During the 2011 regular session, the Florida Legislature included the privatization of prisons in eighteen counties in the southern part of the state as a proviso in General Appropriations Act. The Florida Police Benevolent Association and others sued the Secretary of the Department of Corrections contending that the provision was unconstitutional and did not follow existing law. On September 30, 2011, 2nd District Circuit Court Judge Jackie L. Fulford ruled in favor of the plaintiffs in Florida PBA v. Tucker. The Governor declined to appeal the decision; however, the Legislature subsequently requested that the Attorney General proceed with an appeal.
The privatization of prisons across eighteen counties in Florida, the largest of such programs in the United States, is a major policy decision. Such decisions should occur through transparent processes and via regular legislation. The privatization was not at the request of the Department of Corrections, nor did it follow the existing process under Florida statutes for contracting with private providers. Fla. Const. art. III §6 states “Every law shall embrace but one subject and matter properly connected therewith, and the subject shall be briefly expressed in the title,” and Fla. Const. art. III §12 states “Laws making appropriations for salaries of public officers and other current expenses of the state shall contain provisions on no other subject.” The budget bill dealt with more than one subject. Rather than determining where funding was to be directed, the proviso called for the Department of Corrections to take specific actions. These series of action are policy provisions.
Florida PBA v. Tucker brought to the light the concern of passing substantive revisions to law in budget bills. The budget bill and its conforming bills came out of a conference between the two houses. Conforming bills do not go through the process of discussion in multiple committees in the public view before moving forward. During the 2011 session, legislators had little time to review them before voting. Budget conforming bills in Florida were lengthy this year, following a trend over the past few years where the number of bills and the provisions tucked into the bills have increased. Where is the line drawn between policy and budget? With this case on appeal and another legislative session beginning in January, the issue is not likely to fade away.