TAMPA — After listening to six hours of argument over whether or not a voter-approved sales tax for transportation usurps the legal powers of county commissioners, Hillsborough Circuit Judge Rex Barbas kept the promise he made to his wife and pulled the plug on Friday’s hearing by 5:30 p.m.
But the litigants aren’t done arguing yet. The remaining legal challenges and final arguments were postponed to a second hearing scheduled for May 31.
The one-cent sales tax to fund transportation projects was approved by 57 percent of voters, or 282,753 residents, on Nov. 6. But the judge’s decision turned taxpayers’ five-month-long wait for a legal ruling on the tax’s validity into six.
Barbas further tampered expectations with a prediction: Regardless of what he decides, the end of the legal tussling over the transportation tax is still months away.
“(It) is going to be appealed by one side or the other,” Barbas said. “I’d be willing to bet good money.”
Much of the discussion Friday focused on whether the charter amendment that added a penny to the county’s local sales tax takes Constitutional powers away from elected county commissioners and gifts it instead to an appointed citizen committee tasked with vetting how that money is spent.
Opponents of the tax also argued that the referendum's ballot language mislead voters about strict restrictions on what types of projects the tax will fund, and urged the judge to prevent any revenue raised from being bonded for future projects.
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Still, those arguments and objections got their day in court five months after the controversial tax went into effect on New Year’s Day, and weeks into the county commission's planning for next fiscal year’s budget. The state has already collected millions under the tax and sent it to the Hillsborough Clerk of the Circuit Court, which has dispersed the money to the various transportation agencies stipulated in the charter. Both advocates and opponents of the tax agree that giving that money back to the taxpayers, at this point, would be impossible.
“At a minimum, this tax has to survive,” said Tampa city attorney Jerry Gewirtz. “It’s just a question of what form.”
Questions about the constitutionality of the tax, which is poised to raise an estimated $280 million annually to fund transportation improvements, surfaced almost immediately after the November election.
Hillsborough County Commissioner Stacy White campaigned against the tax and ultimately filed a lawsuit on Dec. 4, naming 11 defendants including the county he represents, the state’s Department of Revenue, the Hillsborough Area Regional Transit Authority bus agency, and the cities of Tampa, Plant City and Temple Terrace.
Barbas ruled in March that White could not challenge the tax in his official capacity as a commissioner. So White filed an amended complaint as a citizen. Then, that hearing was combined with a bond validation lawsuit the county brought against itself in an effort to have a judge determine the legality of the tax as quickly as possible.
That means that, in addition to deciding the legality of the charter amendment in its current form, the judge will also have the ability to strike any portions of the amendment that he believes violate state law. The judge cannot add any language to the amendment, but has the power to delete language that could drastically alter the way the voter-approved tax revenue is spent.
The case involves White, the county, and the 10 other defendants in his case — many of whom have to wait until the next hearing to make their case before the judge. Still other citizens have filed separate lawsuits challenging the tax's validity and have become "intervenors" in the case.
From the start of Friday's hearing, the judge made his intentions for the proceedings clear.
“This is not a political function. I'm here to decide whether it's constitutional,” Barbas said. “I'm not making a tax. I'm not removing a tax. I'm making a determination as to whether it's a legal tax. I understand what the vote was, but our state constitution ... the state constitution is the primary zone under which all laws must be passed.”
The hearing started with the county making the case for the bond validation. It also included testimony from seven residents — all but one opposed to the tax — who said the ballot language was confusing, the oversight committee unconstitutional and that bonds should not be issued.
“I do not want to be put under, as a county resident, under an unlawful tax that is overseen by an unlawful and unaccountable citizen committee,” conservative activist and former bus agency board member Karen Jaroch said. “I don't want any bonds to be issued based on revenue that can be overturned.”
Barbas would not allow White's lawyer, Chris Altenbernd, to enter into evidence transcripts from three county meetings, ruling they would be hearsay, that the statements were made outside of court. The transcripts were from meetings where commissioners discussed an interlocal agreement for the tax revenue, transportation projects and the bond validation.
“It's the board of county commission ... that knows the complexity of transportation problems in the county,” Altenbernd said.
White’s attorney focused his arguments on whether the charter amendment contradicts state law by taking power away from the county commission to decide what transportation projects the tax should pay for. Altenbernd also challenged wording in the charter amendment that dictates how much tax money can be spent in five specific categories, restrictions that he called illegal “because it takes power from the county commission.”
But Dale Bohner, attorney for Hillsborough County Clerk of the Circuit Court Pat Frank, gave the court an alternative interpretation of the state law at the base of White's legal arguments.
Statutes state that proceeds from the transportation sales tax should be spent “as the county commission deems appropriate.” While White's lawyer argued that language gives commissioners — and no other entity — the ultimate say on how to spend tax revenue, Bohner argued that the passage was meant only as a clarification, not general law.
Hillsborough County attorney Alan Zimmet argued that the charter amendment supplements state law rather than contradicts it. He also said White can’t prove beyond a reasonable doubt that the charter amendment is invalid.
As for White’s criticism of the ballot language, Zimmet said the 75-word explanation is only expected to relay the chief purpose of the referendum — not outline every detail.
“Really, the burden is on the voters to go find additional information,” Zimmet said.
Barbas asked several questions throughout the morning, in addition to cracking multiple jokes — his way of cutting tension. “It’s just my way of dealing with pressure," the judge said. "And believe me, this case has a lot of pressure. So I’m going to joke a lot.”
The judge did tell the court he was considering whether the charter amendment is severable and would allow for certain portions, like the oversight committee or the percent of revenue allocated to each spending category, to be stricken as unconstitutional while still upholding the rest of the charter.
Zimmet encouraged the judge to consider doing just that if he finds a single aspect of the amendment invalid. But White's attorneys argued the resulting statute would bear very little resemblance to what voters approved.
“When you take these things out, there is nothing left that is valid to support,” Altenbernd said. “Quite frankly, it should have never been on the ballot.”
"I can have another term, but depending on how the voters feel about my ruling, this could be my swan song," Barbas said at the close of Friday's hearing.
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