Lawsuit challenges Oakland’s certification of education funding tax Measure AA

Two weeks ago, a business advocacy group sued the city of Oakland over its certification of Measure AA, a tax initiative from the November election that would create a fund for more early childhood education programs. The lawsuit—filed by the Jobs and Housing Coalition, along with a group of property owners—argues that the city council thwarted the will of Oakland voters by certifying the measure even though it failed to earn support from two-thirds of the voters.

The measure, also known as the Oakland Children’s Initiative, was supported by Oakland Mayor Libby Schaaf and would use a 30-year parcel tax—$198 on single-family homes and $135 per unit in multi-unit residences—to raise roughly $30 million a year. The majority of the funds would be directed toward efforts to improve access to—and the quality of—early childhood education in Oakland, with a focus on preschool and pre-kindergarten programs. Other funds would be used for college readiness programs.

On election night, Shuwaski Young, the campaign manager for Measure AA, said he was confident the ballot measure would pass. According to the voter guide and all the campaign literature, the measure needed a two-thirds supermajority of the vote. And indeed, the first returns of the night showed promise, with Measure AA receiving over 60 percent of the vote. In the end, though, it received only 62 percent, short of the required 66.67 percent.

The measure had failed—until it suddenly hadn’t.

Following the election, Measure AA supporters challenged the results. They argued that a 2017 California Supreme Court ruling called California Cannabis Coalition v. City of Upland held that ballot measures to increase taxes started by a group of citizens—like Measure AA—only needed more than 50 percent of the vote to pass. Under this rubric, Measure AA, with 62 percent of the vote, had passed. They argued that only tax initiatives put on the ballot by local governments require the two-thirds supermajority.

Although, there are still questions as to how far the Upland ruling reaches, proponents of Measure AA seized on it to argue that Oakland’s city council should certify that the measure passed and then have the city attorney file a validation action. This procedure would ask a court to decide whether Measure AA needed 50 or 67 percent to pass.   

At a contentious special meeting in December when the council discussed whether or not to certify Measure AA, Councilmember At-Large Rebecca Kaplan asked if there was any action the council could take to prevent the city from being sued by either side. City Attorney Barbara Parker told Kaplan that there was already a threat of litigation from the pro-AA side, and it was possible the city could be sued no matter what action officials took.

Kaplan summed up the council’s difficult position: “I have no idea what the court will rule, but I do know that no matter what we do, we will get sued,” she said. The council voted 5-1 to certify Measure AA.

Kaplan was right. The Jobs and Housing Coalition filed suit in the Alameda County Superior Court on January 31 arguing that Measure AA did require two-thirds of the vote for approval and should not have been certified. The lawsuit argues that even if the measure was a citizens’ initiative, it is still a “special parcel tax,” which—according to the state constitution—requires a two-thirds vote. The lawsuit asks for a declaration that Measure AA not be enforced and the tax not be collected.

Greg McConnell, the president of the Jobs and Housing Coalition and one of the plaintiffs, said the lawsuit is not about the merits of Measure AA—in fact, the coalition did not endorse a position on the measure ahead of the election. Instead, he said, it’s about the process that the city used to certify the measure. Shifting the percent of votes need to pass is “changing the rules of the game after the game has been played,” McConnell said. His side is concerned that switching the threshold for Measure AA to pass after the election will erode voters’ trust in the democratic process.

But according to James Harrison, an attorney for the Measure AA campaign, the California Supreme Court’s decision in Upland has set the threshold at than 50 percent for the time being. “We think, based on the opinion, that the court will hold that it requires only a majority vote,” Harrison said. He believes the city council did the right thing by certifying the measure. Ultimately, though, Harrison said it will be up to the courts to make a final decision.

McConnell said that one of his group’s concerns is that the threshold required to pass the measure could have had an effect on how people voted or campaigned. “The city attorney told every voter in Oakland that it requires two-thirds vote, and people made their decisions to campaign on that,” he said. But for instance, McConnell said, if people had known in advance that if the threshold was a simple majority, opponents of the measure may have ramped up their efforts. “You don’t know what is in the voters’ minds as to why they would vote and why they would not vote,” he said.

Harrison disagrees. “We think that’s a red herring,” he said. “If you supported Measure AA, you were likely to vote in favor of it, regardless of whether you thought the threshold was two-thirds or a majority.”

The fate of Measure AA is now likely out of city officials’ hands. In their lawsuit, the coalition members asked a court for an injunction, so that Oakland’s government cannot begin to collect the tax while the suit is still pending.

McConnell said that he doesn’t want a drawn-out and costly legal procedure, which “could have significant financial ramifications to the city.” If the city loses the lawsuit, it could be responsible for paying the plaintiffs’ attorneys fees, but it would not have to pay any other financial settlement.

McConnell said that he anticipates an answer to the lawsuit from city officials sometime in March. But Harrison said there is no clear timeline for when the court would make a final decision.