Judge Rejects Measure M Transfers

In a legal action pursued by two persistent ELB-area residents, a Los Angeles Superior Court judge has ruled that revenue for City General Fund spending unrelated to Water Department services is unconstitutional.

In a Jan. 2, 22-page ruling, Judge James Chalfont concluded that Measure M violates voter-enacted Proposition 218 governing imposition of taxes.

Judge Chalfont wrote in pertinent part that Prop 218 permits the city “to levy user fees or charges only to recover the cost of providing its property-related services.

“The city raised water rates by 7.2% effective October 1, 2018, solely to fund Measure M transfers ... [T]he city’s water and sewer surcharge violates [Prop 218] because the fee or charge imposed as an incident of property ownership exceeds the revenue needed to operate the city’s utilities. The city crosses the constitutional boundary by imposing fees intentionally inflated to generate surplus revenue to fund Measure M transfers...”

Judge Chalfont ruled that in response to a Petition for Writ of Mandate sought by Diana Lejins (5th district resident) and Angela Kimball (resident of L.A. County “island” south of Heartwell Park and east of Woodruff Ave.), the two women are “entitled to (1) a mandate that directs the city set aside the Ordinance based on Measure M, (2) a judicial declaration that the city cannot impose general taxes, even with voter approval, upon parcels of property or upon persons as an incident of property ownership and that the city may not impose the general tax on any customers residing outside city limits, and (3) an injunction that commands the city to cease the transfer of Measure M rate revenue to its General Fund and to return all Measure M transfers from its General Fund to LBWD’s Water and Sewer Revenue Funds.”

Lejins and Kimball didn’t seek financial sums for themselves or restitution for water/sewer ratepayers; they sought to stop the transfers. They were represented by attorney Eric Benink (of the San Diego law firm of Benink and Slavens) and co-counsel/former 5th district Councilwoman Gerrie Schipske. the same legal team that successfully represented the woman in a previous legal action that challenged City Hall’s previous practice of imposing “pipeline fees” that the LB Water Dept. collected from its ratepayers and sent to City Hall for General Fund spending without a vote of the people.  

City officials agreed in a settlement to end the pipeline fees and then moved to continue collecting sums they’d received from the pipeline fees by proposing the Measure M annual revenue transfers. The City Council placed Measure M on a June 2018 citywide ballot, and Mayor Garcia ran a six-figure campaign for the measure which resulted in a roughly 54% citywide vote to approve M.

Noting that in that campaign, LB’s police chief, fire chief, and mayor had promoted Measure M to support Long Beach firefighter, paramedic and police office staffing, as well as funding for pothole and street repairs, the court stated that Prop 218 prohibits charging a utility customer for a service that merely benefits the community. The court rejected the city’s argument that approval by LB voters validated Measure M, noting that the Supreme Court “has rejected the notion that local voters approving a city charter provision can override Prop 218’s constitutional restrictions.”

The court also ruled that the city had unconstitutionally imposed its tax beyond LB’s city limits (relevant to L.A. County “island” resident Ms. Kimball). “The city certainly cannot impose a general tax on customers outside city limits where it cannot lawfully do so inside city limits,” Judge Chalfont ruled.

In response to the ruling, city management issued a Jan. 6, 2020 statement indicating that in a Sept. 3, 2019 closed session, the council had authorized an appeal if the case resulted in an adverse ruling.  

In a December 17, 2019 council study session on the city’s fiscal outlook, city staff indicated in a single bullet point: “Water litigation – if lost would be a major future impact.”

Following the court’s ruling, Lejins wrote on Facebook: “Finally a victory for the people, of the people, and by the people” and added in a Jan. 7 dispatch on the Long Beach Politics Facebook page that in her view, “the only way that this type of government corruption will be curtailed in Long Beach is if we elect new and different council people” and encouraged donations to the council campaigns of Robert Fox (2nd district) and Juan Ovalle (8th district) “It doesn’t matter where you live. They will make a difference in your district and the entire city.”

Mr. Pearl publishes LBREPORT.com, now in its 20th year online at www.LBReport.com.