Fresno court upholds supermajority requirement for citizen-initiated special taxes, says issue could be decided by state supreme court

On September 5, 2019, Judge Kimberly Gaab ruled that Fresno Measure P was defeated because it required a two-thirds vote for approval. Gaab had previously stated that the cases surrounding this issue were likely to be decided by the California Supreme Court, superseding her decision. Measure P was designed to enact a 0.375% sales tax for 30 years to fund city parks, recreation, streets, and arts. It was put on the ballot by a citizen initiative and received approval from 52% of voters in 2018.
After the election, the city certified the measure as defeated. The group Fresno Building Healthy Communities filed a lawsuit against the city on February 1, 2019, arguing that because Measure P was a citizen initiative, it did not need to meet the supermajority requirement. The lawsuit argued based on a previous state supreme court ruling differentiating election date timing requirements for citizen initiatives from those for measures referred by the local lawmakers. It stated that the supermajority requirement in the state constitution applied to referred measures but not to citizen-initiated ones. The office of the Fresno City Attorney also asked the Fresno County Superior Court to determine the correct vote requirement for Measure P, and the Howard Jarvis Taxpayers Association intervened in the case, arguing that a two-thirds supermajority was required.
Judge Gaab’s ruling stated, “The two-thirds vote requirement is not placed on the ‘local government.’ Rather, proposed special taxes must be ‘submitted to the electorate,’ which must approve the proposals by a two-thirds vote. Since local government does not approve special tax proposals, it is erroneous to conclude that the two-thirds vote requirement in article XIII C, section 2, subdivision (d) applies only to a ‘local government.’ Once the initiative is submitted to the voters, it is incumbent upon to the voters to approve it by a two-thirds vote, or otherwise reject it.” Gaab also argued that the ruling in California Cannabis Coalition v. City of Upland upon which the plaintiffs’ arguments were based differentiated between the election date issue and the supermajority requirement issue.
California voters approved Proposition 218 in 1996. The proposition included the requirement that local governments may only enact, extend, or increase a special tax with a two-thirds supermajority vote of the electorate. Following the passage of Proposition 218, the two-thirds supermajority vote requirement was applied to legislative referrals and citizen initiatives.
In August 2017, however, the California Supreme Court categorized taxes imposed by citizen initiatives as separate from taxes imposed by local governments in California Cannabis Coalition v. City of Upland. This ruling brought the supermajority vote requirement into question for special taxes proposed through citizen initiatives.
In 2018, eight local citizen initiatives in California proposing special taxes were approved by more than a simple majority but less than a two-thirds supermajority vote. Local officials declared two of the measures to be defeated based on the two-thirds supermajority requirement. The other six measures were certified as approved. In July 2019, San Francisco Superior Court Judge Ethan Schulman ruled a different direction than Judge Gaab, deciding that the two San Francisco tax measures were properly certified as approved with 50.9% approval and 61.3% approval, respectively.