Judge Rules Against Tax to Pay for Jail

Delivering a devastating blow to Orange County’s plan to build a new jail, a Sacramento judge ruled Monday that a half-cent sales tax measure planned to help finance new criminal justice facilities is unconstitutional.

Orange County supervisors planned to put the measure on the June ballot in hopes of using much of the estimated $126 million generated to pay for a new jail in Gypsum Canyon east of Yorba Linda.

But Sacramento County Presiding Superior Court Judge James T. Ford ruled that state legislation enabling Orange County to put the tax proposal to a simple majority vote violated Proposition 13’s requirement that a two-thirds majority approve new taxes.

“It’s extremely disappointing to me and I’m sure every supervisor in this county,” Sheriff Brad Gates said of the decision. “Now we’re left with very few avenues, if any, to resolve jail overcrowding. And they (jails) are so sorely needed.”

The decision also affects five other counties named in the enabling legislation--Los Angeles, Riverside, San Bernardino, Ventura and Humboldt--and now they, along with Orange County, will be forced to rethink their jail plans.

Monday’s ruling reinforced a court decision last year that found San Diego’s similar half-cent sales tax measure also unconstitutional. State Sen. Marian Bergeson (R-Newport Beach), who sponsored the new legislation, and county attorneys had believed that the measure was sufficiently different from San Diego’s to pass muster in court.

Specifically, Orange County and the other counties proposed creating jail facilities commissions, made up of private individuals as well as public officials, to collect and spend new tax revenues. State courts have held that local agencies not authorized to levy property taxes are exempt from Proposition 13’s two-thirds requirement.

But the boards of supervisors were unwilling to cede their own authority to determine what new facilities were needed and where they should go, in effect leaving the commissions largely powerless.

Ford called the proposed commissions “sham” agencies aimed at circumventing Proposition 13, said Pierce O’Donnell, the lead attorney for the Howard Jarvis Taxpayers’ Assn., which filed the suit.

“I believed that the statute was patently unconstitutional from the moment I saw it,” O’Donnell said. “The judge said . . . that the commissions were puppets on the strings of their county masters.”

O’Donnell said that it was not every day that an attorney could save taxpayers $580 million a year in taxes, the estimated amount that would have been collected by the counties had the measures passed.

“Proposition 13 is alive and well tonight,” O’Donnell said.

Orange County Supervisors Chairman Don R. Roth, who favors building a regional jail in the desert, said he was not surprised by Ford’s ruling in light of the San Diego decision.

“I hate to say I told you so, but . . . it’s the same thing,” he said.

Roth said getting a two-thirds majority for a sales tax increase would be virtually impossible. But he said two-thirds of the voters might approve general obligation bonds to finance a truly remote jail.

County Counsel Adrian Kuyper said he and his staff will study the court decision before determining the merit of an appeal.