Two days after hearing oral arguments, an appellate court ruled in favor of a Fresno sales tax that seemingly was defeated two years ago.
“Measure P has passed,” Justice Mark Snauffer wrote in the 3-0 ruling by the California Fifth District Court of Appeal.
The decision will almost be assuredly appealed to the state Supreme Court. However, it is unknown if the Supreme Court will hear the case.
In November 2018, Fresno voters seemingly rejected Measure P, a three-eighths of a cent sales tax that was set to raise an estimated $38 million for parks and other programs.
While the vote received 52.17%, it was less than a two-thirds majority required under the city of Fresno’s interpretation of the law.
Local nonprofit agency Fresno Building Healthy Communities, then filed a lawsuit hoping to change the outcome. They lost in superior court, but now have won their appeal.
On Thursday, the appeal judges said that Measure P needed only a simple majority to win approval.
The case will now technically head back to the Fresno County Superior Court to enter judgment that the sales tax initiative has passed.
Dyer Says Time to Support
Fresno Mayor-elect Jerry Dyer has changed his view on Measure P.
In 2018, as police chief, Dyer campaigned against Measure P, concerned on its effect on the public safety budget.
“It is time for us to come together as a community and support the results of Measure P. 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,” Dyer said today.
Appeal Court Agrees With Other Ruling
The main question argued on Tuesday was what is the proper voting standard for a specific tax when placed on the ballot by initiative?
Prior interpretations of the law based on two California propositions — Proposition 13 of 1978 and Proposition 218 of 1996 — set the threshold at two-thirds.
A 2017 state Supreme Court ruling — California Cannabis Coalition v. City of Upland — weakened the rules on petition-based initiatives but did not answer directly the voting threshold.
Snauffer’s 22-page decision followed a similar ruling from the San Francisco-based First District Court of Appeal, that answered a nearly identical question on a similar tax measure in San Francisco.
“We fully agree with and endorse the holdings and reasoning of All Persons, and find that case controls the outcome here. We reverse, and in doing so we quote liberally from All Persons,” Snauffer wrote.
All Persons is the name of the San Francisco case, where the appellate court there decided that just a simple majority is needed when a tax question in front of voters is placed by petition, such as Measure P.
Tim Bittle, attorney for the Howard Jarvis Taxpayers Association — the intervening party that argued the case — argued that the two-thirds should be the standard.
“According to this interpretation, the people, in exercising their initiative power, are required also to muster a two-thirds vote to enact a special tax, even though there is no express mention of the initiative power,” Snauffer wrote, quoting the All Persons case.
The Fresno appeal court disagreed with HJTA. It ruled that tax questions placed on the ballot by “the electorate” is distinct from being placed by the government, thus not restricted by the two-thirds voting threshold.
Bittle made an argument that the lower threshold for an initiative-based tax question could create a “loophole” from what propositions 13 and 218 ordered.
Snauffer surmised the argument as creating “a playground for mischief.” But, he avoided ruling on that aspect.
“This is a concern that should be addressed to the Legislature, as our
limited function as a court is to construe the texts of Propositions 13 and 218 in the factual context presented here,” Snauffer wrote.
Bittle says HJTA will appeal.
“I plan to ask the Court for reconsideration, I cannot comment on the decision at this time,” Bittle said.
Snauffer was joined in his decision by Rosendo Peña Jr. and Donald Franson Jr.
City to Decide Measure P’s Future in January
City Council president Miguel Arias says the city council will discuss the future of Measure P when it returns from its recess on Jan. 7.
The council will discuss whether to start implementing the tax immediately.
The Fresno Court of Appeal’s ruling also granted Fresno BHC legal fees. The council will also discuss who may responsible for such fees.
Councilwoman Esmeralda Soria, herself an attorney, said the state Supreme Court may decide not to hear the case, because there is no disagreement from two separate appeal courts.
City Initially Ruled Two-Thirds Needed
When the city council received the petition and voted to place it on the ballot in August 2018, the interpretation from City Attorney Doug Sloan was that it needed two-thirds to pass.
In the legal proceedings since, the council voted to stay neutral, awaiting court rulings on Measure P’s fate.
Michael Der Manouel Jr., a Fresno businessman who supported the No on P campaign, says they would have campaigned differently if the knew they needed a majority to defeat.
“It changes the election rules after the election. You run opposition campaigns to get a certain number of no votes. If the No on P campaign knew the number of votes necessary to defeat Measure P, it would have run a different campaign,” Der Manouel Jr. said.
Bredefeld Criticizes Ruling
Councilman Garry Bredefeld is concerned the implementation of Measure P will “burden” taxpayers.
The citizens of Fresno wisely rejected Measure P because it was a fiscally reckless tax scheme that required a 2/3 vote to pass,” Bredefeld said by email.
Measure P, as passed, lasts for 30 years, and creates a nine-person advisory board. The language also calls for specific formulas on how to spend the money and priority as to where to build parks.
“Measure P will result in nine unelected, unaccountable people to oversee what will be the taking of $2 BILLION from our citizens over 30 years. Not one penny goes to public safety or infrastructure,” Bredefeld said. “Our focus and resources must remain on increasing public safety, helping our businesses that have been destroyed by government, fixing our roads, and dealing with homelessness.
“Raising taxes, taking more of people’s hard-earned money, creating more government bureaucracy and not focusing on Fresno’s real priorities will only hinder those efforts and further hurt our citizens who are already struggling,” Bredefeld said.
“This is an early Christmas gift for Fresno,” Arias said.
Other supporters expressed their satisfaction on Twitter.
“Measure P passed. Young people win! Democracy wins!” Fresno BHC said on its Twitter account.
“What a win for democracy,” Veronica Garibay, co-director of the Leadership Counsel for Justice and Accountability tweeted.
THIS. So many years, so much heart & grit by youth and resident leaders. Don’t ever underestimate organizers.
What a win for democracy. pic.twitter.com/QXsfuvtf9z
— Veronica Garibay (@vgaribay19) December 17, 2020