Appeals Court Mulls Ruling on Prison Privatization

By: Jim Saunders, The News Service of Florida
By: Jim Saunders, The News Service of Florida


Jim Saunders, The News Service of Florida

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 at the June 30 end 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.



Jim Saunders, The News Service of Florida

With the end of the fiscal year looming and no final action by lawmakers, a circuit judge on Tuesday grappled with how to deal with budget fine print that called for privatizing prison health services.

The Florida Nurses Association and a state employees union filed a lawsuit this year challenging the constitutionality of the Legislature's decision to use the fine print, known as proviso language, to direct the Department of Corrections to contract with private health companies. But a legislative budget panel also was supposed to give final approval before contracts could be awarded --- something it has not done as the proviso language gets ready to expire at the June 30 end of the fiscal year.

That left Leon County Circuit Judge Kevin Carroll, who held a hearing last month on the constitutional issues, pondering Tuesday how he should handle the case.

Jonathan Glogau, an attorney for the state, said the budget fine print becomes moot, meaning "this case goes away." He said state law gives the Department of Corrections other authority to move forward with privatization of prison health services, anyway, with the panel known as the Legislative Budget Commission ultimately having to sign off.

If that occurred, Glogau said opponents could then launch another legal fight.

"Until then, there's nothing to challenge,'' Glogau said.

But M. Stephen Turner, an attorney for the nurses association, said the department should have to go through a new contracting process if it decides to try to privatize health services --- and should not be allowed to use the expiring proviso language as a basis for contracts.

"The agency's got to go back to the drawing board and start again,'' Turner said.

Carroll did not issue a ruling Tuesday and said he will work on the case for the next couple of days. The overall constitutional issues center on whether the Legislature improperly used proviso language, instead of changing state law with a stand-alone bill, to direct the department to carry out privatization.

The hearing also came a day before the 1st District Court of Appeal is scheduled to hear arguments in a broader prison-privatization case. Another Leon County circuit judge rejected privatizing prisons across the southern part of the state because of the Legislature's use of proviso language to do that as well.

The health-care proviso called for privatization to lead to cost savings of at least 7 percent for the state, compared to 2009-10 expenses. The process led to the department recommending that Corizon, Inc., receive a contract for prisons in North and Central Florida and that Wexford Health Sources receive a contract in South Florida.

Glogau on Tuesday reiterated earlier arguments that the department already has the authority to privatize health services, regardless of the proviso. He said after the hearing that the department has not decided whether it would use that authority to move forward with privatization.

But Tom Brooks, an attorney for the employees union, the American Federation of State, County and Municipal Employees, said the state had played "fast and loose" to try to prevent a ruling on the broader issues in the case --- an argument that Glogau disputed.

"We are not playing fast and loose with the rules, and we are not denying anybody their day in court or due process,'' Glogau said.

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