GREENE v. MARIN COUNTY FLOOD CONTROL AND WATER CONSERVATION DISTRICT









Filed 3/11/09





CERTIFIED FOR PUBLICATION


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

FORD GREENE, Plaintiff and Appellant, v. MARIN COUNTY FLOOD CONTROL AND WATER CONSERVATION DISTRICT, Defendant and Respondent; FLOOD MITIGATION LEAGUE OF ROSS VALLEY ET AL., Interveners and Respondents.

A120228 (Marin County Super. Ct. No. CV 073767)

A county flood control and water conservation district held an election on whether to impose a new storm drainage fee. The election was mandated by article XIII D of the California Constitution, which was adopted by voter initiative in 1996 as Proposition 218. In the district’s election, voters’ names and addresses were printed on the ballots and voters were directed to sign their ballots. The fee was approved. However, a voter contested the election, claiming the election procedures violated the voting secrecy requirement of article II, section 7 of the California Constitution. The superior court denied the election contest.
This appeal requires us to construe article XIII D and specifically article XIII D, section 6, subdivision (c)[1], which imposes the election requirement for certain new or increased real property fees. We conclude the voters who adopted Proposition 218 intended voting to be secret in these fee elections. We set aside the district’s election results because voters’ names were printed on the ballots and ballots had to be signed, yet voters were provided no assurances that their votes would be kept secret.
BACKGROUND
In 1996, voters approved Proposition 218 to close perceived loopholes in the restrictions on property taxes imposed by Proposition 13.[2] (Apartment Assn. of Los Angeles County, Inc. v. City of Los Angeles (2001) 24 Cal.4th 830, 838-839 (Apartment Assn.); Howard Jarvis Taxpayers Association v. City of Riverside (1999) 73 Cal.App.4th 679, 681 (Riverside).) Proposition 13 limited ad valorem property taxes to 1 percent of a property’s assessed valuation, limited increases in assessed valuation to 2 percent per year unless and until the property changed hands, and “prohibited counties, cities, and special districts from enacting any special tax without a two-thirds vote of the electorate.” (Riverside, at p. 681-682; Cal. Const., art. XIII A[3].) In 1992, the Supreme Court held that a property assessment[4] was not a special tax within the meaning of Proposition 13. (Knox, supra, 4 Cal.4th at p. 141.) According to the proponents of Proposition 218, Knox created a loophole in Proposition 13’s voter approval requirements, which local governments subsequently exploited to a degree that assessments were “ ‘limited only by the limits of the human imagination.’ ”[5] (Ballot Pamp., General Election (Nov. 5, 1996) argument in favor of Proposition 218, p. 76.)
Proposition 218 added articles XIII C and XIII D to the Constitution. (Riverside, supra, 73 Cal.App.4th at p. 682.) Those articles “allow[] only four types of local property taxes: (1) an ad valorem property tax; (2) a special tax; (3) an assessment; and (4) a fee or charge.” (Ibid.) Article XIII C imposes restrictions on general and special property taxes in addition to those imposed under article XIII A. Article XIII D restricts property assessments, and fees or charges.[6]
For new or increased property assessments, article XIII D requires agencies to obtain an engineer’s report on the assessment and mail detailed notice to affected property owners, explaining the reason for and the method of calculating the assessment and identifying the amount chargeable to the owner’s particular parcel. (Art. XIII D, § 4, subds. (b), (c).) The notice must provide the date, time, and place of a public hearing on the assessment, include a ballot “whereby the owner may indicate his or her name, reasonable identification of the parcel, and his or her support or opposition to the proposed assessment,” and conspicuously describe the procedures for tabulation of those ballots. (Art. XIII D, § 4, subds. (c), (d).) When tabulated at the public hearing, the ballots are weighted according to the proportional financial obligation of each affected parcel. (Art. XIII D, § 4, subd. (e).) If a majority of the weighted ballots oppose the assessment, it may not be imposed. (Ibid.)
For new or increased property-related fees, the initiative also requires detailed mailed notice to affected property owners, explaining the proposed fee and announcing a public hearing. (Art. XIII D, § 6, subd. (a)(1).) However, no formal balloting is required at this stage of the process. (Ibid.) Instead, “[a]t the public hearing, the agency shall consider all protests against the proposed fee or charge. If written protests against the proposed fee or charge are presented by a majority of owners of the identified parcels, the agency shall not impose the fee or charge.” (Art. XIII D, § 6, subd. (a)(2).) If a majority protest does not occur, the fee (with some exceptions not relevant here) still may not be “imposed or increased unless and until that fee or charge is submitted and approved by a majority vote of the property owners of the property subject to the fee or charge or, at the option of the agency, by a two-thirds vote of the electorate residing in the affected area.” (Art. XIII D, § 6, subd. (c) (section 6(c)).) Critical to the issues raised in this appeal, the initiative provides: “An agency may adopt procedures similar to those for increases in assessments in the conduct of elections under this subdivision.” (Ibid.)
In July 1997, the Legislature enacted the Proposition 218 Omnibus Implementation Act. (Stats. 1997, ch. 38.) The Act prescribes detailed procedures for the imposition or increase of assessments. (Gov. Code, § 53753; enacted by Stats. 1997, ch. 38, § 5; amended by Stats. 2000, ch. 220, § 1; amended by Stats. 2001, ch. 636, § 1; amended by Stats. 2007, ch. 670, § 113.) These procedures require “assessment ballots” to be signed. (Gov. Code, § 53753, subd. (c).) The ballot must be “in a form that conceals its contents once it is sealed by the person submitting the assessment ballot” and, once received by the agency, must “remain sealed until the tabulation of ballots . . . commences.” (Ibid.) However, during and after the tabulation, the ballots are “disclosable public records . . . equally available for inspection by the proponents and the opponents of the proposed assessment.” (Gov. Code, § 53753, subd. (e)(1).) Finally, the statute expressly provides that the tabulation of assessment ballots (described in § 53753, subd. (e)) “shall not constitute an election or voting for purposes of Article II of the California Constitution or of the California Elections Code.” (Id., subd. (e)(4).) The implementation legislation does not prescribe detailed procedures for fee elections under article XIII D, section 6(c). Significantly, this 1997 Act does not expressly prescribe detailed procedures for fee elections under article XIII D, section 6(c).
Marin County Storm Drainage Fee
In 2007, the Marin County Flood Control and Water Conservation District (District) proposed a new storm drainage fee to be imposed on the owners of property within Zone 9 (Ross Valley) of the district, which includes the communities of Greenbrae, Larkspur, Corte Madera, Kentfield, Ross, San Anselmo, and Fairfax. The purpose of the fee was to partially fund a flood protection plan, which involved the removal of constrictions in creeks that drain water from the area and the addition of detention basins upstream from those creeks to hold back or slowly release water. The area had a 50-year history of chronic flooding, which included a flood on or about December 31, 2005 that displaced residents, closed down businesses, and caused an estimated $100 million in property damage. The flood protection plan and proposed fee were developed after months of collaboration among municipalities, government agencies, and community organizations. Intervenors Flood Mitigation League of Ross Valley and Friends of the Corte Madera Creek Watershed participated in this process.[7]
In February 2007, the District’s director recommended a drainage system fee methodology. The District’s board of supervisors (Board) approved the methodology and directed preparation of an engineering report, which was completed in March. Legal counsel for the District drafted procedures for mailed notice, conduct of a public hearing, and tabulation of written protests at that hearing (Written Protest Procedures). The Written Protest Procedures stated they were adopted “for the purposes of assuring compliance with the requirements of Section 6” of article XIII D.
On the director’s recommendation, the Board accepted the final engineer’s report, adopted the Written Protest Procedures, scheduled a public hearing on the fee for May 1, 2007, and directed the mailing of notices to affected property owners. On May 1, the Board declared by resolution that there was no majority protest at the public hearing and it called a “special election” on the fee “to be held on Monday, June 25, 2007, solely by mailed ballot, pursuant to and in accordance with Section 6 and the procedures . . . attached hereto.” Those procedures (Election Procedures) provided that the “mail ballot election shall constitute an election for the purposes of Section 6 of Article [XIII D] of the California Constitution . . . [and shall] be conducted in substantial compliance with the requirements of the California Elections Code to the extent feasible, and otherwise in accordance with these procedures.” The procedures designated the clerk and deputy clerk or clerks to conduct the election, who would be the only persons to have access to the ballots, and prohibited them from disclosing any individual’s vote absent a court order. The procedures required ballots to be signed and specified that unsigned ballots would not be counted.
The ballots actually mailed to voters were pieces of card stock printed on both sides. One side provided voting instructions (instruction side) and the other was used for the actual voting (voting side). The instruction side directed the recipient to follow four steps in order to vote on the proposed fee: 1. Read the enclosed information about the proposed fee; 2. Check Yes or No on the voting side of the ballot; 3. Sign your name and write the date, in ink; and 4. Return the ballot to a specified address by June 25, 2007. The voting side of the ballot was printed with the address of a specific parcel, the amount of the fee that would be charged to that parcel if the fee was approved, and the name and address of the record property owner. It set forth the issue to be voted on, i.e., whether the district should impose the specified fee, briefly described how the fee would be used, and provided check boxes for voters to vote yes or no on the question. Finally, the voting side of the ballot provided a space for the voter to print his or her name and date and sign the ballot over text declaring under penalty of perjury that he or she was authorized to vote on behalf of the identified parcel. The ballots apparently were mailed with an unaddressed return envelope that stated prominently on its face, “OFFICIAL PROPERTY OWNER BALLOT INSIDE.”
The official canvass of the votes was 8,059 total ballots cast; 3,208 yes votes; 3,143 no votes; 1,708 invalidated votes. On July 10, 2007, the Board declared that the measure passed. On July 17, 2007, the Board implemented the fee.
Election Contest
On July 16, 2007, “Ford” Greene (Greene), a property owner affected by the fee who voted in the election, demanded a recount of the election results pursuant to Elections Code section 15620. The record does not include any written response to the recount demand or any official declaration of the results of a recount. (See Elec. Code, § 15633 [requiring recount results to “be posted conspicuously in the office of the elections official”].)
On August 9, 2007, Greene filed a “Verified Complaint for an Election Contest” pursuant to Elections Code section 16100 et seq.[8] The District answered and pursuant to the trial court’s authorization, Flood Mitigation League of Ross Valley and Friends of the Corte Madera Creek Watershed filed their complaint in intervention, joining the District in opposing appellant’s election contest complaint.
As relevant to this appeal, Greene argued that requiring voters to sign their ballots violated article II, section 7, which requires that voting be conducted secretly, and that the form of the ballot violated Elections Code requirements for voting by mail. The District and Intervenors responded that neither article II nor the Elections Code applied to a property fee election conducted under article XIII D, section 6(c) because section 6(c) “specifically allows for property fee elections to mirror the requirements set forth for the conduct of elections in assessment fees.” They argued the District’s fee election complied with Government Code section 53753’s assessment balloting procedures.
The trial court denied the election contest. It ruled that the election ballot complied with both article XIII D and Government Code section 53753, which required ballots to be signed. The court wrote, “Plaintiff’s reliance on California Const. Art. II, § 7, and the Election[s] Code requirements for ballots in other types of elections, is misplaced.” In doing so, it cited Government Code section 53753, subdivision (e)(4), which provides that those laws do not apply to assessment balloting.
DISCUSSION
The California Supreme Court has declared that the “ ‘right to a secret ballot . . . is the very foundation of our election system.’ ” (Scott v. Kenyon (1940) 16 Cal.2d 197, 201 (Scott).) It is the “right to vote one’s conscience without fear of retaliation.” (McIntyre v. Ohio Elections Comm’n (1995) 514 U.S. 334, 343; see Burson v. Freeman (1992) 504 U.S. 191, 200-207 (Burson), plur. op. of Blackmun, J. [describing problems of intimidation and electoral fraud that led to adoption of secret ballot by all 50 states].) The right is “an important and valuable safeguard for the protection of the voter, and particularly the humble citizen, against the influence which wealth and situation may be supposed to exercise.” (Robinson v. McAbee (1923) 64 Cal.App. 709, 714 (Robinson).) The right to secrecy encompasses not only the right to cast one’s vote in private (Peterson v. City of San Diego (1983) 34 Cal.3d 225, 230; Wilks v. Mouton (1986) 42 Cal.3d 400, 408, superseded by statute on other grounds as stated in Escalante v. City of Hermosa Beach (1987) 195 Cal.App.3d 1009, 1019; Scott at p. 201), but also the right to maintain the confidentiality of one’s vote following an election (Scott, at pp. 201, 203; Patterson v. Hanley (1902) 136 Cal. 265, 269-270; Robinson, at p. 714).
At issue here is whether the right to secrecy in voting applies to an “election” to approve a property-related fee conducted pursuant to article XIII D, section 6(c). More specifically, by passing Proposition 218 and therefore voting to require an “election” before agencies could impose certain types of property-related fees—with the important qualification that the agencies could use procedures similar to those for increases in assessments—did the electorate intend that voting would be secret‌ For the reasons discussed below, we conclude they did. After explaining the basis for this conclusion, we turn to the question whether judgment should have been granted in the District’s favor on Greene’s election contest.
I. Standard of Review
The scope of our review in an election contest is no different from that in other appeals: we review factual findings for substantial evidence and questions of law de novo. (Gooch v. Hendrix (1993) 5 Cal.4th 266, 278-279 (Gooch).) The trial court determined that the election contest raised pure questions of law and decided the case based on briefing and argument without holding an evidentiary hearing. Therefore, our review is de novo. (Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 799-800; see also Apartment Assn., supra, 24 Cal.4th at p. 836 [interpretation of article XIII D is question of law].)
II. Article XIII D, Section 6(c) Requires Secret Voting
In construing Proposition 218, “we apply the familiar principles of constitutional interpretation, the aim of which is to ‘determine and effectuate the intent of those who enacted the constitutional provision at issue.’ [Citation.] ‘The principles of constitutional interpretation are similar to those governing statutory construction.’ [Citation.] If the language is clear and unambiguous, the plain meaning governs. [Citation.] But if the language is ambiguous, we consider extrinsic evidence . . . . [Citations.]” (Silicon Valley Taxpayers’ Assn., Inc. v. Santa Clara County Open Space Authority (2008) 44 Cal.4th 431, 444-445 (Silicon Valley).) “To decipher the purpose of an ambiguous statute, a court may consider the ostensible objects to be achieved by the statute, the statutory scheme of which the statute is a part, the evils to be remedied, public policy, the legislative history, and the wider historical circumstances of the enactment. [Citations.]” (AB Cellular LA, LLC v. City of Los Angeles (2007) 150 Cal.App.4th 747, 758-759.)
A. Plain Language of Article XIII D Section 6(c)
As summarized above, article XIII D, section 6 prescribes a two-step process for approval of a property-related fee: (1) a noticed public hearing at which affected property owners may submit written protests, and if no majority protest occurs at that hearing, (2) an “election” on the fee. At issue here is the second requirement. Specifically, did the voters intend by the following relevant language that voting on the fee be secret‌ “Voter Approval for New or Increased Fees and Charges. [With exceptions not relevant here], no property related fee or charge shall be imposed or increased unless and until that fee or charge is submitted and approved by a majority vote of the property owners of the property subject to the fee or charge or, at the option of the agency, by a two-thirds vote of the electorate residing in the affected area. The election shall be conducted not less than 45 days after the public hearing. An agency may adopt procedures similar to those for increases in assessments in the conduct of elections under this subdivision.” (Art. XIII D, § 6, subd. (c), italics added.)
1. “Election,” “Majority Vote,” and “Voter Approval”
The plain language of article XIII D, section 6(c) is silent on the issue of whether voting in an election under that subdivision must be secret. However, section 6(c) uses the terms “voter approval,” “majority vote,” “vote of the electorate,” “election,” and “elections.” By way of comparison, article XIII D, section 6, subdivision (a) (section 6(a)), which sets forth the requirements for majority protest proceedings on a proposed fee (which is the only voter approval requirement for sewer, water, and refuge collection fees, and is the first phase of voter approval for other property-related fees), does not use any of these terms. Other provisions of Proposition 218 use “election” and “vote” to refer to votes by the general electorate that presumably are governed by article II. (Art. XIII C, § 2, subds. (b), (c), (d); see Bighorn, supra, 39 Cal.4th at pp. 213-214 [“[W]hen a word has been used in different parts of a single enactment, courts normally infer that the word was intended to have the same meaning throughout”].) Similarly, Proposition 13, the predecessor of Proposition 218, uses the word “election” in that sense. (Art. XIII A, § 4; see Apartment Assn., supra, 24 Cal.4th at pp. 838-839 [“Proposition 218 is Proposition 13’s progeny . . . [and] must be construed in that context”].) Arguably when used in the context of real property taxation elections, the terms “vote” and “election” suggest a secret ballot election of the sort used to elect candidates or pass initiatives.
On the other hand, article XIII D, section 6(c) includes a significant express qualification on the terms “vote” and “election.” It provides, “An agency may adopt procedures similar to those for increases in assessments in the conduct of elections under this subdivision.” (Art. XIII D, § 6(c).) Our interpretation of this qualifying statement entails three subsidiary inquiries. First, what is meant by the “procedures . . . for increases in assessments‌” Second, what is meant by “similar to‌” Third, what is the significance of the fact that the qualifying statement applies to “the conduct of elections under this subdivision‌” (Italics added.)
2. “Procedures . . . for Increases in Assessments”
The District argues that “procedures . . . for increases in assessments” encompass the specific procedures that were adopted by the Legislature after Proposition 218 passed to implement the initiative, specifically Government Code section 53753. However, the voters could not have intended to approve procedures that did not exist at the time they approved the initiative. Nor can “procedures . . . for increases in assessments” reasonably be read as a reference to statutory procedures that were in effect at the time Proposition 218 was adopted. The initiative imposed new procedural requirements on increases in assessments, which were clearly intended to supersede the existing statutory procedures.
We conclude, therefore, that “procedures . . . for increases in assessments” must mean the assessment procedures that are imposed by Proposition 218 itself. Article XIII D, section 4, subdivisions (c) to (e) sets forth those procedures. Section 4 does not use the terms “election” or “vote.” It does refer to “ballots”: it requires a “ballot” to be sent to the property owners who will be affected by a proposed assessment, along with a conspicuous notice of the procedures applicable to the “completion, return, and tabulation of the ballots” and a disclosure that “a majority protest, as defined in subdivision (e), will result in the assessment not being imposed.” (Art. XIII D, § 4, subd. (c), italics added.) Majority protest is defined as “ballots submitted in opposition to the assessment exceed the ballots submitted in favor of the assessment.” (Art. XIII D, § 4, subd. (e), italics added.)[9]
These balloting requirements are silent as to whether the balloting must or may be secret. Several of the requirements suggest a nonsecret vote. The ballot must be one “whereby the owner may indicate his or her name, reasonable identification of the parcel, and his or her support or opposition to the proposed assessment,”[10] which suggests that these three pieces of information will appear on a single piece of paper in contrast to the typical election ballot that does not identify the voter. (Art. XIII D, § 4, subd. (d).) The ballots must be tabulated “[a]t the public hearing,” which suggests the information on the ballot might become public at the hearing. (Art. XIII D, § 4, subd. (e).) Finally, ballots must be “weighted according to the proportional financial obligation of the affected property,” which requires the person actually tabulating the ballots to take the identity of the parcel (and thus of the property owner) into account, again suggesting a nonsecret procedure. (Ibid.)
On the other hand, an agency could comply with article XIII D, section 4 while maintaining secrecy in voting. The information on the ballot need not be publicly disclosed at the public hearing. The persons tabulating the ballots could use the information on the ballot (even if all gathered on a single piece of paper) to validate, weight, and count the ballots but keep the information confidential in the absence of a challenge to the balloting resulting in a court disclosure order. Indeed, this was the procedure prescribed for the District’s fee election under the Election Procedures.[11]
Alternatively, the voter and parcel identifying information could be placed on the outside of an envelope that contains the ballot, in the manner of absentee voting. (See Elec. Code, §§ 3010-3011.) The voter’s qualification could then be confirmed and the weight to be accorded the ballot calculated before the ballot was opened. There would need to be a mechanism to associate the actual vote with the weight of the ballot, but this could be done using computer coding to avoid public disclosure of any individual property owner’s vote (i.e., the association of a particular voter to a particular vote would be hidden within the computer data bank unless ordered disclosed on a challenge to the balloting) or by some other mechanism strictly limiting the disclosure of information that would link the identity of a voter to a yes or no vote.
In sum, we conclude that the phrase “procedures . . . for increases in assessments” in article XIII D, section 6(c) are the procedures described in article XIII D, section 4, subdivisions (c) to (e). Those procedures in some ways suggest a nonsecret process, but they may also be followed while maintaining secrecy in voting. Therefore, this particular phrase does not clarify whether voting in a section 6(c) fee election must be secret.[12]
3. “Similar to”
The qualifying statement in article XIII D, section 6(c) authorizes the use of procedures “similar to,” not “the same as,” assessment balloting procedures. (Art. XIII D, § 6(c).) This language introduces additional ambiguity into the provision. If “similar to” encompasses “the same as,” the provision authorizes the use of procedures that comply with article XIII D, section 4, subdivisions (c) to (e) without qualification. “Similar to,” however, might indicate that agencies may use such procedures only if they do not conflict with the “election” requirement. For example, the provision might authorize the use of the mail balloting and vote weighting procedures that appear in section 4 without also authorizing nonsecret voting (assuming for purposes of argument that section 4 authorizes nonsecret voting). The “similar to” phrase is ambiguous in this respect.
4. “Conduct of Elections under this Subdivision”
The qualifying statement authorizes the use of procedures similar to those for increases in assessments in the “conduct of elections under this subdivision.” (Art. XIII D, § 6(c), italics added.) Article XIII D, section 6(c) describes two types of elections: “a majority vote of the property owners of the property subject to the fee or charge or, at the option of the agency, [ ] a two-thirds vote of the electorate residing in the affected area.” (Ibid., italics added.) If we construe “similar to” to authorize an agency to conduct a section 6(c) election using the procedures for increases in assessments in article XIII D, section 4, and if we conclude those procedures do not include a secret vote, section 6(c) would appear to authorize an agency to conduct a general vote of the electorate in that manner. This startling consequence strongly suggests that “similar to” in the qualifying statement of section 6(c) only authorizes the use of the section 4 assessment balloting procedures if the procedures are compatible with the “election” requirement.
5. The Article XIII D, Section 6(c) “Election” Requirement is Ambiguous
In sum, it is unclear from the language of article XIII D, section 6(c) whether the fee election required by that subdivision may be conducted without ensuring secrecy in voting. The initiative’s use of the term “elections” and “vote” strongly suggest a secret ballot procedure. Although the “election” requirement is expressly qualified by a provision authorizing the use of “procedures similar to those for increases in assessments,” those procedures (set forth in article XIII D, section 4, subdivisions (c) to (e)) do not clearly permit nonsecret voting. Even if they did, section 6(c) only authorizes procedures “similar to” the assessment balloting procedures and it requires the agency to conduct “elections.” The qualifying statement could reasonably be construed to authorize mail balloting (for any fee election) and vote weighting (for fee elections restricted to property owners) without authorizing nonsecret voting.
Because the meaning of the article XIII D, section 6(c) “election” requirement is ambiguous, we turn to principles of constitutional construction and extrinsic aids to resolve the ambiguity. (See City and County of San Francisco v. County of San Mateo (1995) 10 Cal.4th 554, 562-563; Silicon Valley, supra, 44 Cal.4th at pp. 444-445.) We consider the coequal constitutional secret voting requirement and whether and how it should be harmonized with article XIII D, section 6(c); the initiative’s language indicating its proper construction; the ballot pamphlet as evidence of voter intent; the historical context of Proposition 218 (i.e., existing assessment approval practices at the time voters adopted the initiative); and the significance of the Proposition 218 implementing legislation, including Government Code section 53753.
B. Construing Article XIII D, Section 6(c) in Light of Article II, Section 7
Discussing the interpretation of a constitutional provision, the Supreme Court has explained: “It is a cardinal rule of construction that words or phrases are not to be viewed in isolation; instead, each is to be read in the context of the other provisions of the Constitution bearing on the same subject. [Citation.] The goal, of course, is to harmonize all related provisions if it is reasonably possible to do so without distorting their apparent meaning, and in so doing to give effect to the scheme as a whole. [Citations.]” (Fields v. Eu (1976) 18 Cal.3d 322, 328; see also Serrano v. Priest (1971) 5 Cal.3d 584, 596 [“where constitutional provisions can reasonably be construed to avoid a conflict, such an interpretation should be adopted”]; Board of Supervisors v. Lonergan (1980) 27 Cal.3d 855, 866 [“It is well settled that a constitutional amendment is to be construed in harmony with the existing framework of which it forms a part, so as to avoid a conflict”].)
A coequal article of the California Constitution, which governs voting and elections, provides, “Voting shall be secret.” (Art. II, § 7.) “Voting” is not qualified in article II, section 7 to make it inapplicable to a fee election, and “election” and “vote” are not qualified in article XIII D, section 6(c) to make article II, section 7 inapplicable. On their face, therefore, article XIII D, section 6(c) and article II, section 7 are most easily harmonized by construing the “election” required by article XIII D, section 6(c) to be a secret-ballot election.
The District observes that the Supreme Court held long ago that article II does not apply to assessment elections. However, the rationale of those cases has been undermined by the passage of Proposition 218 itself, as the Supreme Court recently acknowledged in Silicon Valley, supra, 44 Cal.4th 431.
1. Imposition of Fees and Assessments on Real Property before Silicon Valley


TO BE CONTINUED AS PART II….



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