Appeals court orders judge off voucher case

By STEPHEN HEGARTY

© St. Petersburg Times,
published September 5, 2001

The trial judge in Florida's high-profile school voucher case has been removed from the case, under an order from the 1st District Court of Appeal.

The attorneys for voucher proponents moved to have Leon Circuit Judge L. Ralph Smith disqualified from the case after his son married the daughter of a staff member at the Florida Education Association, a group that is a party to the lawsuit. Voucher critics opposed the motion and in an unusual move, Smith filed his own brief opposing his removal.

In a brief order dated Aug. 31, the appeals court wrote that "we find that reasonable persons could conclude that the . . . trial court's response . . . creates an inappropriate adversarial relationship between the judge and petitioners."

The case now will be assigned to another Circuit Court judge.

Neither side saw the appeals court order as a major setback to the case, which has drawn national attention.

The 2-year-old case still hasn't gotten to the central issue of whether vouchers violate the constitutional requirement of separation of church and state. Even before that issue was raised, Smith ruled that the program was an unconstitutional use of public dollars. With that issue taking center stage, the case has gone to the appeals court, which ruled that the case was not an unconstitutional use of public dollars. After the Florida Supreme Court let that ruling stand, the case was sent back to the circuit court.

"Nobody should have to go to court in a case where you have a reasonable basis to question the neutrality of the judge," said Clark Neily, an attorney for the Institute of Justice, the organization that has a hand in school voucher litigation around the country. "Now we can start in on the heart of the case."

Under Florida's 1999 voucher law, students at public schools given failing grades two years out of four can seek vouchers funded by tax dollars to pay for private school.

Students at just two Pensacola elementary schools have qualified for vouchers since the law took effect.

A day after Gov. Jeb Bush signed the law -- the nation's first statewide school voucher program -- opponents filed a lawsuit challenging its constitutionality.

The plaintiffs include the Florida PTA, the National Association for the Advancement of Colored People, the League of Women Voters and a handful of families and educators.

- The Associated Press contributed to this report.

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