Judge dismisses challenge to state fire fee

SACRAMENTO — A superior court judge dismissed a long-running challenge to a state fire fee passed in 2011.

Monday’s ruling by Judge Shelleyanne W. L. Chang of Sacramento did not address the merits of the case. This was a disappointment to legal observers who hope for a courtroom test of Proposition 26, a 2010 ballot initiative that requires a two-thirds vote of the Legislature to pass a tax.

Courts have decided many Proposition 26 challenges to local fees or taxes in the years since, with verdicts going both ways. The fire fee represented a direct face-off between the state and a key group behind the proposition, with millions of dollars at stake.

Instead, Chang ruled the Howard Jarvis Taxpayers Association failed “to bring the action to trial within five years” as required by state law. This finalized a tentative ruling Chang published on Friday. Howard Jarvis Taxpayers Association v. California Department of Forestry and Fire Protection, 00133197 (Sacramento Super. Ct., filed Oct. 4, 2012).

A Howard Jarvis association attorney said the group plans to appeal to the 3rd District Court of Appeal.

“We just feel like we were blindsided,” said Timothy A. Bittle, director of legal affairs at the taxpayer group.

The sudden end to the lengthy case came in response to a motion for dismissal filed by Attorney General Xavier Becerra on Oct. 5, exactly five years and one day after the initial complaint.

Becerra cited a section of state law added in 1984. The relevant section was part of a series of changes designed to speed cases, largely in response to reports civil defendants were using delays to avoid judgments.

The motion and Chang’s ruling were surprising for several reasons, including because the court had deemed the case a “special proceeding,” Bittle said.

The rules grant judges wide discretion, a fact noted by Chang in dismissing several objections raised by Howard Jarvis attorneys. The fact the case was a special proceeding “does not preclude … dismissal,” Chang wrote. “[T]he Court retains inherent authority to make this determination.”

Bittle said Becerra’s motion was intended to make sure the case was not decided on the merits. Howard Jarvis attorneys got the case certified as class action last year and took affidavits from hundreds of plaintiffs.

“When they saw what we had filed, how persuasive and overwhelming it was, I think they were just grasping at straws, asking, ‘What can we do to get rid of this case?’ and they landed on the five-year rule,” Bittle said. “This case was obviously not languishing. It was fully briefed and ready to be decided.”

Neither Becerra’s office nor CalFire returned calls seeking comment.

The group’s initial lawsuit challenged a $150-per-home annual fee passed via AB 29. The fee applied to about 825,000 property owners in California’s State Responsibility Areas. These are areas not under the control of the federal government or local cities.

The goal was to raise more than $80 million annually to fight the growing threat of wildfires in California. The state argued AB 29 used the fee to directly provide services to the homeowners who paid it. The Howard Jarvis association claimed it imposed a tax because many homeowners did not receive services, making it illegal under Proposition 26 because AB 29 passed with only a majority vote.

The fee was suspended in July as part of a legislative deal to extend the state’s cap-and-trade program.

Chang’s ruling comes days after CalFire reported it blew through its $427 million annual firefighting budget less than six months into the fiscal year. The agency has battled multiple record-setting blazes that have destroyed thousands of homes in recent weeks.