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Proposition 39

Proposition 39:
School Facilities 55% Local Vote

By Jason M. Ackerman

Copyright © 2000 by University of the McGeorge School of Law

J.D., McGeorge School of Law, University of the Pacific
to be conferred December 2001
B.A., Philosophy, San Francisco State University, 1996

Table of Contents

I. Executive Summary
II. The Law
III. Drafting Issues
IV. Constitutional Analysis
V. Public Policy Considerations
VI. Conclusion

I. Executive Summary

Property tax is limited by the California Constitution to one percent of the property value. Property taxes may only exceed this limit to pay for (1) local government debts approved by the voters before July 1, 1978 or (2) bonds to buy or improve real property that are approved after July 1, 1978 by a two-thirds majority of voters. Proposition 39, if passed, will change the State Constitution to lower voting requirements for passage of local school bonds to 55 percent and change the existing statutory law regarding charter school facilities. The capital raised by such bonds can only be used for the construction or reconstruction of school facilities in K-12 school districts, community college districts, and county offices of education. The capital would also be used to give public charter school facilities equal footing in the development of school facilities. A similar initiative, Proposition 26, failed in March of 2000 by a vote of forty-nine percent, to fifty one percent. Proponents of Proposition 39 attribute the failure to a lack of articulated accountability measures. Proposition 39, they contend, is an improvement over Proposition 26 because new accountability measures, which are contingent on the success of Proposition 39, have been developed, articulated and passed by the California Legislature. Opponents, on the other hand, attribute the failure of Proposition 26 to the will of the California voters. More specifically, the opponents assert that California voters opposed Proposition 26 because California homeowners feared being taxed out of their homes. Opponents contend that Proposition 39 poses the same threat to homeowners. Proposition 39 does not raise significant constitutional issues, however, public policy issues are implicated because Proposition 39 impacts the sensitive subjects of education and taxation. To be sure, Proposition 39 would raise taxes if passed. However, it would also likely improve California's public school system.

II. The Law

A. Current Law
1. Article XIII A, Section 1 of the California Constitution

Article XIII A of the California Constitution relates directly to tax limitations. (Cal. Const. art. XIII A [West 2000].) Section 1 of Article XIII, adopted by the voters in 1978 as Proposition 13, provides tax limitations on how much a county can levy against real property owners. (Id. at § 1.) Specifically, this section provides for limitations on the ad valorem taxation of real property. (Id.)

Ad valorem taxation is an annual fee based upon a percentage of the value of the property subject to taxation. (Barron's Law Dictionary, 503 [1996].) As a general rule, an ad valorem tax cannot be levied against real property in excess of one percent of the full cash value of such property. (Cal. Const. Art. XIII A, § 1 (a) [West 2000].) The full cash value of property purchased before the implementation of Proposition 13 is the 1976 value of the property, plus a two percent annual appreciation. The full cash value of real property purchased after the implementation of Proposition 13 is typically based upon the arm's length purchase price of the real property.

Article XIII A, section 1, subsection (b) provides for limitations to the scope of subsection (a). (Id. at § 1(b).) There are currently two exceptions to this one percent limitation. Under current law, ad valorem taxation in excess of one percent may be levied against the full cash value of real property if (1) the indebtedness was approved by the voters prior to July 1, 1978 or (2) if indebtedness was incurred after July 1, 1978 through the issuance of bonds for the acquisition or improvement of real property, and two-thirds of the voters approved the issuance of bonds for the acquisitions or improvements. (Cal. Const. art. XIII A, § 1 (b) [West 2000].)

2. Article XVI, Section 18 of the California Constitution

Article XVI of the California Constitution relates directly to public finance. (Cal. Const. art. XVI. [West 2000].) Section 18 of Article XVI limits the amount of debt that a board of education or school district may incur without consent of two-thirds of the electors. (Id. at § 18.) In pertinent part, Article XVI, section 18 provides:

 

"No board of education, or school district shall incur any indebtedness for any purpose exceeding in any year the income and revenue provided for such year, without consent of two-thirds of the qualified electors thereof, voting at an election to be held for that purpose." (Id.)

 

School districts are required to allow for indebtedness within their fiscal budget each year. The policy in support of limiting the indebtedness is to maintain a "pay as you go" principle that gives the people the ultimate power to approve or reject projects requiring long-term expenditures. (See In re Orange County, 31 F. Supp. 2d 768 (C.D. Cal. 1998).) Here, the California Constitution preempts boards of education and school districts from setting their own structure for incurring debt without the consent of two-thirds of the voting public.

Article XVI, section 18 does provide an exception to the two-thirds requirement. The exception is articulated as follows:

 

"[A]ny proposition for the incurrence of indebtedness in the form of general obligation bonds for the purpose of repairing, reconstructing or replacing public school buildings determined, in the manner prescribed by law, to be structurally unsafe for school use, shall be adopted upon the approval of a majority of the qualified electors of the public entities voting on the proposition at such election."

 

(Cal. Const. art. XVI, § 18 [West 2000].) This provision permits the super-majority threshold to be lowered to a simple majority only if the structural condition of a school is deemed to be unsafe.

3. Section 47614 of the Education Code

Public charter schools are public schools that operate independently from the existing school district structure. (Cal. Educ. Code § 47601 (1998).) Charter school proponents intend to improve academia through different and innovative teaching methods. While public charter schools receive public funding, they are not subject to the laws generally governing school districts.

Section 47614 relates to the use and maintenance of school district facilities by public charter schools. It provides:

 

"A school district in which a charter school operates shall permit a charter school to use, at no charge, facilities not currently being used by the school district for instructional or administrative purposes, or that have been historically used for rental purposes provided the charter school shall be responsible for reasonable maintenance of those facilities." (Cal. Educ. Code § 47614 [1998].)

 

Under current law, school districts are required to allow charter schools to use facilities owned by the districts which are neither being used nor rented in exchange for reasonable maintenance. While charter schools operate independently from existing school districts to accomplish the goals specified in their charters, they are not legally independent from the districts which create them. (See 81 Op. Cal. Att'y. Gen. 140 [1998].) Consequently, school districts must accommodate the charter schools by permitting use of facilities that are not otherwise in use.

 

B. Changes Proposed by Proposition 39

 

The California Constitution can be amended in one of two ways. Either the Legislature may by two-thirds vote submit an amendment to the voters for approval or the voters may amend the constitution by initiative. (Cal. Const. art. XVIII, §§ 1,3 [West 2000].)

Statutory law, on other hand, may be given effect by a simple majority vote of the Legislature, or by a simple majority vote of the people through the initiative process. (Cal. Const. art. 2, § 10[a] [West 2000].) However, statutory law passed by a majority of the voters can only be changed by simple majority vote for another initiative, or by a two-thirds majority vote of the Legislature. (Cal. Const. art. 2, § 10[c] [West 2000].)

These voting thresholds are important because Proposition 39 amends the California Constitution, but it also amends the Education Code to provide public charter schools with equal access to modern school facilities. Such provisions may only be modified by another initiative approved by a majority vote of the people, or by a two-thirds vote of the Legislature.

Assembly Bills 1908 and 2659, which will take effect if Proposition 39 passes, are passed by a majority of the Legislature, and may be amended in the future by a simple majority of the Legislature.

Discussed below are the constitutional and statutory changes that Proposition 39 would effect by a simple majority vote of the people of California. Furthermore, Assembly Bills 1908 and 2659, implementing accountability measures, contingent upon the success of Proposition 39, are discussed.

1. Article XIII A, Section 1 of the California Constitution

Proposition 39 would add a third exception to the one percent limitation found in Article XIIIA. Ad valorem taxation in excess of one percent would be permitted for bonded indebtedness incurred by school districts, community college districts, or county offices of education for the construction, reconstruction, or rehabilitation of school facilities, including furnishing of such facilities, if the bonded indebtedness is approved by 55 percent of the voters of the district or county, and certain, specific accountability requirements are met. (California Official Voter Information Guide 2000, at 73 [hereinafter Guide].) In pertinent part the proposed language would include the following:

 

"(b) The [one percent] limitation provided in subdivision (a) shall not apply to.
(3) Bonded indebtedness incurred by a school district, community college district, or county office of education for the construction, reconstruction, rehabilitation, or replacement of school facilities, including the furnishing and equipping of school facilities, or the acquisition or lease of real property for school facilities, approved by 55 percent of the voters. voting on the proposition. . ." [emphasis added]. (Id.)

 

Proposition 39 would lower the two-thirds super majority threshold to 55 percent, making it easier to obtain finance for construction of new school facilities and capital improvements to existing school facilities. The proposition attempts to offset the easier access to finances by requiring that a proposition imposing ad valorem taxes or special assessment to pay for school construction bonded indebtedness include specific accountability requirements. The requirements, which must be included in the tax or special assessment proposition, include a limitation of use to capital improvements (subdivision(A)), and an itemized list of specific projects to be funded by the proceeds of the issuance, with certification of the uses by the school board (subdivision (B)). (Id.) After the issuance of bonds, annual, independent audits are to be performed to ensure that the funds have been expended only on the specific projects (subdivision (C)), and annual independent audits are to be performed on the funds until they are expended by the board (subdivision (D)). (Id at 74.)

Another proposed change to the existing law can be found in proposed Section 4(1), subdivision (c). The subdivision provides:

 

"Notwithstanding any other provision of law or of this Constitution, school districts, community college districts and county offices of education may levy 55 percent vote ad valorem tax pursuant to subdivision (b)." (Id.)

 

The significance of this subdivision is that school districts, community college districts, and county offices of education are given authority to levy an ad valorem tax if proposal requirements are met and the auditing requirements are assured, pursuant to subdivision (b). (See Id.) Since this provision expressly provides that the ad valorem tax is not subject to any other provisions of law or the California Constitution, the amount of the tax is unrestricted, subject to the approval of a simple majority. (See Id.)

2. Article XVI, Section 18 of the California Constitution

Article XVI relates to public finance. (Cal. Const. art. XVI [West 2000].) Proposition 39 would amend Article XVI, Section 18 of the California Constitution to permit a city, county, town, board of education or school district to incur debt in excess of its revenue and income for a given year, provided that the incurrence of such debt is for school construction, reconstruction or equipping schools, and the debt is approved by 55 percent vote. (Guide at 74.) Any debt incurred which exceeds its yearly income or revenue is subject to the accountability requirements of proposed Article XIII A, section 1(b)(3). (Id.)

 

3. Section 47614 of the Education Code

 

Section 47614 of the Education Code pertains to the use and maintenance of school district facilities by public charter schools. (Cal. Educ. Code § 47614.) Proposition 39 would amend Section 47614 of the Education Code requiring school districts to provide charter schools with facilities comparable to other public schools within the district and it would establish a procedure for requesting these facilities. (Guide at 74.) In return, charter schools would pay their respective school districts a pro rata share of the school district's costs. (Id.) The pro rata share would be based on the ratio of space allocated by the school district to the charter school, divided by the district's total space. (Id.)

Up to this point, Proposition 39 is no different than defeated Proposition 26, but for a five percent difference in the voting requirement. Proposition 26 would have only required a simple majority vote, while Proposition 39 requires a vote of 55 percent. (Voter Pamphlet at 143 [March 2000]; Guide at 73.) However, Proposition 39 goes farther than Proposition 26 by developing accountability requirements through legislation enacted by the Legislature.

A.B. 1908 - Specific Accountability Requirements

Changes to election dates.

Governor Gray Davis approved Assembly Bill 1908, authored by Assemblyman Ted Lempert (D-Palo Alto), contingent upon the success of Proposition 39 at the November 7, 2000 general election. The bill provides that a governing board of a school district or community college district may, by a two-thirds vote, pursue the authorization and issuance of bonds by a 55 percent vote of the electorate at a primary or general election, regularly scheduled local election, or a statewide special election, so long as (1) the proceeds generated by the bond issuance are used only for the construction, reconstruction and furnishing of school facilities, (2) the specific projects to be funded are itemized and evaluated for safety and class size reduction, and (3) the school board conducts annual independent financial and performance audits. (A.B. 1908, 1999-2000 Leg. Sess. [Cal.].)

While this language appears to simply enable Proposition 39, it does change California law to the extent that under current law school boards may authorize the issuance of bonds by a simple majority vote of the school district and such bond elections may be held at any time throughout the year. The purpose for permitting school bond proposals to be placed on the ballot only during primary or general elections, regularly scheduled elections or statewide special elections is that there should be a higher degree of voter participation, which is much more prevalent during these elections. The effect is that the election result is a more balanced consensus rather than an artificial consensus based upon the participation of special interest groups voting on bond proposals at other times of the year.

Limitations on taxation.

If Proposition 39 is passed, A.B. 1908 would implement Chapter 1.5 (commencing with section 15264) of the Education Code. Chapter 1.5 contains section 15270, which provides for limitations on taxation. Specifically, the tax rate levied as a result of any single election can be no more than $60 (for a unified school district), $30 (for a school district), or $25 (for a community college district) per $100,000 of taxable property value. The Analysis of Proposition 39 by the Legislative Analyst provides the following illustration of the possible impact of the proposition:

 

A homeowner lives in a unified school district that places a bond before the voters. The bond is approved with a 58 percent vote and the size of the bond requires a tax levy of $60 per each $100,000 of assessed value. If the value of the owner's home is the statewide average (about $170,000), the owner would pay about $100 in additional property taxes each year for the life of the bond (typically between 20 and 30 years).

 

(Cal. Legislative Analyst, Analysis of Proposition 39 [Visited Oct. 17, 2000] .)

The creation of a citizens' oversight committee

A.B. 1908 also creates statutory law articulating the creation, purpose and nature of a citizens' oversight committee. If a bond measure is authorized pursuant to the principles of Proposition 39, the governing board of the school district or community college district shall establish and appoint an independent citizens' oversight committee within 60 days from the date the governing board acknowledges the election results. (A.B. 1908, 1999-2000 Leg. Sess. [Cal.].) The purpose of the citizens' oversight committee is to inform the public concerning the expenditure of bond revenues. (Id.) To this end, the committee will review and report on the proper expenditure of taxpayers' money for school construction, to ensure that the revenue is spent only for purposes of construction, reconstruction and furnishing school facilities, and that the funds are not spent on teacher or administrative salaries. (Id.) The oversight committee is permitted to (1) engage in independent performance and financial audits, (2) inspect facilities to ensure compliance with the articulated purposes of the expenditures, and (3) review and recommend cost-savings measures to the school districts and community college districts to ensure efficient use of taxpayers' money. (Id.) Such measures are illustrative, and do not serve as limitations on the powers afforded to the committee.

A.B. 1908 also provides that the oversight committee shall consist of at least seven members appointed by the school district, who may serve no more than two consecutive two-year terms. (Id. at 7.) The composition of the citizens' oversight committee shall consist of the following:

 

  • One citizen who is an active member of a business organization located in the district. This member shall represent the district's business community.

 

 

  • One citizen shall be active in a senior citizens' organization.

 

 

  • One citizen shall be active in a bona fide taxpayers' organization, so that taxpayers' interests are fairly represented.

 

 

  • For a school district, one citizen shall be the parent or guardian of a student enrolled in the district. For a community college district, one citizen shall be a student who is both actively enrolled in the district and active in a community college group, such as student government.
  • For a school district, one citizen shall be either a parent or guardian of a student enrolled in the district and an active participant in a parent-teacher organization, such as the Parent-Teacher Association (PTA). For a community college district, one citizen shall be active in the support and organization of a community college or the community colleges in the district, such as a member of an advisory council or foundation. (Id. at 7-8.)

 

The required composition of the citizens' oversight committee aims to develop fair representation of local interest within the school districts and community college districts. Furthermore, the statute intentionally leaves at least two seats open for citizens who may not feel adequately represented by the required members. Note, however, that in an effort to avoid potential conflicts of interest, the statute specifically excludes employees or officials of the district, and vendors, contractors or consultants of the district from participation on the oversight committee.

Remedies for misappropriation

A.B. 1908 provides that injunctive relief may be granted to restrain the expenditure of funds received by a school district or community college district through the sale of bonds, if the funds are used inconsistently with the principles of Proposition 39 (A.B. 1908, 1999-2000 Leg. Sess. [Cal.].) Standing requirements include that anyone bringing such an action shall be (1) a citizen who resides in the school district or community college district who has been assessed and is liable to pay an ad valorem tax on real property within the district or (2) any citizen who has paid an ad valorem tax on real property within the district within one year before the commencement of the action. (Id.) The party seeking injunctive relief must allege any of the following:

 

  • An expenditure of funds received by the school district or community college district through the sale of bonds was for some purpose other than construction, reconstruction, or the furnishing of school facilities.

 

 

  • Non-complying expenditures have been made and will continue to be made throughout litigation of the issue, thereby causing irreparable harm to the taxpayers.

 

 

  • The governing board of the school district or community college district has willfully failed to appoint a citizens' oversight committee. (Id.)

 

If an action is brought to restrain expenditures under this section, A.B. 1908 provides that such an action shall take special precedence over all other civil matters on the court's calendar so that the dispute may be efficiently adjudicated without exorbitant and costly delays.

A.B. 2659 - Amendment to A.B. 1908

The California Legislature passed Assembly Bill 2659, authored by Assemblyman Lempert in late August to strengthen the language of A.B. 1908. (A.B. 2659, 1999-2000 Leg. Sess. [Cal.].) The Governor signed the bill on September 22, 2000. Like A.B. 1908, the implementation of A.B. 2659 is contingent upon the success of Proposition 39. (Id.) The bill affects Sections 15268 and 15270 of the Education Code, and in pertinent part, it provides:

 

The <<+ bonds may only be issued if the +>> tax rate levied to meet the requirements of Section 18 of Article XVI of the California Constitution in the case of indebtedness incurred pursuant to this chapter at a single election, by a unified school district, <<- shall ->> <<+would +>> not exceed sixty dollars ($60) <<+per year+>> per one hundred thousand dollars ($100,000) of taxable property <<+ when assessed value is projected by the school district to increase in accordance with Article XIIIA of the California Constitution +>>.

 

(Id.) (Note: Language contained within <<-.->> has been removed A.B. 1908 and replaced with language contained within <<+.+>>).

The effect of A.B. 2659 is mixed. While the new language appears to strengthen A.B. 1908 by articulating the conditional "bonds may only be issued if [the conditions articulated in A.B. 1908 are met]," the amended language replaces the term "shall" with the term "would," in relation to the taxation caps. (A.B. 2659, 1999-2000 Leg. Sess. [Cal.].) The term "shall" is an absolute requirement that the taxation will not be raised in excess of the statutory cap, while the term "would" is somewhat less absolute.

The Effect of Proposition 39 on Charter Schools

Charter schools are public schools, typically formed by parents or teachers, which operate independent of the existing school district structure. (Cal. Ed. Code § 47601 [West 2000].) The schools operate under contracts or "charters" with local school districts. As of June 2000, there were 309 charter schools in California, serving about 105,000 students (less than 2 percent of all K-12 students). (Guide at 38.) The law permits an additional 100 charter schools each year until 2003, at which time the charter school system will be used at no charge. (Id.) While charter schools operate independently from existing school districts to accomplish goals specified in their charters, they are not legally independent from the districts which create them and, as a result, the school districts must accommodate the charter schools by permitting the use of district facilities which are not otherwise in use. (81 Op. Cal. Atty. Gen. 140 [1998].)

Proposition 39 amends California Education Code § 47614 in an effort to provide charter schools with facilities which are reasonably equivalent to other public schools within the district that grants such charters. In return, charter schools would pay their respective school districts a pro rata share of the school districts' cost, based upon the ratio of space allocated to the charter school, divided by the total space of the district. (Guide at 73.) Facility requests and allocations would be based upon a charter school's reasonable projection of the average daily classroom attendance by in-district students for the following year. (Id.)

Previous Attempts to Lower the Two-Thirds Vote Requirement

Before Proposition's 26 and 39, the legislature in 1993 submitted to the voters Proposition 170, a measure similar to Proposition 26 that would have lowered the two-thirds vote requirement to a majority vote. Proposition 170 failed. (Alexander Weisse, Analysis of Proposition 39 [Oct. 2, 2000] [unpublished manuscript, on file with the California Initiative Review].)

In the past decade, there have been many other attempts by the legislature to adopt measures for submission to the voters that would lower the two-thirds vote requirement. However, those also failed in the legislature. (Id.)

III. Drafting Issues

There appear to be no significant drafting issues contained in Proposition 39. While the proposed amendment to the Education Code uses terms of art e.g., average daily classroom attendance, conditions reasonably equivalent, in-district students, facilities cost, the amendment provides that the scope of those terms will be proposed by the State Department of Education and adopted by the State Board of Education. (Guide at 74.)

However, drafting issues arise in connection with A.B. 2659, the amendment to A.B. 1908 which will take effect if Proposition 39 is adopted by the voters.

Proponents of Proposition 39 assert that the changes reflected in A.B. 2659 were made at the recommendation of the Bond Counsel in order to insure the timely repayment of general obligation bonds issued for the construction of school facilities. (Telephone interview with Sarah Brown, Manager at Burson/Masteller, media consultants for the proponents of Proposition 39, October 18, 2000.)

As a result of the language contained in A.B. 2659, it is conceivable that property owners could be taxed in excess of the statutory caps contained in Education Code sections 15268 and 15270 because A.B. 2659 provides that the statutory caps are applicable "when assessed value is projected by the school district to increase in accordance with Article XIIIA of the California Constitution." (A.B. 2659, 1999-2000 Leg. Sess. [Cal.].) The implication is that the statutory caps are not applicable when the value of real property is static, or decreases.

One scenario in which property owners could be taxed in excess of the caps articulated in sections 15268 and 15270 would be if a common catastrophe, such as a major earthquake, destroyed a significant amount of real property value within a particular school district. For example, assume that the catastrophe reduced the average assessed value of real property from $200,000 to $100,000, and assume that general obligation bonds were issued before the catastrophe by the unified school district at the maximum value, capped at $60 per $100,000. Since the bonds were issued upon an assessed average value of $200,000 per parcel of real property, the unified school district would be obligated to repay the bonds at the pre-catastrophe rate of $120 per parcel of real property to maintain creditworthiness with respect to general obligation bonds.

Under this example, A.B. 2659 permits the unified school district to collect $120 per year, per $100,000 to repay the general obligation bonds because the statute provides that the $60 cap per $100,000 will be in effect "when assessed value is projected by the school district to increase in accordance with Article XIIIA of the California Constitution." (A.B. 2659, 1999-2000 Leg. Sess. [Cal.].) The caps would not be in effect when property values are static, or decrease.

Proponents of Proposition 39 contend that such broad catastrophe is unlikely to occur, but concede that this scenario is conceivable. (Telephone interview with Sarah Brown, Manager at Burson/Masteller, media consultants for the proponents of Proposition 39, October 18, 2000.) If such a catastrophe occurred, it is asserted that the school district would probably be eligible for State or Federal relief, or the local monies could be taken from the general fund to offset the property owners' tax burden. (Id.)

Opponents, on the other hand, suggest that this scenario is more likely than the proponents admit and that the reduction of property value may occur in instances other than calamity. (Telephone interview with John Coupal, President of the Howard Jarvis Taxpayers Association, October 18, 2000.) For instance, if California experiences a recession similar to that which occurred in the early 1990's and the real estate market is sharply devalued, owners of real property will be liable to pay taxes in excess of the caps proposed by the companion legislation to Proposition 39, because bonds may be issued upon a pre-recession value assessment of the property. (Id.)

IV. Constitutional Analysis

Proposition 39 raises no significant constitutional issues. Because all of its provisions concern school facilities, the measure likely does not violate the single subject rule.

Further, Proposition 39 seems to fall within the electors' right to amend the constitution because it does not make such extensive changes to the constitution or the basic governmental plan to render it an impermissible revision. (Alexander Weisse, Analysis of Proposition 39 [Oct. 2, 2000] [unpublished manuscript, on file with the California Initiative Review], citing Evans v. Superior Court, 215 Cal. 58 [1932]; Brosnahan v. Brown, 32 Cal. 3d 236 [1982]; Amador Valley v. State Bd. of Equalization, 22 Cal. 3d 208 [1978].)

V. Public Policy Considerations

Proposition 39 implicates broad issues of public policy, including classroom size reduction, the preparation of a qualified work force, and the fiscal management of public funds. However, the underlying debate appears to focus primarily upon whether Proposition 39 is an appropriate cure for the ailing California public school system and whether it is overly burdensome on homeowners who will finance the construction and reconstruction of schools through the taxation of real property.

Proponents of Proposition 39 have joined a coalition called Taxpayers for Accountability and Better Schools, which is led by Governor Gray Davis, former Governor Pete Wilson, and a coalition of over 200 organizations and leaders in business, technology, education, senior and ethnic groups. Members include the California State PTA, American Association of Retired Persons, California Business Roundtable, California Chamber of Commerce, League of African American Voters, and Silicon Valley Manufacturing Group. (Interview with Louis Desmond, Senior Associate at NCG Porter Novelli, October 9, 2000.)

The opponents of Proposition 39 have formed a coalition called Save Our Homes Committee, Vote No On Proposition 39. The coalition is a project of the Howard Jarvis Taxpayer's Association. In addition to the Howard Jarvis Taxpayer's Association, the California Republican Party and several taxpayer associations, such as the Contra Costa County Taxpayer's Association, Monterey Peninsula Taxpayer Association, and the Humboldt County and Sutter County Taxpayer Associations have joined the coalition in opposition to Proposition 39. (Telephone interview with John Coupal, President of the Howard Jarvis Taxpayers Association, October 16, 2000.)

Is Proposition 39 the appropriate cure for the ailing California public school system, or is it unduly burdensome for homeowners?

Proponents

Proponents contend that Proposition 39 is the most important commitment Californians can make to their children, and that the next generation's future depends on investment in our schools. (Interview with Louis Desmond, Senior Associate at NCG Porter Novelli, October 9, 2000.) California schools are among the most overcrowded in the nation, and some school districts, with too few classrooms, are forced to teach in trailers, converted cafeteria's, libraries and gyms. (Id.) Experts predict that California will need 20,000 new classrooms just to keep up with student population growth expected over the next ten years. (Id.)

Proposition 39 gives school district voters assurance of strict accountability and taxpayer protection because it strictly forbids using school bond funds for bureaucrats or administrative salaries, and it requires local school districts to provide a specific list of school construction projects, so voters can evaluate the merits of their investment. (Id.) Furthermore, Proposition 39 requires school districts to undergo two independent annual audits -financial and performance- throughout the life of the bond, to make sure the funds are accounted for and spent on approved projects. Proposition 39 also imposes strict caps on the amount property taxes can be raised for a school bond, which roughly equates to $100 each year for the average homeowner.

By requiring a 55 percent supermajority threshold, fixing the way school bonds are spent, and cutting waste and mismanagement, Proposition 39 helps many communities that desperately need to build or repair schools. (Id.) It also promotes more programs for class size reduction. (Id.)

Opponents

Opponents agree that that there are fundamental problems which confront the California public school system, however, they assert that Proposition 39 merely results in unreasonably high property taxes without providing a sufficient remedy to the school system. (Telephone interview with John Coupal, President of the Howard Jarvis Taxpayers Association, October 16, 2000.) With a 55 percent approval standard, 94 percent of bond issues since 1996 would have passed. (No on 39 [visited Oct. 17, 2000] .) Since 1996, 62 percent of local school bonds have passed, raising over $13 billion for school construction, and during that period the State has provided only $8.7 billion. (Id.)

Proponents of Proposition 39 could have lobbied to have some of the $12.3 billion state surplus allocated to school construction, or they could have petitioned to put a State bond on the ballot --which does not require a tax increase, nor does it pass an additional tax burden onto local property owners. Instead, the proponents seek to increase the tax burden on local property owners by placing Proposition 39 on the ballot, making it easier to increase property taxes.

One concern over reducing the current two-thirds requirement vote to 55 percent is that while all voters can vote to pass a local bond measure, only property owners are liable for the debt and responsible for repaying the bonds. Thus, it is necessary to maintain the two-thirds requirement to protect the interest of property owners.

Another concern of the opponents is the precedent Proposition 39 sets. If Proposition 39 is successful, other advocates would be encouraged to try to eliminate the two-thirds voting requirement for local bonds and taxes. If successful, the "domino effect" would result in a higher tax burden for all California taxpayers.

VI. Conclusion

If Proposition 39 is successful, the two-thirds vote requirement to raise funds for the construction or reconstruction of school facilities would be reduced to a 55 percent majority vote requirement. Proponents contend that this lower threshold is necessary to provide the next generation of Californians with adequate school facilities. However, opponents assert that the lower threshold would be unreasonably burdensome on homeowners.

Proposition 39 does not raise constitutional issues. The drafting issues contained in Proposition 39 appear to be intentional and anticipated; however, there are drafting issues in A.B. 2659.

In summary conclusion, while Proposition 39 would increase property taxes, it would likely improve California school facilities, and promote reduction in classroom size.