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Borikas v. Alameda Unified School District

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Borikas v. Alameda Unified School District
Seal of California.svg.png
Court:California Courts of Appeal
Text:Text of decision (dead link)
Local governments in California cannot impose a different parcel tax rate on different types of property.
Case history
Filed:August 21, 2008
Trial court:Superior Court of Alameda County
Trial court judge:Kenneth Mark Burr
Trial court decision:June 3, 2010
Appellate court:California Courts of Appeal
Author:Kathleen M. Banke
Appellate decision:December 6, 2012
Appellate court:California Supreme Court (denied request for a re-hearing)
Appellate court decision:June 12, 2013
Borikas v. Alameda Unified School District is a legal decision reached by the California Court of Appeals in 2012 with potentially far-reaching consequences for parcel tax levies throughout the state.

The lawsuit arose as a result of a June 3, 2008 vote on Measure H, a parcel tax measure for voters in the Alameda Unified School District. Measure H narrowly passed on June 3, 2008.

On August 21 of that year, plaintiff George K. Borikas filed the original lawsuit. On November 10, 2008, Borikas filed an amended complaint. In the amended complaint, a new plaintiff -- Edward Hirshberg -- was added. Hirshberg is the trustee of the Hirshberg Trust, a general partnership that owns commercial real estate in the Alameda Unified School District.

The lawsuit was filed in the Superior Court of Alameda County. It was heard by Superior Court judge Kenneth Mark Burr. Burr ruled against Borikas.[1]

Borikas appealed that decision to the California Courts of Appeal. In December 2012, that appellate court reversed parts of the trial court's decision, and invalidated parts of Measure H. The appellate court decision was written by Kathleen M. Banke, with judges James Marchiano and Robert L. Dondero concurring.[2]

According to the appellate court's decision, "The issue before us is whether the tax violates Government Code section 50079, which authorizes school districts to levy 'qualified special taxes.'...Such taxes are statutorily defined as 'taxes that apply uniformly to all taxpayers or all real property within the school district'...We...conclude Measure H‟s property classifications and differential tax burdens exceed the District‟s taxing authority under section 50079 and the judgment entered in favor of the District must, in part, be reversed."[2]

The board of the Alameda Unified School District appealed to the California Supreme Court.[3][4] However, on June 12, 2013, the California Supreme Court announced that it was denying the request for a re-hearing.[5] This denial from the state's highest court may mean that the Alameda Unified School District will have to repay about $7 million in taxes it collected under the now held-to-be-invalid Measure H.[6][7]

Impact of

David Brillant, the attorney for the plaintiffs, said that the case has implications for all school districts in the state: "From the outset of this case, we have approached this problem with a common-sense approach and we always believed that a tax to be 'applied uniformly' as the law requires, had to be just that – uniformly applied to all taxpayers, regardless of the type of property they owned. Districts, including the Alameda Unified School District, which have enacted or proposed taxes that classify taxpayers into categories with different rates are now on notice that those structures are illegal under California law."[8]

Kirsten Vital, who is the superintendent of the Alameda Unified School District, reacted to AUSD's loss in court, saying, "If the trial court orders refunds of tax revenues already collected and spent, this decision has the potential to be a significant blow to our budget with many negative consequences for our students, teachers and staff. The decision also has significant public policy and budget implications for school districts across the state. Accordingly, we are carefully evaluating all of our options in the courts and the legislature."[9]

In response to the ruling, the Piedmont Unified School District in Alameda County decided to change the way it will present a parcel tax measure scheduled for March 5, 2013.[10]

About a dozen school districts in the state have parcel tax levies in place that are similar to the Alameda Unified School District Measure J parcel tax that was judicially invalidated, in that the parcel taxes impose a different rate on residential and commercial properties. Other districts with a similar non-uniform structure include the San Leandro Unified School District (Measure L) and the Local Classrooms Funding Authority (Measure CL), which applies to the Centinela Valley Union High School District, the Hawthorne School District, the Lawndale Elementary School District, the Lennox School District, and the Wiseburn School District.[11]

Similar lawsuits

See also: List of ballot measure lawsuits in 2013

In January 2013, a lawsuit was filed against Measure L, a "split roll" parcel tax measure approved in the San Leandro Unified School District on November 6, 2012. The lawsuit asks to have the entire tax invalidated on grounds similar to those in Borikas.[12]

Lawsuits were also filed in January 2013 against:

All the lawsuits were filed by David Brillant, the Walnut Creek attorney who successfully argued Borikas.[13]

Trial court

Plaintiff George K. Borikas filed the original lawsuit in the Superior Court of Alameda County on August 21, 2008.

The case was heard by Superior Court judge Kenneth Mark Burr. Burr ruled against Borikas in a decision that was handed down on June 3, 2010.[1]

When Burr handed down his decision finding in favor of the Alameda Unified School District (AUSD), the AUSD issued a press release which said in part, "Judge Kenneth Mark Burr of the Alameda County Superior Court has ruled decisively and definitively for AUSD in the lawsuit over Measure H. In his Statement of Decision resolving the case, Judge Burr rejected all of the plaintiffs’ claims and found that the structure of Measure H is uniformly applied and legal under state law."[1]

Appeals Court rehearing

On January 7, 2013, the state court of appeal agreed to reconsider part of its December 2012 ruling.[14]

In their request for a rehearing, the school district's attorneys wrote, "To reach the conclusion that Measure H is beyond statutory authority, the opinion side-steps relevant precedent and canons of statutory construction, and misconstrues legislative history."[15]

David Brillant, the attorney for George Borikas, said that he had expected the request for a rehearing, which he said is standard in litigation of this nature. He also said, "The District felt they needed to make a few more arguments to the Court of Appeal, especially since they changed lawyers."[15]

On March 6, 2013, the First District Court of Appeal upheld its original ruling.[16]

Justice James J. Marchiano of the First District Court of Appeal wrote, "Measure H has laudatory goals to provide critically needed additional school financing for the Alameda Unified School District; but we cannot rewrite an enabling statute, nor enlarge or contract it, where the words do not allow any other plain meaning."[17]

With respect to the March 6 decision, Brillant (the attorney for plaintiff Borikas) said, ""We will know their next move within 40 days. Taxpayers should be pleased with this result but again I caution that we are still far away from the potential large refunds due to taxpayers."[16]


David J. Brillant of the Brillant Law Firm was the attorney for George Borikas. Leslie A. Baxter of Randick O'Dea & Tooliatos was the attorney for plaintiff Ed Hirshberg.

Susan M. Popik and David Nied of the law firm of Chapman, Popik & White were the attorneys for the Alameda Unified School District.

Lozano Smith, Jeffrey L. Kuhn and Sloan R. Simmons were the attorneys for California School Boards Association, which intervened on behalf of the Alameda Unified School District.

External links


  1. 1.0 1.1 1.2 San Francisco Chronicle, "Full text of AUSD press release on Measure H," June 3, 2010
  2. 2.0 2.1 Borikas v. Alameda School District (dead link)
  3. Mercury News, "Alameda: School officials to appeal court ruling on parcel tax," December 14, 2012
  4. ACTION ALAMEDA News, "School District to Appeal Measure H Ruling," December 14, 2012
  5. San Francisco Chronicle, "Alameda parcel tax shot down by high court," June 12, 2013
  7. Mercury News, "State high court denies review in Alameda's Measure H suit," June 12, 2013
  8. Action Alameda News, "Appeals Court Partially Reverses Measure H Lawsuit Decision," December 6, 2012
  9. Contra Costa Times, "Alameda: Court ruling may be 'blow' to district," December 7, 2012
  10. Beverly Hills Patch, "Alameda: School officials to appeal court ruling on parcel tax," December 14, 2012
  11. EdSource, "Appeals court imposes restrictions on parcel taxes," December 20, 2012
  12. San Leandro Patch, "Lawsuit Challenges Measure L, San Leandro's 'Split Roll' School Parcel Tax," January 28, 2013
  13. 13.0 13.1 Contra Costa Tiimes, "San Leandro, West Contra Costa schools and others sued over parcel taxes," February 1, 2013
  14. Mercury News, "Alameda: Court agrees to review decision on school parcel tax," January 7, 2013
  15. 15.0 15.1 The Alamedan, "Court will rehear decision to nix portions of former school parcel tax," January 8, 2013
  16. 16.0 16.1 Oakland Tribune, "Alameda: Ruling upheld voiding schools parcel tax," March 7, 2013
  17. San Francisco Chronicle, "Court upholds decision on Alameda school tax," March 7, 2013