In a major victory for backers of an expanded convention center, an appellate court has concluded that San Diego was well within its right to declare that a 2020 ballot measure to finance the project had prevailed with a simple majority vote.
The ruling issued Friday by the 4th District Court of Appeal reverses a Superior Court decision last year that said the city’s elected leaders had no legal authority to change the outcome of the measure a year after the election. It was thought at the time of the election that the proposition, which sought to raise the hotel tax, had failed because it did not garner the two-thirds majority that voters were told was needed for approval, but it came very close — at 65.24 percent.
While the latest ruling is a major victory for the city of San Diego and a coalition of business, labor and tourism leaders backing the initiative, it is not as clean a win as they would have hoped.
Long in question, ever since the 2020 election, was whether Measure C had ed because it was initially believed that any measure that seeks to raise taxes for a specific purpose required a two-thirds majority vote. Since then, however, multiple appellate court decisions have concluded a simple majority approval is adequate when a tax hike is placed on the ballot by citizens, which was the case with Measure C.
The three-judge appellate court , while agreeing that Measure C needed only a simple majority, said in its Friday ruling that it was not able to decide the question of whether Measure C qualified as a citizens’ initiative.
“Because we conclude that Measure C was subject to a simple majority, it was (an) error to grant judgment (against the city) on the pleadings,” the court ruled. “Thus, we reverse that judgment. However, these determinations are based on the assumption that Measure C is a citizens’ initiative, and we find that the record is not sufficiently developed to consider the challenge to that assumption.”
That question had been raised by California Taxpayers Action Network, one of the groups legally challenging the city’s authority to declare victory.
The nonprofit, represented by attorney Cory Briggs, had argued that Measure C was a “negotiated, sponsored, ed, and promoted city-sponsored initiative, so it was not a citizens’ initiative, and the two-thirds voting threshold applies.”
In of that argument, the group stated that the chief operating officer of the San Diego Regional Chamber of Commerce, Jaymie Bradford, was also a principal organizer for the Measure C campaign committee while she was a member of the board of the San Diego Convention Center Corporation, a wholly-owned subsidiary of the city.
“It is not clear whether Bradford’s involvement suggests her government agency retained substantial control over the initiative process or otherwise acted in a way that shows Measure C was not a ‘bona fide citizens’ initiative,'” the court said in a ruling authored by Associate Justice Richard D. Huffman and ed by two other justices. “Thus, we direct the trial court to consider this issue on remand.”
Briggs could not be reached for comment on Friday.
The net effect of the ruling is a continued delay in the city’s desire to move on with the convention center project and more robust funding for homeless services with the help of a hike in San Diego’s hotel room tax. Attorney Michael Colantuono, who represented the initiative’s backers, Yes! For a Better San Diego, estimates at least a 1 1/2-year delay. A large part of that delay is due to the appellate court’s decision to send the one unresolved issue back to the Superior Court to decide.
“We are grateful that the Court of Appeal has confirmed that Measure C did not require 2/3 voter approval, as 5 other courts of appeal have decided in San Francisco, Oakland and Fresno,” Yes! For a Better San Diego said in a statement. “We are sorry that it left one issue for the trial court to address but look forward to bringing this whole case to a successful close as soon as we can. We are eager to get on with the work voters set out for us — to address homelessness, fix streets, and expand our Convention Center, an anchor of our tourism economy.”
Measure C sought to raise the city’s 10.5 percent hotel tax to as much as 13.75 percent, which was expected to raise close to $7 billion to finance the three civic initiatives. City leaders have been trying for well over a decade to expand the city’s bayfront center, arguing that without an enlarged facility, San Diego is unable to attract much larger, more lucrative conventions. Funding to address the city’s growing unsheltered population has also grown more crucial in recent years.
San Diego City Attorney Mara Elliott also weighed in Friday on the ruling but did not address the issue concerning Measure C’s now unclear status as a citizens’ initiative.
“Once again, an appellate court has determined that citizens have the right to measures that address their most pressing needs,” she said. “San Diego voters approved Measure C to make major investments in homeless services, road repairs, and other critical needs. Today’s decision brings our City one step closer to delivering on that goal.”
Alliance San Diego, a nonprofit community organization that originally filed suit in 2021 to challenge the city’s authority to effectively alter the outcome of the 2020 election, said Friday it is weighing its options, which could include seeking review by the state Supreme Court.
“We’re deeply disappointed by the court’s decision,” said Executive Director Andrea Guerrero. “Once the court decided the vote threshold issue, it discounted the due process concerns and ruled that essentially the ends justify the means. For us, the most egregious part of the decision was opening the door for elected officials to delay the outcome of an election where they disagree with the voters.
“This was the first instance ever of a city council in California delaying the outcome of an election, and after this, it won’t be the last. That was the danger we were always concerned about.”
At one point in the appellate court ruling, the judges note that Alliance San Diego and others could have challenged much earlier the City Council’s decision in April 2020 to not declare an outcome of the vote on Measure C.
“Whatever opponents’ reasons for failing to challenge the City’s (in)action in court, we have concluded that Measure C, as a citizens’ initiative, was subject to a simple majority vote,” the court wrote. “We will not now undo the will of the voters based on a delay that resulted in protecting the citizens’ initiative power.”
Among those ing Alliance San Diego’s legal effort were the Howard Jarvis Taxpayers Foundation, former San Diego City Councilmember Donna Frye, the California Taxpayers Action Network, and Project for Open Government.
