Wilde v. City of Dunsmuir

• Decision Date: 15 November 2018
• Docket Number: C082664
• Citation: 29 Cal.App.5th 158,240 Cal.Rptr.3d 88
• Court: California Court of Appeals Court of Appeals
• Parties: Leslie T. WILDE, Plaintiff and Appellant, v. CITY OF DUNSMUIR et al., Defendants and Respondents.

29 Cal.App.5th 158

240 Cal.Rptr.3d 88

Leslie T. WILDE, Plaintiff and Appellant,

v.CITY OF DUNSMUIR et al., Defendants and Respondents.

C082664

Court of Appeal, Third District, California.

Filed November 15, 2018

Leslie T. Wilde, in pro. per., for Plaintiff and Appellant.

KENNY, SNOWDEN & NORINE, John Sullivan Kenny, Redding, Linda R. Schaap and Rob J. Taylor for Defendants and Respondents.

HOCH, J.

In 1996, California voters adopted Proposition 218 (as approved by voters Gen. Elec. Nov. 5, 1996, eff. Nov. 6, 1996 1996-general/official-declaration.pdf> [as of Nov. 14, 2018], archived at ) (Proposition 218) to add article XIII C to the California Constitution by which they expressly reserved their right to challenge local taxes, assessments, fees, and charges by initiative. (See generally Bighorn-Desert View Water Agency v. Verjil (2006) 39 Cal.4th 205, 208-209, 46 Cal.Rptr.3d 73, 138 P.3d 220 ( Bighorn-Desert ).) This case presents the question of whether section 3 of article XIII C to the California Constitution silently repealed voters’ right to challenge by referendum the same local levies for which they expressly preserved their power of initiative.

Here, the City of Dunsmuir (City) rejected a referendum measure submitted by one its residents, Leslie T. Wilde. The City rejected the referendum even though there is no dispute Wilde gathered sufficient voter signatures to qualify the referendum for the ballot to repeal Resolution 2016-02 that established a new water rate master plan. The City’s rejection was based on its view that its resolution establishing new water rates is not subject to referendum, but only voter initiative. Wilde filed a petition for a writ of mandate in superior court to place the referendum on the ballot. At the same time, Wilde gathered sufficient voter signatures to place an initiative on the ballot to establish a different water rate plan.¹ The trial court denied Wilde’s petition, and the City’s voters rejected Wilde’s initiative, Measure W.

On appeal, Wilde contends the trial court erred in refusing to order the City to place her referendum on the ballot. The City counters that the voters’ rejection of her initiative measure moots the current appeal.

We conclude this appeal is not moot. The voters’ rejection of Wilde’s initiative water rate plan does not establish that the voters would necessarily have rejected Wilde’s referendum on the City’s water rate plan. Voters might be dissatisfied with both water rate plans and therefore reject the initiative and pass the referendum. On the merits, we conclude the voters’ adoption of Proposition 218 did not abridge voters’ right to challenge local resolutions and ordinances by referendum. We further conclude the trial court erred in finding the City’s water rate plan was an administrative decision not subject to voter referendum. The resolution adopting an extensive water upgrade project funded by a new water rate plan was legislative in nature and therefore subject to voter referendum.

Accordingly, we reverse with directions to issue a peremptory writ of mandate ordering the voter registrar to place Wilde’s referendum on the ballot.

FACTUAL AND PROCEDURAL HISTORY

Resolution 2016-02

In January 2015, the City formed an ad hoc water rate committee (Committee). The Committee held public meetings and a two-hour town hall meeting during which it assessed the City’s water infrastructure needs, considered a study on the City’s water rates, and proposed a six-year tiered increase in water rates. The increase was intended to fund the replacement of a 105-year-old water storage tank and a significant number of similarly aged water main sections.

In March 2016, the city council passed Resolution 2016-02 by which it raised water rates according to a table that lists consumption charges according to type of residential unit served and the diameter of the water supply pipe. The new water rate structure reflects "an ascending base rate" formulated so that, "at the end of the five year period, the City would have its rates at a level that would give it the minimum local share needed to meet federal grant requirements" and to "meet funding requirements for overall projects." Resolution 2016-02 sets forth a five-year plan for a $15 million upgrade to the City’s water storage and delivery infrastructure.

Consistent with the requirements of Proposition 218, the City provided notice of the public hearing on water rate adjustments and protest ballots with which residents could file an objection. The City received only 40 protest votes at a time when 800 were required for a successful protest. Thus, Resolution 2016-02 went into effect.

Wilde’s Petition for Writ of Mandate

After the resolution’s adoption, Wilde gathered 145 voter signatures calling for a referendum to repeal the resolution. These signatures were verified. There is no dispute the number of voter signatures gathered by Wilde sufficed for a referendum. Nonetheless, the City’s attorney informed Wilde the City refused to place the referendum on the ballot, stating: "The setting of Prop. 218 rates is an administrative act not subject to the referendum process. Also, Proposition 218 provides for initiatives ( [Cal.Const. art.] XIII C, sec. 3), but not referenda."

In May 2016, Wilde filed a petition for writ of mandate to place her referendum on the ballot. The City opposed the petition. In July 2016, the trial court denied the writ petition. The trial court agreed with the City that the setting of new water rates constituted an administrative act that was not subject to referendum.

Defeat of Initiative Measure W

While Wilde’s writ petition was pending in superior court, she gathered a sufficient number of signatures for an initiative to amend the City’s water and sewer rate structure. The City placed Wilde’s initiative on the November 8, 2016 ballot as Measure W. Measure W would have implemented a different water and sewer rate structure than that adopted by Resolution 2016-02. Measure W was rejected by the voters.

DISCUSSION

IMootness

As this court has previously noted, "An appeal is moot when a decision of ‘the reviewing court "can have no practical impact or provide the parties effectual relief." ’ ( MHC Operating Limited Partnership v. City of San Jose (2003) 106 Cal.App.4th 204, 214 .) We have the duty to avoid deciding a moot appeal. ‘ " ‘[T]he duty of this court, as of every other judicial tribunal, is to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it.’ " ’ ( California Redevelopment Assn. v. Matosantos (2013) 212 Cal.App.4th 1457, 1484 .)" ( Saltonstall v. City of Sacramento (2014) 231 Cal.App.4th 837, 848-849, 180 Cal.Rptr.3d 342.) Consequently, we are compelled to dismiss when it is impossible for this court to grant any effective relief. ( Vernon v. State of California (2004) 116 Cal.App.4th 114, 120, 10 Cal.Rptr.3d 121.)

Here, the City argues this appeal is moot. The City reasons the voters’ rejection of Wilde’s initiative renders it impossible for us to grant Wilde any relief regarding her referendum. The City reasons the defeat of Wilde’s initiative signaled the voters’ endorsement of the water rates set by Resolution 2016-02. We disagree based on the differences between Wilde’s initiative and her referendum.

Article II, sections 8 and 9, of the California Constitution contain express reservations of the voters’ initiative and referendum powers. ( Pala Band of Mission Indians v. Board of Supervisors (1997) 54 Cal.App.4th 565, 581, 63 Cal.Rptr.2d 148 ( Pala ).) Article II, section 8, subdivision (a), declares: "The initiative is the power of the electors to propose statutes and amendments to the Constitution and to adopt or reject them." And article II, section 9, subdivision (a), states: "The referendum is the power of the electors to approve or reject statutes or parts of statutes except urgency statutes, statutes calling elections, and statutes providing for tax levies or appropriations for usual current expenses of the State." The fundamental difference between the voter powers in Article II, sections 8 and 9 is that " ‘[r]eferenda do not enact law. ...’ ( Referendum Committee v. City of Hermosa Beach [ (1986) ] 184 Cal.App.3d 152, 157 .) That is the function of the initiative." ( Santa Clara County Local Transportation Authority v. Guardino (1995) 11 Cal.4th 220, 242, 45 Cal.Rptr.2d 207, 902 P.2d 225.) Another key difference is that "tax measures are exempt from referendum. (See Rossi v. Brown (1995) 9 Cal.4th 688, 697 [38 Cal.Rptr.2d 363, 889 P.2d 557] [ ( Rossi ) ].) But the state Constitution imposes no similar limitation on the initiative. (See id . at pp. 699-705 [38 Cal.Rptr.2d 363, 889 P.2d 557].)" ( Bighorn-Desert , supra , 39 Cal.4th at p. 212, fn. 3, 46 Cal.Rptr.3d 73, 138 P.3d 220.)

We reject the City’s mootness argument because of the different aims of Wilde’s referendum and her initiative. Wilde’s initiative sought to replace the City’s water rate system with a different set of water rates for Dunsmuir’s residents. By contrast, Wilde’s referendum did not seek to replace the water rates implemented by the City’s adoption of Resolution 2016-02 but instead to repeal the resolution. This means City voters could have rejected Wilde’s initiative based on their dislike of the proposed new rates and could also be willing to vote for Wilde’s referendum based on a concurrent dislike of the water rates established by Resolution 2016-02.

Assuming for the sake of this mootness issue that the water rates adopted by Resolution 2016-02 are subject to challenge by referendum, this court would have the ability to grant effective relief by ordering Wilde’s referendum to be placed on a future ballot. ( Yost v. Thomas (1984) 36 Cal.3d 561, 565, 205 Cal.Rptr. 801, 685 P.2d 1152 ( Yost ).) In Yost , the California...