Alameda Blog Campaign Coverage of the Parcel Tax

Here is a recap of entries from Alameda blogs

JUNE 3, 2008 BALLOT MEASURE H TITLE: Alameda Unified School District Special Parcel Tax Measure

How Our Schools Are Funded Now The school budget is approximately $78 million per year. It includes the cost of salaries and benefits for teachers, support personnel, and administrators. It also includes the costs of maintenance and upkeep of school structures and support facilities, classroom and administrative supplies, technical support, and instructional materials.

When we pay our property taxes, the money collected goes to the State and then is apportioned back to local districts. The money the Alameda Schools receives from the State covers about 80% of the School District's budget. The other 20% is raised by local funding. The amount received from the State depends on several formulas set by State laws and court opinions. The Alameda Unified School District (AUSD) is identified by the State as a "low wealth" district due to the amount it receives in accordance with these formulas. This means that the AUSD receives less per pupil than many other districts in the State.

Currently, Alameda property owners are now paying a local parcel tax for schools of $189 per parcel plus 0.0469% (about one-half of 1 percent) of each dwelling's assessed value.

Recent announcements from the Governor's Budget Office have proposed that the State funding for Alameda schools be reduced by $4.5 million in the coming fiscal year, 2008-09.

The District has cut $7.7 million from its budget over the last 7 years including a $1.4 million cut in the 2007-2008 budget year.

What This Measure Will Do This measure will levy a special parcel tax on property in the City of Alameda to generate additional revenues to support its schools. The proposed rate is $120 per parcel per year on residential properties. Small commercial properties less than 2,000 square feet are proposed to pay $120 per year. Commercial properties larger than 2,000 square feet are proposed to be assessed at $0.15 per square foot, up to a maximum of $9,500 per year. The tax is proposed to begin on July 1, 2008, and end in four years, on June 30, 2012.

Provisions for exemptions for persons over 65, or who qualify for Supplemental Security Income for a disability are included. The measure also includes provisions for a citizen's oversight committee to review the expenditures related to this parcel tax. It restricts the use of income from the tax to educational purposes only.

Fiscal Impact The income generated from this measure is estimated to be $4.2 million per year for four years. $120 per parcel from residential properties will generate approximately $1.2 million. An additional $3 million will come from commercial assessments.

Alameda parcel tax defeated at polls

Measure H would have benefited schools affected by budget deficit

By Peter Hegarty, Alameda Journal, June 4, 2008

ALAMEDA - Voters narrowly turned down a parcel tax Tuesday that supporters say would have pumped $4 million into area schools and helped prevent cuts to music, high school sports and other programs.

Measure H would have required homeowners to pay $120 annually and needed a two-thirds majority to pass. It lost by just 115 votes.

"It's awfully hard to get a two-thirds majority on anything," said Bill Schaff, a trustee on the Board of Education. "But the fact that we got the result we did makes me feel very comfortable in saying that the community still supports our schools."

Some 9,010 voters backed the measure, which would have required commercial and industrial property owners to pay from $120 to $9,500 each year.

The measure received 4,676 no votes.

Opponents included some residents who said that school officials should look for other ways to generate cash, such as cutting back on administrators and freezing the salaries and benefits of teachers.

"That 'super' majority is really hard to get," said Donna Fletcher, a spokeswoman for the Alameda Unified School District. "It's a hard line in the sand. We had plenty of support, but it just wasn't enough."

The school board decided to put the measure on the ballot in March when it learned that the district was facing a projected $4.5 million shortfall due to the state budget deficit.

The board also cut money from music and high school sports, a move that prompted teachers and parents to rally behind the ballot measure with demonstrations, fundraisers and door-to-door campaigning.

Homeowner Tom Pavletic, an outspoken critic of the tax, said the defeat Tuesday was significant in the face of such a high-profile campaign.

"This was in response to possibly the slickest sales job the district has ever done," Pavletic said. "This tells me that the people who voted no probably did it for financial reasons."

Some tax opponents also may have been influenced by changes that Gov. Arnold Schwarzenegger made last month in his budget plan, including his decision to back away from suspending Proposition 98, which guarantees money to public schools.

Despite the changes in the governor's budget proposal, Luz Cazares, the Alameda school district's chief financial officer, said the district is still facing at least a $4 million shortfall.

District officials must approve a budget by July 1.

With the defeat of the parcel tax, the cuts that the board approved in March will stand, Schaff said. The cuts include slashing $265,000 from high school sports and the district's swim centers.

On Wednesday, some Measure H supporters said they were not ready to concede defeat: Absentee and provisional ballots still could provide them a victory, they said.

"We are waiting patiently to hear the final count on the provisional ballots that were walked in to the polls," Superintendent Ardella Dailey said. "We are within inches of the 66.66 percent needed and we're hopeful that these additional votes will make the difference needed to pass Measure H."

Schaff said he considered it a long shot, however, noting that the yes votes still would need to total more than three-quarters for a victory in such a scenario.

Measure H Tiny

By David DeBolt, Alameda Sun, June 6, 2008

Supporters of Measure H were clutching onto a "glimmer of hope" yesterday morning as the parcel tax, aimed to fend off cuts to programs and staff within the Alameda Unified School District, fell short of the two-thirds vote needed by a little more than 100 votes.

Board members and leaders from Keep Alameda Schools Excellent (KASE) were waiting to hear from the Alameda County Registrar of Voters about provisional ballots yet to be counted, that could, although unlikely, lift the percentage of yes votes above the 66.667 percent needed to pass.

At press time, the number of provisional ballots was not known and Mike McMahon, vice president of the AUSD school board, estimated that there would need to be between 1,700 and 1,800 ballots counted based on Wednesday's precinct voting trend of 70.8 percent (David contacted me at 10am June 4th and I subsequently corrected my math error 2750 on my website by 11am).

Still, district officials are bracing for cuts and preparing to balance the budget, which is estimated to have a $4 million shortfall from cuts at the state level. Officials said if Measure H does not pass they will wait for the state budget to be finalized, which is not likely to happen until late summer.

"We shall wait and see how bad it is, and it will be bad," AUSD board President Bill Schaff said Wednesday morning. "Cuts are coming. The only question is one of magnitude."

With 100 percent of the precincts reporting, 65.83 percent of voters approved the parcel tax, 115 votes off the two-thirds requirement.

Schaff said there has been enough fundraising to support the majority of sports at Alameda and Encinal high schools and keep music in elementary schools for one year, but cuts to faculty and staff will be enforced.

Andy Currid, the volunteer coordinator for KASE, spent Tuesday with his organizers who scoured the Island reminding confirmed Measure H supporters of the location of their polling place.

"Obviously we are disappointed with the result," Currid said of the parcel tax, the third to appear on an Alameda ballot since 2001. "Right now I'm not hopeful that we will be able to pass the barrier."

KASE treasurer Ron Mooney, who has worked on all of the Island's recent parcel tax measures, said Tuesday evening that he expected the result to be similar to the 51 vote difference in the 2005 tax for Alameda schools.

Poll volunteer Mark Cronenwett said voters who did not support Measure H were not as vocal as those who did.

"A lot of people are quiet about voting no," the 66-year-old lifelong Alamedan said at Encinal High School's polling station on Tuesday afternoon.

Resident Rita Nesel passed out a flyer against Measure H on Monday and Tuesday and said she was surprised at the positive response she received. She said the district was not forthcoming with information and instead of passing the measure, it was time to "nail the district to the wall to force the truth out."

Measure H stunning turnaround

By Peter Hegarty, Alameda Journal, June 12, 2008

Measure H, which appeared headed for defeat on election day, now looks like it has pulled out a victory with a razor-thin two-thirds approval.

Absentee and provisional ballots were credited for making the difference in the tally.

According to the results released Wednesday, the ballot measure secured 11,397 yes votes, or 66.87 percent. No votes totaled 5,646, or 33.13 percent.

The measure needed 66.667 percent to pass.

The Alameda County Registrar of Voters is expected to ratify the results by June 27.

The results delighted Measure H supporters, who say money generated from the tax will help save music, sports and other school programs.

"We have climbed from behind the whole way up," said Bill Schaff, a member of the Board of Education. "It's been quite exhausting for all those who have fought so hard for this campaign."

The win was "extremely gratifying," said Ron Mooney, treasurer of Keep Alameda Schools Excellent, which campaigned for the measure.

"While this was a very close vote and a few ballots remain to be counted, the vast majority of Alameda voters have demonstrated their commitment to support our students and keep our distinguished schools," Mooney said. "We are particularly grateful to the hundreds of volunteers who worked so hard to explain the issues to voters and continue to fight to keep our schools excellent."

Superintendent Ardella Dailey said officials with the Alameda Unified School District now will have time to plan for long-term financial stability.

Homeowners will pay $120 annually under the tax. The measure also calls for business and industrial property owners to pay from $120 to $9,500 annually. The tax would be on top of the $189 property owners now pay.

Both taxes will end in 2012.

Measure H opponents said district officials should find other ways to raise money, such as cutting salaries and benefits for teachers.

"We expect the school board to request another 'temporary emergency parcel tax' in three years," said Tom Pavletic, who campaigned against the measure. "By that time the school district will have been in 'emergency parcel tax mode' for over a decade and taxes paid by property owners will have increased even further. School district employees' salaries, benefits and pensions, already luxurious compared to private sector standards, will have continued to climb at a rate surpassing those for most non-government workers."

The board placed the tax on the June 3 ballot to help offset a projected $4.5 million shortfall within the Alameda Unified School District due to the state budget deficit.

While the latest numbers apparently pushed Measure H over the top, Schaff was still cautious about declaring victory, noting that he believed some votes still must be counted. Opponents may call for a recount with such a narrow margin, he said.

Money from the tax will help fund music and high school sports, plus help maintain lower class sizes for high school freshmen  programs that all took a hit when district officials were confronted with the deficit, district Spokeswoman Donna Fletcher said.

"It's great for education and it's great for our kids," said Trish Spencer, president of the district PTA council, about the latest numbers. "We're very appreciative of all those who supported it." But Spencer also said that such a tight race means district officials must show opponents that they will be fiscally responsible with money generated from the tax.

Measure H passes, now the real work begins

Editoral, Alameda Journal, June 12, 2008

Measure H passes. More than a week after the election, it was still a nail-biter, until late Wednesday when the number of votes needed to reach that magical two-thirds percentage mark was surpassed by less than 50 votes.

It's been an incredible roller coaster ride for everyone in Alameda. Last week many considered passage of Measure H almost a lost cause it would take a miracle to see it pass.

While the results are still unofficial, and won't be formally certified until later this month, it looks like that miracle has happened. There is a collective sigh of relief among supporters and those involved in the schools.

It's a really positive victory for our young people, many of whom turned out to support the parcel tax as they voted for the first time.

It was a tough, and often bitter, battle. But the community showed its support.

Despite what critics have implied, the emergency four-year funding measure will go directly to the classrooms to keep the threatened programs on track now in Alameda schools. Everything that was proposed to be cut earlier this year in Alameda schools will be restored, including sports and music programs. They will be able to avoid increases in class sizes and reduction of Advanced Placement courses.

The district now has some breathing room to continue operation even while Sacramento's feuding over budget cuts goes on. At least the parcel tax will help keep our schools functioning at the level residents want for their children.

It's good news that Measure H passed, even if by the slimmest of margins. So many worked so hard to make it a reality. But now the real work must begin.

Even as Measure H celebrate the victory, they would do well to consider what message the voters are sending. They can be happy that enough people managed to vote to push it through. But the "rest of the story" is the large number of people who either voted against it or more critically, did not vote at all. In this case, a non-vote could be taken as a tacit rejection of the argument for having the added parcel tax.

The Measure H campaign took big steps in educating the public about the difficulties facing local schools. All too often the public blames the messenger the local district leadership for problems that are generated at the state level.

School leaders say they are working hard to change the way California distributes education funding and counter the unbelievable budget cuts proposed by the governor and lawmakers that keep Alameda in a constant state of uncertainty.

Voters are saying they need more than tough words and pledges to fight for change. Something must be done now. They are tired of being hit every few years with yet another school budget crisis and they want a shakeup in the way schools are operated.

For that to happen, the community needs to get behind our school leaders to push changes at the state level. We need all the help we can get. The emergency parcel tax sunsets in four years. Changes need to be made now. Let's put old disagreements from the election behind us and pull together to fight for education reform in Sacramento.

Letters to the Editor, Alameda Journal and Alameda Sun, Post Election

"Moving on" may mean closing schools

Your June 6 editorial, "It's time to move past Measure H" doesn't. But you say that those of us who voted against it should come up with alternative savings.

Perhaps now Superintendent Ardella Dailey will have the boldness to take the obvious steps of closing schools, since enrollment in Alameda schools has fallen drastically since base closure. We need only one high school, and perhaps it should be Encinal, where the city owns adjacent land for future expansion. Do we really need all those middle schools, or any at all? Consolidate them into one, at the old Alameda High, or expand the grammar schools to encompass K through 8 or 9, depending on the capacity of the one remaining high school.

At least two grammar schools also could be closed without serious crowding. The notion that class size reduction results in better educational outcomes is a myth, so give that up. Lay off a few administrators making six figures and cancel programs redundant to state programs. Voila! Problem solved. Wasn't that easy? And it might have saved all the money spent on that expensive Measure H campaign.

Perhaps the school board and teachers should consider supporting these measures instead of attempting to legislate a "simple" majority for their next attempt to impose new taxes.

Dennis Green

Unfair wording prompted no on Measure H

I have to admit that I haven't read every argument for or against the recent Measure H, so maybe I'm covering old ground here, but to me it wasn't an issue of a "greedy teachers union" or "stingy selfish homeowners"  I was genuinely disturbed by the seemingly overlooked fact that the measure itself was so unfairly written.

With an exemption based on income, the disadvantaged elderly would already be covered so why add on a general exemption for the over-65 set? Simply put, because a lot of them own homes in Alameda, and much larger percentages of them vote compared to their younger neighbors. I call that rigging the vote, plain and simple.

Though some will say the measure "passed with nearly two-thirds of the vote," I have to wonder how many of those capable over-65s would've been willing to pay the tax themselves. Or whether the percentage of "No's" would've been even higher.

By making the proposed parcel tax completely painless to this demographic, proponents made it completely clear to me that they weren't interested in fair play, or passing the measure on its merits. If there's one thing we can teach our children for free it should be that everyone, regardless of gender, race, religion or age, should do their part to help the community when possible.

Dean Blackburn

Parcel tax supporters missed the message

To supporters of Prop. H: You weren't listening.

In each previous school parcel tax campaign, many of us asked for better wording of the tax proposal. We wanted tax language which spread the cost as fairly as possible across the entire community and provided better protection of funds collected.

It's like this: You let your teens borrow the car as long as they put in some gas. The last three times they used the car, they didn't do that, even though you reminded them each time. Now, you take away the keys because either they think you don't really mean it or they don't respect you enough to do this small favor in return for your generosity. We only asked for words. We're serious. We just took away the keys.

Rita Nesel

Other savings could help schools besides a tax

Encinal High School Principal Mike Cooper retorts to the defeat of Measure H by calling opponents "incredibly selfish." Well, yeah, I guess if the people didn't want to fund my golden parachute I might get angry too. I only wish that I could have retired with the monthly pension Mr. Cooper will receive. In the original wording of Measure H published on AUSD's Web site it was clearly stated, "No money to go to administration salaries," but on the voter pamphlet I received two weeks prior to June 3, this verbiage was conveniently left out.

In November 2001, Alameda residents passed measure A, agreeing to a parcel tax of $109 to fund AUSD projected budget deficit. In 2004 we approved Measure C, a bond measure providing $63 million plus an additional $17 from Proposition 55 state funds. In 2005 Alameda residents passed an $189 school parcel tax to replace 2001's Measure A. Between 1998 and 2003 superintendent salaries rose 27 percent across California and Alameda County superintendent's averaged 35 percent raises plus "perks." Teachers' salaries only increased by half that. How much salaries have increased since, I can only guess.

Here's a cost savings that shouldn't be difficult to achieve: Each of AUSD's high schools has a "health" clinic to "advise" students on health issues such as "safe sex" practices, hand out condoms and, of course, provide abortion advice. Eliminate them. How about the "day care centers" for children of students and faculty? Why should Alameda residents have to fund these costs?

Yeah, I'm selfish, alright!

Bruce Elerick

Measure H failed to get community support

I read with interest the June 6 editorial in the Alameda Journal, stating that the Measure H was "slightly more than 100 votes short of passing. Put another way, one-third of those who took the time to vote determined the future of Alameda schools over the wishes of nearly two-thirds of the voters. Just a few votes short, and the decision went to the will of the minority."

There are a couple of problems with that statement. The turnout was low for this election. Of the 40,238 registered voters in the city of Alameda only 9,010 voted for Measure H. That's a minority. The majority of registered voters either voted "no" or did not vote "yes." For all of the money spent to promote Yes on Measure H, a showing of 9,010 votes out of a possible 40,238 is a clear failure.

Parcel taxes are not fair. It's nonsense to tell residents of Alameda that they should embrace high property taxes because that's what makes their homes valuable. Let's hear more about the money for sports in the high schools and for keeping music in the elementary schools, now available due to fundraising. That sounds like a success story, and it didn't involve increased property taxes.

Promote an educational fund and let concerned residents, including renters, contribute to it to show their support of Alameda's schools. It might be a nice surprise. And the contribution would be tax-deductible.

Some of us did not want to vote "no" because it would take two "yes" votes to counteract a "no" vote, so we simply did not vote at all on Measure H. That left it up to the people who wanted it to pass to make it happen.

Pat Jameson

Anti-Measure H voters overlook what teachers do

In the aftermath of the disastrous Measure H failure, in the June 6 paper you give voice to the lone spokesperson for the anti-H forces not once, but twice. This self-styled protector of the beleaguered taxpayer, Tom Pavletic, gets quoted in every article on the topic, it seems. Why? Does the Journal have trouble finding anyone else foolhardy enough to speak out against H? It would appear so.

Then there's his smug letter to the editor, in which he generously pledges to personally donate equivalent cash to the schools, but only after our millionaire teachers promise in writing to give back their scheduled raises and benefit enhancements. Pathetic, Mr. Pavletic.

Apparently he has no kids in the Alameda system, or they've already safely passed through it. Apparently, he's not aware of the stranglehold our governor has put on district funding. Apparently he's unaware of how dedicated teachers pay for unfunded classroom materials out of their own pockets. Apparently he doesn't care whether the current kids have any cultural or athletic activities but maybe he will when one comes through his window some night because, after all, if there's no practice or rehearsal that night, what else is there to do?

And apparently the same goes for the other 4,675 people who selfishly refused to chip in 33 cents a day. How many of them were swayed by the crackpot rhetoric of the anti-H spokesperson? Alameda used to be a family place. Is it still?

W. J. "Buster" Doggboye

Beware of efforts to change requirement

Surprise, surprise, Measure H passes after all. When considering the "ballot box-stuffing" tactics, i.e. phone bank targeting of renters, youth and telling some seniors that they don't have to pay, how is an unorganized opposition of homeowners to compete against such a "gang attack" from all fronts? I do hope all "spoiled" ballots are carefully isolated so both sides can do an examination in the event of a recount.

As for those who ask who was the mysterious "sponsor" of the estimated quarter million dollar slick campaign for "H," I suggest you look beyond the local conduit directly to Sacramento and the CTA, whose current "mantra," and, of course, that of local union affiliations, is that the two-thirds voter protection of propositions is a form of tax tyranny and unfair. (A lot of good that has helped us homeowners in Alameda with the last four parcel taxes!)

Let us look at the issue of tax tyranny. Since the majority of H yes voters (and probably the vast majority) won't pay a dime of this or other parcel taxes, who is the victim of tyranny?! Currently in Sacramento you have SCA 17 and SB 1430 / SCA 18, both promoted by the CTA and both eliminating the two-thirds voter protection for school parcel taxes, the former to 55 percent and the latter to a simple majority. God help us.

For many years we have had government administrators who were incompetent in accounting matters and certainly in actuarial science acquiescing to the demands of the public employee unions. And now with the emergence of the baby boom generation to the golden age and retirement, the roosters are coming home. Meanwhile, locally, it will again be "business as usual," with the AUSD and its unions, i.e., granting percent salary increases (on top of automated annual teacher salary advances), regardless of whether they are funded or not. (We always have "emergency" parcel taxes.)

A belated thanks to the Alameda Journal for publishing my prior letter intact  your esteemed competitor chose to change several items, notably eliminating the $480 total tax liability as "misleading," even though I said they could add "over four years." Obviously, I won't be sending them a copy of this text. A final thought  maybe in lieu of another parcel tax, parents can be sold on the two to three Starbucks a month contribution?

Ronald R. Wimer

What comes after Measure H?

As a property owner who voted "no" on Measure H, I congratulate the pro-Measure H voters. So what happens now other than the high-fives and back slapping that's going on?

In 2012 will there be more or [fewer] school administrators earning more then $100,000 a year? In 2012 will the school district still be running and managing its antiquated processes they are running today? In 2012 will the unions still insist on annual increases and refuse to do their part to bridge the budget gap?

In 2012 will the school district continue to hire expensive consultants that do nothing to improve the education of our children? In 2012 will students who live in Oakland, Berkeley, etc., continue to be subsidized by the taxpayers so they can attend Alameda schools?

One only needs to see the armada of cars coming over the Park Street Bridge and through the Posey Tube to deliver out-of-town kids to our schools. In the afternoon, will there still be hordes of students boarding AC Transit buses that are leaving Alameda?

In 2012 will AUSD continue to practice the "spend it or lose it" mentality dramatically increasing their expenses during the fourth quarter of the fiscal year in fear it if it is not spent it will be lost in next year's budget?

In 2012 will AUSD administrators continue their lack of intestinal fortitude by ducking and dodging the tough questions property owners and others have raised about its business practices and management decisions?

In 2012 when you put Measure "FU" (sic) on the ballot to extend this "temporary" tax, will you again come out and say the only way we can fix our budget crisis is to kill programs that hurt the kids?

In 2012 will the Alameda Sun reprint this letter so we can all say, "It's dij` vu all over again?"

Kevin Mathy

Unhappy with news

Your coverage of Measure H in Alameda has been irresponsible. Don't worry: you're not alone. Our other local paper has been equally ridiculous. Maybe you shouldn't call an election until all votes are counted. Has it passed or not? On things true, you can't trust the media to learn the truth. Is there something un-sexy about reporting that the ballots haven't been counted yet; standby?

Deborah Sullivan

Editor's Note: The Alameda Sun did not call the election as won or lost until this week. As of press times in both last issues, there was no decision called by the Alameda Registrar of Voters, thus, no official statement in the Sun.

Attorney: AUSD Tax Bit Off Too Much

Written by Marc Albert, Alameda Sun, August 22, 2008

Measure H, the school district's emergency parcel tax, runs afoul of state law by dipping its hand too deeply in some pockets, said an attorney who may file a lawsuit as soon as next Monday seeking to have the tax thrown out.

Measure H, the school district's emergency parcel tax, runs afoul of state law by dipping its hand too deeply in some pockets, said an attorney who may file a lawsuit as soon as next Monday seeking to have the tax thrown out.

Attorney David Brillant, hired by local small businesspeople who are contending that the tax falls too heavily upon them, appeared confident that the case would be decided in his favor.

"Do I think I can win this case? Yes, I do. Because Measure H violates section 50079 of the California government code, in that the tax is not applied uniformly to all property owners," he said.

According to Brillant, the state legislature has the sole authority to levy taxes in the state, or to enable other authorities, such as cities, school boards or special districts to do so. Brillant said the problem for the district arises from so-called enabling legislation, which set the parameters under which taxes may be assessed.

According to the code, school districts may impose "qualified special taxes," but that the taxes must "apply uniformly to all taxpayers or all real property within the school district." Brillant maintains that the code lets districts levy taxes as either a per parcel fee, or a per square foot charge, but not both.

Brillant said that there is no clear legal precedent because no lawsuits against similar taxes have yet to be filed. "There is no direct case on point. There are a few cases that touch on the issue but this case is the first of its kind," he said.

Measure H, which barely hit the two-thirds majority needed for passage, does both. It establishes a $120 fee on all residential properties, and a .15-cent per-square foot fee on commercial properties. The commercial rate is capped, however, meaning many of the city's largest commercial property owners are paying the same amount as much smaller landholders. Some vocal small business people have charged that the cap was added to blunt opposition to the measure from the city's biggest landlords. As a result of the tax's wording, many small businesspeople feel they are being asked to foot much more than their share.

But opposing the school district's tax is viewed by some as heresy. Various threats have emerged from members of the community [see Letters to the Editor, p.12] arguing that business owners should essentially suck up the added expense or face boycotts. Teacher and Measure H supporter Rob Siltanen, writing on his Web site, predicted that businesses supporting the lawsuit will pay an even dearer price. "I think they'll find that businesses that turn their backs on the clear will of the community by participating in an effort to overturn the popular results of an election will also have the community turn their backs on them," he wrote.

Siltanen, when contacted, declined to speak on the record.

However, Siltanen's Web site notes that the city doles out money to small businesses by issuing grants to local business associations. However, representatives of the associations note that the amount of the tax far outweighs their new tax liabilities.

The perceived threats are having an impact. Business owners continue to decline making statements on the record. Meanwhile, even Brillant admitted that some lawsuit backers might be getting cold feet. "If I'm going to [file a suit], it's going to be Monday, but things are getting rather squirrelly," he said.

"There are people who want to contribute but there are people who are being cautious. Alameda is a really small town. They don't want their businesses targeted... people are afraid of retribution," Brillant said. "The school district will probably spin this as anti-school but the school district must operate inside the law and people have the right to force the school district to stay within the law."

Measure H seeks to replace money lost to proposed cuts in the state budget for K-12 education. The exact amount of Sacramento's cuts to local schools remains unclear, as legislators continue to stall approving a budget, which was due June 30.

Second lawsuit filed against Measure H

By Jennifer Rumple, Alameda Journal, August 28, 2008

Alameda Unified School District should hire a good tax attorney.

That's what John Beery, owner of the Alameda yacht dealership bearing his name, said after his attorney on Monday filed the second lawsuit against the Alameda school district.

Similar to the first lawsuit filed last week, this complaint says the special parcel tax approved under Measure H is not "uniform" and violates the state's constitution.

More than 66 percent of voters passed Measure H in the June 3 election in an effort to put $4.5 million back into the school district, to save the level of education now in place in Alameda from state-wide budget cuts.

The measure requires that homeowners pay an annual parcel tax of $120 during the next four years. Commercial and industrial property owners must pay between $120 and $9,500, depending on the size of their parcels.

"It's not right and we should get it right before it gets too far," Beery said. "One of the things I am definitely for is making sure these kids get a good education. Right now, there's a non-friendly lawsuit on the issue. Two or three years from now, it will become a major lawsuit costing the schools millions of dollars."

The first lawsuit filed against the school district on Aug. 20 on behalf of Alameda property owner George Borakis also states the special tax is "not consistent with the uniformity requirement as set forth" in the state's constitution. And, "any attempt by defendants to collect unpaid assessments from (his client) would be unlawful and improper."

Borakis' attorney David Brilliant, based in Pleasanton, was not available for comment nor was Beery's attorney, John Messenger from Reed-Smith in San Francisco.

This second lawsuit filed on the deadline, 60 days after the certification of Measure H passed, has city leaders as well as school district board members concerned.

Mayor Beverly Johnson met with Alameda Board of Education President Bill Schaff Thursday morning to discuss options if litigation forces the court to hold the collected money until an agreement is made.

"It's really unfortunate that money will be withheld from our schools this year if the injunction follows through," Johnson said. "There are a lot of angry people in this city over this issue and people have just got to calm down. It's in the court system now. The court system will proceed accordingly. Anger and hostility will have no impact on what a court does."

Johnson added she will not speculate on whether Measure H opponents have viable complaints or not, but reiterated something needs to be done now to stop the ensuing anger and frustration over the issue.

"People have to figure out what to do next, possibly move forward with an alternate measure people think is fair," Johnson suggested. "There is a lot of speculation and all parties involved need to understand all of their options. The voters have passed this measure and a judge can only set it aside or say it's unconstitutional or not."

Beery, who once taught in the Hayward Unified School District, is against any special elections to modify the Alameda school district special parcel tax under Measure H, saying it would "cost a lot of time, energy and legal fees."

"If we could just sit down with the school district and see how we can get this resolved," added Beery, who owns multiple parcels of land on the island. "We need to have a conversation about it which will save all of us a lot of time and effort if we just do it right."

Alameda board Vice President Mike McMahon said the bottom line is that state funding is becoming more and more unreliable and it's up to local school districts to provide a steady stream of income, to maintain their desired level of education.

"We are backed into a corner. We have to look at methods to increase taxes for long durations, which causes tension among tax advocates and non-tax advocates," said McMahon.

Beery said his interest lies in "getting this thing clarified."

"We need something that makes sense for everyone involved from the property owners to the kids to the school district," he added. "They'll need to get a tax attorney to look at the measure and what went wrong. Someone did not do their due diligence."

But McMahon countered that the school district used the formula based on what other school districts have done in the past.

"Based on those models, none have been legally challenged in the past so we had no reason to think it wasn't up to code," he added. "Certainly, if they believe an injustice has been done, they are using the appropriate channels to have those injustices addressed. Unfortunately, as each side digs further, it's going to become harder to find a way to resolve it. This is a lawyer's paradise."

Court dates set for Measure H lawsuit

Written by Jennifer K. Rumple, Alameda Journal, September 4, 2008

Two important dates loom involving at least one of two lawsuits filed against the Alameda Unified School District regarding Measure H Oct. 6 and Jan. 16.

The first is a deadline for community members wanting to appear in court to support or contest the validity of the voter-approved ordinance. The second is the date a judge will first hear the case against Measure H questioning the uniformity of the temporary parcel tax.

"There's not going to be a lot of activity in this case until that first hearing in January," said Pleasanton-based attorney David Brillant. "That is when I will lay out my argument how Measure H is flawed and tell our judge about the second suit. At some point, we are going to have to companion the two (lawsuits)."

Brillant represents Alameda resident George Borikas, who owns several residential properties in the city. Borikas' case was the first filed against the school district to invalidate the resolution to close an expected $4 million budget deficit because the tax is not "uniform."

Measure H requires individual, commercial and industrial owners to pay an annual parcel tax of $120 through 2012, with a few exceptions. Commercial and industrial units covering more than 2,000 square feet will be taxed 15 cents per square foot up to $9,500. Residents 65 years old or older by June 30, 2009 and those receiving Supplemental Security Income (SSI) benefits for a disability are eligible for exemption on their primary residence.

Those exceptions triggered both lawsuits.

"What if you're a senior citizen and a commercial property owner?" asked Brillant. "Everyone needs to be treated equally. The government cannot discriminate against different classes. What it boils down to is one word  'uniform' and did they (AUSD) do it right?

"Statutes in this state are interpreted on their plain meaning and restricted narrowly," Brillant explained. " 'Uniform' means just that, it needs to be equal. Measure H has lots of little categories. That is not 'uniform.' "

Borikas' case solely questions the legality of the parcel tax stating the Alameda school district has not complied with California Government Code Section 50079. It states " 'qualified special taxes' means special taxes that apply uniformly to all taxpayers or all real property within the school district."

But in the case San Francisco-based attorney John Messenger filed on behalf of Alameda resident and commercial property owner John Beery, it's also a question of unconstitutionality.

Messenger did not respond after several attempts to contact him for comment. However, Brillant, who has reviewed Beery's case, said, "That case is much larger and could be removed to a federal court since it raises constitutional issues."

"I didn't want to go that route," Brillant added. "That's millions of dollars for me, for the school district, for everybody."

Alameda's Board of Education released a written statement Wednesday in response to the lawsuits. The statement said the district's legal counsel is reviewing both lawsuits and will make recommendations for the "best next steps in the process."

"We are extremely disappointed that a few members of our community have chosen to sue in opposition of Measure H. However, we want those who filed the suits to know that we take their concerns very seriously and welcome the chance (to) resolve them swiftly and at the least cost to the community."

According to the statement, the district has reached out to the plaintiffs in an effort to discuss their concerns and work to find a solution while safeguarding the school funding voters supported in the June 3 election.

So why weren't those concerns voiced and addressed prior to the passing of Measure H, with two-thirds of the vote?

"That's a really good question. My understanding is there was a lot of misinformation put out there," said Brillant. "The school district did this without the involvement of businesses. I know that for sure. Many people, either clients or those contributing to this case, contacted the district with concerns but never got a response. The business community was not involved with the drafting of this ordinance."

The school district is limited in its response because of litigation, but stated in its recent release, "The Measure H committee worked closely with many members of Alameda's business community during the campaign and could not have passed Measure H without their support on the ground and financially."

The statement adds, "Like many school districts in the Bay Area and throughout the state, we are facing serious budget challenges. The voter-approved funds from Measure H will ensure we are able to safeguard programs in Alameda's schools."

Brillant said if the Alameda school district wanted to pass a parcel tax, it should have been done right in the first place.

"It doesn't matter if two-thirds or 99 percent of people voted (in its favor)," he added. "If it's a flawed law, it's going to get thrown out."

Parents Sound Off to Board

Written by Dennis Evanosky, Alameda Sun, September 12, 2008

The board got an earful from concerned parents and residents at Tuesday night's school board meeting. "Measure H is fatally flawed," Trish Spencer, an attorney and former president of the PTA Council, admonished the AUSD school board.

Spencer then asked the board not to waste any of the district's money on attorneys. She requested the board fully disclose any fees paid to attorneys hired to consult on Measure H. "We need to rewrite the measure as a community," she told the board. "We must step up and do this so the measure works the next time."

In the meantime Spencer suggested the residents of Alameda voluntarily write a check for the $120 that the measure has assessed to each Island City house.

STATEMENT FROM ALAMEDA UNIFIED SCHOOL DISTRICT REGARDING LAWSUITS FILED AGAINST MEASURE H

Released by AUSD, September 4, 2008

Two lawsuits have been filed against the Alameda Unified School District, seeking to overturn Measure H, the parcel tax passed by Alameda voters on June 3rd.

The first, Borikas vs. Alameda Unified School District was filed on behalf of plaintiff George Borikas and the second, Beery vs. Alameda Unified School District was filed on behalf of plaintiffs John Beery, Alameda Gateway Ltd., and Marina Square & Associates.

AUSD's legal counsel is reviewing both lawsuits and will make recommendations to the superintendent and board of education concerning best next steps in the process.

In the meantime, the District has also reached out to both sets of plaintiffs in an effort to discuss their concerns and work to find a solution that will safeguard the school funding Alameda voters supported in June. Overturning the will of the voters is a very serious concern and one that that we hope to resolve without jeopardizing our children's education.

The Measure H committee worked closely with many members of Alamedas business community during the campaign and could not have passed Measure H without their support on the ground and financially.

We are extremely disappointed that a few members of our community have chosen to sue in opposition of Measure H. However we want those who filed the suits to know that we take their concerns very seriously and welcome the chance resolve them swiftly and at the least cost to the community.

Like many school districts in the Bay Area and throughout the state, we are facing serious budget challenges. The voter-approved funds from Measure H will ensure we are able to safeguard programs in Alameda's schools.

We will keep you informed as we proceed to resolve this situation.

Thank you for your patience and your support.

Members, Alameda Board of Education

A Layperson's Guide to the Measure H Lawsuits

September 15, 2008, Published by Alameda Education Foundation

Two lawsuits have been filed against the Alameda Unified School District (AUSD). Both challenge the Measure H, which Alameda voters approved in June, 2008, to provide additional revenue to AUSD. Both lawsuits are "reverse validation actions", which simply means that the plaintiffs are asking a judge to invalidate Measure H and prohibit AUSD from collecting the parcel tax.

These lawsuits, if successful, would clearly deprive AUSD of badly needed local revenue, which could result in a state takeover. But the implications are far more serious than just one school district in one small city. Because of their specific complaints, these lawsuits also threaten every California school district that has or is considering creating parcel taxes to offset state budget cuts.

As such, the lawsuits could result in the eventual state takeover of many, many districts across the state, which would not only deprive those districts of local control over their administrations and budgets, but also impose huge financial burdens on the state.

In fact, the lawsuits threaten the validity of any parcel tax passed by any government entity in the state (including those passed to raise funds for public safety, health care, and parks).

What was Measure H?

Measure H was passed in the June 2008 election by 66.9 percent of Alameda voters. The measure imposes a $120.00 parcel tax on residential parcels and a .15/sq.foot tax on commercial/industrial parcels. There is a "cap" of $9500.00/parcel that kicks in for parcels that are larger than 63,333 square feet. There is also a floor of $120/parcel for commercial/industrial parcels that are less than 2000 square feet. Institutional properties (such as churches and some properties owned and used for public welfare purposes) are exempt from the parcel tax  as are properties that are not otherwise subject to state property taxes.

Parcel owners who are age 65 or older or who receive Supplemental Social Security Income for a disability (regardless of age) can obtain an exemption from the tax for parcels used as single family, owner-occupied residences.

What's the Beery v. AUSD lawsuit?

Beery v. AUSD, was filed by John C. Beery, Alameda Gateway, Ltd and Mariner Square & Associates and it names both AUSD and Alameda County as a defendant.

In his complaint, Beery alleges six causes of action against the defendants.

First Cause of Action

The parcel tax is illegal because it isn't "uniform".

What that means:

Gov. Code ' 50079(b)(1) allows school districts to impose qualified special taxes that apply uniformly to all taxpayers or all real property within the school district. Beery alleges that Measure H violates this code because the commercial/industrial property owners pay a different rate than residential property owners and because the commercial/industrial owners are subject to a different rate even among themselves.

The implications:

If successful, this first cause of action may invalidate Measure H in its entirety and subject AUSD to an increased likelihood of state takeover (because the district won't be able to remain solvent). This claim also may prohibit any future school parcel taxes that impose different rates based on the use of the property. As such, any future school parcel taxes would have to tax residential, commercial, industrial and institutional properties (including those belonging to churches and non-profits) at the same rate. This could make it very difficult to pass parcel taxes in other school districts.

This lawsuit also might serve as a precedent for invalidating taxes passed by other, non-school public agencies.

Second Cause of Action

The parcel tax is illegal because it imposes different taxes on different "classes" of property or taxpayers.

What it means: Although school districts are authorized to impose "qualified special taxes", districts aren't allowed to pass taxes imposed "on a particular class of property or taxpayers". Beery alleges that Measure H creates different "classes" based on the use and size of the parcel.

The implications: Same as for the First Cause of Action.

Third Cause of Action

Measure H is unconstitutional because it imposes taxes for general government purposes and is not a 'special tax".

What it means: The California Constitution only allows public entities to impose special taxes, not taxes for "general governmental purposes". Beery alleges that because the Measure H language is "vague" and "aspirational" (as opposed to saying exactly how the funds will be spent), it is unconstitutional.

The implications: Few parcel taxes can outline exactly how the funds will be spent, due to the ever-changing state budget revenues and ever-changing local conditions. As such, if this cause of action were successful, nearly every parcel tax in the state could be subject to attack and invalidated and it would become extremely difficult to pass new ones. Moreover, this cause of action would not be limited to school parcel taxes; every special tax imposed throughout the state would be open to attack so that future parcel taxes would become much more difficult to draft and pass.

Fourth Cause of Action

Because the parcel tax will be collected in conjunction with other property taxes, it is an "ad valorem tax", not a "special tax" and collection of the tax is unconstitutional.

What it means: An "ad valorem" tax is one that is based on the value of a property or service. It is unconstitutional for a public agency (other than the state) to collect ad valorem taxes.

Beery is saying that because Measure H parcel taxes will be collected at the same time and in the same manner that regular property taxes are collected, Measure H is an "ad valorem tax".

The implications: Every parcel tax in California is collected this way. As with the Third Cause of Action, this cause of action could potentially invalidate every parcel tax currently in place in California and would make it extremely difficult to collect new parcel taxes. If successful, this cause of action could affect every current and future parcel tax in the State of California, which again, might trigger state takeover of many districts.

Fifth Cause of Action

Measure H violates the Equal Protection clauses of both the United States Constitution and the California Constitution.

What that means: Beery alleges that because the parcel tax is applied differently to different classes of property and contains upper and lower limits on commercial and industrial parcels without any rational basis, it is unconstitutional.

The implications: If successful, this cause of action could prohibit any public agency in the State of California from imposing taxes that are not completely uniform. This cause of action could invalidate existing parcel taxes that differentiate between classes of property or impose upper or lower limits on the amount of a tax.

Sixth Cause of Action

Measure H changed the statutory exemption of the law by limiting the exemption to residential owners over the age of 65 (or receiving Social Security Disability Income) who own and occupy single family residential properties.

What it means: Gov. Code ' 50079(b)(1) says that school parcel taxes can include an exemption for property owners over the age of 65 or receiving Social Security Disability Income. Measure H only allows owner occupied single family residential property owners who meet the qualifications to seek an exemption.

The implications: Same as for the First Cause of Action. If successful, this cause of action would not only directly impact school parcel taxes, but any other special taxes that limit exemptions to certain classes of property owners.

Borikas v. AUSD

Borikas is an individual who allegedly owns several properties in Alameda. Although Borikas is the only named plaintiff, his lawsuit is supported by a group of commercial property owners in Alameda.

The formal complaint: The Borikas complaint is not as clear as the Beery Complaint. Borikas is apparently alleging that Measure H violates Section 50079(b)(1) in that Measure H doesn't levy the taxes "uniformly". The Borikas complaint also raises undefined issues relating to the exemptions.

What it means: At a minimum, the Borikas action would raise the same issues as the First Cause of Action in Beery. In addition, although it is not clear from the complaint, it appears that Borikas may also be raising the same issues as those raised in the Sixth Cause of Action in Beery.

The implications: See implications of First and Sixth Causes of Action in Beery. Possible other implications may become evident once the claims are clarified.

In summary, both lawsuits threaten not only AUSD, but all public entities and agencies across the State of California that currently have parcel taxes or other special taxes in place or are contemplating such taxes in the future. As such, the financial risk at virtually every level of State and local government is incalculable.

Letter to Editor

Written by Alamedans for Fair Taxation, Alameda Sun, October 10, 2008

Editor:

When two factions emerge within our community, passionately opposed over an issue, yet sharing the same basic goal, there is a high probability that they simply do not share the same facts. We believe that is the case with Measure H, over which a dialog erupted through some very strongly worded letters-to-the-editor against those Alamedans challenging the legality of the measure.

For that reason, perhaps it would be helpful to quantify how Measure H appears that it will impact a sample of businesses in town: l The owner of a local boat yard, whose business spans four parcels, will pay approximately $38,000 in Measure H taxes annually; more than $150,000 over the four years of the parcel tax.

• A small, independent grocer will pay roughly $6,000 annually, while Safeway's prorated share at Alameda Towne Centre is estimated at less than $400.
• A group of independently owned senior residence communities will pay roughly $20,000 annually. Many of the senior residents who will ultimately share in this incremental tax are on fixed incomes.
• A local retail store estimates its Measure H taxes at an extra $10,000 a year.
• A family-owned nursery will pay $3,500 a year.
• A storage facility, $9,500.

These are just a few of the cases that have been shared at meetings held by a large number of local business and commercial property owners. And these are not the worst examples. For one property owner, the incremental Measure H parcel taxes are estimated in the hundreds of thousands of dollars per year. That burden is for a single property owner.

Regrettably, we don't yet know exactly how the final parcel tax, with its caps and blended rates, is to be levied, so these numbers are estimates. Their orders of magnitude, however, are correct.

This uncertainty over how the parcel tax is ultimately to be calculated, and our inability to find definitive answers to our questions both before and after the vote, is part of the frustrating and maddening process surrounding the measure. For many of us, the above numbers could mean the difference between surviving a tough economic environment and simply going out of business.

So for those who propose that local businesses "suck it up" regarding the inequities in Measure H, we request that you take time to consider how Measure H impacts some of your fellow Alamedans, and how you might respond if placed in our position. The tone of some letters-to-the-editor suggests that the authors are disgusted with what they interpret as our selfishness and unwillingness to help the community that supports us. The message is that everyone in Alameda has dug deep to sacrifice on behalf or our schools and we are "whining" over paying our fair share. Please consider that for those facing only the $120 residential parcel tax, you are contributing less than 33" per day. As individual business owners, we are being forced to pay tens, hundreds, and even, thousands of times your contribution.

Ironically, there is likely a contingent among the Measure H advocates that are also opposed to the concept of a Target, OSH, "megaplex," Starbucks, Kohl's or other large "chain" operators entering Alameda. Instead, they prefer small, independent merchants, operating out of owner-occupied and lovingly restored historic buildings, which help preserve our small-town feel. Fact: Measure H unequivocally punishes those small businesses while protecting their biggest competitors.

Measure H sought to address a community problem, but in no way did it provide a true community solution.

For the above reasons, we have chosen to fight the passage of Measure H. Contrary to statements by some, we opposed it prior to the vote. When we spoke up during the emotional Measure H campaign, we met with two reactions: 1) from those who authored the measure, we received either inconclusive answers or no answers at all. And 2) from select individuals in town, we received threats of boycotts.

The research we conducted on our own indicates that Measure H is illegal. Pure and simple. It is a split roll parcel tax, which would require that tax treatment be equal within the identified tax groups. However, Measure H's combination of flat parcel taxes and per square foot taxes, combined with an array of exemptions and caps, yields nothing close to equal treatment.

Not only do we feel we are within our rights to defend ourselves against a measure that is illegal, we believe we have a certain level of responsibility to individuals in other California communities that may soon be facing similar measures fashioned after Alameda's Measure H.

Regrettably, now that Measure H has been voted into law, there are only two apparent ways for its reversal: 1) for AUSD to acknowledge the flaws in the measure, retract it, and work with the entire community to develop a more equitable measure, or 2) fight it in court. By filing a lawsuit, we are preserving the only option available to us as individual business and property owners. Only AUSD has the ability to retract the measure.

Despite the backlash against us, as evidenced by letters-to-the-editors, threatening phone calls to our businesses, and even hostile outbursts in our stores by those outraged by our decision, our goal is to remain calm and optimistic. The harshest indictment we have for those who authored Measure H is that it may be proven that they were not qualified to write tax laws. And we do not fault the many Alamedans who voted in favor of Measure H, based upon the incomplete information widely presented. But that does not mean that a small number of Alamedans should be forced to pay for the measure's gross inequity.

Be aware that for many Alameda businesses, the incremental tax for Measure H eclipses all other special assessment taxes we pay, combined, including the prior school-related parcel tax, still in effect. That leads to another potentially negative ramification of Measure H: It could stifle any near-term attempts to raise taxes to support other much-needed City services.

Alameda's small business owners have proven to be among the largest contributors to local entities, including our schools. Many of us have children and grandchildren in Alameda's public school system, and we give freely both as parents and as members of the business community. Beyond cash donations, we provide product and volunteer our services and time. So it is not only frightening, but also painful to be singled out and castigated as anti-school and anti-Alameda.

We are willing to accept an equitable parcel tax to support Alameda's schools. Please accept our determination to fight Measure H as an indication of how poorly the law was written.

Alamedans for Fair Taxation

Measure H legal battle heats up

By Jennifer K. Rumple , Alameda Journal, October 24, 2008

Take two lawsuits filed against Alameda Unified School District, hire two defense attorneys to fight claims Measure H is unlawful and out comes one expensive court case.

The school district released a statement Oct. 10 saying it will vigorously defend Measure H and it has retained the help of San Francisco attorneys David Nied of Chapman, Popik & White LLP and Page Barnes of Foley & Lardner LLP.

"I have a strong commitment to public education," said Nied, who has handled a variety of cases for the district the last 10 years. "These suits threaten public education in Alameda."

Barnes lives in Alameda, he said, and her children go to Alameda schools. "We are committed to upholding the will of Alameda voters to maintain quality education in Alameda's public schools."

Measure H passed with more than 66 percent of the vote in the June 3 election. It requires residential and commercial property owners to pay an emergency, temporary parcel tax during the next four years to offset the school district's budget deficit because of statewide budget cuts. Homeowners will pay $120 annually while commercial and industrial property owners will shell out 15 cents per square foot  paying no less than $120 and no more than $9,500. There are exemptions for senior citizens, residents on disability and properties used for public welfare.

The district originally stated the parcel tax would reach nearly $4 million each year, totaling $16 million. That money will help keep school programs such as athletics and elective courses intact. However, school board Vice President Mike McMahon said after recent analysis of commercial property county records, the amount of parcel tax collected during the next four years could top $18 million.

George Borikas owns several residential properties in Alameda. His Pleasanton-based attorney, David Brillant, filed suit on his behalf Aug. 21 stating the parcel tax is not uniformly applied and violates the California Code. Four days later, Mariner Square Marina and yacht dealership owner John Beery's San Francisco-based attorney John Messenger filed suit claiming Measure H is unconstitutional.

Beery named Alameda County along with the Alameda school district in his original suit. His lawyers dropped the county from the complaint upon their client's request Sept. 16.

"The main reason I had them drop it is because I thought we'd settle this out of court. It's a potential county problem because the district is within the county. But I told my attorneys it's just a city-wide thing, let's forget it and not get carried away," Beery explained.

"I've heard they've hired two attorneys. I told my lawyers to just hold off for now to see what those attorneys come up with," he added. "I just hope the district's not spending a lot of money on this case, continuing to run up the bill."

The district's attorneys have until Nov. 3 to respond to Beery's lawsuit. Defense attorney Nied met Monday's deadline in response to the Borikas case by filing a demurrer which challenges the legal sufficiency of the complaint and a motion to strike specific language from the complaint.

"We can't tell what the plaintiffs think is wrong. They've alleged (the district) violated the California Constitution, but how and in what way? The California Constitution could be the wrong document. The (Borikas) complaint needs to be specific about what Measure H violates," said Nied.

"The second piece (of the demurrer), we can't tell how Borikas fits in with Measure H," Nied said. "Does he own residential or commercial property? Is he exempt or non-exempt? The complaint doesn't specifically state either."

Nied also has asked the court to remove any language seeking equitable relief  such as a temporary restraining order or an injunction to stop the collection of parcel taxes  since the plaintiffs have no authority to do so. "And we want the Doe defendants (fictional, unknown people) dropped from the complaint. There shouldn't be any reverence for that in this type of proceeding," he said.

A hearing will be held Feb. 3 for a judge to decide those issues. The plaintiffs' attorney then would have an opportunity to amend the complaint. If denied, the defendants then have to answer Borikas' original complaint. Meantime, both sides are working to get the lawsuits consolidated.

"Right now were going through the rigmarole of getting the responses ready for both suits," said McMahon. "We're trying to get them combined since they're both about the same thing."

Nied said the validation statute requires that cases challenging the same action be consolidated for trial. Whether or not the two lawsuits can or should be consolidated sooner is under consideration.

Brilliant said he has not spoken directly to Messenger about consolidating their clients' cases. However, he has spoken to Nied about the differences and similarities in the suits and the benefits of consolidating the two.

"It just makes sense for us to go to our respective judges and ask to consolidate both cases. It would mean big savings for everyone," Brillant added. "We call it benefit of judicial economy. What it boils down to is money and time, and let me tell you, it's going to get expensive with (the district) hiring two attorneys. They're both very good firms."

The Alameda County tax assessor will continue processing the parcel tax in accordance with voter-approved Measure H. The money collected will be distributed to the Alameda school district, which has been reflected in its budget since June 30.

McMahon said the first time the school board will reassess the use of Measure H funds will be at the next budget review meeting on Dec. 9. "It's the first time the public will have an opportunity to weigh in on the use of those funds," he said.

School district responds to Measure H lawsuit

By Jennifer K. Rumple , Alameda Journal, November 7, 2008

Alameda school district attorneys have asked Alameda County Superior Court to dismiss on a technicality a case against their client regarding Measure H.

The voter-approved measure requires residential, commercial and industrial property owners to pay a parcel tax, between $120 and $9,500 depending on property size, for the next four years. The estimated $18 million collected during that time will help balance the school district's short-fall because of state-wide budget cuts.

Mariners Square Marina and yacht dealership owner John Beery filed suit Aug. 25 claiming Measure H is unconstitutional and not specific in how the collected tax will be allocated. District co-counsel David Nied of Chapman, Popik & White LLP and Page Barnes of Foley & Lardner LLP, both San Francisco-based firms, filed a response to that claim by this week's deadline.

"We filed two motions, one of which was a motion to dismiss the case on the premise the requirements for this particular type of action were not met in the public summons," explained Barnes, who lives in Alameda.

The legal notice appeared in the Oakland Tribune Sept. 16, 23 and 30.

"We're alleging (Beery) failed to include some of those important requirements like translating the opening phrase in Spanish," Barnes added. "It also has to include a notice that unless defendants respond to the summons in 30 days, the court can take default against them. That wasn't included either, in English or in Spanish."

Barnes said the district expects Beery will argue that his oversights were innocent mistakes that the court can overlook or that he should be given the opportunity to cure any defects in his summons. Barnes said the court should reject both of those arguments.

Beery's attorney did not respond for comment on the case.

The school district's attorneys also filed two legal responses to the lawsuit. One was to strike Beery's claim that the emergency, temporary parcel tax is unlawful because penalties for non-payment and the way it's collected are the same as for an ad valorem tax, which is based on a property's value.

"Just look at the law. What they are alleging is incorrect. That cause of action should be dismissed," Barnes added.

In the other legal response, the district is challenging Beery's allegations that use of Measure H funds has not been sufficiently specified, making it an unlawful general tax. "It is specified as a matter of law and it is fine," Barnes said.

A hearing is scheduled for Dec. 18 for a judge to hear oral arguments.

Meanwhile, the Feb. 3 hearing date still stands in the first case filed against the school district on Aug. 21. That lawsuit has George Borikas, who owns several residential properties in Alameda, claiming Measure H is not uniform.

"I take this litigation very personally. I am fighting to preserve the educational quality of 10,000 students and uphold the will of an overwhelming majority of voters who recognize the importance of passing this parcel tax for our kids," said Barnes, whose child attends school in Alameda. "I have a firm belief that the money being generated through Measure H is absolutely essential to maintaining the quality of our schools."

Lawyers say Measure H lawsuits may be resolved soon

By Jennifer K. Rumple , Alameda Journal, December 31, 2008

Two lawsuits filed against the Alameda Unified School District could be coming to a close in the next few months as attorneys for both plaintiffs work to speed the process to prove voter approved Measure H is illegal and unconstitutional.

"It will probably be settled before we even get to court," said Mariners Square Marina yacht dealership owner John Beery, who filed suit against the school district Aug. 25. His lawsuit claims Measure H is unconstitutional and does not specify how the collected tax will be allocated. "We are doing this in hopes to get the school board to get this together so whatever is decided, it is done correctly."

Measure H requires residential, commercial and industrial property owners to pay a parcel tax, between $120 and $9,500 annually, depending on property size, for the next four years. The estimated $18 million collected during that time will help balance the district's short-fall because of state budget cuts. On Nov. 3, Alameda school district co-counsel David Nied and Page Barnes filed a motion to dismiss Beery's case on the grounds he failed to properly notify the public about the lawsuit. They also filed two demurrers on that date.

(A demurrer challenges whether a legal cause of action exists for the facts, as stated by the complaining party. This is referred to as challenging the "legal sufficiency" of a claim, cause of action or defense.)

A judge ruled against the motion and one demurrer, which challenged Beery's claim that Measure H is an unlawful general tax because funds have not been sufficiently specified. But a week before Christmas, the school district's attorneys convinced a judge to revoke those rulings and review them again.

San Leandro-based attorney David Brillant represents George Borikas, who first filed suit against the district Aug. 21, claiming Measure H is illegal because it is not uniform. Brillant attended the Dec. 18 hearing to "stay fully abreast of this case at all angles."

"I think that's a big deal. The judge had already denied dismissing Beery's case on the grounds of omitting a couple things on the public notice," Brillant said.

"But then, AUSD's attorneys argued their point and got him to reconsider it.

The judge will now carefully review all the papers and notes from the hearing and decide whether to throw out their arguments or grant their motion to dismiss the case."

The judge's ruling could come at the case management conference scheduled for Jan. 8.

"If the judge sides for them, it's all well and good," said Beery, who lives in Alameda. "If the judge agrees with us, I will do all I can to work with (Alameda school district) to be as fast track as we possibly can to get this all resolved. Hopefully, it will be over soon one way or the other."

Meantime, Brillant filed a motion for summary judgment Dec. 23. "This is a question of law and a question of application of government code  a narrow issue that can be totally briefed in writing without a trial, oral testimony and witnesses," said Brillant, who is scheduled to argue Borikas' case before a judge March 17. "A trial will just cost everyone more money. This is a way to get this case over with right now."

Brillant said he's trying to add three plaintiffs to Borikas case. All own commercial property in Alameda. One is now required to pay the maximum tax of $9,500 under Measure H.

"This case is very much a group, grass roots effort," said Brillant. "Borikas owns two parcels (residential rental properties) being taxed. Borikas has just taken the lead and is willing to put his name out there. Many others are behind this effort saying the school district has passed an illegal measure."

Procedural Motion to Dismiss Measure H Lawsuit Denied

District Continues to Vigorously Defend Measure H

Friday, February 6, 2008 - On Thursday, February 5th, the Alameda County Superior Court denied the Alameda Unified School District