The latest in a series of efforts carried out over the last five years by a group of governmental accountability activists to undo what is now a $161.98 annual tax imposed on the landowners in San Bernardino County’s unincorporated areas that was a consequence of the board of supervisors’ 2018 action to impose that tax without an actual vote of the residents paying that tax will come down to the wire on April 11.
On that date the Fourth Appellate District in Riverside County is due to consider and determine whether to let stand a Superior Court judge’s determination that those activists will need to postpone yet again a countywide vote to rescind the tax.
Government reform and anti-tax activists insist the board of supervisors bypassed Article XIII C Section 2(d) of the California Constitution in imposing the fire service assessment on the county’s unincorporated communities.
San Bernardino County officials claim that a California Constitutional provision guaranteeing that citizens have the right to cast a vote with regard to any new tax they are to pay did not apply in this case because the county offered the voters an opportunity to protest the assessment intended to shore up the provision of fire prevention and suppression in the more than 94 percent of the county outside of its cities and incorporated towns and fewer than two percent of either the county’s landowners or voters lodged any such protests.
Previously, fire protection in the county’s unincorporated areas – those places where the municipal limits of the county’s 22 cities and two incorporated towns do not extend – was part of the service provided through county government’s routine function. In 2018, then-County Fire Chief Mark Hartwig, asserting that the traditional methods of taxation and revenue generation for local government were no longer adequate to ensure the county fire department was sufficiently manned, outfitted and prepared to ensure the public safety, led a move to place all of the unincorporated county areas his department serviced within a fire protection assessment district, known as Fire Protection Zone 5, or FP-5 for short, which was originally formed to defray the cost of providing enhanced fire and paramedic service to the desert communities of Silverlakes and Helendale in 2006.
Between 2013 and 2018, the application of the FP-5 taxing authority had been extended from households and businesses in Silverlakes and Helendale to include those in the cities of San Bernardino, Needles, Twentynine Palms, Upland and the unincorporated county community of San Antonio Heights after the San Bernardino, Needles and Upland’s city councils had elected to shutter their municipal fire departments in favor of arrangements with the county fire department for fire prevention, fire suppression/firefighting and emergency medical service within their respective city limits and the Twentynine Palms Water District, which had previously used its authority to operate a fire department within the 58.76 square mile city of Twentynine Palms and its more than 20-square mile sphere of influence, decided to hand responsibility for running that fire department over to the county. The community of San Antonio Heights, which lies immediately north of the Upland City Limits in the foothills of the Eastern San Gabriel Mountains, was, against the wishes of the vast majority of its residents, folded into the fire protection service arrangement that the City of Upland worked out with the county fire department in 2017 and was made subject to the FP-5 tax at that time, even though it had previously been receiving fire protection from the county defrayed by the property tax paid by San Antonio Heights landowners.
During that five-year period ending in 2018, the Fire Protection Zone District 5 tax imposed on each parcel ranged from roughly $130 to somewhere below $150 per year, pursuant to the 3 percent inflation allowance increase built into the formula for imposing the assessment.
Though California’s Proposition 218 required that any new special tax must be approved by a vote of those who must pay it, the county used a protest vote process to gain clearance to enlarge FP-5 to cover the roughly 18,899 square miles of unincorporated areas within the 20,105-square mile county. Residents were sent notices of the district’s expansion and were invited to object to it. Those who sent in letters of protest were deemed to have voted against being included in the enlarged FP-5. Those who did not respond were deemed to have supported being brought into Fire Protection Zone District 5. If 25 percent had protested, the matter would have been taken to an actual vote in which landowners would cast traditional straightforward yes or no ballots to determine whether to allow or disallow the assessment district expansion. If 50 percent plus one or more had voted in opposition, the district expansion would have been considered rejected. Less than three percent of the unincorporated county landowners returned letters of protest.
The county’s action sparked outrage among a number of county residents and taxpayer advocates who were paying attention to what was going on. They raised objections and, in some cases, took legal or procedural steps to try to block the action. In no case, however, did a large enough bloc of the residents respond within the one-month protest period to prevent the assessment imposition from proceeding, with a singular exception. In well-heeled San Antonio Heights, which is home to a well-educated and sophisticated populace and at 2.62 square miles small enough for activists to coordinate a concerted effort, more than 90 percent of the landowners/registered voters returned letters of protest to the annexation into FP-5. Nevertheless, county officials, having lumped San Antonio Heights into Upland in carrying out the annexation, did not recognize San Antonio Heights as a jurisdiction independent of Upland, and they concluded that the roughly 3 percent protest registration from the entirety of Upland and San Antonio Heights did not meet the threshold to force either an actual vote or prevent the annexation from occurring.  Even before that happened, a group of politically astute San Antonio Heights residents, recognizing the county was determined to effectuate the Fire Protection Zone District 5 assessment district irrespective of citizen sentiment, formed the San Antonio Heights Homeowners Association and retained attorney Cory Briggs to file suit against the city, the county and the San Bernardino County Local Formation Commission in an effort to block the annexation. Briggs filed the suit before the July 12, 2017 deadline for the reception of protests of the annexation, pairing with it a petition for a temporary restraining order to prevent the implementation of the shuttering of the Upland Fire Department and the imposition of the special tax while the lawsuit was being litigated. At a hearing held on July 10, 2017, Judge David Cohn denied the request for the restraining order, and thereafter the city, county and the county fire department proceeded full bore with the takeover, and by August 1, 2017, the city began implementing the changeover from the City of Upland’s fire department to the county fire district, including imposing the assessments on Upland’s and San Antonio Heights’ residents.
Similar resistance efforts in Twentynine Palms, Needles and San Bernardino were initiated when the county fire department takeovers of their local fire departments were effectuated, but they were not as well coordinated as the one carried out by the San Antonio Heights Homeowners Association.
With the 2018 blanket annexation of the county’s remaining unincorporated county areas into the FP-5 Assessment District, however, a core group of determined residents, many of them affiliated with the government reform non-profit known as the Red Brennan Group, raised objections. Faced with the daunting task of informing at least 25 percent of the unincorporated county areas’ residents of what was happening, orienting them to the implication and then coordinating the en masse submission of protest letters within the one-month period specified by the county, those in opposition to the annexation that took place in October 2018 were unable to get organized in time to prevent the county’s expansion of Fire Protection Zone 5. Still, the leadership of the Red Brennan Group, which had been formed and named after the late government efficiency and anti-tax advocate Kiernan “Red” Brennan, considered the protest process a backhanded method of securing support for Fire Protection Zone District 5’s expansion. The Red Brennan Group resolved to qualify a ballot measure in which a referendum on the FP-5 fire tax would be subject to an actual vote.
In the meantime, in February 2019, Judge David Cohn rendered a decision that the inclusion of San Antonio Heights into the fire service zone at the same time that Upland was annexed into the FP-5 was an overreach of the county’s, the city’s and the San Bernardino County Local Agency Formation Commission’s authority. Cohn’s decision left the 2017 dissolution of the Upland Municipal Fire Department and the accompanying assumption of fire suppression, fire prevention and emergency medical service duties in Upland by the county fire department in place, but declared the annual property assessment, which by that point had grown to $148.68 per parcel, as impermissible under the law. The county was put in the position of having to refund to all of the property owners in Upland and San Antonio Heights the assessments that had been collected there and having to discontinue the collection of those assessments, such that for what was then the past 16 months and going forward for an undermined amount of time the county would be paying to provide fire protection for the entirety of Upland and San Antonio Heights.
This had, for the county, dire implications with regard to the FP-5 regime. The idea of layering the assessments on virtually every parcel on 95 percent of the land within the county had been to generate money to engage in fire department operations. By cutting a few corners and not holding an actual election before imposing that tax, the county had been caught out. County officials anticipated further efforts by county residents to rescind the Fire Protection Zone District 5 assessments outside of Silverlakes and Helendale. Indeed, the Red Brennan Group was charging ahead with just such an effort to qualify for the ballot an initiative in which just such a vote would take place, and by the summer of 2019 was up and ready to begin the drive to gather sufficient signatures to qualify that measure for the ballot.
In an attempt to derail the Red Brennan Group’s effort, the county government’s legal representatives in the summer of 2019 imposed on the repeal petitioners a requirement that they obtain more than three times the number of signatures set by California’s Constitution as the threshold requirement to force a vote on the matter. Just as the county had misapplied the law in undercutting the residents of Upland and San Antonio Heights in the summer of 2017, the county misapplied the California Government Code in the summer of 2019 when it told the Red Brennan Group that it would need to gather the signatures of ten percent of the 261,831 voters living in the county’s unincorporated areas to qualify the ballot petition they were requesting, i.e., 26,184 signatures. In actuality, there was a signature gathering threshold that under the California Constitution should have been applied, one which would have required far fewer signatures. That threshold was ten percent of the voters who had participated in the most recent countywide vote, that being the November 2018 election, when 546,041 voters throughout San Bernardino County, including ones living within incorporated cities and towns as well as within the county’s unincorporated areas, had gone to the polls or sent in mail ballots. Of those 546,041 voters casting votes in November 2018, 472,515 of them lived in the county’s cities and incorporated towns. In the county’s unincorporated communities, where Fire Protection Zone 5 was to be overlayed, 73,526 voters had taken part in the November 2018 election.
Thus, instead of the Red Brennan Group being told it needed to gather the valid signatures of 27,303 residents to qualify the measure, it should have been held to the standard of gathering 7,353 signatures. Ultimately, after a substantial degree of going back and forth between the Red Brennan Group’s attorneys, San Bernardino County’s office of county counsel and the Howard Jarvis Taxpayers Association, county counsel in February 2020 acknowledged the analysis provided by the Red Brennan Groups’ legal team was correct and 10 percent of the of the voters who fell within the confines of where the FP-5 District was applied who voted in the last gubernatorial election was the correct standard.
While the determination/admission by both county counsel and the registrar of voters’ office that the number of signatures needed to qualify the measure for the ballot was far below the 27,303 figure quoted in August, that acknowledgment came too late to prevent the Red Brennan Group’s expenditure of well beyond quadruple the funds and resources necessary to qualify the tax rescission measure for the November 2020 ballot. In April 2020, the county, reluctantly, conceded that the measure would have to go onto the November 2020 Ballot. It was designated Measure U and asked county voters if they wanted to repeal the enlargement of Fire Protection Zone District 5 and end its taxing authority. County officials, working outside the channels of government, created a committee which called itself the Good Government San Bernardino Committee. The Good Government San Bernardino Committee raised $579,569.14 to conduct a campaign opposing Measure U, and expended $582,409.85 doing so.
The thrust of that campaign was that Measure U would compromise public safety, particularly in the county’s unincorporated areas. Ultimately, Measure U was defeated in the November 2020 election, with 109,483 votes or 47.97 percent in favor of it, and 118,772 votes against it, or 52.03 percent.
The Red Brennan Group, believing the electorate’s focus had been diverted from the issue of the way in which county officials had bypassed state constitutional requirements in imposing the tax, worked with five affiliated public issue advocates – Robert Cable, David Jarvi, Ruth Musser-Lopez, Charles Pruit and Albert Vogler – and again collected sufficient signatures to place another measure seeking to free all of the county other than Helendale and Silverlakes from inclusion in Fire Protection District 5 and the imposition of its annual assessment, which at this point has grown to $161.98 per parcel.
On October 26, 2021, Cable, Jarvi, Musser-Lopez, Pruit and Vogler and the Red Brennan Group submitted the signed initiative petition to the San Bernardino County Registrar of Voters. On December 14, 2021, the registrar of voters certified the number of signatures on the initiative petition as sufficient to qualify the initiative for the June 7, 2022 ballot. On January 11, 2022, the San Bernardino County Board of Supervisors, being bound by the California Government Code, voted to place the initiative on the ballot and to consolidate the election with the June 7, 2022 gubernatorial primary election.
Prior to doing that, however, the board of supervisors began casting about for a way in which the county could act procedurally or legally act to prevent the vote on the initiative from taking place. On February 8, 2022, the county board of supervisors, acting in its capacity as the governing board of the San Bernardino County Fire Protection District, had the Los Angeles-based Sutton Law Firm and three of its attorneys, Bradley Hertz, James Sutton and Nicholas Sanders, file a petition for a writ of mandate naming San Bernardino County Registrar of Voters Bob Page as a defendant and Cable, Jarvi, Musser-Lopez, Pruit and Vogler as real parties in interest. The petition for the writ of mandate, filed with the San Bernardino County Superior Court, sought an injunction preventing the initiative from being placed on the ballot.
According to Hertz, Sutton and Sanders, in circulating the petition, Cable, Jarvi, Musser-Lopez, Pruit and Vogler and the Red Brennan Group violated the “full text doctrine” principle contained in California law regarding voter initiatives because they “failed to include the full text of their initiative, and included materially false and/or misleading information” in it. Moreover, according to Hertz, Sutton and Sanders, petition circulators working on behalf of Cable, Jarvi, Musser-Lopez, Pruit and Vogler and the Red Brennan Group “intentionally misrepresented and/or intentionally made false statements concerning the contents, purport or effect of the initiative petition to persons who signed, desired to sign [or] were requested to sign.”
According to Hertz, Sutton and Sanders, the petition should have included a report dated August 1, 2006 from then-County Fire Chief/Fire Warden Pat Dennen that laid out the reasons and rational along with the recommendation to adopt the 2006 resolution to create Fire Protection District 5 in Helendale and Silverlakes, and it should also have included a June 9, 2020 report by current San Bernardino County Fire Chief/Fire Warden Dan Munsey, which “provided certain background information and made certain recommendations regarding the special tax for service zone FP-5.”
According to the petition for a writ of mandate, “In the absence of this court’s injunction, respondents will allow the legally invalid initiative to appear on the June 7, 2022 ballot, thereby causing petitioner and others to suffer irreparable harm for which there is no adequate remedy at law. Because the initiative is legally invalid, petitioner is entitled to a declaration stating this, so that respondents will not take any action that would enable the initiative to appear on the ballot.”
On March 29, 2022, Judge Cohn, while rejecting Hertz’s, Sutton’s and Sanders’ contention that the petition circulated to county voters violated the “full text doctrine” principle, yet made a finding that the Red Brennan Group’s claim that imposing the tax through a protest validation rather than a normal vote of the people to pay the tax was unlawful was inaccurate.
“[B]ased only on the information provided—again recognizing that other important information may be included in the missing page of the opposition and in the missing declarations—the court’s tentative ruling is that the initiative contains false and misleading information,” Cohn wrote on March 29 in his tentative decision. “The initiative implies that the tax is unconstitutional and was improperly adopted. The court has already determined in a previous case that the annexation argument advanced as a ground for constitutional invalidity of the tax is incorrect. Therefore, the court’s tentative ruling is to grant the petition.”
Cable, Jarvi, Musser-Lopez, Pruit and Vogler and the Red Brennan Group at that point, faced with Cohn’s ruling tentatively preventing the registrar of voters from placing the initiative on the June ballot and with the registrar of voters’ office’s deadline for finalizing the ballot contents little more than two weeks away, concluded that time constraints would practically prevent appealing Judge Cohn’s ruling. Nevertheless, C.C. Michel, Joseph Di Monda and Alexander Frank, the attorneys representing Cable, Jarvi, Musser-Lopez, Pruit and Vogler and the Red Brennan Group, advocated that they lodge a request with the Fourth District Court of Appeal in Riverside for a fast track decision, recognizing that the Court of Appeal might not grant it. Cable, Jarvi, Musser-Lopez, Pruit and Vogler and the Red Brennan Group consented to seeking such a fast track appeal.
Appeals Court Justice Art McKinster, the current acting presiding judge of the Fourth District Court of Appeal in Riverside and a former San Bernardino County Superior Court Judge, considering the long history of the State of California courts’, its appeals courts’ and its Supreme Court’s unwillingness to quibble with the expressed desire of the state’s voters, agreed to hear the appeal, simultaneously staying Judge Cohn’s ruling, meaning that as of right now, the registrar of voters’ office is on course to put the initiative on the ballot. Judge McKinster invited Michel, Di Monda and Frank, on behalf of Cable, Jarvi, Musser-Lopez, Pruit and Vogler and the Red Brennan Group, to make a case that Judge Cohn was in error in his ruling preventing the measure from being placed on the June ballot, while simultaneously inviting the county, meaning Hertz, Sutton and Sanders, to offer convincing reason why the initiative should not be on the ballot.
“Good cause appearing therefor, respondent and real party in interest are invited to file a response to the petition for writ of mandate/prohibition on file herein on or before April 11, 2022,” McKinster wrote in his order, dated March 30 at 3:56 p.m. “The proceedings are stayed pending determination of the petition on its merits or further order of this court.”
On Thursday, Deputy County Counsel Jolena Grider submitted a brief to the Fourth District Court of Appeal on behalf of the San Bernardino County Registrar of Voters. In her brief Grider stated, “The registrar has certain federal and state statutory deadlines for preparing and mailing the ballots for the June 7, 2022 election which require the ballot to be finalized for processing by the registrar by April 1, 2022 and sent to the vendor for printing by April 13, 2022.” Grider went on to query the appeals court. “The San Bernardino County Registrar of Voters requests clarification from the court on whether the order issued on March 30, 2022 is intended to stay the printing of ballots for the June 7, 2022 statewide election. If the order was not intended to stay the printing of ballots, the registrar is requesting clarification as to whether the Court of Appeal is ordering that the initiative to repeal the special tax associated with Fire Protection Service Zone Five should or should not be included in the ballot and associated materials (such as the voter information guide) for the June 7, 2022 statewide election.”
This request was followed by an extensive 41-page brief from the fire district’s legal team. The brief argued that the petitioners “do not meet the legal standards necessary for the extraordinary relief they request” and that “Petitioners do not present an adequate legal basis to find that the trial court failed to act in compliance with the law.”
Late today, Friday afternoon April 1, the Red Brennan Group received unofficial feedback from attorney Alexander Frank. In a short note, Frank indicated that the Court of Appeal had ordered that Measure Z be printed on the ballot. Frank acknowledged that this simply meant Measure Z would be physically printed on the ballot. He cautioned that the Court of Appeal could still invalidate the measure based on a merits argument.
-Mark Gutglueck