Opinion

Howard Jarvis Taxpayers Assn. v. City & County of S.F.

Court: California Court of Appeal
Filed: Feb 22, 2021
Status: Published
Cited by: 0 cases
Authority: More cited than 14.9%

The opinion

Filed 2/22/21 (unmodified opinion attached)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

HOWARD JARVIS TAXPAYERS

ASSOCIATION, et al.,

Plaintiffs and Appellants, A157983

v. ORDER MODIFYING OPINION

CITY AND COUNTY OF SAN AND DENYING REHEARING

FRANCISCO, [NO CHANGE IN JUDGMENT]

Defendant and Respondent.

(San Francisco County

Super. Ct. No. CGC-18-568657)

BY THE COURT:

It is ordered that the opinion filed January 27, 2021 be modified as

follows:

(1) On page 19, in the paragraph that begins the page, replace the

sentence, “But Howard Jarvis does not contend that a single official’s

sponsorship of or involvement in an initiative gives rise to the inference that

a city or county intentionally circumvented Propositions 13 and 218, or

demonstrates that the official effectively controlled the initiative.” with “But

we fail to see how the sponsorship and involvement of the single official here

gives rise to the inference that the City intentionally circumvented

Propositions 13 and 218 or effectively controlled the initiative.”

There is no change in the judgment.

Appellants’ petition for rehearing is denied.

Dated: 02/22/2021 SIMONS, J , Acting P.J.

Superior Court of San Francisco County, No. CGC-18-568657, Hon. Ethan P.

Schulman, Judge.

Jonathan M. Coupal, Timothy A. Bittle, Laura E. Dougherty for Plaintiffs

and Appellants.

Eversheds Sutherland, Timothy A. Gustafson, Eric J. Coffill, Alexandra M.

Louderback for Council on State Taxation as Amicus Curiae on behalf of

Plaintiffs and Appellants.

Dennis J. Herrera, City Attorney, Wayne K. Snodgrass for Defendant and

Respondent.

Keker, Van Nest & Peters, Thomas E. Gorman, Nathaniel H. Brown, Ann

Niehaus for Children’s Council of San Francisco and Parent Voices San

Francisco as Amici Curiae on behalf of Defendant and Respondent.

Filed 1/27/21 (unmodified opinion)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

HOWARD JARVIS TAXPAYERS

ASSOCIATION et al.,

Plaintiffs and Appellants, A157983

v. (San Francisco County

CITY AND COUNTY OF SAN Super. Ct. No. CGC-18-568657)

FRANCISCO,

Defendant and Respondent.

Howard Jarvis Taxpayers Association, Building Owners and Managers

Association of California, California Business Properties Association, and

California Business Roundtable (collectively, Howard Jarvis) appeal from the

trial court’s judgment rejecting their attempt to invalidate an initiative

passed by a simple majority of voters in the City and County of San Francisco

(City). Howard Jarvis argues the initiative needed a two-thirds majority to

pass. We adopt the reasoning of City and County of San Francisco v. All

Persons Interested in the Matter of Proposition C (2020) 51 Cal.App.5th 703

(All Persons) and reject Howard Jarvis’s contention that Proposition 13,

Proposition 218 and the San Francisco City Charter compel a supermajority

vote for passage. In addition, we reject the contention that the participation

of an elected official in the initiative process requires us to distinguish All

Persons. We affirm the judgment.

BACKGROUND

After garnering sufficient voter signatures to qualify, a proposed

initiative entitled “Universal Childcare for San Francisco Families Initiative”

was placed on the City’s June 2018 ballot as Proposition C. The initiative

sought to impose an additional tax on certain commercial rents to fund early

childcare and education. Approximately 51 percent of votes cast were in

favor of Proposition C.

In August 2018, Howard Jarvis filed the underlying action to invalidate

Proposition C on the ground that it needed a two-thirds majority vote to pass.

The parties filed cross-motions for summary judgment. The trial court

granted the City’s motion and denied Howard Jarvis’s motion, and

subsequently entered judgment for the City. This appeal followed.

DISCUSSION 1

It is undisputed that Proposition C imposes the type of tax that, if

submitted to the voters by the City’s Board of Supervisors, would need a two-

thirds majority vote to pass. The parties dispute whether a two-thirds

majority is also required where, as here, such a tax is presented to the voters

by a voter initiative. Howard Jarvis contends that a two-thirds majority to

approve voter initiatives is required by: (1) Proposition 13, which added

article XIII A to the California Constitution in 1978; 2 (2) Proposition 218,

1 Howard Jarvis requests we take judicial notice of multiple records, but fails

to state, as required, “[w]hether the matter to be noticed was presented to the

trial court.” (Cal. Rules of Court, rule 8.252(a)(2)(B).) However, the City does

not oppose the request and the records are judicially noticeable, so we grant

the request for judicial notice.

2All further article references are to the California Constitution unless

otherwise specified.

which added article XIII C in 1996; and (3) the San Francisco Charter. 3 The

same arguments were recently rejected by our colleagues in Division Four in

All Persons, supra, 51 Cal.App.5th 703, about a different Proposition C in a

different City election. All Persons has since been “fully agree[d] with and

endorse[d]” by City of Fresno v. Fresno Building Healthy Communities (2020)

58 Cal.App.5th 884. We will begin with a discussion of All Persons, and then

consider Howard Jarvis’s arguments that All Persons was wrongly decided

and distinguishable. 4

3An amicus brief in support of Howard Jarvis was filed by the Council on

State Taxation, and one in support of the City was filed by Children’s Council

of San Francisco and Parent Voices San Francisco.

4 Because All Persons issued during the briefing in this case, we asked the

parties to submit supplemental briefs discussing its application. We note

that three of the four appellants we refer to collectively as Howard Jarvis

were the appellants in All Persons (albeit represented by different counsel),

and amicus curie Council on State Taxation also submitted an amicus brief in

All Persons (represented by the same counsel). All Persons issued

approximately two months before Howard Jarvis’s reply brief and Council on

State Taxation’s amicus brief were filed, yet neither of these briefs

acknowledge this directly applicable contrary authority. At oral argument

counsel for Howard Jarvis, who signed the reply brief, admitted she was

aware of All Persons at that time, apologized for failing to address it in the

reply brief, and said she chose not to discuss it because this case was

“different” and “we wanted to focus on the difference.” Substantial portions

of the reply brief are devoted to arguments directly addressed in All Persons

without focusing on the “difference” between the cases. We admonish counsel

to candidly acknowledge such authority in the future. (See Eisenberg et al.,

Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2020) ¶ 9:58

[“Your failure to confront unfavorable relevant holdings will be regarded as

an attempt to deceive and mislead the court.”]; Rules Prof. Conduct, rule

3.3(a)(2) [“A lawyer shall not: [¶] . . . [¶] (2) fail to disclose to the tribunal

legal authority in the controlling jurisdiction known to the lawyer to be

directly adverse to the position of the client and not disclosed by opposing

counsel,” fns. omitted].)

I. All Persons

In All Persons, as here, a simple majority of City voters voted in favor

of a voter initiative that would impose a special tax. (All Persons, supra, 51

Cal.App.5th at p. 708.) As here, the City contended a simple majority was

sufficient for passage; challengers argued a two-thirds majority was required.

(Ibid.)

A. Voter Initiatives

All Persons began with background on the initiative power. (All

Persons, supra, 51 Cal.App.5th at p. 709.) “Article II describes the initiative

as ‘the power of the electors to propose statutes and amendments to the

Constitution and to adopt or reject them’ (art. II, § 8), and states that this

power ‘may be exercised by the electors of each city or county under

procedures that the Legislature shall provide’ (art. II, § 11). ‘[A]lthough the

procedures for exercise of the right of initiative are spelled out in the

initiative law, the right itself is guaranteed by the Constitution.’ ” (Ibid.) “A

defining characteristic of the initiative is the people’s power to adopt laws by

majority vote. . . . [¶] Currently, article II, section 10, subdivision (a) provides

that an ‘initiative statute . . . approved by a majority of votes cast thereon

takes effect on the fifth day after the Secretary of State files the statement of

the vote for the election at which the measure is voted on.’ Parallel

legislation for local initiatives is found in the Elections Code . . . .” (Id. at

pp. 709–710.)

All Persons noted, “The initiative power is ‘ “one of the most precious

rights of our democratic process” [citation]. “[It] has long been our judicial

policy to apply a liberal construction to this power wherever it is challenged

in order that the right be not improperly annulled.” ’ [Citation.] Pursuant to

our duty to ‘ “ ‘jealously guard’ ” and liberally construe’ this right, we must

‘resolve doubts in favor of the exercise of the right whenever possible.’ ” (All

Persons, supra, 51 Cal.App.5th at p. 710.)

B. Proposition 13

All Persons considered whether article XIII A, section 4 (section 4),

added by Proposition 13, required the special tax initiative be approved by a

two-thirds vote. (All Persons, supra, 51 Cal.App.5th at p. 714.) It began with

the plain language of the provision at issue: “The text of article XIII A,

section 4 states that ‘Cities, Counties and special districts, by a two-thirds

vote of the qualified electors of such district, may impose special taxes,’

except for taxes relating to the value, possession, or sale of real property.

This language is ‘ambiguous in various respects,’ ” including “the phrase

‘Cities, Counties, and special districts,’ ” which could either refer only to

governmental entities or could also include the jurisdiction’s electorate.

(Ibid.) “Facing ambiguous language, we turn to context to interpret section 4,

starting with other provisions of the California Constitution. [Citation.]

Neither section 4 nor any other provision in article XIII A mentions the

initiative power, and this silence drives our analysis. When Proposition 13

was approved by California voters in 1978, the initiative power had long been

ensconced in our Constitution. [Citation.] ‘Initiatives, whether constitutional

or statutory, require only a simple majority for passage.’ [Citation.] . . . If the

voters who approved Proposition 13 (by a majority vote) intended to constrain

the constitutionally protected power of future voters to approve initiatives by

majority vote, would they not have manifested that intent by some express

reference to the initiative power?” (Id. at p. 715.)

All Persons proceeded to discuss a Supreme Court case that considered

whether another provision of Proposition 13 precluded state tax increases

from being enacted by voter initiative or, alternatively, required such

initiatives be passed by a two-thirds vote, Kennedy Wholesale, Inc. v. State

Bd. of Equalization (1991) 53 Cal.3d 245 (Kennedy Wholesale). 5 (All Persons,

supra, 51 Cal.App.5th at p. 715.) All Persons noted that Kennedy Wholesale

“found the provision ‘ambiguous when read in the context of the whole

Constitution,’ . . . [and] resolved this contextual ambiguity on the basis of

three factors that apply in our case.” (All Persons, at p. 715.) “First is the

general principle that ‘ “the law shuns repeals by implication,” ’ ” leading

Kennedy Wholesale to decline a construction of Proposition 13 that would

“have impliedly repealed the initiative power reserved to the people in article

IV, section 1 . . . . So, here, we will decline to construe section 4 in a manner

that repeals by implication the initiative power to pass local laws by majority

vote. Nowhere does Proposition 13 mention, let alone purport to repeal, the

constitutionally-backed requirement in the Elections Code that a local

initiative measure take effect when it garners a majority of votes cast.” (All

Persons, at pp. 715–716.) Second, Kennedy Wholesale applied the principle

that, because the initiative power is “ ‘ “ ‘ “one of the most precious rights of

our democratic process,” ’ ” ’ . . . ‘we must “resolve any reasonable doubts in

favor of the exercise of this precious right” ’ . . . . [Citation.] Applying that

principle here, we will reject a construction of article XIII A, section 4 that

hobbles the exercise of the initiative power by lashing it to a supermajority

vote requirement.” (All Persons, at p. 716.) Third, Kennedy Wholesale

considered Proposition 13’s official ballot pamphlet and “found no evidence

there to ‘support[] the inference that the voters intended to limit their own

5 The provision at issue in Kennedy Wholesale provided that “ ‘any changes in

State taxes enacted for the purpose of increasing revenues . . . must be

imposed by an Act passed by not less than two-thirds of all members elected

to each of the two houses of the Legislature . . . .’ ” (Kennedy Wholesale,

supra, 53 Cal.3d at p. 248 [quoting art. XIII A, § 3].)

power to raise taxes in the future by statutory initiative.’ [Citation.] ‘To the

contrary,’ Proposition 13 was directed against ‘ “spendthrift politicians” ’ and

in favor of restoring ‘ “government of, for and by the people.” ’ [Citation.]

This populist theme, the Court found, was inconsistent with the claim that

voters intended Proposition 13 to limit their own power to raise taxes by

initiative.” (All Persons, at p. 716.) All Persons reasoned that “[n]one of the

evidence Kennedy Wholesale cites is specific to section 3, as distinct from

section 4, of article XIII A;” moreover, All Persons found “multiple references

. . . that characterize the measure as restricting the ability of ‘local

governments to impose’ taxes, with no suggestion the initiative similarly

constrains local electorates.” (Id. at p. 717.) 6

All Persons also relied on two earlier Supreme Court cases interpreting

section 4: “Decrying the ‘fundamentally undemocratic nature of the

requirement for an extraordinary majority,’ these cases insist that ‘the

language of section 4 must be strictly construed and ambiguities resolved in

favor of permitting voters of cities, counties and “special districts” to enact

“special taxes” by a majority rather than a two-thirds vote.’ ” (All Persons,

supra, 51 Cal.App.5th at p. 718 [discussing City and County of San Francisco

v. Farrell (1982) 32 Cal.3d 47 (Farrell) & Los Angeles County Transportation

Commission v. Richmond (1982) 31 Cal.3d 197 (Richmond)].)

6 All Persons rejected the challengers’ reliance on “dictum” in Kennedy

Wholesale that “section 4’s text was strong evidence that ‘the voters knew

how to impose a supermajority voting requirement upon themselves when

that is what they wanted to do,’ ” reasoning that this “simply acknowledged

section 4’s two-thirds vote requirement that applies when local government

entities—‘Cities, Counties, or special districts’—seek to impose special taxes.

The Court did not say or suggest that the same requirement applies to local

initiatives.” (All Persons, supra, 51 Cal.App.5th at p. 718.)

All Persons concluded, “when read in harmony with article II’s

reservation of the initiative power and in light of the evidence of voter intent

discussed above, article XIII A, section 4 is no longer ambiguous. . . . [¶]

Section 4 requires governmental entities to gain the approval of a

supermajority of voters before imposing a special tax. It does not repeal or

otherwise abridge by implication the people’s power to raise taxes by

initiative, and to do so by majority vote. Any such partial repeal by

implication is not favored by the law, which imposes a duty on courts to

jealously guard, liberally construe and resolve all doubts in favor of the

exercise of the initiative power.” (All Persons, supra, 51 Cal.App.5th at

p. 721.)

C. Proposition 218

All Persons next considered whether Proposition 218 imposed a two-

thirds vote requirement. (All Persons, supra, 51 Cal.App.5th at p. 721.)

Again, All Persons began with the relevant provision’s plain language—

“Article XIII C, section 2(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’ ”—and considered the

challengers’ contention that the phrase “local government” included the

electorate exercising its initiative power. (Id. at p. 722.)

All Persons turned to California Cannabis Coalition v. City of Upland

(2017) 3 Cal.5th 924, 940 (California Cannabis), which interpreted the

phrase “local government” in a different provision of Proposition 218. (All

Persons, supra, 51 Cal.App.5th at p. 722.) 7 Not only did the phrase “local

7Article XIII C, section 2(b), provides, in relevant part, “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. . . . The election

government” appear in both article XIII C, sections 2(b) and 2(d); but

Proposition 218 provided a single definition of the term. (All Persons, at

p. 722; see art. XIII C, § 1(b) [“ ‘Local government’ means any county, city,

city and county, including a charter city or county, any special district, or any

other local or regional governmental entity.”].)

All Persons noted that California Cannabis found that “ ‘nothing in the

text of article XIII C, or its context, supports the conclusion that the term

“local government” was meant to encompass the electorate.’ [Citation.] Even

if this term were ambiguous, the Court concluded, extrinsic evidence

established that the voters who adopted Proposition 218 did not intend

article XIII C, section 2 to burden the initiative power. [Citation.] In terms

that apply equally to the issue before us, the Court held that ‘article XIII C

does not limit the voters’ “power to raise taxes” ’ because a ‘contrary

conclusion would require an unreasonably broad construction of the term

“local government” at the expense of the people’s constitutional right to direct

democracy, undermining our longstanding and consistent view that courts

should protect and liberally construe it.’ [Citation.] Summing up its

analytical approach, the Court explained: ‘[w]ithout a direct reference in the

text of a provision—or a similarly clear, unambiguous indication that it was

within the ambit of a provision’s purpose to constrain the people’s initiative

power—we will not construe a provision as imposing such a limitation.’ ” (All

Persons, supra, 51 Cal.App.5th at p. 723.)

required by this subdivision shall be consolidated with a regularly scheduled

general election for members of the governing body of the local government

. . . .” California Cannabis considered whether this provision required that a

voter initiative seeking to impose a general tax be submitted at a general,

rather than a special, election. (California Cannabis, supra, 3 Cal.5th at

pp. 930–931.)

All Persons found “no basis” to interpret “local government” differently

in the case before it: “[Article XIII C, s]ections 2(b) and 2(d) are found in the

same article and section of the state Constitution. They were both added by

Proposition 218. They employ parallel language and incorporate the exact

same definition of local government set forth in article XIII C, section 1. The

California Cannabis Court held that the definition of ‘local government’ in

article XIII C, section 2 of the Constitution is not ‘broad enough to include the

electorate.’ [Citation.] That holding applies here.” (All Persons, supra, 51

Cal.App.5th at p. 723.)

D. City Charter

Finally, All Persons considered the challengers’ contention that a two-

thirds majority was required by the City’s Charter (the Charter): “The

Charter recognizes voters’ initiative power (S.F. Charter, § 14.100), as long as

an initiative measure is ‘within the powers conferred upon the Board of

Supervisors to enact’ (S.F. Charter, Art. XVII). This means ‘the electorate

has no greater power to legislate than the board itself possesses.’ ” (All

Persons, supra, 51 Cal.App.5th at p. 724.) The challengers “argue from this

principle that the electorate, like the Board of Supervisors, cannot impose

special taxes without the concurrence of two-thirds of the voters. But the

Charter imposes a substantive limit on the initiative power; it does not

import into the initiative process any procedural limitation on Board action,

such as the supermajority vote requirements of article XIII A, section 4 or

article XIII C, section 2(d). [¶] . . . [T]he general rule that the voters’

lawmaking power is coextensive with the Legislature’s power does not extend

to ‘legislative procedures, such as voting requirements’ which ‘cannot

reasonably be assumed to apply to the electorate without evidence that such

was intended.’ [Citation.] . . . Because the [challengers] point to no evidence

that the Charter intends procedural limitations on the Board of Supervisors’

legislative powers to apply to local initiatives, their challenge under the

Charter fails.” (Id. at pp. 724–725.) Having rejected all of the contrary

arguments, All Persons held the initiative was validly passed by a simple

majority. (Id. at p. 725.)

II. All Persons Governs This Case

Howard Jarvis attempts to cast doubt on or, in the alternative,

distinguish All Persons. The arguments are unavailing.

A. All Persons Is Well-Reasoned and Sound

Howard Jarvis contends All Persons erred in relying on earlier cases

holding that Proposition 13 should be strictly construed. (See All Persons,

supra, 51 Cal.App.5th at p. 718 [citing Farrell, supra, 32 Cal.3d 47 &

Richmond, supra, 31 Cal.3d 197].) Howard Jarvis points to a Court of Appeal

case stating the passage of Proposition 218, which contains a liberal

construction clause, “effectively reversed these cases.” (Capistrano Taxpayers

Assn., Inc. v. City of San Juan Capistrano (2015) 235 Cal.App.4th 1493, 1513,

fn. 19.) However, California Cannabis, in construing Proposition 218,

directed a strict construction of provisions that would limit the initiative

power: “we resolve doubts about the scope of the initiative power in its favor

whenever possible [citation], and we narrowly construe provisions that would

burden or limit the exercise of that power [citation].” (California Cannabis,

supra, 3 Cal.5th at p. 936.) In any event, All Persons noted the strict

construction principle only after finding numerous other considerations

weighed against construing Proposition 13 to apply to voter initiatives. (All

Persons, at pp. 715–717.)

Howard Jarvis also criticizes All Persons’ construction of Proposition

13’s silence with respect to the initiative power as indicative of voter intent

not to restrict such power. (See All Persons, supra, 51 Cal.App.5th at p. 715.)

Howard Jarvis argues we should instead construe the silence as indicating

the opposite intent, because of the multiple statewide initiatives imposing a

supermajority voting requirement and prior cases assuming—without

directly considering the issue—that the requirement applied to voter

initiatives. To do so would ignore California Cannabis’s direction that

“[w]ithout a direct reference in the text of a provision—or a similarly clear,

unambiguous indication that it was within the ambit of a provision’s purpose

to constrain the people’s initiative power—we will not construe a provision as

imposing such a limitation.” (California Cannabis, supra, 3 Cal.5th at

p. 931.)

Howard Jarvis contends All Persons misreads Kennedy Wholesale,

arguing Kennedy Wholesale “rejected a literal reading of [article XIII A,]

section 3 because it was contrary to voter intent.” Kennedy Wholesale in fact

found section 3 “ambiguous when read in the context of the whole

Constitution;” only because of that ambiguity was it “appropriate to consider

indicia of the voters’ intent other than the language of the provision itself.”

(Kennedy Wholesale, supra, 53 Cal.3d at pp. 249–250.) All Persons

appropriately conducted the same analysis in construing Proposition 13.

Howard Jarvis also contends All Persons misreads California

Cannabis, arguing the provision construed in California Cannabis “dealt only

with the timing of a general tax election” and the Supreme Court “limited its

ruling to the election timing issue.” Howard Jarvis fails to refute All Persons’

well-reasoned explanation as to why California Cannabis’s construction of

“local government” for purposes of article XIII C, section 2(b) applies equally

to section 2(d). (All Persons, supra, 51 Cal.App.5th at p. 723 [the two

provisions “are found in in the same article and section of the state

Constitution,” “were both added by Proposition 218,” “employ parallel

language and incorporate the exact same definition of local government set

forth in article XIII C, section 1”].)

Howard Jarvis argues All Persons did not resolve an argument that the

two-thirds requirement “applies only to the voters,” such that “defining ‘local

government’ is irrelevant.” In fact, All Persons considered a related

argument, that “in [article XIII C,] section 2(d) voters explicitly imposed a

two-thirds vote requirement on themselves. . . . But the . . . argument begs

the question, to what kinds of measures does this two-thirds vote

requirement apply? To answer this question, we follow controlling precedent,

including California Cannabis, which construes the precise language that we

are called upon to interpret here. Under California Cannabis the term ‘local

government’ in article XIII C does not include the voting electorate.” (All

Persons, supra, 51 Cal.App.5th at pp. 723–724.) We further decline Howard

Jarvis’s invitation to ignore the phrase “local government,” which would

contravene the principle that “we generally must ‘accord[] significance, if

possible, to every word, phrase and sentence in pursuance of the legislative

purpose,’ and . . . ‘[a] construction making some words surplusage is to be

avoided.’ ” (People v. Valencia (2017) 3 Cal.5th 347, 357.)

Howard Jarvis notes the constitutional provision for majority approval

of initiatives applies only to statewide initiatives, and majority approval of

local initiatives is provided by statute. (See art. II, § 10, subd. (a) [“An

initiative statute or referendum approved by a majority of votes cast thereon

takes effect on the fifth day after the Secretary of State files the statement of

the vote for the election at which the measure is voted on . . . .”]; All Persons,

supra, 51 Cal.App.5th at p. 710 [quoting art. II, § 10, subd. (a) and noting

“[p]arallel legislation for local initiatives is found in the Elections Code;

section 9217 provides that ‘if a majority of the voters voting on a proposed

ordinance vote in its favor, the ordinance shall become a valid and binding

ordinance of the city’ ”].) But Howard Jarvis fails to explain why this compels

the conclusion that the two-thirds requirement applies to voter initiatives.

Notably, the constitutional initiative provisions were also silent about the

procedural restriction considered in California Cannabis. (California

Cannabis, supra, 3 Cal.5th at pp. 934–935 [discussing statutes providing for

initiatives to be submitted at special elections].) The absence of

constitutional initiative provisions governing the matter did not prevent the

Supreme Court from concluding that applying Proposition 218’s procedural

restriction to voter initiatives would be “at the expense of the people’s

constitutional right to direct democracy, undermining our longstanding and

consistent view that courts should protect and liberally construe it.”

(California Cannabis, at p. 931.) The absence of a constitutional provision

expressly authorizing majority approval of local voter initiatives is

immaterial.

B. Neither Boling Nor Rider Compel a Different Result

Howard Jarvis argues this case is distinguishable from All Persons

because of the involvement of an elected official in the voter initiative

process. Howard Jarvis points to the undisputed facts that a member of the

City’s Board of Supervisors (Board) was the proponent of Proposition C,

submitted the written “Notice of Intent to Circulate Petitions” for Proposition

C, turned in the signed initiative petition pages, signed ballot arguments in

favor of Proposition C, and used his “Supervisor” title and City Hall address

for various documents related to Proposition C. In addition, two ordinances

nearly identical to Proposition C were pending before the Board in early

2018, around the time of Proposition C’s qualification for the ballot. The

Board member withdrew his signature from one of these proposed ordinances

shortly after Proposition C qualified for the ballot.

Howard Jarvis primarily relies on Boling v. Public Employment

Relations Board (2018) 5 Cal.5th 898 (Boling). In Boling, the Supreme Court

construed a public employee relations statute providing that “[g]overning

bodies ‘or other representatives as may be properly designated’ are required

to engage with unions on matters within the scope of representation ‘prior to

arriving at a determination of policy or course of action.’ ” (Id. at p. 904

[quoting Gov. Code, § 3505].) A mayor, whose responsibilities included

bargaining with city unions and complying with the statutory meet-and-

confer requirements, “conceived the idea of a citizens’ initiative pension

reform measure, developed its terms, and negotiated with other interested

parties before any citizen proponents stepped forward. He relied on his

position of authority and employed his staff throughout the process. He

continued using his powers of office to promote the Initiative after the

proponents emerged.” (Id. at pp. 904, 916.)

In considering whether the meet and confer requirement applied, the

Supreme Court noted that the statute’s “broad formulation encompasses

more than formal actions taken by the governing body itself.” (Boling, supra,

5 Cal.5th at p. 904.) 8 The statute “expressly imposes the duty to meet and

confer on ‘[t]he governing body of a public agency, or such boards,

commissions, administrative officers or other representatives as may be

properly designated by law or by such governing body.’ (Italics added.)

8Although the Supreme Court was reviewing an agency’s construction of the

statute that should be “ ‘follow[ed] . . . unless it is clearly erroneous,” the

Court additionally found the agency’s construction was “clearly correct.”

(Boling, supra, 5 Cal.5th at p. 917.)

. . . Here, the mayor was the city’s chief executive, empowered by the city

charter to make policy recommendations with regard to city employees and to

negotiate with the city’s unions. Under the terms of [the statute], he was

required to meet and confer with the unions ‘prior to arriving at a

determination of policy or course of action’ on matters affecting the ‘terms

and conditions of employment.’ ” (Boling, supra, 5 Cal.5th at pp. 917–918.)

The Supreme Court continued, “[u]nder the facts presented here, [the

mayor] pursued pension reform as a matter of policy while acting as the city’s

chief executive officer. . . . The obligation to meet and confer did not depend

on the means he chose to reach his policy objectives or the role of the city

council in the process. . . . The relevant question is whether the executive is

using the powers and resources of his office to alter the terms and conditions

of employment. [¶] Here the answer is plainly ‘yes.’ . . . He consistently

invoked his position as mayor and used city resources and employees to draft,

promote, and support the Initiative. The city’s assertion that his support was

merely that of a private citizen does not withstand objective scrutiny.”

(Boling, supra, 5 Cal.5th at p. 919.) The court noted, “The line between

official action and private activities undertaken by public officials may be less

clear in other circumstances. However, when a local official with

responsibility over labor relations uses the powers and resources of his office

to play a major role in the promotion of a ballot initiative affecting terms and

conditions of employment, the duty to meet and confer arises. Whether an

official played such a major role will generally be a question of fact . . . .”

(Ibid.)

Howard Jarvis argues that, under Boling, we should construe

Propositions 13 and 218 as applying to voter initiatives when promoted by

elected officials. 9 Critically, however, Boling did not suggest that imposing

the meet-and-confer requirement resulted in any restriction on the initiative

power. Instead, the impact was on “a local agency’s governing functions” and

was “a relatively ‘minimal’ burden.” (Boling, supra, 5 Cal.5th at p. 915; see

ibid. [although the meet-and-confer provision “ ‘encourages binding

agreements resulting from the parties’ bargaining, the governing body of the

agency . . . retains the ultimate power to refuse an agreement and to make its

own decision’ ”].) In contrast, we are obliged to “narrowly construe provisions

that would burden or limit the exercise of” the initiative power (California

Cannabis, supra, 3 Cal.5th at p. 936), and the two-thirds requirement

“hobbles the exercise of the initiative power by lashing it to a supermajority

vote requirement” (All Persons, supra, 51 Cal.App.5th at p. 716). Thus,

Boling’s construction does not apply in this case.

Howard Jarvis characterizes Boling as applying a legislative procedure

to a voter initiative. We disagree. Boling did not impose the meet and confer

requirement on the initiative process—which remained unchanged by the

decision—but rather on the designated representative’s pursuit of policy

changes, regardless of the means chosen. Similarly, Howard Jarvis’s

argument that Boling “assumes the electorate is a part of the ‘public agency’

by insisting on application of the ‘meet and confer’ requirement” is

9 To the extent Howard Jarvis contends the Board member’s involvement in

Proposition C rendered it a legislative initiative, we reject the claim. The

Charter sets forth clear criteria for determining the type of initiative: if it was

submitted by the mayor or at least four Board members, it is a legislative

initiative; if the requisite number of voter signatures on circulated initiative

petitions were obtained, it is a voter initiative. (S.F. Charter, §§ 2.113,

14.101.) Howard Jarvis provides no authority that we may judicially alter

these criteria.

unavailing. The electorate was not required to meet and confer with the

union; only the public agency’s designated representative was.

Howard Jarvis also relies on Rider v. County of San Diego (1991) 1

Cal.4th 1 (Rider), which considered whether an agency was a “special

district” for purposes of section 4. The agency at issue was created by

legislative enactment “ ‘solely for the purpose of avoiding the strictures of

Proposition 13.’ ” (Rider, at p. 8.) Although the agency was a separate entity

from the county, the county “retained substantial control over operations and

expenditures” and “the Agency’s boundaries are coterminous with the

County’s.” (Id. at p. 9.) The Supreme Court construed “special district” to

include “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,” reasoning that “[t]o hold otherwise clearly would create a wide loophole

in Proposition 13.” (Id. at pp. 10–11.) The Supreme Court noted that, while

it may be difficult to prove an agency was created for purposes of the

“intentional circumvention” of Proposition 13, “courts may infer such intent

whenever the plaintiff has proved the new tax agency is essentially controlled

by one or more cities or counties that otherwise would have had to comply

with the supermajority provision of section 4.” 10 (Ibid.)

Howard Jarvis offers the following tests for voter initiatives: “Did an

elected official sponsor the initiative, or was there collusion between officials

10Relevant considerations in this determination include “the presence or

absence of (1) substantial municipal control over agency operations, revenues

or expenditures, (2) municipal ownership or control over agency property or

facilities, (3) coterminous physical boundaries, (4) common or overlapping

governing boards, (5) municipal involvement in the creation or formation of

the agency, and (6) agency performance of functions customarily or

historically performed by municipalities and financed through levies of

property taxes.” (Rider, supra, 1 Cal.4th at p. 12.)

and the citizen sponsor? Did the official’s sponsorship or collusion with the

citizen sponsor cause a duty to disappear that would otherwise exist?” “Is

there overlap between the governing body and the citizens’ initiative

committee? Is a public official causing municipal involvement in the citizens’

initiative committee?” But Howard Jarvis does not contend that a single

official’s sponsorship of or involvement in an initiative gives rise to the

inference that a city or county intentionally circumvented Propositions 13

and 218, or demonstrates that the official effectively controlled the initiative.

Thus, the test proposed does not incorporate the concerns underlying Rider.

More significantly, neither the text nor ballot materials provide the

requisite “unambiguous indication” that the enactors of Propositions 13 and

218 intended to constrain the initiative power when an official is involved in

the initiative process. (California Cannabis, supra, 3 Cal.5th at pp. 945–946

[“Without an unambiguous indication that a provision’s purpose was to

constrain the initiative power, we will not construe it to impose such

limitations. Such evidence might include an explicit reference to the

initiative power in a provision’s text, or sufficiently unambiguous statements

regarding such a purpose in ballot materials.”].) Absent such a clear

indication, we will not construe the two-thirds requirement to apply to such

initiatives. 11

11California Cannabis acknowledged a “hypothetical city council . . . could

conceivably collude with a public employee union to place a levy on the ballot

as a means of raising revenue for a goal supported by both,” “the council

accepts the union’s contract proposal—which will be funded by increasing a

utility tax,” “the union could mobilize city employees to collect signatures on

an initiative proposing the tax increase,” and “[o]nce enough signatures are

collected . . . the city council could simply adopt the ordinance without

submitting the tax increase to the voters,” thereby “effectively skirt[ing]”

Proposition 218’s requirement that the tax be submitted to the electorate.

DISPOSITION

The judgment is affirmed. Respondent is awarded its costs on appeal.

(California Cannabis, supra, 3 Cal.5th at p. 947.) Howard Jarvis does not

claim the Board member here colluded with a union or any other group, nor

was the tax adopted by the Board without being submitted to the voters.

Moreover, the Supreme Court noted such “facts are not presented here, and

we decline to take up what would happen should they arise.” (Ibid.)

Although Howard Jarvis argues the Supreme Court’s “negative tone presages

that such a tactic would fail,” we do not derive any relevant insight from this

passage.

SIMONS, Acting P.J.

We concur.

BURNS, J.

SELIGMAN, J. *

(A157983)

*Judge of the Alameda County Superior Court, assigned by the Chief Justice

pursuant to article VI, section 6 of the California Constitution.