You make me wanna say, oh (x 17) my gosh

I almost dug up an old post about the first set of lawsuits against the Measure H parcel tax, reposted it, and wrote “just replace Measure H with Measure A and bam, that is essentially what is going on right now.”   That’s right, according to the Alameda Journal opponents to Measure A are suing the school district, again, saying that the parcel tax is “unfair.”    Because the black hole that they threw their money down the first time in the form of the lawsuit against Measure H was just not satisfying enough that they want to do it all over again.   And even though they were summarily shut down by the judge, they want to do it all over again, with the same lawyer.

From the Alameda Journal:

Along with Hirshberg, the plaintiffs in this latest lawsuit are local property owner George Borikas, Nelco Inc. and Santa Clara Investors II, a general California partnership. Their attorney is David Brillant of Pleasanton.

Nelco Inc is owned by members of the Hirshberg Family and others:

Jerilyn Hirshberg, Wilson Hirshberg, Nicholas Wiebe, Susan Wiebe,Dennis Patheal and Joanne Patheal have a relevant ownership interest inPlaintiff-Appellant Nelco Inc

Runaway jury, without the jury

Another blog is “breaking” the news that — ohmigod — the Borikas lawsuit is headed to trial.   As though in a few months registered voters throughout Alameda County would be groaning in agony upon receipt of their jury summons and that David Brillant, the attorney for the Borikas, would be putting on his best Jack McCoy hat and nail the School District’s star witness on the stand and make them break out into confession and tears.

But, it’s sort of not as dramatic as that.   It’s all pretty ho hum in that Borkias’ lawyer David Brillant is still working the same angle of: “uniform means this to me.”   Even though that argument didn’t really fly the first time around with this judge.   And in this trial, Judge Kenneth Mark Burr will be the final arbiter in whether Borkias’ argument holds any weight at all.

Hodgepodge

Just a hodgepodge of miscellaneous news

First the BART strike has been averted, proceed as normal folks.   But, according to the SFGate article, some folks may be trying out alternate modes, so if you still want to try out taking the ferry, it’s actually a pretty neat ride.

The lawsuits against Measure H are moving towards positive resolutions, with the Beery case appearing to be more farther along.   Borikas has declined to join up with Beery to work to develop a new parcel tax that businesses will be happy with, preferring to keep the terms of their settlement offer private.  

The petition over at John Knox White’s site has amassed an amazing number of signatures in support of the three school board members under threat of recall.   While the vast majority of signatures are from Alameda residents there are a few non Alameda residents as well showing their support as well.   If you have not yet signed, please do so and if you know of others that would like to show their support as well, please pass along the link.

On that topic, word is that the group organizing the recall effort (S.E.R.V.E. Alameda) will be having a press conference on Friday and have asked permission to do it at City Hall.   Additionally, they want to have a town hall meeting on August 29 to “discuss school district issues” also at City Hall.   It’s a good strategy, nothing adds an air of legitimacy more than having a meeting at City Hall.

The Firefighters have put out their rebuttal document to the consultant report that has been oft quoted by City leaders.  I’ve only skimmed the document, but wanted to put it out there for those interested.

Mark Haskett of the now defunct Central Cinema is looking to take over the Parkway Theater in Oakland.  Redroom posted a bit of an email from the programmer and host Will Viharo who said that talks continue between Mark Haskett and Councilmember Pat Kernighan:

Mark has very specific ideas on how to streamline the original business model. He shares my view that the overhead should be split between a team with specific theater experience and one with restaurant experience, working in concert under one roof. This has always seemed the most cost effective and efficient way to operate this kind of business, as far as I’m concerned.

And last but not least, CASA is hosting two workshops on the Zero Waste Implementation plan, one for businesses and the other for the community at large.   If you can’t make it out to the meeting, you can participate via a Webinar (business and community).  Those meetings are set for Wednesday starting at 8:30 a.m. for the business one.   The community meeting will be at 7:00 p.m.   Both will be held at City Hall in the Council chambers.

But on Tuesday, CASA will be hosting a meeting on Climate Change in general starting at 7:00 p.m. at First Congregational Church Social Hall, 1912 Central Avenue.   The first part will feature Alamedan, Srikant Subramaniam who will talk about the “Science of Climate Change” and the second part will feature Joyce Mercado, green guru, who will talk about “the Art of Making a Difference.”   Seriously though, I think Joyce Mercado knows every in and out about recycling and other such things in Alameda and she makes it accessible to the average person.

Never give up, never surrender

Michele Ellson has covered the topic of the paid advertisement of an Open Letter to the Board of Education regarding the topic of Measure H.   But I found it rather interesting that this business owner — in charge of property that has a “current value” of $35 million — is attempting to further a similar argument that was shot down by the Judge in both the Borikas and Beery cases.

Essentially, the owners of the Marina Village Marina assert that Measure H is “discriminatory” because it charges a different rate for commercial properties as opposed to residential properties.   Been there, done that.    I guess this is different than the terminology (“uniformity) used by the lawyers in the Borikas and Beery cases, ” because “discriminatory” is meant to produce a visceral emotional response that “not uniform” simply cannot muster.

Uniformity redux

As mentioned yesterday on In Alameda, the judge in the Beery case (RG08405984) has made a tentative ruling on the plaintiff’s motion for summary judgment. (full text below)   The tentative ruling basically says that there is a there there and while Beery’s lawyers tried to use a very similiar argument to that of Borikas’ (VG08405316) just as he did not buy it then, he doesn’t buy it for this one either. 

There were two main arguments that the Judge Burr addressed at the core of the motion for summary judgment.   The first was that of uniformity.   Much like what happened when Borikas tried that course of action, the Judge said, nope, not going to happen:

…The Court previously ruled on essentially the same “uniformity” issue in denying the motion for summary judgment brought by the Borikas plaintiffs. The Court adopts its holding in its prior ruling that the parcel tax imposed by Measure H is uniformly imposed. The Court is not persuaded to change its prior ruling by the new arguments and evidence submitted by Plaintiffs. The argument concerning legislative history was made in support of the prior motion. The new evidence submitted elaborates on that prior argument. In general, the evidence offered shows that some non-legislators thought that the statute might be interpreted in the manner sought by Plaintiffs in this action…

Affirmation and consolidation

Yesterday, Judge Kenneth Mark Burr, the judge in the Borikas v. Alameda Unified School District case affirmed his earlier tentative ruling denying the motion for summary judg(e)ment made by the Plaintiffs.   In addition to the ruling, he also went ahead and consolidated the two cases — Beery and Borikas — into one larger case against the school district with a trial date set for September of this year.

The school district sent out a press release yesterday, highlights from that press release:

…“We are very pleased that Judge Burr ruled against the plaintiffs’ motion for summary judgment,” said Superintendent Kirsten Vital. “We are particularly heartened that he specifically indicated that the requirement that the tax be applied ‘uniformly’ only requires that the tax be applied uniformly to all parcels within the same classification and not identically to every parcel regardless of its size or use,” she continued.

…

Judgement summary

As mentioned by several folks over the weekend, the judge in the Borikas case has made tentative ruling in the Borikas case.   What happened was that the Plaintiff Borikas (or rather his lawyers) asked the courts for summary judgement saying basically that: hey! we got this one here, the defendants have no leg to stand on, so let’s get this show on the road and spare us all a lot of time and money.

But the judge, made a tentative ruling saying: not so fast there cowboy, highlights of the language, paragraph breaks added:

…Plaintiffs do not show that the Legislature intended for the word “uniformly” to have a different meaning in Government Code section 50079 than the meaning ascribed to it in other areas of taxation. That fact that the legislature enacted section 50079 in order to create an exception to Proposition 13 does not, on its face, show that a more limited definition of the word uniform was intended. Plaintiffs do not explain why the circumstances surrounding the enactment of the statute support their interpretation of the word “uniformly.” Assuming that the legislature did not intend the word “uniformly” to have its usual meaning when used in a taxing scheme, Plaintiffs do not explain what type of “uniformity” the Legislature intended to require.

H to the izz-O

Because I couldn’t write it, you should read Rob Siltanen’s post about the state of School budgets, Measure H, et al.   And notice I didn’t say, “I couldn’t write it better” but rather “I couldn’t write it.” At all.   Rob S. does an amazing job at laying out the difficulties that AUSD will face with the news that there are more budget cuts for this fiscal year coming down the pipeline.   Highlights, but reading the entire post is highly encouraged:

The state budget is in such dire straights that the Governor has called a Special Session of the legislature to enact additional budget cuts for the CURRENT SCHOOL YEAR (”mid-year cuts”). Among the “highlights” of the Governor’s proposal to cut 2.5 billion more from the education budget for this school year – yes, those would be cuts for the year for which school districts were required to approve a budget last June — are (1) retroactively eliminating the COLA for 08-09 and (2) retroactively reducing revenue limit funding (i.e., general funding) by 1.79 billion. Even more ominously, this draconian Special Session plan only addresses 11 billion of the state’s projected shortfall. The Governor projects another 13 billion deficit for 09-10. That means that in January we will hear about even more cuts ON TOP OF THESE for the next, fast-approaching budget cycle. If the legislature is unable or unwilling to act in the Special Session (which I think is likely), the whole problem of a 24 billion deficit would be carried into 09-10.

…

¿Comprende?

As mentioned by Michele Ellson at the Island, AUSD’s lawyers have made the next move in the Beery case having already filed a demurrer in the Borikas case, set to be heard early next year.  The documents are now up on the court website, so you can check out for yourself what reason AUSD has given to urge the court to dismiss Beery’s case.   This motion is scheduled to be heard on December 18.

Interestingly enough the motion largely hinges on a technical mistake.  AUSD contends that the summons that is required to be posted and published by the Beery was deficient.  How was it deficient you may be asking?  Well, Beery forgot to include a Spanish translation of this phrase:

Notice! You have been sued.  The court may decide against you without your being heard unless you respond within 30 days.  Read information below.

“Do you know what this is?

It’s the world’s smallest violin…”

and it’s playing for Alamedans for Fair Taxation, who recently wrote an open letter in the Alameda Sun.  They felt as though it would make their case stronger if they “quantified” how much Measure H would cost select businesses in Alameda.   Some of the businesses were hard to identify which they were, but for the one was discoverable through process of elimination it was interesting to see how much they were paying in relationship to their base property tax. The “family-owned nursery” would indeed pay $3,500 per year, but guess what their ad valorem property tax is?  Less than $1,300 per year.

Of course, others have weighed in on this issue.  From Stop, Drop, and Roll on the issue of the term “fair” as in “Alamedans for Fair Taxation”:

…It’s unfair just like our current property tax system is unfair. In fact, a quick check of the property taxes paid by the Kelly’s on their store shows that my family pays over $3,500 a year more than the Kelly’s do thanks to Prop 13 (which was passed by a lower percentage of voters than Measure H did.)  That’s not fair.