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Judge Affirms Two-Thirds Vote Requirement for Local Special Taxes, Strikes Down Oakland’s Measure AA
On October 15, Judge Ronni MacLaren of the Alameda County Superior Court ruled that Oakland’s Measure AA, voted on in November 2018, is invalid and unenforceable, primarily because it violates two of California’s landmark tax reform measures, Proposition 13 and Proposition 218.
Both measures require that local “special” taxes—taxes that are earmarked for specific purposes, rather than general governmental expenditures—require a two-thirds vote of the electorate to pass. Historically, that requirement has been understood to include taxes that are proposed by a voter-circulated initiative petition.
In 2017, however, the California Supreme Court decided Cannabis Coalition v. City of Upland, 3 Cal. 5th 924 (2017), which held that a provision of Proposition 218 that requires elections on general taxes to take place at regularly scheduled elections does not apply to voter-proposed measures.
Though the Upland decision did not address Proposition 13 or the vote-threshold for special taxes under Proposition 13, two jurisdictions—Oakland and San Francisco—read the decision aggressively as exempting voter initiatives from the two-thirds vote requirement as well. Measure AA received a majority of the vote last November, but not two thirds, and the Oakland City Council declared it passed.
The Jobs & Housing Coalition and several individual plaintiffs, represented by Nielsen Merksamer, challenged the Council’s action. Judge MacLaren agreed that Upland is limited to the specific issue that case addressed, and that the two-thirds vote requirement remains applicable to voter-circulated measures under Propositions 13 and 218.
She is the second judge so far to reach this conclusion. In early September, a judge in the Fresno Superior Court upheld the position of the Fresno City Council that a special tax measure receiving a majority vote last November, but not two-thirds, could not be enforced. A judge on the San Francisco Superior Court reached the opposite conclusion in July with respect to two measures voted on in that City. The San Francisco rulings are currently subject to pending appeals.
Judge MacLaren also ruled that additional provisions of Proposition 218 that are uniquely applicable to parcel taxes, like Measure AA, further bolstered the conclusion that the two-thirds vote applied, and that because the City Attorney and City Auditor had expressly informed voters that a two-thirds vote was required, the Council couldn’t take it back after the election.