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Should the Courts Invalidate Measure G?

A lawyer in Walnut Creek sued WCCUSD in January, claiming that the parcel tax extension is illegal. The courts have ruled in his favor on this issue before.

A lawyer with a track record of successfully using the courts to block school parcel taxes has taken aim at Measure G, the parcel tax extension voters approved for the West Contra Costa Unified School District in November.

Contending that Measure G illegally taxes property owners at different rates, David Brillant is using some of the same legal arguments that persuaded the First District Court of Appeals to rule in December that Alameda Unified wrongly collected nearly $18 million under a parcel tax passed by voters in 2008, according to the Contra Costa Times.

Charles Ramsey, a member of WCCUSD's governing board, said he thinks the lawsuit is flawed. He said that not only does Measure G not go into effect until 2014-15, but that the parcel tax does not contain different rates for different types of property owners. 

Measure G taxes property owners at 7.2 cents per square foot and owners of empty parcels at $7.20. Over the next five years, Measure G is expected to bring the district $50 million.

Ramsey said that charging owners of unimproved parcels 7.2 cents per square foot would not significantly reduce the revenue from the tax. 

At the same time that he filed the suit against WCCUSD in January, Brillant sued San Leandro Unified, Davis Joint Unified and five school districts in Los Angeles County. 

At the end of December, lawyers for Alameda Unified asked the the First Court of Appeals to reconsider its original decision, which the court agreed to do. However, the court is not allowing additional briefings and oral arguments in the rehearing. 

Giorgio C. February 05, 2013 at 02:09 AM
This is very disappointing news as this parcel tax is very much needed. If a mistake was made, correct the problem and move on for crying out loud. This district has a teacher turnover rate that might possibly be the highest in the state. I challenge the district to prove otherwise. Since when did it become unpopular to pay teachers? So we offer lower wages and cut their benefits and complain when teachers up and leave, forcing us to depend on another stable of the less experienced, or worse, the bottom feeders. I have my complaints about the district, but that doesn't mean I don't support our teachers. Seriously, fix the problem and move on.
Giorgio C. February 05, 2013 at 02:54 PM
Superintendent Harter and the school board need to be more transparent with how our parcel tax money is being used. This will lead to more support when such mistakes are made, if indeed that is what happened with Measure G. I will protest any future parcel taxes until the WCCUSD does more to restore the trust it has with the taxpayer. I will provide some specific suggestions at this weeks board meeting to help with the quality improvement process. I hope others do the same.
Susan February 05, 2013 at 05:56 PM
George, what does the SF Giants parade have to do with this? Yes, parents need to take education more seriously in the home, no one's arguing with that. They also need to stop taking their kids out of school for family vacations, etc. I do not have young kids anymore, but if your family was a SF Giants family, and the Giants hadn't won the world series in what, 50 years, whatever, it was ages ago, I would have probably brought my kids too. My law office in Oakland actually closed for those three hours for the World Series parade. As you know, many more kids were there than just those from WCCUSD! And Louise, no the Measure didn't pass the first time, but it was close to passing (only two communities didn't give it a 66.66% vote). Yes, WCCUSD board did the right thing by putting it on the ballot again, judging by the positive results, it was a good decision. Folks, this a legal matter. David Brilliant is an attorney in Walnut Creek specializing in complex litigation matters. He deals with estate, business, and trust litigation. And, if anyone is interested, all of the colleges he attended are private: Santa Clara University (BS) and Golden Gate University , J.D. , specializing in taxation. He resides in Walnut Creek, not at all a part of our WCCUSD community.
Kathy A. February 05, 2013 at 06:34 PM
This measure passed, and it passed because parents and neighbors -- having considered it -- thought it was a good idea. So far as I can tell from the story, the argument is that different kinds of owners are taxed at different rates. What's the argument here? Everybody with improved property pays one rate for each square foot. The only exception is a flat rate of $7.20 for empty pieces of land. Now, explain to me why this is a problem? The voters agreed on the square-foot-rate for all owners; so he must be arguing that the $7.20 for empty property is a problem? He is suing over that?? The only person who will benefit from this litigation is the lawyer who is bringing similar lawsuits all over the state. He can crank the same complaints out, with little new work. Every jurisdiction he sues is then obligated to hire lawyers and do the litigation dance. It costs those jurisdictions money to litigate -- they have to hire their own lawyers. If these lawsuits win, I imagine that Mr. Brilliant will be asking for attorney fees, at his undoubtedly high hourly rate. But if they lose, this hobby does not actually cost him a lot (and he probably can afford a hobby horse); it is so easy to file these kinds of complaints. This story is a bit misleading, because it appears his "successful record" consists of the one present win, which is being appealed.
Kathy A. February 05, 2013 at 06:40 PM
Or maybe he is arguing that EC Plaza, the big Safeway, Target, and other large parcels should only pay $7.20, no matter their square footage? That does not sound fair to me. It certainly was not the voter's intent. I can't imagine he is looking for fairness in all this litigation. It is just something to argue about, to him.
Ira Sharenow February 05, 2013 at 07:12 PM
One issue which I have not seen discussed is that the bonds are being sold at a significant premium, so while bonds may, for example, have a face value of $100 million, the district may have in fact borrowed $110 million. http://emma.msrb.org/IssueView/IssueDetails.aspx?id=ER350096
Louise B. February 05, 2013 at 07:28 PM
So what if he attended private schools?? That only means that he or his parents not only paid out of their own pocket for his education BUT ALSO paid property taxes for public schools to operate. Maybe he also worked or received a scholarship or a studen loan. I have known people who attended private schools and they were not "rich." Stop with the class warfare.
Susan February 05, 2013 at 07:42 PM
Kathy, yes, Mr. Brilliant is probably working on a contingency fee basis, which can yield him millions, as he represents the commercial property owners in every instance. Read what Blogging Bayport Alameda has to say: http://laurendo.wordpress.com/2013/02/04/domino-effect/ Sure, do you guys all think he is doing this for free???he's potentially netting MILLIONS, not bad for a tiny law corporation.
Kathy A. February 05, 2013 at 08:05 PM
Susan -- a contingency fee is when a plaintiff agrees to give a certain amount to the lawyer if the case wins. Maybe that is the case here, but probably not -- because nobody is going to win a big verdict or settlement. The taxes are not really that much, even for big parcels. So, I'm thinking he is doing this for his own purposes, and/or he hopes to get wins and attorney fees (under a "private attorney general" concept). Unless there is some outside funding -- which he does not need to disclose -- the only money in it is if he wins and also gets orders for attorney fees. The strategy is to make it too expensive for school districts to litigate, so they'll settle.
Paul February 05, 2013 at 08:16 PM
The issue being discussed here is the parcel tax, which is not related to the bond program. The parcel tax pays for operating expenses - teacher salaries, classroom materials, daily operation and maintenance. The bond program pays for long-term capital improvements - school buildings.
Kathy A. February 06, 2013 at 01:48 AM
Apologies, Susan -- just looked at your link, which suggests the money behind these lawsuits is from big commercial property owners. They are probably paying him an hourly rate. But I still think he might be angling for awards of attorney fees; and definitely think that he and his corporate clients plan to wear down the various school districts, which are not so flush with cash.
Giorgio C. February 06, 2013 at 02:09 AM
The more I think about this, the more I have to wonder if someone with the County office is responsible for preventing such violations of the law. Someone on this org chart, perhaps? Isn't that their job? https://ca-contracostacounty.civicplus.com/DocumentCenter/Home/View/4108
Susan February 06, 2013 at 03:08 AM
Giorgio,just because there is a lawsuit doesn't mean that WCCUSD or any of the OTHER school districts violated the law. There are thousands of lawsuits that have no legal basis and are dismissed. I do NOT profess to know the law behind all of this - but that's why parties go to court : to DETERMINE if a policy is legal or not. This is why we have lawyers tying up the courts with frivolous lawsuits. So it's not so simple as to say "one person or party" is responsible for this. I'm sure all the school districts have legal counsel and I would imagine they are up in arms over this, defending themselves. I would love to see the plaintiffs in this case, tried to pull up the filing but unsuccessfully. You KNOW that the plaintiffs represented by Mr. Brilliant are commercial property owners - I'm certain that was the case in Alameda. An important legal factor will be if there is precedent for any of these actions, pertaining to either the plaintiffs or the defendants.
Susan February 06, 2013 at 03:11 AM
I don't think the County Office of Education has jurisdiction over this matter at all. The defendants, in each case, are the school districts. As every one can see, Mr. Brilliant is representing parties suing several districts, not just ours.
Susan February 06, 2013 at 03:13 AM
Kathy, either way, it doesn't matter how attorney fees are calculated, you know they are big dollars and Mr. Brilliant surely isn't doing all this work for free! I'm sure he has a substantial financial motive.
Giorgio C. February 06, 2013 at 03:18 AM
Thanks, Susan. Frivolous or not, my question is about responsibility. The following editorial states that some of these violations by such agencies as school districts has not been uncommon. Again I ask, does't the county of origin share the oversight-compliance responsibility? Editorial http://www.contracostatimes.com/news/ci_22523706/contra-costa-times-editorial-local-governments-must-follow I believe school districts need to be under accreditation to ensure that they are being managed efficiently and effectively. The performance audits alone are not adequate. A school board consisting of amateurs-volunteers is not adequate oversight. Currently, only individual schools are subject to accreditation. The fact that the Grand Jury is often playing an oversight role for our school districts is evidence of lacking oversight. Oversight is not a bad thing. I work for a state agency that learned some painful lessons in recent years about oversight and we are now enrolled in an accreditation program. The accreditation process comes with learning tools and guidance of sorts, and a map to success. It is very positive. I believe the WCCUSD could benefit greatly from this. The citizens of California should enact legislation requiring an accreditation process for our school districts, not just our schools.
Alex Gronke (Editor) February 06, 2013 at 04:01 AM
Here's the December opinion from the Alameda suit. http://www.courts.ca.gov/opinions/documents/A129295.PDF
Kathy A. February 06, 2013 at 04:49 AM
Thanks for the link to that opinion, Alex. A little thick to slog through, and maybe I'm missing something, but I'm not really seeing that opinion posing a problem for Measure G. This was only a partial reversal of a parcel tax, and the part that was struck down involved taxing non-residential parcels at a higher rate than residential parcels. I don't think that is true with Measure G, which has a uniform rate based on square footage of buildings on the land. Here is a link to Measure G: http://www.smartvoter.org/2012/11/06/ca/cc/meas/G/
Giorgio C. February 06, 2013 at 04:49 AM
Thanks, Alex. This document answers my question. The taxing authority has clearly been delegated to the school district. How about some checks and balances? I can't believe someone from the County still doesn't have to review and sign off on the implementation of these taxes.
Giorgio C. February 06, 2013 at 03:06 PM
Here are some students with disabilities API scores for some high schools 2012 and 2011: Hercules: 401, 466 Mt. Diablo: 531, 543 Albany: 679, 644 El Cerrito: 460, 455 Richmond: 391, 415 John Swett: 536, 495 Campolindo: 722, 715 Piedmont: 768, 769 Redwood (Larkspur): 677, 668 Pinole: 428, 400 Looking at some of the scores for our district schools, I am concerned that strained resources might be compromising educational opportunities for this vulnerable population of student. Measure G funds are critical and for this reason, should not be delayed. Search for API scores here http://www.cde.ca.gov/ta/ac/ap/
Kathy A. February 06, 2013 at 03:59 PM
The current parcel tax runs out in 2014; measure G will extend that parcel tax. So, there is not currently a gap. But the district will be forced to spend money to defend against this lawsuit.
Susan February 06, 2013 at 06:53 PM
http://www.action-alameda-news.com/2012/12/07/school-district-has-significant-exposure-due-to-measure-h-reversal/ here's an article about the details of the Alameda suit. Yes, the plaintiff is George Borikas, a significantl property owner in Alameda. What makes me SICK about this is the voters passed these measures. If you want to vote no on these measures, that's your right as a citizen and no one can dispute however you choose to vote. But this kind of measure costs ALL of our districts so much money to litigate. I think it's a shame.
Giorgio C. February 06, 2013 at 08:11 PM
I am one of those who voted for this measure. Having said that, I am trusting that what I voted for is lawful. I expect compliance to the letter.
Giorgio C. February 08, 2013 at 03:32 PM
Thank you, President Kronenberg, for providing me with the following information from the Special Ed Director: "All our high schools have programs to severe students with learning disabilities through the collaborative model…special education teachers team teach with general education teachers and tutorial periods are provided by the special education. For the non-diploma track learning disabled students, we offer an Applied Academics Academy to provide academics along with career readiness. Hercules High has four teachers to serve the Learning Disabled – two Resource Teachers and two Special Day Class teachers. For the severely handicapped, programs vary by site, such as Hercules has the visually impaired program, medically fragile program and students who require assistive technology , El Cerrito High has an autism program and the hearing impaired program, Richmond High and Kennedy each have a severely handicapped class, Pinole Valley has a class for emotionally disturbed and DeAnza has four classes for the severely handicapped. Since we are a single-district SELPA and we do not utilize any of the Contra Costa County programs, we provide all our own services. High Schools like Campolinda, John Swett, Albany, Piedmont and Redwood are in multi-district SELPAs and may not serve the moderate-to severe population. Those students may be in county programs or served at other sites within the SELPA.. Moreover, the special education populations changes from year to year."
None February 08, 2013 at 04:35 PM
Susan, you might want to take a look at how many propositions and issues that have been passed by a majority of voters have also been turned over by “our” courts and in some cases, by just one judge.
Susan February 08, 2013 at 05:23 PM
yep, good point. zillions of propositions!
Giorgio C. February 08, 2013 at 05:44 PM
Why are we blaming those who enforce the laws instead of those responsible for following them?
Jessica b March 07, 2013 at 07:04 AM
Has anyone seen the most recent decision from the court of appeals?!? Came out 6march2013
lyn lowell March 09, 2013 at 06:28 PM
The school board response to problems is always lets put another bond measure on the ballots. It is time to recall all school board members, fire all administrators and start with new education programs model after Sweden. Throwing money at the problem is not the answer. Get rid of the teacher unions and fat cat administrators.
None March 10, 2013 at 03:45 AM
Can anyone recall any election here in West Contra Costa County and especially in this West County school district that did NOT contain either another School Bond or some sort of a tax to support education? I have been voting in this area since 1957 and I always find another tax or fee to support our schools to always be on our ballot. Perhaps it is time to change our system; the present system seems to really be broke!

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