A unanimous California Supreme Court has upheld a trial court's decision to reject a challenge to a Proposition 218 election for a storm drainage fee, thus reversing a decision by First District Court of Appeal. 

The state high court ruled the Marin County Flood Control and Water Conservation District maintained the requisite level of voting secrecy in accordance with the 1996 "Right to Vote on Taxes Initiative," which requires voter approval for certain local fees.

The ruling was the first for the government in a string of three Proposition 218 cases the court has decided in the past two years. In Silicon Valley Taxpayers Assn., Inc. Santa Clara County Open Space Authority, (2008) 44 Cal.4th 431 (Legal Digest Vol. 23 No. 11 Nov 2008), the state Supreme Court threw out an open space assessment because it provided only general, rather than parcel-specific, benefits. Bonander v. Town of Tiburon, 46 Cal.4th 646 (Legal Digest Vol. 22 No. 04 Apr 2007) did not directly implicate Proposition 218, but the decision appeared to make Proposition 218 challenges easier to pursue. The latest decision upholds procedures similar to those that other local government agencies employ when conducting Proposition 218 elections in which votes are weighted according to the assessment amounts for individual parcel owners. 

In 2007, the Marin County Flood Control and Water Conservation District considered levying a storm drain assessment – averaging $125 per parcel – to fund flood control improvements in the Ross Valley. In compliance with Proposition 218 (Article XIII D of the California Constitution), the district board adopted protest provisions, conducted a public hearing, and directed mailing of notices to property owners. 

At the conclusion of the hearing, the Board determined that there was not a majority protest, and called for a special election. The Board decided to conduct a mail-only election. The materials sent to the voters consisted of a single piece of cardstock, with instructions on one side and the ballot on the other. The ballot side displayed name and address of the voter, the amount of the annual fee, the statement of the question to be voted on, and designated spaces for the voter's printed name, signature and the date.

The election procedures adopted by the board provided that upon receipt, ballots would be put in a lock box, with access permitted only by the clerk and deputy clerk. The instructions provided that the clerks would not disclose how particular voters voted except by court order. 

With this procedure in place, the voters narrowly passed the measure, 3,208 to 3,143. Over 1,700 ballots were invalidated for lack of signatures. 

Ford Greene, a property owner within the district, filed suit, and other interested parties intervened in the litigation. One of Greene's contentions was that the requirement that the voter sign the ballot violated Article II, Section 7 of the California Constitution providing for secret balloting. The trial court rejected the argument, but was reversed by the Court of Appeal. The Supreme Court took the case to resolve the potential conflict between the secret balloting provisions and the elements of Proposition 218 calling for voter-specific information as part of the voting process.

To resolve the potential conflict, the Supreme Court reviewed the history of Proposition 218,  as well as follow-up legislation adopted in 1997 and 2000. Notably, the 2000 legislation addressed the secrecy question in part, but it did not require the full secrecy associated with general elections. Recognizing that Proposition 218 elections for assessments call for weighted voting based upon the liability to the voter, review of the specific ballot information particular to each voter was necessary.

Although the appellate court ruled that the Marin district could have maintained a higher level of secrecy for the storm drainage fee election, the Supreme Court concluded that actions taken by the district were consistent with both Proposition 218 and the implementing legislation.  The full voter secrecy mandated by Article II, Section 7, do not apply to the facts involving a Proposition 218 election, the court concluded. 

The Case:

Greene v. Marin County Flood Control and Water Conservation District, No. S172199, 49 Cal.4th 277, 2010 DJDAR 8390. Filed June 7, 2010.

The Lawyers:

For Greene: Ford Greene, in pro per; (415) 258-0360. 

For the district: Michael G. Colantuono, Colantuono & Levin, (530) 432-7359.