BUSH v. HOLMES

Nos. 1D00-1121 and 1D00-1150.

767 So.2d 668 (2000)

John Ellis "Jeb" BUSH, in his official capacity as Governor of the State of Florida and Chairman of the State Board of Education; Attorney General Robert A. Butterworth, Secretary of Education Tom Gallagher, Secretary of State Katherine Harris, Comptroller Robert Milligan, Commissioner of Insurance and State Treasurer Bill Nelson, Commissioner of Agriculture Bob Crawford, in their official capacities and as members of the State Board of Education; and Florida Department of Education, Appellants, v. Ruth D. HOLMES; Gregory and Susan Watson on behalf of themselves and their minor children Sarah, Seth, and Sybil Watson; Rebecca Hale, on behalf of herself and her minor child, Jessica Dennis; John Rigsby, on behalf of himself and his minor children, Thaddeus and Porsche Rigsby; Queen E. Nelson, on behalf of herself and her minor grandchild, Ashley Wilson; Samuel Watts on behalf of himself and his minor children, Rondale, Reynard, and Rebecca Watts; Linda Lerner; Betsy H. Kaplan; Florida State Conference of Branches of NAACP; Citizens' Coalition for Public Schools; The Florida Congress of Parents and Teachers (a/k/a "Florida PTA"); Florida Education Association/United, AFT AFL-CIO, a labor organization and Florida taxpayer; and Pat Tornillo, Jr., Andy Ford, Rita Moody, Mary Lopez, and Robert F. Lee, as Florida taxpayers, Appellees. Brenda McShane, in her own behalf as natural guardian of her child, Brenisha McShane; Dermita Merkman, in her own behalf and as natural guardian of her child, Jessica Merkman; Tracy Richardson, in her own behalf and as natural guardian of her child, Khaliah Clanton; Sharon Mallety, in her own behalf and as natural guardian of her child, Jermall Bell; Barbara Landrum, in her own behalf and as natural guardian of her children, Laquila and Stacy Marie Wheeler; and Urban League Of Greater Miami, Inc., Appellants, v. Ruth D. Holmes; Gregory And Susan Watson on behalf of themselves and their minor children Sarah, Seth, and Sybil Watson; Rebecca Hale, on behalf of herself and her minor child, Jessica Dennis; John Rigsby, on behalf of himself and his minor children, Thaddeus and Porsche Rigsby; Queen E. Nelson, on behalf of herself and her minor grandchild, Ashley Wilson; Samuel Watts on behalf of himself and his minor children, Rondale, Reynard, and Rebecca Watts; Linda Lerner; Betsy H. Kaplan; Florida State Conference of Branches of NAACP; Citizens' Coalition for Public Schools; Florida Congress of Parents and Teachers (a/k/a "Florida PTA"); Florida Education Association/United, AFT AFL-CIO, a labor organization and Florida taxpayer; and Pat Tornillo, Jr., Andy Ford, Rita Moody, Mary Lopez, and Robert F. Lee, as Florida taxpayers, Appellees.

District Court of Appeal of Florida, First District.

October 3, 2000.


Attorney(s) appearing for the Case

Frank R. Jimenez, Acting General Counsel, and Reginald J. Brown, Deputy General Counsel, Tallahassee; Charles T. Canady, Washington, D.C.; Carol A. Licko, Thomson, Muraro, Razook & Hart, P.A., Miami; and Jay P. Lefkowitz and Brett M. Kavanaugh of Kirkland & Ellis, Washington, D.C., for Appellants John Ellis "Jeb" Bush, et al.

Thomas E. Warner, Solicitor General of Florida, Louis F. Hubener, Assistant Attorney General, James A. Peters, Special Counsel, and Richard A. Hixson, Deputy Solicitor General, Tallahassee, for Robert A. Butterworth, Attorney General of Florida.

Harry L. Hooper, General Counsel, Comptroller's Office, Tallahassee, for Robert Milligan, Florida Comptroller.

Michael Olenick, General Counsel, Tallahassee, for Florida Department of Education.

Kenneth W. Sukhia of Fowler, White, Gillen, Boggs, Villareal and Banker, P.A., Tallahassee; and Clint Bolick and Matthew Berry, Institute for Justice, Washington, D.C., for Appellants Brenda McShane, et al.

Frank A. Shepherd of Pacific Legal Foundation, Miami, for Amici Curiae Independent Voices for Better Education, Teachers for Better Education, Ira J. Paul, Robert N. Wright, and Pacific Legal Foundation; and Paul D. Clement, Jeffrey M. Telep, and Jeffrey S. Bucholtz of King & Spalding, Washington, D.C., for Amici Curiae The Center for Education Reform, American Education Reform Foundation, American Legislative Exchange Council, Children First CEO America, Education Leaders Council, Floridians for School Choice, "I Have a Dream" Foundation of Washington, D.C., and Mayor Bret Schundler, Republican Mayor of Jersey City, New Jersey, and founder of Empower the People on behalf of Appellants Brenda McShane, et al.

Ronald G. Meyer of Meyer and Brooks, P.A., Tallahassee; Robert H. Chanin, John M. West, and Alice O'Brien of Bredhoff & Kaiser, P.L.L.C., Washington, D.C.; Andrew H. Kayton, American Civil Liberties Union Foundation of Florida, Inc., Miami; Michael A. Sussman of National Association for Advancement of Colored People, New York; Julie Underwood, General Counsel of National School Boards Association, Virginia; Elliot M. Mincberg and Judith E. Schaeffer, of People for the American Way Foundation, Washington, D.C.; Marc D. Stern of American Jewish Congress, New York; Steven K. Green and Ayesha N. Khan, Americans United for Separation of Church and State, Washington, D.C.; Steven R. Shapiro of American Civil Liberties Union Foundation, New York; Jeffrey P. Sinensky and Kara H. Stein of the American Jewish Committee, New York; Joan Peppard, Anti-Defamation League, Miami; and Elizabeth J. Coleman and Steven M. Freeman of Anti-Defamation League, New York, for Appellees Ruth D. Holmes, et al.

W. Dexter Douglass and Thomas P. Crapps of Douglass Law Firm, Tallahassee; Marvin E. Frankel and Justine A. Harris of Kramer Levin Naftalis & Frankel LLP, New York; David Strom of the American Federation of Teachers, Washington, D.C.; Pamela L. Cooper, General Counsel, Florida Teaching Profession-NEA, Tallahassee, for Appellees Florida Education Association/United, AFT AFLCIO, et al.


KAHN, J.

This is a consolidated appeal from a final judgment declaring section 229.0537, Florida Statutes (1999), "insofar as it establishes a program through which the State pays for certain students to attend private schools," facially unconstitutional under article IX, section 1 of the Florida Constitution.1 Section 229.0537 contains the provisions of Florida's Opportunity Scholarship Program...

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