Measure P, the 2018 sales tax initiative for parks, may not have failed after all.
Last November, 52% of Fresno voters favored it. However, voters were told it needed two-thirds approval to pass. Thus, the measure failed.
Or did it?
An attorney, on behalf of Measure P advocate Fresno Building Health Communities, wrote a letter to Mayor Lee Brand, noting that based on a recent court decision, the city should consider Measure P approved.
As first mentioned in GV Wire back in August, tax measures need two-thirds’ approval if they go for a specific purpose, such as parks in the case of Measure P. However, a 2017 state Supreme Court ruling in the Upland case, opened the door to a lower standard for approval if the ballot measure was brought forth by citizen petition.
And that’s what happened with Measure P. Backers qualified it for the ballot by collecting 27,623 verified signatures — 4,000 more than legally required.
Attorney Lance Olson of Sacramento, sent Brand a letter, dated Jan. 23, reasoning that because of the Upland case and interpretations from other jurisdictions, Measure P should have passed.
“We believe this conclusion (of Measure P failing) is based on erroneous interpretation of the law and request that the City declare that Measure P was, in fact, approved by the voters,” Olson wrote.
Olson requests the city “immediately begin negotiations with the California Department of Tax and Fee Administration” to start collecting the sales tax. It gives the city a Jan. 31 deadline to respond “so that my client may determine if litigation is an appropriate recourse.”
But, tax advocacy groups disagree with Olson’s legal reasoning.
“The attorney in this case seems to be trying to stretch the Upland case to reach a decision it didn’t actually reach,” said David Kline, spokesman for the California Taxpayers Association.
Kline says it would be inherently unfair to changes the voting rules after the fact.
“It’s breaking the will with the voters. The ballot accurately described it as a two-thirds vote measure. It didn’t get two-thirds vote. Therefore, it failed. It’s just that simple,” Kline said
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Brand emailed GV Wire his reaction through his communications department.
“We received a letter from their attorney late yesterday afternoon and while we are consulting with our legal department to understand our options, it has been and will continue to be our policy not to comment on pending or threatened litigation,” Brand said.
He is worried this latest action will be divisive.
“However, I believe this action will make it much more difficult, if not impossible, to unify the community in support a balanced measure that not only seeks to remedy our deficiencies in parks, but also in public safety and many other areas where the City does not have sufficient resources to provide the necessary services our residents deserve and need,” Brand continued.
Measure P Recap
The three-eighths of a cent sales tax would be dedicated to Fresno parks and related programs. The contentious campaign pitted parks and social justice advocates against Brand, public safety advocates and some in the building development community.
Darius Assemi, president of Granville Homes, opposed Measure P. Assemi is the publisher of GV Wire.
Despite spending millions, the Yes on P side, headed by former Mayor Ashley Swearengin, fell short of the two-thirds threshold cited by the city and set by Proposition 218, a voter-approved law passed in 1996 that set rules for raising taxes.
There was a legal skirmish heading into the election, when Yes on P advocates revealed that the city sent the incorrect ballot language to the county election office. In a settlement, the city agreed to mail postcards with the correct language to all registered city voters.
Bitter feelings linger. Fresno Building Healthy Communities president and CEO Sandra Celedon wrote a scathing op-ed for The Fresno Bee, saying Brand sold out the community.
“Brand lied to undermine Measure P and then lied that police and fire would suffer if it passed,” Celedon wrote.
Measure P advocates said that No on P’s main message — dedicating tax dollars to parks would take away from public safety — was a false narrative.
BHC’s Independent Action
Larry Powell, the former county superintendent and one of the public faces of the Yes on P campaign, says BHC sent the legal letter to the city independently of the committee as a whole.
In a statement, though, the committee seems to support the idea.
“Fresno Building Healthy Communities was instrumental in the ‘Yes On P’ campaign and has been a leading voice for Fresno’s parks and youth for many years, so it is no surprise to us that this group has come forward with a request for action on the approval of Measure P. There are probably community groups across the state who are looking to the courts at this time for clarification on requirements for citizen-led campaigns, and Fresno is no different. While our campaign has not taken its own legal action at this time, we are supportive of Fresno BHC’s decision to take this next step and await the courts decision on this critical issue for community groups across California,” said campaign spokeswoman Natasha Biasell by email.
But, Upland’s interpretations are up for debate.
In that 2017 court case, advocates for a cannabis tax initiative in the city of Upland (San Bernardino County) collected enough signatures to compel the city council to put the item in front of voters. However, there was an issue over the timing of the election.
That disagreement led to the ruling from the state Supreme Court, at least on that specific issue: Prop. 218 only applies to tax initiatives borne of a city council decision to place it on a ballot, and not to the signature gathering process.
The ruling did not directly answer the question of whether that applied to the two-thirds standard as well.
But, as noted in Olson’s letter to the city, San Francisco officials deemed that tax initiatives last year receiving more than 50% but less than two-thirds had passed. The two initiatives, both Measure C (one in June, one in November) were similar to Fresno’s Measure P in that they were placed on the ballot via petition and would raise a tax for a specific purpose.
The Howard Jarvis Taxpayers Association filed suit over the June measure. That case is the preliminary process in San Francisco Superior Court.
HJTA Resolve in its Stance
Laura Murray, HJTA attorney, feels confident Measure P’s result will not change.
“Since Measure P had a special purpose, the City of Fresno was correct to declare that it required a 2/3 vote. Upland did not change this requirement,” Murray said.
“In fact, the Upland court expressly declined to take up the issue mischaracterized as a holding in the letter (sent by BHC’s attorney),” Murray continued.
Murray said more problems could arise if the Measure P’s results do change.
“It poses a second legal problem if the City declared in the ballot materials that a 2/3 vote was required, but then backtracks. Voter behavior may be affected, and in any event, the ballot materials cannot be misleading,” Murray said.
The Lincoln Club’s Mike Der Manouel Jr., who opposed Measure P, is ready for battle.
“Given that the opposition campaigns were designed to produce a 34%, not a 51% no vote, we (the Lincoln Club) would join any litigation against the declaration of passage of Measure P,” Der Manouel said.
He added that many other jurisdictions in the state would join Fresno’s side if it goes to court.