No qualified electors here, folks

Convention-center expansion plan has to go to the ballot

San Diego's strategy to levy a tax on hotels in order to pay for the expansion of the convention center not only violates California's state constitution but municipal law as well, ruled the Fourth District Appellate Court yesterday, August 1.

The court overturned Superior Court judge Ronald Prager's earlier decision that allowed hotel owners and not the general public to pass the assessment.

The appeal is considered a blow to some city leaders, who had banked on the tax as a way to pay for a massive expansion of the downtown convention center.

"We conclude that the election was invalid under the California Constitution because such landowners and lessees are neither 'qualified electors' of the City for purposes," reads the ruling. "We further conclude that the election was invalid under the San Diego City Charter because City Charter section 76.1 (section 76.1) requires the approval of two-thirds of the 'qualified electors' ...those persons who are registered to vote in general state elections under state law. Accordingly, we reverse the trial court's judgment validating the special tax and remand the matter to the trial court with directions to enter judgment against the City."

Judges on the appellate court cited Article XIII of the California constitution, which bars local governments from imposing, extending, or increasing "any special tax unless and until that tax is submitted to the electorate and approved by a two-thirds vote."

Attorneys for the city argued that hotel owners could be considered "qualified electors" and that since the tax did not impact the entire electorate there was no need for a public vote.

That argument, among many others made by the city, didn't fly with the court.

"We are aware of no authority, and the City has cited none, that suggests that the phrase 'qualified electors' has ever been used generically to describe a group of persons entitled to vote based on qualifications other than those specified by our state Constitution….

"In seeking to uphold the special tax election in this case, the City does not provide any argument based on the text of the relevant constitutional provisions, their constitutional histories, or the intent of the voters in enacting these provisions. For the reasons described above, these traditional sources of constitutional interpretation overwhelmingly support the conclusion that the special tax election in this case was invalid because the City's registered voters were not permitted to vote in the election."

The city has been ordered to pay the attorneys' fees for appellants Melvin Shapiro and San Diegans for Open Government. The ruling will now be sent back to judge Ronald Prager for validation.

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Did any of the hoteliers ever impose the tax on hotel guests? Was the annual assessment imposed on each hotelier collected and kept in a City fund while the court battles played out?

In any case, if this foolery hadn't been ruled unconstitutional, the hoteliers could have paid their assessments without ever passing on the tax to their guests. Although who paid the illegal tax wasn't the critical issue for the court, to avoid this bumbling illegal attempt to make the non-voting public pay for it, the hoteliers could have simply formed a CC-support entity and contributed or fund-raised the amounts they want to pool to expand the CC.

This privatization overreach by San Diego's former mayor and his City Attorney is very closely allied to their overreach in allowing formation of illegal "commercial" MADs. If legally upheld, I believe that Faulconer, Goldsmith et al. would have viewed the CC-financing scheme as a model for all sorts of other borderless special assessment districts (eco-districts; art districts), in which only owners of certain types of businesses would vote on a tax that they would add to the bill for any service and every item purchased from them, with the extra revenue under their control to "improve" the district.

Sometimes the good people win! Jerry Sanders and his hotelier chums can cry in their beer at the next emergency CofC board meeting.

In the 80's, the county tried to make a run around Prop. 13 with Prop. B which was a law enforcement and criminal justice tax override. Larry Stirling, an otherwise sensible and generally honest politician (and a fiscal conservative it seemed), carried the legislation in Sacramento to permit a tax to be approved by voters with a simple majority. That was a simple call--illegal. But the county managed to get it narrowly approved, and was quickly sued. The trial court judge took one look at the tax and declared it unconstitutional, but just immediately put a stay on his order to allow an appeal. The county collected that tax for four or five years, with all the funds deposited to an escrow account that earned interest. The pool of funds grew into the hundreds of millions of dollars, and when the appellate court(s) finally nixed the idea, all that money had to be given back.

Don't they ever learn? This was as obviously unconstitutional as Prop. B, maybe more so. Did they really think it would fly? I assume that there was a belief that it could work. But the thing about this tax-and-spend proposal was that it came from those who say they are "conservative", and many/most are Republicans. That's hardly the image I have of the GOP, and is certainly not what it wants to be known for overall.

Last night on KFMB Channel 8 news this court decision was portrayed as imperiling the future of Comic Con in San Diego. Two more years remain in that contract and Channel 8 convention center expansion boosters claim it will go elsewhere if we don't build what would be the largest convention hall on the West Coast. Like, prove it.

I'm not reassured to hear the 11 o'clock news mouthing Chamber of Commerce and hotelier propaganda. And not a word about how relatively down-scale Comic Con fails to bring in the kind of dining, drinking and shopping money that other conventions do.

Yes, the Comic-Con folks are staying at the cheapest hotels/motels (or crashing on friends' sofas), using 2-for-1 Carls Jr. burger coupons, and guzzling 6-packs back at their rooms at night.

It appears on your tax bill with the word "tax" at the top. But to the city and to the local courts, it's not a tax. One sure thing: the legal costs to the city come from taxes. Did the city collect this money already? Did the County Assessor give it to them? Anybody seen it?

The convention center funds were not yet collected, pending the legal challenge. And on another subject, the expansion design is definitely second rate! Who approved that architectural monstrosity? It makes my eyes hurt.

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