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
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The Florida appellate court held that the state, as a governmental entity appealing a trial court's declaration that the Opportunity Scholarship Program is unconstitutional, is not required to post a bond as a condition of the automatic stay pending appeal. The court distinguished between planning-level governmental functions (like legislative enactments), which require no bond for appellate review, and operational-level functions, which may require bonds.
Governmental entities need not post a bond to secure an automatic stay when appealing trial court decisions declaring legislative enactments unconstitutional, as such review involves planning-level governmental functions for which no bond authority exists.
[1] A governmental body is entitled to an automatic stay pending review without posting a bond when the judgment concerns planning-level governmental functions.
[2] Trial and appellate courts have discretion to require governmental entities to post supersedeas bonds in suits where the judgment concerns operational-level functions.
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Join FLexlaw to unlock all legal intelligence“We can conceive no justification for this Court to require the government to pay for judicial review of legislative actions.”
Establishes the core principle that governmental entities should not bear the cost of appellate review of legislative actions.
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Join FLexlaw to unlock all legal intelligenceThe trial court declared the Opportunity Scholarship Program (section 229.0537, Fla. Stat. 1999) unconstitutional under Article I, section 3 of the Fl…
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POLSTON, J.
Appellants seek the removal of the bond the trial court required as a condition of the automatic stay in effect while their appeal of the trial court’s final judgment is pending. The trial court’s final judgment held that the Opportunity Scholarship Program, section 229.0537, Florida Statutes (1999), is unconstitutional under Article I, section 3, of the Florida Constitution. The trial court required appellants to post a bond or letter of credit to secure reimbursement of funds lost to the school districts while this case is appealed. The trial court required $2,500,000 to be posted for the 2002-03 school year and an additional $2,380,576 for the 2003-04 school year. Florida Rule of Appellate Procedure 9.310(b)(2) provides “the state, any public officer in an official capacity, board, commission, or other public body” an automatic stay pending review without the necessity of posting a bond. The Florida Supreme Court has interpreted its rule as “allowing trial and appellate courts the discretion to require governmental entities to post supersedeas bonds in suits where the judgment concerns operational-level functions but find[s] that no authority exists to lawfully require such bonds in planning-level governmental functions.” City of Lauderdale Lakes v. Corn, 415 So. 2d 1270, 1272 (Fla.1982).
The trial court, in Com, declared a municipal zoning ordinance unconstitutional, and the city appealed the adverse ruling. Id. at 1271. The trial court granted a motion by Corn, a land developer, to require the city to post a $1,140,000 bond for potential damages for delay. Id. The Fourth District Court of Appeal affirmed the trial court’s requirement for a bond. Id. at 1272. Quashing the district court’s decision, the Florida Supreme Court stated: “We can conceive no justification for this Court to require the government to pay for judicial review of legislative actions.” Id. “It is paramount for governmental bodies to have unrestricted appellate court review of their authority to act in a legislative capacity.” Id.
As in Corn, the Florida Legislature’s enactment of the Opportunity Scholarship Program, at issue in this case, is clearly a planning-level governmental function that does not re quire a bond for review of the trial court’s declaration that it is unconstitutional.
Therefore, we grant appellants’ motion to review the trial court’s orders conditioning the automatic stay with the posting of a bond and hold that the automatic stay will remain in effect pending review without appellants posting a bond or letter of credit as required by the trial court. We do not reach the other arguments raised by appellants in support of their motion.
VAN NORTWICK, J. AND SMITH, LARRY G., Senior Judge, concur. . "The only exception is when no justiciable issue is present and when the record establishes that the governmental body is seeking review in bad faith solely as a delaying tactic." Id. Appellees, in response, do not argue that an exception applies, but instead assert that laches bars appellants' motion. Because the prejudice argued by appellees is speculative, laches does not bar the motion.