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House panel moves to re-establish school vouchers

Some legislators want voters to remove a constitutional obstacle to the program, which a court struck down two months ago.

By STEVE BOUSQUET
Published March 16, 2006

TALLAHASSEE - A Republican effort to resurrect school vouchers in Florida touched off a partisan firestorm Wednesday, with Democrats calling it a power grab and an attack on the independence of the courts.

The clash in the House Judiciary Committee foreshadows a fight over a key part of Gov. Jeb Bush's policy agenda: the use of tax dollars so students can transfer out of failing public schools to private or religious schools.

The Florida Supreme Court struck down vouchers as unconstitutional two months ago, but the Legislature's Republican leadership has declared revival of vouchers a priority.

The strategy became clearer Wednesday with the introduction of a bill by Rep. David Simmons, R-Longwood, who chairs the House Judiciary Committee. The bill seeks voter approval of an amendment to the state Constitution that would remove one of the court's basic legal arguments in rejecting vouchers.

"We are righting the ship," said Simmons, a lawyer who criticized the court's five-member majority for tortured logic in its decision in the Bush vs. Holmes voucher case.

"I think this is a way of circumventing that (voucher) decision," protested Rep. Curtis Richardson, D-Tallahassee, a voucher opponent. "I think it's deceitful."

Richardson said voters would have no idea that Simmons' proposal relates directly to the legalization of vouchers.

Simmons' bill would bar Florida courts from applying a time-honored legal maxim in cases involving the limits of the Legislature's power. That maxim, a staple of law school classes for decades, is known by the Latin shorthand of "expressio unius" or "the expression of one thing implies the exclusion of another."

The five justices who struck down vouchers cited that concept in their decision.

Because another part of Florida's Constitution requires adequate funding of a system of "free public schools," the majority concluded, no provision exists for the use of state funds for schools that are not free and public.

In crafting his proposal, written by him and a House lawyer, Simmons relied on arguments made by the two dissenting justices in the voucher case, Kenneth Bell and Raoul Cantero, both Bush appointees.

In their dissent, the pair argued that expressio unius "should rarely be used when interpreting constitutional provisions, and then, only with great caution."

Simmons' proposal passed on an 8-4 vote with eight Republicans voting yes. Rep. Kevin Ambler, R-Lutz, joined three Democrats in voting no. Ambler, a lawyer, said the Simmons proposal could expand the courts' ability to interpret legislative actions - just the opposite of what many Republicans intend.

"It does change the balance, in a manner that I'm not willing to live with," Ambler said.

The debate played out in a nearly empty committee room toward the end of a two-hour meeting. No one testified for or against it.

Even a savvy legislative observer would have had trouble realizing that Simmons' proposal was about vouchers. The bill's subject is listed as "rules of construction." It is what legislators refer to as a PCB or proposed committee bill, and could be sent next to the 120-member House for a floor vote at the speaker's discretion.

The bill, PCB JU 06-06, can be viewed online at www.myfloridahouse.gov

Sen. Dan Webster, R-Winter Garden, chairman of the Senate Judiciary Committee, said he had not yet decided whether to push a bill along the lines of Simmons' proposal.

"There are some other, bigger issues I've got to deal with right away," he said.

The House debate turned confusing when Simmons added a brief last-minute amendment that added an exception for cases in which the expressio unius maxim's use is "absolutely necessary" to carry out a constitutional provision.

Even some lawyers on the committee weren't sure about the amendment's implications. They pleaded with Simmons to take a more deliberative approach on such a complex issue.

Rep. Dan Gelber, D-Miami Beach, called the bill "a naked power grab."

"We're treating Florida's Constitution like some middle-school term paper." Gelber said.

Rep. Dennis Baxley, R-Ocala, a voucher supporter, said the Democrats had it all wrong and referred to the Supreme Court as an "oligarchy."

"This is very much a simple matter," Baxley said. "Do the people get to decide, or does an oligarchy get to decide? You go back to the people and you say, "Do you want the people, by their representatives, to be able to do things . . . or do they only get to do things they were told?' "

Times staff writer Joni James contributed to this report. Steve Bousquet can be reached at sbousquet@sptimes.com or 850 224-7263.

[Last modified March 16, 2006, 02:15:15]