Case Number: A129295 COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT, DIVISION 1

GEORGE J. BORIKAS, Trustee of the George J. Borikas 1999 Revocable Trust; EDWARD HIRSHBERG, Trustee of the Hirshberg Trust; SANTA CLARA INVESTORS II, a California General Partnership; and NELCO,

INC., Plaintiffs and Appellants,

vs.

THE ALAMEDA UNIFIED SCHOOL DISTRICT; all persons interested in the matter of the imposition of a qualified special tax for the benefit of the Alameda Unified School District from July 1, 2008, for a period of four

years, ending June 30, 2012, levied (A) on each taxable, residential parcel at the rate of $120 per year and (B) on each taxable commercial or industrial property at the rate of $0.15 per square foot per year (but commercial or

industrial property of 2,000 square feet or smaller paying $120 per year and commercial or industrial property larger than 2,000 square feet paying $0.15

per square foot per year with a maximum tax of $9,500 per year) with exceptions for: (1) owners of single family residential units in which they reside who will attain the age of 65 years during the assessment year, who

owns a beneficial interest in the parcel and who uses that parcel as his or her principal place of residence and (2) owners of single family residential units receiving supplemental security income for a disability, regardless of age,

and proceedings and matters related to the above, Defendant and Respondent.

APPELLANTS’ OPENING BRIEF

Appeal Of Final Judgment Dated June 30, 2010, From Superior Court of California, County of Alameda, Division 30

Trial Court Case Number: VG08405316 Honorable Kenneth Mark Burr, Judge

Leslie A. Baxter (SBN 148195) Umung D. Varma (SBN 239514) David J. Brillant (SBN 220895) 533 Clayton Street RANDICK O’DEA & TOOLIATOS San Francisco, CA 94117 5000 Hopyard Road, Suite 400 Telephone: (415) 508-8382 Pleasanton, CA 94588 Telephone: (925) 460-3700

Attorneys for Plaintiffs and Appellants

CERTIFICATE OF INTERESTED PARTIES Pursuant to California Rules of Court, Rule 8.208, Plaintiffs-Appellants

know of no interested entities or persons other than the parties themselves, and

the following:

Barton Bennett, John Paganelli, and Anne Pananelli Blamire have a

relevant ownership interest in Plaintiff-Appellant Santa Clara Investors II.

Jerilyn Hirshberg, Wilson Hirshberg, Nicholas Wiebe, Susan Wiebe,

Dennis Patheal and Joanne Patheal have a relevant ownership interest in

Plaintiff-Appellant Nelco Inc.

Dated: December 21, 2010

/s/ ___________________________

David J. Brillant Attorney for Plaintiffs-Appellants

i

TABLE OF CONTENTS I. INTRODUCTION..............................................................................1 II. STATEMENT OF APPEALABILITY ..............................................2 III. STANDARD OF REVIEW................................................................2 IV. STATEMENT OF THE CASE ..........................................................3

A. The Parties...............................................................................3 1. THE DISTRICT IMPOSES MEASURE H............................3 2. PLAINTIFFS AND APPELLANTS ARE MEASURE

H TAXPAYERS...............................................................5 B. This Reverse Validation Action ..............................................6

V. DISCUSSION.....................................................................................8 A. Summary of Argument ............................................................8 B. Argument...............................................................................11

1. MEASURE H MUST COMPLY WITH SECTION 50079 TO BE VALID ...............................................................12

2. UNDER SECTION 50079, THE LEGISLATURE HAS RESTRICTED SCHOOL DISTRICT AUTHORITY TO LEVY SPECIAL TAXES, TO SPECIAL TAXES THAT “APPLY UNIFORMLY” ..............................................................13

3. THE PLAIN MEANING OF UNIFORM IS WITHOUT VARIATION; NOT DIFFERENT......................................15

4. THE LEGISLATIVE HISTORY OF SECTION 50079 CONFIRMS THAT “UNIFORMLY” MEANS WITHOUT VARIATION .................................................................17 a) Davis Seeks a Solution to Proposition 62 .......19 b) The Legislature Grants School Districts

the Restricted Authority to Impose Special Taxes that “Apply Uniformly”........................20

c) A Few School Districts had in Place Non-Uniform Special Taxes Similar to Measure H, and They Were Scared of AB 1440 ..........................................................22

ii

d) School Districts Asked the Legislature to Permit an Exemption for Seniors, and the Legislature Obliged; but School Districts did Not Ask the Legislature to Allow Bifurcated Taxes ...............................................................24

5. THE PLAIN MEANING OF SECTION 50079 IS CONFIRMED BY NUMEROUS STATUTES WHICH ALSO AUTHORIZE SPECIAL TAXES THAT “APPLY UNIFORMLY” ..............................................................29 a) The Legislature has Authorized Various

Special Districts to Levy Special Taxes that “Apply Uniformly,” with Different Exceptions for Each Special District .................................29

b) Exceptions to “Apply Uniformly” Must be Limited to Express Exceptions Found in Section 50079..................................................33

6. MEASURE H DOES NOT “APPLY UNIFORMLY” ...........34 7. MEASURE H EXEMPTIONS DO NOT CONFORM TO

THE EXEMPTIONS AUTHORIZED BY SECTION 50079 ...35 8. SEVERABILITY CANNOT SALVAGE MEASURE H.........37 9. THE SUPERIOR COURT INCORRECTLY TREATED

THE PHRASE “APPLY UNIFORMLY” AS A MERE RESTATEMENT OF THE CONSTITUTIONAL REQUIREMENT THAT LAWS HAVE “UNIFORM OPERATION” ...............................................................38 a) The Decision Below Renders the Words

“Apply Uniformly” in Section 50079, Superfluous .....................................................40

b) The Decision Below Treats this Case as a Constitutional Classification Challenge Instead of a Statutory Reverse Validation Action..............................................................41

c) The Decision Below Improperly Proffers Alternative Policies to Support Measure H, in Lieu of the Legislative Policies Codified in Section 50079..............................................46

VI. CONCLUSION ................................................................................51

iii

TABLE OF AUTHORITIES

Cases Birkenfeld v. City of Berkeley

(1976) 17 Cal.3d 129 ........................................................................38, 39 Burden v. Snowden

(1992) 2 Cal.4th 556 .........................................................................passim California Building Industry Association v. Governing Board of the Newhall School District of Los Angeles County

(1988) 206 Cal.App.3d 212 .........................................................12, 13, 18 California Manu. Ass’n v. Public Util. Comm’n

(1979) 14 Cal.3d 836 ...............................................................................23 California Teachers Ass’n v. Governing Board of Rialto Unified School Dist.

(1997) 14 Cal.4th 627............................................................15, 26, 46, 49 Collins v. City & County of San Francisco

(1952) 112 Cal.App.2d 719 ..................................................29, 33, 35, 49 Crocker National Bank v. City and County of San Francisco

(1989) 49 Cal.3d 881 .........................................................................44, 45 Estate of Hoertkorn

(1979) 88 Cal.App.3d 461 ...........................................................29, 30, 42 Estate of MacDonald

(1990) 51 Cal.3d 262 ...................................................................31, 40, 41 Estate of Timmons

(1985) 171 Cal.App.3d 303 .....................................................................42 Fox Bakersfield Theatre Corp. v. City of Bakersfield

(1950) 36 Cal.2d 136 ..............................................................................47 Gonzales & Co. v. Dept. of Alcohol Beverage Control

(1984) 151 Cal.App.3d 172 ....................................................................41 Heckendorn v. City of San Marino

(1986) 42 Cal.3d 481 ......................................................33, 43, 47, 49, 51 Hennigan v. United Pacific Ins. Co.

(1975) 53 Cal.App.3d 1 ...............................................................29, 32, 49 In re Blaney

(1947) 30 Cal.2d 643 ........................................................................37, 38

iv

In re Todd’s Estate (1941) 17 Cal.2d 270 ...............................................................................18

Jenkins v. County of Los Angeles (1999) 74 Cal.App.4th 524 ..........................................................17, 37, 42

Kaatz v. City of Seaside (2006) 143 Cal.App.4th 13 ......................................................................10

Lennane v. Franchise Tax Board (1994) 9 Cal.4th 263 ..........................................................................15, 17

Los Angeles County Transportation Commission v. George U. Richmond (1982) 21 Cal.3d 197 ...............................................................................12

Los Angeles SMSA Ltd. Partnership v. State Bd. of Equalization (1992) 11 Cal.App.4th 768 ..........................................................39, 43, 44

Meaney v. Sacramento Housing and Redevelopment Agency (1993) 13 Cal.App.4th 566 ......................................................................10

Moyer v. Workmen’s Comp. App. Bd. (1973) 10 Cal.3d 222 ...............................................................................41

Neilson v. City of California City (2005) 133 Cal.App.4th 1296 ..................................................................13

Northrop Grumman Corp. v. County of Los Angeles (2005) 134 Cal.App.4th 424 ....................................................................45

People v. Pacific Guano Co. (1942) 55 Cal.App.2d 845 .......................................................................18

People’s Advocate, Inc. v. Super. Ct. (1986) 181 Cal.App.3d 316 ....................................................................38

Planning and Conservation League v. Dept. of Water Resources (2000) 83 Cal.App.4th 892 ..................................................................3, 10

Regus v. City of Baldwin Park (1977) 70 Cal.App.3d 968 .................................................................10, 44

Rojas v. Super. Ct. (2004) 33 Cal.4th 407 ..................................................................33, 34, 36

San Diego Trust & Savings Bank v. County of San Diego (1940) 16 Cal.2d 142 ...............................................................................45

Simms v. County of Los Angeles (1950) 35 Cal.2d 303 .........................................................................45, 46

Stockton Civic Theater v. Board of Super. of San Joaquin County (1967) 66 Cal.2d 13 .................................................................................41

v

Trabue Pittman Corp., Ltd. v. City of Los Angeles (1946) 29 Cal.2d 385 ..............................................................................45

Wasatch Property Management v. Degrate (2005) 35 Cal.4th 1111 ............................................................................15

Wildlife Alive v. Chickering (1976) 18 Cal.3d 190 .........................................................................34, 50

Statutes California Code of Civil Procedure

§ 657 ........................................................................................................32 § 860 ....................................................................................................6, 10 § 863 ..............................................................................................7, 10, 44 § 904 ..........................................................................................................2 § 914 ........................................................................................................32 § 1860 ......................................................................................................23

California Constitution Article IV § 16(a)..........................................................................39-44, 46 Article XIIIA § 4 .........................................................................12, 14, 19 Article XIIIC § 1(d) ..........................................................................13, 21

California Government Code § 50075 ........................................................................................12, 13, 18 § 50076 ........................................................................................12, 13, 18 § 50077 ..........................................................................2, 6, 10, 12, 13, 18 § 50079 .............................................................................................passim § 50079.1 .............................................................30, 31, 32, 35, 46, 49, 50 § 53717 ............................................................................30, 31, 32, 46, 50 § 53717.2 ...................................................................30, 31, 32, 35, 49, 50 § 53720 ..............................................................................................12, 13 § 53727 ....................................................................................................12 § 53730 ........................................................................................30, 46, 50 § 53978 ....................................................................................................51 § 66801 ....................................................................................................41

California Evidence Code § 459 ........................................................................................................17 § 1122 ......................................................................................................33

California Harbors & Navigation Code § 6092.5 ...................................................................................................31 § 6364 ......................................................................................................31

vi

California Health & Safety Code § 9081 ......................................................................................................31 § 33000 ....................................................................................................44 § 33030 ....................................................................................................10 § 33445 ....................................................................................................10

California Military & Veterans Code §1192.5 ....................................................................................................31

California Rules of Court Rule 8.128..................................................................................................2 Rule 8.204..................................................................................................2

California Public Resources Code § 5566 ......................................................................................................30 § 5789.1 ...................................................................................................31 § 9513 ......................................................................................................31 § 13161.5 .................................................................................................31 § 35172 ....................................................................................................31 § 12891.5 .................................................................................................31

California Public Utilities Code § 16641.5 .................................................................................................31 § 22909 ....................................................................................................31 § 25892.1 .................................................................................................31

California Water Code § 60-13.2 ............................................................................................36, 50 § 62-13 .....................................................................................................30 § 22078.5 .................................................................................................31 § 31653 ....................................................................................................31 § 72090.5 .................................................................................................31

Courts of Appeal, First Appellate District Local Rule 8...............................................................................................2

Other Authorities Black’s Law Dictionary (6th Ed., 1990)................................................16, 34 Merriam Webster’s Collegiate Dictionary (10th Ed., 1993) .......................16 The Oxford English Dictionary (The Compact Edition, 1971) .............16, 34

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I. INTRODUCTION This case calls on the Court of Appeal to determine whether or not

Measure H is valid under California Government Code section 50079. Section

50079 authorizes school districts to imposes special taxes that “apply

uniformly to all taxpayers or all real property within the school district.”

Measure H is a section 50079 special tax, imposed by Defendant-Respondent,

the Alameda Unified School District. If Measure H does not “apply

uniformly,” it is invalid. This reverse validation action is brought by

Plaintiffs-Appellants, who are each Measure H taxpayers. We are unaware of

any cases construing section 50079 or the phrase “apply uniformly,” but it is

not difficult to determine the Legislature’s intent.

The plain meaning of “uniform” is: unvarying, the same, without

difference from place to place. The 50079 Legislative History confirms that

this was the intended meaning. Section 50079 was passed with the support of

school districts that levied uniform flat-fee parcel taxes that were the same for

small homes and large commercial structures. In contrast, 50079 was not

supported by the one school district that levied a non-uniform bifurcated tax,

with different taxes on residential and nonresidential property.

The commonsense definition of “uniform” is also confirmed by various

other special taxing statutes that, like 50079, also authorize only special taxes

that “apply uniformly,” but unlike 50079, make exceptions for lower taxes on

unimproved property and taxes based on the benefit to the property. Here,

section 50079 has only two exceptions to uniformity, one for seniors over 65,

and one for recipients of Supplementary Security Income. Under the familiar

maxim expressio unis est exclusio alterius, no other exceptions may be

implied.

2

Measure H does not “apply uniformly.” Measure H is a bifurcated tax.

For residential property, Measure H levies $120 per parcel; for commercial

and industrial property, Measure H levies $0.15 per square foot. There are

additional graduated tax rates for commercial/industrial property based on size.

Because there are no exceptions in section 50079 that would permit a

bifurcated and graduated tax, Measure H is invalid under section 50079.

The flaws in Measure H are so fundamental and so pervasive that

severance cannot salvage it. Finally, although the Superior Court’s judgment

is subject to de novo review, this brief examines the decision below to

demonstrate the error in upholding Measure H.1

II. STATEMENT OF APPEALABILITY

This appeal is from final judgment in the underlying action. CT 2012,

2017. It is therefore proper. C.C.P. §904.1(a)(1); see also Cal.Govt.Code

§50077.5(b).

III. STANDARD OF REVIEW

The decision below is subject to de novo review. An appellate court

independently determines the proper interpretation of a statute. Burden v.

Snowden (1992) 2 Cal.4th 556, 562. The matter at hand hinges on the Court’s

1 The parties to this appeal stipulated to proceed by Superior Court file

instead of clerk’s transcript pursuant to California Rules of Court, Rule 8.128 and First Appellate District Local Rule 8. The Superior Court mailed Plaintiffs-Appellants a copy of the “Clerk’s Transcript, Chronological Index.” See Rule 8.128(b)(3). Citation to documents referenced in the Clerk’s Transcript (hereinafter “CT”) are as follows: “CT [Starting Index Number]:[page of document].” See Rule 8.204(a)(1)(C). Citations to exhibits are “CT [Starting Index Number], Exh. [exhibit]:[page of exhibit].” All emphasis is added; internal citations and quotation marks have been omitted; and all code citations are to the California Government Code or to the Code of Civil Procedure (“C.C.P.”), unless otherwise specified.

3

interpretation of the phrase “apply uniformly” as it appears in Government

Code section 50079(b)(1):

“qualified special taxes” means special taxes that apply uniformly to all taxpayers or all real property within the school district.

We are not aware of any cases construing either 50079 or the phrase “apply

uniformly,” so this is a matter of first impression. On this question of law, a

reviewing court is “not bound by evidence on the question presented below or

by the lower court’s interpretation.” Burden, 2 Cal.4th at 562. In short, the

Court here is “presented with a question of law requiring de novo review.”

Planning and Conservation League v. Dept. of Water Resources (2000) 83

Cal.App.4th 892, 906.

IV. STATEMENT OF THE CASE

A. The Parties

Defendant and Respondent, the Alameda Unified School District,

passed Measure H, imposing a special tax upon the district. CT 123, Exh. B.

Plaintiffs and Appellants are Measure H taxpayers. CT 123:3-5.

1. THE DISTRICT IMPOSES MEASURE H On March 7, 2008, Defendant and Respondent, the Alameda Unified

School District (hereinafter the “District”) resolved to place before voters a

measure to levy a special tax. CT 123, Exh. A:2. To that end, the District

ordered a “Special Parcel Tax Election.” CT 123, Exh. A:1. The March

resolution states that the District sought these “additional sources of local

revenue in order to continue meeting students’ basic educational needs by

keeping schools open, maintaining small class sizes, retaining qualified

teachers and staff, and maintaining elective courses.” CT 123, Exh. A:1.

The March resolution recited authority for the measure, stating,

“Section 4 of Article XIIIA of the California Constitution and Sections 50075,

4

50075.1, 50075.3, 50075.5, 50076, 50077, 50079, and 53720 et seq. of the

California Government Code authorize school districts to levy a special tax to

raise funds for the purpose of conducting its business upon the approval of

two-thirds of the votes cast by voters voting upon such a special tax proposal.”

CT 123, Exh. A:2.

The March resolution gave the tax a bifurcated structure: “The special

tax shall be levied as follows:”

(A) On each taxable, residential parcel at the rate of $120 per year, and

(B) on each taxable, commercial or industrial property at the rate of $0.15 per square foot per year (but commercial or industrial property of 2,000 square feet or smaller paying $120 per year and commercial and industrial property larger than 2,000 square feet paying a maximum of $9,500 per year).

CT 123, Exh. A:2 (Section 2.(b)(i), reformatted).

The tax is collected each year for four years, beginning July 1, 2008,

and ending June 30, 2012. CT 123, Exh. A:2. The measure also contains a

severability clause. CT 123, Exh. A:3.

The measure exempts real property otherwise exempt from taxation

under the Constitution and laws of California. CT 123, Exh. A:3. Exemption

is also permitted to “owners of single family residential units in which they

reside who will attain the age of 65 years during the assessment year, who

owns a beneficial interest in the parcel and who uses that parcel as his or her

principal place of residence.” Id. And exemption is permitted to “owners of

single family residential units receiving Supplemental Security Income for

disability, regardless of age.” Id.

5

Measure H was placed before voters on June 3, 2008, and the voters’

approval was certified on June 27, 2008. CT 123, Exh. B:1. Plaintiffs and

Appellants filed a timely Complaint on August 21, 2008. CT 1.

2. PLAINTIFFS AND APPELLANTS ARE MEASURE H TAXPAYERS

Plaintiffs and Appellants are Measure H taxpayers.

George J. Borikas is the trustee of the George J. Borikas 1999

Revocable Trust, which owns two parcels of real property subject to Measure

H: (1) 2125 Santa Clara Avenue, Alameda, California 94501, bearing parcel

number 71-234-18; and (2) 2444 Central Avenue, Alameda California 94501,

bearing parcel number 70-186-2. CT 243:2-3 ¶2. Both parcels were assessed

$120 under Measure H for fiscal year 2008-2009. CT 243:3 ¶3; Exhs. D, E.

Mr. Borikas attained the age of 65 prior to the passage of Measure H. CT 243,

Exh. A:1.

Edward Hirshberg is the trustee of the Hirshberg Trust, which owns

four parcels of real property subject to Measure H: (1) 2245 Santa Clara

Avenue, Alameda, California 94501, bearing parcel number 71-219-4; (2)

1516 Oak Street, Alameda, California 94501, bearing parcel number 71-202-

31-1; (3) 1514 Oak Street, Alameda, California 94501, bearing parcel number

71-202-30; and (4) 2322 Times Way, Alameda, California 94501, bearing

parcel number 71-202-12. CT 205:2-3 ¶3. Each parcel was assessed a

different amount under Measure H for fiscal year 2008-2009: (1) $1,557.44,

CT 205:3 ¶7; Exh. I; (2) $1,687.50, CT 205:3 ¶7; Exh. J; (3) $896.24, CT

205:3 ¶7; Exh. K; and (4) $1,406.84, CT 205:3 ¶7; Exh. L, respectively.

Santa Clara Investors II owns 2504 Santa Clara Avenue, Alameda,

California 94501, bearing parcel number 70-170-2, which was assessed

$945.00 under Measure H for fiscal year 2008-2009. CT 205:4 ¶8; Exh. M.

6

Nelco, Inc. owns a fifty-percent tenancy in common interest in 1151

Harbor Bay Parkway, bearing parcel number 74-1361-1, which was assessed

$9,500.00 under Measure H for fiscal year 2008-2009. CT 205:4 ¶9; Exh. N.

B. This Reverse Validation Action

Pursuant to C.C.P. section 860 et seq. and Government Code sections

50077.5 and 50079, Appellants filed a reverse validation action in Alameda

Superior Court on August 21, 2008, presenting a timely challenge to Measure

H. CT 1.

The Superior Court issued an “Order for Publication of Summons” on

August 27, 2008. CT 50. The order provided that “summons in this action on

all interested person(s) or parties shall be accomplished by publication in the

Alameda Times-Star,” and that publication “shall be made pursuant to

California Government Code §6063.” Summons was published on September

3, September 10 and September 17, 2008. CT 83-5. Proof of Service of

Summons as to the District was filed on September 12, 2008. CT 81.

The operative First Amended Complaint was filed on November 10,

2008. CT 123.

On December 10, 2008, the District filed a motion to strike portions of

the First Amended Complaint, and on December 15, 2008, a demurer. CT 150,

163. Both were overruled on February 10, 2009. CT 485, 491.

The District filed its Answer on March 2, 2009. CT 502.

Appellants filed a Motion for Summary Judgment on December 23,

2008. CT 176, 180. The District opposed summary judgment on March 3,

2009. CT 508. The District filed a Request of Judicial Notice in support of its

opposition to summary judgment. CT 691. Exhibit A to the District’s request

for judicial notice is the Legislative History of section 50079. CT 691, Exh. A.

7

The Superior Court granted judicial notice. CT 680:3. Appellants filed their

Reply in support of summary judgment on March 12, 2009. CT 646. The

Superior Court denied summary judgment by Order dated March 17, 2009. CT

680.

By Case Management Order dated March 17, 2009, the Superior Court

consolidated this case, Borikas v. Alameda Unified School District, VG08-

405316, with another case, Beery v. Alameda Unified School District, RG08-

405984 (“Beery”). CT 688. The Order made this case the lead case. The

plaintiff in Beery, Mr. John C. Beery, had also filed a reverse validation action

against Measure H under C.C.P. section 863, and after consolidation, he

moved for Summary Judgment or Summary Adjudication in the Alternative.

CT 1029, 1032 (April 8, 2009).2 The District Opposed. CT 1221 (June 11,

2009). Mr. Beery filed a Reply in support of summary judgment. CT 1296

(June 19, 2009). By Order dated July 9, 2009, summary judgment was denied.

CT 1634.

On March 18, 2010, all parties stipulated that “no trial is necessary for

the purposes of presenting testimony evidence.” CT 1699:2; 1703. The

parties agreed that “facts, documentary evidence and legal arguments have

been presented to the Court in connection with summary judgment motions.”

Id. By Order dated April 1, 2010, the stipulation was granted. CT 1707. On

April 1, 2010, the parties jointly submitted as Trial Briefing their Previously

Submitted Briefing; the parties resubmitted their briefs on the two motions for

summary judgment. CT 1820.

Appellants filed their trial brief on April 1, 2010. CT 1725. The

District filed its response on April 15, 2010. CT 1767.

2 Appellants sought to join Mr. Beery’s motion for summary judgment.

CT 1097. The motion for joinder was denied. CT 1640, 1634.

8

The Superior Court issued a Statement of Decision on May 28, 2010.

CT 1985. The decision rests on the holding that,

Plaintiffs have not shown that the special tax imposed by Measure H violates the uniformity requirement of Government Code section 50079. “Uniformity” is not defined in section 50079, but the concept of uniformity has been defined by case law dealing with the question of uniformity in other tax cases. … Based on case law interpreting the term “uniform”, the court concludes the term “special taxes that apply uniformly to all taxpayers or all real property owners within the school district” means simply that the tax applies uniformly to all persons or properties in the same classification. Los Angeles SMSA Ltd. Partnership v. State Bd. of Equalization (1992) 11 Cal.App.4th 768, 780. Measure H meets this standard because it applies uniformly to all persons or properties within the same classification.

CT 1985:7. Judgment following the Statement of Decision was entered on

June 30, 2010. CT 2012. Notice of Entry of Judgment is dated July 20, 2010.

CT 2022. Appellants filed a timely Notice of Appeal on July 29, 2010. CT

2028.3

V. DISCUSSION

A. Summary of Argument

The California Legislature promulgated Government Code section

50079 to authorize school districts to impose “special taxes that apply

uniformly to all taxpayers or all real property within the school district.” The

special tax imposed by Measure H pursuant to 50079 must “apply uniformly,”

or it is invalid. “Uniform” is commonly understood to mean unvarying,

9

without difference from place to place. The legislative history of 50079

confirms that the Legislature intended this meaning. Section 50079 was

written at the request of the Davis Joint Unified School District (hereinafter

“Davis”). Davis’ tax was an annual flat fee of $45 per parcel, which was the

typical structure for school district special taxes at the time. On the other

hand, the Albany Unified School District (hereinafter “Albany”) imposed a

bifurcated tax, with a different tax for residential property and a different tax

for nonresidential property. Albany was counseled that its tax would not

“apply uniformly” under section 50079, so Albany did not support the bill.

The Legislature has employed the same restrictive phrase, “apply

uniformly,” in several other special tax statutes. In the same way 50079 limits

school districts to special taxes that “apply uniformly,” these other statutes are

also limited to uniform taxes, but these statutes expressly allow certain

exceptions to uniformity, including, lower taxes on unimproved property, as

well as taxes based on the benefit to the property. For school districts, section

50079 contains only two exceptions to uniformity, one allowing an exemption

for seniors over the age of 65, and one allowing an exemption for recipients of

Supplemental Security Income (“SSI”). Under the well-known principle

expressio unius est exclusio alterius, no other exceptions to section 50079’s

“apply uniformly” restriction may be implied.

The District passed Measure H pursuant to section 50079, but Measure

H does not “apply uniformly.” Measure H imposes a different tax for

residential properties and a different tax for commercial and industrial

properties. Even as to commercial/industrial properties, Measure H applies a

different tax rate for small parcels, a different tax rate for medium-size parcels,

and a different tax rate for very large parcels. But section 50079 does not

3 The plaintiff from the consolidated case, Beery, Mr. John C. Beery,

has not appealed. See CT 2041. Appellants proceed without him.

10

contain an exception allowing for a bifurcated tax on residential and

nonresidential property, nor does it contain an exception allowing for a

graduated tax rate for different sizes of property. Finally, Measure H exempts

seniors and SSI recipients, but these exemptions are also different for

residential and nonresidential property. Differentiation pervades Measure H,

and severance cannot save it.

Appellants brought this reverse validation action pursuant to C.C.P.

section 863 because Measure H does not conform to the Legislature’s grant of

authority found in section 50079. Measure H must be invalidated. See, e.g.,

Regus v. City of Baldwin Park (1977) 70 Cal.App.3d 968, 977-8 (invalid

ordinance did not meet the requirements of Health & Safety Code §33030 et

seq.); see also Meaney v. Sacramento Housing and Redevelopment Agency

(1993) 13 Cal.App.4th 566, 581 (validity of agreement with respect to the

requirements of Health & Safety Code §33445); see generally Planning and

Conservation League, 83 Cal.App.4th at 907 (validity of environmental impact

report under the California Environmental Quality Act). 4

Even though the Superior Court’s decision is subject to de novo review,

it is instructive to see how the court erred in upholding Measure H. The

Superior Court treated the phrase “apply uniformly” in section 50079 as a

mere restatement of the Constitutional requirement that all laws have “uniform

4 Validation proceedings are governed by C.C.P. section 860 et seq.

Section 860 states that a “public agency may upon the existence of any matter which under any other law is authorized to be determined pursuant to this chapter, and for 60 days thereafter, bring an action in the superior court of the county in which the principal office of the public agency is located to determine the validity of such matter. The action shall be in the nature of a proceeding in rem.” Measure H is subject to a validation proceeding. See Cal.Govt.Code §§ 50077.5, 50079(a). A validation proceeding brought by an interested person under C.C.P. section 863 is sometimes referred to as a reverse validation action. Kaatz v. City of Seaside (2006) 143 Cal.App.4th 13, 30 n.16.

11

operation.” That rendered the phrase “apply uniformly” superfluous. As a

result, the court analyzed this case as a constitutional classification challenge,

instead of a statutory reverse validation action. Undertaking this incorrect

analysis, the court endorsed the District’s choice to impose a non-uniform

bifurcated, graduated tax. But that was not a choice the District was free to

make. When section 50079 was drafted, the Legislature chose special taxes

that “apply uniformly” on behalf of all school districts. Thus in upholding

Measure H, the Superior Court ignored the policies codified by the Legislature

in section 50079. That result cannot stand.

B. Argument

This reverse validation action rests on a straightforward set of premises:

(1) section 50079 authorizes school districts to levy special taxes, so Measure

H must comply with section 50079 to be valid; (2) under section 50079, the

Legislature has restricted school district taxing authority to “special taxes that

apply uniformly,” with exceptions for seniors and SSI recipients; (3)

“uniformly” is plainly understood to mean unvarying, not different; (4) the

Legislative History of section 50079 confirms that this was the meaning the

Legislature intended; (5) the Legislature has used the same restrictive phrase,

“apply uniformly,” in the same way, in various other special taxing statutes

that each have their own set of exceptions; and finally, (6) because Measure H

does not “apply uniformly” as that phrase is used in section 50079, Measure H

is not valid.

In addition, (7) even the exemptions found in Measure H fail to

conform to the exceptions permitted by section 50079; (8) severance cannot

salvage Measure H; and (9) the decision below illustrates the error in

upholding Measure H.

12

1. MEASURE H MUST COMPLY WITH SECTION 50079 TO BE VALID

Measure H must comply with section 50079 to be valid. School

districts may levy special taxes only if the Legislature has first promulgated

appropriate enabling legislation. California Building Industry Association v.

Governing Board of the Newhall School District of Los Angeles County (1988)

206 Cal.App.3d 212, 233 (hereinafter “Newhall”). The authority for school

districts to impose special taxes is found in section 50079. Newhall describes

the history behind section 50079. In 1978, California voters approved

Proposition 13, which added Article XIIIA section 4 to our Constitution. 206

Cal.App.3d at 219. Article XIIIA section 4 allows special districts to impose

special taxes, but the Article is not self-executing. The legislature must enact

enabling legislation before school districts may impose a special tax. Newhall,

206 Cal.App.3d at 233, 227-8 (“Thus the history of this state, with respect to

taxation by local governing bodies, is that each such tax must be authorized by

a specific general law.”). So the Legislature promulgated sections 50075 to

50077, which, as amended in 1980, enabled districts to levy special taxes

under Article XIIIA section 4. Newhall, 206 Cal.App.3d at 223, 231 (citing

Los Angeles County Transportation Commission v. George U. Richmond

(1982) 21 Cal.3d 197, 207). Then in 1986, California voters passed

Proposition 62, which withdrew the authority of school districts to levy special

taxes. Newhall, 206 Cal.App.3d at 223-4.5

5 Proposition 62 added sections 53720 et seq. to the Government Code.

Newhall, 206 Cal.App.3d at 224. Section 53727 states that neither Article XIIIA of the California Constitution, nor Article 3.5 of the Government Code (i.e., sections 50075 to 50077) “shall be construed to authorize any local government or district to impose any general or special tax which it is not otherwise authorized to impose.”

13

After Proposition 62, in 1987, the Legislature again authorized school

districts to impose special taxes by adding section 50079 to the Government

Code. Newhall, 206 Cal.App.3d at 232. Under 50079, school districts are

restricted to imposing “special taxes that apply uniformly.” See Newhall, 206

Cal.App.3d at 225 (section 50079 “specifically authorized school districts to

impose ‘qualified special taxes,’ but defined that term so as to require any such

imposition to be made in a uniform manner.”) (emphasis in original). There

was only one exception to uniformity. Section 50079 allowed school districts

to exempt taxpayers over 65. Then in 2006, section 50079 was amended to

add a second exception. Now school districts may also exempt SSI recipients

from the special taxes.6 MJN:14. In 2008, the District passed Measure H

explicitly under the authority of section 50079, Article XIIIA section 4,

sections 50075 to 50077, and sections 53720 et seq. of the Government Code.

CT 123, Exh. A:2. Thus, Measure H must comply with section 50079 to be

valid.

2. UNDER SECTION 50079, THE LEGISLATURE HAS RESTRICTED SCHOOL DISTRICT AUTHORITY TO LEVY SPECIAL TAXES, TO SPECIAL TAXES THAT “APPLY UNIFORMLY”

There are many kinds of special taxes, but under section 50079, the

Legislature has only granted school districts the authority to impose “special

taxes that apply uniformly.” Newhall, 206 Cal.App.3d at 232. Article XIIIC

section 1(d) of the California Constitution defines a special tax as “any tax

imposed for specific purposes.” See generally Neilson v. City of California

City (2005) 133 Cal.App.4th 1296, 1309 (In 1996, Proposition 218 added

Article XIIIC section 1 to our Constitution). This is a very broad definition,

but school district authority is more restricted.

6 Appellants submit the Legislative History of Assembly Bill 385

(2006), amending section 50079, as Exhibit A to the accompanying Motion for

14

The first restriction on the special taxes school districts may impose is

found in Article XIIIA section 4 of the California constitution, which forbids

school districts from levying special taxes that are “ad valorem taxes on real

property or a transaction tax or sales tax on the sale of real property.” Section

50079 acknowledges the restrictions set forth in Article XIIIA section 4, and

adds two more restrictions. Section 50079 reads in full:

(a) Subject to Section 4 of Article XIII A of the California Constitution, any school district may impose qualified special taxes within the district pursuant to the procedures established in Article 3.5 (commencing with Section 50075) and any other applicable procedures provided by law.

(b)(1) As used in this section, “qualified special taxes” means special taxes that apply uniformly to all taxpayers or all real property within the school district, except that “qualified special taxes” may include taxes that provide for an exemption from those taxes for taxpayers 65 years of age or older or for persons receiving Supplemental Security Income for a disability, regardless of age.

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

Thus, the plain text of section 50079(b) further restricts the special taxes

school districts are permitted to impose in two ways: (1) the special taxes must

apply uniformly to all taxpayers and all real property, and (2) the special taxes

cannot include special taxes imposed on a particular class of property or

taxpayers. Thus under section 50079, Measure H must “apply uniformly,” or

it is invalid.

Judicial Notice, cited herein as “MJN:[Exhibit A page].”

15

3. THE PLAIN MEANING OF UNIFORM IS WITHOUT VARIATION; NOT DIFFERENT

The plain meaning of “special taxes that apply uniformly” is, special

taxes that are the same, with no difference, diversity or variation. “Uniform”

is not a hard word to understand. The rules of statutory construction are well

settled. Burden, 2 Cal.4th at 562. The objective “is to ascertain and effectuate

legislative intent.” Id. The first step is to look at “the language of the statute,

giving effect to its ‘plain meaning.’” Id. In this case, the actual words in the

statute comprise a single, critical phrase: “‘qualified special taxes’ means

special taxes that apply uniformly to all taxpayers or all real property within

the school district.” See generally California Teachers Ass’n v. Governing

Board of Rialto Unified School Dist. (1997) 14 Cal.4th 627, 633 (hereinafter

“Rialto”). To determine the Legislature’s intent, a Court scrutinizes the actual

words of the statute, giving them a commonsense meaning. Rialto, 14 Cal.4th

at 633; see also Lennane v. Franchise Tax Board (1994) 9 Cal.4th 263, 268.

We are not aware of any cases construing section 50079 or the words “apply

uniformly,” but as our Supreme Court has instructed, when “attempting to

ascertain the ordinary, usual meaning of a word, courts appropriately refer to

the dictionary definition of that word.” Wasatch Property Management v.

Degrate (2005) 35 Cal.4th 1111, 1122 (citing the Oxford English Dictionary).

The key word here is “uniform.” Uniform is defined as “[o]f one form,

character, or kind; having, maintaining, occurring in or under, the same form

always; that is or remains the same in different places at different times, or

under varying circumstances; exhibiting no difference, diversity, or variation.”

16

The Oxford English Dictionary (The Compact Edition, 1971).7 Measure H is

not uniform. It is varied, imposing $120 per residential parcel, and $0.15 per

square foot for commercial or industrial property, with a minimum of $120 on

commercial/industrial properties smaller than 2,000 square feet; and a

maximum of $9,500 on very large commercial/industrial properties. See CT

123, Exh. A:2 (Section 2., (b)(i)).

Nor is Measure H “uniform” as that word is defined by Black’s Law

Dictionary: “Conforming to one rule, mode, pattern, or unvarying standard; not

different at different times or places; applicable to all places or divisions of a

country. Equable; applying alike to all within a class; sameness.” Black’s

Law Dictionary (6th Ed., 1990). In other words, to apply uniformly means

“not different at different places,” but the tax imposed by Measure H is

different at different places. To apply uniformly means “sameness,” but the

tax imposed by Measure H is not the same across all taxpayers or all real

property throughout the District. In defining “uniform,” Black’s addresses

taxation: “The burdens of taxation, to be uniform, must have the essential of

equality, and must bear alike upon all the property within the limits of the unit

wherein it is lawful to levy taxes for a purpose, whether that unit be the state,

county, or a municipality. And requirement is met when tax is equal on all

persons belonging to described class on which tax is imposed.” Id.8 But

Measure H “bears” differently on residential and commercial/industrial

7 The dictionary definitions of “uniform” are attached as Exhibits B, C,

and D to the accompanying Motion for Judicial Notice. Uniform has also been defined as “having always the same form, manner, or degree: not varying or variable;” and “of the same form with others: conforming to one rule or mode.” Merriam Webster’s Collegiate Dictionary (10th Ed., 1993).

8 Black’s goes on, “With reference to locality, a tax is ‘uniform’ when it operates with equal force and effect in every place where the subject of it is found, and with reference to classification, it is uniform when it operates without distinction or discrimination upon all persons composing the described class.” Id.

17

property. Nor is Measure H “equal on all persons” within the District. Thus

Measure H does not apply uniformly.

There is no ambiguity in the meaning of the key phrase, for the

definitions of uniform are themselves uniform. The Legislature must be

presumed to have “meant what it said,” and “the plain meaning of the language

governs.” Lennane, 9 Cal.4th at 268. Courts cannot “interpret away clear

language in favor of an ambiguity that does not exist.” Id. Plainly understood,

the “apply uniformly” restriction in section 50079 cannot be read to grant

school districts the authority to impose a varied special tax like the bifurcated,

graduated special tax found in Measure H.

4. THE LEGISLATIVE HISTORY OF SECTION 50079 CONFIRMS THAT “UNIFORMLY” MEANS WITHOUT VARIATION

“Uniform” plainly means unvarying – no difference from place to place

– and the legislative history of Assembly Bill 1440 only reinforces the

conclusion that the Legislature intended this commonsense definition when it

enacted section 50079. See Jenkins v. County of Los Angeles (1999) 74

Cal.App.4th 524, 530 (“we may consider legislative history where it buttresses

our interpretation of the plain meaning of a statute”). Section 50079 was

enacted by the Legislature as Assembly Bill 1440. See CT 691, Exh. A

(Legislative History of section 50079, hereinafter “LH:[page]”).9 The history

9 The 1987 Legislative History of California Government Code section

50079 was introduced at various points in this litigation. See, e.g., CT 691; 1311. All citations herein are to Exhibit A to the “Request for Judicial Notice in support of Defendant’s Opposition to Plaintiffs’ Motion for Summary Judgment.” CT 691, Exh. A. The Superior Court granted judicial notice of this legislative history, CT 680:3, and this Court shall likewise take judicial notice of it. Evidence Code §459(a) (“A reviewing court shall take judicial notice of [] each matter properly noticed by the trial court”). Individual pages of the Legislative History are numbered at the bottom right-hand corner, starting with “Page 1 of 330,” and are cited herein as “LH:[page].” As noted

18

of school district special taxes prior to 50079 is well documented. See

Newhall, 206 Cal.App.3d at 222-5. Before Proposition 62, school districts

imposed special taxes pursuant to sections 50075 to 50077. Newhall, 206

Cal.App.3d at 231. But voters were not happy with these statutes. Newhall,

206 Cal.App.3d at 223. Proposition 62 withdrew the authority of school

districts to impose special taxes under sections 50075 to 50077. Id. In the

wake of Proposition 62, the Legislature passed section 50079, which again

authorized school districts to impose special taxes, but this time, the

Legislature restricted that authority to special taxes that “apply uniformly.”

Compare §§ 50075 to 50077 with §50079. The withdrawal of taxing authority

under sections 50075 to 50077, and the new “apply uniformly” restriction

found in section 50079, make it “quite obvious that the legislature intended to

change the law.” In re Todd’s Estate (1941) 17 Cal.2d 270, 273; People v.

Pacific Guano Co. (1942) 55 Cal.App.2d 845, 849 (new proviso deemed

“intended to make a change in the law”).

As this brief will explain, when Proposition 62 was approved, a few

school districts already levied special taxes. These special taxes were the same

for small homes and large commercial properties. One of those school districts

was Davis. Davis imposed a uniform, flat, $45 per year tax on every parcel.

Davis feared that Proposition 62 had stripped it of the power to levy special

taxes, and at Davis’ request, Assemblyman Tom Hannigan introduced AB

1440. At first, AB 1440 had no restriction as to the type of special taxes a

school district could impose, but eventually the bill was amended to authorize

only special taxes that “apply uniformly.”

There were four school districts that levied special taxes that did not

apply uniformly, and they feared their taxes would not be valid under AB

supra p.13, n.6, the 2006 Legislative History is attached to the accompanying Motion for Judicial Notice.

19

1440. Three school districts exempted seniors over the age of 65, and these

three were able to convince the Legislature to allow a senior-exception under

AB 1440. The last school district imposed a bifurcated tax, with one tax for

residential property, and another tax for nonresidential property. This last

school district did not convince the Legislature to make an applicable

exception to uniformity, so AB 1440 was not amended to allow bifurcated

taxes. Then in 2006, section 50079 was amended to permit school districts to

exempt SSI recipients, but again, no authority was granted to levy bifurcated

taxes. Thus the bifurcated tax found in Measure H is not valid under section

50079.

a) Davis Seeks a Solution to Proposition 62 AB 1440 was the solution to a very specific problem: at the time

California voters passed Proposition 62 and withdrew school district authority

to levy special taxes, a small number of school districts, like Davis, already

had uniform special taxes in place.10 Proposition 62 passed on November 4,

1986, LH:323, 326 (ballot pamphlet), and Davis acted quickly. On January 29,

1987, the County of Yolo wrote a letter to Assemblyman Tom Hannigan on

behalf of the Davis school district. LH:169. Tom Hannigan was the

representative for Davis. LH:65. The letter explained that since 1984, Davis

had imposed a uniform “special school tax of $45.00 per parcel of real

property,” but that special tax was set to expire on June 30, 1988. LH:169.

Davis intended to place a new special tax on the November ballot, and Davis

needed a bill to ensure that it had the authority to do so. LH:169; see also

10 Only 10 of California’s 1,029 school districts had succeeded in

imposing a special tax under Article XIIIA section 4 prior to the passage of Proposition 62. Indeed, only 37 school districts had even tried. See LH:306 (“Proposition 62: Analysis of Issues and Provisions,” prepared by the Senate Revenue and Taxation Committee et al., dated September 1986, just one month prior to the voters’ approval of Proposition 62).

20

LH:65. Tom Hannigan agreed, and he introduced the first version of AB 1440

on March 4, 1987. LH:2 (Assembly Bill 1440).

b) The Legislature Grants School Districts the Restricted Authority to Impose Special Taxes that “Apply Uniformly”

The first draft of AB 1440 had no limits on special taxes school districts

were authorized to impose, but through the amendment process, authority was

restricted to special taxes that “apply uniformly.” Compare CT:2-3 (initial

version) with CT:8-10 (final version). As first introduced in March, AB 1440

simply allowed “any school district” to “impose special taxes upon the

district,” and there were no restrictions, beyond the constitutional restrictions

already placed by “Section 4 of Article XIII A.” LH:2-3.

In April, the Assembly Committee on Revenue and Taxation prepared a

Preliminary Analysis of the early version AB 1440. LH:17, (Preliminary

Analysis), 15 (cover letter dated April 22, 1987). Central to the issue at hand,

the Preliminary Analysis actually describes the special taxes which school

districts were imposing at the time: “Such taxes were often ‘parcel taxes’

where property owners paid a tax based on a fixed amount per parcel.” LH:17.

Clearly Davis’ special tax, a fixed amount of $45 per parcel, was exactly this

sort of uniform tax. See LH:169. The Preliminary Analysis then opined as to

the inequities of special taxes, under which, “a small homeowner would pay

the same amount of tax as an estate or a very large commercial structure.”

LH:17. The Preliminary Analysis concluded by asking, “Should the

Legislature put any limits on the kinds of special taxes school districts are

authorized to impose?” LH:17.

As the bill progressed, further analyses were conducted, and the Bill

Analysis dated May 1, 1987 is also instructive in determining what exactly the

Legislature intended when it authorized school districts to impose special

21

taxes. See LH:21-22. The May Analysis reiterates that the bill is “sponsored

by the Davis Unified School District, which uses a parcel tax to finance several

of its school programs.” LH:22. Then the analysis describes the type of

special taxes the Legislature intended to authorize: “Unlike local property

taxes which were at issue in Serrano v. Priest, special taxes represent single,

flat fees which generate revenue unrelated to the value (or wealth) of the item

being taxed.” LH:22.

AB 1440 was amended on May 19, 1987, and the Legislature wrote in

the “apply uniformly” restriction at issue here. See LH:4. As amended, AB

1440 specified “that school districts are authorized… to impose qualified

special taxes, as defined.” LH:4 (italics original). The definition reads in

relevant part that “any school district may impose qualified special taxes upon

the district,” and,

(b) As used in this section, “qualified special taxes” means special taxes which apply uniformly to all taxpayers or all properties within the school district.

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

LH:5 (italics removed). This is the first appearance of the two distinct

qualifiers that distinguish “qualified special taxes” in section 50079 (special

taxes that (1) “apply uniformly,” and (2) are not “imposed on a particular

class”), from the broad definition of special taxes in Article XIIIC section 1(d)

of the California Constitution (a special tax is “any tax imposed for specific

purposes”).

Nowhere in this Legislative History is there any hint that the Legislature

contemplated permitting a bifurcated and graduated special tax that

22

differentiates both by the type of property and the size of property, as Measure

H does. In fact, just the opposite is true.

c) A Few School Districts had in Place Non-Uniform Special Taxes Similar to Measure H, and They Were Scared of AB 1440

After AB 1440 was first introduced in March, many school districts

throughout the state quickly endorsed the bill, see LH:55-61 (letters dated last

week of April and first week of May), but the bill was amended to restrict

school district authority to, “special taxes that apply uniformly,” and two

concerns emerged. First, the new language would foreclose the option to

exempt seniors over the age of 65 from the special taxes. Second, the new

language would preclude a bifurcated tax that – like Measure H – imposed a

different tax for residential and nonresidential properties. The Senate Revenue

& Taxation Committee, in a Hearing Digest dated June 17, 1987, discusses

both of these problems. See LH:31. The digest notes that under the bill,

“taxes must be uniform and not discriminate against a class of property or

taxpayers.” LH:31. Then the Digest explains why this is a problem,

“Apparently some of the school district parcel taxes which have been imposed

apply differently to different types of property, and one exempts those aged 65

or older. In its present form this bill may not ‘validate’ these special taxes.”

LH:32.

Four school districts brought these two concerns to the Legislature’s

attention: Kentfield School District (hereinafter “Kentfield”), Mill Valley

School District, Lagunitas School District, and Albany. See LH:66 (Legal

Opinion dated June 9, 1987, by Mr. Thomas H. Steele of Morrison & Foerster,

hereinafter the “MoFo Opinion”).11 Albany was an early supporter of the bill,

11 The “wider historical circumstances” at the time section 50079 was

enacted, are a “legitimate and valuable” aid in divining its statutory purpose. See California Manu. Ass’n v. Public Util. Comm’n (1979) 14 Cal.3d 836, 841;

23

see LH:56 (Letter dated April 29, 1987), but of course at that time, AB 1440

had no restrictions on the special taxes school districts were authorized to

impose. See LH:2-3.

The legal opinion prepared for these four districts concluded bluntly

that their special taxes would not survive under AB 1440. See LH:66 (the

MoFo Opinion). On the one hand, Kentfield imposed a uniform tax of “$97.00

per year per assessor’s parcel,” but Kentfield exempted from its tax, “[p]arcels

owned and used as a principal residence by individuals 65 years or older.”

LH:67 ¶1; see also LH:86 (the 1986 Kentfield measure). The Mill Valley and

Lagunitas school districts had similar exemptions for seniors. LH:67 ¶1. On

the other hand, Albany imposed a bifurcated tax: “$87.00 per year for each

residential unit;” and “an annual rate of $0.0175 per square foot” on

nonresidential property, with a minimum set at $87. LH:67 ¶1. Clearly,

Albany’s bifurcated structure is the same structure found in Measure H.

Compare LH:67 ¶1 (description of Albany’s bifurcated tax) with CT 123, Exh.

A:2 (Measure H’s bifurcated tax, Section 2.(b)(i)(A) & (B)). The MoFo

Opinion concluded starkly, “Neither the Kentfield nor the Albany special tax

would appear to meet the requirements of AB 1440 as currently drafted.”

LH:69 ¶3. Because the phrase “apply uniformly” had not been judicially

interpreted, the MoFo Opinion was based on the plain meaning of the phrase:

The phrase requiring that the tax be “applied uniformly to all taxpayers or all properties” has not been judicially interpreted to our knowledge. However, the plain meaning of the language suggests that no exemptions would be tolerated. In addition, the bifurcated rate provided by the

also c.f. C.C.P. §1860 (“Construction – Surrounding Circumstances”). However, special taxes imposed by various school districts today, 23 years later, are of no import, and the Superior Court correctly excluded such evidence. CT 1985:13.

24

Albany special tax is apparently not applied uniformly to residential and nonresidential properties.

LH:69 ¶3. Thus, Kentfield’s exceptions for seniors over 65, and Albany’s

bifurcated tax rate for residential and nonresidential properties, were both

believed to violate AB 1440’s new “apply uniformly” restriction. In contrast,

the bill’s sponsor, Davis, imposed a uniform parcel tax so the new “apply

uniformly” restriction was not a problem, and Davis continued to “strongly

support” AB 1440. LH:75-83 (letters from Davis dated June 11, 1987, to

various State Senators expressing strong support for AB 1440).

d) School Districts Asked the Legislature to Permit an Exemption for Seniors, and the Legislature Obliged; but School Districts did Not Ask the Legislature to Allow Bifurcated Taxes

Faced with two concerns, Kentfield’s senior-exemption and Albany’s

bifurcated-tax, the school districts only raised one of these concerns with the

Legislature: the need to give school districts the freedom to exempt taxpayers

over the age of 65 from the special tax. See LH:96-98 (Letter dated June 16,

1987, to Senator Garamendi, from Mr. James W. Bruner, Jr. of Orrick,

Herrington & Sutcliffe, hereinafter the “Orrick Letter”). These school districts

were so concerned about the new “apply uniformly” language in AB 1440, that

they hired a law firm to send a letter, the “Orrick Letter,” to the Legislature.

The Orrick Letter conveys the fears of three (out of the four) districts: “AB

1440… requires that the special tax be applied ‘uniformly to all taxpayers or

all properties’ … three of the Districts provided a limited exception from the

special tax for senior citizens. Even such well-intentioned efforts appear to be

doomed by the sweeping uniformity provision of AB 1440.” LH:97 ¶2. The

Orrick Letter then proposes amending to the bill to allow school districts to

exempt seniors from the special taxes. See LH:96, 97 ¶3. Critically, at no

25

point does the Orrick Letter address the second concern, the problem faced by

Albany (and Measure H), of a bifurcated tax rate. See LH:96-98. 12

It is not clear why the school districts only raised the issue of Kentfield

et al.’s need for a senior-exemption, but not Albany’s bifurcated-tax.

Compare LH:66-70 (MoFo Opinion outlining two problems) with LH:96-98

(Orrick Letter addressing only one problem). It is possible that Albany did not

have an advocate to raise its specific concern. The three districts (Kentfield,

Mill Valley and Lagunitas) had banded together because they feared AB 1440

might not ratify the special taxes their voters had already approved. The issue

of ratification is addressed in a letter from state Senator Milton Marks to

Senator Garamendi, on behalf of only three districts, Kentfield, Mill Valley

and Lagunitas. LH:99 (Letter dated June 16, 1987). Albany is not mentioned.

Id. Also, a later letter from Orrick, Herrington & Sutcliffe to Assemblyman

Tom Hannigan only mentions the firm’s work for three districts, Kentfield,

Mill Valley and Lagunitas. LH:106. Again, Albany is not mentioned.13 Had

the issue of bifurcated taxes been raised, there may even have been some

sympathy for Albany’s scheme. See, e.g., LH:17 (Preliminary Analysis noting

that “parcel taxes” that are “a fixed amount per parcel” are “much more

inequitable than a property tax based on value”). But for whatever reason, the

12 On June 11, 1987, Kentfield wrote a separate letter to Assemblyman

Tom Hannigan’s Chief of Staff, enclosing a copy of the MoFo Opinion. LH: 84-85. In that letter, Kentfield urges that “language be added… making it clear that exemptions for senior citizens (like those provided by the three Marin County school district taxes that were recently passed) are not prohibited by AB 1440.” LH:84 ¶2. No mention is made of Albany, and no plea is made to accommodate Albany’s bifurcated tax. See LH:84-85.

13 The bill’s sponsor, Davis, did not share Kentfield et al.’s concern with respect to ratification of taxes already in place, and in fact, Davis believed the attempt to include ratification in AB 1440 might lead to the bill’s demise. See LH:87, 88 ¶1 (Letter dated June 12, 1987, on behalf of Davis).

26

fact remains that the Orrick Letter only raised Kentfield’s need for a senior

exemption, and not the bifurcated tax.

The Orrick Letter was effective. It was sent to Senator Garamendi,

LH:96, and the Senator’s committee addressed the need for a senior-exemption

the next day, LH:31-32 (hearing digest dated June 17, 1987). Finally, the

senior-exemption was added to AB 1440 on June 22nd. LH:9. The bill now

permitted “an exemption from those taxes for taxpayers 65 years of age or

older.” The Senate’s Third Reading reflects this change. See LH:36-37 (dated

June 22, 1987). Thus, Kentfield et al.’s request (by way of the Orrick Letter)

for an exemption for seniors, see LH:97, was granted by the Legislature, see

LH:8-9. On the other hand, Albany’s bifurcated tax was never addressed in

the Orrick Letter, see LH:96-98, and so the Legislature never authorized

school districts to impose bifurcated taxes. This “history helps explain the

Legislature’s policy decision in this regard.” See generally Rialto, 14 Cal.4th

at 675.

Once they secured their exemption for seniors, the school districts that

had pushed for the senior-exception then urged the Governor to sign AB 1440

into law. LH:123 (letter from Kentfield Superintendent dated June 26, 1987);

LH:112-117 & 123-124 (other letters from Kentfield); LH:121 (letter from

Mill Valley Superintendent dated June 26, 1987), 109-111 & 118-120 (other

letters from Mill Valley residents). There is no similar endorsement from

_____

27

Albany to the Governor in the Legislative History. Assemblyman Hannigan,

the representative for Davis and the bill’s author, explained to the Governor in

his letter dated July 1, 1987, that the bill “corrects the problem that requires

any special tax passed to be imposed equally for all taxpayers in the district.

The bill allows districts the discretion to exempt senior citizens from special

taxes.” LH:46, 126 (same). In other words, AB 1440 required special taxes be

imposed equally for all taxpayers, except seniors. Seniors were the only

exception to uniformity.

In 2006, just two years before the District passed Measure H, the

Legislature amended section 50079 to permit a second exception to uniformity,

allowing school districts to exempt SSI recipients. MJN:14 (Assembly Bill

385). Recipients of SSI had not received a cost of living increase, and the

Legislature believed the amendment would help the disabled stretch their fixed

incomes. MJN:18 (Senate Revenue & Taxation Comm., May 10, 2006, under

the heading “Purpose of the bill”). The bill was supported by Protection and

Advocacy Inc., a nonprofit that advocates for disabled rights. MJN:52. The

bill was also endorsed by the California School Boards Association, which

represents almost 1,000 school districts in California. MJN:75. Thus, the

Legislature is perfectly willing to amend section 50079 to allow new

exceptions to uniformity. In fact, when drafting Measure H, the District took

advantage of this new exception to uniformity, and exempted certain SSI

recipients from the special tax. See CT 123, Exh. A:3 (Measure H, Section 2.,

(b)(v)). But Measure H also deviates from uniformity by imposing a

bifurcated tax on residential and non-residential property, and a graduated tax

on different sizes of commercial/industrial property. Before the District passed

Measure H, it should have sought the Legislature’s permission to make these

exceptions, as Kentfield et al. did in 1987, and as was later done in 2006. The

28

District did not seek the necessary legislative authority, and as a result,

Measure H is invalid.

*-*

When AB 1440 was added to the Government Code as section 50079,

the Legislature had Davis in mind, as well as the uniform flat-fee parcel taxes

that were typical for school districts at the time. When Proposition 62 passed,

Davis feared it had lost the authority to levy special taxes, so Davis turned to

its Assemblyman, Tom Hannigan, to sponsor a solution. AB 1440 was that

solution. The first version of AB 1440 had no restrictions, but eventually

school district authority was narrowed to “special taxes that apply uniformly.”

Four school districts were told by their attorneys that their own taxes were not

“uniform” and would not survive this new version of AB 1440. Three of those

school districts exempted seniors, and a fourth school district had a bifurcated

tax scheme, with different taxes on residential and nonresidential properties.

The concerned school districts asked the Legislature to make an exception to

uniformity for seniors, and the Legislature amended the bill to allow school

districts to exempt taxpayers over 65. But the school districts never addressed

the need for a bifurcated tax rate with the Legislature, and so the Legislature

never amended AB 1440 to permit different taxes for different properties.

Because Measure H imposes a bifurcated tax, with different taxes on different

properties, Measure H is not uniform as that term was plainly understood by

the Legislature when it enacted section 50079, and thus, Measure H is invalid.

29

5. THE PLAIN MEANING OF SECTION 50079 IS CONFIRMED BY NUMEROUS STATUTES WHICH ALSO AUTHORIZE SPECIAL TAXES THAT “APPLY UNIFORMLY”

The plain meaning of “apply uniformly,” as buttressed by the 50079

Legislative History, is confirmed by the use of the same phrase in other special

tax statutes. In cases of statutory construction, courts will naturally look to

related statutes that use the same language. See, e.g., Hennigan v. United

Pacific Ins. Co. (1975) 53 Cal.App.3d 1, 8 (partial retrials); Estate of

Hoertkorn (1979) 88 Cal.App.3d 461, 465-6 (probate code injuries exception).

There are numerous statutes that authorize various special districts to levy

special taxes that “apply uniformly.” These statutes make certain exceptions

to the “apply uniformly” restriction, but the specific exceptions are different

for each statute. Under the familiar maxim expressio unis est exclusio alterius,

the exceptions to “apply uniformly” must be limited to the express exceptions

found in the statute. Collins v. City & County of San Francisco (1952) 112

Cal.App.2d 719, 731 (First District, Division 1). Thus in light of the (a)

different balances the Legislature has struck in granting uniform special taxing

authority to various special districts, the (b) exceptions to “apply uniformly”

permitted under section 50079 must be limited to the specific exceptions

actually found in the statute. Because the exceptions to uniformity

demonstrated by Measure H are not expressly found in section 50079, Measure

H is invalid.

a) The Legislature has Authorized Various Special Districts to Levy Special Taxes that “Apply Uniformly,” with Different Exceptions for Each Special District

The Legislature has struck different balances for different special

districts when granting each the authority to levy special taxes that “apply

uniformly,” and the specific balance struck under section 50079 must be

respected. Section 50079 allows school districts two exceptions to special

30

taxes that “apply uniformly,” one for seniors over the age of 65, and one for

persons receiving SSI. On the other hand, section 50079.1, which authorizes

special taxes for community colleges, permits only one exception, allowing

different tax rates for improved and unimproved property. A few statutes have

no exceptions to the “apply uniformly” restriction. E.g., Cal.Govt.Code

§53730.01 (Hospital Districts); Water Code §62-13 (Lake County Watershed

Protection District); see also Cal.Pub.Res.Code §5566 (the tax is “applied

uniformly to all taxpayers within the zone”). And while section 53717

authorizes only uniform special taxes for library facilities, 53717.2 allows

those taxes to be based on the benefit to the property. This cornucopia of

exceptions to uniformity clearly demonstrates the Legislature’s intent to strike

a different balance for different special districts.

Our first example is section 50079.1 (“Community college district;

special taxes”), the code provision directly following 50079 in Article 3.8.14

The use of the phrase “apply uniformly” in section 50079.1 is highly relevant

to the use of the same phrase in section 50079, as “words or phrases in a

provision that were used in a prior act or closely related act pertaining to the

same subject will be construed to be used in the same sense.” Estate of

Hoertkorn, 88 Cal.App.3d at 465-6.15 Section 50079.1 states,

A community college district may impose a special tax pursuant to Article 3.5 (commencing

14 Article 3.8 (“School Districts”), of Government Code Title 5,

Division 1, Part 1, Chapter 1. 15 That section 50079 (school districts) and section 50079.1 (community

college districts) are in pari materia was re-enforced in 2006, when the Legislature considered making the exceptions to uniformity identical for sections 50079 and 50079.1. MJN:19 (under the heading “Goose and Gander” asking, “What’s good for school districts must surely be good for community college districts too?”). The suggestion was not adopted.

31

with Section 50075). The special taxes shall be applied uniformly to all taxpayers or real property within the district, except that unimproved property may be taxed at a lower rate than improved property.

This very same exception, allowing a different tax rate for improved and

unimproved property, is found in many other statutes that also only authorize

special taxes that “apply uniformly.” E.g., §§ 23027 (counties), 25215.2

(county service areas), 61121 (community service districts), and many more16.

It is immediately obvious from the face of section 50079.1 (and all the other

statutes with the same exception), that the phrase “applied uniformly” cannot

be understood to permit a lower tax rate for unimproved property, else, the

exception for unimproved property would be mere surplusage. But a

“construction rendering some words surplusage is to be avoided.” Estate of

MacDonald (1990) 51 Cal.3d 262, 270. Thus when the Legislature employs

the phrase “apply uniformly,” it does not intend to permit different taxes for

improved and unimproved property.

Another example is Article 3.6 (“Public Library Special Taxes),17 in

which section 53717 authorizes special taxes for library facilities that “apply

uniformly,” and section 53717.2 makes an exception to uniformity for taxes

“based on benefit received by parcels of real property.” Thus when the

16 Other statutes that read “special taxes shall be applied uniformly to

all taxpayers or all real property … except that unimproved property may be taxed at a lower rate than improved property,” include, Harbors & Navigation Code §§ 6092.5, 6364; Health & Safety Code §9081; Military & Veterans Code §1192.5; Public Resources Code §§ 5789.1, 9513, 13161.5, 35172, 12891.5; Public Utilities Code §§ 16641.5, 22909, 25892.1; Water Code §§ 22078.5, 31653, 72090.5

17Article 3.6 of Government Code Title 5, Division 2, Part 1, Chapter 4.

32

Legislature employs the phrase “apply uniformly,” it does not intend to permit

different taxes based on the benefit to the property, otherwise the exception to

uniformity in 53717.2 would be mere surplusage.

The fact that section 50079 does not allow school districts to make an

exception for improved and unimproved property, or an exception for taxes

based on the benefit to the parcel, “is indicative of a different legislative

intent.” Hennigan, 53 Cal.App.3d at 8. In Hennigan, the Court of Appeal

examined the question of whether C.C.P. section 914 permits partial retrials

where the reporter’s transcript has been lost. Id., at 4. The Court looked to a

related law, the general new trial statute, C.C.P. section 657. Section 657

provides for vacation of the verdict “In part and for new trial on all Or part of

the issues.” Id., at 8. Since section 914 does not contain the same permissive

“In part… Or part” language that section 657 does, section 914 does not allow

for partial new trials. Id., at 8. “Where a statute with reference to one subject

contains a certain vital word, omission of that word from a similar statute on

the same subject is significant to show a different intention.” Id., at 8. Thus

the omission of an exception for improved and unimproved property, or for

different taxes based on the benefit to the property, is significant to show the

Legislature’s intention not to allow school districts to make these exceptions to

uniformity under section 50079.

In balancing the desire to authorize school districts to levy special taxes,

with the need for limits on those taxes, the Legislature has limited school

districts to special taxes that “apply uniformly,” with express exceptions only

for seniors and SSI recipients. Section 50079.1, and many other statutes,

include an express exception to uniformity for improved and unimproved

property; section 50079 does not. Sections 53717 and 53717.2 include an

express exception to uniformity for taxes based on the benefit to the parcel;

section 50079 does not. For that matter, in drafting section 50079, the

33

Legislature made no exception to uniformity that would allow bifurcated taxes

on residential and commercial/industrial property. The Legislature even

knows how to authorize a graduated tax based on the size of a parcel, see

Heckendorn v. City of San Marino (1986) 42 Cal.3d 481, 488 (section 53978

permits graduated special taxes based on size of the parcel), but the Legislature

did not include a graduated-tax exception to uniformity in 50079. The

legislative omission of these exceptions from section 50079, must be

respected. See Rojas v. Super. Ct. (2004) 33 Cal.4th 407, 423-4 (no “good

cause” exception listed).

b) Exceptions to “Apply Uniformly” Must be Limited to Express Exceptions Found in Section 50079

Section 50079 contains two express exceptions to the general rule that

special taxes levied by school districts must “apply uniformly;” no other

exceptions may be permitted. As the District Court of Appeal, First District,

Division 1 has written, under the “familiar maxim of expressio unis est

exclusio alterius it is well settled that, when a statute expresses certain

exceptions to a general rule, other exceptions are necessarily excluded.”

Collins, 112 Cal.App.2d at 731. Rojas is instructive. See 33 Cal.4th at 423.

There, our Supreme Court could find no “good cause” exception to the

mediation privilege. Two express exceptions to the mediation privilege were

listed in Evidence Code section 1122, but neither was the “good cause”

exception. Furthermore, there was a “good cause” exception to the work

product privilege so, the Court reasoned, the Legislature “clearly knows how

to establish a ‘good cause’ exception… if it so desires.” 33 Cal.4th at 423. If

“exemptions are specified in a statute, we may not imply additional

exemptions unless there is a clear legislative intent to the contrary.” Id., at

424. No “good cause” exception could be implied, for to do so would be

“inconsistent with the narrowly drawn exceptions the Legislature expressly

34

established.” 33 Cal.4th at 427. Here, section 50079 expressly establishes two

exceptions to the “apply uniformly” rule: one for seniors and one for SSI

recipients. Thus there is “an implied negative; an implication that no other

than the expressly granted power passes by the grant.” Wildlife Alive v.

Chickering (1976) 18 Cal.3d 190, 196. In other words, only the two

exceptions found in 50079 may be implied. See Rojas, 33 Cal.4th at 423-4. In

fact, as seen in various other special tax statues, the Legislature clearly knows

how to establish all sorts of exceptions to the “apply uniformly” rule if it so

desires, and the legislative decision to limit school districts to only two

exceptions must be respected. See id., at 423. Thus, only the two exceptions

to “apply uniformly” expressly found in section 50079 should be permitted.

6. MEASURE H DOES NOT “APPLY UNIFORMLY” Measure H does not apply uniformly. Compare CT 123, Exh. A

(Measure H) with §50079 (“School districts; qualified special taxes”). Every

year, Measure H taxes residential properties $120 per parcel, but it imposes a

different tax on commercial/industrial properties. Commercial/industrial

properties are taxed $0.15 per square foot, but with a different rate of $120 per

parcel on properties smaller than 2,000 square feet, and a different rate for the

largest properties, with a maximum of $9,500 per parcel. This is not a tax that

is unvarying. See Black’s Law Dictionary (6th Ed., 1990) (definition of

“uniform”). This is not a tax that is the same in different places at different

times. See The Oxford English Dictionary (The Compact Edition, 1971)

(definition of “uniform”). Measure H is not like the flat-fee parcel tax levied

by Davis at the time the Legislature drafted section 50079. See LH:169.

Rather, Measure H is just like Albany’s bifurcated tax, a structure Albany

knew would not survive the coming statute. Compare CT 123, Exh. A:2

(Measure H, Section 2.(b)(i)) with LH:67, 69 (description of Albany tax).

“Apply uniformly” is a restrictive phrase the Legislature has used in various

35

special taxing statutes, each with distinct exceptions. E.g., §50079.1, 53717.2.

No exceptions other than the express exceptions can be implied. Collins, 112

Cal.App.2d at 731. Section 50079 lists two exceptions to the “apply

uniformly” restriction, one for seniors, one for SSI recipients. The

differentiated tax imposed by Measure H falls outside the exceptions to

uniformity in section 50079, and for that reason, Measure H is invalid.

7. MEASURE H EXEMPTIONS DO NOT CONFORM TO THE EXEMPTIONS AUTHORIZED BY SECTION 50079

Measure H’s senior and SSI exemptions do not conform to section

50079, and are therefore invalid. Under section 50079(b)(1), special taxes

must “apply uniformly to all taxpayers or all real property.” There are only

two exceptions, for

a. taxpayers 65 years of age or older or

b. for persons receiving Supplemental Security Income for a disability, regardless of age.

Section 50079(b)(1) (lettering added).

The Measure H exemption for taxpayers over 65 is invalid under 50079,

for two reasons: first, because the exemption only applies to residential

property, and second, because only taxpayers who are owner-residents qualify.

Measure H states that,

An exemption from the special tax will be made available to owners of single family residential units in which they reside who will attain the age of 65 years during the assessment year, who owns a beneficial interest in the parcel and who uses that parcel as his or her principal place of residence.

36

CT 123, Exh. A:3 (Section 2.(b)(iv) of Measure H). First, as explained in this

brief, section 50079 special taxes must “apply uniformly to… all real

property,” which does not permit different taxes on residential and

nonresidential property, but the Measure H senior exemption is only available

for residential property. Second, section 50079 requires that special taxes

“apply uniformly to all taxpayers,” but Measure H limits the senior exemption

to taxpayers who are owner-residents. The Legislature “knows how to” treat

different taxpayers differently. See generally Rojas, 33 Cal.4th at 423. For

example, Water Code section 60-13.2 states, “The district may provide an

exemption from these taxes for residential parcels owned and occupied by one

or more taxpayers who are at least 65 years of age….” There is no similar

“owned and occupied” limitation in section 50079, implying a different

legislative intent. See Rojas, 33 Cal.4th at 424. Thus, because the Measure H

senior exemption is limited to residential property, and because only taxpayers

who are owner-residents qualify, Measure H is invalid.

Similarly, the Measure H exemption for SSI recipients is invalid under

section 50079 for two reasons: first, because the exemption only applies to

residential property, and second, because only taxpayers who are owners

qualify:

An exemption from the special tax will be made for owners of single family residential units receiving Supplemental Security Income for a disability, regardless of age.

CT 123, Exh. A:3 (Section 2.(b)(v) of Measure H). First, as explained herein,

under section 50079, it is invalid to differentiate between residential and

nonresidential property, but the Measure H SSI exemption makes that

distinction. Second, as already explained, the plain meaning of 50079 makes it

invalid to differentiate between taxpayers. Indeed in 2006, when the

37

Legislature amended section 50079 to add the SSI exemption, it explicitly did

not intend to differentiate between taxpayers who are owners and taxpayers

who are not owners. See MJN:21 (Assembly Comm. on Revenue and

Taxation, January 9, 2006 hearing on A.B. 385, noting that, “by its terms, this

bill does not limit the exemption to homeowners (taxpayers) that qualify or

specify that the person qualifying for the exemption must also live in the

property rather than own it as an investment.”). This legislative history

buttresses the plain meaning of section 50079. See Jenkins, 74 Cal.App.4th at

530. Thus, because the Measure H SSI exemption is limited to residential

property, and because only taxpayers who are owners qualify, Measure H is

invalid.

8. SEVERABILITY CANNOT SALVAGE MEASURE H Measure H is pervaded with invalidity. Even though Measure H

contains a severability clause, severance cannot salvage this measure. E.g., In

re Blaney (1947) 30 Cal.2d 643, 653 (“separability clause cannot save it”).

Measure H’s severance clause reads in relevant part,

If any section, subsection, sentence, phrase, part or clause of this measure is, for any reason, held to be unconstitutional, illegal or invalid, such decision shall not affect or impair the validity of the remaining portions of this measure. It is hereby declared that the intention of the Board of Education of the District and the electorate that this measure would have been adopted had such unconstitutional, illegal or invalid section, subsection, phrase or clause thereof not been included.

CT 123, Exh. A:3-4 (Section 2.(f)). A severability provision cannot be

used to delegate to the courts the task of rewriting a measure. People’s

Advocate, Inc. v. Super. Ct. (1986) 181 Cal.App.3d 316, 331 n.15. Nor can a

court rewrite the measure to save it. See id. Because the defects in Measure H

38

are pervasive, severance cannot save it. E.g., Birkenfeld v. City of Berkeley

(1976) 17 Cal.3d 129, 173 (“there appears no way of severing the invalid

limitations”).

Measure H exceeds the authority granted school districts under section

50079 in six ways: (1) it imposes a bifurcated tax on residential and

commercial/industrial property; (2) it imposes graduated tax rates on

commercial/industrial property of different sizes; (3) the exemption for

taxpayers over the age of 65 is impermissibly limited to residential properties;

(4) the exemption for seniors is impermissibly limited to taxpayers who are

owner-residents; (5) the exemption for SSI recipients is impermissibly limited

to residential properties; and (6) the SSI exemption is impermissibly limited to

taxpayers who are owners. There is no way to cure all these defects by way of

severance.

The fundamental problem with Measure H is that it differentiates on the

basis of residential property and commercial/industrial property. See CT 123,

Exh. A:2 (Section 2.(b)(i)). This same differentiation even infects the

exceptions in Measure H for seniors and SSI recipients. See CT 123, Exh. A:3

(Section 2.(b)(iv) and (b)(v)). There is simply no way to mechanically excise

this pervasive flaw from Measure H. See In re Blaney, 30 Cal.2d at 655 (“if

the statute is not severable, then the void part taints the remainder and the

whole becomes a nullity”).

Alternatively, Measure H cannot be salvaged by severing the graduated

tax rates for commercial/industrial properties based on size. See CT 123, Exh.

A:2 (Section 2.(b)(i)(B)). It is “by no means clear that the electorate would

have approved the measure,” if Measure H if only levied a meager $120 on the

same property it now assesses up to $9,500. See Birkenfeld, 17 Cal.3d at 174.

9. THE SUPERIOR COURT INCORRECTLY TREATED THE PHRASE “APPLY UNIFORMLY” AS A MERE

39

RESTATEMENT OF THE CONSTITUTIONAL REQUIREMENT THAT LAWS HAVE “UNIFORM OPERATION”

The Superior Court incorrectly treated the phrase “apply uniformly” in

section 50079 as a mere restatement of Article IV section 16(a) of our

Constitution, which requires that all laws have “uniform operation.” The

decision reads in relevant part:

Article 4, section 16 of the California Constitution requires that “all laws of a general nature shall have a uniform operation.” In general, the term uniformly is interpreted to mean that a tax is “uniform” in the constitutional sense, so that tax classifications are upheld if they bear a rational relationship to a legitimate government purpose. Fox Bakersfield Theatre Corporation v. City of Bakersfield (1950) 36 Cal.2d 136, 141-144. Based on case law interpreting the term “uniform”, the court concludes the term “special taxes that apply uniformly to all taxpayers or all real property owners within the school district” means simply that the tax applies uniformly to all persons or properties in the same classification. Los Angeles SMSA Ltd. Partnership v. State Bd. of Equalization (1992) 11 Cal.App.4th 768, 780.

CT 1985:7. Statutory construction presents a pure matter of law, and this

Court is “not bound by… the lower court’s interpretation.” Burden, 2 Cal.4th

at 562. This Court should not follow the Superior Court’s construction, which

ignores the plain meaning of section 50079, a meaning confirmed by the

statute’s legislative history as well as by various other statutes that also

authorize special taxes that “apply uniformly.” The decision below is flawed

in three main respects, it (a) renders the words “apply uniformly” completely

superfluous, it (b) applies the wrong test, treating this case as a constitutional

classification challenge, instead of a statutory reverse validation action, and it

40

(c) improperly substitutes the Superior Court’s own policies for the

Legislature’s policy preferences.

a) The Decision Below Renders the Words “Apply Uniformly” in Section 50079, Superfluous

The decision below renders the words “apply uniformly” in section

50079 completely superfluous, by treating that phrase as a mere restatement of

the constitutional rule in Article IV section 16(a), that “All laws of a general

nature have uniform operation.” See CT 1985:7. A “construction rendering

some words surplusage is to be avoided.” Estate of MacDonald, 51 Cal.3d at

270. In Estate of MacDonald, our Supreme Court construed a statute that

required a valid transmutation of property be made in “writing by an express

declaration.” Id., at 267. The Court rejected the argument that “any” writing

should suffice. Id., at 269. That interpretation would render the words “an

express declaration” mere surplusage. If the Legislature intended to merely

require “any” writing, it could be left it at that. Id., at 269-70. There was no

need for the words: “by an express declaration.” Id. Same here. With section

50079, the Legislature authorized school districts to impose “special taxes that

apply uniformly.” If the Legislature simply intended to require “uniform

operation,” there was no need for the words “that apply uniformly,” because

Article IV section 16(a) already requires uniform operation. A holding that

“apply uniformly” merely requires “uniform operation” would render the

words “apply uniformly” mere surplusage. That result should be avoided.

Estate of MacDonald, 51 Cal.3d at 270.18

18 See also Moyer v. Workmen’s Comp. App. Bd. (1973) 10 Cal.3d 222,

234 (because the term “compulsory” connotes willing, therefore, the term “voluntary” must imply a knowing act; if “voluntary” also meant willing, then in the phrase “acceptance… shall be voluntary and not be compulsory,” the word compulsory would be mere surplusage); Gonzales & Co. v. Dept. of

41

It is true that when statutory language is taken verbatim from the

Constitution, that language must be given the same meaning as in the

Constitution, but that is not the case here. See Stockton Civic Theater v. Board

of Super. of San Joaquin County (1967) 66 Cal.2d 13, 21 (the phrase

“charitable purpose”). Section 50079 permits special taxes that “apply

uniformly,” whereas Article IV section 16(a) requires that all laws have

“uniform operation.” “Uniform operation” and “apply uniformly” are not

verbatim. In contrast, the Legislature has used the exact constitutional words

“uniform operation,” verbatim in a tax statute. See Cal.Govt.Code §66801

(“Tahoe Region Planning Compact,” Article IX(h)(9)). It is not hard to

understand why the Legislature would incorporate constitutional language

verbatim into a “compact executed between the States of Nevada and

California,” which governs a territory over which the suzerainty of our

Constitution may be uncertain. See §66801. But unlike section 66801, section

50079 does not use the exact words “uniform operation,” and in any case, it is

axiomatic that our Constitution applies to any school district special tax under

50079. Thus it is improper to read the phrase “apply uniformly” in section

50079, as a mere restatement of the constitutional mandate of “uniform

operation” of laws.

b) The Decision Below Treats this Case as a Constitutional Classification Challenge Instead of a Statutory Reverse Validation Action

The Superior Court failed to follow well-settled rules of statutory

construction and as a result, it treated this case as a constitutional classification

challenge instead of a statutory reverse validation action. The goal of statutory

construction is to determine the legislative intent of a statute, and the first step

is to look at the plain meaning of the language. Burden, 2 Cal.4th at 562.

Alcohol Beverage Control (1984) 151 Cal.App.3d 172, 178 (“rebate” and “premium” used in the same sentence so different meanings were intended).

42

Even when that meaning is unambiguous, legislative history can help

buttresses the interpretation. Jenkins, 74 Cal.App.4th at 530. And words

should be construed in the same sense as used in closely related statutes.

Estate of Hoertkorn, 88 Cal.App.3d at 465-6. But the Superior Court failed to

heed the plain meaning of “apply uniformly.” Compare supra pp.15-17 with

CT 1985:6-7 (“plaintiffs introduce dictionary definitions of the word

‘uniform’” but “Uniformity is not defined in section 50079”). And the

Superior Court failed to understand the relevant legislative history. Compare

supra pp.19-28 with CT 1985:8 (“much of the evidence from the legislative

record concerns attempts to… allow an exemption for seniors”). And most

devastating of all, when the Superior Court looked to other provisions of the

law, it looked to Article IV section 16(a) of the California Constitution, which

is not a special tax provision, and which does not even use the phrase under

examination here. Compare supra p.41 (“uniform operation” and “apply

uniformly” are not verbatim) with CT 1985:7. As a result, the Superior Court

conflated two distinct requirements, first, the Constitution’s requirement that

all laws have “uniform operation,” and second, section 50079’s requirement

that a school district special tax must “apply uniformly.” Of course tax laws,

like all general laws, must have uniform operation, or else they violate equal

protection principles. See Estate of Timmons (1985) 171 Cal.App.3d 303, 310

(inheritance tax). But there is a difference between a general tax law having

uniform operation under Article IV section 16(a), and a specific special tax

applying uniformly under section 50079. Under section 50079, the phrase

“apply uniformly” means unvarying; not different from place to place. The

flat parcel tax Davis had in place when the Legislature drafted section 50079

applied uniformly. See supra, pp.19-20. The requirement in Article IV

section 16(a) that all laws have “uniform operation” is altogether different.

43

In failing to recognize the difference between a constitutional

classification challenge and the statutory reverse validation action here, the

Superior Court concluded that the phrase “special taxes that apply uniformly to

all taxpayers or all real property owners within the school district,” means,

“that the tax applies uniformly to all persons or properties in the same

classification.” CT 1985:7 (citing Los Angeles SMSA Ltd. Partnership v. State

Bd. Of Equalization (1992) 11 Cal.App.4th 768). But it is well-established

that the Legislature can constitutionally impose classifications in special tax

statutes. See, e.g., Heckendorn, 42 Cal.3d at 488 (upholding an ordinance that

imposed a graduated special tax based on the City’s zoning classifications).

And the question of whether or not a tax applies uniformly “in the same

classification” belongs to a entirely different species of constitutional cases,

and is not at issue here.

Indeed, Los Angeles SMSA, 11 Cal.App.4th 768, sheds no light on this

case. There, a cellular phone company challenged taxes on many fronts,

including, based on different treatment afforded radio and television, and

different treatment for its main competitor. Id., at 772. The Court of Appeal

explained that under the Constitution, there is no “iron rule of equality,” and

since the cellular phone company is a utility, while radio and television are not

utilities, classifying them differently made sense. Id., at 779. The Court also

44

held that as to the competitor, disparate treatment was only for a short time

when the competitor was not even fully operational, “which did not run afoul

of any equal protection or uniformity of treatment concerns.” Id., at 781. “As

long as a tax system has a ‘rational basis’ and is not ‘palpably arbitrary,’ it will

be upheld despite the absence of precise, scientific uniformity of taxations.”

Id., at 780. But Appellants are not challenging the constitutionality of school

district special taxes. Quite the opposite, Appellants are trying to enforce

section 50079. In fact, Appellants do not even allege that Measure H lacks a

“rational basis” or is “palpably arbitrary.” Those constitutional requirements

are immaterial here. Appellants’ only contention is that Measure H does not

conform to the Legislature’s grant of authority under section 50079, and so to

enforce the Legislature’s intent, Measure H must be invalidated. Regus is

instructive. 70 Cal.App.3d at 977, 982. There the Court of Appeal invalidated

a city ordinance in a reverse validation action brought pursuant to C.C.P.

section 863, holding that the ordinance did not comply with the requirements

found in Health & Safety Code section 33000 et seq. The Constitution did not

enter into the analysis.

One possible reason why the Superior Court conflated section 50079’s

requirement that “special taxes apply uniformly” with Article IV section

16(a)’s mandate that all laws have “uniform operation,” could be language

found in a line of cases dealing with the taxation of real property belonging to

banks, and in particular, the classification of fixtures attached to the bank’s

real property. This line of cases culminates with Crocker National Bank v.

City and County of San Francisco (1989) 49 Cal.3d 881, 888-9, which held

that the classification of fixtures must be given independent review on appeal,

because “Taxation must, of course, be uniform and the tax laws uniformly

applied. Uniformity depends on proper classification. And proper

classification is furthered through the application of independent review.” See

45

also Northrop Grumman Corp. v. County of Los Angeles (2005) 134

Cal.App.4th 424, 429 (classification of property as governmental or not). The

plain import of the Supreme Court’s words in Crocker National Bank is clear,

i.e., when a plaintiff challenges a tax classification under the Constitution,

independent review of the classification on appeal helps ensure that tax laws

are uniformly applied. That holding has no application to this case. Still we

examine the genesis of that particular holding in the interest of clarifying any

confusion.

The Crocker National Bank line of cases addresses whether a fixture

belonging to a national bank is to be classified as a real property improvement

and taxed, or as personal property and made exempt. National banks have

been contesting the classification of fixtures attached to their real property

going back at least 70 years, to San Diego Trust & Savings Bank v. County of

San Diego (1940) 16 Cal.2d 142, 144. The issue arises because, as explained

in Trabue Pittman Corp., Ltd. v. City of Los Angeles (1946) 29 Cal.2d 385,

387, federal law permits the taxation of real property belonging to national

banks. Id., at 387. If the fixtures are real property improvements, they are

taxed. The test for what is real property is left to state law. Id., at 388.

California’s rule must have a “reasonable basis for the determination” with “no

discrimination against federal instrumentalities.” Id., at 388. For years,

assessors have designated fixtures owned by national banks as real property,

and national banks have complained of unconstitutional discrimination. E.g,

Simms v. County of Los Angeles (1950) 35 Cal.2d 303, 308. These cases boil

down to the question of whether or not the classification is reasonable. But the

case at bar does not address classification. The case at bar asks only if

Measure H conforms to the “apply uniformly” restriction found in section

50079.

46

In contrast, Simms was a constitutional challenge alleging

discrimination because the tax there did not have “uniform operation.” 35

Cal.2d at 307. In Simms, the assessor deliberately “deviated from his general

practice with regard to the classification and assessment” of vault doors and

counterlines as taxable fixtures. 35 Cal.2d at 308. Similar property for other

taxpayers had been classified differently, resulting in a different tax burden.

Id., at 315. That is what discrimination under Article IV section 16(a) looks

like; that is what it means for a tax law not to have uniform operation. Nothing

of the sort is argued here. Appellants do not argue that the District has

misclassified their property. The issue is rather whether section 50079, which

requires that special taxes “apply uniformly,” permits the District to impose the

differentiated taxes found in Measure H. The Constitution is not implicated.

c) The Decision Below Improperly Proffers Alternative Policies to Support Measure H, in Lieu of the Legislative Policies Codified in Section 50079

The Superior Court improperly proposed its own policy justifications in

support of Measure H. The Legislature made very specific policy decisions in

promulgating section 50079, and any school district special tax, including

Measure H, must conform to these legislative policies, even if a court

considers the measure to be otherwise rational. See Rialto, 14 Cal.4th at 632

(“we follow the Legislature’s intent, as exhibited by the plain meaning of the

actual words of the law, whatever may be thought of the wisdom, expediency,

or policy of the act”). As discussed supra at pp.29-30, various statutes

authorize various special districts to impose special taxes that “apply

uniformly,” and the Legislature strikes a different policy balance for each, by

authorizing a different set of exceptions to the “apply uniformly” restriction for

each. E.g., §50079.1 (community colleges: one exception for unimproved

property); §53730.01 (hospitals: no exceptions); §53717 (libraries: exception

47

based on benefit to land). Here, section 50079 permits only two exceptions to

uniformity (seniors, SSI). But Measure H goes beyond these two exceptions.

Measure H imposes bifurcated taxes on residential property and

commercial/industrial property. Section 50079 allows no such exception.

Measure H also imposes graduated tax rates on commercial/industrial property

based on size. Again, section 50079 allows no such exception, yet the

Superior Court concluded that the exceptions to uniformity found in Measure

H are “rational.” See CT 1985:8-9. The test the Superior Court settled on is

that the “tax classifications… bear a rational relationship to a legitimate

governmental purpose.” CT 1985:7 (citing Fox Bakersfield Theatre Corp. v.

City of Bakersfield (1950) 36 Cal.2d 136).

Fox is not even relevant here. In Fox, a movie theater complained that

a business license tax applied to movie theaters but not pool halls. 36 Cal.2d at

138. The movie theater specifically invoked equal protection under the U.S.

Constitution, as well as uniformity and equality under our State Constitution.

Id. Our Supreme Court explained that “the power of the states to make

classifications of persons or property for the purpose of taxation is very broad.

A statute is presumed to be constitutional until the contrary appears.” Id., at

141. Which is true, but not at issue here. Of course section 50079 is presumed

to be constitutional, and of course the Legislature can authorize special taxes

on the basis of classifications. See Heckendorn, 42 Cal.3d at 488 (police and

fire funds raised on the basis of classifications). Appellants say nothing to the

contrary. Appellants’ only contention is that section 50079 does not authorize

the different taxes found in Measure H. That is all.

Appellants do not even argue that Measure H is irrational.

Nevertheless, the Superior Court has offered an array of alternative “rational”

48

justifications for the bifurcated tax imposed by Measure H. The decision

below states, “Assuming that the Legislature did not intend the word

‘uniformly’ to have the same meaning as when the term is used in other taxing

schemes, Plaintiffs do not explain what kind of uniformity the Legislature

intended to require,”

1. A rational argument can be made that a special tax imposing a flat rate on each parcel, regardless of size or use, lacks uniformity because its effect is to tax smaller parcels more heavily per square foot than larger parcels.

2. Similarly, a special tax based solely on square footage does not necessarily treat properties uniformly, in that it makes no provision for the uses made of particular property. It would for example, over tax properties that are vacant and likely to receive less benefit from the special tax.

3. Given that the legislative history fails to show that the legislature intended the word “uniformly” to have the meaning ascribed by Plaintiffs, and in the absence of any indication that “uniformly” was intended to restrict the electorate’s discretion by imposing absolute tax uniformity in some particular way, the Court concludes that this was intended.

CT:1985:8-9 (numbering added). Each of the Superior Court’s rationales

betrays a fatal flaw in understanding the key phrase in section 50079, “special

taxes that apply uniformly.”

First, the Superior Court is flat wrong to posit that a “flat rate on each

parcel, regardless of size or use lacks uniformity because its effect is to tax

smaller parcels more heavily per square foot than larger parcels.” CT 1985:8.

Exactly the opposite is true. Uniform means the same. The Legislature knows

49

how to authorize different special taxes based on the size of a parcel, e.g.,

Heckendorn, 42 Cal.3d at 488 (tax graduated by size), but the Legislative

History of section 50079, supra pp.19-28, shows that the Legislature did not

intend to do so here. Section 50079 was enacted at the behest of Davis. Davis

imposed an annual flat tax of $45 per parcel – regardless of size, regardless of

use. LH: 169. This was typical for school districts at the time. See LH:17, 22,

35. The Legislature knew that “a small homeowner would pay the same

amount of tax as an estate or a very large commercial structure.” LH:17. And

contrary to the Superior Court’s implication, the Legislature was also well

aware that this might be considered by some to be inequitable. Id.

Second, the Superior Court dismissed special taxes “based solely on

square footage,” on the faulty rationale that “it makes no provision for the uses

made of particular property,” and “would… over tax properties that are vacant

and likely to receive less benefit.” CT 1985:8-9. As shown supra pp.29-33

(lower taxes on unimproved property under section 50079.1, and taxes based

on benefit to property under 53717.2), the Legislature “knows how to

establish” exceptions to uniformity for vacant property, or for taxes based on

benefit. See generally Rojas, 33 Cal.4th at 423. But the Legislature has not

authorized any of those exceptions under 50079. That omission is “indicative

of a different legislative intent.” Hennigan, 53 Cal.App.3d at 8. Section

50079 only permits two exceptions, for seniors and SSI recipients. Under the

maxim expressio unis est exclusio alterius “other exceptions are necessarily

excluded.” Collins, 112 Cal.App.2d at 731. It is improper for the Superior

Court to uphold Measure H by proposing its own policies to replace the

legislative policies codified in section 50079. See Rialto, 14 Cal.4th at 632.

Third, the decision below is absolutely wrong to find an “absence of

any indication that ‘uniformly’ was intended to restrict the electorate’s

discretion by imposing absolute tax uniformity.” On the contrary, the

50

Legislature did intend the phrase “apply uniformly” to be restrictive. As

shown supra pp.29-32, the same phrase is restrictive in numerous other special

taxing statutes. E.g., §§ 23027, 25215.2, 50079.1, 61121; §§ 53717 &

53717.2. These statutes contain express exceptions to the “apply uniformly”

restriction, and under the doctrine expressio unis est exclusio alterius the

“creation of a limited express exemption suggests that a broader implied

exemption could not have been intended.” Wildlife Alive, 18 Cal.3d at 196.

The legislative history, supra pp.19-28, confirms this. The first version of the

bill had no limits as to the special taxes school districts were authorized to

impose. See LH: 2-3. Then the Legislature contemplated adding restrictions.

See LH:17 (“Should the Legislature put any limits on the kinds of special taxes

school districts are authorized to impose?”). Eventually the special taxes were

limited to special taxes that “apply uniformly,” see LH:5, and school districts

considered new the phrase to be restrictive, see LH:69, 97. Furthermore, the

Superior Court is wrong to insist that Appellants are arguing for “absolute tax

uniformity.” Section 50079 exempts seniors and SSI recipients, so Measure H

may do the same. Only a very small number of statutes have no exceptions to

uniformity at all, see, e.g., §53730.01 (hospitals); Cal. Water Code §62-13, but

Appellants do not argue that section 50079 is one of the statutes that demand

“absolute tax uniformity.”

*-*

At bottom, the Superior Court thought that different taxes on different

parcels was a good idea. The Superior Court found it “rational” to classify

property on the basis of size, and use, and to vary taxes based on the benefit to

the property. See CT 1985:7-9. And for some special districts, the Legislature

51

agrees. But not for school districts. See §50079. Take Police and Fire

Protection Funds. Section 53978 permits a special tax for fire protection, or

police protection, or both. The Legislature has not required that special taxes

for fire and police protection “apply uniformly.” See §53978. Quite to the

contrary, the Legislature explicitly allows these districts to “vary” the tax on

each parcel “based on the degree of availability” of fire or police protection.

See §53978. And the statute permits a graduated tax based on the size of the

parcel. Heckendorn, 42 Cal.3d at 488. All this is perfectly constitutional. Id.

But school districts are not in the business of raising funds for fire and police

protection. Of course school districts need money too, and that is why the

Legislature promulgated section 50079. But the Legislature restricted the

structure of school district special taxes to those that “apply uniformly,” with

exceptions for seniors and SSI recipients. Measure H does not “apply

uniformly,” and even if a court deems the differentiation in Measure H to be

“rational,” the tax is still invalid. If the Legislature’s intent in passing section

50079 is to be given effect, Measure H cannot be allowed to stand.

VI. CONCLUSION For the reasons stated herein, Appellants pray that the Superior Court’s

judgment be REVERSED and Measure H be found invalid.

Dated: December 21, 2010 Respectfully submitted,

Leslie A. Baxter David J. Brillant

RANDICK O’DEA & TOOLIATOS, LLP /s/ By: ________________________________

Umung D. Varma Attorneys for Plaintiffs-Appellants

CERTIFICATE OF WORD COUNT Pursuant to California Rules of Court, Rule 8.204(c)(1), Appellants’

Opening Brief is 13,989 words in length, according the computer program,

Microsoft Word, used to prepare the brief.

Dated: December 21, 2010 /s/

_________________________ Umung D. Varma

Attorney for Plaintiffs-Appellants

1

PROOF OF SERVICE

I, Christine Boccia, declare:

I am employed in Alameda County, State of California, am over the age

of eighteen years, and not a party to the within action. My business address is

5000 Hopyard Road, Suite 400, Pleasanton, California 94588. I am readily

familiar with the business practice for collection and processing of

correspondence for mailing with the United States Postal Service and/or other

overnight delivery. Under overnight delivery practice, all mailings are

deposited in an authorized area for pick-up by an authorized express service

courier the same day it is collected and processed in the ordinary course of

business. On the date set forth below, I served the within:

APPELLANTS’ OPENING BRIEF on the parties in this action by placing a true copy thereof in a sealed envelope,

and each envelope addressed as follows:

George David Nied, Esq. CHAPMAN POPIK & WHITE 650 California Street, 19th Floor San Francisco, CA 94108 Attorneys for Alameda Unified School District

Clerk Alameda County Superior Court 201 Thirteenth Street Oakland, CA 94612 Judge Kenneth M. Burr Dept. 30

Page Barnes, Esq. FOLEY & LARDNER One Maritime Plaza, 6th Floor San Francisco, CA 94111-3409 Attorneys for Alameda Unified School District

[X] (By Overnight Delivery) I caused each such envelope to be served by

depositing same in an authorized area for pick-up by an authorized

express service courier (Norco Delivery Services) the same day it is

collected and processed in the ordinary course of business .

2

And to: California Supreme Court 350 McAllister Street San Francisco, CA 94102-4783 http://www.courtinfo.ca.gov/courts/courtsofappeal/appbriefs.cfm [X] (By Electronic Copy) I caused the a PDF of the above-referenced

document(s) to be electronically copied by uploading a true and correct

copy through the Court of Appeal’s website as listed above per Rule

8.212(c)(2).

I declare under penalty of perjury that the foregoing is true and correct

and that this declaration was executed on December 21, 2010, at Pleasanton,

California.

/s/ ________________________ Christine Boccia