Beery leery

I’ve finally had a chance to take a look at the Beery complaint filed and first, it’s certainly a lot better written than the Borikas one (no offense to the other attorney), but appears to touch on pretty much the same points as the Borikas one.

There are six causes of action, the first is basically what folks had pretty much guessed would be at the base of the complaint: because all property parcels, regardless of use (commercial, residential, industrial) are not taxed at the same rate, it is not uniformly applied.   If the judge decides to accept this argument, then as I mentioned in this post, a lot of [edited for clarity] future parcel taxes, if structured the way that they have been in the past could possibly undergo challenges based on this precedent, and generally the role of the court is to settle questions of law and not create new problems.  Basically a lot of the bullets in the first cause of action give varying examples of how the parcel tax is not uniform, but the nutmeat is the contention that all parcels should be treated equally.   As mentioned by notadave, one of the examples also given in the first cause of action is that supposedly supports the argument that the tax is not uniform is the fact that the tax is not “imposed on property exempt from ad valorem real property tax.”  

The second cause of action focuses in on the portion in the California Government Code that says that:

“Qualified special taxes” do not include special taxes imposed on a particular class of property or taxpayers.

This cause of action furthers the argument that the tax is not uniform because structuring a different rate for commercial vs. residential properties is creating a “particular class.”  As well as those parcels that are exempt from ad valorem real property tax is considered another “class” as well.   A similiar argument to the first cause of action, just taking it from another direction.

The third cause of action claims that the parcel tax is invalid because it was not clearly outlined for what purpose the tax would be used for, claiming that it was too vague and too general and would be more properly defined as a general tax, even though the language says that it would be used for:

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 and other programs…

I don’t know how much clearer that can be, but even though the language was even cited in the claim, the attorneys are trying to make the argument that this is too vague for the purposes of a parcel tax.

The fourth cause of action says that because the parcel tax will be collected in conjunction with the ad valorem taxes (and if you don’t pay, penalized in the method that ad valorem taxes are penalized) that it is, in fact, not a special parcel tax.  Personally, this one seems a bit of stretch, after all how else would the tax be collected?

The fifth cause of action is a real doozy, this claim suggests that the parcel tax violated the Equal Protection Clause of the US Constitution because of the different rates between the commerical/industrial and residential parcels.  No more explication other than stating that because of the different classifications and the caps on the maximum and minimum rates that this is somehow a violation of the Equal Protection Clause.

The sixth cause of action claims that because the the language of Measure H restricted the senior and SSI exemption to those folks with “single family houses” used as their primary residence that it adds a restriction that is not in the government code.   I have to say, I didn’t notice that the Measure H language included the “single family” residence as part of the language, so they might get some traction out of this one, but this seems like this could be easily corrected somehow to remove the limitation of the single family residence necessary for the exemption.

So, all in all, very similiar arguments to that of the Borikas case, only a hell of a lot more in depth and thorough.  Michelle Ellson at The Island has a nice update on possible settlement talks that could happen between Beery and the school district, what was interesting was Beery’s characterization of the other lawsuit:

…Beery said he had been involved with the folks responsible for the original anti-H suit filed Thursday by local property owner George Borikas but that they were “very negative.”…

Hopefully there can be some positive resolution to at least one of the two cases.