TALLAHASSEE — An appellate court on Tuesday tossed out Attorney General Pam Bondi’s request for a decision to uphold the proposed privatization of 29 South Florida prison facilities.
A three-judge panel of the 1st District Court of Appeal rejected her plea to reverse a lower court’s ruling against privatization, saying Bondi couldn’t appeal on her own after her client, the Department of Corrections, declined to do so. The panel unanimously dismissed the case because Bondi was not a party.
“A party who suffers an adverse judgment in Circuit Court has the right to appeal, but nonparties whose rights have not been adjudicated have no right of appeal,” Chief District Judge Robert Benton wrote for the court.
Leaders of the Republican-controlled Legislature had urged Bondi to appeal after Gov. Rick Scott decided the department, which is part of his administration, would not.
One of Bondi’s assistants acknowledged during oral argument last month that it was too late to carry out the privatization due to the expiration of a budget provision authorizing the plan. Nevertheless, Assistant Attorney General Jonathan Glogau asked the appellate court to issue a ruling upholding the privatization provision that would set a precedent for future budgets.
Circuit Judge Jackie Fulford of Tallahassee last year blocked the privatization plan, saying it violated the Florida Constitution because it should have been authorized through passage of a stand-alone law instead of being tucked into the budget. Lawmakers subsequently considered such a bill, but it was defeated in the Florida Senate.
“It’s unconstitutional crisscrossed three different ways,” said M. Stephen Turner, a lawyer for the Police Benevolent Association and three individual prison guards who challenged the privatization plan.
Turner said he was happy with the appellate court’s decision but couldn’t understand why Bondi appealed because the case against the budget provision was so strong.
“I’m just a lawyer following the law and Judge Fulford was a judge following the law,” Turner said.
In a specially concurring opinion, District Judge Ronald Swanson noted the appellate court did not limit or curtail the attorney general’s power nor did it rule on the merits of the case.
“Accordingly, this case also does not serve as precedent to define legislative power,” Swanson wrote.
Turner, though, said Fulford’s decision remains a precedent in the 2nd Judicial Circuit, which includes Florida’s capital city, where challenges to legislative authority typically are filed.
Bondi spokeswoman Jenn Meale issued a brief statement noting lawmakers asked her to appeal and saying “we respectfully disagree with the court’s decision.”
The attorney general could have sought the trial judge’s permission to intervene and thus become a party, but she didn’t do that. Glogau said they didn’t have enough time to get the request approved after Scott decided against appealing shortly before the deadline for filing. He also contended the judge’s approval was not necessary, but the court disagreed.
District Judge Nikki Ann Clark concurred only with the main opinion.
The Police Benevolent Association sued as the collective bargaining representative for Florida’s prison guards, but shortly after Fulford’s ruling the correctional officers voted in a new union, the Teamsters. The PBA, though, has continued to fight the privatization provision in court.
The South Florida privatization plan is one of several the Scott administration and GOP lawmakers have been pushing.
Another Tallahassee judge declined to rule on a challenge to privatization of prison health care because another budget provision authorizing it also expired when a new budget took effect on July 1.
Corrections Secretary Ken Tucker has announced he is moving forward with that plan anyway, contending it’s permitted by stand-alone laws that predate the expired budget provision. Tucker says he will award contracts to two companies that submitted bids, which the state had sought under authority of the budget provision.
The department also is planning to privatize 20 work release centers across the state, but has not yet sought bids, again citing previously existing laws.
The case is Pamela Jo Bondi in her capacity as attorney general of the State of Florida v. Kenneth S. Tucker in his capacity as the secretary of the Florida Department of Corrections, James Baiardi, John McKenna, Shanea Maycock and Florida Police Benevolent Association Inc., 1D11-5935.