A much-anticipated state Supreme Court ruling could transform failure into success for two measures on Tuesday’s ballot that could bring a combined convention center annex and Chargers stadium to downtown San Diego.

But the court might not rule the way supporters of Measures C and D want, and a positive ruling wouldn’t help the measures if the court doesn’t take the unusual step of saying the ruling applies retroactively.

The ruling also isn’t expected to come until late 2017 or sometime in 2018, which might be too late to matter for either measure.

Despite those potential pitfalls, the Supreme Court’s ruling in California Cannabis Coalition v. City of Upland at least has the potential to allow one of the measures to be deemed a success without achieving the daunting task of being approved by two-thirds of voters.


And it might be the only chance for the two measures, with recent polls showing each is likely to fall far short of 66.7 percent approval.

The Chargers apparently see some potential, because the team filed an argument in the case this week.

A positive ruling, even if the court decides it doesn’t apply retroactively, would make it much easier for the Chargers to successfully get a subsequent stadium ballot measure passed.

Measure D co-author Cory Briggs says he doesn’t plan to file any arguments in the case and that he’s confident he can litigate his way to a lower approval threshold without help from the Upland case.


The case, which could have a wide impact across the state, deals with whether tax increases placed on a ballot by citizen’s initiative need approval only by a simple majority of voters, instead of the two-thirds approval required for tax increases placed on a ballot by elected leaders.

Veering from what’s been California law since state voters approved Proposition 218 in 1996, the Fourth District Court of Appeal ruled in March that citizen’s initiatives are subject to the lower approval threshold.

In late June, the Supreme Court decided to review the appeals court ruling and “de-publish” it, restoring the two-thirds threshold until the high court makes a ruling.

Because both Measure C and D would raise hotel taxes and were placed on the ballot by citizen’s initiative, such a ruling could be crucial if either is approved by a simple majority of voters but not the two-thirds of voters that City Attorney Jan Goldsmith says is required for passage.


Goldsmith said this week that even a positive ruling won’t necessarily help because the court may not apply it retroactively.

“Normally a Supreme Court decision would not be retroactive because it creates a can of worms,” said Goldsmith, adding that it’s particularly unlikely when a case is setting a key precedent. “These precedential cases usually just go forward.”

Goldsmith said there is some chance the Supreme Court would choose to specifically include Measure C and D in its ruling, partly because they were placed on the ballot between the appeals court ruling and when the Supreme Court will issue its decision.

He requested in July that the Supreme Court take jurisdiction over the approval thresholds for Measure C and D, because the fates of both measures could be so intertwined with the Upland case. But the court denied that request in August.


“If they had taken jurisdiction, at least they could have made it retroactive with regard to this election,” Goldsmith said this week.

He said whether the ruling is made retroactive could depend on whether the Chargers, Briggs or someone else files a lawsuit in Superior Court challenging the city for declaring that a simple majority wasn’t adequate for approval.

That would require one of the two measures to get support from a simple majority on Tuesday, and such a lawsuit couldn’t be filed until the City Council certifies the election results on Dec. 12.

“If a case is pending, the Supreme Court ruling would likely cover it,” Goldsmith said. “If there is no case pending challenging our decision, then the chances are the ruling will not be retroactive.”


Patrick Whitnell, general counsel for the League of California Cities, said there’s almost no chance the Supreme Court would make its ruling apply any farther back than Measures C and D.

“I think the court would want to avoid a situation where you’d be reviving some number of ballot measures long after the election has been concluded,” he said.

“I think the thing to keep in mind is if you had a special tax on a ballot by voter initiative that everyone thought required a two-thirds vote and it fell short of that, I don’t think the court’s decision upholding the court of appeal would affect that result,” Whitnell said.

Whitnell said cities across California are more concerned about the effect of the Upland Case on the future.


“It’s more on how cities and other local agencies are going to deal with voter initiatives in the future when they have a revenue-raising component,” he said. “Is the court going to change what the law was or is the court just going to confirm how everyone has been interpreting Prop. 218.”

The ruling could lower voter approval to a simple majority for school bond measures, sales tax hikes and other increases as long as such proposals began with a citizens’ initiative.

The league filed an argument in the case urging the Supreme Court to overturn the appeals court decision.

“Until the Court of Appeals decision in this case, it has been black letter law that those rules apply regardless of whether a tax originates with the local agency’s elected governing body or with the electors themselves by way of initiative,” the league wrote. “Yet, despite the clear language of the Constitution, the Court of Appeal held that it was the will of the people to exempt taxes proposed by initiative from the constitutional limitations applicable to identical legislative actions taken by a city council. The Court of Appeal clearly erred in doing so.”


In contrast, the argument filed by the Chargers urges the Supreme Court to uphold the appeals court decision and focuses on the power the state constitution grants to citizens and voters.

“The initiative power stands at the heart of California’s unique constitution,” wrote Fred Rowley, an attorney for the team. “While many state constitutions derive the elected government’s power from the people, the California constitution goes further, enshrining the people’s power to exercise their sovereignty directly through the initiative process. Central to that initiative power is the authority to control and adjust taxes.”

Whitnell said it was hard to say whether the court would include Measures C and D in its ruling if it upholds the appeals court decision, but said Goldsmith’s request this summer makes it certain the justices are aware of the connection.

“Certainly they know about Measures C and D because San Diego submitted a letter to the court asking for expedited review,” he said.


He also said those two measures are the only ones he’s aware of that would be affected by the Upland case, making it less messy for the Supreme Court ruling to include them.

However, if the court doesn’t rule until late next year or 2018 as expected, several more elections could happen on measures placed on ballots by citizen’s initiative.

“It’s hard to tell, but this could be a two-year case or even a three-year case,” he said.

Goldsmith said such a lengthy process might prompt the Chargers to opt out, noting that the team has a Jan. 15 deadline to exercise an option from the NFL to join the Los Angeles Rams in Inglewood if Measure C fails.


And even if the team chooses to stay in San Diego, Goldsmith said they may prefer to negotiate a new ballot measure with Mayor Kevin Faulconer than be tied up in court.

They could protect their interests by filing a lawsuit against the city citing Upland and simultaneously negotiate with Faulconer, Goldsmith said.

If both Measures C and D are approved by a simple majority of voters but not two-thirds of voters, the measure that got the highest percentage of votes would stand to benefit from an Upland ruling.

But Briggs, the Measure D co-author, said he plans to file suit on different grounds than Upland if Measure D gets a simple majority, contending his measure doesn’t need two-thirds approval because it’s a general tax not a tax for a specific purpose.


Goldsmith has concluded Measure D is a tax for a specific purpose.

He has also raised other legal questions about the measure that could prompt a court to rule the measure illegal, clearing the way for Measure C to potentially benefit from a Supreme Court ruling even if Measure D is approved by a higher percentage of voters.

david.garrick@sduniontribune.com (619) 269-8906 Twitter:@UTDavidGarrick