California Supreme Court Holds Secret Ballots Unnecessary for Approving Property-Related Fees and Assessments

Proposition 218 limits local governments’ ability to raise or to impose new assessments or property-related fees and charges, requiring them to submit new or increased assessments or fees to approval by affected property owners, or by the whole electorate. The California Supreme Court unanimously ruled yesterday that, in such proceedings, secret ballots are not required. (Greene v. Marin County Flood Control & Water Conservation Dist.)

“Voting shall be secret,” the California Constitution has long proclaimed. Since voters adopted Prop 218 in 1996, Article XIII D has required public entities to submit new or increased property-related fees (with certain exceptions) to approval at an “election,” among affected property owners or all registered voters. Another part of Article XIII D requires balloting for new or increased assessments, and spells out procedures (without using the word “election”). The assessment procedures don't include secret ballots. Moreover, a statute implementing the assess­ments section of Article XIII D requires that assessment ballots be signed, and be public documents once tabulated. The part of Article XIII D requiring elections for fees, meanwhile, does not spell out any procedures to be used. Instead, it says that local governments can use procedures “similar to” those for assessment balloting.

In Greene, the Court first concluded that secrecy is not required in assessment balloting. It treated as valid the statute that makes assessment ballots public documents once they are tabulated. The Court then held that complete secrecy is not required in fee-related elections, either--local entities may require property owners to sign the ballot with their vote. However, local entities may provide ballot secrecy if they choose. The Court left open a question whether some lesser degree of ballot secrecy in fee elections may be required; that will be up to a future case to decide.

Read more here, and for more information about Greene or assessment and fee balloting in general, contact Meyers Nave’s Writs and Appeals Group or Public Finance Group.