Two desert cities that succumbed to the lure of the county’s seductive FP-5 fire tax without a vote of the people and gave up their local fire departments have now spent more of their precious funds to no avail in an attempt to deprive citizens of their right to vote on a voter initiative that would repeal the fire tax those citizens did not vote to approve previously. To the chagrin of current officials with the City of Needles and Twentynine Palms, Measure U, the voter “Initiative to Repeal the Special Tax Associated with Fire Protection Service Zone Five” (also referred to as “FPD5” and “FP-5”) is on the ballot and currently being voted on by voters in communities forced into the fire district and impacted by the $157 per year parcel tax placed on their annual property tax bill without their permission.
The California Constitution requires that taxes be approved by two-thirds of the voters who are to be subject to that tax. Neverthless, a loophole in that requirement exists that allows local governments to substitute a “protest process” for the two-thirds ballot approval. This is done by announcing in a letter mailed to the voters or residents of the area to be subjected to the new tax that the new tax or assessment is to be applied to them or their property. Included in the letter is an invitation for its recipient to submit to the county’s local agency formation commission a letter protesting the imposition of the new tax. All such letters of protest received back from the residents/voters to be taxed or assessed are recorded as votes against the tax’s imposition. All of those who do not protest are deemed to have supported the new tax. In the overwhelming number of cases in California where the protest process is applied, the new taxes are “approved.”
Beginning in 2015 and over the next two years, the cities of San Bernardino, Upland, Needles and Twentynine Palms dissolved their municipal or local fire departments and entered into an arrangement involving the absorption of all of the land within those municipalities’ city limits into a fire assessment zone – FP-5 – which was originally created for the unincorporated communities of Helendale and Silverlakes in the Mojave Desert in 2006. Subsequently, the San Bernardino County Board of Supervisors placed all of the county’s unincorporated areas – equal to more than 94 percent of the county’s total land mass – into FP-5.
Following a petition drive in which more than 70,000 signatures of county residents were gathered, the Red Brennan Group, a government reform coalition, qualified for this year’s ballot an initiative, Measure U, which will repeal the FP-5 assessment from everywhere it is applied except Helendale and Silverlakes.
In a move that many county residents found offensive, the cities of Needles and Twentynine Palms paid attorneys to bring a motion to prevent those cities residents and the rest of the county’s residents from having the opportunity to vote on repealing the FP-5 assessment arrangement, which many people – including all 70,000 of those who signed the Red Brennan Group petition – consider to be an unlawful tax.
Stating that it is beyond the power of the voters to adopt an initiative that would repeal the tax and thus dissolve the fire district by defunding it, the cities of Needles and Twentynine Palms, through their attorneys, asked the court for “emergency relief” to remove Measure U from the November 3, 2020 ballot. The cities of San Bernardino and Upland chose not to enter into the litigation which has now become a moot point since Measure U is already on the ballot.
By a unanimous vote of the Needles City Council on July 14, 2020, attorneys John O. Pinkney Esq., and Chelsea M. Healey, Esq., of Slovak Baron Empey Murphy & Pinkney are now being paid by the people of Needles on behalf of the city. Attorneys being paid for by the people of Twentynine Palms, at the will of their city leaders are Patrick Munoz Esq., and Jennifer Farrell, Esq., of Rutan & Tucker, LLP. Named in the suit was Bob Page, the San Bernardino County Registrar of Voters. The other respondents were citizens exercising their right to redress grievances by drafting and circulating a voter initiative, obtaining enough signatures and putting that voter initiative on the ballot. They are named as David Jarvi, Richard Sayer and Charles Pruitt, all of whom are associated with the Red Brennan Group.
According to the pleadings, between August 16, 2019 and February 11, 2020, sufficient signatures were collected on a petition entitled “Initiative to Repeal the Special Tax Associated with Fire Protection Service Zone Five” (also referred to as “FPD5”). The signatures were certified by the registrar of voters on March 25, 2020. On April 7, 2020, after receiving the certification from the registrar, the fire district’s board of directors [the county board of supervisors] voted to submit the initiative without alteration to the voters pursuant to California Elections Code section 1405 and acknowledged that the election for the FPD5 initiative will be held on November 3, 2020.
The writ of mandate requested by the two cities asked the court to find the initiative to be unlawful, invalidate it, order the respondents to refrain from taking any steps to place it on the ballot and require that the registrar of voters include supplemental materials in the voter pamphlet explaining that the FPD5 initiative has been invalidated and is not subject to a vote. The petitioners also asked the court to award them with the cost of the suit.
The lawsuit was filed on July 23, 2020, nine days after the Needles City Council gave the thumbs up for expenditure of funds. The critical target date of August 7, 2020, when the registrar of voters would send all materials to the printer, was made known to the court, leaving only two weeks for a decision as to the legality of placing the measure on the ballot. By default, the case went to Department S-26 at the San Bernardino Law and Justice Center, Judge David Cohn’s courtroom. By July 27, a preemptory challenge had been made by the plaintiffs against Judge Cohn and the case was reassigned to Department S-23. By July 28, the respondents had made an appearance, paid their filing fees and made a motion for a change of venue. After hearings on the motion, the case was transferred to the Superior Court in the County of Riverside on July 30, 2020. On August 11, 2020, the Riverside County Superior Court acknowledged the receipt of the records, but by that time the target elections filing deadline of August 7, 2020 had been missed. Nevertheless, the petitioners had the belief and expressed to the court that the ballot could potentially be modified up until September 1. That date has also passed and the ballots have been printed and delivered with Measure U, calling for the repeal of the fire tax, as a voting option.
“Obviously the city council was wrong in the first place to give up our local fire department,” said Ruth Musser, a current candidate for the Needles City Council. “The Needles City Council, including every single one of them, should be ashamed. They let these attorneys talk them into this lawsuit. Now, they have forced us to pay these attorneys, which in essence was us paying them to try to keep us from being able to exercise our constitutional right to vote on increased taxes. They voted behind closed doors, and never asked the public for its input. They never told us what was going on until after they voted to pay these attorneys to file this case. Now the people of Needles are paying for the huge expense of frivolous litigation designed to keep the people of Needles from their constitutional right to vote for or against a tax on their own property. The entire thing is a huge boondoggle at our expense. Since 2015, the county raised in excess of $40 million a year with this tax, which is enough to build at least five stations per year. Then, this month, the city increased a service charge tax on utilities without our vote while at the same time raising all of the rates, electric, water and wastewater, based upon an arbitrary and capricious projection of future cost-of-living increases at a time when people are losing their jobs, and the economy is sagging.”
Musser-Lopez added, “If Measure U passes and these same council people aren’t voted out of office, they will no doubt force us into paying for more litigation, to sue to overturn Measure U instead of asking us for a more reasonable solution, like a progressive tax unlike the current flat regressive tax that unfairly burdens the poorest among us.”