Bush v. Holmes (867 So. 2d 1270, 2004)

ORDER ON MOTION TO REVIEW ORDER CONDITIONING AUTOMATIC STAY ON BOND

POLSTON, J.

Appellants seek the removal of the bond the trial court required as a condition of the automatic stay in effect while their appeal of the trial court’s final judgment is pending. The trial court’s final judgment held that the Opportunity Scholarship Program, section 229.0537, Florida Statutes (1999), is unconstitutional under Article I, section 3, of the Florida Constitution. The trial court required appellants to post a bond or letter of credit to secure reimbursement of funds lost to the school districts while this case is appealed. The trial court required $2,500,000 to be posted for the 2002-03 school year and an additional $2,380,576 for the 2003-04 school year.

Florida Rule of Appellate Procedure 9.310(b)(2) provides “the state, any public officer in an official capacity, board, commission, or other public body” an automatic stay pending review without the necessity of posting a bond. The Florida Supreme Court has interpreted its rule as “allowing trial and appellate courts the discretion to require governmental entities to post supersedeas bonds in suits where the judgment concerns operational-level functions but find[s] that no authority exists to lawfully require such bonds in planning-level governmental functions.” City of Lauderdale Lakes v. Corn, 415 So.2d 1270, 1272 (Fla.1982).

The trial court, in Com, declared a municipal zoning ordinance unconstitutional, and the city appealed the adverse ruling. Id. at 1271. The trial court granted a motion by Corn, a land developer, to require the city to post a $1,140,000 bond for potential damages for delay. Id. The Fourth District Court of Appeal affirmed the trial court’s requirement for a bond. Id. at 1272. Quashing the district court’s decision, the Florida Supreme Court stated: “We can conceive no justification for this Court to require the government to pay for judicial review of legislative actions.” Id. “It is paramount for governmental bodies to have unrestricted appellate court review of their authority to act in a legislative capacity.” Id. As in Corn, the Florida Legislature’s enactment of the Opportunity Scholarship Program, at issue in this case, is clearly a planning-level governmental function that does not require a bond for review of the trial court’s declaration that it is unconstitutional.

Therefore, we grant appellants’ motion to review the trial court’s orders conditioning the automatic stay with the posting of a bond and hold that the automatic stay will remain in effect pending review without appellants posting a bond or letter of credit as required by the trial court. We do not reach the other arguments raised by appellants in support of their motion.

VAN NORTWICK, J. AND SMITH, LARRY G., Senior Judge, concur.

. "The only exception is when no justiciable issue is present and when the record establishes that the governmental body is seeking review in bad faith solely as a delaying tactic." Id. Appellees, in response, do not argue that an exception applies, but instead assert that laches bars appellants' motion. Because the prejudice argued by appellees is speculative, laches does not bar the motion.