Fuchs v. Robbins dictum on property appraiser standing to challenge taxing statutes inconsistent with longstanding precedent set in Atlantic Coast Line.

• Author: Weber, Vicki
• Position: Florida

Throughout Florida, individual property appraisers are challenging the constitutionality of taxing statutes enacted by the legislature, including laws that have been on the books for decades. (1) They are bringing these challenges despite a line of cases beginning with State ex rel. Atlantic Coast Line Ry. Co. v. State Bd. of Equalizers, 84 Fla. 592, 94 So. 681 (1922), which hold that they have no standing to do so. Instead, dictum in Fuchs v. Robbins, 818 So. 2d 460, 464 (Fla. 2002), has emboldened some appraisers to attack property tax laws of which they disapprove. (2)

In Fuchs, the Florida Supreme Court held that a property appraiser lacked standing to initiate an action to challenge the constitutionality of a property tax statute. However, the court then suggested in dictum that an appraiser may have standing to defensively challenge a statute in an action initiated by a taxpayer contesting a property assessment. Of course, such a defensive challenge generally would arise only after the appraiser first disobeyed the statutory command when assessing property, in effect forcing the taxpayer to initiate the litigation. By so acting, the Florida Supreme Court held long ago, the appraiser would be encroaching upon the exclusive power of the judiciary to determine the constitutionality of state statutes.

The dictum in Fuchs relies upon dictum in an earlier decision, but it does not square with the clear holdings of decisions in which the Florida Supreme Court settled this issue. For example:

* The Fuchs dictum directly contradicts the rationale articulated in Turner v. Hillsborough Aviation Authority, 739 So. 2d 175 (Fla. 2d DCA 1999), the opinion of the Second District Court of Appeal that was expressly adopted by the Fuchs court to address the issue of a property appraiser's standing to challenge Florida tax statutes.

* It directly conflicts with the holding in Atlantic Coast Line, a case that was relied upon by the Fuchs court, that involved just such a defensive challenge to a statute, and that has provided the rule of decision in other cases decided by the Florida Supreme Court.

* The Fuchs dictum conflicts with the general standing doctrine applicable to public officials enunciated in other decisions, and which is grounded upon sound public policy.

The Role of the Property Appraiser

Property appraisers in Florida are constitutional officers, but they have no inherent constitutional duties. Their duties are specified by statute. (3) They assess property for ad valorem tax purposes. (4) They are not responsible for enacting tax laws or prescribing tax policy; they do not impose or levy taxes, they do not collect taxes, and they do not refund taxes. (5)

Fuchs v. Robbins

Fuchs involved a challenge to Florida's "substantial completion" Statute. (6) This statute provides that real property shall be assessed on January 1 if it is substantially complete. (7) In Collier County v. State, 733 So. 2d 1012 (Fla. 1999), this law was described as a "timing statute." (8) Without this law, each year thousands of homeowners would be required to pay taxes on their partially constructed homes, even though they could not reside in them and thus could not claim entitlement to the homestead exemption. (9)

In Fuchs, the Dade County property appraiser refused to apply the statute to a partially constructed hotel building, and the taxpayer challenged the assessment. The value adjustment board (VAB) ruled for the taxpayer, and the property appraiser initiated a lawsuit challenging the VAB's decision and the validity of the statute. A panel of the Third District Court of Appeal initially ruled that the property appraiser had standing, and that the statute was constitutional. On rehearing en banc, the Third District reversed itself and ruled that the statute was unconstitutional. (10) The majority opinion on rehearing did not address the standing issue, but it was discussed in a concurring opinion. The court concluded that the appraiser was in a defensive posture because he was reacting to a decision of the VAB, and that in any event the appraiser was entitled to pursue his claim because he was involved in collection of public funds, which could be equated to disbursement of public funds, for which there exists an exception to the general rule which denies public officials standing to challenge state laws.

Meanwhile, the Second District Court of Appeal was considering the Turner case. In that dispute, the Hillsborough County property appraiser refused to recognize an ad valorem tax exemption for governmental property authorized by F.S. [section] 196.012(6). The exemption was claimed for property owned by the Hillsborough Aviation Authority and leased to the Tampa Sports Authority for use as a baseball facility. The aviation authority petitioned the VAB, challenging the appraiser's denial of the exemption, and prevailed.

The property appraiser then brought suit in circuit court, challenging the VAB's decision to grant the exemption. The aviation authority moved to dismiss the property appraiser's complaint, alleging that he lacked standing to challenge the constitutionality of a statute. The property appraiser argued that he was not challenging the statute, only the decision of the VAB to apply it, and that--in any event--he fell within exceptions to the general rule that otherwise precludes a public official from challenging the constitutionality of a statute.

The Second District ruled that the property appraiser's claim effectively challenged the constitutionality of the statute, and that he lacked standing to do so. In rejecting the appraiser's argument that he was entitled to challenge a statute defensively, the Second District explained:

[I]f the property appraiser had followed the law initially, as State ex rel. Atlantic Coast Line Railway Co. dictates he is obligated to...