A circuit judge's clear-cut ruling in Tallahassee on Friday that Florida's massive plan to privatize state prisons is unconstitutional sent another powerful message to Gov. Rick Scott and the Republican-controlled Legislature. They are not above the law, and they are going to lose in court when they exceed the constitutional restraints on their authority.
Leon County Circuit Judge Jackie Fulford found that a plan to privatize 29 state prisons in South Florida is unconstitutional because lawmakers wrote the change into the state budget instead of passing separate legislation. Governors from both political parties and legislatures controlled by either Republicans and Democrats similarly have been overruled by the courts over the past 40 years for using the state budget to slip in significant changes to state law. That often happens when those policy changes can't stand up to public scrutiny or don't have enough support among rank-and-file lawmakers to be approved on their own merits.
In this case, Scott and influential legislators such as Senate budget chief J.D. Alexander of Lake Wales were determined to pursue one of the nation's largest privatization efforts no matter what. In the Senate, Alexander quietly stuck language into the budget to privatize prisons — to the surprise of the chairman of the committee that oversees criminal justice spending, Sen. Mike Fasano of New Port Richey. And Scott fired his Department of Corrections secretary after he questioned the wisdom of the privatization effort and supported the lawsuit filed by the union that represents state prison guards. It's probably just a coincidence that the Boca Raton company expected to win the new prison contract, GEO Group, had 16 lobbyists in Tallahassee, donated $25,000 to Scott's inaugural celebration and once employed Scott's key outside budget adviser.
From a policy standpoint, this prison privatization plan was too big, too fast and too full of holes. But the issue in court was not its merit. Fulford pointed out in her order that the state already has the authority to privatize prisons and a clear-cut process for evaluating such privatization plans. But she said it was unconstitutional to write this plan into the budget, and she also found the Department of Corrections was cutting corners and violating existing law in its rush to carry out the plan.
With their disregard for established law and constitutional protections, the governor and the Legislature are keeping the courts busy. The Florida Supreme Court ruled in August that Scott overstepped his authority as he unilaterally took control of rulemaking by state agencies. Last month, a federal judge in Miami ruled a new law punishing doctors for questioning their patients about firearms is an infringement on free speech. Other pending lawsuits of some merit challenge new laws that require drug testing for welfare recipients and the elimination of tenure for new teachers.
The abuse of power in Tallahassee illustrates why a nonpartisan, independent judiciary is so important. When the legislative and executive branches of government act so arrogantly and with so little respect for the rule of law, it is left to the courts to set things right.