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Submitted by on 1, June 3, 2010 – 1:33 pm9 Comments

Updated 2:17 p.m. Thursday, June 3

An Alameda County Superior Court judge has ruled as anticipated against local property owners who sued the Alameda Unified School District in an effort to invalidate Measure H, saying the tax is legal.

An attorney for the plaintiffs in one of the two lawsuits said he plans to appeal.

“I am thrilled with Judge Burr’s decision,” Superintendent Kirsten Vital was quoted as saying in a statement from the district. “His ruling is a victory for the students and the entire Alameda community who support and are proud of our quality schools.”

District officials said Judge Kenneth Mark Burr’s ruling is significant because it means the Measure E parcel tax before voters, which contains the same structure as Measure H, is also legal. And they said the ruling will help preserve funding the district needs as the state continues to cut funding.

David Brillant, the attorney representing the plaintiffs in the case, said he’s not surprised by the ruling and that he is already working on his appeal.

“I’ve already prepared my notice of appeal and have been preparing to write my opening appellate brief,” Brillant said in a statement. “I am looking forward to presenting my arguments to the First District and continue the fight against split roll taxes.”

He said the appeal could take 18 months to run its course, meaning it wouldn’t be decided until after Measure H sunsets in 2012. But Brillant said that if he wins the appeal, the district could owe a massive refund to taxpayers.

George Borikas, who owns two apartment buildings and a real estate services company, sued the district in August 2008, claiming that Measure H was illegal because the tax is not uniformly applied. Homeowners pay $120 each under the tax, while commercial property owners pay 15 cents per square foot of lot per parcel, with a cap of $9,500 per parcel. Additional commercial property owners joined the suit later.

A week later, local yacht merchant and landowner John Beery filed a separate suit, making essentially the same claims. Beery and the district enacted a resolution plan in 2009 that put together a committee to create a replacement tax, though Beery was ultimately not on board with the result.

Judge Burr’s earlier rulings on motions made during the course of the combined cases led most case-watchers to believe that he ultimately intended to rule in favor of the school district. The district’s attorneys submitted a proposed ruling to the judge on May 19.


  • Mike S says:

    So what does this mean? Are we going to have to pay for two parcel tax increases if E passes? I hope not!

    • Hey Mike,

      If Measure E passes, it will replace our existing school parcel taxes, Measures A and H. If not, A and H will likely remain in place until the sunset in 2012. I say “likely” because the plaintiffs’ attorney, Mr. Brillant, said in his release that he anticipates that an appeal would take about 18 months, which means that it could be pending until H sunsets.

  • Cloud Schnoebelen says:

    What will the No on E guys do with all of their “support classrooms, not courtrooms”?

    They certainly don’t make any sense now!!!

    Great news. Now let’s get E passed now!!!

  • Leland Traiman says:

    As we all know, just because a trial judge rules one way does not mean it will not be reversed on appeal. The District has already spent over $200,000 defending H and, with an appeal pending, it will spend even more on court rooms and not class rooms. This will be true even if the Court of Appeals sustains this ruling. Whether you support or opposed H and/or E (and many of us supported H but oppose E)one must admit both were poorly written. The fact that E is almost a twin to H (except, of course, that it doubles the taxes) means that it was poorly written TWICE. Given the fact that California Government Code – Section 50079 says,
    “‘qualified special taxes’ means special taxes that apply uniformly to all taxpayers or all real property within the school district,” it is reasonable that this single judge’s ruling will not stand up on appeal.
    The square footage tax I wrote for the City of Berkeley 30 years ago has never been challenged. Unlike E & H, which taxes big rich houses and small poor houses the same, it is progressive so the rich pay more than the poor. Notice I use the present tense “is” because Berkeley’s much more equitable and legally sound tax is still bring in millions of dollars to the Berkeley Public Library every year. That is something these badly worded pieces of legislation will not be doing 30 years from now regardless of how the courts rule. Unfortunately, our school board was not interested in fairness nor stability when they came up with H & E. They insisted on reinventing the wheel and came up with a rectangle.

  • ben says:

    another eighteen months of litgation on measure h and years to go on the suit against the state (it will solve all our progblems! but we still need measure e!) and it sounds like the district is investing in courtrooms not classorms to me.

    does everybody forget that the district already increased class sizes to 25?

  • If Measure E loses, Class sizes will grow to 32. Measure provides smaller class sizes.

    And your lawsuit argument is mindboggling. Blame the District for successfully defending a lawsuit, rather than the ideologues who are funding the suit, despite it’s current loss and low chance of success in the future.

  • ben says:

    the democrats are pushing a budget proposel that would fully fund education – the finances are not going to be as bad as the district would have us believe and they aren’t going to be that bad for 8 years

    i’ve never believed the school districts master plan – they had the consultants in on that one from the beginning. consolidate schools to save some money already nothing has changed since the navy left alameda and its time it does.

    structure a tax that is lower and something people can afford – one that will pass – and combine that with cost savings through school consolidation and the businesses will stop suing the district (the businesses already told the district that many times)

    the $200,000 that the district has paid on lawyers would pay for a teacher or two to keep class sizes small

  • The District hasn’t spent $200K on lawyers. They have been billed $200K on lawyers, their insurance covered a good chunk of that. Insurance won’t pay for teachers.

    If people stop suing the District, those costs go to zero. The District can’t force people intent on suing to stop suing them.

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