Counsel distinguishing between an amendment
and a revision: “Under existing provisions the Legislature can
only propose ‘amendments,’ that is measures which propose
changes specific and limited in nature. ‘Revisions,’ i.e.,
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proposals which involve broad changes in all or a substantial
part of the Constitution, can presently be proposed only by
convening a constitutional convention.” (Ballot Pamp., Gen.
Elec. (Nov. 6, 1962) analysis of Prop. 7 by Legis. Counsel, p. 13.)
The voters adopted the amendment as Proposition 7 at the
November 1962 general election. (Strauss, at pp. 425–426.)
In Amador Valley, supra, 22 Cal.3d 208, we considered
multiple challenges to article XIII A, which had been adopted by
the voters in 1978 as Proposition 13. Proposition 13 “contain[ed]
four distinct elements”: (1) “a limitation on the tax rate
applicable to real property”; (2) “a restriction on the assessed
value of real property”; (3) a requirement of a two-thirds vote of
the Legislature for any change in state tax law with the purpose
of increasing revenues, along with a prohibition on new ad
valorem taxes on real property and on sales or transaction taxes
on real property sales; and (4) “a restriction upon local taxes,”
requiring a two-thirds vote of local electors to impose special
taxes. (Amador Valley, at p. 220.) Proposition 13 also included
general provisions relating to the effective dates and
severability of the new constitutional article. (Amador Valley,
at p. 220; see id. at p. 257 [reproducing complete text of the
initiative].)
Among other claims, the petitioners in Amador Valley
argued that the new article XIII A “represents such a drastic
and far-reaching change in the nature and operation of our
governmental structure that it must be considered a ‘revision’ of
the state Constitution rather than a mere ‘amendment’ thereof.”
(Amador Valley, supra, 22 Cal.3d at p. 221.) We first reviewed
Livermore and McFadden, and said those decisions together
“mandate that our analysis . . . must be both quantitative and
qualitative in nature. For example, an enactment which is so
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Opinion of the Court by Liu, J.
extensive in its provisions as to change directly the ‘substantial
entirety’ of the Constitution by the deletion or alteration of
numerous existing provisions may well constitute a revision
thereof. However, even a relatively simple enactment may
accomplish such far reaching changes in the nature of our basic
governmental plan as to amount to a revision also.” (Amador
Valley, at p. 223.) Applying this framework, we said that
quantitatively Proposition 13 “comprises approximately 400
words and . . . is limited to the single subject of taxation (with
particular emphasis upon real property taxation).” (Amador
Valley, at p. 224.) And qualitatively, we rejected the argument
that Proposition 13 would result in the loss of “home rule” or
convert the state from a “republican” to a “democratic” form of
government. (Amador Valley, at p. 224.) We said that unlike
the measure at issue in McFadden, the changes effected by
Proposition 13 “operate functionally within a relatively narrow
range to accomplish a new system of taxation which may provide
substantial tax relief for our citizens. We decline to hold that
such a limited purpose cannot be achieved directly by the people
through the initiative process.” (Amador Valley, at p. 228.)
Since Amador Valley, we have deployed the same mode of
analysis in numerous cases. (See People v. Frierson (1979) 25
Cal.3d 142, 186–187; Brosnahan v. Brown (1982) 32 Cal.3d 236,
260–261; In re Lance W. (1985) 37 Cal.3d 873, 891–892; Raven
v. Deukmejian (1990) 52 Cal.3d 336, 349–355 (Raven);
Legislature v. Eu, supra, 54 Cal.3d at pp. 506–512; Professional
Engineers in California Government v. Kempton (2007) 40
Cal.4th 1016, 1046–1047; Strauss, supra, 46 Cal.4th at pp. 440–
457.) The quantitative aspect of the inquiry has become less
significant since the adoption of the single-subject rule in 1948,
the year we decided McFadden. (Art. II, § 8, subd. (d).) Thus,
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Opinion of the Court by Liu, J.
our cases since McFadden have focused primarily on the
qualitative analysis.
As we summarized in Strauss, “the numerous past
decisions of this court that have addressed this issue all have
indicated that the type of measure that may constitute a
revision of the California Constitution is one that makes ‘far
reaching changes in the nature of our basic governmental plan’
(Amador [Valley], supra, 22 Cal.3d 208, 223, italics added), or,
stated in slightly different terms, that ‘substantially alter[s] the
basic governmental framework set forth in our Constitution.’
(Legislature v. Eu, supra, 54 Cal.3d 492, 510, italics added.)”
(Strauss, supra, 46 Cal.4th at p. 441.) For example, “an
enactment which purported to vest all judicial power in the
Legislature would amount to a revision without regard either to
the length or complexity of the measure or the number of
existing articles or sections affected by such change.” (Amador
Valley, supra, 22 Cal.3d at p. 223.)
As it turns out, this example set forth in Amador Valley
presaged our holding in Raven that a provision of Proposition
115, a 1990 ballot initiative titled the “Crime Victims Justice
Reform Act,” was an improper constitutional revision. (Raven,
supra, 52 Cal.3d at pp. 340–341.) In Raven, a postelection case,
our finding of invalidity focused on one specific provision of
Proposition 115: an amendment to article I, section 24 of the
state Constitution. Section 24, as originally enacted in 1974,
provided in relevant part: “Rights guaranteed by this
Constitution are not dependent on those guaranteed by the
United States Constitution.” Proposition 115 would have added
the following proviso: “ ‘In criminal cases the rights of a
defendant to equal protection of the laws, to due process of law,
to the assistance of counsel, to be personally present with
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Opinion of the Court by Liu, J.
counsel, to a speedy and public trial, to compel the attendance
of witnesses, to confront the witnesses against him or her, to be
free from unreasonable searches and seizures, to privacy, to not
be compelled to be a witness against himself or herself, to not be
placed twice in jeopardy for the same offense, and not to suffer
the imposition of cruel or unusual punishment, shall be
construed by the courts of this state in a manner consistent with
the Constitution of the United States. This Constitution shall
not be construed by the courts to afford greater rights to
criminal defendants than those afforded by the Constitution of
the United States, nor shall it be construed to afford greater
rights to minors in juvenile proceedings on criminal causes than
those afforded by the Constitution of the United States.’ ”
(Raven, at p. 350.)
The petitioners in Raven argued that “the measure has in
essence ‘vested’ or ‘delegated’ all judicial interpretive power
respecting those rights in or to the federal courts.” (Raven,
supra, 52 Cal.3d at p. 351.) We agreed. Referring to the
example above from Amador Valley, we explained: “Proposition
115 contemplates a similar qualitative change. In essence and
practical effect, new article I, section 24, would vest all judicial
interpretive power, as to fundamental criminal defense rights,
in the United States Supreme Court. From a qualitative
standpoint, the effect of Proposition 115 is devastating.” (Raven,
at p. 352.) Such a change “would substantially alter the
substance and integrity of the state Constitution as a document
of independent force and effect.” (Ibid.) The measure
“substantially alters the preexisting constitutional scheme or
framework heretofore extensively and repeatedly used by courts
in interpreting and enforcing state constitutional protections. It
directly contradicts the well-established jurisprudential
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Opinion of the Court by Liu, J.
principle that, ‘The judiciary, from the very nature of its powers
and means given it by the Constitution, must possess the right
to construe the Constitution in the last resort . . . .’ [Citations.]
In short, in the words of Amador [Valley], . . . this ‘relatively
simple enactment [accomplishes] . . . such far reaching changes
in the nature of our basic governmental plan as to amount to a
revision . . . .’ ” (Id. at pp. 354–355.)
B.
When evaluating whether a voter initiative constitutes a
valid amendment or invalid revision, we examine the challenged
measure in its entirety. (Amador Valley, supra, 22 Cal.3d at
p. 221.) While a single provision of an initiative may constitute
a revision standing alone (see Raven, supra, 52 Cal.3d at
pp. 340–341), a proposed initiative may also be revisionary
based on its combined effects. (McFadden, supra, 32 Cal.2d at
pp. 345–346.) Viewed in isolation, one provision may not be so
impactful as to change the “ ‘nature of our basic governmental
plan’ ” (Strauss, supra, 46 Cal.4th at p. 441), yet it is possible
that the collective impact of multiple provisions may accomplish
such a change.
Holistic analysis of an initiative measure’s effects is
particularly appropriate here because the question before us
concerns whether the initiative, in its entirety, may appear on
the ballot. While in postenactment review, courts may
sometimes sever invalid provisions from valid ones, there is no
precedent for granting severance as a remedy in the preelection
context. (Cf. Jones, supra, 21 Cal.4th at p. 1168 [“when an
initiative measure violates the single-subject rule, severance is
not an available remedy”]; Bennett v. Drullard (1915) 27
Cal.App. 180, 183–185 (Bennett) [reasoning, based on the
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Opinion of the Court by Liu, J.
language of the city charter at issue, that courts lack the
authority to modify proposed initiatives by severance or
amendment once they have qualified for the ballot].)
Proponent has not requested severance in this case. A
group of local taxpayers’ associations, appearing as amici curiae
in support of Proponent, suggest that we sever “the offending
provisions [while] retaining those that do not suffer from the
defects asserted by Petitioners.” But the voters who sign
initiative petitions understand that their signatures support
putting the entirety of the measure before the electorate.
Allowing or directing the Secretary to modify the initiative text
before it is presented on the ballot may frustrate that intent.
(Bennett, supra, 27 Cal.App. at p. 185.) It could also lead to
manipulation of initiative proposals, whereby invalid provisions
are included at the signature-gathering stage to facilitate ballot
qualification, only to be deleted later by judicial directive. (Id.
at p. 184.) Conversely, permitting the Secretary to submit the
entire text of an initiative to the electorate after this court has
found its most significant provisions invalid “would confuse the
electorate and mislead many voters into casting their ballot on
the basis of provisions which had already been found invalid.”
(American Federation of Labor, supra, 36 Cal.3d at p. 716.)
We therefore proceed by considering the TPA as it would
be presented to voters — as a whole. We discuss three
categories of changes that, according to Petitioners and their
amici curiae, effect a revision of our basic plan of government.
We focus on their arguments that the TPA would transform (1)
the Legislature’s power to levy taxes, (2) the balance of power
among the Legislature, state executive agencies, and the
electorate over the setting of fees, and (3) the authority of local
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Opinion of the Court by Liu, J.
government agencies to set fees without legislative approval or
the possibility of referendum.
1.
From the state’s founding, the Legislature has had broad
authority to levy taxes. As Proponent notes, the 1849
Constitution directed the Legislature to “restrict” local
governments’ powers of taxation (Cal. Const. of 1849, art. IV,
§ 37), while the 1879 Constitution prohibited the Legislature
from imposing taxes on local governments or their inhabitants
for “municipal purposes” (Cal. Const. of 1879, art. XI, § 12). The
1879 Constitution also exempted from taxation property owned
by the state or federal government, as well as public schools and
local governments (Cal. Const. of 1879, art. XIII, § 1), and
prohibited poll taxes on certain people (id., § 12). “Generally,”
however, “the Legislature is supreme in the field of taxation,
and the provisions on taxation in the state Constitution are a
limitation on the power of the Legislature rather than a grant
to it.” (Delaney v. Lowery (1944) 25 Cal.2d 561, 568; see The
Gillette Co. v. Franchise Tax Bd. (2015) 62 Cal.4th 468, 477
[same].) In describing article XIII, section 24, subdivision (a),
which was part of the original 1879 Constitution and declares
that “[t]he Legislature may not impose taxes for local purposes
but may authorize local governments to impose them,” we have
said this provision operates as “a restriction on the Legislature’s
otherwise plenary power of taxation” under the California
Constitution. (Santa Clara County Local Transportation
Authority v. Guardino (1995) 11 Cal.4th 220, 247 (Guardino),
italics added.)
It is true that starting in the 1970s, a series of initiatives
have circumscribed the Legislature’s and local governments’ tax
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Opinion of the Court by Liu, J.
authority, although in different ways. “The series of reforms
began with Proposition 13, a ballot initiative passed in 1978 to
cap increases in property taxes and assessments, as well as
other state and local taxes.” (Wilde, supra, 9 Cal.5th at p. 1112.)
Among its effects, Proposition 13 enacted section 3 of
article XIII A, which requires a two-thirds vote of both houses of
the Legislature for “any changes in State taxes enacted for the
purpose of increasing revenues collected pursuant thereto,”
while prohibiting any “new ad valorem taxes on real property,
or sales or transaction taxes on the sales of real property.” (See
Amador Valley, supra, 22 Cal.3d at p. 248.) Proposition 13 also
imposed “a restriction upon local taxes” by requiring “ ‘special
taxes’ ” to be approved by a two-thirds vote of the local
electorate. (Amador Valley, at p. 220.)
“Then, in 1996, voters passed Proposition 218, which
further curbed state and local government authority to generate
revenue through taxes and other exactions.” (Wilde, supra, 9
Cal.5th at p. 1112.) Proposition 218 extended Proposition 13’s
limitations on property tax assessments at both the state and
local levels, and restricted local governments from imposing any
taxes without voter approval. (City of San Buenaventura v.
United Water Conservation Dist. (2017) 3 Cal.5th 1191, 1200;
see art. XIII C, § 2, subds. (b), (d).) We have upheld voter
approval requirements for local taxes on the ground that local
governments “have no inherent power to tax” and instead derive
their taxing authority from the Legislature. (Guardino, supra,
11 Cal.4th at p. 248, citing art. XIII, § 24, subd. (a).) The
“Legislature’s authority to grant taxing power to local
governments . . . includes the authority to prescribe the terms
and conditions under which local governments may exercise
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Opinion of the Court by Liu, J.
that power,” such as voter approval requirements. (Ibid.; see id.
at p. 250.)
“Finally, in 2010, voters approved Proposition 26, which
expanded the reach of these limitations by broadening the
definition of ‘tax’ ” to cover a wider set of government exactions.
(Wilde, supra, 9 Cal.5th at p. 1112.) These definitional changes
affected which charges are subject to the supermajority vote
requirement in the Legislature or voter approval requirements
at the local level for new taxes. (Cf. Zolly v. City of Oakland
(2022) 13 Cal.5th 780, 786 [describing Proposition 26’s
amendments to the state and local definition of “tax” in
art. XIII A, § 3 and art. XIII C, § 1, respectively].)
Thus, Proposition 13 and its progeny withdrew the
Legislature’s authority to enact certain types of taxes and
imposed heightened vote requirements for any statutory change
in taxes for the purpose of increasing revenues. These
initiatives also made any local tax subject to voter approval.
Characterizing the TPA as simply more of the same, Proponent
argues that “Petitioners do not explain, nor can they explain,
how [the] TPA’s voter approval requirement is more damaging
to their legislative power than any of the prior constitutional
amendments and initiative statutes repealing a tax or fixing the
rate and manner of assessing a tax.”
This characterization belies the significance of the TPA,
which would transform the process of levying state taxes that
has existed since the state’s founding. The TPA would prevent
the Legislature from enacting any new tax without voter
approval. Although Proponent argues that California’s very
first constitution required voter approval of general obligation
bond debt (Cal. Const. of 1849, art. VIII) and that the 1879
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Opinion of the Court by Liu, J.
Constitution restated the same (Cal. Const. of 1879, art. XVI,
§ 1), the specific carveout for bond debt in the original
constitutions, adopted by constitutional conventions that
otherwise retained the Legislature’s plenary authority over
other forms of taxation and revenue, only underscores the
significance of extending voter approval across the entire field
of taxation.
So central is the authority to levy taxes that tax legislation
is exempt from referendum. Like the initiative power, the
referendum power was enacted in 1911. (Wilde, supra, 9 Cal.5th
at p. 1111.) Whereas the initiative power “allows voters to
propose new measures and place them on the ballot for a popular
vote,” the referendum power “allows voters to weigh in on laws
that have already been passed by their elected representatives.”
(Ibid.) “Any voter or group of voters that gathers enough
signatures can place a legislative enactment on the ballot for an
up or down vote. A referendum suspends operation of the law
until it is approved by a majority of voters.” (Ibid.; see art. II,
§ 9, subd. (a); id., § 10, subd. (a).) The referendum power is
subject to certain exceptions; as relevant here, “statutes
providing for tax levies or appropriations for usual current
expenses of the State” are exempt from referendum. (Art. II, § 9,
subd. (a).) “One of the reasons, if not the chief reason, why the
Constitution excepts from the referendum power acts of the
Legislature providing for tax levies or appropriations for the
usual current expenses of the state is to prevent disruption of
its operations by interference with the administration of its
fiscal powers and policies.” (Geiger v. Board of Supervisors
(1957) 48 Cal.2d 832, 839–840 (Geiger).)
Although we have recognized that this reasoning does not
preclude voter approval requirements for local taxes (Guardino,
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Opinion of the Court by Liu, J.
supra, 11 Cal.4th at p. 245), we have never before considered a
voter approval requirement imposed on the Legislature like the
one at issue here. In the context of local governments, which
“have no inherent power to tax” (id. at p. 248), we said in
Guardino that voter approval requirements “ ‘always will be
known in advance . . . and thus the local entity will not include
the anticipated tax revenue in its enacted budget until after the
electorate has approved the tax’ ” (id. at pp. 245–246). But it is
a different question whether such uncertainty concerning state
tax revenue would be disruptive to the basic operations of state
government, which “provid[e] for the public welfare and the
benefit of the entire people of the state” (People v. Central Pacific
R. R. Co. (1894) 105 Cal. 576, 584) and include substantial
subventions to local governments (art. XIII B, § 6). We think it
clear that a voter approval requirement for any new state tax
measure would constitute a significant ‘interference with the
administration of [the Legislature’s] fiscal powers and
policies.’ ” (Geiger, supra, 48 Cal.2d at p. 840.)
Indeed, the TPA would strip the Legislature of authority
to promptly raise revenues when necessary. The Constitution
currently provides that “statutes providing for tax levies or
appropriations for the usual current expenses of the State . . .
shall go into effect immediately upon their enactment.” (Art. IV,
§ 8, subd. (c)(3).) The Constitution thus directs that the
Legislature’s fiscal decisions must be effective immediately.
This is particularly important when changes in revenue or
appropriations are needed to respond to state or local
emergencies. Petitioners and amici curiae note multiple
instances in which the Legislature has used this authority to
respond swiftly to natural and financial disasters. By requiring
the electorate to approve any new tax or any change in the use
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Opinion of the Court by Liu, J.
of any special tax revenue previously approved by the voters, the
TPA would preclude the state from raising new revenue or
redirecting any existing special tax revenue in light of
unforeseen events, until after a statewide election. (See TPA,
§ 4 [proposed art. XIII A, § 3, subd. (b)(1), (B)].)
Proponent says “the Legislature (and local governments)
are free to call a special election at any time to ask voters to
approve taxes needed for an emergency reason, or even for no
reason at all.” But a special election requires time for legislative
development and adoption of a ballot measure, legal review of
the measure, preparation of the ballot and associated materials,
and voter education and outreach. The Elections Code provides
for a minimum of 131 days between the adoption of a proposed
ballot measure by the Legislature and the earliest date of a
statewide special election. (Elec. Code, § 9040.) This period
does not account for time needed on the front end to prepare a
draft ballot measure for consideration by the Assembly and
Senate, and it may not fully account for time needed on the back
end to prepare the ballot measure for a statewide election.
Further, Proponent argues that the TPA simply moves the
taxing power from the Legislature to the electorate, thereby
keeping that power within the legislative branch. That may be
true, but it is also true that such a change would significantly
alter the legislative process and framework for exercising the
taxing power. The Legislature’s duty to ensure the welfare of
our state and its people includes responsibility for fiscal
planning, both short-term and long-term, that the Legislature
historically has had authority to exercise without voter
approval. In “our continuing representative and republican
form of government” (Amador Valley, supra, 22 Cal.3d at
p. 228), the Legislature’s deliberations on tax legislation may
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Opinion of the Court by Liu, J.
include public hearings, review by multiple committees,
amendments, bargaining, and compromise. The Legislature
may enlist and apply expertise in crafting legislation, and may
develop its own expertise through regular consideration of tax
proposals. A voter approval requirement would “add[] an
important element of direct, active, democratic contribution by
the people” (ibid.) in the form of an up or down vote on tax
measures approved by the Legislature. Voters may consider
information from a variety of sources, including statements in
the voter information guide by the Legislative Analyst and by a
measure’s proponents and opponents, as well as information
from various media, advertising, and other communication
channels in the public square. We express no view on what
process achieves the optimal balance among efficiency,
accountability, transparency, and other interests. We observe
only that requiring any new or higher tax levy to undergo voter
approval would significantly alter the existing constitutional
balance between direct democracy and representative
democracy, with reverberations throughout the framework of
our government.
Petitioners also contend that the effect of the TPA’s
statewide tax provision would be exacerbated by the
requirements that each statute levying a new tax include “[a]
specific and legally binding and enforceable limitation on how
the revenue from the tax can be spent” and that “[a]ny proposed
change to the use of the revenue from the tax shall be adopted
by a separate act that is passed by not less than two-thirds of all
members elected to each of the two houses of the Legislature and
submitted to the electorate and approved by a majority vote.”
(TPA, § 4 [proposed art. XIII A, § 3, subd. (b)(1)(B)].) The
cumulative effect of these taxing and spending limitations,
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Petitioners argue, would revoke two of the Legislature’s core
powers and hinder the state’s ability to “ ‘effectively resolve the
truly fundamental issues’ facing the State” because “[t]he
Legislature simply could not rely on new tax revenues to meet
emerging or urgent circumstances,” like natural disasters.
In considering the TPA’s spending power limitations, we
note that Proposition 4 in 1979 added article XIII B to the state
Constitution, commonly known as the “Gann limit,” which caps
per-person government spending at 1978–1979 levels. (See City
of Sacramento v. State of California (1990) 50 Cal.3d 51, 58–59
[describing art. XIII B].) The Gann limit effected an arguably
more significant change to the Legislature’s spending power
than what would be imposed by the TPA’s proposed limit on the
ability to reallocate special tax revenue without voter approval.
Thus, the TPA’s limitations on the Legislature’s spending power
do not add much to support a finding that the measure works a
revision, although they contribute to the TPA’s overall effect.
We conclude that the TPA would substantially transform
the process for enacting new statewide tax legislation that has
existed since the state’s founding and that this transformation
weighs significantly in favor of finding that the TPA would effect
a constitutional revision.
2.
Beyond eliminating the Legislature’s ability to levy taxes
without prior voter approval, the TPA shifts power between the
executive branch and the legislative branch in three ways.
First, the TPA would subject a broader range of state revenue
actions to the two-thirds legislative vote requirement imposed
by Proposition 13. Article XIII A, section 3, subdivision (a)
currently provides that “[a]ny change in state statute which
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Opinion of the Court by Liu, J.
results in any taxpayer paying a higher tax must be imposed by
an act passed by not less than two-thirds of all members elected
to each of the two houses of the Legislature.” (Italics added.)
The TPA would amend this provision to require a two-thirds
vote not just on any “state statute” effecting such a change, but
on any “state law” doing so. (Compare art. XIII A, § 3, subd. (a)
with TPA, § 4 [proposed art. XIII A, § 3, subd. (b)(1)].) Similar
changes are proposed at the local level, as discussed below.
(Post, at pp. 41–49.)
Second, the TPA would enact the following new
subdivision within article XIII A: “Any change in state law
which results in any taxpayer paying a new or higher exempt
charge must be imposed by an act passed by each of the two
houses of the Legislature. Each act shall specify the type of
exempt charge as provided in subdivision (e), and the amount or
rate of the exempt charge to be imposed.” (TPA, § 4 [proposed
art. XIII A, § 3, subd. (c)].) The TPA makes clear that “state
law” as used in these two provisions would include executive and
agency actions; it defines “state law” to include “any state
statute, state regulation, state executive order, state resolution,
state ruling, state opinion letter, or other legal authority or
interpretation adopted, enacted, enforced, issued, or
implemented by the legislative or executive branches of state
government,” while excluding “actions taken by the Regents of
the University of California, Trustees of the California State
University, or the Board of Governors of the California
Community Colleges.” (Ibid. [proposed art. XIII A, § 3,
subd. (h)(4)].)
Petitioners argue that the effect of these two provisions
would be to “revoke[] the power of the Governor or state
administrative agencies to impose or increase any charge, even
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those that are not a ‘tax.’ ” Petitioners contend these changes
“would dramatically slow if not impede critical government
operations and force the Legislature and voters to become
involved in the minutiae of governance. For example, the
Measure could deprive the State Board of Equalization or
Department of Health Care Services of the ability to promulgate
many of the regulations under their jurisdiction, and require the
Legislature and voters to assume tasks that could include
setting the annual fee for fishing licenses and parking fines.”
“As a consequence of these two changes” (and analogous changes
at the local level, discussed below), they say, “administrative
agencies would lose the power to do much of the work they do
today under legislatively delegated authority, such as assessing
fees for the disposal of hazardous waste (at the state level) and
setting fees for trash collection or charges for health care at
public hospitals (at the local level).” According to Petitioners,
the TPA would deprive the Legislature of the ability to delegate
tasks to administrative agencies with greater expertise if a task
“results in any taxpayer paying a new or higher exempt charge.”
(TPA, § 4 [proposed art. XIII A, § 3, subd. (c)].)
Third, the TPA would expand the referendum power to
encompass all fees imposed by state and local agencies. As a
result of its new definition of “tax,” the TPA would narrow the
tax exception to the referendum power set forth in article II,
section 9 of the Constitution and would exclude every newly
defined “exempt charge” from the referendum exception.
(See TPA, §§ 4 [proposed art. XIII A, § 3, subd. (d) defining state
“tax” as used in art. II, § 9], 5 [proposed art. XIII C, § 1, subd. (i)
defining local “tax” as used in art. II, § 9].) Petitioners allege
that this would subject thousands of government fees and
charges to referendum, “including fees for trash collection and
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water service, sewer connections, permits and licenses,
cemeteries, and parks and recreation.”
We agree with Petitioners that the TPA would
significantly rework the current balance between legislative and
executive functions at the state and local level. Legislative
delegation of administrative tasks, including assessing fees and
other charges, is not new. We observed in 1917 that “[e]ven a
casual observer of governmental growth and development must
have observed the ever-increasing multiplicity and complexity
of administrative affairs — national, state, and municipal —
and even the occasional reader of the law must have perceived
that from necessity, if for no better grounded reason, it has
become increasingly imperative that many quasi-legislative and
quasi-judicial functions, which in smaller communities and
under more primitive conditions were performed directly by the
legislative or judicial branches of the government, are intrusted
to departments, boards, commissions, and agents.” (Gaylord v.
City of Pasadena (1917) 175 Cal. 433, 436 (Gaylord).) “No sound
objection can longer be successfully advanced to this growing
method of transacting public business. These things must be
done in this way or they cannot be done at all, and their doing,
in a very real sense, makes for the safety of the republic, and is
thus sanctioned by the highest law.” (Id. at pp. 436–437.) On
this latter point, we cited the high court’s observation in 1907
that “a denial to Congress of the right, under the Constitution,
to delegate the power to determine some fact or the state of
things upon which the enforcement of its enactment depends
would be ‘to stop the wheels of government’ and bring about
confusion, if not paralysis, in the conduct of the public business.”
(Union Bridge Co. v. United States (1907) 204 U.S. 364, 387.)
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More recently, the Court of Appeal in Schabarum v.
California Legislature (1998) 60 Cal.App.4th 1205 (Schabarum)
observed: “It may well be impossible, without risking paralysis
in the conduct of the public business, to return to a form of
government in which all legislative and judicial functions are
performed solely and directly by the Legislature and by the
courts. [Citation.] But it is certainly too late in the day to return
to such a form of government without effecting a constitutional
revision.” (Id. at p. 1224.)
Proponent does not dispute the significance of these
changes. At oral argument, Proponent said the TPA would
accomplish a “rollback to a condition that existed decades ago,
prior to the Legislature deciding that it was going to empower
executive agencies to raise revenue.” Indeed, Proponent
explained that a purpose of the TPA is to “restore” California to
a time before modern administrative practice, when “all fees
were approved, proposed, and enacted by statute.”
Petitioners assert that these changes would “reorder the
balance of powers by effectively (1) prohibiting the Legislature
from delegating certain powers to the executive branch; (2)
prohibiting the executive branch from exercising certain
delegated powers; and (3) compelling the Legislature to perform
administrative acts.” To illustrate the scope of the change, they
point to several statutes that delegate duties to administrative
agencies to impose regulatory and other fees that are not
deemed “taxes” under current law or the TPA. (See, e.g., Bus. &
Prof. Code, § 2340.8 [Medical Board of California to determine
fees relating to the Physician and Surgeon Health and Wellness
Program]; Food & Agr. Code, §§ 33291–33298 [Department of
Food and Agriculture to establish certain inspection fees for
milk production facilities]; Gov. Code, § 12182 [Secretary of
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State to establish fees relating to business programs]; Health &
Saf. Code, §§ 13110 [State Fire Marshal to establish fire safety
fees], 18870.3 [Department of Housing and Community
Development to establish fees relating to mobilehome parks];
id., §§ 25205.2.1, 25205.5.01, 25205.6.1 [Board of
Environmental Safety to establish hazardous waste fees]; Lab.
Code, § 5307.1 [Division of Workers’ Compensation to establish
fees for medical services]; Pub. Util. Code, § 728 [Public Utilities
Commission to adjust utility rates].)
As these examples suggest, state agencies set and
administer a variety of fees. Among the more than 200 agencies
to which the Legislature has delegated rulemaking authority,
other examples abound. The Department of Motor Vehicles lists
more than 70 different fees on its website and reports that it
collects over $8 billion in annual revenue. (Dept. of Motor
Vehicles, Licensing Fees <https://www.dmv.ca.gov/portal/driver-
licenses-identification-cards/licensing-fees/> [as of June 20,
2024]; id., DMV Functions <https://www.dmv.ca.gov/portal/
about-the-california-department-of-motor-vehicles/> [as of June
20, 2024]; see Office of Administrative Law, About the Office of
Administrative Law <https://oal.ca.gov/about-the-office-of-
administrative-law/> [as of June 20, 2024]; all Internet citations
in this opinion are archived by year, docket number and case
name at <http://www.courts.ca.gov/38324.htm>.) Also, the
Legislature has authorized the Board of Environmental Safety
within the Department of Toxic Substances Control to
promulgate various fees for facilities and entities that generate
or process hazardous waste and to adjust those rates as
frequently as once per year, subject to certain statutory
maximums. (See, e.g., Health & Saf. Code, § 25205.2.1,
subd. (a).) The Legislature has further provided that such
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regulations “may be adopted as an emergency regulation . . . as
necessary for the immediate preservation of the public peace,
health, and safety, and general welfare.” (Id., subd. (e).)
Proponent says the TPA is “merely an extension” of the
Legislature’s authority to set or limit fees for state agencies,
offering many examples where the Legislature has done just
that, including some of the examples discussed above. (See, e.g.,
Bus. & Prof. Code, §§ 1724 [authorizing the Dental Board of
California to establish fees relating to the practice of dentistry,
subject to statutory limits], 23320 [setting statutory fees to be
charged by the Department of Alcoholic Beverage Control]; Gov.
Code, § 70600 et seq. [statutory filing fees and other civil fees
that may be charged by Superior Courts]; Veh. Code, § 9101 et
seq. [setting vehicle registration and weight fees to be charged
by the Department of Motor Vehicles]; Health & Saf. Code,
§ 25205.2 et seq. [setting maximum fees to be charged by the
Board of Environmental Safety].)
But the fact that the Legislature has chosen to set or limit
certain fees does not answer Petitioners’ central point that the
Legislature today is authorized to decide whether to set certain
fees itself or to delegate the task to various agencies. Under the
TPA, the Legislature would be stripped of that authority and
would instead be tasked with considering and voting on a
multitude of fees currently set by agencies. The TPA says this
approach will ensure that “all fees and other charges are passed
or rejected by . . . a governing body elected by voters and not
unelected and unaccountable bureaucrats.” (TPA, § 3,
subd. (a).) Whether the proposed changes will in fact promote
transparency or accountability, and how such interests might be
balanced against considerations of agency expertise,
administrative efficiency, or practicality are not for us to say.
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What we decide here is only whether the changes would
substantially alter the current constitutional scheme, in which
legislative delegation of power to administrative agencies is
permissible, widespread, and fundamental to the operation of
government. (Schabarum, supra, 60 Cal.App.4th at p. 1224.)
It is no answer to say that if the Legislature can grant or
withdraw agency authority in this area, so too can the voters
under the initiative power. Petitioners do not claim this change
is beyond the electorate’s power to enact; instead, they claim it
is beyond the scope of an initiative amendment to entirely
withdraw from the Legislature its power to delegate fee-setting
authority to administrative agencies. As noted, the TPA
requires “[a]ny change in state law which results in any
taxpayer paying a new or higher exempt charge” to be enacted
by the Legislature, and it defines “state law” expansively to
include “any state statute, state regulation, state executive
order, state resolution, state ruling, state opinion letter, or other
legal authority or interpretation adopted, enacted, enforced,
issued, or implemented by the legislative or executive branches
of state government” apart from our public universities and
community colleges. (TPA, § 4 [proposed art. XIII A, § 3,
subds. (c), (h)(4)].) Shifting the authority to impose any such
fees or other charges from administrative agencies to the
Legislature would materially reshape the nature and volume of
the Legislature’s everyday work and its overall function and
efficacy in our system of governance.
We also find the TPA’s expansion of the referendum power
to cover all agency fines and fees that qualify as exempt charges
to be a significant change. In Wilde, this court examined the
referendum power and explained why it was necessarily limited.
The referendum power allows a small minority of voters to place
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a newly enacted law on the ballot for an up or down vote and
suspend its operation until it is approved by the majority of
voters. (Wilde, supra, 9 Cal.5th at p. 1111; see art. II, § 9,
subd. (b) [“A referendum measure may be proposed by
presenting to the Secretary of State, . . . a petition certified to
have been signed by electors equal in number to 5 percent of the
votes for all candidates for Governor at the last gubernatorial
election”].) Referendum “poses a distinct potential for
disruption that sets it apart from the ordinary legislative
process.” (Wilde, at p. 1122.) For that reason, “statutes
providing for tax levies or appropriations” have been excluded
from the referendum power since its inception. (Art. II, § 9,
subd. (a); see Wilde, at p. 1122 & fn. 8.) “Article II, section 9’s
exemptions from referendum reflect a recognition that in certain
areas, legislators must be permitted to act expediently, without
the delays and uncertainty that accompany the referendum
process. All of the exemptions — for urgency statutes, statutes
calling elections, and statutes providing for tax levies or
appropriations for usual current expenses of the state — are for
‘measures having special urgency, a delay in the
implementation of which could disrupt essential governmental
operations.’ ” (Wilde, at pp. 1122–1123.)
In light of this purpose, we held in Wilde that the tax
exception to the referendum power includes not only general-
purpose exactions such as sales and income taxes but also any
charge that supports an essential governmental function, like
public utility fees. (Wilde, supra, 9 Cal.5th at pp. 1123–1124.) The
TPA is expressly intended to overrule Wilde and narrow the
Constitution’s tax exception to the referendum power. (TPA,
§ 3, subd. (e).) Proponent contends that this change is
incremental because Wilde held only that a specific revenue
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measure — a city’s water utility rate — was a “tax” for the
purposes of the Constitution’s referendum exception. (See
Wilde, supra, 9 Cal.5th at p. 1126.) Further, Proponent argues
that the voters have rarely exercised their right to subject fees
to referendum at the state or local level in the century prior to
our decision in Wilde.
We find it significant that under the TPA, every nontax
government fee or charge would be subject to referendum,
including those necessary to fund essential services. All state
and local charges, no matter how essential, would be subject to
delays that could be triggered by a small minority of voters in a
given jurisdiction. The existing constitutional scheme
recognizes that governments must be able to rely on the revenue
measures they enact, and they “ ‘cannot have the viability of
such measures continually placed in doubt by the possibility
that a referendum may be initiated by a relatively small
percentage of the electorate.’ ” (Guardino, supra, 11 Cal.4th at
p. 245.) Expanding the referendum power as the TPA proposes
would transform an occasionally used mechanism for
government accountability into a ready tactic for fiscal
disruption. We conclude that the TPA’s requirement that all
statewide nontax government charges be legislatively enacted
would, like the TPA’s state tax voter-approval requirement, effect
a significant change in how our state government raises revenue.
3.
Petitioners contend that the TPA would also “eliminate
much of the power of local executive agencies to take actions
that result in higher taxes or fees, requiring local legislative
bodies and voters to assume much of the work that executive
agencies now do.” These changes, they argue, deprive local
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legislators of their constitutional power to delegate
administrative tasks. Local government amici curiae argue that
the TPA thus “revises the structure of local government,
fundamentally changing the responsibilities of local legislators
and administrators, and stripping charter counties of their
power to establish administrative structures and charter cities
of their ‘plenary authority’ (Cal. Const., art. XI, § 5) to determine
the roles and responsibilities of their officials.” Further, they
argue that the TPA’s restrictions on the ability of state and local
governments to raise revenue without voter approval or to enact
fees not subject to referendum “transform[s] the constitutional
relationship of state and local governments, making the latter
dependent on the State for fiscal survival but stripping the State
of the ability to provide necessary funding.”
The Constitution distributes powers between the
Legislature and local governments (art. XI, § 13) and provides
for the Legislature’s establishment of local governments,
including counties and cities (id., §§ 1, 2). Article XI, section 3
of the Constitution authorizes counties and cities to adopt and
amend charters for their own governance by majority vote. (Id.,
subd. (a).) In addition, the Constitution provides that county
charters shall fix the terms, compensation, and removal of
elected officials and other employees, as well as provide for
performance of statutorily required functions. (Id., § 4,
subds. (c)–(f).) It likewise endows charter cities with “plenary
authority” to provide for the terms, compensation, and removal
of municipal officers and employees, and requires city charters
to “make and enforce all ordinances and regulations in respect
to municipal affairs,” including the regulation of city police
forces, city elections, and city government. (Id., § 5, subd. (a);
id., subd. (b).) The Constitution further provides the authority
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for local governments to “make and enforce within its limits all
local, police, sanitary, and other ordinances and regulations not
in conflict with general laws.” (Id., § 7.) It also authorizes
municipal corporations to establish and operate public utilities
(id., § 9) and prohibits the Legislature from delegating
municipal functions to private parties (id., § 11). The
Constitution requires the state to reimburse local governments
for the cost of any new mandate (art. XIII B, § 6), though the
Legislature has provided that reimbursement is not necessary if
the local agency has the authority to levy service charges or
other fees sufficient to pay for the mandated program or
increased level of service (Gov. Code, § 17556, subd. (d)).
Article XIII, section 24, subdivision (a) of the Constitution
provides that the “Legislature may not impose taxes for local
purposes but may authorize local governments to impose them.”
The first clause of this provision is a “restriction on the
Legislature’s otherwise plenary power of taxation”; it bars the
Legislature from imposing taxes when the “proceeds are devoted
to purely ‘local’ purposes.” (Guardino, supra, 11 Cal.4th at
p. 247.) The second clause “is a confirmation of the Legislature’s
authority to grant the taxing power to local governments insofar
as necessary to enable them to impose such local taxes if they
see fit.” (Id. at pp. 247–248.) Such a grant of power “is an
essential prerequisite to all local taxation, because local
governments have no inherent power to tax.” (Id. at p. 248.)
The Legislature has long conditioned the exercise of local
taxing power on voter approval. (Guardino, supra, 11 Cal.4th
at pp. 250–252.) Some statutes that authorize local
governments to levy various taxes require approval by a simple
majority of voters (id. at p. 251 & fn. 20), while others require a
two-thirds vote (id. at p. 251, fn. 21). In addition, the series of
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initiative reforms that have limited the Legislature’s authority
to impose statewide taxes (ante, at pp. 25–27) also placed
constitutional limitations on local governments’ ability to levy
property, special, and general taxes. Most relevant here is the
1996 passage of Proposition 218, which added article XIII C
requiring majority voter approval of local “general taxes” at a
general election and reaffirming the two-thirds voter approval
requirement for “special taxes.” (Art. XIII C, § 2, subds. (b), (d);
see Cannabis Coalition, supra, 3 Cal.5th at p. 930.) The article’s
definition of “tax” includes several exceptions, including charges
for specific benefits or privileges, licensing fees, entrance fees,
fines, and penalties. (Art. XIII C, § 1, subd. (e).) Proposition
218 also added article XIII D, which limits the ability of local
governments to levy charges or fees upon property. (Art. XIII D,
§§ 2, 4, 6; see Greene v. Marin County Flood Control & Water
Conservation Dist. (2010) 49 Cal.4th 277, 284–286.)
In 2017, we held in Cannabis Coalition that Proposition
218’s requirement that local general taxes must first be
submitted to the electorate at a regularly scheduled general
election does not apply to local voter initiatives proposing
general taxes; such initiatives may be submitted to voters at a
special election. (Cannabis Coalition, supra, 3 Cal.5th at
p. 936.) We explained that the voters, in enacting Proposition
218, did not clearly indicate that the election timing provision
applied to the initiative power. (Cannabis Coalition, at p. 943.)
And we said in dicta that special taxes introduced by initiative
are not subject to article XIII C, section 2, subdivision (d)’s two-
thirds vote requirement for the same reason. (Cannabis
Coalition, at pp. 943–944.)
In response to Cannabis Coalition, the TPA would amend
section 2 of article XIII C to state that the two-thirds voter
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approval requirement for local special taxes also applies to taxes
submitted to the electorate by initiative. (TPA, § 6 [proposed
art. XIII C, § 2, subd. (c)]; see id., § 3, subd. (e) [stating the
measure’s intent “to reverse loopholes” in Cannabis Coalition
and other court decisions].) The TPA further prohibits local
governments from proposing a local tax in a charter city as a
majority vote charter amendment. (Id., § 6 [proposed
art. XIII C, § 2, subd. (f)].) Finally, the TPA requires any
proposal for a general tax to be labeled “for general government
use” and prohibits the use of “advisory” measures to indicate
that general tax revenue will, could, or should be used for a
specific purpose. (Ibid. [proposed art. XIII C, § 2, subd. (d)(3)].)
As noted, the Constitution provides no inherent authority
for local governments to raise taxes. (Guardino, supra, 11
Cal.4th at p. 248.) And the Constitution and various statutes
have long subjected local tax levies to majority and
supermajority voter approval requirements. (Ante, at pp. 25–
26.) In other words, local governments have long been
dependent on state appropriations for the revenue they need to
function. To the extent that the TPA would subject local tax
measures to heightened voter approval requirements or make
local governments more dependent on appropriations from the
Legislature, we conclude that these changes by themselves have
limited significance, though the TPA may intensify the
dependency.
But the TPA would go further. As with its proposed
changes to state taxes, the TPA proposes to redefine local “tax”
and “exempt charge” in ways that broaden the types of
government exactions subject to voter or legislative approval.
(TPA, § 5 [proposed art. XIII C, § 1, subds. (f), (i), (j)].) It would
define “tax” to mean “every . . . levy, charge, or exaction of any
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kind, imposed by a local . . . law that is not an exempt charge,”
including “any ordinance, resolution, regulation, ruling, opinion
letter, or other legal authority or interpretation adopted,
enacted, enforced, issued, or implemented by a local
government.” (Ibid. [proposed art. XIII C, § 1, subds. (f), (i)].) It
would define local “exempt charge” to mean only reasonable
charges imposed for a specific local government service that does
not exceed the “actual” costs to the local government, and only
those fines and penalties imposed “pursuant to adjudicatory due
process.” (Ibid. [proposed art. XIII C, § 1, subds. (i), (j)(1), (4)].)
The TPA further requires that all local “exempt charges” must
be enacted by the local legislative body by ordinance rather than
imposed directly by a local executive branch agency. (Id., § 6
[proposed art. XIII C, § 2, subd. (e)].) As noted, in response to
our decision in Wilde, the TPA would also subject all local fines
and fees, including utility rates, to voter referendum. (Id., § 5
[proposed art. XIII C, § 1, subd. (i); redefining “tax” for purposes
of Cal. Const., art. II, § 9].) Finally, the TPA would require new
measures proposing taxes or new ordinances enacting exempt
charges to specify their type and amount. (Id., §§ 4 [proposed
art. XIII A, § 3, subds. (b)(1), (c)], 6 [proposed art. XIII C, § 2,
subds. (d), (e)].)
Taken together, these provisions of the TPA transform
local revenue-raising by requiring that exempt charges go
through legislative rather than administrative processes. For
example, a local utility would no longer be able to adjust rates
without a local governing body passing an ordinance, and a
community center would no longer be able to impose user fee
charges for facility rentals without engaging in a legislative
process. (See TPA, § 6 [proposed art. XIII C, § 2, subd. (e)].) In
addition, the TPA’s directive that apart from local initiative,
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“[o]nly the governing body of a local government . . . [may]
impose any exempt charge” (ibid. [proposed art. XIII C, § 2,
subd. (e)]), when read together with its definition that “impose”
means “adopt, enact, reenact, create, establish, collect, increase
or extend” (id., § 4 [proposed art. XIII A, § 3, subd. (h)(3)]),
suggests that a city council would have to take action before a
local utility could request or collect customers’ payments for
their monthly bills. Further, the TPA’s definition of an exempt
charge would transform an overdue library book fine or an
expired parking meter fine into a “tax” subject to voter approval
if it is not imposed pursuant to an adjudicatory process. (Id., § 5
[proposed art. XIII C, § 1, subd. (j)(4)].)
We conclude that the TPA’s transformation of the
administrative process of local fee-setting and collection into a
legislative process supports Petitioners’ claim that the TPA
works a qualitative revision. The Constitution endows local
governments with broad authority over their own operations to
fulfill their constitutional mandate to provide public services
like policing, elections, and utilities. (See art. XI, §§ 4, 5, 7;
cf. Wilde, supra, 9 Cal.5th at p. 1123 [a city’s ability to set water
rates without disruption from referendum is necessary to
ensuring its “ability to carry out one of its most basic and
essential functions”].) We have long recognized that local
governments may delegate their legislative authority to their
executive or administrative officers and that such delegation
has become “imperative” in light of the “ever-increasing
multiplicity and complexity of [their] administrative affairs.”
(Gaylord, supra, 175 Cal. at p. 436; see id. at p. 440 [concluding
that a city could “confer[] upon the city electrician judicial or
legislative powers”].) By substantially altering the power of
local governments to delegate decision-making authority to
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their own agencies, the TPA would operate in a manner
dissimilar to any of the prior initiatives that have restricted
local governments’ ability to raise revenue. Proponent does not
dispute that the TPA would require local governing bodies to
authorize the imposition and collection of utility bills, and to
provide adjudicatory due process and legislative approval before
imposing library fines (or else have such fines deemed a “tax”
subject to voter approval). Such changes would substantially
overhaul how local governments go about ensuring that
everyday services are properly provided. In sum, the TPA would
affect all local revenue measures — big or small, essential or
nonessential — to an extent that leaves no aspect of government
untouched.
Proponent says it is “quite common for a local legislative
body (e.g., city council or board of supervisors) to approve a fee
schedule for their locality.” But neither of the fee schedules
Proponent cites as examples — those of Beverly Hills and Chula
Vista — encompasses the new types of “exempt charges” that
would require legislative action (and, for some charges,
adjudicatory due process), nor the new means by which taxes
may be “imposed” under the TPA. (TPA, § 4 [proposed
art. XIII A, § 3, subd. (h)(3)]; id., § 6 [proposed art. XIII C, § 2,
subd. (e)].) Further, Proponent provides no indication that these
local legislative bodies’ voluntary approval of a master fee
schedule is the norm for most local governments. Finally, as
local government amici curiae demonstrate, the fee schedules
cited by Proponent may not even be compliant with the TPA
because they vest discretion in local administrators to
determine the actual amount charged for various services.
Proponent further cites Government Code section 66016,
subdivision (b) for the proposition that the Legislature
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“prohibits delegation of many types of local government fees.”
But this nondelegation provision applies only to a subset of land
use fees. (Gov. Code, § 66016, subd. (d).) There is a sizable gulf
between this provision and the categorical prohibition on local
fee-setting delegation that the TPA would impose. In sum, the
reassignment of local fee-setting from administrative to
legislative processes would substantially alter the processes by
which local governments raise revenue and, in so doing, would
significantly alter the work of local government itself.
C.
In recognizing the fundamental changes the TPA would
make to the operation of state and local government, we express
no view on its wisdom. The basic plan of our state government
was set forth in the 1879 Constitution, and the electorate
remains free to modify it through the appropriate procedures.
The analysis above illuminates whether the TPA would
“substantially alter the basic governmental framework set forth
in our Constitution.” (Legislature v. Eu, supra, 54 Cal.3d at
p. 510.) We decide only whether the measure, taken as a whole,
would accomplish a revision. Whether any individual
component of the TPA would constitute a revision standing
alone is a question we do not answer here.
No speculation regarding potential future consequences is
needed to conclude that the TPA is a revision on its face. The
measure would fundamentally restructure the most basic of
governmental powers. The TPA would exclude the levying of
new taxes from the Legislature’s control by requiring voter
approval of all such measures. In so doing, it would disturb the
long settled understanding that “[t]he power of taxation is a
power which the Legislature takes from the law of its creation,
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for it is an indispensable power, without which it would become
impossible for that body to perform its functions . . . .” (Taylor
v. Palmer (1866) 31 Cal. 240, 252, disapproved on another
ground in Turney v. Dougherty (1879) 53 Cal. 619, 620–621.)
Further, the TPA would significantly alter the ability of state
and local governments to delegate fee-setting authority to their
executive or administrative officers (Gaylord, supra, 175 Cal. at
pp. 436, 440) and ensure the provision of essential services
(Wilde, supra, 9 Cal.5th at p. 1124). And the TPA would subject
every revenue-raising measure enacted by state or local
governments to voter approval or referendum, either because it
is a tax that the voters must enact or because it is an exempt
charge that can only be enacted by the legislative branch and
thus becomes subject to referendum.
Moreover, by enacting these changes together, along with
others noted above, the effects of the TPA on our state and local
governments would be intensified. Whereas a restriction on the
ability of local governments to raise revenue might previously
have been offset by the power of the state to raise revenue, the
TPA burdens both simultaneously. And while the expansion of
what constitutes an exempt charge and the requirement that
such charges be adopted legislatively rather than imposed by an
agency are significant in and of themselves, the TPA’s extension
of the referendum power to these charges magnifies their effect
and creates complications of its own. The TPA’s voter approval
requirements, its nondelegation rules, and its expansion of the
referendum power to charges previously held to be essential
operate together to fundamentally rework the fiscal
underpinnings of our government at every level. The TPA would
shift so much authority, in such a significant manner, that it
would substantially alter our framework of government.
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Opinion of the Court by Liu, J.
For these reasons, we conclude that the TPA would clearly
“accomplish such far reaching changes in the nature of our basic
governmental plan as to amount to a revision” of the
Constitution. (Amador Valley, supra, 22 Cal.3d at p. 223.) The
measure exceeds the scope of the power to amend the
Constitution via citizen initiative. (Art. II, § 8, subd. (a).) It is
within the people’s prerogative to make these changes, but they
must be undertaken in a manner commensurate with their
gravity: through the process for revision set forth in article
XVIII of the Constitution.
CONCLUSION
A peremptory writ of mandate shall issue, directing the
Secretary of State to refrain from taking any steps to place
Attorney General Initiative No. 21-0042A1, also known as
Secretary of State Initiative No. 1935, on the November 5, 2024
election ballot or to include the measure in the voter information
guide.
In light of the time constraints under which the Secretary
of State is required to act, the opinion and judgment shall
become final five days after it is filed. (Cal. Rules of Court, rule
8.490(b)(2)(A); see Isaak v. Superior Court (2022) 73 Cal.App.5th
792, 801.) Each party shall bear its own costs. (See Strauss,
supra, 46 Cal.4th at p. 475; Raven, supra, 52 Cal.3d at p. 356.)
LIU, J.
We Concur:
GUERRERO, C. J.
CORRIGAN, J.
KRUGER, J.
GROBAN, J.
JENKINS, J.
EVANS, J.
51
APPENDIX
TEXT OF INITIATIVE
[Deleted codified text is denoted in strikeout. Added
codified text is denoted by italics and underline. We have put
section titles in boldface to improve readability.]
Section 1. Title
This Act shall be known, and may be cited as, the
Taxpayer Protection and Government Accountability Act.
Section 2. Findings and Declarations
(a) Californians are overtaxed. We pay the nation’s
highest state income tax, sales tax, and gasoline tax. According
to the U.S. Census Bureau, California’s combined state and local
tax burden is the highest in the nation. Despite this, and despite
two consecutive years of obscene revenue surpluses, state
politicians in 2021 alone introduced legislation to raise more
than $234 billion in new and higher taxes and fees.
(b) Taxes are only part of the reason for California’s rising
cost-of-living crisis. Californians pay billions more in hidden
“fees” passed through to consumers in the price they pay for
products, services, food, fuel, utilities and housing. Since 2010,
government revenue from state and local “fees” has more than
doubled.
(c) California’s high cost of living not only contributes to
the state’s skyrocketing rates of poverty and homelessness, they
are the [sic] pushing working families and job-providing
businesses out of the state. The most recent Census showed that
California’s population dropped for the first time in history,
costing us a seat in Congress. In the past four years, nearly 300
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major corporations relocated to other states, not counting
thousands more small businesses that were forced to move, sell
or close.
(d) California voters have tried repeatedly, at great
expense, to assert control over whether and how taxes and fees
are raised. We have enacted a series of measures to make taxes
more predictable, to limit what passes as a “fee,” to require voter
approval, and to guarantee transparency and accountability.
These measures include Proposition 13 (1978), Proposition 62
(1986), Proposition 218 (1996), and Proposition 26 (2010).
(e) Contrary to the voters’ intent, these measures that
were designed to control taxes, spending and accountability,
have been weakened and hamstrung by the Legislature,
government lawyers, and the courts, making it necessary to pass
yet another initiative to close loopholes and reverse hostile court
decisions.
Section 3. Statement of Purpose
(a) In enacting this measure, the voters reassert their
right to a voice and a vote on new and higher taxes by requiring
any new or higher tax to be put before voters for approval.
Voters also intend that all fees and other charges are passed or
rejected by the voters themselves or a governing body elected by
voters and not unelected and unaccountable bureaucrats.
(b) Furthermore, the purpose and intent of the voters in
enacting this measure is to increase transparency and
accountability over higher taxes and charges by requiring any
tax measure placed on the ballot — either at the state or local
level — to clearly state the type and rate of any tax, how long it
will be in effect, and the use of the revenue generated by the tax.
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(c) Furthermore, the purpose and intent of the voters in
enacting this measure is to clarify that any new or increased
form of state government revenue, by any name or manner of
extraction paid directly or indirectly by Californians, shall be
authorized only by a vote of the Legislature and signature of the
Governor to ensure that the purposes for such charges are
broadly supported and transparently debated.
(d) Furthermore, the purpose and intent of the voters in
enacting this measure is also to ensure that taxpayers have the
right and ability to effectively balance new or increased taxes
and other charges with the rapidly increasing costs Californians
are already paying for housing, food, childcare, gasoline, energy,
healthcare, education, and other basic costs of living, and to
further protect the existing constitutional limit on property
taxes and ensure that the revenue from such taxes remains
local, without changing or superseding existing constitutional
provisions contained in Section 1(c) of Article XIII A.
(e) In enacting this measure, the voters also additionally
intend to reverse loopholes in the legislative two-thirds vote and
voter approval requirements for government revenue increases
created by the courts including, but not limited to, Cannabis
Coalition v. City of Upland, Chamber of Commerce v. Air
Resources Board, Schmeer v. Los Angeles County, Johnson v.
County of Mendocino, Citizens Assn. of Sunset Beach v. Orange
County Local Agency Formation Commission, and Wilde v. City
of Dunsmuir.
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Section 4. Section 3 of Article XIII A of the
California Constitution is amended to read:
Sec. 3(a) Every levy, charge, or exaction of any kind
imposed by state law is either a tax or an exempt charge.
(b)(1) (a) Any change in state statute law which results in
any taxpayer paying a new or higher tax must be imposed by an
act passed by not less than two-thirds of all members elected to
each of the two houses of the Legislature, and submitted to the
electorate and approved by a majority vote, except that no new
ad valorem taxes on real property, or sales or transaction taxes
on the sales of real property, may be imposed. Each Act shall
include:
(A) A specific duration of time that the tax will be imposed
and an estimate of the annual amount expected to be derived
from the tax.
(B) A specific and legally binding and enforceable
limitation on how the revenue from the tax can be spent. If the
revenue from the tax can be spent for unrestricted general
revenue purposes, then a statement that the tax revenue can be
spent for “unrestricted general revenue purposes” shall be
included in a separate, stand-alone section. Any proposed
change to the use of the revenue from the tax shall be adopted by
a separate act that is passed by not less than two-thirds of all
members elected to each of the two houses of the Legislature and
submitted to the electorate and approved by a majority vote.
(2) The title and summary and ballot label or question
required for a measure pursuant to the Elections Code shall, for
each measure providing for the imposition of a tax, including a
measure proposed by an elector pursuant to Article II, include:
(A) The type and amount or rate of the tax;
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(B) The duration of the tax; and
(C) The use of the revenue derived from the tax.
(c) Any change in state law which results in any taxpayer
paying a new or higher exempt charge must be imposed by an act
passed by each of the two houses of the Legislature. Each act
shall specify the type of exempt charge as provided in subdivision
(e), and the amount or rate of the exempt charge to be imposed.
(d) (b) As used in this section and in Section 9 of Article II,
“tax” means every any levy, charge, or exaction of any kind
imposed by the State state law that is not an exempt charge.
except the following:
(e) As used in this section, “exempt charge” means only the
following:
(1) a charge imposed for a specific benefit conferred or
privilege granted directly to the payor that is not provided to
those not charged, and which does not exceed the reasonable
costs to the State of conferring the benefit or granting the
privilege to the payor.
(1) (2) A reasonable charge imposed for a specific
government service or product provided directly to the payor
that is not provided to those not charged, and which does not
exceed the reasonable actual costs to the State of providing the
service or product to the payor.
(2) (3) A charge imposed for the reasonable regulatory
costs to the State incident to issuing licenses and permits,
performing investigations, inspections, and audits, enforcing
agricultural marketing orders, and the administrative
enforcement and adjudication thereof.
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(3) A levy, charge, or exaction collected from local units of
government, health care providers or health care service plans
that is primarily used by the State of California for the purposes
of increasing reimbursement rates or payments under the Medi-
Cal program, and the revenues of which are primarily used to
finance the non-federal portion of Medi-Cal medical assistance
expenditures.
(4) A reasonable charge imposed for entrance to or use of
state property, or the purchase, rental, or lease of state property,
except charges governed by Section 15 of Article XI.
(5) A fine, or penalty, or other monetary charge including
any applicable interest for nonpayment thereof, imposed by the
judicial branch of government or the State, as a result of a state
administrative enforcement agency pursuant to adjudicatory due
process, to punish a violation of law.
(6) A levy, charge, assessment, or exaction collected for the
promotion of California tourism pursuant to Chapter 1
(commencing with Section 13995) of Part 4.7 of Division 3 of
Title 2 of the Government Code.
(f) (c) Any tax or exempt charge adopted after January 1,
2022 2010, but prior to the effective date of this act, that was not
adopted in compliance with the requirements of this section is
void 12 months after the effective date of this act unless the tax
or exempt charge is reenacted by the Legislature and signed into
law by the Governor in compliance with the requirements of this
section.
(g)(1) (d) The State bears the burden of proving by a
preponderance of the clear and convincing evidence that a levy,
charge, or other exaction is an exempt charge and not a tax. The
State bears the burden of proving by clear and convincing
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evidence that the amount of the exempt charge is reasonable and
that the amount charged does not exceed the actual cost of
providing the service or product to the payor. , that the amount
is no more than necessary to cover the reasonable costs of the
governmental activity and that the manner in which those costs
are allocated to a payor bear a fair or reasonable relationship to
the payor’s burdens on, or benefits received from, the
governmental activity.
(2) The retention of revenue by, or the payment to, a non-
governmental entity of a levy, charge, or exaction of any kind
imposed by state law, shall not be a factor in determining
whether the levy, charge, or exaction is a tax or exempt charge.
(3) The characterization of a levy, charge, or exaction of
any kind as being voluntary, or paid in exchange for a benefit,
privilege, allowance, authorization, or asset, shall not be a factor
in determining whether the levy, charge, or exaction is a tax or
an exempt charge.
(4) The use of revenue derived from the levy, charge or
exaction shall be a factor in determining whether the levy,
charge, or exaction is a tax or exempt charge.
(h) As used in this section:
(1) “Actual cost” of providing a service or product means:
(i) the minimum amount necessary to reimburse the government
for the cost of providing the service or product to the payor, and
(ii) where the amount charged is not used by the government for
any purpose other than reimbursing that cost. In computing
“actual cost” the maximum amount that may be imposed is the
actual cost less all other sources of revenue including, but not
limited to taxes, other exempt charges, grants, and state or
federal funds received to provide such service or product.
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(2) “Extend” includes, but is not limited to, doing any of
the following with respect to a tax or exempt charge: lengthening
its duration, delaying or eliminating its expiration, expanding
its application to a new territory or class of payor, or expanding
the base to which its rate is applied.
(3) “Impose” means adopt, enact, reenact, create, establish,
collect, increase or extend.
(4) “State law” includes, but is not limited to, any state
statute, state regulation, state executive order, state resolution,
state ruling, state opinion letter, or other legal authority or
interpretation adopted, enacted, enforced, issued, or
implemented by the legislative or executive branches of state
government. “State law” does not include actions taken by the
Regents of the University of California, Trustees of the California
State University, or the Board of Governors of the California
Community Colleges.
Section 5. Section 1 of Article XIII C of the
California Constitution is amended, to read:
Sec. 1. Definitions. As used in this article:
(a) “Actual cost” of providing a service or product means:
(i) the minimum amount necessary to reimburse the government
for the cost of providing the service or product to the payor, and
(ii) where the amount charged is not used by the government for
any purpose other than reimbursing that cost. In computing
“actual cost” the maximum amount that may be imposed is the
actual cost less all other sources of revenue including, but not
limited to taxes, other exempt charges, grants, and state or
federal funds received to provide such service or product.
(b) “Extend” includes, but is not limited to, doing any of
the following with respect to a tax, exempt charge, or Article XIII
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D assessment, fee, or charge: lengthening its duration, delaying
or eliminating its expiration, expanding its application to a new
territory or class of payor, or expanding the base to which its rate
is applied.
(c) (a) “General tax” means any tax imposed for general
governmental purposes.
(d) “Impose” means adopt, enact, reenact, create, establish,
collect, increase, or extend.
(e) (b) “Local government” means any county, city, city
and county, including a charter city or county, any special
district, or any other local or regional governmental entity, or
an elector pursuant to Article II or the initiative power provided
by a charter or statute.
(f) “Local law” includes, but is not limited to, any
ordinance, resolution, regulation, ruling, opinion letter, or other
legal authority or interpretation adopted, enacted, enforced,
issued, or implemented by a local government.
(g) (c) “Special district” means an agency of the State,
formed pursuant to general law or a special act, for the local
performance of governmental or proprietary functions with
limited geographic boundaries including, but not limited to,
school districts and redevelopment agencies.
(h) (d) “Special tax” means any tax imposed for specific
purposes, including a tax imposed for specific purposes, which is
placed into a general fund.
(i) (e) As used in this article, and in Section 9 of Article II,
“tax” means every any levy, charge, or exaction of any kind,
imposed by a local government law that is not an exempt charge.,
except the following:
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(j) As used in this section, “exempt charge” means only the
following:
(1) A charge imposed for a specific benefit conferred or
privilege granted directly to the payor that is not provided to
those not charged, and which does not exceed the reasonable
costs to the local government of conferring the benefit or
granting the privilege.
(1) (2) A reasonable charge imposed for a specific local
government service or product provided directly to the payor
that is not provided to those not charged, and which does not
exceed the reasonable actual costs to the local government of
providing the service or product.
(2) (3) A charge imposed for the reasonable regulatory
costs to a local government for issuing licenses and permits,
performing investigations, inspections, and audits, enforcing
agricultural marketing orders, and the administrative
enforcement and adjudication thereof.
(3) (4) A reasonable charge imposed for entrance to or use
of local government property, or the purchase, rental, or lease of
local government property.
(4) (5) A fine, or penalty, or other monetary charge
including any applicable interest for nonpayment thereof,
imposed by the judicial branch of government or a local
government administrative enforcement agency pursuant to
adjudicatory due process, as a result of to punish a violation of
law.
(5) (6) A charge imposed as a condition of property
development. No levy, charge, or exaction regulating or related
to vehicle miles traveled may be imposed as a condition of
property development or occupancy.
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(6) (7) An Assessments and property related fees
assessment, fee, or charge imposed in accordance with the
provisions of subject to Article XIII D, or an assessment imposed
upon a business in a tourism marketing district, a parking and
business improvement area, or a property and business
improvement district.
(7) A charge imposed for a specific health care service
provided directly to the payor and that is not provided to those
not charged, and which does not exceed the reasonable costs to
the local government of providing the health care service. As
used in this paragraph, a “health care service” means a service
licensed or exempt from licensure by the state pursuant to
Chapters 1, 1.3, or 2 of Division 2 of the Health and Safety Code.
The local government bears the burden of proving by a
preponderance of the evidence that a levy, charge, or other
exaction is not a tax, that the amount is no more than necessary
to cover the reasonable costs of the governmental activity and
that the manner in which those costs are allocated to a payor
bear a fair or reasonable relationship to the payor’s burdens on,
or benefits received from, the governmental activity.
Section 6. Section 2 of Article XIII C of the
California Constitution is amended to read:
Sec. 2. Local Government Tax Limitation.
Notwithstanding any other provision of this Constitution:
(a) Every levy, charge, or exaction of any kind imposed by
local law is either a tax or an exempt charge. All taxes imposed
by any local government shall be deemed to be either general
taxes or special taxes. Special purpose districts or agencies,
including school districts, shall have no power to levy general
taxes.
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(b) No local law government, whether proposed by the
governing body or by an elector, may impose, extend, or increase
any general tax unless and until that tax is submitted to the
electorate and approved by a majority vote. A general tax shall
not be deemed to have been increased if it is imposed at a rate
not higher than the maximum rate so approved. The election
required by this subdivision shall be consolidated with a
regularly scheduled general election for members of the
governing body of the local government, except in cases of
emergency declared by a unanimous vote of the governing body.
(c) Any general tax imposed, extended, or increased,
without voter approval, by any local government on or after
January 1, 1995, 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 the imposition,
which election shall be held within two years of the effective date
of this article and in compliance with subdivision (b). (d) No
local law government, whether proposed by the governing body
or by an elector, 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. A special tax shall not be deemed
to have been increased if it is imposed at a rate not higher than
the maximum rate so approved.
(d) The title and summary and ballot label or question
required for a measure pursuant to the Elections Code shall, for
each measure providing for the imposition of a tax, include:
(1) The type and amount or rate of the tax;
(2) the duration of the tax; and
(3) The use of the revenue derived from the tax. If the
proposed tax is a general tax, the phrase “for general government
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use” shall be required, and no advisory measure may appear on
the same ballot that would indicate that the revenue from the
general tax will, could, or should be used for a specific purpose.
(e) Only the governing body of a local government, other
than an elector pursuant to Article II or the initiative power
provided by a charter or statute, shall have the authority to
impose any exempt charge. The governing body shall impose an
exempt charge by an ordinance specifying the type of exempt
charge as provided in Section 1(j) and the amount or rate of the
exempt charge to be imposed, and passed by the governing body.
This subdivision shall not apply to charges specified in
paragraph (7) of subdivision (j) of section 1.
(f) No amendment to a Charter which provides for the
imposition, extension, or increase of a tax or exempt charge shall
be submitted to or approved by the electors, nor shall any such
amendment to a Charter hereafter submitted to or approved by
the electors become effective for any purpose.
(g) Any tax or exempt charge adopted after January 1,
2022, but prior to the effective date of this act, that was not
adopted in compliance with the requirements of this section is
void 12 months after the effective date of this act unless the tax
or exempt charge is reenacted in compliance with the
requirements of this section.
(h)(1) The local government bears the burden of proving by
clear and convincing evidence that a levy, charge or exaction is
an exempt charge and not a tax. The local government bears the
burden of proving by clear and convincing evidence that the
amount of the exempt charge is reasonable and that the amount
charged does not exceed the actual cost of providing the service
or product to the payor.
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(2) The retention of revenue by, or the payment to, a non-
governmental entity of a levy, charge, or exaction of any kind
imposed by a local law, shall not be a factor in determining
whether the levy, charge, or exaction is a tax or exempt charge.
(3) The characterization of a levy, charge, or exaction of
any kind imposed by a local law as being paid in exchange for a
benefit, privilege, allowance, authorization, or asset, shall not be
factors in determining whether the levy, charge, or exaction is a
tax or an exempt charge.
(4) The use of revenue derived from the levy, charge or
exaction shall be a factor in determining whether the levy,
charge, or exaction is a tax or exempt charge.
Section 7. Section 3 of Article XIII D of the
California Constitution is amended, to read:
Sec. 3. Property Taxes, Assessments, Fees and Charges
Limited
(a) No tax, assessment, fee, or charge, or surcharge,
including a surcharge based on the value of property, shall be
assessed by any agency upon any parcel of property or upon any
person as an incident of property ownership except:
(1) The ad valorem property tax imposed pursuant to
described in Section 1(a) of Article XIII and Section 1(a) of
Article XIII A, and described and enacted pursuant to the voter
approval requirement in Section 1(b) of Article XIII A.
(2) Any special non-ad valorem tax receiving a two-thirds
vote of qualified electors pursuant to Section 4 of Article XIII A,
or after receiving a two-thirds vote of those authorized to vote in
a community facilities district by the Legislature pursuant to
statute as it existed on December 31, 2021.
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(3) Assessments as provided by this article.
(4) Fees or charges for property related services as
provided by this article.
(b) For purposes of this article, fees for the provision of
electrical or gas service shall not be deemed charges or fees
imposed as an incident of property ownership.
Section 8. Sections 1 and 14 of Article XIII are
amended to read:
Sec. 1 Unless otherwise provided by this Constitution or
the laws of the United States:
(a) All property is taxable and shall be assessed at the
same percentage of fair market value. When a value standard
other than fair market value is prescribed by this Constitution
or by statute authorized by this Constitution, the same
percentage shall be applied to determine the assessed value.
The value to which the percentage is applied, whether it be the
fair market value or not, shall be known for property tax
purposes as the full value.
(b) All property so assessed shall be taxed in proportion to
its full value.
(c) All proceeds from the taxation of property shall be
apportioned according to law to the districts within the counties.
Sec. 14. All property taxed by state or local government
shall be assessed in the county, city, and district in which it is
situated. Notwithstanding any other provision of law, such state
or local property taxes shall be apportioned according to law to
the districts within the counties.
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Section 9. General Provisions
A. This Act shall be liberally construed in order to
effectuate its purposes.
B. (1) In the event that this initiative measure and
another initiative measure or measures relating to state or local
requirements for the imposition, adoption, creation, or
establishment of taxes, charges, and other revenue measures
shall appear on the same statewide election ballot, the other
initiative measure or measures shall be deemed to be in conflict
with this measure. In the event that this initiative measure
receives a greater number of affirmative votes, the provisions of
this measure shall prevail in their entirety, and the provisions
of the other initiative measure or measures shall be null and
void.
(2) In furtherance of this provision, the voters hereby
declare that this measure conflicts with the provisions of the
“Housing Affordability and Tax Cut Act of 2022” and “The Tax
Cut and Housing Affordability Act,” both of which would impose
a new state property tax (called a “surcharge”) on certain real
property, and where the revenue derived from the tax is
provided to the State, rather than retained in the county in
which the property is situated and for the use of the county and
cities and districts within the county, in direct violation of the
provisions of this initiative.
(3) If this initiative measure is approved by the voters, but
superseded in whole or in part by any other conflicting initiative
measure approved by the voters at the same election, and such
conflicting initiative is later held invalid, this measure shall be
self-executing and given full force and effect.
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C. The provisions of this Act are severable. If any portion,
section, subdivision, paragraph, clause, sentence, phrase, word,
or application of this Act is for any reason held to be invalid by
a decision of any court of competent jurisdiction, that decision
shall not affect the validity of the remaining portions of this Act.
The People of the State of California hereby declare that they
would have adopted this Act and each and every portion, section,
subdivision, paragraph, clause, sentence, phrase, word, and
application not declared invalid or unconstitutional without
regard to whether any portion of this Act or application thereof
would be subsequently declared invalid.
D. If this Act is approved by the voters of the State of
California and thereafter subjected to a legal challenge alleging
a violation of state or federal law, and both the Governor and
Attorney General refuse to defend this Act, then the following
actions shall be taken:
(1) Notwithstanding anything to the contrary contained
in Chapter 6 of Part 2 of Division 3 of Title 2 of the Government
Code or any other law, the Attorney General shall appoint
independent counsel to faithfully and vigorously defend this Act
on behalf of the State of California.
(2) Before appointing or thereafter substituting
independent counsel, the Attorney General shall exercise due
diligence in determining the qualifications of independent
counsel and shall obtain written affirmation from independent
counsel that independent counsel will faithfully and vigorously
defend this Act. The written affirmation shall be made publicly
available upon request.
(3) A continuous appropriation is hereby made from the
General Fund to the Controller, without regard to fiscal years,
17
LEGISLATURE OF THE STATE OF CALIFORNIA v. WEBER
Appendix
in an amount necessary to cover the costs of retaining
independent counsel to faithfully and vigorously defend this Act
on behalf of the State of California.
(4) Nothing in this section shall prohibit the proponents
of this Act, or a bona fide taxpayers association, from
intervening to defend this Act.
18
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Name of Opinion Legislature of the State of California v. Weber
__________________________________________________________
Procedural Posture (see XX below)
Original Appeal
Original Proceeding XX
Review Granted (published)
Review Granted (unpublished)
Rehearing Granted
__________________________________________________________
Opinion No. S281977
Date Filed: June 20, 2024
__________________________________________________________
Court:
County:
Judge:
__________________________________________________________
Counsel:
Olson Remcho, Robin B. Johansen, Margaret R. Prinzing, Richard R.
Rios and Inez Kaminski for Petitioners.
Independent California Institute and Coyote Codornices Marin as
Amicus Curiae on behalf of Petitioners.
Mastagni Holstedt and Kathleen N. Mastagni Storm for California
Professional Firefighters as Amicus Curiae on behalf of Petitioners.
Neil K. Sawhney, Shilpi Agarwal; Catherine Rogers and Victor Leung
for the ACLU Foundation of Northern California and the ACLU
Foundation for Southern California as Amici Curiae on behalf of
Petitioners.
Altshuler Berzon, Scott A. Kronland, Stacey M. Leyton and Matthew J.
Murray for the Service Employees International Union California
State Council as Amicus Curiae on behalf of Petitioners.
Colantuono, Highsmith & Whatley, Michael G. Colantuono and
Matthew C. Slentz for Association of California Water Agencies,
California Special Districts Association, California State Association of
Counties, California Air Pollution Control Officers Association,
California Association of Sanitation Agencies, California Fire Chiefs
Association, California Municipal Utilities Association, City and
County of San Francisco, City of Los Angeles, Fire Districts
Association of California and League of California Cities as Amici
Curiae on behalf of Petitioners.
Kaufman Legal Group, Stephen J. Kaufman, Gary S. Winuk and
George M. Yin for California Budget and Policy Center as Amicus
Curiae on behalf of Petitioners.
Sharon Terman, Katherine Wutchiett and Shazzy Kamali for
California Labor Federation, California Pan-Ethnic Health Network,
California Rural Legal Assistance, Inc., California Work & Family
Coalition, Center For Workers’ Rights, Center For WorkLife Law,
Child Care Law Center, Disability Rights Education & Defense Fund,
Equal Rights Advocates, First 5 California, Legal Aid at Work and
Unite-LA as Amici Curiae on behalf of Petitioners.
Covington & Burling, David B. Goodwin, Serena R. Saffarini, Natalie
R. Maas and Stanley Young for Edmund G. Brown, Jr., as Amicus
Curiae on behalf of Petitioners.
Strumwasser & Woocher, Michael J. Strumwasser, Beverly Grossman
Palmer, Dale K. Larson and Salvador E. Pérez for Michael Cohen, B.
Timothy Gage and Ana Matosantos as Amici Curiae on behalf of
Petitioners.
Messing Adam & Jasmine, Gary M. Messing, Gregg McLean Adam,
Jason H. Jasmine and Matthew Taylor for Operating Engineers Local
3, California Statewide Law Enforcement Association, San Jose Police
Officers’ Association, Superior Court Professional Employees’
Association, Davis Professional Firefighters’ Association, Local 3494,
East Palo Alto Police Officers’ Association and Sacramento Housing &
Redevelopment Agency Employees Association as Amici Curiae on
behalf of Petitioners.
Greines, Martin, Stein & Richland, Robin Meadow, Katarina E.
Rusinas; Public Counsel, Gregory Bonett, Jonathan Jager and Faizah
Malik for 45 Members of the United to House LA Coalition as Amici
Curiae on behalf of Petitioners.
Lozano Smith, Sloan R. Simmons, Daniel M. Maruccia, Constantine C.
Baranoff; Keith J. Bray, Kristin D. Lindgren and Dana Scott for
California School Boards Association’s Education Legal Alliance as
Amicus Curiae on behalf of Petitioners.
Steven J. Reyes, Mary M. Mooney and Alexa P. Howard for
Respondent.
Bell, McAndrews & Hiltachk, Thomas W. Hiltachk, Paul Gough;
Howard Jarvis Taxpayers Association, Jonathan Coupal, Timothy
Bittle and Laura Dougherty for Real Party in Interest.
Jack Cohen as Amicus Curiae on behalf of Respondent and Real Party
in Interest.
Turner Law and Wm. Gregory Turner for California Farm Bureau
Federation, James Gallagher, Joe Coto and Don Perata as Amici
Curiae on behalf of Respondent and Real Party in Interest.
Law Offices of Jason A. Bezis and Jason A. Bezis for Alameda County
Taxpayers’ Association, California Taxpayer Protection Committee,
Central Valley Taxpayers Association, Chico Taxpayers Association,
Coalition of Sensible Taxpayers (Marin County), Gold Country
Taxpayers Association, Los Angeles County Taxpayers Association,
Orange County Taxpayers Association, Placer County Taxpayers
Association, Reform California, Sacramento County Taxpayers
Association, San Francisco Taxpayers Association, Silicon Valley
Taxpayers’ Association, Solano County Taxpayers Association, Sutter
Yuba Taxpayers Association, Ventura County Taxpayers Association,
the Red Brennan Group and Moving Oxnard Forward as Amici Curiae
on behalf of Real Party in Interest.
Counsel who argued in Supreme Court (not intended for
publication with opinion):
Margaret R. Prinzing
Olson Remcho, LLP
1901 Harrison Street, Suite 1550
Oakland, CA 94612
(510) 346-6200
Thomas W. Hiltachk
Bell, McAndrews & Hiltachk, LLP
455 Capitol Mall, Suite 600
Sacramento, CA 95814
(916) 442-7757