Opinion
C097747
01-16-2024
CITY OF MORENO VALLEY, Plaintiff and Appellant, v. CALIFORNIA DEPARTMENT OF TAX AND FEE ADMINISTRATION et al., Defendants and Respondents.
NOT TO BE PUBLISHED
(Super. Ct. No. 34-2022-80003915-CU-WM-GDS)
BOULWARE EURIE, J.
Local governments in California levy taxes covering retail sales of tangible personal property. Under state law, some of these taxes are called sales and use taxes and others are called transactions and use taxes. To many, though, these taxes are known simply as sales taxes. In this case, the voters of the City of Moreno Valley (the City) approved an ordinance imposing a sales and use tax that exceeded the maximum rate allowed under state law. The City afterward asked a trial court to rewrite the ordinance to convert the tax from an unlawful sales and use tax to a lawful transactions and use tax. But the trial court declined to do so. We affirm.
BACKGROUND
I
Background Law
State and local governments in California levy sales and use taxes covering retail sales of tangible personal property. (See, e.g., Rev. &Tax. Code, §§ 6051, 6201, 7202, 7203.) A sales tax is generally imposed on retailers in California, though retailers can (and typically do) pass this cost on to their customers. (Loeffler v. Target Corp. (2014) 58 Cal.4th 1081, 1116-1117; First American Title Ins. Co. v. California Dept. of Tax &Fee Administration (2021) 71 Cal.App.5th 603, 611.) A use tax is generally imposed on buyers in California when the retailer does not pay sales tax, and it is meant, in large part, to prevent out-of-state retailers that are not subject to California sales tax from enjoying an unfair advantage over their local competitors that are subject to California sales tax. (Woosley v. State of California (1992) 3 Cal.4th 758, 771.) "Many States employ this kind of complementary sales and use tax regime." (South Dakota v. Wayfair, Inc. (2018) ____ U.S. ____ [201 L.Ed.2d 403, 413].)
Undesignated statutory references are to the Revenue and Taxation Code.
Both sales taxes and use taxes are set at the same rate. The sales tax is a percentage of a retailer's gross receipts from in-state sales of tangible personal property (§§ 6051, 7202, 7261 [discussing a sales tax called a "transactions" tax]), and the use tax is an equivalent percentage of the sales price of tangible personal property that a person stores, uses, or otherwise consumes in California (§§ 6201, 7203, 7262). Today, these taxes are largely indistinguishable from the consumers' perspective, for retailers subject to a sales tax typically pass the cost on to their customers (First American Title Ins. Co. v. California Dept. of Tax &Fee Administration, supra, 71 Cal.App.5th at p. 611) and retailers not subject to a sales tax often must collect the use tax from their customers (§ 6203). Either way, as a general matter, consumers pay the sales or use tax and see the tax on their receipts. (See Civ. Code, § 1656.1; Rev. & Tax Code, § 6203.)
The overall tax that consumers see on their receipts for retail purchases comprises several distinct taxes. Typically, these taxes are the state sales and use tax, the local sales and use tax, and local transactions and use taxes. The state sales and use tax is covered in division 2, part 1 of the Revenue and Taxation Code. (§ 6001 et seq.) The local sales and use tax is covered in division 2, part 1.5 of this code-a part of the code known as the "Bradley-Burns Uniform Local Sales and Use Tax Law" (the Bradley-Burns law). (§ 7200 et seq.) And local sales and use taxes called "transactions and use taxes" are covered in division 2, parts 1.6 and 1.7 of this code-which we will collectively call the TUT law. (§§ 7251 et seq., 7280 et seq.; see § 7253 [stating that the term "transactions" has the same meaning as the term "sales"].)
Division 2, part 1.7 of the Revenue and Taxation Code also covers other types of local taxes, including occupancy taxes and license taxes. (§§ 7280, 7284.)
Our focus here is on the taxes imposed under the Bradley-Burns and TUT laws. Under the Bradley-Burns law, counties may adopt a sales and use tax at the rate of 1.25 percent. (§§ 7201, 7202, subd. (a).) Cities in these counties can then enact their own tax under the Bradley-Burns law to receive one percent of this tax, with the counties receiving the remaining 0.25 percent. (§ 7202, subd. (h)(1).) According to one court, "[a]ll cities and counties in California have enacted ordinances conforming to the Bradley-Burns Act." (City of South San Francisco v. Board of Equalization (2014) 232 Cal.App.4th 707, 716.) The TUT law allows counties, cities, and certain other governmental entities to impose additional taxes covering retail sales of tangible personal property. Relevant here, it authorizes cities to impose transactions and use taxes for general purposes in increments of 0.125 percent. (§§ 7252, 7261, subd. (a), 7285.9.) It also establishes a cap: The combined rate of all transactions and use rates in any county may not exceed two percent. (§ 7251.1.)
A city seeking to impose, extend, or increase a general tax-whether from a transactions tax, a use tax, or another tax-must comply with Proposition 218. Under that proposition, "[n]o local government may impose, extend, or increase any general tax unless and until that tax is submitted to the electorate and approved by a majority vote." (Cal. Const., art. XIII C, § 2, subd. (b).) Section 7285.9, part of the TUT law, imposes similar requirements before a city levies, increases, or extends a transactions and use tax for general purposes. It requires the ordinance proposing the tax to be approved by a two-thirds vote of the city's governing body and also approved by a majority vote of the qualified voters in the city. (§ 7285.9.)
II
Measure G
In 2021, the Moreno Valley City Council (City Council) adopted a resolution declaring an ongoing fiscal emergency and calling for a special election for voters to consider a measure to raise the City's sales and use tax. The City Council acknowledged the City's authority to levy a transactions and use tax under section 7285.9-again, part of the TUT law. But after mentioning this statute, the City Council called for an election on a proposed increase of the City's sales and use tax under the Bradley-Burns law. The City Council's resolution included a proposed ordinance for the tax increase. The proposed ordinance would amend the City's "uniform local sales and use tax ordinance" described in title 3, chapter 3.36 of the City's code-a chapter describing the City's tax imposed under the Bradley-Burns law. Under the amendment, the tax rate would be raised from one percent to two percent.
The proposed ordinance was later presented to voters as Measure G. The voter materials accompanying the measure included an impartial analysis from the City's interim city attorney and argument in favor of the measure. The impartial analysis noted the City Council had declared an ongoing fiscal emergency, said the proposed tax would increase the City's sales tax by one percent, and estimated the tax would produce about $20 million per year, with these funds deposited in the City's general fund. The argument in favor of the measure said it would "keep[] our taxpayer dollars LOCAL" and prevent "Sacramento money grabs taking millions from our pockets." It also said the measure would help keep the City safe and clean, support road maintenance work, and help the City address homelessness.
A majority of voters approved the measure, with voter approval of nearly 54 percent, according to the City. But the California Department of Tax and Fee Administration (the Department)-which collects and administers sales and use taxes on behalf of local governments (§§ 7202, subd. (h)(4), 7270, subd. (a); see Gov. Code, §§ 15570.22, 15570.24, subd. (a))-told the City that it "is unable to administer this tax as currently written, since it exceeds the permissible percentage allowed under the Bradley-Burns Tax." The City Council afterward, without voter approval, adopted an ordinance adding 14 sections to a new chapter in the City's code and purporting to impose a transactions and use tax of one percent under the TUT law. While the City acknowledged that the tax described in the new ordinance required voter approval, it indicated that voters had effectively already approved the new ordinance because it was "consistent with the intent of Measure G." But the Department maintained that the relevant measure was the one the voters actually approved; and because that measure created an unlawful tax under the Bradley-Burns law, the Department said it could not administer it.
III
The City's Suit
The City filed a petition for writ of mandate and complaint against the Department and its director. It argued that Measure G was intended to impose a one percent tax under the TUT law, even though, as written, it purported to increase the tax under the Bradley-Burns law from one percent to two percent. The City asked the court to declare that Measure G validly imposes a one percent tax under the TUT law, rewrite the Measure G ordinance to make it lawful, and order the Department to administer and collect the tax imposed by the ordinance.
The trial court denied the petition and dismissed the complaint. It found that the plain language of Measure G purported to increase the City's existing tax under the Bradley-Burns law, not to impose a new tax under the TUT law. It further found this increase unlawful. Although the court acknowledged that courts can reform (i.e., rewrite) a law in limited circumstances, it found reformation inappropriate here. It reasoned that "[i]t is not clear from the evidence before the Court that the voters intended to adopt a [transactions and use tax], and that they would seek to have a Court impose a different form of tax by approving an entirely new chapter of the Municipal Code that was never presented to them as part of the ballot materials." It added that reformation would violate the voter consent required by Proposition 218. The City timely appealed.
DISCUSSION
The City contends the trial court wrongly construed the ordinance based on its literal text. It argues that the court should have rejected a literal reading because doing so would defeat the voters' evident purpose and lead to an absurd result. It also cites case law on judicial reformation and argues that the court should have reformed the ordinance to preserve it against invalidation. We find neither argument persuasive.
I
Principles for Interpreting an Enacted Law
When interpreting an enacted law," '" '[o]ur fundamental task . . . is to determine the [enacting body's] intent so as to effectuate the law's purpose.'" '" (Brennon B. v. Superior Court (2022) 13 Cal.5th 662, 673.) "Because [a law's] language 'generally provide[s] the most reliable indicator' of that intent," we consider first "the words themselves, giving them their 'usual and ordinary meanings' and construing them in context." (People v. Castenada (2000) 23 Cal.4th 743, 747.) When the language is clear, we generally must follow its plain meaning. (Brennon B., at p. 673.) But we need not do so when a literal interpretation would result in absurd consequences the enacting body- in this case, the voters-did not intend. (Ibid.) Nor must we do so in the rare circumstances when judicial reformation is appropriate to preserve a law against invalidation-that is, "when we can say with confidence that (i) it is possible to reform the [law] in a manner that closely effectuates policy judgments clearly articulated by the enacting body, and (ii) the enacting body would have preferred the reformed construction to invalidation of the statute." (Kopp v. Fair Pol. Practices Com. (1995) 11 Cal.4th 607, 660-661 (Kopp) (plur. opn.); see id. at p. 685 (conc. opn. of Baxter, J.) [joining this part of the plurality opinion].)
II
The Text of Measure G and its Proposed Ordinance
Applying these principles here, we start with the text of Measure G and its proposed ordinance. The measure, again, proposed the adoption of an ordinance that would increase the tax rate described in title 3, chapter 3.36 of the City's code. The tax rate in that chapter, as stated in section 3.36.020, was formerly one percent. The measure proposed amending section 3.36.020 to increase this rate to two percent. The measure quoted the proposed language for section 3.36.020-which replaced the word "one" with "two"-and quoted in full the remaining 13 sections in title 3, chapter 3.36 of the City's code. One of the quoted sections explains, among other things, that this chapter is intended to "adopt a sales and use tax ordinance which complies with the requirements and limitations contained in Part 1.5 of Division 2 of the Revenue and Taxation Code," that is, the Bradley-Burns law.
Under its plain terms, the City's ordinance purports to impose a tax in violation of the Bradley-Burns law. The amended chapter of the City's code is, by its express terms, subject to the requirements of the Bradley-Burns law; and under the Bradley-Burns law, a city can impose a tax no greater than one percent. (§ 7202, subd. (h)(1).) Because the City's ordinance purports to impose a tax of two percent, it thus, as written, violates the express limitations in the Bradley-Burns law. All this is undisputed.
III
Absurdity Doctrine
The City argues, however, that we should depart from a literal reading of the ordinance. First, invoking the absurdity doctrine, the City contends it would be absurd to believe that its voters intended to adopt an unlawful tax, particularly when the legislative history shows the voters wanted to raise revenues to bolster the City's finances. It thus argues we should construe (really, wholly rewrite) its ordinance to impose a new tax under the TUT law rather than increase its existing tax under the Bradley-Burns law. It also describes how we could achieve this result: We could delete the ordinance the voters approved-which amended one word in an existing chapter of the City's code to increase the tax under the Bradley-Burns law-and write in its stead a different ordinance-which would add 14 sections to a new chapter in the City's code to impose a new tax under the TUT law. We decline to do so.
The City equates an unlawful law with an absurd law. But they are not one and the same. That a lawmaking body enacted an unlawful requirement "does not, in and of itself, render a straightforward application of the language absurd." (Public Citizen v. U.S. Dept. of Justice (1989) 491 U.S. 440, 472 (conc. opn of Kennedy, J.).) Lawmakers, after all, have enacted many laws later found to be unconstitutional, including state laws taxing federal institutions (McCulloch v. Maryland (1819) 17 U.S. (4 Wheat) 316, 436), taxing individuals for leaving and entering a state (Crandall v. Nevada (1868) 73 U.S. (6 Wall.) 35, 49), charging higher fees and taxes for cars sold outside a state than for cars sold inside the state (Woosley v. State of California, supra, 3 Cal.4th at pp. 765-766), and depriving insurance companies of the ability to charge fair and reasonable rates (Calfarm Ins. Co. v. Deukmejian (1989) 48 Cal.3d 805, 821). But that these lawmakers were misguided about their ability to enact these laws does not itself mean the absurdity doctrine applies. So it is here. The City's voters were no doubt misguided in believing they could enact a two percent tax under the Bradley-Burns law. But we do not find that consideration sufficient in itself to trigger the absurdity doctrine and allow a wholesale rewriting of the ordinance.
Case law on the absurdity doctrine is consistent with our conclusion, showing that it has been applied to make discrete changes to a law, not to rewrite a law altogether. Take People v. Barker (2004) 34 Cal.4th 345. That case involved a penal statute making it a felony for registered sex offenders to willfully fail to update their registration. (Id. at p. 348.) Our Supreme Court considered "whether the willfulness element of the offense may be negated by just forgetting to register." (Ibid.) The court found it could not. While it acknowledged its precedent saying that"' "the term 'willfully' . . . imports a requirement that 'the person knows what he is doing" '" (id. at p. 351), the court found it "simply inconceivable the Legislature intended just forgetting to be a sufficient excuse for failing to comply with [the statute's] registration requirements" (id. at p. 357). The court thus placed a limitation on the meaning of the term "willfully" to avoid this perceived absurd consequence. (Id. at p. 358.)
In re J.W. (2002) 29 Cal.4th 200 is similar. Our Supreme Court there considered a section in the Family Code stating that "an appellate court must appoint counsel for a parent unable to afford counsel '[u]pon appeal from a judgment freeing a child who is a dependent child of the juvenile court from parental custody and control.'" (Id. at p. 209.) The italicized language on its face "restrict[s] the right to appellate counsel to actions in which the child is a juvenile court dependent." (Ibid.) But applying this limitation, the court found, would "make[] the entire provision superfluous because parental rights for juvenile court dependents are terminated in juvenile court dependency proceedings under the Welfare and Institutions Code and not in family court proceedings under the Family Code." (Id. at p. 210.) After considering the relevant legislative history, the court concluded that the Legislature did not intend to limit the statute's application to actions in which the child is a juvenile court dependent, and so it, in effect, struck this limitation from the statute. (Id. at pp. 210-213; see also California School Employees Assn. v. Governing Board (1994) 8 Cal.4th 333, 335-336, 346 [construing a statute establishing a holiday for "every day appointed by the President . . . for a public fast, thanksgiving or holiday" to mean every day so appointed and intended to be treated as a federal holiday].)
These cases are typical of those cases applying the absurdity doctrine. They involve a court making a discrete change to a law, often to address a minor oversight, not a court making wholesale revisions to correct an altogether misguided law. Nor do these cases, or any case we have found, suggest that an unlawful law is synonymous with an absurd law. And were we to treat the two as synonymous, as the City would have us, then courts would hardly (if ever) find laws unconstitutional or otherwise unlawful. Courts instead would find it absurd that the lawmaking body would have adopted an unlawful law, and they would then rewrite the law to save it, no matter how drastic the rewrite may be. That, however, is not the role of the absurdity doctrine.
Nor are we persuaded to find differently based on the judicial presumption, cited by the City, that courts" 'do not presume that [a lawmaking body] performs idle acts.'" (Imperial Merchant Services, Inc. v. Hunt (2009) 47 Cal.4th 381, 390.) That presumption is most often cited in cases involving laws subject to multiple potential interpretations. (See, e.g., id. at pp. 388-390; People v. Safety National Casualty Corp. (2010) 186 Cal.App.4th 959, 966.) But we find it unhelpful to the City here. In this case, our conclusion that the ordinance is unlawful does not follow from any presumption that the City's voters enacted an unlawful tax or performed an idle act. It follows instead from the ordinance's clear and unambiguous text. And again, while we acknowledge that courts need not follow the plain text when doing so would result in absurd consequences the enacting body did not intend (Brennon B. v. Superior Court, supra, 13 Cal.5th at p. 673), we do not find the result here absurd simply because the ordinance is unlawful.
Turning to another judicial presumption, the City notes that voters are presumed to be aware of existing laws. It then claims in its opening brief that its voters must have intended to raise taxes under the TUT law, rather than the Bradley-Burns law, because they presumably knew they could not raise their tax rate to two percent under the Bradley-Burns law. But in its reply brief, the City argues against this type of presumption. In response to the Department's argument that the City's voters presumably read and understood the measure they approved, the City argues its voters should not be presumed to have been aware of existing laws.
The City, however, cannot have it both ways. And in this case, we think its latter argument is correct: "It is not reasonable to apply a presumption of voter awareness" on the facts of this case. (People v. Valencia (2017) 3 Cal.5th 347, 372.) The measure's text and the accompanying voter materials demonstrate a clear misunderstanding about tax law. The arguments in favor of the measure, for instance, suggested that the measure would convert state taxes into local taxes, saying the measure would "keep[] our taxpayer dollars LOCAL" and prevent "Sacramento money grabs taking millions from our pockets." But neither the Bradley-Burns law nor section 7251 et seq. serve to convert otherwise state taxes to local taxes. The measure's text itself, moreover, was unambiguous that it would raise the City's tax rate under the Bradley-Burns law, even quoting the entirety of the City's chapter covering its tax under the Bradley-Burns law. But it could do no such thing, for, again, the City could not raise its tax to two percent under the Bradley-Burns law.
The City's voters no doubt wanted to raise tax revenues to be used for local purposes. But led astray by the measure's text and the voter materials, we cannot say that these voters were aware of the limitations in state tax law. Nor can we say that the voters had any intent to impose a tax under the TUT law, for nothing in the record evinces such an intent. As our Supreme Court has said, quoting Justice Mosk," 'It is a sad fact of democratic life that many voters have neither the time nor the will to scrutinize a measure's contents in the detail needed to discern a conflict not squarely presented in the ballot arguments or title.'" (People v. Valencia, supra, 3 Cal.5th at p. 372, fn. 12.) That quote is fitting here. The City's voters enacted an unlawful tax because they evidently failed to appreciate the intricacies of tax law-and there is no shame in that. But we may not wholly rewrite every misguided law in the name of the absurdity doctrine, for it is not our role "to act as a super-legislature." (Regents of University of California v. Public Employment Relations Bd. (1986) 41 Cal.3d 601, 615.)
Lastly in terms of the absurdity doctrine, the City contends its staff mistakenly submitted the wrong version of Measure G to the voters. It then suggests that the submitted version included nothing more than a minor drafting error in that it "mistakenly referred to Chapter 3.36 of the Moreno Valley Municipal Code . . ., which imposes the City's Bradley-Burns tax[,] instead of Chapter 3.37 of the [code], which imposes the City's [transactions and use tax]." (Fn. omitted.) All the City cites, however, to show that its voters considered the wrong version of the measure is an allegation in its petition and complaint that the Department disputed. But a disputed allegation in a pleading, even a verified pleading, is not evidentiary proof. (California Standardbred Sires Stakes Com., Inc. v. California Horse Racing Bd. (1991) 231 Cal.App.3d 751, 762.) In any event, our focus is on the measure the voters approved, not the measure that City staff might have intended the voters to approve. And the measure the voters approved cannot be said to have included, as the City suggests, nothing more than a mistaken reference to chapter 3.36 instead of chapter 3.37. Measure G, to start, did not simply refer to chapter 3.36. It quoted the entire chapter. And while the numbers 3.36 and 3.37 are similar, chapter 3.37 did not even exist at the time of the vote on Measure G. The City only added that chapter, without voter approval and so inconsistent with Proposition 218, after it learned that the voter-approved amendment to chapter 3.36 violated the Bradley-Burns law. (Cal. Const., art. XIII C, § 2, subd. (b).)
IV
Judicial Reformation
The City next, invoking case law on judicial reformation, contends we should rewrite the ordinance to save it from invalidation. Again, "a court may reform-i.e., 'rewrite'-[an enacted law] in order to preserve it against invalidation . . . when we can say with confidence that (i) it is possible to reform the [law] in a manner that closely effectuates policy judgments clearly articulated by the enacting body, and (ii) the enacting body would have preferred the reformed construction to invalidation of the statute." (Kopp, supra, 11 Cal.4th at pp. 660-661 (plur. opn.); see id. at p. 685 (conc. opn. of Baxter, J.); see also Legislature of the State of California v. Padilla (2020) 9 Cal.5th 867, 877.) The City argues that, under these principles, we should rewrite the ordinance here to convert it from a tax under the Bradley-Burns law to a tax under the TUT law. We disagree.
Endorsing the City's position would, as covered, entail a wholesale revision of the ordinance. Rather than amend one word in an existing chapter of the City's code to increase the tax under the Bradley-Burns law, as the voters approved, the ordinance would instead add a new chapter in the City's code to impose a new tax under the TUT law. We are unaware, however, of any case where a court has wholly rewritten a law under the guise of judicial reformation. We instead find only cases declining to do so, albeit, in cases preceding the Kopp court's description of the relevant criteria for judicial reformation. (See Spiritual Psychic Science Church v. City of Azusa (1985) 39 Cal.3d 501, 520 [courts cannot rewrite a law "that is invalid in its essence"]; Blair v. Pitchess (1971) 5 Cal.3d 258, 282 [courts should not engage in" 'wholesale rewriting' "]; In re King (1970) 3 Cal.3d 226, 237 ["If elimination of objectionable parts of a statute requires a wholesale rewriting, a court's attempt to do so transgresses both the legislative intent and the judicial function"].)
A majority of the court in Kopp later said all these cases "concern[ed] situations in which crucial policy judgments were not clearly articulated by the enacting body, and in which it was thus impossible to reform unconstitutional enactments because doing so would have required the court to substitute or render policy judgments." (Kopp, supra, 11 Cal.4th at p. 656 & fn. 53 (plur. opn.); see id. at p. 685 (conc. opn. of Baxter, J.).)
Even assuming a wholesale rewriting of a law could be appropriate in some cases, we do not find it appropriate in this case. Although the Bradley-Burns law and the TUT law share many similarities, they also have important differences. The parties focus on one of these differences in their briefing. The Department explains that under the Bradley-Burns law, a retailer's in-state sales are subject to the sales tax in the jurisdiction of the retailer's place of business, even if the property is delivered and used in another jurisdiction in California. (§ 7202; Cal. Code Regs., tit. 18, § 1802.) But under the TUT law, the rule is different. A retailer's sales are not subject to the transactions tax in the jurisdiction of the retailer's place of business if the property either is delivered and used in another jurisdiction or, in the case of certain vehicles, aircraft, and vessels, is registered to an address in another jurisdiction and the buyer declares this address to be his or her principal place of residence. (§ 7261, subd. (f) [also describing separate rules for commercial vehicles]; Cal. Code Regs., tit. 18, § 1821, subd. (2).) These sales are instead subject to the use tax portion of the transactions and use tax, if any, in the jurisdiction where the property is delivered or registered. (§ 7262; Cal. Code Regs., tit. 18, § 1827.) The City acknowledges this distinction, but it says "it defies belief to imagine that this minor administrative issue would be dispositive as to the average voter's intent."
But this is not simply an administrative issue, nor is it necessarily a minor issue. For some cities, perhaps, this distinction might have little impact. But for others, it very well could have a significant impact. To provide a simplified example, suppose that a substantial portion of a city's tax revenues came from car sales in the city and a substantial portion of buyers came from neighboring jurisdictions. Suppose too that the city has a one percent tax under the Bradley-Burns law and a separate one percent tax under the TUT law. The city's take from the car sales would not be the same for each tax, even though both tax rates are the same. Nor would the payers for each tax be the same. That is because while sales to all buyers would be subject to the city's tax under the Bradley-Burns law, sales to buyers in outside jurisdictions would not be subject to the city's tax under the TUT law. (§§ 7202, 7261, subd. (f); The Cal. Municipal Law Handbook (Cont.Ed.Bar 2023) § 5.32.) These types of considerations could be important, for a city voter might favor a tax under the Bradley-Burns law that would generate revenues in large part from buyers in outside jurisdictions, but not favor an equivalent tax under the TUT law that, depending on the circumstances, would generate less revenues and derive less from buyers in outside jurisdictions. How these considerations could play out in the City is outside the scope of the record here. But at the very least, we find these considerations relevant and impair our ability to say with confidence that the City's voters would have preferred the reformation the City proposes.
This distinction, moreover, is not the only one between these two tax schemes. Another important distinction is that the Bradley-Burns law allows a city to charge a tax in increments of one percent, with the city's share of the 1.25 percent tax under the Bradley-Burns law being zero or one percent. (§ 7202, subd. (h)(1).) The TUT law, in contrast, allows a city to charge a tax in increments of 0.125 percent. (§ 7261, subd. (a).) This distinction matters, for although the City's voters might have preferred a tax increase of one percent rather than none at all, they might also, if given the choice, have preferred a tax increase of 0.125 percent, 0.875 percent, or something in between. And so although the City believes its voters would prefer a rewrite of its ordinance to impose a one percent tax under the TUT law, we cannot say the same with the requisite confidence. Its voters, after all, may prefer to start anew to make an informed decision about the appropriate tax rate rather than be stuck with a tax increase of one percent. (See Kopp, supra, 11 Cal.4th at p. 670 (plur. opn.) [finding the electorate might "prefer to start anew" on campaign finance reform rather than accept a judicially reformed law "that might actually hamper future campaign financing reform"].)
Although the City argues its voters evidenced their intent that the measure be preserved to the extent possible, citing a severability clause in title 3, chapter 3.36 of the City's code, we find that clause unhelpful to the City's position. Title 3, chapter 3.36 of the City's code, again, is the part of the City's code subject to the Bradley-Burns law. The cited severability clause in that chapter states: "That should any provision, section, paragraph, sentence, or word of this ordinance be rendered or declared invalid by any final court action in a court of competent jurisdiction or by reason of any preemptive legislation, the remaining provisions, sections, paragraphs, sentences or words of this ordinance as hereby adopted shall remain in full force and effect." (Italics added.) But this clause at most suggests that courts have some authority to modify "this ordinance"- that is, the City's ordinance described in title 3, chapter 3.36 of the City's code-not authority to draft a separate ordinance creating a separate chapter of the City's code, as the City desires.
Attempting to bolster their argument in their reply brief, the City contends we should consider City Council records that were never submitted to the voters. It then notes that in the resolution calling for an election on the proposed tax increase, the City Council acknowledged the City's authority to levy a transactions and use tax under a statute in the TUT law, section 7285.9. But this resolution was never presented to the voters, and as our Supreme Court has explained," 'legislative antecedents' 'not directly presented to the voters . . . are not relevant to our inquiry.'" (Robert L. v. Superior Court (2003) 30 Cal.4th 894, 904-905.) The City encourages us to ignore this precedent, stating that we should still consider the resolution because it is part of the historical context and thus relevant. But while we acknowledge that historical context can be relevant in reviewing legislative intent (Rossi v. Brown (1995) 9 Cal.4th 688, 700, fn. 7), that does not mean that all evidence of historical context is relevant. In this case, our focus is on the voters' intent; and evidence showing only the City Council's possible intent does not help reveal the voters' intent, even if this evidence could be characterized as evidence of historical context. (Robert L. v. Superior Court, at p. 905 [explaining that the Legislature's possible intent is irrelevant when attempting to determine the voters' intent].) To the extent, moreover, that the City thinks we can ignore our high court's precedent on this topic, it is wrong. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Having considered the relevant materials, we find judicial reformation inappropriate here, as we are unable to conclude with confidence that the City's voters would support our rewriting the ordinance to impose a tax that the voters never considered and that is materially different from the tax they approved. Judicial reformation is "a task to be undertaken sparingly and cautiously" (Kopp, supra, 11 Cal.4th at p. 675 (conc. opn. of Werdegar, J.)), for a court's role" 'is fundamentally to interpret laws, not to write them'" (California Teachers Assn. v. Governing Bd. of Rialto Unified School Dist. (1997) 14 Cal.4th 627, 633). Because we lack the requisite confidence here to support reformation, "we refrain from exercising the extraordinary power to rewrite" the City's ordinance. (Kopp, at p. 675 (conc. opn. of Werdegar, J.).)
The Department offers two additional arguments against reformation. It says reformation would be "problematic" because it would deprive taxpayers of any opportunity to challenge the tax, for under section 7270.5, voters have only 60 days to challenge a tax's validity. It also says reformation would violate Proposition 218, as Proposition 218 permits a local government to impose a general tax only after voters approve "that tax." (Cal. Const., art. XIII C, § 2, subd. (b), italics added.) We find it unnecessary, however, to address these separate arguments.
DISPOSITION
The judgment is affirmed. Respondents are entitled to recover their costs on appeal. (Cal. Rules of Court, rule 8.278(a).)
We concur: EARL, P. J., ROBIE, J.