Supreme Court of California Justia
Docket No. S127535

Bighorn Desert etc. v. Verjil


Filed 7/24/06

IN THE SUPREME COURT OF CALIFORNIA

BIGHORN-DESERT VIEW WATER
AGENCY, )

Plaintiff, Cross-defendant and )
Respondent,
S127535
v.
Ct.App. 4/2 E033515
KARI VERJIL, as Registrar of Voters, etc.,
San Bernardino County
Defendant and Cross-defendant; )
Super. Ct. No. SCV 097005
E. W. KELLEY,
Real Party in Interest, Cross-
complainant and Appellant.

In November 1996, California voters adopted Proposition 218, which
added articles XIII C and XIII D to the California Constitution. In Richmond v.
Shasta Community Services Dist. (2004) 32 Cal.4th 409 (Richmond), we construed
article XIII D as it applies to fees that a local public water district charged for
making new service connections to its domestic water delivery system. We
concluded that those connection charges were not “assessments” or “property-
related fees or charges” within the meaning of article XIII D. (Richmond, supra,
at pp. 425, 428.)
Here, we consider a related issue, one that involves section 3 of article XIII
C, which provides that “the initiative power shall not be prohibited or otherwise
1



limited in matters of reducing or repealing any local tax, assessment, fee or
charge.” Does this provision grant local voters authority to adopt an initiative
measure that would reduce a local public water district’s charges for delivering
domestic water to existing customers and that also would require voter
preapproval for any future increase in those charges or for the imposition of any
new charge?
As explained below, we conclude that section 3 of article XIII C grants
local voters a right to use the initiative power to reduce the rate that a public water
district charges for domestic water. We also conclude, however, that this new
constitutional provision does not grant local voters a right to impose a voter-
approval requirement on all future adjustments of water delivery charges, and that
the proposed initiative at issue here was properly withheld from the ballot because
it included a provision to impose such a requirement.
I
In 1969, the California Legislature formed the Bighorn-Desert View Water
Agency (Agency) as a special district under the Bighorn Mountains Water Agency
Law.1 (Stats. 1969, ch. 1175, p. 2273 et seq.) The Agency provides domestic
water service to residents in a roughly 42-square-mile area north of Yucca Valley
in San Bernardino County.
E. W. Kelley is a resident of San Bernardino County and the proponent of a
local initiative measure to reduce the Agency’s water rate and other charges.
Kelley’s initiative proposed to reduce the Agency’s water rate from $4.00 to $2.00

1
The Agency was formed under the name Bighorn Mountains Water Agency
and acquired its current name after consolidation in 1989 with Desert View Water
District. (See Wat. Code, §§ 33300-33306; Stats. 1989, ch. 570, § 3, p. 1878, 73B
West’s Ann. Wat.--Appen. (1995 ed.) ch. 112, p. 189.)
2



per 100-cubic-foot billing unit,2 to reduce the “non-cap recovery charge” from
$4.65 to $2.50 per month, and to reduce the “MWA pipeline charge” from $13.62
to $11.50 per month. The initiative also would have required the Agency to obtain
voter approval before increasing any existing water rate, fee, or charge, or
imposing any new water rate, fee, or charge.
Kelley succeeded in qualifying the initiative for the ballot. On October 24,
2002, Sharon Beringson, as the Interim Registrar of Voters for San Bernardino
County, certified the initiative, and the next day by letter she informed the Agency
of its duty under Elections Code section 9310 to either adopt the initiative or
submit it to the voters at a special election. The Agency did neither, however.
Instead, on November 20, 2002, it filed a complaint for declaratory relief in the
superior court naming Beringson as the defendant and Kelley as the real party in
interest.
In the complaint, the Agency asked the court to declare the initiative
impermissible under California law, and beyond the power of the Agency’s
electorate to enact, because it would interfere with the statutory responsibility of
the Agency’s board of directors to set the water rate high enough to cover its costs.
(See Stats. 1969, ch. 1175, § 25, pp. 2285-2286, 72 B. West’s Ann. Wat.--Appen.,
supra, ch. 112, p. 203 [“The board of directors, so far as practicable, shall fix such
rate or rates for water in the agency . . . as will result in revenues which will pay
the operating expenses of the agency, . . . provide for repairs and depreciation of
works, provide a reasonable surplus for improvements, extensions, and

2
Although the Agency’s water rate was $4.00 per 100-cubic-foot billing unit
when the initiative was circulated for signatures, it was scheduled to be reduced to
$2.30 per billing unit in June 2003. Thus, one could argue, as Kelley has, that the
actual reduction proposed by the initiative was not from $4.00 to $2.00, but from
$2.30 to $2.00 per billing unit. We need not resolve this dispute.
3



enlargements, pay the interest on any bonded debt, and provide a sinking or other
fund for the payment of the principal of such debt as it may become due.”].)
Kelley answered the complaint and filed a motion for judgment on the
pleadings and a cross-petition for writ of mandate seeking to compel the Agency
to either adopt the initiative as an ordinance or submit it to the voters at a special
election. Asserting that the Agency was challenging the legality of the proposed
initiative both on its face (insofar as it asserted that its board of directors had the
exclusive power to set the agency’s water rates and charges) and as applied
(insofar as it asserted that the particular rates and charges that the initiative would
set would leave the Agency with insufficient net revenues), Kelly argued that the
as-applied challenge could not be raised before the election and that the facial
challenge failed because the initiative was authorized and protected by section 3 of
article XIII C of the California Constitution. In its opposition to Kelley’s motion
for judgment on the pleadings, the Agency argued, essentially, that it was raising
only a facial challenge to the proposed initiative.
At the hearing on the motion for judgment on the pleadings, the parties
agreed that the only issue was the validity of the initiative on its face, that the facts
relevant to that issue were undisputed, and that the issue could be decided as a
matter of law. The trial court, declaring that voters in the area served by the
Agency lacked power to affect its water rates and fees and charges, denied
Kelley’s motion and cross-petition and entered a judgment of declaratory relief for
the Agency.
Kelley appealed the judgment to the Court of Appeal, arguing that his
initiative was authorized by article XIII C, section 3 of the California Constitution.
The Court of Appeal affirmed the superior court’s ruling, and Kelley petitioned
this court for review. We granted review and then transferred the case back to the
4

Court of Appeal with directions to vacate its decision and to reconsider the issues
in light of Richmond, supra, 32 Cal.4th 409.
The Court of Appeal again found in favor of the Agency, holding that
article XIII C did not authorize Kelley’s initiative because the initiative did not
deal with special or general taxes, which the Court of Appeal held to be the only
subject matter article XIII C covers. The court held that the Agency’s rate, fees,
and charges were not subject to Proposition 218, and thus could not be reduced by
voter initiative. Kelley again petitioned this court for review, which we again
granted.
II
Article XIII C of the California Constitution is entitled Voter Approval for
Local Tax Levies. Section 1 of article XIII C defines the terms “ ‘[g]eneral tax,’ ”
“ ‘[s]pecial tax,’ ” “ ‘[l]ocal government,’ ” and “ ‘[s]pecial district.’ ” Section 2
of article XIII C provides, in subdivision (b), that “[n]o local government may
impose, extend, or increase any general tax unless and until that tax is submitted to
the electorate and approved by a majority vote,” and it provides, in subdivision
(d), that “[n]o local government may impose, extend, or increase any special tax
unless and until that tax is submitted to the electorate and approved by a two-
thirds vote.” Section 3, the provision at issue here, states: “Initiative Power for
Local Taxes, Assessments, Fees and Charges. Notwithstanding any other
provision of this Constitution, including, but not limited to, Sections 8 and 9 of
Article II, the initiative power shall not be prohibited or otherwise limited in
matters of reducing or repealing any local tax, assessment, fee or charge. The
power of initiative to affect local taxes, assessments, fees and charges shall be
applicable to all local governments and neither the Legislature nor any local
5

government charter shall impose a signature requirement higher than that
applicable to statewide statutory initiatives.”3 (Italics added.)
With a single sentence, the Court of Appeal rejected Kelley’s reliance on
article XIII C as authority for the proposed initiative. The Court of Appeal stated:
“Article XIII C governs special and general taxes, which are not at issue here.”
Kelley argues that this statement is erroneous because section 3 of article XIII C is
not limited to special and general taxes, but applies by it terms to “any local tax,
assessment, fee or charge.”
When interpreting a provision of our state Constitution, our aim is “to
determine and effectuate the intent of those who enacted the constitutional
provision at issue.” (Richmond, supra, 32 Cal.4th at p. 418.) When, as here, the
voters enacted the provision, their intent governs. (Delaney v. Superior Court
(1990) 50 Cal.3d 785, 798.) To determine the voters’ intent, “we begin by
examining the constitutional text, giving the words their ordinary meanings.”
(Richmond, supra, at p. 418.)
Article XIII C, section 3 of the California Constitution expressly states that
the initiative power cannot be limited or prohibited when an initiative proposes to
reduce or repeal “any local tax, assessment, fee or charge.” In construing a
constitutional or statutory provision, “ ‘ “[i]f possible, significance should be
given to every word, phrase, sentence and part of an act in pursuance of the
legislative purpose.” ’ ” (DuBois v. Workers’ Comp. Appeals Bd. (1993) 5 Cal.4th

3
In section 9 of article II, the state Constitution defines “referendum” as “the
power of the electors to approve or reject statutes or parts of statutes except . . .
statutes providing for tax levies
. . . .” (Cal. Const., art. II, § 9, subd. (a), italics
added.) Under this definition, tax measures are exempt from referendum. (See
Rossi v. Brown (1995) 9 Cal.4th 688, 697.) But the state Constitution imposes no
similar limitation on the initiative. (See id. at pp. 699-705.)
6



382, 388.) If possible, therefore, we must give significance to the words
“assessment, fee or charge” in article XIII C, section 3, as meaning something
other than “local tax.” Accordingly, it would appear that article XIII C, section 3,
is not limited to local special and general taxes but applies also to assessments,
fees, and charges.
In the ballot pamphlet for the election at which Proposition 218 (which
included both article XIII C and article XIII D) was adopted, the Legislative
Analyst gave this description of how Proposition 218 would affect initiative
powers: “The measure states that Californians have the power to repeal or reduce
any local tax, assessment, or fee through the initiative process.” (Ballot Pamp.,
Gen. Elec. (Nov. 5, 1996), analysis of Prop. 218 by Legis. Analyst, p. 74.) Thus,
the Legislative Analyst appears to have also read section 3 of article XIII C as
applying to fees as well as to special and general taxes and so described it to the
voters who enacted it. (See People v. Birkett (1999) 21 Cal.4th 226, 243-244
[argument and analyses in official ballot pamphlet may be consulted to determine
voters’ understanding and intent].)
Because the Agency offers no argument in support of the Court of Appeal’s
assertion that article XIII C applies only to special and general taxes, and not to
fees, we will not belabor the point. We conclude that article XIII, section 3,
applies to assessments, fees, and charges and not just to special and general taxes.
Are the amounts that the Agency bills its customers for the delivery of
domestic water properly characterized as fees or charges within the meaning of
those words in article XIII C, section 3? Although article XIII C contains
definitions of the terms “general tax” and “special tax” (Cal. Const., art. XIII C,
§ 1, subds. (a), (d)), it does not define the terms “fee” or “charge.” Article XIII D,
which was enacted together with article XIII C as part of Proposition 218, does
contain a definition of those terms. According to that definition, “ ‘[f]ee’ or
7

‘charge’ means any levy other than an ad valorem tax, a special tax, or an
assessment, imposed by an agency upon a parcel or upon a person as an incident
of property ownership, including a user fee or charge for a property related
service.” (Cal. Const., art. XIII D, § 2, subd. (e).) It is unclear, however, whether
that definition governs the meaning of the terms “fee” and “charge” in article XIII
C, section 3.
Section 2 of article XIII D of the state Constitution, which contains
definitions for various terms, including “fee” and “charge,” begins with the words,
“As used in this article.” (Italics added.) Therefore, although the definitions in
section 2 of article XIII D govern the meaning of the defined terms in article XIII
D (see People v. Canty (2004) 32 Cal.4th 1266, 1277; Richmond, supra, 32
Cal.4th at p. 423), those definitions do not necessarily apply outside of article XIII
D and, in particular, in article XIII C. On the other hand, when a word has been
used in different parts of a single enactment, courts normally infer that the word
was intended to have the same meaning throughout. (People v. Roberge (2003) 29
Cal.4th 979, 987.) Because article XIII C and article XIII D were enacted together
by Proposition 218, it seems unlikely that the terms “fee” and “charge” were
meant to carry entirely different meanings in those two articles, although some
variation in meaning is possible.4
We considered a related question in Richmond, supra, 32 Cal.4th 409. At
issue there was whether a water service connection fee was a fee or charge within

4
Because article XIII D provides a single definition that includes both “fee”
and “charge,” those terms appear to be synonymous in both article XIII D and
article XIII C. This is an exception to the normal rule of construction that each
word in a constitutional or statutory provision is assumed to have independent
significance. (DuBois v. Workers’ Comp. Appeals Bd., supra, 5 Cal.4th at p. 388.)
We use the terms interchangeably in this opinion.
8



the meaning of article XIII D’s definition of the terms “fee” and “charge” as “any
levy other than an ad valorem tax, a special tax, or an assessment, imposed by an
agency upon a parcel or upon a person as an incident of property ownership,
including a user fee or charge for a property related service.” (Cal. Const., art.
XIII D, § 2, subd. (e), italics added; see Richmond, supra, at p. 415.) Of relevance
here, we stated:
“In the ballot pamphlet for the election at which article XIII D was adopted,
the Legislative Analyst stated that ‘[f]ees for water, sewer, and refuse collection
service probably meet the measure’s definition of property-related fee.’ (Ballot
Pamp., Gen. Elec. (Nov. 5, 1996), analysis of Prop. 218 by Legis. Analyst, p. 73.)
The Legislative Analyst apparently concluded that water service has a direct
relationship to property ownership, and thus is a property-related service within
the meaning of article XIII D because water is indispensable to most uses of real
property; because water is provided through pipes that are physically connected to
the property; and because a water provider may, by recording a certificate, obtain
a lien on the property for the amount of any delinquent service charges (see Gov.
Code, §§ 61621, 61621.3). . . .
“Several provisions of article XIII D tend to confirm the Legislative
Analyst’s conclusion that charges for utility services such as electricity and water
should be understood as charges imposed ‘as an incident of property ownership.’
For example, subdivision (b) of section 3 provides that ‘fees for the provision of
electrical or gas service shall not be deemed charges or fees imposed as an
incident of property ownership’ under article XIII D. Under the rule of
construction that the expression of some things in a statute implies the exclusion
of other things not expressed (In re Bryce C. (1995) 12 Cal.4th 226, 231), the
expression that electrical and gas service charges are not within the category of
property-related fees implies that similar charges for other utility services, such as
9

water and sewer, are property-related fees subject to the restrictions of article
XIII D.
“This implication is reinforced by subdivision (c) of article XIII D, section
6, which expressly excludes ‘fees or charges for sewer, water, and refuse
collection services’ from the voter approval requirements that article XIII D
imposes on property-related fees and charges. Because article XIII D does not
include similar express exemptions from the other requirements that it imposes on
property-related fee[s] and charges, the implication is strong that fees for water,
sewer, and refuse collection services are subject to those other requirements. (See
Howard Jarvis Taxpayers Assn. v. City of Roseville (2002) 97 Cal.App.4th 637,
645 [reaching the same conclusion].)
“Thus, we agree that water service fees, being fees for property-related
services, may be fees or charges within the meaning of article XIII D. But we do
not agree that all water service charges are necessarily subject to the restrictions
that article XIII D imposes on fees and charges. Rather, we conclude that a water
service fee is a fee or charge under article XIII D if, but only if, it is imposed
‘upon a person as an incident of property ownership.’ (Art. XIII D, § 2, subd.
(e).)” (Richmond, supra, 32 Cal.4th at pp. 426-427.)
For purposes of identifying fees and charges under California Constitution
article XIII D, we drew a distinction between water service connection charges
and charges for ongoing water delivery. We explained: “A fee for ongoing water
service through an existing connection is imposed ‘as an incident of property
ownership’ because it requires nothing other than normal ownership and use of
property. But a fee for making a new connection to the system is not imposed ‘as
an incident of property ownership’ because it results from the owner’s voluntary
decision to apply for the connection.” (Richmond, supra, 32 Cal.4th at p. 427.)
10

Comparing the provisions of article XIII C and article XIII D, it appears to
us that the words “fee” and “charge,” which appear in both articles, may well have
been intended to have a narrower, more restrictive meaning in article XIII D. The
title of article XIII D is Assessment and Property-Related Fee Reform (italics
added) and section 6 of article XIII D, which imposes restrictions on fees, is titled
Property Related Fees and Charges (italics added). Consistent with these
references to “property-related” fees, article XIII D’s definition of “fee” requires
that it be imposed “upon a parcel or upon a person as an incident of property
ownership.” (Cal. Const., art. XIII D, § 2, subd. (e).) By comparison, the words
“property related” do not appear anywhere in article XIII C, nor does anything in
the text of article XIII C suggest that it is limited to levies imposed on real
property or on persons as an incident of property ownership. Thus, the terms
“fee” and “charge” in section 3 of article XIII C may not be subject to the
“property-related” qualification that was at issue in Richmond, supra, 32 Cal.4th
409. At the same time, any levy that qualifies as a property-related fee or charge
under article XIII D must also qualify as a “fee” or “charge” under article XIII C,
section 3. Nothing in the text of article XIII C, or in the ballot pamphlet for the
November 1996 general election at which it was adopted, suggests an intent to
exclude property-related fees and charges from the reach of section 3 of article
XIII C, or to impose any separate or additional restriction on the meaning of “fee”
or “charge” as used in article XIII C.
Thus, it is possible that California Constitution article XIII C’s grant of
initiative power extends to some fees that, because they are not property related,
are not fees within the meaning of article XIII D. But we perceive no basis for
excluding from article XIII C’s authorization any of the fees subject to article XIII
D. The absence of a restrictive definition of “fee” or “charge” in article XIII C
suggests that those terms include all levies that are ordinarily understood to be fees
11

or charges, including all of the property-related fees and charges subject to article
XIII D.
For present purposes, it is unnecessary to arrive at an exact definition of the
terms “fee” and “charge” as used in article XIII C. It is sufficient to conclude that
a public water agency’s charges for ongoing water delivery, which are fees and
charges within the meaning of article XIII D (Richmond, supra, 32 Cal.4th at
pp. 426-427), are also fees within the meaning of section 3 of article XIII C.
Therefore, section 3 of article XIII C establishes that the initiative power “shall not
be prohibited or otherwise limited in matters of reducing or repealing” a public
agency’s water delivery charges. In other words, this constitutional provision
expressly authorizes initiative measures like Kelley’s insofar as they seek to
reduce or repeal a public agency’s water rates and other water delivery charges.
The Agency urges us to draw a distinction between water delivery charges
that are “consumption based” (calculated according to the quantity of water
delivered) and charges that are imposed regardless of water usage. Under this
proposed distinction, the Agency’s water rate, which is a charge per 100 cubic feet
of water, is a consumption-based charge, while its “non-cap recovery charge” and
“MWA Pipeline charge” (both of which the Agency imposes in a fixed amount per
month per customer) are not. The Agency argues that consumption-based water
charges are not fees or charges within the meaning of article XIII D because they
are not imposed “as an incident of property ownership” (Cal. Const., art. XIII D,
§ 2, subd. (e)), but instead as a result of the voluntary decisions of each water
customer as to how much water to use. We are not persuaded.
Article XIII D defines “fee” or “charge” as “including a user fee or charge
for a property related service.” (Cal. Const., art. XIII D, § 2, subd. (e), italics
added.) The word “including” is “ ‘ordinarily a term of enlargement.’ ” (Hassan
v. Mercy American River Hospital (2003) 31 Cal.4th 709, 717.) As we explained
12

in Richmond, supra, 32 Cal.4th 409, domestic water delivery through a pipeline is
a property-related service within the meaning of this definition. (Id. at pp. 426-
427.) Accordingly, once a property owner or resident has paid the connection
charges and has become a customer of a public water agency, all charges for water
delivery incurred thereafter are charges for a property-related service, whether the
charge is calculated on the basis of consumption or is imposed as a fixed monthly
fee.5 Consumption-based water delivery charges also fall within the definition of
user fees, which are “amounts charged to a person using a service where the
amount of the charge is generally related to the value of the services provided.”
(Utility Audit Co., Inc. v. City of Los Angeles (2003) 112 Cal.App.4th 950, 957.)
Because it is imposed for the property-related service of water delivery, the
Agency’s water rate, as well as its fixed monthly charges, are fees or charges
within the meaning of article XIII D, and thus, for the reasons we have explained,
they are also fees or charges within the meaning of section 3 of article XIII C.
Under the constitutional grant of power in section 3 of article XIII C, the initiative
may be used to reduce each of those water delivery charges.
The Agency also argues that even if its water rate and other water delivery
charges are fees or charges within the meaning of section 3 of article XIII C of the
California Constitution, Kelley’s initiative is nonetheless invalid because the
Legislature has granted the Agency’s governing board exclusive authority to set
the Agency’s rate and other charges. (See DeVita v. County of Napa (1995) 9
Cal.4th 763, 775-777 [discussing exclusive delegation]; Committee of Seven
Thousand v. Superior Court (1988) 45 Cal.3d 491, 511 [same].) The Legislature

5
Howard Jarvis Taxpayers Assn. v. City of Los Angeles (2000) 85
Cal.App.4th 79, which was decided before Richmond, supra, 32 Cal.4th 409, is
disapproved insofar as it is inconsistent with this conclusion.
13



is bound by the state Constitution, however, and the evident purpose of article XIII
C is to extend the local initiative power to fees and charges imposed by local
public agencies. We need not determine whether the Legislature intended to
preclude the use of the initiative to reduce the Agency’s fees because even if it did
so intend, the Legislature’s authority in enacting the statutes under which the
Agency operates must in this instance yield to constitutional command.
To this point we have considered only the portions of Kelley’s initiative
that would reduce the Agency’s water delivery charges. Kelley’s initiative
measure would do more than roll back the Agency’s water rate and other charges,
however. It would also require the Agency’s board of directors to obtain voter
approval before increasing any existing rate or charge or imposing any new rate or
charge. Nothing in section 3 of California Constitution article XIII C authorizes
initiative measures that impose voter-approval requirements for future increases in
fees or charges.
Arguing to the contrary, Kelley points to the reference in section 3 of article
XIII C to “[t]he power of initiative to affect local taxes, assessments, fees and
charges.” (Italics added.) He asserts that by imposing a voter-approval
requirement on future increases in water delivery charges, his initiative would
“affect” those charges and therefore is within the constitutional grant of initiative
power. We disagree. The entire sentence reads: “The power of initiative to affect
local taxes, assessments, fees and charges shall be applicable to all local
governments and neither the Legislature nor any local government charter shall
impose a signature requirement higher than that applicable to statewide statutory
initiatives.” (Cal. Const., art. XIII C, § 3.) The evident purpose of this sentence is
not to define how the initiative may be used to impact fees and charges, but
instead to specify that the initiative power extends to charges imposed by all local
public agencies and that the signature requirement applied to statewide initiatives
14

may not be exceeded. The scope of the initiative power is set by the previous
sentence, stating that “the initiative power shall not be prohibited or otherwise
limited in matters of reducing or repealing any local tax, assessment, fee or
charge.” (Ibid., italics added.) Thus, analysis of the text of section 3 of article
XIII C supports the conclusion that the initiative power granted by that section
extends only to “reducing or repealing” taxes, assessments, fees, and charges.
That the voters who enacted Proposition 218 did not intend to authorize
initiative measures imposing voter-approval requirements on future water delivery
charge increases is confirmed by an examination of section 6 of California
Constitution article XIII D. Related provisions “should be read together and
construed in a manner that gives effect to each, yet does not lead to disharmony
with the others.” (City of Huntington Beach v. Board of Administration (1992) 4
Cal.4th 462, 468; see also Cooley v. Superior Court (2002) 29 Cal.4th 228, 248;
Garcia v. McCutchen (1997) 16 Cal.4th 469, 476; DeVita v. County of Napa,
supra, 9 Cal.4th at p. 778; Pacific Southwest Realty Co. v. County of Los Angeles
(1991) 1 Cal.4th 155, 167.) Article XIII D, section 6, subdivision (c), says that
[e]xcept for fees or charges for sewer, water, and refuse collection services, no
property related fee or charge shall 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.” (Italics added.)
Thus, article XIII D expressly exempts water service charges from the voter-
approval requirement that it imposes on all other fees and charges.
At least as to fees and charges that are property related, section 6 of
California Constitution article XIII D would appear to embody the electorate’s
intent as to when voter-approval should be required, or not required, before
existing fees may be increased or new fees imposed, and the electorate chose not
15

to impose a voter-approval requirement for increases in water service charges.
Although this provision does not expressly prohibit local initiatives that would
impose such a requirement, neither does it authorize them. The provisions of
article XIII C support a similar conclusion. Although section 2 of article XIII C
imposes voter-approval requirements for general taxes and for special taxes,
nothing in article XIII C imposes a voter-approval requirement for fees or charges.
Kelley has asserted no authority other than section 3 of California
Constitution article XIII C for the portion of his initiative that would require voter
approval before any future increase in water delivery charges, and we have
concluded that article XIII C does not authorize that provision. Kelley apparently
concedes that in the absence of the authority granted by section 3 of article XIII C,
the exclusive delegation rule (DeVita v. County of Napa, supra, 9 Cal.4th at pp.
775-777; Committee of Seven Thousand v. Superior Court, supra, 45 Cal.3d at p.
511) bars initiative measures that infringe on the power of the Agency’s governing
board to set its water delivery rate and charges. Accordingly, we agree with the
Court of Appeal that Kelley’s initiative is invalid insofar as it seeks to impose a
voter-approval requirement on future actions by the Agency’s board of directors to
increase the existing water rate and other charges or to impose new charges.
To some extent, this portion of the initiative is superfluous, because under
Elections Code section 93236 voter approval is required before a local district’s
governing board may amend an ordinance adopted by initiative, unless the

6
That section reads: “No ordinance proposed by initiative petition and
adopted either by the district board without submission to the voters or adopted by
the voters shall be repealed or amended except by a vote of the people, unless
provision is otherwise made in the original ordinance. In all other respects, an
ordinance proposed by initiative petition and adopted shall have the same force
and effect as any ordinance adopted by the board.” (Elec. Code, § 9323.)
16



ordinance provides otherwise. (See DeVita v. County of Napa, supra, 9 Cal.4th at
p. 788 [discussing similar statute for county ordinance]; Mobilepark West
Homeowners Assn. v. Escondido Mobilepark West (1995) 35 Cal.App.4th 32, 40-
41 [discussing similar statute for city ordinance].) Therefore, if the voters were to
approve an initiative lowering the Agency’s water rate or other charge, the
Agency’s governing board would need voter approval before it could change the
rate or charge that had been set by initiative. The Agency’s governing board
would not need voter approval, however, to increase a charge that was not affected
by initiative or to impose an entirely new charge.
We have concluded that under section 3 of California Constitution article
XIII C, local voters by initiative may reduce a public agency’s water rate and other
delivery charges, but also that section 3 of article XIII C does not authorize an
initiative to impose a requirement of voter preapproval for future rate increases or
new charges for water delivery. In other words, by exercising the initiative power
voters may decrease a public water agency’s fees and charges for water service,
but the agency’s governing board may then raise other fees or impose new fees
without prior voter approval. Although this power-sharing arrangement has the
potential for conflict, we must presume that both sides will act reasonably and in
good faith, and that the political process will eventually lead to compromises that
are mutually acceptable and both financially and legally sound. (See DeVita v.
County of Napa, supra, 9 Cal.4th at pp. 792-793 [“We should not presume . . . that
the electorate will fail to do the legally proper thing.”].) We presume local voters
will give appropriate consideration and deference to a governing board’s
judgments about the rate structure needed to ensure a public water agency’s fiscal
solvency, and we assume the board, whose members are elected (see Stats. 1969,
ch. 1175, § 5, p. 2274, 72B West’s Ann. Wat.--Appen., supra, ch. 112, p. 190),
will give appropriate consideration and deference to the voters’ expressed wishes
17

for affordable water service. The notice and hearing requirements of subdivision
(a) of section 6 of California Constitution article XIII D7 will facilitate
communications between a public water agency’s board and its customers, and the
substantive restrictions on property-related charges in subdivision (b) of the same
section8 should allay customers’ concerns that the agency’s water delivery charges
are excessive.

7
“(a) Procedures for New or Increased Fees and Charges. An agency shall
follow the procedures pursuant to this section in imposing or increasing any fee or
charge as defined pursuant to this article, including, but not limited to, the
following:

“(1) The parcels upon which a fee or charge is proposed for imposition
shall be identified. The amount of the fee or charge proposed to be imposed upon
each parcel shall be calculated. The agency shall provide written notice by mail of
the proposed fee or charge to the record owner of each identified parcel upon
which the fee or charge is proposed for imposition, the amount of the fee or charge
proposed to be imposed upon each, the basis upon which the amount of the
proposed fee or charge was calculated, the reason for the fee or charge, together
with the date, time, and location of a public hearing on the proposed fee or charge.

“(2) The agency shall conduct a public hearing upon the proposed fee or
charge not less than 45 days after mailing the notice of the proposed fee or charge
to the record owners of each identified parcel upon which the fee or charge is
proposed for imposition. At 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.” (Cal. Const., art. XIII D,
§ 6, subd. (a).)
8
“(b) Requirements for Existing, New or Increased Fees and Charges. A fee
or charge shall not be extended, imposed, or increased by any agency unless it
meets all of the following requirements:

“(1) Revenues derived from the fee or charge shall not exceed the funds
required to provide the property related service.

“(2) Revenues derived from the fee or charge shall not be used for any
purpose other than that for which the fee or charge was imposed.

“(3) The amount of a fee or charge imposed upon any parcel or person as
an incident of property ownership shall not exceed the proportional cost of the
service attributable to the parcel.
(Footnote continued on next page.)
18



In holding that section 3 of article XIII C of the state Constitution
authorizes initiative measures that reduce public agency water service charges, we
are not holding that the authorized initiative power is free of all limitations. In
particular, we are not determining whether the electorate’s initiative power is
subject to the statutory provision requiring that water service charges be set at a
level that “will pay the operating expenses of the agency, . . . provide for repairs
and depreciation of works, provide a reasonable surplus for improvements,
extensions, and enlargements, pay the interest on any bonded debt, and provide a
sinking or other fund for the payment of the principal of such debt as it may
become due.” (Stats. 1969, ch. 1175, § 25, p. 2286, 72B West’s Ann. Wat.--
Appen., supra, ch. 112, p. 203.) That issue is not currently before us.
III
We have concluded that Kelley’s initiative is invalid insofar as it seeks to
require voter approval before the Agency’s governing board may increase water
service charges or impose new charges. When a significant part of a proposed
initiative measure is invalid, the measure may not be submitted to the voters.
(American Federation of Labor v. Eu (1984) 36 Cal.3d 687, 715-716; City and

(Footnote continued from previous page.)


“(4) No fee or charge may be imposed for a service unless that service is
actually used by, or immediately available to, the owner of the property in
question. Fees or charges based on potential or future use of a service are not
permitted. Standby charges, whether characterized as charges or assessments,
shall be classified as assessments and shall not be imposed without compliance
with Section 4.

“(5) No fee or charge may be imposed for general governmental services
including, but not limited to, police, fire, ambulance or library services, where the
service is available to the public at large in substantially the same manner as it is
to property owners.” (Cal. Const., art. XIII D, § 6, subd. (b).)
19



County of San Francisco v. Patterson (1988) 202 Cal.App.3d 95, 105-106.)
Accordingly, the trial court correctly determined that the initiative could not be
placed on the ballot, and it properly granted judgment for the Agency, and the
Court of Appeal correctly affirmed the trial court’s judgment, although its
reasoning differed substantially from the reasoning we use here.
The judgment of the Court of Appeal is affirmed.
KENNARD,
J.
WE CONCUR:

GEORGE, C. J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.

20



See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Bighorn-Desert View Water Agency v. Verjil
__________________________________________________________________________________

Unpublished Opinion


Original Appeal
Original Proceeding
Review Granted
XXX 120 Cal.App.4th 890
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S127535
Date Filed: July 24, 2006
__________________________________________________________________________________

Court:

Superior
County: San Bernardino
Judge: Tara Reilly

__________________________________________________________________________________

Attorneys for Appellant:

Sweeney, Davidian, Green & Grant, Eric Grant and James F. Sweeney for Real Party in Interest, Cross-
complainant and Appellant.

Nick Bulaich as Amicus Curiae on behalf of Real Party in Interest, Cross-complainant and Appellant.

Trevor A. Grimm, Jonathan M. Coupal and Timothy A. Bittle for Howard Jarvis Taxpayers Association as
Amicus Curiae on behalf of Real Party in Interest, Cross-complainant and Appellant.

Harold Griffith as Amicus Curiae on behalf of Real Party in Interest, Cross-complainant and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Lagerlof, Senecal, Bradley, Gosney & Kruse, Timothy J. Gosner and James D. Ciampa for Plaintiff, Cross-
defendant and Respondent.

McCormick, Kidman & Behrens, Janet Morningstar; David S. Hentschke; Colantuono & Levin, Michael
G. Colantuono; Alisa Renee Fong; Ruth Sorensen; and Jennifer B. Henning for Association of California
Water Agencies, League of California Cities and California State Association of Counties as Amicus
Curiae on behalf of Plaintiff, Cross-defendant and Respondent.

No appearance for Defendant and Cross-defendant.



Counsel who argued in Supreme Court (not intended for publication with opinion):

Eric Grant
Sweeney, Davidian, Greene & Grant
8001 Folsom Boulevard, Suite 100
Sacramento, CA 95826
(916) 388-0833

James D. Ciampa
Lagerlof, Senecal, Bradley,Gosney & Kruse
301 North Lake Avenue, 10th Floor
Pasadena, CA 91101-4108
(626) 793-9400

Janet Morningstar
McCormick, Kidman & Behrens
1048 Irvine Avenue, #407
Newport Beach, CA 92660-4602
(949) 274-0972


Opinion Information
Date:Docket Number:
Mon, 07/24/2006S127535

Parties
1Kelley, E. W. (Real Party in Interest and Appellant)
Represented by Eric Allen Grant
Attorney at Law
8001 Folsom Boulevard, Suite 100
Sacramento, CA

2Bighorn-Desert View Water Agency (Plaintiff, Cross-defendant and Respondent)
Represented by James Dominic Ciampa
Lagerlof Senecal Bradley Gosney & Kruse, LLP
301 N. Lake Avenue, 10th Floor
Pasadena, CA

3Beringson, Sharon (Defendant, Cross-defendant and Respondent)
Represented by Daniel B. Haueter
San Bernardino County Counsel
385 North Arrowhead Avenue, 4th Floor
San Bernardino, CA

4Michael H. Clement Corporation (Pub/Depublication Requestor)
3500 Wilbur Avenue
Antioch, CA 94509

5Bulaich, Nick (Amicus curiae)
305 Second Street
Watsonville, CA 95076

6Griffith, Harold (Amicus curiae)
P.O. Box 96
Freedom, CA 95019

7Association Of California Water Agencies (Amicus curiae)
Represented by Daniel S. Hentschke
San Diego County Water Authority
4677 Overland Avenue
San Diego, CA

8Association Of California Water Agencies (Amicus curiae)
Represented by Janet Morningstar
Janet Morningstar, A Law Corporation
1048 Irvine Avenue, Suite 407
Newport Beach, CA

9League Of California Cities (Amicus curiae)
Represented by Michael G. Colantuono
Colantuono & Levin
11406 Pleasant Valley Road
Penn Valley, CA

10California State Association Of Counties (Amicus curiae)
Represented by Jennifer Bacon Henning
California State Association of Counties
110 "K" Street, Suite 101
Sacramento, CA

11Howard Jarvis Taxpayers Association (Amicus curiae)
Represented by Timothy A. Bittle
Howard Jarvis Taxpayers Association
921 Eleventh Street, Suite 1201
Sacramento, CA


Disposition
Jul 24 2006Opinion: Affirmed

Dockets
Aug 30 2004Petition for review filed
  In Sacramento by counsel for RPI{ E.W. Kelley}.
Sep 1 2004Record requested
 
Sep 7 2004Received Court of Appeal record
  one doghouse
Sep 17 2004Request for depublication (petition for review pending)
  By Michael H. Clement Corporation (NON-PARTY).
Sep 17 2004Answer to petition for review filed
  counsel for resp BIGHORN-DESERT VIEW WATER AGENCY
Sep 24 2004Received:
  letter from The United Organizations of Taxpayers, INC., in suuport of the petition for review or request for depublication.
Sep 27 2004Reply to answer to petition filed
  In Sacramento by counsel for RPI {E.W. Kelley}.
Sep 28 2004Received:
  letter from The Upland Taxpayers Association in suppor of the petition for review or request for depublication.
Oct 1 2004Received:
  RPI's Original Proof of Service for Reply to Answer to Petition for Review.
Oct 27 2004Petition for review granted (civil case)
  Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Brown, and Morneo, JJ.
Oct 27 2004Letter sent to:
  parties re: Certification on Interested Entities or Persons.
Nov 1 2004Request for extension of time filed
  Joint request by parties.
Nov 4 2004Certification of interested entities or persons filed
  By counsel for respondent.
Nov 10 2004Extension of time granted
  On joint application of the parties and good cause appearing, the followin briefing schedule is hereby ordered: 1. Real Party's in Interest opening brief on the merits must be served and filed on or before December 17, 2004. 2. Respondent's answer brief on the merits must be served and filed on or before January 28, 2004. Real Party's in Interest and good cause appearing must be served and filed on or before February 17, 2004.
Nov 22 2004Certification of interested entities or persons filed
  By counsel for RPI/Appellant.
Dec 17 2004Opening brief on the merits filed
  In Sacramento by counsel for RPI {E.W. Kelley}.
Jan 18 2005Received application to file Amicus Curiae Brief
  Nick Bulaich in support of RPI {E.W. Kelley}.
Jan 19 2005Permission to file amicus curiae brief granted
  Nick Bulaich in support of RPI.
Jan 19 2005Amicus curiae brief filed
  Nick Bulaich in support of RPI. Any party may file a single consolidated answer to all amicus curiae briefs within twenty days after the last date that an application to file an amicus curiae brief may be filed under rule 29.1 (f)(2).
Jan 28 2005Answer brief on the merits filed
  respondent, Bighorn-Desert View Water Agency.
Jan 28 2005Request for judicial notice received (pre-grant)
  respondent, Bighorn-Desert View Water Agency
Feb 14 2005Received application to file Amicus Curiae Brief
  Harold Griffith in support of RPI {E.W. Kelley}.
Feb 15 2005Permission to file amicus curiae brief granted
  Harold Griffith in support of RPI.
Feb 15 2005Amicus curiae brief filed
  Harold Griffith un support of RPI. Any party may file a single consolidated answer to all amicus curaie briefs within twenty days after the last date that an application to file an amicus curiae brief may be filed under rule 29.1(f)(2).
Feb 17 2005Reply brief filed (case fully briefed)
  In Sacramento by counsel for RPI {E.W. Kelley}.
Feb 22 2005Received application to file Amicus Curiae Brief
  Association of California Water Agencies, League of California Cities and California State Association of Counties in support of respondent.
Feb 24 2005Permission to file amicus curiae brief granted
  Association of California Water Agencies, League of California Cities and California State Association of Counties in supprt of Respondent.
Feb 24 2005Amicus curiae brief filed
  Association of California Water Agencies, League of California Cities and California State Association of Counties in supprt of Respondent. Answer is due within twenty days.
Mar 16 2005Response to amicus curiae brief filed
  In Sacramento by counsel for RPI {E.W. Kelley} to AC Brief filed by Association of California Water Agencies et al.,
Mar 16 2005Received application to file Amicus Curiae Brief
  Howard Jarvis Taxpayers Association in support of RPI {E.W. Kelley}.
Mar 18 2005Permission to file amicus curiae brief granted
  Howard Jarvis Taxpayers Association in support of RPI.
Mar 18 2005Amicus curiae brief filed
  Howard Jarvis Taxpayers Association in support of RPI. Answer is due within twenty days.
Apr 7 2005Response to amicus curiae brief filed
  respondent Bighorn-Desert View Water Agency responding to Howard Jarvis Taxpayers Association in support of RPI
May 2 2006Case ordered on calendar
  June 7, 2006, at 1:30 p.m., in Los Angeles
May 10 2006Request for judicial notice denied
  The request of the Bighorn-Desert View Water Agency for judicial notice, filed in this court on January 28, 2005, is denied. (See County of Fresno v. State of California (1991) 53 Cal.3d 482, 488 [post-election statement of drafters' intent is irrelevant in construing an initiative].)
May 12 2006Application filed to:
  divide oral argument time. "Application of Amicus Curiae Association of California Water Agencies for Leave to Present Oral Argument" Amicus, with approval of counsel for respondent Bighorn-Desert View Water Agency, requests 10 minutes of respondent's oral argument time.
May 17 2006Order filed
  The request of counsel for respondent Bighorn-Desert View Water Agency in the above-referenced cause to allow two counsel to argue on behalf of respondent at oral argument is hereby granted. The request of respondent to allocate to amicus curiae Association of California Water Agencies 10 minutes of respondent's 30-minute allotted time for oral argument is granted.
Jun 7 2006Cause argued and submitted
 
Jul 24 2006Opinion filed: Judgment affirmed in full
  Majority opinion by Kennard, J. ---------------joined by George, C.J., Baxter, Werdegar, Chin, Moreno, Corrigan, JJ.
Aug 24 2006Remittitur issued (civil case)
 
Sep 5 2006Received:
  Receipt for remittitur from 4 DCA Div. 2.

Briefs
Dec 17 2004Opening brief on the merits filed
 
Jan 19 2005Amicus curiae brief filed
 
Jan 28 2005Answer brief on the merits filed
 
Feb 15 2005Amicus curiae brief filed
 
Feb 17 2005Reply brief filed (case fully briefed)
 
Feb 24 2005Amicus curiae brief filed
 
Mar 16 2005Response to amicus curiae brief filed
 
Mar 18 2005Amicus curiae brief filed
 
Apr 7 2005Response to amicus curiae brief filed
 
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website