Opinion
Page 377d
210 Cal.App.4th 377d __ Cal.Rptr.3d __ CITIZENS ASSOCIATION OF SUNSET BEACH, Plaintiff and Appellant, v. ORANGE COUNTY LOCAL AGENCY FORMATION COMMISSION et al., Defendants and Respondents. G045878 California Court of Appeals, Fourth District, Third Division October 31, 2012Appeal from a judgment of the Superior Court of Orange County, Frederick P. Horn, Judge No. 30-2010-00431832.
THE COURT:§
It is hereby ordered that the opinion filed herein on October 5, 2012 (209 Cal.App.4th 1182; ___ Cal.Rptr.3d ___), be modified in the following particulars and the petition for rehearing is DENIED:
1. On page 9 of the slip opinion [209 Cal.App.4th 1191, advance report, 1st par., lines 1-3], the last two sentences of the only complete paragraph should be changed to now read:
And city voters might enact certain general taxes which could squeak by with a “bare majority” of the voters. (See Neecke v. City of Mill Valley (1995) 39 Cal.App.4th 946, 950-951 [46 Cal.Rptr.2d 266].)
2. On page 11 of the slip opinion [209 Cal.App.4th 1192, advance report, 2d full par., lines 3-4], the citation to “Penziner v. West American Finance Co. (1937) 10 Cal.2d 160, 176 [74 P.2d 252]" should be changed to read:
Penziner v. West American Finance Co. (1937) 10 Cal.2d 160, 174-178 [74 P.2d 252] [refusing to find implied repeal of 1918 statutory usury law by 1934 constitutional amendment].
3. On page 17 of the slip opinion [209 Cal.App.4th 1197, advance report, 2d full par., line 3], a new footnote 19 should be inserted in the third complete paragraph after the sentence “Proposition 218’s silence on the subject of annexations is indicative of the voters’ understanding of what they were doing.” This new footnote 19 should read:
We realize, of course, that ballot arguments are subject to word limits, so ballot arguments cannot cover all situations where a measure might apply. Even so, total silence on a subject can indeed be indicative of an absence of intent to affect that subject. As the Supreme Court said in Penziner about the possible implied repeal of an earlier usury statute by a later constitutional
Page 377e
amendment: “It is quite significant that in the argument in support of the amendment sent to all voters (there was no argument contra), there is not one word indicating an intent to repeal the usury law.... It is quite unlikely that if the legislature in drafting, and the people in adopting, the constitutional provision had intended it to repeal the usury law, such intent would not have been clearly expressed.” (Penziner v. West American Finance Co., supra, 10 Cal.2d at p. 178, original italics omitted, italics added & omitted.)
4. On page 8 of the slip opinion [209 Cal.App.4th 1189, advance report, 3d full par., line 3], in the only complete paragraph, the reference to “article XIII, section 2” should be changed to “article XIII C, section 2.”
5. Footnote 14 on page 13 of the slip opinion [209 Cal.App.4th 1194, advance report, fn. 14] should be changed to read as follows:
In the language of the statute, annexation is “subject to confirmation by the registered voters residing within the affected territory.” (§ 57075, subd. (a)(2).) The vote is by a simple majority. (§ 57176.)
These modifications do not effect a change in the judgment.
The petition for rehearing is DENIED.
Rylaarsdam, Acting R J., and Aronson, J., Concurred.