First DCA orders “immediate hearing” of request for Writ of Mandamus against school board members

BY JENNIFER CABRERA

In response to an Emergency Petition for Writ of Mandamus filed in the First District Court of Appeal (DCA) on October 2, the court has issued an order transferring the case to circuit courts in Alachua and Duval Counties and directing “the Chief Judge of each circuit to assign the petition to a circuit judge and that the assigned circuit judges ensure an immediate hearing and a prompt decision on the merits of the petition.”

The petition, filed by parents in the two counties, asked the court to require the superintendents and school boards of Alachua and Duval Counties to comply with the Florida Department of Health emergency rule regarding school masking and quarantine policies, “particularly to the extent of providing parents with an opt-out to the School Boards’ mask policies at parents’ sole discretion, and allowing parents to send their healthy (non-symptomatic) children to school at their own discretion.”

The new order, written by Judge Robert Long with Judges Brad Thomas and Harvey Jay concurring, states that “Society’s collective response to the COVID-19 virus has become a cultural and political flash point. But despite its dressing, this case is not a dispute about the wisest public policy response to the virus. Those policy decisions are constitutionally assigned to the legislative and executive branches… The foundational question before us is whether the respondent government actors are required to comply with the laws that govern their authority.”

After stating the emergency rule in question, the order continues, “Respondents concede their policies do not comply with the rule. They do not argue the rule is unclear. They do not argue that the rule does not apply to them. They do not argue they are confused by the rule. They do not argue they have attempted to comply with the rule. Instead, they assert that they are challenging the rule in an administrative proceeding. And they explain that, rather than follow Florida law, they are following their preferred policy recommendations… Respondents have been remarkably open in their defiance… In short, they acknowledge they are defying the law, but argue that the courts should refuse to compel their compliance.”

The order says that a writ of mandamus is the proper remedy, that both the First DCA and circuit courts have jurisdiction to issue a writ, and that “If the applicant makes out a proper case, the courts are bound to grant it.” Judge Long writes, “The [Florida] supreme court made clear that where the resolution of a case may involve fact-finding, those ‘cases should be handled by the circuit courts because… the circuit court [is] in the best position to quickly and efficiently resolve such problems.’… Petitioners allege that they are parents of children directly affected by Respondents’ non-compliant policies. Respondents have disputed this and created a question of fact that must first be resolved by the circuit court.”

After the order was issued, Jeff Childers, one of the attorneys representing the petitioners, issued a demand letter to the Alachua County School Board; a similar letter was sent to the Duval County School Board. In the letter, Childers writes that the circuit court hearing is a “wasteful procedure [that] is necessary only because your superintendent and attorneys pretended that they were unable to tell whether the petitioners lived in the district or not. You know perfectly well that they do. And once the Circuit Court confirms this, you will almost certainly be subject to the writ.”

Childers gave the board a deadline of 5:00 p.m. on Tuesday, November 2, to “completely rescind the illegal policy,” writing that if they did so, the petitioners would file a suggestion of mootness in the case, which would resolve the matter. The letter continues: “However, if you refuse, the petitioners will immediately seek all available relief.”