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State's High Court To Review Another Prop 218 Controversy

The California Supreme Court has taken up another Proposition 218 case. This one involves voter secrecy in fee elections.

Earlier this year, the First District Court of Appeal annulled a fee election held in 2007. Marin County Flood Control and Water Conservation District had asked voters to approve a storm drainage fee to pay for flood-protection improvements in Ross Valley. Affected property owners received ballots in the mail, and each voter was required to sign a ballot printed with the name, address and proposed fee of the voter. The fee proposal passed 3,208 to 3,143.

One property owner sued to throw out the election because the district did not conduct the vote using secret ballots. A trial court judge disagreed, but the appellate panel overturned the lower court. While conceding that Proposition 218 was ambiguous on secret elections, the First District concluded that "voters who adopted Proposition 218 intended voting to be secret in these fee elections."

With the support of other special districts and local government agencies, the Marin district appealed to the state Supreme Court. It contended that Proposition 218 the "Right to Votes on Taxes Act" passed in 1996 does not require voter secrecy, and that the appellate court ruling runs counter to 12 years of practice in fee elections.

The case presents two questions for the court:

Does the state constitution's secret voting requirement apply to special elections governed by Proposition 218 (article XIII, section D of the constitution)?

If so, was the secrecy requirement violated by the Marin County district, whose procedures were designed to ensure secrecy but which failed to provide each voter with assurance that his vote would be held in confidence?

Earlier this year, the state high court issued a procedural ruling Bonander v. Town of Tiburon (see CP&DR Legal Digest, July 1, 2009) that appears to make it easier to wage a Proposition 218 challenge to some fees. And last year, the court ruled that a Santa Clara County open-space assessment violated Proposition 218 because the fee provided only general, rather than parcel-specific, benefits. That case, Silicon Valley Taxpayers Assn., Inc. v. Santa Clara County Open Space Authority, (2008) 44 Cal.4th 431 (see CP&DR Legal Digest, August 2008), provided a template for the First District's review of the Marin County situation.

The latest case is Greene v. Marin County Flood Control District, No. S172199.
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