O.C. Jail Tax Plan Ruled Out; Prop. 13 Cited

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

The Orange County Board of Supervisors had planned to put the measure on the June ballot in hopes of using much of the estimated $126 million that it would generate to pay for a new jail in Gypsum Canyon east of Yorba Linda.

But Presiding Sacramento County Superior Court Judge James T. Ford ruled that state legislation enabling Orange County to put the tax proposal to a 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,” said Sheriff Brad Gates of the decision. “Now we’re left with very few avenues, if any, to resolve jail overcrowding. And they 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 re-think their jail plans.

Monday’s ruling comes as especially bad news to those counties because it reinforces a court decision last year that found San Diego’s similarly constructed half-cent sales tax measure also unconstitutional. State Sen. Marian Bergeson (R-Newport Beach), who sponsored the enabling legislation, and county attorneys had thought that their 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--composed 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.

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

“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 six counties had their sales tax measures passed.

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

Orange County Board of Supervisors Chairman Don R. Roth, who favors building a regional jail in the desert rather than the one in Gypsum Canyon, 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,” Roth said. “The displeasure I have about (the decision) is that it affects not only Gypsum Canyon but also the financing possibility for the desert jail.”

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

“I think that when you can tell people it won’t affect your sales tax, that it’s long-run, then they’ll go for it,” Roth said.

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