Prison Privatization Still Unconstitutional As Court Rejects Attorney General’s Appeal

An appeals court Tuesday ruled against Attorney General Pam Bondi in a long-running battle about the Legislature’s attempt last year to privatize prisons across southern Florida.

The 1st District Court of Appeal rejected Bondi’s appeal of a circuit-court ruling that blocked the privatization plan from going forward. A three-judge panel ruled against Bondi on a procedural issue — saying she did not have the authority to file the appeal after the original state party in the case, the Department of Corrections, declined to do so.

“The secretary of the Department of Corrections, against whom the final declaratory and injunctive judgment was actually entered (in circuit court), has not appealed,” Tuesday’s opinion said. “Like any other non-party in the trial court, the attorney general lacks standing to initiate an appeal on her own.”

The decision was a victory for the Florida Police Benevolent Association, which filed the lawsuit last year after lawmakers included the privatization plan in budget fine print, known as “proviso language.” Leon County Circuit Judge Jackie Fulford ruled that it was unconstitutional to use proviso language to direct the changes, which would have privatized 29 prison facilities.

“This ruling (Tuesday) reaffirmed our argument that the attorney general did not have the authority to appeal the lower court’s decision,” Matt Puckett, the Florida PBA’s executive director, said in a prepared statement. “This was never more than the Legislature’s last-second attempt to privatize public prisons in South Florida.”

A spokeswoman for Bondi said the attorney general filed the appeal at the request of the Legislature.

“We respectfully disagree with the court’s decision to dismiss the appeal,” said the spokeswoman, Jenn Meale.

Regardless of the appeals-court ruling, the privatization plan was already all but dead. The proviso language expired June 30 with the end of the state’s 2011-12 fiscal year; lawmakers also failed in a separate attempt to pass a privatization plan during this year’s legislative session.

In a concurring opinion Tuesday, Judge Ronald Swanson cautioned that the decision did not resolve the broader question of whether lawmakers could make such policy changes in proviso language. Also, he wrote that the decision should not be construed as a limit on Bondi’s power to represent the state in lawsuits.

“This case does not serve as a precedent to limit or curtail the power of the attorney general,” Swanson wrote. “It is a well-settled principle of common law — a principle embodied by statutes — that the attorney general has broad authority to represent the people of Florida. Nonetheless, the attorney general has to follow the procedural rules; something she failed to do here.”

Bondi’s office represented the Department of Corrections in the circuit-court case, but the department declined to challenge Fulford’s ruling. The attorney general nevertheless moved forward with the appeal, which her office said at the time was done at the request of the Legislature.

Bondi’s office did not seek approval from the circuit court to formally intervene in the case, a move that the appeals court focused on during arguments in June.

“Not having moved to intervene as a party below, the attorney general lacked authority to initiate an appeal,” appeals-court Chief Judge Robert T. Benton wrote for the panel. “We are therefore without jurisdiction to review the trial court’s judgment, and the appeal must be dismissed.”

–Jim Saunders, News Service of Florida