Action Alameda News reached out to the law school for expert comment on the lawsuit over the school district’s 2008 parcel tax, Measure H. The California Court of Appeal last week affirmed a ruling that could see the school district having to refund several million dollars back to commercial property owners for tax payments collected unlawfully.
We also asked for comment on 18th Assembly District representative Rob Bonta’s bill, AB59, which appears to try to retroactively change the law to make it lawful for the school district parcel tax to set different rates for commercial property owners.
Two professors at the Berkeley School of Law agreed to speak only on background, citing the arcane nature of tax and budget law.
One wrote to Action Alameda News, after the initial appeal court ruling, but before last week’s affirmation of that ruling, “My sense is that you cannot retroactively change the law BUT that what Bonta is trying to do is to get the Legislature to say that the Court misunderstood the law on parcel taxes and that this is setting straight what was ORIGINALLY meant. Of course, courts might take this later adopted bill with a grain of salt and reject it as unconvincing (there is a long history of litigation when later statutes are used to try to convince courts as to how to interpret earlier laws).”
Another professor spoke at length on the topic, and cited the case of McClung v. Employment Development Dept. (2004) 34 Cal.4th 467, which concerned a completely different matter, but resulted in an opinion that rested on the doctrine of the separation of the judiciary and the legislature.
In the McClung case, the California Court of Appeal wrote, “Under fundamental principles of separation of powers, the legislative branch of government enacts laws. Subject to constitutional constraints, it may change the law. But interpreting the law is a judicial function. After the judiciary definitively and finally interprets a statute, as we did in Carrisales, supra, 21 Cal.4th 1132, the Legislature may amend the statute to say something different. But if it does so, it changes the law; it does not merely state what the law always was. Any statement to the contrary is beyond the Legislature’s power. We also conclude this change in the law does not apply retroactively to impose liability for actions not subject to liability when performed.”
The professor we spoke with thinks that Mr. Bonta’s bill is closely related to the McClung case, saying, “The legislature only gets to act proactively, it doesn’t get to go back in time and change the law, and say, ‘what we meant before was…’”
This professor says that Bonta’s bill faces another hurdle, in that the legislature generally can’t change voter-passed laws, unless the voter initiative included provisions for the legislature to change it. California Propositions 13 (1978) and 62 (1986) appear to make no provisions for the legislature to change the laws approved by voters.
“Even if AB59 passes,” we were told, “it probably won’t be effective in terms of changing last week’s Court of Appeal ruling, and someone is likely to challenge the bill and succeed.”
Further, it’s unlikely that the California Supreme Court would accept an appeal from the Alameda Unified School District. The court accepts only 4 percent of petitions for review, and the fact that lasts week’s ruling was certified for publication by the court, and reviewed twice, signals that it’s very unlikely the Supreme Court would review the ruling.
“I think the citizens of Alameda are stuck with this ruling,” the professor said.
At tomorrow night’s meeting, the Alameda Unified School District Board of Trustees will review the status of the case and discuss next steps.
The district has already said that it was initiating steps to appeal the ruling.
The Court of Appeal remanded the case to the trial court to determine remedies.
The case is VG08405316 in Alameda County Superior Court and A129295 in the appellate court.