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UPDATED Judge affirms ruling in H case

Submitted by on 1, March 17, 2009 – 9:22 amNo Comment

Updated 5:53 p.m.

An Alameda County Superior Court judge has affirmed an earlier, tentative ruling in one of the court cases to halt the Measure H school parcel tax.

Judge Kenneth Mark Burr upheld a ruling that denied plaintiffs in the case a summary judgment ruling (which would essentially have handed the plaintiffs a victory in the case before a trial was held). In the ruling, the judge also appeared to question one of the plaintiff’s central legal arguments in the case, that the tax is not uniform and therefore not legal.

Borikas’s attorney, David Brillant, said he’s disappointed in the ruling but that the case is still due for trial. And he said attorneys for John Beery, who filed a second case to invalidate the parcel tax, will file a separate summary judgment motion.

The cases are slated to be consolidated and hear by Judge Burr, with a trial date set for Setpember 17.

Here’s Brillant’s full response:

I am disappointed in the ruling but we have a trial date on September 17, 2009 so it looks as if this matter is going to be subject to a trial.  However, Mr. Beery’s attorney was in the courtroom and after the hearing, we had a conference with all attorneys and he advised the Court that Mr. Beery would be filing his own motion for summary judgment.  So, even before we get to a full trial on the merits of this case, there will be a second shot at summarily defeating this illegal tax.

The school district *just* sent out a press release saying they’re heartened by the judge’s ruling and that they plan to vigorously defend the parcel tax in court. Per Superintendent Kirsten Vital:

“We are very pleased that Judge Burr ruled against the plaintiffs’ motion for summary judgment,” said Superintendent Kirsten Vital. “We are particularly heartened that he specifically indicated that the requirement that the tax be applied ‘uniformly’ only requires that the tax be applied uniformly to all parcels within the same classification and not identically to every parcel regardless of its size or use,” she continued.

The tax, which was passed in June 2008, will give the school district an estimated $4 million a year over each of the next four years. The district is planning to use the money to balance its budget in the wake of multi-million-dollar state budget cuts.

Some business and commercial property owners opposed the tax because the rates for homeowners and commercial propert owners differ, which they have said is unfair.

Homeowners and commercial property owners with less than 2,000 square feet are charged $120 a year. People who own larger commercial properties pay 15 cents a square foot, with the levy topping out at $9,500 per parcel.

If you’re looking for the text of the tentative ruling, I’ve got it here. (Oh, and if you’re looking to attend future hearings, Judge Burr’s courthouse is actually on the second floor of the post office around the corner. Who knew?)

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