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Justices question validity of Hillsborough transportation tax

The state Supreme Court heard a challenge to the measure that voters approved in November 2018.

TALLAHASSEE — Is it the will of the voters or a fatally flawed ballot question?

Florida Supreme Court justices fired off dozens of questions during a hearing Wednesday morning to determine whether to uphold a one-cent transportation tax that Hillsborough County voters approved in November 2018.

Many of the questions, asked as attorneys made oral arguments, focused on two issues: whether restrictions on how to spend the tax revenue can be removed while leaving the tax in place and whether the measure presented to voters violated state law.

Related: Florida Supreme Court to decide future of Hillsborough's transportation tax

The hearing lasted less than an hour and was the final stop in a 14-month legal battle that began soon after 57 percent of Hillsborough voters said yes to the sales tax increase.

The measure is expected to raise $280 million a year over 30 years for transit, bike, pedestrian and road projects. But in separate lawsuits, Hillsborough resident Bob Emerson and Hillsborough County Commissioner Stacy White argued that the tax is unconstitutional and usurps power granted only to the County Commission.

The legal team challenging Hillsborough County's transportation tax rises as Florida's Supreme Court justices enter the courtroom in Tallahassee on Wednesday. From left are Derek Ho, Christ Altenbernd, appellants Bob Emerson and Stacy White, Martin Garcia and Howard Coker. [ CAITLIN JOHNSTON | Times ]

During questioning this morning, Justice Alan Lawson asked whether the Supreme Court should give great deference to the will of the voters who enacted the measure.

Representing the appellants, Tampa attorney Chris Altenbernd agreed, but said that voters were given something that “a second-year law student should have been able to tell them was unconstitutional.”

At the heart of the issue is the argument by the appellants that the language of the sales tax measure illegally tied passage of the tax to a list of specific projects.

Related: Hillsborough’s transportation tax has a new opponent: the Florida House

Altenbernd, a retired state appellate judge, said the sponsor of the initiative, All For Transportation, "had its own agenda as to what it would want the proceeds to be used for.”

Tampa attorney Chris Altenbernd, a retired state appellate judge, speaks on behalf of client Stacy White before the Florida Supreme Court on Wednesday. White, a Hillsborough County commissioner, is challenging the voter-approved transportation sales tax. [ CAITLIN JOHNSTON | Times ]

Another appellants’ attorney, Derek Ho, told the justices, "The voters in the referendum tried to keep for themselves power that the Legislature said the commission should have.”

“It is clear from the text of the referendum itself that the voters thought the mandatory spending plan and the surtax were essentially joined at the hip,” Ho said.

Related: Tampa Bay has one of the worst public transit systems in America. Here’s why.

Chief Justice Charles Canady read out the state law requiring that county commissioners determine how the tax is spent.

“Doesn’t that seem to be just entirely different than what was presented here," Canaday said, "which was this elaborate scheme to control the dispensation of the funds?”

He added, “At the very best, what’s involved in this is deceptive double talk.”

But Canady also expressed sympathy with Hillsborough County and the prospect of new revenue for transportation improvements, calling it “an offer you can’t refuse.”

“It’s a rare group of public servants that would turn down $9 billion," Canady said, drawing laughter from the Supreme Court gallery.

The case reached the high court on an appeal that was supported by the state House of Representatives and Senate.

Hillsborough Circuit Judge Rex Barbas first heard the challenge, upholding the tax but striking down the list of expenditures as invalid. Both provisions are part of an amendment to the Hillsborough County Charter approved by voters.

All for Transportation has argued that the Supreme Court could follow the lower court’s direction and declare the tax lawful, even if it rejects the list of expendtures, because the Legislature gave citizens the right to put such a measure on the ballot.

Some of the justices asked Monday whether the list of expenditures can be severed to preserve the tax.

Attorney George LeMieux, a former U.S. senator representing Hillsborough County and the city of Tampa, argues before the Florida Supreme Court on Wednesday about Hillsborough's transportation tax. [ CAITLIN JOHNSTON | Times ]

Attorney George LeMieux, a former U.S. senator representing Hillsborough County and the city of Tampa, said, “Even with those changes, the purposes that are in the ballot summary, what the people voted on ... can still be achieved. And the voters’ will can be upheld for these badly needed transportation projects."

Another point of contention in the case is how to resolve apparent conflicts between state law and a voter-approved charter amendment like the sales tax.

Raoul Cantero, a former state Supreme Court justice who is representing All for Transportation, said he hopes the justices will read the provisions in the amendment that say in any such conflict, state law prevails. When commissioner White first brought his legal challenge, he said the amendment violated state law and he was trying to determine which of them to follow.

It’s unclear when a final ruling will be handed down from the high court. The court has only five justices until Gov. Ron DeSantis appoints two more to restore the full complement of seven. Agreement from four justices is needed to issue a ruling.

Meantime, local authorities have held off on spending any of the revenue collected since the one-cent tax took effect Jan. 1, 2019. So far, the tax has raised about $225 million.

Florida Sen. Tom Lee, R-Thonotosassa, who attended the Supreme Court hearing Monday, said the justices “seemed to cut right to the chase” with their questions about whether the amendment illegally tied the hands of commissioners during the 30-year life of the tax.

“This four-page ballot summary was riddled with prescriptive language ... that directed money in very specific ways,” Lee said.

Commissioner White also was in court today alongside fellow appellant Bob Emerson.

“My attorney made an incredibly compelling argument before the Florida Supreme Court,” White told the Tampa Bay Times in a written statement. “I am now anxiously awaiting an opinion from the court so that there is closure to this question of law.”

David Smith, attorney for the Hillsborough Area Regional Transit Authority, left, talks with All For Transportation members Tyler Hudson and Christina Barker outside the Florida Supreme Court on Wednesday. [ CAITLIN JOHNSTON | Times ]

Tyler Hudson, spokesman for All For Transportation, said he thinks the justices’ “pointed questions” reflected the novelty of the case.

This is is the first time that citizens in a Florida county have chosen to use the authority state lawmakers have given them to put a transportation tax on the ballot, Hudson said.

"The Legislature gave people the power to do this. To see it challenged is frustrating, but I’m still confident that what the people did was lawful.”