Taxpayer group seeks to get ‘fire fee’ money back from the state in appeal

Rural homeowners could be facing a new fire fee to offset the costs of fighting and suppressing wildfires, even as a taxpayers' group makes a last-ditch effort to recoup the money already collected by the state.

"This appeal takes on a new importance now that State Senator Bob Wieckowski has announced he is considering a bill 'eliminating the suspension of the State Responsibility Area Fire Prevention Fee,'" argued an appellant's reply brief filed this week in the case. Howard Jarvis Taxpayers Association v. California Department of Forestry and Fire Protection, C086660 (Cal. App. 3rd, filed March 1, 2018).

"I just wanted the court to know this isn't just an academic question at this point," said Timothy A. Bittle, director of legal affairs with the association. "It's not like there's going to be no consequences if they rule against us. It's really unfortunate that all of these people's rights are tied up in this court, and the superior court didn't hear the merits of it."

The taxpayer group sued in 2012 to block the $150-per-home fee assessed to about 825,000 rural property owners in areas where the state is responsible for fire suppression. It claimed the law, passed with a majority vote as AB 29 in 2011, was a tax that should have required a two-thirds vote under rules approved in 2010 when voters passed Proposition 26.

But the case came to an abrupt halt in December 2017 when Attorney General Xavier Becerra's office filed a motion claiming a five-year time limit on civil cases had expired. Sacramento County Superior Court Judge Shelleyanne W.L. Chang agreed and dismissed the case.

The Legislature had already voted to suspend the fire fee earlier that year though the taxpayer group was seeking a refund on the payments already made.

Wieckowski said in a budget subcommittee hearing last month he was thinking of introducing a bill to start collecting the fee again. He quickly reiterated these remarks in a press release, citing a "five-fold" increase on state spending on firefighting and suppression since the 2014-15 budget year.

A spokesperson for Wieckowski confirmed on Thursday the Fremont Democrat was still considering a bill but had not begun drafting any language.

In the association's brief filed Tuesday, Bittle argued the case was slowed by factors "outside of plaintiffs' control." These range from intentional delays by the attorney general and the defendant agency, known as Cal-Fire, to understaffing of the court during tight budget years earlier this decade.

Bittle cited case law he said shows the court still could have considered the case and abused its discretion in not doing so in a matter that was "ready for decision."

"Once ... a trial is commenced, the five-year statute is satisfied regardless of whether the trial proceeds immediately and continuously," the brief argued, citing In re Marriage of Dunmore (1996) 45 Cal.App.4th 1372, 1377.

In a brief filed on behalf of Cal-Fire in October, Becerra's office argued there were only "normal delays" in the case, and these did not take place near the end of the five-year period as one might expect if one side was trying to run out the clock. The brief argued the court "correctly found" none of "specific circumstances" needed to overturn the five-year rule applied.