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
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Sue Himmelrich
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Find me on Facebook “Sue Stands Firm” or on the web at suestandsfirm.com Item 4-A
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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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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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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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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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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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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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