IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF ...
E-Copy Received Jan 23, 2012 4:39 PM
IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA PAMELA JO BONDI, in her capacity as Attorney General of Florida, Case No.: 1D1 1-5935 L.T. Case No.: 2011 CA 1838
Appellant,
JAMES BAIARDI, JOHN MCKENNA, SHANEA MAYCOCK, and FLORIDA POLICE BENEVOLENT ASSOCIATION, INC., Appellees. /
AMICUS BRIEF OF THE FLORIDA CHAMBER OF COMMERCE In Support Of Appellant Pamela J0 Bondi, In Her Capacity As Attorney General Of Florida On Appeal From A Final Order Of The Second Judicial Circuit In And For Leon County, Florida
Peter D. Webster
Fla.BarNo. 185180 Christine Davis Graves Fla. Bar No. 569372 CARLTON FIELDS, P.A. 215 5. Monroe St., Suite 500 Tallahassee, FL 32301 Telephone: (850) 224-1585 Facsimile: (850) 222-0398 Attorneys for The Florida Chamber of Commerce
21876344.1
TABLE OF CONTENTS TABLE OF CITATIONS .......................................................................................... ii STATEMENT OF IDENTITY AND INTEREST OF AMICUS CURIAE.................................................................................................................... 1 SUMMARY OF ARGUMENT .................................................................................
1
ARGUMENT............................................................................................................ 3 I.
STANDARD OF REVIEW ...............................................................................
3
II.
THE TRIAL COURT'S ORDER STRIPS THE LEGISLATURE OF ITS POWER TO DIRECT HOW STATE FUNDS ARE TO BE USED .........
3
CONCLUSION......................................................................................................... 9 CERTIFICATE OF SERVICE ................................................................................ 10 CERTIFICATE OF FONT COMPLIANCE ........................................................... 10
TABLE OF CITATIONS CASES B.H v. State, 645 So. 2d 987 (Fla. 1994) ................................................................................... 4 Brown v. Firestone, 382 So. 2d 654 (Fla. 1980) ................................................................................... 4 Bush v. Shiavo, 885 So. 2d 321 (Fla. 2004) ................................................................................... 4
Chiles v. Children A, B, C, D, E, and F, 589 So. 2d260(Fla. 1991) ............................................................................... 5,6 Fla. Dep 't of Rev. v. Howard, 916 So. 2d 640 (Fla. 2005) ................................................................................... 5
Graham v. Haridopolos, 36 Fla. L. Weekly D2253 (Fla. 1st DCA Oct. 12, 2011) ..................................... 4 In re Advisory Opinion to the Governor, 239 So. 2d 1 (Fla. 1970) ....................................................................................... 4 Lewis v. Leon County, 73 So. 3d 151 (Fla. 2011) ..................................................................................... 5
Murray v. Mariner Health, 994 So. 2d 1051 (Fla. 2008) ................................................................................. 6 Palm Harbor Special Fire Control Dist. v. Kelly, 500 So. 2d 1382 (Fla. 2dDCA 1987) .............................................................. 4,5 Physicians Health Care Plans, Inc. v. Cook, 714 So. 2d 566 (Fla. 1st DCA 1998) .................................................................... 6 Sylvester v. Tindall, 18 So. 2d 892 (Fla. 1944) ..................................................................................... 4
11
Woods v. State,
740 So. 2d 20 (Fla. 1st DCA 1999) ...................................................................... 4
CONSTITUTION, STATUTES, AND RULES Art. TI, § 3, Fla. Const ................................................................................................ 4
Art. VII, § 1, Fla. Const .............................................................................................. 6
§ 287.057, Fla. Stat. (2011) ....................................................................................... 1 § 298.0571, Fla. Stat. (2011) ..................................................................................... 3
§ 944.105, Fla. Stat. (2011) ............................................................................... 2,6,7 Ch. 20 11-49, § 4, Laws of Fla ............................................................................... 7, 8
111
STATEMENT OF IDENTITY AND INTEREST OF AMICUS CURIAE The Florida Chamber of Commerce is a business advocacy organization that
represents more than 139,000 businesses with more than three million employees. It supports pro-business solutions to build Florida's economy and help create jobs.
The Chamber's members routinely enter into contracts with state agencies to
provide government services, in accordance with the Legislature's intent to leverage resources and contract with private sector vendors "whenever [those] vendors can more effectively and efficiently provide services and reduce the cost
of government." § 287.0571(1), Fla. Stat. (2011). This appeal involves the fundamental role of the Legislature to appropriate state funds for private contracts
and direct state agencies as to how those funds should be used. The Chamber's members have a vested interest in this issue.
SUMMARY OF ARGUMENT
In ruling the prison proviso unconstitutional, the trial court failed to apply fundamental and longstanding constitutional principles and, consequently,
effectively stripped the Legislature of its exclusive power to appropriate state funds
and direct through proviso language how those funds are to be used. The trial court did not begin with the presumption that legislative enactments should be presumed
constitutional and upheld unless the enactment's invalidity is proved beyond a reasonable doubt. By ignoring this principle, the trial court also disregarded the 1
strict separation of powers provision of Florida's constitution
a concept
fundamental to the existence of our government.
Furthermore, the trial court's ruling construes section 944.105, Florida Statutes (2011), as delegating to the Department of Corrections the sole discretion
to determine which prisons should be privatized. Any such delegation would be unconstitutional, and as a general principle, the court should not construe statutes to reach an unconstitutional result.
The proviso at issue did not alter existing law. Quite to the contrary, the proviso is expressly contingent upon compliance with existing law. The most the
Legislature did was make its collective judgment clear that state funds should be
used to enter into private contracts for the operation of certain prisons, if such a contract can be entered into under existing law. The trial court's order should be reversed.
'1
ARGUMENT I.
STANDARD OF REVIEW
The Chamber relies on and incorporates herein the standard of review set forth by Appellant in its Initial Brief.
II.
See
mit. Br., at 6.
THE TRIAL COURT'S ORDER STRIPS THE LEGISLATURE OF ITS POWER TO DIRECT HOW STATE FUNDS ARE TO BE USED. As a friend of the court, the Chamber submits this brief to alert the Court to
the ramifications of the trial court's ruling on the use of state funds for private contracts for government services. The Legislature explicitly expressed its intent in section 287.0571(1), Florida Statutes (2011), "that each state agency focus on its
core mission and deliver services effectively and efficiently by leveraging resources and contracting with private sector vendors whenever vendors can more
effectively and efficiently provide services and reduce the cost of government."
The trial court's ruling effectively strips the Legislature of its authority to direct how state funds are to be used to accomplish its goals of privatization and thereby
imposes upon the Legislature the unfeasible task of requiring it to enact general laws each year to effectuate its collective judgment as to how state funds should be used. That is contrary to the longstanding law of this state.
Since the time of the state's first constitution, the power to raise and appropriate state funds has been vested exclusively with Florida's legislative 3
branch. Graham v. Haridopolos, 36 Fla. L. Weekly D2253 (Fla. 1st DCA Oct. 12, 2011).
Under that authority, the Legislature may specifically direct or limit
through proviso language how appropriated funds should be used, as long as the
proviso does not alter existing law and is rationally related to the purpose of the appropriation. Brown v. Firestone, 382 So. 2d 654, 663 (Fla. 1980); see also In re
Advisory Opinion to the Governor, 239 So. 2d 1, 10 (Fla. 1970). The Legislature has never been required to enact general law to direct an annual appropriation.
Upholding the Legislature's exclusive power to appropriate funds is critical
to the concept of our constitutional provision requiring a "strict" separation of powers. Art. II, § 3, Fla. Const.; Woods v. State, 740 So. 2d 20, 23 (Fla. 1st DCA 1999); see also Bush v. Shiavo, 885 So. 2d 321, 329 (Fla. 2004); B.H. v. State, 645
So. 2d 987, 99 1-92 (Fla. 1994). That is because "[t]he separation of the powers of
government is fundamental to the very existence of our form of state and Federal
governments and is one of the most important principles of government guaranteeing the liberty of the people." Sylvester v. Tindall, 18 So. 2d 892, 899 (Fla. 1944); see also Palm Harbor Special Fire Control Dist. v. Kelly, 500 So. 2d 1382 (Fla. 2d DCA 1987).
The Legislature's appropriations power is one its most fundamental powers.
"Under any working system of government, one of the branches must be able to
exercise the power of the purse, and in our system it is the legislature, as
representative of the people and maker of laws, including laws pertaining to
appropriations, to whom that power is constitutionally assigned." Chiles Children A, B, C, D, E, and F, 589 So. 2d 260, 267 (Fla. 1991).
v.
Only the
Legislature may weigh and determine the multitude of the state's fiscal needs and establish fiscal priorities through the financial resources it has provided. Id.
Because of the importance of the separation of powers doctrine, courts "accord legislative acts a presumption of constitutionality" and should "construe challenged legislation to effect a constitutional outcome whenever possible." Fia.
Dep't of Revenue v. Howard, 916 So. 2d 640, 642 (Fla. 2005). Accordingly, "courts, unless absolutely necessary, do not consider it their function to in effect
insert themselves into the legislative process and judicially declare one of those
statutes to be repealed." Palm Harbor Special Fire Control Dist., 500 So. 2d at 1387.
To overcome the presumption of constitutionality, the invalidity must
appear beyond a reasonable doubt. Lewis v. Leon County, 73 So. 3d 151, 153 (Fla. 2011)
Instead of applying these fundamental precepts, the trial court appears to
have begun its analysis with the presumption that the plaintiffs' claims were correct, not that the legislative enactment is constitutional. In so doing, the court summarily concluded that the proviso changed the statutory process for privatizing prisons, citing cases, which
as explained by Appellant in its Initial Brief at pages 5
11-15
involve provisos wholly distinguishable from the one here.
Furthermore, under the trial court's interpretation of section 944.105, a
legislative appropriation to privatize a prison can only be made after the Department of Corrections makes a decision to outsource. Thus, under this ruling, the Department of Corrections has the sole discretion to determine what prisons to
privatize, and the Legislature's role is simply to agree or disagree by providing or not providing an appropriation.
Florida law is clear, however, that state agencies have no power or discretion
to decide how state money is to be spent. Physicians Health Care Plans, Inc. v. Cook, 714 So. 2d 566, 567 (Fla. 1st DCA 1998). Nor can the Legislature delegate to an agency the discretion to determine how state funds are used. Chiles, 589 So.
2d at 265-66. Rather, article VII, section 1(d) of the Florida Constitution makes clear that "the legislature
the only branch with the power to make law
and not
the executive, [has the power] to make appropriations for revenue." Id. at 267.
The trial court thus erred in construing the statute to reach an unconstitutional result. See Murray v. Mariner Health, 994 So. 2d 1051, 1057 (Fla. 2008) (statutes should be construed so as to avoid unconstitutional result).
The result of the court's failure to acknowledge these longstanding principles was an order that strips the Legislature of its historical and fundamental
power to direct how state funds are to be used. Section 944.105(1), Florida
Statutes, authorizes the Department of Corrections to enter into contracts with private vendors for the provision of the operation and maintenance of prisons. The
statute requires that three elements be met before the Department may enter into
such a contract: (1) the Department must determine whether the contract offers substantial savings; (2) the contract must provide for the same quality of services as that offered by the Department; and (3) the Legislature must appropriate funds
for the contract. Id. § 944.105(1)(a), (b), (c). The statute nowhere provides these
elements must be satisfied in any particular order
only that all three must be
present when a contract is entered. And, nothing in the statute delegates to the Department of Corrections the exclusive right to determine what prisons should be privatized.
The proviso at issue
chapter 20 11-49, section 4, Laws of Florida
reflects
the Legislature's collective judgment that certain state funds should be used to enter into private contracts for the operation of certain specified prisons and thus
requires the Department of Corrections to issue requests for proposals for the
operation of those prisons. The proviso, however, makes clear that it is to be implemented consistent with existing law:
after engaging in the competitive solicitation process, the Department of Corrections determines that the process has yielded If,
responses that meet all current statutory requirements, the department shall develop and remit a transition plan and recommended revisions to its operating budget to the Legislative Budget Commission.. . 7
The proviso goes on to require the Department to complete a "cost-benefit
analysis," setting forth the savings that would be generated by the transition of prison operations to a private provider. Finally, the proviso requires any contract to adhere "to all applicable federal, state and local laws, as well as all rules adopted by [the Department of Corrections] for private prison service providers."
The plain language of the proviso thus complements existing law by expressly providing that, if the existing statutory requirements for entering into private prison contracts are not satisfied, the Department of Corrections should not
propose, and the Legislature will not approve, a contract. Rather, any proposed contract must "meet all current statutory requirements."
Consequently, if the trial court's order is permitted to stand, all businesses that contract with the state could be affected. The Legislature would no longer be permitted to direct by proviso that particular funds be used on private contracts for specific government services. Instead, the Legislature would be required to enact a
general law for the sole purpose of reflecting its judgment Legislature has the power to exercise
which only the
that state funds should be used for private
contracts for a particular government service if the contract can be entered into in compliance with general law. That turns the Legislature's exclusive, constitutional power on its head.
CONCLUSION
The trial court's order should be reversed to preserve the Legislature's exclusive authority to direct how state funds should be used. Respectfully submitted,
Peter DWebster Florida Bar No. 185180 Christine Davis Graves Florida Bar No. 569372 CARLTON FIELDS, P.A. 215 S. Monroe St., Suite 500 Tallahassee, Florida 32301 Telephone: (850) 224-1585 Facsimile: (850) 222-0398
Attorneys for The Florida Chamber Of Commerce
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been served via U.S. Mail to the following this 23d day of January, 2012:
Gene L. "Hal" Johnson Stephanie Dobson Webster Fla. Police Benevolent Ass'n, Inc. 300 E. Brevard St. Tallahassee, FL 32303
Jonathan A. Glogau Chief, Complex Litigation PL-0 1, The Capitol Tallahassee, FL 32399-1050
M. Stephen Turner Kelly Overstreet Johnson Michael A. Gross Broad & Cassel 215 S. Monroe St., Suite 400 Tallahassee, FL 32301 Attorney
CERTIFICATE OF FONT COMPLIANCE
I HEREBY FURTHER CERTIFY that the type size and style used throughout this brief is 14-point Times New Roman double-spaced, and that this brief fully complies with the requirements of Florida Rule of Appellate Procedure 9.21 O(a)(2).
Attorney
10
IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA PAMELA JO BONDI, in her capacity as Attorney General of Florida, Case No.: 1D1 1-5935 L.T. Case No.: 2011 CA 1838
Appellant,
JAMES BAIARDI, JOHN MCKENNA, SHANEA MAYCOCK, and FLORIDA POLICE BENEVOLENT ASSOCIATION, INC., Appellees. /
AMICUS BRIEF OF THE FLORIDA CHAMBER OF COMMERCE In Support Of Appellant Pamela J0 Bondi, In Her Capacity As Attorney General Of Florida On Appeal From A Final Order Of The Second Judicial Circuit In And For Leon County, Florida
Peter D. Webster
Fla.BarNo. 185180 Christine Davis Graves Fla. Bar No. 569372 CARLTON FIELDS, P.A. 215 5. Monroe St., Suite 500 Tallahassee, FL 32301 Telephone: (850) 224-1585 Facsimile: (850) 222-0398 Attorneys for The Florida Chamber of Commerce
21876344.1
TABLE OF CONTENTS TABLE OF CITATIONS .......................................................................................... ii STATEMENT OF IDENTITY AND INTEREST OF AMICUS CURIAE.................................................................................................................... 1 SUMMARY OF ARGUMENT .................................................................................
1
ARGUMENT............................................................................................................ 3 I.
STANDARD OF REVIEW ...............................................................................
3
II.
THE TRIAL COURT'S ORDER STRIPS THE LEGISLATURE OF ITS POWER TO DIRECT HOW STATE FUNDS ARE TO BE USED .........
3
CONCLUSION......................................................................................................... 9 CERTIFICATE OF SERVICE ................................................................................ 10 CERTIFICATE OF FONT COMPLIANCE ........................................................... 10
TABLE OF CITATIONS CASES B.H v. State, 645 So. 2d 987 (Fla. 1994) ................................................................................... 4 Brown v. Firestone, 382 So. 2d 654 (Fla. 1980) ................................................................................... 4 Bush v. Shiavo, 885 So. 2d 321 (Fla. 2004) ................................................................................... 4
Chiles v. Children A, B, C, D, E, and F, 589 So. 2d260(Fla. 1991) ............................................................................... 5,6 Fla. Dep 't of Rev. v. Howard, 916 So. 2d 640 (Fla. 2005) ................................................................................... 5
Graham v. Haridopolos, 36 Fla. L. Weekly D2253 (Fla. 1st DCA Oct. 12, 2011) ..................................... 4 In re Advisory Opinion to the Governor, 239 So. 2d 1 (Fla. 1970) ....................................................................................... 4 Lewis v. Leon County, 73 So. 3d 151 (Fla. 2011) ..................................................................................... 5
Murray v. Mariner Health, 994 So. 2d 1051 (Fla. 2008) ................................................................................. 6 Palm Harbor Special Fire Control Dist. v. Kelly, 500 So. 2d 1382 (Fla. 2dDCA 1987) .............................................................. 4,5 Physicians Health Care Plans, Inc. v. Cook, 714 So. 2d 566 (Fla. 1st DCA 1998) .................................................................... 6 Sylvester v. Tindall, 18 So. 2d 892 (Fla. 1944) ..................................................................................... 4
11
Woods v. State,
740 So. 2d 20 (Fla. 1st DCA 1999) ...................................................................... 4
CONSTITUTION, STATUTES, AND RULES Art. TI, § 3, Fla. Const ................................................................................................ 4
Art. VII, § 1, Fla. Const .............................................................................................. 6
§ 287.057, Fla. Stat. (2011) ....................................................................................... 1 § 298.0571, Fla. Stat. (2011) ..................................................................................... 3
§ 944.105, Fla. Stat. (2011) ............................................................................... 2,6,7 Ch. 20 11-49, § 4, Laws of Fla ............................................................................... 7, 8
111
STATEMENT OF IDENTITY AND INTEREST OF AMICUS CURIAE The Florida Chamber of Commerce is a business advocacy organization that
represents more than 139,000 businesses with more than three million employees. It supports pro-business solutions to build Florida's economy and help create jobs.
The Chamber's members routinely enter into contracts with state agencies to
provide government services, in accordance with the Legislature's intent to leverage resources and contract with private sector vendors "whenever [those] vendors can more effectively and efficiently provide services and reduce the cost
of government." § 287.0571(1), Fla. Stat. (2011). This appeal involves the fundamental role of the Legislature to appropriate state funds for private contracts
and direct state agencies as to how those funds should be used. The Chamber's members have a vested interest in this issue.
SUMMARY OF ARGUMENT
In ruling the prison proviso unconstitutional, the trial court failed to apply fundamental and longstanding constitutional principles and, consequently,
effectively stripped the Legislature of its exclusive power to appropriate state funds
and direct through proviso language how those funds are to be used. The trial court did not begin with the presumption that legislative enactments should be presumed
constitutional and upheld unless the enactment's invalidity is proved beyond a reasonable doubt. By ignoring this principle, the trial court also disregarded the 1
strict separation of powers provision of Florida's constitution
a concept
fundamental to the existence of our government.
Furthermore, the trial court's ruling construes section 944.105, Florida Statutes (2011), as delegating to the Department of Corrections the sole discretion
to determine which prisons should be privatized. Any such delegation would be unconstitutional, and as a general principle, the court should not construe statutes to reach an unconstitutional result.
The proviso at issue did not alter existing law. Quite to the contrary, the proviso is expressly contingent upon compliance with existing law. The most the
Legislature did was make its collective judgment clear that state funds should be
used to enter into private contracts for the operation of certain prisons, if such a contract can be entered into under existing law. The trial court's order should be reversed.
'1
ARGUMENT I.
STANDARD OF REVIEW
The Chamber relies on and incorporates herein the standard of review set forth by Appellant in its Initial Brief.
II.
See
mit. Br., at 6.
THE TRIAL COURT'S ORDER STRIPS THE LEGISLATURE OF ITS POWER TO DIRECT HOW STATE FUNDS ARE TO BE USED. As a friend of the court, the Chamber submits this brief to alert the Court to
the ramifications of the trial court's ruling on the use of state funds for private contracts for government services. The Legislature explicitly expressed its intent in section 287.0571(1), Florida Statutes (2011), "that each state agency focus on its
core mission and deliver services effectively and efficiently by leveraging resources and contracting with private sector vendors whenever vendors can more
effectively and efficiently provide services and reduce the cost of government."
The trial court's ruling effectively strips the Legislature of its authority to direct how state funds are to be used to accomplish its goals of privatization and thereby
imposes upon the Legislature the unfeasible task of requiring it to enact general laws each year to effectuate its collective judgment as to how state funds should be used. That is contrary to the longstanding law of this state.
Since the time of the state's first constitution, the power to raise and appropriate state funds has been vested exclusively with Florida's legislative 3
branch. Graham v. Haridopolos, 36 Fla. L. Weekly D2253 (Fla. 1st DCA Oct. 12, 2011).
Under that authority, the Legislature may specifically direct or limit
through proviso language how appropriated funds should be used, as long as the
proviso does not alter existing law and is rationally related to the purpose of the appropriation. Brown v. Firestone, 382 So. 2d 654, 663 (Fla. 1980); see also In re
Advisory Opinion to the Governor, 239 So. 2d 1, 10 (Fla. 1970). The Legislature has never been required to enact general law to direct an annual appropriation.
Upholding the Legislature's exclusive power to appropriate funds is critical
to the concept of our constitutional provision requiring a "strict" separation of powers. Art. II, § 3, Fla. Const.; Woods v. State, 740 So. 2d 20, 23 (Fla. 1st DCA 1999); see also Bush v. Shiavo, 885 So. 2d 321, 329 (Fla. 2004); B.H. v. State, 645
So. 2d 987, 99 1-92 (Fla. 1994). That is because "[t]he separation of the powers of
government is fundamental to the very existence of our form of state and Federal
governments and is one of the most important principles of government guaranteeing the liberty of the people." Sylvester v. Tindall, 18 So. 2d 892, 899 (Fla. 1944); see also Palm Harbor Special Fire Control Dist. v. Kelly, 500 So. 2d 1382 (Fla. 2d DCA 1987).
The Legislature's appropriations power is one its most fundamental powers.
"Under any working system of government, one of the branches must be able to
exercise the power of the purse, and in our system it is the legislature, as
representative of the people and maker of laws, including laws pertaining to
appropriations, to whom that power is constitutionally assigned." Chiles Children A, B, C, D, E, and F, 589 So. 2d 260, 267 (Fla. 1991).
v.
Only the
Legislature may weigh and determine the multitude of the state's fiscal needs and establish fiscal priorities through the financial resources it has provided. Id.
Because of the importance of the separation of powers doctrine, courts "accord legislative acts a presumption of constitutionality" and should "construe challenged legislation to effect a constitutional outcome whenever possible." Fia.
Dep't of Revenue v. Howard, 916 So. 2d 640, 642 (Fla. 2005). Accordingly, "courts, unless absolutely necessary, do not consider it their function to in effect
insert themselves into the legislative process and judicially declare one of those
statutes to be repealed." Palm Harbor Special Fire Control Dist., 500 So. 2d at 1387.
To overcome the presumption of constitutionality, the invalidity must
appear beyond a reasonable doubt. Lewis v. Leon County, 73 So. 3d 151, 153 (Fla. 2011)
Instead of applying these fundamental precepts, the trial court appears to
have begun its analysis with the presumption that the plaintiffs' claims were correct, not that the legislative enactment is constitutional. In so doing, the court summarily concluded that the proviso changed the statutory process for privatizing prisons, citing cases, which
as explained by Appellant in its Initial Brief at pages 5
11-15
involve provisos wholly distinguishable from the one here.
Furthermore, under the trial court's interpretation of section 944.105, a
legislative appropriation to privatize a prison can only be made after the Department of Corrections makes a decision to outsource. Thus, under this ruling, the Department of Corrections has the sole discretion to determine what prisons to
privatize, and the Legislature's role is simply to agree or disagree by providing or not providing an appropriation.
Florida law is clear, however, that state agencies have no power or discretion
to decide how state money is to be spent. Physicians Health Care Plans, Inc. v. Cook, 714 So. 2d 566, 567 (Fla. 1st DCA 1998). Nor can the Legislature delegate to an agency the discretion to determine how state funds are used. Chiles, 589 So.
2d at 265-66. Rather, article VII, section 1(d) of the Florida Constitution makes clear that "the legislature
the only branch with the power to make law
and not
the executive, [has the power] to make appropriations for revenue." Id. at 267.
The trial court thus erred in construing the statute to reach an unconstitutional result. See Murray v. Mariner Health, 994 So. 2d 1051, 1057 (Fla. 2008) (statutes should be construed so as to avoid unconstitutional result).
The result of the court's failure to acknowledge these longstanding principles was an order that strips the Legislature of its historical and fundamental
power to direct how state funds are to be used. Section 944.105(1), Florida
Statutes, authorizes the Department of Corrections to enter into contracts with private vendors for the provision of the operation and maintenance of prisons. The
statute requires that three elements be met before the Department may enter into
such a contract: (1) the Department must determine whether the contract offers substantial savings; (2) the contract must provide for the same quality of services as that offered by the Department; and (3) the Legislature must appropriate funds
for the contract. Id. § 944.105(1)(a), (b), (c). The statute nowhere provides these
elements must be satisfied in any particular order
only that all three must be
present when a contract is entered. And, nothing in the statute delegates to the Department of Corrections the exclusive right to determine what prisons should be privatized.
The proviso at issue
chapter 20 11-49, section 4, Laws of Florida
reflects
the Legislature's collective judgment that certain state funds should be used to enter into private contracts for the operation of certain specified prisons and thus
requires the Department of Corrections to issue requests for proposals for the
operation of those prisons. The proviso, however, makes clear that it is to be implemented consistent with existing law:
after engaging in the competitive solicitation process, the Department of Corrections determines that the process has yielded If,
responses that meet all current statutory requirements, the department shall develop and remit a transition plan and recommended revisions to its operating budget to the Legislative Budget Commission.. . 7
The proviso goes on to require the Department to complete a "cost-benefit
analysis," setting forth the savings that would be generated by the transition of prison operations to a private provider. Finally, the proviso requires any contract to adhere "to all applicable federal, state and local laws, as well as all rules adopted by [the Department of Corrections] for private prison service providers."
The plain language of the proviso thus complements existing law by expressly providing that, if the existing statutory requirements for entering into private prison contracts are not satisfied, the Department of Corrections should not
propose, and the Legislature will not approve, a contract. Rather, any proposed contract must "meet all current statutory requirements."
Consequently, if the trial court's order is permitted to stand, all businesses that contract with the state could be affected. The Legislature would no longer be permitted to direct by proviso that particular funds be used on private contracts for specific government services. Instead, the Legislature would be required to enact a
general law for the sole purpose of reflecting its judgment Legislature has the power to exercise
which only the
that state funds should be used for private
contracts for a particular government service if the contract can be entered into in compliance with general law. That turns the Legislature's exclusive, constitutional power on its head.
CONCLUSION
The trial court's order should be reversed to preserve the Legislature's exclusive authority to direct how state funds should be used. Respectfully submitted,
Peter DWebster Florida Bar No. 185180 Christine Davis Graves Florida Bar No. 569372 CARLTON FIELDS, P.A. 215 S. Monroe St., Suite 500 Tallahassee, Florida 32301 Telephone: (850) 224-1585 Facsimile: (850) 222-0398
Attorneys for The Florida Chamber Of Commerce
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been served via U.S. Mail to the following this 23d day of January, 2012:
Gene L. "Hal" Johnson Stephanie Dobson Webster Fla. Police Benevolent Ass'n, Inc. 300 E. Brevard St. Tallahassee, FL 32303
Jonathan A. Glogau Chief, Complex Litigation PL-0 1, The Capitol Tallahassee, FL 32399-1050
M. Stephen Turner Kelly Overstreet Johnson Michael A. Gross Broad & Cassel 215 S. Monroe St., Suite 400 Tallahassee, FL 32301 Attorney
CERTIFICATE OF FONT COMPLIANCE
I HEREBY FURTHER CERTIFY that the type size and style used throughout this brief is 14-point Times New Roman double-spaced, and that this brief fully complies with the requirements of Florida Rule of Appellate Procedure 9.21 O(a)(2).
Attorney
10
