McCall v. Scott

• Decision Date: 16 August 2016
• Docket Number: No. 1D15–2752.,1D15–2752.
• Citation: 199 So.3d 359
• Parties: Joanne McCALL, Senator Geraldine Thompson, Rabbi Merrill Shapiro, Rev. Harry Parrott, Jr., Rev. Dr. Harold Brocus, Florida Education Association, Florida Congress of Parents and Teachers, Inc., League of Women Voters of Florida, Inc., and Florida State Conference of Branches of NAACP, Appellants, v. Rick SCOTT, Governor of Florida, In His Official Capacity as Head of the FLorida Department of Revenue, et al. and Umene Prophete et al., Appellees.
• Court: Florida District Court of Appeals

199 So.3d 359

Joanne McCALL, Senator Geraldine Thompson, Rabbi Merrill Shapiro, Rev. Harry Parrott, Jr., Rev. Dr. Harold Brocus, Florida Education Association, Florida Congress of Parents and Teachers, Inc., League of Women Voters of Florida, Inc., and Florida State Conference of Branches of NAACP, Appellants,

v.Rick SCOTT, Governor of Florida, In His Official Capacity as Head of the FLorida Department of Revenue, et al. and Umene Prophete et al., Appellees.

No. 1D15–2752.

District Court of Appeal of Florida, First District.

Aug. 16, 2016.

Ronald G. Meyer, Jennifer S. Blohm, and Lynn C. Hearn of Meyer, Brooks, Demma and Blohm, P.A., Tallahassee; Pamela L. Cooper and William A. Spillias of Florida Education Association, Tallahassee; John M. West of Bredhoff & Kaiser, P.L.L.C., Washington, D.C.; Alice O'Brien of National Education Association, Washington, D.C.; David Strom of American Federal of Teachers, Washington, D.C., and Alex J. Luchenitser of Americans United for Separation of Church and State, Washington, D.C., for Appellants.

Pamela Jo Bondi, Attorney General, and Rachel Nordby, Deputy Solicitor General, Tallahassee, for Appellees Rick Scott, Pam Bondi, Jeff Atwater, Adam Putnam, Pam Stewart, and the Department of Revenue and Education.

Karen D. Walker and Nathan A. Adams IV of Holland & Knight LLP, Tallahassee; Daniel J. Woodring of Woodring Law Firm, Tallahassee; Howard Coker of Coker, Schickel, Sorenson, Posgay, Camerlengo & Iracki, Jacksonville; Jay P. Lefkowitz and Steven J. Menashi of Kirkland & Ellis LLP, New York, N.Y.; Raoul G. Cantero of White & Case LLP, Miami, for Intervenor Appellees.

Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee, for Amicus Curiae Black Alliance For Educational Options.

ROWE, J.

The Florida Education Association, the Florida Congress of Parents and Teachers, Inc., the League of Women Voters of Florida, Inc., the Florida State Conference of Branches of the NAACP, a group of parents of children in public schools, teachers employed by public schools, and religious and community leaders (collectively, Appellants) argue that the Florida Tax Credit Scholarship Program (FTCSP) is unconstitutional. They filed suit, seeking a declaration that the FTCSP violates the Florida Constitution by diverting public funds from Florida's public schools to religiously affiliated schools and by using taxpayer funds to create a parallel and non-uniform system of schools. Governor Rick Scott, Attorney General Pam Bondi, Chief Financial Officer Jeff Atwater, Commissioner of Agriculture Adam Putnam, Commissioner of Education Pam Stewart, the Florida Department of Revenue, and the Florida Department of Education (collectively, the State) moved to dismiss the suit on grounds that Appellants lacked standing to challenge the FTCSP. Appellants claim that they have standing, pursuant to Rickman v. Whitehurst, 73 Fla. 152, 74 So. 205 (1917), based on their allegation of special injury, and also as taxpayers under the limited exception to the special injury rule expressed in Department of Administration v. Horne,

269 So.2d 659 (Fla.1972). Rejecting both arguments for standing advanced by Appellants, the trial court dismissed their complaint with prejudice. For the reasons that follow, we affirm.

I. Background

Beginning in 1999, the Florida Legislature passed several laws to “[e]xpand educational opportunities for children of families that have limited financial resources.” Ch. 2001–225, § 5, Laws of Fla. The Legislature expressed its intent to ensure “that all parents, regardless of means, may exercise and enjoy their basic right to educate their children as they see fit ....” § 1002.395(1)(a) 3., Fla. Stat. (2014). Among the education reforms adopted by the Legislature were two programs authorizing scholarships for children in failing public schools and children in low-income households: (1) the Florida Opportunity Scholarship Program and (2) the Florida Tax Credit Scholarship Program.

A. The Florida Opportunity Scholarship Program

In 1999, the Florida Legislature established the Florida Opportunity Scholarship Program (OSP) to give students attending “failing” public schools the choice to attend better-performing schools. Ch. 99–398, § 2, Laws of Fla. The Legislature declared that:

a student should not be compelled, against the wishes of the student's parent or guardian, to remain in a school found by the state to be failing for 2 years in a 4–year period. The Legislature shall make available opportunity scholarships in order to give parents and guardians the opportunity for their children to attend a public school that is performing satisfactorily or to attend an eligible private school when the parent or guardian chooses to apply the equivalent of the public education funds generated by his or her child to the cost of tuition in the eligible private school....

§ 229.0537(1), Fla. Stat. (1999) (repealed 2002). The Legislature directly appropriated funds to the Department of Education for the OSP. The Department of Education transferred those funds to the private school chosen by a qualified student's parent or guardian via a state warrant. § 229.0537(6)(b), Fla. Stat. (1999) (repealed).

Four years after the OSP was established, this Court held the OSP unconstitutional on grounds that it violated the no-aid provision of the anti-establishment clause in Florida's Constitution because state revenues were used to pay the cost of tuition at religiously affiliated schools. Bush v. Holmes, 886 So.2d 340 (Fla. 1st DCA 2004) (en banc) (Holmes I ). Two years later, the supreme court held that the OSP was an unconstitutional violation of the mandate in article IX, section 1 because it “foster[ed] plural, nonuniform systems of education in direct violation of the constitutional mandate for a uniform system of free public schools.” Bush v. Holmes, 919 So.2d 392, 398 (Fla.2006) (Holmes II ).

B. The Florida Tax Credit Scholarship Program

In 2001, the Legislature established the FTCSP. Ch. 2001–255, § 5, Laws of Fla. Designed to further expand school choice opportunities beyond those available under the OSP, scholarships offered under the FTCSP are not limited to students attending “failing” schools. Rather, students receiving certain government assistance or students whose families have an annual income below 185% of the federal poverty level are eligible to receive scholarships. § 1002.395(3)(c), Fla. Stat. (2015).

The FTCSP operates as follows. Individual and corporate taxpayers make voluntary contributions to Scholarship Funding Organizations (SFOs), including state universities, independent colleges and universities, and nonprofit organizations. After making a contribution to an SFO, the taxpayer may seek a credit against their liability for the following taxes: (1) oil, gas, and mineral severance tax, (2) alcoholic beverage tax, (3) corporate income tax, (4) insurance premium tax, and (5) self-accrued direct-pay sales tax. § 1002.395(5)(b), Fla. Stat. (2015). Parents and guardians apply to SFOs to secure a scholarship for their student at a school of their choice. Scholarships may be used to pay tuition and fees at an eligible private school or to pay for transportation to a Florida public school that is outside of the student's district or to a lab school. § 1002.395(6)(d), Fla. Stat. (2015). An eligible private school may be religiously affiliated. § 1002.395(8), Fla. Stat. (2015). SFOs pay the scholarship funds directly to the participating private schools. § 1002.395(7)(f), Fla. Stat. (2015). For the 2014–2015 school year, 69,950 children from low-income families applied for and received scholarships under the FTCSP. See Fla. Dep't of Educ., Florida Tax Credit Scholarship Program Fact Sheet 1 (November 2015), http://www.fldoe.org/core/fileparse.php/5606/urlt/FTC_Nov_2015.pdf.

II. Procedural History

Thirteen years after the FTCSP was created, Appellants filed their lawsuit. They alleged that the FTCSP violates two provisions of the Florida Constitution: article I, section 3 and article IX, section 1 (a). Appellants assert that the FTCSP violates the no-aid provision of article I, section 3, by diverting funds from the public treasury and channeling those funds to religiously affiliated schools. Appellants claim that the FTCSP violates the mandate for the provision of a system of free and uniform public schools pursuant to article IX, section 1(a) by redirecting taxpayer funds from public schools to provide private-school scholarships and by creating a non-uniform system of public education.

The State argued that Appellants lack standing to bring suit because (1) Appellants did not allege any special injury, (2) Appellants failed to identify any legislative appropriation subject to a constitutional limitation on the Legislature's spending authority, and (3) Appellants' claims are not based on any constitutional provision limiting the Legislature's taxing authority. A group of parents whose children receive tax credit scholarships intervened in the action and moved to dismiss the complaint, echoing the State's arguments concerning Appellants' lack of special injury and taxpayer standing.

At the hearing on the motion to dismiss, the trial court determined that Appellants' allegations of harm were insufficient to establish standing. The court provided Appellants with an opportunity to amend their complaint to include additional factual allegations to support their claim of harm. But Appellants refused this offer. Appellants' counsel maintained at the hearing:

Judge, we don't think we need to amend in any way at all. We think what we have said here in the second sentence of paragraph 19 is fully sufficient to allege that some of the ... [Appellants] who have children in the public schools, ... [or] who are teachers and administrators in the public schools have been directly injured because of the loss of funding caused directly by the scholarship program.

The trial court concluded that Appellants failed to allege...