A state appeals panel has ruled a San Diego ballot measure increasing pillow taxes needed only a simple majority to pass, so long as it can be proven to come from citizens and not the city.
When city officials put Measure C before voters in March 2020, an attempt to raise occupancy taxes on overnight lodging facilities to generate revenue for upgrading a convention center, repairing streets and addressing homelessness, the ballot materials and ordinance regarding the question stipulated a two-thirds passage threshold.
Measure C itself did not reference that elevated standard, according to court records, and by March 2020 at least two San Francisco trial courts had held only a simple majority was needed to pass a citizens’ initiative. Voters supported the measure at 65.24%, just shy of the two-thirds mark. The following month the city adopted a resolution recording the votes and acknowledging the confusion, but not stating whether Measure C passed or failed.
In April 2021, after multiple appellate court rulings concerning other citizen initiatives, the city declared Measure C had passed and authorized funding under its terms. That led Alliance San Diego to seek a court order invalidating the resolution declaring Measure C passed.
The Howard Jarvis Taxpayers Association moved for judgment on the pleadings, which San Diego County Superior Court Judge Kenneth Medel granted, concluding the two-thirds threshold applied.
The city and Yes! For a Better San Diego, a committee that backed Measure C, asked the California Fourth District Appellate Court to review the ruling.
“Case law addressing this issue confirms that citizens’ initiatives imposing special taxes need to be approved only by a simple majority,” Huffman wrote.
Although initial materials referenced the two-thirds benchmark, the measure itself did not, and the panel didn’t find that confusion determinative.
“The opponents do not contend voters did not receive impartial information about the substance of Measure C, including where the proceeds would be distributed,” Huffman wrote. “They also do not contend the misinformation about the voter threshold struck at the measure’s very purpose. The misinformation occurred only above the measure’s official title and summary and in the ballot summary.”
The panel also said the city counted all the votes cast and didn’t find evidence the possible confusion about the passage threshold would’ve caused an opponent to not vote against Measure C. It further refused to find the 12-month delay in determining the measure had passed didn’t violate state law.
On appeal, the Howard Jarvis Taxpayers Association argued Measure C violated Proposition 219, an amendment to the California Constitution, because it created three distinct tax rates based on geography rather than one applied to all overnight lodging businesses. The city and committee argued Proposition 219 only requires governments to apply ballot measure provisions regardless of where supportive or opposing votes originated.
The panel rejected the Association’s reading of Proposition 219 as incomplete and said Measure C’s tax rates aren’t influenced by which areas voted in which fashion, nor is the revenue distributed based on vote totals.
Although the panel reversed Judge Medel’s summary judgment, it remanded the matter for further consideration in light of the California Taxpayers Action Network’s claim Measure C was not a citizen initiative but instead “was a negotiated, sponsored, supported and promoted city-sponsored initiative,” which would demand the two-thirds threshold apply.
CTAN’s argument is based on the role of Jaymie Bradford, the executive vice president and COO of the San Diego Regional Chamber of Commerce who was a principal organizer and treasurer of Yes! For a Better San Diego, while also being a board member of the San Diego Convention Center Corporation, “a wholly-owned subsidiary of the city,” per Huffman.
The panel said CTAN tried to depose Bradford and the chamber’s records custodian but the city moved to quash the subpoenas. Judge Medel didn’t rule on that motion or consider whether Measure C was a citizen- or city-led effort, so the panel instructed the court to consider that question on remand, writing “too much government involvement can mean an initiative is really presented by the local government” and saying CTAN’s affirmative defense is too underdeveloped for consideration at the appellate level.
San Diego was represented by City Attorney Mara Elliot, Assistant City Attorney Travis Phelps and Deputy City Attorney Tyler Krentze.
Representing Yes! For a Better San Diego were Colantuono, Highsmith & Whatley attorneys Michael Colantuono, Matthew Slentz, Abigail Mendez and Vernetra Gavin.
Alliance San Diego, Isidro Ortiz and Michael McConnell are represented by Fredric Woocher and Julia Michel, of Strumwasser & Woocher.
Briggs Law Corporation attorneys Cory Briggs and Janna Ferrar represented the California Taxpayers Action Network, Donna Frye and Project for Open Government.
Jonathan Coupal, Timothy Bittle and Laura E. Dougherty represented the Howard Jarvis Taxpayers Association.