Alameda Unified School District Measure H (June 2008)
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Alameda County Measure H appeared on the June 3, 2008 ballot in Alameda County, California, where it was approved.
Measure H was also known as the Temporary Emergency 4-Year Parcel Tax. It imposes a $120 a year parcel tax in addition to the current $189/year parcel tax, raising about $4 million a year for four years.
In a nail-biter of an election, it took over a week before voters learned that Measure H had passed by the tiniest of margins, with 66.87% in favor. To pass, it had to earn the approval of 66.67% of the voters. As of the end of the day on June 6, three days after the election, Measure H look like it was losing by seven votes, but when provisional and absentee votes were counted, it squeaked through.[1][2],[3]
Commercial and industrial properties will be subject to a tax of 15 cents per square foot of space, with a cap of $9,500. Some business owners, as economic woes grow, said they were voting against Measure H.
Text of Measure H
The text of Measure H as it appeared on the ballot was, "To offset severe state budget cuts to Alameda schools, minimize school closures, and protect the quality of education, student safety, class sizes, excellent teachers and staff and to restore prioritized cuts to music, athletics, advanced placement courses, shall Alameda Unified School District levy a temporary, 4-year emergency tax of $120 per residential parcel and 15 cents per square foot for commercial/industrial parcels (see the voter pamphlet), with exemptions for seniors, citizen oversight and all funds staying local?"
Lawsuits filed against Measure H
Two "reverse validation" lawsuits were filed against the Alameda Unified School District (AUSD), asking the courts to invalidate Measure H and prohibit AUSD from collecting the parcel tax.
Judge Kenneth Burr is hearing the cases, and has consolidated the two lawsuits into a single suit.[4]
In August 2009, attorneys for AUSD and the plaintiffs in the lawsuits said they were in settlement talks.[5] One outcome of a possible settlement is that Measure H would be revoked, and a substitute measure would go on the June 2010 ballot.[6]
On September 8, the AUSD school board approved a framework under which it might settle the Beery lawsuit. This agreement, which has been discussed at length between AUSD and attorneys representing Beery, would result in a new parcel tax to replace Measures A and H. The new parcel tax would go on the June 8, 2010 ballot.[7] AUSD says it will appoint a 10-12 member committee by October 20 to work out what it as a district is willing to agree to in a proposed settlement.[8]
Attorneys for Borikas object to the settlement terms that have been offered.[4]
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 alleged 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 lawsuit
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 Borikas lawsuit alleges that Measure H violates Section 50079(b)(1) in that Measure H doesn't levy the taxes "uniformly". This claim is similar to that raised in the First Cause of Action in the Beery lawsuit.
Attorneys for Borikas are objecting to AUSD's settlement offers to Beery. The Borikas group wants Measure H repealed and do not advocate the creation of a replacement tax.[4]
According to attorney David Brilliant, "The law is clear that the repeal of a parcel tax requires a simple majority vote whereas the enactment of a parcel tax requires a two-thirds vote To put both questions before the voters on one ballot measure and require a two-thirds vote where repeal only requires a simple majority is illegal."[4]
John Knox, an education blogger at the San Francisco Chronicle, objects to the Borikas lawsuit.[9] He writes:
- "This statement seems to put the lie to the idea that those fighting Measure H just want "fair" taxation, they want the tax repealed without replacement, regardless of whether or not the money lost to the School District (money approved by 2/3 of the voters) is accounted for in other places (and we know that schools are just rolling in dough!). Apparently, the Borikas complainants feel the School Board should override the voters, even while their case has received a very poor response from the judge hearing the case."
- "And to that point, apparently Brilliant doesn't think that they will win the case. I'm hearing rumblings about biased judges who are swayed by emotional arguments like "schools need money" and "kids." Of course we're talking about a republican-appointed judge who has said he has so far not seen any arguments on the law that make their case. And so the case rolls slowly toward the inevitable appeal, which apparently was the whole goal all along, because that way, there's a hope of taking down education spending throughout the entire state."
Business owners hurt
A survey of merchants and business owners conducted by the City of Alameda in late summer 2009 found that "many of those who took part in the survey cited Measure H as a disadvantage toward doing business" in Alameda.[10]
See also
- California 2008 local ballot measures
- Alameda Unified School District board recall, Alameda County, California (2009)
External links
- Yes on H, website of supporters.
- School board agrees to disagree
- Mike McMahon's coverage
- Fewer teachers set for layoffs
- Alameda voters to decide on 5 ballot measures
- Countdown to Measure H
References
- ↑ The Island, Measure H on Razor's Edge
- ↑ Alameda County Registrar of Voters
- ↑ Measure H tax measure passes, June 11, 2008
- ↑ 4.0 4.1 4.2 4.3 Inside Bay Area, "Attorney criticizes school district's bid to create new parcel tax", October 1, 2009
- ↑ The Island of Alameda, "Updated H Case Could Settle", August 13, 2009
- ↑ Mercury News, "Parcel tax lawsuits could settle, lawyers say", August 22, 2009
- ↑ San Francisco Chronicle, "AUSD unanimously approves settlement plan on Measure H lawsuit"
- ↑ Alameda Sun, "AUSD to Form H Committee", September 17, 2009
- ↑ San Francisco Chronicle, "Second schools lawsuit chugging forward. Dream of removing funding from schools statewide, still alive", September 30, 2009
- ↑ Mercury News, "Alameda council gets sales tax report, feedback from merchants", September 17, 2009
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