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Juge seems set to nix snap ruling for plaintiff in H case

Submitted by on 1, July 8, 2009 – 6:00 amOne Comment

Updated 2:19 p.m. Wednesday, July 8

Alameda County Superior Court Judge Kenneth Mark Burr has made a tentative ruling in John Beery’s case against the Measure H parcel tax. Judge Burr has denied Beery’s request that the judge immediately rule the case in his favor, opting to keep the case going instead.

The judge previously ruled against the plaintiffs in a separate case who asked for a similar ruling. Business owners involved with that case have asked the district to consider taking it into mediation.

A hearing on the motion is scheduled for Thursday morning. Until then, here’s the text:

This Tentative Ruling is issued by Judge Kenneth Mark Burr The motion for summary judgment or, in the alternative, for summary adjudication, by Plaintiffs John C. Beery, Alameda Gateway, Ltd., and Mariner Square & Associates (“Plaintiffs”) on their complaint against Defendant Alameda Unified School District (“District”) is DENIED. The motion for summary adjudication of the First and Second Causes of Action is DENIED.

Plaintiffs contend that the parcel tax imposed on property owners in the City of Alameda by special tax Measure H must be invalidated because the tax it imposes is not uniformly applied, in violation of Government Code section 50079. Plaintiffs also contend that Measure H violates Government Code section 50079(b)(2), which only allows a district to impose “qualified special taxes” that do not include special taxes imposed “on a particular class of property or taxpayers.” Plaintiffs acknowledge that the claims under their First and Second Causes of Action are interrelated, since both causes of action are based on the premise that the parcel tax under Measure H is not being applied “uniformly to all property within the school district.”

The Court previously ruled on essentially the same “uniformity” issue in denying the motion for summary judgment brought by the Borikas plaintiffs. The Court adopts its holding in its prior ruling that the parcel tax imposed by Measure H is uniformly imposed. The Court is not persuaded to change its prior ruling by the new arguments and evidence submitted by Plaintiffs. The argument concerning legislative history was made in support of the prior motion. The new evidence submitted elaborates on that prior argument. In general, the evidence offered shows that some non-legislators thought that the statute might be interpreted in the manner sought by Plaintiffs in this action. Much of the evidence concerns attempts to add a provision to section 50079 allowing an exemption for seniors, which ultimately resulted in the language in section 50079(b)(1) allowing school districts to include an exemption for taxpayers 65 years and older and those receiving Supplemental Security Income. That provision allowing an exemption is not an issue in this motion. Plaintiffs have also added an argument claiming a distinction between the requirement of “strict uniformity” applicable to property taxes, and a looser requirement of uniformity in the operation of law that is analogous to the federal right of equal protection. This argument, although interesting, is not persuasive. The cases cited do not hold that there is a recognized distinction between the meaning of uniformity when used in a provision allowing special taxes, and the meaning of the same term as used in all other areas of the law. It is even less apparent that the Legislature would have or should have been aware of this distinction when it drafted Government Code section 50079.

Finally, it also is not clear from the cases cited or Plaintiffs’ brief what is meant by the term “strict uniformity.” Plaintiffs do not explain whether strict uniformity means that every parcel, no matter how large, pays the same yearly assessment, or whether it means that taxes must be assessed based on the square footage of each parcel, without regard to its current use. The motion for summary adjudication of the Third Cause of Action is DENIED.

Plaintiffs assert that Measure H is not a special tax, but instead a general tax. A “general tax” is defined to mean any tax imposed for general governmental purposes; a “special tax” is defined as any tax imposed for specific purposes, which is placed into the general fund. Article XII C, Section 1, of the California Constitution. Plaintiffs contend that Measure H should be invalidated because under Article XIII A, Section 4, and Article XIII C, Section 2(a), school districts are only authorized to enact special taxes, and are prohibited from enacting general taxes. Plaintiffs argue that the enumerated purposes for the parcel tax imposed by Measure H are so broad that there is no effective limitation on the uses to which the revenue can be used. The Court does not agree that the “purposes” of the tax as set out in the resolution of the Alameda Unified School District in which the parcel tax was adopted provide no effective limitation on the uses to which the revenues can be used. All that is required for a special tax is that its proceeds are earmarked or dedicated in some manner to a specific project or projects. Neecke v. City of Mill Valley (1995) 39 Cal.App.4th 946, 956. The specification of purposes in Measure H all relate to improvements to education within the Alameda Unified School District, is proper under the holding in N.L. Nielson v. City of California City (2005) 133 Cal.App.3d 1296, 1310-1312. Finally, District is a “special purpose” district, so every tax levied by District is deemed a special tax. Rider v. County of San Diego (1991) 1 Cal.4th 1, 13-15.

Plaintiffs’ request for judicial notice of Exhibits A-E and G is GRANTED. Plaintiffs’ request for judicial notice of Exhibit F is
DENIED. Lack of relevance. District’s request for judicial notice is GRANTED.

One Comment »

  • Barbara Thomas says:

    This means that the Judge, tentatively, is not willing to say Beery wins without need of ever troubling to take the case to trial: There are material questions of fact upon which evidence needs to be presented to the trier of fact.

    Doesn't mean anyone wins or loses, just that additional legal proceedings (and costs) cannot be avoided.

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