Amicus Curiae Brief — Neilson v. City of California City (No. 05-1488)
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No. 05-1488 ar
In The
SUPREME COURT OF THE UNITED STATES
N.L. NEILSON,
Petitioner,
v.
CITY OF CALIFORNIA CITY,
Respondent.
ON PETITION FOR WRIT OF CERTIORARI TO
THE CALIFORNIA COURT OF APPEAL FOR
THE FIFTH APPELLATE DISTRICT
BRIEF OF AMICUS CURIAE AARON L. KATZ IN
SUPPORT OF PETITIONER N.L. NEILSON’S
PETITION FOR WRIT OF CERTIORAI
AARON L. KATZ
P.O. Box 116
SARATOGA, CA. 95071-0116
(408) 741-1008
FAX (408) 741-8927
Amicus Curtae in Propria Persona
QUESTIONS PRESENTED FOR REVIEW
Although Petitioner recites that one of his questions
presented for review is the appropriate level of judicial
scrutiny, amicus curiae is of the opinion the following more
global questions are encompassed therein:
1. DOES THE VOTING SCHEME FOR A DISCRETE
ISSUE ELECTION THAT EXCLUDES THOSE
ELECTORS MOST PRIMARILY, DIRECTLY
AND SUBTANTIALLY AFFECTED VIOLATE
EQUAL PROTECTION?
Il. IS THERE A “BLANKET RULE” THAT
RESIDENCY LIMITATIONS ARE ALWAYS
PERMISSIBLE TO EXCLUDE PRIMARILY,
DIRECTLY AND SUBSTANTIALLY AFFECTED
ELECTORS, ESPECIALLY IN DISCRETE ISSUE
ELECTIONS MANDATED BY LAW?
TABLE OF CONTENTS
Description Page
QUESTIONS PRESENTED FOR REVIEW .................... i
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INTEREST OF AMICUS CURIA .............cccccccccecesceseseees l
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THE CONUNDRUM PRESENTED BY THE
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I. NOT ALL ELECTIONS ARE THE SAME ....... 10)
Il. VOTING SCHEMES FOR DISCRETE
ISSUE ELECTIONS WHICH EXCLUDE
THOSE ELECTORS MOST PRIMARILY,
DIRECTLY AND SUBSTANTIALLY
AFFECTED ARE SUBJECT TO
RRMSOOS EE EPC ONO EP BREL VEEL WY 6... cc cceescsescecccssesereecsenes:
Il. THERE IS NO “BLANKET RULE,” ESPEC-
IALLY WHEN IT COMES TO DISCRETE
ISSUE ELECTIONS MANDATED BY LAW,
THAT RESIDENCY LIMITATIONS ARE
ALWAYS PERMISSIBLE TO EXCLUDE
ELECTORS, EVEN WHEN THEY ARE
THE ONES MOST PRIMARILY, DIRECTLY
AND SUBSTANTIALLY AFFECTED............... 11
TABLE OF CONTENTS (CONT.)
Description Page
IV. SINCE THERE ARE ONLY TWO SUPREME
COURT CASES WHICH HAVE REVIEWED
THE IMPACT OF DISCRETE PROPERTY
TAX ISSUE ELECTIONS ON NON-LAND-
OWNING RESIDENTS/NONRESIDENT
LANDOWNERS, THESE ARE THE CASES
WHICH SHOULD GUIDE THE COURT
Ee ee ER TI TE sihahtscindesetisnecmrkabecandsomeipiackanksn 13
V. VOTING SCHEMES THAT EXCLUDE
THOSE ELECTORS MOST PRIMARILY,
DIRECTLY AND SUBSTANTIALLY
AFFECTED BY A DISCRETE ISSUE
ELECTION ARE NOT PRESUMED
TO BE CONSETEU TIONAL ,,......000..cccccrsseseseoveee: 17
VI. ASSUMING ARGUENDO THE SUBJECT
VOTING SCHEME IS SUBJECT TO
RATIONAL BASIS REVIEW,
RESPONDENT'S INTEREST IN MAKING
NONRESIDENT LANDOWNERS PAY WAS
NOT A JUSTIFIABLE BASIS......................0...... 18
CPT OR MIN UIIT cscaesovscustacehanuebiuevemedasers siccaecoasiaedcaaiie ic 19
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TABLE OF AUTHORITIES
United States Supreme Court Cases
Citation Page
Associated Enterprises, Inc. v. Toltec District
re a PE bec tasedbaieinca habehaiabhiernimndiaaabbond 7
Avery v. Midland County (1968) 396 U.S. 474.0... ceeseeee 9
ONE VY: AOS CAO SL Ake SOD covonrskrertsgiiisdecirwccstasniacetes 7
Betiock Vv. Carter CUS TZ) FS UG. 136 oocicciciccvccecesccictocesees ss 17
Carrington v. Rash (1965) 380 US. 89 ......c.cccssctccconsesscavceees 4
Cipriano v. Citv of Houma (19609) 395 U.S. 701 «00.0... 5
City of Phoenix v. Kolodziejski (1970) 399 U.S. 204 ........... 5
Dunn v. Blumstein (1972) 405 U.S. 330 oo. ec ceceeeeceeeeee 12
Evans v. Cornman (1970) 398 U.S. 419 .0..0....c.ccccecceeceeeeees 13
CN Fe CATE FD BIE Boeck cacecovcodncsccntcctssmooenac 17
Copegy WV. Sameera LTSGS) ST ainsi ss basso ccsccoinssavsgeneent 9
Hadley v. Junior College District (1970)
FE Cl Ec itaceadcdorba Ama eiidecshaaies issstkons 8
FUE VN CFT ON WEY 11s GO a jcosici nccsawicbeodnsirtnnhs teens 17
Holt Civic Club v. City of Tuscaloosa (1978)
at Sy SORIA SSRI, LEO eS ties FORT ORES 12
Kramer v. Union Free School District No. 15 (1969)
PE Ge MOY ciccasbniie cocssiccol kine daabie oie ibiakee sstonieaeins 6
Lockport v. Citizens for Community Action (1977)
Ee BMS BO soc cdssachais sitet egos Ab agaadabeesnetecinean ek 10
McGowan v. Maryland (1961) 366 U.S. 420.0000... 17
Nordsinger v. Tate (P99Z) SOS US. oivvcicipeceosesciccncsucce ven svi 2
1
TABLE OF AUTHORITIES (CONT.)
United States Supreme Court Cases (cont.)
Citation Page
Regan v. Taxation With Representation of Wash.
CEE 08 cals Rs sradevertanescctdaptesetberuauinhisncincorvesan 4
Raeynouds v. StS CESGE) 37 FAS. Sao vrccccscicscccvecvesssonssisccaces 8
Salyer Land Co. v. Tulare Water District (1973)
RRP Ia pa facsbanajdaiaiacuchidsbeasikesatigsveensbeiieecieats 6
Williams v. Vermont (1985) 472 U.S. 14... ec cece eee ee eee 4
Published California Court Cases
Citation Page
Amador Valley Joint Union High Sch. Dist. v. State
Bd. of Equalization (1978) 22 Cal.3™ 208 wc. 6
Apartment Assn. of Los Angeles County, Inc. v. City
of Los Angeles (2001) 24 Cal.4™ 830.......ccceccceescseeee 2
Bjornestad v. Hulse (1991) 229 Cal.App.3" 1568......0.0.0000-.
Burrey v. Embarcadero Mun. Improvement Dist.
COTS SC Oh oe er ee 7
California Building Industry Assn. v. Governing Board
of the Newhall School District (1988)
206 Cal. App.3 212 .....cccsces0s00-. ACs nh 8 oat 5
Candid Enterprises, Inc. v. Grossmont Union High
School Dist. (1985) 39 Cal.3 878......cccccccecceeseeseee 4
Choudhry v. Free (1976) 17 Cal.3 660.....cccccsccceseesecseesersen 7
County of Los Angeles v. Sasaki (1994)
Te Oe 1A ei ee 3
Curtis v. Board of Supervisors (1972) 7 Cal.3" 942 0.00... 7
TABLE OF AUTHORITIES (CONT.)
Published California Court Cases (cont.)
Citation Page
Erven v. Board of Supervisors (1991)
yo Ce BE gk ARERR eens me R Oreo ean 7
Hoffman v. State Bar of California (2005)
REN IG viincresticoaiactcaselsrensedssaiteeleacbte 7
Howard Jarvis Taxpayers Assn. v. City of Riverside
CROOU FR GIO asin sai iinccssbsecraccs 2
Los Angeles County Transportation Com. v.
Richmond (1982) 31 Call.3™ 197 ...cccccccccccccscsesesseeeeees 7
Not About Water Committee v. Solano County Board
of Supervisors (2002) 95 Cal. App.4"" 982 ....ccccccee. 9
Silicon Valley Taxpayers’ Assn., Inc. v. Santa Clara
Open Space Authority (2005)
UC Oe cc. ‘cae
Southern Cal. Rapid Transit Dist. v. Bolen (1992)
De I iianaiiocine pcdieiekeeGo min 14
California Constitution
Article Page
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NE PUIG bts Koco waceaseotictancpivess sutetiws diode pias axsrateeke 2
v1
TABLE OF AUTHORITIES (CONT.)
California Constitution (cont.)
Article Page
FETE Fac NE viciilenntidcabiniarinnecccnivecan aiden ORAS EP l
FE ee TEI IEE eictinie cule santcietecettebapirmensbllitiiaticieiesunduiiial 3
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PAIS Pept ND Sridircceititsditeaumebicspensae dedeacun sium 2
Article XITID, §4............... Memphis alder aa dey ace ese oaltcus ieee 2
PAI PERM. WP arin ddcnriltebscaietces tc aeatmseenbtintccitodeittininditeoiedae’ 3
California Statutes
Statute Page
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Government Code, §26912....... pltidabelgbetsikuicsddindepiesa inant 3
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vil
INTEREST OF AMICUS CURIAE'
Amicus curiae owns several properties in Santa Clara
County, California?. Since some are located within revenue
districts other than the one in which he resides, whenever a
“county, city...special district, or any other local or regional
governmental entity” [Article XIIIC, §1(b) of the California
Constitution] within one or more of these districts proffers a
new special tax measure, he is prevented from voting.
Therefore just like Petitioner, amicus curiae is a member of
an insular group foreclosed hopelessly from the political
process [Bjornestad v. Hulse (1991) 229 Cal.App.3™ 1568,
1592 (Byjornestad)|; classic Taxation Without Representation.
Because of the foregoing, amicus curiae, like Peti-
tioner, has challenged the results of five separate special tax/
bond clections [in Santa Clara County] upon Equal Protect-
ion grounds*. He also sought and secured Court of Appeal
permission [A1} to join Petitioner as an amicus curiae.
The Opinion has/continues to have a negative impact
on the sustainability of amicus curiae’s other pending cases
as it has/currently is being used against him as precedent.
Thus amicus curiae has a very real interest in the Petition.
‘ Blanket consents indicating the parties’ approval for the filing of this
amicus curiae brie! are filed contemporaneously with the Clerk of this
Court. No counsel for any party authored this brief in whole or in part,
nor has any person nor entity other than amicus curiae made monctary
contribution towards the preparation or submission of this brief,
* The City of California City is located in one of California’s 58 counties
[Exhibit “G" to amicus curiae’s Motion for Order Judicially Noticing
Designated Materials Incorporated Into His Proposed Amicus Curiae
Brief filed in the Court of Appeal on February 16, 2005 (“RJN’”’)}; Kem
* Future references to the California Constitution are by Article, § only.
* A21 and A1S (fn 5) of the Court of Appeal’s Opimion (“the Opinion” }
memorialize amicus curiae’s equal protection and other arguments
INTRODUCTION
The Petition is warranted because the Court of
Appeal has decided an important federal question [“the
residency requirement that limited who could vote on
Measure L did not violate the equal protection clause of the
United States Constitution” (A24)] in a manner that conflicts
with relevant decisions of this Court which follow.
PROLOGUE
In response to rapidly rising real property taxes
|Nordlinger v. Hahn (1992) 505 U.S. 1 (Nordlinger)], in
1978 voters by initiative made California the firss state in the
Union to impose /imits on government’s ability to impose
new taxcs against property | Apartment Assn. of Los Angeles
County, Inc. v. City of Los Angeles (2001) 24 Cal.4" 830,
839] by adopting Proposition 13 [Article XIIIA]. In the
wake of court decisions holding Proposition 13 did not apply
to special assessments, local governments went hoy-wild.
Where once limited to financing streets, sidewalks. sewers
and other capital improvements directly benefiting property.
new assessments soon began to be imposed for general
governmental services |Howard Jarvis Taxpayers Assn. v.
City of Riverside (1999) 73 Cal.App.4" 679, 686]. Conse-
quently in 1996 voters took step two in the Proposition 13
process [again by initiative] by adopting Proposition 218
{Articles XIIC, XID] which placed analogous /imits on
property assessments, fees and charges |[/d., at 682-3]
Today Article XIITD, §3{a) states “no tax, assess-
ment, fee [nJor charge shall be assessed by any agency upon
any parcel of property or...amy person as an incident of
property ownership except: (1) the ad valorem property tax
imposed [by]...Article[s] XII] and Article XIHA; (2) any
special tax receiving a two-thirds vote pursuant to §4 of
Article XIIIA; (3) assessments as provided by...Article
[XHID, $4]; or, (4) fees/charges for property related services
as provided by...Article [XIILD, §6].” Given the maximum
ad valorem tax rate stands at 1% [Article XIIIA, §1] of
acquisition-value [Nordlinger, supra, at 505 U.S. 16], Article
XIITA, §4 special taxes have become one of local revenue
districts’ few remaining tax vehicles, and the one of choice'?.
California is divided into 6,500 or more revenue
districts>. These districts consist of 58 counties’, 551 cities,
1,055 K-12 public school districts, 72 community college
districts and 4,763 independent special districts® [“any
(other) agency of the state for the local performance of gov-
ernmental or propnetary functions within limited bound-
aries” {California Government Code §16271(d)}]. After
Proposition 13, property taxes were collected by counties and
apportioned according to law [California Government Code,
§26912] to each of these districts [County of Los Angeles v.
Sasaki (1994) 23 Cal.App.4" 1442, 1451-52]. Since each
has substantially the same general power as most local gov-
emmments, under Proposition 13 each may levy Article XIIIA,
§4 special taxes.
But because of the seemingly insurmountable hurdle
of Article XIIIC, §2(d) [“no local government may impose.
extend, or increase any special tax unless and until (i1)...1s
submitted to the electorate and approved hy a two-thirds
> Exhibit “K” to RJN
® Each year Califormia’s State Controller publishes an Annual Report that
highlights the financial activities of California's special districts [fire and
police protection; waste, water and irniyation systems, parks and recrea-
tion, hbranes, hospitals, cemeteries; airports; marimas: 200s, Open space,
vector control and veterans memorial districts; etc.|. The latest report [as
of June 30, 2003} for which financial information is available states there
are 4,763 special districts [www sco ca gow/ard locallocrep:districis/02
03/0203specialdistricts_pdf)| m California
vote’’’], initially special taxes were rarely imposed, remained
novel and were not perceived as a practical means of finance-
ing [Candid Enterprises, Inc. v. Grossmont Union High
School Dist. (1985) 39 Cal.3"™ 878, 882]. However in a
remarkable turn of events, local agencies of government have
discovered that by manipulating the electoral process
[removing those clectors most primarily, directly and sub-
stantially affected by a special tax measure election, and the
ones most likely to vote no*], they can accomplish that which
was at first thought insurmountable’.
? Parenthetically, Article XIHA, §$1(b)(2) and (b)(3) ad valorem taxes
levied to pay the interest and redemption charges on bonded indebtedness
for the acquisition or improvement of property also require voter
approval {as do Article XIIID, §4 assessments and §6 fees/charges].
8 California Government Code, §50079(b) exempts senior landowning
residents from paying qualified special taxes. Although amicus curiae
takes no issue with extending a tax exemption to senior landowners [“‘in
Structuring, internal taxation schemes...states have large leeway in
making classifications and drawing lines which, in their judgment, pro-
duce reasonable systems of taxation” {Williams v. Vermont (1985) 472
U.S. 14, 22}], he very much takes issue with allowing and encouraging
them to vote for their approval [California Elections Code, §18521 makes
it unlawful for any person to recerve any valuable consideration (“a tax
exemption has much the same effect as a cash grant...of the amount of
tax (the exemptee)...ha(s) to pay” {Regan v. Taxation With Representa-
tion of Wash (1983) 461 U.S. 540, 544})] for voting or refraining from
voting on an election measure. Furthermore as Carrington v. Rash
(1965) 380 US. 89, 94 (Carrington) instnacts, “fencing out from the fran-
chise a[ny| sector of the population because of the way they may vote is
constitutionally umpermissible.”
9 In Silicon Valley Taxpayers’ Assn, Inc. v. Santa Clara County Open
Space Authority |“the OSA”] (2005) 130 Cal.App.4® 1295, 1351 (fn 12)
{although on review to the California Supreme Court, it is not cited for
the rule of law declared but rather a factual admmssion by an agency of
government| the OSA “in its respondent's brief [admitted that] in Santa
Clara County.. 40% of...registered voters are not property owners|.
Thus]... it may ..be. .casier to obtain a 2/3 vote of registered voters than
a weighted majority vote of prorerty owncrs.”
Unlike Cipriano v. City of Houma (1969) 395 U.S.
701 (Cipriano) and City of Phoenix v. Kolodziejski (1970)
399 U.S. 204 (Phoenix), in this case the only persons who
pay the subject special taxes! are owners of property within
Respondent’s boundaries [California Government Code,
§50077(b)|. Yet according to the Court of Appeal [A18], the
only persons who were allowed to approve these taxes were
ordinary registered voters!''!, whether or not landowners'’.
This type of voting scheme helps explain the recent explos-
ion in special tax ballot measures which are relentlessly bom-
barding landowners across California!?. “California’s grand
experiment” [Nordlinger, supra, at 505 U.S. 18] has evolved
into a crisis of constitutional proportion.
THE CONUNDRUM PRESENTED BY THE PETITION
Given the Measure L election was mandated by law
[California Government Code, §50077(a)]; 40% or more of
'0 Here an annual special tax of $75 per lot or parcel was proposed to be
lev‘ed and collected on the property tax roll {§2 at A4}.
'! Citizens over age 18 who have registered to vote for/against legislators
in primary or general elections [California Elections Code, §321].
!2 Although Caltfornia Building Industry Assn. v. Governing Board of the
Newhall School District (1988) 206 Cal.App.3“ 212, 237 declares Article
XIIIA, §4 special taxes are those approved by voters who themselves will
he taxed, since “voters are often not willing to impose taxes on them-
selves,...here in ar unsurprising result [they]...gladly impose[d] taxes”
someone else “alone {had to]...pay. [Although] this was directly at odds
with the purpose and intent of [Article XIIIA,] §4’s supermajority
requirement,” according to the Court of Appeal, there was no equal
protection violation.
'3 Amicus curtae asks the Court examine just one election [November 2,
2004] in just one of California's 58 [Exhibit “G” to RIN] counties [Santa
Clara]. 13 different ballot measures; each proposing local landowners
only be taxed [either by special tax (Article XIIIA, §4), assessment
(Anicle XIIID, §6) or ad valorem tax to repay general obligation bonds
(Article XIILA, §1) ; and, each employing the challenged voting scheme.
those voting’ were residents gua residents'* [Salyer Land
Co. v. Tulare Water District (1973) 410 U.S. 719, 729-30
(Salyer)|; 90% or more of those most primarily, directly and
substantially affected!’ were excluded from the Measure L
election’s voting scheme'®; and, the Court of Appeal
employed rational basis review [A22];’and it is hard to
imagine how Petitioner could not have been more dispropor-
tionately impacted” [Kramer v. Union Free School District
No. 15‘? (1969) 395 U.S. 621, 633 (Kramer)|. In fact it
raises the more fundamental question, why even go through
the artifice of an election?
Although Proposition 13 “change|d] the previous sys-
tem of real property taxation and...procedure [in California}
by imposing important /imitations on the assessment and tax-
ing powers of state and local governments” [Amador Valley
Joint Union High Sch. Dist. v. State Bd. of Equalization
(1978) 22 Cal.3™ 208, 218 (Amador)}, surprisingly'® the Peti-
14 Because the subject spec. ! taxes “primarily affect land within [Res-
pondent’s] boundaries'® {there was]...no way...the economic burdens of
[those taxes could possibly]... fall on residents qua residents.”
'5 Natural person residents owning more than a single parcel, and non-
citizen, non-natural person resident and nonresident landowners.
'© “We have over 50,000 privately-owned subdivided lots...and approxi-
mat’’. 3,800 registered voters... This means...cevery voter who votes
cartics over fen times the taxing power...because every one of those
property owners supports the city with their special tax payments”'” | A3|
'? Even though Kramer did not involve a discrete issue election, m
Phoenix whete such an clection ways at issuc, this Court declared “the
principles of...Kramer dictate a like result [because]...the differences
between the interests of property owners and...nonproperty owners are
not sufficiently substantial to jusnfy excluding [either] from the fran-
chise” [ Phoenix, supra, at 399 U.S. 208-209, 210).
'8 Maybe not so surprising given where else must an agency of govern
ment obtain “qualified elector” approval as a pre-condition to levying
new taxes against property”
6
tion is one of first impression [A23]. Although “problems...
respecting the interpretation of particular provisions [of
Article XINJA were]...deferred for [later] resolution” [Los
Angeles County Transportation Com. v. Richmond (1982) 31
Cal.3" 197, 201] “in future cases {where their] application...
were at issue” [Amador, supra, at 22 Cal.3 247}, Mr.
Neilson is apparently the first to challenge on eqwal protect-
ion grounds, Proposition 13’s voting scheme.
Given the distinction between general and discrete
issue elections [see Argument I, infra (below)],
General Elections: Amicus curiae is aware of cases
addressing exclusion of: residents neither primarily affected
nor impacted by landowner only voting schemes [ Salyer,
supra, at 410 U.S. 730; Associated Enterprises, Inc. v. Toltec
District (1973) 410 U.S. 743 (Associated Enterprises); Ball
v. James (1981) 451 U.S. 355, 367 (Ball)]; landowners
neither primarily affected nor impacted by resident only
voting schemes [Burrey v. Embarcadero Mun. Improvement
Dist. (1971) 5 Cal.3" 671; Curtis v. Board of Supervisors
(1972) 7 Cal.3™ 942; Erven v. Board of Supervisors (1975)
53 Cal.3 1004, 1017]; and, both residents [Choudhry v.
Free (1976) 17 Cal.3" 660, 666] and landowners [Bjorne-
stad| equally affected by intermediate voting schemes.
Discrete Issue Elections: Although amicus curiae is
aware of cascs addressing exclusion of residents primarily
affected or impacted by landowner on/y voting schemes
{Cipriano and Phoenix}, until now he knew of none address-
ing exclusion of landowners primarily affected or impacted
by a resident only voting scheme in a discrete issue election.
This helps to explain why “the [Petition]... does nor fit neatly
into any established analytical mold” [//offman v. State Bar
of California (2905) 113 Cal. App.4" 630, 640 (Hoffman)}.
As more states follow California’s “grand experi-
ment” [Nordlinger, supra, at 505 U.S. 18] by adopting their
own Proposition 13s, the constitutional c:-sis which amicus
curiae raises is destined to become more widespread.
STATEMENT OF THE CASE
Although Petitioner has presented a Statement of the
Case below, amicus curiae is of the opinion it omits impor-
tant facts that demonstrate the disproportionate nature of the
challenged voting scheme!®. For instance, Respondent exhi-
bits an adult population of roughly 5,800 [Exhibit “A” to
RIN] who reside in a very small portion of a 203 square mile
municipality2? [Exhibit “F” to RIN] in the Mojave Desert
[Exhibit “E” to RJN|. Of the “over 50,000 privately-owned
subdivided lots” [Petitioner’s Appendix filed with the Court
of Appeal (“AA’’) 59], 2,820?! are occupied housing units
[Exhibit “B” to RIN]; a sprinkling [commercial/industrial ]
are non-housing units; and, a whopping 50,000 are unim-
proved lots in the desert mostly owned by nonresidents.
Since Measure L taxes parcels in rem rather than
persons in personam', if the owncr{s] of each city parcel had
been assigned one vote, Respondent’s population would
represent 1,950 votes. Non-natural person and non-citizen
'° Amicus curiae believes recognizing the disproportionate nature of Res-
pondent’s votung scheme’> ts critical to resolving. the equal protection
issue presented because as Hadley v. Junior College District (1970) 397
LS. 50, 56 (fn 6) (Hadley) instructs, the one-person, one-vote principle
announced in Reynolds vy. Sims (1964) 377 U.S. 333, $58 (Reynolds) is
“not...required {in} a popular election [where the].. State elects certain
functionanes [which] so disproportionately affect different groups ”
2° By land mass, the third /argest in Califorma
21-226 occupied housing units were mobile homes which were not taxed
by Messure L'’ [AA 69, 42, AA 75, 93; AA 81, 92; §§1, 2 and S at AA
85-86]. One-third of Respondent's housing units were tenant-occupied
[Exhibit “C” to RIN! by a third of the population [Exhibit “D” to RIN].
resident and nonresident landowners on the other hand,
would represent roughly 50,000 votes. Thus by crafting a
voting scheme whereby the votes of persons rather than the
parcels they represented’® were canvassed, roughly 3,80022
registered voters?3 [AA 59 (of which roughly 1,265 were
non-landowners)|, were able to determine the tax fate of ap-
proximately 50,000 parcels. Although Respondent unabash-
edly exploited the effects of this classification in the voters
pamphlet by asserting the weight of each vote represented ten
times'® the taxes to be imposed?4, in actuality, it was closer to
twenty five times*>! In other words, Respondent manipulated
the voting weight of those primarily affected by imposing
95% of the cost for general governmental services onto 90%
of those excluded from its voting scheme!
Respondent cannot argue nonresident landowners
were not primarily affected by the Measure L election
because along with natural person resident landowners, they
22 Given the election's results [A5], only 1,609 registered voters. And
given Measure I. passed by just 54 votes [1,128 “yes” versus 481 “no”
votes}, its disproportionate impact on landowners could not be clearer”
23 Reynolds, supra, at 377 U.S. 562, 568 declares “qualified electors” not
only have the constitutional right to vote [/d, at 377 U.S. $54, 562;
Hadley, supra, at 397 U.S. 52], but to not have their votes wrongfully
demed, debased or diluted [Avery v Midland County (1968) 390 U.S
474, 480]. Measure L.'s voting scheme wrongfully debased and diluted
the weight of other qualified electors’ [resident landowners’| votes.
‘4 “How...can one person be given...ten times the voting power of
another'® in a statewide election merely because he lives in a rural area or
...dn the smallest rural county” [Gray v. Sanders (1963) 372 U.S. 368,
379 80}?
* Substantiating amicus curiae’s assertion Measure L's voting scheme
disproporuonately impacted the class of voters most directly, primarily
and substantially affected. “Application of the per capita voting scheme--
the ‘one person, one vote formula [Respondent] contend[s]} is required
produced an anomalous disproportionality” |Not About Water Committee
v Svlano County Board of Supervisors (2002) 95 Cal.App.4" 982, 1000)
were the only persons directly affected’? [Califoria Govern-
ment Code, §50077(b); §2 at AA 81; 85-86].
LEGAL ARGUMENTS
1. NOT ALL ELECTIONS ARE THE SAME.
The first problem with the Court of Appeal’s analysis
of the issues raised by the Petition is its failure to account for
the fact not all elections are the same. Consequently the
constitutional rules that govern elections are not all the same.
This Court recognized the distinction when it decided Lock-
port v. Citizens for Community Action (1977) 430 U.S. 259
(Lockport). For the reasons amicus curiae asserts, this Court
declared discrete issue elections should be viewed differently
than those for/against legislators because sometimes elect-
ions involve “tress and acres” rather than “people”?° [/d., at
430 U.S. 261]. When a discrete issue election like Measure
L directly impacts property rather than people, the one-
person, onc-vote principle'” quickly loses its appeal.
if. VOTING SCHEMES FOR DISCRETE ISSUE
ELECTIONS WHICH EXCLUDE THOSE
ELECTORS MOST PRIMARILY, DIRECTLY
AND SUBSTANTIALLY AFFECTED ARE
SUBJECT TO HEIGHTENED REVIEW.
Lockport declares that “in analyzing the propriety of
recognizing distinctive voter interests in a ‘single-shot’ refer-
endum...cqual protection principles applicable in gauging the
faimess of an clecison sivolving the choice of legislative
representatives are of emitted relevance?’ ...because a “refer-
26 In contrast, the election in Reynolds, supra, at 377 U.S. $62 was about
“people” rather than “trees and acres ~
27 In pointing to Hoffman [“a very useful introduction and summary of
the law regarding equal protection and the right to vote” (A19)], these are
the very “limited relevant” principles the Court of Appeal adopted
10
endum puts one discrete issue to the voters [which]...1s
capable...of being analyzed to determine whether its adopt-
ion or rejection will have a disproportionate impact on an
identifiable group of voters. [When] it [does,]... the question
then is whether [the] State can recognize that impact either
by limiting the franchise to those voters specially affected or
by giving their votes a special weight” [/d., at 430 U.S. 266].
The Measure L election’s voting scheme had a dis-
proportionate impact on an identifiable group of voters”
[landowners within Respondent’s boundaries] because they
were the only persons directly to be taxed'°, yet by-and-large
the ones excluded from voting. Thus the question: were its
classifications “tailored so that the exclusion of [Petitioner]
and members of his class [were] necessary to achieve [an]
articulated state goal” [Kramer, supra, at 395 U.S. 632]?
The second problem with the court of Appeal’s analysis of
the issues raised by the Petition is it never considered the true
impact of the Measure L election on landowners.
lll. THERE IS NO “BLANKET RULE,” ESPEC-
TIALLY WHEN IT COMES TO DISCRETE
ISSUE ELECTIONS MANDATED BY LAW,
THAT RESIDENCY LIMITATIONS ARE
ALWAYS PERMISSIBLE TO EXCLUDE
ELECTORS; EVEN WHEN THEY ARE
MOST PRIMARILY, DIRECTLY AND
SUBSTANTIALLY AFFECTED.
The third problem with the Court of Appeal’s
analysis of the issues raised by the Petition is it in essence
adopts a blanket rule*® that regardiess the election involved,
28 First it “conclude({d] the rational basis test should apply” [A22]. Al-
though Respondents offered no explanation of reasons for excluding Peti-
uioner from its voung scheme, the Court of Appeal conjectured it “could
have determined [1ts]...residents [we]re most knowledgeable and inter-
residency restrictions can a/ways be used to exclude possible
electors, even where they are the ones most primarily,
directly and substantially affected [Kramer] by an election
issue. This so called rule comes from the Court of Appeal’s
mistaken analysis [AA20] of Holt Civic Club v. City of Tus-
caloosa (1978) 439 U.S. 60 (//olt).
Rather than involving a “discrete issue” election
[Lockport], let alone one that proposed imposing a tax on
landowners only, Holt involved a challenge to the franchise
in general elections -- extension of equal footing to Holt resi-
dents with those residing within Tuscaloosa because the
former were purportedly subjected to the latter’s extra-terri-
torial exercise of police powers. Thus it was a mistake for
the Court of Appeal to extend //olt’s reasoning to the subject
“discrete issue”’ case??,
Moreover, a careful reading of the dissent in Holt
makes the case either there is no such “blanket rule” [ Holt,
supra, at 439 U.S. 81-88], or if there is, it only applies where
bona fide residency restrictions are imposed [Dunn v. Blum-
stein (1972) 405 U.S. 330, 343]. Here Respondent’s voting
exclusions based upon residency were not bona fide because
the “reciprocal relationship between the process of govern-
ment and those who subject{ed] themselves to that process by
choosing to live within the area of its authoritative applica-
tion [was] fractured [and]...undermine[d] the very purposes
which have led this Court...to approve the application of
bona fide residency requirements” [/folt, supra, at 439 U.S.
82]. Thus “when statutes distributing the franchise depend
stenoses we eee ae —
ested in all aspects of local affairs, on both the revenue and expenditure
side of the ledger” [|A24]. Using this litmus test, it is difficult to imagine
any residency based voting limitation not being constitutional.
-” Parenthetically and for the same reasoning, it was just as wrong for the
Court of Appeal to extend the reasoning of Hoffman?’ to the subject case.
12
upon residency requirements, state-law characterizations of
residency are not controlling for purposes of the Fourteenth
Amendment” [Carrington, supra, at 380 U.S. 96; Evans v.
Cornman (1970) 398 U.S. 419, 421].
Finally, the Court of Appeal overlooked an aspect of
Holt of particular relevance to the subject review which
should have changed the outcome. “In a footnote (Holt) did
distinguish the...situation [therein] from [the one presented
by this Petition]; a city which exercise[s] al/ of its [tradi-
tional! powers” [such as the “power...to levy ad valorem
taxes, invoke the power of eminent domain, and zone
property for various types of uses” {also see Hoffman, supra,
at 113 Cal.App.4™ 645 (fn 9)}] over nonresidents {Holt,
supra, at 439 US. 73 (fn 8), 75, 84-85]. Here Petitioner was
subject to Respondent’s “far-reaching” powers to levy ad
valorem and special taxes against his property; invoke
eminent domain; and, zone his property for various types of
uses. Thus unlike the plaintiffs in Holi, Petitioner was
entitled to complain of unequal voting scheme treatment.
IV. SINCE THERE ARE ONLY TWO SUPREME
COURT CASES WHICH HAVE REVIEWED
THE IMPACT OF DISCRETE PROPERTY
TAX ISSUE ELECTIONS ON NON-LAND-
OWNING RESIDENTS/NONRESIDENT
LANDOWNERS, THESE ARE THE
CASES WHICH SHOULD GUIDE
THE COURT IN THIS REVIEW.
If we are to examine voting schemes for discrete issue
elections differently from those for/against legislators [as
Lockport instructs}, then in this case we must /imi our
inquiry to just those “discrete issue” election cases which
proposed imposing new exactions against property and here
there are only two: Cipriano and Phoenix. But before cxami-
ning these two cases, amicus curiae refers to three others
which address the night of landowners to vote where they are
the only persons primarily, directly and substantially affected
by an election’s outcome.
In Salyer non-landowning residents challenged upon
equal protection grounds the validity of a landowner only
voting scheme for a water storage district’s general elections.
Because there “the operations of the district...primarily
affected \and within [its] boundarics;” and as such, there was
“no way...the economic burdens of district operations
fcould] fall on residents qua residents,” this Court concluded
“the popular clection requirements enunciated in Reynolds...
and succeeding cases [we]re inapplicable” (Salyer, supra, at
410 U.S. 729-730].
“Salyer...is analytically linked to th{is} Court’s sub-
sequent decision in Baill...On facts strikingly different...
th{is] Court reached an identical result, ruling...the principle
of Reynolds...did not appfy to a [general]}...election ...o1...a
water reclamation district...{since}] the reclamation district’s
activities feil disproportionately on the specific class which
the statutory voting scheme enfranchised.../Thus this Court
ruled] ‘the {landowner only] voting scheme...{was] constitu-
tional because it b[ore] a reasonable relationship to its statu-
tory objcctives’...{In other words,] on/y |landowners] were
subject to the acreage-based taxing power of the district, only
they had committed capital to the district through assess-
ments, and only their land was subject to liens to secure
district bonds” [Southern Cal. Rapid Transit Dist. v. Bolen
(1992) 1 Cal.4" 654, 667-68 (SCRTD)}.
“A third decision in the trilogy of high court opinions
upholding property-based voter qualification schemes bears
mention. In Associated Enterprises...thfis] Court, in a brief
per curiam ruling decided the same day as Sa/yer...held that
a...Statute conditioning voting...did not violate equal pro-
tection...in a referendum authorizing the establishment of a
watershed district on property ownership” [SCRTD, supra, at
1 Cal.4" 669 (fn 5)].
These three cases make clear [especially in light of
Ball] that rather than residency, the constitutionally decisive
factor is whether the voting scheme reflects the “narrow
primary purpose for which the [public entity] was created?’3°
In Cipriano a landowner only voting scheme for a
“discrete issuec’’ revenue bond election [which would tax
local property owners] was declared invalid not because it
impermissibly denied the franchise to nonproperty owning
residents in their capacity as residents |1.¢., Reynolds]; but
because the subject revenue bonds were to be paid from
utility operations. Since both property owners and non-
property owners used those utilities and paid their rates, this
Court concluded both were primarily, directly and substan-
tially affected |Kramer}; and, the impact of the revenue bond
issue On them was unconnected to property taxpayer status
[ Cipriano, supra, at 395 U.S. 706-07].
Similarly in Phoenix a landowner only voting scheme
for a “discrete issue” general obligation bond election [which
in part taxed local property owners] was challenged by non-
landowning residents and declared invalid not because it
30 “No one reviewing this area of th. high court’s equal protection
jurisprudence can fail to be impressed with the result in Ball — not
because the opimon represents an analytical advance over the principles
developed in Sa/yer but because it illustrates the majonty’s steadfast will-
ingness to adhere to the Sa/yer analysis...Clearly in light of Ball, the...
constitutionally decisive fact [distinctions between governmental function
‘do not amount to a constitutional difference’ (Ball, swpra, at 451 U.S.
365-66)] is that the voting scheme at issue reflect...the “narrow primary
purpose for which the [public entity wa]s created’ (citing Ball, supra, at
451 U.S. 369)" [SCRTD, supra, at 1 Cal.4" 668-69].
impermissibly denied the franchise to nonproperty owning
residents in their capacity as residents {i.c., Reynolds], but
because the “differences in interests of property owners and
nonproperty owners were not sufficiently substantial to
justify excluding nonproperty owners from voting.” In other
words, residents [because they foo paid {more than half of
the bonds’ debt service requirements were satisfied from
other local taxes paid by nonproperty owners (Phoenix,
supra, at 399 U.S. 209-10)}] as well as property owners
were both primarily, directly and substantially affected
[ Phoenix, supra, at 399 U.S. 212-13].
Thus Cipriano and Phoenix make clear that rather
than residency, the constitutionally decisive voting scheme
factor in “discrete issue” clection cases “is the extent of the
impact of the clection on those within and those outside the
challenged voting classification” [SCRT7TD, supra, at | Cal.4"
671].
Here, it cannot be questioned that Respondent’s
decision to levy a special tax had a particular impact on an
identifiable group of voters only owners of property upon
which the tax was to be imposed [/d., at 1 Cal.4" 686]. “All
of the costs of [the subject special taxes...we]re assessed
against land'’...{and] when [landowners we]re delinquent in
payment...such charges bec[a]me a lien on thefir] land{s].”
Since the subject special taxes “disproportionately affect[ed]
landowners” only [Salver, supra, at 410 U.S. 729], if it was
improper to deny the franchise to non-property owners in
Cipriano and Phoenix, it was equally improper to deny it to
nonresident landowners in the subject case.
V. VOTING SCHEMES THAT EXCLUDE THOSE
ELECTORS MOST PRIMARILY, DIRECTLY
AND SUBSTANTIALLY AFFECTED BY A
DISCRETE ISSUE ELECTION ARE NOT
PRESUMED TO BE CONSTITUTIONAL.
As a general rule “legislatures are presumed to have
acted within their constitutional power despite the fact that,
in practice, their laws result in some inequality” [McGowan
v. Maryland (1961) 366 U.S. 420, 425-26]. However that
presumption is not the case when as here a classification
jeopardizes the exercise of a fundamental right*! [ Nordlinger,
supra, at 505 U.S. 10]. For this reason “in an election of
[arguable] general interest, restrictions on the franchise of
any character must meet a stringent test of justification”
| Hill v. Stone (1975) 421 U.S. 289, 298. And in an election
of special interest, restrictions on the franchise must meet the
“narrow primary purpose for which the” public entity was
created’’ test. Under either, the subject voting scheme fails.
The strict standard of review has long been held to
apply to voting legislation which excludes [rather than
includes] an “identifiable class” of voters [Gordon v. Lance
(1971) 403 U.S. 1, 7] from participation ({Kramer'’, supra, at
395 U.S. 627-28, 632, 638-39; Cipriano, supra, at 395 U.S.
704, Phoenix, supra, at 399 U.S. 209]. Although not every
classification is subject to strict scrutiny review, the “compel-
ling imterest” measure must be applied whenever a classifica-
tion has a “real and appreciable [as opposed to ‘only mini-
mal’] impact” upon the equality, fairness and integrity of the
electoral] process” | Bullock v. Carter (1972) 405 U.S. 134,
144}. Given here Respondent's non-landowning residents
were /ess interested and affected by Measure L than land
owners of all kinds [because only landowners would pay'®}.
The right to vote is considered fundamental and preservative of other
basic political rights~ | Reynolds, supra, at 377 U.S $62].
17
the subject voting scheme was “not sufficiently tailored to...
justify the denial of the franchise to [Petitioner] and members
of his class.”
VI. ASSUMING ARGUENDO THE SUBJECT VOTING
SCHEME IS SUBJECT TO RATIONAL BASIS
REVIEW, RESPONDENT’S INTEREST IN
MAKING NONRESIDENT LANDOWNERS
PAY WAS NOT A JUSTIFIABLE BASIS.
The “rational basis” test merely requires that a chal-
lenged “voting scheme not be ‘wholly irrelevant’ [or ‘reason-
ably related’} to the achievement of [its statutory] objectives”
| Salyer, supra, at 410 U.S. 730]. Here the Court of Appeal
conjectured it was rational for Respondent to exclude 50,000
of the most primanly, directly and substantially electors
because its residents were purportedly the most knowledge-
able and interested in the city’s revenue matters*” [A24].
Stated differently, it was purportedly rational for Respondent
to concoct a voting scheme that ensured nonresident
landowners [versus its non-landowning residents] would be
the ones to subsidize the cost of Respondent’s general gov
cmmental services. Amicus curiae contends this reasoning 1s
arbitrary, capricious and bears no reasonable relationship
Salyer) to the objective of generating revenue from sources
that directly impact a// residents. Furthermore Respondent's
voting scheme was really a thinly veiled means of impermis-
sibly excluding otherwise “qualified electors” simply because
of the way Respondent perceived they would vote’.
° Sturect scrutiny review was employed in Cipriano and Phoenix not
because their voting schemes excluded non-landowning residents but
rather, because there was no basis for concluding nonproperty owners
were substantially less mterested in the subject bonds as property owners
|Cipriano, supra, at 395 U.S 706-07, Phoentx, supra, at 399 US. 212)
18
In considering what represents “rational or reason-
able” considerations for equal protection tax purposes, this
Court weighed in on the subject in Nordlinger, supra, at 505
U.S. 13. There this Court acknowledged California’s
distinction between new and existing property owners.
Whereas “a new owner has full information about the scope
of future tax liability before acquiring...property...{in]
contrast, the existing owner, already saddled with his
purchase, does not have [an] option...if taxes become pro-
hibitively high.” In Nordlinger this Court recognized Calif-
ornia’s public policy that “it is worse to have owned and lost
than never to have owned at all.”
Being an existing property owner and having no
option other than to lose, the Court of Appeal’s conjectured
reasoning” is now the exact opposite making the subject
classification, not rationally related to the achievement of
Proposition 13’s objectives.
When the State’s sole justification for excluding pri-
marily, directly and substantively impacted electors from an
election mandated by law is that the classification provides a
“rational basis” for limiting the franchise to those voters with
a “special intcrest,” that justification does not meet the
“exacting standard of precision we require of statutes which
selectively distribute the franchise” |Cipriano, supra, at 395
U.S. 706].
CONCLUSION
Lockport, supra, at 430 U.S. 266 instructs that the
question of whether a State can {or here must] recognize the
disproportionate impact” of discrete issue elections has been
confronted in two types of cases: elections involving
“special-interest” governmental bodies of limited jurisdict-
ion, and those dealing with bond referenda. Today this Court
is presented with a third - the property tax referendum.
19
Amicus curiae prays this Court grants review to address the
equal protection issues implicated by this classification.
P.O. Box 116
Saratoga, CA. 95071
(408) 741-1008
Amicus Curiae in Propria Persona
20
APPENDIX
FULL TEXT OF CITED STATE CONSTITUTION
Article XTILTA, §1 — ‘“(a) The maximum amount of any ad
valorem tax on real property shall not exceed One percent
(1%) of the full cash value of such property. The one percent
(1%) tax to be collected by the counties and apportioned
according to law to the districts within the counties.
(b) The limitation provided for in subdivision (a)
shall not apply to ad valorem taxes or special assessments to
pay the interest and redemption charges on any of the
following:
(1) Indebtedness approved by the voters prior to July
1, 1978.
(2) Bonded indebtedness for the acquisition or
improvement of real property approved on or after July 1,
1978, by two-thirds of the votes cast by the voters voting on
the proposition.
(3) Bonded indebtedness incurred by a school district,
community college district, or county office of education for
the construction, reconstruction, rehabilitation, or
replacement of school facilities, including the furnishing and
equipping of school facilities, or the acquisition or lease of
real property for school facilities, approved by 55 percent of
the voters of the district or county, as appropriate, voting on
the proposition on or after the effective date of the measure
adding this paragraph. This paragraph shall apply only if the
proposition approved by the voters and resulting in the
bonded indebtedness includes all of the following
accountability requirements:
(A) A requirement that the proceeds from the sale of
the bonds be used only for the purposes specified in Article
XIHA, §1(b)(3), and not for any other purpose, including
teacher and administrator salaries and other school operating
expenses.
Al
(B) A list of the specific school facilities projects to
be funded and certification that the school district board,
community college board, or county office of education has
evaluated safety, class size reduction, and information
technology needs in developing that Itst.
(C) A requirement that the school district board,
community college board, or county office of education
conduct an annual, independent performance audit to ensure
that the funds have been expended only on the specific
projects listed.
(D) A requirement that the school district board,
community college board, or county office of education
conduct an annual, independent financial audit of the
proceeds from the sale of the bonds until all of those
proceeds have been expended for the school facilities
projects.
(c) Notwithstanding any other provisions of law or of
this Constitution, school districts, community college
districts, and county offices of education may levy a 55
percent vote ad valorem tax pursuant to subdivision (b).”
Article XIITA, §4 — “Cities, Counties and special districts,
by a two-thirds vote of the qualified clectors of such district,
may impose special taxes on such district, except ad valorem
taxcs on real property or a transaction tax or sales tax on the
sale of real property within such City, County or special
district.”
Article XITIC, §1 -- “As used in this article:
(a) ‘General tax’ means any tax imposed for general
governmental purposes.
(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.
(c) ‘Special district” means an agency of the State,
formed pursuant to general law or a special act, for the local
A2
performance of governmental or proprietary functions with
limited geographic boundaries including, but not limited to,
school districts and redevelopment agencies.
(d) ‘Special tax’ means any tax imposed for specific
purposes, including a tax imposed for specific purposes,
which is placed into a general fund.”
Article XIIIC, §2 — “Notwithstanding any other provision of
this Constitution:
(a) All taxes imposed by any local government shall
be deemed to be either general taxes or special taxes. Special
purpose districts or agencies, including school districts, shall
have no power to levy general taxes.
(b) No local goverment may impose, extend, or
increase any general tax unless and until that tax is submitted
to the electorate and approved by a majority vote. A general
tax shall not be deemed to have been increased if it is
imposed at a rate not higher than the maximum rate so
approved. The election required by this subdivision shall be
consolidated with a regularly scheduled general election for
members of the governing body of the local government,
except in cases of emergency declared by a unanimous vote
of the governing body.
(c) Any general tax imposed, extended, or increased,
without voter approval, by any local government on or after
January 1, 1995, and prior to the effective date of this article,
shall continue to be imposed only if approved by a majority
vote of the voters voting in an election on the issue of the
imposition, which election shall be held within two years of
the effective date of this article and in compliance with
subdivision (b).
(d) No local 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. A
special tax shal] not be deemed to have been increased if it is
imposed ut a rate not higher than the maximum rate so
approved.”
A3
Article XITID, §3 -- ‘(a) No tax, assessment, fee, or charge
shall be assessed by any agency upon any parcel of property
or upon any person as an incident of property ownership
except:
(1) The ad valorem property tax imposed pursuant to
Article XIII and Article XIILA.
(2) Any special tax receiving a two-thirds vote
pursuant to §4 of Article XIIIA.
(3) Assessments as provided by this article.
(4) Fees or charges for property related services as
provided by this article.
(b) For purposes of this article. fees for the provision
of electrical or gas service shall not be deemed charges or
fees imposed as an incident of property ownership.”
Article XITID, §4- ‘(a) An agency which proposes to levy
an assessment shall identify all parcels which will have a
special benefit conferred upon them and upon which an
assessment will be imposed. The proportionate special
benefit derived by cach identified parcel shall be determined
in relationship to the entirety of the capital cost of a public
improvement, the maintenance and operation expenses of a
public improvement, or the cost of the property related
service being provided. No assessment shall be imposed on
any parcel which exceeds the reasonable cost of the
proportional special benefit conferred on that parcel. Only
special benefits are assessable, and an agency shall separate
the general benefits from the special benefits conferred on a
parcel. Parcels within a district that are owned or used by
any agency, the State of California or the United States shall
not be exempt from assessment unless the agency can
demonstrate by clear and convincing evidence that those
publicly owned parcels in fact reecive no special benefit.
(b) All assessments shall be supported by a detailed
engincer's report prepared by a registered professional
engineer certified by the State of California.
Ada
(c) The amount of the proposed assessment for each
identified parcel shall be calculated and the record owner of
each parcel shall be given written notice by mail of the
proposed assessment, the total amount thereof chargeable to
the entire district, the amount chargeable to the owner's
particular parcel, the duration of the payments, the reason for
the assessment and the basis upon which the amount of the
proposed assessment was calculated, together with the date,
time, and location of a public hearing on the proposed
assessment. Each notice shall also include, in a conspicuous
place thereon, a summary of the procedures applicable to the
completion, return, and tabulation of the ballots required
pursuant to subdivision (d), including a disclosure statement
that the existence of a majority protest, as defined in
subdivision (c), will result in the assessment not being
imposed.
(d) Each notice mailed to owners of identified parcels
within the district pursuant to subdivision (c) shall contain a
ballot which includes the agency's address for receipt of the
ballot once completed by any owner receiving the notice
whereby the owner may indicate his or her name, reasonable
identification of the parcel, and his or her support or
opposition to the proposed assessment.
(ec) The agency shall conduct a public hearing upon
the proposed assessment not less than 45 days afier 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.
(f) In any legal action contesting the validity of any
assessment, the burden shall be on the agency to demonstrate
that the property or properties in question receive a special
benefit over and above the benefits conferred on the public at
large and that the amount of any contested assessment is
proportional to, and no greater than, the benefits conferred on
the property or properties in question.
(g) Because only special benefits are assessable,
electors residing within the district who do not own property
within the district shall not be decmed under this
Constitution to have been deprived of the right to vote for
any assessment. If a court determines that the Constitution
of the United States or other federal iaw 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 (¢).”
Article XILID, §6 — “(a) Procedures for New or Increased
Fees and Charges. An agency shall follow the procedures
pursuant to this section in imposing or increasing any fee or
charge as defined pursuant to this article, including, but not
- limited to, the following:
(1) The parcels upon which a fee or charge is
proposed for imposition shall be identified. The amount of
the fee or charge proposed to be imposed upon each parcel
shall be calculated. The agency shall provide written notice
by mail of the proposed fee or charge to the record owner of
cach identified parcel upon which the fee or charge is
proposed for imposition, the amount of the fee or charge
proposed to be imposed upon each, the basis upon which the
amount of the proposed fee or charge was calculated, the
reason for the fee or charge, together with the date, time, and
location of a public hearing on the proposed fee or charge.
(2) The agency shall conduct a public hearing upon
the proposed fee or charge not less than 45 days after mailing
A6
the notice of the proposed fee or charge to the record owners
of cach identified parcel upon which the fee or charge is
proposed for imposition. At the public hearing, the agency
shall consider all protests against the proposed fee or charge.
If written protests against the proposed fee or charge are
presented by a majority of owners of the identified parcels,
the agency shall not impose the fee or charge.
(b) Requirements for Existing, New or Increased Fees
and Charges. A fee or charge shall not be extended,
imposed, or increased by any agency unless it meets all of
the following requirements:
(1) Revenues derived from the fee or charge shall not
exceed the funds required to provide the property related
service.
(2) Revenues derived from the fee or charge shall not
be used for any purpose other than that for which the fee or
charge was imposed.
(3) The amount of a fee or charge imposed upon any
parcel or person as an incident of property ownership shall
not exceed the proportional cost of the service attributable to
the parcel.
(4) No fee or charge may be imposed for a service
unless that service is actually used by, or immediately
available to, the owner of the property in question. Fees or
charges based on potential or future use of a service are not
permitted. Standby charges, whether characterized as
charges or assessments, shall be classified as assessments and
shall not be imposed without compliance with §4.
(5) No fee or charge may be imposed for general
governmental services including, but not limited to, police,
fire, ambulance or library services, where the service is
available to the public at large in substantially the same
manner as it is to property owners. Reliance by an agency on
any parcel map, including, but not limited to, an assessor's
parcel map, may be considered a significant factor in
determining whether a fee or charge is imposed as an
incident of property ownership for purposes of this article. In
any legal action contesting the validity of a fee or charge, the
burden shall be on the agency to demonstrate compliance
with this article.
(c) Voter Approval for New or Increased Fees and
Charges. Except for fees or charges for sewer, water, and
refuse collection services, no property related fee or charge
shall be imposed or increased unless and until that fee or
charge is submitted and approved by a majority vote of the
property owners of the property subject to the fee or charge
or, at the option of the agency, by a two-thirds vote of the
electorate residing in the affected area. The election shall be
conducted not less than 45 days after the public hearing. An
agency may adopt procedures similar to those for increases in
assessments in the conduct of elections under this
subdivision.
(d) Beginning July 1, 1997, all fees or charges shall
comply with this section.”
FULL TEXT OF CITED STATE STATUTES
California Elections Code, §321 — ‘““Elector’ means any
person who is a United States citizen 18 vears of age or older
and a resident of an election precinct at least 15 days prior to
an election.”
California Elections Code, §18521 — “A person shall not
directly or through any other person receive, agree, or
contract for, before, during or after an election, any money,
gift, loan, or other valuable consideration, office, place, or
employment for himself or any other person because he or
any other person:
(a) Voted, agreed to vote, refrained from voting, or
agreed to refrain from voting for any particular person or
measure.
(b) Remained away from the polls.
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(c) Refrained or agreed to refrain from voting.
(d) Induced any other person to:
(1) Remain away from the polls.
(2) Refrain from voting.
(3) Vote or refrain from voting for any
particular person or measure.
Any person violating this section is punishable by
imprisonment in the state prison for 16 months or two or
three years.”
Government Code §16271(d) - “As used in_ this
chapter...’Special district? means any agency of the state for
the local performance of governmental or proprietary
functions within limited boundaries. ‘Special district’
includes a county service area, a maintenance district or area,
an improvement district or improvement zone, or any other
zone or area formed for the purpose of designating an area
within which a property tax rate will be levied to pay for a
service or improvement benefiting that area.
County free libraries established pursuant to Chapter
2 (commencing with §27151) of Division 20 of the
Education Code; areas receiving county fire protection
services pursuant to §25643 of the Government Code; and
county road districts established pursuant to Chapter 7
(commencing with §550) of Division 2 of the Streets and
Highways Code, shall be considered ‘special districts’ for all
purposes of this chapter.
‘Special district” does not include a city, a county, a
school district or a community college district. ‘Special
distnict’ does not include any agency which is not authorized
to levy a property tax rate, except the Bay Area Pollution
Contro! District.”
California Government Code, §26912 - “(a) For the
purposes of this section, a local agency includes a city,
county, city and county, and special district, as such terms
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are defined in Article 1 (commencing with §2201) of Chapter
3 of Part 4 of Division | of the Revenue and Taxation Code,
if such locai agency levied a property tax during the 1977-78
fiscal year or if a property tax was levied for such local
agency for such fiscal year, except that the Bay Area
Pollution Control District shall be considered a local agency.
(b) For the 1978-79 fiscal year only, the amount of
revenue derived from levying a tax pursuant to subdivision
(b) of §2237 of the Revenue and Taxation Code shall be
allocated by the county auditor, subject to the allocation and
payment of funds, as provided for in subdivision (b) of
§33670 of the Health and Safety Code, to each local agency,
school district, county superintendent of schools, and
community college district in the following manner:
(1) (A) The auditor shall determine the local agency
share of 1978-79 property tax revenue by dividing the
amount of property tax revenue received by all local agencies
in 1977-78 by the total amount of property tax revenue
received by all local agencies, school districts, community
college districts, and county superintendents of schools in the
1977-78 fiscal year, and multiplying the quotient by the total
amount of revenue generated pursuant to subdivision (b) of
§2237 of the Revenue and Taxation Code.
(B) For each local agency, the county auditor shall
compute a factor equal to the average amount of property tax
revenue received in the three fiscal years prior to the 1978-79
fiscal year by each local agency within the county, divided
by the average amount of property tax revenue received by
all such agencies during the three fiscal years prior to the
1978-79 fiscal year. The county auditor shall multiply the
factor for each local agency by the amount of revenue
determined pursuant to subparagraph (A).
(C) Notwithstanding subparagraph (B), in each case
where a local agency has been formed in the past three years
and has assismed the duties of another local agency, it shall
be entitled to the average amount of revenue for the prior
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three years of the local agency from whom it assumed its
duties.
(D) For the purposes of subparagraphs (A) and (B),
local agency shall not include a local agency formed after
January 1, 1976.
(2) (A) The county auditor shall determine the school
share of the 1978-79 fiscal year property tax revenue by
subtracting the local agency share, as determined under
subparagraph (A) of paragraph (1) of this subdivision, from
the total amount of revenue generated pursuant to
subdivision (b) of §2237 of the Revenue and Taxation Code.
(B) For each school district, county superintendent of
schools, and community college district, the county auditor
shall compute a factor equal to the amount of property tax
revenue received in the 1977-78 fiscal year by such district
and the county superintendent of schools within the county
divided by the total amount of property tax revenue received
by all such districts and the county board of education in the
1977-78 fiscal year. The county auditor shall multiply the
factor for each school district, county superintendent of
schools, and community college district by the amount of
revenue determined pursuant to subparagraph (A). For the
purpose of this paragraph, local agencies formed after
January |, 1976, shall be considered school districts.
(3) For the purpose of this subdivision, the amount of
proceeds of any property tax actually and separately levied
for the specific purpose of making annua! payments for the
interest and principal on outstanding general obligation
bonds or other indebtedness approved by the voters prior to
July 1, 1978, including tax rates levied pursuant to Part 10
(commencing with §15000) of Division 1 of §§39308,
39311, 81338, and 81341 of the Education Code, shall be
excluded from all calculations.
(4) The amounts computed under this subdivision
shall be the amount of property tax revenue to be allocated to
each local agency for the 1978-79 fiscal year.
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(5) As used in this section, ‘property tax revenue’
includes the amount of state reimbursement for the
homeowners’ and business inventory exemptions.
(c) For the 1978-79 fiscal year only, the amount of
state reimbursement to each county with respect to property
tax losses pursuant to the homeowners’ exemption under
§218 of the Revenue and Taxation Code, the business
inventory exemption under §219 of the Revenue and
Taxation Code, and the special treatment accorded livestock,
motion pictures and wine and brandy under §§5523, 988,
and 992, respectively, of the Revenue and Taxation Code,
shall be allocated by each county auditor, subject to the
allocation and payment of funds, as provided in subdivision
(b) of §33670 of the Health and Safety Code, to local
agencies, school districts, county superintendents of schools,
and community college districts within the county pursuant
to the proportions established in subdivision (b). This
subdivision shall not apply to reimbursements with respect to
tax rates levied to pay the interest or principal on outstanding
general obligation bonds or other indebtedness approved by
the voters prior to July 1, 1978.
(d) For local agencies, school districts, and
community college districts located in more than one county,
the county auditor of each county in which such local agency
or district is located shall, for the purposes of computing the
amount for such local agency or district pursuant to
paragraphs (1) and (2) of subdivision (b), treat the portion of
the local agency or district located within that county as a
local agency or district.”
California Government Code, §50077 “(a) Except as
provided in §7282 of the Revenue and Taxation Code, the
legislative body of any city, county, or district may,
following, notice and public hearing, propose by ordinance or
resolution the adoption of a special tax. The ordinance or
resolution shall include the type of tax and rate of tax to be
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levied, the method of collection, and the date upon which an
election shall be held to approve the levy of the tax. The
proposition shali be submitted to the voters of the city,
county, or district, or a portion thereof, and, upon the
approval of two-thirds of the votes cast by voters voting upon
the proposition, the city, county, or district may levy the tax.
(b) The legislative body of a city, or district, may
provide for the collection of the special tax in the same
manner and subject to the same penalty as, or with, other
charges and taxes fixed and collected by the city, or district,
or, by agreement with the county, by the county on behalf of
the city, or district. If the special taxes are collected by the
county on behalf of the city, or district, the county may
deduct its reasonable costs incurred for the service before
remittal of the balance to the city.
(c) The legislative body of a local agency which is
conducting proceedings for the incorporation of a city, the
formation of a district, a change of organization, a
reorganization, a change of organization of a city, or a
municipal reorganization, may propose by ordinance or
resolution the adoption of a special tax in accordance with
the provisions of subdivision (a) on behalf of an affected city
or district.
(d) As used in this section ‘district’ means an agency
of the state, formed pursuant to general law or special act, for
the local performance of governmental or proprictary
functions within limited boundaries.”
California Government Code, §50079 — “(a) Subject to §4
of Article XILA of the California Constitution, any school
district may impose qualified special taxes upon the district
pursuant to the procedures established in Article 3.5
(commencing with §50075) and any other applicable
procedures provided by law.
(b) As used in this section, ‘qualified specia] taxes’
means special taxes which apply uniformly to all taxpayers
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or all real property within the school district, except that
‘qualified special taxes’ may include special taxes which
provide for an exemption from those taxes for taxpayers 65
years of age or older.
‘Qualified special taxes’ do not include special taxes
imposed on a particular class of property or taxpayers.”
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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.