Oakland District 1 Councilmember Dan Kalb’s Message On Measure AA Certification

Dear Oakland residents,

Thank you for contacting my office recently to inquire or express concerns about the City Council’s Certification of Oakland Measure AA (The Children’s Initiative of 2018). I do understand that the City Council’s certification decision may be puzzling to some. I hope the information provided in this email helps to explain our action.

As you know, Measure AA received over 62% of the vote. While not a two-thirds super-majority, it is indeed a significant show of support from the voters.

When it came to the question of official Certification of the November 2018 election results, the City Council had received pertinent information that the two-thirds vote requirement might not apply to citizen-initiated, signature-gathered tax initiatives such as Measure AA.

This information is related to a 2017 California Supreme Court decision (Calif. Cannabis Coalition v.. City of Upland), which suggests that a tax measure put on the ballot through a citizen signature-gathering effort does not necessarily have the same voter threshold requirement as tax ballot measures submitted to the voters by a local governmental body (such as a City Council).

Due to the apparent legal ambiguity, it became clear that, no matter what action we took on Measure AA, the City of Oakland would almost assuredly face legal challenges. Given our options, I and others in City Hall believed that the most efficient way to resolve the legal ambiguity was to Certify that Measure AA had passed, and take appropriate steps directing the City Attorney to file a “Validation action” in state court. In this way, we anticipate resolving the legal ambiguity as quickly as possible, while hopefully reducing Oakland’s exposure to multiple potential and costly lawsuits.

The City & County of San Francisco is facing the same legal question regarding two of its local tax measures. The SF City Attorney has published a legal opinion that these initiative measures only needed a simple majority vote to pass.

Some people have understandably noted that, back in early August of this year, our City Attorney wrote in her analysis and summary in the ballot pamphlet that this measure required a two-thirds vote for passage. The City Attorney at that time may or may not have been correct. The unclear legal issue makes it impossible to know for sure at this time one way or the other. The state courts must ultimately decide this question.

I know that some people are perplexed that the Council even considered certification of passage. I certainly understand why one might have such a feeling since they were led to believe that a two-thirds vote was required. But I feel that we owe it to the 62% majority of voters who voted in favor to seek the answer as quickly as possible. And many people rightfully feel that a super-majority requirement under Prop. 13 and Prop. 218 is undemocratic in and of itself, and that it’s reasonable to pursue a viable legal opportunity to role that back for local citizen initiative measures.

Thank you again for contacting my office. I hope this answers any questions you may have had.

– Dan

Dan Kalb
Oakland City Councilmember, District 1