The city of Fresno owes a Measure P backer hundreds of thousands of dollars, an appeal court ruled this week.

Lawyers representing the city unsuccessfully argued that Fresno’s municipal government did not oppose the measure and thus should be off the hook.

The 3-0 ruling by the Fresno-based Fifth District Court of Appeal said the city owes Fresno Building Healthy Communities $362,835.75 — and likely more with the added cost of the appeal. The case stems from a November 2018 ballot measure that earned 52.17% support for a sales tax measure for parks and the arts.

“Despite the City’s arguments to the contrary, it is clear that without the active participation of FBHC in this case, the City’s failure to declare Measure P passed would never have been litigated and determined to be incorrect. This is precisely the situation Code of Civil Procedure section 1021.5 was intended to address, and to not award reasonable attorney fees in this case would be contrary to its mandate,” Justice Mark Snauffer wrote, with justices Rosendo Pena Jr. and Kathleen Meehan concurring.

Although a majority of voters supported the proposal, the city declared at the time it needed two-thirds to pass — interpreting the accepted threshold for tax measures at the time. Thus, the Fresno City Council declared that Measure P failed.

Measure P supporter Fresno BHC sued, winning the argument on appeal that because the tax measure came to voters through an initiative process, the two-thirds requirement did not apply. The city began collecting the three-eighths of a percent tax in 2020.

Mayor Jerry Dyer’s office deferred comment to City Attorney Andrew Janz — who declined to comment on pending litigation. Messages to Fresno BHC and its attorneys were not returned.

The city could appeal the ruling to the state Supreme Court. That decision would come from the city council.

Battle Over Court Fees

The state Code of Civil Procedure 1021.5 allows a prevailing party to collect attorney fees. The city opposed Fresno BHC’s motion to recover, arguing mainly that the city was not an opposing party — the Howard Jarvis Taxpayers Association argued the case against Measure P. The city took a neutral position during the Measure P litigation.

Fresno County Superior Court Judge Kimberly Gaab ruled in the city’s favor. Once again, Fresno BHC appealed. Through a prior arrangement, Fresno BHC and HJTA agreed not to seek attorney fees from each other.

The Court of Appeal was not moved by the argument of neutrality.

“The City’s purported neutrality during litigation does not neutralize the City’s failure to declare Measure P passed, an error of constitutional dimension affecting the public interest. In this same vein, the City was clearly a losing party because new judgments were ultimately entered declaring that the City erred in failing to declare that Measure P had passed,” the appeal court wrote.

The appeal court also did not buy the city’s argument that Fresno BHC’s efforts were unnecessary, because the city sought judicial relief to answer the question of whether Measure P passed.

The appeal court wrote that the Superior Court’s ruling “that FBHC’s participation here was unnecessary was an abuse of discretion.”

In addition, the appeal court stated: “This argument implies that FBHC could have chosen not to participate and the ultimate result here would have been the same — that is, Measure P would have been declared passed. The record shows this is false. The City filed statements of neutrality in the trial court and in this court in the first appeal. Thus, without FBHC, there would have been no one to zealously argue the side against HJTA. And even with FBHC’s participation, HJTA still prevailed in the trial court.

“The City would not — and indeed did not — appeal the judgments declaring Measure P had failed. Had FBHC not participated in the trial court proceedings, it would not have had standing to appeal the erroneous judgments — no one could have appealed the erroneous judgments. FBHC also handled all of the appellate briefing for the pro-Measure P side, so to speak.”

If the case is not appealed to the Supreme Court, it would return to Fresno County Superior Court to determine the final attorney fees.