In Greene v. Marin County Flood Control and Water Conservation District, (— Cal.Rptr.3d —-, Cal., June 7, 2010), the California Supreme Court considered whether the secret voting requirement found in article II, section 7 of the California Constitution applies to an election for property related fees. The Court held that the California Constitution authorizes government agencies to require that property owners not only identify themselves but also their parcels of land when casting their vote in a property-related fee election.
Facts
The Marin County Flood Control and Water Conservation District (“District”) proposed a new storm drainage fee for owners of property within an area that had a history of chronic flooding. A storm drainage fee report (“Report”) contained a proposal to reduce flooding by removing upstream constrictions and adding detention basins. The Report arrived at a cost for the improvements and devised a method to determine the fee each affected property owner would be required to pay. The Marin County Board of Supervisors (“Board”) adopted a written protest procedure, scheduled a public hearing at which protests could be registered, and directed the mailing of notice to the property owners to be affected by the proposed fee. There was no majority protest at the public hearing so Board called for a “special election” to be conducted for the proposed fee.
District mailed each affected property owner a ballot printed on card stock that, on one side, contained the instructions for filling out the ballot, and on the other side, contained the actual ballot. The instructions stated the ballot must be signed. The actual ballot contained the following information: (1) the exact amount of the fee to be imposed, (2) “the question to be voted on,” (3) “yes and no check boxes,” and (4) “designated spaces for the voter’s printed name, signature, and the date.” Board adopted local rules for the election that provided (1) “the election was to be conducted by mail,” (2) the clerk of the Board “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,'” (3) the ballots were only to be opened after all the ballots were due on June 25, 2007, at 5:01 p.m., and (4) only the clerk and deputy clerks were to have access to the ballots and were prohibited from disclosing how a particular voter voted unless required to disclose the information by a court order.
Out of the 8,059 ballots received, 3,208 were yes votes, 3,143 were no votes, and 1,708 votes were invalidated. Board passed a resolution declaring the measure had passed and then adopted an ordinance implementing the fee. A property owner in District, Ford Greene (“Greene”), demanded a recount and later filed a verified complaint for a contest of the election. Greene claimed the notice “given to voters did not adequately inform them they were required to sign the ballot.” The Flood Mitigation League of Ross Valley and the Friends of Corte Madera Creek Watershed filed a complaint in which they requested that the trial court declare the election to be lawful. In response, Greene claimed the requirement that voters sign their ballot violates the secrecy requirement of article II, section 7 of the California Constitution. The trial court held the requirement to sign the ballots is expressly authorized by article XIII D of the California Constitution and Government Code section 53753. The court of appeal held the secret voting requirement applied to the election at issue and that District’s voting “procedures did not adequately protect voter secrecy.”
Decision
The issue before the Supreme Court was whether the court of appeal correctly decided that the secret voting requirement of article II, section 7 applies to a fee election held pursuant to article XIII D, section 6(c). The Supreme Court held the court of appeal erred in holding the secret voting requirement applies to an article XIII D, section 6(c) election.
Proposition 218, which was adopted by the electorate in 1996, only allows the following 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.” Enacted as part of Proposition 218, article XIII D “addresses the means by which local government agencies may impose assessments and property related fees.”
Article XIII D section 4 sets the procedure for adopting assessments. Assessments must be imposed in accordance with the special benefit conferred on a parcel of land that has been calculated by an engineer’s report. Detailed notice must be mailed to each affected property owner that contains “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.” The agency must conduct a public hearing not less than 45 days after mailing the notice to consider protests and tabulate ballots. The agency may not impose the assessment if there is a majority protest. The ballot must be “weighted according to proportional financial obligation of the affected party.”
The procedure under article XIII D, section 6, concerning the imposition of property related fees, is different than that under section 4. Pursuant to section 6, after the amount of the per-parcel fee is calculated, an agency must give written notice to each affected property owner and give the owner an opportunity to protest the fee. The agency must tabulate all written protests at a public hearing. If a majority of owners protest, the agency will not impose the fee. If “there is no majority protest, the proposed fee is put before the voters for approval.” Section 6, subdivision (c), provides that except for sewer, water, and refuse fees or charges, “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 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 may not take place less than 45 days after the public hearing. Subdivision (c) further provides, “An agency may adopt procedures similar to those for increases in assessments in the conduct of elections under this subdivision.”
In 1997, the Legislature enacted Government Code sections 53750 et seq. “to clarify implementation of Proposition 218.” Although section 53753 contained no secrecy provisions for assessment ballots when it was originally enacted, in 2000 the Legislature amended section 53753 “to provide for a certain measure of assessment ballot secrecy.” Section 53753, subdivision (c), now provides, “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).” Subdivision (e) provides that at the conclusion of the public hearing “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.” Pursuant to section 53753, “[d]uring and after the tabulation, the assessment ballots shall be treated as disclosable public records” that are available for inspection.
Article II, section 7, provides that “[v]oting shall be secret.” The issue before the Supreme Court was whether this secrecy requirement applies in elections involving property related fees. The Supreme Court held that it does not.
Article XIII D, section 4, and section 53753 “provide in considerable detail the procedures for obtaining and tabulating assessment ballots.” Article XIII D, section 6, sets out only a brief description of the procedures for fee elections, providing “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.’” Section 6 further provides that “[a]n agency may adopt procedures similar to those for increases in assessments in the conduct of elections” for property related fees. The Court found that in order to determine the secrecy requirements for a fee election, it must decide what secrecy requirements are required for assessment balloting under section 4.
The Court concluded that section 4 “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.” As discussed above, section 6 states that a government agency may adopt procedures similar to those provided for in section 4. The Court concluded that it can be reasonably inferred that “similar” procedures could include “the use of a ballot for property owner fee elections that is similar to one used to register assessment protests.” Such a ballot could include voter identification of both the name and the property of the voter on the ballot.
The Court disagreed with Greene’s argument “that the nonsecret voting procedure of section 4 must apply only to weighted voting elections.” The Court held “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.”
The Court concluded 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.” District utilized “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.” The Court stated, “Whether or not more secrecy could have or should have been provided in the form of voters assurances or other protective measures, we cannot say that section 6(c) requires such measures.” Accordingly, the Court held the election was lawful.
Questions
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