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Plan to privatize some Florida prisons being challenged in court

TALLAHASSEE — In a courtroom across the street from the state Capitol, the Legislature is in effect on trial, accused of illegally requiring that prisons in 18 counties be turned over to the control of private vendors.

The legal challenge by the Florida Police Benevolent Association, a union representing correctional officers, seeks to block the privatization from moving forward at a critical juncture.

Formal proposals from private firms will be released Tuesday.

The Legislature is not a party in the lawsuit. The defendant is the Department of Corrections, which is responsible for implementing the privatization venture in a region stretching from Bradenton to the Florida Keys.

But the case could have far-reaching implications because it strikes at the heart of the way the Legislature writes the annual state budget.

PBA attorneys told Circuit Judge Jackie Fulford on Thursday that lawmakers had no right to mandate privatization in the budget language known as proviso, instead of passing a law.

That end run is unconstitutional, the PBA argues, and it illegally rewrites existing standards for privatizing prisons and deals with multiple subjects in violation of state law, the union alleges.

"The Constitution requires certain things, and the Legislature didn't follow them," said PBA attorney Kelly Overstreet Johnson. "They slipped it in at the last minute through proviso language, and you can't do that ... Even the Legislature has to follow the law."

Another PBA lawyer, Stephen Turner, told the judge that only a handful of lawmakers wrote the controversial language and that the reason lawmakers didn't pass a bill is that there weren't enough votes to do it.

Assistant Attorney General Jonathan Glogau, defending the state, said the Legislature acted within its powers and that any action it takes has the "presumption of constitutionality." He also noted that the privatization is not a sure thing: The Legislative Budget Commission must approve it only after a vendor guarantees a 7 percent cost savings.

"The Legislature has absolute authority to tell agencies how to spend their money," Glogau said in court. "The Legislature gets to make its decisions, and we don't get to question that."

The PBA has a long history of opposing privatization of prisons. An estimated 3,500 officers risk losing their jobs when a private company takes over on Jan. 1.

Steve Bousquet can be reached at bousquet@sptimes.com or (850) 224-7263.

Plan to privatize some Florida prisons being challenged in court 09/29/11 [Last modified: Thursday, September 29, 2011 9:59pm]
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