Prop. A Opponents Set Sights on ’87 Transportation Sales Tax

Buoyed by their legal victory overturning a half-cent sales tax for San Diego jails and courtrooms, the political activists who won that case said Friday they are considering filing another lawsuit to try to strike down a similar 1987 transportation sales tax.

However, before broadening their legal horizons, the group indicated that it may first move to solidify Thursday’s court ruling invalidating Proposition A, the jails measure narrowly approved by San Diego voters last June, by seeking a court order prohibiting the county from collecting the half-cent tax pending appeals.

Emboldened by the ruling and with a bit of a swagger in their style, Proposition A’s opponents held a downtown news conference Friday at which they both savored that victory--one that, if upheld on appeal, poses far-reaching implications--and suggested that they may attempt to replicate it through other lawsuits.

“This victory . . . refutes the old canard, ‘You can’t fight City Hall,’ ” said San Diego Libertarian Party Chairman Dick Rider, a plaintiffs in the case. “We did, and we won.”

Declared Illegal

On Thursday, Riverside County Superior Court Judge Gordon Burkhart declared the half-cent jails tax illegal on the grounds that its 50.6% approval at the polls fell short of Proposition 13’s requirement of a two-thirds vote for approval of new taxes. Over its 10-year life, it is estimated that there would be about $1.6 billion for new jails and courtrooms to alleviate San Diego’s longstanding jail crowding problem and a badly overextended court system.

Proposition A and the state legislation authorizing it, Burkhart wrote in his decision, “purposely circumvented” the two-thirds margin mandated by Proposition 13, the landmark property-tax cutting initiative approved by voters statewide in 1978.

That same legal argument perhaps could be applied, Rider said, to a similar half-cent sales tax for public transit, street improvements and highway construction that San Diego voters approved by a 53%-47% margin in November, 1987. That measure--which, ironically, also appeared on the ballot as Proposition A--is expected to raise about $2.25 billion for street and mass transit programs over the next 20 years.

Both propositions relied upon “the same invalid subterfuge” to avoid the two-thirds vote requirement by creating elections in which only a majority vote was needed for approval, Rider and some of his fellow Libertarians argued Friday.

“We still question whether or not that first (transit) tax is valid,” Rider said. “And we are seriously considering taking action against that tax. . . . We will be pursuing some sort of remedy.”

‘Fundamental Difference’

However, even some of the seven defense lawyers who aligned themselves with the Libertarians in the lawsuit against the jails tax expressed doubts Friday about whether a similar case could be made against the transit sales tax.

“There is at least one fundamental difference,” lawyer Thomas Homann said. While Homann and his colleagues described the body set up to administer the jails tax revenue a “a shell, a pseudo-agency” that is little more than an arm of the county, he said he views a similar agency that oversees the transit funds as being “truly separate and independent.”

“The transportation agency was formed to perform a function which is not one that traditionally was performed by the county,” Homann said. “In this (jails) case, what we have is a function which has traditionally, historically been performed by the county--that is, the construction of jails and courthouses.”

If that factual distinction causes Homann to be skeptical about the feasibility of challenging the transit tax, officials of the San Diego County Regional Transportation Commission feel even more certain that they are on unassailable legal ground.

“For a variety of reasons, we’re convinced that the same challenge would not be successful if made against the Transportation Commission,” said Debra Greenfield, general counsel of the 19-member panel that administers the transit sales-tax funds.

Elected Membership

Besides echoing Homann’s observation that the transit board fulfills a function “not provided by any other local government,” Greenfield noted that the board’s membership, which includes elected representatives from the 18 local incorporated cities and the county Board of Supervisors, further demonstrates its “separate nature.”

More importantly, the state legislation that enabled the half-cent transit tax to be placed on the 1987 ballot established a six-month statute of limitations for challenging the measure. Because that period has expired, it is too late for a lawsuit similar to that which led to Thursday’s ruling to be filed, Greenfield said.

Libertarian leader Rider, however, suggested that a court might be persuaded to waive the statute of limitations if it could be proved that the transit tax was “patently unconstitutional.”

“We don’t agree with that conclusion,” Greenfield responded.

Interest Conflict

Although another lawsuit remains problematical, both sides in the jails’ case continued Friday to attempt to sort out the short- and long-range ramifications of Burkhart’s ruling. Burkhart heard the case in Riverside County because of San Diego judges’ conflict of interest on a trial affecting courtroom space.

With the case expected to eventually reach the California Supreme Court, the appeal could last as long as two years. As a result, a key unresolved question is whether collection of the tax must be halted in the interim or may continue pending the appellate decisions.

Although Burkhart ruled Proposition A invalid, attorney Louis Katz, one of Homann’s colleagues, conceded that “there’s nothing in the judge’s order to stop them from collecting the tax.”

Hope to Continue

Several top county officials, in fact, have said they hope to continue collecting the half-cent tax, which has generated about $21 million since it raised the local sales tax to 7% on Jan. 1, until the state Supreme Court rules on the matter. If Thursday’s ruling is upheld, the county would have to devise a method to equitably refund that money.

“I see no reason to discontinue it now,” Board of Supervisors Chairman Susan Golding said. “As far as I’m concerned, we don’t even have a decision at this point. What we have is one step on the way to that decision.”

To clarify the sales tax’s current status, Katz said that Proposition A’s opponents may ask Burkhart to hold a hearing on the matter later this spring if his final order, expected to be signed in about one week, does not specifically address that question. Their position at any such hearing, Katz explained, would be that it is legally and politically illogical to continue levying a sales tax that a court has ruled unconstitutional.

“But I’m sure the county probably would feel differently,” he said, chuckling. “We’ve still got a few more questions to answer about this decision before we even get to the appeals.”