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Judge might strike 'tax swap' amendment from November ballot

By Alex Leary, Times Staff Writer
In print: Thursday, August 14, 2008

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TALLAHASSEE — A controversial property tax cut proposal could have trouble making it on the November ballot, if a judge's skepticism on Wednesday is any guide.

Leon County Circuit Judge John C. Cooper, who is expected to rule today, appeared receptive in court to opponents of Amendment 5, who are seeking to strike the so-called tax swap from the ballot.

The measure calls for eliminating most school property taxes for at least a 25 percent tax cut for all property owners. The Legislature would have to replace the money, an estimated $9-billion to $11-billion, by increasing the sales tax and raising other revenue or cutting the budget.

Almost immediately after the 90-minute hearing began, Cooper started to pick apart the wording of the ballot summary, agreeing it could mislead voters. He mainly faulted a provision that states that the lost funding for schools would be replaced with an "equivalent hold harmless amount."

But the proposal only guarantees school funding in year 2010-2011. It then directs the Legislature to come up with a way to fund schools for future years. Voters, Cooper said, might not understand that.

"Doesn't the public ultimately have to be told what it's being asked to decide?" Cooper asked.

Former state Sen. John McKay, who helped create the proposal as a member of the Taxation and Budget Reform Commission, said the guarantee was limited to one year because school enrollments change and lawmakers need flexibility.

"This was soberly thought out," the Bradenton Republican told reporters.

The lawsuit seeking to strike the ballot measure was filed by a coalition that includes Associated Industries of Florida, Florida School Boards Association, Florida Chamber of Commerce and about 2 dozen other groups.

McKay said the plaintiffs were just trying to hold onto their sales tax exemptions (bottled water and chartered fishing tours, for example, are not taxed) or prevent a tax on services.

But Cooper seemed to be sympathetic to arguments made by the coalition's attorney, Barry Richard.

He said the 15-word ballot title only describes two of the five changes. Unmentioned, for example, is a provision cutting in half another discretionary property tax available to local governments for funding schools. The summary makes a brief mention.

Defense lawyers noted the taxation commission, appointed by the governor and Legislature, is not bound by a single ballot subject and said the description does not have to include every detail.

"This is a listing of what is in the amendment," defense attorney Mark Herron, said of the ballot summary. "Does it specifically list every nuance and every detail? I would agree with everyone in the courtroom that it doesn't."