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Florida judge rules prison privatization procedure unconstitutional

TALLAHASSEE — A state judge ruled Friday that the Legislature violated the law and Florida's Constitution by using budget language to order prisons to be privatized in 18 South Florida counties, and demanded that the project be stopped immediately.

"Actions taken to date are declared illegal without authority in violation of law," Leon County Circuit Judge Jackie Fulford wrote in a strongly-worded, six-page decision that faulted lawmakers for a lack of transparency.

Fulford said the Legislature trampled on existing privatization law by ordering the Department of Corrections to seek proposals from private vendors to run 29 prisons and work camps. She also found that the project violated state law because the agency failed to do a business-case study of the pros and cons of privatization before seeking proposals from vendors.

Fulford emphasized that privatizing state prisons is allowed by law, but that the Legislature went about it the wrong way.

"Under existing substantive law, a specific legislative appropriation must be made for a proposed privatization contract," the judge wrote. "If it is the will of the Legislature to itself initiate privatization of Florida prisons, as opposed to DOC, the Legislature must do so by general law, rather than 'using the hidden recesses of the General Appropriations Act.' "

The "hidden recesses" quotation is from a 1971 Florida Supreme Court case, Dickinson v. Stone, in which then-Comptroller Bud Dickinson successfully challenged legislative language because it dealt with more than one subject. The court said that shifting data-processing responsibilities among state agencies should have been enacted by law, not through budget language.

The state is considering whether to appeal Fulford's decision to the First District Court of Appeal.

"We are reviewing the order and determining our options," prison spokeswoman Gretl Plessinger said.

The decision was a victory for the Florida Police Benevolent Association, the union for correctional officers, which filed the suit in hopes of saving the jobs of several thousand correctional officers.

"We believe justice has been served for the 4,000 men and women who faced the prospect of privatization," PBA executive director Matt Puckett said. "It validates what the PBA has been saying all along — the Legislature is not above the law."

The nation's third-largest prison system, still adjusting to the August dismissal of Corrections Secretary Edwin Buss, was required by the Legislature to choose a vendor to run South Florida prisons by Dec. 1, to give the Legislative Budget Commission time to act on the decision.

But Friday's ruling threw all of that into disarray. The Department of Corrections suspended the opening of vendors' proposals, scheduled for 2 p.m. Tuesday. And all references to the project vanished from the agency's website.

Three private prison operators were considering offering to run the largest outsourcing of corrections ever undertaken at one time: Corrections Corp. of America, based in Nashville; the GEO Group, in Boca Raton; and MTC, of Centerville, Utah.

The vendors had posed more than 400 questions to corrections officials in recent weeks, seeking to comprehend the complexity of what the Legislature had directed.

Fulford's ruling noted that the Legislature's action violated Article III, sections 6 and 12 of the state Constitution. The provisions require that any law and any budget line item must be limited to one subject.

The language at issue in the case is known as proviso, in which the Legislature specifies how an agency must spend tax dollars. The privatization language was largely the work of Sen. JD Alexander, a Lake Wales Republican who directed the budget-writing of the Senate.

Alexander did not respond to a request for comment Friday.

Celebrating the decision was Sen. Mike Fasano, R-New Port Richey, chairman of the Senate budget subcommittee in charge of prison spending.

"This is a perfect example of why we should not be making major policy changes in proviso language that did not go through substantive committees, debated and taken testimony and pro and con," Fasano said.

The proposal was never discussed at length in any legislative hearings and first surfaced in its final form in the final budget document in the closing days of the 2011 legislative session.

Some legislators said the privatization venture wasn't proposed as a law because it wouldn't have passed on a floor vote.

By law, proviso language in the final budget cannot be altered or amended and is subject to a yes-or-no vote by all lawmakers. Gov. Rick Scott could have vetoed the language, but he chose to let it become law when he signed the budget in May.

Fulford, 46, was chief assistant state attorney for North Florida's Second Judicial Circuit since 1998 when Gov. Charlie Crist appointed her to the bench in 2009. She's a graduate of Stetson Law School in St. Petersburg and a registered Republican, according to public records.

Times researcher Shirl Kennedy contributed to this report. Steve Bousquet can be reached at or (850) 224-7263.

Florida judge rules prison privatization procedure unconstitutional 09/30/11 [Last modified: Friday, September 30, 2011 9:51pm]
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