State: Court ruling kills tax initiative

TALLAHASSEE -- A three-judge state appeals court panel on Wednesday knocked a sales tax exemption measure off the Nov. 5 ballot, ruling that the description of the proposal, as written by legislators, was misleading.

Senate President John McKay, R-Bradenton, directed an attorney to seek an order blocking the decision from taking effect pending an appeal. Gov. Jeb Bush praised the decision.

Accountants, broadcasters, Realtors and other business groups had challenged the measure, which would give a special legislative committee the power to eliminate sales tax exemptions amounting to billions of dollars.

Last month, a trial judge ruled that the question should go before voters. Business groups then appealed to the 1st District Court of Appeal. The three-judge panel overturned Leon Circuit Judge Nikki Clark on Wednesday.

"Taken as a whole, the ballot summary and its title would not clearly tell the voter that he or she is being asked to grant largely independent lawmaking authority to a committee of 12 legislators," wrote Chief Judge Michael Allen in explaining the panel's 3-0 decision.

The proposed change to the state Constitution, known as Amendment 5, would create a panel of 12 lawmakers with powers to review, and eliminate, more than 300 sales tax exemptions on various goods and services over the next three years. If the panel voted to get rid of an exemption, the full Legislature would have two years to override the decision.

Allen wrote that the ballot summary voters would see creates the impression that the committee would simply report to the full Legislature, as committees normally do.

The appeals court refused to send the case to the Florida Supreme Court but gave Secretary of State Jim Smith or the state Senate until today to make arguments as to why an appeal should be allowed. The Senate was the driving force behind the proposed amendment.

Smith's office, which is required by state law to certify the ballot for the 67 elections supervisors by Friday, indicated it didn't plan to appeal. But Senate attorney Barry Richard said he would ask the appeals court to stay its decision while he presses an appeal to the state's highest court.

"What you have here is a difference of opinion among very capable judges," Richard said.

In a statement issued by his office, McKay said he was "confident that our position will ultimately be upheld and that the people of Florida will have the opportunity to vote for meaningful tax reform."

Gene Adams of the Florida Association of Realtors, one of the groups celebrating Wednesday's ruling, said the court wisely saw that Amendment 5 would "fundamentally alter the way most people understood laws are made." Florida TaxWatch, another critic of the amendment, called the proposal a "radical revision."

The proposal would have "wiped out the normal constitutional checks and balances that are part of the bulwark of our freedom," said Dominic Calabro.

The Legislature voted last spring to put the tax measure before voters as a compromise after McKay's crusade to revamp Florida's tax structure failed due to opposition from the state House and Bush.

Bush praised Wednesday's ruling, saying the court "recognized that the amendment's unclear and ambiguous language would serve only to confuse voters."

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In another opinion Wednesday, the same DCA panel upheld a judge who refused to strike a death penalty amendment from the ballot.

The measure, also put on the ballot by the Legislature, would put capital punishment in the state Constitution and narrow the state's protection against "cruel or unusual" punishments.

It was challenged by 15 elections supervisors, who warned that the lengthy explanation of the amendment, the first of several facing voters on Election Day, would cause confusion and chaos at the polls.

Leon County Elections Supervisor Ion Sancho said the supervisors would appeal the DCA decision to the Florida Supreme Court.

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Lucy Morgan

From the Times state desk