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Greene v. Marin County Flood Control and Water Conservation District

June 7, 2010


Ct.App. 1/5 A120228 Marin County Super. Ct. No. CV 073767. Judge: Lynn Duryee.

The opinion of the court was delivered by: Moreno, J.

In this case, a flood control district proposed a storm drainage fee to fund improvements intended to prevent flooding and flood damage. Pursuant to article XIII D, section 6 of the California Constitution,*fn1 enacted as part of Proposition 218 in 1996, the fee was voted on by the property owners in the district, and obtained the needed majority. One property owner challenged the legality of the election, a challenge that, after various iterations, came down to this: the ballots were not secret, because the ballot contained on its face the name and address of the voter, and required the voter to sign the ballot, so that inspection of the ballot would reveal how the person voted. Although the procedures enacted by the flood control district provided that the ballots would remain secret before tabulation and would be revealed for inspection after tabulation only pursuant to a court order, it was argued, and the Court of Appeal held, that these measures were insufficient. Although article XIII D is silent on the matter of ballot secrecy, article II, section 7 guarantees a secret ballot in elections, and the Court of Appeal concluded that the latter article was fully applicable to fee elections conducted pursuant to article XIII D, section 6. The Court of Appeal further concluded that secrecy provisions adopted by the district were inadequate, and that, when a voter is asked to vote on a ballot that reveals his or her identity, article II requires that he or she receive explicit assurances that the ballot will remain secret. The Court of Appeal therefore overturned the election result.

We disagree with the Court of Appeal. As explained below, article XIII D, section 6, while incorporating various measures to preserve secrecy, does not incorporate wholesale the ballot secrecy requirements of article II, section 7, and does not require the kind of assurances the Court of Appeal opinion contemplated. We therefore reverse the Court of Appeal and reinstate the election result.


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 of the District (Ross Valley), which includes all or part of Larkspur, Ross, San Anselmo, Fairfax, and surrounding communities. The area had a 50-year history of chronic flooding, which included a flood on or about December 31, 2005, that allegedly caused over $100 million in damage. According to the Storm Drainage Fee Report (Report) authorized by the District, this was a 100-year storm, meaning there was a 1 percent chance that a storm of that severity would happen in a given year. The area had also experienced 100-year storms in 1982 and 1986. Much of Ross Valley, according to the Report, provides only for five-year flood protection, meaning that it could be overwhelmed by a storm that has a 20 percent chance of occurring in a given year.

In response to the threat of future storm damage, various government officials and citizen groups developed a proposal for a fee to fund flood control improvements. The proposal, articulated in the Report, prescribed measures such as removing various constrictions that block the creeks and adding upstream detention basins to hold and release water gradually. The Report arrived at a cost estimate for these improvements and devised a fee methodology, with the amount of the fee a property owner would be required to pay varying according to the size and type of the parcel. Intervenors Flood Mitigation League of Ross Valley and Friends of the Corte Madera Creek Watershed participated in this process.

The District's board, the Marin County Board of Supervisors (Board), accepted the Report, adopted written protest procedures pursuant to article XIII D, section 6, scheduled a public hearing on the fee for May 1, 2007 at which protests to the fee election could be registered pursuant to article XIII D, section 6, subdivision (a), 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 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."

The ballot mailed by the District to property owners consisted of card stock that stated the instructions for filling out the ballot on one side and the actual ballot on the other. The instructions specified that the ballots were to be signed. The actual ballot contained the name and address of the property owner, the exact amount of the annual fee to be imposed on the property owner, the statement of the question to be voted on, yes and no check boxes, and designated spaces for the voter's printed name, signature, and the date.

An Exhibit A to the District Board's resolution adopted local rules for the election. Those rules provided that the election was to be conducted by mail, that the Clerk of the Board of Supervisors of Marin County was to date stamp the return envelopes of the unopened ballots as they were received and place them in a secure container or "lock box." The ballots were to be opened only after all the ballots were due on June 25, 2007 at 5:01 p.m. It was further specified that only the clerk and deputy clerks were to have access to the ballots, and that they were not to disclose how a particular voter voted, unless required to do so by a court order.

The official canvass of the votes showed 8,059 total ballots cast: 3,208 yes votes; 3,143 no votes; 1,708 invalidated votes. On July 10, 2007, the Board by resolution declared that the measure had passed. On July 17, 2007, the Board adopted an ordinance implementing the fee.

On July 16, 2007, "Ford" Greene, a property owner in the District 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. On August 9, 2007, Greene filed a "Verified Complaint for an Election Contest" pursuant to Elections Code section 16100 et seq. 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.

The crux of Greene's complaint was that the notice given to the voters did not adequately inform them that they were required to sign the ballot, because the warning was inconspicuously placed in small type and was not in boldface. He alleged that as a result of this defect, 1,648 ballots were invalidated for lack of signature, approximately 21 percent of the votes cast, in contrast to the usual 1 percent invalidation rate in Marin County elections. This inadequate notice required that the election contest be set aside, or that there be a recount that would include the unsigned ballots. The District denied the allegations in its answer to the complaint. At a September 7, 2007 case management hearing, the parties stipulated that the court could determine Greene's election challenge solely on the pleadings and on the face of the ballot and waived an evidentiary hearing.

Meanwhile, the Flood Mitigation League of Ross Valley and the Friends of Corte Madera Creek Watershed filed a complaint in intervention on August 14, 2007, requesting declaratory relief declaring the election to be lawful. In his answer to the complaint in intervention, Greene raised as one of his affirmative defenses that the requirement that voters sign their ballots violated the ballot secrecy requirement of article II, section 7.

The trial court rejected the argument, concluding that the requirement to sign ballots was expressly authorized by article XIII D and by Government Code section 53753. The court further ruled that the notice to voters of the signature requirement was sufficient. The trial court denied the election contest in its entirety.

On appeal, the Court of Appeal redefined the issue to be decided. Although initially challenging the signature requirement per se, "Greene clarified at oral argument, and in his appellate briefs, and the record of the trial court proceedings confirm, that his central legal argument in this litigation has always been that article II, section 7's secret voting requirement applies to an article XIII D, section 6(c) fee election."

The Court of Appeal reversed the trial court. First the court concluded, for reasons elaborated below, that the secret voting requirement did in fact apply to the election at issue. It then concluded that the District's procedures did not adequately protect voter secrecy: Although the District's election procedures may have actually provided sufficient secrecy, the Court of Appeal concluded, as explained at greater length below, that the voters were not given adequate assurances that their ballots would be kept secret, and therefore were for all intents and purposes deprived of a secret ballot.

We granted review to clarify the election secrecy requirements, if any, imposed by article XIII D, section 6. Before proceeding to the merits, we discuss the underlying constitutional and statutory scheme.


The Court of Appeal in Howard Jarvis Taxpayers Assn. v. City of Riverside (1999) 73 Cal.App.4th 679, 681-682 usefully summarized the purpose of Proposition 218: "Proposition 218 can best be understood against its historical background, which begins in 1978 with the adoption of Proposition 13. 'The purpose of Proposition 13 was to cut local property taxes. [Citation.]' [Citation.] Its principal provisions limited ad valorem property taxes to 1 percent of a property's assessed valuation and limited increases in the assessed valuation to 2 percent per year unless and until the property changed hands. (Cal. Const., art. XIII A, §§ 1, 2.)

"To prevent local governments from subverting its limitations, Proposition 13 also prohibited counties, cities, and special districts from enacting any special tax without a two-thirds vote of the electorate. (Cal. Const., art. XIII A, § 4; Rider v. County of San Diego (1991) 1 Cal.4th 1, 6-7.) It has been held, however, that a special assessment is not a special tax within the meaning of Proposition 13. (Knox v. City of Orland (1992) 4 Cal.4th 132, 141, and cases cited.) Accordingly, a special assessment could be imposed without a two-thirds vote.

"In November 1996, in part to change this rule, the electorate adopted Proposition 218, which added articles XIII C and XIII D to the California Constitution. Proposition 218 allows 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. (Cal. Const., art. XIII D, § 3, subd. (a)(1)-(4); see also Cal. Const., art. XIII D, § 2, subd. (a).) It buttresses Proposition 13's ...

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