ADVISORY OPIN. TO ATTY. GEN. RE TAX EXEMP.

Decision Date15 July 2004
Docket NumberNo. SC04-947.,SC04-947.
Citation880 So.2d 630
PartiesADVISORY OPINION TO THE ATTORNEY GENERAL RE FAIRNESS INITIATIVE REQUIRING LEGISLATIVE DETERMINATION THAT SALES TAX EXEMPTIONS AND EXCLUSIONS SERVE A PUBLIC PURPOSE.
CourtFlorida Supreme Court

Charles J. Crist, Jr., Attorney General, Tallahassee, FL, for Petitioner.

Senator John McKay, Chair, and Thomas R. Julin and Talbot D'Alemberte, Tallahassee, FL, for Floridians Against Inequities in Rates, Proponents.

Cynthia S. Tunnicliff, Howard E. Adams, and Kimberly L. King of Pennington, Moore, Wilkinson, Bell and Dunbar, P.A.; and Victoria L. Weber, Dan R. Stengle, and David L. Powell of Hopping Green and Sams, P.A. on behalf Florida Association of Realtors, Inc.; Florida Institute of Certified Public Accountants and Florida Institute of Accountants, Inc.; Florida Phosphate Council, Inc.; National Federation of Independent Businesses, Inc.; Florida Minerals and Chemistry Council, f/k/a Florida Manufacturing and Chemical Council, Inc.; Florida Fruit and Vegetable Association, Inc.; Florida Farm Bureau Federation, Inc.; Florida Cattlemen's Association, Inc.; and Sunshine State Milk Producers, Inc., for Opponents.

PER CURIAM.

The Attorney General has requested this Court to review a proposed amendment to the Florida Constitution. We have jurisdiction. See art. IV, § 10; art. V, § 3(b)(10), Fla. Const. For the reasons expressed below, we hold the proposed amendment violates article XI, section 3, Florida Constitution, and section 101.161, Florida Statutes (2003).1

I. PROCEEDINGS TO DATE

Floridians Against Inequities in Rates ("FAIR"), a political committee registered pursuant to section 106.03, Florida Statutes (2003), has invoked the petition process of article XI, section 3, Florida Constitution, to propose a constitutional amendment through citizen initiative. The amendment would direct the Legislature to perform an open review of exemptions from and exclusions to the state's sales tax. The full text of the proposed amendment states:

BE IT ENACTED BY THE PEOPLE OF FLORIDA THAT:
ARTICLE III of the Florida Constitution is hereby amended to add the following as Section 20:
Legislative review and enactment of exemptions and exclusions from the sales tax.—
(a) FAIRNESS INITIATIVE. Except for the current exemptions provided for: food; prescription drugs; health services; and residential rent, electricity and heating fuel, which secure tax fairness, the Legislature shall, prior to July 1, 2007, and prior to the first day of July for each tenth year thereafter, review all exemptions and services or transactions excluded from the sales tax existing on or created subsequent to the effective date of this amendment. The Legislature shall reenact only those exemptions or adopt and continue only those exclusions that advance or serve the public purpose of: encouraging economic development and competitiveness; supporting educational, governmental, literary, scientific, religious, or charitable initiatives or institutions; or securing tax fairness. All exemptions or exclusions that are not reenacted or adopted and continued by the adoption of a law in conformity with the enactment requirements provided in this section shall be eliminated effective January 1 subsequent to the July 1 deadline established in this section for the review of all exemptions and exclusions. Each law creating or reenacting a sales tax exemption or creating or continuing an exclusion shall require approval by three-fifths vote of the membership of each house of the Legislature, shall contain the single subject-matter of a single exemption or a single exclusion and shall contain a factual determination that each exemption or exclusion advances or serves a public purpose as enumerated in this section.
(b) CONSTRUCTION. For purpose of this section:
(1) The term sales tax shall mean the tax on sales, use and other transactions levied by the state or authorized to be levied by a local government in chapter 212, Florida Statutes, as of January 1, 2003, except that the term sales tax shall not include the convention development tax, the local option food and beverage tax or the rental car surcharge provided in sections 212.0305, 212.0306, or 212.0606, Florida Statutes, or the taxation of: the sales of tangible personal property purchased for resale or imported, produced, or manufactured in this state for export; sales of real property; sales of intangible personal property; payment of employee salaries and benefits; or transactions subject to the communications services tax imposed in chapter 202, Florida Statutes.
(2) The term "exclusion" and the phrase "a service or transaction excluded from the sales tax" shall mean a sale or use of tangible personal property or the rendering of services for consideration that is not subject to the sales tax and not specifically exempted on the effective date of this amendment.
(3) To satisfy the enactment limitation of this section that each law shall contain only the single subject-matter of a single exclusion, each law adopting or continuing an exclusion from the sales tax shall include or reference the sale or use or the rendering of a service by a business, industry or profession with at least the same first four digits in its NAICS code number as described by the North American Classification System code published by the United States Census Bureau, or its successor in function.

The ballot title for the proposed amendment is "Fairness Initiative Requiring Legislative Determination that Sales Tax Exemptions and Exclusions Serve A Public Purpose." The summary for the proposed amendment states:

The Legislature shall periodically review sales tax exemptions or excluded services and transactions except: food; prescription drugs; health services; and residential rent, electricity, and heating fuel; and shall continue or create only exemptions or exclusions serving a defined public purpose. Each law shall contain the single subject of a single exemption or exclusion and be approved by three-fifths vote of each legislative house. Exemptions and exclusions not reenacted or adopted by the Legislature are eliminated.

The Florida Secretary of State submitted the amendment to the Florida Attorney General, pursuant to section 15.21, Florida Statutes (2003).

In accordance with the provisions of article IV, section 10, Florida Constitution, and section 16.061, Florida Statutes (2003), the Attorney General has petitioned this Court for an advisory opinion as to whether the text of the proposed amendment complies with article XI, section 3, Florida Constitution, and whether the proposed ballot title and summary comply with section 101.161, Florida Statutes (2003). FAIR has filed a brief in favor of the proposed amendment, and a number of interested parties have filed a joint brief opposing the placement of the amendment on the ballot.2

II. THIS COURT'S INQUIRY

When the Court is mandated to render an advisory opinion concerning a proposed constitutional amendment arising through the citizen initiative process, the Court must limit its inquiry to two issues: (1) whether the amendment violates the single-subject requirement of article XI, section 3, Florida Constitution, and (2) whether the ballot title and summary violate the requirements of section 101.161(1), Florida Statutes (2003). See, e.g., Advisory Op. to Att'y Gen. re Amendment to Bar Gov't From Treating People Differently Based on Race in Pub. Educ., 778 So.2d 888, 890-91 (Fla.2000).

In addressing these two issues, our inquiry is governed by several general principles. First, we do not consider or address the merits or wisdom of the proposed amendment. See, e.g., Amendment to Bar Gov't From Treating People Differently Based on Race in Pub. Educ., 778 So.2d at 891. Second, "[t]he Court must act with extreme care, caution, and restraint before it removes a constitutional amendment from the vote of the people." Askew v. Firestone, 421 So.2d 151, 156 (Fla.1982). Specifically, where citizen initiatives are concerned, "[the] Court has no authority to inject itself in the process, unless the laws governing the process have been `clearly and conclusively' violated." Advisory Op. to Att'y Gen. re Right to Treatment and Rehabilitation for Non-Violent Drug Offenses, 818 So.2d 491, 498-99 (Fla.2002); see also Amendment to Bar Gov't From Treating From Treating People Differently Based on Race in Pub. Educ., 778 So.2d at 891 ("In order for the Court to invalidate a proposed amendment, the record must show that the proposal is clearly and conclusively defective...."). Hence, our review is narrow and limited to the two questions set out above.

III. THE SINGLE-SUBJECT RULE

Article XI, section 3, Florida Constitution, sets forth the requirements for a proposed constitutional amendment arising via the citizen initiative process. This section contains the single-subject rule:

SECTION 3. Initiative.—The power to propose the revision or amendment of any portion or portions of this constitution by initiative is reserved to the people, provided that, any such revision or amendment, except for those limiting the power of government to raise revenue, shall embrace but one subject and matter directly connected therewith.

Art. XI, § 3, Fla. Const. (emphasis added). The single-subject requirement is a "rule of restraint" that was "placed in the constitution by the people to allow the citizens, by initiative petition, to propose and vote on singular changes in the functions of our governmental structure." Advisory Op. to Att'y Gen. re Prohibiting Public Funding of Political Candidates' Campaigns, 693 So.2d 972, 975 (Fla.1997) (quoting Fine v. Firestone, 448 So.2d 984, 988 (Fla.1984)). Specifically, the single-subject rule prevents an amendment from engaging in either of two practices: (a) logrolling, or (b) substantially altering or performing the functions of multiple branches of state government.

The single-subject rule prevents logrolling, "a...

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