CITY OF HALLANDALE BEACH, FLORIDA

MEMORANDUM

DATE: August 30, 2008

TO:                  D. Mike Good, City Manager

FROM:            David Jove, City Attorney

SUBJECT:     Consideration of Joining the Lawsuit filed by Mayor Eric M. Hersh                                        Pertaining to Property Tax Reform Legislation

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The City Commission has requested the City Attorney’s Office provide an opinion as to whether the City can file an Amicus Brief on one or more of the matters being considered in the lawsuit filed by Mayor Eric M. Hersh (Case No. 37-2007-CA-1862).

The subject lawsuit seeks Declaratory Relief against the Florida Department of Revenue to declare Sections 1 through 12 of SB HB1 (the “Statutory Restrictions on Local Millage Rates”) that purport to limit the authority of local governments to set a millage rate of up to ten mills, to be in violation of Article VII, Section 9, Florida Constitution, since HB 1B was enacted prior to the adoption of the Constitutional Amendment.  The lawsuit also brings this Complaint against the Secretary of State to declare that: (a) the ballot statement concerning the Constitutional amendments proposed in SJR 4B is unconstitutionally misleading and improper; and (b) the calling of a special election in HB 5B for multiple constitutional amendments is unconstitutional.

The answer to the City Commission’s question on filing the Amicus Brief is yes.  However, the Court would have to consent to the City’s request, since in lawsuits there is no allowance for outside parties to get involved unless the Court approves.  In other words, the City could file a Motion to Intervene, Appear, and for the Court to consider the City’s Amicus Brief; however, it should be noted that the Court could reject the City’s petition.

Presently, the Hersh lawsuit is set for hearing in Tallahassee for September 11, 2007, and the Court on this date will determine if any of the matters considered in the lawsuit are valid.  It is expected that whatever the Court’s ruling, there will likely be an appeal to a Higher Court by the affected party.

I have spoken with Jaime Cole, Esq., lead counsel in the Hersh lawsuit.  He has informed me that at this late stage in the litigation, the best strategy would be for the City, if it chooses to do so, to file a Motion to Intervene and Appear at the hearing of September 11, 2007 and, should the Court allow it, appear as a Party in the lawsuit expressing the City’s concerns and leaving the legal argument to lawsuit’s lead counsel.

It is the City Attorney’s opinion that Mr. Cole has more than adequately addressed the legal issues, and that a Motion to Intervene and Appear should suffice.  However, should the City Commission desire to file an Amicus Brief, which I do not recommend for the reasons stated above, it is my opinion that it should be on all issues identified in the Hersh lawsuit since no one issue standing alone, is necessarily more important than the other.  Addressing only one issue, may appear, and or actually may undermine the existing suit’s legal arguments on other issues.

Review:

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D. MIKE GOOD, CITY MANAGER                                                                  DATE 

_______ Approved                  ________ Deny                       ______ Hold for Discussion

Comments:

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