Metropolitan News-Enterprise


Tuesday, July 6, 2004


Page 1


Court of Appeal Rejects San Diego’s Requirement of  Supermajority Vote to Raise Taxes


By a MetNews Staff Writer


The state Constitution bars a city from requiring a supermajority vote to amend its charter or to raise general taxes, the Fourth District Court of Appeal has ruled.

Div. One Thursday struck down a San Diego city charter amendment adopted in March 2002 that would have required a two-thirds vote to approve any future increase in general taxes in the city.

State law already requires a two-thirds vote to impose or increase a tax levied for a specific purpose.

The measure, Proposition E, was backed by the Howard Jarvis Taxpayers Association and the Libertarian Party. After the measure qualified for the ballot, the City Council placed a countermeasure, Proposition F, before the voters.

Proposition F would have invalidated any measure, including Proposition E, requiring a supermajority vote for subsequent ballot measures unless the current measure achieved the same supermajority vote.

Proposition E achieved 54.4 percent voter approval; Proposition F was backed by 50.3 percent. The City Council declared that Proposition F was now part of the charter and that Proposition E had been rejected because it failed to achieve a two-thirds majority.

Backers of Proposition E filed suit against the city, claiming that Proposition F was invalid. The city cross-complained, challenging the validity of Proposition E.

San Diego Superior Court Judge J. Richard Haden ruled that Proposition F was valid only insofar as it applied to ballot measures other than charter amendments. As to charter amendments, Haden ruled, the measure was preempted by Art. XI, Sec. 3 of the state Constitution.

That section requires that a city or county charter obtain majority voter approval, and provides that a charter may be amended “in the same manner.”

Haden ruled in the alternative that even if Proposition F could be applied to charter amendments, it could not be given retroactive effect so as to invalidate Proposition E. The judge also ruled that Proposition E did not require a supermajority to amend the charter, only to increase taxes, and was thus not preempted by Art. XI, Sec. 3, or by the state statutory scheme for amending city charters.

But Justice Gilbert Nares, writing for the Court of Appeal, said Proposition E necessarily applies to charter amendments and is to that extent invalid under the constitutional provision and related statutes.

“[A]rticle XI, section 3(a) grants voters the right to amend a city charter by majority vote,” Nares explained. “Thus, to the extent a general tax may be imposed or increased by charter amendment, there is a present conflict between Proposition E, which purports to require a two-thirds vote for the approval of such an amendment, and article XI, section 3(a), which requires only a simple majority vote.”

Nares also concluded that where a tax increase does not require a charter amendment, it still cannot be subjected to a supermajority requirement because of Proposition 218, a measure sponsored by the Jarvis association.

Proposition 218, the Right to Vote on Taxes Act, requires counties and cities, including charter cities, to obtain a majority vote of the electorate to impose new general taxes or to increase or extend existing general taxes. 

The justices rejected the contention that as a taxpayer protection measure, Proposition 218 prohibits a city or county from raising general taxes without at least a simple majority vote, but does not preclude a local entity from imposing a supermajority requirement.

That interpretation is contrary to the plain language of Proposition 218, Nares said.

The case is Howard Jarvis Taxpayers Association v. City of San Diego, 04 S.O.S. 3472.


Copyright 2004, Metropolitan News Company