Janelle Irwin Taylor
All For Transportation supporters and detractors will get their day in court Wednesday. Another one, anyway.
Two individuals — Hillsborough County Commissioner Stacy White and resident Bob Emerson — challenged the constitutionality of the All For Transportation referendum voters approved in late 2018 levying a 1% sales tax to fund sweeping transportation and transit improvements countywide.
The initial challenge in lower court ended in a compromise ruling that struck down provisions of the new charter amendment dealing with how money is allocated, but upheld the tax in general.
White and Emerson challenged that ruling with the Florida Supreme Court and now seek to overturn the tax in its entirety.
“Our position in this case has been consistent and clear from the start: words matter. We followed the letter and the spirit of the law, a path laid out for citizens to take control of their transportation future,” the All For Transportation campaign wrote in a statement about the pending appeal. “We remain confident that the all for transportation tax will be upheld and put to work for the people of Hillsborough county.”
Lawyers for All For Transportation and its challengers will deliver oral arguments for and against the tax and a cross appeal from All For Transportation.
While counsel for White and Emerson will argue to overturn the tax, All For Transportation is seeking to undo the lower court ruling striking some terms of the charter that dictate how money is allocated to spending agencies.
Their backup plan: Keep the lower court ruling.
In either scenario, the tax would stand as-is. Responding to the lower court ruling handed down by Judge Rex Barbas, Hillsborough County Commission, with White as the only no-vote, approved the initial spending allocations Barbas struck. That means even if his ruling stands, the money would still be spent as the original amendment intended.
An All For Transportation brief filed with the Florida Supreme Court in advance of oral arguments argues that White and Emerson’s arguments against the tax are based on those not addressed in previous rulings or in All For Transportation’s defense.
“The Commission had the statutory right and duty not to accept the uses and allocation provided in Article 11 if it did not deem them appropriate. If the commission did not believe the uses and allocation in Article 11 were appropriate, it could have refused to act by not calling the measure up for vote; it could have declined to defend against White’s lawsuit, consented to a judgment in White’s favor, or joined White as a plaintiff,” All For Transportation wrote in that brief.
White and Emerson, through their attorneys, argue the severability cause of the charter is unconstitutional because a charter cannot usurp the county’s ability to determine how to spend revenue.
The All For Transportation team argues the charter, specifically Article 11, does not go against state law, but even if it did the County Commission could have changed the allocations prescribed in the charter, which they did not.
Each side will have 20-minutes to argue its case.
A final decision is not expected Wednesday.
There are a few scenarios.
The high court could side entirely with either side — either upholding the tax in its entirety or striking it down in its entirety.
The court could also choose to uphold the lower court ruling.
Or they could prescribe a combination of both — either saying the lower court ruling didn’t go far enough but that the tax is still constitutional with changes or that the lower court went too far and restoring some of the removed provisions.
Any decisions requires a majority ruling of at least four justices. That means for now, because only five justices currently sit on the Supreme Court, All For Transportation only needs to convince one Justice to uphold the tax in one way or another.
However, there are two Supreme Court vacancies Gov. Ron DeSantis is in the process of filling. If neither side reaches the four votes it needs, the court could withhold a ruling until new Justices are appointed.
If a majority ruling cannot be reached, the lower court ruling would stand, but that scenario could only play out if Justices decided to issue a final order before the new Justices are appointed.
In the meantime, local governments and agencies who would receive funds have waited to spend on projects pending a Supreme Court ruling.
