Court’s Tax Ruling May Ease Way for New Jails : Elections: Appeals court upholds San Diego sales tax approved by simple majority vote. Officials say that could help Orange County’s struggle for facilities.

An appellate court ruling upholding a 1988 San Diego sales tax for jails could finally present Orange County leaders with a way to pay for badly needed facilities here, county officials said Wednesday.

“This could be very important to us,” Supervisor Thomas F. Riley said. “I think this opens up an opportunity for Orange County to deal with this very important problem.”

The ruling, handed down Tuesday by the 4th District Court of Appeal in San Bernardino, found that a sales tax for jails in San Diego was legal even though it passed by a simple majority, rather than a two-thirds margin. Reversing a lower-court decision, the complex ruling found that San Diego’s measure did not need to win two-thirds approval to satisfy either Proposition 13, the landmark 1978 tax-cutting initiative, or Proposition 62, another tax initiative that passed in 1986.

For technical reasons in those tax laws, neither applied to the San Diego jail initiative, the court panel declared in a 3-0 decision.

The appellate court ruling, which had been closely watched by counties across the state, could have particular significance in Orange County, since even soaring inmate populations and overcrowded jails have not persuaded voters here to tax themselves for new jails. And even though an appeal of Tuesday’s ruling is expected, the decision gives Orange County officials a powerful argument as they make their case for a simple majority vote on a jail sales tax.

“The ruling is definitely helpful because (requiring) a majority vote gives you a lot more chance for success than a two-thirds vote,” said Ronald S. Rubino, associate county administrative officer for management and budget. “The areas of court construction and jail construction are two of our highest priorities, and we need to come up with a financing plan for them.”

Even with Tuesday’s ruling, no jail tax measure is ready to go to the voters and the November ballot already is set, officials said.

“Right now, the priority is Measure M,” said Supervisor Don R. Roth, referring to the half-cent transportation tax that voters will consider this fall. “A sales tax for jails is something we’d have to look at in the future.”

The transportation measure needs only a majority to win because proceeds from it will be administered by the Orange County Transportation Authority, which is not part of the county government and does not oversee property taxes.

Proposition 13 restrains the ability of governments to levy special taxes without two-thirds of an area’s voters approving them, but it does not put the same restrictions on non-governmental entities that do not oversee property taxes.

With the county’s inmate population growing and its jails bursting at the seams, county officials had intended to raise money for new facilities by putting a sales tax for jails on the ballot this year. But their plans were scuttled when opponents of the tax filed suit, challenging the state legislation that allowed for a majority vote rather than a two-thirds requirement.

To escape that two-thirds requirement in Proposition 13, Orange and five other counties--Los Angeles, Riverside, San Bernardino, Ventura and Humboldt--had proposed creating jail facilities commissions to collect and spend the new tax revenues. The boards of supervisors, however, were unwilling to give those commissions authority to determine when and where to build jails, and opponents contended the commissions were a “sham” deliberately intended to circumvent Proposition 13.

A Sacramento judge upheld that contention in February, derailing Orange County’s plans for a sales tax vote in June or November of this year. Tuesday’s ruling, which comes from a higher court, could bolster the appeal in that case and might set the stage for another try at a sales tax vote within the next few years.

“There is a possibility that this (San Diego) case could have an effect on ours,” said Stefen Weiss, a deputy county counsel. Weiss said legal arguments will be filed soon in the appeal involving Orange County.

Plaintiffs in that suit, however, strongly condemned Tuesday’s appellate court ruling. Rick Violett, a Yorba Linda resident who is one of the plaintiffs, called the decision a “hammering away at Proposition 13.”

“Whether it’s jail or anything else, Proposition 13 required a two-thirds vote,” Violett said. “All this means is that down the road, whatever government needs, all they have to do is form a commission to get the additional tax monies.”

Although the appellate court ruling--if upheld by the state Supreme Court--would strongly bolster the county’s chances of winning a jail sales tax vote, backers of the levy still would face a formidable challenge in gaining voter approval.

Polling data is inconclusive, but recent surveys have found that while a majority of county voters oppose higher taxes for jail construction, they might consider voting for the levies if the supervisors could find an acceptable site outside of the county.

A pair of recent polls, for instance, found that only 37% of county residents support a half-cent jail sales tax, but 69% support building a new facility outside of the county, if a site can be found and developed. Roth has been a leading advocate of a Riverside County jail, arguing that building a new facility in the desert would be the only way to win voter approval.

While some officials take issue with that view, all agree that without a reduction from a two-thirds requirement to a simple majority, the prospect of funding new jail construction in Orange County is dismal indeed.

“Unless it’s a simple majority, we don’t have a chance,” Riley said. “It’s impossible to get two-thirds, but we might be able to get a majority.”

BACKGROUND

Orange County officials have struggled to cope with jail overcrowding for more than a decade. The county’s five jails are consistently filled, and two floors of the jail in Santa Ana are the subject of a longstanding court order to relieve overcrowding. Supervisors have been unable to settle on a location for a new jail, however, and county voters have shown little willingness to tax themselves to build one.