CANTIL-SAKAUYE, C. J. —
Pursuant to an agreement between Southern California Edison (SCE) and defendant City of Santa Barbara (the City), SCE includes on its electricity bills to customers within the City a separate charge equal to 1 percent of SCE's gross receipts from the sale of electricity within the City, and transfers the revenues to the City. The City contends this separate charge, together with another charge equal to 1 percent of SCE's gross receipts that SCE includes in its electricity rates, is the fee paid by SCE for the privilege of using City property in connection with the delivery of electricity. Plaintiffs Rolland Jacks and Rove Enterprises, Inc., contend the 1 percent charge that is separately stated on electricity bills is not compensation for the privilege of using City property, but is instead a tax imposed without voter approval, in violation of Proposition 218. (Cal. Const., art. XIII C, § 2, added by Prop. 218.)
As we explain below, the right to use public streets or rights-of-way is a property interest, and Proposition 218 does not limit the authority of government to sell or lease its property and spend the compensation it receives for whatever purposes it chooses. Therefore, charges that constitute compensation for the use of government property are not subject to Proposition 218's voter approval requirements. To constitute compensation for a property interest, however, the amount of the charge must bear a reasonable relationship to the value of the property interest; to the extent the charge exceeds any reasonable value of the interest, it is a tax and therefore requires voter approval.
The litigation below did not address whether the charges bear a reasonable relationship to the value of the property interests. Therefore, we affirm the judgment of the Court of Appeal to the extent it reversed the trial court's grant of the City's motion for judgment on the pleadings, but we reverse the Court of Appeal's order that the trial court grant summary adjudication to plaintiffs.
The parties stipulated to the following facts in the trial court. Beginning in 1959, the City and SCE entered into a series of franchise agreements granting SCE the privilege to construct and use equipment along, over, and under the City's streets to distribute electricity.
In the negotiations for a long-term agreement, the City pursued a fee equal to 2 percent of SCE's gross annual receipts from the sale of electricity within the City. At some point in the negotiations, SCE proposed that it would remit to the City as a franchise fee 2 percent of its gross receipts if the Public Utilities Commission (PUC) consented to SCE's inclusion of the additional 1 percent as a surcharge on its bills to customers. Based on SCE's proposal, the City and SCE tentatively agreed to a 30-year agreement that included the provisions for payment of 2 percent of gross receipts. Following notice and a hearing, the City Council of Santa Barbara adopted the agreement as City Ordinance No. 5135 on December 7, 1999, with a term beginning on January 1, 2000 (the 1999 agreement). The ordinance was not submitted to the voters for their approval.
The 1999 agreement divides its 30-year period into two terms. The first two years were the "initial term," during which SCE was required to pay the City an "initial term fee" equal to 1 percent of its gross receipts from the sale of electricity within the City. The subsequent 28 years are the "extension term," during which SCE is to pay the additional 1 percent charge on its gross receipts, denominated the "recovery portion," for a total "extension term fee" of 2 percent of SCE's gross receipts from the sale of electricity within the City. At issue in this case is the recovery portion, which we, like the parties, refer to as the surcharge.
The agreement required SCE to apply to the PUC by April 1, 2001, for approval to include the surcharge on its bills to ratepayers within the City, and to use its best efforts to obtain PUC approval by April 1, 2002. Approval was to be sought in accordance with the PUC's "Re Guidelines for the Equitable Treatment of Revenue-Producing Mechanisms Imposed by Local Government Entities on Public Utilities." (Investigation on the Commission's Own Motion To Establish Guidelines for the Equitable Treatment of Revenue-Producing Mechanisms Imposed by Local Government Entities on Public Utilities (1989) 32 Cal.P.U.C.2d 60, 63 (PUC Investigation).) The agreement further provided that, in the event the PUC did not give its approval by the end of the initial term, either party could terminate the agreement. Thereafter,
The agreement provided that half of the revenues generated by the surcharge were to be allocated to the City's general fund and half to a City undergrounding projects fund. In November 2009, however, the City Council decided to reallocate the revenues from the surcharge, directing that all of the funds be placed in the City's general fund without any limitation on the use of these funds.
In 2011, plaintiffs filed a class action complaint challenging the surcharge. In their first amended complaint, they alleged the surcharge was an illegal tax under Proposition 218, which requires voter approval for all local taxes. (Cal. Const., art. XIII C.) Plaintiffs sought refunds of the charges collected, as well as declaratory relief and injunctive relief requiring the City to discontinue collection of the surcharge.
On cross-motions for summary adjudication and the City's motion for summary judgment, the trial court ruled that a franchise fee is not a tax under Proposition 218. Its ruling was based largely on Santa Barbara County Taxpayer Assn., supra, 209 Cal.App.3d 940, which held that franchise fees are not "proceeds of taxes" for purposes of calculating limits on state and local appropriations under article XIII B of the California Constitution. Notwithstanding this ruling, the trial court denied the motions, based on its view that Proposition 26, which was approved by the voters in 2010, retroactively altered the definition of a tax under Proposition 218 to encompass franchise fees. Therefore, the court concluded, the City had failed to establish that the surcharge did not violate Proposition 218 during the period after Proposition 26 was adopted in 2010.
Thereafter, the City moved for judgment on the pleadings, contending that Proposition 26 does not apply retroactively to the surcharge. The trial court agreed, citing Brooktrails Township Community Services Dist. v. Board of Supervisors of Mendocino County (2013) 218 Cal.App.4th 195 [159 Cal.Rptr.3d 424], which held that Proposition 26 does not apply retroactively. Based on its earlier conclusion that the surcharge, as a franchise fee, was not a tax under Proposition 218 (see Santa Barbara County Taxpayer Assn., supra, 209 Cal.App.3d 940), and its additional conclusion that a franchise fee, as negotiated compensation, need not be based on the government's costs, the trial court ruled that the surcharge was not subject to the voter approval requirements of Proposition 218. Therefore, it granted the City's motion for judgment on the pleadings.
We granted review to address whether the surcharge is a tax subject to Proposition 218's voter approval requirement, or a fee that may be imposed by the City without voter consent.
A. Restrictions on Taxes and Other Charges
1. Voter Initiatives
2. Characteristics of Valid Fees
As noted above, following the enactment of Proposition 13, the Legislature and courts viewed various fees as outside the scope of the initiative. (Gov. Code, § 50076; Evans v. City of San Jose (1992) 3 Cal.App.4th 728, 736-737 [4 Cal.Rptr.2d 601] (Evans), and cases cited therein.) In Sinclair Paint, supra, 15 Cal.4th 866, we summarized three categories of charges that are fees rather than taxes, and therefore are not subject to the voter approval requirements of Proposition 13. First, special assessments may be imposed "in amounts reasonably reflecting the value of the benefits conferred by improvements." (Sinclair Paint, at p. 874.) Second, development fees, which are
Although Sinclair Paint, supra, 15 Cal.4th 866, focused on restrictions imposed by Proposition 13, its analysis of the characteristics of fees that may be imposed without voter approval remains sound. According to Proposition 218's findings and declarations, "Proposition 13 was intended to provide effective tax relief and to require voter approval of tax increases. However, local governments have subjected taxpayers to excessive tax, assessment, fee
To determine how franchise fees fit within these principles, we next consider the nature of franchise fees. We also describe the regulatory framework related to their calculation and imposition.
B. Franchise Fees
1. Nature of Franchise Fees
This understanding that restrictions on taxation do not encompass amounts paid in exchange for property interests is confirmed by Proposition 26, the
2. Laws Governing the Calculation of Franchise Fees
The Legislature has taken several approaches to the issue of the amount of compensation to be paid to local jurisdictions in exchange for rights-of-way over the jurisdictions' land relating to the provision of services such as electricity. As described more fully below, it initially barred the imposition of franchise fees due to perceived abuses by local governments. Thereafter, it authorized local agencies to grant franchises, and established two formulas with which to calculate franchise fees. These formulas do not bind charter jurisdictions, such as the City, but they provide helpful background to the PUC's regulation of charges imposed on ratepayers.
The California Constitution as adopted in 1879 provided that "[i]n any city where there are no public works owned and controlled by the municipality for the supplying the same with water or artificial light, any individual, or any company duly incorporated for such purpose ..., shall ... have the privilege of using the public streets and thoroughfares thereof, and of laying down pipes and conduits therein, and connections therewith, so far as may be necessary for introducing into and supplying such city and its inhabitants either with gaslight or other illuminating light, or with fresh water for domestic and all other purposes, upon the condition that the municipal government shall have the right to regulate the charges thereof." (Cal. Const., former art. XI, § 19.) The provision was intended to prevent a municipality from creating a monopoly within its jurisdiction by imposing burdens on parties who wanted to compete with an existing private utility. Although cities could not impose franchise fees on these "constitutional franchises," they were authorized to tax a franchise on the basis that a franchise constitutes real property within the city. (Stockton Gas etc. Co. v. San Joaquin
In the meantime, in 1905, the Legislature enacted the Broughton Act (Pub. Util. Code, § 6001 et seq.), which authorized cities and counties to enter franchise agreements for the provision of electricity and various other services not encompassed by the constitutional restrictions on franchise fees. (Stats. 1905, ch. 578, p. 777; County of Alameda v. Pacific Gas & Electric Co. (1997) 51 Cal.App.4th 1691, 1694-1695 [60 Cal.Rptr.2d 187] (County of Alameda).) The legislation provided that when an application for a franchise was received by a city or county, the governing body was to advertise for bids and award the franchise to the highest bidder. The successful bidder was required to pay, in addition to the amount bid, 2 percent of the gross annual receipts from the "use, operation or possession" of the franchise after the first five years of the term of the franchise agreement had passed. (Stats. 1905, ch. 578, §§ 2-3, pp. 777-778.)
As noted above, these statutory provisions do not bind jurisdictions governed by a charter, such as the City, but charter jurisdictions are free to follow the procedures set forth in the 1937 Act. (Pub. Util. Code, § 6205.)
3. PUC Scrutiny of Utility Charges
The purpose of the PUC's procedure concerning local government fee surcharges is to ensure that utility rates are just, reasonable, and nondiscriminatory. (PUC Investigation, supra, 32 Cal.P.U.C.2d at p. 69; see Pub. Util. Code, §§ 451 [all public utility charges shall be just and reasonable], 453 [no public utility shall discriminate], 728 [if PUC finds rates are unreasonable or discriminatory, it shall order just and reasonable rates].) "Basic rates ... are those designed to recoup a utility's costs incurred to serve all its customers."
The PUC's decision does not concern the validity of any charges imposed by local government. The PUC explained that it "[did] not dispute or seek to dispute the authority or right of any local governmental entity to impose or levy any form of tax or fee upon utility customers or the utility itself, which that local entity, as a matter of general or judicial decision, has jurisdiction to impose, levy, or increase. Any issue relating to such local authority is a matter for the Superior Court, not this Commission." (PUC Investigation, supra, 32 Cal.P.U.C.2d at p. 69.)
C. Validity of the Surcharge
1. Relationship Between Franchise Rights and Franchise Fees
Each of the categories of valid fees we recognized in Sinclair Paint, supra, 15 Cal.4th 866, was restricted to an amount that had a reasonable relationship
In contrast, a fee paid for an interest in government property is compensation for the use or purchase of a government asset rather than compensation for a cost. Consequently, the revenue generated by the fee is available for whatever purposes the government chooses rather than tied to a public cost. The aspect of the transaction that distinguishes the charge from a tax is the receipt of value in exchange for the payment. (See Sinclair Paint, 15 Cal.4th at p. 874 [contrasting taxes from charges imposed in return for a special benefit or privilege]; 9 Witkin, Summary of Cal. Law (10th ed. 2005) Taxation, § 1, p. 25 ["in taxation, ... no compensation is given to the taxpayer except by way of governmental protection and other general benefits"].)
Plaintiffs observe, however, that SCE customers pay the surcharge, but SCE receives the franchise rights; therefore, they contend, the ratepayers do not receive any value in exchange for their payment of the charge. As noted above, publicly regulated utilities are allowed to recover their costs and expenses by passing them on to their ratepayers. Among the charges included in the rates charged to customers within the City is the initial 1 percent of
Although Sinclair Paint's consideration of the purposes to which revenues will be put is not relevant in the context of transfers of public property interests, its broader focus on the relationship between a charge and the rationale underlying the charge provides guidance in evaluating whether the surcharge is a tax. Just as the amount of fees imposed to compensate for the expense of providing government services or the cost to the public associated with a payer's activities must bear a reasonable relationship to the costs and benefits that justify their imposition, fees imposed in exchange for a property interest must bear a reasonable relationship to the value received from the government. To the extent a franchise fee exceeds any reasonable value of the franchise, the excessive portion of the fee does not come within the rationale that justifies the imposition of fees without voter approval. Therefore, the excessive portion is a tax. If this were not the rule, franchise fees would become a vehicle for generating revenue independent of the purpose of the fees. In light of the PUC's investigation of local governments' attempts to produce revenue through charges imposed on public utilities, this concern is more than merely speculative. (See PUC Investigation, supra, 32 Cal.P.U.C.2d 60.)
We recognize that determining the value of a franchise may present difficulties. Unlike the cost of providing a government improvement or program, which may be calculated based on the expense of the personnel and materials used to perform the service or regulation, the value of property may vary greatly, depending on market forces and negotiations. Where a utility has an incentive to negotiate a lower fee, the negotiated fee may reflect the
2. The City's Alternative Theories To Support the Surcharge
We find the City's remaining arguments in defense of the surcharge to be without merit.
The City contends that the surcharge is not a tax imposed on ratepayers because it is a burden SCE voluntarily assumed. The terms of the 1999 agreement belie the contention that SCE assumed a burden to pay the surcharge. The 1999 agreement states that SCE "shall collect" the surcharge from all SCE customers within the City, and the collection shall be based on electricity consumption. Arguably, these provisions are ambiguous as to whether the mandatory language imposes a duty to collect the surcharge, or imposes a duty, if it collects the surcharge, to apply it to all customers within the City based on consumption. However, the next paragraph of the 1999 agreement refers to "[t]he conditions precedent to the obligation of [SCE] under this Section 5 to levy, collect, and deliver to City the [surcharge]." In addition, the parties stipulated that "[t]he SCE assessments, collections and remittance of the [surcharge] were required by Santa Barbara Ordinance 5135." Finally, as noted above, public utilities are allowed to pass along to their customers expenses the utilities incur in producing their services, and SCE could terminate the 1999 agreement if the PUC did not agree to the inclusion of the surcharge on customers' bills. Thus, it does not appear that SCE assumed any burden to pay the surcharge from its assets.
We also reject the City's contention that imposition of the surcharge on customers is the result of a decision by SCE and the PUC. As discussed
In a similar vein, the City contends we should look to a revenue measure's legal incidence — who is required to pay the revenues — rather than its economic incidence — who bears the economic burden of the measure. The City's contention is based on its view that SCE bears the legal incidence of the charges and, therefore, the charges are not a tax on the ratepayers. In support of its theory, the City cites case law holding that nonresidents do not have taxpayer standing under Code of Civil Procedure section 526a to challenge a jurisdiction's actions based on their payment of taxes within the jurisdiction. (See Cornelius v. Los Angeles County etc. Authority (1996) 49 Cal.App.4th 1761, 1777-1778 [57 Cal.Rptr.2d 618] [plaintiff who did not live in Los Angeles County was denied taxpayer standing to challenge a county affirmative action program based in part on payment of sales and gasoline taxes in Los Angeles County]; Torres v. City of Yorba Linda (1993) 13 Cal.App.4th 1035, 1048 [17 Cal.Rptr.2d 400] [plaintiffs who did not live within a city were denied taxpayer standing to challenge a redevelopment plan based on the payment of sales taxes in the city].) These cases would support an argument that individuals who live outside the City do not have taxpayer standing to challenge the surcharge, but they do not provide guidance concerning what constitutes a tax under various voter initiatives restricting taxation.
In any event, all that the City ultimately contends in this regard is that the economic incidence of a charge does not determine whether it is a tax. We agree. Valid fees do not become taxes simply because their cost is passed on to the ratepayers. As our discussion above reflects, the determination of whether a charge that is nominally a franchise fee constitutes a tax depends on whether it is reasonably related to the value of the franchise rights.
III. THE JUDGMENT OF THE COURT OF APPEAL
As noted above, the Court of Appeal concluded that the surcharge's primary purpose was to raise revenue for general spending purposes rather than to compensate the City for the rights-of-way. Therefore, it held, the surcharge is a tax, and requires voter approval under Proposition 218. Based on these conclusions, it reversed the trial court's grant of the City's motion for judgment on the pleadings, and "directed the trial court to grant [plaintiffs'] motion for summary adjudication because the City imposed the 1% surcharge without complying with Proposition 218." As explained below, we agree that the judgment on the pleadings must be reversed, but we conclude that plaintiffs did not establish a right to summary adjudication.
A motion for judgment on the pleadings presents the question of whether "the plaintiff's complaint state[s] facts sufficient to constitute a cause of action against the defendant." (Smiley v. Citibank (1995) 11 Cal.4th 138, 145 [44 Cal.Rptr.2d 441, 900 P.2d 690].) The trial court generally considers only the allegations of the complaint, but may also consider matters that are subject to judicial notice. (Id. at p. 146.) "`Moreover, the allegations must be liberally construed with a view to attaining substantial justice among the parties.' [Citation.] `Our primary task is to determine whether the facts alleged provide the basis for a cause of action against defendants under any theory.'" (Alliance Mortgage Co. v. Rothwell (1995) 10 Cal.4th 1226, 1232 [44 Cal.Rptr.2d 352, 900 P.2d 601].) "An appellate court independently reviews a trial court's order on such a motion." (Smiley, supra, at p. 146.)
Next we consider the Court of Appeal's direction to the trial court to grant plaintiffs' motion for summary adjudication. A plaintiff moving for summary adjudication with respect to a claim must establish each element of the claim. The burden then shifts to the defendant to demonstrate a triable issue of fact exists as to the claim. (Code Civ. Proc., § 437c, subd. (p)(1).) Like a ruling on a motion for judgment on the pleadings, a ruling on a motion for summary adjudication is reviewed de novo. (Kendall v. Walker (2009) 181 Cal.App.4th 584, 591 [104 Cal.Rptr.3d 262].)
Plaintiffs sought summary adjudication of the allegation that the surcharge is a tax. (Code Civ. Proc., § 437c, subd. (f).) They asserted that the tests set forth in Sinclair Paint, supra, 15 Cal.4th 866, remain good law, but like the Court of Appeal, they drew from Sinclair Paint the principle that if the primary purpose of a charge is to raise revenue, the charge is a tax. Plaintiffs also challenged the surcharge on the ground that it was not based on a determination that there was a reasonable relationship between the charge and any costs borne by the City. In response, the City noted that Sinclair Paint, supra, 15 Cal.4th 866, addressed the distinction between regulatory fees and taxes. The City relied instead on Santa Barbara County Taxpayer Assn., supra, 209 Cal.App.3d 940, which held that franchise fees are not "proceeds of taxes" for purposes of calculating limits on state and local appropriations under article XIII B of the California Constitution. The trial court concluded that "[b]ecause the measure of compensation [for a franchise] is a matter of contractual negotiation, the amount of the franchise fee need not be based on costs."
Although plaintiffs' allegations and the stipulated facts adequately allege the basis for a contention that the surcharge bears no reasonable relationship to the value of the franchise, plaintiffs' motion for summary adjudication did not establish this contention. As explained in our discussion of franchise fees, cities are free to sell or lease their property, and the fact that a franchise fee is collected for the purpose of generating revenue does not establish that the compensation paid for the property interests is a tax. In addition, in contrast to fees imposed for the purpose of recouping the costs of government services or programs, which are limited to the reasonable costs of the services or programs, franchise fees are not based on the costs incurred in affording a
We affirm the judgment of the Court of Appeal to the extent it reversed the trial court's judgment, and we reverse the judgment to the extent it directed the trial court to grant plaintiffs' motion for summary adjudication. The case is remanded to the Court of Appeal with directions to remand the matter to the trial court for further proceedings consistent with this opinion.
Cantil-Sakauye, C. J., Werdegar, J., Corrigan, J., Liu, J., Cuéllar, J., and Kruger, J., concurred.
CHIN, J., Dissenting. —
Since 1970, the City of Santa Barbara (the City) has imposed "a tax" on those using electricity in the City. Since 1977, the amount of the tax has been "six percent (6%) of the charges made for" energy use. (Santa Barbara Mun. Code, § 4.24.030.) In 1999, the City, in order to raise revenues for general governmental purposes, passed an ordinance — City Ordinance No. 5135 (the Ordinance) — separately requiring those receiving electricity within the City from Southern California Edison (SCE) to pay an additional 1 percent of the amount of their electrical bill. I conclude that this additional charge constitutes a tax that the City imposed in violation of the voter approval requirements of article XIII C of the California Constitution, as adopted by the voters at the November 5, 1996 General Election through passage of Proposition 218 (Proposition 218). The City's arguments to the contrary are unpersuasive.
The majority agrees that most of the City's arguments fail, but it largely agrees with the City that the charge is a "valid franchise fee ... rather than a tax." (Maj. opn., ante, at p. 257.) Putting its own gloss on the City's argument — a gloss the City expressly rejects — the majority concludes that the charge is a valid franchise fee to the extent it "bear[s] a reasonable relationship to," as alternatively phrased, "the value of the property interests transferred" (maj. opn., ante, at p. 270), "the value of the franchise conveyed" (ibid.), or "the value of the franchise rights" (id. at p. 271).
There is a fundamental problem with this approach: The electricity users upon whom the City imposes the charge, and who actually pay it, do not receive the franchise, any franchise rights, or any property interests. The Ordinance grants those valuable rights and interests only to SCE, the electricity supplier. Because the Ordinance requires SCE's customers to pay for rights and interests the City has granted to SCE, the charge does not
The majority cites no support for its conclusion that a charge imposed on and paid by someone who is granted nothing in return is not tax as to that person so long as someone else receives franchise rights for the payment. Indeed, as I explain below, the majority's analysis is inconsistent with our case law. And the line the majority draws between a valid franchise fee and a tax — whether the amount of the charge to a utility's customers bears a reasonable relationship to the value the entity receives — is problematic in many ways and renders long-standing statutory provisions regarding utility franchises vulnerable to constitutional challenge. For all of these reasons, I dissent.
I. FACTUAL AND LEGAL BACKGROUND
In 1887, SCE's predecessor, the Santa Barbara Electric Company, began supplying electricity in the City. In 1959, the City, pursuant to an agreement with SCE, adopted Ordinance No. 2728 granting SCE a 25-year franchise to use public property to transmit and distribute electricity. The ordinance required SCE to pay the City 2 percent of its "gross annual receipts ... arising from the use, operation or possession of [the] franchise," with a minimum payment of one-half percent of SCE's "gross annual receipts derived ... from the sale of electricity within the [City's] limits ... under both" the franchise being granted by the ordinance and SCE's separate and preexisting "constitutional franchise." The ordinance specified that the City was granting the franchise "under and in accordance with the provisions of [the] Franchise Act of 1937."
In 1985, after the 1959 franchise expired, the City, pursuant to another agreement with SCE, adopted Ordinance No. 4312 granting SCE a 10-year
The year after the City doubled its electricity users tax, California voters passed Proposition 13. As the majority notes, Proposition 13 amended our Constitution to limit increases in the assessed value of real property to 2 percent per year (absent a change in ownership) and to limit the rate of taxation on real property to 1 percent of its assessed value. (Maj. opn., ante, at p. 258.) In order to prevent these tax savings from being offset by increases in state and local taxes, Proposition 13 also amended our Constitution to require approval by two-thirds of the local electors of a city, county, or special district in order for such a local entity to impose or raise special taxes. (Maj. opn., ante, at p. 258.) Since the voters enacted these limits on the City's taxing powers, the City has not formally increased the percentage of its electricity users tax.
However, in 1999, the City informally and effectively increased this tax by passing the Ordinance, which codified a new franchise agreement with SCE and required users of electricity within the City to pay an additional 1 percent of their electrical bill. According to the parties' stipulated facts, this charge began as a proposal from "City staff," "[d]uring the negotiations for the new franchise agreement," to "increase [the] annual `franchise fee'" from 1 percent of SCE's gross receipts for electricity sold within the City — the amount under the expiring agreement — to 2 percent. "City staff" proposed the increase in order "to raise additional revenues for the City for general City governmental purposes." "After a period of negotiations," SCE said it would agree "to remit to the City a two percent ... franchise fee provided that the City agreed that the increase in the franchise fee would be payable to the City only if the California Public Utilities Commission ... consented to SCE's request that it be allowed to include the additional 1% amount as a customer surcharge on the bills of SCE to its customers in the City." City staff and SCE
The Ordinance granted SCE a franchise to use public property to construct and operate an electric transmission system. It provided for an: "`Initial Term'" of three years — January 1, 2000, through December 31, 2002 — and set the payment for that term at 1 percent of SCE's "Gross Annual Receipts." (Ord., §§ 3.A, 5.) The Ordinance also provided for an "`Extension Term'" beginning 60 days after the Public Utilities Commission (PUC) approved an "Extension Term Fee" and ending December 31, 2029. (Ord., § 3.B.) The total Extension Term Fee was 2 percent of SCE's Gross Annual Receipts, and comprised two elements: (1) the 1 percent Initial Term Fee; and (2) a 1 percent "Recovery Portion." (Ord., § 5.B.) Like the City's electricity users tax, the Recovery Portion was to be collected from "all electric utility customers served by [SCE] within the boundaries of the City" and was "based on consumption or use of electricity." (Ibid.) SCE's "obligation" was "to levy" the Recovery Portion on its customers, "collect" this payment from its customers, and "deliver" the collected amount "to [the] City." (Ord., § 5.C.) In other words, according to the parties' stipulated facts, the Ordinance "obligate[d]" all persons in the City receiving electricity from SCE "to pay" the Recovery Portion, and "require[d] [SCE] to collect" the Recovery Portion "from" its City customers "and remit [it] to" the City. The Ordinance made PUC approval of the Extension Term Fee a "condition precedent to" SCE's "obligation ... to levy, collect, and deliver to [the] City the Recovery Portion."
In April 2001, the City and SCE agreed to delay for up to two years the filing with the PUC of a request for approval of the Extension Term Fee. In December 2004, almost three years later, the City directed SCE to submit the request. During that period, the only compensation SCE paid the City for the franchise was the Initial Term Fee. SCE eventually submitted the request on March 30, 2005, asking for approval "to bill and collect from its customers within the City ... a 1.0% electric franchise surcharge to be remitted to the City by SCE as a pass-through fee, pursuant to SCE's new franchise agreement with the City." The request explained that the new franchise
In November 2005, SCE began billing the Recovery Portion to, and collecting it from, customers in the City, and remitting those revenues in their entirety to the City. At first, the City apportioned the revenues in accordance with the Ordinance, i.e., half to the City's general fund and half to a City undergrounding projects fund. In November 2009, the City directed that all revenues from the Recovery Portion be placed in its general fund without any limitation on use.
Plaintiffs Rolland Jacks and Rove Enterprises, Inc., claim that the City, by imposing the Recovery Portion through adoption of the Ordinance, violated article XIII C of the California Constitution. As here relevant, article XIII C provides that "local government[s]" may not "impose ... any general tax ... until that tax is submitted to the electorate and approved by a majority vote" (Cal. Const., art. XIII C, § 2, subd. (b)), and may not "impose ... any special tax ... until that tax is submitted to the electorate and approved by a two-thirds vote" (id., § 2, subd. (d)). Plaintiffs argue that the Recovery Portion is a tax within the meaning of these provisions and that the City violated article XIII C by imposing it without voter approval.
In opposition to this argument, the City focuses heavily on the word "impose" in California Constitution, article XIII C's provisions, asserting that the Recovery Portion was not "imposed" by the City on anyone. According to the City, the Recovery Portion is, as to SCE, a "voluntary" payment to which SCE, a "sophisticated, commercial entit[y] with substantial market power," "willingly agreed" in order "to obtain use of valuable public rights of way in its for-profit business." As to SCE's customers, SCE and/or the PUC "imposed" the Recovery Portion, and the City "played no part in" the decisions of those entities.
The majority correctly rejects these arguments, explaining that the terms of the agreement and the Ordinance require that the Recovery Portion "be collected from" SCE's customers and impose on SCE only an obligation "to collect the charge from its customers and remit the revenue to the City." (Maj. opn., ante, at p. 271.) Indeed, the City's arguments necessarily fail in light of its stipulation that "[p]ursuant to City Ordinance [No.] 5135, all
In a related argument, the City asserts that the Recovery Portion is not "imposed" on SCE's customers because its "legal incidence" — i.e., the "legal duty to pay it" — "is on SCE." According to the City, that SCE's customers in fact "ultimately bear" the Recovery Portion's "economic burden" is irrelevant because, under the law, "whether a charge is a tax is determined by its legal incidence."
The City is correct to focus on the Recovery Portion's legal incidence, but its argument fails because, under the Ordinance, both the legal incidence and the economic burden of the Recovery Portion fall on SCE's customers, not on SCE. The rule in California is that where the government mandates payment of a charge by one party, and imposes a duty on some other party to collect the payment and remit it to the government, the legal incidence of the charge falls, not on the party collecting the payment — who acts merely as the government's collection agent or conduit — but on the party from whom the payment is, by law, collected. (Western States Bankcard Assn. v. City and County of San Francisco (1977) 19 Cal.3d 208, 217 [137 Cal.Rptr. 183, 561 P.2d 273] (Western States) [tax ordinances lacked "mandatory pass-on provisions" that would "shift the legal incidence of the tax"]; Bunker Hill Associates v. City of Los Angeles (1982) 137 Cal.App.3d 79, 87 [186 Cal.Rptr. 719] ["`the legal incidence of a tax does not necessarily fall on the party who acts as conduit by forwarding collected taxes to the state,'" and charge imposed on tenants, that lessors were legally required to collect and transmit to the government, was not a tax on lessors]; Occidental Life Ins. Co. v. State Bd. of Equalization (1982) 135 Cal.App.3d 845, 850 [185 Cal.Rptr. 779] (Occidental Life) [whether "`pass on'" of charge is "mandatory" is "legally significant" in determining who bears the charge's "legal incidence"].) Consistent with this rule, in City of Modesto v. Modesto Irrigation Dist. (1973) 34 Cal.App.3d 504, 506 [110 Cal.Rptr. 111], the court held that a monthly charge imposed by the City of Modesto for use of water, gas, electricity, and telephone service, "paid by the service user (the consumer), but ... collected by the service supplier," was "a tax against the utility user, not the utility supplier."
Under these principles, the legal incidence of the Recovery Portion falls on SCE's customers, not, as the City asserts, on SCE. As noted above, the City has stipulated that SCE's customers "are obligated to pay" the Recovery Portion "[p]ursuant to City Ordinance [No.] 5135," and that SCE's duty under the Ordinance is "to collect" the Recovery Portion "from all SCE electricity users in the City and remit those funds to the City." The terms of the Ordinance and the representations in SCE's application for PUC approval,
The City's final argument is that the Recovery Portion is a "franchise fee" — i.e., "a bargained-for price for use of the City's rights of way in SCE's search for profits" — and that under California case law, a franchise fee "is not a tax." The majority essentially agrees with the City. "Historically," the majority begins, "franchise fees have not been considered" by California courts to be "taxes," and "[n]othing in Proposition 218 reflects an intent to change" this rule. (Maj. opn., ante, at p. 262.) Putting its own gloss on the City's argument, the majority then concludes that the Recovery Portion is a "franchise fee" and not a tax insofar as its amount "is reasonably related to the value of the franchise." (Maj. opn., ante, at p. 257.) "To the extent [it] exceeds any reasonable value of the franchise," it "is a tax" rather than a "franchise fee," because "the excessive portion ... does not come within the rationale that justifies the imposition of fees without voter approval." (Id. at p. 269.)
Whether a charge constitutes a "tax" for purposes of the Constitution "is a question of law for the appellate courts to decide on independent review of the facts." (Sinclair Paint Co. v. State Bd. of Equalization (1997) 15 Cal.4th 866, 874 [64 Cal.Rptr.2d 447, 937 P.2d 1350].) In answering this question, we should not, as the majority appears to do, rely on the circumstance that the charge is "nominally a franchise fee." (Maj. opn., ante, at p. 271.) In determining whether a charge is a tax, courts "are not bound by what the parties may have called the liability" (Bank of America v. State Bd. of Equal. (1962) 209 Cal.App.2d 780, 801 [26 Cal.Rptr. 348] (Bank of America)), and are "not to be guided by labels" (Beamer v. Franchise Tax Board (1977) 19 Cal.3d 467, 475 [138 Cal.Rptr. 199, 563 P.2d 238]) or "bare legislative assertion" (Flynn v. San Francisco (1941) 18 Cal.2d 210, 215 [115 P.2d 3]). Instead, their "task is to determine the true nature" of the charge (Beamer v. Franchise Tax Board, supra, at p. 475), based on "`its incidents'" and "`the natural and legal effect of the language employed in'" the enactment (Ainsworth v. Bryant (1949) 34 Cal.2d 465, 473 [211 P.2d 564]). This general principle is especially applicable here for two reasons: (1) Proposition 218's "main concern" was "perhaps" the "euphemistic relabeling" of taxes "as `fees,' `charges,' or `assessments'" (Apartment Assn. of Los Angeles County, Inc. v. City of Los Angeles, supra, 24 Cal.4th at p. 839), and (2) Proposition 218 expressly required courts to "liberally construe" article XIII C "to effectuate its purposes of limiting local government revenue and enhancing taxpayer consent" (Prop. 218, § 5, reprinted at 1 Stats. 1996, p. A-299).
Tulare makes clear that the Recovery Portion, irrespective of its relationship to the value of the franchise SCE received, is not a franchise fee for purposes of the rule that a franchise fee is not a tax. As explained above, the Recovery Portion is not a charge that "the holder of the franchise" — SCE — "undert[ook] to pay." (Tulare, supra, 188 Cal. at p. 670.) Indeed, as the majority correctly states, the terms of the Ordinance "belie" this characterization, establishing instead that SCE did not "assume a burden to pay" the Recovery Portion. (Maj. opn., ante, at p. 270.) And the City's factual stipulation that the Ordinance "obligated" SCE's customers "to pay" the Recovery Portion conclusively establishes that their "obligation to pay" the Recovery Portion was, in fact, "imposed by law," not by their "acceptance of the franchise." (Tulare, at p. 670.) Indeed, SCE's customers did not receive a franchise, which, as the majority explains, "is a privilege granted by the government to a particular individual or entity rather than to all as a common right." (Maj. opn., ante, at p. 254, fn. 1.) The Ordinance granted them no legal right to make any use of the City's property or to conduct a franchise for supplying electricity. In short, the Recovery Portion simply lacks the incidents of a franchise fee for purposes of the rule that franchise fees are not taxes. "To call it a fee" rather than a tax is simply "a transparent evasion." (Fatjo v. Pfister (1897) 117 Cal. 83, 85 [48 P. 1012].)
Although the majority recognizes the principles underlying the rule that franchise fees are not taxes, it fails to apply them. The majority observes that "a franchise fee is the purchase price of the franchise" (maj. opn., ante, at p. 262), but it does not explain how the Recovery Portion, which the City has imposed on someone other than the purchaser of the franchise, meets this test. The majority explains that "sums paid for the right to use a jurisdiction's rights-of-way are fees rather than taxes" because "the receipt of an interest in public property justifies the imposition of a charge on the recipient to compensate the public for the value received." (Id. at p. 267, italics added.)
According to the majority, in determining whether the Recovery Portion is a franchise fee rather than a tax, it is irrelevant that SCE's customers "pay the surcharge" while "SCE receives the franchise rights," that SCE's customers "do not receive any value in exchange for their payment," and that the City is requiring SCE's customers "to compensate the City for the utility's use of public property." (See maj. opn., ante, at pp. 268-269, italics added.) The stated basis for this view is that "publicly regulated utilities are allowed to recover their costs and expenses by passing them on to their ratepayers," and are therefore merely "conduit[s] through which government charges are ultimately imposed on ratepayers." (Ibid.) Given this circumstance, the majority reasons, it makes no difference that the Recovery Portion is an obligation the City imposes directly on SCE's customers, instead of a contractual obligation of SCE that SCE "unilateral[ly]" decides to pass on to its customers. (Id. at p. 269.) The City, the majority asserts, should not be "precluded" from showing that the Recovery Portion bears a reasonable relationship to the value of the property interest it conveyed to SCE merely because the Ordinance expressly mandates what would have been "implicit" had SCE agreed to pay the Recovery Portion itself — "that once the PUC gave its approval, SCE would place the surcharge on the bills of customers within the City." (Ibid.)
For a number of reasons, I disagree. First, the majority's view is inconsistent with our case law, which, as explained above, establishes that a franchise fee — as distinguished from a tax — is a "charge [that] the holder of the franchise undertakes to pay," i.e., an "obligation to pay" that is "purely a matter of contract" and that is "imposed" on the payor "not ... by law but by his acceptance of the franchise." (Tulare, supra, 188 Cal. at p. 670, italics added.) As also explained above, the Recovery Portion is not a charge that "the holder of the franchise undert[ook] to pay," and it is imposed by the City on SCE's customers "by law" instead of by their "acceptance of [any] franchise." (Ibid.) The majority cites no authority for its conclusion that a
Second, the majority fails to explain why SCE's purported unfettered ability to pass on to customers charges it contractually agrees to pay means that whether the charge is a tax on its customers depends on the value of the franchise to SCE. Had SCE contractually agreed to pay the Recovery Portion itself, it could not assert that the charge was a tax to the extent it exceeds the value of the franchise rights. As we have explained, because a municipality's power to permit utilities to use public property "on such terms as are satisfactory to it" includes the power to "`require the payment of such compensation as seems proper,'" courts do not "question whether or not the amount charged is a reasonable charge." (Sunset Tel. and Tel. Co. v. Pasadena (1911) 161 Cal. 265, 285 [118 P. 796] (Sunset).) And if, as the majority asserts, the utility in this scenario is merely "a conduit through which government charges are ultimately imposed on ratepayers" (maj. opn., ante, at p. 269), then there is no logical reason why the value of the benefit to the utility would be the proper measure of whether the charge is a tax as to the utility's customers. Nor is there any logical reason for making this the test where, as here, a municipality imposes the charge directly on those customers.
Indeed, the majority's conclusion in this regard is inconsistent with its own discussion of the very case law on which it principally relies. As the majority explains, our prior decisions identify "categories of charges" that constitute valid "fees rather than taxes" for purposes of applying Proposition 13. (Maj. opn., ante, at p. 260.) "The commonality among these categories," the majority states, "is the relationship between the charge imposed and a benefit ... to the payor." (Id. at p. 261, italics added.) For example, the majority observes, "we [have] explained ... that `if an assessment for ... improvements provides a special benefit to the assessed properties, then the assessed property owners should pay for the benefit they receive.'" (Ibid., italics added.) Under these cases, the majority states, a purported fee is a tax for
A closer look at our assessment decisions reveals that a nexus between the benefit conferred and the person paying the charge is a prerequisite to concluding that the charge is not a tax. As we explained over 100 years ago, "the compensating benefit to the property owner" on whom the government imposes a charge for an improvement "is the warrant, and the sole warrant, for" finding that the charge is a valid assessment rather than a tax. (Spring Street Co. v. City of Los Angeles (1915) 170 Cal. 24, 30 [148 P. 217].) Thus, "if we are not able to say that the owner for the specific charge imposed is compensated by the increased value of the property, then most manifestly we have a special tax." (Ibid.) In other words, an assessment levied upon property owners "without regard to the benefit actually accruing to them by means of the improvement, is a tax." (Creighton v. Manson (1865) 27 Cal. 613, 627, italics added.) The majority purports to reaffirm and follow these decisions insofar as they set forth "the characteristics of fees that may be imposed without voter approval" (maj. opn., ante, at p. 261), but it then eliminates the principal characteristic it itself identifies: "the relationship between the charge imposed and a benefit ... to the payor" (ibid., italics added).
The charge the majority here says is a valid fee differs in another significant respect from the charges we have previously held to be permissible fees instead of taxes: the measure of what is permissible. As the majority observes, as to all of the charges for benefits we have dealt with in prior cases, we have held that they are "taxes" to the extent they "exceed the reasonable cost of the activity on which they are based." (Maj. opn., ante, at p. 261, italics added.) This is true even of property assessments; although a given property may be assessed based on the proportionate share of the benefit it receives from a government improvement, the assessment is a valid fee rather than a tax only to the extent it does not exceed the proportionate cost of the improvement to the government. (Knox v. City of Orland (1992) 4 Cal.4th 132, 142, fn. 15 [14 Cal.Rptr.2d 159, 841 P.2d 144].) In other words, "an assessment is not measured by the precise amount of special benefits enjoyed by the assessed property," but "reflects costs allocated according to relative benefit received." (Town of Tiburon v. Bonander (2009) 180 Cal.App.4th 1057,
The majority here affords different treatment to the general revenue-raising measure at issue. It holds that cost is irrelevant, and that a charge labeled a "franchise fee" becomes a tax as to a utility's customers only to the extent the charge exceeds "the value" to the utility of "the property interests transferred" (maj. opn., ante, at p. 270), "the value of the franchise conveyed" (ibid.), or "the value of the franchise rights" (id. at pp. 270-271). Contrary to the majority's analysis, our prior decisions clearly do not provide support for the line the majority draws between a valid fee and a tax, or for its conclusion that the method the City used here to raise money for general purposes is, uniquely, not a tax. And because there is no existing authority for the majority's newly minted approach, the majority is incorrect that focusing on the fact the Recovery Portion is directly imposed by the City on SCE's customers "preclude[s]" the City from doing something it otherwise could, i.e., proving the charge is a fee rather than a tax by "establishing that [it] bears a reasonable relationship to the value of the property interest it conveyed to SCE." (Id. at p. 269.)
Third, there is no factual or legal basis for the majority's assumption that a utility, through price increases, necessarily can and will pass on to its customers charges it is legally required to pay. With respect to the sales tax, we have observed that a retailer "may choose simply to absorb the sales tax" imposed by statute instead of passing it on to its customers. (Loeffler v. Target Corp. (2014) 58 Cal.4th 1081, 1103 [171 Cal.Rptr.3d 189, 324 P.3d 50].) A utility could make a similar business decision with respect to higher payments it has become contractually obligated to pay in exchange for its right to operate; it could, for reasons related to the marketplace, simply decline to pass the increase on to its customers.
Moreover, in order to pass charges on to customers through a price increase, a utility would have to apply for and obtain approval from the PUC. Under our Constitution, the PUC has both the power and the duty to "fix rates" for California public utilities (Cal. Const., art. XII, § 6), such that the
In one especially relevant example of its exercise of this power, the PUC disallowed, for purposes of a requested rate increase, contractual payments a utility made to its controlling parent company for various services. (Pac. Tel., supra, 34 Cal.2d at p. 825.) The contract between the two entities specified that the amount of the payment was 1 percent of the utility's gross receipts. (Ibid.) In disallowing these payments as a basis for a rate increase, the PUC reasoned that the utility "exercise[d] no real, untrammeled and independent judgment in its negotiations" with its parent company and that "arms-length bargaining" between the two entities was "not, in fact, engaged in, although... in some instances" they had "made [an attempt] to simulate the same." (Dec. No. 42529 (1949) 48 Cal.P.U.C. 461, 470.) The PUC further reasoned that the formula for the amount of the payments — a "percentage of gross revenues" — was "a false measuring rod": it was "totally unrealistic and [bore] no rational relationship to the reasonable cost of services rendered, reflect[ed] no causal or proximate connection or relationship between payments made thereunder and reasonable value of the services rendered and [was] neither supported by law, logic nor elementary common sense." (Id. at p. 472.) The utility's "payment of these excessive amounts," the PUC concluded, did not support the utility's request for a rate increase. (Ibid.)
Nothing would preclude the PUC from finding, for similar reasons, that it would not be just and reasonable for a utility, having agreed to pay a city double what it had paid for many years as compensation for using public property, to raise its rates in order to recoup from customers the doubled cost to which it agreed. Nor would anything preclude the PUC from finding that where the utility's duty to pay the increase was expressly made contingent on the utility's ability to recoup the expense from its customers, the increase was not "based on bona fide negotiations." (Maj. opn., ante, at p. 270.) Indeed, the majority rightly questions whether "the negotiations" here, which placed responsibility for paying the Recovery Portion on SCE's ratepayers and imposed no financial responsibility for that charge on SCE, reasonably reflect "the value" of what SCE received from the City. (Id. at p. 271.) And where the payment is set as a percentage of a utility's gross annual receipts, the PUC could also find that the formula is "a false measuring rod," i.e., it "bears
Indeed, the facts in the record indicate that SCE and the City did not share the majority's assumption. As the majority explains, the record shows "that SCE was not willing to assume the burden of paying" the additional 1 percent the City demanded, and "was willing only to collect the charge from its customers and remit the revenue to the City." (Maj. opn., ante, at p. 271.) It is for this reason that the agreement and the Ordinance provided that "the charge would be collected from ratepayers" and "would become payable only if SCE obtained the PUC's consent to include the surcharge as a customer surcharge." (Maj. opn., ante, at p. 271.) Moreover, as explained above, although the agreement required SCE to obtain PUC approval by December 31, 2002, SCE and the City agreed not even to apply for PUC approval until over two years later, in March 2005. According to a letter from the City to SCE, the delay was "[b]ased" in part "upon the tremendous uncertainty associated with the end of the [California] deregulation transition period ... and the volatility and uncertainty of rates." Were it true, as the majority assumes, that SCE necessarily could have passed on the Recovery Portion to its customers, there would have been no reason for SCE to have refused legal responsibility for the proposed charge, for SCE and the City to have made the Recovery Portion contingent on "the PUC's consent to include the surcharge as a customer surcharge" (maj. opn., ante, at p. 271), or for SCE and the City to have delayed submission of the application for PUC approval. In other words, as plaintiffs assert, the facts in the record indicate that, unlike the majority, SCE and the City did not consider the PUC to be "a mere rubber stamp of financial burdens" SCE and the City "might try to impose upon utility users."
Fourth, the majority's approach, in addition to being inconsistent with our case law, is fundamentally inconsistent with Proposition 218's purpose. The majority, partially quoting the first two sentences of Proposition 218's findings and declarations, suggests that the voters were "concern[ed] with excessive fees, not fees in general." (Maj. opn., ante, at p. 262.) But the
Fifth, the majority's concern about the possible treatment of charges passed on to ratepayers by a utility's "unilateral decision" does not justify its refusal to recognize the significance under our case law of the fact that SCE's customers do not receive franchise rights in exchange for paying the Recovery Portion, and its focus instead on the value of those rights to an entity that is not paying for them. (Maj. opn., ante, at p. 269.) Initially, the facts of this case do not present that scenario, and holding here that the Recovery Portion is a tax rather than a franchise fee because SCE's customers receive no franchise rights in return for their payment would not preclude ratepayers from arguing in a future case that we should expand California Constitution, article XIII C's reach to franchise charges that a utility, having contractually agreed to pay, unilaterally decides to pass on to its customers. The majority's concern about this scenario does not justify its contraction of article XIII C so as to make it inapplicable where it clearly does and should apply: direct government imposition of a charge on those who receive nothing in return.
In any event, the majority's analysis is contrary to decades of California case law establishing that, for purposes of determining whether a charge is a tax or a fee as to the payor, charges passed on to the payor by the unilateral
Indeed, the effect of the majority's approach is to allow claims that this long-standing and unbroken line of precedent precludes. Under that precedent, a charge that is not imposed by the government on the payor — either directly or by inclusion of a mandatory pass-on provision — and that is passed on to the payor by the unilateral and discretionary decision of some third party, is not a tax, even if it is "implicit" (maj. opn., ante, at p. 269) that the third party on whom the charge is imposed will pass it on to the payor. Notably, in Howard Jarvis Taxpayers Assn. v. City of Fresno (2005) 127 Cal.App.4th 914, 927 [26 Cal.Rptr.3d 153], the court applied this principle to hold that a charge the City of Fresno had imposed on a utility, and that the utility had passed on to its customers, was not "a tax on utilities consumers" within the meaning of California Constitution article XIII C. The court explained that "[a]n exaction imposed on any particular ratepayer in an amount established in the discretion of the utility ... is not an exercise of the city's taxing power." (Howard Jarvis, at p. 927.) Applying this principle, it held that the charge at issue was "not a tax upon consumers of utilities" because the legislation establishing it placed "the `levy' directly upon the utility" and did "not require" the utility "to recover the ... fee from ratepayers in any particular manner." (Ibid.)
Courts applying the federal Constitution's prohibition on state taxation of the federal government have used the same analysis specifically with respect to so-called utility franchise fees. In U.S. v. City of Leavenworth, Kan. (D.Kan. 1977) 443 F.Supp. 274, 280-281, a city ordinance provided that an electrical
Following this decision, in U.S. v. State of Md. (D.Md. 1979) 471 F.Supp. 1030, 1032, another federal court rejected the claim of the United States, again as a purchaser of electricity, that an environmental surcharge the State of Maryland had imposed was a constitutionally invalid tax on the federal government. Although agreeing that the surcharge was a tax — i.e., "an `enforced contribution to provide for the support of [the] government'" (id. at p. 1036) — the court denied relief because the surcharge was not a tax on the federal government (id. at pp. 1037-1041). By statute, the court first reasoned, the surcharge was "directly imposed on the electric companies" and was their "`direct obligation.'" (Id. at p. 1038.) As to whether the surcharge was a tax on customers of the electric companies, the determinative factor, the court explained, was whether the law "required [the companies] to pass [the charge] on to their customers for payment." (Ibid., italics added.) The surcharge was not a tax on the federal government, the court then held, because the utilities, although "[authorized] ... to pass [it] on to their customers" (id. at p. 1039), were "not required" by law to do so (id. at p. 1038.) Notably, in reaching this conclusion, the court both followed the Kansas franchise fee decision discussed above and distinguished a Minnesota decision holding that "a franchise fee imposed" upon a gas company by a city was an unconstitutional tax "as applied to purchases of natural gas by an agency of the United States ... because the city required the utility to add the franchise tax to its rates." (Id. at p. 1040, italics added.)
This long-standing and consistent precedent from both California and elsewhere no doubt explains why, as the majority notes, "plaintiffs do not contend" in this case that the Initial Term Fee "is a tax" that was imposed in violation of the state Constitution. (Maj. opn., ante, at p. 269.) However, under the majority's holding that charges passed on by utilities are the same, for tax purposes, as charges imposed directly on ratepayers, plaintiffs now can, and surely will, make this argument. Indeed, the majority expressly states that the differences between the Initial Term Fee and the Recovery
In the same way, the majority's holding renders both the Broughton Act and the 1937 Act vulnerable to constitutional challenge. Notwithstanding our holding almost 100 years ago that the fees utilities must pay under the Broughton Act are not taxes under the state Constitution (Tulare, supra, 188 Cal. at p. 670), under the majority's holding, both these payments and similar payments required by the 1937 Act are invalid taxes to the extent they are passed on by utilities to customers through rates and they exceed the value of the franchise rights conveyed. Notably, nothing suggests that these statutorily established charges reflect the value of a franchise. Moreover, the majority's holding that the Constitution requires courts to determine the value of a franchise would seem to render the 1937 Act unconstitutional insofar as it provides that "[n]o franchise granted under this chapter shall ever be given any value before any court ... in any proceeding of any character in excess of the cost to the grantee of the necessary publication and any other sum paid by it to the municipality therefor at the time of acquisition." (§ 6263.)
Finally, as a practical matter, the majority's approach is problematic in a number of ways. The majority mentions one: the inherent "difficulties" in "determining the value of a franchise." (Maj. opn., ante, at p. 269.) The majority references several factors it says may bear on value: "market forces" and "bona fide negotiations." (Id. at pp. 269-270.) It suggests there may be "other indicia of value" (id. at p. 270), but it declines to offer any guidance as to what those other indicia might be, instead "leav[ing] th[e] issue to be addressed by expert opinion and subsequent case law" (id. at p. 270, fn. 11). But as we noted over 100 years ago, "[t]here are few subjects on which witnesses are more likely to differ than that of the value of property, and few are more difficult of satisfactory determination." (O'Hara v. Wattson (1916) 172 Cal. 525, 528 [157 P. 608].) We also long ago recognized that "the value of franchises may be as various as the objects for which they exist, and the methods by which they are employed, and may change with every moment of time." (San Jose Gas Co. v. January (1881) 57 Cal. 614, 616.) There are also uncertainties
Perhaps to justify its failure to offer any real guidance on this admittedly "difficult" issue (maj. opn., ante, at p. 269), the majority notes that "[t]he parties' briefs do not consider the means by which franchise rights might be valued." (Id. at p. 270, fn. 11.) But there is a simple explanation for this silence: Neither party has suggested that the value of the franchise should even be a consideration in determining whether the Recovery Portion is a tax or a fee. On the contrary, upon the court's inquiry at oral argument, the City expressly disclaimed this approach. It asserted that, as to fees voluntarily negotiated for the use of government property, courts should not be concerned about whether the fee is reasonably related to the benefits, and should not second-guess what a utility is willing to pay for its use of public property. Nor, the City argued, are courts well positioned to second-guess the economic decisions of other branches of government. The City also noted, like the majority, the inherent difficulties of making this kind of determination, asking rhetorically, "what's the fair and rational rate of a parking meter," or "to rent a duck boat on the lake at the county fairgrounds," or "to rent a meeting room at the community center?" Bringing the question back to the facts of this case, the City rightly asked, "What are the limits of [a municipality's] ability to monetize its rights of way?" Instead, the City urges us to follow "well settled" law by focusing on the "legal incidence" of the Recovery Portion, "i.e., who has a legal duty to pay it." This test, the City asserts, is "logical" and "predictable," is "within the competence of courts to distinguish fees from taxes," and "better serves the needs of courts and the society they serve."
There are myriad other ways in which the majority's approach — determining whether the amount of the charge bears a reasonable relationship to the value of the franchise conveyed — is problematic. It essentially requires courts to determine the adequacy of consideration, in contravention of the well-established "`general contract principle that courts should not inquire into the adequacy of consideration.'" (Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 679 [254 Cal.Rptr. 211, 765 P.2d 373], italics added; see Whelan v. Swain (1901) 132 Cal. 389, 391 [64 P. 560] ["`The law does not weigh the quantum of the consideration'"].) The majority's approach also essentially transfers responsibility for determining the reasonableness of a utility's rates from the PUC to the courts, thus usurping the PUC's constitutional power and duty to "fix [utility] rates" (Cal. Const., art. XII, § 6) and supplanting the PUC's far superior ability, relative to courts, to review the reasonableness of rates (Hansen v. City of San Buenaventura (1986) 42 Cal.3d 1172, 1183 [233 Cal.Rptr. 22, 729 P.2d 186] ["judicial review of rates is not comparable to regulation by the P.U.C."]; County of Inyo v. Public Utilities Com. (1980) 26 Cal.3d 154, 159-160 [161 Cal.Rptr. 172, 604 P.2d 566] ["PUC maintains an expert, independent staff to investigate rate requests" and "renders an independent decision on each record that it examines," whereas courts "must limit ... review to the rates established by the involved utility and must depend upon the expert testimony presented by the parties"]; Sale v. Railroad Commission (1940) 15 Cal.2d 612, 617-618 [104 P.2d 38]).
Given these difficulties and the lack of authority for the majority's approach, I disagree with the majority's conclusion that the Recovery Portion is not a tax unless it exceeds the reasonable value of the franchise. Instead, based on long-standing precedent, the purpose of Proposition 218 to limit local government revenue and enhance taxpayer consent, and the command