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Judges continue to grapple with prison privatization

A last-minute change to the state budget last year that would have privatized 29 South Florida prisons continued its march through the courts Wednesday, with judges grappling with how to proceed as the end of the fiscal year looms.

The three-judge panel in the 1st District Court of Appeal may help resolve a year-long dispute over whether top legislators can slip in sweeping budget changes without vetting them through the committee process, and if so, what the limitations are.

“This is a gross misuse of proviso power,” argued M. Stephen Turner, attorney for the Florida Police Benevolent Association, which challenged the privatization plan, winning in lower courts.

Leon County Circuit Judge Jackie Fulford blocked the state last year from shifting 4,000 public correctional officers to private companies, and the upcoming end to the budget year on June 30 means it’s too late to enact the effort. 

Fulford said the Legislature should have passed a stand-alone law rather than use fine print to achieve its aims.

Going forward, judges Nikki Ann Clark, Ronald Swanson and Chief Judge Robert Benton seemed hesitant to issue a decision on a what they called a “moot case.”

But attorneys argued that the ruling could shape future behavior of top lawmakers who determine the budget, allowing  them free reign or warning them against going too far.

In this case, the Legislature’s action was particularly “heinous,” Turner argued, because Gov. Rick Scott couldn’t impose a veto, even if he’d wanted to.

“How in the world could the governor exercise his veto power?,” Turner said. “He would have had to veto the entire (Department of Corrections) budget.”

Scott has publicly supported moving prisons to private companies, including this session’s failed effort to pass 27 prisons and work camps in 18 counties to private hands.

Assistant Attorney General Jonathan Glogau asked the judges to overturn Fulford's ruling and uphold the Legislature’s ability to determine its own proviso language.

Judges may not issue a ruling at all if they decide Attorney General Pam Bondi didn’t have the right to appeal the case after the Department of Corrections declined to do so. The attorney general's office could have asked the circuit court for permission to appeal, but did not.

“The attorney general has the broad power to appear for this case if there’s a public interest,” Glogau argued.

Turner replied, “In this case, the attorney general is not protecting the public, she’s protecting the Legislature.”

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