ACADEMY FOR POSITIVE LEARNING, INC. v. SCHOOL BOARD OF PALM BEACH COUNTY, FLORIDA
CourtDistrict Court of Appeal of Florida
Date FiledFebruary 24, 2021
Docket4D19-2816
StatusPublished
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Full Opinion
DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
ACADEMY FOR POSITIVE LEARNING, INC., a Florida not-for-profit
corporation, PALM BEACH MARITIME MUSEUM, INC., a Florida not-
for-profit corporation, d/b/a PALM BEACH MARITIME ACADEMY,
MARLENY OLIVO, an individual, and PEDRO OLIVO, an individual,
Appellants,
v.
SCHOOL BOARD OF PALM BEACH COUNTY, FLORIDA and G-STAR
SCHOOL OF THE ARTS, INC., a Florida not-for-profit corporation,
Appellees.
No. 4D19-2816
[February 24, 2021]
“CORRECTED OPINION”
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Glenn D. Kelley, Judge; L.T. Case No. 50-2019-CA-000405-
XXXX-MB.
Shawn A. Arnold and Braxton A. Padgett of The Arnold Law Firm, LLC,
Jacksonville, for appellants.
Jon L. Mills of Boies Schiller Flexner LLP, Miami, and Stuart A. Singer
and Sabria A. McElroy of Boies Schiller Flexner LLP, Fort Lauderdale, for
appellee, School Board of Palm Beach County.
ON APPELLANTS’ MOTION FOR REHEARING EN BANC AND
CERTIFICATION OF QUESTION OF GREAT PUBLIC IMPORTANCE
PER CURIAM.
After this court’s 2-1 affirmance opinion issued April 22, 2020,
appellants challenged the majority opinion by filing a motion for rehearing
en banc and certification of question of great public importance under
Florida Rules of Appellate Procedure 9.330 and 9.331, based on the
following arguments, in pertinent part:
Statewide there are more than 194,000 charter school
students in nineteen other counties across all five appellate
districts of the state where a voter-approved school board
operating millage is in place. Fla. H.R. Appr. Comm/Ways &
Means Comm., HB 7123 (2019) Final Bill Analysis (May 28,
2019); Fla. Dept. of Educ., Fla. Charter School Enrollment
Share. This Court’s ruling will be precedent over matters in
the Fourth District affecting 72,750 charter school students
and parents (including over 21,000 in Palm Beach County)
and millions of public dollars per year. Id. While House Bill
7123 (2019) amended section 1011.71(9), Florida Statutes, to
codify the requirement that school boards share voted
operating millage revenues with charter schools going
forward, this legislative “fix” does not provide a remedy to
Appellants because they were approved by voters prior to July
1, 2019.
Additionally, there are two lawsuits currently pending in
the Eleventh Judicial Circuit of Florida related to a school
board operating millage approved by voters in Miami-Dade
County, from which charter schools have similarly been
excluded. City of Aventura v. Sch. Bd. of Miami-Dade Cnty.,
Case No. 2020-006112-CA-01 (Fla. 11th Cir. Ct. 2020);
Archimedean Academy, Inc. v. Sch. Bd. of Miami-Dade Cnty.,
Case No. 2019-030739-CA-01 (Fla. 11th Cir. Ct. 2019). Other
litigation is easy to foresee.
This decision will also likely have a major impact on future
charter school funding cases. The majority’s interpretation of
the opening sentence of section 1002.33(17), Florida Statutes,
erodes a guiding principle established by the Legislature that
charter school students be funded the same as their
counterparts attending district schools. . . .
Notably, the underfunded mandates of the School Safety
Act apply to all public schools, including both charter schools
and district schools alike. The exclusion of Palm Beach
County’s charter schools from the referendum has created a
substantial disparity in funding between public charter
schools and district schools. These charters now face a
substantial hurdle in hiring qualified teachers to enable them
to successfully compete with the other public schools in the
district. § 1002.33(2)(c), Fla. Stat. (2019) (“Charter schools
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may fulfill the following purposes: . . . Provide rigorous
competition within the public school district to stimulate
continual improvement in all public schools.”). Further, taxes
paid by parents for the safety of children should not favor the
safety of school district children over public charter school
children.
Given the far-reaching implications of the panel’s decision
on charter school students across the state, ongoing litigation
involving the very same issue, and the varied conclusions of
five reviewing judges in three separate suits, this case is
exceptionally important and should be considered by this
Court en banc under Fla. R. App. P. 9.331(d).
....
If this Court declines to rehear this case en banc, the
Appellants alternatively request that this Court certify the
following question as an issue of great public importance for
review by the Supreme Court of Florida pursuant to Florida
Rule of Appellate Procedure 9.330(a)(2)(C):
Are local school boards required under section
1002.33(17), Florida Statutes, to share with public
charter schools revenues generated from a voted
operating millage levied pursuant to section 1011.71(9),
Florida Statutes, which was approved by voters prior to
July 1, 2019?
For the reasons argued above, we grant appellants’ motion for rehearing
en banc, withdraw this court’s 2-1 affirmance opinion issued April 22,
2020, and substitute the following reversal opinion in its place. We also
grant appellants’ motion for certification of question of great public
importance, although we certify a different question than that which
appellants have requested, as shown at the end of the following opinion.
Opinion
During the November 2018 election, the School Board of Palm Beach
County, Florida placed a referendum on the ballot asking county voters to
approve an ad valorem levy for the operational needs of only non-charter
district schools. We conclude the 2018 referendum’s exclusion of charter
schools violated section 1002.33(17), Florida Statutes (2018), providing
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“[s]tudents enrolled in a charter school, regardless of the sponsorship,
shall be funded as if they are in a basic program or a special program, the
same as students enrolled in other public schools in the school district.”
(emphasis added).
Based on the foregoing, we reverse the circuit court’s final judgment
(and its incorporated “Orders on Pending Motions for Summary
Judgment”) and find that the 2018 referendum violated Florida law, as
explained below. We remand for the circuit court to enter an order denying
the school board’s motion for summary judgment and granting appellants’
motions for summary judgment, and to determine the proper remedy to
which appellants are entitled under their complaint.
The 2018 Referendum
The 2018 referendum appeared on the ballot as follows:
REFERENDUM TO APPROVE AD VALOREM LEVY FOR
SCHOOL SAFETY, TEACHERS AND OPERATIONAL
NEEDS
Shall the School Board of Palm Beach County have authority
to levy 1.00 mills of ad valorem millage dedicated for
operational needs of non-charter District schools to fund
school safety equipment, hire additional school police and
mental health professionals, fund arts, music, physical
education, career and choice program teachers, and improve
teacher pay beginning July 1, 2019 and automatically ending
June 30, 2023, with oversight by the independent committee
of citizens and experts?
______Yes
______No
Palm Beach County voters approved the 2018 referendum, which went
into effect on July 1, 2019.
The Underlying Litigation
After County voters approved the referendum, but before the
referendum went into effect, two Palm Beach County charter schools and
the parents of a student attending one of those charter schools
(collectively, “appellants”) filed a complaint for declaratory and injunctive
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relief against the school board. The complaint requested the circuit court
to: (1) enter a declaratory judgment requiring the school board to share
the 2018 referendum revenues with charter schools on a pro rata basis;
and (2) enjoin the school board from denying charter schools their
proportionate share of the 2018 referendum revenues. In the alternative,
the complaint requested the circuit court to declare the 2018 referendum
to be illegal and void. Appellants asserted the 2018 referendum’s
exclusion of charter schools violated section 1002.33(17), Florida Statutes
(2018), providing that “[s]tudents enrolled in a charter school, regardless
of the sponsorship, shall be funded as if they are in a basic program or a
special program, the same as students enrolled in other public schools in
the school district.” (emphasis added).
Appellants and the school board filed cross-motions for summary
judgment. The parties agreed no factual issues existed and the case
involved only statutory construction. However, despite having initially
pled an alternative request for relief asking the circuit court to declare the
2018 referendum to be illegal and void, appellants’ motion for summary
judgment primarily sought the entry of a declaratory judgment requiring
the school board to share the 2018 referendum revenues with charter
schools on a pro rata basis and enjoining the school board from denying
charter schools their proportionate share of the 2018 referendum
revenues. As the circuit court later observed, “Neither side wants to lose
the money, rather the parties simply disagree about who gets the money.”
Following a hearing, the circuit court issued an order granting the
school board’s motion for summary judgment and denying appellants’
motions. The circuit court found the 2018 referendum did not violate
Florida law. The circuit court later entered a final judgment in the school
board’s favor, prompting this appeal.
We conclude the 2018 referendum’s exclusion of charter schools
violated Florida law, as explained below.
A. Interpreting sections 1002.33(17) and 1011.71(9) in harmony
according to plain meaning favors the charter schools’ position.
The method by which students enrolled in charter schools are funded,
and the sources from which such funding is derived, are provided in
Section 1002.33(17), Florida Statutes (2018), titled “Charter schools.”
That section provides, in pertinent part:
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(17) Funding. -- Students enrolled in a charter school,
regardless of the sponsorship, shall be funded as if they
are in a basic program or a special program, the same as
students enrolled in other public schools in the school
district. . . .
....
(b) The basis for the agreement for funding students
enrolled in a charter school shall be the sum of the school
district’s operating funds from the Florida Education Finance
Program as provided in s. 1011.62 and the General
Appropriations Act, including gross state and local funds,
discretionary lottery funds, and funds from the school
district’s current operating discretionary millage levy;
divided by total funded weighted full-time equivalent students
in the school district; multiplied by the weighted full-time
equivalent students for the charter school. . . .
§ 1002.33(17)(b), Fla. Stat. (2018) (emphasis added).
Section 1011.71, Florida Statutes (2018), titled “District school tax,”
describes the sources from which “funds from the school district’s
operating discretionary millage levy” may be generated. That section
provides, in pertinent part:
(1) . . . [E]ach district school board desiring to participate in
the state allocation of funds for current operation as
prescribed by s. 1011.62(19) shall levy . . . a millage rate not
to exceed the amount certified by the commissioner as the
minimum millage rate necessary to provide the district
required local effort for the current year, pursuant to s.
1011.62(4)(a)1. In addition to the required local effort
millage levy, each district school board may levy a
nonvoted current operating discretionary millage. The
Legislature shall prescribe annually in the appropriations act
the maximum amount of millage a district may levy.
....
(9) In addition to the maximum millage levied under this
section and the General Appropriations Act, a school district
may levy, by local referendum or in a general election,
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additional millage for school operational purposes up to
an amount that, when combined with nonvoted millage
levied under this section, does not exceed the 10-mill
limit established in s. 9(b), Art. VII of the State Constitution.
. . . Funds generated by such additional millage . . . must not
be incorporated in the calculation of any hold-harmless or
other component of the Florida Education Finance Program
formula in any year. . . .
§ 1011.71(1), (9), Fla. Stat. (2018) (emphasis added).
Both sections 1011.71(1) and (9) use the words “may levy” to describe
how a school district may increase its operating millage above the required
operating millage also described in section 1011.71(1). That is, a school
board “may levy” an increased operating millage by its own vote under
section 1011.71(1), or a school board “may levy” an increased operating
millage by voting to place an increased operating millage on the ballot and
obtaining voter approval under section 1011.71(9). The consistent use of
the words “may levy” makes both increased operating millages
discretionary. See Fla. Bar v. Trazenfeld, 833 So. 2d 734, 738 (Fla. 2002)
(“The word ‘may’ when given its ordinary meaning denotes a permissive
term rather than the mandatory connotation of the word ‘shall.’”).
Because the increased operating millages permitted by sections
1011.71(1) and (9) are both discretionary, and because a school district’s
“current operating discretionary millage levy” is to be included in the
method of funding students enrolled in a charter school under section
1002.33(17)(b), the 2018 referendum’s exclusion of charter schools
violated section 1002.33(17)’s requirement that “[s]tudents enrolled in a
charter school, regardless of the sponsorship, shall be funded as if they
are in a basic program or a special program, the same as students enrolled
in other public schools in the school district.” (emphasis added). See Bank
of N.Y. Mellon v. Glenville, 252 So. 3d 1120, 1127 (Fla. 2018) (“As with any
matter involving an issue of statutory interpretation, courts must first look
to the actual language of the statute and examine the statute’s plain
meaning.”) (citation and internal quotation marks omitted); Sch. Bd. of
Palm Beach Cnty. v. Survivors Charter Schs., Inc., 3 So. 3d 1220, 1234 (Fla.
2009) (“[W]e give full effect to all statutory provisions and construe related
statutory provisions in harmony with one another.”) (citation and internal
quotation marks omitted).
B. The school board’s arguments lack merit.
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1. The school board misinterprets sections 1002.33(17) and
1011.71(9) as providing two distinct funding mechanisms. The
sections are related and must be read in harmony.
The school board argues sections 1002.33(17) and 1011.71(9) provide
two distinct funding mechanisms and, therefore, section 1002.33(17) has
no application to the instant case. According to the school board,
“[g]eneral funding for charter schools under [section 1002.33(17)(b)]
includes a mandatory requirement that [Florida Education Finance
Program] funds be distributed to charter schools,” but section 1011.71(9)
explicitly states “additional millage for school operational purposes”
generated after a local referendum or general election “do not become part
of the calculation of the Florida Education Finance Program.”
The flaw in the school board’s reasoning is that charter schools’ general
funding under section 1002.33(17)(b) does not include only Florida
Education Finance Program components. Rather, section 1002.33(17)(b)’s
plain language provides charter schools’ funding is “the sum of” three
sources: (1) “the school district’s operating funds from the Florida
Education Finance Program as provided in s. 1011.62 and the General
Appropriations Act, including gross state and local funds,” (2)
“discretionary lottery funds,” and (3) “funds from the school district’s
current operating discretionary millage levy.” That sum is then “divided
by total funded weighted full-time equivalent students in the school
district; multiplied by the weighted full-time equivalent students for the
charter school.” Id.
The flaw in the school board’s reasoning arises from its misapplication
of the word “including” within section 1002.33(17)(b). According to the
school board, the word “including” modifies each funding component
which follows – “gross state and local funds, discretionary lottery funds,
and funds from the school district’s current operating discretionary
millage levy” – thus making each component a part of the Florida
Education Finance Program formula.
However, if each funding component following the word “including”
already was included in “the school district’s operating funds from the
Florida Education Finance Program as provided in s. 1011.62 and the
General Appropriations Act,” what else is the fund for students enrolled in
a charter school to be “the sum of”? The question cannot be answered,
because interpreting the word “including” as modifying each funding
component stated within section 1002.33(17)(b) improperly renders the
phrase “the sum of” as mere surplusage. See Sch. Bd. of Palm Beach Cnty.,
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3 So. 3d at 1233 (“Basic to our examination of statutes, and an important
aspect of our analysis here, is the elementary principle of statutory
construction that significance and effect must be given to every word,
phrase, sentence, and part of the statute if possible, and words in a statute
should not be construed as mere surplusage.”) (citation and internal
quotation marks omitted).
The only logical construction of section 1002.33(17)(b) is that the word
“including” modifies only its nearest reasonable referent, that is, “gross
state and local funds.” See Scherer v. Volusia Cnty. Dep’t of Corrs., 171
So. 3d 135, 138 (Fla. 1st DCA 2015) (“The [nearest-reasonable-referent]
canon holds simply that, whether coming before or after what is modified,
modifiers (adjectives, adverbs, prepositional phrases, restrictive clauses)
should be read as modifying the nearest noun, verb, or other sentence
element to which they can reasonably be said to pertain.”) (emphasis
added).
Thus, the proper construction of section 1002.33(17)(b) is that the basis
for the agreement for funding students enrolled in a charter school shall
be the sum of “the school district’s operating funds from the Florida
Education Finance Program as provided in s. 1011.62 and the General
Appropriations Act, including gross state and local funds,” “discretionary
lottery funds,” and “funds from the school district’s current operating
discretionary millage levy.”
As explained in Section A above, “funds from the school district’s
current operating discretionary millage levy” include increased operating
millages permitted by both sections 1011.71(1) and (9).
2. The school board overlooks section 1002.33(17)’s plain
meaning that charter school students shall be funded by the same
method as other public school students.
The school board correctly argues that section 1002.33(17) describes
the method of funding charter school students. However, the school board
then argues the method of funding charter school students is not the same
as the method for funding public school students, despite the plain
meaning of section 1002.33(17)’s first sentence – “Students enrolled in a
charter school, regardless of the sponsorship, shall be funded as if they
are in a basic program or a special program, the same as students enrolled
in other public schools in the school district.” (emphasis added).
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The school board seeks to justify its disregard of the plain meaning of
“the same as” by its own attempted application the nearest-reasonable-
referent canon. According to the school board:
Applying this principle to the sentence at issue, it is clear that
the modifier “the same as” must be read to modify the entire
nearest antecedent phrase – “shall be funded as if they are in
a basic program or a special program.” Appellants simply
ignore the words “as if they are in a basic program or a special
program” between “funded” and “the same as.” . . . It defies
logic to interpret “the same as” to modify only the first few
words in the antecedent clause but not the nearer, remaining
words. It would also render the words “shall be funded as if
they are in a basic program or a special program”
meaningless, contrary to basic principles of statutory
construction. It is an “elementary principle of statutory
construction that significance and effect must be given to
every word, phrase, sentence, and part of the statute if
possible, and words in a statute should not be construed as
mere surplusage.” Mendenhall v. State, 48 So. 3d 740, 749
(Fla. 2010).
(emphasis added).
The school board misapplies the nearest-reasonable-referent canon by
considering only the “nearest antecedent phrase.” (emphasis added). As
our sister court explained, the nearest-reasonable-referent canon may rely
on a modifier which “com[es] before or after what is modified.” See Scherer,
171 So. 3d at 138 (“The [nearest-reasonable-referent] canon holds simply
that, whether coming before or after what is modified, modifiers (adjectives,
adverbs, prepositional phrases, restrictive clauses) should be read as
modifying the nearest noun, verb, or other sentence element to which they
can reasonably be said to pertain.”) (emphasis added); see also Antonin
Scalia and Bryan A. Garner, Reading Law: The Interpretation of Legal Texts
152 (2012) ([T]he nearest-reasonable-reference canon “applies not just to
words that precede the modifier, but also to words that follow it.”)
(emphasis added).
Applying the nearest-reasonable-referent canon to section
1002.33(17)’s first sentence, the modifier “the same as” may apply to the
antecedent phrase “shall be funded as if they are in a basic program or a
special program,” or it may apply to the subsequent phrase “students
enrolled in other public schools in the school district.” The question is, to
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paraphrase our sister court, to which nearest sentence element can the
modifier “the same as” reasonably be said to pertain? The most reasonable
interpretation is that “the same as” modifies the subsequent phrase
“students enrolled in other public schools in the district,” because “the
same as” draws a direct comparison to the earlier phrase “[s]tudents
enrolled in a charter school.”
In reaching our opinion, we have not ignored the antecedent phrase “as
if they are in a basic program or a special program” within section
1002.33(17)’s first sentence. On the contrary, we conclude the antecedent
phrase “as if they are in a basic program or a special program” supports
appellants’ argument that charter school students are to be funded the
same as other public school students. That is because “basic program”
and “special program” are statutorily-defined terms which plainly apply to
both charter school students and public school students.
Section 1011.61(6), Florida Statutes (2018), defines “Basic programs”
as “includ[ing], but . . . not limited to, language arts, mathematics, art,
music, physical education, science, and social studies.”
Section 1003.01(10), Florida Statutes (2018), defines “Special program”
as synonymous with “Alternative measures for students with special
needs” and “mean[ing] measures designed to meet the special needs of a
student that cannot be met by regular school curricula.”
Section 1003.01(3)(a), Florida Statutes (2018), which defines
“Exceptional student,” elucidates what types of “special programs” exist:
“Exceptional student” means any student who has been
determined eligible for a special program in accordance with
rules of the State Board of Education. The term includes
students who are gifted and students with disabilities who
have an intellectual disability; autism spectrum disorder; a
speech impairment; a language impairment; an orthopedic
impairment; an other health impairment; traumatic brain
injury; a visual impairment; an emotional or behavioral
disability; or a specific learning disability, including, but not
limited to, dyslexia, dyscalculia, or developmental aphasia;
students who are deaf or hard of hearing or dual sensory
impaired; students who are hospitalized or homebound;
children with developmental delays ages birth through 5
years, or children, ages birth through 2 years, with
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established conditions that are identified in State Board of
Education rules pursuant to s. 1003.21(1)(e).
(emphasis added).
Based on the foregoing, we agree with appellants’ argument that, under
section 1002.33(17)’s plain meaning, “Students enrolled in a charter
school, regardless of the sponsorship, shall be funded as if they are in a
basic program or a special program, the same as students enrolled in
other public schools in the school district.” (emphasis added).
3. Contrary to both sides’ arguments, the Legislature’s 2019
amendment of section 1011.71(9) should not affect our
interpretation of the 2018 version of section 1011.71(9).
In 2019, the Legislature amended section 1011.71(9) to add the
following language shown in bold:
(9) In addition to the maximum millage levied under this
section and the General Appropriations Act, a school district
may levy, by local referendum or in a general election,
additional millage for school operational purposes up to an
amount that, when combined with nonvoted millage levied
under this section, does not exceed the 10-mill limit
established in s. 9(b), Art. VII of the State Constitution. Any
such levy shall be for a maximum of 4 years and shall be
counted as part of the 10-mill limit established in s. 9(b), Art.
VII of the State Constitution. For the purpose of distributing
taxes collected pursuant to this subsection, the term
“school operational purposes” includes charter schools
sponsored by a school district. Millage elections conducted
under the authority granted pursuant to this section are
subject to s. 1011.73. Funds generated by such additional
millage do not become a part of the calculation of the Florida
Education Finance Program total potential funds in 2001-
2002 or any subsequent year and must not be incorporated
in the calculation of any hold-harmless or other component of
the Florida Education Finance Program formula in any year.
If an increase in required local effort, when added to existing
millage levied under the 10-mill limit, would result in a
combined millage in excess of the 10-mill limit, any millage
levied pursuant to this subsection shall be considered to be
required local effort to the extent that the district millage
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would otherwise exceed the 10-mill limit. Funds levied under
this subsection shall be shared with charter schools based
on each charter school’s proportionate share of the
district’s total unweighted full-time equivalent student
enrollment and used in a manner consistent with the
purposes of the levy. The referendum must contain an
explanation of the distribution methodology consistent
with the requirements of this subsection.
§ 1011.71(9), Fla. Stat. (2019) (emphasis added).
According to appellants, the 2019 Legislature’s addition of the bolded
sentences was meant to clarify the Legislature’s intent for the 2018
referendum’s approved millage increase under section 1011.71(9) “to be
shared with public charter schools all along.” In support, appellants cite
several Florida Supreme Court cases, including Matthews v. State, 760 So.
2d 1148 (Fla. 2000), to argue “a court may consider an amendment to a
statute soon after controversies as to the interpretation of the original act
arise as legislative interpretation of the original law. Such subsequent
amendments to a statute, which serve to clarify rather than change existing
law, are entitled to substantial weight in construing the earlier law.” Id. at
1150 (citation omitted) (emphasis added).
Here, appellants argue, a growing controversy existed two years earlier
about whether voted operating discretionary millage revenues must be
shared with public charter schools. See Indian River Charter High Sch., Inc.
v. Sch. Bd. of Indian River Cnty., Case No. 31-2016-CA-000432 (Fla. 19th
Cir. Ct. June 13, 2017) (circuit court held the Indian River County School
Board was required to share voted millage levy revenues with charter
schools). Thus, appellants argue, the Legislature’s 2019 amendment to
section 1011.71(9) was meant to clarify that “[i]t was the intent of the
Legislature all along for Voted Millage funds to be shared with public
charter schools, even under the prior version of section 1011.71(9).”
On the other hand, the school board argues the 2019 Legislature’s
addition of the bolded sentences necessarily means those provisions did
not exist within the 2018 version of section 1011.71(9). In support, the
school board cites Arnold v. Shumpert, 217 So. 2d 116, 119 (Fla. 1968)
(“[W]hen a statute is amended, it is presumed that the Legislature intended
it to have a meaning different from that accorded to it before the
amendment.”). The school board also counters appellants’ reliance on
cases like Matthews with other Florida Supreme Court cases holding it is
inappropriate to use an amendment enacted several years after the
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original enactment to “ clarify” original legislative intent. See, e.g., State
Farm Mut. Auto Ins. Co. v. Laforet, 658 So. 2d 55, 62 (Fla. 1995) (“[A]
clarifying amendment to a statute that is enacted soon after controversies
as to the interpretation of a statute arise may be considered as a legislative
interpretation of the original law and not as a substantive change. It would
be absurd, however, to consider legislation enacted more than ten years
after the original act as a clarification of original intent[.]”).
In our opinion, rather than attempting to choose one viable statutory
construction canon over another in determining the 2019 amendment’s
effect on section 1011.71(9), we simply interpret the 2018 version of
section 1011.71(9) as written. If we had been called upon to interpret the
2018 version of section 1011.71(9) before the 2019 amendment, we would
have done so, using other statutory construction canons available for our
consideration.
Also contrary to the parties’ positions, the 2019 amendment’s prior
drafts or final bill analysis should not affect our interpretation of the 2018
version of section 1011.71(9). According to the school board, the
Legislature considered in an earlier bill draft, but ultimately did not
adopt, language which would have made the 2019 amendment
retroactive. Instead, the Legislature included express language providing
that the 2019 amendment applies prospectively, which the school board
says shows the Legislature did not intend the changes to “clarify” a
requirement that already applied. On the other hand, appellants argue
the 2019 amendment’s final bill analysis states it was intended “to clarify
that the term ‘school operational purposes’ includes charter schools
sponsored by a school district.” (emphasis added).
The school board’s reliance on earlier drafts, and appellants’ reliance
on a final bill analysis, are simply not persuasive as a matter of law. See
Rollins v. Pizzarelli, 761 So. 2d 294, 299 (Fla. 2000) (“[W]hen the statutory
language is clear, legislative history cannot be used to alter the plain
meaning of the statute.”); Am. Home Assur. Co. v. Plaza Materials Corp.,
908 So. 2d 360, 376 (Fla. 2005) (Cantero, J., concurring in part and
dissenting in part) (proposing that “legislative staff analyses add nothing
to an investigation of legislative intent”).
Conclusion
In sum, our review is limited to the 2018 versions of sections
1002.33(17) and 1011.71(9), and how those statutes may be read in
harmony according to their plain meaning. The 2018 referendum, by
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excluding charter schools from that portion of the current discretionary
operating millage levy provided in section 1011.71(9), violated section
1002.33(17)’s requirement that “[s]tudents enrolled in a charter school,
regardless of the sponsorship, shall be funded as if they are in a basic
program or a special program, the same as students enrolled in other
public schools in the school district.” (emphasis added).
Based on the foregoing, we reverse the circuit court’s final judgment
(and incorporated “Orders on Pending Motions for Summary Judgment”)
finding the 2018 referendum did not violate Florida law. We remand for
the circuit court to enter an order denying the school board’s motion for
summary judgment and granting appellants’ motions for summary
judgment.
As for the remedy on remand, the school board and the appellants have
agreed (in their requested supplemental briefing following our original
opinion) that the “non-charter” limitation in the 2018 referendum is
severable and may be stricken from the 2018 referendum. This is because
the school board’s resolution authorizing the 2018 referendum to be
placed before voters included a severability clause:
SECTION 8. SEVERABILITY. In the event that any word,
phrase, clause, sentence, or paragraph of this Resolution shall
be held invalid by any court of competent jurisdiction, such
holding shall not affect any other work [sic], clause, phrase,
sentence or paragraph.
We concur with the parties’ agreement as to severability. “When a
portion of a statute or ordinance is declared invalid the remaining portions
thereof which are severable ordinarily should be recognized as valid, and
it is the duty of the court to preserve their validity whether or not a
severability clause was included.” Dade Cnty. v. Keyes, 141 So. 2d 819,
821 (Fla. 3d DCA 1962). “The fact that the offending provision is not self-
contained in a separate section of the statute does not prohibit the court
from applying the severability rule.” Small v. Sun Oil Co., 222 So. 2d 196,
199 (Fla. 1969). Rather, “[t]he key is whether the overall legislative intent
is still accomplished without the invalid provision.” Searcy, Denney,
Scarola, Barnhart & Shipley v. State, 209 So. 3d 1181, 1196 (Fla. 2017).
Applying those principles here, we sever and strike the “non-charter”
limitation from the 2018 referendum, leaving the remainder of the 2018
referendum in full force and effect. Severing and striking the “non-charter”
limitation from the 2018 referendum still accomplishes the 2018
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referendum’s intent to generate additional revenue “to fund school safety
equipment, hire additional school police and mental health professionals,
fund arts, music, physical education, career and choice program teachers,
and improve teacher pay.” The only difference is that a portion of those
funds must be shared with charter schools, for the reasons stated above.
The school board and the appellants nevertheless disagree on when the
sharing of funds generated from the 2018 referendum must commence.
The school board argues the charter schools are not retroactively entitled
to referendum funds for the 2019-2020 and 2020-2021 school years
because those funds have already been collected, obligated, distributed,
and/or spent. Instead, the school board argues, the charter schools’
remedy “must be on a going forward basis and the remainder of their
claims should be remanded for further proceedings.” According to the
school board, “apportioning funds between charter schools and [non-
charter] schools and ensuring compliance with the purposes contained in
the 2018 Referendum will involve complex legal and factual questions that
the trial court should address in the first instance.”
On the other hand, the appellants argue that the charter schools “are
entitled to receive their share of all revenues that have been collected since
the 2018 Referendum went into effect, as well as to all revenues that will
be collected during the remainder of the referendum period.” According to
the appellants, they “were seeking to enjoin the School Board and get a
favorable declaratory judgment prior to the School Board collecting,
distributing, and otherwise obligating the funds. During this appeal, with
full knowledge that this Court could overturn the decision of the trial
court, the School Board proceeded to spend the revenues from the 2018
Referendum. The School Board now attempts to use its knowing
expenditure of these funds during litigation as a shield against liability for
both the 2019-20 school year and the 2020-21 school year.”
In reply, the school board argues its actions “in budgeting and spending
the millage generated by the 2018 Referendum fall within the scope of
governmental functions that are immune from money damages under the
doctrine of sovereign immunity.” According to the school board, “[t]o
retroactively hold [it] liable for monetary damages for allocating millage
pursuant to a voter-approved referendum that was previously upheld by
two separate courts would significantly interfere with [its] control over
public funds and school budgeting. Protecting the School Board from such
interference, whether through a direct damages claim or supplemental
declaratory relief, is precisely why sovereign immunity exists.”
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We conclude the issue of when the sharing of funds generated from the
2018 referendum must commence is not ripe for our review because the
circuit court, based on its findings, did not reach this issue. We remand
for the circuit court to conduct any necessary hearings, evidentiary or
otherwise, to determine this issue through findings of fact and conclusions
of law in the first instance, subject to appellate review.
Lastly, to preserve the school board’s ability to seek appellate review of
this opinion, we certify to the Florida Supreme Court the following question
of great public importance:
Does a local referendum which levies additional millage for
school operational purposes under section 1011.71, Florida
Statutes (2018), but which includes only non-charter schools
in the referendum, violate section 1002.33(17), Florida
Statutes (2018) (“Students enrolled in a charter school,
regardless of the sponsorship, shall be funded as if they are
in a basic