Judge Rules Against City on Measure C

Mayor Todd Gloria, City Attorney Mara Elliott’s office and proponents of a 2020 hotel-tax initiative are ready to appeal a Superior Court ruling that dealt a blow to the city’s attempt to raise hotel taxes to fund a Convention Center expansion, homeless services and road repairs.

The judge’s ruling sidestepped the debate playing out statewide over whether citizen-led tax measures should pass with a simple majority. The city and backers of the measure have seized on court decisions elsewhere, arguing those decisions suggest the San Diego measure was approved with a simple majority.

The City Council last year voted to proceed with a validation action asking the San Diego Superior Court and any opponents to weigh in on the city’s legal theory that Measure C passed with 65 percent of the vote, shy of the two-thirds long required for California tax increases for a specific purpose. Advocacy group Alliance San Diego stepped up with its own case arguing the city sought to disregard voters’ will with steps it took to set the stage to argue that the tax hike passed.

Nearly a year later, Superior Court Judge Kenneth J. Medel on Monday ruled that Measure C failed before the city or initiative supporters ever went to court.

To prepare for a potential court fight, the City Council in April 2020 voted to delay the city’s formal declaration of whether the tax hike passed when it voted to accept election results from the city clerk. In April 2021, the City Council voted after the favorable court rulings on other citizen measures to officially declare that Measure C had passed with a simple majority – and to pursue the validation case to prove it in court.

In his Monday ruling, Medel panned those actions and wrote that the city effectively changed the rules after the game.

“The Council had no authority to delay its declaration of the result of the Measure C election or to contradict the city clerk’s certified results in that declaration. The City Council was required to declare what the city clerk certified,” Medel wrote. “In effect, the Council in April 2021 adopted a new rule and applied it retroactively to the election, effectively changing the outcome of the election. The later resolution of April 2021 which changed the result is null and void as a matter of law.”

Medel did not offer his opinion on whether citizens’ initiatives should pass with a lower threshold, a question first raised in a 2017 Supreme Court ruling that suggested  citizens’ measures might only need a majority vote to pass. State appellate courts have since declared that a handful of citizens’ initiatives intending to raise taxes in in Fresno and San Francisco passed with a simple majority. The state Supreme Court declined to consider those cases.

Alliance San Diego, which had raised the concerns Medel zeroed in on this week with its own lawsuit, cheered the judge’s ruling.

Andrea Guerrero, Alliance’s executive director, said early Wednesday she hoped city officials would concede that Measure C failed.

“They have been rebuked by the court,” she said.

“Our hope would be that they now stand down and recognize what the judge said, which is that election integrity matters,” Guerrero said. “In a democracy, power resides with the people, not the politicians. It is not the place for politicians to decide when an election is over and what the results are. That’s for voters to decide.”

But Mayor Todd Gloria, City Attorney Mara Elliott’s office and the Yes! For a Better San Diego campaign said Wednesday after the ruling was published that they hope to continue the fight.

“This ruling is an unfortunate delay, but we are undeterred in seeking the court’s validation of Measure C,” Gloria wrote in a statement. “We will continue to fight to secure the millions of dollars for homelessness and road repair that the vast majority of San Diegans voted for. We continue to believe that Measure C required a simple majority to pass based on court rulings made after the March 2020 election and I support the city attorney’s continued pursuit of having this matter heard on its merits.”

A spokeswoman for City Attorney Mara Elliott wrote in a statement that her office plans to appeal Medel’s ruling and expects the case will ultimately be decided by a higher court.

“This ruling adds unnecessary delay to a matter that ultimately will be decided by the Court of Appeal or the California Supreme Court. The City filed a validation action on Measure C to accelerate a full hearing on the merits. Instead, it now must appeal this ruling before such a hearing can occur,” Elliott spokeswoman Leslie Wolf Branscomb wrote. “Meanwhile, the problems Measure C sought to address, and in particular the number of unsheltered people living on the streets, continue to grow.”

But before a city-led appeal proceeds, the City Council will need to formally sign off. That hasn’t happened yet.

Wolf Branscomb said the Yes! For a Better San Diego campaign or the city will have 30 days to file a notice of appeal after Medel’s final judgment issued.

The campaign wrote in a statement that it intends to support an appeal.

“We appreciate the effort the Judge put into his decision, but believe it is mistaken,” the campaign wrote in a statement. “We are heartened that we are entitled to a prompt hearing in the Court of Appeal, so that we can move forward on the work nearly two-thirds of San Diego votes asked the city to accomplish — to expand our Convention Center, rebuild our tourism economy, address homeless, and improve streets.”