Judge rules against advocates seeking to overturn Measure P defeat

Superior Court Judge Kimberly Gaab ruled that Measure P, a 30-year parks tax initiative for the City of Fresno, did not reach the necessary vote threshold.

Fresno County Superior Court Judge Kimberly Gaab ruled Thursday that Measure P, a 30-year parks tax initiative for the City of Fresno, failed to reach the necessary threshold of votes to be enacted.

Advocates for the tax, led by Fresno Building Healthy Communities (BHC) and the Central Valley Community Foundation, sued the City of Fresno alleging that a 2017 California Supreme Court decision changed the necessary threshold for approval of a special tax from two-thirds support to 50 percent plus one vote.


Learn more about Measure P: Read our Sunlight Series – “Green for green”

The case, California Cannabis Coalition v. City of Upland, held that a citizen-led initiative (such as Measure P) did not need to conform to the same timing rules as government-placed initiatives when it came to scheduling elections.

BHC argued that the same should apply to margin of victory.

The Howard Jarvis Taxpayers Association, acting on behalf of the City of Fresno, moved for Gaab to rule in favor of the City’s position that two-thirds was still the threshold under California law.

Gaab agreed, noting that BHC’s use of Proposition 218 to argue for a majority approval of Measure P was misplaced.

“This provision does not concern the vote required for a tax,” Gaab wrote. Rather, it applies when the governing body of a local government is scheduling the election.”

She then cited a key portion of the Upland ruling to counter BHC’s contentions.

“[T]he voters explicitly imposed procedural two-thirds vote requirement on themselves in article XIII C, section 2, subdivision (d),” the Supreme Court held in Upland, citing the creation of the vote requirement as evidence that voters did not similarly establish timing rules.

In an internal campaign memo from February 2018 – nine months before voters cast ballots – supporters of Measure P said a lawsuit to change the threshold from two-thirds to simple majority was “high risk.”

In a statement after the ruling was announced, Fresno Mayor Lee Brand called on Measure P advocates to end their fight over vote thresholds and begin to work on a new solution for parks.

“The judge’s ruling verified what the voters and I already knew – Measure P did not meet the two-thirds threshold and the matter should be closed,” Brand said in his statement.  “Now, I am asking Measure P supporters to come back to the table to work with me to bring a sensible, more balanced initiative to the voters in November 2020.”

“We’re delighted with the decision, it’s a win for taxpayers,” said Tim Bittle, Director of Legal Affairs with the Howard Jarvis Taxpayers Association.

Bittle noted that, while similar litigation is on-going in San Francisco and Oakland on the issue of vote threshold for special taxes, Judge Gaab didn’t appear to be influenced by a recent decision in favor of the simple majority threshold.

“We are grateful that Judge Gaab was impartial and was not swayed by the judge in San Francisco, she was very well-prepared at the hearing, came with lots of questions, obviously knew the issues and had done the homework,” Bittle said. “She wrote a well-reasoned opinion.”

The loss for Measure P advocates was expensive in more than one way. In sum, the committee backing the parks tax spent nearly $2.1 million before Election Day last year.

In February, the Central Valley Community Foundation – led by Measure P advocate and former Fresno Mayor Ashley Swearengin – contributed tens of thousands that went toward attorneys from Olson Hagel & Fishburn, LLP.

Read the Ruling

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