Could Measure P still pass? Proponents say yes, and are asking Fresno mayor to act
Fresno park advocates want the mayor to reverse their loss at the ballot box by instituting a sales tax that failed to gain a two-thirds majority in the November election.
Fresno Building Healthy Communities contends in a letter to Mayor Lee Brand that the sales tax initiative, Measure P, didn’t need a super majority to win.
Instead, they believe the state allows proposals like theirs to pass with a simple majority, which the initiative obtained.
The fight is similar to ones in several other California cities where advocates for improved government services are testing a new theory about how state law applies to tax increases that originate from citizens instead of government officials.
“It’s definitely on the city to implement the will of the people, and I think that they need to take the necessary steps to do that.”
Measure P on the Nov. 6 ballot proposed a 3/8-cent sales tax that would’ve generated $37.5 million annually for 30 years for Fresno parks and cultural arts. Measure P received about 52 percent “yes” votes.
Wednesday’s letter also asks the city to immediately begin negotiating with the state Department of Tax and Fees so it can collect the tax revenue.
“When the City Council declared the results of the election, it indicated Measure P failed because it had not received approval by two-thirds of the voters,” says the letter from law firm Olson Hagel & Fishburn LLP, written on behalf of Fresno BHC.
“We believe this conclusion is based on erroneous interpretation of the law and request that the city declare that Measure P was, in fact, approved by the voters.”
Fresno BHC, a health-focused community coalition, for years has advocated for better city parks through a campaign it calls #Parks4All. The group was a key player in the Yes on P campaign.
“Fresno Building Healthy Communities was instrumental in the ‘Yes On P’ campaign and has been a leading voice for Fresno’s parks and youth for many years, so it is no surprise to us that this group has come forward with a request for action on the approval of Measure P,” said Natasha Biasell, the communications director for Yes on P.
“There are probably community groups across the state who are looking to the courts at this time for clarification on requirements for citizen-led campaigns, and Fresno is no different. While our campaign has not taken its own legal action at this time, we are supportive of BHC’s decision to take this next step and await the courts decision on this critical issue for community groups across California.”
The letter references a 2017 California Supreme Court case against the city of Upland in which the court ruled taxes imposed by citizens aren’t in the same category as taxes imposed by local governments.
The court ruling raises the question whether taxes imposed by citizens must face a super majority vote threshold at 66.7 percent.
The city and county of San Francisco have argued in court that because of the ruling, two propositions in that jurisdiction required a simple majority vote. The Howard Jarvis Taxpayers Association, however, sued the city and county saying one of the taxes did not receive enough votes.
An attorney for Del Norte County also argued that a simple majority was sufficient for a voter initiative tax in Crescent City after the Upland ruling.
The Oakland City Council in December also voted to pass a parcel tax put on the ballot by a citizen group, even though it fell short of a two-thirds majority vote.
Fresno BHC asked the city respond by Thursday, Jan. 31, the date of the next City Council meeting, if it does not intend to take action. If the city takes no action, Fresno BHC will consider whether legal action is appropriate, the letter says.
“We received a letter from their attorney late yesterday afternoon and while we are consulting with our legal department to understand our options, it has been and will continue to be our policy not to comment on pending or threatened litigation,” Mayor Lee Brand said in an emailed statement.
“However, I believe this action will make it much more difficult, if not impossible, to unify the community in support (of) a balanced measure that not only seeks to remedy our deficiencies in parks, but also in public safety and many other areas where the city does not have sufficient resources to provide the necessary services our residents deserve and need.”
Ballot language
A Howard Jarvis attorney said the Upland decision did not change the requirement of a two-thirds majority vote. The attorney, Laura Murray, pointed to an argument from the League of California Cities that agrees with that assessment.
“The two-thirds vote ensures a firm consensus when citizens vote to tax others and to spend money in a particular way,” she said. “Since Measure P had a special purpose, the city of Fresno was correct to declare that it required a two-thirds vote”
Murray said there could be a second legal question with Measure P.
“It poses a second legal problem if the city declared in the ballot materials that a two-thirds vote was required, but then backtracks. Voter behavior may be affected, and in any event, the ballot materials cannot be misleading,” she said.
A city resolution on the issue stated the measure needed a two-thirds majority to pass.
But the ballot language was an issue shortly before the election. The city clerk’s office certified a resolution from the City Council in August with the incorrect ballot language. The error wasn’t noticed until ballots were printed, and the City Council voted to send correction postcards to voters with the correct language.
The Yes on P campaign operated under the assumption the city would require a two-thirds majority, Celedon said.
“That’s the other question here. We know there was an error with the city completely eliminating some of the language for the ballot, so I think we also want to look at the facts,” she said. “What is the actual legal requirement? We want to make sure the city implements the measure based on what we’re seeing across the state.”
Some council members skeptical
Despite supporting Measure P, Councilman Luis Chavez said the approval threshold isn’t settled in the courts, so the city shouldn’t implement the tax.
“You’re essentially changing the rules after you lose the game,” the southeast Fresno councilman said.
“At end of day, there’s no definitive case where they’ve come down and changed the two-thirds threshold. There’s still some vagueness associated with that. Let the courts clarify that and set precedent before we initiate any of this.”
He also worries that if the city moves forward with the tax it would face legal challenges and taxpayers would foot the bill for the legal fight.
Councilman Garry Bredefeld, who opposed Measure P, said until the law is changed, Measure P failed since it did not get two-thirds approval.
“The existing law currently requires two-thirds for that to pass,” he said. “That’s existing law. It may change in future, but it hasn’t changed now.”
District 3 Councilman Miguel Arias, who was very vocal about his support for Measure P during his campaign, said the move from BHC was expected since the court’s decision created statewide questions.
“I think the most common-sense approach is for us to seek clarity from the courts,” he said.
District 1 Councilwoman Esmeralda Soria agreed, but she said it’s the job of city leaders to figure out how to move forward.
“This issue needs to be resolved, especially as we begin to talk about budget,” she said. “As a city and as leaders, we have to figure out a path forward because in the end …the city is in dire need of resources for our parks and for public safety.”
This story was originally published January 24, 2019 at 10:06 AM.