• California Supreme Court Holds Fee Elections Are Not Subject to Constitutional Ballot Secrecy Requirements
  • June 21, 2010 | Author: Kelly J. Salt
  • Law Firm: Best Best & Krieger LLP - San Diego Office
  • The California Supreme Court has reversed an appellate court decision holding that the fee election procedures set forth in California Constitution article XIII D, while incorporating various measures to preserve secrecy, do not incorporate wholesale the ballot secrecy requirements of California Constitution Article II, section 7.

    In Greene v. Marin County Flood Control and Water Conservation District, the District held a property owner election to impose a new storm water drainage fee. The District adopted procedures to conduct the election by mail, following procedures similar to those established for the adoption of assessments pursuant to Article XIII D, section 4 and California Government Code section 53753, the implementing legislation of Article XIII D, section 4.

    The procedures provided that the mailed ballot elections constituted elections pursuant to Article II and Article XIII D, section 6 and were to be conducted in “substantial compliance with the requirements of the California Elections Code to the extent feasible.” In accordance with the procedures, the clerk and deputy clerks of the District were designated to conduct the election and as the only persons to have access to the ballots. Further, they were prohibited from disclosing any individual’s vote, absent a court order.

    The ballots were mailed to the voter’s in accordance with these procedures. The voters’ names and addresses were printed on the ballots. They were directed to sign and return the ballots to the District; however, the ballots did not inform the voters that they would be kept secret. The ballots were mailed with an unaddressed return envelope that stated on its face, “OFFICIAL PROPERTY OWNER BALLOT INSIDE.” The fee was approved by a majority of the property owners.

    A voter challenged the election, claiming that because the voters’ names were printed on the ballots and the ballots were signed, the election violated the voting secrecy requirements of Article II, section 7. The appellate court agreed with the plaintiff and set aside the election results. The court concluded that the voters who adopted Proposition 218 intended voting to be secret in fee elections held pursuant to Article XIII D, section 6(c). Because the voters’ names were included on the ballots and the voters were required to sign the ballots without being given any assurance that their votes would be kept secret, the election violated the voting secrecy requirements of Article II.

    Looking to the specific language of Article XIII D, the Supreme Court reversed the appellate court. Article XIII D, section 6(c) provides that for fee elections a public “agency may adopt procedures similar to those for increases in assessments in the conduct of elections.” The court noted that the procedures for assessment balloting set forth in Article XIII D, section 4 and Section 53753 do not require voter secrecy. Rather, the provisions of Article XIII D, section 4(d) and Section 53753 provide for public disclosure of the assessment ballots at least during and after tabulation and require that the name of the property owner subject to the assessment and identification of his or her parcel be included on the ballot. Moreover, Section 53753 specifically provides that the provisions of Article II do not apply to assessment ballot procedures.

    The court concluded that the assessment balloting scheme authorized by Article XIII D, section 4 and Section 53753 is not secret or subject to Article II. Inasmuch as Article XIII D, section 6(c) authorizes election procedures “similar to” section 4, ballots submitted in fee elections also are not subject to Article II and government agencies may require property owners to identify themselves and their parcels on such ballots.

    Although not a question before the court, the court did recognize that fee elections are not devoid of secrecy requirements. The court found that it is reasonable to interpret the provisions of Article XIII D, section 6 and the references to the procedures of section 4 to include procedures subsequently devised by the state legislature to implement section 4. Consequently, the court reasoned that the requirements of Section 53753 that ballots remain secret, at least until the time they are tabulated, may be applicable to a fee election.