In a rare move, Gov. Gavin Newsom, the state Legislature and former state Sen. John Burton (petitioners) have joined together to file an emergency petition directly with the California Supreme Court, to determine the validity of the proposed Taxpayer Protection and Government Accountability Act (the measure). In Legislature of the State of California et al. v. Weber (Hiltachk), the petitioners have asked that a Writ of Mandate be issued restraining the California Secretary of State from placing the measure on the November 2024 ballot for voters to consider. Petitioners, in invoking the court’s original jurisdiction pursuant to Section 10 of Article VI of the California Constitution, state that the petition presents “an issue of broad public importance that requires the kind of speedy and final resolution that can best be provided in an original proceeding in this court.”

The petition urges the court to rule on the measure before the election because, as petitioners claim, if approved, the measure will imperil the provision of essential government functions before the courts have an opportunity to strike it down if it is eventually found to be invalid. Petitioners also allege that rather than proposing the kind of an amendment that may be made through the state initiative procedure, the measure attempts an impermissible revision of the California Constitution.

Specifically, the measure proposes changes to the rules for how the state and local governments can impose taxes, fees and other charges. Some of the important changes are:

• An expansion of the definition of “taxes” to include some charges that state and local governments currently treat as fees and other charges
• A requirement for voter approval when levying new and increasing existing state and local taxes
• A requirement that the uses and duration of state and local tax revenues be specified
• Restriction of the power to impose fees to the Legislature and local governing bodies
• Limit on some state and local fees to not exceed actual costs

Under the measure, any nonconforming state or local tax and charge levied between Jan. 1, 2022, and when the measure will become effective will be nullified unless it is reapproved within 12 months after the measure is passed.

Petitioners urge the court to order the respondent, California’s Secretary of State, to refrain from placing the measure on the ballot, on the grounds that the measure is an unlawful attempt to revise the state Constitution via initiative and that it would impair essential government functions. Petitioners contend that the measure is a revision, since it would alter the “fundamental structure of California’s government and the foundational powers of its branches.” To support this argument, petitioners maintain that the measure targets the Legislature’s “power to levy new or increased taxes” and “power to appropriate the revenue from special taxes for purposes that differ from those originally articulated by the Legislature.”

Citing Supreme Court precedents, the petitioners argue that, though voters “may amend the Constitution by initiative,” a revision of the Constitution entails “comprehensive changes” requiring “more formality, discussion, and deliberation,” that may only be accomplished “by convening a constitutional convention or by the Legislature submitting a constitutional revision to voters for their approval.”

With respect to impairing “essential government functions,” petitioners argue that because the measure targets every aspect of government funding, it “would make it impossible for state and local government to provide essential government services upon which civil society depends.” Petitioners provide examples of services that could be affected as including police and fire protection, highway maintenance and mass transit, and education and public health, and state that “California courts have long held that an initiative or referendum is invalid if it would impair essential government functions.” According to the petitioners, a measure that will gravely impair the ability of state and local government to provide essential government services to the people “is inconsistent with the voters’ original understanding when they adopted the initiative process and with the need to protect essential government functions.”

Petitioners maintain that pre-election review is necessary and appropriate in this case, because allowing an invalid measure to appear on the ballot, such as the one in question, will cause harm to voters, as it will steal attention, time and money from the numerous valid propositions on the same ballot; will confuse some voters and frustrate others; and will ultimately result in denigrating the legitimate use of the initiative procedure. Petitioners argue that the measure’s retroactivity provisions will especially have “a much more urgent effect on how state and local officials craft their budgets and plan for the fiscal future.”

Based on these provisions, and since, within 12 months after the measure comes into effect, every tax and many fees imposed between Jan. 1, 2022, and November 2024, would require voter approval or be nullified, a plethora of state and local special elections will be needed. The sheer cost of those elections will likely cause affected cities, counties and special districts to plan for potential revenue loss by reducing expenditures. Such anticipatory budget cuts could greatly affect “people’s lives and the institutions they rely upon, all because an invalid measure was allowed to appear on the ballot.”

Additionally, petitioners argue that its petition would afford the court ample time to consider and decide the matter before the election, while review after the election would have to be hurried because of the looming deadline for submitting existing taxes that would be subject to the retroactivity provisions for voter approval.

Petitioners draw a clear distinction between this measure and others that have gone before voters. Petitioners urge the court to intervene before the measure is placed on the ballot because of the sweeping changes it would make to “California’s fundamental governmental structure, the foundational powers of its branches, and the government’s ability to provide the essential government functions required by a functioning state.” It should be noted that this is a unique process, and the California Supreme Court is not required to accept the petition.