Four Florida Supreme Court Justices heard oral arguments in the All For Transportation appeal that threatens to undo the 1% sales tax voters overwhelmingly approved in late 2018.
At least two Justices appeared poised to side with appellants seeking to strike down the tax. Four are needed for a majority opinion handing down a ruling.
A third Justice briefly indicated some hesitation about the All For Transportation charter language. Only five Justices currently comprise the high court.
A decision isn’t expected for four to six weeks.
The appellant’s key argument was the charter’s severability clause, which allows any provision deemed inconsistent with state law to be removed. Lawyers for Hillsborough County Commissioner Stacy White and resident Bob Emerson, Chris Altenbernd and Derek Ho, respectively, argued severing provisions of the charter previously struck down by a lower court judge fundamentally changed the makeup of the amendment and would mean the charter is no longer consistent with what voters approved.
Chief Justice Charles Canady agreed.
“To disentangle that would do violence to the will of the voters,” Canady. said. “At the very best, what’s involved in this is a deceptive double talk.”
“The voters can have the chance to vote on this again,” he contended.
Justice Carlos Muñiz also expressed reservations about significantly altering the charter language.
“It just doesn’t seem like an argument — it’s just not a plausible way of looking at it,” Muñiz said.
While the appellants seek to overturn the tax in its entirety, lawyers representing the city of Tampa, Hillsborough County and the All For Transportation campaign are arguing the tax should be upheld in its entirety or, at the very least, that the lower court decision should stand.
Circuit Judge Rex Barbas ruled the tax constitutional last June, but he struck down some provisions of the charter that specifically allocated funds to various entities including the county, all three cities within the county and the Hillsborough Area Regional Transit Authority. He placed the authority to determine spending allocations on the Hillsborough County Commission arguing that’s what state law mandates. Barbas also rolled back authority placed on a citizen-led oversight committee charged with auditing spending plans to ensure they comply with the prescribed allocations.
The Hillsborough County Commission later voted to incorporate the original spending allocations through an interlock agreement, essentially restoring the tax to its original language.
Lawyers defending the tax, former Florida Supreme Court Justice Raoul Cantero on behalf of All For Transportation and former U.S. Sen. George LeMieux for Hillsborough County and the city of Tampa, had little opportunity to defend the tax in its entirety.
Instead, the two were left to answer Justice’s questions centering almost wholly on whether or not severing portions of the original charter maintained the will of the voters.
“I think that the County Commission can deem appropriate whatever allocation it wants and I think the amendment [makes that clear,]” LeMieux said referring to arguments that the original charter language usurped state mandated spending authority.
Cantero further argued that no funds were distributed from the new tax revenue until after Hillsborough County Commissioners voted to uphold the original spending allocations. He also pointed out that Commissioners could have approved different spending allocations, as indicated by White’s no-vote on the original provisions.
But a third Justice chimed in to argue that if that had been the intent, the amendment should have reflected so in its original language.
“This is a strange way of writing this,” Justice Ricky Polston quipped.
A decision can only be handed down if there is a four-Justice majority opinion.
In the event of a 3-2 decision, Justices may wait for two new Justices to be appointed to the court, which is pending.
Gov. Ron DeSantis will select from a group of nine finalists to replace former Justices Barbara Lagoa and Robert Luck. The Florida Supreme Court Judicial Nominating Commission named the finalists Jan. 23 and DeSantis has 60-days to make his selection.
That timing coincides with the time frame current Justices are expected to make their decision on the All For Transportation case.
With Canaday and Muñiz’s statements during Wednesday’s oral arguments, it’s possible, if not likely, All For Transportation will not reach a four person majority in their favor. That leaves the possibility of either a 4-1 ruling in favor or partial favor of appellants or a 3-2 split that will require additional weigh in from the two new Justices once they are appointed.
The final ruling comes down to several options. Justices could side with All For Transportation entirely and uphold the entire amendment as it was originally written, overturning the lower court decision. They could also uphold the tax without the spending allocations as the lower court ruled. Justices could also side with White and Emerson and strike down the tax altogether or further scale back the charter language.
Despite the overall tone of Wednesday’s arguments, the All For Transportation team remains confident the will of voters will be upheld.
“From day one, All for Transportation has complied with law and we are looking forward to putting the efforts to silence the citizens’ voices behind us and finally address the growing transportation problems that caused nearly 60-percent of Hillsborough County voters to support our plan,” All For Transportation chair Tyler Hudson said.