# Santa Clara County Local Transportation Authority v. Guardino

> California Supreme Court · September 28, 1995 · 11 Cal. 4th 220

URL: https://www.frixlaw.com/law-library/cases/9790692

## Case

- **Full name:** SANTA CLARA COUNTY LOCAL TRANSPORTATION AUTHORITY, Petitioner, v. CARL GUARDINO, as Auditor-Controller, Etc., Respondent; HOWARD JARVIS TAXPAYERS’ ASSOCIATION Et Al., Real Parties in Interest
- **Court:** California Supreme Court
- **Decided:** September 28, 1995
- **Citations:** 11 Cal. 4th 220; 45 Cal. Rptr. 2d 207; 95 Daily Journal DAR 13017; 902 P.2d 225; 95 Cal. Daily Op. Serv. 7622; 1995 Cal. LEXIS 5383
- **Precedential status:** Published
- **Opinion:** Dissent by Werdegar
- **Judges:** Lucas, Werdegar, Mosk
- **Cited by:** 216 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9790692

## Opinion text

WERDEGAR, J., Dissenting.
I join in most of the Chief Justice’s dissenting opinion. In my view, however, neither the dissent nor the majority has correctly interpreted our recent opinion in Rossi v. Brown (1995) 9 Cal.4th 688 [ 38 Cal.Rptr.2d 363 , 889 P.2d 557 ].
*270 I would hold Government Code section 53722 (hereafter Proposition 62) unconstitutional as an effort to evade the constitutional rule that “statutes providing for tax levies” are not subject to referendum. (Cal. Const., art. II, § 9, subd. (a).) Proposition 62 has the same effect as a referendum, in that every new tax within its terms must be approved by the voters before taking effect. The majority concludes the submission of a proposed tax statute to the voters pursuant to Proposition 62 does not literally constitute a “referendum” because the vote takes place before the proposed statute has been enacted. I do not disagree with the majority on this point of semantics. The point is irrelevant, however, if the issue is whether Proposition 62 has the effect of evading the constitutional ban on tax referenda.
The majority attempts to find support for its conclusion in Rossi v. Brown, supra, 9 Cal.4th 688. In my view the attempt fails. At issue in Rossi was an initiative statute intended to repeal a tax ordinance that had already taken effect. Because the constitutional provisions defining the voters’ power to change statutory law by initiative (Cal. Const., art. II, §§ 8, 11) do not exclude the subject of taxation, we held that statutes dealing with taxation were subject to repeal by initiative just like other statutes. Rossi did not concern an initiative, like that before us now, purporting to subject all new taxes proposed by a legislative body to the condition of voter preapproval.
Myers v. City Council of Pismo Beach (1966) 241 Cal.App.2d 237 [ 50 Cal.Rptr. 402 addressed the validity of an initiative more like the one at issue here. Voters of the City of Pismo Beach, concerned about the city council’s proposal to enact a new room-occupancy tax, unsuccessfully attempted to place on the ballot an initiative that would have barred the council, but not the electorate, from enacting such a tax. The Court of Appeal held the initiative invalid on the ground the Legislature had delegated to the city council, to the exclusion of the electorate, the authority to deal with the tax at issue. The court also made the statement (id. at p. 243) described as “dictum” in Rossi: “A proposed initiative ordinance cannot be used as an indirect or backhanded technique to invoke the referendum process against a tax ordinance of a general law city, such as Pismo Beach.”
This statement in Myers is dictum, as we said in Rossi (supra, 9 Cal.4th at p. 709), if read to mean the initiative power cannot be used to repeal a tax statute that has already taken effect. That was the situation in Rossi . However, if read to mean the electorate cannot claim the power to block future legislation on the subject of taxation, the statement in Myers was not dictum; it was part of the holding of the case. We did not in Rossi overrule Myers . Instead, we only rejected the misguided effort to apply its reasoning to the different situation that was before us in Rossi .
*271 The majority, while acknowledging the facts of Rossi are distinguishable from those of the case at hand, asserts the reasoning of Rossi nevertheless applies. The part of Rossi to which the majority refers is that in which we attempted to explain why the drafters of the state Constitution permitted initiatives, but not referenda, on the subject of taxation. We wrote; “ ‘One of the reasons, if not the chief reason, why the Constitution excepts from the referendum power acts of the Legislature providing for tax levies or appropriations for the usual current expenses of the state is to prevent disruption of its operations by interference with the administration of its fiscal powers and policies.’ ” (Rossi v. Brown, supra, 9 Cal.4th at p. 703, quoting Geiger v. Board of Supervisors (1957) 48 Cal.2d 832, 839-840 [ 313 P.2d 545 ].) The same reasoning, we thought, applied to local governments, “which could not accurately estimate income if tax ordinances were subject to referenda.” (Ibid.)
Proposition 62, which functions like a referendum by subjecting to voter approval all new taxes proposed by a legislative body, creates exactly the problems the drafters of the Constitution anticipated and sought to avoid. The vote required by Proposition 62 interferes with the administration of local governments’ fiscal powers just as a referendum would interfere: it postpones fiscal planning until the next election. The majority suggests the interference is less significant when the legislative body knows in advance that every proposed new tax will be subject to the voters’ approval, rather than just those new taxes on which a referendum is called after qualifying for the ballot through signatures on a petition. (Maj. opn., ante, at pp. 245-246; see Cal. Const., art. II, § 9, subd. (b).) To the contrary, the interference caused by Proposition 62 is more significant. Indeed, it is total and automatic. Unlike the rules governing referenda, Proposition 62 requires a vote on every new tax, even if there would not exist sufficient interest to place a particular tax on the ballot.
The court in Rossi , a case about the repeal of an existing tax, did not address or purport to approve a statute with the far-reaching effect of Proposition 62. Misreading Rossi , the majority extends its holding beyond the facts of the case, thereby giving the electorate the equivalent of a power denied to them in the Constitution. For that reason I dissent.
Petitioner’s application for a rehearing was denied December 14, 1995, and the opinion was modified to read as printed above. Lucas, C. J., and Werdegar, J., were of the opinion that the application should be granted.
*272 Appendix
Text of Proposed Law
This initiative measure is submitted to the people in accordance with the provisions of Article II, Section 8 of the Constitution.
This initiative measure adds sections to the Government Code; therefore, the new provisions proposed to be added are printed in italic type to indicate that they are new.
PROPOSED LAW
Article 3.7 is hereby added to Chapter 4 (Financial Affairs) of Part 1 (Powers and Duties Common to Cities, Counties and other agencies) of Div. 2 (Cities, Counties and other Agencies) of Title 5 (Local Agencies) of the Government Code, commencing with Section 53720.
ARTICLE 3.7
VOTER APPROVAL OF TAXES
53720. DEFINITIONS.
As used in this Article:
(a) “local government” means any county, city, city and county, including a chartered city or county, or any public or municipal corporation; and,
(b) “district" means an agency of the state, formed pursuant to general law or special act, for the local performance of governmental or proprietary functions within limited boundaries.
53721. All taxes are either special taxes or general taxes. General taxes are taxes imposed for general governmental purposes. Special taxes are taxes imposed for specific purposes.
53722. No local government or district may impose any special tax unless and until such special tax is submitted to the electorate of the local government, or district and approved by a two-thirds vote of the voters voting in an election on the issue.
53723. No local government, or district, whether or not authorized to levy a property tax, may impose any general tax unless and until such general tax is submitted to the electorate of the local government, or district and approved by a majority vote of the voters voting in an election on the issue.
53724. (a) A tax subject to the vote requirements prescribed by Section 53722 or
Section 53723 shall be proposed by an ordinance or resolution of the legislative body of the local government or district. The ordinance or resolution proposing such tax shall include the type of tax and rate of tax to be levied, the method of collection, the date upon which an election shall be held on the issue, and, if a special tax, the purpose or service for which its imposition is sought.
(b) No tax subject to the vote requirement prescribed by Section 53723 shall be presented at an election unless the ordinance or resolution proposing such tax is approved by a two-thirds vote of all members of the legislative body of the local government or district.
(c) Except as provided in subdivision (d), the election on any tax proposed pursuant to this Article shall be consolidated with a statewide primary election, a statewide general election, or a regularly scheduled local election at which all of the electors of the local government or district are entitled to vote.
(d) Notwithstanding subdivision (c), the legislative body of the local government or district may provide that the election on any tax proposed pursuant to this Article shall be held at any date otherwise permitted by law. The local government or district shall bear the cost of any election held pursuant to this subdivision. An election held pursuant to this subdivision shall be deemed at the request of the local government or district calling such election, and shall not be deemed a state mandate.
(e) The revenues from any special tax shall be used only for the purpose or service for which it was imposed, and for no other purpose whatsoever.
53725. (a) Except as permitted in Section 1 of Article XIIIA of the California Constitution, no local government or district may impose any ad valorem taxes on real property. No local government or district may impose any transaction tax or sales tax on the sale of real property within the city, county or district.
(b) Taxes permitted by Subdivision (b) of Section 1 of Article XIII A of the California Constitution shall not be subject to the vote requirements prescribed by this Article.
*273
53726. Except as set forth in Section 53727, this Article shall not be construed to repeal or affect any statute enacted prior to August 1, 1985 which authorizes the imposition of a special tax.
53727. (a) Neither this Article, nor Article XIIIA of the California Constitution, nor Article 3.5 of Division 1 of Title 5 of the Government Code (commencing with Section 50075) shall be construed to authorize any local government or district to impose any general or special tax which it is not otherwise authorized to impose; provided, however, that any special tax imposed pursuant to Article 3.5 of Division 1 of Title 5 of the Government Code prior to August 1, 1985 shall not be affected by this section.
(b) Any tax imposed by any local government or district on or after August 1, 1985, and prior to the effective date of this Article, shall continue to be imposed only if approved by a majority vote of the voters voting in an election on the issue of imposition, which election shall be held within two years of the effective date of this Article. Any local government or district which fails to seek or obtain such majority approval shall cease to impose such tax on and after November 15, 1988.
53728. If any local government or district imposes any tax without complying with the requirements of this Article, or in excess of its authority as clarified by Section 53727, whether or not any provision of Section 53727 is held not applicable to such jurisdiction, the amount of property tax revenue allocated to the jurisdiction pursuant to Chapter 6 of part 0.5 of Division 1 of the Revenue and Taxation Code (commencing with Section 95) shall be reduced by one dollar ($1.00) for each one dollar ($1.00) of revenue attributable to such tax for each year that the tax is collected. Nothing in this section shall impair the right of any citizen or taxpayer to maintain any action to invalidate any tax imposed in violation of this Article.
53729. This Article may only be amended by vote of the electorate of the State of California.
53730. If any provision of this Article, or the application thereof to any person, organization, local government, district, or circumstance is held invalid or unconstitutional, the provision to other persons, organizations, local governments, districts, or circumstances shall not be affected thereby but shall remain in full force and effect.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9790692. Public record. Not legal advice.