Filed 8/11/23

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

ALLIANCE SAN DIEGO et al.,

Plaintiffs and Respondents,

v.

CITY OF SAN DIEGO et al.,

Defendants and Appellants.

 D080199

(Super. Ct. Nos. 37-2021-

00024590-CU-MC-CTL and 37-

2021-00024607-CU-MC-CTL)

APPEAL from a judgment of the Superior Court of San Diego County, 

Kenneth J. Medel, Judge. Reversed and remanded.

Office of the City Attorney, Mara W. Elliott, City Attorney, M. Travis 

Phelps, Assistant City Attorney, and Tyler L. Krentz, Deputy City Attorney, 

for Defendant and Appellant City of San Diego.

Colantuono, Highsmith & Whatley, Michael G. Colantuono, 

Matthew C. Slentz, Abigail A. Mendez, and Vernetra L. Gavin, for Defendant 

and Appellant Yes! For a Better San Diego.

Strumwasser & Woocher, Fredric D. Woocher, and Julia Michel, for 

Plaintiffs and Respondents Alliance San Diego, Isidro D. Ortiz, and 

Michael W. McConnell.
2

Briggs Law Corporation, Cory J. Briggs, and Janna M. Ferraro, for

Plaintiffs and Respondents California Taxpayers Action Network, Donna 

Frye, and Project for Open Government.

Howard Jarvis Taxpayers Foundation, Jonathan M. Coupal, 

Timothy A. Bittle, and Laura E. Dougherty, for Plaintiff and Respondent 

Howard Jarvis Taxpayers Association.

I.

INTRODUCTION

The City of San Diego (the City) placed a citizens’ initiative, 

Measure C, on the ballot for the March 2020 general and special election. 

Measure C raises occupancy taxes on overnight lodging facilities within the 

city based on the lodging’s location in one of three zones, and its revenues are 

designated for convention center upgrades, homeless services, and street 

repairs.

Ballot materials and the ordinance placing Measure C on the ballot 

(but not the text of Measure C) stated that Measure C required a two-thirds 

vote to pass, but by March 2020, at least two trial courts in San Francisco 

had concluded that citizens’ initiatives, like Measure C, required only a 

simple majority. Measure C received 65.24 percent of the votes cast. In 

April 2020, the City adopted a resolution that stated the number votes for 

and against Measure C and identified that there was a split of authority 

about the voter threshold requirement for a citizens’ initiative but did not

state whether or not Measure C passed. 

By April 2021, several appellate courts had concluded a citizens’

initiatives required a simple majority, and the City adopted a resolution 

declaring that Measure C had passed. It also adopted several resolutions to 

authorize funding based on Measure C’s terms.
3

Alliance San Diego (Alliance) filed a verified petition for writ of 

mandate and complaint for a reverse validation action, seeking a 

determination that the resolution declaring Measure C passed was invalid, 

and the City filed a validation action, seeking a determination its funding 

resolutions and its declaration that Measure C passed were valid. Several 

individuals and entities filed answers to the City’s validation complaint 

(collectively, the opponents).

The Howard Jarvis Taxpayers Association (HJTA) filed a motion for 

judgment on the pleadings, which the trial court granted. In its order, the 

court concluded a two-thirds majority voter threshold applied to Measure C;

the failure to apply that threshold violated due process and constituted a 

“fraud upon the voters”; and the City failed to comply with its duty to declare 

whether Measure C passed immediately after the election, in 2020. The court 

entered judgment against the City. 

The City and Yes! For a Better San Diego (Yes Committee),1 which had 

supported Measure C, contend on appeal that a citizens’ initiative must 

receive a simple majority to pass. Thus, they contend Measure C does not 

violate Propositions 13 or 218, which require two-thirds of voters. They 

further contend the court erred by determining a two-thirds voter threshold 

applied to Measure C and by concluding the City’s application of a simple 

majority voter threshold violated due process or constituted “fraud on the

voters.” The City and Yes Committee further contend the City did not violate 

the Elections Code2 by delaying the announcement of the outcome of 

1 Yes Committee filed an answer to the City’s validation complaint, 

supporting it.

2 Statutory references are to the Elections Code unless otherwise 

specified. 
4

Measure C, but if it did, the delay does not warrant invalidating Measure C. 

Finally, they maintain Measure C does not violate Proposition 219, and they 

contend Measure C is a citizens’ initiative. They ask us to direct the trial 

court to grant them judgment on the pleadings.

We assume, as the trial court did, that Measure C is a citizens’ 

initiative and conclude Propositions 13 and 218 do not apply to it. We also 

find that application of the simple majority voting requirement did not 

violate due process or constitute “fraud on the voters,” even though ballot 

materials and the ordinance placing the measure on the ballot stated a twothirds threshold applied, and that the City’s delay in stating Measure C

passed does not warrant invalidating it. We further determine that 

Measure C does not violate Proposition 219. Because we conclude that 

Measure C was subject to a simple majority, it was error to grant judgment 

on the pleadings. Thus, we reverse that judgment. However, these

determinations are based on the assumption that Measure C is a citizens’ 

initiative, and we find that the record is not sufficiently developed to consider 

the challenge to that assumption raised by affirmative defense in the 

California Taxpayers Action Network’s (CTAN) answer to the City’s 

validation complaint. Thus, we remand the matter for further proceedings.

II.

BACKGROUND AND PROCEDURAL FACTS

The ballot materials for the March 3, 2020 municipal primary election 

and municipal special election included Measure C, “Hotel Visitor Tax 

Increase for Convention Center Expansion, Homelessness Programs and 

Street Repairs.” Measure C qualified for the ballot because it received a 

sufficient number of valid signatures from registered city voters to qualify as 
5

a citizen’s initiative. It was promoted by a coalition of homeless rights 

advocates, civic and community activists, labor unions, and businesses. 

Measure C proposed adding a new division 2, “Additional, VoterApproved Transient Occupancy Tax and Related Bonds” to chapter 3, 

article 5 of the San Diego Municipal Code. Newly added San Diego Municipal 

Code section 35.0201, subdivision (a) would increase the city’s occupancy tax 

applied to overnight facilities by between 1.25 and 3.25 percent, depending on 

the geographic location of the property. The highest increase, 3.25 percent, 

would be placed on visitors staying at facilities in the general vicinity of 

downtown San Diego. More central facilities would impose a 2.25 percent 

increase in the transient occupancy tax, and facilities at the far northern and 

southern portions of the city would see increased tax rates of 1.25 percent. 

Measure C would require the additional tax revenues be used for special 

purpose activities, defined as homelessness programs, street repairs, and 

convention center improvements, operations, support activities, and business 

development programs. 

Measure C would also authorize the city to issue and sell bonds, to be 

repaid using the applicable allocated portion of the additional tax revenues, 

up to specific caps of maximum bond indebtedness. The bonds issued 

pursuant to Measure C would be limited obligations of the city and payable 

only from the additional tax revenues. 

The substance of Measure C does not state a threshold requirement for 

voter approval. The voter information pamphlet stated above the official title 

and summary of Measure C that “passage of this measure requires the 

affirmative vote of two-thirds of those qualified electors voting on the 

matter.” It described the measure as “the result of a citizens’ initiative 

petition.” The ballot summary stated, “[t]he measure authorizes a special 
6

tax, meaning the additional revenue is designated for specific purposes and 

thus requires a two-thirds vote for approval.” The city attorney’s impartial 

analysis explained that “[v]oter signatures qualified this citizens’ initiative 

measure for the ballot.” The remaining ballot materials, including the full 

text of Measure C did not address the voter threshold requirement.

The city council adopted Ordinance No. O-21143 on November 4, 2019. 

That ordinance placed Measure C on the ballot. Ordinance O-21143 states, 

“Passage of this measure requires the affirmative vote of two-thirds of those 

qualified electors voting on the matter at the Municipal Special Election.” 

The election was held on March 3, 2020. The city clerk certified the 

results, stating that “for said proposition the vote was 239,024 (65.24%),” and 

“[a]gainst said proposition the vote was 127,349 (34.76%).” The Certificate of 

the City Clerk (Certificate) also stated that “the total vote was 366,373” and 

the “proposition requires a two-thirds majority to be adopted by the voters.” 

It did not state that Measure C passed or that it failed. 

On April 7, 2020, the city council adopted resolution R-312901 (the 

April 2020 Resolution). The April 2020 Resolution stated that “declaring the 

results of a municipal election as certified by the . . . City Clerk is a 

ministerial act required by California Elections Code section 10263.” It also 

stated that there were 366,373 votes cast upon Measure C in the municipal 

special election, 239,024 (65.24 percent) of the votes were in favor of 

Measure C, and 127,349 (34.76 percent) of the votes were against Measure C. 

The city staff draft resolution declared Measure C failed. The April 

2020 Resolution that the city council ultimately adopted stated that (1) a split 

of authority existed in California as to whether a simple majority vote or a 

two-thirds supermajority vote was required for the passage of a special tax 

proposed by a citizens’ initiative; (2) the ballot and the ballot pamphlet stated 
7

a two-thirds threshold was required to approve Measure C; and (3) it was 

anticipated that the California Supreme Court would issue a final decision in 

the future that would resolve the ambiguity of the threshold requirement 

applicable to a special tax proposed by a citizens’ initiative, a decision which 

could impact Measure C. It also explained that the statements on the ballot 

and ballot pamphlet that indicated there was a two-thirds voting 

requirement to approve Measure C were based on the city attorney’s office’s 

determination of the legal precedent and usual practices in California when 

Measure C was submitted for approval by voters. 

By April 2020, two trial courts in San Francisco had concluded that a 

simple majority vote was required to pass a special tax proposed by a citizens’ 

initiative, and one trial court in Fresno and another in Oakland had 

concluded that a two-thirds supermajority vote was required. 

By April 2021, three appellate courts had issued opinions that 

concluded a simple majority vote is required to pass a special tax proposed by 

a citizens’ initiative, and the Supreme Court had denied review of two of 

those cases.3 (Howard Jarvis, supra, 60 Cal.App.5th 227, review den.; City of 

Fresno v. Fresno Building Healthy Communities (2020) 59 Cal.App.5th 220, 

review den. Mar. 30, 2021, S266846 (Fresno); City and County of San 

Francisco v. All Persons Interested in the Matter of Proposition C (2020) 51 

Cal.App.5th 703, review den. Sept. 9, 2020, S263753 (Proposition C).) 

On April 6, 2021, the city council passed resolution R-313485 (the April 

2021 Resolution), which declared Measure C was approved in the March 3, 

2020 election, based on the council’s statement of the results in the April 

3 The Supreme Court also denied review of the decision in Howard 

Jarvis Taxpayers Assn. v. City and County of San Francisco (2021) 60 

Cal.App.5th 227, review den. Apr. 28, 2021, S267516 (Howard Jarvis).
8

2020 Resolution. This resolution superseded the city council’s comments 

regarding Measure C in the April 2020 Resolution. The City also passed 

resolution R-313486, which authorized and approved the issuance and sale of 

homelessness program bonds. Also on April 6, 2021, the city council passed 

resolution R-313487, which authorized and approved the issuance and sale of 

convention center modernization bonds. 

On June 3, 2021, Alliance4 filed a verified petition for writ of mandate 

and complaint for a reverse validation action (case No. 37-2021-00024590-

CU-MC-CTL) challenging the validity of the April 2021 Resolution, which 

declared Measure C had been approved, and all the related actions 

subsequently taken as a result, including resolutions R-313486 and 

R-313487, addressing bonds. The City filed a timely answer on August 9, 

2021. 

On June 4, the City filed a validation action (case No. 37-2021-

00024607-CU-MC-CTL), seeking to validate its authorization and approval of 

the bonds as detailed in resolutions R-313486 and R-313487, as well as any 

actions that could affect the validity of those resolutions, including the 

determination that Measure C was approved in the April 2021 Resolution. 

The court in the validation action signed an order for publication of 

summons on June 21, 2021, and the summons and complaint were posted. 

Timely answers were filed by (1) HJTA; (2) CTAN;5 (3) Alliance; and (4) the 

Yes Committee. The first three answers denied the allegations and asked the 

4 Alliance was joined by individual plaintiffs Isidro D. Ortiz, the Board 

Chair of Alliance, and Michael W. McConnell. We refer to them collectively 

as Alliance.

5 CTAN was joined by individual defendant Donna Frye and Project for 

Open Government. We refer to them collectively as CTAN. 
9

court to invalidate Measure C. Yes Committee’s answer supported the City’s 

position that Measure C was valid.

On September 15, 2021, the validation and reverse validation actions 

were consolidated for all purposes. 

HJTA and Alliance moved for judgment on the pleadings, arguing that 

the City informed voters that Measure C would require a two-thirds approval

and improperly applied a simple majority. HJTA also argued that Measure C 

violated Propositions 13, 218, and 219. CTAN joined in the motion. 

The court granted judgment on the pleadings. It determined that 

Hass v. City Council of the City of Palm Springs (1956) 139 Cal.App.2d 73 

(Hass) was controlling and concluded that Ordinance No. O-21143 placing 

Measure C on the ballot was official legislation that established the rules of 

the election. Because the ordinance stated that passage of the measure 

required the affirmative vote of two-thirds of the qualified voters who voted 

on the matter, the court found that the City changed the rules after the 

election by reducing the required threshold to a simple majority. The court 

consequently determined that the adoption of the subsequent resolutions was 

fundamentally unfair and violated due process. The court also concluded the 

city council lacked the authority to declare election results without also 

declaring whether Measure C passed or failed. 

The court entered judgment against the City on May 2, 2022,

invalidating the April 2021 Resolution and directing the City to refrain from 

implementing or enforcing Measure C or any resolutions dependent on its 

passage. The City and Yes Committee filed timely notices of appeal. 
10

III.

DISCUSSION

We review a judgment on the pleadings de novo. (People ex rel. 

Harris v. Pac Anchor Transportation, Inc. (2014) 59 Cal.4th 772, 777.) We 

also independently review trial court decisions about whether a tax meets 

legal requirements (e.g., Silicon Valley Taxpayers’ Assn., Inc. v. Santa Clara 

County Open Space Authority (2008) 44 Cal.4th 431, 449-450), as well as due 

process questions (Severson & Werson, P.C. v. Sepehry-Fard (2019) 37 

Cal.App.5th 938, 944.)

With respect to any factual questions, we review the motion for 

judgment on the pleadings to determine if a complaint states facts sufficient 

to state a cause of action under any theory. (Tarin v. Lind (2020) 47 

Cal.App.5th 395, 403-404.)

A. Measure C Does Not Violate Propositions 13 and 218

The California Constitution was amended in 1911 to include the 

initiative power. (California Cannabis Coalition v. City of Upland (2017) 3 

Cal.5th 924, 934 (California Cannabis). “The initiative is the power of the 

electors to propose statutes and amendments to the Constitution and to adopt 

or reject them.” (Cal. Const., art. II, § 8, subd. (a).)6 Viewing the initiative 

power as a power reserved by the people, courts liberally construe this right. 

(California Cannabis, at p. 934.) “When voters exercise the initiative power, 

they do so subject to precious few limits on that power.” (Id. at p. 935, citing 

Rossi v. Brown (1995) 9 Cal.4th 688, 695.) Thus, we “resolve doubts in favor 

of the exercise of the [initiative] right whenever possible.” (California 

Cannabis, at pp. 934, 936.) Further, “procedural requirements imposed on 

6 Unspecified references to “article” are to the California Constitution.
11

the Legislature and local governments do not similarly constrain the 

electorate’s initiative power without evidence that such was their intended 

purpose.” (Id. at p. 935.) This includes the constitutional requirement that 

the Legislature obtain a two-thirds vote before raising taxes (art. XIII A, § 3), 

a requirement that does not apply to voters’ initiatives (California Cannabis,

at p. 935).

Proposition 13 added article XIII A to the state constitution.7 It 

contains four provisions. The first two “ ‘capped the ad valorem real property 

tax rate at 1 percent (art. XIII A, § 1)’ and ‘limited annual increases in real 

property assessment to 2 percent (art. XIII A, § 2).’ [Citation.]” (Proposition 

C, supra, 51 Cal.App.5th at p. 710.) The third provision “required that any 

increase in statewide taxes be approved by two-thirds of both houses of the 

Legislature.’ [Citations.]” (Ibid.; art. XIII A, § 3.) The fourth provision 

required “ ‘that any special tax imposed by a local government entity be 

approved by two-thirds of the qualified electors [citation].’ [Citation.]” 

(Proposition C, at p. 710, citing art. XIII A, § 4.)

Proposition 218 added articles XIII C and XIII D to the state 

Constitution. (Citizens for Fair REU Rates v. City of Redding (2018)

6 Cal.5th 1, 10.) These articles limit the authority of local governments to 

assess real property taxes and charges, as well as other methods to collect 

revenue not based on real property value or ownership. (Ibid.)

In Amador Valley Joint Union High School District v. State Board of 

Equalization (1978) 22 Cal.3d 208, the Supreme Court upheld the 

7 We grant HJTA’s request for judicial notice of the official ballot titles 

and summaries of Propositions 13 and 218. We deny its request for judicial 

notice of an article published by the League of California Cities on August 13, 

2017 interpreting California Cannabis, supra, 3 Cal.5th 924, included in 

Exhibit 3 to the request for judicial notice.
12

constitutionality of Proposition 13. (Id. at p. 219.) There, the court explained 

that it liberally construes the power of initiative to promote the democratic 

process. (Id. at p. 219.) Consistent with this view, when construing the term 

“special tax,” a plurality of the Supreme Court in Los Angeles County 

Transportation Commission v. Richmond (1982) 31 Cal.3d 197 (Richmond), 

explained that the language of article XIII, section 4 should be strictly 

construed, resolving ambiguities “in favor of permitting voters of cities, 

counties and ‘special districts’ to enact ‘special taxes’ by a majority rather 

than two-thirds vote.” (Richmond, at p. 205.) The court described 

Proposition 13 as “fundamentally undemocratic” because it gave one group of 

voters a greater influence on an election’s outcome than another by 

functionally allowing citizens who oppose a measure to have their vote count 

double. (Richmond, at pp. 204-205.) The same year, the Supreme Court 

reiterated in City and County of San Francisco v. Farrell (1982) 32 Cal.3d 47 

(Farrell) that “the language of section 4 must be strictly construed and 

ambiguities therein resolved so as to limit the measures to which the twothirds requirement applies” when it interpreted the term “ ‘special district.’ ” 

(Id. at p. 52.) 

The Supreme Court took this approach in Kennedy Wholesale, Inc. v. 

State Board of Equalization (1991) 53 Cal.3d 245 (Kennedy Wholesale). 

There, the court considered whether Proposition 99, a voter initiative which 

increased the tax on cigarettes and other tobacco products and allocated the 

revenue to tobacco-related problems, violated article XIII A, section 3, which 

had been added to the state Constitution by Proposition 13. (Kennedy 

Wholesale, at pp. 248-249.) The plaintiff argued article XIII A, section 3

permitted only the Legislature to raise taxes, but the Supreme Court held 

Proposition 99 did not violate article XIII A, section 3 because that section 
13

could “reasonably be interpreted not to limit that [initiative] power,” so

Proposition 13 did not limit the power of initiative. (Kennedy Wholesale, at 

pp. 249, 253.) 

Following the reasoning of Kennedy Wholesale, the Supreme Court in 

California Cannabis held that “article XIII C does not limit voters’ ‘power to 

raise taxes by statutory initiative,’ ” commenting that a different holding 

“would require an unreasonably broad construction of the term ‘local 

government’ at the expense of the people’s constitutional right to direct 

democracy, undermining our longstanding and consistent view that courts 

should protect and liberally construe it.” (California Cannabis, supra,

3 Cal.5th at p. 931.) Then, in Proposition C, the First Appellate District, 

Division Four compared article XIII A, section 4 to article XIII A, section 3 

and followed the Supreme Court’s approach in Kennedy Wholesale to conclude 

that the two-thirds vote requirement in article XIII A, section 4 likewise does 

not apply to local initiatives. (Proposition C, supra, 51 Cal.App.5th at p. 715.) 

Explaining that courts have an obligation to harmonize potentially conflicting 

constitutional provisions when possible, the court indicated that 

article XIII A, section 4 did not mention and therefore did not restrict the 

initiative power, and it could not be repealed by implication. (Proposition C, 

at p. 716.) 

To support its conclusion, the court in Proposition C explained that 

there was no evidence voters intended to limit their own power to raise taxes 

because Proposition 13 was directed at politicians and aimed to restore 

government to the people. (Proposition C, supra, 51 Cal.App.5th at p. 716, 

citing Kennedy Wholesale, supra, 53 Cal.3d at pp. 250-251.) It found relevant 

the explanation in Kennedy Wholesale that article II, section 10 “ ‘expressly 

provides that an initiative statute takes effect if “approved by a majority.” ’ ” 
14

(Proposition C, at p. 717, quoting Kennedy Wholesale, at p. 251.) And it noted 

that the official Proposition 13 ballot materials did not indicate any intention 

to limit citizens’ ability to raise local taxes by initiative and to adopt the 

initiatives by majority vote. (Proposition C, at pp. 716-717.) 

Finally, the Proposition C court noted that the Supreme Court has 

explained ambiguous language in article XIII A must be strictly construed to 

limit the measures to which the two-thirds supermajority requirement

applies. (Proposition C, supra, 51 Cal.App.5th at p. 718; Kennedy Wholesale,

supra, 53 Cal.3d at p. 252; Farrell, supra, 32 Cal.3d 47; Richmond, supra, 

31 Cal.3d 197.) It found the principle that ambiguities must be resolved in 

favor of permitting voters to enact special taxes at odds with a construction of 

article XIII, section 4 that would expand the reach of the two-thirds 

requirement to voter initiatives. (Proposition C, at p. 718.) As the First 

Appellate District, Division Four later explained in City and County of San 

Francisco v. All Persons Interested in the Matter of Proposition G (2021)

66 Cal.App.5th 1058 (Proposition G), the terms “ ‘Cities, Counties and special 

districts’ ” found in article XIII A section 4 “must be construed to refer to 

these governmental entities exercising their power to tax through an elected 

board of public officials. The terms do not reach the electorate exercising its 

initiative power.” (Proposition G, at p. 1070.)

Like article XIII A, section 4, article XIII C, section 2, subdivision (d) 

does not reference initiative power. (See Proposition C, supra, 51 

Cal.App.5th at p. 722.) Article XIII C, section 2, subdivision (d) provides, “No 

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.” Article XIII C references “local government” and defines it to include 

“any county, city, city and county, including a charter city or county, any 
15

special district, or any other local or regional governmental entity,” but it 

does not reference the electorate. (art. XIII C, § 1; see Proposition C, at 

p. 722.) This definition of local government, which was added to the 

Constitution through Proposition 218, applies to article XIII C, section 2. 

(California Cannabis, supra, 3 Cal.5th at p. 943.)

Article XIII C, section 2, subdivision (d) must be interpreted in a 

manner consistent with article XIII A, section 4 because “ ‘Proposition 218 is 

Proposition 13’s progeny.’ ” (Proposition C, supra, 51 Cal.App.5th at p. 721.) 

Thus, like the court in Proposition C, we follow controlling precedent and 

conclude “article XIII C does not include the voting electorate.”8 (Id at 

p. 724, citing California Cannabis, supra, 3 Cal.5th at pp. 936-940.)

HJTA contends that the Supreme Court’s approach of strictly 

construing Proposition 13 was retracted in Rider v. County of San Diego

(1991) 1 Cal.4th 1, 5 (Rider). (See Howard Jarvis Taxpayers’ Assn. v. State 

Bd. of Equalization (1993) 20 Cal.App.4th 1598, 1603.) In Rider, the sales

tax at issue would have financed the construction and operation of justice 

facilities, but it did not achieve a two-third majority vote of the county’s 

voters. (Rider, at p. 5.) The San Diego County Board of Supervisors created 

8 HJTA warns that Proposition C’s holding allows government officials to 

circumvent Proposition 13 by acting as voters to qualify a citizens’ initiative 

with 10 percent of the registered voters and then adopting the initiative in 

their government capacity without any need for voter approval. (See § 9215 

[permitting a legislative body to adopt an ordinance without alteration after 

initiative petition is certified as having 10 percent of the registered voters].) 

However, the City’s ordinance placing Measure C on the ballot stated that 

because the council did “not have legal authority under the California 

Constitution to increase a tax on its own vote, . . . [it] could not grant the 

initiative petition and adopt its provisions in full.” It further concluded that 

“initiative measures that seek to increase a tax must be submitted to the 

voters for approval[.]” Thus, it appears that the situation HJTA describes 

was not present here.
16

an agency over which it retained control and discretion, created to avoid 

Proposition 13’s two-thirds vote requirement. (Rider, at p. 8.) Evidence 

amply demonstrated the agency was an empty shell acting at the Board of 

Supervisor’s fiscal discretion because the board retained substantial control 

over operations and expenditures. (Id. at pp. 8-9.) Thus, the Supreme Court 

concluded the agency was a “special district,” whose tax impositions required 

a two-thirds majority. (Id. at p. 10.) It reasoned that the intent of 

Proposition 13 is to restrict the ability of local governments to impose new 

taxes to replace property tax revenues. That intent would be frustrated if 

local governments could arrange the formation of local taxing districts to 

circumvent it. (Rider, at pp. 10-11.) But Rider did not abandon the 

principles outlined in Farrell and Richmond that section 4 should be strictly 

construed and ambiguities resolved in favor of permitting citizens to enact 

special taxes by a majority rather than a supermajority. It did not apply 

limitations to initiative power; it evaluated whether local government acted 

to circumvent the limitations placed on it by Proposition 13. Moreover, as the 

court in Proposition G explained, there is “no conflict between Proposition 

218’s liberal construction clause and the maxim of Richmond and Farrell, 

that ‘the language of section 4 must be strictly construed and ambiguities 

resolved in favor of permitting voters of cities, counties and “special districts” 

to enact “special taxes” by majority rather than two-thirds vote.’ ” 

(Proposition G, supra, 66 Cal.App.5th at p. 1072.)

HJTA argues that case law following Proposition 13 and predating 

Proposition 218 confirmed an understanding that a two-thirds requirement 

applied to all local, special taxes, regardless of how they were proposed. To 

support this proposition, HJTA explains that citizens’ initiative taxes failed 

for lack of a two-thirds approval in Altadena Library District v. Bloodgood 
17

(1987) 192 Cal.App.3d 585, and it would likewise have failed in City of 

Dublin v. County of Alameda (1993) 14 Cal.App.4th 264 had the court 

determined the charge was a tax instead of a fee. But neither case 

questioned the application of Proposition 13’s two-thirds requirement; they 

did not consider whether the two-thirds approval requirement applied to 

citizens’ initiatives at all. (Proposition G, supra, 66 Cal.App.5th at 

pp. 1070-1071; see also Fresno, supra, 59 Cal.App.5th at p. 235 [issue of 

whether voters validly exercised initiative power not at issue in Altadena].) 

Altadena considered “whether Proposition 13’s requirement that at least twothirds of the voters approve new tax levies is constitutional as applied to a 

library district initiative,” and Dublin contemplated whether the measure 

was a special tax. (Altadena, at p. 586; Dublin, at pp. 281-284; Proposition C,

supra, 51 Cal.App.5th at p. 719.) We do not consider cases for a proposition 

not explored. (See In re Marriage of Cornejo (1996) 13 Cal.4th 381, 388.) 

Instead, as we have explained, case law addressing this issue confirms 

that citizens’ initiatives imposing special taxes need to be approved only by a 

simple majority. (Proposition G, supra, 66 Cal.App.5th at pp. 1070, 1075; 

Howard Jarvis, supra, 60 Cal.App.5th at p. 230; Fresno, supra, 59 

Cal.App.5th at p. 231; Proposition C, supra, 51 Cal.App.5th at p. 715.) We, 

too, conclude that Propositions 13 and 218 do not apply to Measure C.

B. Measure C Required a Simple Majority Vote

Separate from their disagreement over the applicability of 

Propositions 13 and 218, the parties dispute whether the terms of the election 

set a two-thirds voter threshold for Measure C that the City violated. 

Alliance asks us to view the “official pronouncements” that stated a twothirds majority was required to pass Measure C as controlling the election 

outcome, and HJTA suggests we focus on the “voter experience” to determine 
18

what the voting threshold was in this circumstance. The City and Yes 

Committee ask us to apply the law in effect at the time of the election. 

Alliance urges us to follow the trial court’s lead and look to Hass for 

guidance. There, citizens proposed a redistricting ordinance, and when the 

city failed to act on the proposal, the Supreme Court held that the city council 

had a duty to either pass the proposed ordinance or put it to a citywide vote. 

(Hass, supra, 139 Cal.App.2d at p. 74.) The city then took the ordinance 

contained in the initiative petition and submitted it to electors, as directed by 

the Supreme Court. (Ibid.) That ordinance, which was drafted by the 

citizens, included a provision stating that “if three-fourths of the qualified 

electors voted in favor of the ordinance[,] it was to become effective, . . . ” 

(Ibid.) The ballots likewise stated that “ ‘if three-fourths of the qualified 

electors, who vote, vote in favor of said Ordinance No. 293[,] it will provide for 

the redistricting of the presently existing councilmanic districts of the city of 

Palm Springs,’ in the manner described.” (Ibid.) When the ordinance 

received a majority of the votes, but less than three-fourths, the city council 

adopted a resolution declaring that the ordinance was rejected. (Id. at p. 75.) 

The plaintiff filed a writ of mandate to compel the city council to declare the 

ordinance passed because the law did not require a three-fourths majority 

vote for redistricting. (Ibid.) 

The court of appeal did not reach the issue of whether the law required 

a three-fourths majority because “[t]he provision in the ordinance submitted 

at the election and stated in the ballots, that a three-fourths majority was 

required, [was] one which directly affect[ed] the adoption of the entire 

ordinance.” (Hass, supra, 139 Cal.App.2d at p. 76.) In other words, the 

substance of the citizen-drafted ordinance established the three-quarter 

supermajority requirement. Thus, even if the law required only a simple 
19

majority, “the fact remain[ed] that the proposition was not submitted to the 

voters on that basis. . . . [T]he matter was submitted to the voters in the form 

and subject to the condition requested by the signers of the initiative 

petition.” (Ibid.) Thus, the court of appeal concluded that the ordinance did 

not pass because the voting threshold contained within the substance of the 

measure was not met. 

The City and Yes Committee direct us to Jobs & Housing Coalition v. 

City of Oakland (2021) 73 Cal.App.5th 505 (Jobs & Housing). There, a group 

of citizens placed a proposed special parcel tax on the ballot, and city officials 

prepared the corresponding ballot materials. The ballot materials “included 

statements that the measure needed two-thirds of the vote to pass.” (Id. at 

p. 508.) The city auditor’s materials also “stated the measure would go into 

effect ‘if adopted by two-thirds of voters.’ ” (Id. at p. 509.) The measure 

received 62.47 percent of the vote, but the city council adopted a resolution 

declaring that the measure passed and stating that there was uncertainty 

about whether a majority or two-thirds vote had been required. (Ibid.) 

Plaintiffs filed a reverse validation complaint because the measure did 

not receive two-thirds of the vote. (Jobs & Housing, supra, 73 Cal.App.5th at 

p. 509.) They argued that because the ballot materials stated a two-thirds 

vote was needed, declaring the measure had passed constituted a “ ‘post hoc 

bait-and-switch’ that ‘creat[ed] a patent and fundamental unfairness that 

amount[ed] to a violation of due process.’ ” (Id. at pp. 509-510.) Plaintiffs 

there also argued that the city was estopped from claiming that a voting 

threshold below two-thirds governed the enactment of the measure. (Id. at 

p. 510.) Citing Hass, the trial court granted the plaintiffs judgment on the 

pleadings in part because “voters had been told that passage required a two-
20

thirds vote, and allowing the measure to go into effect with fewer votes would 

amount to a ‘fraud on the voters.’ ” (Ibid.)

The Court of Appeal reversed the trial court. It “acknowledge[d] the 

critical importance of true and impartial ballot materials” and recognized 

that “voters are entitled to be given a true and impartial summary of 

initiative measures.” (Jobs & Housing, supra, 73 Cal.App.5th at pp. 511, 

512.) But, distinguishing the measure from the ordinance in Hass, the Jobs 

and Housing court pointed out that the measure at issue, “unlike the 

measure in Hass, did not include a voting threshold in its text.” (Id. at 

p. 516.) It explained that “even accepting that incorrect statements in ballot 

materials might affect some voters, [it] disagree[d] that this possibility 

rendered the enactment of [the measure] a fraud on the voters.” (Ibid.) It 

further explained that the inclusion of a voting threshold in the text of the 

proposed ordinance “establishes the applicable law for that measure,” but “[a] 

voting threshold identified in ballot materials cannot supplant the law 

governing the appliable voting threshold.” (Id. at p. 517.) We find the 

opinion in Jobs & Housing persuasive, and we follow it.

The trial court here concluded Measure C was comparable to the 

redistricting ordinance in Hass and found that Ordinance No. O-21143, which 

placed Measure C on the ballot and stated the measure required a two-thirds

majority, conditioned passage on a two-thirds majority vote. The recitals in 

Ordinance No. O-21143 explained the City’s understanding of the law at the 

time it adopted it, stating that Measure C was “a special tax, and thus the 

initiative measure requires approval by a two-thirds majority of the local 

electorate to be adopted by the voters; . . . .” Ordinance No. O-21143 also 

stated that “[p]assage of this measure requires the affirmative vote of twothirds of those qualified electors voting on the matter at the Municipal 
21

Special Election.” The trial court viewed that language as “law of the City” 

because the city voted to submit Measure C to the voters via the ordinance. 

But Ordinance No. O-21143 was the city council’s ministerial act to 

place Measure C on the ballot. (See Fresno, supra, 59 Cal.App.5th at p. 229 

[commenting that the resolution submitting measure to voters stated a twothirds vote of electorate was required ministerial act]; see also Elec. Code, 

§ 9215 [requiring legislative body to adopt ordinance or submit ordinance to 

voters]; San Diego Mun. Code, § 27.1034 [requiring city council to adopt or 

reject legislative act as presented by initiative petition where petition 

contains signatures of 10 percent of more of voters].) Ordinance 

No. O-211433 did not, like the citizen-created ordinance in Hass, establish an 

applicable law for the measure because the city council’s ordinance could not 

supplant the governing law. (See Jobs & Housing, supra, 73 Cal.App.5th at 

p. 517.) Further, the ordinance did not incorporate the two-thirds vote 

requirement directly into Measure C the way the ordinance did in Hass. 

(Jobs & Housing, at p. 517.) Measure C, unlike the ordinance before the 

electorate in Hass, did not state a threshold requirement for voter approval; 

it required only “approval by the voters,” in section 7. Thus, we apply to the 

election of Measure C the voter threshold applicable to a citizens’ initiative, a 

simple majority.

C. Declaring the Passage of Measure C Based on a Simple Majority Vote Did 

Not Violate Due Process or Constitute “Fraud on the Voters”

Opponents argue the City violated due process because the election was

conducted under one set of rules and the City then changed the rules after 

the election. 

California courts “ ‘have recognized the “possibility” that an impartial 

analysis of a county measure or other ballot materials can be so misleading 

and inaccurate “that constitutional due process requires invalidation of the 
22

election.” ’ ” (Jobs & Housing, supra, 73 Cal.App.5th at p. 512.) When there 

is an allegation that there are omissions, inaccuracies, or misleading 

statements in the ballot materials, due process “ ‘depend[s] on whether the 

materials, in light of other circumstances of the election, were so inaccurate 

or misleading as to prevent the voters from making informed choices.’ ” (Id. 

at p. 513, quoting Horwath v. East Palo Alto (1989) 212 Cal.App.3d 766, 777-

778.) “ ‘[C]ourts should take into account the materiality of the omission or 

other informational deficiency. Flaws striking at the very nature and 

purpose of the legislation are more serious than other, more ancillary 

matters.’ [Citation.]” (Horwath, at p. 778.) Considerations include the 

extent of preelection publicity, canvassing and other informational activities, 

the availability of the ordinance text, and the official dissemination and 

content of other materials, like arguments for or against the measure. (Ibid.) 

In Jobs & Housing, the court applied the Horwath factors and 

concluded that the “ballot materials provided extensive, unchallenged,

information about the substantive content and effect of the measure.” 

(Jobs & Housing, supra, 73 Cal.App.5th at p. 514.) There was no dispute 

that voters were given “true and impartial information about the substance of 

the proposed tax and how and where the proceeds would be distributed”; the 

“voting-threshold statements did not strike ‘at the very nature and purpose of 

the legislation,’ ” and instead concerned a “ ‘more ancillary matter[ ].’ 

[Citation.]” (Ibid.) The court also recognized the voting threshold statements 

occurred when there was legal uncertainty about the proper threshold for 

citizens’ initiatives for special taxes. (Id. at p. 514.) Ultimately, it concluded 

that the measure could not be invalidated on due process grounds, even 

though the ballot materials indicated the measure required two-thirds of the 
23

vote to pass, and the government later took a different position. (Id. at 

pp. 514-515.)

Like the appellate court in Jobs & Housing, we conclude the conduct 

here does not warrant invalidating Measure C. The opponents do not 

contend voters did not receive impartial information about the substance of 

Measure C, including where the proceeds would be distributed. (See Jobs & 

Housing, supra, 73 Cal.App.5th at p. 514.) They also do not contend the 

misinformation about the voter threshold struck at the measure’s very 

purpose. (Id. at p. 513.) The misinformation occurred only above the 

measure’s official title and summary and in the ballot summary. Moreover, 

the voter threshold statements here, like in Jobs & Housing, occurred when 

there was uncertainty about the proper threshold for a citizen initiative for 

special taxes because of trial court decisions on the issue. (See id. at p. 514.) 

Accordingly, we do not invalidate Measure C on due process grounds.

Alliance compares this situation to ones in which states have changed 

their method of counting individual votes after the elections were held, citing,

among other cases, Roe v. Alabama (11th Cir. 1995) 43 F.3d 574 (Roe) and 

Griffin v. Burns (1st Cir. 1978) 570 F.2d 1065 (Griffin), which regarded the 

procedures for counting absentee ballots. 

In Roe, an Alabama statute required notarization of absentee ballots 

for them to count, a procedure that had been acknowledged and followed for 

years. (Roe, supra, 43 F.3d at pp. 580-581.) The appellate court found the 

challenged ballots did not comply with the state law and including them in 

the count was contrary to the statewide practice, so it constituted a 

retroactive change in the election law. (Id. at p. 580.) It also implicated due 

process, disenfranchising those who did not vote based on the inconvenience 

of the notarization requirement. (Id. at p. 581.) 
24

Griffin represented the opposite situation. There, Rhode Island law 

permitted absentee and shut-in voting in elections but did not explicitly apply 

to party primaries. (Griffin, supra, 570 F.2d at p. 1066.) Election officials 

believed the use of such ballots was authorized and supplied them for seven 

years before a losing candidate challenged their validity. (Id. at p. 1067.) 

The appellate court concluded it was unreasonable to expect a voter to 

question the state officials’ issuance of the absentee ballots when no 

candidate or voter challenged the procedure before the election and the use of 

such ballots followed longstanding practice. (Id. at pp. 1075-1076.) Because 

the procedure induced voters to use the absentee method, discounting their 

ballots would have stripped those voters of their votes in the primary. (Id. at 

p. 1074.)

These cases are not like the one before us. The opponents do not 

contest the efficacy of the election here or otherwise suggests the City failed 

to count each vote cast. The City did not agree to count certain votes before 

the election and then exclude them once the election was over. Nor did it 

historically exclude ballots that failed to comply with election regulations and 

suddenly include them in the final count to achieve a preferred outcome. 

Here, no individual voter’s vote was discounted. Thus, these cases are not 

helpful.

HJTA also addresses the possibility that the City’s conduct here 

constitutes “fraud on the voters,” a phrase taken from Hass. The Hass court 

commented: “Since the entire ordinance was rejected, the provision that the 

unconstitutionality of one part should not affect the remainder was not 

adopted. It would be a fraud on the voters to rule otherwise, after they have 

voted upon an ordinance submitted to them upon a definite condition.” 

(Hass, supra, 139 Cal.App.2d at p. 76.) But the court there did not detail 
25

what constitutes “fraud on the voters” beyond ignoring terms contained 

within a measure that governed the election outcome. (Ibid.) This view 

assumes the ordinance itself, i.e., the substance of a measure, places a 

requirement on the voting threshold that is later dishonored. (See Jobs & 

Housing, supra, 73 Cal.App.5th at p. 516.) As we have explained, that is not 

the case here.

Jobs & Housing also addressed the theory of fraud found in Civil Code 

section 1572. Like HJTA, we are not convinced Hass’s reference to “fraud on 

the voters” was anything more than its concern that voters were asked to 

vote “on the basis that a three-fourths vote was required” but then evaluated 

the outcome on a different basis. (Hass, supra, 139 Cal.App.2d at p. 76.) But, 

if we were to adopt the same approach as the court in Jobs & Housing and 

consider whether the City engaged in fraud, we would be hard pressed to find 

an intentional misrepresentation, i.e., a statement of a fact known to be 

untrue by the person who makes it. (Jobs & Housing, supra, 73 Cal.App.5th

at p. 517.) We agree with the Jobs & Housing court that the voting threshold 

statements “must be viewed in the context of the evolving legal landscape 

surrounding citizens’ initiatives for special parcel taxes.” (Id. at p. 517.) 

Given that context, like the Jobs & Housing court, we could not ascribe 

fraudulent intent to government officials because the legal landscape 

changed between the time when the ordinance placed Measure C on the 

ballot and when the election occurred. (See Jobs & Housing, at pp. 517-518.) 

If intentional misrepresentation is necessary, HJTA asks us to adopt a 

different requirement for intent, offering a definition found in Evidence Code 

section 623. That section allows a conclusive presumption when a party’s 

statement or conduct intentionally and deliberately leads another to believe a 

particular thing to be true and to act upon such a belief. One case explains it 
26

as an estoppel in pais, which is a “rule [that] a person may not lull another 

into a false sense of security by conduct causing the latter to forebear or do 

something which he otherwise would have done and then take advantage of 

the inaction caused by his own conduct.” (Lovett v. Point Loma Development 

Corp. (1968) 266 Cal.App.2d 70, 75-76.) Even if we were to apply this rule, it 

is not clear how the City’s erroneous statement in ballot materials about the 

voter threshold would cause a voter not to vote against a measure.

We disagree with HJTA’s evaluation that Concerned Citizens v. City of 

Carlsbad (1988) 204 Cal.App.3d 937 (Concerned Citizens) is helpful to its 

position. In Concerned Citizens, voters were faced with two propositions 

regulating residential growth, Propositions E and G. (Concerned Citizens, at 

p. 939.) Proposition E contained a section that explicitly stated it was 

inconsistent with Proposition G. (Concerned Citizens, at p. 940.) After both 

propositions received a majority vote, the city council enacted the proposition 

that received the most votes. (Ibid.) Concerned Citizens argued that the two 

propositions were consistent, even though Proposition E stated explicitly that 

it was inconsistent with the terms outlined in Proposition G. (Concerned 

Citizens, at p. 940.) A panel of our court explained that the state 

Constitution and the Elections Code contemplate elections in which people 

must choose between conflicting proposals, and Proposition E gave voters 

notice of the conflict, which “assist[ed] voters in making an intelligent and 

informed decision.” (Concerned Citizens, at p. 943.) We refused to amend the 

proposition and strike the section stating there was an inconsistency because 

taking that action would have “disenfranchise[d] all those Carlsbad residents 

who voted for both propositions on the premise that only one would be 

enacted.” (Ibid.) Like the situation in Hass, in Concerned Citizens, the 

measure itself contained the limitation. In contrast here, as we explained 
27

ante, the substance of Measure C did not create any requirement that twothirds approval was necessary.

D. Any Elections Code Violation Does Not Warrant Invalidating Measure C

Alliance contends that the City violated the Elections Code by

“refus[ing] to ‘declare’ the result of the election” and delaying stating whether 

Measure C passed until April 2021. 

Section 10262 requires the elections official to conduct the canvass, 

which is governed by sections 15302 and 15303. “Upon the completion of the 

canvass, the elections official shall certify the results to the governing body.” 

(§ 12062.) The canvass must be completed no later than the fourth Friday

after the election (§ 10262, subd. (a)), and for a consolidated election, the city 

elections official shall certify the results to the governing body, and the 

governing body must comply with the applicable provisions of section 10263 

no later than the next regularly scheduled city council meeting after the 

28-day canvass or at a special city council meeting called for the purpose of 

complying with section 10263. (§ 10262, subd. (b).) Section 10263 requires 

the governing body to adopt a resolution that recites “the fact of the election 

and the other matters that are enumerated in section 10264.” When there is 

a consolidated election, the governing body “declare[s] the results 

and . . . install[s] the newly elected officers.” (Id., subd. (a).)

Section 10264 enumerates matters that the governing body must 

include in its resolution, pursuant to section 10263. It states: “As soon as the 

result of the election is declared, the elections official of the governing body 

shall enter on its records a statement of the result. [¶] That statement shall 

show: [¶] (a) The whole number of votes cast in the city. [¶] (b) The names 

of the persons voted for. [¶] (c) The measures voted upon. [¶] (d) For what 

office each person was voted for. [¶] (e) The number of votes given at each 
28

precinct to each person and for and against each measure. [¶] (f) The 

number of votes given in the city to each person and for and against each 

measure.” (§ 10264.) 

San Diego Municipal Code section 27.0411 similarly requires the city 

clerk, immediately after the election to “cause a canvass of the election

returns” and “certify the results of the canvass to the City Council, which 

shall have entered in its records the following: [¶] (a) The whole number of 

votes cast in the City; [¶] (b) The names of the candidates and the office 

each sought; [¶] (c) The measure presented; and [¶] (d) The number of votes 

cast for each candidate and for and against each measure.” 

After the election was held on March 3, 2020, the city clerk certified the 

results, stating that “for said proposition the vote was 239,024 (65.24%),” and 

“[a]gainst said proposition the vote was 127,349 (34.76%).” Her certification 

also stated that “the total vote was 366,373” and the “proposition requires a 

two-thirds majority to be adopted by the voters.” The city clerk’s Certificate 

included all the components required by section 10263.

The April 2020 Resolution indicated the canvass of the election was 

completed and stated that the city clerk certified the results to the city 

council. It also stated that “declaring the results of a municipal election as 

certified by the . . . City Clerk is a ministerial act required by California 

Elections Code section 10263.” The April 2020 Resolution complied with the 

technical content requirements of sections 10262 and 10263 and San Diego 

Municipal Code section 27.0411 by including the total number of votes cast 

regarding Measure C, as well as those specifically for and against it, and in 

so doing it declared the numeric results of the election. However, instead of 

taking a position about whether Measure C passed, the resolution explained 

that “the City Attorney determined that Measure C requires a two-thirds 
29

vote for approval” and “acknowledge[d] that there exists in California a split 

of authority as to whether a majority vote or a supermajority is required for 

the passage of a special tax by citizens’ initiative . . . . It is anticipated that 

the California Supreme Court will issue a final decision in the future 

resolving this ambiguity, and that their decision may impact this Measure.” 

In the April 2021 Resolution, the City declared that Measure C was 

approved in the March 3, 2020 election. Alliance contends the delay violated 

section 10263 because the declaration came too late. It asks us to reverse the 

passage of Measure C based on the delay, even though the law required a 

simple majority and the measure received more than 64 percent of the vote. 

The opponents here could have challenged the April 2020 Resolution 

for failing to declare the outcome of Measure C, and they chose not to.9 This 

may be because, like the City, opponents recognized the changing legal 

landscape. It could be that the opponents were hopeful that appellate courts 

would conclude citizens’ initiatives require two-thirds of the votes to pass. 

Whatever opponents’ reasons for failing to challenge the City’s (in)action in 

court, we have concluded that Measure C, as a citizens’ initiative, was subject 

to a simple majority vote. We will not now undo the will of the voters based 

on a delay that resulted in protecting the citizens’ initiative power.

CTAN contends that Measure C placed authority to certify the passage 

of Measure C with the city clerk and not the city council, so the city council

lacked the authority “to alter the City Clerk’s certification of the results” 

under the “law of the measure” and did not have discretion to declare it 

passed. Section 7 of Measure C states that “[u]pon approval by the voters, 

9 Section 16100 provides six months to contest an election based on 

several possible problems with the election or with candidate eligibility, and 

it provides 30 days for other challenges. (See also § 16401 [contestant 

challenging results].)
30

the City Clerk shall certify to the passage and adoption of this Ordinance and 

shall cause it to be published according to law.” This means Measure C

required the voters to approve it before the city clerk could certify its passage 

and adoption, but it does not state that the city clerk could determine 

whether the voters had approved it. Consistent with the Elections Code 

requirements, the Certificate provided the total vote, the number of votes and 

percentage of the total “[f]or said proposition,” and the number of votes and 

percentage of the total “[a]gainst said proposition.” It also stated, “This 

proposition requires a two-thirds majority to be adopted by the voters.” But 

it did not state that the voters had approved the measure or that it passed. 

Because the Certificate did not certify the passage or failure of the measure, 

there was nothing for the city council to alter. 

Furthermore, as the City explains, the San Diego Municipal Code

directs the city clerk to “cause a canvass of the election returns” and to 

“certify the results of the canvass to the City Council.” (San Diego Mun. 

Code, § 27.0411.) The canvass requires entry of the whole number of votes, 

the measure presented, and the number of votes cast for and against the 

measure. (Ibid.) Thus, the San Diego Municipal Code, like the Elections 

Code, vests the city clerk with the responsibility to certify the vote tallies to 

the city council, but it does not direct the city clerk to determine the legal 

effect of a vote. (See ibid.) Here, even considering section 7 of Measure C, 

the city clerk could not certify the passage and adoption of the ordinance or 

cause it to be published because the city council had not yet determined the 

outcome of the election. 

E. Measure C Does Not Violate Proposition 219

The interpretation of a statute is a question of law, subject to de novo 

review. (Goodman v. Lozano (2010) 47 Cal.4th 1327, 1332.) We begin by 
31

looking at the language of the provision itself. “[W]e first analyze provisions’

text in their relevant context, which is typically the best and most reliable 

indicator of purpose. [Citations.] We start by ascribing to words their 

ordinary meaning, while taking account of related provisions and the 

structure of the relevant statutory and constitutional scheme. [Citations.] If 

the provisions’ intended purpose nonetheless remains opaque, we may 

consider extrinsic sources, such as an initiative’s ballot materials. 

[Citation.]” (California Cannabis, supra, 3 Cal.5th at pp. 933-934.)

Proposition 219 amended the article II, section 11 to add 

subdivision (b), which provides: “A city or county initiative measure may not 

include or exclude any part of the city or county from the application or effect 

of its provisions based upon approval or disapproval of the initiative measure, 

or based upon the casting of a specified percentage of votes in favor of the 

measure, by the electors of the city or county or any part thereof.”10 HJTA 

asks us to read Proposition 219 to require uniform application of a tax rate to 

all overnight facilities, regardless of geographical location. The City and Yes 

Committee concede that Measure C does not apply uniform tax rates to all 

overnight lodging facilities but contend that is not what Proposition 219 

requires. They argue that Proposition 219 requires a government to apply 

provisions of a measure regardless of which regions approved or disapproved 

it in an election. Each position is supportable by the plain language in the 

proposition.

Highlighting the language that a measure may not include or exclude 

any part of a city or county from its provisions’ application or effect, HJTA 

focuses on the first part of article II, section 11, subdivision (b), which states, 

10 Although the City explains its compliance with article II, section 11, 

subdivision (c) in its appeal, we do not address it in detail because opponents 

do not argue Measure C violates it. 
32

“A city or county initiative measure may not include or exclude any part of 

the city or county from the application or effect of its provisions based upon 

approval or disapproval of the initiative measure, . . . .” HJTA argues that 

Proposition 219 applies when the electors of the city “approve a measure 

which includes or excludes parts of the city from application and effect.” 

Thus, any time a measure applies differently based on geography, it violates 

Proposition 219. Instead, HJTA contends, a tax rate must apply uniformly to 

every portion of the city or county once the measure is approved.

The City and Yes Committee urge a different reading of the text. They 

explain that Proposition 219 prohibits the application or effect of provisions 

in an initiative measure from applying to only a portion of a city or county 

based on the measure’s approval or disapproval by electors in a portion of the 

city or county. They assert that an initiative’s provisions cannot be applied to 

part of a city based on which portion of the electors approved it, and it cannot 

be applied based on achieving a certain percentage of electors in a subarea of 

the city or county. Put differently, an initiative measure could include or 

exclude a portion of the city or county from the provision’s application or 

effect as long as inclusion or exclusion is not a consequence of its approval or 

disapproval by a portion of the city or county’s voters.

The City and Yes Committee also challenge HJTA’s understanding of 

Proposition 219’s language. They argue that reading a uniform geographical 

requirement into the proposition’s meaning ignores some of the proposition’s 

language because it does not consider the application or effect of a tax “based 

upon . . . [its] disapproval,” since a measure’s provisions would have no effect 

if disapproved. They also argue HJTA’s understanding fails to incorporate 

the phrase “by the electors of the city or county or any part thereof” because 

it would not matter which of a city’s or county’s electors approved or 
33

disapproved of the initiative measure or voted in a particular way if the only 

consideration is the measure’s approval or disapproval. Thus, they contend, 

HJTA’s interpretation fails to give meaning to all the words, treating some as 

surplusage. (See Agnew v. State Board of Equalization (1999) 21 Cal.4th 310, 

330 [“[C]ourt should avoid construction that makes some words surplusage”].) 

Because the construction of the statute creates some ambiguity and our 

role is to effectuate the intent of the legislation, we turn to the ballot measure 

materials to aid us. The Legislature placed Proposition 219 on the ballot in 

June 1998. The Analysis by the Legislative Analyst explained how most 

ballot measures functions “In most cases these ballot measures apply to all 

areas within the state or a local community in the same way. For example, if 

a statewide measure passes, it applies to all counties in the same way, 

regardless of whether a majority of voters in any individual county approved 

the measure.” (Ballot Pamp., Primary Elec. (June 2, 1998) analysis of 

Prop. 219 by Legis. Analyst, p. 6.) It identified a November 1993 proposition 

(Proposition 172) that enacted a statewide sales tax that provided revenues 

only to the counties that “voted in favor of the measure.”11

In response, Proposition 219 would require a “ballot measure to apply 

in the same way in all parts of the jurisdiction (that is the state or a local 

government) affected by the measures, regardless of how any individual part 

11 It also pointed to a more recent, local measure that provided that if the 

measure were approved by a majority, it would enact a tax for general 

purposes, and if two-thirds of voters approved it, it would enact a tax for 

special purposes. Thus, a “yes” vote could mean two different things. (Ballot 

Pamp., Primary Elec. (June 2, 1998) analysis of Prop. 219 by Legis. Analyst, 

p. 6.) That example applies to the language in article II, section 11, 

subdivision (c).
34

of that jurisdiction voted.”12 (Ballot Pamp., Primary Elec. (June 2, 1998) 

analysis of Prop. 219 by Legis. Analyst, p. 6.) The argument in favor of 

Proposition 219 described the November 1993 measure as “contain[ing] a 

provision to extort voters into supporting it” because “only those counties 

which voted in [the] hike would be able to receive the new police and fire 

protection revenues.” (Id. at p. 7, capitalization omitted.) It urged voters to 

support Proposition 219 to “prohibit political discrimination against the 

residents of a city, county or other local jurisdiction just because they voted 

for or against a particular ballot measure,” and because it would “guarantee 

benefits of all ballot measures [would] be provided fairly to the people of 

every community in California” and protect the rights “of California voters to 

cast their ballots without fear of political revenge, intimidation or 

blackmail.”13 (Ibid., capitalization omitted.) Thus, it is clear from the ballot 

materials that the purpose of Proposition 219 was to ensure that the way a 

particular county or city voted in a statewide election, or a portion of a county 

or city voted in a local election, must have no impact on whether a measure’s 

provisions apply to or affect that subarea. While HJTA concentrates on the 

first part of that calculus, emphasizing that measures must “apply in the 

same way in all parts of the jurisdiction (that is, the state or a local 

government) affected by the measures,” that is an incomplete view of the 

12 It also prohibited “measures from containing alternative or additional 

provisions that would be enacted depending on the percentage of votes cast in 

favor of the measure.” “Thus, a ballot measure could not apply only in those 

areas that voted in favor of the measure.” (Ballot Pamp., Primary Elec. 

(June 2, 1998) analysis of Prop. 219 by Legis. Analyst, p. 6.) 

13 There was no argument against Proposition 219 filed. (Ballot Pamp., 

Primary Elec. (June 2, 1998) analysis of Prop. 219 by Legis. Analyst, at p. 7.)
35

proposition, which was focused on ensuring that the way any part of a 

jurisdiction votes must not impact the measure’s application or effect. (Id. at 

p. 6.)

Measure C creates three zones with three different tax rates. The 

highest increase, 3.25 percent, would be placed on visitors staying at facilities 

in the general vicinity of downtown San Diego. More central facilities would 

impose a 2.25 percent increase in the transient occupancy tax, and facilities 

at the far northern and southern portions of the city would see increased tax 

rates of 1.25 percent. Although Measure C applies three different tax rates to 

overnight lodging facilities based on their geographical locations within the 

city, the taxes are not influenced by which electors within the city voted in its 

favor. Further, the revenue from those taxes is also not distributed based on 

how parts of the city voted. Thus, whatever our views about the propriety of 

charging different tax rates based on the geography of an overnight facility 

within the city,14 we conclude Measure C does not violate Proposition 219.

F. We Remand the Matter for Further Consideration of Whether Measure C

is a Citizens’ Initiative

1. Additional Facts

CTAN answered the City’s validation complaint with an affirmative 

defense that Measure C was a negotiated, sponsored, supported, and 

promoted city-sponsored initiative, so it was not a citizens’ initiative, and the 

14 Opponents of Measure C did not challenge its validity on the basis that 

it improperly draws classes of overnight lodging facilities based on 

geography. Accordingly, we do not address whether the non-uniform nature 

of the overnight facilities tax implicates other laws. (See California 

Association of Retail Tobacconists v. State of California (2003) 109 

Cal.App.4th 792, 841-844 [“Differing tax rates may be imposed upon different 

classes provided the classification created is reasonable”.])
36

two-thirds voting threshold applies. The primary basis of this argument 

appears to be that Jaymie Bradford was the executive vice-president and 

chief operating officer of the San Diego Regional Chamber of Commerce, as 

well as a principal organizer, proponent and treasurer for the Yes! for a 

Better San Diego campaign committee, while she was a member of the board 

of directors of the San Diego Convention Center Corporation, which is a 

wholly-owned subsidiary of the City. CTAN alleges that Bradford brought 

the resolution to support Measure C to the San Diego Convention Center 

Corporation board of directors, sought its approval, and voted to approve a 

resolution in support of Measure C. She also allegedly boosted for Measure C 

while holding herself out as a member of the convention center board. CTAN 

moved to depose Bradford and the custodian of records for the San Diego 

Regional Chamber of Commerce. The City moved to quash those depositions. 

Bradford’s name appears on the list of Measure C’s proponents, 

incorporated into Ordinance No. O-21143, placing Measure C on the ballot. 

She indicated she was the executive vice-president and chief operating officer

of the San Diego Regional Chamber of Commerce.

The trial court did not address whether Measure C is a citizens’ 

initiative, and it did not rule on the motion to quash the subpoenas. 

2. Analysis

We have assumed for purposes of our analysis in this opinion that 

Measure C is a citizens’ initiative.15 CTAN challenges this assumption but 

asks us to remand this issue because “neither the merits nor any evidence or 

15 We do not address Alliance’s claims in footnote 4, which focus on 

arguments for why we should not direct the court to enter judgment in favor 

of the City, because they regard us directing judgment in favor of the City, an

action which we do not take. 
37

facts related to [this] affirmative defense are properly before this [c]ourt.” 

The City contends that CTAN’s position has been rejected in Proposition G.

In Proposition G, the appellate court found irrelevant that the 

proposition’s proponents did not draft the ballot materials or fund the filing 

fees themselves, explaining the law does not prohibit a government from 

publicly expressing support for a ballot measure. (Proposition G, supra, 66 

Cal.App.5th at p. 1081.) It found the argument that the official proponents 

did not play a sufficiently active role in securing the measure’s approval to be 

“nebulous and legally unsupported.” (Id. at p. 1082.) Thus, the fact of a 

government official’s involvement in an initiative does not necessarily convert 

a voter initiative into a local government initiative without more.16 

But too much government involvement can mean an initiative is really 

presented by the local government. For example, in Rider, supra, 1 Cal.4th

at pages 8-11, the Supreme Court considered evidence to evaluate whether an 

agency was really a special district, because tax impositions would then

require a two-thirds majority vote. A panel of our court concluded there was 

ample evidence demonstrating that the San Diego County Board of 

Supervisors had acted to circumvent the intent behind Proposition 13 by 

16 We do not find Boling v. Public Employment Relations Board (2018) 

5 Cal.5th 898 helpful. There, unions filed an unfair practice claim after the 

San Diego mayor refused to meet and confer with them regarding an 

initiative to eliminate defined-benefit pensions for new city employees, which 

the mayor drafted and promoted. (Id. at pp. 903-904.) The Supreme Court 

held that the Meyers-Milias-Brown Act (MMBA) imposes a meet and confer 

duty on the governing body and administrative officers or other 

representatives of that body. (Id. at pp. 917-918.) Because the mayor was 

the designated labor negotiator, he was required to meet and confer with the 

unions before determining a policy or course of action on issues that affected 

that terms and conditions of employment. (Id. at p. 918.) The mayor’s failure 

to do so violated the MMBA. (Id. at pp. 918-919.) The case was not focused 

on whether the initiative qualified as a citizens’ initiative.
38

establishing an agency over which it retained substantial control. (Rider, at 

pp. 8-11.) 

From these cases, we understand that a government official’s 

involvement must demonstrate substantial control for an initiative to be 

deemed a government action rather a citizens’ initiative. Here, the record 

indicates there were several citizen proponents of Measure C, and the 

measure received the requisite public support to warrant placing it on the 

ballot as a citizens’ initiative. It is not clear whether Bradford’s involvement 

suggests her government agency retained substantial control over the 

initiative process or otherwise acted in a way that shows Measure C was not 

a “bona fide citizens’ initiative.” This affirmative defense is simply too 

underdeveloped at this point for us to reach the merits. Thus, we direct the 

trial court to consider this issue on remand. 

DISPOSITION

The judgment is reversed. The matter is remanded to the superior 

court with instructions to proceed in a manner consistent with this opinion. 

The parties are to bear their own costs on appeal.

HUFFMAN, Acting P. J.

WE CONCUR:

O’ROURKE, J.

DO, J.