Tuesday, June 25, 2019

Defects Keep Swirling Around All For Transportation Tax and Court Ruling

As we posted here, Judge Barbas gutted the illegal All for Transportation (AFT) tax hike charter amendment. Barbas threw out all of AFT's illegal spending appropriations, illegal prohibitions on funding new roads and other illegal regulations they tried to force on the taxpayers of Hillsborough County.

In addition, according to this Florida Politics article, Commissioner Stacy White filed a motion to remove the sentence that required the AFT sales tax to be distributed to the County and municipalities based on their population.
“...any such allocation should be based on the actual transportation needs of the municipality, not on arbitrary, fixed percentages that were created to serve an entirely different tax with entirely different goals.”
White's motion also requests a final judgement be made which then enables an appeal to either the Supreme Court or the Second District Court of Appeals.

Barbas basically left standing only the tax itself and a neutered advisory committee.

Barbas cites precedence and state Statute guidance that reflects a bias that rulings have to favor the voter.

Barbas ruled that the ballot summary language satisfactorily informed the voter about the tax - that it was a 30 year one cent sales surtax to fund transportation and Road Improvements in Hillsborough County.

Interestingly, a "one cent" sales surtax does not exist in state statute. In Section 1(b) of Florida Statute 212.055 that governs the transportation sales surtax, the sales tax is referred to as a percentage rate not a dollar figure:
The rate shall be up to 1 percent.
The ballot summary language stated the AFT tax is to fund road improvements which the vast majority of people believed would include road widening and new road capacity.  AFT listed "improve roads" first as their top priority of transportation improvements to be funded by the AFT tax. But AFT explicitly excluded funding new road capacity in their tax hike charter amendment.

Thankfully, Barbas threw out that exclusion confirming that the AFT tax was not just a tax - it was a tax with a particular intent.

And Barbas took away that intent.

Barbas cites precedence about when a charter amendment is "invalid":

Barbas found many parts of the AFT charter amendment invalid and inconsistent with general law.

But then he starts the slicing and dicing.

Section 9.05 of the Hillsborough County Charter has a comprehensive severability clause:
It is the intent of the electorate in adopting this Charter that if any section, subsection, sentence, clause, term or word of this Charter is held invalid, the remainder of the Charter shall not be affected.
The AFT tax instead included a very narrow severability clause in Section 11.11 (2) of their charter amendment.
Severability clause in AFT
tax hike charter amendment
AFT's severability clause is so narrow that it only addresses the expenditure categories. It also states if the expenditure categories are not lawful then the funds shall be expended on any project to improve "public transportation" permitted by FS 212.055 AND the charter amendment.

Nowhere in FS 212.055 is the terminology "public transportation" used or mentioned.

The "public transportation" terminology used in AFT's charter amendment appears to only relate to transit. That makes sense since Webster's dictionary defines public transportation as "a system of trains, buses, etc., that is paid for or run by the government".

AFT's severability clause is not comprehensive. It does NOT include language stating that if any section, paragraph, sentence, clause, phrase, or word of the charter amendment is for any reason held by a Court of competent jurisdiction to be unconstitutional, inoperative or void, the remainder of the amendment should still apply.

Barbas cites voters had "clear notice" of the severability clause because the full text of the amendment was available throughout the county, there was substantial news coverage and there was political advertising for and against the tax hike prior to the election.

What voter understood AFT's severability clause?

AFT's severability clause does not agree with or appear to legally match the comprehensive severability clause in the county charter itself.

And the severability clause of the AFT tax does not appear to agree with what Barbas has now struck out of the charter amendment.

Citing news coverage about the AFT tax hike is laughable. The local media was extremely one-sided in their reporting about the AFT tax.

As posted in October last year, the Tampa Bay Times All In for All For Transportation confirms the one-sided reporting about the AFT tax. A Google search of the word "severability" resulted in ZERO hits associated with the AFT tax.

The Times or any other local media never reported anything about "severability" because they never reported about any of the potential legal issues raised last year with the AFT tax.

Commissioner White's Amended Complaint states the invalid portions of the AFT charter amendment cannot be severed from the entirety of the charter amendment under AFT's "narrow severability clause [in Section 11.11(2)], or under the constitutional doctrine of severability" making the entire charter amendment unconstitutional, invalid and unenforceable".

How did AFT's tax hike charter amendment survive the severability analysis?

With defects still swirling, is it baffling how the AFT tax is still standing?

1 comment:

  1. Sharon, right on the nail as usual. The defects you mention are all valid, but there are so many more. Two of the biggest defects and grounds for appeal are the following. The amendment Severability Clause, 11.11(2), must be declared unconstitutional by the Judge’s own reasoning that it usurps the powers of the BOCC in awarding all the funds of the tax to “public transportation” which legal definition in 49 USC ss 5302(14) is Transit. So now all the funds are going to transit and the board must now take away funds from transit for everything else. So why didn’t he find 11.11(2) unconstitutional? Secondly,
    The Judge found the expenditure category percentages set forth in the referendum were in violation of the general law of the state of Florida. He goes on to postulate that the 1% sales tax is constitutional in spit of his finding of the above because the people voted a 1% sales tax to improve transportation and that removing the distribution of the tax and spending categories set forth in the referendum would not have changed the vote. Even AFT doesn’t believe this because of the many people who pleated with the BOCC to return those same distributions and spending percentages by ordinance “because that is what the people voted for”. Does the Judge, a politician and well-educated man, believe that if the spending percentages were placed on the ballot by the BOCC and they claimed 100% of the revenues for themselves and would spend it all on roads or all on transit that it would have passed? Such a conclusion flies in the face of sales tax referendums from the CIT, to 2010 and the recent GO Hillsborough. Sine his conclusion is invalid then the severability conclusion is invalid and the entire law should be declared invalid. The BOCC has the means to mitigate his conclusion by placing a second referendum on the ballot in 2020 that addresses all these defects, but they won’t until the whole article is thrown out.
    There are many other examples where the Judge errored and are grounds for appeal. Commissioner White is winning the fight because he is right and the people need that to be championed. So, APPEAL STACY APPEAL, you are almost there.