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Greene v. Marin County Flood Control and Water Conservation Dist.

March 11, 2009


(Marin County Super. Ct. No. CV 073767). Trial Judge Honorable Lynn Duryee.

The opinion of the court was delivered by: Dondero, J.*fn20


A county flood control and water conservation district held an election on whether to impose a new storm drainage fee. The election was mandated by article XIII D of the California Constitution, which was adopted by voter initiative in 1996 as Proposition 218. In the district‟s election, voters‟ names and addresses were printed on the ballots and voters were directed to sign their ballots. The fee was approved. However, a voter contested the election, claiming the election procedures violated the voting secrecy requirement of article II, section 7 of the California Constitution. The superior court denied the election contest.

This appeal requires us to construe article XIII D and specifically article XIII D, section 6, subdivision (c)*fn1 , which imposes the election requirement for certain new or increased real property fees. We conclude the voters who adopted Proposition 218 intended voting to be secret in these fee elections. We set aside the district‟s election results because voters‟ names were printed on the ballots and ballots had to be signed, yet voters were provided no assurances that their votes would be kept secret.


In 1996, voters approved Proposition 218 to close perceived loopholes in the restrictions on property taxes imposed by Proposition 13.*fn2 (Apartment Assn. of Los Angeles County, Inc. v. City of Los Angeles (2001) 24 Cal.4th 830, 838-839 (Apartment Assn.); Howard Jarvis Taxpayers Association v. City of Riverside (1999) 73 Cal.App.4th 679, 681 (Riverside).) Proposition 13 limited ad valorem property taxes to 1 percent of a property‟s assessed valuation, limited increases in assessed valuation to 2 percent per year unless and until the property changed hands, and "prohibited counties, cities, and special districts from enacting any special tax without a two-thirds vote of the electorate." (Riverside, at p. 681-682; Cal. Const., art. XIII A*fn3 .) In 1992, the Supreme Court held that a property assessment*fn4 was not a special tax within the meaning of Proposition 13. (Knox, supra, 4 Cal.4th at p. 141.) According to the proponents of Proposition 218, Knox created a loophole in Proposition 13‟s voter approval requirements, which local governments subsequently exploited to a degree that assessments were " "limited only by the limits of the human imagination.‟ "*fn5 (Ballot Pamp., General Election (Nov. 5, 1996) argument in favor of Proposition 218, p. 76.)

Proposition 218 added articles XIII C and XIII D to the Constitution. (Riverside, supra, 73 Cal.App.4th at p. 682.) Those articles "allow[] only four types of local property taxes: (1) an ad valorem property tax; (2) a special tax; (3) an assessment; and (4) a fee or charge." (Ibid.) Article XIII C imposes restrictions on general and special property taxes in addition to those imposed under article XIII A. Article XIII D restricts property assessments, and fees or charges.*fn6

For new or increased property assessments, article XIII D requires agencies to obtain an engineer‟s report on the assessment and mail detailed notice to affected property owners, explaining the reason for and the method of calculating the assessment and identifying the amount chargeable to the owner‟s particular parcel. (Art. XIII D, § 4, subds. (b), (c).) The notice must provide the date, time, and place of a public hearing on the assessment, include a ballot "whereby the owner may indicate his or her name, reasonable identification of the parcel, and his or her support or opposition to the proposed assessment," and conspicuously describe the procedures for tabulation of those ballots. (Art. XIII D, § 4, subds. (c), (d).) When tabulated at the public hearing, the ballots are weighted according to the proportional financial obligation of each affected parcel. (Art. XIII D, § 4, subd. (e).) If a majority of the weighted ballots oppose the assessment, it may not be imposed. (Ibid.)

For new or increased property-related fees, the initiative also requires detailed mailed notice to affected property owners, explaining the proposed fee and announcing a public hearing. (Art. XIII D, § 6, subd. (a)(1).) However, no formal balloting is required at this stage of the process. (Ibid.) Instead, "[a]t the public hearing, the agency shall consider all protests against the proposed fee or charge. If written protests against the proposed fee or charge are presented by a majority of owners of the identified parcels, the agency shall not impose the fee or charge." (Art. XIII D, § 6, subd. (a)(2).) If a majority protest does not occur, the fee (with some exceptions not relevant here) still may not be "imposed or increased unless and until that fee or charge is submitted and approved by a majority vote of the property owners of the property subject to the fee or charge or, at the option of the agency, by a two-thirds vote of the electorate residing in the affected area." (Art. XIII D, § 6, subd. (c) (section 6(c)).) Critical to the issues raised in this appeal, the initiative provides: "An agency may adopt procedures similar to those for increases in assessments in the conduct of elections under this subdivision." (Ibid.)

In July 1997, the Legislature enacted the Proposition 218 Omnibus Implementation Act. (Stats. 1997, ch. 38.) The Act prescribes detailed procedures for the imposition or increase of assessments. (Gov. Code, § 53753; enacted by Stats. 1997, ch. 38, § 5; amended by Stats. 2000, ch. 220, § 1; amended by Stats. 2001, ch. 636, § 1; amended by Stats. 2007, ch. 670, § 113.) These procedures require "assessment ballots" to be signed. (Gov. Code, § 53753, subd. (c).) The ballot must be "in a form that conceals its contents once it is sealed by the person submitting the assessment ballot" and, once received by the agency, must "remain sealed until the tabulation of ballots . . . commences." (Ibid.) However, during and after the tabulation, the ballots are "disclosable public records . . . equally available for inspection by the proponents and the opponents of the proposed assessment." (Gov. Code, § 53753, subd. (e)(1).) Finally, the statute expressly provides that the tabulation of assessment ballots (described in § 53753, subd. (e)) "shall not constitute an election or voting for purposes of Article II of the California Constitution or of the California Elections Code." (Id., subd. (e)(4).) The implementation legislation does not prescribe detailed procedures for fee elections under article XIII D, section 6(c). Significantly, this 1997 Act does not expressly prescribe detailed procedures for fee elections under article XIII D, section 6(c).

Marin County Storm Drainage Fee

In 2007, the Marin County Flood Control and Water Conservation District (District) proposed a new storm drainage fee to be imposed on the owners of property within Zone 9 (Ross Valley) of the district, which includes the communities of Greenbrae, Larkspur, Corte Madera, Kentfield, Ross, San Anselmo, and Fairfax. The purpose of the fee was to partially fund a flood protection plan, which involved the removal of constrictions in creeks that drain water from the area and the addition of detention basins upstream from those creeks to hold back or slowly release water. The area had a 50-year history of chronic flooding, which included a flood on or about December 31, 2005 that displaced residents, closed down businesses, and caused an estimated $100 million in property damage. The flood protection plan and proposed fee were developed after months of collaboration among municipalities, government agencies, and community organizations. Intervenors Flood Mitigation League of Ross Valley and Friends of the Corte Madera Creek Watershed participated in this process.*fn7

In February 2007, the District‟s director recommended a drainage system fee methodology. The District‟s board of supervisors (Board) approved the methodology and directed preparation of an engineering report, which was completed in March. Legal counsel for the District drafted procedures for mailed notice, conduct of a public hearing, and tabulation of written protests at that hearing (Written Protest Procedures). The Written Protest Procedures stated they were adopted "for the purposes of assuring compliance with the requirements of Section 6" of article XIII D.

On the director‟s recommendation, the Board accepted the final engineer‟s report, adopted the Written Protest Procedures, scheduled a public hearing on the fee for May 1, 2007, and directed the mailing of notices to affected property owners. On May 1, the Board declared by resolution that there was no majority protest at the public hearing and it called a "special election" on the fee "to be held on Monday, June 25, 2007, solely by mailed ballot, pursuant to and in accordance with Section 6 and the procedures . . . attached hereto." Those procedures (Election Procedures) provided that the "mail ballot election shall constitute an election for the purposes of Section 6 of Article [XIII D] of the California Constitution . . . [and shall] be conducted in substantial compliance with the requirements of the California Elections Code to the extent feasible, and otherwise in accordance with these procedures." The procedures designated the clerk and deputy clerk or clerks to conduct the election, who would be the only persons to have access to the ballots, and prohibited them from disclosing any individual‟s vote absent a court order. The procedures required ballots to be signed and specified that unsigned ballots would not be counted.

The ballots actually mailed to voters were pieces of card stock printed on both sides. One side provided voting instructions (instruction side) and the other was used for the actual voting (voting side). The instruction side directed the recipient to follow four steps in order to vote on the proposed fee: 1. Read the enclosed information about the proposed fee; 2. Check Yes or No on the voting side of the ballot; 3. Sign your name and write the date, in ink; and 4. Return the ballot to a specified address by June 25, 2007. The voting side of the ballot was printed with the address of a specific parcel, the amount of the fee that would be charged to that parcel if the fee was approved, and the name and address of the record property owner. It set forth the issue to be voted on, i.e., whether the district should impose the specified fee, briefly described how the fee would be used, and provided check boxes for voters to vote yes or no on the question. Finally, the voting side of the ballot provided a space for the voter to print his or her name and date and sign the ballot over text declaring under penalty of perjury that he or she was authorized to vote on behalf of the identified parcel. The ballots apparently were mailed with an unaddressed return envelope that stated prominently on its face, "OFFICIAL PROPERTY OWNER BALLOT INSIDE."

The official canvass of the votes was 8,059 total ballots cast; 3,208 yes votes; 3,143 no votes; 1,708 invalidated votes. On July 10, 2007, the Board declared that the measure passed. On July 17, 2007, the Board implemented the fee.

Election Contest

On July 16, 2007, "Ford" Greene (Greene), a property owner affected by the fee who voted in the election, demanded a recount of the election results pursuant to Elections Code section 15620. The record does not include any written response to the recount demand or any official declaration of the results of a recount. (See Elec. Code, § 15633 [requiring recount results to "be posted conspicuously in the office of the elections official"].)

On August 9, 2007, Greene filed a "Verified Complaint for an Election Contest" pursuant to Elections Code section 16100 et seq.*fn8 The District answered and pursuant to the trial court‟s authorization, Flood Mitigation League of Ross Valley and Friends of the Corte Madera Creek Watershed filed their complaint in intervention, joining the District in opposing appellant‟s election contest complaint.

As relevant to this appeal, Greene argued that requiring voters to sign their ballots violated article II, section 7, which requires that voting be conducted secretly, and that the form of the ballot violated Elections Code requirements for voting by mail. The District and Intervenors responded that neither article II nor the Elections Code applied to a property fee election conducted under article XIII D, section 6(c) because section 6(c) "specifically allows for property fee elections to mirror the requirements set forth for the conduct of elections in assessment fees." They argued the District‟s fee election complied with Government Code section 53753‟s assessment balloting procedures.

The trial court denied the election contest. It ruled that the election ballot complied with both article XIII D and Government Code section 53753, which required ballots to be signed. The court wrote, "Plaintiff‟s reliance on California Const. Art. II, § 7, and the Election[s] Code requirements for ballots in other types of elections, is misplaced." In doing so, it cited Government Code section 53753, subdivision (e)(4), which provides that those laws do not apply to assessment balloting.


The California Supreme Court has declared that the " "right to a secret ballot . . . is the very foundation of our election system.‟ " (Scott v. Kenyon (1940) 16 Cal.2d 197, 201 (Scott).) It is the "right to vote one‟s conscience without fear of retaliation." (McIntyre v. Ohio Elections Comm'n (1995) 514 U.S. 334, 343; see Burson v. Freeman (1992) 504 U.S. 191, 200-207 (Burson), plur. op. of Blackmun, J. [describing problems of intimidation and electoral fraud that led to adoption of secret ballot by all 50 states].) The right is "an important and valuable safeguard for the protection of the voter, and particularly the humble citizen, against the influence which wealth and situation may be supposed to exercise." (Robinson v. McAbee (1923) 64 Cal.App. 709, 714 (Robinson).) The right to secrecy encompasses not only the right to cast one‟s vote in private (Peterson v. City of San Diego (1983) 34 Cal.3d 225, 230; Wilks v. Mouton (1986) 42 Cal.3d 400, 408, superseded by statute on other grounds as stated in Escalante v. City of Hermosa Beach (1987) 195 Cal.App.3d 1009, 1019; Scott at p. 201), but also the right to maintain the confidentiality of one‟s vote following an election (Scott, at pp. 201, 203; Patterson v. Hanley (1902) 136 Cal. 265, 269-270; Robinson, at p. 714).

At issue here is whether the right to secrecy in voting applies to an "election" to approve a property-related fee conducted pursuant to article XIII D, section 6(c). More specifically, by passing Proposition 218 and therefore voting to require an "election" before agencies could impose certain types of property-related fees-with the important qualification that the agencies could use procedures similar to those for increases in assessments-did the electorate intend that voting would be secret? For the reasons discussed below, we conclude they did. After explaining the basis for this conclusion, we turn to the question whether judgment should have been granted in the District‟s favor on Greene‟s election contest.

I. Standard of Review

The scope of our review in an election contest is no different from that in other appeals: we review factual findings for substantial evidence and questions of law de novo. (Gooch v. Hendrix (1993) 5 Cal.4th 266, 278-279 (Gooch).) The trial court determined that the election contest raised pure questions of law and decided the case based on briefing and argument without holding an evidentiary hearing. Therefore, our review is de novo. (Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 799-800; see also Apartment Assn., supra, 24 Cal.4th at p. 836 [interpretation of article XIII D is question of law].)

II. Article XIII D, Section 6(c) Requires Secret Voting

In construing Proposition 218, "we apply the familiar principles of constitutional interpretation, the aim of which is to "determine and effectuate the intent of those who enacted the constitutional provision at issue.‟ [Citation.] "The principles of constitutional interpretation are similar to those governing statutory construction.‟ [Citation.] If the language is clear and unambiguous, the plain meaning governs. [Citation.] But if the language is ambiguous, we consider extrinsic evidence . . . . [Citations.]" (Silicon Valley Taxpayers' Assn., Inc. v. Santa Clara County Open Space Authority (2008) 44 Cal.4th 431, 444-445 (Silicon Valley).) "To decipher the purpose of an ambiguous statute, a court may consider the ostensible objects to be achieved by the statute, the statutory scheme of which the statute is a part, the ...

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