California Commentary: Tax vs. Fee

By John Coupal

President of the Howard Jarvis Taxpayers Association

In its 38-year history, Proposition 13 has been under constant assault. The attacks have come from the Legislature, the media and especially the courts. After initially being upheld against a myriad of constitutional challenges, the California Supreme Court then began punching loopholes in the landmark tax reform measure.

Prop 13 was intended, first and foremost, to limit out-of-control property tax increases that were forcing tens of thousands of Californians out of their homes. It did this by imposing a 1 percent cap on the base property tax known as the ad valorem tax and limiting subsequent increases to 2 percent annually. But Howard Jarvis and the voters were well aware how creative local governments could be in dreaming up new kinds of taxes to make up for the tax relief conferred on property owners by Prop 13. For that reason, it also imposed a two-thirds vote requirement on other local taxes. Today, because of court rulings and other constitutional taxpayer protections — includingProposition 218, sponsored by the Howard Jarvis Taxpayers Association — local taxes going into a general fund require a simple majority vote of the electorate while taxes intended for special purposes require a two-thirds vote.

The two-thirds vote is important because taxation is government’s most draconian power and as a prerequisite to its exercise the constitution requires a higher degree of consensus. Constitutionally imposed two-thirds vote requirements are common. The United States Constitution, for example, mandates supermajority votes in a dozen instances.

Not surprisingly, local governments and tax-receiving interests detest the two-thirds voter requirement as a burdensome impediment to their efforts to extract ever more tax dollars from local citizens. But the tax-and-spend crowd need to be reminded that one definition of democracy is two wolves and a sheep voting on what’s for dinner.

According to Prop 13 detractors and some media reports, a recent Court of Appeal decision calls into question the viability of the two-thirds vote requirement. While the decision contains some troubling language, some of the commentary has significantly overstated the scope of that ruling.

The decision which is drawing so much attention is California Cannabis Coalition v. City of Upland and in determining this ruling’s impact on Proposition 13, it is important to note how the court itself defined the issues: “The issues raised here [are] whether the imposition of the [cannabis] Initiative’s $75,000 fee is a tax or a fee and whether pursuant to [Proposition 218] the Initiative must be placed on a special election ballot.” Glaringly absent is any mention of the two-thirds voter requirement imposed by Prop 13.

Early in all attorneys’ legal training, we hear the maxim, “cases are not authority for matters not considered therein.” Nowhere in the CCC v. Upland decision did the court say that a local initiative can avoid the two-thirds vote requirement for the imposition of a tax.

Nonetheless, there is troubling language in the decision that is contrary to well-settled principles of initiative law. Specifically, the court ruled that Proposition 218’s rules and procedures relating to voter approval of taxes expressly applied to local governments and thus the implication is that these rules and procedures do not apply to taxes imposed by voters via the initiative power. (Again, the rule at issue was the timing of the local election on marijuana dispensaries, not the two-thirds vote requirement.)

If, for some reason, the dicta (legalese for superfluous language) in the CCC v. Upland decision says what Prop 13 enemies say it does — and we don’t think it does — then the consequences would indeed be profound and dangerous. It would give local governments a huge incentive to collude with front groups to propose local initiatives which would purport to raise special taxes with a simple majority vote.

What the court did not cite — perhaps because none of the parties briefed the issue — were the host of cases that hold that the people’s power of initiative is coextensive with that of a legislative body. The Howard Jarvis Taxpayers Association has always argued in defense of the initiative power, saying that if the Legislature (or city council) can do it, so can the people via initiative. But the corollary to this principle is that if the Legislature can’t do something, then neither can the people via initiative. Therefore, because a local government entity may not impose a special tax with a two-thirds vote of the people, then neither can proponents impose a special tax with a simple majority vIf, for some reason, the dicta (legalese for superfluous language) in the CCC v. Upland decision says what Prop 13 enemies say it does — and we don’t think it does — then the consequences would indeed be profound and dangerous. It would give local governments a huge incentive to collude with front groups to propose local initiatives which would purport to raise special taxes with a simple majority.

While the tax-and-spend lobby may cheer this ruling and hope that the tax floodgates will open, we suspect that local government attorneys are quietly advising their clients to be careful about overreaching. They probably realize that this decision is simply inconsistent with existing law relating to initiatives. Moreover, if any local government or interest group attempted to rely on this case as justification for a pursuing a special tax with a simple majority vote, they know that they would quickly find themselves in front of a judge.
Jon Coupal is president of the Howard Jarvis Taxpayers Association – California’s largest grass-roots taxpayer organization dedicated to the protection of Proposition 13 and the advancement of taxpayers’ rights.


Fitness, Fellowship, Personal Empowerment and Weight Loss

Victorville, CA – In It To Thin It (IITTI) is a youth empowerment program that focuses on weight loss, fitness, fellowship, and nutrition that will hold its Summer Boot Camp June 6th through July 29th in Victorville, California. The 10-week program is open to teens who are a minimum of 25lbs overweight and who are between the ages of 12-18. In its fourth year, In It To Thin It has positively impacted hundreds of High Desert overweight youth. Their is no cost to participate in the program that has become a thriving social community. IITTI is part of Heritage Lifefit –

Fitness, which is part of Heritage Victor Valley Medical Group. It is part of their community service outreach to contribute to the well being, health, and wellness of the High Desert Community.

The In It To Thin It Program will run 3 days per week, Monday, Wednesday, and Friday, starting at noon. Mixed in are other fitness events like bowling, roller skating, and laser tag. Each session lasts one hour and is designed to “get fit and have fun doing it.”

The Summer Boot Camp will be instructed by HVVMG’s Fitness Director, George Mangum. George Mangum said, “IITTI has been an on-campus program at local High Schools. Last year I decided to continue it the throughout the summer at Heritage Lifefit-Fitness to provide a continuous, year-round program for overweight kids to get and stay fit. The program gives students the training, education and motivation to transform their lives in eight weeks, launching them into a lifestyle that will last their entire lives.”

Throughout the summer, there will be weekly awards based on an individual’s achievements and team competitions. The awards will range from gift cards to being treated to special events. At the end, there will be overall winners, as determined by Team IITTI (leadership team).

Before beginning the program, each student must have a sports physical completed for the year 2016 and complete the required registration.

Information meetings are scheduled on May 30th and June 1st at 12:30 p.m. at the Heritage Lifefit-Fitness Center 12408 Hesperia Rd, Suite 25, Victorville CA 92395 where the classes will also take place.

For sign ups and to find out more information about the Heritage Lifefit- In It To Thin It Program call 760 261 6462, or register online at

Medical Marijuana Issue at Hesperia Council Meeting

The Hesperia City Council, after hearing approximately 40 pro-medical marijuana citizens address them, surprised, perhaps even shocked most by voting 5-0 to table an ordinance that would have banned medical marijuana deliveries. The council voted to revise the proposed ordinance.

The council in recent years had shut down every brick-and-mortar dispensary in the city selling medical marijuana to those with physician recommendations. The council advised the standing-room-only crowd that those dispensaries had caused numerous problems including a shooting and a mobile van for prostitution.

Several council members, who had sat attentively but stony-faced through two hours plus of frightened citizens begging them not to make it difficult for them to get their medicine and several speakers who spoke abusively, said plainly that they were not against home delivery of medical marijuana.

Mayor Bill Holland said that the speakers’ comments were moving and thought provoking.

“There’s nobody in this room, with your medical conditions, that I don’t want to see get relief. That was not our intention (with the proposed ordinance that would ban home delivery),” Holland told the chamber.

The city had created the ordinance in a reaction to a state law that would have given the state sole authority to license marijuana growers in jurisdictions that had no laws in place by March 1 regulating cultivation. That state law has since been corrected with an emergency bill signed by Governor Jerry Brown.

“It was going to be–what we do not specify, the state would dictate,” said council member Eric Schmidt.

Assistant City Attorney Jeff Malawy said, “I don’t think anyone up here wants to ban medical marijuana. We shut down dispensaries because they were selling for profit. You cannot sell medical marijuana for profit and it must be distributed by a non-profit collective or cooperative.”

Mayor Holland noted that until the November election, and a proposition that might legalize marijuana, that “We still have to regulate this. I suspect that in November two issues may be settled twofold. One, whether or not to legalize marijuana period and two, whether or not cities and municipalities have the ability to regulate it at all.”

After public comments, the council discussed what should be in the revised ordinance. Council Member Blewett stated, “We don’t want any dispensaries or major cultivation places. That should be the essence of the ordinance.”

After the meeting, Blewett told the Desert News Post that he did not like marijuana and that he would not change. “But I still came out for something fair,” he said.

A married couple who had both spoken passionately to the council and who had been listening to us interrupted.
“We’ll see,” said the husband.