Bush v. Holmes, No. 1D02-3160

CourtCourt of Appeal of Florida (US)
Writing for the CourtVAN NORTWICK, J.
Citation886 So.2d 340
PartiesGovernor John Ellis "Jeb" BUSH; Attorney General Charlie Crist; Chief Financial Officer Tom Gallagher; Commissioner of Agriculture Charles H. Bronson, in their official capacities; the Florida Department of Education; and the State Board of Education, Brenda McShane, Dermita Merkman, Tracy Richardson, Sharon Mallety, Barbara Landrum, on behalf of themselves and minor children; and Urban League of Greater Miami, Inc., Appellants, v. Ruth D. HOLMES, Gregory and Susan Watson, Rebecca Hale, John Rigsby, Queen E. Nelson, Samuel Watts, Linda Lerner, Betsy H. Kaplan, on behalf of themselves and minor children; Florida State Conference of Branches of NAACP; Citizens' Coalition for Public Schools; The Florida Congress of Parents and Teachers (a/k/a "Florida PTA"); League of Women Voters of Florida, Inc.; Florida Education Association/United, AFT AFL-CIO, a labor organization and Florida taxpayer; Pat Tornillo, Jr., Andy Ford, Rita Moody, Mary Lopez, and Robert F. Lee, as Florida taxpayers, Appellees.
Decision Date12 November 2004
Docket Number No. 1D02-3199., No. 1D02-3160, No. 1D02-3163

886 So.2d 340

Governor John Ellis "Jeb" BUSH; Attorney General Charlie Crist; Chief Financial Officer Tom Gallagher; Commissioner of Agriculture Charles H. Bronson, in their official capacities; the Florida Department of Education; and the State Board of Education, Brenda McShane, Dermita Merkman, Tracy Richardson, Sharon Mallety, Barbara Landrum, on behalf of themselves and minor children; and Urban League of Greater Miami, Inc., Appellants,
v.
Ruth D. HOLMES, Gregory and Susan Watson, Rebecca Hale, John Rigsby, Queen E. Nelson, Samuel Watts, Linda Lerner, Betsy H. Kaplan, on behalf of themselves and minor children; Florida State Conference of Branches of NAACP; Citizens' Coalition for Public Schools; The Florida Congress of Parents and Teachers (a/k/a "Florida PTA"); League of Women Voters of Florida, Inc.; Florida Education Association/United, AFT AFL-CIO, a labor organization and Florida taxpayer; Pat Tornillo, Jr., Andy Ford, Rita Moody, Mary Lopez, and Robert F. Lee, as Florida taxpayers, Appellees

Nos. 1D02-3160, 1D02-3163, 1D02-3199.

District Court of Appeal of Florida, First District.

November 12, 2004.


886 So.2d 343
Barry Richard, Greenberg Traurig, P.A., Tallahassee; Charlie Crist, Attorney General, Christopher M. Kise, Solicitor General, Office of the Attorney General, Tallahassee; Raquel A. Rodriguez, General Counsel, Office of the Governor, Tallahassee; and Daniel Woodring, General Counsel, Florida Department of Education, Tallahassee, for Appellants Governor Jeb Bush, et al

Kenneth W. Sukhia, Fowler, White, Boggs, Banker, P.A., Tallahassee; Clint Polick, Clark M. Neily, Robert M. Freedman, Institute for Justice, Washington, DC, for Appellants Brenda McShane, et al.

Ronald G. Meyer, Meyer and Brooks, P.A., Tallahassee; Robert H. Chanin, John M. West, and Alice O'Brien, of Bredhoff & Kaiser, P.L.L.C., Washington, DC; Pamela L. Cooper of Florida Education Association, Tallahassee; Randall Marshall of American Civil Liberties Union Foundation of Florida, Inc., Miami; Joan Peppard of Anti-Defamation League, Miami; Steven Freeman and Steven Sheinberg of Anti-Defamation League, New York, NY; Steven K. Green and Ayesha N. Khan of Americans United for Separation of Church and State, Washington, DC; Jeffrey P. Sinensky and Kara H. Stein of American Jewish Committee, New York, NY; Elliot M. Mincberg and Judith E. Schaeffer, of People for the American Way Foundation, Washington, DC; Steven R. Shapiro of American Civil Liberties Union Foundation, New York, NY; David Strom of American Federation of Teachers, Washington, DC; Michael A. Sussman of National Association for the Advancement of Colored People, Goshen, NY; Marc D. Stern of American Jewish Congress, New York, NY; Julie Underwood of National School Boards Association, Alexandria, VA, for Appellees.

Frank A. Shepherd, Independent Voices for Better Education, Teachers for Better Education, Ira J. Paul, Robert N. Wright, and Pacific Legal Foundation, Coral Gables, Amici Curiae.

ON MOTION FOR REHEARING EN BANC

VAN NORTWICK, J.

Having considered en banc the arguments raised in this appeal, we withdraw our previous majority opinion and issue the following en banc opinion.

Governor John Ellis ("Jeb") Bush, Attorney General Charlie Crist, Chief Financial Officer Tom Gallagher and Commissioner of Agriculture Charles H. Bronson, as and constituting the Florida Cabinet; the Florida Department of Education; and the Florida Board of Education appeal a final summary judgment in which the trial court ruled that the Florida Opportunity Scholarship Program (OSP), section 229.0537, Florida Statutes (1999), facially violated article I, section 3 of the Florida Constitution. The central issue before us in this appeal is whether the OSP violates the last sentence of article I, section 3 of the Florida Constitution, the so-called "no-aid" provision, which mandates that "[n]o revenue of the state ... shall ever be taken from the public treasury directly or indirectly in aid ... of any sectarian institution."

886 So.2d 344
The appellants argue that article I, section 3, in its entirety, including the no-aid provision, imposes no greater restrictions on state aid to religious schools than does the Establishment Clause in the United States Constitution and that, as a result, the summary judgment must be reversed on the authority of the recent decision of the United States Supreme Court in Zelman v. Simmons-Harris, 536 U.S. 639, 122 S.Ct. 2460, 153 L.Ed.2d 604 (2002), in which the court held an Ohio parental choice voucher program constitutional under the Establishment Clause. Further, the appellants argue that, if the no-aid provision is interpreted to prohibit the use of state funds to provide OSP vouchers for students attending sectarian schools, the provision would violate the Free Exercise Clause of the First Amendment. Because we cannot read the entirety of article I, section 3 of the Florida Constitution to be substantively synonymous with the federal Establishment Clause, we find the appellants' arguments without merit

The first sentence of article I, section 3 of the Florida Constitution is synonymous with the federal Establishment Clause in generally prohibiting laws respecting the establishment of religion. In addition to the Establishment Clause language, article I, section 3 also includes the language of the no-aid provision, which expands the restrictions in state aid and to religion by specifically prohibiting the expenditure of public funds "directly or indirectly" to aid sectarian institutions. For a court to interpret the no-aid provision of article I, section 3 as imposing no further restrictions on the state's involvement with religious institutions than the Establishment Clause, it would have to ignore both the clear meaning and intent of the text and the unambiguous history of the no-aid provision. There is no dispute in this case that state funds are paid to sectarian schools through the OSP vouchers. Thus, we hold the OSP unconstitutional under the no-aid provision to the extent that the OSP authorizes state funds to be paid to sectarian schools. Finally, based upon the recent United States Supreme Court decision in Locke v. Davey, 540 U.S. 712, 124 S.Ct. 1307, 158 L.Ed.2d 1 (2004), we hold that the no-aid provision does not violate the Free Exercise clause of the United States Constitution. Accordingly, we affirm the decision of the trial court and certify a question of great public importance to the Florida Supreme Court.

I. Procedural History

Various parents of children in Florida elementary and secondary schools and several organizations,1 appellees, filed a complaint seeking declaratory and injunctive relief challenging the facial constitutionality of the OSP, section 229.0537, Florida Statutes (1999). In their action, circuit court case number 99-3370, these plaintiffs asserted that the OSP was violative of article I, section 3 and article IX, section 1 of the Florida Constitution as well as the Establishment Clause of the First Amendment to the United States Constitution and 42 U.S.C. section 1983. The members of the Florida Cabinet and the Florida Department of Education were named as defendants.

In a separate action, circuit court case number 99-4110, other plaintiffs, also appellees, including the Florida Education Association/United, AFT AFL-CIO, and various individuals also challenged the OSP under the state and federal constitutions. The Florida Cabinet members, the

886 So.2d 345
State Board of Education, and the Florida Department of Education were named as defendants. These two proceedings were consolidated, and the parents and guardians of students who had received vouchers under the OSP were allowed to intervene

The trial court first considered the question of whether the OSP was facially constitutional under the provisions of article IX, section 1 of the Florida Constitution, which required that "[a]dequate provision shall be made by law for a uniform, efficient, safe, secure, and high quality system of free public schools...."2 After receiving argument, the trial court ruled that "[s]ection 229.0537, Fla. Stat., insofar as it establishes a program through which the State pays tuition for certain students to attend private schools, is declared to be unconstitutional on its face under Article IX, ž 1 of the Florida Constitution."

In the first appeal of this case, this court reversed, explaining that "nothing in article IX, section 1 clearly prohibits the Legislature from allowing the well-delineated use of public funds for private school education, particularly in circumstances where the Legislature finds such use is necessary." Bush v. Holmes, 767 So.2d 668, 675 (Fla. 1st DCA 2000)(footnote omitted). Specifically declining to consider the other constitutional arguments raised by the plaintiffs, this court remanded the cause to the trial court for its consideration of the remaining issues.

While the cause was pending on remand, the United States Supreme Court issued its decision in Zelman v. Simmons-Harris holding constitutional under the Establishment Clause the Ohio Pilot Project Scholarship Program, under which parents of Cleveland schoolchildren can receive a tuition voucher redeemable either in participating Cleveland private schools or public schools in districts adjacent to Cleveland. Thereafter, the plaintiffs voluntarily dismissed their challenges under the Establishment Clause of the First Amendment to the United States Constitution and under article IX, section 6 of the Florida Constitution. Thus, the only issue then remaining was whether the OSP was facially constitutional under the provisions of article I, section 3 of the Florida Constitution prohibiting the use of state revenues directly or indirectly in aid of sectarian institutions. Following discovery and hearing, the trial court ruled that the OSP is violative of article I, section 3 of the Florida Constitution.3

886 So.2d 346
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21 practice notes
  • Childers v. State, No. 1D03-2154.
    • United States
    • Court of Appeal of Florida (US)
    • June 28, 2006
    ...without antecedent publication of panel decision), approved in part, quashed in part by 594 So.2d 267 (Fla.1992); with Bush v. Holmes, 886 So.2d 340 (Fla. 1st DCA 2004) (en banc decision on rehearing released after publication and withdrawal of panel decision), aff'd in part by 919 So.2d 39......
  • Taxpayers for Pub. Educ. v. Douglas Cnty. Sch. Dist., Nos. 11CA1856 & 11CA1857
    • United States
    • Colorado Court of Appeals of Colorado
    • February 28, 2013
    ...unpersuaded by the out-of-state cases on which the dissent relies, Cain v. Horne, 220 Ariz. 77, 202 P.3d 1178 (2009) ; Bush v. Holmes, 886 So.2d 340 (Fla.Dist.Ct.App.2004), aff'd on other grounds, 919 So.2d 392 (Fla.2006) ; and Witters v. State Commission for the Blind, 112 Wash.2d 363,771 ......
  • Atheists of Fla., Inc. v. City of Lakeland, Case No. 8:10–cv–1538–T–17–MAP.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • February 22, 2012
    ...some additional requirements beyond those required by the federal Constitution—namely, the “no-aid” provision. See Bush v. Holmes, 886 So.2d 340, 344 (Fla.Dist.Ct.App.2004), aff'd in part,919 So.2d 392 (Fla.2006) (“For a court to interpret the no-aid provision of article I, section 3 as imp......
  • Williamson v. Brevard Cnty., Case No: 6:15–cv–1098–Orl–28DCI
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • September 30, 2017
    ...in the same manner by courts. See, e.g., Todd v. State, 643 So.2d 625, 628 & n.3 (Fla. 1st DCA 1994) ; see also Bush v. Holmes, 886 So.2d 340, 344 (Fla. 1st DCA 2004) (en banc) ("[T]he first sentence of article I, section 3 is synonymous with the federal Establishment Clause in generally pr......
  • Request a trial to view additional results
21 cases
  • Childers v. State, No. 1D03-2154.
    • United States
    • Court of Appeal of Florida (US)
    • June 28, 2006
    ...without antecedent publication of panel decision), approved in part, quashed in part by 594 So.2d 267 (Fla.1992); with Bush v. Holmes, 886 So.2d 340 (Fla. 1st DCA 2004) (en banc decision on rehearing released after publication and withdrawal of panel decision), aff'd in part by 919 So.2d 39......
  • Taxpayers for Pub. Educ. v. Douglas Cnty. Sch. Dist., Nos. 11CA1856 & 11CA1857
    • United States
    • Colorado Court of Appeals of Colorado
    • February 28, 2013
    ...unpersuaded by the out-of-state cases on which the dissent relies, Cain v. Horne, 220 Ariz. 77, 202 P.3d 1178 (2009) ; Bush v. Holmes, 886 So.2d 340 (Fla.Dist.Ct.App.2004), aff'd on other grounds, 919 So.2d 392 (Fla.2006) ; and Witters v. State Commission for the Blind, 112 Wash.2d 363,771 ......
  • Atheists of Fla., Inc. v. City of Lakeland, Case No. 8:10–cv–1538–T–17–MAP.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • February 22, 2012
    ...some additional requirements beyond those required by the federal Constitution—namely, the “no-aid” provision. See Bush v. Holmes, 886 So.2d 340, 344 (Fla.Dist.Ct.App.2004), aff'd in part,919 So.2d 392 (Fla.2006) (“For a court to interpret the no-aid provision of article I, section 3 as imp......
  • Williamson v. Brevard Cnty., Case No: 6:15–cv–1098–Orl–28DCI
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • September 30, 2017
    ...in the same manner by courts. See, e.g., Todd v. State, 643 So.2d 625, 628 & n.3 (Fla. 1st DCA 1994) ; see also Bush v. Holmes, 886 So.2d 340, 344 (Fla. 1st DCA 2004) (en banc) ("[T]he first sentence of article I, section 3 is synonymous with the federal Establishment Clause in generally pr......
  • Request a trial to view additional results

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