On January 27, 2021, a California Court of Appeal in the state’s First Appellate District affirmed a San Francisco trial court decision which held the California Constitution’s requirement that local taxes be approved by a supermajority vote does not apply to taxes imposed by voter initiative. This is the second decision out of the First District to address the issue, with the Court reaching a similar conclusion last June. It also follows on the heels of a decision out of the Fifth Appellate District from December, wherein that Court likewise ruled the state Constitution’s supermajority requirement did not apply voter-initiated local special taxes. For background on these and related cases, see our prior coverage here and here.

The Court concluded that the First District’s June 30, 2020 opinion in City and County of San Francisco v. All Persons Interested in the Matter of Proposition C governed the outcome of the case, finding that decision to be “well-reasoned and sound.” The Court rejected attempts to distinguish the case from the prior opinion, including arguments related to the involvement of elective officials in the initiative process. Regarding the latter, the Court concluded that neither of the Propositions that added the constitutional provisions at issue “intended to constrain the initiative power when an official is involved in the initiative process.”

This is the third published appellate court decision (two from the same Appellate District) validating local special tax passed by only a simple majority.  Thus far, the California Supreme Court has shown no interest in granting review of these decisions. All eyes now turn to a case out of Oakland, where a trial court ruled the two-thirds vote requirement applies to voter-initiated local special taxes. That case is currently pending on appeal before a separate Division of the First Appellate District.  Is the proverbial strike three on its way? We’ll wait and see. And if it arrives, we’ll turn our attention to the California localities to see just how they respond.