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Plaintiffs in Borikas v. AUSD Vow to Appeal Trial Court Ruling on Measure H

The plaintiffs in a lawsuit against the Alameda Unified School District over Measure H, who asserted that the Measure H “split roll” tax is illegal and unfair, vowed today to appeal a trial court judgment that ruled the tax legal.

In Borikas v. Alameda Unified School District, the plaintiffs, local Alameda business and property owners, alleged that the school district parcel tax structure imposed by Measure H is an illegal “split roll” tax – it taxes different property owners at different tax rates.

Measure E, put on the ballot in a special vote-by-mail-only election proposes a similar split roll tax structure. Ballots for Measure E have already been mailed to voters; the special election date is June 22, 2010, and the tax would replace and more than double the taxes previously implemented through Measures H and A, and extend them to 2018.

David Brillant, lead attorney for the plaintiffs, was quick to announce his intention to appeal the lower court’s decision. “I’ve already prepared my notice of appeal and have been preparing to write my opening appellate brief,” stated Mr. Brillant. “I am looking forward to presenting my arguments to the First District and continue the fight against split roll taxes.”

In her own press release, Alameda Unified School District Superintendent Kirsten Vital asserted that the lower court’s ruling validated the tax structure of Measure E. “I am thrilled with Judge Burr’s decision,” stated Superintendent Kirsten Vital. The lawsuit has cost the District over $200,000 in legal fees alone.

Brillant noted the appeal could take as long as 18 months, and that should the Court of Appeal overturn the lower-court’s ruling, the District may face a massive refund claim due to taxpayers for taxes collected under Measure H.

5 comments to Plaintiffs in Borikas v. AUSD Vow to Appeal Trial Court Ruling on Measure H

  • Now that Measure H has been ruled constitutional by Judge Mark Burr, who lives in Alameda, let’s leave it in place by voting No on Measure E. Measures A & H won’t even run out until 2012, when perhaps the economy will have improved sufficiently for Alameda businesses to pay another parcel tax without going out of business.

    Of course, pending State legislation changing the rules about parcel taxes would lower the votes needed to 1/2 rather than the current 2/3, but it will also cap any new parcel tax at $150. Did that fact influence Superintendent Vital’s timing on Measure E?

  • Alan2010

    Alameda Superior Court’s website has got to be one of the worst in the state. There’s no way to confirm the names of the judges on the court.

    The Court of Appeals records show that there is an Alameda Superior Court judge named “Kenneth Mark Burr”.

    Assuming it’s the same judge referred to in the story above, he’s got an interesting batting average when his decisions go up to the Court of Appeal and beyond.

    His name only shows up in 7 appellate court cases. In 5 of them, the appellate court upheld his decision. In 2 of them they “affirmed him in part” and “reversed him in part”, meaning that he made some mistakes.

    That 7th case involving Judge Kenneth Mark Burr is a doozy. It is called Quarry v. Doe 1, 170 Cal. App. 4th 1574 (2009). Judge Burr dismissed the complaint by 6 brothers people who said they had been molested by Catholic priests. The Court of Appeal reversed Judge Burr on that matter, and tried to send the case back to him. However, the Roman Catholic Church appealed, and not the case is before the California Supreme Court. Though officially the Court of Appeal decision cannot be “cited” in court, here is what three seemingly Roman Catholic appellate court justices had to say about the basic facts of the case:

    “Six brothers claim they were sexually abused by a Catholic priest in the 1970’s, when they were children. They sued defendant Doe I in 2007 for damages due to adult-onset psychological injuries allegedly caused by that abuse. When they sued, they ranged in age from 43 to 49. They alleged they did not discover until 2006 that the cause of their adulthood psychological injuries was the childhood sexual abuse.

    The Bishop demurred to the complaint. He argued that plaintiffs’ causes of action were barred under earlier limitations periods and that later expansions of the statute of limitations did not revive their lapsed claims. Plaintiffs contended that the current statute (Code Civ. Proc., § 340.1) applied, pursuant to which their claims did not accrue until 2006, when they discovered the cause of their injuries. The trial court sustained the Bishop’s demurrer and dismissed the complaint.

    We reverse and hold that the prior limitations periods did not extinguish claims that had not accrued while those limitations were in effect, and that the timeliness of the complaint is to be measured by the statute in effect at the time the complaint was filed.”

    So it will be interesting to see how well Judge Burr’s decision making holds up before the California Supreme Court on “a very big case”. Just like in baseball, sometimes a pitcher can win games against mediocre teams, but then gets creamed when he goes up against the League Champion.

  • propubliceducation

    Alan2010, thanks for the info! Confirms that when Vital says, “since the resolution of the appeal is likely to be many years away, Measure H is now secure,” she either doesn’t get 4th grade government or is willing to dupe the public to “secure” funding in the short term to AUSD to cover her $200K salary (either way she shouldn’t be AUSD’s superintendent). AUSD is willing to gamble having the State takeover AUSD in the event AUSD loses on appeal as opposed to floating a parcel tax that’s clearly not a “split roll,” like 99% of the other school districts in CA. Don’t be duped! Protect public education in Alameda! Vote No on E!

  • In today’s paper, AUSD Trustee Trish Spencer, who voted against the resolution to put Measure E on the ballot, addresses the same issue. The appeals court exists for a reason, and the ruling on Measure H may be overturned. The District is taking a big gamble with their finances, and with the children, by insisting on a split-roll tax. It is well-documented how the business community tried to work with the District to avoid a split-roll and avoid litigation. However, the District, like a stubborn child, has been obstinate and insisted on the split-roll tax.

  • We can assume that the split-roll tax initiative is the brainstorm of political consultants Erwin & Muir, who also helped design Measure H. Their strategy is this: you can’t charge businesses the same flat rate as the regressive tax on homes, as home owners would HOWL! (And you wouldn’t raise enough money.) But if you charge every parcel the same rate per footage, without a cap, “Towne Centre” would fight you tooth and nail, and probably has even bigger bucks than the teachers’ unions for this campaign.

    The mall formerly known as “South Shore” is made up of what? Seven or eleven parcels? Still, they’re limited by Measure E to about $10K/year/parcel, and can pass those costs on to maybe 7-8 stores/per, which will be much cheaper for them than a Park Street biz paying the max, which works out to about $791/month. During what looks like a Double-Dip Recession!

    And…while I did well in plane geometry, I didn’t do well in math. But I’ve been doing political consulting and campaign management and volunteering all my life.


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