Advisory Opinion re 1.35% Property Tax Cap

• Decision Date: 30 January 2009
• Docket Number: No. SC08-1153.,No. SC08-1239.,SC08-1153.,SC08-1239.
• Parties: ADVISORY OPINION TO the ATTORNEY GENERAL RE 1.35% PROPERTY TAX CAP, UNLESS VOTER APPROVED.
• Court: Florida Supreme Court

2 So.3d 968

ADVISORY OPINION TO the ATTORNEY GENERAL RE 1.35% PROPERTY TAX CAP, UNLESS VOTER APPROVED.

No. SC08-1153.

No. SC08-1239.

Supreme Court of Florida.

January 30, 2009.

Bill McCollum, Attorney General, Louis F. Hubener, Solicitor General, Tallahassee, FL, for Petitioner.

Robert H. Fernandez of Robert H. Fernandez, P.A., Coral Gables, FL, and Daniel J. Woodring of Woodring Law Firm, Tallahassee, FL, for Cut Property Taxes Now, Inc. and Supporters, The National and Florida Taxpayers Unions, Sponsor.

Stephen H. Grimes of Holland and Knight, LLP, Tallahassee, FL, on behalf of Florida League of Cities, Inc., Florida Association of Counties, Inc., and Florida School Board Association, as Opponents.

PER CURIAM.

The Attorney General of Florida has requested this Court's opinion as to the validity of an initiative petition circulated pursuant to article XI, section 3 of the Florida Constitution. We have jurisdiction. See art. IV, § 10, art. V, § 3(b)(10), Fla. Const. For the reasons expressed below, we conclude that the proposed amendment is exempt from the single-subject requirement of article XI, section 3 of the Florida Constitution, but the ballot summary is misleading and does not comply with section 101.161(1), Florida Statutes (2007), and should not be included on the ballot.

I. FACTS

Cut Property Taxes Now, Inc. (CPTN) sponsored an initiative petition to amend the Florida Constitution pursuant to the initiative petition process contained in article XI, section 3 of the Florida Constitution. The initiative petition seeks to amend the Florida Constitution to establish a 1.35% property tax cap, unless a greater percentage is approved by voters. After the petition was filed with the Secretary of State, the Secretary advised the Attorney General that the initiative petition met the registration, submission, and signature criteria set forth in section 15.21, Florida Statutes (2007). In accordance with the provisions of article IV, section 10 of the Florida Constitution, and section 16.061, Florida Statutes (2007), the Attorney General petitioned this Court for a written opinion as to whether the proposed amendment complies with the single-subject requirement of article XI, section 3 of the Florida Constitution and as to whether the ballot title and summary of the proposed constitutional amendment comply with section 101.161(1), Florida Statutes (2007).

The full text of the proposed amendment reads as follows:

Article VII, Section 9 of the State Constitution is amended by adding a new Paragraph (c) to read:

ARTICLE VII FINANCE AND TAXATION

Section 9. Local taxes.—

(c) Notwithstanding any other provision contained in this Constitution, the maximum amount of all ad valorem taxes collected by counties, school districts, municipalities, and special districts on any parcel of real property shall not, when combined, exceed 1.35% of the parcel's highest taxable value. The term "taxable value" refers to the value of real property to which millage rates are applied. The Legislature shall, by general law, provide for the distribution of tax revenues derived from parcels for which the combined ad valorem tax levies exceed 1.35% of the parcel's highest taxable value. This subsection does not apply to ad valorem taxes levied for the payment of bonds issued pursuant to Section 12 of this Article or levied for periods not longer than two years when authorized by a vote of the electors.

The ballot title for the proposed amendment is "1.35% property tax cap, unless voter approved." The ballot summary for the proposed amendment states:

Provides that the property tax on any parcel of real property shall never exceed 1.35% of the highest taxable value of the property. This property tax limit shall apply to all property taxes except property taxes approved by voters. Distribution of revenue from parcels that have reached the 1.35% limit shall be determined by general law. Does not amend Save Our Homes, the Homestead Exemption, or any other exemption.

In accordance with the requirements of section 100.371, Florida Statutes (2007), the Financial Impact Estimating Conference transmitted its financial impact statement (FIS) with respect to the initiative to the Attorney General. The Attorney General also petitioned this Court for an advisory opinion as to whether the FIS complies with the requirements of article XI, section 5, subsection (b) of the Florida Constitution and section 100.371, Florida Statutes (2007).

II. GOVERNING LAW

Article XI, section 3 of the Florida Constitution gives Florida citizens the power to propose a revision or amendment to the constitution through the initiative process. Article IV, section 10 requires the Attorney General to request an opinion of this Court as to the validity of any initiative petition circulated pursuant to article XI, section 3. In turn, article V, section 3, subsection (b)(10) of the Florida Constitution requires this Court to render that advisory opinion. The Court's inquiry in such cases is limited to two issues: (1) whether the amendment violates the single-subject requirement of article XI, section 3 of the Florida Constitution, and (2) whether the ballot title and summary violate the requirements of section 101.161(1), Florida Statutes (2007). See, e.g., Advisory Op. to Att'y Gen. re Funding of Embryonic Stem Cell Research, 959 So.2d 195, 197 (Fla.2007); Advisory Op. to Att'y Gen. re Referenda Required for Adoption and Amendment of Local Government Comprehensive Land Use Plans, 902 So.2d 763, 765 (Fla.2005).

In addressing these two issues, the Court's inquiry is governed by several general principles. First, the Court will not address the merits or wisdom of the proposed amendment. Advisory Op. to Att'y Gen. re Treating People Differently Based on Race in Pub. Educ., 778 So.2d 888, 891 (Fla.2000). 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 & Rehab. for Non-Violent Drug Offenses, 818 So.2d 491, 498-99 (Fla. 2002); see also 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. . . .").

A. Single-Subject Rule

Article XI, section 3 of the Florida Constitution provides in relevant part:

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 limitation exists because the citizen initiative process does not afford the same opportunity for public hearing and debate that accompanies the other constitutional proposal and drafting processes. See Advisory Op. to the Att'y Gen. re Fish & Wildlife Conservation Comm'n, 705 So.2d 1351, 1353 (Fla.1998). The single-subject provision "is a rule of restraint designed to insulate Florida's organic law from precipitous and cataclysmic change." In re Advisory Op. to Att'y Gen.—Save Our Everglades, 636 So.2d 1336, 1339 (Fla.1994). The single-subject rule prevents an amendment from (1) engaging in "logrolling" or (2) "substantially altering or performing the functions of multiple aspects of government." Advisory Op. to Att'y Gen. re Fla. Transp. Initiative for Statewide High Speed Monorail, 769 So.2d 367, 369 (Fla.2000).

Exemption

The Florida Constitution exempts from the single-subject requirement a citizen's initiative that limits the power of government to raise revenue. See Art. XI, § 3 Fla. Const.¹ The proponent asserts that the proposed initiative is exempt from the single-subject requirement because it directly limits the power of government to raise revenue. In response, the opponent argues that the proposed initiative is not exempt because it substantially affects multiple branches of government and multiple functions performed by different levels of government. In Advisory Op. to the Att'y Gen. re People's Property Rights Amendments, 699 So.2d 1304 (Fla.1997) (People's Property Rights Amendments), this Court addressed an initiative petition to amend the Florida Constitution to require voter approval of all new state, local or other taxes. The proponent contended that this initiative came within the exception to the single-subject requirement because it was a proposal to limit the government's ability to raise revenue. This Court noted that in order to meet this exception an initiative's focus must involve only methods of revenue raising. See id. at 1310. Therefore, the Court reasoned the exception would not apply to a revenue-limitation initiative if that initiative also substantially changed the powers or functions of more than a single level or branch of government. See id. This Court found that the initiative in People's Property Rights Amendments affected subjects other than methods of revenue raising. This Court also found that the initiative would have a significant impact on the home-rule powers granted to local government in our constitution. See id. (citing Advisory Op. to Att'y Gen. re Tax Limitation, 644 So.2d 486, 492-93 (Fla. 1994) (Tax Limitation I); Harris v. City of Sarasota, 132 Fla. 568, 181 So. 366, 369 (1938)). The Court reasoned that because the initiative impacted several branches of government and several levels of government, the initiative did not fall within the exemption to the single-subject rule and that it...