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In 2018, voters in Palm Beach County, Florida, were asked to decide on a referendum to raise property taxes for the “operational needs of district non-charter schools.” That is, for public schools, not charter schools. After the measure passed, two charter schools in the district sued for their “share” of the revenues. The case went to an appeals court which ruled 2-1 against the charters. Then it went to the full court of appeals, which ruled 7-4 that the charter schools were entitled to a share of the money.
The opinion also said that the wording in the ballot measure that prevented charter schools from receiving money was “severable” — essentially meaning that it can be disregarded — and that the rest of the referendum could remain in “full force and effect.”“Severing and striking the ‘non-charter’ limitation from the 2018 referendum still accomplishes the 2018 referendum’s intent to generate additional revenue ‘to fund school safety equipment, hire additional school police and mental health professionals, fund arts, music, physical education, career and choice program teachers, and improve teacher pay.’ The only difference is that a portion of those funds must be shared with charter schools,” said the 17-page majority opinion shared by Chief Judge Spencer Levine and Judges Dorian Damoorgian, Burton Conner, Alan Forst, Mark Klingensmith, Jeffrey Kuntz and Edward Artau.
But dissenting judges lambasted the majority for deciding that the referendum could remain in effect and for deciding to take up the case en banc.They argued, in part, that allowing the referendum to remain in effect violates the will of voters, who thought they were casting ballots on a measure that would exclude funding for charter schools. Judge Robert Gross described it as an act of “judicial hocus pocus.”
“Rather than taking that principled approach and acknowledging the only proper remedy is the referendum’s invalidation, the majority has instead rewritten the referendum and pulled a bait-and-switch upon the voters of Palm Beach County,” Gross wrote in a dissent joined by Judges Martha Warner and Melanie May. “By judicial fiat, the majority has imposed a levy for the benefit of charter schools that the voters never approved ‘by local referendum or in a general election’ as required (by a section of state law).”
In a separate dissent, Judge Cory Ciklin pointed to the majority “ignoring the will of 528,089 Palm Beach County voters who participated in a countywide election. Not this court nor the School Board nor the charter schools can legally agree to severing and striking the non-charter limitation from the 2018 referendum as if the sanctity of voter intent is of no concern and one that can be blithely cast aside as nothing more than an unimportant annoyance.”
The voters thought that the ballot explicitly excluded the charter schools from the taxes they were willing to increase. The court decided otherwise.
As Judge Gross said in his dissent, this is a classic case of “bait and switch.”