Greene v. Marin Co. Flood Control 3/11/09 CA1/5

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: A120228

Case Date: 06/25/2009

Preview:Filed 3/11/09

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE

FORD GREENE, Plaintiff and Appellant, v. MARIN COUNTY FLOOD CONTROL AND WATER CONSERVATION DISTRICT, Defendant and Respondent; FLOOD MITIGATION LEAGUE OF ROSS VALLEY ET AL., Interveners and Respondents.

A120228 (Marin County Super. Ct. No. CV 073767)

A county flood control and water conservation district held an election on whether to impose a new storm drainage fee. The election was mandated by article XIII D of the California Constitution, which was adopted by voter initiative in 1996 as Proposition 218. In the districts election, voters names and addresses were printed on the ballots and voters were directed to sign their ballots. The fee was approved. However, a voter contested the election, claiming the election procedures violated the voting secrecy requirement of article II, section 7 of the California Constitution. The superior court denied the election contest.

1

This appeal requires us to construe article XIII D and specifically article XIII D, section 6, subdivision (c)1, which imposes the election requirement for certain new or increased real property fees. We conclude the voters who adopted Proposition 218 intended voting to be secret in these fee elections. We set aside the districts election results because voters names were printed on the ballots and ballots had to be signed, yet voters were provided no assurances that their votes would be kept secret. BACKGROUND In 1996, voters approved Proposition 218 to close perceived loopholes in the restrictions on property taxes imposed by Proposition 13.2 (Apartment Assn. of Los Angeles County, Inc. v. City of Los Angeles (2001) 24 Cal.4th 830, 838-839 (Apartment Assn.); Howard Jarvis Taxpayers Association v. City of Riverside (1999) 73 Cal.App.4th 679, 681 (Riverside).) Proposition 13 limited ad valorem property taxes to 1 percent of a propertys assessed valuation, limited increases in assessed valuation to 2 percent per year unless and until the property changed hands, and "prohibited counties, cities, and special districts from enacting any special tax without a two-thirds vote of the electorate." (Riverside, at p. 681-682; Cal. Const., art. XIII A3.) In 1992, the Supreme Court held that

1

California Constitution, article XIII D, section 6, subdivision (c) states: "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."
2

Proposition 13, which was adopted by voters on June 6, 1978, added article XIII A to the California Constitution. (Knox v. City of Orland (1992) 4 Cal.4th 132, 140 (Knox).)
3

All article references are to articles of the California Constitution. 2

a property assessment4 was not a special tax within the meaning of Proposition 13. (Knox, supra, 4 Cal.4th at p. 141.) According to the proponents of Proposition 218, Knox created a loophole in Proposition 13s voter approval requirements, which local governments subsequently exploited to a degree that assessments were " ,,limited only by the limits of the human imagination. "5 (Ballot Pamp., General Election (Nov. 5, 1996) argument in favor of Proposition 218, p. 76.) Proposition 218 added articles XIII C and XIII D to the Constitution. (Riverside, supra, 73 Cal.App.4th at p. 682.) Those articles "allow[] only four types of local property taxes: (1) an ad valorem property tax; (2) a special tax; (3) an assessment; and (4) a fee or charge." (Ibid.) Article XIII C imposes restrictions on general and special property taxes in addition to those imposed under article XIII A. Article XIII D restricts property assessments, and fees or charges.6 For new or increased property assessments, article XIII D requires agencies to obtain an engineers report on the assessment and mail detailed notice to affected property owners, explaining the reason for and the method of calculating the assessment and identifying the amount chargeable to the owners particular parcel. (Art. XIII D,

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