In the build-up for this month's special session, Gov.
Charlie Crist's office requested a legal brief from FSU
law professor Nat Stern over whether its plan to create Save
Our Homes portability could hold up in court.
Now it could be one of the hottest legal questions in Florida.
Two groups have already tried to challenge SOH in court as an
affront to the federal constitutional rights to travel and
commerce. Other groups are lining up to join the fray, including
one where the nation of Canada may be the plaintif.
Last spring, noted tax lawyer Walter Hellerstein concluded
portability could convince a judge that the 'locked in'
disparity between new and longtime homeowners was unconstitutional.
He also noted the repercussions could be forcing homeowners or the
government to give back billions of dollars to make amends.
In his 10-page memo to the governor's office, Nat Stern
concluded that while he doesn't think portability was
'infirm' legally, including a 25 percent assessment
discount for new home buyers 'remediates as closely as possible
any penalty that new purchasers would suffer for not having
established a Florida homestead sooner.'
Only problem: lawmakers left that out, in part, because it
didn't poll well with voters.
Professor Stern commented that while he hasn't studied the
entire bill, 'I see that inclusion of the first-time home buyer
discount bolsters the state's case' against a commerce
clause challenge.
Other lawyers think the whole system is ripe for a challenge.
University of Florida local government lawyer Michael Allan
Wolf says Florida loses one of the arguments courts have
recognized in upholding SOH so far -- that it promotes stability in
communities. Portability promotes mobility, he says.
"Now the justification for Save Our Homes in the first place
we lose once we have portability."
House Speaker Marco Rubio, R-West Miami spoke candidly, We
may not know the unintended consequenses of this thing for years, I
believe that someone's going to challenge this, and it's
going to have to work it's way through the federal court
system.'
The Governor's office is still comfortable with his legal
counsel's view that portability will withstand a legal
challenge. Gov. Crist is criscrossing the state promoting the
plan.
But there is widespread agreement among lawmakers- even those who
drafted and voted for the amendment - that this plan will
ultimately end up getting its day in court.
