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Advisory Opinion to the Attorney General: Sales Taxes
SC05-1564 | SC05-1833 | SC05-1565 | SC05-1834 |
SC05-1566 | SC05-1835
THIS GREAT STATE OF FLORIDA, ANDTHIS HONORABLE COURT.
LADIES AND GENTLEMEN, THEFLORIDA SUPREME COURT.PLEASE BE SEATED.
GOOD MORNING.WELCOME TO THE FLORIDA SUPREMECOURT AND OWRP ARGUMENTS ANDDOCKET FOR NOVEMBER 1.THE FIRST CASE IS THE ADVISORYOPINION TO THE ATTORNEY GENERALON THREE DIDN'T PROPOSALS. -- DIFFERENT PROPOSALS.MS. HEARN.
GOOD MORNING.MAY IT PLEASE THE COURT.I'M LYNN HEARN ON BEHALF OF THEATTORNEY GENERAL.THIS MATTER COMES BEFORE THECOURT ON THE ATTORNEY GENERAL'SREQUEST FOR ADVISORY OPINIONS ONTHREE INITIATIVE PETITIONS.MR. NABORS, ROBERT NABORS WILLBE ARGUING IN FAVOR OF THEPETITIONS AND CYNTHIA TUNNICLIFFWILL BE ARGUING AGAINST THEPETITION.
THANK YOU.
GOOD MORNING.MAY IT PLEASE THE COURT.I RESERVED 10 MINUTES FORREBUTTAL.THIS CASE IS A CASE BY AFFAIRWITH THE PEOPLE OF THE STATE OFFLORIDA TO INSTRUCT THELEGISLATURE TO DO FUNDAMENTALTAX REFORM, AND DETERMININGWHETHER OR NOT THE CURRENTEXEMPTIONS SERVE A PUBLICPURPOSE AND WHETHER OR NOT THEFAILURE TO EXCLUDE -- THEEXCLUSION OF SERVICES ALSOSERVES A PUBLIC PURPOSE.
RIGHT NOW IF THERE'S ANEXEMPTION DOES IT HAVE TO SERVEA PUBLIC PURPOSE?
ANYTHING THE LEGISLATURE DOESSERVES A PUBLIC PURPOSE.LEGISLATURE, UNLESS IT'S GAININGA PROPRIETY ACTIVITY, NORMALLYSERVES A PUBLIC PURPOSE.THIS PROPOSAL IN FRONT OF YOUDIFFERS FROM THE ONE PRIOR INTHE SENSE WE DON'T TRY TOARTICULATE WHAT THAT PUBLICPURPOSE IS.PRIOR WE HAD THE FACT IT HAD TOPROMOTE COMPETITIVE -- IT HAD TOPROMOTE ONE OF THE RECOGNIZEDACTIVITIES UNDER TAX EXEMPTIONS,WE'VE ELIMINATED THAT, SO THEYHAVE TO SAY HERE IS THEY HAVE TOARTICULATE WHAT PUBLIC PURPOSETHAT IT PROMOTES AND IT CAN BEWITHIN DISCRETION OF THELEGISLATURE WHAT IT SAYS, ANDTHAT WOULD BE --
FIRST OF ALL, MY -- I HAVE ACONCERN THAT AS DID THE LASTATTEMPT HERE, THIS ENACTS ASERVICES TYPE AND ALSO SETS OUTA BASIS FOR WHICH THERE CAN BEAN EXEMPTION.WOULD YOU AGREE WITH THAT?
WELL, I DON'T THINK -- IDISAGREE WITH THE ACTS OFSERVICE ACTS.
THE LEGISLATURE ACTS BYJULY 1, 2008, TO EXEMPTCOMPANIES.
THAT'S RIGHT.
IT'S GOING TO BE TAXED.
THAT'S RIGHT.FAILURE OF THE LEGISLATURE TOACT RESULTS IN A TAX.THAT'S THE LEVERAGE AND THECONCEPT WITHIN THIS PROCESS.BUT THE ISSUE THAT I FEEL, IFTHERE'S ANY TYPE OF DIRECTION,THAT A SPONSOR CAN DRIVE FROM ANOPINION, I THINK WE HAVE TRIEDTO COME UP WITH THREE SEPARATEINITIATIVES TO MEET THEOBJECTIONS THE COURT HAD THELAST TIME THIS AMENDMENT WASBEFORE YOU.THE CONCERN --
WOULDN'T IT BE MORESTRAIGHTFORWARD TO SAY THERESHALL BE A TAX ON SERVICES ANDDEFINED SERVICES.
WELL, THAT'S A CHOICE WECOULD HAVE MADE.OUR DECISION WAS TO LEAVE THATTO THE LEGISLATURE.I MEAN, WHAT THIS PROPOSAL DOES,THE PEOPLE SAYS TO THELEGISLATURE, WE WANT YOU, AT ATIME -- AT A POINT IN TIME TOREVIEW THIS ISSUE WITHIN THECONTEXT OF THIS PROCESS, ANDMAKE A DECISION ON EACH ANDEVERY SERVICE OPPOSED.WE HAVE A ME METHOD TO IDENTIFY THESERVICES.COULD WE HAVE SAID THE SERVICESARE ALL TAXED.A LOT OF THE HORRIBLES BROUGHTUP BY THE PARTIES WOULD BEEMBEDDED IN THAT.THIS IS A PROCESS WHERE THEPEOPLE ARE SAYING TO THELEGISLATURE, YOU HAVEINSTITUTIONALLY BEEN UNABLE TODO SAWLS TAX REFORM, AND THEIDEA THAT'S BEEN AROUND FOREVER.WE ARE INSTRUCTING YOU ASCITIZENS UNDER OUR RESERVEPOLITICAL POWER, TO LOOK AT THEEXEMPTIONS AND THE SALES TAX, TOLOOK AT THE SERVICES THAT ARETAXES AND MAKE A DELIBERATELEGISLATIVE DECISION, WHETHER ORNOT THE DECISION HISTORICALLY OFNOT TAXING THOSE SERVICES AREEXEMPTING THE SALES OF GOODS.DOES THAT SERVE A PUBLICPURPOSE.IF YOU BELIEVE IT DOES, REENACTTHEM.
LET ME FOLLOW UP BRIEFLY ONJUSTICE WELLS' QUESTION IF IMIGHT, THAT IS WE'VE HAD SOMEDIFFICULTY WITH THE APPROACHTHAT'S BEEN TAKEN HERE,APPROACHING THIS TAX ISSUE,STARTING WITH THE STANDPOINT OFEXEXEMPTION AS OPPOSED TO STARTINGFROM THE STANDPOINT OF IMPOSINGA TAX.THAT IS, THAT IF YOU START WITHEXEMPTIONS, YOU HAVE TO LOOKTHEN AT WHAT THE EXISTINGFRAMEWORK ON THE GROUND IS.COULD YOU GIVE US A LITTLETHUMBNAIL SKETCH AS -- IN TERMSOF WHAT IS THE EXISTINGCONSTITUTIONAL AND STATUTORY LAWAS FAR AS THE EXISTENCE OF ASALES TAX BEFORE YOU GET TO THEEXEMPTION ISSUE?IS THERE A BASIS FOR A TAX INTHE CONSTITUTION?IS IT STRICTLY A LEGISLATIVEDECISION TO IMPOSE A TAX?IN OTHER WORDS, WHAT EXISTSBEFORE YOU GET TO THE ISSUE OFEXEMPTING CERTAIN SERVICES FROMBEING TAXED?
WELL --
WOULD YOU ADDRESS THAT VERYBRIEFLY?
WELL, THE BASIC PRIVILEGE IS,IS THE STATE HAS THE POWER TOTAX, EXCEPT AS LIMITED BY THEPEOPLE IN THE CONSTITUTION.THERE ARE CERTAIN LIMITATIONS INTHE CONSTITUTION, THERE CANNOTBE A LIMITATION ON --
SO RIGHT NOW THE LEGISLATUREHAS THE POWER TO IMPOSE A TAX,IS THAT CORRECT?
RIGHT.IT HAS DONE SO IN THE AREA OFTHE SALES TAX ON GOODS.
ALL RIGHT.BUT THERE IS NOT A TOTAL SCHEMERIGHT NOW THAT IMPOSES A TAX ONALL SERVICES OR ALL THETRANSACTIONS OF GOODS, THISIS -- THIS HAS BEEN SORT OF THESTICKING POINT, IF YOU STARTWITH AP EXEMPTION SCHEME OFSOMETHING THAT THE LEGISLATUREDOESN'T HAVE AN OVERALL SCHEMEIMPOSING A TAX TO BEGIN WITH.SO BY FOCUSING ON THE EXEMPTION,DON'T YOU FIRST HAVE TO CONCLUDETHAT THE LEGISLATURE WOULDIMPOSE A TAX ON SERVICES, ANDTHEN CONSIDER THE ISSUE OFEXEMPTION?
WELL, ON THE EXEMPTIONS, THEYHAVE OPPOSED A TAX ON CERTAINTHINGS.THEY HAVE LEFT OTHERS NOT BEIMPOSED.ON SERVICES, THEY'VE DONE THESAME THING IN A VERY MINOR WAYON CERTIFICATE VOES AND MOSTSERVICES ARE NOT TAXED.WE HAVE A HISTORY IN OUR STATEWHERE THEY WERE TAXED.THEY WERE DONE IN A WAY THATJUSTICE WELLS IS TALKING ABOUT,ACROSS THE BOARD TAX ONSERVICES.
IN EFFECT, ARE YOU SAYINGTHAT EITHER INDIVIDUALLY ORCOLLECTIVELY, THAT THESE THREEPROPOSED AMENDMENTS WOULDMANDATE THAT THE LEGISLATUREADDRESS AND ENACT ACOMPREHENSIVE TAXING SCHEME?FOR INSTANCE, ON ALL SERVICESAND ALONG WITH THAT, THEN, WOULDADDRESS THE EX EXEMPTION ISSUE, ASONLY THOSE SERVICES THAT THEYCAN FIND AN EXPLICIT PUBLICPURPOSE WOULD THEY EXEMPT INTHAT SCHEME?
ALMOST PRECISELY WHAT WEINTENDED TO DO HERE IS THAT INEACH -- AND EACH ONE CAN STANDON ITS OWN.THEY'RE CRAFTED IF THE ONE ONSERVICES FAILS, THE ONE ONEXEMPTIONS COULD STILL STAND,BOTH OF THOSE FAIL, THE WAY IT'SENACTED COULD ALSO PASS.WHAT THIS DOES SIMPLY, ANDREALLY, YOU HAVE TO ELEVATEYOURSELF FROM THE BRIEFS IN THISCASE AND GET OUT OF THE DETAIL.WHAT IT REALLY DOES, IT'S ANINSTRUCTION BY THE PEOPLE OF THESTATE OF FLORIDA TO TELL THELEGISLATURE WE ARE UNHAPPY WITHYOUR CURRENT SCHEME OF SALESTAXATION, WE WANT YOU TO LOOK INONE INSTANCE, WE WANT YOU TOLOOK AT ALL OF THOSE THAT YOUHAVE SPECIFICALLY EXEMPTED, TAKEANOTHER LOOK AT THAT IN THESUNSHINE AND SAY WHETHER OR NOTTHAT EXEMPTION SERVES A PUBLICPURPOSE.IF YOU FEEL LIKE IT DOES,REENACT IT.IF YOU DON'T, EITHER REPEAL ITOR LET IT BE REPEALED BY UP MYINDICATION.SHALL -- BY IMPLICATION.
UNDER THIS SCHEME, YOU'REASKING THE LEGISLATURE TO LOOKAT THIS BY A DATE THAT SEEMS TOBE A DATE NOW THAT IS UPPOSSIBLE BECAUSE THIS WILL NOTBE ON THE BALLOT UNTIL NOVEMBEROF 2008, IS THAT CORRECT?
WELL, THAT'S A PROBLEM, YES,THE WAY IT'S DRAFTED.
AND SO IF THIS IS PASSED,THEN THE LEGISLATURE CERTAINLYCOULD NOT HAVE LOOKED AT IT BYTHE DATE OF JULY OF 2008, THATYOU HAVE HERE IN THE PROPOSEDAMENDMENT, SO HOW DO YOU FIXTHAT?
WELL, I WOULD SAY, TWO POINTSON THAT.THE FIRST POINT I WOULD MAKE ISTHAT WHEN THE COURT SITS IN ITSCAPACITY, ITS JURISDICTIONALCAPACITIES ON ADVISORY OPINIONS,REALLY YOUR JURISDICTION ISQUITE LIMITED.IT'S LIMITED IN THE WAY THECONSTITUTION DESCRIBES THAT ANDTHAT IS TO RESPOND AS PROVIDEDBY THE ATTORNEY GENERAL TO GIVEAN ADVISORY OPINION ON WHETHEROR NOT A PROPOSAL MEETS A SINGLESUBJECT OR THAT THE BALLOTLANGUAGE IS CLEAR.ISSUES OF WHETHER OR NOT IT EVEREVENTUALLY REACHES THE BALLOT ORAPPEARS ON THE BALLOT, I WOULDARGUE ARE BEYOND OUR COLLATERALUSH USE TO THIS PROCEEDING.AND I WOULD ARGUE YOU DON'TWORRY ABOUT IT.
SO IMPOSSIBILITY HERE WITHTHIS PROPOSED AMENDMENT, WECOULD SAY IT'S OK, EVEN IF IT'SAN IMPOSSIBILITY?
WELL, I DON'T THINK YOU COULDSAY IT'S AN IMPOSSIBILITY.IF YOU LOOK AT THE ISSUE ON THEGAMING AMENDMENT, WHERE IT WAS ASIMILAR SITUATION, A SITUATIONWHERE THERE'S A DATE FOR THELEGISLATURE TO IMPLEMENT THEGROUND RULES FOR THE GAMINGSTATUTE HAD PASSED BY THE TIMEIT CAME TO THIS COURT, AND THECOURT IN THE OPINION DIDN'T DEALWITH THAT WITH A SINGLE SUBJECTAND NOTICE, DEALT WITH THAT IN ASEPARATE SECTION SECTION AND SAID WELL,SINCE THE DATES WERE NOTCRITICAL TO THE SUBSTANCE OF THEAMENDMENT, THEN THE LEGISLATUREWOULD HAVE A REASONABLE TIME.
BUT WASN'T THAT REALLYDIFFERENT IN THAT WHAT WE WEREDEALING WITH THERE WAS SOMETHINGTHAT IN ORDER FOR THAT AMENDMENTTO GO INTO EFFECT, THELEGISLATURE HAD TO ACT.HERE, IF THE LEGISLATURE DOESN'TACT, IT GOES INTO EFFECT.AND SO IT SEEMS TO ME THAT'S ANENTIRELY DIFFERENT --
I WOULD DISAGREERESPECTFULLY.THE FACT THAT IT GOES INTOEFFECT ON A DATE CERTAIN IS THETAILEND OF THIS AMENDMENT.THE THRUST OF THIS AMENDMENT ISFOR THE LEGISLATURE TO MAKE THISREVIEW.IS TO MAKE THIS REVIEW.SO I THINK IT'S A LOT LIKE THATDECISION IN THE SENSE THAT THEPURPOSE OF THE AMENDMENT IS SAYLEGISLATURE, YOU HAVE TO REVIEWTHESE EXEMPTIONS AND THESEEXCLUSIONS.IF YOU DON'T, SOMETHING HAPPENS.IF SOMETHING HAPPENS, THAT'S NOTA GERMANE ISSUE TO THE THRUST OFWHAT'S BEING ACHIEVED HERE.THE ONLY -- AND IN TERMS OF THEJURISDICTION OF THIS COURTTODAY, AND WHAT YOU'VE GOT TODECIDE TODAY, I WISH WE DIDN'THAVE THE DATES IN THERE, WE DO.BUT I THINK IN TERMS OF THEJURISDICTION OF THIS COURTTODAY, THAT REALLY DOES AFFECTTHE SINGLE SUBJECT ANALYSIS.WHAT IT COULD AFFECT IS THEBALLOT LANGUAGE MISLEADING,BECAUSE IT HAS -- ONE OF THEBALLOT LANGUAGES ON SERVICES HASA DATE, THE ONE ON EX EXEMPTIONSDOES NOT HAVE A DATE.
SO WOULD IT REALLY BEMISLEADING IF THIS TAX WOULD GOIN TO EFFECT ON JANUARY OF 2009WITHOUT THE LEGISLATURE EVERHAVING AN OPPORTUNITY TO LOOK ATTHIS AND SEE WHICH ONE SHOULD BEADDRESSED?
WELL, I WOULD ARGUE THAT THATWOULD BE A -- IF WE -- IF THESPONSORS DECIDED TO PERSIST ONTHE BALLOT, THEN I THINK THATTHAT WOULD BE -- I WOULD SUSPECTWHAT WOULD HAPPEN IS THERE WOULDBE SOME PROCEEDING TO SAY IT HASTO BE DONE WITHIN A REASONABLETOMB AND OBVIOUSLY, THAT DATE ISINCONSISTENT WITH THE THRUST OFTHE AMENDMENT, AND THE THRUST OFTHE AMENDMENT IS TO MANDATE AREVIEW OF THE SALES TAXEXEMPTIONS AND SCREWS.
JUSTICE CANTERO HAS AQUESTION, ALSO REMIND YOU YOU'REINTO REBUTTAL.
LET ME GO AHEAD.
I GUESS I HAD THE SAMEQUESTION BUT FROM THE OTHERSIDE.DOESN'T IT MAKE THE SUMMARYMISLEADING AND DIDN'T WE SAY INTHAT PRIOR CASE DIDN'T WE WARNPOTENTIAL INITIATIVES SEEKERSTHAT THEY SHOULD NOT PUT A DATE,BECAUSE THIS VERY SITUATION MAYHAPPEN?DISWROO I CAN'T YES.NO QUESTION ABOUT.
YES, NO QUESTION ABOUT THAT.YOU DID WARN.BUT THE QUESTION SEEMED TO MEBEFORE THE COURT TODAY ISWHETHER OR NOT THESE CITIZENSWHO ARE~r TRYING TO ADVANCE A VERYIMPORTANT ISSUE IN THE STATE OFFLORIDA ARE ENTITLED TO ANADVISORY OPINION ON SINGLESUBJECT, AND ON THE QUESTION OFTHE BALLOT.IF YOU FEEL LIKE THE BALLOT HASBECOME NOW UNCLEAR, BECAUSE OFTHESE DATE CERTAIN, THAT DOESN'TAFFECT THE SINGLE SUBJECT ISSUE.
WHAT ABOUT THE BALLOTSUMMARY, ISN'T IT NOWMISLEADING, BECAUSE IT SAYS THATUPON COMPLETION OF SUCH REVIEW,SERVICES CURRENTLY NOT TAXED ANDWHICH ARE NOT EXEMPTED SHALL BESUBJECT TO THE SALES TAX ONJANUARY 1, 2009.BUT THERE WILL BE NO SUCHREVIEW.
NO QUESTION.AND THAT'S WHY I SAY IN TERMS OFTHE ANALYSIS THAT'S IN FRONT OFTHIS COURT UNDER YOUR LIMITEDJURISDICTION, YOU HAVE LIMITEDJURISDICTION ADVISORY IN THESEOPINION, THE ATTORNEY GENERALDOES NOT REQUEST ANYTHING OTHERTHAN THE SINGLE SUBJECT AND THEBALLOT QUESTION, IT'S NOT LIKETHE FAIR CASE WHERE THE GOVERNORWAS INVOLVED AND UNDER HISINHERENT POWER TO ASK FOR ANADVISORY OPINION.THIS IS SQUARELY WITHIN THECORNERS OF YOUR JURISDICTION ONTHE ADVISORY OPINION.
MY QUESTION GOES TO OURJURISDICTION WHICH IS ONE OF THETHINGS WE NEED TO DETERMINEUPPED THE STATUTE IS WHETHER THEBALLOT SUMMARY IS MISLEADING.
AND I COULD SEE THIS COURTSAYING, FOR EXAMPLE, THAT THEBALLOT SUMMARY IS MISLEADINGBECAUSE OF THIS.THAT COULD HAPPEN.BUT WHAT I WOULD URGE THIS COURTIS BECAUSE OF THE EFFORTS THAT'SSINCE BEEN IN THIS, IS ON THESINGLE SUBJECT ISSUE, WE'VEREALLY TRIED TO WALK WITHIN THEFOUR CORNERS OF YOUR PRIOROPINION AND I WOULD ARGUE THATUNDER ALL THE THEORY OF YOURJURISDICTION, THESE CASES, WE'REENTITLED TO AN OPINION ON THAT,AND I CAN, FOR EXAMPLE, IF YOUUSE THE -- LET'S ME GIVE YOU ACOUPLE REASONS,.IN THE RECENT CASE IN WHICH YOUHAD PREVIOUSLY GIVEN AN OPINIONON THE TITLE AND THEN THE OTHERPARTIES CHANGED THAT BEINGS YOUSAID IN THERE, HOWEVER, BECAUSEOUR OPINIONS AGAINST CITIZENSISSUES ARE TO ENABLE PROPONENTSOF THE BALLOT LANGUAGE, THE FACTTHAT WE FOUND ONLY THE BALLOTSUMMARY INDICATES THATIMPLICITLY REJECTED OTHERCHALLENGES, AND THIS IS THE KEY,TO HOLD OTHERWISE WOULD ALLOWSERIAL TAX ON A PROPOSEDAMENDMENT THWARTING THEPROPONENT'S EFFORTSINDEFINITELY.AND IF YOU LOOK AT THE LANGUAGE,WHEN THEY --
WHAT YOU'RE ASKING US TO DOIS EVEN IF WE SAY THAT THISPARTICULAR BALLOT SUMMARY ISMISLEADING, CANNOT GO ON THEBALLOT, YOU WANT SOME GUIDANCEAND DETERMINATION AS TO THEMERITS SO THAT WHEN YOU BRING ITBACK, YOU ARE ALREADY KNOW --
I WOULD ARGUE THAT YOU HAVETO DO THAT.THAT'S YOUR JURISDICTION THATTHE COURT IS -- WHEN THE -- IFYOU FALL BACK IN THE EARLY DAYSBEFORE THIS PROCESS WAS INBEING, IT WAS DONE BYCONSTITUTIONAL AMENDMENT, BOTHTHE ATTORNEY GENERAL'S POWER ANDYOUR JURISDICTION, AND THECOMMENTARY TO THAT, IS THE~rPa&C @&CD0%%--COMMENTARY TO THEi]{_ JOINTRESOLUTION 71, IT SAYS, THIS ISTHE REASON FOR THIS}i PROCESS.IT WAS FELT THAT FAIRNESSDICTATED THE BALLOT SPONSORS BEABLE TO OBTAIN AN OPINION WITHREGARD TO THE TECHNICALREQUIREMENTS PRIOR TO GOING TOTHE GREAT EFFORT AND EXPENSE OFCOLLECTING ALL THE NECESSARYSIGNATURES FOR BALLOT PLACEMENT.WE'VE DONE THAT TWICE TO SUPPORTAN ISSUE.WE'VE DONE THAT TWICE.HINDSIGHT, WE WOULD NOT HAVEUSED THAT SPECIFIC LANGUAGE, BUTTHAT DOES NOT ELIMB ELIMINATE, I WOULDARGUE, THE FIRST ARGUMENT, THATYOU HAVE AN OBLIGATION UNDERYOUR DUTIES TO DEAL ON SINGLESUBJECT AND BALLOT SUMMARY.AND IF THIS AFFECTS BALLOTSUMMARY, THAT'S THE WAY YOUFEEL, SO BE IT.I CAN MAKE A COLLATERAL ARGUMENTTHAT IT IS~r A COLLATERALPROCEEDING THAT COULD BE CITEDAT ANOTHER DATE AND ANOTHER TOOMANY IF WE ELECT TO}i PROCEED.TO BE CANDID WITH THE COURT,WE'RE NOT GOING TO PROCEED TOGET ON 208 WITH THIS LANGUAGE.BUT ON THE OTHER HAND, WE'RE NOTGIVING UP.I STILL GOT SOME JUICE LEFT.WE'RE NOT GIVING UP.
JUSTICE PARIENTE HAD AQUESTION.
YOU'RE REALLY SO FAR INTOYOUR REBUTTAL TIME.I JUST WANTED TO, AND MAYBE ITCAN BE ADDRESSED BY YOU WHEN YOU}i}iGET BACK UP, THAT THE FINANCIALIMPACT STATEMENT, I UNDERSTANDTHAT THE PURPOSE OF THISAMENDMENT IS REALLY TO BRINGFROM THE OPPONENT'S POINT OFVIEW, A LOT OF NEEDED ADDITIONALTAX MONEY INTO COFFERS OF THESTATE BUDGET AND SO YOU TAKEISSUE STRONGLY WITH THE FACTTHAT THERE IS NO MENTION ON THEPOSITIVE SIDE ABOUT HOW MUCHMONEY CAN BE GENERATED FROMHAVING A TAX ON SERVICES?
WELL, AGAIN, YOU'VE GOT TOVAIT YOURSELF FROM --LE ELEVATEYOURSELF FROM THE BRIEFS.UNDER THIS CONCEPT, ALLDECISIONS ARE UP TO THELEGISLATURE, BECAUSE THEY MAKE ADECISION TO REMOVE SOMEEXEMPTIONS, THAT DOESN'T MEANTHERE'S MONEY GOING TO FLOW INTOTHE STATE TREASURY.THEY COULD REDUCE THE RATE.WHAT THIS IS INTENDED TO DO, FORTHE GOOD OF FLORIDA, IS TOBROADEN THE SALES TAX BASE, BUTWHETHER OR NOT MONEY FLOWS ORDOESN'T IS GOING TO DEPEND --
WELL THEN THERE ISN'T A WAYTO ESTIMATE THE POA TNGSBENEFIT -- POTENTIAL BENEFIT.YOU'RE TAKING ISSUE WITH THEFINANCIAL IMPACT.
I AGREE.IF YOU TRIED -- WHAT THEY WANTTO DO IS TO SAY, IT COULDTHEORETICALLY GENERATE FROMTHIS, THIS HUGE AMOUNT OFDOLLARS.THAT MISLEADS WHAT IT'S GOING TODO BECAUSE IT HAS NOTHING TO DO.THE THRUST OF THE AMENDMENT ISTO SAY FOR THE PEOPLE, TO SAYTHE LEGISLATURE, WE WANT YOU TOLOOK AT THIS STATE TAX, I READABOUT IT ALL THE TIME SERKEVERYBODY KNOWS IT'S BROKEN, WEWANT YOU TO LOOK AT IT ONE BYONE AND TELL US WHY THISEXEMPTION IS THERE, AND WHY THISSERVICE IS EXCLUDED, AND AT THEEND OF THE DAY, LEGISLATURE, YOUCAN DO WHATEVER YOU WANT TO WITHTHAT MONEY, YOU CAN REDUCE THERATE, YOU CAN DO WHATEVER YOUWANT TO, IT'S STRICTLY THAT PROSTIES.
WOULD YOU ADDRESS WHY THEPHRASE PUBLIC PURPOSE IS NOT OFCONCERN DUE TO THE NATURE OFTHAT EVER SHIFTING CONCEPT UNDERFLORIDA LAW?WE HAVE ONE DEFINITION WITHREGARD TO BONDING CAPACITY, WEHAVE A DIFFERENT DEFINITION WITHREGARD TO TAXATION, WE HAVE ADIFFERENT DEFINITION WITH REGARDTO EMINENT DOMAIN.WHAT IS -- DOES THAT CREATE APROBLEM, THAT -- OR IS THELEGISLATURE JUST FREE TO SHIFTAND MOVE AND TO DECLARE IT EACHTIME?WHAT IS THE --
ONE OF THE THINGS WE DEBATEDIN CRAFTING THIS, ONE OF THEREASON WE PUT SOME LANGUAGE INTHERE, IS SOME OF US DEBATEDWELL IF YOU JUST SAY PUBLICPURPOSE, IT'S WHATEVER THELEGISLATURE WANTS TO DO AND ITHINK THAT'S WHAT IT IS.I DON'T THINK A COURT WOULDINTERVENE IN THAT DECISION,EXCEPT SOME WAY FRINGE AREAISSUE, AND SO THAT'S THE ONLYTERM OF ART THAT YOU CAN USEWHEN YOU SAY SOMEBODY HAS TOREVIEW IT.BUT THAT PUBLIC PURPOSE DECISIONIS GOING TO BE INHERENTLY ALEGISLATIVE DECISION, WHICHCOURTS WILL DEFER TO, BUT THEPOINT WAS --
IT'S GOING TO BE OF ACONSTITUTIONAL MAGNITUDE,BECAUSE IT'S NOW IN THECONSTITUTION AND WE HAVE THOSEVARYING CONSTITUTIONAL DID HEHAVE NOTIONS AND DIFFERENTSECTIONS.
PUBLIC PURPOSE, IT'S EMBEDDEDTHROUGHOUT OUR CONSTITUTION.IT'S KIND OF A -- IT'S KIND OF A99A -- TO SAY ON ONE HAND THEEXEMPTION IS OK, IT SERVES ANON-PUBLIC PURPOSE, THAT'SCALLED EMBEDDED IN WHATGOVERNMENT DOES.I THINK IT'S -- I THINK THE WAYIT'S WRITTEN OUT TAKES AWAY SOMEOF THE CONCERNS THAT WERE HELDOVER THE LAST ONE.IF YOU READ YOUR PRIOR OPINIONABOUT THE DISPARATE SERVICES,ALL THREE THE WAY YOUARTICULATED IN YOUR OPINION AREADDRESSED HERE AND WE TRIED TOCLEAN IT UP.UNFORTUNATELY, WE WERE TOOOPTIMISTIC.WE THOUGHT WE COULD GET THESIGNATURES WE DID.QUITE FRANKLY, THE WAY THISPROCESS WORKS, UNTIL YOU GET ANOPINION, THAT SAYS YOU MEETSINGLE SUBJECT, YOU HAVE A HARDTIME GETTING SIGNATURES, ANDSOMETIMES COURTS GET BEHIND ORLEGISLATURE PUTS DEAD LINES, ANDSO YOU GET YOUR DECISIONS TOOLATE IN THE PROCESS, SO WHATWE'RE HERE TODAY TO SAY IS,CONSISTENT WITH THE LEGISLATIVEINTENT OF YOUR JURISDICTION,YOUR LANGUAGE IN THE HOLMSTEADDEMOCRACY CASE, WE'VE GONE TOTHE TIME AND EXPENSE TWO TIMESTO GET HERE, THAT WE'RE ENTITLEDUNDER YOUR JURISDICTION OF TOHAVE A DECISION THAT WE THINKTHIS MEETS SINGLE SUBJECT.YOU MAY SAY THAT AT LEAST AS TOTHE SERVICE ACT, WHICH HAS ASPECIFIC DATE IN IT, EXEMPTIONSDOES NOT, THAT THAT HAS A BALLOTPROBLEM AND WE WOULD WELCOMETHAT AS A RESPONSIBLE REACTIONTO OUR EFFORTS.
YOU'VE EXTENDED BEYOND YOURTIME.I'LL GIVE YOU A COUPLE MINUTESIN ADDITION.
THANK YOU.
TO RESPOND.
ATTORNEY TUNNICLIFF.
MAY IT PLEASE THE COURT, MYNOM IS CYNTHIA TUNNICLIFF, I'MAPPEARING HERE TODAY WITH ANNSTINGLE FOR THE INTERESTEDPARTIES.BOTH OF THESE AMENDMENTS, BOTHTHE EXTENSION OF THE SALES TAXTO PREVIOUSLY UNTAXED SERVICESAND THE ELIMINATION OF THE SALESTAX EXEMPTIONS ARE INVALID FOR ANUMBER OF REASONS THAT WE'VE PUTIN THE BRIEF, BUT NOT THE LEASTOF WHICH IS THAT THEY'REINTERTWINED WITH THESE DATES OFJULY 1, 2008, AND JANUARY 1,2009.
WELL YOUR OPPONENT SEEMS TOVIRTUALLY CONCEDE THAT ISSUE,BUT WHAT ABOUT THE -- HE WANTSUS TO ADDRESS THE MERITS ANYWAYTO GIVE THEM SOME GUIDANCE WHENTHEY COME BACK WITH NEWLANGUAGE, SO WHAT ABOUT THEMERITS AND WHY IS THERE A SINGLESUBJECT VIOLATION?
WELL, FIRST OF ALL, WITHREGARD TO THE MERITS, THIS COURTIN ITS 2004 OPINION SPECIFICALLYHELD THAT THERE WERE THREE --THAT THAT AMENDMENT ADDRESSEDTHREE DIFFERENT SUBJECTS.ONE WAS THE SCHEME FORLEGISLATIVE REVIEW OFEXEMPTIONS, ONE WAS THE SCHEMEFOR THE LEGISLATURE TO EXAMINEEXCLUSIONS, AND THEN THE THIRDMATTER THAT WAS ADDRESSED WASTHE LUM TAGS ON LEGISLATIVEAUTHORITY TO PASS EXEMPTIONS ANDEXCLUSIONS.THIS COURT IN 2004 SAID THOSE --THAT WAS CLASSIC SORT OF LOGROLLING, PUTTING ALL THREE OFTHOSE TOGETHER.WHAT THE -- WHAT THE SPONSORSHAVE DONE HERE IS THEY HAVE --THEY HAVE SEPARATED OUT THEEXEMPTION AMENDMENT FROM THEEXCLUSION EXEMPTION, BUT THEYSTILL HAVE NOT SOLVED THEPROBLEM OF LIMITATION ONLEGISLATIVE AUTHORITY.THAT LIMITATION ON LEGISLATIVEAUTHORITY IS STILL CONTAINEDWITHIN BOTH OF THEM.SO NOW WE'VE BEEN HAVING THREEDISPARATE SUBJECTS IN THEAMENDMENT, THEY HAVE NOW TWOAMENDMENTS, BOTH OF --
ISN'T EVERY PROVISION, STATEOR FEDERAL CONSTITUTION, ALIMITATION OF LEGISLATION --[INAUDIBLE]THE SUPERIOR LAW TO THE LAW THATTHE LEGISLATURE MIGHT PASS, IT'SA LAW SET OUT IN OURCONSTITUTION.SO EVERY PRO PROVISION OF THECONSTITUTION -- I'M HAVINGDIFFICULTY WITH WHY THIS DOESN'TMEET THE SINGLE SUBJECTREQUIREMENT, JUST FROM YOUR VERYOPENING STATEMENT.YOU STATED IN VERY SIMPLE TERMSWHAT THESE TWO FIRST PROVISIONSDO.AND THAT IS REQUIRE THELEGISLATURE NOW REALLY TOEXAMINE THE EXISTING SALES TAXESAND ESPECIALLY THOSE SERVICESTHAT ARE NOT TAXED, AND COME UPWITH A PUBLIC POLICY REASON FORWHY THEY SHOULD REMAIN EXEMPT.ISN'T THAT A VERY SIMPLE CONCEPTAND JUST CAPTURES IN BOTH THETITLE AND THE SUMMARY OF THESEPROVISIONS AND THAT OTHER THANTHE ISSUE WITH REFERENCE TO THEDATES, AND YOU KNOW, THAT WE'VEALL DISCUSSED HERE, ISN'T THISPRETTY STRAIGHTFORWARD, ANDMANDATING THAT THE LEGISLATURENOW EXAMINE ALL OF THE SERVICESTHAT ARE RENDERED AND COME UPWITH A GOOD PUBLIC POLICY REASONFOR WHY SOME SHOULD BE EXEMPT,WHILE OTHERS ARE TAXED?HOW MORE STRAIGHTFORWARD, SINGLESUBJECT COULD THAT BE?
WELL, FIRST OF ALL, THELIMITATION ON THIS LEGISLATIVEAUTHORITY IS IF THE LEGISLATUREDOES ENACT, THEN THE TAX WILL BEIMPOSED.IT TAKES AWAY OF THE FUNCTION OFTHE LEGISLATURE TO ACT.I MEAN, IF THE -- THEY DON'T ACTBY JULY 1, 2008.
SO YOU CAN'T SET OUT IN THECONSTITUTION A MANDATORY TAX?
BUT THAT'S NOT WHAT THIS -- IMEAN, THAT'S NOT EXACTLY WHATTHIS DOES.IT SAYS LEGISLATURE ACT BY ADATE WHICH NOW CANNOT BE MET ANDTHEN --
WELL A MANDATORY TAX WOULDOBVIOUSLY REMOVE THE LEGISLATUREFROM ANY AUTHORITY, AND SO IFYOU CAN HAVE A MANDATORY TAX, INTHE CONSTITUTION, WHY CAN'T YOUHAVE ACTUALLY A PROVISION THATGIVES THE LEGISLATURE THISAUTHORITY TO LOOK AT IT FIRSTAND OF COURSE THEY'VE GOT ADEADLINE, WHICH IS OBVIOUSLYCOMPLICATES, YOU KNOW, THIS ANDWE NEED TO WORK OUR WAY THROUGHTHAT.BUT OTHERWISE, WHAT MORE SINGLESUBJECT COULD THIS BE THANTALKING ABOUT SALES TAX ANDSALES TAX EXEMPTIONS.THESE ARE CLEARLY PRETTY MUCH, ITHINK, BY NOW, HAVING HAD TO PAYTAXES ON VIRTUALLY EVERYTRANSACTION OUT THERE THE PUBLICUNDERSTANDS WHAT A SALES TAX IS,AND WHAT EXEMPTIONS THE SALESTAXES ARE, SO HELP ME WITH WHYTHIS ISN'T A SINGLE SUBJECT IF AVERY STRAIGHTFORWARD WAY.
THIS COURT HAS ROKED ATSINGLE SUBJECT IN TWO WAYS.ONE IS THIS CLASSIC LOG ROLLING,WHETHER THE VOTER IS REQUIRED TOEXCEPT SOME THINGS IN EXCHANGEFOR OTHERS.AND ALSO, THAT THE AMENDMENTITSELF AFFECTS MULTIPLE BRANCHESOF GOVERNMENT, AND ALTERS THEPERFORMANCE OF MULTIPLE BRANCHESOF GOVERNMENT.BOTH OF THESE AMENDMENT, LET'SJUST SAY THE SERVICES TAX FIRST,IT REQUIRES THE VOTER TO ACCEPTTAXES -- SOME SERVICES THAT AREPRESENTLY NOT TAXED IN ORDER TOSECURE TAXATION OF OTHERSERVICES.
THAT'S NOT TRUE, BECAUSE THELEGISLATURE IS THE ONE THAT'SGOING TO DO THAT, IS IT NOT?THAT IS THAT THIS IS GOING TO BEUP TO THE LEGISLATURE, IT'S NOTSAYING PUBLIC, THAT THE HERE'S ALIST OF ONES THAT, YOU KNOW,YOU'RE GOING TO HAVE EXEMPTEDAND HERE'S A LIST OF ONES THATAREN'T GOING TO BE EXEMPTED, SOTHAT YEAH, YOU MIGHT, YOU KNOW,AGREE WITH THIS ONE, IF THAT'SWHAT YOU DO A LOT, YOU KNOW,KIND OF THING.THIS IS LEAVING IT UP TO THELEGISLATURE.
IT'S NOT LEAVING IT UP TO THELEGISLATURE IF THEY DON'T ACT.I MEAN, IF THIS BECOMES ANAUTOMATIC TAX, THEN A PURPOSEWILL SAY, WHAT I WANT TO TAXSERVICES ON HAIRCUTS OR -- BUT IDON'T WANT TO TAX CHILD CARESERVICES.
BUT ISN'T THE -- I GUESS THATWHAT I SEE FOR THE LEGISLATURE,IS THAT AS YOU'VE CONCEDED ANDAS JUSTICE WELLS ASKED AT THEVERY BEGINNING, THEY COULD HAVEJUST SAID, THERE SHALL BE ASALES TAX ON SERVICES.THAT'S WHAT THE PUBLIC WANTS.AND TAKE THE LEGISLATURE OUT OFEVEN BEING ABLE TO EXCLUDE OREXEMPT ANY PARTICULAR SERVICES.INSTEAD, IT SEEMS THAT THIS ISBEING SOMEWHAT D DEFERIAL INSAYING WE NOW THE LEGISLATUREHASN'T DONE THIS.WE'RE GIVING THEM A CHANCE TO DOIT AND IF THEY WON'T, THEN ITWILL BE ACROSS THE BOARD, BUTOTHERWISE THEY'RE GOING OF TOTHE OPPORTUNITY AND I GUESS THEFACT THAT IT'S A COMPROMISE,THAT IS, IN GIVING THELEGISLATURE AUTHORITY ANDSAYING, PLEASE DO SOMETHING, IDON'T SEE HOW THAT MAKES THIS ASINGLE SUBJECT VIOLATION, ORVERSUS THE ONE THAT YOU ADMITWOULD BE OK, WHICH IS JUST TOSAY A BLANKET, THERE SHALL BE ASALES TAX ON SERVICES.
I'M NOT AT ALL SURE THAT JUSTA BLANKET SALES TAX ON SERVICESWOULD -- WITHOUT SOMELEGISLATIVE INTERPRETATION OFTHAT WOULD BE VALID, BECAUSETHAT IS -- THAT IS THE COURT,AND THIS COURT IN FINE SAID THEVERY BROADNESS OF THE PROPOSALMAKES IT IMPOSSIBLE TO STATEWHAT IT WILL AFFECT AND VIOLATESTHE REQUIREMENT OF THEAMENDMENT.
WE SAY THERE'S NO INCOME TAXIN FLORIDA.CAN'T WE SAY THERE SHALL BE ANINCOME TAX IN FLORIDA?
I THINK SAYING THERE'S ANINCOME -- EVERYONE KNOWS WHATINCOME IS.IT'S DIFFERENT THAN SERVICES.WHERE IS THE SALE OF A SERVICE?
NOW YOU'RE TALKING ABOUT ANISSUE OF DEFINITION OF WHETHERIT'S CONFUSING.BUT THAT'S NOT A SINGLE --THAT'S NOT SINGLE SUBJECTVIOLATION.
WELL, I THINK THAT'S WHAT THECOURT SAID, THE BROADNESS OFWHAT THE COURT SAID IN FINEWOULD VIOLATE A SINGLE SUBJECTREQUIREMENT, BECAUSE IT EMBRACESSO MANY DIFFERENT SUBJECTS.
THE PROBLEM WE'RE HAVING HEREIS THAT THE LEGISLATURE IS GIVENTHE OPPORTUNITY TO DECIDE WHATSERVICES SHOULD AND WHATSERVICES SHOULD NOT BE TAXED.SO WHAT IS WRONG WITH THAT, ANDWHY ISN'T THAT A SIMPLE SINGLESUBJECT?
WELL, I THINK THAT IF YOULOOK AT IT FROM THE POINT OFVIEW OF WHETHER IT ALTERS ORPERFORMS VARIOUS FUNCTIONS OFGOVERNMENT, I THINK THAT CLEARLYTHERE'S A LIMITATION ON THEGOVERNMENT, ON THE LEGISLATIVEACTION.
WHAT DOES IT ALTER?
MAKES THEM DESIGNATE WHATTHEIR PUBLIC PURPOSE IS FORENACTING OR KEEPING ANEXEMPTION.
ISN'T THAT WHAT THELEGISLATURE IS DOING NOW?
THEY NOW HAVE TO --
IN OTHER WORDS, THE NEXTSESSION OF THE LEGISLATURE, THELEGISLATURE CAN DECIDE UNDEREXISTING CIRCUMSTANCES TO TAXCERTAIN SERVICES.THAT WOULDN'T BEUNCONSTITUTIONAL, WOULD IT?
TO.
SO WHAT -- YOU KNOW, WHAT'STHE DIFFERENCE WITH WHAT THELEGISLATURE CAN DO NOW AND WHATTHEY CAN DO UNDER THIS -- ITSIMPLY IS FORCING THE ISSUE INTERMS OF THAT YOU'VE GOT TO LOOKAT ALL THE COMMERCIALCERTIFICATE VOESTRANSACTIONS, -- SERVICETRANSACTIONS AND DECIDE AND TELLTHE PUBLIC THAT THERE IS APUBLIC PURPOSE FOR US GRANTINGAN EXEMPTION TO SOME, AS OPPOSEDTO OTHERS.
I THINK THAT -- ALSO, I THINK99THINK, IT PRECLUDES, WHEN YOUTALK ABOUT MULTIPLE BRANCHES OFGOVERNMENT, IT ALSO PRECLUDES ORHINDERS THE GOVERNMENT'S VETOPOWER, PARTICULARLY IF THELEGISLATURE DOES NOT ACT.IT EALUM NATES THE GOVERNMENT'SVETO POWER AND THIS COURT IN THEADEQUATE SCHOOL FUNDINGINITIATIVE RECOGNIZED THEGOVERNOR'S VETO POWER WAS ANIMPORTANT GOVERNMENTAL FUNCTIONTHAT SHOULD NOT BE INTERFEREDWITH.
SO THEN YOU GO BACK TO THISISSUE, WHICH IS THAT IF IT SAYSTHERE SHALL BE A SALES TAX ONSERVICES, AGAIN, I THINK THATCLEARLY HAS SINGLE SUBJECT, BUTTHE LEGISLATURE CAN ACT AND THEGOVERNOR CAN VETO, SO THAT'S NOTWHAT WE MEANT BY AFFECTINGMULTIPLE BRANCHES OF GOVERNMENT,IS IT?YOU KNOW, WE WANT TO MAKE SURETHAT OUR JURISPRUDENCE IN THISAREA, MAYBE IT'S NOT ALWAYS ASCLEAR AS IT SHOULD BE, BUT THATIT MAKES SOME COMMON SENSE ANDI'M -- SO THE FACT THAT IT MIGHTAFFECT ANOTHER BRANCH IN SOMEINCIDENTAL WAY IS NOT ENOUGH FORYOUA SINGLE SUBJECT VIOLATION, ISIT?
IF YOU ELIMB NATIONAL THEGOVERNOR'S VETO -- EALUMATE THEGOVERNOR'S -- ELIMINATE THEGOVERNOR'S VETO POWER -- J.
EVERY TIME THERE'S ACONSTITUTIONAL AMENDMENT, WHICHIS WHETHER IT WAS A PREGNANTPIGS ONE OR NO SMOKING INRESTAURANTS, THE LEGISLATURE ISPRECLUDED FROM ACTING AND THEGOVERNOR IS PRECLUDED FROMVETOING.AND IT ALWAYS AFFECTS THISBRANCH, BECAUSE THERE'S ALWAYSLITIGATION WITH ABOUT IT.
THAT IS TRUE.THAT'S TRUE.I'D LIKE TO ALSO ADDRESS THEBALLOT SUMMARY ISSUES.I THINK THERE'S CLEAR ISSUESWITH REGARD TO THE BALLOTSUMMARY HERE.THAT ARE DEFECTS IN ITS BALLOTSUMMARY.IT LISTS HEALTH SERVICES.NOW, HEALTH SERVICES ARE NOT ANEXEMPTION UPPED THE CURRENT LAW.THEY ARE AN EXCLUDED SERVICE.OUTSIDE THE REACH OF THE CURRENTTAX ON GOODS.THE AMENDMENT WHICH EXTENDS THESALTS TAX TO SERVICE -- SALESTAX TO SERVICES WOULD EXTEND TOHEALTH TAX SERVICES, IF NOTEXEMPTED BY THE LEGISLATURE ANDSO RATHER THAN PROTECTING HEALTHSERVICES, WE'VE GOT A CONFUSIONAMONG THE TWO COMPANIONAMENDMENTS.WHAT HAPPENS TO HEALTH SERVICES,IS IT -- IF WE AUTOMATICALLY GOINTO EFFECT ON JANUARY 1, 2009,DO HEALTH SERVICES BECOME TAXEDBECAUSE THEY ARE AN EXCLUSIONUNDER PRESENT LAW OR DO THEYBECOME EXEMPT UNDER THEEXEMPTION STATUTE?SO I THINK THERE'S A PROBLEMTHERE WITH THE BALLOT SUMMARYTHAT DOESN'T ADDRESS THAT ISSUE.
THAT'S ON THE SECOND ONE.YOU JUST SWITCHED TO THE SECONDOF THE THREE YOU KNISH -- INITIATIVES.
I THOUGHT WE WERE TALKINGABOUT ALL OF THEM.
WE ARE, BUT AGAIN, CERTAINOPPONENTS DON'T SAY THERE'S APROBLEM WITH THE THIRD ONE,RIGHT?
NO, NO.I'M TALKING ABOUT BALLOT SUMMARYWITH REGARD TO BOTH THE SERVICETAX EXEMPTION AND THE EXEMPTIONAMENDMENT.THE BALLOT SUMMARY I THINK ONBOTH OF THOSE ARE -- ISDEFECTIVE.THAT'S ONE OF THE WAYS IN WHICHTHE BALLOT SUMMARY IS DEFECTIVE.IT DOESN'T ADVISE THE VOTERS ASTO THE FACT THAT HEALTH SERVICESARE NOT AN EXEMPTION UNDER THECURRENT LAW.
WHAT ABOUT THE SUMMARY FORTHE FIRST ONE, FOR THESE SALESTAX?ARE YOU SAYING THAT THAT'SMISLEADING AND HOW?
ONE WAY, WHAT I JUST SAIDGOES TO BOTH OF THE SUMMARIES,BECAUSE THE VOTER IS NOT CLEAR.HEALTH SERVICES GOES TO BOTH.THE -- ONE OF THE OTHER WAYSTHAT THE BALLOT SUMMARY ISMISLEADING IS THIS -- THESEAMENDMENTS DO NOT ADDRESS THECORRESPONDING HIEWLS TAX. -- USE TAX, AND SO THE ONLY --IT ONLY GOES TO THE SALES TAXEXEMPTIONS, AND THE ONLY SALESTAX EXEMPTIONS ARE SUBJECT TOREVIEW AND ONLY THE SALES TAX ISGOING TO BE EXTENDED TOCERTIFICATE VOES. -- SERVICES.
ISN'T THAT NOW SOMETHINGABOUT THE MERITS OF THE PROPOSAL99PROPOSAL, THAT SOUNDS TO ME LIKESOMETHING THAT WOULD BE PART OFPOLITICAL BACK AND FORTH ABOUTTHE WISDOM OF THE AMENDMENT, BUTWE DON'T IN -- JUST BECAUSE ITDIDN'T GO FAR ENOUGH, OF COURSE,IF THEY PUT USE TAX IN THERE, ITWOULD BE SAYING WELL, NOW IT'SNOT A SINGLE SUBJECT, IT'S ALSOENCOMPASSING USE TAX.
I THINK IT GOES TO THE PLATSUMMARY. -- BALLOT SUMMARY.I THINK THE PUBLIC NEEDS TO BEAWARE OF THE TAX POLICY THAT ISINCORPORATED IN TO THISAMENDMENT.WHAT THIS -- WHEN YOU DON'T HAVETHE CORRESPONDING USE TAX INHERE, WHAT YOU'RE SAYING IS THATIF POLLUTION CONTROL EQUIPMENTIS SOLD IN FLORIDA, IT WILL BETAXED.IF IT'S SOLD IN GEORGIA, IT WILLNOT BE TAXED.OR ACCOUNTING SERVICES.I COULD SEND MY FINANCIALRECORDS TO AN ACCOUNTANT INGEORGIA AND HAVE HIM PREPARE MYINCOME TAX.THAT WOULD NOT BE TAXED.
ARE YOU ASSUMING THELEGISLATURE IT DOING SOMETHINGAS DISCRIMINATORY AS THAT.THEY STILL HAVE THE AUTHORITYWITH RESPECT TO THE USE TAX.
BUT THE ISSUE HERE IS NOTWHAT THE LEGISLATURE MIGHT ORMIGHT NOT DO.THE ISSUE HERE IS WHAT DOES THEVOTER DO AND WHAT IS THE VOTERAWARE OF WHEN THEY GO IN TO THEBALLOT BOX?
ARE YOU TALKING ABOUT JUSTMAKING IT EVEN MORE COMPLICATEDBY MANDATING THAT IF YOU'REGOING TO HAVE A PROPOSAL LUKETHIS, THAT YOU ALSO HAVE TO HAVEA PROPOSAL ABOUT USE TAX?NOW, WHY DO YOU HAVE TO DO THAT?WHY -- HERE THIS LEAVES THELEGISLATURE FREE, WITH REFERENCETO -- AND QUITE CANDIDLY, IDON'T SEE HOW THE USE TAX ISSUECOULD GET ANY MORE COMPLICATEDTHAN IT ALREADY IS.WITH REFERENCE TO ALL THESEISSUES, DEDUCT THE SALES OVERTHE INTERNET AND CONSTITUTIONALQUESTIONS THAT ARE RAISED ANDDIFFERENT WAYS THAT ALL THEDIFFERENT STATES, YOU KNOW,TREAT THIS.BUT WHY DOES IT HAVE TO TREATUSE TAX IF IT JUST TREATS SALESTAX?IT JUST MAKES IT SIMPLER ANDCLEANER, DOES IT NOT?
I THINK IT MAKES IT MORECONFUSING, BECAUSE THE VOTERDOESN'T REALIZE WHEN THEY GOINTO THE VOTING BOOTH, THAT'SWHAT THE BALLOT SUMMARY ISSUPPOSED TO DO.THE BALLOT SUMMARY IS SUPPOSEDTO ENSURE THAT THE VOTER ISSUFFICIENTLY AWARE OF THEPROPOSAL TO ENABLE HIM TO MAKEAN INTELLIGENT CHOICE.
AND IT JUST DEALS WITH SALESTAX, SO WHAT WOULD YOU WANT THEMTO DO ABOUT THE USE TAX?
I THINK THEY SHOULD MAKECLEAR THAT IT WOULD BE -- THATIT IS ONLY SALES TAX, AND THATTHESE KINDS OF POLICY --
IT SAYS THAT IT'S ONLY SALESTAX.
BUT I THINK THAT -- I THINKTHAT PERHAPS THE -- THE VOTERMIGHT NOT KNOW THAT THATINCLUDES USE TAX.IT SHOULD SAY SPECIFICALLY THATIT DOES NOT INCLUDE USE TAX.THEY ALSO FAIL TO DISCLOSE IFTHE -- ANY EFFECT ON THEGOVERNOR'S VETO POWER HERE ASWELL, WHICH --
HAVE YOU FOUND ANY AUTHORITYFROM ANY OTHER JURISDICTIONDEALING WITH THE TIME ISSUE?ABOUT THE FACT THAT ASSUMINGTHIS GOES ON THE 2008 BALLOT,THAT THE JULY 1 DATE WILL HAVEALREADY PASSED?THE JANUARY 1 DATE, YOU KNOW,COMING UP, WILL BE WITHIN ABOUTA MONTH AND A HALF.HAVE YOU FOUND ANY AUTHORITYFROM ANY OTHER JURISDICTIONSTHAT HAVE A SIMILAR SCHEMEDEALING --
WE HAVE NOT, NO.BUT I DO THINK THAT THE ISSUE,AS TO THE DATES, GOES RIGHT TOTHE SPECIFIC ISSUES THAT THISCOURT IS TO DECIDE ON THESETYPES OF BALLOT INITIATIVECASES.IT GOES TO THE BALLOT SUMMARYAND THE ISSUE OF SINGLE SUBJECT.THIS COURT IN THE FLORIDALOCALLY APPROVED GAMING CASE,WHICH WE CALL FLAG, AS A SHORTTERM, THE DATE ISSUE WAS ONE TOBE RESOLVED IN THIS INITIATIVEPROCEEDING.NOW THE COURT SAID THAT IT WASNOT DETERMINATIVE OF VALIDITY INTHAT ISSUE, BUT IT STILL DECIDEDTHE DATE ISSUE IN A BALLOTINITIATIVE PROCEEDING, BUTUNLIKE THE AMENDMENT IN FLAG,THE DATES IN THESE AMENDMENTSARE SUBSTANTIVE PRO VUGS OF THEAMENDMENT.UNDER THESE AMENDMENTS, THELEGISLATURE CANNOT ACT BYJULY 1, 2008, AND THE TAX WILLGO INTO EFFECT ON JANUARY 1,2009.THE BALLOT SUMMARY IN FLAGSIMPLY STATED THAT THERE WOULDBE LEGISLATIVE IMPLEMENTATION OFTHE AMENDMENT AND THE AMENDMENTLANGUAGE ITSELF PROVIDED THATSUCH IMPLEMENTATION SHOULD BE BYA DATE CERTAIN.
WHY CAN'T THAT SIMPLY BE THESUBJECT OF FUTURE LITIGATION?THAT IS, THAT IMMEDIATELY A DECKACTION OR SOMETHING WILL BEFILED SAYING THAT THIS REALLYCAN HAVE NO EFFECT ON THELEGISLATURE SINCE THE DATE ISALREADY PASSED AND THE OTHERDATE -- CAN THE COURT LOOK ATTHAT AND DECIDE WHAT EFFECT.
BECAUSE IT GOES TO THE BALLOTSUMMARY.THE BALLOT SUMMARY IS -- THEBALLOT SUMMARY SAYS THAT THELEGISLATURE WILL REVIEW THESECERTIFICATE VOES AND -- SERVICESAND EXEMPTIONS, AND IF THEYDON'T REVIEW THEM BY JULY 1,THEN THEY'LL GO INTO EFFECT.THAT IS THE BALLOT SUMMARY.THAT IS NOT GOING TO HAPPEN.THERE IS NOT GOING TO BE AREVIEW BY JULY 1.
WHAT YOU'RE SAYING IS AT THEVERY HEART OF THE PROPOSEDAMENDMENT IS THAT WE WOULD HAVELEGISLATIVE REVIEW OF ALL OFTHESE SERVICES, TO DETERMINE IFTHEY'RE GOING TO BE TAXES, ANDTHAT CANNOT BE DONE UNDER THELANGUAGE THAT'S NOW PROPOSED.
I THINK THAT -- I THINKIT'S -- THE AMENDMENT ISSELF-EXECUTING AS WELL.IT DOES SAY THERE WILL BELEGISLATIVE REVIEW BY JULY 1,BUT IT ALSO SAYS IF THERE IS NOLEGISLATIVE REVIEW.
GIVE AN OPINION SAYING THATALL OTHER THINGS IN THESE AREFINE.WOULDN'T IT BE A SIMPLE MATTEROF THE PROPONENTS CHANGINGTHIS -- CHANGING THESE DATES,RECOMMITTING THESE PROPOSEDAMENDMENTS, AND GETTING ON WITHIT?I MEAN, WOULDN'T THAT SOLVE THEPROBLEM?THEY HE COULD CHANGE THESE DATESTO 2010, AND --
YOU MEAN -- SO IN EFFECT,HAVE NEW AMENDMENTS, THEY COULDREWRITE THE AMENDMENTS, YES.BUT THESE AMENDMENTS AREINVALID, BECAUSE THE BALLOTSUMMARY, FOR ONE THING, IS JUSTINACCURATE.
IT HAS -- IT PROVIDES FORDATE CERTAIN THAT CANNOT TAKEPLACE, IT PROVIDES FORLEGISLATIVE REVIEW AND THEN THEAUTOMATIC TAXATION ON JULY 1,WHICH IS ACTUALLY -- I MEAN,JANUARY 1, WHICH IS ACTUALLYBEFORE THE EFFECTIVE DATE OF THEAMENDMENT.THE EFFECTIVE DATE OF THEAMENDMENT WOULD BE THE FIRSTTUESDAY AFTER THE FIRST MONDAY,SO THESE AMENDMENT CAN'T GOFORWARD IN THE BALLOT SUMMARY ISJUST ENACTED.
THANK YOU VERY MUCH.YOU'VE EXTENDED YOUR NAME.MR. NABORS, YOU GET A COUPLE OFMOMENTS.
MR. NABORS, LET ME ASK YOU AQUESTION THAT'S BURNED INTO MYHEAD AT LEAST AND THAT IS THATAM I READING THIS RIGHT, THATREGARDLESS OF WHICH DATE ISHERE, UNDER THIS SCHEME, THAT IFTHE LEGISLATURE DOESN'T ACTUNDER THIS SCHEME BY JULY 1 OF2008, BUT IF THERE ISN'T ANEXEMPTION THAT IS ADOPTED, THENTHAT'S GOING TO BE TAXED FOREVERMORE, THAT BINDS EVERY FUTURELEGISLATURE?
NO.IT BECOMES TAXED AT THAT POINT.THE NEXT SESSION THEY COULD MAKEA DECISION.
WHERE DOES IT SAY THAT?
BECAUSE THE WHOLE THRUST HASTO DO WITH MANDATING A REVIEWTHAT OCCURS.IT DOESN'T PRECLUDE A FUTURETAXATION OF FOOD, IT DOESN'TINCLUDE A REENACTMENT OF ANEXEMPTION.
IT SAYS ALL SERVICES THAT ARENON-EXEMPTED, SHALL BE SUBJECTTO THE EXISTING TAX EFFECTIVEJANUARY 1.
RIGHT.
NOW THAT WOULD READ TO METHAT IF SOMETHING ISN'T EXEMPTBY THAT DATE IN -- WHAT'S GOINGTO HAPPEN HERE IS THAT WE'REGOING TO HAVE A TAX, AND IF IT'SNOT EXEMPTED, THEN FOREVER MORE,EVERY FUTURE LEGISLATURE ISBOUND.
NO, I DON'T READ IT.IT'S NOT INTENDED THAT WAY.BUT IT DOESN'T SAY, ANDTHEREFORE SHALL ALWAYS BE TAXED.IT SHOES SAYS AT THE END OF THISREVIEW, IF THE LEGISLATURE MAKESA DECISION NOT TO REENACT IT, ITHAS TO -- LEGISLATURE HAS REALLYTHREE CHOICES.IT CAN BASICALLY REASON ENACT AFIRST EXEMPTION WITH CERTAINCONDITIONS, WHOLE OR IN PARTLIKE IT DID, IT CAN PROVIDETAXATION FROM SOME LAW SERVICES,NOT OTHERS, IT WOULD REENACT ITIN TOTAL OR STAND SILENT UNLESSTHE AMENDMENT WORKS.DOESN'T MEAN THE NEXT TWOSESSIONS, IT CAN'T CHANGE ITSMIND.THERE'S NOTHING IN HERE THATWOULD GIVE THE READER THAT.THE LEGISLATURE --
LET ME ASK YOU ONE OTHERQUESTION I HAD IS IN THE BODY OFTHE AMENDMENT, IT SAYS A SINGLESERVICE SHALL BE THAT RENDEREDBY BUSINESS, INDUSTRY, ORPROFESSION, WITH AT LEAST THESAME FOUR DIGITS IN THE NAICSCODE.NOW THAT IS NOT A WORD ABOUTTHAT IN THE SUMMARY.ISN'T THAT A PROBLEM?
NO, I DON'T THINK THAT IS.THAT'S -- THAT'S A DEFINITIONALTHING, TO TRY -- I MEAN, I DON'TTHINK ANYTHING -- THE QUESTIONOF THE SUMMARY IS IS THE SUMMARYINFORMED THE VOTER, INFORMED THEVOTER AS TO WHAT THEY'RE VOTINGON.
IT DOESN'T INFORM THE VOTERTHAT THERE'S ANY LIMB LIMITATION ONWHAT SOMEBODY IS GOING TODESIGNATE A SERVICE IF YOU READTHE SUMMARY.
WELL I WOULD NOT AGREE WITHTHAT.I THINK IT GOES BEYOND.IT'S A DETAIL THAT GOES BEYONDTHE THRUST OF WHAT ANINTELLIGENCE VOTER WANTS TO KNOWTO PASS THE AMENDMENT.
MR. NABORS, THANK YOU VERYMUCH.WE HAVE THANK THE PARTIES FORYOUR ENLIGHTENING ARGUMENTS ANDWE'LL TAKE THE CASE UNDERADVISEMENT.THANK YOU VERY MUCH.
TAKE THIS OPPORTUNITY TOWELCOME THE GAD SEND COUNTY TEAMCOURT.THEIR SUPERVISOR TEACHER DEBBIEMUELLER AND WE HAVE SOMERESOURCE OFFICERS AND FAMILY ANDFRIENDS AN OTHER TEACHERS OFTEAMTEEN COURT, WE WELCOME YOU TOTHE FLORIDA SUPREME COURT.WE SUPPORT THE EFFORTS OF TEENCOURT, MOST OF US ON THE BENCHHAVE WORKED WITH TEEN COURTSHERE IN TALLAHASSEE IN ONE WAYOR ANOTHER, AND WE'RE PLEASEDTHAT YOU BROUGHT THE STUDENTSINTO WATCH GOVERNMENT AND TOWATCH THE COURT PROCESS INOPERATION.SO WE WELCOME YOU AND WE'RE GLADYOU'RE HERE.