Stanford Law School - Robert Crown Law Library

Filed 6/7/10
IN THE SUPREME COURT OF CALIFORNIA
FORD GREENE,
Plaintiff and Appellant,
S172199
v.
Ct.App. 1/5 A120228
MARIN COUNTY FLOOD
CONTROL AND WATER
CONSERVATION DISTRICT,
Marin County
Defendant and Respondent;
Super. Ct. No. CV 073767
FLOOD MITIGATION LEAGUE OF
ROSS VALLEY et al.,
Interveners and Respondents. )
____________________________________)

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,1 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
1
All references to articles are to the California Constitution unless otherwise
indicated.
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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.
I.
FACTUAL AND PROCEDURAL BACKGROUND
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
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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
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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
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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.”
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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.
II.
PROPOSITION 218 AND GOVERNMENT CODE SECTION 53753
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.
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(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 limitations on ad valorem
property taxes and special taxes by placing analogous restrictions on assessments,
fees, and charges.”
Proposition 218‟s Findings and Declarations state: “The people of the State
of California hereby find and declare that Proposition 13 was intended to provide
effective tax relief and to require voter approval of tax increases. However, local
governments have subjected taxpayers to excessive tax, assessment, fee and
charge increases that not only frustrate the purposes of voter approval for tax
increases, but also threaten the economic security of all Californians and the
California economy itself. This measure protects taxpayers by limiting the
methods by which local governments exact revenue from taxpayers without their
consent.” (Prop. 218, § 2, Stats. 1996, p. A-295; also reprinted at Historical Notes,
2A West‟s Ann. Cal. Const. (2010 supp.) foll. art. 13C, § 1, p. 110.) It also states:
The provisions of this act shall be liberally construed to effectuate its purposes of
limiting local government revenue and enhancing taxpayer consent.” (Prop. 218,
§ 5.)
Article XIII D, enacted as part of Proposition 218, specifically addresses
the means by which local government agencies may impose assessments and
property related fees. “ „Assessment‟ means any levy or charge upon real property
by an agency for a special benefit conferred upon the real property. „Assessment‟
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includes, but is not limited to, „special assessment,‟ „benefit assessment,‟
„maintenance assessment‟ and „special assessment tax.‟ ” (Art. XIII D, § 2,
subd. (b).) “ ‟Fee‟ or „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.” (Id., § 2, subd. (e).)
Article XIII D, section 4 sets forth in considerable detail the procedures for
adopting assessments. Assessments are levied in proportion to the special benefit
conferred on a parcel (id., § 4, subd. (a)), as calculated in an engineer‟s report, (id.,
subd. (b)), and each affected property owner must receive detailed notice about the
assessment (id., subd. (c)). Subdivision (d) provides: “Each notice mailed to
owners of identified parcels within the district pursuant to subdivision (c) shall
contain a ballot which includes the agency‟s address for receipt of the ballot once
completed by any owner receiving the notice 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.” (Italics added.)
Subdivision (e) provides: “The agency shall conduct a public hearing upon
the proposed assessment not less than 45 days after mailing the notice of the
proposed assessment to record owners of each identified parcel. At the public
hearing, the agency shall consider all protests against the proposed assessment and
tabulate the ballots. The agency shall not impose an assessment if there is a
majority protest. A majority protest exists if, upon the conclusion of the hearing,
ballots submitted in opposition to the assessment exceed the ballots submitted in
favor of the assessment. In tabulating the ballots, the ballots shall be weighted
according to the proportional financial obligation of the affected property.”
(Italics added.)
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Article XIII D, section 6, concerning property related fees, provides a
somewhat different procedure. Once the amount of the fee per parcel is
calculated, the agency must provide written notice to each affected property owner
and the opportunity to protest the fee. At the public hearing, the government
agency is to tabulate all the written protests to the proposed fee, and if a majority
of owners of the identified parcels protest, the fee will not be imposed. (Art. XIII
D, § 6, subd. (a).)
If, however, there is no majority protest, the proposed fee is put before the
voters for approval. Subdivision (c) sets forth the manner of conducting such an
election and states in full: “Except 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. The
election shall be conducted not less than 45 days after the public hearing. An
agency may adopt procedures similar to those for increases in assessments in the
conduct of elections under this subdivision.” (Italics added.)
After passage of Proposition 218, the Legislature passed in 1997
Government Code section 53750 et seq.,2 designed to clarify the implementation
of Proposition 218. (Stats. 1997, ch. 38, § 5, p. 366.) Section 53753 addressed the
procedures for protesting assessments. As originally enacted, section 53753
contained no provisions for assessment ballot secrecy. The statute provided that
“[e]ach assessment ballot shall be signed and either mailed or otherwise delivered
to the address indicated on the assessment ballot.” (Former § 53753, subd. (c), as
enacted by Stats. 1997, ch. 38, § 5, p. 369.) It further provided that “[t]he majority
2
All statutory references are to this code unless otherwise indicated.
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protest proceedings described in this subdivision 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), as enacted by Stats. 1997, ch. 38, § 5, p. 370.)
Section 53753 was amended in 2000 to provide for a certain measure of
assessment ballot secrecy. According to the legislative history, the amendment
was initiated by the Howard Jarvis Taxpayers Association, the original sponsors of
Proposition 218. The impetus for the amendment was the practice in some cities
of putting pressure on property owners to change their votes after they had
submitted their ballots but before the deadline for submitting ballots. (Assem.
Com. on Local Gov., analysis of Sen. Bill No. 1477 (1999-2000 Reg. Sess.) as
amended May 9, 2000, p. 2.) On the other hand, the legislative history reveals that
earlier, unsuccessful legislative attempts to protect the secrecy of assessment
ballots were viewed as too extreme. (Ibid.)
Instead, the 2000 amendment made clear that ballot secrecy was to be
preserved before the assessment ballots were tabulated, but that the ballots were to
be made a public record thereafter. Section 53753, subdivision (c), as amended in
2000, therefore now provides in pertinent part: “Assessment ballots shall remain
sealed until the tabulation of ballots pursuant to subdivision (e) commences,
provided that an assessment ballot may be submitted, or changed, or withdrawn by
the person who submitted the ballot prior to the conclusion of the public testimony
on the proposed assessment at the hearing required pursuant to subdivision (d).”
Section 53753, subdivision (e) provides in pertinent part: “At the conclusion of the
public hearing conducted pursuant to subdivision (d), an impartial person
designated by the agency who does not have a vested interest in the outcome of
the proposed assessment shall tabulate the assessment ballots submitted, and not
withdrawn, in support of or opposition to the proposed assessment. . . . [¶] . . .
During and after the tabulation, the assessment ballots shall be treated as
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disclosable public records, as defined in Section 6252, and equally available for
inspection by the proponents and the opponents of the proposed assessment.”
(Italics added.)
Most of the other original provisions of section 53753, including the
requirement that ballots be signed and the proviso that these procedures are not
elections within the meaning of article II, were not modified by the 2000
amendment and remain in force today.
III.
DISCUSSION
We review questions of law about the meaning of Proposition 218, as other
questions of law, de novo. (Apartment Assn. of Los Angeles County v. City of Los
Angeles (2001) 24 Cal.4th 830, 836.)
Here, article II, section 7, provides that “[v]oting shall be secret.” The
“ „right to a secret ballot . . . is the very foundation of our election system.‟ ”
(Scott v. Kenyon (1940) 16 Cal.2d 197, 201.) 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.)
Yet although these secrecy requirements have been applied scrupulously to
candidate elections and to initiatives and referenda, elections outside these
traditional electoral areas have not invariably been governed by the constitutional
right of secrecy. Thus in Alden v. Superior Court (1963) 212 Cal.App.2d 764,
770 (Alden), the court concluded that an election to form a water district was not
bound by the constitutional secrecy requirements of the predecessor to article II,
section 7: “The creation of such a district is a legislative act, and the Legislature
may enact conditions, upon the performance of which the district shall be regarded
as organized.” The court cited Tarpey v. McClure (1923) 190 Cal. 593 (Tarpey),
in which the court upheld the constitutionality of the Water Storage District Act of
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1921, which provided for a formation election in which only property owners were
entitled to vote, and each voter was given one vote for each $100 worth of his
land. The Tarpey court concluded that this act did not violate the right to vote
then provided in former II, section 1, by denying “to any but land owners the right
to vote at district elections. . . . [I]t is now clear, in the light of the later decisions,
that those provisions of the constitution „refer to the qualification of electors
entitling them to vote at the ordinary elections, local and general, held in the
course of the usual functions of civil government.‟ [Citations.] „. . . The
formation of this and similar districts is a function pertaining purely to the
legislative branch of the government. Wherefore it may do so by giving such
persons as it may think best an opportunity to be heard.‟ ” (Tarpey, supra, at p.
606.) For the same reason, it denied a challenge to the act based on the
constitutional right to a secret ballot. (Ibid.)
The question is whether and to what extent the right to vote in secret set
forth in article II, section 7 applies to the voting procedures set forth in a different
and more recently enacted constitutional provision, article XIII D, section 6. To
answer this question we first examine the relevant constitutional language.
Whereas section 4 of article XIII D and section 53753 provide in
considerable detail the procedures for obtaining and tabulating assessment ballots,
the description of the procedures for fee elections under article XIII D, section 6 is
quite brief: That section merely provides that a fee or charge must be submitted
and approved either “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.” It further states: “An agency may
adopt procedures similar to those for increases in assessments in the conduct of
elections under this subdivision.”
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To determine whether secrecy requirements apply to fee elections, we
therefore first turn to the procedures for assessment balloting to determine whether
and to what extent assessment balloting requires secrecy. As the Court of Appeal
recognized, although Proposition 218 is silent on the secrecy issue, “[s]everal of
the requirements suggest a nonsecret vote. The ballot must be one „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,‟ which suggests that
these three pieces of information will appear on a single piece of paper in contrast
to the typical election ballot that does not identify the voter. (Art. XIII D, § 4,
subd. (d).) The ballots must be tabulated „[a]t the public hearing,‟ which suggests
the information on the ballot might become public at the hearing. (Art. XIII D,
§ 4, subd. (e).) Finally, ballots must be „weighted according to the proportional
financial obligation of the affected property,‟ which requires the person actually
tabulating the ballots to take the identity of the parcel (and thus of the property
owner) into account, again suggesting a nonsecret procedure.”
The Court of Appeal nonetheless concluded that the question of whether or
not section 4 requires secret voting is unclear. It reasoned that “an agency could
comply with article XIII D, section 4 while maintaining secrecy in voting. The
information on the ballot need not be publicly disclosed at the public hearing. The
persons tabulating the ballots could use the information on the ballot (even if all
gathered on a single piece of paper) to validate, weight, and count the ballots but
keep the information confidential in the absence of a challenge to the balloting
resulting in a court disclosure order. Indeed, this was the procedure prescribed for
the District‟s fee election under the Election Procedures.
“Alternatively, the voter and parcel identifying information could be placed
on the outside of an envelope that contains the ballot, in the manner of absentee
voting. (See Elec. Code, §§ 3010-3011.) The voter‟s qualification could then be
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confirmed and the weight to be accorded the ballot calculated before the ballot
was opened. There would need to be a mechanism to associate the actual vote
with the weight of the ballot, but this could be done using computer coding to
avoid public disclosure of any individual property owner‟s vote (i.e., the
association of a particular voter to a particular vote would be hidden within the
computer databank unless ordered disclosed on a challenge to the balloting) or by
some other mechanism strictly limiting the disclosure of information that would
link the identity of a voter to a yes or no vote.”
But the question is not whether assessment balloting under article XIII D,
section 4 could be done in a manner that protects secrecy. The question rather is
whether section 4 requires secrecy. To address that question, we first review
certain basic tenets of constitutional construction. “ „The principles of
constitutional interpretation are similar to those governing statutory construction.
In interpreting a constitution‟s provisions, our paramount task is to ascertain the
intent of those who enacted it. [Citation.] To determine that intent, we “look first
to the language of the constitutional text, giving the words their ordinary
meaning.” [Citation.] If the language is clear, there is no need for construction.
[Citation.] If the language is ambiguous, however, we consider extrinsic evidence
of the enacting body‟s intent.‟ ” (Professional Engineers in California
Government v. Kempton (2007) 40 Cal.4th 1016, 1037.)
Moreover, “[r]udimentary principles of construction dictate that when
constitutional provisions can reasonably be construed so as to avoid conflict, such
a construction should be adopted. (Serrano v. Priest (1971) 5 Cal.3d 584, 596; see
also Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735.) As a means of avoiding
conflict, a recent, specific provision is deemed to carve out an exception to and
thereby limit an older, general provision. [Citations.]” (Izazaga v. Superior Court
(1991) 54 Cal.3d 356, 371.)
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As noted, section 4, subdivision (d) provides that the ballot must be one
“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,” which, as
the Court of Appeal correctly observed, suggests that these three pieces of
information will appear on a single piece of paper, in contrast to the typical
election ballot that does not identify the voter.3 The provision in section 4,
subdivision (e) that the votes be tabulated at a public hearing also weighs in favor
of interpreting section 4 to authorize nonsecret voting.
Moreover “[i]n cases of ambiguity we also may consult any
contemporaneous constructions of the constitutional provision made by the
Legislature or by administrative agencies.” (City and County of San Francisco v.
County of San Mateo (1995) 10 Cal.4th 554, 563.) “[O]ur past cases establish that
the presumption of constitutionality accorded to legislative acts is particularly
appropriate when the Legislature has enacted a statute with the relevant
constitutional prescriptions clearly in mind. [Citation.] In such a case, the statute
represents a considered legislative judgment as to the appropriate reach of the
3
The Court of Appeal properly rejected Greene‟s argument that the language
in the constitutional provision that “the owner may indicate his or her name,
reasonable identification of the parcel, and his or her support or opposition to the
proposed assessment” (art. XIII D, § 4, subd. (e)) means that voter
self-identification is voluntary: “Greene argues that the use of the word „may‟ in
this passage means that the property owner has the choice whether or not to
identify him- or herself on the ballot. This is not a reasonable construction of the
passage. „May indicate‟ applies not only to the voter‟s name, but also the identity
of the parcel and the property owner‟s vote. Those pieces of information are
essential to counting (and weighting) the property owner‟s vote. Therefore, the
use of „may‟ in the passage has no more significance than if the passage stated that
the agency must provide a ballot whereby the property owner may vote. To the
extent it implies voluntariness, it is the choice whether to vote at all. If the
property owner wants to cast a vote, he or she must provide the listed
information.”
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constitutional provision. Although the ultimate constitutional interpretation must
rest, of course, with the judiciary (see Marbury v. Madison (1803) 5 U.S. (1
Cranch) 137, 176-180), a focused legislative judgment on the question enjoys
significant weight and deference by the courts.” (Pacific Legal Foundation v.
Brown (1981) 29 Cal.3d 168, 180.)
Here, as discussed, section 53753, enacted specifically to address the just-
approved article XIII D, section 4, provides that the provisions of article II, which
includes in section 7 the ballot secrecy provision at issue here, do not apply to the
assessment ballot procedures prescribed in section 4. (§ 53753, subd. (e)(4).) The
statute also provides that the ballots must be signed, further indicating that the
ballot is not secret. (Id., subd. (c).)4 Moreover, as discussed, section 53753 was
4
In supplemental briefing, Greene argued that section 53753, subdivision
(c)‟s signature requirement is an improper amendment of article XIII D, section 4,
subd. (d), relying on our recent case of People v. Kelly (2010) 47 Cal.4th 1008. In
Kelly, we held that Health and Safety Code section 11362.77, which imposed
certain limits on the amount of medical marijuana an individual could possess,
was an improper amendment of the Compassionate Use Act of 1996, an initiative
statute, which imposed no such limits but permitted eligible persons to possess as
much marijuana as was reasonably related to their medical needs. (Kelly, supra, at
p. 1043.) As we noted in Kelly, however, our case law made clear that “the
Legislature remains free to enact laws addressing the general subject matter of an
initiative, or a „related but distinct area‟ of law that an initiative measure „does not
specifically authorize or prohibit.‟ ” (Id. at p. 1026, fn. 19, italics omitted.) Here,
article XIII D, section 4, subdivision (d) requires someone voting on assessments
to “indicate his or her name” but does not specify how this will be done. Section
53753, subdivision (c) makes clear that a signature is one means by which voters
must identify themselves. Thus, section 53753, subdivision (c) is consistent with
article XIII D, section 4, subdivision (d). Nor does that statute significantly
burden or undermine any article XIII D authorization or prohibition. As such, it
does not constitute an improper legislative amendment of an initiative.
Greene also argues that section 53753, subdivision (e)(4) constitutes an
improper amendment by abolishing ballot secrecy. Yet as discussed, that statute,
inasmuch as it pertains to article II, section 7, merely acknowledges that article
(footnote continued on next page)
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later amended to specifically address voter secrecy requirements, and now
provides that the ballots shall be secret before tabulation and public thereafter, but
did not alter the voter identification provisions of assessment ballots.
We therefore conclude, based on all the above, that section 4 of
article XIII D, sets forth a balloting scheme that authorizes (1) a ballot on
which a property owner not only indicates his or her vote, but also his or her name
and parcel; (2) public disclosure of the ballots, at least during and after tabulation.
This conclusion does not fully answer the question before us. As discussed,
article XIII D, section 6 provides for voter approval of property-related fees in
elections in which the sponsoring government agency “may adopt procedures
similar to those for increases in assessments,” obviously referring to section 4.
What does “procedures similar to those for increases in assessments in the conduct
of elections under this subdivision” mean in this context? To answer the question
we identify precisely the kinds of election or balloting procedures set forth in
section 4, governing approval of assessment increases, and which of these may
have been incorporated into section 6 elections.
The procedures in article XIII D, section 4 pertaining to the conduct of
voting on assessments may be separated into three categories. Subdivision (c)
specifies the manner in which the affected property owners will be notified of the
assessment. Subdivision (d) prescribes the basic content of the ballot, and
requires, as discussed above, voter self-identification. Subdivision (e) prescribes
(footnote continued from previous page)
XIII D, section 4 reasonably read does not adhere to the secret ballot procedures
found in conventional elections.
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the manner in which a public hearing is conducted, during which the ballots are
tabulated.
One would expect “the procedures similar to those for increases in
assessments” language in section 6, subdivision (c) to refer to procedures found in
section 4 but not in section 6, otherwise there would be no need to refer to the
former section. Section 4, subdivision (c)‟s notice provisions are similar to those
provided in section 6, subdivision (a)(1). Section 6, subdivision (a)(2) has rules
for conducting a public hearing at which protests will be considered before an
election that are similar to those set forth in section 4, subdivision (e). What
section 6 does not have is any provision regarding the composition of the ballot to
be sent to property owners in the event of an election. It therefore can be
reasonably inferred from the plain language of the statute that “procedures similar
to those for increases in assessments in the conduct of elections under this
subdivision” includes the use of a ballot for property owner fee elections that is
similar to one used to register assessment protests as set forth in section 4,
subdivision (d). As explained above, that ballot includes voter identification of
both the name and the property of the voter on the ballot.
Greene argues that the phrase “procedures similar to those for increases in
assessments in the conduct of elections under this subdivision” refers only to the
procedures to conduct the election exclusively by mail, 5 and not to the contents or
5
Elections Code section 4000, the statute that governs the conduct of
elections wholly by mail, was enacted in 1994 and provided, and still provides, for
elections by mail only in some enumerated circumstances, such as when no more
than 1000 registered voters are eligible to participate. (Stats. 1994, ch. 920, § 2,
pp. 4754-4755.) That statute was amended in 1997 by the same enactment that
added section 53753, discussed above, to provide that all elections and assessment
balloting conducted pursuant to articles XIII C and XIII D may be conducted
exclusively by mail. (Stats. 1997, ch. 38, § 2, p. 365, adding Elec. Code, § 4000,
subd. (c)(9).)
18

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features of the ballot. He cites no authority for this narrow reading, either in the
language, the ballot arguments, or any other available legislative history. If what
section 6 could borrow from section 4 were confined to mail-in ballots, one would
expect appropriately narrow language, rather than the open ended, plural
“procedures similar to.”
Greene argues that the adoption of the requirement that a property
owner/voter identify himself and his property on the ballot only makes sense in the
context of weighted voting, and further argues that section 6 does not permit
weighted voting. The resolution of the question whether section 6 authorizes
weighted voting is not immediately clear. On the one hand, section 6, subdivision
(c) refers to a fee increase “approved by a majority of property owners of the
property subject to the fee,” which Greene argues would preclude weighted
voting. (But see American Federation of Musicians v. Wittstein (1964) 379 U.S.
171, 172, 176 [“fair import” of phrase “by a majority vote of the delegates voting
at a regular convention” includes “weighted” voting].) On the other hand, the
reference in that subdivision to “procedures similar to those for increases in
assessments in the conduct of elections” (art. XIII D, § 6, subd. (c)) may arguably
include weighted voting procedures.
We need not decide this question, however, because the answer does not
affect the resolution of the issue presented. The District did not employ weighted
voting in this case. Rather, we disagree with Greene‟s premise that the nonsecret
voting procedures of section 4 must apply only to weighted voting elections.
Greene argues in effect that whereas weighted voting may require voter
self-identification, property owner elections in which each parcel has one vote
must be conducted with a secret ballot in the manner prescribed in the Elections
Code for mail-in and absentee ballots, in which the identifying information is not
placed on the ballot itself but on the envelope enclosing the ballot. (See Elec.
19

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Code, §§ 3011, 3019, 4100; see also Peterson v. City of San Diego (1983) 34
Cal.3d 225, 227 (Peterson).) Whether one-parcel, one-vote property owner
elections are less amenable to the Elections Code procedures is unclear. It may be
that this type of nonsecret voting is efficacious in verifying the qualification of
property owner/voters and dealing with situations in which more than one vote is
cast for a given property, which can occur, for example, if there is more than one
record owner of a given property or the record owner is not the actual current
owner. Moreover, as discussed above, it is not clear that weighted voting requires
nonsecret elections. What is clear is that article XIII D, section 4, does authorize
ballots on which voters are required to identify themselves and section 6
authorizes election procedures “similar to” section 4. Therefore, in the absence of
explicit language or legislative history to the contrary, we conclude section 6 also
authorizes a ballot with voter self-identification, irrespective of whether weighted
voting is used.6
We therefore conclude that article XIII D, section 6, subdivision (c)
authorizes government agencies to require property owners to identify themselves
and their parcels on the ballot on which they indicate how they are casting their
votes. The fact that such identification is authorized under article XIII D,
6
The Howard Jarvis Taxpayers Association, (Association) the principal
sponsor of Proposition 218, (see Morain & Slater, Cities Brace for Tighter
Budgets After Prop. 218, L.A. Times (Nov. 7, 1996) p. A1) filed an amicus curiae
brief on behalf of Greene, relying in large part on the above argument about
weighted voting. As we have stated: “The opinion of drafters or of legislators who
sponsor an initiative is not relevant since such opinion does not represent the
intent of the electorate and we cannot say with assurance that the voters were
aware of the drafters‟ intent.” (Taxpayers to Limit Campaign Spending v. Fair
Pol. Practices Com. (1990) 51 Cal.3d 744, 765, fn. 10.) As discussed above, we
do not find support for the Association‟s position in the language or ballot
materials, nor in the section 53753 implementing legislation.
20

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however, does not mean that fee elections are devoid of secrecy requirements.
Although “procedures . . . for increases in assessments” in section 6,
subdivision (c) refers to section 4 of that article, it may also be reasonably read to
include procedures subsequently devised by the Legislature to implement section 4
that are consistent with that section. Thus, it may be read to include the
requirement of section 4 that ballots remain secret at least until the time they are
tabulated. Furthermore, it may be the case that some secrecy requirements apply
in section 6 elections even during and after ballot tabulation. After all, the
provision in section 53753, subdivision (e) that the assessment protest ballots
become public records after they are tabulated at a public hearing, may not apply
to section 6 ballots, wherein such a method of tabulation is not required.
We need not decide these questions, because it is undisputed that the
District protected ballot secrecy before the ballots were tabulated and that their
procedures provided for allowing the inspection of the ballots by the public only
pursuant to court order. The Court of Appeal acknowledged the secrecy of the
District‟s procedures, and stated that “[t]hese procedures, if followed, might have
been sufficient to preserve the secrecy of the voting.”
The Court of Appeal nonetheless invalidated the election, reasoning as
follows: “[I]nsofar as the record indicates, voters were not provided any
assurances that their votes would remain confidential both before and after
tabulation of the ballots. Although the election procedures were public
documents, they were not mailed to voters and the materials provided to voters to
describe the election procedures (and included in the record) did not assure them
of voting secrecy. Voters who are required to cast their votes on ballots that
disclose their names and identify the property they own and that must be signed to
be counted, and who are not provided assurances that their votes will be kept
permanently confidential, may reasonably be said to have been „denied their right
21

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to vote‟ (Elec. Code, § 16100, subd. (e)) as that right is protected by article II,
section 7. That is, they have been denied their right to vote freely with the
confidence that their votes will remain secret before and after tabulation of the
ballots.”
We disagree. Proposition 218 together with its subsequent implementing
legislation provides specific, sui generis procedures for conducting assessment
protest balloting, and permits local government agencies to use similar procedures
in conducting fee elections. Nowhere in either section 4 or section 6 of article
XIII D, nor in section 53753, are such assurances required. Nor does article II,
section 7, on its face, require such assurances.
This is not to say that such notice may not be provided, nor that it is not
desirable. But the fact that a court may devise in retrospect a procedure that would
have increased the perception of ballot secrecy does not mean that the failure to
adopt such a procedure requires invalidation of the election. Section 6,
subdivision (c) by its plain terms was intended to provide a safe harbor for
localities that conduct fee elections using procedures similar to the procedures
prescribed for assessment balloting. We conclude that because the District
adopted such procedures, the election was therefore lawful.7
7
As noted, we recognize the Elections Code provides that in the case of
mail-in and absentee ballots, information identifying the voter be on an envelope
that allows election officials to verify the voter‟s qualification, but in which the
ballot itself contains no identifying information. (See Elec. Code, §§ 3011, 3019,
4100; see also Peterson, supra, 34 Cal.3d at p. 227.) We do not suggest that the
procedures employed by the District in the present case are the equivalent of the
procedures prescribed in the Elections Code, nor that the District‟s procedures
would pass muster under article II, section 7. We hold only that section 6,
subdivision (c) authorized the District to devise such a ballot and such procedures
for fee elections.
22

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In arriving at the contrary conclusion, the Court of Appeal focused, and
Greene now focuses, on the use of the words “vote” and “election” in the
Proposition 218 ballot pamphlet. The Court of Appeal noted that the Legislative
Analyst‟s analysis of the initiative used the words “election” and “vote” for both
the assessment balloting procedure and for fee elections. (See Ballot Pamp., Gen.
Elec. (Nov. 5, 1996) Legis. Analyst, analysis of Prop. 218, pp. 73-74.) The court
further stated: “The overwhelming focus of the arguments in support of and in
opposition to the initiative was also on the issue of voting rights. Proponents of
the measure argued that the initiative would „guarantee[] your right to vote on
local tax increases—even when they are called something else, like “assessments”
or “fees” . . . .‟ (Ballot Pamp., Gen. Elec., supra, argument in favor of Prop. 218,
p. 76.) After describing how local politicians had used assessments to create
loopholes in Proposition 13‟s requirement of voter approval for taxes, the
proponents argued, „TAXPAYERS HAVE NO RIGHT TO VOTE ON THESE
TAX INCREASES AND OTHERS LIKE THEM UNLESS PROPOSITION 218
PASSES!‟ (Ballot Pamp., at p. 76.) The proponents repeatedly argued that the
initiative „gives taxpayers the right to vote on taxes.‟ (Id. at p. 77.) Opponents of
the measure also focused on voting rights, but alleged that those rights would be
infringed because of the property qualification for voting on assessments and the
weighting of assessment ballots. The opponents did not suggest that voting rights
would be further infringed by the absence of a secret ballot. Neither did the
proponents. Voters reading these ballot arguments would reasonably conclude
that „voting rights‟ were at issue and that those rights arguably were infringed by
limiting one‟s voting rights according to property qualifications and weighted
ballots. In other respects, however, voting rights were preserved or enhanced.”
The argument proves too much. The proponents in the passage quoted
above referred to the right to vote on assessments, and indeed Proposition 218 was
23

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designed to do just that. But as discussed above, Proposition 218 did not
contemplate a secret ballot in the traditional sense for those casting assessment
protests, as is evident from the plain language of article XIII D, section 4.
Therefore, the use of the term “vote” in the ballot arguments did not by itself
indicate that there would be a secret ballot.
Greene cites dictum in Bighorn-Desert View Water Agency v. Verjil (2006)
39 Cal.4th 205, 213 (Bighorn): “[W]hen 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.” Greene then argues that the term “election” is used in
article XIII C, also enacted as part of Proposition 218, to apply to voter approval
of special and general taxes, conventional elections that clearly contemplate secret
ballots. (See art. XIII C, § 2.) It must therefore be the case, he argues, that
“elections” referred to in article XIII D must also contemplate secret ballots.
The problem with this argument is suggested by Bighorn itself. In that
case, we addressed whether water delivery charges to existing customers were fees
or charges within the meaning of article XIII C, section 3, which authorizes use of
the initiative power to reduce or repeal such fees or charges. We stated: “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.” (Bighorn, supra, 39 Cal.4th at pp. 213-214, latter italics added.) In that
case, we further noted that it was possible that the terms “fee” and “charge” did
have different meanings in articles XIII C and XIII D, because those terms in the
former article did not seem to be limited to “property-related” fees, as they were in
the latter article. (Bighorn, at pp. 215-216.)
In the present case, the term “election” is a general one in which many
variations are possible, and there is no reason to assume procedural uniformity in
24

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every statute in which the term is used. Thus, for example, the fee elections in
section 6, subdivision (c) authorize limiting the election to only property owners,
while most other elections, including elections pertaining to special and general
taxes in article XIII C, section 2, do not permit property qualifications. The
elections authorized by Proposition 218 may be conducted by mail alone, while
most other elections may not be. (Elec. Code, § 4000, subd. (c)(9).) There is no
reason to suppose that the term “election” has a core meaning of ballot secrecy
when the specific constitutional provisions authorizing the election indicate
otherwise.
Nor do we find convincing the argument by Greene and the amici curiae in
support of his position that the presumption against implied partial repeal (see Stop
Youth Addiction, Inc. v. Lucky Stores, Inc. (1998) 17 Cal.4th 553, 569) means that
we should presume section 6 intended to incorporate article II‟s secrecy provision.
As noted above, our case law has held that property owner elections are generally
not subject to constitutional voter secrecy requirements. (See Tarpey, supra, 190
Cal. at p. 606; Alden, supra, 212 Cal.App.2d at p. 770.)8 This case law largely
undercuts the implied repeal argument, because section 6, subdivision (c) as
construed by the District continues rather than repeals existing law pertaining to
ballot secrecy.
8
It is also well-established the state constitutional provision prohibiting
property qualification for electors and the one-person, one-vote requirement rooted
in the state and federal equal protection provisions do not apply to fee and
assessment elections conducted by limited purpose government agencies that
disproportionately affect certain property owners. (See Salyer Land Co. v. Tulare
Water District (1973) 410 U.S. 719, 728; Southern Cal. Rapid Transit Dist. v
Bolen (1992) 1 Cal.4th 654, 665; Potter v. Santa Barbara (1911) 160 Cal. 349,
355-356.)
25

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The Court of Appeal acknowledged the earlier cases, but found them
inapposite, relying on our recent opinion in Silicon Valley Taxpayers’ Assn., Inc.
v. Santa Clara County Open Space Authority (2008) 44 Cal.4th 431 (Silicon
Valley).) In Silicon Valley, we considered whether judicial review of a
government agency‟s decision to impose an assessment pursuant to Proposition
218 should employ the deferential abuse of discretion standard used for reviewing
assessments in pre-Proposition 218 cases, or if Proposition 218 required
independent review. Our task was to interpret article XIII D, section 4,
subdivision (f), which states: “In any legal action contesting the validity of any
assessment, the burden shall be on the agency to demonstrate that the property or
properties in question receive a special benefit over and above the benefits
conferred on the public at large and that the amount of any contested assessment is
proportional to, and no greater than, the benefits conferred on the property or
properties in question.” Our review of the arguments in favor of Proposition 218
indicated that this provision was intended to overturn the line of cases, most
recently our decision in Knox v. City of Orland, supra, 4 Cal.4th 132, that held a
deferential review of local government assessments was required. (Silicon Valley,
supra, 44 Cal.4th at pp. 445-446.) We further concluded that the primary basis for
deferential review, separation of powers and judicial deference to legislative acts,
no longer applied after Proposition 218, a constitutional amendment designed to
limit local legislative power. (Silicon Valley, supra, 44 Cal.4th at pp. 447-448.)
“Before Proposition 218 became law, special assessment laws were generally
statutory, and the constitutional separation of powers doctrine served as a
foundation for a more deferential standard of review by the courts. But after
Proposition 218 passed, an assessment‟s validity, including the substantive
requirements, is now a constitutional question. „There is a clear limitation . . .
26

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upon the power of the Legislature to regulate the exercise of a constitutional right.‟
[Citation.]” (Silicon Valley, supra, 44 Cal.4th at p. 448.)
The Court of Appeal in the present case concluded that “[w]hile the specific
holding of Silicon Valley, supra, 44 Cal.4th 431, is not directly relevant to this
appeal, the court‟s analysis provides a template for ours. The Tarpey line of cases
held that article II, former section 5 (now art. II, § 7) and other constitutional
provisions governing elections were inapplicable to assessment elections because
voter approval procedures for assessments were matters of legislative discretion
and were not constitutionally compelled. (See Tarpey, supra, 190 Cal. at p. 606.)
Under Proposition 218, however, voter approval procedures for assessments and
fees now have constitutional status. (Art. XIII D.) The Legislature is no longer
free to impose an assessment „without organizing a district as such at all, and
without giving the landowners within the district any voice in the selection of the
managers or trustees.‟ [Citation.] An election now takes place not because of the
progressive spirit of the Legislature, but due to the „compulsion of the law.‟
[Citation.] Therefore, the rationale of the pre-Proposition 218 cases no longer
applies.”
The Court of Appeal was correct that “the specific holding of Silicon
Valley, supra, 44 Cal.4th 431, is not directly relevant to this appeal,” but incorrect
in supposing it provides some kind of “template” for the present case. Silicon
Valley was concerned with the standard of judicial review of local legislative acts,
which Proposition 218 had changed by imposing constitutional constraints on
local governments that courts were to enforce by heightened scrutiny. Here, the
the role of courts is not in question: it is undisputed that courts can invalidate
elections that are conducted contrary to the provisions of Proposition 218. Nor is
there any doubt that Proposition 218 could have overruled earlier cases regarding
secret balloting in property owner elections; the question is whether it intended to
27

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do so. In contrast to Silicon Valley, where a specific provision of Proposition 218,
article XIII D, section 4, subdivision (f), as well as the accompanying ballot
arguments, strongly indicate an intent to overrule earlier cases providing a
deferential judicial review standard, here neither the language nor the ballot
arguments suggest any intent to overrule earlier cases holding that property owner
elections are generally not subject to secret ballot requirements.
The Court of Appeal also reasoned that the uncodified section 5 of
Proposition 218 supported its position. As noted, that section states: “The
provisions of this act shall be liberally construed to effectuate its purposes of
limiting local government revenue and enhancing taxpayer consent.” (Prop. 218,
§ 5, Stats. 1996, p. A-299; also reprinted at Historical Notes, 2A West‟s Ann.
Const., supra, foll. art. 13 C, p. 110.) We disagree that section 5 supports the
Court of Appeal‟s or Greene‟s position. It is clear from article XIII D, section 4,
that a method of assessment balloting is authorized in which the value of ballot
secrecy was to some degree displaced by the value of openness and transparency
in the ballot tabulation process. The language of section 6 indicates that local
governments were given the discretion to adopt a similar method. We cannot say
that this method, striking this particular balance between secrecy and transparency,
is less effective in promoting the goals of limiting local government revenue and
enhancing taxpayer consent.
28

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In sum, the District conducted an election in accord with the literal
language of article section 6, subdivision (c), using ballots that were substantially
similar to those authorized under section 4, and took measures to provide for ballot
secrecy notwithstanding the fact that the ballots required the voters to disclose
their identities. Whether or not more secrecy could have or should have been
provided in the form of voter assurances or other protective measures, we cannot
say that section 6(c) requires such measures. We therefore conclude there is no
basis for invalidating the fee election at issue here.
IV.
DISPOSITION
The judgment of the Court of Appeal is reversed and the cause is remanded
with directions to reinstate the judgment of the trial court denying Greene‟s
election contest.
MORENO, J.
WE CONCUR: GEORGE, C. J.
KENNARD, J.
CHIN, J.
CORRIGAN, J.
REARDON, J.*
RAYE, J.**

______________________
*
Associate Justice, Court of Appeal, First Appellate District, Division Four,
assigned by the Chief Justice pursuant to article VI, section 6 of the California
Constitution.
**
Associate Justice, Court of Appeal, Third Appellate District, assigned by
the Chief Justice pursuant to article VI, section 6 of the California Constitution.
29

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

Name of Opinion Greene v. Marin County Flood Control & Water Conservation District
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted XXX 171 Cal.App.4th 1458
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S172199
Date Filed: June 7, 2010
__________________________________________________________________________________

Court:

Superior
County: Marin
Judge: Lynn Duryee

__________________________________________________________________________________

Attorneys for Appellant:

Ford Greene, in pro. per., for Plaintiff and Appellant.

Jack Cohen as Amicus Curiae on behalf of Plaintiff and Appellant.

Trevor A. Grimm, Jonathan M. Coupal and Timothy A. Bittle for Howard Jarvis Taxpayers Association as
Amicus Curiae on behalf of Plaintiff and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Patrick K. Faulkner, County Counsel, Sheila Shah Lichtblau, Deputy County Counsel; Colantuono &
Levin, Michael G. Colantuono and Erwin M. Benedicto for Defendant and Respondent.

Daniel S Hentschke for California Water Agencies, California Special Districts Association, California
State Association of Counties and League of California Cities as Amici Curiae on behalf of Defendant and
Respondent.

Ogletree, Deakins, Nash, Smoak & Stewart and Thomas M. McInerney for Interveners and Respondents.

---

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

Ford Greene
Hub Law Offices
711 Sir Francis Drake Boulevard
San Anselmo, CA 94960
(415) 258-0360

Michael G. Colantuono
Colantuono & Levin
300 South Grand Avenue, Suite 2700
Los Angeles, CA 90071-3137
(213) 542-5700

---

Petition for review after the Court of Appeal reversed the judgment in a civil action. This case presents the following issues: (1) Does the secret voting requirement contained in article II, section 7, of the California Constitution apply to special elections conducted by local agencies pursuant to article XIII, section D, of the California Constitution, enacted by voters as Proposition 218, to assess a fee against property owners benefited by a particular project? (2) If so, was that secrecy requirement violated here, even though the District's voting procedures were designed to ensure the secrecy of the vote, because the District failed to provide each voter with an individualized assurance that his or her vote would be held in confidence?

Opinion Information

Date:	Citation:	Docket Number:	Category:	Status:
Mon, 06/07/2010	49 Cal. 4th 277, 231 P.3d 350, 109 Cal. Rptr. 3d 620	S172199	Review - Civil Appeal	submitted/opinion due

Opinion Authors
Opinion	Justice Carlos R. Moreno

Dockets
Apr 20 2009	Petition for review filed Defendant and Respondent: Marin County Flood Control & Water Conservation DistrictAttorney: Sheila Marise Lichtblau
Apr 20 2009	Record requested
May 8 2009	Request for extension of time filed   Appellant requesting extension until May 18, 2009 to file answer to petition for review. by Ford Green, appellant, pro per
May 13 2009	Extension of time granted   On application of appellant and good cause appearing, it is ordered that the time to serve and file the appellant's answer to petition for review is hereby extended to and including May 18, 2009.
May 19 2009	Answer to petition for review filed Plaintiff and Appellant: Greene, FordAttorney: Ford Greene   crc.8.25(b)
May 29 2009	Reply to answer to petition filed Defendant and Respondent: Marin County Flood Control & Water Conservation DistrictAttorney: Michael G. Colantuono
Jun 12 2009	Time extended to grant or deny review   The time for granting or denying review in the above-entitled matter is hereby extended to and including July 17, 2009, or the date upon which review is either granted or denied.
Jun 17 2009	Order filed   The order filed on June 12, 2009, extending the time to grant or deny review is hereby amended to reflect the title above.
Jun 24 2009	Petition for review granted   Werdegar, J., was recused and did not participate. Votes: George, C.J., Kennard, Moreno, and Corrigan, JJ.
Jun 24 2009	Record requested
Jun 24 2009	Received Court of Appeal record   one file folder/briefs/one accordian folder one brown accordian envelope, manila envelope and loose briefs.
Jul 6 2009	Certification of interested entities or persons filed   on behalf of appellant Marin County Flood Control and Water Conservation District. Erwin M. Benedicto, counsel
Jul 9 2009	Certification of interested entities or persons filed   Appellant, Ford Green Law office of Ford Greene.
Jul 10 2009	Certification of interested entities or persons filed   Flood Mitigation League & Friends of Corte Madera Creek, Intervenor and respondent by Thomas Michael McInerney, counsel
Jul 24 2009	Opening brief on the merits filed Intervener and Respondent: Flood Mitigation League of Ross ValleyAttorney: Thomas McInerney Intervener and Respondent: Friends of the Corte Madera Creek WatershedAttorney: Thomas McInerney   Flood Mitigation League of Ross Valley, Intervenor & Respondent by thomas M. McInerney, counsel
Jul 24 2009	Request for judicial notice filed (Grant or AA case) Intervener and Respondent: Flood Mitigation League of Ross ValleyAttorney: Thomas McInerney   Flood Mitigation League of Ross Valley, Intervenor and Respondent by Thomas M. McInerneny
Jul 24 2009	Opening brief on the merits filed Defendant and Respondent: Marin County Flood Control & Water Conservation DistrictAttorney: Michael G. Colantuono Attorney: Sheila Marise Lichtblau   Marin County Flood Control & Water Conservation District, Defendant and Respondent Michael Colantuono, Retained Counsel Sheila Lichtblau, County counsel
Jul 27 2009	Request for judicial notice filed (Grant or AA case) Defendant and Respondent: Marin County Flood Control & Water Conservation DistrictAttorney: Michael G. Colantuono Attorney: Sheila Marise Lichtblau
Aug 3 2009	Change of contact information filed for:   Michael G. Colantuono, counsel for respondent
Aug 18 2009	Request for extension of time filed   Ford Greene, appellant, pro per Appellant - Forde Green requesting forty five day extension until October 8, 2009 to file answer brief on the merits.
Aug 25 2009	Extension of time granted   On application of appellant and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including October 8, 2009. No further extensions to be contemplated.
Oct 9 2009	Received:   appellants opening brief on the merits in excess of 234 words. Waiting for permission to file.
Oct 9 2009	Answer brief on the merits filed Plaintiff and Appellant: Greene, FordAttorney: Ford Greene
Oct 9 2009	Request for judicial notice filed (Grant or AA case) Plaintiff and Appellant: Greene, FordAttorney: Ford Greene
Oct 29 2009	Reply brief filed (case fully briefed) Defendant and Respondent: Marin County Flood Control & Water Conservation DistrictAttorney: Michael G. Colantuono
Oct 30 2009	Application to file amicus curiae brief filed   Association of California Water Agencies, et al., in support of Respondent, Marin County Flood Control and Water Conservatin District. by counsel, Daniel S. Hentschke.
Nov 4 2009	Permission to file amicus curiae brief granted   The application of Association of California Water Agencies, California Special Districts Association, California State Association of Counties, and League of California Cities for permission to file an amicus curiae brief in support of Defendant and Respondent, Marin County Flood Control and Water Conservation District is hereby granted. An answer thereto may be served and filed by any party within 20 days of the filing of the brief.
Nov 4 2009	Amicus curiae brief filed Amicus curiae: Association of California Water AgenciesAttorney: Daniel S. Hentschke
Nov 24 2009	Response to amicus curiae brief filed Plaintiff and Appellant: Greene, FordAttorney: Ford Greene
Nov 30 2009	Application to file amicus curiae brief filed   Jack Cohen, Esq., in support of Appellant. By counsel, Jack Cohen.
Dec 1 2009	Application to file amicus curiae brief filed   8.25(b) Howard Jarvis Taxpayers Association in support of Appellant. By counsel, Timothy A. Bittle.
Dec 4 2009	Permission to file amicus curiae brief granted   Howard Jarvis Taxpayers Association in support of appellant.
Dec 4 2009	Amicus curiae brief filed Amicus curiae: Haward Jarvis Taxpayers AssociationAttorney: Timothy A. Bittle   The application of Howard Jarvis Taxpayers Association for permission to file an amicus curiae brief in support of Appellant is hereby granted. An answer thereto may be served and filed by any party within 20 days of the filing of the brief.
Dec 4 2009	Permission to file amicus curiae brief granted   Jack Cohen in support of Appellant.
Dec 4 2009	Amicus curiae brief filed Amicus curiae: Cohen, JackAttorney: Jack David Cohen   The application of Jack Cohen for permission to file an amicus curiae brief in support of Appellant is hereby granted. An answer thereto may be served and filed by any party within 20 days of the filing of the brief.
Dec 4 2009	Received:   amended proof of service for Amicus curiae - Howard Jarvis Taxpayers Associaton.
Dec 22 2009	Response to amicus curiae brief filed Defendant and Respondent: Marin County Flood Control & Water Conservation DistrictAttorney: Michael G. Colantuono   [to AC briefs of Jack Cohen and Howard Jarvis Taxpayers Association]
Dec 29 2009	Justice pro tempore assigned   Hon. Vance W. Raye (CA 3) Werdegar, J., recused.
Jan 15 2010	Justice pro tempore assigned   Hon. Timoth A. Reardon, CA 1/4 Baxter, J., recused.
Mar 3 2010	Case ordered on calendar   to be argued Wednesday, April 7, 2010, at 9:00 a.m., in Los Angeles
Mar 10 2010	Filed:   Letter from Sheila Lichtblau, counsel for petitioner Marin County Flood Control & Water Conservation District, requesting to divide oral argument time between its retained appellate counsel and trial counsel (Office of the Marin County Counsel).
Mar 22 2010	Order filed   The request of counsel for respondents in the above-referenced cause to allow two counsel to argue on behalf of respondents at oral argument is hereby granted. The request of respondents to allocate to counsel Michael G. Colantuono 20 minutes and counsel Sheila Lichtblau 10 minutes of respondent's 30-minute allotted time for oral argument is granted.
Mar 29 2010	Supplemental brief filed Plaintiff and Appellant: Greene, FordAttorney: Ford Greene
Apr 7 2010	Cause argued and submitted
Jun 4 2010	Notice of forthcoming opinion posted   To be filed Monday, June 7, 2010 @ 10 a.m.

Briefs
Jul 24 2009	Opening brief on the merits filed Intervener and Respondent: Flood Mitigation League of Ross ValleyAttorney: Thomas McInerney Intervener and Respondent: Friends of the Corte Madera Creek WatershedAttorney: Thomas McInerney
Jul 24 2009	Opening brief on the merits filed Defendant and Respondent: Marin County Flood Control & Water Conservation DistrictAttorney: Michael G. Colantuono Attorney: Sheila Marise Lichtblau
Oct 9 2009	Answer brief on the merits filed Plaintiff and Appellant: Greene, FordAttorney: Ford Greene
Oct 29 2009	Reply brief filed (case fully briefed) Defendant and Respondent: Marin County Flood Control & Water Conservation DistrictAttorney: Michael G. Colantuono
Nov 4 2009	Amicus curiae brief filed Amicus curiae: Association of California Water AgenciesAttorney: Daniel S. Hentschke
Nov 24 2009	Response to amicus curiae brief filed Plaintiff and Appellant: Greene, FordAttorney: Ford Greene
Dec 4 2009	Amicus curiae brief filed Amicus curiae: Haward Jarvis Taxpayers AssociationAttorney: Timothy A. Bittle
Dec 4 2009	Amicus curiae brief filed Amicus curiae: Cohen, JackAttorney: Jack David Cohen
Dec 22 2009	Response to amicus curiae brief filed Defendant and Respondent: Marin County Flood Control & Water Conservation DistrictAttorney: Michael G. Colantuono

Brief Downloads
respondent_marin_county_flood_control_and_water_conservation_district_petition_for_review.pdf (3274815 bytes) - Respondent, Marin County Flood Control and Water Conservation District, Petition for Review
appellants_answer_to_petition_for_review.pdf (1803749 bytes) - Appellant's Answer to Petition for Review
respondent_marin_county_flood_control_and_water_conservation_district_reply_to_answer_to_petition_for_review.pdf (727044 bytes) - Respondent, Marin County Flood Control and Water Conservation District, Reply to Answer to Petition for Review
4respo1.pdf (814069 bytes) - Respondent, Friends of Corte Madera Creek Watershed and Flood Mitigation League of Ross Valley, Opening Brief on the Merits
respondent_friends_of_corte_madera_creek_watershed_and_flood_mitigation_league_of_ross_valley_judicial_notice.pdf (3012217 bytes) - Respondent, Friends of Corte Madera Creek Watershed and Flood Mitigation League of Ross Valley, Judicial Notice
respondent_marin_county_flood_control_and_water_conservation_district_opening_brief_on_the_merits.pdf (2511207 bytes) - Respondent, Marin County Flood Control and Water Conservation District, Opening Brief on the Merits
respondent_marin_county_flood_control_and_water_conservation_district_judicial_notice.pdf (1881354 bytes) - Respondent, Marin County Flood Control and Water Conservation District, Judicial Notice
appellants_answer_brief_on_the_merits.pdf (3115134 bytes) - Appellant's Answer Brief on the Merits
appellants_judicial_notice-vol_1_of_2.pdf (5292770 bytes) - Appellant's Judicial Notice - Vol. 1 of 2
appellants_judicial_notice-vol_2_of_2.pdf (6665621 bytes) - Appellant's Judicial Notice - Vol. 2 of 2
respondent_marin_county_flood_control_and_water_conservation_district_reply_brief_on_the_merits.pdf (947837 bytes) - Respondent, Marin County Flood Control and Water Conservation District, Reply Brief on the Merits

If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website

May 24, 2011 Annotated by matt ezer

Facts On December 31, 2005, severe storms caused flooding in Ross Valley, which resulted in more than $100 million in property damage. In response, in 2007 the Marin County Flood Control and Water Conservation District proposed a new storm drainage fee to fund flood control improvements. Because Article XIII D, Section 6 of the California Constitution requires a election approving any new fee, on May 25, 2007 the District held an election to ratify the proposed fee, which was conducted entirely by mailed ballot. The ballots mailed by the District consisted of a double-sided card with instructions on one side and the actual ballot on the other. The instructions specified that the ballots were to be signed, and the actual ballot contained the name and address of the property owner, the annual fee imposed, the statement of the question to be voted on, yes or no boxes, and a space for the voter to print his name and sign the ballot. The final result of the election, out of 8,059 ballots cast, was 3,208 yes votes, 3,143 no votes, and 1,708 invalidated votes. In total, twenty-one percent of the votes were invalidated, whereas in an average Marin County election only one percent of the ballots are invalidated. Of the invalid ballots, 1,648 of the ballots were rejected because the voter did not sign the ballot. Procedural Posture On August 9, 2007, Ford Greene filed suit, arguing that voters were given insufficient notice of the requirement that they sign the ballot. As an affirmative defense, Greene argued that forcing the voters to sign the ballots violated the secrecy requirement contained in Article II, Section 7 of the California Constitution. The trial court, ruling on the pleadings as stipulated by the parties, found for the District. On appeal, the sole issue decided by the court was the applicability of the secret voting requirement to the fee election required by Article XIII D, Section 6. The Court of Appeals reversed the trial court, concluding that the secret voting requirement did apply to the elections at issue. Relevant Constitutional Language Article XIII D, Section 6(c) of the California Constitution provides, in relevant part, "[a]n agency may adopt procedures similar to those for increases in assessments in the conduct of elections under this subdivision. Article XIII D, Section 4(d) provides, in relevant part, "[e]ach notice mailed to owners of identified parcels within the district shall contain 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." Issue Do the secret voting requirements of Article II of the California Constitution apply to fee elections conducted pursuant to Article XIII D, Section 6 of the California Constitution? Holding The secret voting requirements of Article II are inapplicable to fee elections conducted under Article XIII D, Section 6 if the administering agency adopts the procedures contained in Article XIII D, Section 4. Analysis As an initial matter, the court noted that although "secrecy requirements have been applied scrupulously to candidate elections and referenda, elections outside these traditional electoral areas have not invariably been governed by the constitutional right of secrecy." Because Article XIII D, Section 6 allows an agency to adopt procedures similar to which govern increases in assessments, the Court first examined the procedures for increases in assessments, as laid forth in Article XIII D, Section 4. Because constitutional interpretation requires an interpretation of the intent of those who enacted the text, and that the initial judgment of intent should be made by examining the constitutional text, the Court determined that the text Section 4 did not suggest a secrecy requirement. Section 4 provides that the ballot be one where the owner indicate his or her name, reasonable identification of the parcel, and his or her support or opposition to the proposed assessment, the text suggests that the owner's name and vote will appear on the same piece of paper, a procedure inconsistent with secret voting. Further, Section 4(e) also requires votes to be tabulated at a public hearing, which also "weighs in favor of interpreting Section 4 to authorize nonsecret voting." The Court buttressed its conclusion by noting that "as a means of avoiding conflict, a recent, specific provision is deemed to carve out an exception to . . . an older, general provision," suggesting that the requirements of Article XIII D generally should be interpreted as exceptions to the requirements of Article II. Moreover, in cases of ambiguity in constitutional provisions, it is appropriate to consult contemporaneous constructions of the constitutional provisions by the Legislature, an analysis which is particularly appropriate when the Legislature enacts a statute with a particular amendment clearly in mind. Here, the Legislature enacted Cal. Gov't Code § 53753 in order to add additional procedural requirements to elections conducted under Article XIII D, Section 4. Section 53753 both provides that during and after voting, ballots shall be treated as discloseable public records and that the requirements of Article II do not apply to Section 4 assessment elections, requirements which are also inconsistent with secret voting. Considering all of the above, the Court held that Section 4 assessment elections do not require secret elections. The Court then turned to Article XIII D, Section 6 to determine which procedures prescribed by Section 4 were transferred to Section 6 by the language allowing agencies to use the procedures contained in Section 4. According to the Court, Section 4 contained procedures regulating notice, public hearings, and the ballot. Because Section 6 already contained, in subdivisions (a)(1) and (a)(2), procedures for regulating notice and public hearings, the Court concluded that the language in Section 6 referred to the ballot specifications contained in Section 4. Because Section 4 did not require secret ballots, neither do fee elections conducted pursuant to Section 6. According to the Court, "Section 6(c), by its plain terms, was intended to provide a safe harbor for localities using procedures similar to the procedures prescribed for assessment balloting." Key Related Statutes Cal. Const. art. XIII D http://www.leginfo.ca.gov/.const/.article_13D Cal. Gov't Code § 53753 http://www.leginfo.ca.gov/cgi-bin/displaycode?section=gov&group=53001-54... Tags fee elections, secret voting, ballot requirements, Article II, Article XIII D, imposition of fees Annotation by Matt Ezer

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