With a prison-privatization plan all but dead, an appeals court Wednesday appeared hesitant to decide a constitutional fight about whether lawmakers improperly used the state budget to approve the plan.
Jonathan Glogau, representing Attorney General Pam Bondi, acknowledged to the 1st District Court of Appeal that there is virtually no chance that the state will go ahead with the plan to contract with private companies to run prisons across the southern part of the state. That is because lawmakers included the plan in budget fine print, known as proviso language, that expires June 30 at theend of the fiscal year.
A Leon County circuit judge ruled last year that lawmakers violated the state Constitution in using proviso language to approve the plan, prompting an appeal by Bondi.
Appeals court Chief Judge Robert Benton and Judge Nikki Ann Clark questioned Glogau about whether the demise of the plan meant that the state was asking for what would amount to an advisory opinion about the Legislature's actions. Clark said any opinion the court issued on the privatization plan would be "for naught."
Glogau said the "current dispute disappears on July 1 -- there's no question about that." But he said it is important for the court to take up the constitutional issues involved in the case.
"This is an important issue of legislative authority,'' he told the three-judge panel. "We believe it is certainly repeatable."
M. Stephen Turner, an attorney for the Florida Police Benevolent Association, which challenged the privatization plan, blasted the Legislature's decision to put prison privatization in the budget fine print instead of passing it in state law.
"This is a gross abuse of the proviso,'' Turner said.
In addition to the debate about whether the lawsuit is moot, judges also peppered Glogau with questions about whether the appeal is procedurally valid. Those questions centered on a move by Bondi to become a party in the case, after the state Department of Corrections decided against appealing the ruling last year by Circuit Judge Jackie Fulford. A Bondi spokeswoman said at the time that the attorney general was moving forward with the appeal at the request of the Legislature.
Bondi's office did not seek approval from the circuit court to formally intervene in the case before filing a notice of appeal. Glogau said that stemmed from a lack of time, as the department decided only two days before a filing deadline that it would not appeal.
Glogau also said Bondi has broad power to become involved in cases that are in the "public interest." But judges questioned whether she was entitled to file the appeal without first seeking approval from the circuit court.
"You didn't try,'' Judge Ronald Swanson said to Glogau. "You acknowledge that."
The judges did not indicate when they will rule in the case.
The dispute centers on the Legislature's plan to privatize 29 prison facilities across the southern half of the state, a move that backers said would save the state money. But with privatization a hot-button issue in state government -- and, particularly, for prison workers -- the PBA filed the lawsuit challenging the way lawmakers went about it.
Another attempt this year to pass a privatization plan died in the Legislature, amid heavy lobbying. That plan would have put the privatization in state law, instead of in proviso language.
The appeals court heard arguments Wednesday, as another Leon County circuit judge considers a separate case dealing with privatization of prison health services statewide. Lawmakers also approved the health changes in proviso language -- raising similar questions about whether the issues become moot with the upcoming end of the fiscal year.
