IN THE SUPREME COURT, STATE OF FLORIDA

IN THE SUPREME COURT, STATE OF FLORIDA CASE NO. SC06- FIRST DISTRICT COURT OF APPEAL CASE NOS.: 1D05-4521/1D05-4524/1D05-4526 (Consolidated) L.T. Case No. 04-1647 THE SCHOOL BOARD OF MIAMI-DADE COUNTY, FLORIDA, MARILYN SPIEGEL, TAXPAYER AND THE CITIZENS COALITION FOR PUBLIC SCHOOLS and THE SCHOOL BOARD OF VOLUSIA COUNTY, FLORIDA; THE SCHOOL BOARD OF MONROE COUNTY, FLORIDA; THE SCHOOL BOARD OF PALM BEACH COUNTY, FLORIDA; and THE SCHOOL BOARD OF BROWARD COUNTY, FLORIDA, Petitioners/Appellants, vs. JAMES E. KING, JR., IN HIS OFFICIAL CAPACITY AS PRESIDENT OF THE FLORIDA SENATE; JOHNNIE B. BYRD, JR., IN HIS OFFICIAL CAPACITY AS SPEAKER OF THE FLORIDA HOUSE OF REPRESENTATIVES; JIM HORNE IN HIS OFFICIAL CAPACITY AS COMMISSIONER OF THE FLORIDA DEPARTMENT OF EDUCATION; FLORIDA DEPARTMENT OF EDUCATION; and STATE BOARD OF EDUCATION, and THE SCHOOL BOARD OF BREVARD COUNTY, FLORIDA; THE SCHOOL BOARD OF CLAY COUNTY, FLORIDA; THE SCHOOL BOARD OF DUVAL COUNTY, FLORIDA; THE SCHOOL BOARD OF HILLSBOROUGH COUNTY, FLORIDA; THE SCHOOL BOARD OF LEON COUNTY, FLORIDA; THE SCHOOL BOARD OF LIBERTY COUNTY, FLORIDA; THE SCHOOL BOARD OF POLK COUNTY, FLORIDA and the SCHOOL BOARD OF SEMINOLE COUNTY, FLORIDA, Respondents/Appellees. PETITIONERS, MARILYN SPIEGEL, TAXPAYER AND THE CITIZENS' COALITION FOR PUBLIC SCHOOLS, JURISDICTIONAL BRIEF

On Review from the District Court of Appeal First District, State of Florida FLOWERS & WHITE, LLC Larry K. White FBN 0195446 1501 East Park Avenue Tallahassee, Florida 32301 (850) 681-2303 Telephone (850) 224-6727 Facsimile ii

TABLE OF CONTENTS TABLE OF CONTENTS...iii TABLE OF CITATIONS...iv STATEMENT OF THE CASE AND FACTS...1 JURISDICTIONAL STATEMENT...4 SUMMARY OF ARGUMENT...4 ARGUMENT...6 1. This Court has jurisdiction because the First District's decision in Miami- Dade v. King, 940 So. 2d 593 (Fla. 1 st DCA 2006) "expressly and directly" conflicts with the cases of Parole Commission v. Cooper, 701 So. 2d 543 (Fla. 1997) and State Farm Mutual Automobile Insurance Co. v. Laforet, 658 So. 2d 55, 62 (Fla. 1995)...6 2. This Court has jurisdiction because the First District's decision in Miami- Dade v. King, 940 So. 2d 593 (Fla. 1 st DCA 2006) "expressly and directly" conflicts with St. John s County v. Northeast Florida Builders Ass n, 583 So. 2d 635 (Fla. 1991)..7 3. This Court has jurisdiction because the First District's decision in Miami- Dade v. King, 940 So. 2d 593 (Fla. 1 st DCA 2006) expressly and directly conflicts with Simon v. Celebration, Co., 883 So. 2d 826 (Fla. 5 th DCA 2004) and the decision expressly construes a provision of the state constitution, Article IX, 1..8 4. This Court has jurisdiction because the First District s decision in Miami- Dade, v. King,, 940 So. 2d 593 (Fla. 1 st DCA 2006) expressly affects a class of constitutional or state officers 9 CONCLUSION...9 CERTIFICATE OF COMPLIANCE...11 CERTIFICATE OF SERVICE...11 iii

TABLE OF CITATIONS CASES Bush v. Holmes, 919 So.2d 392 (Fla. 2006)... 5, 8 Coalition for Adequacy and Fairness in School Funding v. Chiles, 680 So.2d 400 (Fla. 2006)...5 Gay v. Canada Dry Bottling Co., 59 So.2d 788 (Fla. 1952)...7 Hardee v. State, 534 So.2d 706 (Fla. 1988)...6 Lowry v. Parole And Probation Commission, 473 So.2d 1248 (Fla. 1985)... 4, 6 Miami Dade, et al. v. King, et al., 940 So.2d 593 (Fla. 1st DCA 2006)... 4, 9 Parole Commission v. Cooper, 701 So.2d 543 (Fla. 1997)... 4, 6, 7 Simon v. Celebration Co., 883 So.2d 826 (Fla. 5th DCA 2004)...2, 5, 8, 9 St. John's County v. Northeast Florida Builders Association, 583 So.2d 635 (Fla. 1991)... 5, 7, 8 State Farm Mutual Automobile Insurance Co. v. Laforet, 658 So.2d 55 (Fla. 1995)...4, 5, 6, 7 RULES Florida Rules of Appellate Procedure, Rule 9.030(a)(2)(A)(ii) (iii) and (iv) 4 CONSTITUTIONAL PROVISIONS Article III, 1, Florida Constitution...2 Article V, 3(b)(3)..4 Article IX, 1, Florida Constitution...1, 2, 5, 7, 8, 9, 10 iv

STATEMENT OF THE CASE AND FACTS Marilyn Spiegel, a resident and taxpayer in Miami-Dade County, and the Citizens Coalition for Public Schools, joined as party plaintiffs in the June 2004 four count complaint filed by Miami-Dade, Broward and Palm Beach school districts on the eve of the State's distribution of education funds using the wage index. Ms. Spiegel and the Coalition challenged the constitutional validity and exercise of the legislature s taxing and spending power in changing the 30 year old price index method to distribute education funds; and its selection of a wage index without amending 1011.62(2), Florida Statutes, and failure to provide for an adequate, uniform and high quality education, all of which resulted in significantly less funding for Miami-Dade students and a denial of the education the Florida Constitution guaranteed. Count I of the complaint sought a declaration that none of the defendants, the Legislature, Commissioner of Education, State Board of Education or Department of Education, had the authority to select from among the four indexes three wages indexes and a price index published in violation of the law. Count II alleged that the Legislature violated Article III, 12 of the Florida Constitution by implementing/accepting the wage-based index through the Appropriations Act; and Count III alleged that the State's use of the wage index resulted in a violation of Article IX, 1 of the Florida Constitution, because the wage index decreased by 7.6% Miami-Dade, Broward, Monroe and Palm Beach school districts' funds used to hire teachers. 1

The defendants moved to dismiss all three counts of the complaint. The trial court denied the motion to dismiss Counts I and II, but granted the motion to dismiss Count III, the adequacy claim, relying on the Fifth District s decision in Simon v. Celebration Co., 883 So. 2d 826 (Fla. 5th DCA 2004) (no private cause of action exists under Article IX, 1 of the Florida Constitution.) The trial judge granted a motion to amend Count III to raise a uniformity claim. Subsequent to the filing of the amended complaint, the defendants file a motion for summary judgment. The trial court granted the summary judgment as to Count II and denied the motion for summary judgment on Counts I and III because genuine issues of fact exist regarding whether defendants' use of the wage index violated Article III, 1, of the Constitution because it reflects an attempt to use appropriations legislation to alter the DCD component of the FEFP formula specified by substantive law. After plaintiffs presented their evidence at trial, the trial judge granted defendants motion for involuntary dismissal on the remaining counts. On appeal to the First District Court of Appeal, the Court affirmed the trial court s rulings. From 1973 to April 30, 2004, the Florida Price Level Index, a component of the statutory formula under the Florida Education Finance Program (FEFP), was a measure of the price of a market basket of goods. This price level index was similar to the Consumer Price Index used by the U.S. Bureau of Labor Statistics. Each school district s published price level index was used to calculate the cost of hiring instructional and non-instructional personnel, which accounts for 80% of a 2

district's operation budget. The statutory formula for this component of the FEFP is founded in 1011.62 (2), Florida Statutes. The Legislature, in 2003, funded a study of the price index used in the formula to calculate the cost of hiring instructional and non-instructional personnel and alternatives to the price index, including a wage index. The University of Florida Bureau of Economic and Business Research, (Bureau), conducted the study which resulted in three wages indexes and a price index. The Bureau recommended that a wage index replace the price index. The District Court concluded that the recommended wage index was accepted based on 1) the extensive questioning of the Bureau on the recommended change by committees from both houses of the legislature after the publication of the four recommended indexes; 2) the April 30, 2004 adoption of the Conference Committee Report on HB 1835 that included District Cost Differential (DCD) transition supplement funds for several school districts, including plaintiffs; and 3) specific appropriation 81 in the General Appropriation Act, Chapter 2004-268, Laws of Florida, provided the DCD transition supplement funds included in the Conference Committee Report. The change from the price index to the wage index decreased Miami-Dade, Monroe and Broward school districts' funds up to 7.6%, denying thousands of public school students the education the Florida Constitution guaranteed. 3

JURISDICTIONAL STATEMENT The Florida Supreme Court had discretionary jurisdiction to review the First District Court of Appeal's decision in Miami Dade, et al. v. King, et al., 940 So. 2d 593 (Fla. 1 st DCA 2006) under Article V, 3(b)(3), Florida Constitution (2004); and Florida Rules of Appellate Procedure, Rule 9.030(a)(2)(A)(ii)(iii) and (iv). The Miami Dade decision (1) expressly construes a provision of the Florida Constitution; (2) expressly affects a class of constitutional or state officers; and (3) expressly and directly conflicts with the decisions of the Supreme Court and the district court of appeal on the same point of law. SUMMARY OF ARGUMENT The First District s decision expressly and directly conflicts with the cases of Parole Commission v. Cooper, 701 So. 2d 543 (Fla. 1997) and State Farm Mutual Automobile Insurance Co. v. Laforet, 658 So. 2d 55, 62 (Fla. 1995). The District Court held that it must give great deference to the current Legislature s acceptance/selection of the wage index on April 30, 2004, as its interpretation of 1011.62(2), Florida Statutes. See Lowry v. Parole And Probation Commission, 473 So. 2d 1248, 1250 (Fla. 1985) (amendments contained in a pending bill are expression of prior and continuing legislative intent.) That section was originally enacted by a different Legislature with different members thirty years earlier. Cooper and Laforet hold that while the Legislature is perfectly within in rights to clarify its intent on a piece of legislation, it would be absurd, however, to consider 4

legislation enacted more than ten years after the original act as a clarification of original intent. Laforet at 62. The First District s Miami Dade decision expressly and directly conflicts with St. John s County v. Northeast Florida Builders Ass n, 583 So. 2d 635 (Fla. 1991). In St. John s, this Court held that the Florida Constitution requires that a system be provided that gives every student an equal chance to achieve basic education. St John s at 641. In opposite, the District Court's decision affirms the trial court's holding that an uniformity claim can only be proved if plaintiff school districts have been so severely disadvantaged that basic education needs are not being funded. The District Court s interpretations of the Florida Constitution are more restrictive and severe than the St. John s interpretation of Article IX, 1, Florida Constitution. The First District s decision expressly and directly conflicts with Simon v. Celebration, Co., 883 So. 2d 826 (Fla. 5 th DCA 2004) and the decision expressly construed a provision of the Florida Constitution, Article IX, 1. The Simon Court held that no private cause of action exists under Article IX, 1, Florida Constitution to bring an adequacy claim, because the section is not self-executing. The First District held that a citizen/taxpayer could bring such an action and in support of that holding cited Bush v. Holmes, 919 So. 2d 392 (Fla. 2006) and Coalition for Adequacy and Fairness in School Funding v. Chiles, 680 So. 2d 400 (Fla. 2006). 5

Petitioners adopt the arguments of Volusia and Monroe school districts that the Court has jurisdiction because the Miami-Dade decision affects a class of constitutional and state officers. ARGUMENT 1. The Miami-Dade decision expressly and directly conflicts with the cases of Parole Commission v. Cooper, 701 So. 2d 543 (Fla. 1997) and State Farm Mutual Automobile Insurance Co. v. Laforet, 658 So. 2d 55, 62 (Fla. 1995). The opinion found that the Legislature accepted 1 the wage index as the method to calculate the DCD and that the Legislature's choice" of the wage index 30 years after the original enactment of 1011.62(2) constitutes a matter of interpretation by the defendants that was neither unreasonable nor a violation of constitutional prerogatives. The fact finding and the point of law were the Senate and House committees' extensive questioning of the Bureau on the wage index, and the Legislation's appropriation of $22,000,000 in DCD transition funds in the 2004-2005 General Appropriation. See Lowry v. Parole And Probation Commission, 473 So. 2d 1248, 1250 (Fla. 1985) (amendments contained in a 1 The Miami-Dade decision identifies legislative acts in support of its conclusion that the wage index was accepted. Logic compels the conclusion from the listing of facts that the Legislature accepted the wage index. [F]or purposes of determining conflict jurisdiction, this Court is limited to the facts which appear on the face of the opinion. Hardee v. State, 534 So. 2d 706, 708 (Fla. 1988). The record below contains direct evidence that the Legislature chose the wage index; however, we are not privileged at this stage to identify such undisputed evidence. 6

pending bill are expressions of prior and continuing legislative intent.) This Court has recognized the propriety of considering subsequent legislation, amendment or refusal to amend a statute in arriving at the proper interpretation of the prior statute. Gay v. Canada Dry Bottling Co., 59 So. 2d 788 (Fla. 1952) While the Legislature is perfectly within its rights to clarify its intent on a piece of legislation, it would be absurd, however, to consider legislation enacted more than ten years after the original act as a clarification of original intent. Laforet at 62; Cooper 545, 546 The Miami-Dade decision is in opposite to the decision of this Court and the Fourth District Court of Appeal; consequently, this Court has jurisdiction to hear the Petitioners appeal. 2. The First District s Miami-Dade decision expressly and directly conflicts with St. John s County v. Northeast Florida Builders Ass n, 583 So. 2d 635 (Fla. 1991). In addition, the District Court expressly discussed and construed Article IX, 1. Initially, the decision conflates the Florida Constitution s adequacy provision, i.e. the requirement that the State provide funds to give each child a high quality education where he or she resides, with the state Constitution s uniformity provision, i.e. the requirement for a state system that equitably distributes funds to each school district. The District Court articulates a standard that presumed that a school district must be underfunded to receive the protection of the Florida Constitution. The adequacy clause of the state 7

Constitution on the other hand requires the provision of adequate resources by the State for a high quality education and the uniformity clause insures a system that fairly and equitably distributes education resources. Miami-Dade eschews the equitable concept implicated in St. John s, i.e. that the state funding scheme gives every student an equal chance to achieve an education guaranteed by the state Constitution. Id. at 641 The District Court s interpretation of Article IX, 1 is more restrictive, severe and limited than St. John s interpretation of Article IX, 1, Florida Constitution or this Court's recent decision in Bush v. Holmes. The Court has jurisdiction because the decision expressly construes a provision of the state Constitution and expressly and directly conflicts with St. John s. 3. The First District s decision in Miami-Dade expressly and directly conflicts with Simon v. Celebration, Co., 883 So. 2d 826 (Fla. 5 th DCA 2004) and the decision expressly construes a provision of the state constitution, Article IX, 1. In the opinion, the District Court notes that the Fifth District Court of Appeal in Simon held that the test for determining whether a constitutional provision is self-executing is whether or not the provision lays down a sufficient rule by which the right or purpose which it gives or is intended to accomplish may be determined, enjoyed or protected without the aid of legislative enactment. Simon at 831. However, the District Court construed the language as dicta. The language is more than dicta; it is central to the holding in Simon. Although Simon was a malpractice case, its holding was broad and unequivocal. It stated that there is no benchmark 8

for determining what adequate provision for education is meant to entail, nor is the term high quality education defined. Id. at 831. The Miami-Dade decision is in opposite on this point of law. It remains for this Court to determine what language is or is not dicta in Simon. Based on Petitioners reading of the Simon case, it expressly and directly conflicts with Miami-Dade. Moreover, both Simon and Miami-Dade expressly construe a provision of the Florida Constitution, Article IX, 1, thus this Court has jurisdiction. 4. This Court has jurisdiction because the First District s decision in Miami-Dade, v. King,, 940 So. 2d 593 (Fla. 1 st DCA 2006) expressly affects a class of constitutional or state officers. Petitioners adopt the Volusia and Monroe school districts jurisdictional argument. See pages 8-9, Petitioners The School Board of Volusia County, Florida And The School Board of Monroe County, Florida, Jurisdictional Brief. CONCLUSION The First District s decision is an extremely important one. First, it deprives Petitioners school districts of needed state resources. As the District Court notes, Petitioners school districts have received DCD supplemental funding for the three fiscal years this matter has been in litigation. The supplements, which do not make up for the tremendous loss in education funds, are non-recurring and Petitioners have no expectation that the funds will continue beyond this litigation. Second, and more importantly, is the need for this Court to articulate the proper role of the 9

courts, the Legislature and taxpayers in ensuring that the students of this State receive the high quality education promised by the State Constitution. In the absence of guidance from the Court on the important issues raised in this appeal, another decade is likely to pass without the people of the State reaping the full benefits of Article IX, 1. The third and even more compelling reason to hear this case is the proper allocation of powers between the three branches of government. The Miami-Dade decision stands for the proposition that the Legislature, decades after a law is enacted, may alter its meaning through clarifying amendments enacted or pending or by acceptance of commissioned studies during the appropriation process. This is not the law of Florida and should not be allowed to stand. This Court should accept jurisdiction, resolve the conflicts presented and give guidance on the contours of Article IX, 1. FLOWERS & WHITE, LLC Larry K. White FBN 0195446 1501 East Park Avenue Tallahassee, Florida 32301 (850) 681-2303 Telephone (850) 224-6727 Facsimile 10

CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that this brief complies with the font requirements of Rule 9.210, Fla. R. App. P. Larry K. White CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by regular U.S. Mail this 11 TH day of December, 2006, to the following: Jack L. McLean, Jr., Esquire Theodore R. Doran, Esquire Martha Barnett, Esquire Audrie M. Harris, Esquire Holland & Knight LLP Michael Ciocchetti, Esquire Post Office Drawer 810 Doran, Wolfe, Ansay & Kundid Tallahassee, FL 32302 P.O. Drawer 15110 Counsel for Appellants The Daytona Beach, FL 32115 School Board of Miami-Dade Counsel for the Appellants County, The School Board of The School Board of Volusia Palm Beach County, Florida; County, Florida; and and The School Board of The School Board of Monroe Broward County, Florida County, Florida W.C. Gentry, Esquire Sylvia Walbolt, Esquire Jennifer Millis, Esquire Daniel C. Brown, Esquire 1 Independent Drive, Joseph Mellichamp, III, Esquire Suite 1701 Carlton Fields, P.A. Jacksonville, FL 32202-5039 P.O. Drawer 190 Counsel for Appellees the Tallahassee, FL 32302 Florida Senate and the School Counsel for Appellees the Boards of Brevard County, Florida Senate and the Clay County, Duval County, Florida House of Hillsborough County, Leon Representatives County, Liberty County, Polk County and Seminole County, Florida 11

Nathan A. Adams, IV, Esquire E. Jason Vail, Esquire Daniel Woodring, Esquire Chesterfield Smith, Jr., Esquire 325 West Gaines Street Attorney General s Office Suite 1244 400 S. Monroe Street, #PL-01 Tallahassee, FL 32399-0400 Tallahassee, FL 32399-6536 Counsel for Appellees the Counsel for Appellees the Commissioner of the Florida Commissioner for the Florida Department of Education, the Department of Education, the Florida Department of Florida Department of Education and the State Board Education and the State Board of Education of Education Deborah K. Kearney, Esquire Stephen Kahn, Esquire Florida House of General Counsel, Florida Senate Representatives 402 Senate Office Building 221 The Capital Building 404 South Monroe Street 404 South Monroe Street Tallahassee, FL 32399 Tallahassee, FL 32399-6526 Counsel for Appellee the Counsel for Appellee the Florida Senate Florida House of Representatives Larry K. White # 4240169_v1 12