A sweeping ballot initiative is being circulated in San Diego.  It’s called The Citizens’ Plan for the Responsible Management of Major Tourism and Entertainment Resources, or simply the “Citizens Plan” ballot initiative.  The initiative is a joint effort by public interest attorney Cory Briggs and real estate developer John Moores.  There have been a number of opinions issued in the media lately about whether the initiative is legal and if it is, whether it requires 2/3 voter passage or merely a majority.  However, these opinions did little to explain the legal issues.

 This article will seek to provide greater insight into the first issue – or at least one aspect of it.  A later article will examine the voter percentage required for passage.

What is the Single Subject Requirement?

California Constitution, Article 2, § 8, states in pertinent part:

(d) An initiative measure embracing more than one subject may not be submitted to the electors or have any effect.

The purpose of this constitutional requirement, i.e., “single-subject rule,” is “to avoid confusion of either voters or petition signers and to prevent subversion of the electorate’s will.”  California Family Bioethics Council v. California Institute for Regenerative Medicine (2007) 147 Cal.App.4th 1319.  In determining whether an initiative complies with this requirement, the courts must determine whether the provisions of an initiative are “reasonably germane” to a “single unifying purpose,” or whether the subject is so all encompassing, so multifaceted as to demand conclusion of unconstitutionality. League of Women Voters v. Eu (1992)  7 Cal.App.4th 649.  “All presumptions favor the validity of initiative measures and mere doubts as to validity are insufficient; such measures must be upheld unless their unconstitutionality clearly, positively, and unmistakably appears.’ ”  California Family Bioethics Council, supra, 1338-1339. The California Supreme Court has explained,

The single-subject rule imposes no barrier to the presentation of any subject to the electorate, but simply precludes drafters from combining, in a single initiative, provisions that are not reasonably germane to a common theme or purpose. Unrelated proposals always may be placed before the voters through separate initiative measures, which may be circulated contemporaneously, affording the electorate the choice of approving all, some, or none of the distinct proposals. Senate of the State of California v. Jones, (1999) 21 Cal.4th 1142, 1158.

The Court has cautioned that while an initiative’s provision need not “interlock in a functional relationship,”

[t]he common purpose to which the initiative’s various provisions relate, however, cannot be so broad that a virtually unlimited array of provisions could be considered germane thereto and joined in this proposition, essentially obliterating the constitutional requirement. Manduley v. Superior Court (2002) 27 Cal.4th 537, 575.

 

What does the “Citizens’ Plan” Ballot Initiative Do?

According to the Citizens’ Plan ballot initiative proponents, it does three essential things:

1. The Citizens’ Plan subjects the hotel room tax (“TOT”) paid by visitors to full disclosure and a public vote at a competitive rate of 15.5% (equal to L.A. and below what San Diegans pay when they visit San Francisco or Anaheim).
2. The Plan allows for limited financial incentives when hoteliers spend their own money to promote the city or build tourism-related facilities.
3. The Plan assures that tourism-related development protects and promotes our most critical environmental and educational resources in our two most impacted areas — our bay fronts and the San Diego River Valley.

A more clinical examination of The Citizens Plan (full text of the Citizens Plan) begins with its “Findings and Declaration,” which are summarized in abbreviated fashion as follows:

1. San Diego’s connection to its beaches, bays, and river is its most valuable asset. It needs protection and a fair and reliable source of funding.
2. The public has a right to vote on taxes.
3. Tourism is a top industry and provides substantial tax revenue for basic services.
4. The City’s Transient Occupancy Tax (TOT) rate of 10.5% is not competitive and a 15.5% rate is sustainable.
5. Tourists and tourism businesses have not paid their fair share of the costs of tourism and entertainment facilities, including Qualcomm stadium, resulting in funding shortfalls.
6. Tourists have benefited from the Convention Center and Qualcomm stadium.
7. Intensive and high density development, particularly tourism and entertainment facilities, need to be located away from the waterfront and Qualcomm site to preserve harbor and river access for tourists and residents.
8. East Village downtown is the most suitable location for a new NFL stadium, and if built there, the Qualcomm site should be sold and developed to use for education, recreation, environmental protection, and eco-tourism.
9. All of the components of the initiative have a “direct relationship and are essential to each other” such that they necessitate a “comprehensive, integrated . . . plan” for “responsibly managing all of these resources.”

An abbreviated summary of its functional provisions is as follows:

1. Tax Increase: Raising the Transient Occupancy Tax (“TOT”) from 10.5% to 15.5% (14% for hotels with less than 30 rooms) [§35.0109(b)&(c)];
2. Tax Repeal: Repealing the current TOT framework and depositing TOT revenues into the city’s General Fund [§35.0109(d)];
3. Tax Credit: Providing tax credits up to 4% against TOT –
   1. 2% for Tourism Financed Improvement District (TFID) assessments for construction of a non-contiguous convention facility and maintenance of convention facilities; and
   2. 2% Tourism Marketing District (TMD) for “promotional self-assessment” by hotels [§61.2807(b)(c)&(d)];
4. Tax uses: Prohibiting use of city funds for sports or convention facilities (but not precluding TFID assessments from funding a non-contiguous convention facility). [§61.2807(a)]
5. Land-use: Prohibiting convention center expansion at the current location [§61.2805(a)];
6. Land-use: Creating a “Downtown Convention and Entertainment Overlay Zone” for the area between Petco Park, Barrio Logan and Sherman Heights – an area currently zoned for mixed residential/commercial use [§61.2804] – allowing construction of convention and sports stadium facilities;
7. Land-use / Environmental: Exempting the construction of a downtown stadium from California Environmental Quality Act (CEQA) review, subject to certain CEQA-like “mitigation, monitoring, and review” requirements enforced through the City’s process five public hearing procedure. [§61.2804(c-e)]
8. Land-use / Environmental: Exempting the construction of a sports stadium in Mission Valley from California Environmental Quality Act (CEQA) review if certain conditions are met [§61.2806(c)] ;
9. Transactional / Disposition of Public Resources: Authorizing the sale of the Qualcomm Stadium site to UCSD, SDSU, San Diego Community College, or the San Diego River Conservancy [§61.2806(a)(11)];
10. Land-use: Setting aside portions of the 166 acre Qualcomm Stadium site: 28 acres for restoration of the San Diego River and an Urban Rivers Scientific Interpretive Center; 22 acres for a park; Construction of a walking or bike path;  and the rest of the site for university-related facilities, including a stadium with a maximum of 40,000 seats[§61.2806]
11. Tourism Financed Assessment District creation: Creating and defining 2 TFID’s (one downtown and one encompassing the rest of the city] utilizing the Property Business Improvement District Act of 1994. [§61.2802]
12. Waterfront Park and Access Fund: Creation of a fund with $15 million from the “proponents” of a downtown stadium or convention facility, contingent on $35 million matching funds from the Port over a 30 year period. The funds would be limited to use for certain park and waterfront access applications. [§61.2804(c)(3)]
13. River Intepretive Center Reserve Fund: Creating a reserve fund for the Urban Rivers Scientific Interpretive Center. [§61.2804(c)(4)]
14. Convention Center Bookings: Specifying how convention center bookings will be managed, and by whom. [§61.2808]

 

Court Holdings on Other Ballot Initiatives

In Senate v. Jones (21 Cal.4th 1142, 1158 – 1999), the California Supreme Court struck down a ballot initiative entitled the Let the Voters Decide Act of 2000, because it encompassed two subjects: (1) transfer of the power to reapportion state legislative, congressional, and Board of Equalization districts to the California Supreme Court, and (2) provisions relating to the compensation of state legislators and other state officers. Id. at 1168. The court explained that the purpose of California’s single-subject rule was to avoid voter confusion thus “prevent[ing] the subversion of the electorate’s will”.

In Manduley v. Superior Court (27 Cal.4th 537 – 2002), the California Supreme Court upheld a ballot initiative that was alleged to have three subjects: (1) gang-related crime, (2) the sentencing of repeat offenders, and (3) the juvenile justice system. The Court held that it did not violate the single-subject rule because “the single-subject provision does not require that each of the provisions of a measure effectively interlock in a functional relationship. [Citation.] It is enough that the various provisions are reasonably related to a common theme or purpose.’ [Citation.]

 

Public Perception of the “Citizens’ Plan” Ballot Initiative

Although direct public perception data is hard to objectively document here, media perception may be somewhat of a gauge.  A recent op-ed entitled San Diego’s Multi-Headed Beast of a “Citizens’ Plan” Initiative stated:

Whatever good intentions it may once have had (and I don’t doubt they existed), the “Citizens’ Plan” detoured down a back alley and emerged out the other end as a grotesque, multi-headed hydra.

Now, I’ve read the “Citizens’ Plan.” Then I read it again… and again.  But for the heck of me, I can’t figure it out.  And I’m not the only one!

In fact, nobody I know has gotten past the first few pages of the “Citizens’ Plan.”  I’m talking about community activists… city officials… political candidates… involved citizens.  Nobody I know knows anybody else who understands what’s in the “Citizens’ Plan.”  Not one of them can figure out whose purpose it serves and how it would impact the future of our city.

A Voice of San Diego article compared the initiative to a  “Rube Goldberg Machine” – defined as a complicated machine to perform a simple task. Merriam-Webster online.  In this case, the reference means it does much more than is necessary to fund a convention annex – one of the most oft cited reasons for the initiative.

KUSI television segment, March 13, 2016 – Steve Peace representing initiative proponent JMI, addressing “complexity” argument, compared it to a mortgage saying, despite is length, everything you need to know is on the first page.

Union Tribune columnist Logan Jenkins stated “The Briggs initiative already is a big, honkin’ beast packed with some disparate elements that is fraught with legal questions.” Will the stadium-campus-tax coalition hold?, Union Tribune, March 13, 2016.

 

Citizens’ Plan Rebuttal to Complexity Criticism

The Citizens’ Plan ballot initiative website anticipates criticism that it covers more than one subject, as follows:

The Citizens’ Plan is long, but it is not complicated. The provisions are clearly laid out immediately after the findings. Like building a house, there are many related components but there is only one overall goal.

The Citizens’ Plan addresses a single subject. That subject is the responsible management of the City’s major tourism- and entertainment-related resources that are dependent on, benefit from, and impact the City’s most valuable visitor and community resource: the Pacific Ocean and its beaches, harbors, bays, rivers, and tributaries. It does this in a simple and straightforward way.

California’s ‘single subject’ requirement for initiatives has nothing to do with shortness or having only ‘one thing’ (e.g. having a kitchen but no bedroom in a single house).  It requires that initiatives deal with one unified ‘subject.’  So, while it is fine to deal with a narrow issue — like building a kitchen — it is equally o.k. to deal with additional related matters (like building a bedroom and a bathroom) so long as they have a single unified subject (building the entire house).

The Citizens’ Plan is presented to the public comprehensively (including an giving readers easy access to related existing laws) to meet the highest standards of transparency.

 

When can a Legal Challenge to a Ballot Initiative be Filed?

Generally, a ballot initiative goes through four distinct stages, and the rules regarding when an initiative can be challenged depend on what stage the ballot initiative is in. These four stages are “pre-qualification,” “pre-election,” “post-election,” and “post-certification.”

As a general rule, the most appropriate time for legal review of the legality of a ballot initiative is after the election, after the city certifies the results (post-certification), so that review benefits from “full, unhurried briefing, oral argument, and deliberation.” Independent Energy Producers Ass’n v. McPherson, (2006) 38 Cal.4th 1020, 1029 – 1030.  In considering an earlier challenge, courts must weigh these benefits against the benefits of earlier review, such as avoiding the confusion, expense, and exhausted effort caused by a defective ballot initiative. Id. However, challenges based on the constitutional single subject requirement may be challenged before the election.  Senate v. Jones, supra, 1154.  Such challenges have been held valid both before the initiative attained the requisite number of signatures to qualify for the ballot (California Trial Lawyers Assoc. v. Eu (1988) 200 Cal.App.3d 351, 354, 357) and after it qualified (Senate at 1150).

 

Summary

The ultimate question is whether the provisions of the Citizens Plan ballot initiative, covering what many consider far flung topics, are reasonably germane to a single unifying purpose.  Is the title of “responsible management of tourism and entertainment resources” an adequate unifying purpose? Or is it an attempt to unify normally unrelated subjects with a broad all encompassing title? Is there a common sense relationship between  the zoning, the TOT tax measures, the convention expansion funding and location, the stadium funding and expansion, the college expansion, the environmental review measures, the tourism marketing measures, an urban river interpretive center, the convention booking / marketing, and the disposition and use of the three public properties  at issue in this initiative?  Or will the inclusion of all these provisions in a single initiative confuse or surprise signature gatherers, petition signers, and ultimately voters?

 

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Bill Adams, Jimmy Gaffney, and Rick Waltman all contributed to this article.