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Seaside Utility Tax is Invalid According to Legal Expert

At the November 5, 1996 General Election, the voters added article XIII C to the Constitution by approving Proposition 218. This required that "Any general tax imposed, extended, or increased, without voter approval, by any local government on or after January 1, 1995, and prior to the effective date of this article [November 5, 1996] be imposed only if approved by a majority vote of the voters voting in an election on the issue of the imposition, which election shall be held within two years of the effective date of this article and in compliance with subdivision (b)." Since the Seaside utility tax fit this category of taxation exactly, it had to be approved by a majority of the voters within two years of the effective date of Proposition 218. This never occurred. Therefore, without such a vote the tax is invalid. Since the vote had to occur within two years of the passage of Proposition 218, and that never happened, there is a strong argument to be made that the city cannot do so now since the time limit for such a vote has long since passed. Even if it could hold such a vote, the court could still invalidate the tax until such an election was held.

Please note that these facts disprove the language of the ballot Measure E which falsely states that the utility tax "was approved by Seaside voters on November 5, 2002".

Since the city continues to collect the tax, this appears to be a continuing violation which can be enjoined by the courts without the bar of a statute of limitations. However, the latter would set a limit as to how far back the court could order the city to refund back taxes.

In conclusion, it appears there are good legal grounds for filing a lawsuit to end the utility tax. But that is what Measure E seeks to do. Hence, filing the lawsuit before the election would be premature because I am fairly sure the court would just abstain from ruling on it until after the election and then only if Measure E failed.

Carl Mounteer, Attorney-at-Law
215 W. Franklin St., 5th Floor
Monterey, CA 93940

Last Updated: Jul 01, 09

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