Supreme Court to Review S.D.’s Prop. A Jail Tax : Law: The state high court’s decision leaves the fate of the tax, designed to finance building of badly needed jails, in limbo.

Prolonging the measure’s legal limbo, the California Supreme Court voted late Thursday to review the validity of Proposition A, the half-cent sales tax that San Diego County voters approved more than two years ago to build new jails and courts.

The court’s decision immediately sets aside an opinion issued two months ago by a lower appellate court that had unanimously approved the tax. Reversing a Superior Court judge’s ruling rejecting the tax, the 4th District Court of Appeal in San Diego said on Sept. 4 that it was properly enacted.

Although the measure barely passed--with 50.6% of the vote, a bare majority rather than the two-thirds vote required by Proposition 13--that was enough to make it legal, the 4th District court said.

If the Supreme Court had decided to let stand the 4th District decision, it would promptly have made available to the county hundreds of millions of dollars for its overextended courts and jammed jails.

But none of that money--due next week to reach $194 million--can be tapped while the Supreme Court reviews the measure, a process that could take a year or longer, since the court, backlogged by death penalty appeals, is often slow in reaching other matters. In granting review Thursday, the court set no hearing date.

If, eventually, the court overturns the measure, all the cash--however much by then is in an interest-bearing account, which is growing steadily, since the tax is being collected while the case has dragged through the courts--could be forfeited.

County officials said they are disappointed at the Supreme Court’s decision to hear the case.

“We would have hoped they would not hear it,” said Supervisor John MacDonald, one of the members of the agency that Proposition A created to spend the revenue, the San Diego County Regional Justice Facility Financing Agency. “But it’s not over until it’s over.”

The Supreme Court review is “a quantum leap backward for what we had hoped would be a rather ambitious plan to solve the problems” in the courts and jails, said Rich Robinson, director of the county’s Office of Special Projects, the agency that since 1986 has directed planning for local courts and jails.

Opponents of the ballot measure, however, were thrilled with the court’s action.

“I’m very pleased,” said Richard Rider, immediate past chairman of the San Diego County Libertarian Party and the named plaintiff in the lawsuit challenging Proposition A. “We were always very concerned (the Supreme Court) might try to duck the issue.”

Five of the Supreme Court justices voted to hear the case, one more than necessary.

Chief Justice Malcolm L. Lucas voted to hear it, as did Justices Edward Panelli, David N. Eagleson, Joyce L. Kennard and Armand Arabian, according to the court’s order, issued at its office in San Francisco.

Eagleson is scheduled to retire in January, 1991--and to be replaced by Marvin R. Baxter--but can still vote to hear cases.

At some point, the court will set a date for oral argument. The case must be decided within 90 days from the oral argument.

The measure has been dragging through the courts since the month after voters approved it in June 1988. Over its 10-year life, the half-cent sales tax, which raised the local sales tax to 7% beginning Jan. 1, 1989, is projected to generate $1.6 billion for new jails and courtrooms.

In July 1988, the suit challenging the measure was filed. The case was moved to Riverside County because of San Diego judges’ conflict of interest in a matter affecting courtroom space.

Lawyers for the county and for the financing agency argued that 1987 state legislation, which set the stage for the measure, stated that a majority vote was enough for passage.

But lawyers for the Libertarians contended that the legislation was a sham that violated both the letter and the spirit of Proposition 13, the landmark tax-cutting initiative.

In a March, 1989, decision, Riverside Superior Court Judge Gordon Burkhart sided with opponents of the measure. Six months later, the 4th District court reversed that decision, saying that Proposition 13 had no bearing on the case.

The initiative applies only to agencies that can levy taxes, Justice Thomas E. Hollenhorst said. But the financing agency set up by Proposition A has the power only to spend money, not levy taxes, he said.