Court signals doubt on tax 'swap' ballot item

TALLAHASSEE — The Florida Supreme Court on Wednesday strongly signaled it would permanently remove a property tax "swap" from the November ballot.

It also cast doubt on two other controversial ballot questions related to school vouchers. Rulings are expected by Friday so the statewide ballot can be finalized.

The property tax proposal, known as Amendment 5, was discarded by a Circuit Court judge last month on the grounds that it could mislead voters into thinking school funding would be guaranteed after the first year the plan would take effect, 2010-11.

But that guarantee is good for the first year only. "It's not a lifetime warranty, it's a limited warranty," Justice Charles Wells said.

After that, the Legislature would have to come up with a way to replace revenue lost by eliminating most school property taxes, for an average property tax cut of 25 percent. Options include a 1-cent sales tax increase.

"As I'm going to vote, I read this and I say, 'Well, why shouldn't I do this?' " said Justice Harry Lee Anstead. "Then I find out the fine print says they only have to do that for one year. After that, we have a problem. Why isn't that misleading?"

Mark Herron, one of the lawyers defending the measure, called the ballot title a "caption" and said voters would read it along with the 75-word summary to grasp the idea.

"We're not hiding the ball here," Herron asserted. "This amendment does exactly that: It eliminates and it replaces."

Proponents have argued that the Legislature would need flexibility to adjust funding as school populations change. They point to assurances from lawmakers that schools will be fully funded, something critics say is not enough.

Amendment 5 was placed on the ballot this spring by the Taxation and Budget Reform Commission, which meets every 20 years.

While the plan has gotten the most attention, the commission also stirred controversy by passing plans to amend the state Constitution to allow for private-school vouchers.

Those amendments, 7 and 9, were also before the Supreme Court on Wednesday and drew equal skepticism from justices, mostly about whether the commission had authority to veer past issues dealing with taxes and the budget.

Amendment 7 would repeal a constitutional ban on state financial aid to churches and religious organizations. Amendment 9 would remove language from the state Constitution that the Florida Supreme Court used in 2006 to bar then-Gov. Jeb Bush's Opportunity Scholarship program. The measure also has language requiring that 65 percent of school budgets be spent in the classroom.

The same Circuit Court judge who threw out Amendment 5 ruled that Amendments 7 and 9 could stay on the ballot. That drew an appeal from a coalition of school and religious groups concerned about a breakdown in the separation of church and state.

Though the ballot title for Amendment 7 — dealing with "religious freedom" — was not under challenge, Justice Barbara Pariente called it "about as far afield as you can get" from the taxation commission's duties.

Likewise, Justice Anstead questioned how the 65 percent provision fit with the commission's duties. If the authority to direct expenditures was taken too broadly, he asked, why couldn't the commission propose 100,000 new police officers?

But Scott Makar, the state solicitor general, argued that the commission has a "broad and remedial" purpose and that voucher amendments were germane.

"In the end," he said, "it's a funding issue."

Court signals doubt on tax 'swap' ballot item 09/03/08 [Last modified: Wednesday, September 3, 2008 2:22pm]

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