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Borikas v. AUSD Going to Trial – Plaintiffs File Trial Brief

Last week, David Brillant, attorney for the plaintiffs in the Borikas v. AUSD lawsuit over Measure H filed a trial brief with the court. The case is going to trial and may have impacts on the school district’s newly proposed parcel tax, Measure E.

Mr. Brillant represents commercial property owners in Alameda who sued the Alameda Unified School District over Measure H, in 2008, asserting that the parcel tax enacted by the ballot measure is unfair, and does not uniformly tax property as required by law. Last year, Judge Kenneth Burr rejected a motion for summary judgment in favor of the plaintiffs; now the case will go to trial.

In his court pleading, Brillant argues that “Measure H provides for a differential tax rate between commercial properties, based on the property.” Under Measure H, commercial property owners with parcels from 2000 square feet to 63,333 square feet pay a tax of $0.15 per square foot per year.

The tax for commercial property owners is capped at $9,500, (i.e. a 63,333 sq ft parcel), meaning that, for example, a commercial property owner in Alameda with 100,000 square foot parcel would pay only $9,500, or $0.11 per square foot. A commercial property owner with a 1,900 square foot parcel would pay the minimum $120 per year, or $0.16 per square foot. This, says Brillant, is not uniform taxation across different commercial property owners in keeping with the legislative interpretations of California Government Code section 50079.

Further, Brillant appeals to the landmark ruling in Serrano v. Priest (1976) which “required the State to reduce wealth-related disparities in district per pupil expenditures.” The point of the Serrano lawsuit was to provide equal funding to all California students regardless of the relative wealth of their communities. (Some people have argued that the Serrano precedent helped spark the movement behind Proposition 13)

The gist of Brillant’s argument here is that special taxes, such as school district parcel taxes, are not permitted by law to be tied to wealth or value, and that Measure H is unlawful, because the amount of the tax is directly related to wealth – commercial properties are generally more valuable as their size increases, and under Measure H, more valuable commercial properties are taxed at a different rate than smaller commercial properties or residential properties.

In contrast, property taxes, or ad valorem taxes, are intended, and permitted, to be taxed in accordance with their value; under Proposition 13, property taxes are assessed at 1% of the property’s assessed value.

In his brief, Brillant also addressed the complicated issued of severability, basically, the idea that some portions of Measure H could be dismissed, resulting in a uniform tax.

Brillant writes, “There is no evidence that the electorate would have passed Measure H if, instead of the disparate rates in the measure, all parcels were to pay $120. It is equally probable that the electorate was motivated by the provision for different and often higher taxes on commercial property. This is logical since Measure H allowed the voters in the School District to shift some of the special tax burden to commercial property owners who may or may not be eligible to vote in the District.” He concludes, “There is no evidence which would allow the Court to use the severance provisions of Measure H to change the rate structure. If Measure H is held to be invalid, it is invalid.”

At the March 15, 2010, AUSD Board of Trustees special meeting, wherein the Trustees approved a resolution to put Measure E on the ballot, which would enact a split-roll parcel tax similar to Measure H, Alameda Unified School District Superintendent Kirsten Vital emphasized that the new tax would shift some of the tax burden away from commercial property owners and back to residential property owners. Measure E would replace the parcel taxes enacted in Measures H and A with a new tax. The new tax would cost residential property owners $659/year, compared to the current combined tax of $309/year for residential owners.

As of press time, the District’s attorney, David Neid, had not filed a court brief on behalf of the District.

There are two lawsuits against the school district over Measure H – Borikas et. al. v. Alameda Unified School District and Beery et. al. v. Alameda Unified School District. The cases are on file with the Alameda County Superior Court, case numbers VG08-405316 and RG08-405984, respectively.

9 comments to Borikas v. AUSD Going to Trial – Plaintiffs File Trial Brief

  • Anonymous

    Who is the District’s attorney David Neid? What happened to AUSD’s General Counsel Houck?

  • It remains to be seen if AUSD will continue to pay both. And if they will hire a second attorney to defend the Cook/Dietrich lawsuit over alleged open meeting violations.

  • And the AUSD has already spent over $217,000 defending Measure H, enough to hire FOUR new teachers, and it hasn’t even gone to trial yet. Those costs will mushroom in court, and if Measure E passes, that will cost the district even more. Where are their priorities?


  • Smart voter

    According to the court website, they are switching Attorneys.Why so late in the game?

  • Anonymous

    Why don’t they just stick to teaching?

  • Vania

    @ Smart Voter:

    Companies and public agencies switch lawyers right before trial for at least 3 reasons:

    1. They are scared and want a better trial lawyer than the one who has taken the laboring oar on the case. BofA and the big insurance companies do this all the time.

    2. They switch trial lawyers so that all of the oral understandings and professional courtesies between the plaintiff’s and defendant’s lawyer which have occurred in the lead up to trial are destroyed.

    3. They switch lawyers to rattle the opposition trial lawyer, who has mentally prepared as to how to “deal with” the adversary he knows.

    AUSD’s motivations? Your guess.

  • Barb

    Or their original lawyers told them they were going to lose, they wouldn’t listen to the advice they paid for, and now they want someone to blame it on. Who better than the “fired” lawyers?

  • It’s not clear that Page Barnes, the switch-out attorney, was ever very active in the Measure H case. She’s a local Alameda parent who also did pro-bono work for the Alameda Education Foundation, when they found out that “Count Me In” had ripped them off to the tune of $80,000.

  • Smart voter

    Page Barnes works for Foley and Lardner, Attorneys for AUSD. I doubt very much she did “pro bono” on the Measure H lawsuit. If she was involved for 2 years, how much did she get paid by AUSD? We know Nied got 217.425.00.