The litigation over the state’s Fire Prevention Fee had another court date, Thursday, Nov. 21. The state and the Howard Jarvis Taxpayers Association, which has filed a class action suit disputing the legality of the $150 fee, are still arguing which issues will go to trial. After the hearing, the court took the issues under submission, it announced.

In July, Judge Eugene Balonon of the Superior Court in Sacramento dismissed the state’s contention that the case does not qualify as a class-action filing. But several issues regarding how fees that have been paid might be recovered if they are found illegal are still being debated.

The state has claimed that paid fees cannot be refunded if the fee is ruled illegal, unless the property owner has filed a petition of redetermination.

Earlier this month, HJTA filed a response disputing this contention. Essentially it argued that if the court finds the fee is a tax and therefore illegal, then the administrative process included in the legislation is not law either.

HJTA has argued that the beneficiaries of the fire protection service provided under the law (AB 29X) pay an equal amount regardless of whether they receive differential benefits. Since the fee is compulsory for all property owners within State Regulated Areas, and not dependent upon the fire protection that is provided, it is a tax, not a fee. If it is a tax, it must receive minimum approval of two-thirds of both the state Senate and the Assembly, which AB 29X did not achieve.

The state replied adamantly, “AB 29 provides the administrative remedy to contest the validity of the Fire Prevention Fee and that these plaintiffs were required to file a Petition for Redetermination with Cal Fire before filing suit for a refund of the fee … The only true excuse that [Plaintiffs Karen] Ferreira and [Calvin] Harwood attempt to allege is futility, but they fail to support that allegation with sufficient facts.”

The principal dispute embedded in the litigation is whether the legislature enacted a fee or mistakenly a tax.

J.P. Crumrine can be reached at [email protected]