Joanne McCall, Senator Geraldine etc. v. Rick Scott, Governor of Florida, etc.

IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
JOANNE McCALL, SENATOR NOT FINAL UNTIL TIME EXPIRES TO
GERALDINE THOMPSON, FILE MOTION FOR REHEARING AND
RABBI MERRILL SHAPIRO, DISPOSITION THEREOF IF FILED
REV. HARRY PARROTT, JR.,
REV. DR. HAROLD BROCUS, CASE NO. 1D15-2752
FLORIDA EDUCATION
ASSOCIATION, FLORIDA
CONGRESS OF PARENTS AND
TEACHERS, INC., LEAGUE OF
WOMEN VOTERS OF
FLORIDA, INC., AND
FLORIDA STATE
CONFERENCE OF BRANCHES
OF NAACP.
Appellants,
v.
RICK SCOTT, GOVERNOR OF
FLORIDA, IN HIS OFFICIAL
CAPACITY AS HEAD OF THE
FLORIDA DEPARTMENT OF
REVENUE, ET AL. AND
UMENE PROPHETE ET AL.,
Appellees.
_____________________________/
Opinion filed August 16, 2016.
An appeal from the Circuit Court for Leon County.
George S. Reynolds, III, Judge.
Ronald G. Meyer, Jennifer S. Blohm, and Lynn C. Hearn of Meyer, Brooks, Demma
and Blohm, P.A., Tallahassee; Pamela L. Cooper and William A. Spillias of Florida
Education Association, Tallahassee; John M. West of Bredhoff & Kaiser, P.L.L.C.,
Washington, D.C.; Alice O’Brien of National Education Association, Washington,
D.C.; David Strom of American Federal of Teachers, Washington, D.C., and Alex
J. Luchenitser of Americans United for Separation of Church and State, Washington,
D.C., for Appellants.
Pamela Jo Bondi, Attorney General, and Rachel Nordby, Deputy Solicitor General,
Tallahassee, for Appellees Rick Scott, Pam Bondi, Jeff Atwater, Adam Putnam, Pam
Stewart, and the Department of Revenue and Education.
Karen D. Walker and Nathan A. Adams IV of Holland & Knight LLP, Tallahassee;
Daniel J. Woodring of Woodring Law Firm, Tallahassee; Howard Coker of Coker,
Schickel, Sorenson, Posgay, Camerlengo & Iracki, Jacksonville; Jay P. Lefkowitz
and Steven J. Menashi of Kirkland & Ellis LLP, New York, NY; Raoul G. Cantero
of White & Case LLP, Miami, for Intervenor Appellees.
Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee, for Amicus
Curiae Black Alliance For Educational Options;
ROWE, J.
The Florida Education Association, the Florida Congress of Parents and
Teachers, Inc., the League of Women Voters of Florida, Inc., the Florida State
Conference of Branches of the NAACP, a group of parents of children in public
schools, teachers employed by public schools, and religious and community leaders
2
(collectively, Appellants) argue that the Florida Tax Credit Scholarship Program
(FTCSP) is unconstitutional. They filed suit, seeking a declaration that the FTCSP
violates the Florida Constitution by diverting public funds from Florida’s public
schools to religiously affiliated schools and by using taxpayer funds to create a
parallel and non-uniform system of schools. Governor Rick Scott, Attorney General
Pam Bondi, Chief Financial Officer Jeff Atwater, Commissioner of Agriculture
Adam Putnam, Commissioner of Education Pam Stewart, the Florida Department of
Revenue, and the Florida Department of Education (collectively, the State) moved
to dismiss the suit on grounds that Appellants lacked standing to challenge the
FTCSP. Appellants claim that they have standing, pursuant to Rickman v.
Whitehurst, 74 So. 205 (Fla. 1917), based on their allegation of special injury, and
also as taxpayers under the limited exception to the special injury rule expressed
in Department of Administration v. Horne, 269 So. 2d 659 (Fla. 1972). Rejecting
both arguments for standing advanced by Appellants, the trial court dismissed their
complaint with prejudice. For the reasons that follow, we affirm.
I. Background
Beginning in 1999, the Florida Legislature passed several laws to “[e]xpand
educational opportunities for children of families that have limited financial
resources.” Ch. 2001-225, § 5, Laws of Fla. The Legislature expressed its intent to
ensure “that all parents, regardless of means, may exercise and enjoy their basic right
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to educate their children as they see fit . . . .” § 1002.395(1)(a)3., Fla. Stat. (2014).
Among the education reforms adopted by the Legislature were two programs
authorizing scholarships for children in failing public schools and children in low-
income households: (1) the Florida Opportunity Scholarship Program and (2) the
Florida Tax Credit Scholarship Program.
A. The Florida Opportunity Scholarship Program
In 1999, the Florida Legislature established the Florida Opportunity
Scholarship Program (OSP) to give students attending “failing” public schools the
choice to attend better-performing schools. Ch. 99-398, § 2, Laws of Fla. The
Legislature declared that:
a student should not be compelled, against the wishes of the student’s
parent or guardian, to remain in a school found by the state to be failing
for 2 years in a 4-year period. The Legislature shall make available
opportunity scholarships in order to give parents and guardians the
opportunity for their children to attend a public school that is
performing satisfactorily or to attend an eligible private school when
the parent or guardian chooses to apply the equivalent of the public
education funds generated by his or her child to the cost of tuition in
the eligible private school . . . .
§ 229.0537(1), Fla. Stat. (1999) (repealed 2002). The Legislature directly
appropriated funds to the Department of Education for the OSP. The Department
of Education transferred those funds to the private school chosen by a qualified
student’s parent or guardian via a state warrant. § 229.0537(6)(b), Fla. Stat. (1999)
(repealed).
4
Four years after the OSP was established, this Court held the OSP
unconstitutional on grounds that it violated the no-aid provision of the anti-
establishment clause in Florida’s Constitution because state revenues were used to
pay the cost of tuition at religiously affiliated schools. Bush v. Holmes, 886 So. 2d
340 (Fla. 1st DCA 2004) (en banc) (Holmes I). Two years later, the supreme court
held that the OSP was an unconstitutional violation of the mandate in article IX,
section 1 because it “foster[ed] plural, nonuniform systems of education in direct
violation of the constitutional mandate for a uniform system of free public
schools.” Bush v. Holmes, 919 So. 2d 392, 398 (Fla. 2006) (Holmes II).
B. The Florida Tax Credit Scholarship Program
In 2001, the Legislature established the FTCSP. Ch. 2001-255, § 5, Laws of
Fla. Designed to further expand school choice opportunities beyond those available
under the OSP, scholarships offered under the FTCSP are not limited to students
attending “failing” schools. Rather, students receiving certain government
assistance or students whose families have an annual income below 185% of the
federal poverty level are eligible to receive scholarships. § 1002.395(3)(c), Fla. Stat.
(2015).
The FTCSP operates as follows. Individual and corporate taxpayers make
voluntary contributions to Scholarship Funding Organizations (SFOs), including
state universities, independent colleges and universities, and nonprofit
5
organizations. After making a contribution to an SFO, the taxpayer may seek a credit
against their liability for the following taxes: (1) oil, gas, and mineral severance tax,
(2) alcoholic beverage tax, (3) corporate income tax, (4) insurance premium tax, and
(5) self-accrued direct-pay sales tax. § 1002.395(5)(b), Fla. Stat. (2015). Parents
and guardians apply to SFOs to secure a scholarship for their student at a school of
their choice. Scholarships may be used to pay tuition and fees at an eligible private
school or to pay for transportation to a Florida public school that is outside of the
student’s district or to a lab school. § 1002.395(6)(d), Fla. Stat. (2015). An eligible
private school may be religiously affiliated. § 1002.395(8), Fla. Stat. (2015). SFOs
pay the scholarship funds directly to the participating private schools.
§ 1002.395(7)(f), Fla. Stat. (2015). For the 2014-2015 school year, 69,950 children
from low-income families applied for and received scholarships under the
FTCSP. See Fla. Dep’t of Educ., Florida Tax Credit Scholarship Program Fact Sheet
1 (November 2015),
http://www.fldoe.org/core/fileparse.php/5606/urlt/FTC_Nov_2015.pdf.
II. Procedural History
Thirteen years after the FTCSP was created, Appellants filed their lawsuit.
They alleged that the FTCSP violates two provisions of the Florida Constitution:
article I, section 3 and article IX, section 1(a). Appellants assert that the FTCSP
violates the no-aid provision of article I, section 3, by diverting funds from the public
6
treasury and channeling those funds to religiously affiliated schools. Appellants
claim that the FTCSP violates the mandate for the provision of a system of free and
uniform public schools pursuant to article IX, section 1(a) by redirecting taxpayer
funds from public schools to provide private-school scholarships and by creating a
non-uniform system of public education.
The State argued that Appellants lack standing to bring suit because (1)
Appellants did not allege any special injury, (2) Appellants failed to identify any
legislative appropriation subject to a constitutional limitation on the Legislature’s
spending authority, and (3) Appellants’ claims are not based on any constitutional
provision limiting the Legislature’s taxing authority. A group of parents whose
children receive tax credit scholarships intervened in the action and moved to
dismiss the complaint, echoing the State’s arguments concerning Appellants’ lack
of special injury and taxpayer standing.
At the hearing on the motion to dismiss, the trial court determined that
Appellants’ allegations of harm were insufficient to establish standing. The court
provided Appellants with an opportunity to amend their complaint to include
additional factual allegations to support their claim of harm. But Appellants refused
this offer. Appellants’ counsel maintained at the hearing:
Judge, we don’t think we need to amend in any way at all. We think
what we have said here in the second sentence of paragraph 19 is fully
sufficient to allege that some of the . . . [Appellants] who have children
in the public schools, . . . [or] who are teachers and administrators in
7
the public schools have been directly injured because of the loss of
funding caused directly by the scholarship program.
The trial court concluded that Appellants failed to allege special injury standing
because “whether any diminution of public school resources resulting from the
[FTCSP] will actually take place is speculative, as is any claim that any such
diminution would result in reduced per-pupil spending or in any adverse impact on
the quality of education.” The trial court added that it was not bound to “defer to a
speculative and conclusory allegation, such as pleaded here, that some Plaintiffs
have been ‘injured’ by the [FTCSP].” Finally, the trial court determined that
Appellants lacked taxpayer standing because their claims were not directed at any
exercise of the Legislature’s spending authority. Appellants now appeal that order.
III. Analysis
The sole issue before this Court is whether Appellants have standing to
challenge the FTCSP. Standing is a question of law, which we review de novo. Pub.
Def., Eleventh Jud. Cir. of Fla. v. State, 115 So. 3d 261, 282 (Fla. 2013).
In order to have standing to challenge a governmental action, a citizen
taxpayer must show that he or she suffered or will suffer a special injury, distinct
from other members of the community at large. Council for Secular Humanism, Inc.
v. McNeil, 44 So. 3d 112, 121 (Fla. 1st DCA 2010); see also Miller v. Publicker
Indus., Inc., 457 So. 2d 1374, 1375 (Fla. 1984) (“A party may challenge the
constitutionality of a statute after showing that enforcement of the statute will
8
injuriously affect the plaintiff’s personal or property rights.”). An exception to the
special injury requirement has been recognized for challenges to governmental
action on constitutional grounds based directly on the Legislature’s taxing and
spending powers. Horne, 269 So. 2d at 663; Alachua Cty. v. Scharps, 855 So. 2d
195, 198 (Fla. 1st DCA 2003). Thus, we consider whether Appellants have alleged
any special injury or whether the Legislature’s authorization of the FTCSP violates
specific constitutional limitations on the Legislature’s taxing and spending power.
A. Requirements for Special Injury Standing
“[A] private citizen is precluded from filing a taxpayer complaint to challenge
government action unless the private citizen alleges and proves a ‘special injury,’
which is an injury that is different from that of the general public.” Smith v. City
of Fort Myers, 944 So. 2d 1092, 1094 (Fla. 2d DCA 2006). The special injury rule
was first explained by the supreme court in Rickman, 74 So. at 206. There, taxpayers
challenged the county commissioners’ decision to spend bond proceeds on the
construction of roads and bridges. Id. at 206. In holding that the taxpayers in that
case were required to allege that they suffered a special injury distinct from other
members of the public, the court explained:
We have . . . found no case in which such a suit has been maintained
where it did not appear that special injury would result to the
complainant as a taxpayer in the increased public burden as the result
of the unauthorized act. The principle is universally recognized that to
entitle a party to relief in equity he must bring his case under some
acknowledged head of equity jurisdiction. In a case where a public
9
official is about to commit an unlawful act, the public by its authorized
public officers must institute the proceeding to prevent the wrongful
act, unless a private person is threatened with or suffers some public or
special damage to his individual interests, distinct from that of every
other inhabitant, in which case he may maintain his bill.
Id. at 207. The rationale for the special injury rule is grounded in the doctrine of
separation of powers and requires courts to accord proper deference to legislative
actions rather than opening the courthouse doors to disgruntled taxpayers who are
not pleased with the taxing and spending decisions of their elected representatives.
Paul v. Blake, 376 So. 2d 256, 259 (Fla. 3d DCA 1979) (“[I]t has long been
recognized that in a representative democracy the public’s representatives in
government should ordinarily be relied on to institute the appropriate legal
proceedings to prevent the unlawful exercise of the state or county’s taxing and
spending power.”); see also DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 344-45
(2006) (“A taxpayer plaintiff has no right to insist that the government dispose of
any increased revenue it might experience as a result of his suit by decreasing his
tax liability or bolstering programs that benefit him. To the contrary, the decision
of how to allocate any such savings is the very epitome of a policy judgment
committed to the broad and legitimate discretion of lawmakers, which the courts
cannot presume either to control or to predict.” (internal quotations omitted)).
Since adopting the Rickman rule almost one hundred years ago, the supreme
court has rejected invitations to eliminate the requirement of special injury for
10
taxpayer lawsuits. See, e.g., Fornes, 476 So. 2d at 156 (finding no reason to modify
the special injury requirement for taxpayer suits); Dep’t of Revenue v. Markham,
396 So. 2d 1120, 1121 (Fla. 1981) (reiterating that in the absence of a constitutional
challenge a taxpayer must show a special injury distinct from that suffered by other
taxpayers to have standing); U.S. Steele Corp. v. Save Sand Key, Inc., 303 So. 2d 9,
13 (Fla. 1974) (stating that although it had created a limited exception to the
Rickman rule in Horne “this Court did not intend to abrogate in any way the special
injury rule”).
B. Appellants Failed to Allege that They Suffered Any Special Injury
Here, the trial court correctly determined that Appellants lacked special injury
standing because they failed to allege that they suffered a harm distinct from that
suffered by the general public. Indeed, Appellants failed to allege any concrete harm
whatsoever. Although Appellants were given an opportunity to amend their
complaint, they chose to rest their argument for standing on the following allegations
in their complaint:
As Florida citizens and taxpayers, and organizations whose members
are Florida citizens and taxpayers, plaintiffs have been and will
continue to be injured by the unconstitutional expenditure of public
revenues under the Scholarship Program. In addition, many of the
plaintiffs (and members of the plaintiff organizations) whose children
attend public schools, or who are teachers or administrators in the
public schools, have been and will continue to be injured by the
Scholarship Program’s diversion of resources from the public schools.
Thus, Appellants’ entire argument for special injury standing is that they have been
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harmed by the FTCSP’s alleged diversion of public revenues from public schools to
private schools.
Appellants’ diversion theory is incorrect as a matter of law. A close
examination of the statutory provisions authorizing the FTCSP exposes the flaws in
Appellants’ argument. No funds under the FTCSP are appropriated from the state
treasury or from the budget for Florida’s public schools. See §§ 1002.395(2)(e),
1002.395(6)(d), Fla. Stat. (2015). Rather, all funds received by private schools under
the FTCSP come from private, voluntary contributions to SFOs, after a parent or
guardian has exercised their choice to enroll their child in a private school.
§ 1002.395(1)(b)1., Fla. Stat. (2015). Further, as will be discussed in further detail,
tax credits received by taxpayers who have contributed to SFOs are not the
equivalent of revenues remitted to the state treasury. § 1002.395(5)(b), Fla. Stat.
(2015). Because there was no diversion of any state revenues from public schools
to private schools through the operation of the FTCSP, Appellants’ theory of harm
and argument for special injury are insufficient to support standing.
Further, even assuming that Appellants’ diversion theory was legally
sufficient, Appellants’ allegations that the FTCSP has harmed them are conclusory
and speculative. Although it was bound to accept all material allegations within the
complaint as true when evaluating Appellants’ standing, Sun States Utilities, Inc. v.
Destin Water Users, Inc., 696 So. 2d 944, 945 n.1 (Fla. 1st DCA 1997), the trial
12
court was not required “to accept internally inconsistent factual claims, conclusory
allegations, unwarranted deductions, or mere legal conclusions made by a party,”
Shands Teaching Hospital and Clinics, Inc. v. Estate of Lawson ex rel. Lawson, 175
So. 3d 327, 331 (Fla. 1st DCA 2015) (en banc). Examining the allegations of injury
claimed by Appellants, the trial court properly determined that they were conclusory
and speculative. See Response Oncology, Inc. v. The Metrahealth Ins. Co., 978 F.
Supp. 1052, 1058 (S.D. Fla. 1997) (“Courts must liberally construe and accept as
true allegations of fact in the complaint and inferences reasonably deductible
therefrom, but need not accept factual claims that are internally inconsistent; facts
which run counter to facts of which the court can take judicial notice; conclusory
allegations; unwarranted deductions; or mere legal conclusions asserted by a
party.”).
Appellants argue that but for the tax credits offered in exchange for
contributions to SFOs, taxpayers would remit their full tax liability to the state, state
revenues would increase, and the Legislature would appropriate those revenues to
fund the public school system, in some manner that would benefit Appellants. This
argument is founded entirely on supposition. To reach such a conclusion, the trial
court would be required to anticipate whether the tax credit program positively or
negatively stimulates economic growth, and thus affects state revenue collection.1
1
“When a government expends resources or declines to impose a tax, its budget
13
Then, assuming tax revenues decrease as a result of the tax credits available under
the FTCSP, the court would have to predict whether the tax revenue that would have
been collected in the absence of the tax credit would have been allocated to the
budget for the public school system. The trial court would have to forecast whether
and how the Legislature would fund the education budget based on changes in public
school enrollment. Finally, the court would have to foretell how fluctuations in the
state’s overall budget would affect the budget for the public school system. The
cloudy crystal ball the trial court would be required to gaze into in order to identify
a particularized harm to Appellants underscores the speculative nature of their
arguments for standing.
The United States Supreme Court considered a similar theory of harm alleged
by a group of taxpayers challenging Arizona’s tax credit scholarship program.
Winn, 563 U.S. at 126. The Arizona program operates very much like the FTSCP
– offering tax credits in exchange for contributions to organizations that fund
scholarships to students attending private schools. The Arizona taxpayers argued
that the program was unconstitutional and advanced a similar theory of injury to the
one asserted in this case – that the tax credit program unconstitutionally diverted
does not necessarily suffer. On the contrary, the purpose of many governmental
expenditures and tax benefits is ‘to spur economic activity, which in turn increases
government revenues.’” Arizona Christian Sch. Tuition Org. v. Winn, 563 U.S. 125,
136 (2011) (quoting Cuno, 547 U.S. at 344)).
14
public funds from the Arizona public school system to private schools, resulting in
harm to the plaintiffs. Id. at 129-30. The Supreme Court rejected the Arizona
taxpayers’ allegations that the scholarship program caused them harm:
Even assuming the STO tax credit has an adverse effect on
Arizona’s annual budget, problems would remain. To conclude there
is a particular injury in fact would require speculation that Arizona
lawmakers react to revenue shortfalls by increasing respondents’ tax
liability. A finding of causation would depend on the additional
determination that any tax increase would be traceable to the STO tax
credits, as distinct from other governmental expenditures or other tax
benefits. Respondents have not established that an injunction against
application of the STO tax credit would prompt Arizona legislators to
“pass along the supposed increased revenue in the form of tax
reductions.” Those matters, too, are conjectural.
Each of the inferential steps to show causation and redressability
depends on premises as to which there remains considerable doubt. The
taxpayers have not shown that any interest they have in protecting the
State Treasury would be advanced. Even were they to show some
closer link, that interest is still of a general character, not particular to
certain persons. Nor have the taxpayers shown that higher taxes will
result from the tuition credit scheme. The rule against taxpayer
standing, a rule designed both to avoid speculation and to insist on
particular injury, applies to respondents’ lawsuit.
Id. at 137-38 (internal citations omitted). This same logic applies to Appellants’
allegations of harm here. Their alleged injury is simply too abstract to support
standing.
Despite the speculative nature of the harm they allege, Appellants argue that
two decisions of the Florida Supreme Court support their argument for standing.
Appellants first rely on the decision in Coalition for Adequacy and Fairness in
15
School Funding, Inc. v. Chiles, 680 So. 2d 400 (Fla. 1996). In Chiles, the supreme
court held that public school students and their parents had standing to challenge the
denial of an adequate education under article IX, section 1 of the Florida Constitution
where the plaintiffs alleged concrete harm to particular students and to the school
system. Id. at 403 n.4. The complaint in that case contained very specific allegations
of harm, including that certain students were not receiving adequate special
programs and that capital outlays were insufficiently funded. Thus, the Chiles case
is readily distinguishable from this case, and it exposes the infirmities in Appellants’
complaint.
Appellants also rely on the Florida Supreme Court’s decision in Holmes II.
Their reliance on this case is equally misplaced. There, the court held that the OSP
undermined the quality of the public school system by appropriating state funds to
private schools. Holmes II, 919 So. 2d at 405. Although the court did not address
standing in that case, the court found the diversion of appropriated education funds
from the public school system to private schools to be a tangible, concrete harm. Id.
at 408. Appellants assert no such concrete harm or particularized injury in this case.
While the FTCSP has been fine-tuned since its creation in 2001, the essential
function of the program – using voluntary private contributions to fund scholarships
for eligible students – has remained unchanged. See Ch. 2001-225, Laws of Fla.;
ch. 2016-140, Laws of Fla. Thus, there has been ample opportunity in the ensuing
16
fifteen years since the creation of the FTCSP for any decrease in funding to the
public school system to manifest. And yet despite arguing that public funds have
been diverted from the public school system, Appellants make no argument
whatsoever that public school funding has actually declined. Because Appellants’
allegations of harm are legally insufficient, entirely speculative, and express no
particularized injury to Appellants, they lack standing to bring suit on grounds of
special injury.
C. The Horne Exception to the Special Injury Rule
Alternatively, Appellants insist that they have standing to challenge the
constitutionality of the FTCSP as taxpayers under the exception to the special injury
rule adopted in Horne. In Horne, the Florida Supreme Court recognized a limited
exception to the special injury rule in cases where a taxpayer challenges a legislative
exercise of the taxing and spending power in contravention of specific constitutional
provisions. 269 So. 2d at 663. Horne followed a United States Supreme Court case,
Flast v. Cohen, 392 U.S. 83 (1968), which established a narrow exception for
standing in federal taxpayer suits.
In Flast, a group of federal taxpayers challenged the appropriation of federal
funds to “finance instruction in reading, arithmetic, and other subjects in religious
schools, and to purchase textbooks and other instructional materials for use in such
schools.” 392 U.S. at 85-86. The taxpayers argued that Congress exceeded its
17
authority in appropriating funds in violation of the Establishment and Free Exercise
Clauses of the First Amendment of the United States Constitution. Id. at 86. The
Supreme Court determined that the taxpayers in that case had standing, explaining
the narrow circumstances in which a taxpayer may challenge congressional action:
[W]e hold that a taxpayer will have standing consistent with Article III
to invoke federal judicial power when he alleges that congressional
action under the taxing and spending clause is in derogation of those
constitutional provisions which operate to restrict the exercise of the
taxing and spending power. The taxpayer’s allegation in such cases
would be that his tax money is being extracted and spent in violation of
specific constitutional protections against such abuses of legislative
power. Such an injury is appropriate for judicial redress, and the
taxpayer has established the necessary nexus between his status and the
nature of the allegedly unconstitutional action to support his claim of
standing to secure judicial review. Under such circumstances, we feel
confident that the questions will be framed with the necessary
specificity, that the issues will be contested with the necessary
adverseness and that the litigation will be pursued with the necessary
vigor to assure that the constitutional challenge will be made in a form
traditionally thought to be capable of judicial resolution. We lack that
confidence in cases such as Frothingham where a taxpayer seeks to
employ a federal court as a forum in which to air his generalized
grievances about the conduct of government or the allocation of power
in the Federal System.
Id. at 105-06. Thus, the exception to the general rule against taxpayer standing
established in Flast requires a taxpayer to allege more than just that a legislative act
is unconstitutional. Id. at 102-03. Rather, a taxpayer must allege that a legislative
act violates a specific constitutional limitation on the Legislature’s taxing and
spending power.
18
In Horne, the Florida Supreme Court similarly allowed a narrow exception to
the special injury rule it established in Rickman and held that a taxpayer has standing
to sue where the taxpayer can show that a government taxing measure or expenditure
violates a specific constitutional limitation on the Legislature’s taxing and spending
power. Smith, 944 So. 2d at 1094; Scharps, 855 So. 2d at 198. Subsequently, Florida
courts have found standing in a number of cases involving taxpayer challenges to
constitutional limits on the Legislature’s spending authority. See, e.g., Holmes II,
919 So. 2d at 406 (determining that article IX, section 1(a) was a restriction on the
Legislature’s spending power by “provid[ing] both a mandate to provide for
children’s education and a restriction on the execution of that mandate”); McNeil,
44 So. 3d at 122 (Fla. 1st DCA 2010) (holding that taxpayers had standing under the
no-aid provision to challenge the constitutionality of statutes that authorized the state
to direct appropriations to sectarian institutions). Courts have also found standing
under the Horne exception where taxpayers identified a constitutional limit on the
Legislature’s taxing authority. See, e.g., Charlotte Cty. Bd. of City Comm’rs v.
Taylor, 650 So. 2d 146, 148 (Fla. 2d DCA 1995) (determining that a taxpayer had
standing to bring a constitutional challenge to a county tax exemption that was
inconsistent with general laws which required county commissioners, not electors,
to establish a budget and levy ad valorem taxes); Paul, 376 So. 2d at 257 (holding
that a taxpayer had standing to challenge the county’s authority to issue ad valorem
19
tax exemptions that violated specific limitations imposed by the Florida
Constitution).
Thus, in order to establish standing under the Horne exception to the special
injury rule, Appellants were required to identify both (1) a specific exercise of the
Legislature’s taxing and spending authority, and (2) a specific constitutional
limitation upon the exercise of that authority. Appellants failed to establish taxpayer
standing for two reasons. First, while both article I, section 3 and article IX, section
1(a) of Florida’s Constitution either expressly or implicitly limit the Legislature’s
spending authority, Appellants failed to identify any portion of the FTCSP that
exceeds the Legislature’s spending authority under either constitutional provision.
Second, neither provision limits the Legislature’s taxing authority.
D. Appellants Lack Taxpayer Standing Pursuant to article I, section 3
Appellants allege that the Legislature exceeded both its taxing and spending
authority in violation of article I, section 3 (Florida’s so-called “Blaine
Amendment”), which is also known as the no-aid provision. 2 Appellants assert that
the no-aid provision limits the authority of the Legislature to grant tax credits and to
2
Blaine Amendments, which prohibit the use of public funds to support religious
schools, were widely enacted in response to political disputes over whether churches
or sectarian organizations should receive public assistance. Holmes I, 886 So. 2d at
348-50. Approximately thirty states have “Blaine Amendments.” Mark Edward
DeForrest, An Overview and Evaluation of State Blaine Amendments: Origins,
Scope, and First Amendment Concerns, 26 Harv. J.L. & Pub. Pol’y 551, 576 (2003).
20
authorize the funding of scholarships through voluntary contributions to SFOs under
the FTCSP. We disagree. The plain language of the no-aid provision imposes no
limitation on the Legislature’s taxing authority. And although the no-aid provision
expressly limits the Legislature’s spending authority by prohibiting the
appropriation of state revenues to aid any sectarian institution, Appellants identify
no such appropriation connected with the FTCSP.
Any interpretation of a constitutional provision must begin with an
examination of the provision’s plain language. Brinkman v. Francois, 184 So. 3d
504, 510 (Fla. 2016). “If that language is clear, unambiguous, and addresses the
matter in issue, then it must be enforced as written.” Id. (quoting Fla. Soc’y of
Ophthalmology v. Fla. Optometric Ass’n, 489 So. 2d 1118, 1119 (Fla. 1986)).
Article I, section 3 of the Florida Constitution provides:
There shall be no law respecting the establishment of religion or
prohibiting or penalizing the free exercise thereof. Religious freedom
shall not justify practices inconsistent with public morals, peace or
safety. No revenue of the state or any political subdivision or agency
thereof shall ever be taken from the public treasury directly or
indirectly in aid of any church, sect, or religious denomination or in
aid of any sectarian institution.
(emphasis added). The express language of Florida’s no-aid provision contains no
limit on the Legislature’s taxing authority, including the Legislature’s power to enact
laws creating tax credits or exemptions; rather, this provision “focuses on the use of
state funds to aid sectarian institutions, not other kinds of support.” Holmes I, 886
21
So. 2d at 352.
Further, the plain language of the no-aid provision restricts only the
Legislature’s authority to appropriate state revenues from the public treasury. In
construing this provision, our Court recognized that the grant of a tax exemption to
a sectarian institution is not prohibited by the no-aid provision because it does not
involve a disbursement from the public treasury. Id. at 356-57. Thus, in order for a
taxpayer to have standing to challenge legislative action under the no aid provision,
“the challenge must be to legislative appropriations.” McNeil, 44 So. 3d at 121; see
also Philip J. Padovano, Florida Civil Practice § 4.3 n.9 (2015-2016 ed.) (“The rule
is often applied to challenges to appropriations acts, but it can also be used to
challenge other kinds of statutes, provided they authorize the expenditure of public
funds. But as the court explained in Flast, the expenditure must be for a specific
purpose that is related to the alleged constitutional violation and not merely
incidental to the regulatory scheme adopted by the statute.”). But Appellants
identify no legislative appropriation here.
Indeed, the legislative actions challenged in this case, the authorization of tax
credits under the FTCSP and the payment of private funds to private schools via
scholarships authorized under the FTCSP, involve no appropriation from the public
treasury. The program is funded through voluntary, private donations by individual
and corporate taxpayers. §§ 1002.395(1)(b)1.; 1002.395(2)(e), Fla. Stat. (2015).
22
Despite the lack of any appropriation by the Legislature in funding the FTCSP,
Appellants urge this Court to hold that the use of tax credits to fund the program
amounts to an indirect appropriation of revenue from the public treasury in violation
of the no-aid provision. Appellants assert that any distinction between tax credits
and revenues is constitutionally immaterial because the funds credited to taxpayers
could have been collected and transferred to the state treasury. In advancing this
novel construction of the no-aid provision, Appellants ignore the substantial
difference between tax credits and state revenues. In Holmes I, we explained that,
“[i]n the case of direct subsidy, the state forcibly diverts the income of both believers
and nonbelievers to churches. In the case of an exemption, the state merely refrains
from diverting to its own uses income independently generated by the churches
through voluntary contributions.” Id. (quoting Donald A. Giannella, Religious
Liberty, Nonestablishment, and Doctrinal Development, 81 Harv. L. Rev. 513, 553
(1968)). In so holding, our Court relied on the following reasoning advanced by
Justice Brennan:
Tax exemptions and general subsidies, however, are qualitatively
different [than the payment of state funds]. Though both provide
economic assistance, they do so in fundamentally different ways. A
subsidy involves the direct transfer of public monies to the subsidized
enterprise and uses resources exacted from taxpayers as a whole. An
exemption, on the other hand, involves no such transfer. It assists the
exempted enterprise only passively, by relieving a privately funded
venture of the burden of paying taxes. In other words, in the case of
direct subsidy, the state forcibly diverts the income of both believers
and nonbelievers to churches, while in the case of an exemption, the
23
state merely refrains from diverting to its own uses income
independently generated by the churches through voluntary
contributions. Thus, the symbolism of tax exemption is significant as a
manifestation that organized religion is not expected to support the
state; by the same token the state is not expected to support the church.
Id. at 356-57 (quoting Walz v. Tax Comm’n of City of New York, 397 U.S. 664,
690-91 (1970) (Brennan, J., concurring)).
The United States Supreme Court made precisely the same distinction
between revenues and tax credits (as opposed to tax exemptions) when it considered
the constitutionality of the tax credits offered under the Arizona scholarship program
in Winn. 563 U.S. at 141-42. The Supreme Court observed that the expenditure of
state revenues on religiously affiliated activities made it known to a dissenter that
her tax dollars were spent in violation of her conscience. Id. However, when the
government declined to impose a tax, there was no connection between the
dissenting taxpayer and a religiously affiliated activity. Id. at 142. The Supreme
Court also rejected the argument that taxpayers who benefited from tax credits were
in effect paying their state income tax to scholarship organizations. Id. at 143.
“Respondents’ contrary position assumes that income should be treated as if it were
government property even if it has not come into the tax collector’s hands. That
premise finds no basis in standing jurisprudence.” Id.; accord Kotterman v. Killian,
972 P.2d 606, 618 (Ariz. 1999) (en banc) (“[N]o money ever enters the state’s
control as a result of this tax credit. Nothing is deposited in the state treasury or
24
other accounts under the management or possession of governmental agencies or
public officials. Thus, under any common understanding of the words, we are not
here dealing with ‘public money.’”); Manzara v. State, 343 S.W.3d 656, 664 (Mo.
2011) (en banc) (finding no taxpayer standing because “tax credits are not
government expenditures”). Tax credits offered under the FTCSP involve no public
funds. And Appellants failed to identify any portion of the FTCSP authorizing
legislative appropriations or any other exercise of the Legislature’s spending
authority. See Winn, 563 U.S. at 142 (holding that when taxpayers choose to
contribute to scholarship organizations, they are expending their own funds, not
revenue collected by the state). For this reason, we affirm the trial court’s ruling that
Appellants failed to demonstrate taxpayer standing under article I, section 3.
E. Appellants Lack Taxpayer Standing Pursuant to article IX, section 1(a)
Appellants also argue that in authorizing the FTCSP, the Legislature exceeded
its taxing and spending authority under article IX, section 1(a) of the Florida
Constitution. Appellants’ argument is set forth in the following two paragraphs of
their complaint:
60. Like the OSP, the Scholarship Program is unconstitutional because
through it the State has established a governmental program providing
for private-school vouchers, funded by redirecting taxpayer funds, that
educates Florida children in a manner other than through the system of
free public schools mandated by Article IX, § 1.
61. In addition, the Scholarship Program is – as was the case with the
OSP – unconstitutional because it funds the education of Florida
25
children in a system of schools that is not “uniform,” as required by
Article IX, § 1.
These allegations fail to show that the Legislature exceeded any limit on its taxing
and spending authority.
In order to establish standing under Horne, Appellants were required not only
to identify a specific exercise of the Legislature’s taxing and spending authority, but
also a specific constitutional limitation on that authority. Article IX, section 1(a)
provides:
The education of children is a fundamental value of the people of the
State of Florida. It is, therefore, a paramount duty of the state to make
adequate provision for the education of all children residing within its
borders. Adequate provision shall be made by law for a uniform,
efficient, safe, secure, and high quality system of free public schools
that allows students to obtain a high quality education and for the
establishment, maintenance, and operation of institutions of higher
learning and other public education programs that the needs of the
people may require.
The plain language of article IX, section 1(a) does not contain any express or implied
limitation on the Legislature’s taxing authority. But see, art. VII, § 3(c)-(d), Fla.
Const. (imposing restrictions on the authority of counties and municipalities to levy
certain taxes); art. VII, § 9, Fla. Const. (imposing restrictions on certain entities’
abilities to levy ad valorem taxes); art. VIII, §1(h), Fla. Const. (imposing a limit on
the authority of municipalities to impose a tax on property for services rendered by
the county exclusively for the benefit of the property or residents in unincorporated
areas). Because article IX, section 1(a) does not limit the Legislature’s taxing power,
26
Appellants may only raise a constitutional challenge under that provision by
showing that the Legislature exceeded its spending authority.
On two occasions, the Florida Supreme Court has recognized that article IX,
section 1(a) limits the Legislature’s spending authority. In Chiles, the supreme court
construed this provision to require the Legislature to appropriate sufficient public
revenue to adequately fund Florida’s public school system. 680 So. 2d at 405-06.
In Holmes II, the supreme court construed this provision to restrict the Legislature’s
authority to use public revenues to fund private schools. 919 So. 2d at 408.
Although neither decision discussed standing in any significant detail, the court’s
holdings in those cases expose the flaws in Appellants’ arguments for standing here.
First, in Chiles, the plaintiffs alleged that the Legislature violated article IX,
section 1 by failing to allocate adequate resources to public schools. 680 So. 2d at
402. There, the plaintiffs alleged:
(1) Certain students are not receiving adequate programs to permit them
to gain proficiency in the English language; (2) Economically deprived
students are not receiving adequate education for their greater
educational needs; (3) Gifted, disabled, and mentally handicapped
children are not receiving adequate special programs; (4) Students in
property-poor counties are not receiving an adequate education; (5)
Education capital outlay needs are not adequately provided for; and (6)
School districts are unable to perform their constitutional duties
because of the legislative imposition of noneducational and quasi-
educational burdens.
Id. These allegations by the Chiles plaintiffs enumerated a number of specific harms
to the public school system, including inadequate special programs for specific
27
groups of students and insufficient funding of capital outlays. Here, unlike the
Chiles plaintiffs, Appellants do not allege that the Legislature failed to adequately
fund Florida’s public school system. They do not allege that the authorization of the
FTCSP resulted in the deprivation of access to special programs, the inability to meet
capital outlay needs, nor any other specific harm held by the Chiles court to violate
article IX, section 1(a). Thus, a comparison to Chiles reveals the deficiencies in
Appellants’ complaint.
Second, in Holmes II, the supreme court held that “[article IX, section 1(a)]
mandates that the state’s obligation is to provide for the education of Florida’s
children, specifies that the manner of fulfilling this obligation is by providing a
uniform, high quality system of free public education, and does not authorize
equivalent alternatives.” Holmes II, 919 So. 2d at 408. In holding the OSP
unconstitutional, the supreme court identified a number of ways the Legislature
violated article IX, section 1(a) by exceeding its spending authority. Id. The court
concluded that the Legislature authorized some students “to receive a publicly
funded education through an alternative system of private schools that [were] not
subject to the uniformity requirements of the public school system,” id. at 412,
“divert[ed] public dollars into separate private systems,” id. at 398, and
“transfer[red] tax money earmarked for public education to private schools” id. at
408. The court focused on the Legislature’s appropriation of public funds:
28
Our decision does not deny parents recourse to either public or private
school alternatives to a failing school. Only when the private school
option depends upon public funding is choice limited. This limit is
necessitated by the constitutional mandate in article IX, section 1(a),
which sets out the state’s responsibilities in a manner that does not
allow the use of state monies to fund a private school education.
Id. at 412-13. Thus, the supreme court’s analysis of whether the Legislature
exceeded its spending authority under article IX, section 1(a) was limited to
determining if the Legislature appropriated public funds for use in private schools.
Here, Appellants failed to allege that the Legislature appropriated any public
funds to private schools. Appellants failed to allege any inadequacy in the funding
of the state’s system of education. Because of these failures, Appellants have
insufficiently alleged that the Legislature exceeded its spending authority under
article IX, section 1(a). Accordingly, we affirm the trial court’s finding that
Appellants failed to establish taxpayer standing under this provision.
IV. Conclusion
Appellants failed to allege that they suffered any special injury as a result of
the operation of the Florida Tax Credit Scholarship Program and failed to establish
that the Legislature exceeded any constitutional limitation on its taxing and spending
authority when it authorized the program. At most, Appellants quarrel with the
Legislature’s policy judgments regarding school choice and funding of Florida’s
public schools. This is precisely the type of dispute into which the courts must
decline to intervene under the separation of powers doctrine. Markham, 396 So. 2d
29
at 1122. Appellants’ remedy is at the polls. Paul, 376 So. 2d at 259.
We conclude that the trial court properly found that Appellants lack standing
to attack the constitutionality of the Florida Tax Credit Scholarship Program. We
thus AFFIRM the trial court’s order dismissing the complaint.
MAKAR and BILBREY, JJ., CONCUR.
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