Suit Puts Planned Jail Tax to Prop. 13 Test : Courts: Plans to build a new jail could be derailed if the courts find that the half-cent sales tax increase to pay for a new facility is unconstitutional.

SANTA ANA —  In a move that could derail Orange County’s plans to build a new jail, opponents of a proposed half-cent sales tax increase to help pay for the new facility filed a lawsuit Monday, arguing that the tax is unconstitutional.

Last month, the state Legislature passed a bill enabling Orange County and five other counties--Los Angeles, Ventura, Riverside, San Bernardino and Humboldt--to place half-cent sales tax measures for jails and courtrooms before their respective electorates.

The Orange County Board of Supervisors--which hopes to use much of the estimated $126 million that would be generated by such a tax increase to pay for a new jail in Gypsum Canyon--could put the measure on the ballot as soon as June, 1990.

But in the lawsuit filed Monday in Sacramento, plaintiffs led by the Howard Jarvis Taxpayers’ Assn. say the proposed half-cent sales tax increases must be approved by a two-thirds majority, as required by Proposition 13, and not a simple majority as spelled out in the state bill. Also listed as plaintiffs are three individuals, including Yorba Linda resident and Gypsum Canyon jail opponent Richard C. Violett.

“The Orange County act is a cynical, political maneuver to flout Proposition 13,” attorneys Pierce O’Donnell of Los Angeles and former state Supreme Court Justice Cruz Reynoso of Sacramento said in the lawsuit. “Public entities, like individuals, must obey the Constitution no matter how bothersome they may find its provisions.”

But Orange County Board of Supervisors Chairman Thomas F. Riley and Sheriff-Coroner Brad Gates said Monday they were confident that their carefully constructed plan to pay for the jail and court facilities would prove legal.

Proposition 13, passed by California voters in 1978, severely restricted the ability of counties to raise property taxes. But state courts have ruled that local agencies that are not authorized to levy property taxes are exempt from Proposition 13’s two-thirds requirement.

Several counties have tried to take

advantage of that loophole by having the Legislature establish new agencies--such as the Orange County Regional Justice Facilities Commission--to collect and spend new tax revenues.

The lawsuit’s plaintiffs, however, say that such agencies are shams under the control of the county, and have no real independence or power--and therefore should be subject to the same two-thirds majority required by Proposition 13.

A Riverside County judge ruled in March in a similar case that a San Diego County sales tax increase for jails and courtrooms, approved by just 50.8% of voters in 1986, had indeed violated Proposition 13’s two-thirds provision.

In the San Diego case, two of seven members on the special justice facilities commission were county supervisors. Two judges and the county sheriff also were on the commission, as well as two representatives of local city councils. That case is under appeal.

Orange County, taking note of the decision, took special care to give its commission a broader composition and more power than San Diego’s had, said state Sen. Marian Bergeson (R-Newport Beach), who was instrumental in getting the legislation passed.

“The bill was drafted to accommodate the concerns that could . . . (result in a) challenge (of the measure’s) constitutionality,” Bergeson said.

Specifically, Orange County’s five-member commission would include two county supervisors, representatives of two cities, and a fifth member at-large to be selected by the other four. While that would give county supervisors veto power over the swing vote, it does not place the commission clearly in the hands of county government officials, as did San Diego’s, Bergeson said.

Also, she pointed out, the commission would be charged with developing and implementing a master plan of jail and courtroom facilities for the county.

But the Board of Supervisors would retain control over the siting and construction of new facilities, rendering the commission powerless to implement its plan without supervisors’ approval, the lawsuit said.

“All of the critical substantive decisions about jails in Orange County will be made by the county, not by the Orange County commission,” the lawsuit stated. “In truth, the commission can do only one thing: raise taxes to finance bonds for construction of justice facilities developed and operated by Orange County.”

Sheriff Gates, who is under federal court order to ease overcrowding in the Orange County Jail, said of the lawsuit: “I can’t look into the future and say what a judge might do. But when you get to a higher court . . . we all feel we’ll be successful if we have to go that far.”