Robert Emerson v. Hillsborough County, Florida, etc. & Stacy White v. Hillsborough County, Florida, etc. ( 2021 )

Supreme Court of Florida
____________
No. SC19-1250
____________
ROBERT EMERSON, et al.,
Appellants.
vs.
HILLSBOROUGH COUNTY, FLORIDA, etc., et al.,
Appellees.
____________
No. SC19-1343
____________
STACY WHITE,
Appellant.
vs.
HILLSBOROUGH COUNTY, FLORIDA, etc., et al.,
Appellees.
February 25, 2021
CANADY, C.J.
In these consolidated cases we consider the constitutional validity of an
amendment to the Hillsborough County Charter that was adopted in an initiative
election. Through that charter amendment the voters approved both a
transportation surtax and elaborate directives for allocating the tax proceeds. But
the spending directives are unconstitutional in that they conflict with a state law
that gives the county commission the authority to allocate such funds. Because it
cannot reasonably be said that the voters would have approved the tax without the
accompanying spending plan, we must strike the charter amendment in its entirety.
I. Background
The charter amendment enacted a one percent transportation sales surtax
coupled with various provisions governing the distribution and use of the proceeds
of the tax. Subsequently, the Hillsborough County Commission entered an
interlocal agreement “deem[ing] appropriate” the allocation of funds provided for
in the charter amendment. The commission then authorized the issuance of bonds
to be funded by a portion of the proceeds of the surtax. We have for review a
judgment of the circuit court validating the bonds. See art. V, § 3(b)(2), Fla. Const.
And we have accepted pass-through jurisdiction—based on the Second District
Court of Appeal’s certification that the case involved issues of great public
importance requiring immediate resolution by this Court—of a judgment of the
circuit court in a declaratory judgment action brought by opponents of the charter
amendment, which upheld the surtax levy but invalidated portions of the charter
amendment governing the use and distribution of surtax proceeds. See id. art. V,
§ 3(b)(5).
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The circuit court based its invalidation of portions of the charter amendment
on a conflict between the amendment and section 212.055(1), Florida Statutes
(2018), the statute authorizing enactment of the local transportation surtax by
referendum, which specifically grants the county commission discretion
concerning the application of surtax proceeds within the statutory framework.
Although the circuit court invalidated significant portions of the charter
amendment related to the allocation and use of tax proceeds, it nonetheless upheld
the validity of the surtax and certain other elements of the amendment, reasoning
that the surtax and the other provisions it found valid could properly be severed
from the invalid portions.
Contending that the trial court erred in its decision to sever the surtax and
other provisions of the amendment from those parts of the amendment that it
determined to be unconstitutional, the Appellants seek reversal of both trial court
judgments. Hillsborough County and Appellees/Cross-Appellants contend that the
trial court should have upheld the charter amendment in its entirety, arguing in the
alternative that the portions of the amendment severed and upheld by the trial
court—most importantly, the surtax levy—should not be disturbed.
We conclude that the charter amendment transgresses the authority reserved
to the county commission by the surtax statute and that no portion of the
amendment could properly be severed. Therefore, we reverse the declaratory
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judgment to the extent that it upholds any portion of the charter amendment, and
we reverse the bond validation judgment, which necessarily falls with the
invalidation of the surtax.
II. The Surtax Statute
Section 212.055(1)(a) authorizes charter counties to “levy a discretionary
sales surtax, subject to approval by a majority vote of the electorate of the county
or by a charter amendment approved by a majority vote of the electorate of the
county.” The discretionary surtax may be levied at a rate “up to 1 percent,”
§ 212.055(1)(b), and any “proposal to adopt a discretionary sales tax . . . must be
approved in a referendum held at a general election,” § 212.055(1)(c)1. Of crucial
importance to the issues presented in this case is the provision of section
212.055(1)(d) that the “[p]roceeds from the surtax shall be applied to as many or
as few of the uses enumerated” specifically in the statute “in whatever combination
the county commission deems appropriate.” (Emphasis added.) A wide range of
permitted transportation related uses are set forth in subsections 1 through 4 of
section 212.055(1)(d).
The statutory provisions related to the surtax must be viewed against the
backdrop of the specific recognition in the Florida Constitution of the Legislature’s
authority over taxation in the state. Article VII, section 1, subsection (a) of the
Florida Constitution provides that “[n]o tax shall be levied except in pursuance of
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law,” that “[n]o state ad valorem taxes shall be levied on real estate or tangible
personal property,” and that “[a]ll other forms of taxation shall be preempted to the
state except as provided by general law.” Moreover, counties shall “be authorized
by law to levy ad valorem taxes and may be authorized by law to levy other taxes,
. . . except ad valorem taxes on intangible personal property and taxes prohibited
by [the] constitution.” Art. VII, § 9(a), Fla. Const. So it is clear that the
Legislature has plenary authority regarding the surtax.
III. The Charter Amendment
The “surtax for transportation improvements” amendment to the
Hillsborough County Charter at issue here—codified as article 11 of the charter—
was adopted in a referendum conducted in the 2018 general election based on a
citizens’ initiative proposal. See Hillsborough County, Fla., Revised Charter art.
XI (2018). Article 11 contains a detailed scheme for managing the distribution and
use of the proceeds of the one percent sales surtax. Id. As stated in article 11’s
purpose section, the “purpose of the surtax” is identified as funding a variety of
categories of “transportation improvements throughout Hillsborough County.” Id.
§ 11.01. In connection with this broadly stated purpose, article 11 states that “[t]he
proceeds of the surtax shall be distributed and disbursed in compliance with
[section 212.055(1), Florida Statutes,] and in accordance with the provisions of . . .
article 11.” Id.
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The provision establishing the levy of the surtax specifies that all proceeds
of the tax “shall be expended only as permitted by this article 11, [section
212.055(1), Florida Statutes], and in accordance with the purpose set forth” in the
amendment. Id. § 11.02. The surtax, which had an effective date of January 1,
2019, “shall remain in effect for a period of thirty (30) years.” Id. § 11.03.
Article 11 contains an elaborate scheme with provisions governing the
distribution to various entities of surtax proceeds, provisions governing the use by
those entities of the funds distributed, and provisions establishing and empowering
an independent oversight commission (IOC). The proceeds of the tax are
designated for distribution in three “portions”—the general purpose portion, the
transit restricted portion, and the planning and development portion. See id.
§ 11.05. Under the distribution formula, 54% of the tax proceeds—the general
purpose portion—are to be “distributed to the [c]ounty and each [m]unicipality in
accordance with their relative populations” pursuant to a statutory formula set forth
in section 218.62, Florida Statutes (2018), to be expended “in accordance with”
article 11. Id. § 11.05(1).
The transit restricted portion consists of 45% of the proceeds, which are
designated for distribution to the Hillsborough Area Regional Transit Authority
(HART) to “be expended by HART in accordance with” article 11. Id. § 11.05(2).
Finally, one percent of the proceeds are designated for the planning and
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development portion, which is to be distributed to “the metropolitan planning
organization [MPO] . . . whose jurisdiction includes Hillsborough County,” and
“shall be expended by the MPO on planning and development purposes” to assist
the other entities receiving funds and the IOC “in carrying out the purpose set
forth” in the purpose section of article 11. Id. § 11.05(3).
Each agency receiving proceeds is required to submit an annual agency
“Project Plan” governing its use of proceeds, which must be approved by the IOC.
Id. § 11.06. Detailed provisions establish the specific transportation-related uses to
which the general purpose portion and the transit restricted portion of the proceeds
are to be devoted. See id. §§ 11.07-11.08. The specific details governing use of
the proceeds are of no moment to the issues presented in this case.
The IOC is established to provide “independent oversight of the distribution
and expenditure” of the proceeds of the surtax. Id. § 11.10. The IOC is given the
duty to review an annual audit provided for by article 11 and to “make findings”
concerning compliance “with the terms of” article 11, including a determination of
whether the proceeds “have been distributed as provided” in the article, and
whether the proceeds “have been expended in compliance with applicable state
law, [the] Article, and any additional requirements that [a receiving entity] may
have lawfully adopted.” Id. § 11.10(1). In addition, the IOC may, by a two-thirds
majority vote, direct the suspension of proceeds (other than any portion of such
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proceeds “encumbered by bond indebtedness”) if it determines “that an [a]gency
has failed to comply with any term or condition of . . . article 11” and the
noncompliance remains uncorrected for a specified period. Id. § 11.09.
Two additional provisions of article 11 are related to arguments presented in
this case. One provision specifically addresses the issue of severability, and the
other recognizes the supremacy of state law. The severability provision is as
follows:
To the extent that any mandated expenditure category set forth in
[s]ection 11.07 or 11.08 is deemed by a court of competent
jurisdiction to be an impermissible use of [s]urtax [p]roceeds, the
funds allocated to such impermissible use shall be expended by the
applicable [a]gency on any project to improve public transportation
permitted by [section 212.055(1), Florida Statutes,] and this Article.
Id. § 11.11(2). The provision of article 11 regarding state law supremacy states,
“article 11 shall at all times be interpreted in a manner consistent with the laws of
Florida, and in the event of any conflict between the provisions of this article 11
and the laws of Florida, the laws of Florida shall prevail.” Id. § 11.11(3).
The issue of severability is also addressed in a separate provision adopted
when the Hillsborough County Charter was initially enacted. That provision states,
“It is the intent of the electorate in adopting this Charter that if any section,
subsection, sentence, clause, term or word of this Charter is held invalid, the
remainder of the Charter shall not be affected.” Id. § 9.05.
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IV. The Arguments
The opponents of article 11 contend that the circuit court erred in severing
the surtax provision and certain other provisions of article 11 from the portions it
declared unconstitutional. According to the opponents, the purpose of the surtax
was to fund the transportation plan in accordance with the distribution formula and
use restrictions. According to the opponents, once crucial elements of the structure
established by article 11—including the distribution formula—were recognized to
violate the authority of the Hillsborough County Commission to decide how surtax
proceeds should be spent, the fundamental design of article 11 was vitiated, and it
therefore must be judged unconstitutional in its entirety.
The proponents of article 11 argue that no inconsistency exists between
article 11 and the requirements of the surtax statute and that the circuit court
therefore erred in declaring any portion of article 11 unconstitutional. They
contend that article 11 merely supplements the requirements of the statute rather
than contradicting them. To resolve any inconsistency between the charter
amendment and the surtax statute, they also rely on provisions of article 11 that
refer to compliance with state law as well as the supremacy clause contained in
article 11. They argue that these provisions allow any unconstitutional elements to
be read out of article 11, leaving the rest of the article undisturbed. And they
contend that any such inconsistency is cured by the county commission’s approval
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of the interlocal agreement deeming the allocation of funds under article 11 to be
appropriate. The proponents of article 11 also argue that the challenged provisions
of article 11 are justified by a statutory provision that authorizes charter limitations
on the broad general legislative powers granted to the county commissions of
charter counties.
The proponents of article 11 further contend that even if portions of the
measure are unconstitutional, the trial court’s severability analysis was correct, and
the validity of the surtax and the other portions of article 11 severed and preserved
by the circuit court should therefore be upheld. In brief, they contend that
severance was appropriate because the primary purpose of article 11 was to
provide funding to meet the needs for transportation infrastructure in Hillsborough
County and that purpose can be carried out even without the portions of article 11
invalidated by the circuit court. They also contend that the specific severability
clause in article 11, as well as the general severability clause in the county charter,
require preservation of the tax levy.
V. The Constitutional Violation
Our constitution provides that “[c]ounties operating under county charters
shall have all powers of local self-government not inconsistent with general law”
and that “[t]he governing body of a county operating under a charter may enact
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county ordinances not inconsistent with general law.” Art. VIII, § 1(g), Fla. Const.
As we said in State v. Sarasota County, 549 So. 2d 659, 660 (Fla. 1989):
A charter provision or ordinance of a charter county will be
unconstitutional under article VIII, section 1(g) of the Florida
Constitution, if it is “inconsistent with general law.” We have
consistently construed this phrase to mean “contradictory in the sense
of legislative provisions which cannot coexist.” Laborers’ Int’l Union
of North America, Local 478 v. Burroughs, 541 So. 2d 1160 (Fla.
1989); State ex. rel. Dade County v. Brautigam, 224 So. 2d 688, 692
(Fla. 1969).
A local ordinance or charter provision that interferes with the operation of a statute
“cannot coexist” with that statute. In brief, the Florida Constitution prohibits any
charter county from supplanting or overriding state law through either an ordinance
or a charter provision.
Core provisions of article 11 directly clash with the surtax statute’s
assignment to county commissions of authority to direct the application of surtax
revenues to various permitted uses. Under the statute, “[p]roceeds from the surtax
shall be applied to as many or as few of the uses enumerated” specifically in the
statute “in whatever combination the county commission deems appropriate.”
§ 212.055(1)(d), Fla. Stat. Most saliently, this statutory provision is inconsistent
with the provisions in sections 11.05, 11.06, 11.07, 11.08, 11.09 and 11.10 of
article 11, which together establish a detailed scheme governing and enforcing the
distribution and use of surtax proceeds. These provisions of article 11 “cannot
coexist” with section 212.055(1)(d). All these provisions of the article fly in the
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face of the commission’s statutory authority. Because the charter provisions are
“inconsistent with general law,” they are unconstitutional. Art. VIII, § 1(g), Fla.
Const.
The situation here is not one in which “the county simply chose to legislate
in an area where the Legislature chose to remain silent.” Phantom of Brevard, Inc.
v. Brevard Cnty., 3 So. 3d 309, 315 (Fla. 2008). Nor is it a situation in which the
charter merely adopted “additional standards . . . without being in conflict with the
minimum statutory requirements established by the Legislature.” Sarasota All. for
Fair Elections, Inc. v. Browning, 28 So. 3d 880, 888 (Fla. 2010). Likewise, this is
not a charter amendment that is invalid in a particular application but valid in other
applications. See D’Agastino v. City of Miami, 220 So. 3d 410 (Fla. 2017).
The offending charter provisions do not merely supplement or complement
the statute. And they cannot sometimes be validly applied. If given effect, these
provisions of article 11 would supplant the authority of the county commission
established by the statute. And none of our decisions uphold any such
displacement by a charter provision of county commission authority specifically
conferred by statute.1
1. Sarasota All. for Fair Elections, Inc. v. Browning, 28 So. 3d 880 (Fla.
2010), is not to the contrary. It appears that a charter provision in question there
provided for “voter-imposed restrictions on the Sarasota County Board of
Commissioners not permitted by the statute.” Id. at 893 (Polston, J., concurring in
part and dissenting in part). But the majority opinion did not address the conflict
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The Legislature could have allowed the proceeds of the surtax to be
allocated based on provisions of a charter amendment, just as it allowed the surtax
to be adopted by charter amendment. But that is not the choice the Legislature
made in the surtax statute. Our constitution does not allow the displacement of the
choice the Legislature made in the statute.
Contrary to the contention of the proponents, neither article 11’s provision
recognizing the supremacy of state law nor its repeated references to compliance
with the surtax statute can be flourished like a magic wand to conjure away the
conflict between article 11 and the statute. The magic does not work.
It is not reasonable to read article 11 provisions such as section 11.01—
which requires that “proceeds of the surtax . . . be distributed and disbursed in
compliance with [section 212.055(1), Florida Statutes,] and in accordance with the
provisions of . . . article 11”—as obliterating provisions of article 11 that compose
the greater part of its text. (Emphasis added.) Section 11.01 as well as other
similar provisions of article 11 plainly contemplate that the distribution and
disbursement of surtax tax revenues “in compliance with” the statute can be
accomplished at the same time that distribution and disbursement is made “in
accordance with” article 11. There is no hint in this provision that anything in
with county commission authority and in fact concluded that any dispute over the
relevant charter provision had been rendered moot by subsequent legislation.
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article 11 would be required to yield to a conflicting provision of state law. On the
contrary, given the mandate in article 11 to comply with the provisions of both the
statute and the charter, section 11.01 and other similar provisions must be
understood to presume the harmonious operation of the surtax statute and the
provisions of article 11 governing the allocation and use of surtax proceeds.
Rather than the interpretation advanced by the proponents of article 11, it is most
reasonable to understand the references to the surtax statute in section 11.01 and
elsewhere in article 11 as designed to ensure that funds only be applied to uses
within the scope of the uses enumerated in the statute. See § 212.055(1)(d)1.–4.,
Fla. Stat.
The proponents of article 11 get no more traction with their argument based
on the supremacy clause found in section 11.11(3), which provides that article 11
“shall at all times be interpreted in a manner consistent with the laws of Florida”
and that “in the event of any conflict” “the laws of Florida shall prevail.” To the
extent that this provision recognizes that state law prevails over any conflicting
provision of article 11, it constitutes nothing more than a meaningless truism. To
the extent that the provision establishes a rule of interpretation, it is simply a
restatement of the presumption of validity, which requires that ambiguities in a text
be resolved in favor of a reasonable reading that avoids a determination of
invalidity. See State v. Fuchs, 769 So. 2d 1006, 1008 (Fla. 2000) (“It is well
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established that, where reasonably possible, a statute will be interpreted in a
manner that resolves all doubts in favor of its constitutionality.”); State v. Lick, 390
So. 2d 52, 53 (Fla. 1980) (“[W]here the statute is reasonably susceptible of two
interpretations, one of which would render it invalid and the other valid, we must
adopt the constitutional construction.”); Antonin Scalia & Bryan A. Garner,
Reading Law: The Interpretation of Legal Texts 66 (2012) (“An interpretation that
validates outweighs one that invalidates (ut res magis valeat quam pereat).”). This
is a rule of interpretation—not, as the proponents of article 11 would have it, a rule
of revision. And as a rule of interpretation, it cannot justify the wholesale excision
of the bulk of article 11.
We reject the argument that the Hillsborough County Commission could
cure the constitutional infirmity in article 11 by entering the interlocal agreement
“deem[ing] appropriate” the allocation of funds mandated by article 11. The
attempt by way of the interlocal agreement to ratify and cure an unconstitutional
measure is as ineffectual as the unconstitutional measure itself. A county
commission cannot legalize a measure that is “inconsistent with general law.” To
approve such a course of action would be in derogation of the constitutional
authority of the Legislature. It would incentivize the manipulation and coercion of
the exercise of county commission authority by way of an unconstitutional charter
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provision. That would make a mockery of the surtax statute. Notwithstanding the
interlocal agreement, the taint of unconstitutionality remains.
We are also unpersuaded by the argument offered by proponents of article
11 based on the statutory provision that authorizes charter limitations on the broad
general legislative powers granted to county commissions. This provision is found
in section 125.86, Florida Statutes (2019), a statute establishing general legislative
powers of the county commissions in charter counties. After enumerating a
number of powers, the statute provides that the legislative powers of county
commissions extend to “[a]ll other powers of local self-government not
inconsistent with general law as recognized by the Constitution and laws of the
state and which have not been limited by the county charter.” § 125.86(8). This
merely recognizes that a charter provision may limit the exercise by a county
commission of unenumerated “powers of local self-government not inconsistent
with general law.” But the power of the county commission at issue here—that is,
the power to allocate the proceeds of the surtax—does not fall within the scope of
such unenumerated “powers of local self-government.” Rather, it is a specific
power conferred directly on the county commission, as distinct from the county, in
a statute that authorizes the enactment of the surtax—but not the allocation of
funds—by charter amendment. Nothing supports the conclusion that the general
provisions of section 125.86 defeat the specific provisions of the surtax statute.
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Article 11’s elaborate scheme to control the distribution and use of surtax
proceeds cannot be reconciled with the authority granted to the county commission
by section 212.055(1)(d). All of the arguments offered to avoid this conclusion are
unavailing. The constitutional violation is manifest.
VI. The Non-Severability of the Tax Levy
We come now to the question of whether the trial court correctly determined
that the one percent sales surtax should be severed and preserved. On this point,
we conclude that the trial court’s conclusion cannot be sustained.
Our Court long ago laid out the basic principles governing severability
analysis in the context of unconstitutional statutory provisions:
The rule is well established that the unconstitutionality of a
portion of a statute will not necessarily condemn the entire act. When
a part of a statute is declared unconstitutional the remainder of the act
will be permitted to stand provided: (1) the unconstitutional
provisions can be separated from the remaining valid provisions, (2)
the legislative purpose expressed in the valid provisions can be
accomplished independently of those which are void, (3) the good and
the bad features are not so inseparable in substance that it can be said
that the Legislature would have passed the one without the other and,
(4) an act complete in itself remains after the invalid provisions are
stricken.
Cramp v. Bd. of Pub. Instruction of Orange Cnty., 137 So. 2d 828, 830 (Fla. 1962).
In brief, “[t]he question is whether the taint of an illegal provision has infected the
entire enactment, requiring the whole unit to fail.” Schmitt v. State, 590 So. 2d
404, 414 (Fla. 1991).
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In employing the Cramp factors, we have recognized the cardinal principle
of severability analysis: “The severability of a statutory provision is determined by
its relation to the overall legislative intent of the statute of which it is a part, and
whether the statute, less the invalid provisions, can still accomplish this intent.”
E. Air Lines, Inc. v. Dep’t of Revenue, 455 So. 2d 311, 317 (Fla. 1984) (emphasis
added). In Ray v. Mortham, 742 So. 2d 1276, 1283 (Fla. 1999), we applied the
Cramp severability analysis to a constitutional amendment adopted through the
citizen initiative process, concluding that the valid portion of the amendment (term
limits for state officials) could be severed from the invalid portion (term limits for
federal legislators) because they were “functionally independent.” The same
framework for determining severability can appropriately be used in this case.
Here, the opponents of article 11 readily meet the “burden . . . placed on the
challenging party” to establish that the measure is not severable. Ray, 742 So. 2d
at 1281. The portions of article 11 that violate the authority of the county
commission under the surtax statute are not “functionally independent” from the
portion of article 11 imposing the sales surtax. It is clear that a surtax can be
applied without provisions like the offending provisions of article 11 and that “an
act complete in itself,” Cramp, 137 So. 2d at 830, would remain after excision of
the offending provisions. But it is equally clear that “the legislative purpose
expressed in the valid provisions” cannot “be accomplished independently of those
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which are void” and that the valid and invalid elements of article 11 are therefore
“so inseparable in substance” that it cannot be said that the voters would have
adopted “the one without the other.” Id.Article 11 manifests a dual purpose to impose a surtax and to require that the
proceeds of the surtax be distributed and used in accordance with the elaborate and
detailed scheme established in the article. One element of that dual purpose cannot
reasonably be divorced from the other. The unconstitutional provisions of article
11 therefore are not merely ancillary to the surtax but are integral to the overall
purpose of the surtax initiative. The tax and the distribution scheme form an
interlocking plan. They are functionally dependent. The purpose of the voters in
levying a tax that is designed to be distributed and used in a specified manner—
with elaborate provisions to implement and enforce that design—is thwarted if the
tax is levied but the provisions approved by the voters governing the distribution
and use of the tax are set aside. The voters supported taxing with controls on
spending the proceeds of the tax. They should not be saddled with the taxing
without having the benefit of the controls. Given the functional dependence of the
valid and the invalid provisions, the “taint of [the] illegal provision[s] has infected
the entire enactment.” Schmitt, 590 So. 2d at 414. So the whole of article 11 is
invalid.
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We reject the argument presented by proponents of article 11 based on the
severability provisions in section 11.11(2) of article 11 and in section 9.05 of the
general provisions of the county charter. Neither provision is applicable to the
issue presented here.
It is plain from the terms of section 11.11 that it deals only with defects
arising from the “mandated expenditure categor[ies]” in article 11 which result in
“an impermissible use of [s]urtax proceeds.” It simply provides for funds to be
redirected from an impermissible use—as determined by a judicial judgment—to a
permissible use. But the problem here cannot be cured by simply allowing
receiving entities to redirect funds to permissible uses. Indeed, although labeled as
a severability provision, section 11.11 is not structured as a typical severability
clause. It does not in any manner address the provisions governing the allocation
of proceeds to different entities and the directives regarding the three “portions” of
the proceeds. The issue here is not “an impermissible use of surtax proceeds” but
an impermissible shift of authority to determine how funds will be allocated to
various entities and among permissible uses. Section 11.11 simply has nothing to
say about a defect arising from provisions authorizing such a shift in the authority
to allocate funds.
Section 9.05 speaks to the “intent of the electorate” at the time the charter—
with its many disparate elements—was first adopted. It does not reflect the intent
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of the electorate in subsequently adopting the integrated provisions of article 11.
Indeed, the intent of the electorate with respect to the severability of article 11 is
expressed by the specific, narrow—and inapposite—terms of section 11.11.
Section 9.05 therefore has no bearing on the severability issue here.
VII. Conclusion
Core provisions of article 11 are inconsistent with the surtax statute.
Because those invalid provisions and the remaining provisions of the article form
an interlocking plan, article 11 is unconstitutional in its entirety. The bond
validation judgment is reversed, and the declaratory judgment is reversed to the
extent that it upheld the validity of any portion of article 11.
It is so ordered.
POLSTON, LAWSON, and MUÑIZ, JJ., concur.
LABARGA, J., dissents with an opinion.
COURIEL and GROSSHANS, JJ., did not participate.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND,
IF FILED, DETERMINED.
LABARGA, J., dissenting.
This Court’s jurisprudence on bond validation has properly established a
reluctance to overturn the will of the voters in a home rule charter county unless
absolutely necessary, and then, only to the extent necessary. See Phantom of
Brevard, Inc. v. Brevard Cnty., 3 So. 3d 309, 314 (Fla. 2008); Telli v. Broward
County, 94 So. 3d 504, 513 (Fla. 2012); D’Agastino v. City of Miami, 220 So. 3d
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410, 427 (Fla. 2017). To that end, our precedent has set a high bar for declining
severability. See Ray v. Mortham, 742 So. 2d 1276, 1281 (Fla. 1999); see also City
of Kissimmee v. Fla. Retail Fed’n, Inc., 915 So. 2d 205, 209 (Fla. 5th DCA 2005)
(calling on appellate courts to “indulge every reasonable presumption in favor of
an ordinance’s constitutionality.”).
A presumption of constitutionality should be the starting point for this
Court’s analysis. Citizens for Responsible Growth v. City of St. Pete Beach, 940
So. 2d 1144, 1146 (Fla. 2d DCA 2006) (stating that courts must, “if possible,
interpret the amendment as constitutional”); see also Telli, 94 So. 3d at 513(recognizing courts cannot infringe on “the ability of counties to govern
themselves as that broad authority has been granted to them by home rule power
through the Florida Constitution”).
Here, as noted by the circuit court, a majority of voters in Hillsborough
County expressed their desire to improve their transportation assets at the ballot
box by approving this amendment to their charter. The majority, however,
concludes that “[c]ore provisions of article 11 are inconsistent with the surtax
statute. Because those invalid provisions and the remaining provisions of the
article form an interlocking plan, article 11 is unconstitutional in its entirety.”
Majority op. at 21. The majority reasons that because the valid and invalid
elements of article 11 are “so inseparable in substance, it cannot be said that the
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voters would have adopted ‘the one without the other.’ ” Majority op. at 19. I
disagree.
The amendment presented to the voters, despite the invalidation of
significant portions of its provisions, still adequately defined its primary purpose:
to provide funding for transportation infrastructure. A majority of voters in
Hillsborough County understood it as such and expressed their desire to support it.
In addition, the majority’s focus of casting doubt on whether article 11
would have passed without the stricken provisions is a test more akin to what this
Court rejected in Ray v. Mortham. In Ray, this Court rejected an argument that the
challenger of a citizens-initiated constitutional amendment “need only cast doubt
on whether the amendment would have passed” and that unless the sponsor of the
amendment “can ‘prove’ that the voters would have adopted the amendment,” it
must be stricken. 742 So. 2d at 1281. Concluding that the proffered test “would
be an inappropriate burden to place on” the party defending an enactment adopted
through the citizens’ initiative process, this Court confirmed that the burden should
be on the challenger seeking to invalidate the popular will of the voters. Id. The
majority’s analysis therefore goes against “the purpose underlying severability—to
preserve the constitutionality of enactments where it is possible to do so.” Id.-23-
Given our jurisprudence to “indulge every reasonable presumption in favor
of an ordinance’s constitutionality,” City of Kissimmee, 915 So. 2d at 209, and the
high bar we have set for declining severability, I respectfully dissent.
An Appeal from the Circuit Court in and for Hillsborough County – Bond
Validations
Rex Martin Barbas, Judge - Case No. 292019CA001382A001HC
And Certified Judgments of Trial Courts in and for Hillsborough County –
Rex Martin Barbas, Judge - Case No. 292019CA001382A001HC – An
Appeal from the District Court of Appeal – Second District, Case No. 2D19-2740
Howard C. Coker and Chelsea R. Harris of Coker Law, Jacksonville, Florida; and
Derek T. Ho and Collin R. White of Kellogg, Hansen, Todd, Figel & Frederick,
P.L.L.C., Washington, District of Columbia,
for Appellant Robert Emerson
Chris W. Altenbernd of Banker Lopez Gassler P.A., Tampa, Florida,
for Appellant Stacy White
Raoul G. Cantero, David P. Draigh, W. Dylan Fay, and Zachary Dickens of White
& Case LLP, Miami, Florida; and Benjamin H. Hill, Robert A. Shimberg, and J.
Logan Murphy of Hill Ward & Henderson, P.A., Tampa, Florida,
for Appellees Tyler Hudson, Keep Hillsborough Moving, Inc., and All for
Transportation
Alan S. Zimmet, Nikki C. Day, and Elizabeth W. Neiberger of Bryant Miller
Olive, P.A., Tampa, Florida; George S. LeMieux, Kenneth B. Bell, and Lauren
Vickroy Purdy of Gunster, Yoakley & Stewart, P.A., Fort Lauderdale, Florida; and
David Harvey, Office of the City Attorney, Tampa, Florida,
for Appellees Hillsborough County, Hillsborough County Metropolitan
Planning Organization, and City of Tampa
-24-
Harry M. Cohen, Legal Counsel, Hillsborough County Clerk of the Circuit Court,
Tampa, Florida,
for Appellee Hillsborough County Clerk of the Circuit Court
Kenneth W. Buchman, City Attorney, Plant City, Florida,
for Appellee City of Plant City
David L. Smith, Robert E. Johnson, and Julia C. Mandell of GrayRobinson, P.A.,
Tampa, Florida, and Kristie Hatcher-Bolin of GrayRobinson, P.A., Lakeland,
Florida,
for Appellee Hillsborough Transit Authority
Andrew H. Warren, State Attorney, and Ada Carmona, Assistant State Attorney,
Thirteenth Judicial Circuit, Tampa, Florida,
for Appellee State of Florida
Daniel J. Woodring of the Woodring Law Firm, Tallahassee, Florida,
for Amicus Curiae Associated Industries of Florida
Daniel Bell, General Counsel, and W. Jordan Jones, Staff Attorney, House
Judiciary Committee, Tallahassee, Florida; and Jeremiah Hawkes, General
Counsel, and Ashley Istler, Deputy General Counsel, The Florida Senate,
Tallahassee, Florida,
for Amici Curiae Florida House of Representatives and Florida Senate
Diane G. DeWolf and Katherine E. Giddings of Akerman LLP, Tallahassee,
Florida, and Marilyn Mullen Healy of Akerman LLP, Tampa, Florida,
for Amici Curiae the Greater Tampa Chamber of Commerce, the Tampa Bay
Partnership, and the Tampa Hillsborough Economic Development
Corporation
-25-