First Appellate District: The California Constitution Compels Local Governments to Keep Ballots Confidential in Fee Elections and to Inform the Public of That Fact

March 2009

On March 11, 2009, the California Court of Appeal, First Appellate District issued an opinion concluding that the secret ballot law plays a powerful role in Proposition 218 elections on fee or charge increases. Greene v. Marin County Flood Control and Water Conservation District, Case No. A120228 (2009). First, the court held that ballots must be kept secret during any election in which voters are asked to approve or disapprove new or increased property-related fees and charges. The court grounded its decision in the fact that the secret ballot law, like Proposition 218 itself, is part of the California Constitution. Second, the court invalidated the flood control fee election at issue, though not because the district failed to keep the ballots confidential. In fact, the district’s election procedures required the ballots to be kept confidential. Rather, the election was invalid because the district failed to assure voters “that their votes would remain confidential both before and after tabulation of the ballots.” The court did not rule on whether the secret ballot law applies to assessment ballot proceedings—which are also regulated under Proposition 218—but seemed to suggest as much.

Background
Article II, section 7 of the California Constitution states: “Voting shall be secret.” This voting secrecy requirement dates back to the late 1800s, when section 7’s predecessor was amended to say that “all elections by the people shall be by ballot or by such other method as may be prescribed by law; provided, that secrecy in voting be preserved.” In 1996, voters passed the “The Right to Vote on Taxes Act,” or Proposition 218, to close up perceived loopholes in Proposition 13, which had in turn imposed strict limits on the levy of new taxes. Among other things, Proposition 218 requires a local government to conduct an assessment ballot proceeding of the affected landowners prior to adopting, increasing or extending a special benefit assessment, and likewise requires an election prior to the adoption or increase of most property-related fees and charges (sewer, water, and refuse collection services are exempted from the election requirement). Just after the passage of Proposition 218, the California Legislature adopted Senate Bill 919 (the Proposition 218 Omnibus Implementation Act, or Act) as an urgency statute. SB 919 made numerous clarifications to Proposition 218, including that the voter approval process for assessments was to be called an “assessment ballot proceeding,” not an election, and that ”assessment ballots shall be treated as disclosable public records . . . and equally available for inspection by the proponents and the opponents of the proposed assessment.”

The Decision
In 2007 the Marin County Flood Control and Water Conservation District (District) proposed a new storm drainage fee to help resolve chronic flooding problems along local creeks. Because the provision of drainage is a property-related service, the District could not impose the fee without first obtaining voter approval pursuant to Proposition 218, section 6. Cardstock ballots were mailed to the affected landowners, requiring a yes or no vote and the voter’s signature as a declaration under penalty of perjury that he or she was authorized to vote on behalf of the identified parcel. The fee barely passed—with 3,208 yes votes, 3,143 no votes and a whopping 1,708 invalidated votes.

One landowner (“Ford” Greene) filed a complaint challenging the fee on the ground that requiring a signature on the ballot violated the mandate that ballots be kept secret. The District’s position was that Proposition 218 authorized fee elections to be conducted by “procedures similar to those for increases in assessments,” and that assessment ballots were disclosable public documents pursuant to the Act. The District prevailed at the trial court level, though Mr. Greene, representing himself in propria persona, appealed. The First Appellate District reversed in favor of Mr. Green.

The Court of Appeal reversed in favor of Mr. Greene, emphasizing that article II, section 7 is a constitutional mandate, just like Proposition 218:

On their face, therefore, [Proposition 218] 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.

In support, the court noted that even assessment ballot proceedings could be conducted in secret, and suggested that the California Supreme Court’s longstanding holding that assessment elections did not need to be conducted in secret might have been undermined by the passage of Proposition 218. The court also distinguished fee elections from assessment ballot proceedings on the ground that the Proposition 218 Omnibus Implementation Act’s requirement that assessment ballots be publicly disclosable does not apply to fee elections. In addition, Proposition 218’s deliberate and repeated use of the term election in section 6 weighed in favor of finding that the elections must be conducted in secret. Thus, in authorizing section 6 fee elections to be conducted by “procedures similar to those for increases in assessments,” Proposition 218 did not override the secret ballot requirement for fee elections.

In this case, the District intended to keep the ballots secret, and its own election procedures stated that only designated persons would have access to the ballots, the ballots must remain sealed until tabulation, and no one’s vote could be disclosed absent a court order. But the court held that these procedures, standing alone, were insufficient to rescue the election because the public had been not informed of the policy upfront. Instead, voters were forced to cast their ballots without being informed that their ballots would be kept secret. Moreover, the court did not conclude that these procedures were necessarily “sufficient to preserve the secrecy of the voting,” only that they “might have been.”

Conclusion
The District has announced its plan to file a petition for review with the California Supreme Court. Pending the Court’s decision, local governments would be well-advised to conduct their fee elections by secret ballot, and to inform the public of that policy in the voting materials—and perhaps to impose stronger confidentiality procedures than the District’s. Special assessment ballot procedures pose a closer call. At a minimum, the Greene opinion seriously raises the public profile of the voter secrecy issue and gives ammunition to plaintiffs willing to file a suit asserting that assessment ballot proceedings must be conducted in secret. The opinion also provides a substantive rationale for why assessment ballot proceedings should be conducted in secret as well. But given the Proposition 218 Omnibus Implementation Act’s requirement that assessment ballots be publicly disclosable, local governments will have to tread carefully.

As an additional matter, the case involved the levy of a fee for drainage services. Some have argued for years that drainage may be provided only through the levy of a special assessment under Proposition 218, not by fee or charge. This issue, however, was not addressed in the opinion.