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Judges: Voters don't have the power to set tax rates

| Wednesday, Sept. 3, 2008, 12:00 p.m.

Voters do not have the authority to set Allegheny County's drink tax rate, three judges said Tuesday before removing two competing questions from the November ballot.

Common Pleas Judges Christine Ward, Dwayne Woodruff and Jill Rangos unanimously rejected both a County Council-generated ballot question and one championed by Friends Against Counterproductive Taxation and signed by 44,000 voters. Both sought to repeal or reduce the 10 percent levy passed this year to fund public transit.

In a voice vote, the panel said both measures are illegal because state law and case law gives governing bodies -- not voters -- the authority to set tax rates.

"The questions, in our opinion, are advisory in nature and, in our opinion, are not valid for referenda," Ward said.

They did not issue a written opinion.

The judges served on the Board of Elections in place of county Chief Executive Dan Onorato and Councilmen Chuck McCullough and John DeFazio, who recused themselves because they had taken public positions on the drink tax.

"It seems a little odd that constituents and voters are not allowed to vote on our preferences in taxes," said Jason Hominsky, 33, a Shaler homeowner. "The voters should have their say, absolutely. With that in mind, I think it would have failed ... but I think we should have had the chance to vote on it."

"So, all that work was for nothing?" asked Curtis Stepp, 51, a Butler County resident who runs a bar in Tarentum. "I think Dan Onorato just wants what he wants and nobody cares."

Onorato has said he supports the drink tax and hoped voters would say no to both questions.

"Having neither question on the ballot is fine, too," Onorato said. "I thought it was interesting both questions were thrown off for the same reason. The power rests with the legislative body to set policy."

FACT said it will appeal to Common Pleas Court, and member Kevin Joyce said the group will argue the case all the way to the state Supreme Court, if necessary.

"(We're) disappointed (but) determined to continue the fight," said Joyce, who owns The Carlton, Downtown. "You just have a sense the deck has been stacked against us from the get-go ... but, all along, we've prevailed as citizens trying to do the right thing."

Time is running out for elections officials to place questions on ballots. Elections manager Mark Wolosik said he needs questions by the first week in October to ensure they make it onto electronic voting ballots, though military and overseas ballots already have been sent out without the two questions on them.

FACT, through its Whiskey Rebellion II drive, collected nearly twice the 23,006 signatures it needed to get its referendum considered for the November ballot. Last week, county Solicitor Mike Wojcik said their referendum -- which would slash the drink tax from 10 percent to 0.5 percent -- was illegal because it violates state law and the county Home Rule Charter by capping the tax and remaining silent on how to make up for lost revenue.

Wojcik said the council-backed referendum, which asks voters whether they wish to eliminate the drink tax in favor of higher property taxes, is legal. Council's Democratic majority passed the ballot question, though officials had said they hope it fails at the polls.

It remained unclear yesterday whether County Council would appeal the board's decision. To do so, it would need to take a full council vote, Solicitor Jack Cambest said.

DeFazio, D-Shaler, said he would need to consult with legal experts before deciding if he would consider an appeal. Councilman Vince Gastgeb, R-Bethel Park, was less certain an appeal would be a good idea.

"When a legislative body puts a legally insufficient question on, I think that's embarrassing (and) if it's that cut and dried, I hope we're not going to take an appeal going nowhere," Gastgeb said. "To me, it's still an unjust and needless tax that has government picking the pockets of our residents when they could least afford it."

"I think their decision is likely to stand, no matter how high it's appealed," said McCullough, R-Upper St. Clair, who opposed the council-backed referendum. "The problem is still that we have an unfair tax (and) that's why it's best to resolve things amicably."

Onorato was undaunted by the prospect of a FACT appeal.

"That's their prerogative," he said. "I felt their question was illegal from the beginning. I will not let Kevin Joyce or anyone else use the courts to raise property taxes. I think a few people out there would like nothing better than to see me raise property taxes."

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