Fresno · Highlight

Fresno appeal court rules city’s 2018 parks tax was approved

A Fresno-based appeal court panel of three judges ruled that Fresno’s 2018 parks tax initiative was duly approved with a simple-majority vote, reversing a Fresno County Superior Court ruling mandating a two-thirds majority vote.

Last September, Fresno County Superior Court Judge Kimberly Gaab sided with the City of Fresno and the Howard Jarvis Taxpayers Association and ruled against Fresno Building Healthy Communities, a nonprofit group leading the legal battle to enact Measure P, holding that a two-thirds majority was required to approve the sales tax increase.

52.17 percent of Fresno voters cast ballots in favor of the 30-year sales tax increase for parks. Following the election, city leaders deemed the measure failed, citing the lack of two-thirds support.

After seeking an appeal to Gaab’s ruling, the San Francisco-based First Distirct Court of Appeal ruled in a similar controversy – albeit in reverse.

In that case, the City and County of San Francisco contended that the threshold for approval of Measure C, a citizen-led tax initiative to combat homelessness, was a simple majority.

The measure received 61 percent support from San Francisco voters. City officials considered it a victory and began collecting tax revenues tied to Measure C, but placed its revenues in an escrow account pending litigation outcomes.

The First District sided with the City and County of San Francisco, upholding the 2018 electoral victory. The California Supreme Court declined to hear the case, enabling the City of San Francisco to spend its Measure C funds.

Fresno, on the other hand, has not collected tax revenues from its parks tax initiative, owing to the city’s belief that the measure failed.

At the center of the controversy between Building Healthy Communities, the City of Fresno and its legal ally the Howard Jarvis Taxpayers Association are two key state propositions: 1996’s Proposition 218 and 1978’s Proposition 13.

The two propositions both require a two-thirds majority vote to approve taxes adopted by local governments.

At issue is whether a citizen-led initiative seeking a special tax is required to meet that higher threshold.

The three-judge panel, led by an opinion authored by Fifth District Court of Appeal Justice Mark Snauffer with concurrence from Justices Rosendo Peña, Jr. and Donald Franson, Jr., heavily relied on the First District’s ruling in the San Francisco controversy.

The contentious portion of Proposition 13 reads as follows: “Cities, Counties and special districts, by a two-thirds vote of the qualified electors of such district, may impose special taxes,’ except for taxes relating to the value, possession, or sale of real property.”

“One interpretation ‘of section 4’s language is that these elected bodies ‘may
impose special taxes’ only if two-thirds of the voters also approve,'” Snauffer’s opinion, citing the San Francisco appellate ruling, reads. “By this interpretation, the electorate ‘is distinct from and not included in the phrase ‘Cities, Counties, and special districts.’’”

The interpretation wagered by the Howard Jarvis Taxpayers Association was that voters exercising the initiative power would also qualify for the higher threshold.

Snauffer, agreeing with the First District-based jurists, argued that had their been an intent to restrict voters’ initiative power, it would have been made explicitly in the text of Proposition 13.

Proposition 218, meanwhile, reads: “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.”

The lone definition of “local government” comes via Article XIII C of the California Constitution, Snauffer pointed out.

It defines local government as “any county, city, city and county, including a charter city or county, any special district, or any other local or regional government entity.’

“Obviously, this definition, which is the only definition of “local government” applicable to the entirety of Article XIII C, does not reference the electorate,” Snauffer wrote.

Outgoing Fresno City Council president Miguel Arias and Fresno Building Healthy Communities celebrated the ruling.

“An early Christmas gift to all [⁦City of ⁩Fresno] kids. The time for lawsuits is over, let’s now get to work on fixing and building new parks. Our children and neighborhoods deserve nothing less,” he tweeted.

“Today, the 5th District Court of Appeal issued its opinion, declaring Measure P passed!” the nonprofit said via Facebook.

“Young people & park champions have been working for years to create more & better #Parks4All. Here are some of the folks that knocked on thousands of doors, spoke to thousands of their neighbors & have kept the vision for #OneHealthFresno at the forefront.”

The legal victory at the appellate level opens the door for a showdown before the California Supreme Court.

The Sun contacted the Howard Jarvis Taxpayer Association for comment on the ruling and next steps.

Following oral argument on Tuesday, Howard Jarvis attorney Tim Bittle told GVWire he expected the appellate court to rule against the City of Fresno.

“In any event, if the Court rules against us as I expect it will, then we will petition the Supreme Court for review,” he said.

Yet unlike the San Francisco tax battle – which the high court declined to hear – Measure P battle has a unique twist likely to get it a writ of certiorari.

Measure P, unlike San Francisco’s Measure C, was presented to voters by its citizen sponsors as requiring a two-thirds majority threshold.

This interpretation of the support threshold was concurred by Fresno’s City Clerk when the measure qualified for the November 2018 ballot.

City leaders have privately contended that voters’ expectation of the two-thirds threshold is its own key consideration beyond the arguments laid before the three-judge panel at the Fifth District Court of Appeal.

“We normally do not comment on pending litigation, but today’s Fifth District Court of Appeal Measure P ruling is different,” said Fresno Mayor Lee Brand. “The City of Fresno will abide by the Court’s decision once it becomes final.”

“It is time for us to come together as a community and support the results of Measure P,” said Fresno Mayor-Elect Jerry Dyer. “I look forward to working with the City Council and community members as we utilize these dollars to beautify our parks, and trails, and meet the needs of our youth for decades to come.”

The Sun reached out to the Howard Jarvis Taxpayers Association for comment. It did not comment in time for publication.

Alex Tavlian
Alex Tavlian is the Executive Editor of The San Joaquin Valley Sun and Executive Director of Valley Future Foundation. You can reach Alex at alex.tavlian@sjvsun.com.