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September 17, 2004

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Publication Date: Friday, September 17, 2004

School tax case poised for trial School tax case poised for trial (September 17, 2004)

Judge rejects district's request to toss lawsuit

By Julie O'Shea

The case challenging the legality of Mountain View-Whisman's $1.6-million parcel tax election took a surprising step forward last week when a judge ruled it has enough legal merit to go to trial.

The opinion has put lawyers here and around the state on edge. Besides being fiscally devastating to the 4,300-pupil school district, this lawsuit, if it wins, could potentially change state election laws and put hundreds of voter-approved taxes in jeopardy.

Aaron Katz, a Saratoga resident, claims he was discriminated against because he wasn't allowed to vote in the Measure J election in March even though he owns 10 condos within school district boundaries. He sued Mountain View-Whisman and the Santa Clara County Registrar of Voters, demanding that Measure J -- a tax based on the total square footage of an individual parcel of land -- be declared invalid.

The tax, intended to fund libraries and small class sizes and could keep a campus from closing this school year, was approved by 69 percent of voters. It will cost the average homeowner $75; Katz said his annual bill would be around $750.

The school district has repeatedly said it followed election laws and is calling Katz's claim "frivolous." In June, district officials asked a judge to toss the lawsuit and force Katz to reimburse their mounting legal bills, which cost $50,000 so far.

On Sept. 10, Santa Clara Superior Court Judge Kevin McKenney, dismissed the district's request to have the case thrown out, saying Katz has a right to prove he was disenfranchised. The next court hearing is scheduled for Nov. 2, when a trial date could be set.

Lisa Herrick, an attorney for the county registrar's office, thinks this is a case for the state Legislature, not Santa Clara County Superior Court.

"I think Judge McKenney knows that this is an important issue to both the school district and Mr. Katz," Herrick said, but "it shouldn't be limited to the Mountain View School District. ... It is so much bigger than this. It's something that California needs to resolve."

Katz maintained that only property owners -- regardless if they live in the city or not -- should be allowed to vote in such a tax election. State election code, as it reads now, says that one must be a resident in an affected jurisdiction in order to vote in a local election.

The lawsuit's main argument, McKenney wrote in his opinion, "certainly weighs in favor of the conclusion that a voting scheme that disenfranchises those individuals (like Katz) could be unconstitutional."

"Obviously there is nothing totally meritless about my invalidity action," Katz wrote in an e-mail to the Voice this week.

The news is a crippling blow to school district officials, who vow to fight on despite the cost.

"It's extremely unfortunate," said Mountain View-Whisman finance chief Rebecca Wright. "This will have major ramifications throughout the state. We certainly aren't the only school district with a parcel tax."

The California School Boards Association is keeping a close eye on these proceedings.

"It's a concern," said the association's attorney, John Bukey. McKenney's written opinion is "not necessarily a very big step," but, added Bukey, this "is an important case, and it does raise some very fundamental questions."

Although Katz suggested the tax funds be placed in a locked account until the case is resolved, he said this week he hasn't decided whether to make the request during the Nov. 2 hearing.

Wright said if Katz is successful in freezing Measure J funds, the district would have to make "immediate cuts to a lot of programs."

Asked where the district would get the funding to reimbursed taxpayers if Katz is ultimately successful, Wright said: "That's too far down in the future."

E-mail Julie O'Shea at [email protected]


Jan. 26: Aaron Katz files a petition with the Santa Clara County Superior Court challenging the validity of the Mountain View-Whisman School District's upcoming parcel tax election.

March 2: Measure J election. The tax wins with 69 percent of the vote.

March 19: Katz adds amendments to his original court petition.

April-June: The Mountain View-Whisman School District discusses the case. Trustees decide to ask the court to throw out the lawsuit.

June 29: Santa Clara County Superior Court Judge Kevin McKenney listens to the school district's objections during a hearing in San Jose.

Aug. 9: McKenney calls both sides back to his courtroom for more arguments in the case.

Sept. 10: McKenney overrules the school district's objections.

Nov. 2: Both parties will be back in court, where a trial date will likely be set.

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