The Fresno City Council wants clarity on whether or not Measure P was approved by voters.
Despite a 52% favorable vote for the proposed parks tax last November, city attorney Douglas Sloan interpreted state law as requiring a two-thirds majority for passage.
By a 4-3 vote in closed session on Thursday (Jan. 31), the council directed Sloan to seek advice from a higher authority by filing a declaratory relief action in Fresno Superior Court.
According to Black’s Law Dictionary, declaratory relief (also referred to as declaratory judgment) is “a court decision in a civil case that tells the parties what their rights and responsibilities are, without awarding damages or ordering them to do anything.”
“Progressives up and down the state are trying to create new law out of whole cloth. We strongly believe they will be unsuccessful.”—Jon Coupal, Howard Jarvis Taxpayers Association
Council members Miguel Arias, Luis Chavez, Nelson Esparza and Esmeralda Soria voted for the legal measure; Garry Bredefeld, Paul Caprioglio and Steve Brandau voted no.
Advocates File Lawsuit
“If a majority of residents want to tax themselves for a specific purpose, the have the right to that conclusion, Arias said. “There is a lack of clarity. It is in our best interests for the courts to weigh in and provide a final direction.”
Meanwhile, Fresno Building Healthy Communities filed a lawsuit in Fresno Superior Court on Friday (Feb. 1) the Fresno Bee reports, declaring that 52% should be enough for the city to rule the measure as approved.
Measure P, if enacted, would raise the city’s sales tax by three-eighths of a cent for a 30 year period. The proceeds, estimated at $38 million a year, would toward parks and related programs.
“We cannot let the City of Fresno disregard the voices of residents and young people who have led the #Parks4All movement for the last several years,” said Sandra Celedon, president and CEO of Fresno BHC, in a group newsletter. “The law is clear, citizen-led initiatives, like Measure P, require a simple majority and a majority of Fresnans support more and better parks.”
Mayor Lee Brand, who led the effort to oppose Measure P, released this statement:
“It may take three years or longer for this case to be finally settled by the California Supreme Court and in the meantime, the people of Fresno will suffer. I will work to make sure that our residents don’t have to.”—Mayor Lee Brand
“We received a copy of the lawsuit this morning and I am aware of the Council’s request for clarification from the Court on Measure P.
“The authors and proponents of Measure P told voters it would take a two-thirds vote to adopt the tax. Now they want a court to change the rules after the election and say that a bare majority outweighs the California Constitution, as modified by Proposition 218, which was passed by the voters in 54 of 58 counties in the state in 1996.
“I also believe this action will make it much more difficult to unify the community in support of 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 need and deserve.
“It may take three years or longer for this case to be finally settled by the California Supreme Court and in the meantime, the people of Fresno will suffer. I will work to make sure that our residents don’t have to.”
Challenge Stems from Upland Case
Voters passed Proposition 218 in 1996 establishing how taxes could be raised in California. As it pertains to Measure P, Proposition 218 said a tax directed toward a specific purpose would need two-thirds of voters to approve through an election.
A 2017 state Supreme Court case ruled that some provisions of Prop 218 didn’t apply to taxes placed on the ballot by the initiative process, also like Measure P.
The decision in the Upland case answered a specific question of when a special tax election would take place. Though the decision did not rule whether such a special tax needed a majority or two-thirds vote to pass, the Court majority weighed in on the question.
Majority Opinion Raises Questions
Writing for the majority, Justice Mariano-Florentino Cuéllar made a distinction between government-proposed taxes and citizen-led efforts.
“Multiple provisions of the state Constitution explicitly constrain the power of local governments to raise taxes,” he wrote. “But we will not lightly apply such restrictions on local governments to voter initiatives, ‘one of the most precious rights of our democratic process,” he said.
Some jurisdictions, such as the City and County of San Francisco, interpreted the Supreme Court’s ruling to mean only a majority was needed for initiative based tax measures. Voters approved a special tax measure in June 2018 with less than two-thirds.
The Howard Jarvis Taxpayers Association challenged that ruling, suing in superior court. It is currently working its way through the legal system.
Jon Coupal, president of HJTA, said it’s wrong to rely on the Upland decision.
“Progressives up and down the state are trying to create new law out of whole cloth. We strongly believe they will be unsuccessful,” Coupal said.
Coupal said they have also filed a similar suit in Oakland, and would consider jumping into the Fresno action.