Appellate Court Clarifies Meaning of “Regularly Scheduled Election” for Placement of General Tax Measures under Proposition 218

It’s a fairly common occurrence for cities and counties: the general election for the legislative body may be cancelled for various reasons, but the local agency also wants to place a general tax measure on the ballot, and Article XIIIC, section 2(b) of the California Constitution requires that an election on a general tax must be “consolidated with a regularly scheduled general election for members of the legislative body.” So, is a “regularly scheduled general election for members of the legislative body” a type of election, allowing an agency to place a general tax measure on the ballot even if no candidate will stand for election, or must a candidate actually appear on the same ballot with such a tax measure?

The Sixth Appellate District recently provided its answer in Silicon Valley Taxpayers Assn. v. Garner (H038971), holding that a “regularly scheduled general election for members of the legislative body” is a type of election. In the case, the County of Santa Clara held an election for the Board of Supervisors in June 2012. Candidates for two seats ran unopposed, and the third received a majority of votes. A runoff election in November 2012 was therefore unnecessary. The Board of Supervisors proceeded to place a general tax measure on the November 2012 ballot, even though no candidate for the Board would stand for election. Plaintiffs alleged that Article XIIIC, section 2(b) requires a candidate to appear on the ballot with general tax measures. The court disagreed.

Although only a single appellate court decision on the topic, its implications are salutary for local government agencies. Under Government Code section 24202, supervisorial elections are held with the statewide primary (in June). If a candidate receives a majority of votes at that election, she is elected, but if not, the election is treated as a primary, and the county general election is held with the statewide general election (in November). Thus, the November election might not occur. The court concluded that both elections are “regularly scheduled” elections for members of a county legislative body, even if one is never actually scheduled. Similarly, under Election Code section 10229, if the number of candidates for city council is equal to the number of open seats, a city council may cancel the election and appoint the candidates. The Sixth Appellate District’s decision implies that such a cancelled city council election is nevertheless “regularly scheduled,” even if it is not actually scheduled, and a city may place a general tax measure on the ballot at the election at which the council election would have occurred.