Weston mayor sues to take property tax plan off ballot

Weston's mayor has asked the Florida Supreme Court to halt a January vote that would overhaul the homestead exemption, saying voters would be misled.

Article Courtesy of The Miami Herald


Published July 10, 2007


Eric M. Hersh, acting as a taxpayer and not as mayor, asked the Florida Supreme Court to remove the Legislature's amendment because, he said, it contains three major flaws. His suit says the proposed amendment:

 Misleads voters by failing to tell them that a vote for the amendment is a vote to phase out and ultimately replace Save Our Homes, which now caps taxable assessment increases on primary homes at 3 percent a year.

 Violates the constitutional requirement that a proposal with more than one change to the constitution be voted on only during a general election, not a special election.

 Interferes with the constitutional powers of local governments to increase property taxes because the Legislature allows local governments to make budget cuts in 2007 before the amendment would take effect.

Weston Mayor Eric Hersh has filed a petition with the Florida Supreme Court, challenging the Legislature's right to force cities to roll back property taxes.

''The Legislature's solution is in no one's best interest,'' said Hersh, a Democrat. "I cannot sit back and watch the public be deceived as to the impact and consequences of this bad legislation. . . . I think people will vote for it without potentially understanding the consequences.''

The proposed amendment was pushed through the House and Senate in partisan voting during a special session on property taxes last month. It will ask voters on Jan. 29 to give homeowners a choice: keep their Save Our Homes tax breaks or take a super exemption that would exempt 75 percent of the first $200,000 of a home's taxable value and an additional 15 percent off the next $300,000.

Senate President Ken Pruitt, R-Port St. Lucie, reacted bitterly to the legal challenge.

''There is no legal maneuvering that will quench the anger people have over skyrocketing property taxes,'' he said. ``Mayor Hersh ought to find a way to cut the taxes in his own city instead of dreaming up ways to knock this good initiative off the ballot and derail the largest tax cut in Florida's history.''

Gov. Charlie Crist, who also was an early advocate of the proposal, said Monday he was not aware of the lawsuit, and had no comment.

Hersh called Pruitt's remarks "typical.''

''What else are they going to say?,'' he said. "They passed a bad and unlawful bill.''

Amendments written by the Legislature do not have to undergo Supreme Court review. But if a lawsuit challenges the language of the proposal, the high court can rule on whether it should appear on the ballot.

In 1998, voters gave 73 percent approval to a constitutional amendment changing the interpretation of death penalty cases. Two years later, the Supreme Court voted 4-3 to throw out the amendment. The justices agreed with a lawsuit that the ballot summary was misleading and false.


Hersh said he hoped the court would not wait that long this time. In an unusual move, he asked justices to take the case immediately, rather than let it go through the lower courts, "due to the importance of the issues at stake and the need for a prompt, final resolution.''

If the Supreme Court agrees to hear the case, Hersh asks it to order Florida Secretary of State Kurt Browning to remove the proposed amendment from the January ballot.

Democratic legislative leaders said Monday that when lawmakers were debating the proposal, they warned Republicans the amendment was vulnerable to a constitutional attack, and proposed an amendment to fix it.

Instead of saying that the amendment phases out the Save Our Homes provision and gives property owners a one-time choice to keep it or choose the higher homestead exemption, the ballot statement says the amendment allows for "preserving application of Save Our Homes provisions until an irrevocable election is made.''

Reps. Jim Waldman of Coconut Creek and Jack Seiler of Wilton Manors, both Democrats, said that language was misleading. They proposed a ballot statement that would say the amendment includes provisions ``to phase out Save Our Homes while revising certain provisions of Save Our Homes to conform to provisions providing for the increased homestead exemption of homestead property.''

House Republicans defeated the amendment 76-42 on a party-line vote.

''We didn't like the constitutional amendment, but we were trying to fix something that was infirm,'' said House Democratic Leader Dan Gelber of Miami Beach. "They treated it in a partisan way rather than just on its merits.''

Legal scholars warned Monday that Hersh's argument that the Legislature usurped local government powers by limiting their ability to raise property taxes may not win in court.


''I think it's the longest of long shots,'' said Bob Jarvis, law professor at Nova Southeastern University.

The constitution gives the Legislature the authority to create or abolish counties and cities, and by implication, to regulate them, he said. The court may judge that it is reasonable for the Legislature to limit local taxing authority.

The Florida League of Cities has not endorsed or rejected the lawsuit, but it hopes the suit will persuade lawmakers to alter the proposed amendment before January, if they meet in another special session as expected in the fall, said John W. Smith, the league's assistant director of legislative affairs.

''It all happened really quickly, so a lot of the core tax issues were not talked about and discussed, and we think they ought to be debated,'' he said. He admitted, however, that lawmakers asked to take up the prickly issue of property taxes again "look at you like you're asking them to pick up a hornet's nest.''

The lawsuit is being handled for no charge by the Fort Lauderdale law firm of Weiss, Serota, Helfman, Pastoriza, Cole and Boniske, which also represents the cities of Weston and Miramar.


Hersh's lawyer, Jamie Cole, prepared a legal analysis of the proposed amendment in June, and presented it at a meeting of officials from about 40 cities across the state. He said then that one of their options was to to file a lawsuit.

Miramar City Manager Bob Payton, who attended the meeting, said Miramar decided not to join. A spokesman for the city of Hollywood said Monday that it would not, either.

''I think our commissioners believe that property tax reform is a good thing,'' Payton said. "We are going to prepare for what happens in January, which at that time, we may have a different view.''

Hersh said many mayors were frustrated by the legislative process and felt their voices were not being heard. He acknowledged, however, that it was politically risky to sue the Legislature.

''Someone has to be willing to step up to the plate,'' he said. "It's the right thing to do.''