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Attorney’s for Borikas File Appeal Brief in Measure H Lawsuit

Late last month, attorney David Brillant filed with the California Court of Appeal, First Appellate District, an appeal on behalf of the plaintiffs in the lawsuit over the uniformity of the Alameda Unified School District’s (AUSD) 2008 parcel tax, Measure H. The case number is A129295.

In their original lawsuit, the plaintiffs argued that the structure of the Measure H parcel tax was unlawful because it provided different rates for residential and commercial property owners, and provided for different tax rates even among commercial property owners, because of the tax cap. In May of last year, AUSD announced that the trial court had ruled in their favor in Borikas, et al. v. Alameda Unified School District, et al., case number VG08405316 in Alameda County Superior Court. At that time, the plaintiffs vowed to appeal the decision.

David Brillant, attorney for the plaintiffs, speaking about the new appeal brief, told Action Alameda News, “I think the brief is really strong. Our position from day one has been that the school district has exceeded their authority with this tax and this brief explains it in detail in over 40 pages. We’re optimistic that the tax will be deemed illegal.”

Brillant went on to explain that the appeal is broken roughly into two parts. The first part outlines a legislative history of Government Code Section 50079 which authorizes school districts to impose special taxes that “apply uniformly to all taxpayers or all real property within the school district.” The second part argues the plaintiffs’ case.

Brillant and fellow attorney Leslie A. Baxter write in the brief:

Measure H does not apply uniformly. Compare CT 123, Exh. A (Measure H) with §50079 (“School districts; qualified special taxes”). Every year, Measure H taxes residential properties $120 per parcel, but it imposes a different tax on commercial/industrial properties. Commercial/industrial properties are taxed $0.15 per square foot, but with a different rate of $120 per parcel on properties smaller than 2,000 square feet, and a different rate for the largest properties, with a maximum of $9,500 per parcel. This is not a tax that is unvarying. See Black’s Law Dictionary (6th Ed., 1990) (definition of “uniform”). This is not a tax that is the same in different places at different times. See The Oxford English Dictionary (The Compact Edition, 1971) (definition of “uniform”). Measure H is not like the flat-fee parcel tax levied by Davis at the time the Legislature drafted section 50079. See LH:169. Rather, Measure H is just like Albany’s bifurcated tax, a structure Albany knew would not survive the coming statute.

The reference to Albany is a reference to an Albany Unified School District tax that Brillant and Baxter say was never accommodated in legislation that Sacramento enacted in the late nineteen-eighties to facilitate school parcel taxes for other districts. In the past, the Alameda Unified School District has relied on the Albany tax as justification the Measure H structure.

The full appeal briefing is reproduced below.

Measure H Jan 3 2011 Appeal Brief

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