Officials’ Vote Keeps Prop. A Tax Issue Alive : Money: The state high court has outlawed the levy, but what to do with $330 million already collected is still at issue.

Refusing to declare Proposition A dead, San Diego County leaders voted Monday to continue collecting the half-cent sales tax for court and jail construction that was ruled unconstitutional by the state Supreme Court on Dec. 19.

Officials also decided to seek another hearing for clarification of key aspects of the high court’s ruling.

Based on two sentences in the 22-page majority ruling, the local agency created to administer the tax and the County Board of Supervisors each voted to ask the court justices whether their decision applies to the 1988 ballot proposition that was the subject of the lawsuit--or just to future measures.

The seven-member San Diego County Regional Justice Facility Financing Agency also will ask the court whether it can keep and spend the $330 million collected between Jan. 1, 1989 and the Dec. 19 decision. That sum increases by about $270,000 every day.

“A legitimate reading (of the ruling) would indicate that the tax being collected here is appropriate and the decision is prospective,” said attorney Robert Steiner, one of the seven members of the financing agency.

But the Libertarian Party official who filed the lawsuit said there is “not a snowball’s chance in July” that the Supreme Court will be receptive to the bid to preserve the estimated $1.6 billion in revenue that the tax would yield over its 10-year life span.

“Leave it to the attorneys and politicians to come up with a novel definition of ‘prospectivity’,” said Richard Rider, past president of the Libertarian Party.

In another development Monday, the Supreme Court issued a brief order, signed by Chief Justice Malcolm Lucas, denying the Libertarians’ request to immediately halt collection of the tax. The group filed its request Friday.

The court said the Libertarians could bring the issue up again before a lower court, the 4th District Court of Appeal, which has been assigned the task of determining how to rebate the money already collected.

The Supreme Court struck down the tax in a 5-2 decision, ruling that a two-thirds vote was required to approve the levy under the provisions of the 1978 tax-cutting initiative Proposition 13. Voters passed Proposition A in 1988 by a narrow 50.6% margin.

The court majority said the supervisors had attempted a “purposeful circumvention” of Proposition 13’s two-thirds rule by essentially controlling the financing agency they created to disburse the funds.

The financing agency voted, 4 to 3, in closed session Monday to continue collecting the tax. County Supervisors Susan Golding and John MacDonald, who sit on the agency board, and San Diego Deputy Mayor Ron Roberts were on the losing end of a motion to halt collections as soon as possible. Steiner, Sheriff Jim Roache, San Marcos Vice Mayor Mark Loscher and attorney James Lorenz cast the four votes to continue collecting the tax.

A spokesman for Roberts said that Roberts received no support for a suggestion to halt collections as of today.

“I’m puzzled over the continued collection of the tax,” Rider said. “I think it’s just bullheadedness, that they can’t accept that they lost. It’s stolen property. Stolen property should be returned to its rightful owner. The only problem is finding the rightful owner.”

Rider and University of San Diego law professor Robert Simmons, a candidate for Golding’s 3rd District supervisorial seat who addressed the Board of Supervisors Monday, warned that each supervisor risks being held personally liable for the decision to continue collecting the tax now that it has been declared illegal.

“I urge you to immediately stop collection of this tax,” Simmons said. “I warn you that further collection of an illegal tax is itself illegal.”

But, in their own closed session, the supervisors joined the financing agency in an attempt to seek guidance from the court on the prospectivity question.

According to Steiner and Lynn McDougal, the financing agency’s attorney, a passage in the majority opinion raises the need for clarification of the Supreme Court ruling.

In it, Lucas wrote that “we likewise leave open the question of a possible prospective application for our holding to agencies other than the agency involved herein. The issue of prospectivity involves difficult constitutional and policy considerations largely (unaddressed) in this case.”

The agencies have until Friday to submit their request for a rehearing. If the court takes no action by Jan. 21, its decision will become final.

That would shift the matter to the appeals court, where it might take weeks or months to hammer out a plan for disposing of the already collected revenue. Also at issue is how the financing agency, which has no money without the Proposition A tax, could pay the estimated $500,000 in fees owed to Libertarian Party attorneys, McDougal’s fees and other costs.