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Date: 08-04-2020

Case Style:

Leslie T. Wilde v. City of Dunsmuir

Case Number: S252915

Judge: Kruger, J.

Court: The Supreme Court of California

Plaintiff's Attorney: Timothy A. Bittle

Defendant's Attorney: John Sullivan Kenny and Michael G. Colantuono

Description: Opinion of the Court by Kruger, J.
The California Constitution grants voters the power of
referendum, which allows them to approve or reject laws
enacted by their elected representatives before the laws take
effect. But to prevent the referendum process from disrupting
essential governmental operations, the Constitution exempts
certain categories of legislation, including “statutes providing
for tax levies or appropriations for usual current expenses” of
the government. (Cal. Const., art. II, § 9, subd. (a).) The
question in this case is whether this exemption applies to
measures setting municipal water rates. We conclude the
answer is yes. Municipal water rates and other local utility
charges may be challenged by other means, but they are not
subject to referendum.
Under the California Constitution, “[t]he legislative power
of this State is vested in the California Legislature . . . but the
people reserve to themselves the powers of initiative and
referendum.” (Cal. Const., art. IV, § 1.) The powers of initiative
and referendum were enacted as part of the Constitution in 1911
as companion reforms. The initiative power allows voters to
propose new measures and place them on the ballot for a popular
vote. If the measure is approved by popular vote, it becomes
law. (Cal. Const., art. II, § 8; id., § 10, subd. (a).) The
Opinion of the Court by Kruger, J.
referendum power, by contrast, allows voters to weigh in on laws
that have already been passed by their elected representatives.
Any voter or group of voters that gathers enough signatures can
place a legislative enactment on the ballot for an up or down
vote. A referendum suspends operation of the law until it is
approved by a majority of voters. (Cal. Const., art. II, § 9, subd.
(a); id., § 10, subd. (a); see City of Morgan Hill v. Bushey (2018)
5 Cal.5th 1068, 1078 (City of Morgan Hill).) Like the initiative
power, the referendum power applies to both state statutes and
local enactments. (Cal. Const., art. II, § 11, subd. (a) [“Initiative
and referendum powers may be exercised by the electors of each
city or county under procedures that the Legislature shall
provide”]; City of Morgan Hill, supra, 5 Cal.5th at p. 1078; cf.
Elec. Code, §§ 9141 et seq. [extending referendum to county
electors], 9235 et seq. [extending referendum to electors of
general law cities].)
The referendum power is, however, subject to certain
exceptions. These exceptions are spelled out in article II, section
9, which provides, in relevant part: “The referendum is the
power of the electors to approve or reject statutes or parts of
statutes except urgency statutes, statutes calling elections, and
statutes providing for tax levies or appropriations for usual
current expenses of the State.” (Cal. Const., art. II, § 9, subd. (a),
italics added.) Although this section is, by its terms, addressed
to state statutes, the same exceptions apply to local legislation.
(Rossi v. Brown (1995) 9 Cal.4th 688, 698 & fn. 4 (Rossi); Geiger
v. Board of Supervisors (1957) 48 Cal.2d 832, 836–837 (Geiger);
Opinion of the Court by Kruger, J.
Associated Home Builders etc., Inc. v. City of Livermore (1976)
18 Cal.3d 582, 591–592, fn. 7.)1
Several decades after the powers of initiative and
referendum were established in the Constitution, voters enacted
a series of reforms aimed at increasing voter control over
revenue-raising measures. These provisions are of limited
relevance to our decision in this case, for reasons we explain
below, but help to explain the history of this litigation and the
nature of the parties’ arguments in this court.
The series of reforms began with Proposition 13, a ballot
initiative passed in 1978 to cap increases in property taxes and
assessments, as well as other state and local taxes. Then, in
1996, voters passed Proposition 218, which further curbed state
and local government authority to generate revenue through
taxes and other exactions. Finally, in 2010, voters approved
Proposition 26, which expanded the reach of these limitations
by broadening the definition of “tax” to cover “any levy, charge,
or exaction of any kind imposed by a local government,” subject
to several specified exceptions. (Cal. Const., art. XIII C, § 1,
subd. (e); see generally City of San Buenaventura v. United
Water Conservation Dist. (2017) 3 Cal.5th 1191, 1199–1200.)
The provisions most relevant here are articles XIII C and
XIII D of the California Constitution (hereafter articles XIII C
and XIII D), which were added by Proposition 218. These

1 Charter cities have more leeway and “may reserve a
broader referendum power to the voters” than is reserved in the
Constitution. (Rossi, supra, 9 Cal.4th at p. 698; see also, e.g.,
Rubalcava v. Martinez (2007) 158 Cal.App.4th 563, 571.) The
City of Dunsmuir is, however, a general law city.
Opinion of the Court by Kruger, J.
articles set out detailed procedural and substantive
requirements for imposing or increasing various types of
government exactions. Article XIII C requires the approval of
either a majority or two-thirds of voters before new or increased
local taxes take effect, depending on the type of tax. (Art. XIII
C, § 2.) Article XIII C also affirms voters’ power to reduce or
repeal local taxes, assessments, fees, and charges through the
initiative process. (Id., § 3.) Article XIII C does not address the
availability of the referendum.
Article XIII D circumscribes state and local government
authority to impose or increase property-related taxes,
assessments, fees, and charges. Under this article, a fee or
charge is defined as “any levy other than an ad valorem tax, a
special tax, or an assessment, imposed by an agency upon a
parcel or upon a person as an incident of property ownership,
including a user fee or charge for a property-related service.”
(Art. XIII D, § 2, subd. (e).) These are commonly referred to as
property-related fees and charges — a category that includes
water service fees. Before levying new or increased fees or
charges, article XIII D requires the relevant government
authority to conduct a public hearing and allow property owners
who are affected by the exaction to submit written protests. If
a majority of affected owners file protests, the exaction cannot
be imposed. (Art. XIII D, § 6; see Plantier v. Ramona Municipal
Water Dist. (2019) 7 Cal.5th 372, 381–382.) In general,
property-related fees and charges must also be approved by
either a majority of affected property owners or two-thirds of
voters. Fees for sewer, water, and refuse collection services are,
however, exempt from this voter approval requirement. (Art.
XIII D, § 6, subd. (c).)
Opinion of the Court by Kruger, J.
With this backdrop in mind, we turn to the facts of the case
before us.
The City of Dunsmuir is known for its water. Located on
the Upper Sacramento River, just south of Mount Shasta, the
City draws its water from natural mountain springs and dubs it
the “Best Water on Earth.” The City pumps, stores, and
distributes this water to its residents using a water system that
the City owns and operates. The City pays for this system using
proceeds from monthly water rates paid by the City’s residents.
Like any public utility, the water system requires regular
repair and periodic improvements. In 2014, the City conducted
an assessment of the improvements needed to meet the City’s
projected water needs. This assessment concluded that a
significant number of the system’s aging water main sections
required replacement and that the water storage tank, which is
more than 105 years old, would need to be upgraded “to insure
water pressure and fire protection in major sections of the City.”
As the City explained in a public notice, 50,000 feet of old water
pipes had remained in the ground well past their lifespan, and
an “extremely large number of leaks” pervaded the water
system, leading to regular loss of water and a “continuous need
to decontaminate large sections of water mains adjacent to the
break in the pipe.” The City’s aging water tank likewise suffered
from leaks. The City also commissioned a study to evaluate its
water rates, which were at the time based on a 20-year-old water
plan. The study proposed new water rates that would raise the
funds necessary for the infrastructure improvements.
In early 2015, the City appointed a committee of city
council members and community members to evaluate the
Opinion of the Court by Kruger, J.
proposed water rates. (Wilde v. City of Dunsmuir (2018) 29
Cal.App.5th 158, 164 (Wilde).) The committee recommended
new rates to support the replacement of the water storage tank
and water mains. (Ibid.) Plaintiff Leslie T. Wilde, a Dunsmuir
resident, opposed the proposed rates. She has attempted to
block them by various means.
Wilde’s first attempt came in March 2016, when the city
council held a public hearing on the proposed water rates.
(Wilde, supra, 29 Cal.App.5th 164, 165.) Consistent with the
requirements of Proposition 218, the City issued public notice of
the hearing and provided an opportunity for residents to submit
objections via protest ballots. Wilde organized the protest effort,
but it yielded only 40 protest ballots — far short of the
approximately 800 that would have been needed to halt the rate
increase. (Wilde, at p. 165.)
The city council thereafter passed Resolution 2016-02
(Resolution), establishing a five-year plan for a $15 million
upgrade to the City’s water storage and delivery infrastructure.
(Wilde, supra, 29 Cal.App.5th at p. 165.) The Resolution set new
water rates that vary based on the amount of water used, the
type of residential unit served, and the diameter of the water
supply pipe in place. (Ibid.)
Having led the failed Proposition 218 preadoption protest,
Wilde next attempted to undo the Resolution in two ways. First,
almost immediately after the city council passed the Resolution,
Wilde submitted a petition for a referendum seeking to overturn
it. (Wilde, supra, 29 Cal.App.5th at p. 165.) Second, Wilde
gathered signatures for an initiative that would implement a
different water rate schedule. The initiative appeared on the
November 8, 2016, ballot but was rejected by voters. (Ibid.)
Opinion of the Court by Kruger, J.
Wilde’s proposed referendum, by contrast, was never
submitted to voters. The City declined to place the referendum
on the ballot, telling Wilde, “The setting of Prop. 218 rates is an
administrative act not subject to the referendum process. Also,
Proposition 218 provides for initiatives (Art. XIIIC, sec. 3), but
not referenda.” In response, Wilde filed a petition for a writ of
mandate seeking to compel the City to place the referendum on
the ballot. (Wilde, supra, 29 Cal.App.5th at p. 165.) The trial
court denied Wilde’s writ petition, agreeing with the City that
Proposition 218 allows voters to challenge property-related fees
by means of initiative but not referendum.2

The Court of Appeal reversed. (Wilde, supra, 29
Cal.App.5th at p. 179.) Like the trial court, the Court of Appeal
focused its attention primarily on Proposition 218. The court
noted that article II, section 9 of the California Constitution
(hereafter article II, section 9) exempts tax measures from

2 The trial court also concluded the City’s water-rate setting
was an administrative act, not a legislative one, and therefore
not subject to referendum. (See Yost v. Thomas (1984) 36 Cal.3d
561, 569–570 [explaining that the initiative and referendum are
available only to challenge “legislative acts by a local governing
body” and not administrative acts].) The Court of Appeal
disagreed, concluding that the Resolution is, in fact, a legislative
act. (Wilde, supra, 29 Cal.App.5th at pp. 172–175.) The City
has not sought review of this aspect of the Court of Appeal’s
The City also argued below that the issues in this case
were moot since voters had already rejected Wilde’s proposed
initiative. The Court of Appeal rejected the claim (Wilde, supra,
29 Cal.App.5th at p. 164), and the City has not raised the
challenge again here. In any event, we agree that the failure of
Wilde’s initiative does not moot her request to place a
referendum on the ballot.
Opinion of the Court by Kruger, J.
referendum, but reasoned the exemption does not apply here
because both parties agreed that the water charges are a
“property-related fee” and not a “tax” under Proposition 218.
(Wilde, at p. 172, fn. 3.) The court rejected the City’s argument
that the water rates must be exempt from referendum because
a referendum would suspend implementation of the rates and
disrupt the City’s ability to provide an essential government
service, explaining that the City could always revert to its old
rates or craft a new water plan. (Id. at pp. 175–179.) The court
remanded the case with directions to the trial court to issue a
peremptory writ of mandate ordering the City to place the
referendum on the ballot in the next municipal election. (Id. at
p. 179.)
In view of the importance of the issue presented to local
governments and ratepayers across the state, we granted
review. Shortly thereafter, a different panel of the Court of
Appeal addressed a similar issue and arrived at a different
conclusion in Howard Jarvis Taxpayers Assn. v. Amador Water
Agency (2019) 36 Cal.App.5th 279. The court there held that a
local water agency’s resolution adopting new water service rates
for its customers is exempt from referendum as a tax measure
under article II, section 9 and that the scope of this exemption
was not altered by Proposition 218. (Amador, at pp. 283–286,
Opinion of the Court by Kruger, J.
We reach the same conclusion as the Amador court and
reverse the contrary judgment of the Court of Appeal in this
Article II, section 9, subdivision (a) provides, as relevant
here: “The referendum is the power of the electors to approve or
reject statutes or parts of statutes except urgency statutes,
statutes calling elections, and statutes providing for tax levies
or appropriations for usual current expenses of the State.” The
question before us is whether a measure instituting new
municipal water rates qualifies as a tax measure exempt from
Article II, section 9 does not define the term “tax.” Wilde
contends that to understand its meaning, we should begin by
looking to articles XIII C and XIII D, both added by Proposition
218. The parties do not dispute that for purposes of the
substantive and procedural requirements established by these

3 For purposes of addressing the merits of Wilde’s claim, the
City asks us to take judicial notice of two documents: (i) the
Howard Jarvis Taxpayers Association’s “annotation” of
Proposition 218, dated September 5, 1996, as it was reprinted in
the League of California Cities Propositions 26 and 218
Implementation Guide dated May 2017, and made available on
the League’s website; and (ii) the Howard Jarvis Taxpayers
Association’s Proposition 218 “Statement of Drafters’ Intent.”
The request is denied. Neither the existence nor the content of
these documents is relevant to our resolution of the case. (See
Voris v. Lampert (2019) 7 Cal.5th 1141, 1147, fn. 5; see also
Robert L. v. Superior Court (2003) 30 Cal.4th 894, 904; Mission
Springs Water Dist. v. Verjil (2013) 218 Cal.App.4th 892, 921,
fn. 6.)
Opinion of the Court by Kruger, J.
provisions, the new water rates are categorized as “fees” —
specifically, “property-related fees” — rather than “taxes.” (Art.
XIII D, § 2, subd. (e); id., art. XIII C, § 1, subd. (e) [defining “tax”
for the purpose of article XIII C]; see Richmond v. Shasta
Community Services Dist. (2004) 32 Cal.4th 409, 426–427.)
Wilde contends — and the Court of Appeal in this case agreed
— that the same should be true under article II, section 9.
We see no reason why that should be so. We have long
recognized that “ ‘tax’ has no fixed meaning, and that the
distinction between taxes and fees is frequently ‘blurred,’ taking
on different meanings in different contexts.” (Sinclair Paint Co.
v. State Bd. of Equalization (1997) 15 Cal.4th 866, 874 (Sinclair
Paint); accord, e.g., Mills v. County of Trinity (1980) 108
Cal.App.3d 656, 660 [“ ‘Tax’ is a term without fixed definition.
The word may be construed narrowly or broadly depending on
its particular context and the purpose for which the definition is
to be used”].) There is no reason why an exaction cannot be both
a “fee” under article XIII C or XIII D and a “tax” within the
meaning of article II, section 9 (or any other constitutional
provision, for that matter).
The definitional provisions of both articles XIII C and
XIII D begin with the phrase “As used in this article” and do not
purport to apply to other provisions of law. (Art. XIII C, § 1; art.
XIII D, § 2; see Bighorn-Desert View Water Agency v. Verjil
(2006) 39 Cal.4th 205, 213–216 [discussing article XIII D, § 2].)
Nor do the articles contain any other indication of intent to alter
or amend the meaning of “tax” as used in any other
constitutional provision — including the referendum provision,
which predates articles XIII C and XIII D by several decades.
In the absence of such an indication, we presume no alteration
or amendment was intended. (See, e.g., City and County of San
Opinion of the Court by Kruger, J.
Francisco v. County of San Mateo (1995) 10 Cal.4th 554, 563; see
also, e.g., Lesher Communications, Inc. v. City of Walnut Creek
(1990) 52 Cal.3d 531, 540–541 [“Implied amendments or repeals
by implication are disfavored”].)
Wilde asserts we must impose a common definition of “tax”
to harmonize articles XIII C and XIII D with the referendum
provision. But while we have a duty to harmonize constitutional
provisions where possible, this duty does not compel us to graft
the tax terminology of articles XIII C and XIII D onto the
referendum provision when the voters have not chosen to do so.
Wilde points out that, broadly speaking, the referendum
provision’s taxation exception and articles XIII C and XIII D all
concern voter control over government finances. But this is not
reason enough to impose the definition of “tax” from articles
XIII C or XIII D on the referendum provision. The two more
recently enacted articles do not constitute a comprehensive
“revision of the entire subject” of voter involvement in revenue
measures. (City and County of San Francisco v. County of San
Mateo, supra, 10 Cal.4th at p. 563.) Nor does the operation of
articles XIII C and XIII D depend in any way on whether the
taxation exception covers exactions that are considered “fees” for
purposes of these articles. Even as articles XIII C and XIII D
detail various methods for challenging government exactions —
including voter initiative — neither so much as mentions the
referendum. In the absence of any clear connection between
these two parts of the Constitution, let alone a conflict, there is
no reason to “harmonize” articles XIII C and XIII D with the
referendum provision in the manner Wilde proposes. In short,
the constitutional provisions added by Proposition 218 do not
control whether the water rates at issue are subject to challenge
by referendum.
Opinion of the Court by Kruger, J.
We return, then, to the question before us: Is a measure
adopting water rates exempt under the referendum provision as
a “statute[] providing for tax levies?” (Art. II, § 9, subd. (a).)
Again, the word “tax,” on its own, has no single “fixed meaning.”
(Sinclair Paint, supra, 15 Cal.4th at p. 874.) This was as true
in 1911, when the referendum provision was adopted, as it is
today. Dictionary definitions for “tax” from the turn of the
century reference a wide range of exactions paid to a
government authority for public purposes, including: “a ratable
portion of the produce of the property and labor of the individual
citizens, taken . . . for the support of government, for the
administration of the laws, and as the means for continuing in
operation the various legitimate functions of the state”; “the
enforced proportional contribution . . . levied by the authority of
the state for the support of the government, and for all public
needs”; and “any contribution imposed by government upon
individuals, for the use and service of the state, whether under
the name of toll, tribute, tallage . . . or other name.” (Black’s
Law Dict. (2d ed. 1910) pp. 1136–1137; see also id. at pp. 1138–
1139 [defining “taxation”].) The City’s water rates fit
comfortably with the scope of several of these definitions of
“tax,” if not all of them: Municipal water rates are contributions
imposed by the municipal government upon individuals for a
service provided by the municipality — namely, the delivery of

4 The use of the word “levy” adds nothing of substance to the
analysis. In its verb form, the term meant to “lay or impose a
tax,” and sometimes, to collect taxes. (Black’s Law Dict., supra,
Opinion of the Court by Kruger, J.
Judicial decisions from the time of article II, section 9’s
passage likewise make clear that the term “tax” was understood
to be capacious enough to cover charges for municipal utility
services. In City of Madera v. Black (1919) 181 Cal. 306 (City of
Madera), for example, this court explained that rates charged to
fund the construction of a municipal sewer system qualified as
a “tax” within the meaning of a constitutional provision that
conferred jurisdiction over tax cases to the superior courts. “A
tax, in the general sense of the word, includes every charge upon
persons or property, imposed by or under the authority of the
legislature, for public purposes.” (Id. at p. 310, citing Perry v.
Washburn (1862) 20 Cal. 318, 350, People v. McCreery (1868) 34
Cal. 432, 454.) The sewer charge, we said, “was a charge upon
persons; it was imposed by the legislative authority of the city
of Madera for public purposes, and under these definitions it
was a tax . . . .” (City of Madera, at p. 310.)5

at p. 714, cols. 1–2; see City of San Luis Obispo v. Pettit (1891)
87 Cal. 499, 503 [the words “ ‘assessing and collecting’ . . .
include[d] the operation called levying the tax,” in what was
then Cal. Const., art. XI, § 12].) Wilde notes the term “levy” was
also sometimes used to refer to the seizure of property to satisfy
a judgment or debt, but this is plainly not the sense in which the
term is used in article II, section 9. (See, e.g., Geiger, supra, 48
Cal.2d at pp. 839–840 [exemption for “statutes providing for tax
levies” in art. II, § 9 applies to sales tax measures].)
5 Having assured itself of the lower court’s jurisdiction, we
went on to invalidate the sewer charges because they were being
used to generate general revenue without legislative
authorization to do so. (City of Madera, supra, 181 Cal. at
pp. 311, 313–314.) Wilde argues that the fact the revenue was
being used for general purposes was critical to our
determination that the charges qualified as taxes. But our
Opinion of the Court by Kruger, J.
Municipal water rates fall well within this broad
understanding of the term “tax.” Article XIV, section 1, of the
1879 Constitution stated that “[t]he use of all water” was a
“public use” and that water rates were to be set by local
government authorities. (See People v. Stephens (1882) 62 Cal.
209, 233–234.) And in October 1911, in the same election in
which voters approved the right to referendum, voters amended
the Constitution to empower municipalities to establish “public
works” to provide “public utilities,” including water. (Cal.
Const., former art. XI, § 19; see Clark v. Los Angeles (1911) 160
Cal. 30, 47; see also German Sav. etc. Soc. v. Ramish (1902) 138
Cal. 120, 124 [referring to charges imposed to pay for public
works as tax levies].) The provision of water was understood to
be a public purpose, so water rates would have been classified
as “taxes” as City of Madera interpreted the term.
City of Madera does not stand alone. Several cases from
around the same time reflect a similarly broad understanding of
the term “tax” as used in various provisions of California law.
(See, e.g., Yosemite L. Co. v. Industrial Acc. Com. (1922) 187 Cal.
774, 783 [reiterating the public purpose definition of “tax” from
City of Madera and concluding that a mandatory workers’
compensation payment to the state was a tax]; cf. German Sav.
etc. Soc. v. Ramish, supra, 138 Cal. at p. 124 [“The power to levy
a tax for general purposes, which shall be a lien superior to all
other liens, prior or otherwise, is not doubted, and it is not
because it is called a tax, but because of its object and the
necessity for raising revenue in order to execute the functions of

opinion says nothing of the sort; it says only that the charges
qualified as taxes because they were imposed for “public
purposes.” (Id. at p. 310.)
Opinion of the Court by Kruger, J.
government”]; Wood v. Brady (1885) 68 Cal. 78, 80 [defining a
tax as “a public imposition, levied by authority of the
government, upon the property of the citizen generally, for the
purpose of carrying on the government”]; People v. Parks (1881)
58 Cal. 624, 639 [characterizing drainage and irrigation as a
“public purpose in which the public may be interested” and
explaining that “promot[ing] a public purpose by a tax levy upon
the property in the State . . . is within the power of the
Legislature”]; Engineering etc. Co. v. East Bay M. U. Dist. (1932)
126 Cal.App. 349, 365–366 [“the power of taxation is regarded
as a most important and essential attribute of a public
corporation or utility in order that there may be the ability to
function generally and freely under exigencies and situations
that may present themselves”].)
Based in large measure on this body of precedent, the
Court of Appeal would later opine that other municipal utility
charges, not unlike the water rates at issue here, were subject
to the taxation exception to the referendum in article II, section
9. (See Dare v. Lakeport City Council (1970) 12 Cal.App.3d 864,
868 (Dare) [concluding sewer rates are subject to the exception];
cf. Fenton v. City of Delano (1984) 162 Cal.App.3d 400, 403–407
[discussing Dare and holding that a city fee on users of gas,
electricity, phone, and cable television utilities was a tax
measure exempt from referendum].)6
Although we are not

6 In Dare, the Court of Appeal concluded that because sewer
rates are taxes under City of Madera and therefore exempt from
referendum under the referendum provision in the Constitution,
voters were barred from challenging new sewer rates by
initiative as well. (Dare, supra, 12 Cal.App.3d at pp. 868–869.)
This court later overruled this holding, explaining that an
Opinion of the Court by Kruger, J.
bound by these characterizations, they lend further credence to
the conclusion that the water rates at issue here fall within the
range of possible meanings of the term “tax” in the referendum
provision, even if they do not reflect the only plausible
interpretation of the term.
Wilde disagrees. According to Wilde, by the time the
referendum provision was added to the Constitution in 1911, the
law already distinguished between “taxes” and “fees” in much
the same way articles XIII C and XIII D do now, following
passage of Proposition 218. The term “tax,” Wilde argues, was
narrowly understood to refer to a compulsory exaction designed
to raise revenue for general government expenses. A charge in
exchange for a particular benefit or service, like the water rates
in this case, instead would have been denominated a “fee” —
unless, of course, it was excessive relative to the reasonable
costs of providing a service, in which case it would have been

initiative that repeals a tax prospectively is “not the ‘functional
equivalent’ of a referendum.” (Rossi, supra, 9 Cal.4th at p. 711,
italics added.)
Wilde asserts that Dare is no longer good authority after
Rossi, even for the limited proposition that sewer rates are taxes
exempt from referendum. Wilde highlights language in Rossi
stating, in passing, that Dare did not involve the “repeal of a
tax.” (Rossi, supra, 9 Cal.4th at p. 708.) This was true insofar
as the initiative measure at issue in Dare would have amended
the rates at issue, not “repealed” them. But Rossi did not
address whether the sewer rates were taxes for any purpose. We
thus disagree with Wilde’s suggestion that Rossi rejected Dare’s
characterization of the sewer rates as a tax or casually overruled
the authorities on which Dare relies for that conclusion,
including City of Madera. Rossi simply did not address the
Opinion of the Court by Kruger, J.
deemed a “tax” in disguise. In support of her argument, Wilde
cites various cases that use the term “tax” in a range of
unrelated contexts. (See, e.g., County of Plumas v. Wheeler
(1906) 149 Cal. 758, 761–765 [explaining that a regulatory
business license fee was a permissible exercise of the county’s
police power, not a statutorily prohibited tax for revenue-raising
purposes, as long as the amount of the fee was reasonable given
its purpose]; Fatjo v. Pfister (1897) 117 Cal. 83, 84–85
[invalidating legislation increasing filing fees for county clerk
inventory and appraisal of high-value estates as an
unauthorized property tax]; The People v. Naglee (1850) 1 Cal.
232, 252–254 [charge on foreigners operating gold mines was not
a “tax” within the meaning of constitutional provision
mandating that taxation be uniform throughout the state];
Oakland v. E. K. Wood Lumber Co. (1930) 211 Cal. 16, 25–26
[fee imposed in city’s proprietary capacity for service of
providing wharves for use of vessels was not an unconstitutional
duty on tonnage]; Arcade County Water Dist. v. Arcade Fire Dist.
(1970) 6 Cal.App.3d 232, 240 [allowing water district to impose
water rates on fire district as a “charge for services rendered,”
and rejecting argument that the charge was disallowed as a
“tax” by one governmental entity upon another]; cf. Western
Indemnity Co. v. Pillsbury (1915) 170 Cal. 686, 700 [comparing
a mandatory workers’ compensation payment requirement for
employers that had “some of the characteristics of a tax” with a
requirement that an employer pay for an insurance-like
workers’ compensation scheme].)
The law certainly drew such distinctions for some
purposes. But did it draw the same distinction for every
purpose, including for purposes of referendum? None of the
cases says so. Nor do the other authorities on which Wilde
Opinion of the Court by Kruger, J.
relies, most of which refer in passing to both “water rates” and
“taxes” without ever suggesting that water rates and taxes were
uniformly considered to be mutually exclusive categories. (See
Henderson v. Oroville-Wyandotte Irr. Dist. (1931) 213 Cal. 514,
532 [noting that the cost of water in a water district included
both “the acre-foot rate charged all water users” and other “taxes
and assessments” without referencing the referendum power];
Shelton v. City of Los Angeles (1929) 206 Cal. 544, 551 [noting,
in the context of a different constitutional provision and a
dispute about municipal authority to incur debt, that even
though a city’s water rates would be used to repay debt issued
to fund the city’s water system, the debt was not being paid
using “moneys derived from taxation”]; South Pasadena v.
Pasadena Land etc. Co. (1908) 152 Cal. 579, 593 [describing a
city’s administration of a public utility as a “proprietary and
only quasi-public” activity in a different context, without
discussion of taxes or fees]; Stats. 1911, ch. 671, §§ 22–24,
pp. 1300–1301 [addressing, in a distinct statutory context,
municipal water districts’ authority to set “rate[s]” to pay
operating expenses and levy “tax[es]” to cover outstanding bond

7 Similarly, the 1948 Legislative Counsel’s interpretation of
the term “revenue acts” in a separate provision of the
Constitution as covering “every kind of tax, fee, or charge
imposed and collected for the support of the State Government”
does not establish that, for purposes of the referendum
provision, the word “tax” could not encompass what Wilde would
categorize as a “fee.” (Ops. Cal. Legis. Counsel, No. 197 (Mar.
15, 1948) Consideration of Revenue Acts at Budget Sessions, 1
Assem. J. (1948 Reg. Sess.) p. 388.)
Opinion of the Court by Kruger, J.
Given the wide range of uses of the term “tax,” it is
plausible that the water rates at issue here qualify as taxes for
some constitutional purposes. Whether they qualify as taxes for
the particular purpose in question here requires a closer
examination of article II, section 9. In City of Madera, we
adopted a broad definition of “tax” in light of the purpose of the
jurisdictional provision at issue: “to give to the sovereign power
of the state, whether exercised generally or locally, the
protection of having the legality of any exaction of money for
public uses or needs cognizable in the first instance in the
superior courts alone.” (City of Madera, supra, 181 Cal. at
p. 311.) “In view of this purpose,” we said, “it is apparent that
the words used should be applied in their broadest sense with
respect to moneys raised for public purposes or needs.” (Ibid.)
Likewise here, the proper understanding of the scope of the
taxation exception to referendum requires close attention to the
purpose of the exception.
We have previously explained that “[o]ne of the reasons, if
not the chief reason, why the Constitution excepts from the
referendum power acts of the Legislature providing for tax
levies or appropriations for the usual current expenses of the
state is to prevent disruption of its operations by interference
with the administration of its fiscal powers and policies.”
(Geiger, supra, 48 Cal.2d at pp. 839–840.) Referendum, we have
explained, poses a distinct potential for disruption that sets it
apart from the ordinary legislative process. To give voters an
opportunity to propose referendum measures, all legislative
enactments subject to referendum must wait some period of
time before they take effect. At the state level, all nonexempt
measures must wait 90 days; the Constitution imposes
Opinion of the Court by Kruger, J.
additional restrictions on when nonexempt measures may be
passed by the Legislature. (See Cal. Const., art. IV, § 8, subd.
(c)(1); id., art. II, § 9, subd. (b) [referendum measure may be
proposed within 90 days after the enactment date of the
statute]; id., art. IV, § 10, subd. (c) [“No bill may be passed by
either house on or after September 1 of an even-numbered year
except statutes calling elections, statutes providing for tax
levies or appropriations for the usual current expenses of the
State, and urgency statutes, and bills passed after being vetoed
by the Governor”].)
Similar rules apply to referenda at the city
and county levels. (Elec. Code, § 9141 [county ordinances other
than those subject to certain exceptions become effective 30 days
after passage]; id., § 9235 [same for municipal ordinances].) By
contrast, measures that are exempt from referendum may be
enacted at any time and take effect immediately. (Cal. Const.,
art. IV, § 8, subd. (c)(3); see Rossi, supra, 9 Cal.4th at p. 703.)
Article II, section 9’s exemptions from referendum reflect
a recognition that in certain areas, legislators must be permitted
to act expediently, without the delays and uncertainty that
accompany the referendum process. All of the exemptions — for
urgency statutes, statutes calling elections, and statutes
providing for tax levies or appropriations for usual current

8 The same was true under article II, section 9 as it was
originally enacted. (Cal. Const., former art. IV, § 1 [“No act
passed by the legislature shall go into effect until ninety days
after the final adjournment of the session of the legislature
which passed such act, except acts calling elections, acts
providing for tax levies or appropriations for the usual current
expenses of the state, and urgency measures necessary for the
immediate preservation of the public peace, health or safety,
passed by a two-thirds vote of all the members elected to each
Opinion of the Court by Kruger, J.
expenses of the state — are for “measures having special
urgency, a delay in the implementation of which could disrupt
essential governmental operations.” (Rossi, supra, 9 Cal.4th at
p. 703.) For this reason, “ ‘[i]f essential governmental functions
would be seriously impaired by the referendum process, the
courts, in construing the applicable constitutional and statutory
provisions, will assume that no such result was intended.’ ”
(Ibid., quoting Geiger, supra, 48 Cal.2d at p. 839; see also
McClure v. Nye (1913) 22 Cal.App. 248, 251 (McClure)
[describing the exceptions to the referendum as “ample enough
to prevent any menace to the public welfare by reason of such
delay incidental to a submission to popular vote”].)
In Geiger, we elaborated on these principles as applied to
tax measures. We held that a statute providing for a system of
local sales and use taxes was exempt from referendum,
explaining that allowing a referendum on these taxes would
hamstring the ability of counties to budget and manage their
fiscal affairs. (Geiger, supra, 48 Cal.2d at p. 840; accord, Hunt
v. Mayor & Council of Riverside (1948) 31 Cal.2d 619, 628–630
[sales tax exempt from referendum].) We later summarized the
principles as follows: “[I]f a tax measure were subject to
referendum, the county’s ability to adopt a balanced budget and
raise funds for current operating expenses through taxation
would be delayed and might be impossible. As a result, the
county would be unable to comply with the law or to provide
essential services to residents of the county.” (Rossi, supra, 9
Cal.4th at p. 703.) An initiative, by contrast, would have no such
effect: Because an initiative does not delay or suspend the
operation of statutes or ordinances, “[p]assage of an initiative
which repeals an existing tax will rarely affect the current
budgetary process of a local government.” (Ibid.)
Opinion of the Court by Kruger, J.
These cases explain why article II, section 9 exempts the
sorts of exactions that fall within Wilde’s narrow conception of
taxes — that is, compulsory general-purpose exactions such as
sales taxes and income taxes. Each represents a source of
revenue on which government depends for its essential
operations. But the rationale underlying these cases is not
limited to such exactions. Local governments also depend on
other types of exactions to perform their essential functions, and
subjecting such exactions to referendum would be no less
disruptive to their operations. Here, the City depends on water
charges to provide water to residents and to maintain the
infrastructure necessary to do so. Even the temporary
suspension of a rate-setting resolution would run the risk of
undermining the City’s ability to finance its water utility and
manage its fiscal affairs. The result would be to impair the
City’s ability to carry out one of its most basic and essential
functions. The potential for disruption from subjecting water
rates to referendum is at least as significant as the disruption
that results from temporarily suspending an increase in the
sales tax. (See Geiger, supra, 48 Cal.2d at pp. 839–840.) It
follows from our cases that charges used to fund a city’s
provision of water, like other utility fees used to fund essential
government services, are exempt from referendum.

9 The rule we apply here is related to, but distinct from, the
rule we articulated and applied in Simpson v. Hite (1950) 36
Cal.2d 125. In Simpson, we granted a request for a writ of
mandate that sought the removal of a proposed initiative from
the ballot. The initiative would have repealed and replaced a
county board of supervisors’ selection of a site for local
courthouses. (Id. at pp. 127, 135.) As we explained, the
Opinion of the Court by Kruger, J.
It may be the case, as the Court of Appeal below observed,
that the City would not be entirely without recourse should
Wilde’s referendum succeed. Perhaps the City could simply
default to its prior rates while it restarts the process of
“study[ing], plan[ning], and implement[ing] a new water rate
master plan.” (Wilde, supra, 29 Cal.App.5th at p. 179.) But the
exceptions to referendum do not exist solely to shield
governments from certain and immediate disaster. From the
standpoint of the Constitution’s referendum provision, the
gradual disrepair of a fundamental government service is as
much a cause for concern as a wholesale shutdown. Leaking

Legislature had required, by state statute, that the county board
of supervisors “provide suitable quarters for the municipal and
superior courts,” and voters could not “nullify th[is] legislative
policy” by way of an initiative. (Id. at pp. 129, 133.) To allow
otherwise would be to permit the use of the initiative or
referendum to “ ‘impair or wholly destroy the efficacy of some
other governmental power.’ ” (Id. at p. 134, quoting Chase v.
Kalber (1915) 28 Cal.App. 561, 569–570.)
The City relies on Simpson for the broad proposition that
the powers of direct democracy are not to be interpreted to
defeat essential government functions. But in Simpson, we
invoked the essential government services reasoning not to
effectuate the express exceptions in the referendum provision of
the Constitution, but to foreclose the operation of the initiative
or referendum where it would conflict with the Legislature’s
express delegation of authority to a local government. (See
DeVita v. County of Napa (1995) 9 Cal.4th 763, 776 [describing
Simpson as concluding that “the initiative and referendum
power could not be used in areas in which the local legislative
body’s discretion was largely preempted by statutory
mandate”].) No similar exclusive delegation argument has been
raised here. Nonetheless, for reasons given above, whether
allowing referendum would impair essential government
functions is a critical consideration in interpreting the scope of
article II, section 9’s taxation exemption.
Opinion of the Court by Kruger, J.
water pipes and aging water tanks only last for so long. The
City will inevitably need to raise the funds required for the
operation, repair, and upkeep of its utilities, just as it would for
any other essential government service. Waiting to institute
new water rates until a successful referendum runs the risk of
forcing the City to wait too long. The purpose of the taxation
exception in article II, section 9 is to alleviate that risk.
Wilde makes various additional arguments as to why the
water rates should not be counted as taxes for purposes of the
exemption in article II, section 9, but none is persuasive. First,
Wilde argues that the water rates are disqualified because the
proceeds from the water charges are not deposited in the City’s
general fund and used for the general operation of the City. But
into what specific accounts the money goes, and whether it funds
general operations, are not article II, section 9’s concern. It
suffices that the money goes to the City to fund an essential
governmental function — namely, the provision of water. Nor
does it matter, for purposes of our analysis, that water is
sometimes provided by private companies rather than local
governments; when a local government undertakes to provide
water, the rates it sets are exempt from referendum in the same
manner as other taxation measures.
Wilde also asserts that “taxes are no longer protected from
the delay that a referendum election would entail” because they
are subject to preapproval under article XIII C, which requires
any new tax under that article to be approved by either a
majority or two-thirds of voters before taking effect (art. XIII C,
§ 2). The same is true for most fees and charges under article
XIII D. (Art. XIII D, § 6, subd. (c).) Because so many exactions
are already subject to what Wilde calls a “ ‘referendum’ of
Opinion of the Court by Kruger, J.
sorts,”10 Wilde argues that there is no reason they should be
insulated from an actual referendum under article II, section 9.
But a preenactment vote does not suspend the operation of new
rates in the same way as a postenactment challenge. Nor, in
any event, is every exaction subject to a preapproval vote; the
water rates at issue here, for example, are not. (Art. XIII D, § 6,
subd. (c).) And at any rate, these preapproval requirements do
not affect our interpretation of the referendum provision that
long predated passage of Proposition 218.
It is true, as Wilde emphasizes, that it is “ ‘the duty of the
courts to jealously guard this right of the people’ ” to the
initiative and referendum, such that ordinarily “ ‘[i]f doubts can
reasonably be resolved in favor of the use of this reserve power,
courts will preserve it.’ ” (Associated Home Builders etc., Inc. v.
City of Livermore, supra, 18 Cal.3d at p. 591.) But “when taxes
levied to support essential governmental services arguably are
involved in a referendum, the general rule requiring that
referendum provisions be liberally construed to uphold the
power is inapplicable.” (Rossi, supra, 9 Cal.4th at p. 703; see
also Geiger, supra, 48 Cal.2d 832, 839–840.) That is the case
Finally, Wilde points to a handful of fees that have been
the subject of referenda at various points in time, ranging from
an “oleomargarine fee” on the ballot in 1926 (which sought to
“regulate[] the manufacture and sale of oleomargarine” and

10 “[O]f sorts,” but not in fact. (See Consolidated Fire
Protection Dist. v. Howard Jarvis Taxpayers’ Assn. (1998) 63
Cal.App.4th 211, 225–226; see generally Santa Clara County
Local Transportation Authority v. Guardino (1995) 11 Cal.4th
220, 247–254.)
Opinion of the Court by Kruger, J.
required oleomargarine dealers to pay a fee (Ballot Pamp., Gen.
Elec. (Nov. 2, 1926) summary of measure, p. 6)) to a “plastic bag
fee” put to the voters in 2016 (which would bar single-use plastic
bags and impose a charge on the use of certain bags in stores
(Voter Information Guide, Gen. Elec. (Nov. 8, 2016) analysis of
Prop. 67 by Legis. Analyst, pp. 110–113)). But Wilde points to
no historical practice of subjecting exactions like the water
charges at issue here to referendum. Whether other exactions
were similarly levied to fund essential government functions —
a question we need not answer here — the water charges at
issue are.11 The resolution imposing the charges therefore
qualifies as a tax measure within the meaning of the exception
to the referendum power in article II, section 9.
Whether this is the end of the inquiry, however, turns on
another question of constitutional interpretation. Recall that
the taxation exception to the referendum is framed as follows:
“The referendum is the power of the electors to approve or reject
statutes or parts of statutes except . . . statutes providing for tax
levies or appropriations for usual current expenses of the State.”
(Art. II, § 9, subd. (a), italics added.) Even if the water rates at
issue here qualify as taxes, Wilde says, they must be taxes “for

11 We do not hold that every government revenue-raising
measure is necessarily exempt from referendum; our holding is
limited to utility fees on which local governments depend to
provide essential services to their residents.
12 We disapprove of Bock v. City Council (1980) 109
Cal.App.3d 52 to the extent it conflicts with our reasoning here.
Opinion of the Court by Kruger, J.
usual current expenses” to be exempt from referendum, and
these rates are not.
We identified this very issue without resolving it in Geiger.
We noted there that while several cases had “assumed without
discussion” that “tax levies must be for usual current expenses
in order to be exempt from referendum,” there were arguments
to the contrary. (Geiger, supra, 48 Cal.2d at p. 836, fn. *.) We
pointed in particular to a Legislative Counsel opinion dated
June 27, 1947, that had concluded that the phrase “ ‘for the
usual current expenses’ ” did not modify “ ‘tax levies,’ ” based “on
the ballot argument, on contemporaneous construction at the
1913 session of the Legislature, and on the continuous practice
of making state taxes effective immediately regardless of use of
the proceeds therefrom for capital outlay as well as usual
current expenses.” (Geiger, at p. 836, fn. *.) But we left the
question open, explaining that the revenue from the tax
ordinance at issue in Geiger was undisputedly to be used for
current expenses. (Id. at p. 836 & fn. *.) We have not revisited
the issue since. (See Rossi, supra, 9 Cal.4th at p. 730 (dis. opn.
of Mosk, J.).)
Again confronted with the issue in this case, we now
conclude the taxation exception from referendum is not limited
to tax measures “for usual current expenses.” As a very general
rule, we understand a qualifying phrase to apply only to the
word or phrase that immediately precedes it and not to other
words or phrases that appear earlier in a list or series. (White
v. County of Sacramento (1982) 31 Cal.3d 676, 680; accord,

13 Although Wilde did not raise this question in her initial
briefing, we sought supplemental briefing in order to provide a
full response to the issue presented.
Opinion of the Court by Kruger, J.
Lockhart v. United States (2016) ___ U.S. ___, ___–___ [136 S.Ct.
958, 963–964].) Under this “last antecedent rule,” we would
understand the qualifying phrase “for usual current expenses”
to modify its immediate antecedent — “appropriations” — and
not the earlier-appearing phrase “tax levies.”
Of course like all such interpretive rules, the last
antecedent rule has its exceptions, such as when the qualifying
language applies just as naturally to the earlier items in a list
as the later items. (Renee J. v. Superior Court (2001) 26 Cal.4th
735, 743.) But that is not the situation at hand. Here it is far
more natural — and makes far more practical sense — to read
“for usual current expenses” as applying only to
“appropriations” than it does to read it as applying to both
“appropriations” and “tax levies.” Taxpayers typically pay
certain sums to the government on the basis of income, property,
purchases, or services used; quite often, taxpayers have no
guarantee as to how those funds will be deployed, whether for
usual or unusual matters. Even if some exactions may be levied
for a specific purpose identified in advance, that is hardly the
case for all exactions. Governments routinely raise tax revenue
first and allocate it to various ends afterward. Indeed, in the
early twentieth century, some of the largest pools of tax revenue,
often from sources such as property taxes, were not tethered to
specific expenditures. (See Cal. Tax Com., Final Rep. (Mar. 5,
1929) table I-2, pp. 16–17 [listing the major categories of state
tax revenue in 1911]; see also id. at pp. 14–16.) In those cases,
classifying taxes based on whether they are “for usual current
expenses” would have been an unwieldy, if not impossible, task.
The same is not true of appropriations. Legislative bodies
cannot spend money without first designating the purpose of the
expenditure. (58 Cal.Jur.3d (2012) State of California, § 80,
Opinion of the Court by Kruger, J.
p. 257 [“In the context of the appropriation requirement of the
state constitution, an ‘appropriation’ is a legislative act setting
aside a certain sum of money for a specified object in such
manner that the executive officers are authorized to use that
money and no more for such specified purpose”]; The Cal.
Municipal Law Handbook (Cont.Ed.Bar 2019) § 5.276 [“A
specific appropriation is an act by which a named sum of money
is set apart in the treasury and made available for the payment
of particular claims or demands. The city may accomplish this
by adopting a budget or passing an appropriations ordinance or
resolution”].) Against this backdrop, the enactors of the
referendum provision would have understood the qualifying
“usual current expenses” language to apply in a straightforward
manner to appropriations measures, which could be
distinguished on such a basis, but would have had no similar
understanding about tax bills.
What evidence exists of contemporaneous understandings
of the referendum provision reinforces the conclusion that the
taxation exception is not limited to taxes for usual current
expenses.14 Most pertinently, in 1913, the chair of the Senate
Committee on the Judiciary submitted a report to the Senate on
the interpretation of the referendum provision. (1 Sen. J. (1913
Reg. Sess.) p. 226.) The chair at the time, Senator Lee Gates,
had helmed the committee that had drafted the referendum

14 Despite best efforts, we have been unable to locate a copy
of the 1947 Legislative Counsel opinion cited in Geiger, which
evidently reviewed various contemporary sources to conclude
that the taxation exception is not limited to taxes for usual
current expenses. (See Geiger, supra, 48 Cal.2d at p. 836, fn. *.)
Our own review of contemporary sources, however, leads us to
the same conclusion.
Opinion of the Court by Kruger, J.
provision. Senator Gates’s report described the four categories
of legislation that could take effect immediately upon a twothirds vote of each house, without being subject to referendum:
“Acts calling elections. Acts providing for tax levies. Acts
providing for appropriations for the usual current expenses of
the State. [A]nd urgency measures necessary for the immediate
preservation of the public peace, health or safety.” (Ibid.) The
report stated that “any Act of the first three classes, to wit, an
Act calling an election, or an Act providing for a tax levy, or an
Act providing an appropriation for the usual current expenses
of the State, have in such Act a section substantially in words
and figures as follows: ‘This Act, inasmuch as it * * * shall under
the provisions of [the referendum provision] take effect
immediately.’ ” (Ibid.) In enumerating the exceptions to the
referendum this way, the report made clear that “for usual
current expenses” modifies “appropriations” and not “tax
levies.”15 (See also, e.g., Ops. Cal. Legis. Counsel, No. 341 (Dec.

15 The occasional legislative assertion that a tax bill is
exempt from referendum “inasmuch as it provides for a tax levy
for the usual current expenses of the state” does not alter our
analysis (e.g., Stats. 1913, ch. 596, § 5, p. 1086), since there is no
evidence that these legislative pronouncements constitute
considered constitutional analysis (McClure, supra, 22 Cal.App.
at pp. 251–252).
For the same reason, the language of Government Code
section 36937 does not resolve the inquiry. This provision,
enacted in 1949, lists the types of city ordinances that can take
immediate effect (instead of 30 days after final passage) and
includes ordinances “[r]elating to taxes for the usual and current
expenses of the city.” (Gov. Code, § 36937, subd. (d).) This
language does not affect our analysis. Not only does the
Legislature not have the power to limit the application of the
Opinion of the Court by Kruger, J.
13, 1949) Enactment of Bills to Take Effect Immediately,
2 Assem. J. (1949 1st Ex. Sess.) pp. 156–157 [listing the four
categories of legislation exempt from referendum in similar

Outcome: The California Constitution reserves the power of referendum to voters with specific exemptions for certain kinds of legislative enactments. The City’s water rates, adopted in the Resolution at issue here, fall within the exemption for “tax levies” and therefore are not subject to referendum. We reverse the judgment of the Court of Appeal and remand for further proceedings consistent with this opinion.

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