City of Santa Monica
City Council Meeting
AGENDA
PHIL BROCK
MAYOR
GLEAM DAVIS LANA NEGRETE
COUNCILMEMBER MAYOR PRO TEM
CHRISTINE PARRA CAROLINE TOROSIS
COUNCILMEMBER COUNCILMEMBER
JESSE ZWICK OSCAR DE LA TORRE
COUNCILMEMBER COUNCILMEMBER
DAVID WHITE
CITY MANAGER
DOUGLAS SLOAN
CITY ATTORNEY
NIKIMA NEWSOME
INTERIM CITY CLERK
STANDARDS OF BEHAVIOR THAT PROMOTE CIVILITY AT ALL PUBLIC MEETINGS:
• Treat everyone courteously; • Embrace respectful disagreement and dissent as democratic rights, inherent components of an inclusive
public process, and tools for forging sound decisions
• Hate has no place in Santa Monica. The City opposes
abusive or threatening hate speech, intolerance, or
dehumanization, and supports basic civil respect and
human decency.
• Listen to others respectfully;
• Exercise self-control;
• Give open-minded consideration
to all viewpoints;
• Focus on the issues and avoid
personalizing debate;
Regular meetings are broadcast live on CityTV cable channel 16 and on the internet at santamonica.gov. Cable television re-broadcasts air on Thursday and Saturday at 11:30 AM. The agenda will air on CityTV on Saturday and Sunday at 11:00 AM and 6:00 PM, and on Monday and Tuesday at 12:30 PM and 6:00 PM.
City of Santa Monica Generated: 5/16/2024 12:39 PM Page 2
RULES OF ORDER FOR THE CONDUCT OF CITY COUNCIL MEETINGS (Resolution No.11547(CCS))
WAYS TO PROVIDE PUBLIC COMMENT
If you are interested in providing public comment at a City Council meeting, there are several ways to participate:
(1) Written public comment. In lieu of oral public comment, the public is strongly encouraged to submit written public comment on agenda items via email to [email protected]. Written public comment submitted by 12:00 pm on the day of the meeting will be available for online viewing. Please note the agenda item number in the subject line of your written comments. (2) Oral public comment. Persons wishing to address the City Council regarding items on the agenda must be present and submit their name and address (optional) to the City Clerk before the public comment section is opened for that item or before the public hearing is opened where one is required by law. Register to speak at the Speaker Kiosk prior to the meeting. Remarks from the public are limited to a total of 6 minutes per City Council meeting, with a maximum of 2 minutes and a minimum of one minute per item. Except for the author of the request, public comment on 15-items are limited to 1 minute. Except on Public Input, speakers appearing at the meeting in person, may donate 2 minutes to another person present in-person at the meeting, who may speak for a total of 4 minutes on that item.
Both the donor of time and the designated speaker must register at the Speaker Kiosk in person together.
Oral public comment from any one individual is limited to a total of 6 minutes per City Council meeting, with a maximum of 2 minutes per agenda item; under some circumstances, Council may change the maximum to 1 minute per agenda item.
Levine Act Disclosure. Pursuant to the Levine Act (Govt Code Section 84308), any party to a permit, license, contract, or other entitlement before the Council is required to disclose on the record any contribution, including aggregated contributions, of more than $250 made by the party or the party's agents within the preceding 12 months to any City official. Participants and agents are requested to make this disclosure as well. The disclosure must include the name of the party, participant, or agent, and any other person making the contribution; the name of the recipient, the amount of the contribution, and the date the contribution was made.
ORDER OF BUSINESS (may not be changed except by majority vote of the City Council.)
1. General Public Input
(members of the public may address the City Council
only on items not on the agenda, but within the
subject matter jurisdiction of the City).
2. Public Comment for Closed Session, Special
Agenda, and Consent Calendar Items Only
(Commendations and Proclamations presented).
3. Special Agenda Items (City Manager’s Report,
Presentations, etc.).
4. Closed Session.
5. Consent Calendar (All items considered in one
motion unless removed by a City Councilmember for
discussion. Public comment shall be heard prior
to City Council discussion).
6. Public Comment on remaining Agenda Items
7. Study Session.
8. Continued Items.
9. Administrative Proceedings.
10. Ordinances:
• 1
st Reading
• 2
nd Reading
11. Staff Administrative Item.
12. Public Hearings.
13. Reports of Boards and Commissions.
14. Resolutions.
15. Written Communications (other than
Reports of Commission and Officers).
16. Councilmember Discussion Items.
Agendas and reports are accessible on the City's webpage at smgov.net/council/agendas. They are also available at the City Clerk's Office and in alternate formats upon request. For a free email subscription to the City Council Agendas, please contact the City Clerk’s Office at (310) 458-8211 or [email protected].
Si desea comunicarse con alguien en español, llame a nuestra oficina al (310) 458-8211 y pida hablar con Esterlina Lugo.
City of Santa Monica Generated: 5/16/2024 12:39 PM Page 3
AGENDAS
CITY OF SANTA MONICA
SPECIAL MEETING
CITY HALL COUNCIL CHAMBERS.
1685 MAIN STREET, ROOM 250, SANTA
MONICA, CA 90401, AND 2319 14TH STREET
#7,
TUESDAY, MAY 14, 2024
MEETING BEGINS AT 5:30 PM
The Santa Monica City Council Meeting will be held on Tuesday, May14, 2024, in the City Council Chambers, 1685 Main Street, Santa Monica, California 90401 and at a teleconference site located at 2319 14th Street #7, Santa Monica, California 90405 where a Councilmember will be present and will participate via teleconference.
HOW TO PROVIDE WRITTEN PUBLIC COMMENT:
Written public comment can be submitted via email to [email protected].
Written comments received prior to 12:00 pm on the day of the meeting will be available online. Please note the agenda item number in the subject line of your written comments.
CALL TO ORDER
PLEDGE OF ALLEGIANCE
ROLL CALL
(This is a special City Council meeting. Public comment is restricted to only items listed on the agenda.)
Levine Act Disclosure. Pursuant to the Levine Act (Govt Code Section 84308), any party to a permit, license, contract, or other entitlement before the Council is required to disclose on the record any contribution, including aggregated contributions, of more than $250 made by the party or the party's agents within the preceding 12 months to any City official.
Participants and agents are requested to make this disclosure as well. The disclosure must include the name of the party, participant, or agent, and any other person making the contribution; the name of the recipient, the amount of the contribution, and the date the contribution was made.
1. PUBLIC INPUT (NON-AGENDA ITEMS)
. Public input under this item will not be heard at this meeting. This is a special meeting and public input is limited to agenda items only.
City of Santa Monica Generated: 5/16/2024 12:39 PM Page 4
2. PUBLIC INPUT (AGENDA ITEMS UNDER CLOSED SESSION, SPECIAL AGENDA
ITEMS, CONSENT CALENDAR ONLY)
3. SPECIAL AGENDA ITEMS
3.A. Proclamation: Asian American Pacific Islander (AAPI) Heritage Month
3.B. Proclamation: Public Works Week
3.C. Proclamation: Mental Health Awareness Month
3.D. Proclamation: Preservation Month
3.E. Commendation: Gilbert's El Indio
3.F. City Manager Report- 1) Fire Department Staff Recognition and 2) Local Aging & Disability Action Planning
4. CLOSED SESSIONS
4.A. Conference with legal counsel – anticipated litigation – Gov. Code 54956.9(d)(2): 1 case (Initiative to Partially Exempt Multifamily Developments from Part of the Third Tier Transfer Tax) - New Item Received. 5/13/2024 (Please note that Agenda Items may be reordered during the Council meeting at the discretion of the City Council.)
ADJOURNMENT
Agendas and reports are accessible on the City's webpage at www.smgov.net/council/agendas. They are also available at the City Clerk's Office and in alternate formats upon request. For a free email subscription to the City Council Agendas, please contact the City Clerk’s Office at (310) 458-8211 or [email protected].
Members of the public unable to attend a meeting but wishing to comment on an item(s) listed on the agenda may submit written comments prior to the meeting by meeting by mailing them to: City Clerk, 1685 Main Street, Santa Monica, CA 90401 or to [email protected]. Written comments received from the public by 12 PM on the day of the City Council meeting will be distributed to the City Council prior to the meeting and posted online. Members of the public who submit written public comment on an agenda item may be subject to the Levine Act which requires disclosure of campaign contributions of more than $250 to an officer of the City within the preceding 12 months.
City Hall and the Council Chambers are wheelchair accessible. If you require any special disability related accommodations to either attend or provide public testimony at a Council meeting (i.e. sign language interpreting, access to an amplified sound system, remote option, etc.), please contact the City Clerk’s Office at (310) 458-8211 or TDD: (310) 917- 6626 or via email at [email protected] at least 72 hours prior to the scheduled meeting. Best efforts shall be made to accommodate requests received after the 72-hour deadline. In the case of special meetings, requests should be submitted as City of Santa Monica Generated: 5/16/2024 12:39 PM Page 5 early as possible, but no later than noon the day of the special Council meeting.
Si desea comunicarse con alguien en español, llame a nuestra oficina al (310) 458-8211 y pida hablar con Esterlina Lugo.
Santa Monica Blue Bus Lines #1, #2, #3, #5, #9 and the EXPO Line serve City Hall.
Parking is available on Main Street, on Olympic Drive, and in the Civic Center Parking Structure (validation free).
City Council
Report
City Council Meeting: May 14, 2024
Agenda Item: 3.A
1 of 1
To: Mayor and City Council
From: Nikima Newsome, Interim City Clerk, Special Agenda Items Subject: Proclamation: Asian American Pacific Islander (AAPI) Heritage Month Prepared By: Gilbert Portillo, Administrative Staff Assistant Approved Forwarded to Council
3.A
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City Council
Report
City Council Meeting: May 14, 2024
Agenda Item: 3.B
1 of 1
To: Mayor and City Council
From: Nikima Newsome, Interim City Clerk, Special Agenda Items Subject: Proclamation: Public Works Week
Prepared By: Gilbert Portillo, Administrative Staff Assistant Approved Forwarded to Council
3.B
Packet Pg. 7
City Council
Report
City Council Meeting: May 14, 2024
Agenda Item: 3.C
1 of 1
To: Mayor and City Council
From: Nikima Newsome, Interim City Clerk, Special Agenda Items Subject: Proclamation: Mental Health Awareness Month
Prepared By: Gilbert Portillo, Administrative Staff Assistant Approved Forwarded to Council
3.C
Packet Pg. 8
City Council
Report
City Council Meeting: May 14, 2024
Agenda Item: 3.D
1 of 1
To: Mayor and City Council
From: Nikima Newsome, Interim City Clerk, Special Agenda Items Subject: Proclamation: Preservation Month
Prepared By: Gilbert Portillo, Administrative Staff Assistant Approved Forwarded to Council
3.D
Packet Pg. 9
City Council
Report
City Council Meeting: May 14, 2024
Agenda Item: 3.E
1 of 1
To: Mayor and City Council
From: Nikima Newsome, Interim City Clerk, Special Agenda Items Subject: Commendation: Gilbert's El Indio
Prepared By: Gilbert Portillo, Administrative Staff Assistant Approved Forwarded to Council
3.E
Packet Pg. 10
City Council
Report
City Council Meeting: May 14, 2024
Agenda Item: 3.F
1 of 1
To: Mayor and City Council
From: David White, City Manager, City Manager's Office
Subject: City Manager Report- 1) Fire Department Staff Recognition and 2) Local Aging & Disability Action Planning
Prepared By: Sergio Ramirez, Chief of Staff
Approved Forwarded to Council
3.F
Packet Pg. 11
City Council
Report
City Council Meeting: May 14, 2024
Agenda Item: 4.A
1 of 1
To: Mayor and City Council
From: Douglas Sloan, City Attorney, City Attorney's Office Subject: Conference with legal counsel – anticipated litigation – Gov. Code 54956.9(d)(2): 1 case (Initiative to Partially Exempt Multifamily Developments from Part of the Third Tier Transfer Tax)
Prepared By: Douglas Sloan, City Attorney
Approved Forwarded to Council
Attachments:
A. Demand Letter to SM re Impending Litigation 5-8-24
B. Written Comments
4.A
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Matthew Alvarez
Direct Dial: (415) 732-4502
E-mail: [email protected]
May 8, 2024
Ru t an & Tu ck er , L LP | 15 0 Po st S tre et , Su it e 405 Sa n Fran c is c o, CA 941 08 | 415 -7 32 -7 700 | Fax 415- 73 2- 770 1 Or ang e C ounty | P al o Alto | San Fr anc i s co | Sc otts da le | www.r uta n. c om 3132/-
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VIA E-MAIL
Douglas T. Sloan, Esq.
City Attorney
City of Santa Monica
1685 Main Street, Third Floor
Santa Monica, CA 90401
Re: Settlement Offer re Anticipated Litigation; Further Response to Initiative Signature Requirement Controversy Demanded
** DEADLINE TO RESPOND: WEDNESDAY, MAY 15 at 5:00 P.M. ** Dear Mr. Sloan:
Please be advised that this letter constitutes formal notice of anticipated litigation against the City of Santa Monica. For the reasons explained below, we hereby demand a response from the City by 5:00 p.m. on Wednesday, May 15, 2024.
If no response is received and the City chooses to persist in its wrongful reading of the law for reasons we have previously explained (see attached letter), a petition for writ of mandate and compliant for injunctive relief will be filed on the morning of May 16, 2024. The litigation will be subject to a highly accelerated hearing schedule per Elections Code section 13314, and the City will still be required to verify the signatures within 30 working days from the initiative submission date (May 6, 2024) pursuant to Elections Code section 9211. Be further advised that we will be seeking attorney’s fees pursuant to California’s private attorney general statute as a consequence of enforcing important public rights.
* * *
As you are aware, my office represents Pamela O’Connor, an elector who lives in the City of Santa Monica. Ms. O’Connor wishes to place a citizen’s initiative on the November 2024 ballot to amend the City’s municipal code regarding the repeal of certain property transfer tax provisions found in S.M.M.C. section 6.96. To that end, Ms. O’Connor has gathered over 4,000 signatures supporting the placement of the initiative on the ballot, satisfying her legal obligations per Article XIII.C, Sec. 3 of the California Constitution.
The City has wrongly decided, however, that Ms. O’Connor must meet a higher signature threshold, arguing—incredibly—that the municipal code provisions that Ms. O’Connor seeks to
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Attachment: Demand Letter to SM re Impending Litigation 5-8-24 (6423 : Closed Session - Third Tier Transfer Tax Petition) Douglas T. Sloan, Esq.
May 8, 2024
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repeal via initiative do not involve a “tax” because S.M.M.C. section 6.96 is a creature of initiative, and therefore other regulations apply instead.
For the reasons we explained to you in our May 4, 2024 letter, the City’s position is entirely bereft of legal merit. (See attached letter from City.) Its arguments ignore controlling law and the plain text of the California Constitution. Furthermore, as cited in our letter to you, the City has repeatedly, publicly, and even statutorily, conceded that S.M.M.C. section 6.96 involves a tax. (See attached Measure GS ballot question drafted by your office.) We were distressed to learn that the City persists in its refusal to accept that Ms. O’Connor has secured a sufficient number of signatures, and thus has refused to forward the signatures to the County’s Registrar of Voters for verification. It is apparent that the City is doubling-down on its intent to deprive Ms. O’Connor—and the four thousand other Santa Monica voters who join her— of the right to have the initiative placed on the November 2024 ballot.
Accordingly, please understand this letter as constituting formal notice of anticipated litigation against the City by Ms. O’Connor and an offer to settle such litigation. We once again demand that the City reverse course and honor its constitutional duties by forwarding the signatures gathered by Ms. O’Connor to the County’s Registrar of Voters, as they are of sufficient quantity per California’s constitutional requirements.
If we do not hear from the City by 5:00 p.m. on Wednesday, May 15, 2024 that the City will forward the signatures to the County Registrar of Voters for signature verification, we will file suit against the City on the morning of Thursday, May 16, 2024.
If the City chooses to continue violating the law by (1) refusing to recognize that she has gathered a sufficient number of signatures pursuant to clear constitutional law; and (2) refusing to immediately forward those signatures to the County’s Registrar of Voters for processing and validation, then Ms. O’Connor is prepared to file a petition for writ of mandate and complaint for injunctive relief in Los Angeles Superior Court on the morning of May 16, 2024. This is her statutory right per Elections Code section 13314, which provides that “[a]n elector may seek a writ of mandate alleging that an error or omission has occurred, or is about to occur, . . . or that any neglect of duty has occurred, or is about to occur,” regarding the administration of an election.
Further, we will be moving on an ex parte basis to ask that the court advance the hearing schedule on the writ and complaint, resulting in a highly compressed briefing schedule and hearing date. Such actions “shall have priority over all other civil matters” in a court of law. (Id., subd. (a)(3).) It is reasonable to expect that the lawsuit will begin and conclude within one month’s time.
Lastly, we need not remind the City of the significant financial exposure it risks by not following the plain text of the law. If successful (and we expect to be for the reasons explained in
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Attachment: Demand Letter to SM re Impending Litigation 5-8-24 (6423 : Closed Session - Third Tier Transfer Tax Petition) Douglas T. Sloan, Esq.
May 8, 2024
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our May 4 letter to you; attached), we will move for recovery of all of Ms. O’Connor’s attorneys’ fees and related litigation costs and expenses pursuant to California’s private attorney general statute, codified at Code of Civil Procedure 1021.5. This code provision is patently applicable here, wherein Ms. O’Connor will be vindicating important public rights and will therefore be entitled to full financial recovery as a consequence of her efforts to do so. * * *
We anticipate the City’s timely formal response to this letter—and its compliance with the law. The initiative will appear on the November 2024 ballot, either through the City’s voluntary compliance or compulsion by a court of law. For all involved, the former is preferrable. But Ms.
O’Connor is nonetheless prepared to litigate the matter aggressively and successfully.
Sincerely,
RUTAN & TUCKER, LLP
Matthew Alvarez
MA:jp
cc: Nikima Newsome, Interim City Clerk
David White, City Manager
Phil Brock, Mayor
Lana Negrete, Mayor Pro Tem
Gleam Davis, Councilmember
Christine Parra, Councilmember
Jesse Zwick, Councilmember
Caroline Torosis, Councilmember
Oscar de la Torre, Councilmember
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Attachment: Demand Letter to SM re Impending Litigation 5-8-24 (6423 : Closed Session - Third Tier Transfer Tax Petition) Matthew Alvarez
Direct Dial: (415) 732-4502
E-mail: [email protected]
May 4, 2024
Ru t an & Tu ck er , L LP | 15 0 Po st S tre et , Su it e 405 Sa n Fran c is c o, CA 941 08 | 415 -7 32 -7 700 | Fax 415- 73 2- 770 1 Or ang e C ounty | P al o Alto | San Fr anc i s co | Sc otts da le | www.r uta n. c om 3132/099999-0084
20549889.2 a05/04/24
VIA E-MAIL
Katie Doerr, Esq.
Deputy City Attorney, Advisory Unit
City of Santa Monica
1685 Main Street, 3rd Floor
Santa Monica, California 90401
Re: Response to the City of Santa Monica’s “Signature Threshold” Letter May 2, 2024 Dear Ms. Doerr:
We are in receipt of your letter dated May 2, 2024 entitled “Signature Threshold” and we are aghast at its lack of legal foundation and the City’s wanton disregard for its own citizens’ right to the initiative. That the City would so badly misinterpret the law – in order to disenfranchise thousands of its own citizens – is downright offensive. For the reasons stated below, the City’s arguments fail entirely, and we demand that it reverse course immediately. If it does not, we will be forced to avail ourselves of all legal remedies, including a lawsuit against the City, where the City will assuredly lose and be required to pay our legal fees.
The City’s position fails for at least four reasons. First, it relies on a legal distinction among taxes, fees, charges, and assessments that is no longer good law. (City Ltr., at p. 1; Jacks v. City of Santa Barbara (2017) 3 Cal.5th 248, 260 [219 Cal.Rptr.3d 859, 867].).) Second, the City’s preposterous interpretation results in a complete invalidation of Art. III.C. Sec 3 in all circumstance, which is an absurd result that offends all manners of statutory construction. Third, the City ignores the plain, reasonable interpretation of Art. III.C, Sec 3, and in doing so, violates the constitutional rights of its own citizens. Finally, the City cannot legitimately feign ignorance as to how many times it called Measure GS a “tax” in published documents and at public hearings, making its current claim that Measure GS is not a tax all the more preposterous.
1. The City’s Contention that Measure GS is not a “tax” is Plainly Wrong.
The City’s primary argument relies on a confusing and irrelevant distinction with respect to whether Measure GS is a “tax.” (See City Ltr., at p. 1 [citing Wilde v. City of Dunsmuir (2020) 9 Cal.5th 1105, 1116 [266 Cal.Rptr.3d 688, 695] [without quoting the source, red-flagged authorities, e.g., Sinclair].) The key provisions of Proposition 218, cited by the City but otherwise ignored, provide as follows in full:
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Attachment: Demand Letter to SM re Impending Litigation 5-8-24 (6423 : Closed Session - Third Tier Transfer Tax Petition) Katie Doerr
May 4, 2024
3132/099999-0084
20549889.2 a05/04/24
[T]he initiative power shall not be prohibited or otherwise limited in matters of reducing or repealing any local tax, assessment, fee or charge. The power of initiative to affect local taxes, assessments, fees and charges shall be applicable to all local governments and neither the Legislature nor any local government charter shall impose a signature requirement higher than that applicable to statewide statutory initiatives.
(Cal. Const., Art. XIII.C, section 3 [added Nov. 5, 1996, Prop. 218 initiative measure] [emphasis added].)
In response to the plain language of the above-quoted constitutional provision, the City suggests “[c]ourts have long recognized that the term ‘tax’ has no fixed meaning.” (City Ltr., at p. 1.) But, the City fails to acknowledge that the law has changed. As the Jacks Court explains well, infra:
Most recently, in 2010, after the charge at issue in this case was adopted, state voters approved Proposition 26. That measure amended the Constitution to provide that for purposes of article XIII C, which addresses voter approval of local taxes, “ ‘tax’ means any levy, charge, or exaction of any kind imposed by a local government” [ . . . ].
The local government bears the burden of establishing the exceptions. (3 Cal.5th at p. 260 [internal citations and listed exceptions omitted].) It is against this backdrop that the City suggests it can violate the constitutional provisions with abandon and “impose a signature requirement higher than that applicable to statewide statutory initiatives.” (See City Ltr., at p. 1 [relying on mutable definition of “tax” that evidently depends entirely on the idiosyncratic context]; Jacks, supra, 3 Cal.5th at p. 260; Cal. Const., Art. XIII.C, section 3.) Essentially, the City contends it is immune from ever invoking Art. XII.C, Sec. 3, but unfortunately the cited authority is no longer good law and thus provides no such protection. (See Jacks, supra, 3 Cal.5th at p. 260.)
The remaining authority cited by the City is similarly inapposite. (See City’s Ltr., at p. 2 [citing authorities broadly construing the initiative power, which is not supportive of the City’s position that it can act to prohibit or limit the initiative power being exercised by the voters in this situation]; City & Cty. of San Francisco v. All Persons Interested in Matter of Prop. C (2020) 51 Cal.App.5th 703, 708–709 [265 Cal.Rptr.3d 437, 439] [finding the provisions “coexisting with, not displacing, the people's power to enact initiatives by majority vote.”]; and Cal. Cannabis Coal. v. City of Upland (2017) 3 Cal.5th 924, 931 [222 Cal.Rptr.3d 210, 215] [“we agree with the Court of Appeal that article XIII C does not limit voters’ ‘power to raise taxes by statutory initiative.’”].)
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Attachment: Demand Letter to SM re Impending Litigation 5-8-24 (6423 : Closed Session - Third Tier Transfer Tax Petition) Katie Doerr
May 4, 2024
3132/099999-0084
20549889.2 a05/04/24
Case law more than supports the proposition that Measure GS is a tax, assessment, fee, or charge. In any case, Art. XIII.C, Sec. 3 applies and the lower signature threshold must be observed by the City.
2. The City’s Interpretation Renders Art. III.C, Sec. 3 Inapplicable in any Circumstance.
Since 1978, all local taxes must be approved by the voters and cannot be unilaterally adopted by the local legislature.1 (Cal. Const. Art. IIIC, Sec 2 [all local general and special taxes must be approved by voters; Cal. Govt. Code section 53722 [“No local government. . . may impose a special tax unless and until such special tax is submitted to the electorate and approved by a twothirds vote of the voters. . ..”; Howard Jarvis Taxpayers Assn. v. City of La Habra, 25 Cal. 4th 809, 818 [explaining that voter approval is a precondition to the imposition and collection of a special or general tax].) Art. III.C, Sec. 3 deals with “signature requirements” for qualifying initiatives; that is, it only applies to citizen-initiatives and of course is not applicable to initiatives placed on the ballot via the legislature because the legislature does not need to collect signatures to do so.
The City’s stated position is that the electorate is not a “local government” and therefore cannot impose a tax to which its repeal would be subject to Art. III.C, Sec. 3’s signature requirements.
The City states that the lowered signature threshold is a “procedural requirement applicable to a reduction or repeal of a tax imposed by the local government, not by the electorate through initiative,” willfully or ignorantly ignoring the crucial fact that all local taxes must be approved (i.e., “imposed”) by the electorate through initiative. There is no such thing as a tax imposed by a local government under the City’s specious definition of local government.
Because every local tax must be approved – or using the City’s parlance, “imposed” – by voters and because every citizen-initiative requires the collection of signatures, the City’s logic lands on the absurd conclusion that Art. III.C., Sec 3’s signature requirements could never be triggered under any circumstance. Laws cannot be interpreted to have no meaning or result in absurd outcomes, and yet the City does exactly that. (People v. Martinsen, 193 Cal. App. 3d 843, 848 [explaining certain basic rules of statutory construction, including construing laws so as to give a reasonable and common-sense construction consistent with the apparent purpose of the law, and to avoid a result that leads to “mischief or absurdity.”].) That the City would attempt to interpret a Constitutional right out of existence entirely is indefensible. For this reason alone, the City must reverse its decision.2
1 This is in fact the reason that Measure GS was sent to the voters for approval; but for this requirement, the Santa Monica City Council could have adopted Measure GS outright without the need for voter approval.
2 We also note that the City’s reliance on California Cannabis Coalition v. City of Upland (2017) 3 Cal.5th 924 is badly misplaced; the City of Upland case ultimately dealt with the vote requirement for voter approved taxes; i.e., that special tax initiatives placed on the ballot via citizen-initiatives require only a 50+1 approval threshold while special tax initiatives placed on
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Attachment: Demand Letter to SM re Impending Litigation 5-8-24 (6423 : Closed Session - Third Tier Transfer Tax Petition) Katie Doerr
May 4, 2024
3132/099999-0084
20549889.2 a05/04/24
3. The City’s Position Ignores the Plain Language of Art. III.C, Sec 3.
Rules of statutory construction require a natural, “plain language” read of the provision, giving significance to every word, with an aim to a harmonious reading of the language in its relevant context. (See Chesney v. Byram (1940) 15 Cal.2d 460 [101 P.2d 1106].) The City fails to harmonize Art. III.C, Sec 3 in any reasonable manner. The City fails to meaningfully grapple with the fact that it seeks to impose a heightened signature requirement directly contrary to the constitutional provision at issue and that the City cannot “prohibit or otherwise limit [the initiative power] in matters of reducing or repealing any local tax, assessment, fee or charge.” By requiring a heighted signature requirement, the City’s ill-conceived interpretation of the law plainly violates its constitutional mandate not to limit the citizen’s initiative power; a heighted signature requirement is a clear limitation on the citizens’’ right to the initiative.
Further, Art. XIII.C, Sec. 3 states that the lower signature requirement applies not just to “taxes,” but also to “assessments, fees, and charges.” The City cannot possibly contend that Measure GS is neither a tax, an assessment, a fee, or a charge. If it is none of these things, then what is it? Again, the burden to establish that it is not one of these things is on the City and it a burden the City cannot meet. The City’s interpretation ignores the provisions that do not suit its ends and purposefully misinterprets the portions that contradict its goal to stop this initiative by imposing heightened requirements on the initiative’s qualification for the ballot.
4. The City Has Always Considered Measure GS to be a “Tax.” The City’s sudden and abrupt contention that Measure GS is not a tax is patently absurd because the City has always viewed it as a tax. First, the City’s own municipal code labels it a tax. (See S.M.M.C. section 6.96 [“REAL PROPERTY TRANSFER TAX”]; S.M.M.C section 6.96.10 [“This Chapter shall be known as the “Real Property Transfer Tax Ordinance of the City of Santa Monica.”]; S.M.M.C section 6.96 et seq. [using the word “tax” well over 200 times].) Second, the ballot question for Measure GS – written by your office – says it is a tax. (“…and amending Chapter 6.96 to provide a third tier transfer tax rate of…”; emphasis added]. Third, the City’s 30- day report for Measure GS – written by City staff – refers to Measure GS as a tax. Fourth, the resolution to place Measure GS on the ballot – again, written by your office – refers to Measure GS as a tax four times.
For the City to now turn around and say that Measure GS is not a tax is beyond belief. And for a City to do so all because it wishes to invalidate the will of thousands of its citizens who want to vote on this initiative is deeply offensive to any semblance of a functioning democracy. the ballot via legislatures requires a 2/3rds majority vote by the electorate, and had nothing to do with the entirely distinct issue of signature requirements for qualifying citizen-initiatives for the ballot. Such signature requirements can only apply in citizen-initiatives because a citizen-initiative is the only type of initiative that requires signatures in order to qualify for the ballot.
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3132/099999-0084
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5. Conclusion.
For the reasons stated above, the City must immediately reverse its decision. As the courts have recently reiterated, it is the electorate’s decision and only the electorate’s decision to limit the right to restrict, repeal, or affect local taxes by the power of initiative. Because the electorate has not done so, the City cannot unilaterally do so. Allowing for that would turn the whole process on its head – as the City is attempting to do right now. (See Cal. Cannabis Coal., supra, 3 Cal.5th at p. 931.) Without any legal or factual support, the City cannot continue to deprive the citizens of Santa Monica their right to the initiative. We will be submitting over 4,000 valid signatures – signed by the citizens whose rights you are sworn to protect – on Monday, May 8, and we expect the City to fulfil its obligation to send the signatures to Los Angeles County Registrar of Voters for verification. Any other conclusion is a dereliction of the City’s duty and an indefensible affront to the rule of law.
Sincerely,
RUTAN & TUCKER, LLP
Matthew C. Alvarez
MA:st
cc: Douglas T. Sloan, City Attorney
Nikima Newsome, Interim City Clerk
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Attachment: Demand Letter to SM re Impending Litigation 5-8-24 (6423 : Closed Session - Third Tier Transfer Tax Petition) Office of the City Attorney
City Hall
1685 Main Street, Room 310
Santa Monica, California 90401
tel: 310 458-8336 ● fax: 310 395-6727
May 2, 2024
VIA E-MAIL
Matthew Alvarez, Esq.
[email protected]
Re: Signature Threshold
Dear Mr. Alvarez:
You have asked for the City’s view on the proper signature requirement for “An Initiative Measure to Amend Santa Monica Municipal Code Chapter 6.96 to Partially Exempt Multifamily Developments from Par of the Third Tier Transfer Tax” (the “Current Initiative”). The Current Initiative proposes a partial repeal of Measure GS, enacted by voter initiative in 2022. You have stated you believe the proper signature threshold is governed by Art. XIII.C, Sec. 3, of the California Constitution:
Notwithstanding any other provision of this Constitution, including, but not limited to, Sections 8 and 9 of Article II, the initiative power shall not be prohibited or otherwise limited in matters of reducing or repealing any local tax, assessment, fee or charge. The power of initiative to affect local taxes, assessments, fees and charges shall be applicable to all local governments and neither the Legislature nor any local government charter shall impose a signature requirement higher than that applicable to statewide statutory initiatives.
Courts have long recognized that the term “tax” has no fixed meaning, and may be construed narrowly or broadly depending on its particular context and the purpose for which the definition is to be used. (Wilde v. City of Dunsmuir(2020) 9 Cal.5th 1105, 1117- 1118.) Section 1(e) of Article XIII.C provides in pertinent part that, “[a]s used in this article, ‘tax’ means any levy, charge, or exaction of any kind imposed by a local government . . . .” (emphasis added). Section 1(b) of Article XIII.C provides that “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. The term “local government” does not include the voting electorate, and there is no evidence that Proposition 218 was intended to “rescue voters from measures they might, through a majority vote, impose on
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themselves.” (California Cannabis Coalition v. City of Upland (2017) 3 Cal.5th 924, 938- 940.)
While California Cannabis’s ruling dealt with the timing of a general tax election under Art.
XIII.C., Sec. 2(b), courts have extended the interpretation of “local government” to other provisions of Art. XIII.C, where the two provisions “are found 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.” (City and County of San Francisco v. All Persons Interested in Matter of Prop. C (2020) 51 Cal.App.5th 703, 723.)
The ordinary meaning of “impose” is “to establish,” not “to collect.” (California Cannabis, 3 Cal.5th at 944.) Here, the portion of Measure GS sought to be partially repealed was imposed by the electorate via initiative, not by the local government. Thus, pursuant to the plain language of Art. XIII.C and the authority of California Cannabis, Measure GS is not a “tax” for purpose of Art. XIII.C.
Procedural requirements imposed on state and local governments do not apply to initiatives unless there is unambiguous evidence they were so intended. (Id. at 942.) The signature threshold of Art. XIII.C, Sec. 3, is a procedural requirement applicable to a reduction or repeal of a tax imposed by the local government, not by the electorate through initiative. Absent express authority the signature threshold of Art. XIII.C, Sec. 3 should apply to taxes imposed via voter initiative, the appropriate signature threshold for the Current Initiative is that found in Elections Code 9215.
If you are aware of legal authority to the contrary, we would be pleased to consider it.
Sincerely,
Katie Doerr
Deputy City Attorney
Cc: Douglas T. Sloan, City Attorney
Nikima Newsome, Interim City Clerk
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Attachment: Demand Letter to SM re Impending Litigation 5-8-24 (6423 : Closed Session - Third Tier Transfer Tax Petition) 1 David Yakobson
From: Sue Himmelrich <[email protected]>
Sent: Tuesday, May 14, 2024 1:58 PM
To: Clerk Mailbox; councilmtgitems
Subject: Item 4A on 4:30 pm agenda: The City Clerk is correct in determining the sufficiency of the signatures on the proposed initiative
Attachments: FINAL 4.29.2024 Letter to SM City Attorney and Clerk regarding Signature Requirement for Anti-GS Initiative.pdf
EXTERNAL
Dear Madam Clerk:
Please receive the following email and attachment for the file on Item 4A.
Attached please find our letter sent in April supporting the City Clerk's current determination of the signature requirements for the proposed initiative for the reasons set forth in the letter.
As we have advised the City Attorney, City Clerk, and City Manager, if City Council were in some way to compel the City Clerk to change her position, it will simply invite a lawsuit from the proponents of Measure GS rather than a suit by Pam O'Connor.
We hope the City Council stands behind the sound reasoning of the City Clerk.
Sue Himmelrich
To help
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Sue Himmelrich
337 14th Street
Santa Monica, CA 90402
(310) 963-1337
Find me on Facebook “Sue Stands Firm” or on the web at suestandsfirm.com Item 4-A
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Attachment: Written Comments (6423 : Closed Session - Third Tier Transfer Tax Petition) 1 April 28, 2024
Douglas Sloan
Santa Monica City Attorney
1685 Main Street, Room 310
Santa Monica, California 90401
Niki Newsome
Santa Monica City Clerk
1685 Main Street, Room 102
Santa Monica, California 90401
VIA EMAIL TO [email protected]; [email protected] Re: Signatures Required to Place on November 2024 Ballot “An Initiative Measure to Amend Santa Monica Municipal Code Chapter 6.96 to Partially Exempt Multifamily Developments from Part of Third Tier Transfer Tax”
Dear Sir and Madam:
I am one of the three official proponents of 2022 Santa Monica Measure GS (“Measure GS). It has come to my attention that you contend that the above-referenced initiative measure to amend Measure GS (“the anti-GS Measure”) does not have to satisfy the 10% of registered voters signature requirement set forth in California Elections Code Section 9215 (which is incorporated into Santa Monica law via Section 1404 of the Santa Monica City Charter). In particular, I understand that you contend that Section 3 of Article XIII.C of the California Constitution applies to the anti-GS Measure and overrides the 10% of registered voters signature requirement that otherwise is applicable to ordinance initiatives in the City. As explained below, this contention is legal error because it is well established that the provisions of Articles XIII.C of the California Constitution do not apply to voter initiative tax measures like Measure GS—including Section 3’s provisions.
Article XIII.C of the California Constitution was adopted at the 1996 November general election via statewide Proposition 218. Section 3 of Article XIII.C provides (bolding added):
Notwithstanding any other provision of this Constitution, including, but not limited to, Sections 8 and 9 of Article II, the initiative power shall not be prohibited or otherwise limited in matters of reducing or repealing any local tax, assessment, fee or charge. The power of initiative to affect local taxes, assessments, fees and charges shall be applicable to all local governments and neither the Legislature nor any local government charter shall impose a signature requirement higher than that applicable to statewide statutory initiatives.
Section 1(e) of Article XIII.C provides in pertinent part that, “[a]s used in this article, ‘tax’ means any levy, charge, or exaction of any kind imposed by a local government . . . .” (bolding added). And Section 1(b) of Article XIII.C provides that “ ‘Local government’ means Item 4-A
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Attachment: Written Comments (6423 : Closed Session - Third Tier Transfer Tax Petition) 2 any county, city, city and county, including a charter city or county, any special district, or any other local or regional governmental entity.”
In California Cannabis Coalition v. City of Upland, 3 Cal.5th 924 (2017), the California Supreme Court held that Section 2(b) of Article XIII.C did not apply to voter initiative measures.
That section provides (bolding added):
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. 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.
In the course of reaching this conclusion, the Supreme Court first reasoned in most pertinent part that the textual term “local government”, given its ordinary meaning and taking account of related provisions and the structure of Proposition 218, does not include voter initiatives:
By its terms, article XIII C, section 2 only applies to actions taken by a “local government.” To cabin uncertainty about what “local government” connotes, article XIII C then defines the term to mean “any county, city, city and county, including a charter city or county, any special district, or any other local or regional governmental entity.” (Id., § 1, subd. (b).) The crux of the City's argument is that this definition is broad enough to include the electorate. . . . [S]uch an interpretation is unpersuasive—at least in this context—and a survey of rationales specific to this provision, as well as broader principles in our jurisprudence, shows why.
First, the common understanding of local government does not readily lend itself to include the electorate, instead generally referring to a locality's governing body, public officials, and bureaucracy. . . .
Moreover, construing local government as an entity distinct from the public is consistent not only with how the term is used in the provision's text, but also with how it is used in its findings and declarations. (Ballot Pamp., Gen. Elec. (Nov. 5, 1996) text of Prop. 218, p. 108 [“This measure protects taxpayers by limiting the methods by which local governments exact revenue from taxpayers” (italics added) ] . . .
Third, even if it were conceivably possible to treat the term “local government” in article XIII C as an unusually oblique reference to the voters who comprise the relevant electorate, the difficulty in accepting this inference ratchets up given how the definition of “local government” closes with the phrase, “or any other local or regional governmental entity.” (Art. XIII C, § 1, subd. (b).) That the elected officials and civil servants more commonly understood to be part of a local Item 4-A
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Attachment: Written Comments (6423 : Closed Session - Third Tier Transfer Tax Petition) 3 government can be surprised by the actions of the voters they serve belies the idea that the amalgam of individuals who constitute the electorate comprise a local or regional governmental entity.
What's more, the principle of ejusdem generis suggests that when “specific words follow general words in a statute or vice versa,” the general words ordinarily are best construed in a manner that underscores their similarity to the specific words.
Interpreting “city” to include the electorate would give that term a much broader meaning than the adjoining specific term, “local or regional governmental entity.” (Art. XIII C, § 1, subd. (b).) Thus, our interpretation of local government is consistent with the ordinary understanding of the term, the text of related provisions, and the ejusdem generis principle. . . .
Our interpretation is also consistent with article XIII D of the state Constitution, which, like article XIII C, was added by Proposition 218. Article XIII D addresses the imposition of assessments and property-related fees by local agencies, and section 4 of that article contains a variety of procedural requirements that must be fulfilled before an “agency” may adopt an assessment ([e.g., notice and hearing requirements].) Article XIII D defines agency as “any local government as defined in subdivision (b) of Section 1 of [article XIII C ].” (Id., § 2, subd. (a).) Under the City's interpretation then, “agency” in article XIII D also includes voters—an understanding that seems, at best, quite an improbable version of what was plausibly contemplated when this provision was enacted.
California Cannabis Coalition, 3 Cal. 5th at 936-40 (emphases in original; legal citations omitted).
The Supreme Court next reasoned that nothing in the ballot materials suggested that the voters intended the term “local government” to include voter initiative tax measures:
The crux of the concern repeatedly reflected in the ballot materials is with local governments and politicians—not the electorate—imposing taxes. Nowhere in the materials is there any suggestion that Proposition 218 would rescue voters from measures they might, through a majority vote, impose on themselves.
For example, Proposition 218's findings and declarations state, “local governments have subjected taxpayers to excessive tax, assessment, fee and charge increases.... This measure protects taxpayers by limiting the methods by which local governments exact revenue from taxpayers without their consent.” (Ballot Pamp., Gen. Elec. (Nov. 5, 1996) text of Prop. 218, p. 108, italics added (1996 Ballot Pamp.).) The ballot materials are in accord. The argument in favor of the measure, for example, stated that it “does NOT prevent government from raising and spending money for vital services.... If politicians want to raise taxes they need only convince local voters that new taxes are really needed.” (1996 Ballot Pamp., supra, argument in favor of Prop. 218, p. 76, italics added; id., rebuttal to argument against Prop. 218, p. 77 [“Proposition 218 simply gives Item 4-A
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Attachment: Written Comments (6423 : Closed Session - Third Tier Transfer Tax Petition) 4 taxpayers the right to vote on taxes and stops politicians’ end-runs around Proposition 13” (italics added) ].) In short, these materials indicate both that article XIII C employs the term “local government” as it is commonly understood and that the provision's intended purpose did not include limiting voters' “power to raise taxes ... by statutory initiative.”
This reading finds further support in the ballot materials concerning two related initiative constitutional amendments: Proposition 13, which added article XIII A in 1978, and Proposition 26, which amended article XIII C in 2010. The ballot materials concerning both initiatives similarly evince a specific concern with politicians and their imposition of taxes without voter approval. (E.g., Ballot Pamp., Primary Elec. (June 6, 1978) rebuttal to argument against Prop. 13, p. 59 [“We must not let the spendthrift politicians continue to tax us into poverty” (italics added) ]; Voter Information Guide, Gen. Elec. (Nov. 2, 2010) argument in favor of Prop. 26, p. 60 [“STOP POLITICIANS FROM ENACTING HIDDEN TAXES” (italics added) ]; ibid. [“[l]ocal politicians have been calling taxes ‘fees’ so they can bypass voters” (italics added) ]; ibid. [“Proposition 26 requires politicians to meet the same vote requirements to pass these Hidden Taxes” (italics added) ].) All of this is more evidence that the drafters of these propositions, like the drafters of Proposition 218, simply did not contemplate that they were affecting the power of voters to propose taxes via initiatives.
Id. at 940-41 (emphases in original; citations omitted).
Following California Cannabis, the Court of Appeal held in City and County of San Francisco v.
All Persons Interested in Matter of Proposition C, 51 Cal.App.5th 703 (2020), that Section 2(d) of Article XIII.C likewise did not apply to voter initiative tax measures. That section provides (bolding added):
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 shall not be deemed to have been increased if it is imposed at a rate not higher than the maximum rate so approved.
In the course of reaching this conclusion, the Court of Appeal rejected the argument that— because California Cannabis only involved Section 2(b) of Article XIII.C—the Supreme Court’s construction of the term “local government” as excluding voter initiative tax measures did not control the interpretation of the same term in Section 2(d) of Article XIII.C:
The Associations contend that California Cannabis is inapposite because, while voters may not be “local government” for purposes of determining whether a general tax must be submitted to voters at a general election, they are “local government” for purposes of applying the supermajority vote requirement. We see no basis for this distinction. Article XIII C, sections 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 Item 4-A
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Attachment: Written Comments (6423 : Closed Session - Third Tier Transfer Tax Petition) 5 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.” That holding applies here.
Insisting that California Cannabis can be distinguished, the Associations argue that California Cannabis itself recognizes article XIII C, section 2(d) as materially different from article XIII C, section 2(b) because in article XIII C, section 2(d) voters explicitly imposed a two-thirds vote requirement on themselves. Like Kennedy Wholesale, California Cannabis recognizes the undisputable fact that article XIII C, section 2(d) imposes a two-thirds vote requirement. But the Associations’ 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. Even if this term could be construed as ambiguous, the California Cannabis court reviewed official ballot materials pertaining to Proposition 218 and found no evidence that Proposition 218 was intended to “rescue voters from measures they might, through a majority vote, impose on themselves.”
All Persons Interested in Matter of Proposition C, 51 Cal.App.5th at 723-24 (emphasis in original; case citations omitted).
For these same reasons, every subsequent Court of Appeal decision to consider the issue likewise has held that the Supreme Court’s construction of “local government” in California Cannabis as excluding voter initiatives is binding when construing the term “local government” as used in other provisions of Proposition 218. See County of Alameda v. Alameda County Taxpayers’ Assn., Inc., 99 Cal.App.5th 226, 233-34 (2024) (Section 2(d) of Article XIII.C does not apply to voter initiative measures); Alliance San Diego v. City of San Diego, 94 Cal.App.5th 419, 433 (2023) (same); City and County of San Francisco v. All Persons Interested in the Matter of Proposition G, 66 Cal.App.5th 1058, 1073-75 (2021) (neither Section 2(d) of Article XIII.C nor Section 3(a) of Article XIII.D apply to voter initiative measures); Howard Jarvis Taxpayers Assn. v. City and County of San Francisco, 60 Cal.App.5th 227, 230, 238-39 (2021) (Section 2(d) of Article XIII.C does not apply to voter initiative measures); City of Fresno v. Fresno Building Healthy Communities, 59 Cal.App.5th 220, 226, 235-38 (2020) (same).
Returning to the issue at hand, Section 3 of Article XIII.C—upon which you purport to rely when determining the signature requirement applicable to the anti-GS Measure—only applies to “local taxes”, and Section 1(e) defines “tax” for purposes of Article XIII.C as “any levy, charge, or exaction of any kind imposed by a local government.” Because this definition of “tax”, when combined with the binding construction of “local government” in California Cannabis and its progeny, excludes any levy, charge, or exaction of any kind imposed by a voter initiative (such as Measure GS), Section 3 of Article XIII.C has no relevance to the signature requirement applicable to the anti-GS Measure.
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Attachment: Written Comments (6423 : Closed Session - Third Tier Transfer Tax Petition) 6 In light of the foregoing authorities, please confirm the City of Santa Monica will perform its ministerial duty to reject the anti-GS Measure if it fails to satisfy the 10% of registered voters signature requirement.
Sincerely yours,
Michael E. Soloff
Official Proponent of 2022 Measure GS
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