What’s at stake?
A Fresno judge is expected to issue a ruling in the case between the county and State of California, helping decide when a transportation tax measure will go before voters.
The ruling, expected to be announced by Monday at noon, will almost certainly be appealed by the losing side.
A local judge appeared skeptical of the arguments made by Fresno County against a bill passed by state legislators that placed a transportation tax measure on this year’s countywide ballot, superseding the power of the local board of supervisors in the process.
Attorneys for Fresno County and the State of California made their final arguments before the court on Friday ahead of a ruling that will decide whether a signature-led tax initiative to replace Measure C, the county’s 40-year-old transportation tax, makes it onto the November ballot.
The case came before the judge after the Fresno County Board of Supervisors voted to place Measure S — the official name for the “Better Roads, Safe Streets” proposal — before voters during the March 2028 primary, instead of this year’s November general election.
The county delayed the tax after a study they requested to analyze the proposal was received after the deadline to make the November ballot. The state legislature then passed a bill that state attorneys argue supersedes the county’s vote to delay until 2028, placing the measure in November. The county then sued to dispute the constitutionality of the state’s bill, and gain a court order to stop the local elections clerk from placing it on this year’s ballot.
State law legally allows the county to request studies on measures that will make their way onto the ballot. However, Judge Jonathan Skiles questioned whether the county was using the law inappropriately.
Skiles said that governments could wait for a study when it comes to measures or ordinances that can be made into law through a vote by the local body. He suggested the county did not necessarily have to wait for the study to come back before placing Measure S on the ballot.
The judge also said he could not find any other instance in which a local government used a study request as a way to delay placing a measure on the ballot. When asked by the judge if he could cite precedent, the county’s attorney, Brian Hildreth, said he “would be surprised if it didn’t exist.”
Hildreth added, “I haven’t looked for one because I don’t think it’s necessary to find a similar instance.”
Skiles disagreed.
Among the county’s arguments against the new state law, AB 1923, is whether the state legislature has “a rational basis for singling out Fresno County.” Skiles said that, if there is in fact no precedent for a local government using a study request to delay when a measure gets placed on a ballot, then “is it not reasonable to say the legislature didn’t anticipate that would ever happen? ”
“As far as I can tell, in the history of the State of California,” Skiles said, “no board of supervisors has ever taken those steps to result in that kind of situation. It is a novel situation, is it not?”
Skiles also appeared skeptical of the county’s desire to place the measure on the ballot in a timely manner.
He said state law allows for local governments to take a “maximum” of 30 days to turnaround a report, but it does not require them to take the entire time. He said the Fresno County Board of Supervisors could have ordered the study to return before the deadline to place the measure on the November ballot. He also added that the contents of such a report are a “nonissue” on the county’s responsibility to place a measure on the ballot.
“There’s nothing in the code that says if you order a report, you are therefore boxed in, and you can do nothing else until the report lands on your desk,” Skiles said. “That’s not part of the code. I understand the argument; they’re not required to do that. But to phrase it in ways that the board somehow has no other option, I think is incorrect and worthy of being corrected for our purposes, for the record.”
Hildreth argued that the state’s law still steps on the toes of the county, that the supervisors acted within their authority and said the county has been unfairly accused of ordering the study in bad faith.
Skiles also questioned state attorneys on the need for AB 1923.
Though the majority of the county’s board of supervisors have expressed dissatisfaction with Measure S, no action taken by the local government body has killed the measure. Skiles asked whether AB 1923 is simply trying to address a matter of timing.
Attorney Derrin McLeod, a member of the office of California Attorney General Rob Bonta, agreed with the judge’s framing, but asked to consider nuance: Measure C, the current countywide transportation tax, is set to expire in July 2027.
“The question for the court then is,” McLeod said,”is there a reasonable basis for the legislature to say we think a good solution to that problem is to give voters the choice before Measure C expires to vote on a qualified initiative that would replace Measure C. We would submit that there’s no question that that satisfies the ‘rational basis’ test.”
Kristen Rogers, an attorney representing most of Measure S’ proponents, said that delaying the measure is not simply a matter of timing since the move would bring “real harm” by way of the loss of millions of dollars that could have been collected by a transportation tax.
“The board’s decision to put this measure over until March 2028 works a real harm because it cuts off a stream of funding,” Rogers said, “and it guarantees a permanent loss, a substantial and permanent loss. That is real harm. That is the practical, real world result of the board’s decision to delay this.”
Funds collected by Measure C can continue to be distributed as far as two years from its 2027 expiration date. However, local governments have already highlighted what the loss of new revenue would mean for them.
The City of Fresno alone said they would lose $54 million annually, and reportedly have to lay off 217 employees if there is no replacement for Measure C.
Friday’s hearing, heard at the B.F Sisk courthouse, was held in a room that reached capacity. The room was packed with about 80 attendees, including Fresno County Board of Supervisors Chair Garry Bredefeld, Veronica Garibay, a proponent of Measure S, and a host of other local advocates, elected officials and union leaders.
Skiles said that he will issue a ruling by Monday at noon. It is likely that the losing side will appeal Skiles’ decision.
However, the losing side will have a short period of time to file an appeal and return the matter to the courts. James Kus, the county’s elections clerk, said he’s hoping for the dust to settle on the legal fight by Sept. 3, so that voter education materials can be printed with the most accurate information.
