Rossi v. Brown

Decision Date06 March 1995
Docket NumberNo. S035265,S035265
Citation889 P.2d 557,38 Cal.Rptr.2d 363,9 Cal.4th 688
CourtCalifornia Supreme Court
Parties, 889 P.2d 557 Leo ROSSI et al., Plaintiffs and Respondents, v. Thad BROWN, as tax collector, etc., Defendant and Appellant.

Louise H. Renne, City Atty., Burk E. Delventhal and Thomas J. Owen, Deputy City Attys., for defendant and appellant.

Jonathan M. Coupal, Sacramento, Trevor A. Grimm, Los Angeles, Ronald A. Zumbrun, Anthony T. Caso, Alan W. Foutz, Sacramento, William M. Pfeiffer, Judith K. Herzberg, Los Angeles, Spencer R. Kaitz, Jeffrey Sinsheimer, Oakland, Nielsen, Merksamer, Parrinello, Mueller & Naylor, John E. Mueller and Eric J. Miethke, Mill Valley, as amici curiae on behalf of defendant and appellant.

Sal C. Balistreri and Michael Mendelson, San Francisco, for plaintiffs and respondents.

James P. Botz, County Counsel, Sonoma, Lloyd M. Harmon, Jr., County Counsel, San Diego, Jeffrey L. Kuhn, County Counsel, Madera, Dwight L. Herr, County Counsel, Santa Cruz and Sally Grant Disco, Los Angeles, as amici curiae on behalf of plaintiffs and respondents.

BAXTER, Associate Justice.

We are asked to decide whether, under a city charter which prohibits referenda on tax ordinances, but which grants to the electorate the power to adopt any legislation that the board of supervisors may enact, the initiative power may be used to prospectively repeal a tax ordinance and to prevent adoption by the board of supervisors of any future ordinance imposing a similar tax. The Court of Appeal held that use of the initiative power to repeal a tax and to bar future adoption of a tax had the same effect as a referendum on a tax ordinance and thus was prohibited.

We disagree. The rule on which the Court of Appeal relied, one based on dicta in prior cases, fails to take into account the plain language of the constitutional and charter provisions in which the people have reserved the powers of initiative and referendum. While the referendum provisions expressly preclude a referendum on statutes and ordinances which impose a tax, no such limitation is imposed on the people's exercise of their reserved initiative power.

The language of the constitutional and charter provisions in issue is clear. The initiative provisions, unlike the referendum provisions, do not except measures imposing a tax from the initiative power. In the absence of any ambiguity there is no need to look beyond the words of these documents to ascertain their meaning. As we shall explain, however, that history which is available supports our conclusion that the San Francisco ordinance which is the object of this proceeding was within the power of the people to adopt by initiative. That history confirms that the power of the people to control taxation was among the principal benefits of the initiative anticipated by its supporters.

Because the Court of Appeal erred in equating the initiative power with the referendum power and imposing on the initiative power a limitation not found in the language of the constitutional initiative provision or the San Francisco Charter, we shall reverse the decision of the Court of Appeal.

I BACKGROUND

In 1982 the Board of Supervisors of the City and County of San Francisco (the Board) enacted an ordinance which exempted residential utility users from a utility tax that had been imposed earlier on the use of electricity, gas, water, steam, and telephone service. The ordinance also provided, however, that in succeeding years the tax would be imposed again unless the Board voted to exempt residential users by September 15 of the previous year.

When the Board reversed an earlier decision to exempt residential users for 1987, an initiative petition seeking to prospectively repeal the tax on residential users qualified for the ballot and was adopted at a November 1987 election. The initiative (Proposition R) added section 707.1 to the revenue/business regulations of the city. (Section 707.1.) Section 707.1 provided:

"(a) No tax shall be levied upon the use ... by residential customers of telephone communication services, electrical energy or gas, water or steam which is delivered through mains or pipes or of any other utility service after June 30, 1988.

"......

"(c) This Section was adopted by the voters of [the city] at the November 3, 1987 election and may be amended only by the vote of the electorate."

When appellant tax collector stopped collecting the tax after June 30, 1988, respondents, taxpayers Leo Rossi and Guiliano Darbe, filed this action, a petition for writ of mandate, by which they sought to compel appellant to resume collecting the utility tax from residential users. The superior court issued a peremptory writ of mandate granting the requested relief and tax collector appealed. The Court of Appeal affirmed the judgment. This court granted appellant's petition for review.

II THE INITIATIVE POWER

This case arises because both the Charter of the City and County of San Francisco and section 9 of article II of the California Constitution exclude tax measures from the referendum power of the voters. 1 There is no express exclusion of tax measures from the initiative, however.

Because the role of the court is to apply a statute or constitutional provision according to its terms, not to read into it exceptions or qualifications that are not supported by the language of the provision (Vallerga v. Dept. Alcoholic Bev. Control (1959) 53 Cal.2d 313, 318, 1 Cal.Rptr. 494, 347 P.2d 909), we begin with what appears to be the plain language of the constitutional and charter provisions which govern exercise of the initiative power in the City and County of San Francisco. Where the language is clear, it should be followed. (Droeger v. Friedman, Sloan & Ross (1991) 54 Cal.3d 26, 38, 283 Cal.Rptr. 584, 812 P.2d 931.)

These constitutional and charter provisions must be construed liberally in favor of the people's right to exercise the reserved powers of initiative and referendum. The initiative and referendum are not rights "granted the people, but ... power[s] reserved by them. Declaring it 'the duty of the courts to jealously guard this right of the people' [citation], the courts have described the initiative and referendum as articulating 'one of the most precious rights of our democratic process' [citation]. '[I]t has long been our judicial policy to apply a liberal construction to this power wherever it is challenged in order that the right not be improperly annulled. If doubts can reasonably be resolved in favor of the use of this reserve power, courts will preserve it.' " (Associated Home Builders etc., Inc. v. City of Livermore (1976) 18 Cal.3d 582, 591, 135 Cal.Rptr. 41, 557 P.2d 473, fn. omitted; see also Brosnahan v. Brown (1982) 32 Cal.3d 236, 241, 186 Cal.Rptr. 30, 651 P.2d 274.) We examine the constitutional and charter initiative provisions with these principles in mind.

Article II, section 8 of the Constitution creates the statewide initiative power. It provides in pertinent part:

"(a) The initiative is the power of the electors to propose statutes and amendments to the Constitution and to adopt or reject them.

"(b) An initiative measure may be proposed by presenting to the Secretary of State a petition that sets forth the text of the proposed statute or amendment to the Constitution and is certified to have been signed by electors equal in number to 5 percent in the case of a statute, and 8 percent in the case of an amendment to the Constitution, of the votes for all candidates for Governor at the last gubernatorial election.

"..."

The only express constitutional limitations on the people's exercise of the statewide initiative power are those in sections 8 and 12 of article II. Section 8, subdivision (d) of article II bars initiative measures "embracing more than one subject," and section 12 of that article bars constitutional amendments and statutes which "name[ ] any individual to hold any office, or name[ ] or identif[y] any private corporation to perform any function or to have any power or duty...." 2

Nothing in the constitutional reservation of the initiative power expressly precludes exercise of the initiative to repeal a tax measure.

The local initiative power may be even broader than the initiative power reserved in the Constitution. (Hopping v. City of Richmond (1915) 170 Cal. 605, 150 P. 977; Spencer v. City of Alhambra (1941) 44 Cal.App.2d 75, 78, 111 P.2d 910.) In Spencer, the power of the voters to establish by initiative the minimum salaries for policemen was in issue. The city charter gave to the city commission the authority to establish those salaries, but in a separate provision the voters had reserved a very broad initiative power. "The qualified electors of the city shall have power through the initiative or otherwise, as provided by this chapter and the general laws of the state, to enact appropriate legislation to carry out and enforce any of the general powers of the city or any of the specified powers of the commission." (Id., at p. 78, 111 P.2d 910.) That reservation, the court held, overrode the commission's power.

"When ... the people phrased the foregoing sections pertaining to those powers in such broad, general and unambiguous language, the conclusion seems inevitable that thereby it was intended that legislation on every municipal subject should, unless expressly or by clear and necessary implication excluded by other sections, be subject to initiative actions through the adoption of ordinances by the people. After all, the people through their charter have a right to vest in the voters of the city the right and power to deal through initiative action with any matter within the realm of local affairs or municipal business, whether strictly legislative or not, as that term is generally used (Hopping v. City of Richmond, 170 Cal. 605 ); and ... the consensus of authority is to the effect that the fixing of salaries of public officers is a legislative...

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