Bush v. HolmesBush v. Holmes
This is a consolidated appeal from a final judgment declaring
I. BACKGROUND
The FEA filed a motion to consolidate the two cases and the trial court granted this motion. A group of parents and guardians of students receiving opportunity scholarships (“the parents“), moved to intervene in both cases, and the trial court also granted these motions. The parents thereafter moved to dismiss the
The trial court held a case management conference on December 2, 1999. The court explained that the purpose of the conference was for the parties to identify “the issues that would require the presentation of evidence to resolve those issues and those issues that dealt with the challenge of the constitutionality of the statute on its face.” After hearing arguments from the parties, the court deferred consideration of whether the statute was unconstitutional under the religion clauses in the Florida and U.S. constitutions. The court did decide, however, that it could consider the argument that
On December 30, 1999, the plaintiffs filed separate briefs and attachments. On January 28, 2000, the State defendants filed Objections to Final Hearing Procedure or, in the Alternative, Motion to Strike Plaintiffs’ Briefs. The State defendants argued for the first time that the trial court‘s summary resolution of the facial constitutionality of the statute “is on the brink of an abyss.” The State defendants also argued that the plaintiffs “present myriad factual arguments masked as legal arguments.”
On February 4, 2000, the plaintiffs filed responses challenging the timeliness of the defendants’ objections, and on February 7, 2000, the trial court conducted a hearing on the objections. The court stated that “[t]his is the final hearing on the facial constitutionality of this statute” and ruled that it was “exercising its inherent power to limit the issues that are going to be tried, and these issues are going to be strictly matters of law.” The trial court denied the State‘s motion to strike the initial briefs and confirmed the final hearing date of February 24, 2000. On February 17, the court rendered an order in accordance with these rulings and denying defendants’ objections to the final hearing procedure.
On February 24, the court heard oral argument from the parties and amici curiae. On March 14, 2000, the trial court entered a final judgment holding that “[s]ection 229.0537, Fla. Stat., insofar as it establishes a program through which the State pays tuition for certain students to attend private schools, is declared to be unconstitutional on its face under
The State defendants filed a timely notice of appeal, assigned case number 1D00-1121 in this court. The parents filed a separate notice of appeal, assigned case number 1D00-1150. This court granted appellees’ motion to consolidate the cases.
Appellants raise essentially two points in this consolidated appeal. First, appellants assert that the trial court denied them due process and a fair trial by ignoring the Florida Rules of Civil Procedure and entering final judgment without trial or evidence, upon disputed facts, and without a motion for summary judgment or judgment on the pleadings. Second, appellants assert that the trial court erred in holding the OSP facially unconstitutional under
II. WHETHER THE PROCEDURE EMPLOYED BY THE TRIAL COURT WARRANTS REVERSAL
Regarding the first point, the trial court did err in the procedure it employed because nothing in the Florida Rules of Civil Procedure authorizes this procedure. We find this constituted harmless error, however, because the parties had adequate notice, time to respond, and an opportunity to be heard, and appellants have not demonstrated any prejudice much less “a miscarriage of justice.” See
III. WHETHER THE OSP IS FACIALLY UNCONSTITUTIONAL UNDER ARTICLE IX, SECTION I OF THE FLORIDA CONSTITUTION
As a substantive matter, appellants argue that the trial court erred in finding the OSP facially unconstitutional under
A.
In striking the OSP as facially unconstitutional, the trial court stated:
By providing state funds for some students to obtain a K-12 education through private schools, as an alternative to the high quality education available through the system of free public schools, the legislature has violated the mandate of the Florida Constitution, adopted by the electorate of this state. Tax dollars may not be used to send the children of this state to private schools as provided by the Opportunity Scholarship Program.
Recognizing that nothing in the constitution directly limits the authority of the Legislature to establish the OSP, the trial court nonetheless concluded, “[T]he negative implication is evident.”
The Florida Constitution is a limitation upon, rather than a grant of, power. See Board of Public Instruction for County of Sumter v. Wright, 76 So.2d 863, 864 (Fla.1955) (“This court has consistently adhered to the fundamental principle that our state constitution is a limitation upon, rather than a grant of, power.“); Taylor v. Dorsey, 155 Fla. 305, 19 So.2d 876, 881 (1944) (“`Our state constitution is a limitation upon power, and, unless legislation duly passed be clearly contrary to some express or implied prohibition contained therein, the courts have no authority to pronounce it invalid.‘“) (quoting Chapman v. Reddick, 41 Fla. 120, 25 So. 673, 677 (1899)). Although implied constitutional prohibitions are recognized, a reviewing court must not be overly anxious to strike an enactment that merely is not specifically provided for in the organic document. Indeed, “[w]hen a legislative enactment is challenged the court should be liberal in its interpretation; every doubt should be resolved in favor of the constitutionality of the law, and the law should not be held invalid unless clearly unconstitutional beyond a reasonable doubt.” Taylor, 19 So.2d at 882. Recognizing these principles, appellants argue that the trial court
This argument has merit. The principle of expressio unius est exclusio alterius is “[a] canon of construction holding that to express or include one thing implies the exclusion of the other, or of the alternative.” Black‘s Law Dictionary 602 (7th ed.1999). This principle should be used sparingly with respect to the constitution. See Taylor, 19 So.2d at 881 (explaining that the expressio unius maxim “should be sparingly used in construing the constitution“). As appellants explain, and appellees acknowledge, the trial court did not find that
In applying the expressio unius principle to this case, the trial court quoted a portion of the Florida Supreme Court‘s opinion in Weinberger v. Board of Public Instruction of St. Johns County:
The principle is well established that, where the Constitution expressly provides the manner of doing a thing, it impliedly forbids its being done in a substantially different manner. Even though the Constitution does not in terms prohibit the doing of a thing in another manner, the fact that it has prescribed the manner in which the thing shall be done is itself a prohibition against a different manner of doing it. Therefore, when the Constitution prescribes the manner of doing an act, the manner prescribed is exclusive, and it is beyond the power of the Legislature to enact a statute that would defeat the purpose of the constitutional provision.
93 Fla. 470, 112 So. 253, 256 (1927) (citations omitted). In Weinberger and the other cases relied upon by the trial court, however, the expressio unius principle found its way into the analysis only because the constitution forbade any action other than that specified in the constitution, and the action taken by the Legislature defeated the purpose of the constitutional provision. See id. at 254-56 (finding bonds proposed to be issued by Board of Public Instruction void ab initio because their maturity dates did not conform to
In contrast, in this case, nothing in
In passing
The purpose of this section is to provide enhanced opportunity for students in this state to gain the knowledge and skills necessary for postsecondary education, a technical education, or the world of work. The Legislature recognizes that the voters of the State of Florida, in the November 1998 general election, amended s. 1, Art. IX of the Florida Constitution so as to make education a paramount duty of the state. The Legislature finds that the State Constitution requires the state to provide the opportunity to obtain a high-quality education. The Legislature further finds 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 as provided in paragraph (6)(a). Eligibility of a private school shall include the control and accountability requirements that, coupled with the exercise of parental choice, are reasonably necessary to secure the educational public purpose, as delineated in subsection (4).
B.
We note that the Legislature has, in the past, established a program providing public funds for certain students to attend private schools. See Scavella v. School Bd. of Dade County, 363 So.2d 1095 (Fla. 1978). In Scavella the Florida Supreme Court indicated that “the state is responsible for providing adequate educational opportunities for all children” and “all Florida residents have the right to attend this public school system for free.” Id. at 1098. The court explained that “[r]ealizing that the public schools may not have the special facilities or instructional personnel to provide an adequate educational opportunity for the exceptional students, the legislature has allowed the school boards to make contractual arrangements with private schools.” Id.; see
Scavella involved a challenge to a statute that allowed school boards to cap the amount of money paid to a private school in these contractual arrangements. See Scavella, 363 So.2d at 1098;
Nevertheless, in Scavella, the supreme court upheld a legislative program authorizing the payment of private school tuition for students whose needs could not be met in the public schools and specified that, in implementing this program, students could not be deprived of “a right to a free education.” By analogy, the OSP statute does not deprive students of “a right to a free education” and requires participating private schools to “[a]ccept as full tuition and fees the amount provided by the state for each student.”
Based on the foregoing, we hold that the trial court erred in finding the OSP facially unconstitutional under
IV. OTHER CONSTITUTIONAL ISSUES
Appellees have asserted that, even if the trial court erred in its application of
Following the case management conference, the trial court determined that only the facial constitutionality of the OSP under
The rule followed by the Florida courts, as we interpret prior decisions, is that the question of the constitutionality of a statute is an issue of law, or of mixed fact and law, depending upon the nature of the statute brought into question and the scope of its threatened operation as against the party attacking the statute. While there are circumstances in which trial courts are permitted to adjudicate the merits of constitutional issues in ruling on a motion to dismiss, ... the circumstances of the particular case determine whether this is appropriate. The preferable rule, properly applied here, appears to be that if the complaint‘s well-pleaded allegations entitle the plaintiff to a declaration of rights, the motion to dismiss should be denied and the plaintiff allowed to adduce evidence in behalf of his pleading.
The wisdom of this rule is particularly evident in this case where we have been asked to rule for the first time on constitutional questions of considerable magnitude, without the benefit of any record except the various complaints and motions directed to the complaints, including appellees’ motion to dismiss, the granting of which sparked this appeal. It is a familiar canon of appellate review that appellate courts are loath to rule upon issues not directly ruled upon by the trial court. Courts prefer that the constitutionality of a statute be considered first by a trial court. This rule is relaxed if the constitutional issues are fully briefed and relate to matters of law exclusively, ... and the full record is before the court.
Glendale Fed. Sav. & Loan Ass‘n v. State, Dep‘t of Ins., 485 So.2d 1321, 1324-25 (Fla. 1st DCA 1986) (citations and footnote omitted). Accordingly, we decline to consider the alternative constitutional arguments asserted by appellees.
V. CONCLUSION
In sum, although we find the trial court erred regarding the procedure it employed in considering the facial constitutionality of the OSP under
REVERSED and REMANDED for further proceedings.
WEBSTER and VAN NORTWICK, JJ., CONCUR.
Notes
Public education.—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.
Religious freedom.—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.
State school fund.—The income derived from the state school fund shall, and the principal of the fund may, be appropriated, but only to the support and maintenance of free public schools.