1 2 3 4 BRIGGS LAW CORPORATION [FILE: 1593.19] Cory J. Briggs (State Bar no. 176284) Mekaela M. Gladden (State Bar no. 253673) Anthony N. Kim (State Bar no. 283353) 99 East "C" Street, Suite 111 Upland, CA 91786 Telephone: 909-949-7115 Fax: 909-949-7121 5 Attorneys for Plaintiff San Diegans for Open Government 6 SUPERIOR COURT OF THE STATE OF CALIFORNIA CENTRAL DIVISION COUNTY OF SAN DIEGO — 10 11 12 Plaintiff, 13 vs. 14 ) CASE NO. ) ) COMPLAINT FORDECLARATORY AND ) IN JUNCTIVE RELIEF UNDER THE SAN DIEGANS FOR OPEN GOVERNMENT, CALIFORNIA CONSTITUTION OTHER LAWS AND CITY OF SAN DIEGO; and DOES 1 through 1,000, ) 15 ) ) Defendants. 16 Plaintiff SAN DIEGANS FOR OPEN GOVERNMENT alleges as follows: 17 Parties 18 1. 19 Plaintiff is a non-profit taxpayer and voter organization formed and operating under the of the State of California. Plaintiff's 20 laws 21 and have an interest in ensuring open, accountable, responsive government, 22 rights as taxpayers and voters. 23 24 25 2. members reside in or near the City of San Diego, California, and the protection of their Defendant CITY OF SAN DIEGO is a "local government" under Section 1(b) o f Article XIII C of the California Constitution. 3 The true names and capacities of the Defendants identified as DOES 1 through 1,000 26 are unknown to Plaintiff, who will seek the Court's permission to amend this pleading in order to allege 27 the true names and capacities as soon as they are ascertained. 28 that basis alleges that each of the fictitiously named Defendants Plaintiff is informed and believes and on 1 through 1,000 has jurisdiction by law of the 1 over one or more aspects 2 some other cognizable interest in the actions and omissions. actions and omissions that are the subject of this proceeding or has Background Information of a of "tax" 4 4. 5 collections 6 without first obtaining the requisite approval 7 scheme received final approval on or about May 24, 2013, in order to generate revenues for what are 8 commonly known as Business Improvement 9 of which This lawsuit challenges —euphemistically Defendants'uthorization are used to fund the activities of the voters of the City of San Diego. The illegal tax Districts ("BIDs") for Fiscal of the BIDs under management 11 nos. 308143 and 308144 ("BID Resolutions" In November 2010, the voters Year 2013-14, the proceeds agreements between Defendants and third-party contractors. This scheme was approved by Defendants'ity 5. council through Resolution ). of California approved Proposition 26. Proposition 26 of Article XIII C and Article XIII D of the California Constitution 13 amended several provisions 14 to close a variety of loopholes that government agencies, including local governments 15 had been using to increase tax revenues without having to use the word 16 requirement 17 California Constitution now provides as follows: 18 for voter approval A. levies and labeled "assessments" by Defendants in order to avoid public scrutiny— 10 12 variety of tax increases. Following in order like Defendants, "tax" and thereby escape the the voters'pproval of Proposition 26, the Under Section 1(e) of Article XIII C, "tax" means any "levy, charge, or exaction 19 of any 20 conferred or privilege granted directly to the payor that is not provided to those not charged, and which 21 does not exceed the reasonable costs to the local government 22 privilege. 23 payor that is not provided to those not charged, and which does not exceed the reasonable costs to the 24 local government 25 regulatory 26 inspections, and audits, enforcing agricultural marketing orders, and the administrative 27 adjudication thereof. (4) A charge imposed for entrance to or use 28 purchase, rental, or lease kind by a local government, except the following: (1) A charge imposed for a specific benefit of conferring the benefit or granting the (2) A charge imposed for a specific government service or product provided directly to the of providing the service or product. costs to a local government (3) A charge imposed for the reasonable for issuing licenses and permits, performing of local government investigations, enforcement and property, or the of local government property. (5) A fine, penalty, or other monetary charge COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF ETC. Page 2 of government or a local as a result of a violation of law. 1 imposed by the judicial branch 2 (6) A charge imposed as a condition of property development. 3 fees imposed in accordance with the provisions 4 of proving 5 amount is no more than necessary to cover the reasonable costs 6 the manner in which those costs are allocated to a payor bear a fair or reasonable relationship 7 payor's bmdens on, or benefits received from, the governmental B. 9 government of the evidence by a preponderance Under Section 2 government, (7) Assessments and property-related of Article XIII D. The government bears the burden that a levy, charge, or other exaction is not a tax, that the of the governmental activity, and that to the activity." of Article XIII C, "(a) All taxes imposed by any local shall be deemed to be either general taxes or special taxes. Special pmpose districts or 10 agencies, including school districts, shall have no power to levy general taxes. (b) No local government 11 may impose, extend, or increase any general tax unless and until that tax is submitted to the electorate 12 and approved by a majority vote. A general tax shall not be deemed to have been increased 13 imposed at a rate not higher than the maximLun 14 subdivision 15 governing body 16 of the 17 by any local government on or after January 1, 1995, and prior to the effective date 18 continue to be imposed only shall be consolidated of the local rate so approved. government, is The election required by this general election for members scheduled with a regularly if it of the except in cases of emergency declared by a unanimous vote governing body. (c) Any general tax imposed, extended, or increased, without voter approval, if approved by a majority vote of the voters voting of this article, shall in an election on the 19 issue of the imposition, which election shall be held within two years of the effective date of this article may impose, extend, or increase any 20 and in compliance with subdivision (b). (d) No local government 21 special tax unless and until that tax is submitted to the electorate and approved by a two-thirds vote. 22 A special tax shall not be deemed to have been increased 23 maximum rate so approved." Notice Requirements 24 25 26 27 28 6. if it is imposed at a rate not higher than the and Time Limitations This proceeding is being commenced not more than 30 days after the date on which the BID Resolutions were finally approved by Defendants. 7 On June 11, 2013, Plaintiff caused Defendants'ity council members, mayor, and city clerk to be notified via e-mail that it intended to commence this lawsuit. COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF ETC. Page 3 Jurisdiction and Exhaustion of Administrative Remedies Plaintiff seeks review by and relief from this Court under Code of Civil Procedure 8. Sections 1060 et seq. and 1084 et seq., as applicable, among other provisions of law. Defendants held a public hearing on the BID Resolutions 9. opposed the approval 10. members on May 13, 2013. Plaintiff of the BID Resolutions prior to completion of the public hearing. Plaintiff has no plain, speedy, adequate remedy in the ordinary course of law, since its and other members of the public will suffer irreparable harm as a result of Defendants'iolations of the California Constitution and other laws. Defendants'pproval also rests on the failure to satisfy a clear, present, ministerial 10 of the BID Resolutions duty to act (or in some cases to refrain from acting) in accordance with those laws. Even when Defendants are permitted or required by law to exercise their discretion in acting (or refraining from acting) under those laws, they remain under a of and in a manner consistent 12 clear, present, ministerial duty to exercise their discretion within the limits 13 with those laws. Defendants have had and continue to have the capacity and ability to approve the BID 14 Resolutions within the limits 15 and refuse to do so and have exercised their discretion beyond the limits 16 consistent with those laws. 17 18 11. of and in a manner consistent with those laws, but Defendants have failed of and in a manner that is not Plaintiff has a beneficial right and interest in Defendants'ulfillment of all their legal duties, as alleged in this pleading. FIRST CAUSE OF ACTION: Violation of the California Constitution with BID Resolutions (Against All Defendants and Real Parties in Interest) 19 20 11 are fully incorporated into this paragraph. 21 12. Paragraphs 22 13. The levies and collections authorized by the BID Resolutions constitute a "tax" within 23 the meaning 24 14. 25 the exceptions to the 26 15. 27 1 through of Section 1(e) of Article XIII C of the California Constitution. The levies and collections authorized by the BID Resolutions do not qualify for any "tax" definition of under Section 1(e) o f Article XIII C of the California Constitution. There has been no vote of the electorate of the City of San Diego collections authorized by the BID Resolutions, in violation on the levies and of the California Constitution. 28 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF ETC. Page 4 16. 1 Plaintiff and its members have been harmed insofar as the "tax" authorized by the BID that it be approved by a vote 2 Resolutions violates the California Constitution's 3 electorate. None of Plaintiff's members, and no registered voter within the City 4 given the opportunity requirement of San Diego, of the has been to vote on the "tax" authorized by the BID Resolutions. Prayer FOR ALL THESE REASONS, Plaintiff respectfully prays for the following relief against 6 7 Defendants (and any and all other parties who may oppose Plaintiff in this proceeding): A. 8 A judgment determining 9 Constitution and are therefore invalid; 10 B.. A judgment determining or declaring that the BID Resolutions violated the California or declaring that the taxes authorized by the BID Resolutions 11 were not approved by the electorate, in violation 12 invalid; 13 C. Injunctive relief prohibiting of the California Constitution, Defendants (and any and all persons acting at the request of them) 14 of, in concert with, or for the benefit of one or more 15 or spend any of the taxes authorized by the BID Resolutions; 16 D. and are therefore from taking any action to levy, collect, Injunctive relief directing Defendants (and any and all persons acting at the request of, of one or more of them) to refund any and all taxes levied and 17 in concert with, or for the benefit 18 collected under the BID Resolutions to the persons who paid the taxes, plus any applicable interest; 19 20 21 22 23 24 E. All legal fees and other expenses incurred in connection with this proceeding, including but not limited to reasonable attorney fees as authorized by the Code F, of Civil Procedure; and Any and all other relief that may be authorized by law but is not explicitly or specifically requested elsewhere in this Prayer, or that this Court may deem appropriate. Date: June 12, 2013. Respectfully submitted, BRIGGS LAW CORPORATION 25 26 27 28 Co~. Briggs Attorneys for Plaintiff San Diegans for Open Government COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF ETC. Page 5