Parcel tax challenged Parcel tax challenged (April 23, 2004)

School district, county office sued over legality of Measure J election

By Julie O'Shea

In a case that could potentially change state law, a Saratoga man is contesting the legality of Mountain View-Whisman School District's March 2 parcel tax election, claiming it was conducted unconstitutionally and should be redone.

Aaron Katz claims he was discriminated against because he didn't get to vote in last month's election even though he owns 10 condos within school district boundaries. He is suing the school district and the Santa Clara County Registrar of Voters, demanding another election be held where only property owners -- regardless if they live in the city or not -- are allowed to participate. City and county officials say they have never heard of such a lawsuit and question if it will get very far in the court system.

Still, the court petition, filed more than a month before the March election, has put local educators on edge. Mountain View-Whisman Superintendent Jim Negri said school officials have done nothing wrong. The Measure J election results have already been certified by the county, but school administrators will be in court defending the validity of the $1.6-million parcel tax in early May.

"Why is he suing us?," Negri said. "We (the school district) don't set the voting rules. As far as we are concerned, we followed the election law.

"If the law changes, we will follow," he added.

Lisa Herrick, an attorney for the county registrar's office, suspects Katz will have a hard time winning his case, at least at the county level.

"It's really more a legislative issue," she said. "I don't think the law, as it stands right now, supports what he is trying to accomplish, (but) ... if he were to prevail in Santa Clara County, it would have ramifications statewide."

The Mountain View-Whisman parcel tax states that all property owners within the school district's boundaries will be assessed an annual fee based on the size of their individual parcel of land for the next five years. Measure J needed a two-thirds vote to pass. It passed with 69 percent of the vote.

The tax will cost most homeowners $75 a year. It is capped at $600, and seniors can apply for an exemption. In addition, contiguous properties, or a piece of land that is divided into multiple lots, would only be taxed once based on the total square footage of the entire piece of property.

Katz said the parcel tax bill for his properties will be $750. He declined to say where his 10 condos are located within the city.

Katz, a private attorney who is representing himself in the case, said he is prepared to take the matter all the way to the state Supreme Court. Residents have until May 4 to file a written response to the lawsuit.

"The school district is going to lose. If you only polled the people who are property owners, (the tax measure) would lose by thousands," Katz said. "Every property owner I've ever spoken to -- and I've spoken to hundreds -- has told me I'm right."

State election law maintains that all legal, registered residents, age 18 or older, be allowed to vote in any election impacting their city, state or country in which they live.

Herrick said if Katz plans to change the law, he would need to find an ally in Sacramento willing to bring the issue to the state Assembly floor.

"I think it's an interesting constitutional issue," said Marge Gratiot, superintendent of the Los Altos School District which recently passed its own parcel tax after two tries. "The courts aren't a popularity contest. The judge makes a ruling based on the law."

A representative from Secretary of State Kevin Shelley's office declined to comment on the Katz lawsuit, saying he was not familiar with the specifics of the case. Shelley is responsible for overseeing the state's election process.

"It certainly will be interesting if it proceeds," said Mountain View City Manager Kevin Duggan. "That would be a very significant change. You kind of wonder how far that concept will go."

Mountain View-Los Altos high schools superintendent Rich Fischer said his jaw dropped when Negri told him about the lawsuit.

"I own properties in three counties, (but) I don't expect to vote in them. ... Basically you are supposed to vote where you live," Fischer said. "I feel like it is terribly unfortunate that it happened to Mountain View-Whisman. ... I would hope that every jurisdiction in the state would join them in fighting this."

Katz claimed the Mountain View-Whisman district is playing "dirty pool," adding that administrators ignored his petition until after the election, hoping no one else would jump in to support him.

School board trustee Gloria Higgins disagreed. She said district officials were so busy with the campaign that they didn't have a chance to discuss Katz's protest beforehand. School board members have since talked about the litigation behind closed doors but have not made any public comments about how they plan to fight the charges.

But even if the school board had asked elections offices to take Katz's concerns into consideration, Herrick said the county wouldn't have complied -- there simply was not enough time before the election.

Asked if it would have made a difference had Katz filed his petition in October, Herrick said "no."

"The thing is, the election has come and gone," Herrick said. "We followed the law." Anything else, she added, needs to be discussed in court.

Herrick said she sees this matter as "self-fixing," questioning why Katz just doesn't raise the rent on his tenants.

But Katz pointed out that it's a renter's market right now and landlords are lowering rents to hold on to their tenants during these hard economic times.

"I'm just asking that if you are going to do an election, do it the right way," Katz said. "No one has a stake unless they own property. Why are you letting someone vote who has no stake? If you are a tenant, you have no stake."

E-mail Julie O'Shea at joshea@mv-voice.com

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