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Officials, others respond to school vouchers case

The Florida Supreme Court’s decision not to take up a contentious school vouchers lawsuit continued to garner reaction throughout Wednesday.

Betsy DeVos, President-elect Donald Trump‘s nominee for U.S. Education Secretary, tweeted, “Congrats to the Florida families who have a clear path toward more opportunity due to #SchoolChoice w/ today’s FL Supreme Court decision!”

Florida House Democratic Leader Janet Cruz of Tampa, in a statement, called the move “a blow to our state’s Constitutional promise of  ‘a uniform, efficient, safe, secure, and high quality system of free public schools.’ ”

“We can all agree that the zip code of a child’s birth should not be a determining factor in their access to a high quality public education,” she said. “However, for almost 20 years now, since the passage of Gov. Jeb Bush’s original unconstitutional voucher system, Florida has diverted billions of taxpayer dollars away from our public schools in a misguided attempt at outsourcing our children’s education to for-profit corporations and fly-by-night profiteers.

“Instead, these resources should have been spent improving our neighborhood schools, focusing on options that we know have a proven success rate and a genuine benefit to the public they are meant to serve, such as the community schools model,” she added. “Unfortunately, some continue to view our children as a commodity from which every ounce of profit should be squeezed.

“Even with today’s setback, House Democrats will continue to fight on behalf of the thousands of parents and students who have been failed by legislative leaders more intent on serving an ideology of boundless privatization rather than a commitment to the educational well-being of our children.”

Bush, the president and chairman of the Foundation for Excellence in Education (ExcelinEd), the school reform group he founded, said the decision is “a powerful reminder to entrenched special interests that when policymakers work hand-in-hand with Florida’s families, students win.”

“It is my hope that opponents of Florida’s efforts to help our most vulnerable students will stop impeding successful reforms and join us in ensuring all students have access to excellent educational options,” he said.

Cruz’s counterpart, Republican House Speaker Richard Corcoran, called the court’s order “a great victory for school children, parents, and classroom teachers who want the best for their students.”

“I thank the many organizations, pastors, parents, and children who advocated for fairness and justice in our education system and wish them all a great school year,” he said.

Attorney General Pam Bondi said she was “pleased that the lower court’s decision will stand, and that this important program will continue to provide educational opportunities for children of families that have limited financial resources.

“Today is a great victory for our children,” she said in a statement.

Americans for Prosperity-Florida (AFP-FL), the state’s pro-free market organization, called Wednesday “a day to celebrate.”

“Our childrens’ future looks brighter than ever,” AFP-FL state director Chris Hudson said in an email. “Last year, the legislature enacted several common sense reforms to improve access to a quality education. Today’s ruling furthers the initiative to ensure that parents can make the best decisions for their children.”

Florida TaxWatch President and CEO Dominic M. Calabro said the program “provide(s) lower income families, most of whom are minorities, the opportunities to receive a high quality education and are funded through donations from businesses across the state.”

“Educating our children, particularly those who do not have the same opportunities as others, is crucial in ensuring that they can go on to college, earn a degree and begin a career that offers them prosperity and success,” Calabro said in a statement. “…With the lawsuit officially over, the state does not have to continue to spend taxpayer dollars on what could have been an expensive battle at the Supreme Court.”

Cesar Grajales, Florida Coalitions Director of The LIBRE Initiative, a project of Americans for Prosperity focused on the Hispanic community, said the court “was right to defend the needs of Florida students by dismissing the attacks from unions.”

“School choice is a powerful tool to ensure that our community has the best access to education possible,” Grajales said. “…I am looking forward to working with the Florida legislature to continue expanding reforms that ensure parents and students can achieve their educational goals.”

classroom school vouchers

Teachers’ union: “Who can challenge the Legislature on voucher program?”

The Florida Education Association (FEA) vented its “frustration” Wednesday after the Florida Supreme Court declined to take up a suit challenging the constitutionality of what’s been called “the nation’s largest private school choice program.”

The court decided not to hear a challenge to the Tax Credit Scholarship Program, created in 2001, though – as one former judge noted – its order “doesn’t say (it) lacks jurisdiction.” (Main story here.)

That had Joanne McCall, the statewide teachers’ union’s president and the lead plaintiff in the case, asking, Who can pursue a case? A trial court and the 1st District Court of Appeal had previously ruled the matter could not go forward.

“This ruling, and the decisions by the lower court, doesn’t answer that question,” she said in a statement. “We still believe that the tax credit vouchers are unconstitutional, but we haven’t had the opportunity to argue our case in court.”

Though the Supreme Court put an end to this case, first filed in 2014, the challenge now for voucher opponents is to find one or more plaintiffs who do have the legal standing to successfully press a complaint.

At issue was money going toward religious schools, and whether “taxpayers,” like McCall, could challenge “indirect state subsidies” paying for parochial school tuitions.

“We’re baffled that the courts would deny taxpayers the right to question state expenditures,” McCall added. “This decision has ramifications beyond this challenge to a voucher program.”

It “relies on private, voluntary donations—not public dollars,” the state’s brief on the jurisdictional question said. “And the program provides tax credits to donors—not schools or students.”

“At bottom, petitioners’ assertion of taxpayer standing is predicated on the assumption that this case involves the unlawful ‘use of public funds,’ ” the state’s brief said. “As the trial court and the (appellate court) correctly concluded, that position is flatly at odds with the how the Scholarship Program actually operates, and misconstrues the plain language of Florida’s Constitution.”

In other words, “the Legislature’s carefully crafted policy choice does not suffice to establish a concrete, particularized injury” to those that sued, including the FEA, the League of Women Voters and the NAACP’s Florida State Conference.

On the other hand, the FEA’s brief said the vouchers scheme “diverts funds from the public (treasury) to subsidize the costs for certain Florida children to attend private schools, the overwhelming majority of which are sectarian.”

“(N)othing in the law prohibits these schools from engaging in religious discrimination or mandating that their students participate in religious instruction and religious exercise,” according to the brief.

It said the high court should “accept jurisdiction … because the decision not only undermines the law of taxpayer standing, but it effectively holds the Scholarship Program – and any other government program similarly funded by a targeted tax credit rather than direct appropriations – to be immune from challenge.”

Simone Marstiller, a retired judge of the 1st District and now a lawyer in private practice, said appellate Judge Lori S. Rowe‘s decision “beautifully lays out exactly why” the high court turned the case down.

“Bottom line: The union and others simply cannot show any ‘injury’ from the Legislature’s use of tax credits to fund the scholarship program,” said Marstiller, who also held many positions under Gov. Jeb Bush, including secretary of the Department of Business and Professional Regulation.

“This is not a situation in which tax revenues are being diverted away from the public school system in favor of private schools, including religious schools,” she said. “So, not only is there no exercise of the Legislature’s spending power at issue, no constitutional provisions are implicated.”

The FEA did not immediately say what further legal plans it had regarding the vouchers program.

Supreme Court throws out school vouchers case

The Florida Supreme Court on Wednesday said it will not take up an appeal on a high-profile school vouchers case.

The decision comes as a major setback to vouchers opponents, including the Florida Education Association (FEA), the statewide teachers’ union, but was applauded by school choice advocates. (Separate story on the FEA’s reaction here.)

The court denied a request to review the case, but did not comment on its merits. “No motion for rehearing will be entertained by the Court,” its 2-paragraph order said.

“Who is allowed to challenge the constitutionality of the tax credit vouchers?” FEA President Joanne McCall said in a statement. “This ruling, and the decisions by the lower court, don’t answer that question.” McCall is the lead plaintiff in the case.

Justices Barbara Pariente, Peggy A. Quince, Charles Canady and Ricky Polston concurred in the decision. Justice R. Fred Lewis dissented, saying he would have granted oral argument.

The nonprofit organization that administers legal battle over the nation’s largest private school choice program is over,” in a blog post.

Doug Tuthill, president of the nonprofit Step Up For Students organizationhe court has spoken, and now is the time for us all to come together to work for the best interests of these children.”

His organization and other supporters had put on a pro-vouchers rally last year featuring Martin Luther King III, the oldest son of Dr. Martin Luther King Jr. The FEA held its own “Enough is Enough!” rally days before.

“We face enormous challenges with generational poverty, and we need all hands on deck,” Tuthill added in a statement.

The program “provides for state tax credits for contributions to nonprofit scholarship funding organizations (SFOs). The SFOs then award scholarships to eligible children of low-income families,” its website says.

The tax credit cap for the current year is $559 million, according to the state. That cap will increase to $698,8 million for the 2017-2018 state fiscal year.

House Speaker Richard Corcoran also issued a statement, calling the move “a great victory for school children, parents, and classroom teachers who want the best for their students.” The program is a favorite of legislative Republicans.

“I thank the many organizations, pastors, parents, and children who advocated for fairness and justice in our education system and wish them all a great school year,” said Corcoran, a Land O’ Lakes Republican.

The Supreme Court’s inaction leaves in place a 1st District Court of Appeal decision, siding with a lower court’s decision to throw out the lawsuit filed by the Florida Education Association and others.

They had argued that the state’s method of funding private-school educations for more than 90,000 schoolchildren this year is unconstitutional.

The appeals court said the plaintiffs haven’t been harmed by the program, and denied that it violates state law. The vouchers are funded by corporations, which in turn receive tax credits on money they owe to the state.

Florida has several voucher programs in place; the one being challenged extends vouchers to low-income families, most of them black or Hispanic, who send their children to religious schools.

It began in 2001 under Gov. Jeb Bush, and legislators later approved expanding it to middle-income families.

The teacher union argued that it violates the state’s constitution by creating a parallel education system and directing tax money to religious institutions.

But Judge Lori Rowe, who wrote the 1st DCA opinion, said the plaintiffs lack legal standing to sue because they had not shown that other school funding had declined because of the program, or provided other proof of “concrete harm.”

Rowe added that the tax credit scholarship program doesn’t violate a constitutional ban on state aid to religious institutions because it involves the taxing, and not the spending power, of the Florida Legislature.

The Florida Coalition of School Board Members (FCSBM) weighed in later Wednesday morning, saying “Florida is on the right side of history.”

“I am proud to live in a state where educational choices for families are embraced and upheld,” said Shawn Frost, FCSBM president. “… “Let’s return Florida’s focus to where it belongs: on our students.

“We must commit to meeting each child’s unique needs, and improving academic outcomes for all,” Frost said. “When choices work for a child, we should celebrate that success not be threatened by it.”

Background for this post from The Associated Press, reprinted with permission. 

1st DCA rejects challenge to evidence standard in workers’ comp case

An intermediate state appeals court refused Monday to let a workers’ compensation claimant introduce a second medical opinion, in a case testing an evidence code provision the Legislature adopted in 2013.

Baricko v. Barnett Transportation Inc. turned on the applicability of the Daubert evidentiary standard. The Florida Supreme Court heard arguments in September about whether it should embrace the standard, but has yet to rule.

A three-judge panel of the 1st District Court of Appeal rejected an attack on Daubert filed on behalf of David Baricko, a truck driver seeking to introduce evidence that sitting for long periods caused his embolism.

Michael Winer of the Law Office of Michael J. Winer in Tampa argued that a judge of compensation claims had impermissibly applied Daubert in advance of its approval by the state high court.

The appellate panel did not explain its thinking, but Judge Kent Wetherell II said in a concurring opinion that the appeal was “frivolous.” The 1st DCA had ruled in 2014 that Daubert applies in workers’ compensation cases, he wrote.

In any event, he added, “it is well established that the (Supreme) Court does not have the authority to establish procedural rules for executive branch quasi-judicial proceedings such as those under chapter 440, Florida Statutes” — the workers’ compensation code.

Even if the justices decline to enforce the new evidentiary standard in trial courts, “that decision will have no impact whatsoever on the applicability of the Daubert test in workers’ compensation proceedings,” Wetherell wrote.

The 4th District Court of Appeal rejected a similar claim in November, Wetherell added.

“He just couldn’t be more wrong about his conclusion,” Winer said in a telephone interview. In suggesting the Supreme Court lacks jurisdiction to set evidentiary standards in workers’ compensation courts, Wetherell “ignores precedent,” Winer said.

He plans to seek a written ruling by the 1st DCA panel to clarify the court’s thinking.

The U.S. Supreme Court adopted the evidence standard at issue in 1993, in Daubert v. Merrell Dow Pharmaceuticals Inc. The standard prevails in federal courts and in courts in other states.

Judges apply the test when weighing whether proposed expert testimony is generally accepted by the scientific community.

Insurance office finds workers’ compensation market stable, competitive

Despite broad consternation over rising workers’ compensation insurance rates, Florida’s market is relatively stable and competitive, according to an analysis released Friday by the Office of Insurance Regulation.

The market “is served by a large number of independent insurers and none of the insurers have sufficient market share to exercise any meaningful control over the price of workers’ compensation insurance,” the report says.

Entrants to and withdrawals from the market produce “no market disruptions,” the report continues, signalling “that the Florida workers’ compensation market is well-capitalized and competitive.”

Furthermore, there have been no bankruptcies by insurers requiring the Florida Workers’ Compensation Insurance Guaranty Association to absorb policies.

“There are some good things about the workers’ compensation system — which is that the market is stable and very diverse, and that’s a good thing for the small business insurance consumer,” said Bill Herrle, Florida director for the National Federation of Independent Business.

The Florida Supreme Court threw the market into a tizzy last year by striking down elements of reforms passed in 2003 to drive down costs. They included a cap on attorney fees and limits on temporary disability payments.

The attorney fee ruling accounts for around 10 percent of the 14.5 percent premium hike approved the insurance office last year, according to ratings agency the National Council on Compensation Insurance.

The legality of that increase is before the 1st District Court of Appeal.

The report says the attorney fee provisions “were a significant factor in the decline of workers’ compensation rates and continues to impact them. It is also the case, however, that most of the improvements resulting from legislative changes may have been realized, as there were four rate increases from 2010 to 2014 after seven years of decreases following the 2003 reforms.”

The report points to additional price pressures, including the cost of drugs and of treatment in hospitals and ambulatory surgical centers, which are running ahead of the national averages.

The recent rate increase, which began to take effect last month and will roll out as employers buy new or renewed policies this year, has sparked calls for renewed reforms. Insurers and business groups have focused on controlling attorney fees, but the Legislature also may look at additional cost drivers.

Herrle, who serves on an Associated Industries of Florida task force on workers’ compensation reform, argued attorney fees are the chief enemy.

”We don’t need to be making changes to the rating process,” he said. “That dynamic is good. The dynamic that is not good is the (Supreme) Court cases.”

The report notes that, before the 2003 reforms, Florida tended to rank either No. 1 or No. 2 among the states in terms of high rates, according to data collected by the Oregon Department of Consumer and Business Services. It had dropped to No. 40 by 2010.

Even before last year’s rate hike, the state had climbed to No. 33.

Even so, Florida’s rates ranked below the national median.

Who knows best, parents or teachers’ union?

In a recent POLITICO article, Florida Teachers’ Union President Joanne McCall said the following: “We believe that those closest to the students should be making the decisions about what is best for the students they serve.”

At issue was the controversy surrounding the state Board of Education’s efforts to turn around Florida’s worst performing public schools. McCall was stressing her belief in local control of schools, saying that her members are bogged down with state requirements and don’t have enough freedom in the classroom.

It’s a shame that McCall doesn’t always follow the belief she articulates. She and her union have sued to shut down the state’s tax credit scholarship program and evict nearly 100,000 poor, mostly minority children from schools that fit them better than their assigned district schools.

Both a trial court and an appeals court have ruled that the union didn’t even have the right to bring the case, but McCall has appealed to the Florida Supreme Court. Like a hungry dog with a piece of steak, she just refuses to let go – even though it’s far past time to drop the suit and let the focus return to where it belongs: the kids.

To McCall’s point, I would ask her this: Who is closer to a student than his or her parent? Why don’t you believe these poor parents should be making the decision about what school is best for their children?

Finally, why do you persist in this misguided lawsuit whose aim is to keep kids away from the best educational opportunities available to them?

House civil justice subcommittee takes up judicial term limits

A House panel began talking Thursday about imposing term limits on judges — and also reviewed how quickly the courts are clearing their caseloads.

Judicial term limits failed in the Legislature last year, but House Speaker Richard Corcoran has declared the issue an important priority.

Heather Fitzenhagen, chairwoman of the Civil Justice and Claims Subcommittee, said she has not yet taken a position.

She rejected a suggestion that House Republicans want to publish the Florida Supreme Court for rulings striking down GOP priority legislation.

“Absolutely not. What we’re trying to do is the people’s business and making sure that all of our branches of government are functioning at the best possible efficiency, and that we’re getting things done in the best manner possible. That justice is served in a timely manner.”

In Florida, appellate judges — including justices of the Supreme Court — are appointed by the governor subject to merit retention elections. They may serve until age 70 if the voters retain them.

No appellate judge has ever been bounced via a merit retention vote, according to Nathan Bond, policy chief for the subcommittee. He supplied the committee with statistics detailing court efficiency levels.

Warren Husband, a Tallahassee attorney appearing for the Florida Bar, said the organization’s Board of Governors unanimously opposed last year’s proposal over practical concern that higher turnover might affect the administration of justice.

As it happens, the appellate courts experienced a nearly 30 percent turnover rate between 2011 and 2015, he said.

“You’re probably going to get older applicants than you get now — and, in fact, older appointees and nominees than you get now,” Husband said.

“You can’t carry on a law practice while you’re a judge. You have to leave your practice, leave your clients, turn those over to other folks, go on the bench for 12, 13, 15 years, whatever it happens to be, and you can’t reasonably expect to pick up where you left off when you get off the bench.”

No specific bill language has emerged this year, and Fitzenhagen, a Republican from Fort Myers, reiterated that she is not taking a position. “I’m going to look at everything with fresh eyes,” she told reporters.

Tampa Democrat Sean Shaw saw a possible threat to judicial independence. He is the son of the late Leander Shaw, who served 20 years on the Supreme Court and was targeted for defeat during a merit retention vote for writing a 1989 ruling affirming women’s right to abortion.

“Apparently, under these scenarios we’re talking about, the last 10 years of his time on the Supreme Court would have been null and void,” Shaw said.

“I don’t know what problem we’re trying to solve.”

Regarding efficiency, “there’s one answer to that. I thought that was one of the easiest things. Give them more judges. When was the last time we gave the court budget allocations for more judges?”

And if no judge has ever been defeated for merit retention? “So what? They have faced the voters. Just because no one’s lost is not a good reason to say it’s not working.”

Former death row prisoner appears before House panel

A House committee considering the future of Florida’s death penalty statute heard Tuesday from a man once sentenced to Death Row.

Henry Brown, who described himself as a capital mitigation consultant in Tallahassee, said he was sentenced to death in 1973 but released after he pleaded to second-degree murder in 1993, although he denied killing anyone.

He urged committee members to consider making any changes to the sentencing guidelines retroactive beyond 2002, when the U.S. Supreme Court first ruled that juries must decide whether murders deserve the death penalty.

“Had I still been on death row, I wouldn’t fall under that part of the retroactively. I’d be stuck back there,” he said.

“I’ve done some pretty great things since I’ve been out,” he continued. Florida has one of the country’s largest death rows, but “Florida also has the largest population of exonerees in the country. So consider that also.”

The issue is before the Legislature because in October, in a long-litigated case, the Florida Supreme Court voted, 5-2, to strike down Florida’s death penalty law because it doesn’t require a unanimous jury verdict to put someone to death.

Florida now allows death sentences upon 10-2 votes by juries.

Michael Allen, a professor at Stetson University College of Law, noted a rush by capital defendants and their lawyers to have their cases tried while the death statute remains unsettled.

“If one wanted to make a very quick fix, you change 10-2 to unanimous, and you leave everything else in the statute exactly the same,” Allen said.

“That’s not to say somebody else couldn’t raise an issue down the road, but that solves the issue that’s out there right now, for certain.”

Making changes retroactive to 2002 would probably require the state courts to resentence between 150 and 170 people now on death row, Allen said.

If the state limits retroactivity, Brown predicted, “that’s going to be a problem for the Legislature; that’s going to be a problem for the state; that’s going to be a problem for the death penalty. Because it’s going to be litigated. It’s going to go back to the Supreme Court, and Florida wouldn’t be able to carry out its death penalty statute.”

Blogger still irate over Justice James E.C. Perry’s continued presence at Supreme Court

Conservative blogger Ed Whelan isn’t giving up his position that retired Florida Supreme Court Justice James E.C. Perry continuing to work on pending cases “appears to be in plain violation of Florida law.”

Whelan wrote on National Review Online last week that Perry was wrongly “displac(ing)” Justice C. Alan Lawson, the newest conservative jurist on the state’s high court.

In the court’s defense, spokesman Craig Waters explained that the court’s “longstanding practice for many decades has been that retiring justices remain in senior status to complete their unfinished work after retirement.”

He also said “there are serious workload issues involved in processing cases because the work is cumulative … asking a new justice to step in … can greatly slow decision-making in those cases – a result that would impose delay and additional expense on the parties to those cases, some of which are facing the death penalty.”

Whelan’s recent rebuttal said “the proposition that the court has employed this ‘practice for many decades’ does not speak meaningfully to the legality of the practice.

“If the court can’t offer a compelling legal explanation for its practice of allowing a retired justice to continue to decide cases after his retirement, it ought to terminate that practice pronto.”

Moreover, “it’s one thing to decide already-argued cases without the new member. It’s quite another thing to allow the retired justice to displace the new member in those cases,” Whelan wrote.

Any “efficiency gains that Waters touts would be achieved by simply deciding the case without him,” he added.

“To be sure, there may be a small number of cases that would have to be re-argued because Lawson’s participation would break a tie among the six remaining justices who heard oral argument. But those are precisely the cases in which having Perry displace Lawson is most objectionable.”

Charles Canady may be off Donald Trump’s Supreme Court wish list

The Above The Law legal website is “handicapping Donald Trump’s Supreme Court shortlist” – and Florida Supreme Court Justice Charles Canady isn’t on it.

“In case you missed it over the holidays, Jan Crawford of CBS News, one of the most plugged-in Supreme Court reporters around, revealed Trump’s five finalists” to replace the late Antonin Scalia, who died last February.

In alphabetical order, they are Judge Steven Colloton (8th Cir.) of Iowa; Judge Thomas Hardiman (3d Cir.) of Pennsylvania; Justice Joan Larsen of Michigan; Judge William Pryor (11th Cir.) of Alabama; Judge Diane Sykes (7th Cir.) of Wisconsin, according to Crawford.

“These five judges all appeared on Trump’s first SCOTUS list of 11 names, suggesting that his supplemental list of 10 names might represent something of a second tier,” ATL reported.

Canady’s name was on that second list.

The former lawmaker has been one of two reliable conservative votes on the state’s highest court, along with Ricky Polston. But now joining them is conservative jurist C. Alan Lawson, replacing retired Justice James E.C. Perry.

Canady, a Lakeland native, served three terms in the Florida House of Representatives (1984-90) and four terms in the U.S. House of Representatives (1993-2001) as a Republican, rising to chairman of the House Judiciary Subcommittee on the Constitution.

He became general counsel to Gov. Jeb Bush, who later appointed him to the state’s 2nd District Court of Appeal in Lakeland in 2002, the bio says.

Gov. Charlie Crist then named him to the state Supreme Court in 2008. Canady also served as the court’s chief justice in 2010-12.

 

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