City of San Diego v. Shapiro

Filed 8/1/14

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

CITY OF SAN DIEGO, D063997

Plaintiff and Respondent,

v. (Super. Ct. No.

37-2012-00097148-CU-MC-CTL)

MELVIN SHAPIRO et al.,

Defendants and Appellants.

APPEAL from a judgment of the Superior Court of San Diego County, Ronald S.

Prager, Judge. Reversed and remanded with directions.

Law Office of Craig A. Sherman and Craig A. Sherman for Defendant and

Appellant Melvin Shapiro.

Briggs Law Corporation, Cory J. Briggs, Mekaela M. Gladden, and Anthony N.

Kim for Defendant and Appellant San Diegans for Open Government.

Jan I. Goldsmith, City Attorney, Donald R. Worley, Assistant City Attorney,

Michael Travis Phelps and Glenn Spitzer, Deputy City Attorneys; Orrick Herrington &

Sutcliffe, Michael C. Weed and Daniel C. Bort, for Plaintiff and Respondent City of San

Diego.

I.

INTRODUCTION

In 1978, California voters enacted Proposition 13, which amended the California

Constitution by adding article XIII A (article XIII A). The amendment "plac[ed]

significant limits on the taxing power of local and state governments." (State Building &

Construction Trades Council of California v. City of Vista (2012) 54 Cal.4th 547, 562, fn.

3.) As pertinent here, article XIII A, section 4 provides, "Cities, Counties and special

districts, by a two-thirds vote of the qualified electors of such district, may impose

special taxes on such district . . . ." (Italics added.)

In 1996, California voters enacted Proposition 218, which added article XIII C

(article XIII C) and article XIII D (article XIII D) to the California Constitution in order

to "close government-devised loopholes in Proposition 13." (Apartment Assn. of Los

Angeles County, Inc. v. City of Los Angeles (2001) 24 Cal.4th 830, 839 (Apartment Assn.

of Los Angeles County, Inc.) Article XIII C, section 2, subdivision (d) provides, "No

local government may impose, extend, or increase any special tax unless and until that

tax is submitted to the electorate and approved by a two-thirds vote." (Italics added.)

In this appeal, we must determine whether an election held by the City of San

Diego (the City) to authorize the levying of a special tax complied with these provisions

of the California Constitution. In the election at issue, the City did not permit the City's

registered voters to vote on the special tax. Instead, the City passed an ordinance that

specifically defined the electorate to consist solely of (1) the owners of real property in

2

the City on which a hotel is located, and (2) the lessees of real property owned by a

governmental entity on which a hotel is located.

We conclude that the election was invalid under the California Constitution

because such landowners and lessees are neither "qualified electors" of the City for

purposes of article XIII A, section 4 (see Neilson v. City of California City (2005) 133

Cal.App.4th 1296, 1313 (Neilson) ["the term 'qualified electors' means registered voters,"

quoting art. XIII A, § 4]), nor do they comprise a proper "electorate" under article XIII C,

section 2, subdivision (d). (See Greene v. Marin County Flood Control and Water

Conservation Dist. (2010) 49 Cal.4th 277, 297 (Greene) ["[E]lections pertaining to

special . . . taxes in article XIII C, section 2, do not permit property qualifications"].)

We further conclude that the election was invalid under the San Diego City

Charter (City Charter) because City Charter section 76.1 (section 76.1) requires the

approval of two-thirds of the "qualified electors" voting in an election on a special tax,

and section 6 of the City Charter (section 6) defines "[q]ualified [e]lectors" as those

persons who are registered to vote in general state elections under state law.

Accordingly, we reverse the trial court's judgment validating the special tax and remand

the matter to the trial court with directions to enter judgment against the City.

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II.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Convention Center Facilities District

The San Diego City Council (the City Council) passed an ordinance enacting a

new division of the San Diego Municipal Code (the Division) in November 2011. (San

Diego Mun. Code, ch. 6, art. 1, div. 27.) The Division authorizes the City to form a

Convention Center Facilities District (CCFD) in order to help finance the potential

expansion of the San Diego Convention Center through the imposition of a special tax.

The ordinance explains that the CCFD would "compris[e] the entire City," but that only

hotels within the CCFD "would be subject to [the] special tax," which would be "based

upon a percentage of room revenues." (San Diego Ord. No. 20106.)

The Division incorporates and modifies numerous provisions of the Mello-Roos

Community Facilities Act of 1982 (Gov. Code, § 53311 et seq.)1 (Mello-Roos Act),

including portions of various "election procedures" (San Diego Mun. Code, § 61.2710)

specified in the Mello-Roos Act as necessary to authorize the imposition of a special tax.

The Mello-Roos Act special tax election procedures are defined in section 53326 and

provide in relevant part:

"(a) The legislative body shall . . . submit the levy of any special

taxes to the qualified electors of the proposed community facilities

district or to the qualified electors of the territory to be annexed by

1 All subsequent statutory references are to the Government Code, unless otherwise

specified.

4

the community facilities district in the next general election or in a

special election . . . .

"[¶] . . . . [¶]

"(c) If the proposed special tax will not be apportioned in any tax

year on any portion of property in residential use in that tax year, as

determined by the legislative body, the legislative body may provide

that the vote shall be by the landowners of the proposed district

whose property would be subject to the tax if it were levied at the

time of the election. Each of these landowners shall have one vote

for each acre, or portion thereof, that the landowner owns within the

proposed district that would be subject to the proposed tax if it were

levied at the time of the election."

The Division incorporates and modifies the election procedures of the Mello-Roos

Act as follows:

"All election procedures set forth in the [Mello-Roos Act] shall

apply to this Division with the following exceptions:

"(a) The qualified electors shall in all cases be the Landowners.

"(b) The City Clerk shall in all cases be the elections official.

"(c) Votes shall not be allocated on the basis of acreage of real

property but instead shall be allocated to each Landowner on the

basis of one vote for each dollar of special tax that would have been

the obligation of that parcel as determined by the City Council if the

proposed special tax had been in place for the 12-month period

ending at the end of the month which is three months prior to the

month in which the resolution calling the special mailed-ballot

election is adopted by the City Council." (San Diego Mun. Code,

§ 61.2710.)

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The Division defines Landowner as follows: "Landowner means the owner of the

real property upon which a Hotel[2] is located except that if the fee owner of the real

property is a government entity, Landowner means the lessee of the government entity."

(San Diego Mun. Code, § 61.2705.)

The Division further provides, "Any special tax imposed pursuant to this Division

shall be levied on the property for use of the property as a Hotel (or, as the case may be,

levied on the leasehold interest of a publicly-owned Hotel parcel). The special tax shall

not, in any year, be levied on the residential use of the property for that year. Hotel use is

not residential use." (San Diego Mun. Code, § 61.2712.)

The City Council passed a Resolution of Formation in January 2012, through

which the City finalized the proposal to finance the CCFD. (San Diego Res. No.

307243.) The Resolution of Formation incorporates a rate and method of apportionment

(RMA) of the proposed special tax to be levied upon eligible taxable parcels within the

CCFD. (Ibid.) The RMA provides that the special tax would be calculated based on a

percentage of hotel room revenues at one of three different rates, depending on the hotel's

geographic location. (Ibid.) Hotels in the downtown area would pay three percent of

2 The Division defines "Hotel" as having the same meaning as provided in San

Diego Municipal Code section 35.0102. (San Diego Mun. Code, § 61.2705.) San Diego

Municipal Code section 35.0102 provides: " 'Hotel' means any structure or any portion of

any structure which is occupied, or intended or designed for occupancy, by transients for

dwelling, lodging, or sleeping purposes, and is held out as such to the public. 'Hotel' does

not mean any hospital, convalescent home, or sanitarium." (Ibid.)

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room revenues, while those in other areas would pay either one or two percent of their

room revenues. (Ibid.)

Also in January 2012, the City Council passed a resolution proposing that the

CCFD authorize the City to issue up to $575 million in bonds to be repaid by special tax

revenues levied in the CCFD. (San Diego Res. No. 307244.) The City Council adopted a

resolution authorizing a special election to submit the special tax and bond authorizations

to a vote of the qualified electors within the CCFD. (San Diego Res. No. 307245.) The

election authorization resolution states that the qualified electors would be asked the

following question:

"Shall the San Diego Convention Center Facilities District authorize

the San Diego City Council to levy a special tax, and issue not to

exceed $575,000,000 in bonds secured thereby and by other

revenues, to finance the contiguous expansion, construction,

reconstruction, rehabilitation, equipping, replacement and upgrade of

the San Diego Convention Center and related expenditures, and

establish the appropriations limit for the District . . . ?" (Ibid.)

B. The CCFD special tax election

The City Clerk conducted a mailed-ballot election of the Landowners in the CCFD

in March and April 2012. On April 24, 2012, the City Clerk certified that 19,454,222.42

votes were cast in the election, and that 92.03 percent, or 17,904,588.30 of the total votes

cast, were "Yes" votes. (San Diego Res. No. 307245.) Based on these results, the City

Council declared that the special tax measure had been approved. (Ibid.)

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C. The City directs that the City Clerk record a notice of special tax lien and adopts

an ordinance authorizing the levying of the special tax upon a final judicial

determination that the special tax is valid

The City Council directed the City Clerk to record a Notice of Special Tax Lien in

connection with the CCFD in May 2012 that states that "no special tax shall be levied

until the City has obtained a final validation judgment determining that the special tax

was lawfully authorized and is valid." (San Diego Res. No. 307414.)

In October 2012, the City Council took action to delay implementation of the

special tax at issue pending a final judgment in this case by adopting an ordinance

levying the special tax within the CCFD, conditioned upon, among other events, a final

determination by the court "that the special tax is valid." (San Diego Ord. No. 20209.)

D. This validation action

1. The City's complaint and appellants' answers

In May 2012, the City filed a complaint that contains a single cause of action

seeking validation of the CCFD special tax. In its complaint, the City outlined the

formation of the CCFD and the election approving the special tax, as described above.

(See pt. II.A. and pt. II.B., ante.) The City asserted that the "passage of the ballot

proposition conferred upon the City Council the authority to levy the special tax to

finance the authorized facilities and issue the bonds." The City alleged that "[t]he

election was in all respects valid and binding and in accordance with law," and that "[t]he

special tax is in all respects legal, valid and binding."

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Appellants Melvin Shapiro and San Diegans for Open Government (SDOG) each

answered the City's complaint.

2. The parties' briefing

The parties filed briefs in the Superior Court pertaining to the validity of the

special tax.3 In its opening brief, the City contended that the election approving the

special tax was valid under the California Constitution. The City argued in part:

"Under Article [XIII] A, the imposition of a special tax is subject to

voter approval. Section 53326 of the [Mello-Roos] Act (adopted in

1982 after Proposition 13) establishes who or what is a qualified

elector for voting purposes within a community facilities district.

Subdivision (c) authorizes an election by landowners, rather than

registered voters, irrespective of the number of registered voters

residing with a community facilities district, in cases where the

special tax will by its own terms not be apportioned in any tax year

on property in residential use. [(§ 53326, subd. (c).)] Hotel

property, and transitory occupancy of hotel rooms, are not residential

properties or residential uses. [Citation.]

"The Division mandates that special taxes under its provisions may

only be levied on hotel properties. . . . Accordingly, the hotel

landowners, as defined under the Division and the [Mello-Roos] Act,

are the proper qualified electors for voting purposes within the

District.

"To confine the vote on a special tax to the owners of the real

property that is going to be subject to the special tax is as old as 'no

taxation without representation.' In fact, it is the opposite side of the

same coin—no representation without taxation. Where a citizen is

not going to be asked to pay the special tax, it deprives her of no

constitutionally protected interest that she is not permitted to vote on

3 In addition, pursuant to a stipulation among all parties, the City lodged the

administrative record as well as a series of other documents related to the expansion of

the convention center. The administrative record and these additional documents have

been re-lodged with this court.

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it. In fact, giving the decision-making to those directly affected by a

tax—those who will pay it—is the policy goal underlying taxpayer

protections such as Proposition 13 that are embedded in California

law." (Fn. omitted.)

The City further argued that the special tax did not violate article XIII C, section 2,

subdivision (d) (adopted by the voters in 1996 through Prop. 218) because "[t]he City

sought and received a more than two-thirds affirmative vote from the landowner qualified

electors within the CCFD."

Shapiro and SDOG each filed briefs in opposition. Appellants contended that the

special tax was invalid under both the California Constitution and the City Charter

because the special tax had not been approved by San Diego's "registered, natural-person

voters."4

With respect to the California Constitution, SDOG argued that, "hoteliers—those

who own or lease the land on which the City's hotels are located—are not U.S. Citizens

or registered to vote and thus [are] not 'qualified electors.' " SDOG contended that the

City's argument that the qualified electors could be comprised only of those individuals

and entities that would pay the special tax was incorrect, arguing that there was

"[n]othing in the California Constitution or any other controlling legal authority [that]

equates 'qualified electors' with 'the persons paying the tax.' " SDOG argued that while

4 Shapiro argued, "The Constitution (art. XIII A, § 4) and City Charter (§§ 6, 76.1)

make clear that special taxes . . . require approval by two-thirds [of the] general electorate

vote." Similarly, SDOG argued, "The special tax was not approved by San Diego's

registered, natural-person voters and therefore violates the California Constitution and the

San Diego City Charter."

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weighted landowner voting was permissible under article XIII D, with respect to

assessments, articles XIII A and XIII C require that the general electorate vote on taxes.

SDOG noted that the Neilson court held that a municipality's registered voters comprised

the proper electorate to vote on a special tax imposed under article XIII A, section 4, and

specifically rejected the argument that the electorate should be comprised of only the

property owners who would actually pay the tax. (Citing Neilson, supra, 133

Cal.App.4th at pp. 1312-1313.)5

SDOG further argued:

"Also absent from the opening brief . . . is any case law that allows a

local government imposing a special tax to make up its own

definition of 'qualified electors' for purposes of satisfying the

California Constitution. No case stands for that proposition because

such a glaring loophole in the constitutional protections for

taxpayers would be quickly abused by tax-crazed local governments

who would raise taxes by defining 'qualified electors' in a way that

ensures victory at the ballot box while circumventing the people.

Nothing in the history of Proposition 13, 62, 218, or 26[6] suggests

that voters intended such an absurd outcome."

5 Appellants raised additional arguments for invalidating the special tax that we

need not discuss, in light of our reversal of the judgment on the grounds stated in the text.

6 As with Propositions 13 and 218, Propositions 26 and 62 limited the ability of

local governments to raise revenue without voter consent. (See, e.g., Brooktrails

Township Community Services Dist. v. Board of Supervisors of Mendocino County (2013)

218 Cal.App.4th 195, 198 [discussing Prop. 26]; Borikas v. Alameda Unified School

Dist. (2013) 214 Cal.App.4th 135, 144 [discussing Prop. 62].) We confine our legal

analysis to those portions of the California Constitution added by Propositions 13 and

218, because we conclude that they are dispositive of the appellants' claims.

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With respect to the legality of the special tax election under the City Charter, both

Shapiro and SDOG argued that section 76.1 provides that the "the qualified electors of

the City" must approve all special taxes authorized under article XIII A, and that section

6 of the City Charter provides that the qualifications of electors for all City elections are

the same as those provided under state law for the qualification of electors in general

state elections. It is undisputed that state law specifies that persons who are United States

citizens and residents of California are qualified electors for purposes of general state

elections (Cal. Const., art. II, § 2), and thus may register to vote (Elec. Code, § 2000,

subd. (a) [specifying that "[e]very person who qualifies under Section 2 of Article II of

the California Constitution and who complies with this code governing the registration of

electors may vote"]). According to appellants, the special tax was not validly imposed

under the City Charter, because, as SDOG argued, "There can be no dispute that the

City's residents who are qualified to vote in California general elections were not given

the opportunity to vote on the special tax."

The City filed reply briefs to both appellants' opposing briefs. In its reply to

Shapiro's opposition, the City argued that, "In adopting section 53326, subdivision (c),

the Legislature determined that, in certain situations, the undefined constitutional term

'qualified electors' means landowners, not registered, natural person voters," and argued

that "[t]he Legislature's definition carries great weight." (Citing San Francisco v.

Industrial Acc. Com. (1920) 183 Cal. 273, 279 ["where a constitutional provision may

well have either of two meanings, it is a fundamental rule of constitutional construction

12

that, if the legislature has by statute adopted one, its action in this respect is well nigh, if

not completely, controlling"].) The City further maintained that the City's adaptation of

the election procedures specified in the Mello-Roos Act was consistent with the

Legislature's desire to "allocate voting power in proportion to the special tax each owner

would pay if approved."

The City's summarized its argument by stating:

"[T]he CCFD voting procedures, the limitation of 'qualified electors'

to CCFD 'Landowners,' and the use of a weighted vote allocation did

not violate the Constitution. As discussed above, the [Mello-Roos]

Act established the mechanism of weighted, landowner votes to

approve special taxes in CFDs [community facilities districts].

[(§ 53326, subd. (c).)] Under the [Mello-Roos] Act, landowners

who will pay the tax levied against their property are the qualified

electors; their votes are weighted by the amount of land they own,

which reflects a legislative desire to approximate voting power to

proposed tax burden. The CCFD voting methodology and qualified

electors are no different constitutionally. The qualified electors in

the CCFD are those Landowners that will be subject to the tax; votes

in the CCFD were allocated based on the amount of the special tax

each Landowner is expected to pay. . . . Whether in the CCFD or a

CFD formed solely under state law, landowners subject to the

special tax make up the qualified electorate."7

With respect to the City Charter, the City argued in its reply to Shapiro's

opposition that the definition of "qualified elector" in section 6 does not apply to special

taxes because the first clause of section 76.1 of the City Charter provides,

"Notwithstanding any provision of this Charter to the contrary . . . ." The City also

argued that section 76.1 "explicitly permits limiting the qualified electorate for votes on

7 The City presented a similar argument in its reply to SDOG's opposition.

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special taxes within special districts" in cases in which a special tax will be " 'levied upon

less than the entire City,' " and contended that the CCFD special tax would be levied

upon less than the entire City because it would be imposed only on the "hotel

'Landowners' identified with the CFFD."8

3. The trial court's ruling

After a hearing, the court issued a ruling in favor of the City, validating the special

tax. In its ruling, the trial court first quoted the applicable provisions of the California

Constitution and the City Charter, and then stated the following:

"[Section 53326] of the [Mello-Roos] Act establishes who or what is

a qualified elector for voting purposes within a community facilities

district ('CFD'). Section 53326[, subdivision (c)] authorizes an

election by landowners, rather than registered voters, where the

special tax will not be apportioned in any tax year on property in

residential use. Thus, the Legislature established that, in certain

situations, qualified electors means landowners. (See San Francisco

v. Industrial Acc. Com.[, supra, 183 Cal. at p. 279].) Notably,

section 53326[, subdivision (c)] provides, 'the legislative body may

provide that the vote shall be by the landowners of the proposed

district whose property would be subject to the tax if it were levied at

the time of the election.' (Emphasis added.) Thus, not even all

landowners within a CFD must get a vote—only those whose

property would be subject to the tax are eligible to vote. That is how

the CCFD was structured. Hotel property and transitory occupancy

of hotel rooms are not residential properties or residential uses. (See

San Diego Mun. Code, §§ 61.2705, 35.0102.) The [Mello-Roos]

Act provides for weighted voting allocation based on the amount of

property owned, reflecting a legislative desire to allocate voting

power in proportion to the special tax each owner would pay if

approved. (See California Bldg. Industry Assn. v. Governing

Bd. (1988) 206 Cal.App.3d 212, 238 [(California Bldg. Industry

Assn.)].)

8 The City incorporated this argument in its reply to SDOG's opposition.

14

"Consistent with the [Mello-Roos] 'Act', the Division defined

'qualified electors' as 'Landowners' within the CCFD, those who own

or lease land on which hotels operate. (San Diego Mun. Code,

§ 61.2710.) The Division mandates that special taxes authorized

under its provisions may only be levied on hotel properties. (See

San Diego Mun. Code, §§ 61.2706(i), 61.2712), and that qualified

electors 'shall in all cases be the Landowners.' (San Diego Mun.

Code, § 61.2710(a).)"

The trial court entered a validation judgment in favor of the City that states in

relevant part:

"All proceedings encompassed by this validation action by and for

the City and the [CCFD] in connection with satisfaction of the voter

approval requirement to authorize the [CCFD] special tax, to

authorize the issuance of [CCFD] bonds, to levy the special tax, and

to establish the appropriations limit for the [CCFD], were and are

valid and legally effective and were and are in conformity with the

applicable provisions of all laws and enactments at any time in force

or controlling upon such proceedings, whether imposed by law,

charter, constitution, statute or ordinance, and whether federal, state

or municipal."

4. The appeals

Appellants each timely appealed the trial court's judgment. On appeal, appellants

contend that the trial court erred in concluding that the manner in which the special tax

was enacted does not violate either the California Constitution or the City Charter.9

9 SDOG also contends that the judgment should be reversed because the City

violated the California Environmental Quality Act (Pub. Resources Code, § 21000 et

seq.) by failing to timely prepare an environmental impact report.

Shapiro maintains that the judgment should be reversed because the City's

alteration of the Mello-Roos Act's voting procedures exceeded its home rule authority.

Shapiro also contends, in the alternative, that the special tax is invalid because it is akin

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III.

DISCUSSION

A. The City's special tax is invalid because it was not approved by a two-thirds vote

of either the "qualified electors" or the "electorate" of the City, as is required by

the California Constitution

Appellants claim that the City's special tax is invalid because it was not approved

by a two-thirds vote of either the "qualified electors" (art. XIII A, § 4) or the "electorate"

(art. XIII C, § 2, subd. (d)) of the City, as required by the California Constitution.

Appellants maintain that the City's registered voters are the "qualified electors" (art.

XIII A, § 4) of the City and are the City's "electorate" (art. XIII C, § 2, subd. (d)). In

contrast, the City contends that "the qualified electors [under article XIII A, section 4]

may be comprised of different constituents depending on the nature of the district and the

special tax to be imposed." The City further contends that Proposition 218 (which

adopted art. XIII C, § 2, subd. (d)) "does not apply to landowner qualified electors in

community facilities district elections." Resolution of these issues requires that we

interpret the California Constitution.

1. Applicable principles of interpretation and standard of review

As our Supreme Court emphasized in Silicon Valley Taxpayers' Assn., Inc. v.

Santa Clara County Open Space Authority (2008) 44 Cal.4th 431 (Silicon Valley), in a

to either an assessment or a hotel occupancy tax, and the City did not comply with the

legal requirements to impose either an assessment or a hotel occupancy tax.

We need not consider these additional arguments in light of our reversal of the

judgment on the grounds stated in the text.

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case that challenged the legality of local government's actions under Proposition 218,

"We ' " 'must enforce the provisions of our Constitution and "may not lightly disregard or

blink at . . . a clear constitutional mandate." ' " ' [Citation.] In so doing, we are obligated

to construe constitutional amendments in a manner that effectuates the voters' purpose in

adopting the law." (Silicon Valley, supra, at p. 448.)

The Silicon Valley court outlined the principles that govern our interpretation of

those provisions of the California Constitution that were adopted by the voters:

"[W]e apply the familiar principles of constitutional interpretation,

the aim of which is to 'determine and effectuate the intent of those

who enacted the constitutional provision at issue.' [Citation.] 'The

principles of constitutional interpretation are similar to those

governing statutory construction.' [Citation.] If the language is clear

and unambiguous, the plain meaning governs. [Citation.] But if the

language is ambiguous, we consider extrinsic evidence in

determining voter intent, including the Legislative Analyst's analysis

and ballot arguments for and against the initiative. [Citations.]"

(Silicon Valley, supra, 44 Cal.4th at pp. 444-445.)

Moreover, " '[r]udimentary principles of construction dictate that when constitutional

provisions can reasonably be construed so as to avoid conflict, such a construction should

be adopted.' [Citation.]" (Greene, supra, 49 Cal.4th at p. 290.)

"Because interpretation of a constitutional provision . . . is a question of law, we

perform that interpretation de novo, or independently, and are not bound by the trial

court's analysis or conclusion." (Taxpayers for Accountable School Bond Spending v.

San Diego Unified School Dist. (2013) 215 Cal.App.4th 1013, 1026.)

17

2. The relevant constitutional provisions

Article XIII A, section 4 (added by Prop. 13, § 4) provides:

"Cities, Counties and special districts, by a two-thirds vote of the

qualified electors of such district, may impose special taxes on such

district, except ad valorem taxes on real property or a transaction tax

or sales tax on the sale of real property within such City, County or

special district."

Article XIII C, section 2, subdivision (d) (added by Prop. 218, § 3) provides in

relevant part:

"No local government may impose, extend, or increase any special

tax unless and until that tax is submitted to the electorate and

approved by a two-thirds vote."

3. The City's "qualified electors" for purposes of article XIII A, section 4, and

the City's "electorate" for purposes of article XIII C, section 2, subdivision

(d) are the registered voters of the City

The text, constitutional history, and purpose of both article XIII A, section 4, and

article XIII C, section 2, subdivision (d) support the conclusion that the City's special tax

election was invalid under the state Constitution. Neither public policy considerations

nor section 53326, subdivision (c) of the Mello-Roos Act warrants a contrary conclusion.

a. The text of article XIII A, section 4 makes clear that the City's

"qualified electors" are the City's registered voters

The text of article XIII A, section 4 states that a city may impose a special tax if it

receives a "two-thirds vote of the qualified electors" of the city.10 The Neilson court

10 The City does not dispute that it is the City, rather than the CCFD, that seeks to

impose the tax in this case. Indeed, the City alleged in its validation complaint that the

18

concluded that the "the term 'qualified electors' means registered voters." (Neilson,

supra, 133 Cal.App.4th at p. 1313, quoting art. XIII A, § 4.)

In Neilson, a "nonresident landowner challenged a flat-rate parcel tax imposed by

a city after the city's registered voters approved the tax by a two-thirds majority."

(Neilson, supra, 133 Cal.App.4th at p. 1301.) The nonresident landowner contended that

"the affected property owners, not the registered voters of [City of California City], were

the 'qualified electors' for purposes of section 4 of article XIII A." (Id. at p. 1312.) The

City of California City argued in response that "section 4 of article XIII A should be

harmonized with section 2 of article XIII C [added by Proposition 218], and that various

definitions [that were] in place at the time Proposition 218 was adopted lead to the

conclusion that City's resident voters are the relevant electorate." (Id. at pp. 1312-1313.)

The Neilson court outlined those definitions as follows:

"The Elections Code defines 'elector' to mean 'any person who is a

United States citizen 18 years of age or older and a resident of an

election precinct at least 15 days prior to an election.' (Elec. Code,

§ 321.) The Elections Code does not contain a formal definition of

the word 'qualified,' but it does contain variations of that word that

are useful in determining its meaning. For example, division 2 of

the Elections Code is titled 'Voters' and it contains chapters titled

'Voter Qualifications' (ch. 1, beginning with § 2000) and

'Registration' (ch. 2, beginning with § 2100). Pursuant to section

2000 of the Elections Code, '[e]very person who qualifies under

Section 2 of Article II of the California Constitution and who

complies with this code governing the registration of electors may

vote at any election held within the territory within which he or she

resides and the election is held.' (Italics added.) Article II, section 2

special tax election gave "the City Council authority to levy the special tax to finance the

authorized facilities and issue the bonds." (Italics added.)

19

provides that a 'United States citizen 18 years of age and resident in

this state may vote.' Also, Elections Code section 359 provides that

'voter' means 'any elector who is registered under this code.' " (Id. at

p. 1313.)11

In light of these provisions, the Neilson court concluded that "section 4 of article

XIII A required the special tax to be approved by two-thirds of [City of California City's]

registered voters who voted in the election concerning [the special tax]." (Neilson,

supra, 133 Cal.App.4th at p. 1313, italics added; see also Foothill-De Anza Community

College Dist. v. Emerich (2007) 158 Cal.App.4th 11, 26 [agreeing with Neilson and

stating nonresident property owner was not qualified to vote on school bond measure, and

rejecting nonresident property owner's argument that "qualified electors are the persons

who, like him, are going to actually pay the tax"].) The Neilson court also rejected the

nonresident landowner's contention that only property owners should be permitted to vote

on the tax because "the voting eligibility requirements that [the nonresident landowner]

proposes are set forth in article XIII D [adopted as part of Proposition 218] in regards to

special assessments," not taxes.12 (Neilson, supra, at p. 1313, italics added.)

11 The Neilson court observed in a footnote that the Public Utilities Code defines

"qualified elector" in relevant part as "a voter whose name appears on the great register of

the county in which the district is located . . . ." (Neilson, supra, 133 Cal.App.4th at p.

1313, fn. 6, quoting Pub. Util. Code, § 15505.)

12 (See pt. III.A.3.d., post for a discussion of the distinct voting requirements

established by Proposition 218 with respect to taxes (art. XIII C) and assessments (art.

XIII D).)

20

The California Attorney General has reached the same conclusion as did the

Neilson court. (See 66 Ops.Cal.Atty.Gen. 321 (1983) [interpreting the "the two-thirds

majority vote provision[] of . . . article XIII A, section 4," and stating, "the requisite two-

thirds majority is to be based upon . . . those registered voters who actually voted," italics

added].) We accord the opinion of the Attorney General "great weight," while

recognizing that the opinion is not "controlling as to the meaning of a constitutional

provision or statute." (County of Fresno v. Clovis Unified School Dist. (1988) 204

Cal.App.3d 417, 427 (County of Fresno).)

As both Neilson and the Attorney General's opinion suggest, interpreting the

phrase "vote of the qualified electors" in article XIII A, section 4 (italics added), to refer

to a vote of registered voters is fully consistent with the text of the provision. The term

"qualified elector" is a term that has long been used in California law to refer to

registered voters, without further qualification.13 (See, e.g., Allyn v. Allison (1973) 34

13 A textual argument can be made that the City's special tax is invalid because, by

referring to "qualified electors," the voters who adopted Proposition 13, section 4

intended to require the assent of two-thirds of those possessing the qualifications to vote

under the state Constitution, whether or not they were registered to do so. (See 66

Ops.Cal.Atty.Gen. 321, supra [considering, but rejecting this interpretation of art. XIII A,

§ 4]; cf. Ni v. Slocum (2011) 196 Cal.App.4th 1636, 1654 [noting the distinction in former

Political Code section 1083a between "qualified electors" and "registered qualified

elector[s]"]; Shamsian v. Department of Conservation (2006) 136 Cal.App.4th 621, 634,

fn. 3 [quoting former Elec. Code, § 304 as providing, "The Secretary of State shall adopt

regulations requiring each county to design and implement programs intended to identify

qualified electors who are not registered voters, and to register such persons to vote"].)

However, such an interpretation would be impracticable, since the ordinary manner of

determining those who are qualified to vote is through voter registration. (See Collier v.

Menzel (1985) 176 Cal.App.3d 24, 33 [" '[Registration] . . . is to be regarded as a

21

Cal.App.3d 448, 451, citing Bergevin v. Curtz (1889) 127 Cal. 86, 88 (Bergevin)

[discussed below]; McMillan v. Siemon (1940) 36 Cal.App.2d 721, 726 (McMillan) ["The

term 'qualified elector,' as used in [former] article II, section 1,[14] of the Constitution,

we think . . . means an elector who is entitled to vote," italics added]; Welch v. Williams

(1892) 96 Cal. 365, 367 ["The object of the registration law is to prevent illegal voting by

providing, in advance of election, an authentic list of the qualified electors," italics

added]; see also 44 Ops.Cal.Atty.Gen. 159 (1964) ["The term 'qualified elector' in this

state has a precise meaning. It connotes a status and not a term of residency. 'Qualified

elector' means an elector who is entitled to vote. In short, it is synonymous with the

terms 'voter' or 'registered voter,' " first two italics added]; accord City Charter, § 6

[entitled "Qualified Electors," and stating, "The qualifications of an elector at any

election held in the City under the provisions of this Charter shall be the same as those

reasonable regulation by the legislature for the purpose of ascertaining who are qualified

electors in order to prevent illegal voting' "].) In addition, we agree with the Neilson

court that by referring to a "vote of the qualified electors" (art. XIII A, § 4, italics added),

article XIII A requires an affirmative vote of two-thirds of registered voters who vote in

an election on the imposition of a special tax. (Neilson, supra, 133 Cal.App.4th at p.

1313.)

14 The McMillan court noted that a former provision of the California Constitution

expressly used the term "qualified elector" in the same provision that defined the

qualifications of an elector: "[Former] Article II, section 1, of the Constitution, after

specifying the qualifications of an elector, contains the following proviso: 'Provided, any

person duly registered as an elector in one precinct and removing therefrom to another

precinct in the same county within forty days prior to an election, shall for the purpose of

such election be deemed to be a resident and qualified elector of the precinct from which

he so removed until after such election.' " (McMillan, supra, 36 Cal.App.2d at p. 724,

italics added.)

22

prescribed by the general law of the State for the qualification of electors at General State

Elections," italics added].)

In Bergevin, after noting that the state Constitution prescribes the "qualifications

of an elector" (Bergevin, supra, 127 Cal. at p. 88), the Supreme Court explained that

voting registration requirements are a method of determining which individuals are

"qualified electors." (Ibid., italics added; see also Minges v. Board of Trustees (1915) 27

Cal.App. 15, 18 [citing Bergevin and stating, "A qualified elector, then, is a person whose

qualifications measure up to the constitutional standard"].) Thus, in requiring a "vote of

the qualified electors," the text of article XIII A, section 4 supports the conclusion that

the provision requires a vote of those who reside in the relevant district and possess the

qualifications to vote under our state Constitution and who have registered to vote.

Further, we are aware of no authority, and the City has cited none, that suggests

that the phrase "qualified electors" has ever been used generically to describe a group of

persons entitled to vote based on qualifications other than those specified by our state

Constitution. (See Cal. Const., art. II, § 2 ["A United States citizen 18 years of age and

resident in this State may vote"; Elec. Code, § 2000 [stating that every person who

"qualifies" under article II, section 2 of the California Constitution and who has

registered may vote].)15 Thus, the text of article XIII A, section 4 indicates that an

15 Several other provisions of the California Constitution refer to "qualified electors."

(See, e.g., Cal. Const., art. IX, § 2 ["A Superintendent of Public Instruction shall be

elected by the qualified electors of the State at each gubernatorial election," italics

added]; Cal. Const., art. XI, § 1, subd. (a) ["No county seat shall be removed unless two-

23

election in which only a small subset of landowners and leaseholders are permitted to

vote is not an election of the City's "qualified electors."

The City offers no textual argument to counter the Neilson court's conclusion that

the phrase "qualified electors" in article XIII A, section 4 refers to the registered voters of

the entity (e.g., city, county, or special district) imposing a special tax. However, the City

notes that the Neilson court stated, "[T]he prepositional phrase 'of such district' [in article

XIII A, section 4] means [City of California City] because the tax is imposed by [City of

California City] on all parcels within its geographical limits." (Neilson, supra, 133

Cal.App.4th at p. 1313.) The City contends that Neilson's "holding does not apply,"

because, according to the City, "the CCFD special tax will not be imposed on all City

parcels, but only on parcels on which hotels operate." We do not read the Neilson court's

statement as interpreting article XIII A, section 4 to mandate an election of all of a city's

registered voters only where the special tax will be imposed on all parcels in a

thirds of the qualified electors of the county, voting on the proposition at a general

election, shall vote in favor of such removal," italics added]; Cal. Const., art. XXXIV, § 1

["No low rent housing project shall hereafter be developed, constructed, or acquired in

any manner by any state public body until, a majority of the qualified electors of the city,

town or county, as the case may be, in which it is proposed to develop, construct, or

acquire the same, voting upon such issue, approve such project by voting in favor thereof

at an election to be held for that purpose, or at any general or special election," italics

added].) We are aware of no authority that suggests that the term "qualified electors" in

these provisions has been interpreted to refer to anything other than registered voters.

24

municipality.16 Rather, we read this portion of Neilson as simply meaning that the

registered voters of the City of California City were the proper voters to vote on the

parcel tax at issue in that case, since the tax would be imposed within the City of

California City. As so interpreted, we fully agree with this aspect of Neilson.

b. The constitutional history of article XIII A, section 4 is consistent

with the conclusion that the City's "qualified electors" are its

registered voters

Interpreting the term "qualified electors" as synonymous with registered voters is

consistent with the materials that were presented to the voters in connection with the

approval of Proposition 13. The Legislative Analyst's description of Proposition 13

stated in relevant part, "This initiative would: . . . . authorize local governments to impose

certain nonproperty taxes if two-thirds of the voters give their approval in a local

election." (Ballot Pamp., Primary Elec. (June 6, 1978), analysis of Prop. 13 by Legis.

Analyst, p. 56, italics added; see also California Bldg. Industry Assn., supra, 206

Cal.App.3d at p. 230 ["In reviewing the relevant 1978 voter pamphlet, it can easily be

inferred from the information given there [citation] that voters believed they were

authorizing special taxes which . . . [required] approval by two-thirds of the voters in the

16 Interpreting article XIII A as requiring an election of a district's registered voters

only where the special tax will be imposed on all of the parcels in a district has no basis

in the text of the provision.

25

city, county or special district," italics added].)17 In short, the voters who voted on

Proposition 13 were expressly informed at the time they approved the proposition, in the

materials accompanying the ballot measure, that future local government special tax

increases would require the assent of the voters. There is nothing in either the text or the

constitutional history of Proposition 13 that suggests that voters intended for local

governments to be able to exclude large numbers of registered voters from voting in a

special tax election by limiting who would be deemed "qualified electors" for purposes of

the election.

c. The intent of the voters in enacting article XIII A, section 4 to

restrict the taxing authority of local governments supports the

conclusion that the City's special tax election violated the

state Constitution

Interpreting "qualified electors" as describing a single, defined set of persons, i.e.

registered voters, is consistent with California voters' intent in enacting article XIII A,

section 4. In Rider v. County of San Diego (1991) 1 Cal.4th 1 (Rider), the Supreme Court

explained that the voters adopted section 4 of Proposition 13 in order "to restrict the

ability of local governments to impose new taxes to replace property tax revenues lost

under the other provisions of [Proposition 13]." (Rider, supra, at p. 11; see also Howard

Jarvis Taxpayers Assn. v. County of Orange (2003) 110 Cal.App.4th 1375, 1384 [the

17 On our own motion, we take judicial notice of the 1978 ballot pamphlet materials

associated with Proposition 13, including the summary prepared by the Attorney General,

the Legislative Analyst's analysis, and the ballot arguments for and against the initiative.

(See PG&E Corp. v. Public Utilities Com. (2004) 118 Cal.App.4th 1174, 1204, fn.

25 [appellate court may take judicial notice of legislative history materials on its own

motion].)

26

"raison d'être [of Proposition 13] was to limit municipalities' taxing power"].) The Rider

court considered this intent in determining whether an agency that adopted an ordinance

to impose a "supplemental sales tax . . . throughout the [County of San Diego] for the

purpose of financing the construction of justice facilities" (Rider, supra, at p. 5)

constituted a "special district" under article XIII A, section 4 subject to the two-thirds

super-majority requirement, despite the agency's "lack of power to levy a tax on real

property." (Rider, supra, at p. 10.) Notwithstanding the textual ambiguity of the

meaning of the term "special district" (art. XIII A, § 4) and prior case law that suggested

that the agency was not a special district because it lacked the power to levy a tax on real

property,18 the Rider court held "that 'special district' . . . include[s] any local taxing

agency created to raise funds for city or county purposes to replace revenues lost by

reason of the restrictions of Proposition 13." (Rider, supra, at p. 11.) The Rider court

concluded that the tax was invalid because it had been approved by a simple majority

vote, rather than by a two-thirds vote, as required by article XIII A, section 4. (Rider,

supra, at pp. 5-6.)

In reaching this holding, the Rider court explained, "We must attempt to determine

whether the framers, in using the term 'special district,' intended to adopt a definition that

18 The Rider court acknowledged that it had previously concluded in Los Angeles

County Transportation Com. v. Richmond (1982) 31 Cal.3d 197, 208 (Richmond), that the

term "special district" was ambiguous, "having been given varying interpretations in prior

cases and statutes" (Rider, supra, 1 Cal.4th at p. 7), and that a transit commission created

prior to the passage of Proposition 13 that lacked the power to levy a tax on real property

was not a special district subject to article XIII A, section 4. (Rider, supra, at pp. 7-8

[describing holding in Richmond].)

27

could so readily permit circumvention of section 4." (Rider, supra, 1 Cal.4th at p. 11.) In

concluding that the justice facilities financing agency was a special district subject to

Proposition 13's limitations on special taxation, the Rider court stated that the intent of

the voters in enacting article XIII A, section 4 "would be frustrated if cities and counties

were . . . permitted to arrange for the formation of local taxing districts to finance

municipal functions without securing the requisite two-thirds voter approval." (Rider,

supra, at p. 11.)

Similarly, in this case, we must determine whether the same voters who enacted

Proposition 13 in order to "circumscribe the taxing power of local government" (Rider,

supra, 1 Cal.4th at p. 6) nevertheless intended for local governments to be able to define

the class of electors who would be eligible to vote on a special tax, depending on, as the

City argues, the "nature of the district and the special tax to be imposed." We think it is

clear that the voters who enacted Proposition 13 did not so intend. In our view, the City's

interpretation of article XIII A, section 4 would allow the City to:

"readily circumvent the super-majority vote requirement of section 4

'by the simple creation of a district which is geographically precisely

coterminous with [the City], but which [has different 'qualified

electors'] . . . [and thereby] cut a hole in the financial fence which

the people in their Constitution have erected around their

government. Governmental entities may be expected, instinctively,

to pour through the opening seeking the creation of similar revenue-

generating [mechanisms] in myriad forms which will be limited only

by their ingenuity.' " (Rider, supra, 1 Cal.4th at p. 8, quoting

Richmond, supra, 31 Cal.3d at p. 213 [dis. opn. by Richardson, J.].)

28

Interpreting the term "qualified electors" (art. XIII A, § 4) to refer to registered

voters is consistent with the voters' intent to limit the taxing power of local governments.

Indeed, the intent of the voters at issue in this case is far more evident than was that intent

in Rider, since unlike the "ambiguous" (Rider, supra, 1 Cal.4th at p. 7) term "special

district" (art. XIII A, § 4) that was at issue in Rider, the voters used the well-defined term

"qualified electors" (art. XIII A, § 4) to prescribe the body of persons whose assent would

be required prior to a local government's imposition of a special tax. (See pt. III.A.3.a.,

ante.) Since " 'the intent of the voters is the paramount consideration' " in our

interpretation of article XIII A, section 4, this analysis strongly supports the conclusion

that the election approving the special tax was invalid. (Silicon Valley Taxpayers' Assn.

v. Garner (2013) 216 Cal.App.4th 402, 407.)

d. The text, history, and purpose of Proposition 218 support the

conclusion that registered voters also comprise the "electorate" in

article XIII C, section 2, subdivision (d)

The City does not dispute that that the terms "qualified electors" in article XIII A,

section 4 (added by Prop. 13) and "electorate" in article XIII C, section 2, subdivision (d)

(added by Prop. 218) should be given the same meaning.19 We agree. Although worded

slightly differently, the text of the two provisions is similar, requiring that before the City

may impose a special tax it must gain the approval of "a two-thirds vote of the qualified

19 The City's position is that Landowners are "qualified electors" under article

XIII A, section 4, that Proposition 218 did not alter the constitutional requirements

governing the imposition of special taxes, and that, therefore, Landowners are also a

proper "electorate" under article XIII C, section 2, subdivision (d).

29

electors" (art. XIII A, § 4, italics added) and "a two-thirds vote" of the "electorate" (art.

XIII C, § 2, subd. (d), italics added). The Supreme Court has used the terms

interchangeably—repeatedly using the term 'electorate' when describing the "qualified

electors" voter approval requirement contained in article XIII A, section 4 (added by

Prop. 13), thus providing support for the conclusion that the two terms should be

interpreted to mean the same thing. (See, e.g., Silicon Valley, supra, 44 Cal.4th at p. 442

[" ' "To prevent local governments from subverting its limitations, Proposition 13 also

prohibited counties, cities, and special districts from enacting any special tax without a

two-thirds vote of the electorate . . . " ' " quoting Apartment Assn. of Los Angeles County,

Inc., supra, 24 Cal.4th at p. 836].)

In addition, "because Proposition 218 was designed to close government-devised

loopholes in Proposition 13, the intent and purpose of the latter informs our interpretation

of the former." (Apartment Assn. of Los Angeles County, Inc., supra, 24 Cal.4th at p.

839; and see id. at p. 837 [describing history of the enactment of Prop. 218 as

" 'buttress[ing] Proposition 13's limitations on ad valorem property taxes and special

taxes by placing analogous restrictions on assessments, fees, and charges' "].) While the

primary purpose of Proposition 218 was to reform the law governing local government's

imposition of revenue generating devices other than special taxes (such as general taxes,

assessments, and fees), it is clear from the text of article XIII C, section 2, subdivision (d)

that the voters who enacted Proposition 218 intended to reaffirm the super-majority

limitation initially imposed by Proposition 13 on the ability of local governments to

30

impose special taxes. (See Ballot Pamp., Gen. Elec. (Nov. 5, 1996) official title and

summary prepared by the Attorney General, p. 72 [stating that Prop. 218 "[r]equires

[that] majority of voters approve increases in general taxes and reiterates that two-thirds

must approve special tax," italics added].)20

In light of the similarity of the relevant text of article XIII A, section 4 and that of

article XIII C, section 2, subdivision (d), the constitutional history of the two provisions,

and "our duty to harmonize constitutional provisions where possible" (McWilliams v. City

of Long Beach (2013) 56 Cal.4th 613, 627), we conclude that both provisions refer to the

same group of persons whose approval is required before the City may impose a special

tax.

The fact that Proposition 218 did expressly permit property owners to vote on

certain assessments (art. XIII D) provides strong support for the conclusion that the

voters who enacted Proposition 218 did not intend to permit local governmental entities

to impose property qualifications for electors in elections involving taxes (art. XIII C).21

20 On our own motion, we take judicial notice of the entirety of the 1996 ballot

pamphlet materials associated with Proposition 218 (Ballot Pamphlet on Prop. 218),

including the summary prepared by the Attorney General, the Legislative Analyst's

analysis, and the ballot arguments for and against the initiative. (See PG&E Corp. v.

Public Utilities Com., supra, 118 Cal.App.4th at p. 1204, fn. 25.) Our ruling moots

SDOG's request that we take judicial notice of the "Rebuttal Argument Against

Proposition 218" from the Ballot Pamphlet on Proposition 218, quoted in the text below.

21 The City does not contend that the election at issue in this case was a valid

" 'assessment ballot proceeding' " (Elec. Code, § 4000, subd. (c)(8)(A)) as provided for in

article XIII D. (See Elec. Code, § 4000, subd. (c)(8)(A) [specifying that the voting

31

(See, e.g, Golden Hill Neighborhood Assn, Inc. v. City of San Diego (2011) 199

Cal.App.4th 416, 430 ["Proposition 218's weighted voting requirement, set forth in article

XIII D, section 4, subdivision (e),[22] enhances taxpayer consent by giving property

owners whose properties are proposed to be assessed in amounts greater than other

owners' properties a proportionately greater say as to whether the proposed assessment

will be instituted"].)

The lack of any provision comparable to the weighted property owner voting

provisions mandated for assessments in article XIII D that would permit only property

owners to vote on taxes supports the conclusion that article XIII C, section 2, subdivision

(d) requires the approval of two-thirds of the registered voters when a local government

seeks to impose special taxes. (See Neilson, supra, 133 Cal.App.4th at p. 1313 [noting

that voting limited to property owners is permitted with respect to assessments but not

with respect to special taxes].)

procedure authorized by art. XIII D shall be "denominated an 'assessment ballot

proceeding' "].)

22 Article XIII D, section 4, subdivision (e) provides:

"The agency shall conduct a public hearing upon the proposed

assessment not less than 45 days after mailing the notice of the

proposed assessment to record owners of each identified parcel. At

the public hearing, the agency shall consider all protests against the

proposed assessment and tabulate the ballots. The agency shall not

impose an assessment if there is a majority protest. A majority

protest exists if, upon the conclusion of the hearing, ballots

submitted in opposition to the assessment exceed the ballots

submitted in favor of the assessment. In tabulating the ballots, the

ballots shall be weighted according to the proportional financial

obligation of the affected property." (Italics added.)

32

Article XIII D, section 4, subdivision (g) expressly contrasts "electors" and the

"electorate" with "property owners":

"Because only special benefits are assessable, electors residing

within the district who do not own property within the district shall

not be deemed under this Constitution to have been deprived of the

right to vote for any assessment.[23] If a court determines that the

Constitution of the United States or other federal law requires

otherwise, the assessment shall not be imposed unless approved by a

two-thirds vote of the electorate in the district in addition to being

approved by the property owners as required by subdivision (e)."

(Italics added.)

Article XIII D, section 4, subdivision (g) makes it clear that the voters who

enacted Proposition 218 did not intend for the "electorate" (art. XIII C, § 2, subd. (d); art.

23 The California Constitution expressly forbids conditioning the right to vote on the

ownership of property. (Cal. Const., art. I, § 22 ["The right to vote or hold office may not

be conditioned by a property qualification"].) Similarly, the equal protection clause of

the 14th Amendment to the federal Constitution has been interpreted to preclude

franchise restrictions based on property ownership in certain elections. (Southern Cal.

Rapid Transit Dist. v. Bolen (1992) 1 Cal.4th 654, 664-673 [reviewing case law].)

While this "state constitutional provision prohibiting property qualification for

electors and the one-person, one-vote requirement rooted in the state and federal equal

protection provisions do not apply to fee and assessment elections conducted by limited

purpose government agencies that disproportionately affect certain property owners"

(Greene, supra, 49 Cal.4th at p. 297, fn. 8, italics added), we are aware of no authority

holding that this provision does not apply to tax elections. Our conclusion that the

special tax election was invalid for the reasons stated in the text obviates the need to

determine the substantial constitutional question of whether the special tax election in this

case also violated the state Constitution prohibition concerning property qualifications in

elections or the one person one vote guarantee of the equal protection clause of the 14th

Amendment to the federal Constitution. (Cf. Southern Cal. Rapid Transit Dist. v. Bolen,

supra, 1 Cal.4th at p. 659 [holding that "under the narrow circumstances presented" a

statute prescribing a "voting scheme" concerning the establishment of "assessment

districts" that "condition[ed] the right to vote on the ownership of real property and

alloting votes on the basis of its assessed value" "survive[d] constitutional scrutiny,"

italics added].)

33

XIII D, § 4, subd. (g)) to be subject to property qualifications, as was the case for the

electorate who voted on the special tax at issue in this case. (See Legal Services for

Prisoners with Children v. Bowen (2009) 170 Cal.App.4th 447, 459 ["when a word is

used repeatedly in the Constitution, it is given the same meaning throughout unless the

context clearly requires otherwise"].) Indeed, our Supreme Court has directly stated,

albeit in dicta,24 that special tax elections may not contain property qualifications for

electors. (See Greene, supra, 49 Cal.4th at p. 297 ["fee elections in article XIII D,

section 6, subdivision (c) authorize limiting the election to only property owners, while

most other elections, including elections pertaining to special and general taxes in article

XIII C, section 2, do not permit property qualifications," italics added].) Validation of

the special tax election in this case would be directly contrary to the voters' use of the

term "electorate" in article XIII C, section 2, subdivision (d), and to our Supreme Court's

statement in Greene that elections pertaining to special taxes do not permit property

qualifications.

The ballot pamphlet materials that were presented to the electorate that voted on

Proposition 218 further support the conclusion that the election on the special tax in this

case was invalid. Those opposed to Proposition 218 referred to the voting format

specified in the proposition related to assessments and argued, "YOU LOSE RIGHTS;

24 Notwithstanding that the Greene court's statement was dicta, "[D]icta from the

California Supreme Court is highly persuasive and should generally be followed."

(Wechsler v. Superior Court (2014) 224 Cal.App.4th 384, 393, fn. 2.)

34

CORPORATIONS, DEVELOPERS, NON-CITIZENS GAIN VOTING POWER."25

(Ballot Pamp. on Prop. 218, supra, argument against Prop. 218, p. 77.) In rebuttal to the

argument against Proposition 218, those supporting Proposition 218 stated, "Under

Proposition 218, only California registered voters, including renters, can vote in tax

elections. Corporations and foreigners get no new rights." (Ballot Pamp. on Prop. 218,

supra, rebuttal to argument against Prop. 218, p. 77.) In the special tax election in this

case, the City's registered voters were not permitted to vote—unless they happened to be

Landowners, and to the extent Landowners were a corporation or a foreigner, they were

permitted to vote.

e. The City's policy argument is unpersuasive

In its brief on appeal, the City alludes to an argument, more fully developed in its

trial brief, that "the appropriate qualified electors to approve or reject the CCFD special

tax were those 'landowners' that will have to pay it." There are several problems with this

contention. To begin with, regardless of any policy merits of having only Landowners

vote on the special tax, our state Constitution mandates that qualified electors and the

electorate approve the imposition of special taxes.26 If the voters who adopted

25 Specifically, the argument against Proposition 218 referred to sections (4)(e) and

4(g) of Proposition 218 (art. XIII D, § 4, subds. (e) & (g)). (Ballot Pamp. on Prop. 218,

supra, argument against Prop. 218, p. 77.)

26 In addition, the City's defining "qualified electors" as Landowners (San Diego

Mun. Code, § 61.2710) is, at a minimum, in tension with the state and federal

constitutional tradition prohibiting property qualification in municipal elections. (See fn.

35

Propositions 13 and 218 had desired that only qualified property owners be permitted to

vote on the imposition of special taxes, they were clearly aware of the text to use to

evince such intent. (See, e.g., art. XIII D, § 4, subd. (g) [referring to assessment ballot

proceeding among "property owners," italics added]; accord Southern Cal. Rapid Transit

Dist. v. Bolen, supra, 1 Cal.4th at p. 660 [under assessment voting scheme "qualified

owners are allotted one vote for each $1,000 of assessed value of their real property,"

italics added].)

Second, the specification of a voting scheme for the imposition of taxes in article

XIII C that is distinct from the voting scheme specified for the imposition of assessments

in article XIII D is explained by the "very different" natures of taxes and assessments.

(Silicon Valley, supra, 44 Cal.4th at p. 442 [describing the distinctions between special

taxes and special assessments], citing Knox v. City of Orland (1992) 4 Cal.4th 132

(Knox).) "[A] special assessment is a charge levied against real property within a

particular district for the purpose of conferring a special benefit on the assessed

properties beyond any benefit received by the general public." (Schmeer v. County of Los

Angeles (2013) 213 Cal.App.4th 1310, 1319, citing Knox, supra, at pp. 141-142.) In

contrast, "[a] 'special tax' . . . is imposed to provide benefits to the general public" (ibid.),

and it is possible that those who are burdened by the tax may enjoy no benefit from its

23, ante; Curtis v. Board of Supervisors (1972) 7 Cal.3d 942, 962-963 [stating that

"residents have a constitutional right to vote in municipal elections [citation]; . . .

nonresident landowners have no such right," and that "we entertain no doubt that the state

cannot enact a provision which gives absentee and corporate landowners the power to

override the needs and interests of the residents" (id. at p. 963)].)

36

expenditure. (Silicon Valley, supra, 44 Cal.4th at p. 442, citing Knox, supra, at pp. 141-

142.)

The voters who enacted Proposition 218 reasonably believed that the general

electorate should be the body to decide how to apportion the benefits and burdens of

taxes, both general and special (art. XIII C),27 since the benefits of such taxation would

accrue to the general public and the burdens could fall, at least in part, upon those who

would not benefit. In contrast, these same voters reasonably gave affected property

owners the right to vote on certain special assessments (art. XIII D), given that " 'a

special assessment . . . in reality . . . is a compulsory charge to recoup the cost of a public

improvement made for the special benefit of particular property.' [Citation.]" (Knox,

supra, 4 Cal.4th at p. 142.)

Finally, despite the superficial normative appeal of allowing those who "pay" for a

tax to approve its imposition, it is often difficult to calculate the true economic incidence

of any given tax. (See Fulton Corp. v. Faulkner (1996) 516 U.S. 325, 340-341 [noting

the "extreme complexity of economic incidence analysis"].)28 While the City argues that

27 In addition to mandating that two-thirds of the "electorate" approve the imposition

of special taxes (art. XIII C, § 2, subd. (d)), article XIII C, section 2 also mandates that a

majority of the "electorate" approve the imposition of general taxes. (Art. XIII C, § 2,

subd. (b) ["No local government may impose, extend, or increase any general tax unless

and until that tax is submitted to the electorate and approved by a majority vote"].)

28 The economic incidence of a tax refers to the party or parties who will ultimately

bear the economic burden of the tax. The economic incidence of a tax may differ from

the legal incidence of the tax, which refers to the party or parties who are responsible for

37

only Landowners should vote on the special tax since they are the taxpayers who will pay

the tax, it is far from clear that the incidence of the special tax will actually fall only on

Landowners and not on those individuals who pay for hotel rooms and generate the room

revenue on which the tax is based.29 Further, even assuming that the incidence of the tax

would fall solely on Landowners, this would not support the conclusion that Landowners

are the proper class of persons to vote on the tax. That is because " ' "[n]othing is more

familiar in taxation than the imposition of a tax upon a class or upon individuals who

enjoy no direct benefit from its expenditure, and who are not responsible for the

condition to be remedied." ' " (Silicon Valley, supra, 44 Cal.4th at p. 442, quoting Knox,

supra, 4 Cal.4th at p. 142.) Giving Landowners the unilateral right to determine how to

apportion the benefits that would flow from a tax whose burdens may well fall on others

would be contrary to both the Constitution and ordinary principles of taxation.

In short, the City's policy argument is unpersuasive, and does not provide support

for the conclusion that the special tax election at issue in this case was valid.

remitting a particular tax to the government. The Fulton Corp. court explained this

distinction by stating, "It is well established that 'the ultimate distribution of the burden of

taxes [may] be quite different from the distribution of statutory liability' [citation], with

such divergence occurring when the nominal taxpayer can pass it through to other

parties . . . ." (Fulton Corp. v. Faulkner, supra, 516 U.S. at p. 341.)

29 As SDOG argues, it is also clear that Landowners would not be the only persons

or entities potentially affected by the economic effects of an increase in a tax that could

lead to a decrease in the numbers of persons staying in hotel rooms in San Diego. In this

regard, we note that the administrative record indicates that registered voters in the City

of San Diego twice rejected efforts to increase the transient occupancy tax—in both

March and November 2004.

38

f. The landowner voting format outlined in section 53326, subdivision

(c) of the Mello-Roos Act does not demonstrate the constitutional

validity of the City's special tax election

In seeking to uphold the special tax election in this case, the City does not provide

any argument based on the text of the relevant constitutional provisions, their

constitutional histories, or the intent of the voters in enacting these provisions. For the

reasons described above, these traditional sources of constitutional interpretation

overwhelmingly support the conclusion that the special tax election in this case was

invalid because the City's registered voters were not permitted to vote in the election.

The City's sole theory that the special tax is constitutional is its contention that

article XIII A, section 4 did not expressly "define or identify the qualified electors of the

local government entities to which the two-thirds majority vote requirement applied" and

that the term "qualified electors" is ambiguous. The City further contends that "[i]n the

[Mello-Roos] Act, . . . four years after Proposition 13, the Legislature explicitly defined

qualified electors for purposes of community facilities districts" (citing San Francisco v.

Industrial Acc. Com., supra, 183 Cal. at p. 279 [stating that courts ordinarily defer to

Legislature's specification of a definition for an ambiguous constitutional term]). This is

the only theory that the trial court provided in support of its conclusion that the special

tax election met constitutional requirements. (See pt. II.D.3., ante.) We are not

persuaded.

The term "qualified electors" (art. XIII A, § 4) is not ambiguous, for the reasons

stated in part III.A.3.a., ante. We thus have no occasion to defer to the Legislature's

39

purported interpretation of the term "qualified electors" (art. XIII A, § 4) contained in the

Mello-Roos Act. Moreover, the Legislature's interpretation of Proposition 13 is found in

its 1979 enabling legislation of the proposition (§ 50075 et seq.), not in the 1986

amendment of the Mello-Roos Act on which the City relies (§ 53326, subd. (c)).30 In

California Bldg. Industry Assn., supra, 206 Cal.App.3d 212, the court explained that the

Legislature's contemporaneous construction of article XIII A, section 4 is found in

section 50075 et seq.:

"Building Industry correctly argues that in [interpreting] article

XIII A, section 4 . . . we should also apply the rule of construction

which states that ambiguities in an enactment may be resolved by

referring to the contemporaneous construction given to the

enactment by the Legislature or by the administrative agency

charged with implementing the enactment. [Citations] '[Where] a

constitutional provision may well have either of two meanings, it is a

fundamental rule of constitutional construction that, if the

[L]egislature has by statute adopted one, its action in this respect is

well nigh, if not completely, controlling.' (San Francisco v.

Industrial Acc. Com.[, supra, 183 Cal. at p. 279] . . . .)

"That rule has been expressly applied to article XIII A, section 4 by

the Richmond [, supra, 31 Cal.3d 197] court . . . . [T]he court

specifically stated that sections 50075 to 50077 were intended by the

Legislature as enabling legislation for section 4. [Citation.] A

review of the legislative history for these sections bears this out."

(California Bldg. Industry Assn., supra, 206 Cal.App.3d at p. 231.)

30 The City's assertion that section 53326, subdivision (c) was enacted "four years"

after the 1978 passage of Proposition 13 is incorrect. Although the original version of the

Mello-Roos Act was adopted in 1982 (Stats. 1982, ch. 1451, § 1), the provision on which

the City relies in this case (§ 53326, subd. (c)), was not adopted until 1986. (Stats. 1986,

ch. 1102, § 19.)

40

The Legislature's Proposition 13 enabling legislation is fully consistent with the

conclusion that article XIII A, section 4 requires that two-thirds of a district's registered

voters approve a special tax. The Legislature entitled its enabling legislation, "Voter-

Approved Special Taxes" (Stats. 1979, ch. 903, § 1, italics added) and included the

following provision:

"The legislative body of any city or county district may, following

notice and public hearing, propose by ordinance the adoption of a

special tax. The ordinance shall include the type of tax and rate of

tax to be levied, the method of collection, and the dates upon which

an election shall be held to approve the levy of such tax. Such

proposition shall be submitted to the voters of the city or county,

and, upon the approval of two-thirds of the voters voting upon such

proposition, the city or county may levy the tax." (Former § 50077,

subd. (a); Stats. 1979, ch. 903, § 1, italics added.)

Thus, the Legislature interpreted Proposition 13, as we do—to require the approval of

two-thirds of a city's voters before a city may impose a special tax.

In any event, a consideration of the election provisions contained in the Mello-

Roos Act does not persuade us that the special tax election in this case complied with

article XIII A, section 4 and article XIII C, section 2, subdivision (d). As noted

previously, section 53326, subdivision (a) provides that a local government shall submit

the question of whether to levy a special tax to fund a community facilities district to the

qualified electors of the proposed community facilities district, as follows:

"(a) The legislative body shall then submit the levy of any special

taxes to the qualified electors of the proposed community facilities

district . . . ."

41

Section 53326, subdivision (b) in turn specifies that the qualified electors will

ordinarily be either the registered voters of the proposed community facilities district, or

in the case of a predominantly uninhabited proposed district, the landowners of the

district:

"(b) Except as otherwise provided in subdivision (c), if at least 12

persons, who need not necessarily be the same 12 persons, have been

registered to vote within the territory of the proposed community

facilities district for each of the 90 days preceding the close of the

protest hearing,[31] the vote shall be by the registered voters of the

proposed district, with each voter having one vote. Otherwise, the

vote shall be by the landowners of the proposed district and each

person who is the owner of land at the close of the protest hearing, or

the authorized representative thereof, shall have one vote for each

acre or portion of an acre of land that he or she owns within the

proposed community facilities district not exempt from the special

tax." (Italics added.)32

Section 53326, subdivision (c), in turn, contains the exception referenced in

section 53326, subdivision (b), stating that local governments may utilize a landowner

voting format if the special tax will not be apportioned on residential property:

"(c) If the proposed special tax will not be apportioned in any tax

year on any portion of property in residential use in that tax year, as

determined by the legislative body, the legislative body may provide

that the vote shall be by the landowners of the proposed district

31 Section 53325 provides for a hearing to protest the formation of a proposed

community facilities district.

32 This appeal does not require that we consider the distinct question of whether

landowner voting to impose special taxes pursuant to section 53326, subdivision (b) is

constitutional under article XIII A, section 4 and article XIII C, section 2, subdivision (d)

in districts that lack sufficient registered voters to conduct an election among registered

voters.

42

whose property would be subject to the tax if it were levied at the

time of the election. Each of these landowners shall have one vote

for each acre, or portion thereof, that the landowner owns within the

proposed district that would be subject to the proposed tax if it were

levied at the time of the election." (§ 53326, subd. (c).)

There is nothing in either the text or the legislative history of section 53326

subdivision (c) that indicates that in enacting this statute, the Legislature considered the

meaning of "qualified electors" under article XIII A, section 4.33 Thus, there is no

indication that the Legislature considered any of the numerous sources of constitutional

33 The parties do not rely on any of the legislative history of the statute in which the

Legislature enacted section 53326, subdivision (c) in their briefing on appeal. (Stats.

1986., ch. 1102, § 19.) On our own motion, we take judicial notice of the following

documents from this legislative history: Department of Finance, Enrolled Bill Report of

Senate Bill No. 1115 (1985-1986 Reg. Sess.) dated August 29, 1986; Office of Local

Government Affairs, Enrolled Bill Report of Senate Bill No. 1115 (1985-1986 Reg.

Sess.) dated August 27, 1986; Assembly Local Government Committee, Third reading

analysis of Senate Bill No. 1115 (1985-1986 Reg. Sess.) as amended August 14, 1986;

Department of Finance, Review of Senate Bill No. 1115 (1985-1986 Reg. Sess.) as

amended August 14, 1986; Assembly Local Government Committee, Republican

Analysis of Senate Bill No. 1115 (1985-1986 Reg. Sess.) as amended August 14, 1986;

Senate Rules Committee, Office of Senate Floor Analyses, Report on Senate Bill No.

1115 (1985-1986 Reg. Sess.) as amended August 14, 1986; Assembly Public

Investments, Finance & Bonded Indebtedness Committee, Report on Senate Bill No.

1115 (1985-1986 Reg. Sess.) as amended June 17, 1986; Senate Rules Committee, Office

of Senate Floor Analyses, Report on Senate Bill No. 1115 (1985-1986 Reg. Sess.) as

amended January 28, 1986; Office of Local Government Affairs, Legislative Analysis of

Senate Bill No. 1115 (1985-1986 Reg. Sess.) as amended January 28, 1986; Legislative

Analyst, Analysis of Senate Bill No. 1115 (1985-1986 Reg. Sess.) as amended January

14, 1986; Department of Finance, Local Cost Estimate (1985-1986 Reg. Sess.) dated

January 17, 1986; Senator Henry J. Mello, Fact Sheet–SB 1115 (1985-1986 Reg. Sess.)

dated January 14, 1986; Department of Finance, Review of Senate Bill No. 1115 (1985-

1986 Reg. Sess.) as amended January 14, 1986; Senate Local Government Committee,

Report on Senate Bill No. 1115 (1985-1986 Reg. Sess.) as amended January 14, 1986;

Assembly Local Government Committee, Report on Senate Bill No. 1115 (1985-1986

Reg. Sess.) as amended January 28, 1985.

43

interpretation that we have cited that bear on this question. Further, there is no indication

in either the text or the legislative history of section 53326, subdivision (c) that indicates

that the Legislature considered whether a landowner election under section 53326,

subdivision (c) constitutes a valid election of the "qualified electors" (art. XIII A, § 4).34

Given these circumstances, we are unwilling to defer to a purported legislative

interpretation of the meaning of "qualified electors" under article XIII A. (See Pacific

Legal Foundation v. Brown (1981) 29 Cal.3d 168, 180 [doctrine of deferring to

legislative interpretation of a constitutional provision is "particularly appropriate when

the Legislature has enacted a statute with the relevant constitutional prescriptions clearly

in mind," citing San Francisco v. Industrial Acc. Com., supra, 183 Cal. at p. 279].)

In light of the fact that Proposition 13, section 4 "was intended to circumscribe the

taxing power of local government" (Rider, supra, 1 Cal.4th at p. 6), the City's argument

that we should defer to the Legislature's purported intent in enacting section 53326,

subdivision (c) to afford local governments flexibility in complying with this state's

constitutional mandate is less than compelling. In addition, according deference to this

purported legislative intent would require that we interpret article XIII A, section 4 in a

manner contrary to a decision of the Court of Appeal (Neilson, supra, 133 Cal.App.4th at

34 One committee report did pose the following question, in the "Comments" portion

of the report: "Is it appropriate for residents of a Mello-Roos district to be unable to vote

on the imposition of a proposed tax to be levied solely on nonresidential property,

recognizing that they will not directly pay the tax, but will be impacted by the projects or

services financed?" (Assem. Pub. Invest., Fin. & Bonded Indebtedness Com., Rep. on

Sen. Bill No. 1115 (1985-1986 Reg. Sess.) as amended June 17, 1986, p. 4.) The report

does not indicate that the committee considered the constitutionality of such a provision.

44

p. 1313) and an opinion of the Attorney General (66 Ops.Cal.Atty.Gen. 321, supra). We

accord the interpretation of law found in these sources significant deference. (See The

MEGA Life and Health Ins. Co. v. Superior Court (2009) 172 Cal.App.4th 1522, 1529

[" 'we ordinarily follow the decisions of other districts without good reason to

disagree' "]; County of Fresno, supra, 204 Cal.App.3d at p. 427 [Attorney General

opinions are given "great weight"].) Further, the interpretation that the City urges would

also require us to disregard the Supreme Court's statement in Greene, supra, 49 Cal.4th at

page 297, that elections pertaining to special taxes "do not permit property

qualifications."

Even assuming that, in enacting section 53326, subdivision (c), the Legislature

intended that local governments would be permitted to interpret the constitutional term

"qualified electors" (art. XIII A, § 4) to refer to a narrow class of landowners and

leaseholders, it is well established that "[a] statute cannot trump the Constitution."

(County of Los Angeles v. Commission on State Mandates (2007) 150 Cal.App.4th 898,

904.) In light of the textual clarity of the constitutional provisions at stake, and the

overwhelming interpretative evidence supporting the conclusion that the special tax

election in this case was invalid because the City's registered voters were not permitted to

vote in the election, we are obligated to effectuate the voters' intent in enacting

Propositions 13 and 218, and strike down the tax.35 (See Greene, supra, 49 Cal.4th at p.

35 It is undisputed that there are differences in the voting procedures specified in

section 53326, subdivision (c) and the procedures utilized by the City in the Division. As

45

291 ["ultimate constitutional interpretation must rest, of course, with the judiciary (see

Marbury v. Madison (1803) 5 U.S. (1 Cranch) 137, 176-180)"].)

Accordingly, we conclude that the City's special tax is invalid because it was not

approved by a two-thirds vote of either the "qualified electors" (art. XIII A, § 4) or the

"electorate" (art. XIII C, § 2, subd. (d)) of the City, as the California Constitution

requires.

B. The City's special tax is invalid because it was not approved by a two-thirds vote

of registered voters, as is required under the City Charter

As an additional basis for reversing the judgment, appellants contend that the

City's special tax is invalid because it was not approved by a two-thirds vote of the

qualified electors of the City, as the City Charter requires.36 This claim turns on the

proper interpretation of the City Charter, an issue that we review de novo. (See, e.g., City

of Oakland v. Oakland Police and Fire Retirement System (2014) 224 Cal.App.4th 210,

226, fn. 7 ["we will resolve this appeal through our de novo review of legal issues, such

as the interpretation of the [Oakland City Charter]"]; Conde v. City of San Diego

the City states in its brief, "From the outset, the City acknowledged that the CCFD was

not an exact replica of a community facilities district under the [Mello-Roos] Act." For

example, while section 53326, subdivision (c) provides for weighted voting based on

ownership measured by acreage, the Division allocates votes on the basis of a

Landowner's projected tax burden (see San Diego Mun. Code, § 61.2710, subd. (c)). We

assume, for purposes of this decision only, that these distinctions are, as the City

contends, "not constitutionally material."

36 Because our resolution of appellants' claim under the City Charter provides an

additional basis for reversing the trial court's judgment and our analysis of the two claims

is highly related, we consider this claim notwithstanding our reversal of the judgment on

state constitutional grounds.

46

(2005) 134 Cal.App.4th 346, 350 ["the interpretation of a city charter is reviewed de novo

on appeal"].)

1. The legal effect of the City Charter

In San Diego City Firefighters, Local 145 v. Board of Administration Etc. (2012)

206 Cal.App.4th 594, 608, this court outlined the legal effect of the City Charter:

" '[T]he charter represents the supreme law of the City, subject only

to conflicting provisions in the federal and state Constitutions and to

preemptive state law. [Citation.] . . . "[T]he charter operates . . . as

an instrument of limitation and restriction on the exercise of power

over all municipal affairs which the city is assumed to possess . . . ."

[Citations.]" [Citations.]' . . . '[I]t is well settled that a charter city

may not act in conflict with its charter. [Citations.] Any act that is

violative of or not in compliance with the charter is void. [Citation.]'

[Citation.] The provisions of the city's charter thus 'supersede all

municipal laws, ordinances, rules or regulations inconsistent

therewith' [citation] and 'an ordinance [or resolution] violative of or

not in compliance with the city charter is void.' (5 McQuillin, The

Law of Municipal Corporations (3d ed.) § 15:17, p. 144.)"

2. Principles of interpretation

"Generally, the same principles of construction applicable to statutes apply to the

interpretation of municipal charters. [Citations.] The courts must always look first to the

express language of the [law] to ascertain its meaning." (United Assn. of Journeymen v.

City and County of San Francisco (1995) 32 Cal.App.4th 751, 760.)

47

3. Relevant provisions of the City Charter

Section 6 of the City Charter provides:

"Qualified Electors

"The qualifications of an elector at any election held in the City

under the provisions of this Charter shall be the same as those

prescribed by the general law of the State for the qualification of

electors at General State Elections. No person shall be eligible to

vote at such City election until he has conformed to the general State

law governing the registration of voters." (Italics added.)

City Charter section 76 provides in relevant part, "No special tax shall be

permitted except as expressly authorized by this Charter."

Section 76.1 of the City Charter provides:

"Special Taxes

"Notwithstanding any provision of this Charter to the contrary, a

special tax, as authorized by Article XIII A of the California

Constitution may be levied by the Council only if the proposed levy

has been approved by a two-thirds vote of the qualified electors of

the City voting on the proposition; or if the special tax is to be levied

upon less than the entire City, then the tax may be levied by the

Council only if the proposed levy has been approved by a two-thirds

vote of the qualified electors voting on the proposition in the area of

the City in which the tax is to be levied." (Italics added.)

4. "Qualified electors" for purposes of the City Charter are the City's

registered voters

Section 6 of the City Charter provides that the qualified electors for "any election

held in the City" shall be those persons who are registered to vote under state law. Thus,

pursuant to section 6, "qualified electors" means registered voters. Section 76.1, in turn,

mandates that a special tax may be imposed only upon the approval of two-thirds of

48

"qualified electors." Reading sections 6 and 76.1 together, as we must,37 sections 6 and

76.1 provide that the imposition of a special tax requires the approval of the registered

voters in the City, or in the area of the City where the tax is to be levied.

The express reference to article XIII A and the use of the term "qualified electors"

in the text of section 76.1 strongly support the conclusion that the provision should be

interpreted consistently with article XIII A, section 4 to require an election by registered

voters. (See Mason v. Retirement Board (2003) 111 Cal.App.4th 1221, 1229 ["We do not

interpret . . . charter provisions . . . in isolation," and stating that courts must interpret a

charter provision " ' "with reference to the entire scheme of law of which it is part so that

the whole may be harmonized and retain effectiveness" ' "].)

The voter information pamphlet from the election at which the City's voters

enacted section 76.1 supports this conclusion,38 stating in relevant part:

"The California State Constitution presently allows voters in a city

or community to approve, by a two-thirds vote, special tax levies for

desired additional improvements or services.

"[¶] . . . . [¶]

37 (See, e.g., Creighton v. City of Santa Monica (1984) 160 Cal.App.3d 1011, 1017

["the various sections of a charter must be construed together, giving effect and meaning

so far as possible to all parts thereof, with the primary purpose of harmonizing them and

effectuating the legislative intent as therein expressed"].)

38 "Courts may assume the ballot materials reflected the voters' intent in passing

the . . . charter." (Howard Jarvis Taxpayers Assn. v. County of Orange, supra, 110

Cal.App.4th at p. 1386.)

49

"This concept is already permitted by our State Constitution and is

entirely consistent with the 1978 Jarvis-Gann Initiative (Proposition

13), which enjoyed widespread voter approval. The remaining step

needed to permit communities in San Diego to take advantage of this

technique is an enabling amendment to City Charter section 76."

(City of San Diego Sample Ballot & Voter Information Pamp.,

General Mun. Elec., Tuesday Nov, 8, 1983, argument in favor of

Prop. B., italics added.)39

None of the arguments that the City makes in support of its claim that section 76.1

does not require a vote of registered voters is persuasive. The City's primary argument is

that section 6's express definition of "qualified electors" does not apply to the "qualified

electors" referred to in section 76.1 because the first clause of section 76.1 provides,

"Notwithstanding any provision of this charter to the contrary . . . ." In this regard, the

City argues, "As [the] language states, section 6 (or any other provision) does not control

with respect to special taxes." The City's reading of the "notwithstanding" clause is

unpersuasive. The definition of qualified electors set forth in section 6 is not contrary to

any provision in section 76.1. Rather, section 6 provides a definition of a term that is not

otherwise expressly defined in section 76.1.40 In any event, even assuming that the

definition of "qualified electors" provided in section 6 did not apply, for the reasons

39 On our own motion, we take judicial notice of the pamphlet. (See PG&E Corp. v.

Public Utilities Com., supra, 118 Cal.App.4th at p. 1204, fn. 25.)

40 The "notwithstanding" clause is most reasonably interpreted as referring to other

provisions concerning special taxes contained in the City Charter. (See City Charter,

§§ 77a, 77b [authorizing special taxes related to zoological exhibits and public

transportation].)

50

stated above, we would interpret "qualified electors" in section 76.1, in a manner

consistent with article XIII A, section 4, to mean registered voters.

The City also contends that the special tax in this case is governed by the last

clause of section 76.1, which applies when a "special tax is to be levied upon less than the

entire City." We have serious doubts as to whether a special tax that will be levied upon

all parcels in the City that are, or will be, used for a hotel,41 may be deemed to be a tax

levied upon less than the entire City within the meaning of section 76.1. Even assuming

that a noncontiguous special district could be considered an "area less than the entire

City" under section 76.1, it is unclear, at best, whether this portion of section 76.1 would

permit the qualified electors in an "area less than the entire City" to authorize the

potential imposition of a tax on any parcel within the City, whenever any such parcel

becomes used as a hotel in the future. In any event, even with respect to tax levies that

are geographically limited, section 76.1 requires a vote of "qualified electors," which we

have interpreted to mean registered voters. Thus, even assuming that the final clause of

section 76.1 applies, the City's special tax election violated the City Charter because the

41 The Division makes clear that the special tax applies to parcels of property that are

used for hotel purposes beginning after the date of the City's special tax election by

stating, "Whenever a parcel of property within a convention center facilities district

formed pursuant to this Division begins to be used as a Hotel, either for the first time or

after a period of time when it was not so used, that property shall thereupon become

subject to the special tax." (San Diego Mun. Code, § 61.2711(b).)

51

City identified Landowners, rather than registered voters, as the "qualified electors" who

would be permitted to vote in the election.42

Accordingly, we conclude that the City's special tax is invalid because it was not

approved by a two-thirds vote of registered voters, as is required under the City Charter.

IV.

CONCLUSION

In Rider, in ruling that a local government's attempt to fund new courtrooms and

jails violated the special tax election procedures mandated by Proposition 13, the

Supreme Court concluded its opinion with the following remarks:

"We are sympathetic to the plight of local government in attempting

to deal with the ever-increasing demands for revenue in the post-

Proposition 13 period. . . . Yet Proposition 13 and its limitations on

local taxation are constitutional mandates of the people which we are

sworn to uphold and enforce." (Rider, supra, 1 Cal.4th at p. 16.)

Similarly, in this case, while we understand that the City would like to expand the

convention center, we are duty bound to uphold the provisions of the California

42 The City also contends that to interpret the City Charter as mandating a vote by

registered voters would mean that "every community facilities district existing within the

City involving a landowner vote (e.g. Mello-Roos districts established under the [Mello-

Roos] Act were unlawfully formed, and the special taxes levied and bonds issued in

reliance on the landowner election are invalid." We are not persuaded by this contention.

It is clear that the validity of any previously levied taxes and previously issued bonds are

not before this court. Further, as we stated with respect to the City's arguments

concerning the Mello-Roos Act made in connection with the state Constitution, this

appeal does not require that we consider the validity of landowner voting to impose

special taxes pursuant to section 53326, subdivision (b).

52

Constitution and the City Charter that require that the City's registered voters approve the

special tax at issue in the case.

V.

DISPOSITION

The judgment is reversed. The matter is remanded to the trial court with

directions to enter judgment in favor of appellants and to conduct any further necessary

ancillary proceedings that are consistent with this opinion. Appellants are entitled to

costs on appeal.

AARON, J.

WE CONCUR:

McCONNELL, P. J.

O'ROURKE, J.

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