SAN JOSE -- A Santa Clara County Superior Court judge Friday handed the county a victory by allowing it to keep an eighth-cent sales tax measure on the Nov. 6 ballot despite protests from a local taxpayers' group.
The Silicon Valley Taxpayers' Association had sought to remove the ballot measure, saying it was illegal under state law because it doesn't coincide with the election of local candidates -- in this case county supervisors -- on the same ballot.
Three supervisors already were elected or re-elected in the June 5 primary.
The county argued that it fully complied with the law and that a disputed section of Proposition 218, a 16-year-old initiative, would limit a local government's ability to ask voters for a tax.
In his three-page ruling, Judge Kevin McKenney wrote that the argument by the association doesn't hold water because the language in question in the proposition "on its face refers only to the type of election for which a tax measure may appear on a ballot. No reference is made ... to a requirement that a candidate for the governing body of the local government actually be on the ballot in order to effectuate compliance.''
Assistant County Counsel Orry Korb was pleased with the outcome.
"The plain meaning and voter intent of Proposition 218 was to enable the people to consider tax proposals during November gubernatorial and presidential elections, when voter turnout is the greatest,'' Korb said.
A decision from that court is requested by Sept. 7, the deadline for the Registrar of Voters to print ballot-related materials for the fall ballot.
"The court chose to read the words of the constitutional provision in a way that agreed with the county, but we don't think there was any support of that factually or legally,'' Hertz said. "We respectfully disagree and will ask the court of appeal to look at it.''
Proposition 218, called "The Right to Vote on Taxes Act,'' was passed by voters in 1996 and was meant to ensure that all taxes and most charges on property owners be subject to voter approval.
The section of the initiative in question reads: "No local government may impose, extend, or increase any general tax unless and until that tax is submitted to the electorate and approved by a majority vote. ... The election required by this subdivision shall be consolidated with a regularly scheduled general election for members of the governing body of the local government, except in cases of emergency declared by a unanimous vote of the governing body."
The Howard Jarvis Taxpayers Association, which put the proposition on the ballot, says the section was included to force candidates on the same ballot as local tax measures to say whether or not they endorsed the tax. A regularly scheduled general election, the group says, also would ensure the greatest number of voters would decide a sales tax.
But three candidates for county supervisor -- two of them incumbents -- easily won their races on June 5, leaving no supervisorial races on the November ballot. And on Aug. 7, when the supervisors voted 4-0 to place the eighth-of-a-cent sales tax measure on the ballot, they did not declare an emergency.
Supervisor Mike Wasserman, who was not at the meeting, is the only supervisor who is opposed to the tax measure.
If passed, Measure A would raise an additional $498.5 million over its 10-year span. County supervisors say it would pay for such things as law enforcement, job creation, hospital emergency room services, health care for low-income children, housing for the homeless, and programs to help students stay in school.
It would also send the county's sales tax rate to 8.5 percent, the third-highest in the state, matching San Francisco's.
In its Aug. 19 lawsuit, the taxpayers' association accused county officials "in their rush to raise nearly a half billion dollars in sales taxes for their general use'' of "running roughshod'' over the constitutional rights of county voters by attempting "to sneak the measure onto the ballot, perhaps hoping no one would notice.''
But in a Aug. 28 response, county attorneys said adopting the the taxpayer's group's "novel interpretation would result in absurd, unintended consequences,'' because the proposition's intention was to provide voters the ability to decide on a new tax, not to make it difficult to place a tax measure on the ballot.
"The court said the ruling doesn't matter whether supervisors are actually going to be on the ballot this election cycle (in November) as long as it's the type of election where supervisors would be on the ballot,'' said David Gamage, an assistant professor at the UC Berkeley School of Law, where he specializes in tax law, including state and local taxes.
Gamage said the judge didn't think the language in the provision was ambiguous, but even if it was, the intention behind Proposition 218 was to make sure that local governments don't schedule "some off-cycle election where very few people would vote.''
Because Nov. 6 is a presidential election with 11 statewide ballot measures and a U.S. Senate race on the ballot in California, it's "an election where there will be a lot of voters,'' Gamage said.
Contact Tracy Seipel at 408 275-0140.
"No local government may impose, extend, or increase any general tax unless and until that tax is submitted to the electorate and approved by a majority vote. ... The election required by this subdivision shall be consolidated with a regularly scheduled general election for members of the governing body of the local government, except in cases of emergency declared by a unanimous vote of the governing body."