district court of appeal first district, state of …
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DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA
APPEAL NO.: 1D21-2994
Original Proceeding GINA DORTCH, BRAD GONZALEZ, SCOTT BURFORD, AMBER BURFORD, NICHOLE CARLISLE, CARRIE GILLESPIE, KIM HICKEY, AMANDA MOORE, MICHAEL TICKEL, AMANDA WEBER, AMANDA DONOHO, DEE BASSO, SHELISA WINGENBACH, KATIE LEWANDOWSKI, GREGORY ADAME, HEATHER WALLACE, GARY DESJARDINS, MICHELLE PETTY, TARAN HELM, JEFF SELLERS, SEAN COLLINS, and TIA BESS,
Petitioners,
vs. ALACHUA COUNTY SCHOOL BOARD, Superintendent Carlee Simon, DUVAL COUNTY SCHOOL BOARD, Superintendent Diana Greene,
Respondents. __________________________________________/
RESPONDENTS’, DUVAL COUNTY SCHOOL
BOARD, SUPERINTENDENT DIANA GREENE, RESPONSE TO COURT’S OCTOBER 4, 2021 ORDER
TO SHOW CAUSE OR, ALTERNATIVELY, MOTION TO STAY
Respondents, Duval County School Board, Superintendent Diana
Greene (hereinafter “DCSB”), pursuant Rule 9.100(h) & (j), Florida Rules of
Appellate Procedure, hereby respond to the Court’s October 4, 2021 Order
Filing # 136231760 E-Filed 10/08/2021 04:54:45 PM
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to Show Cause why the Petitioners’ Emergency Petition for Writ of
Mandamus should not be granted. Alternatively, the DCSB seeks a stay of
this action because many of the Petitioners here are Plaintiffs in a previously
filed and still pending federal court action making the same and similar claims
and seeking similar relief in the form of a preliminary injunction. For the
following reasons, this Court should deny the Petition or, alternatively, stay
this matter until the federal court’s disposition of the substantially similar
pending case seeking preliminary injunctive relief and damages. The
Petition is duplicative, procedurally and legally defective on its face, and does
not state a cause of action for extraordinary mandamus relief.
A. Background facts.
Petitioners allege that mandamus should lie to compel the DCSB to
comply with a Department of Health (“DOH”) Emergency Rule. The DCSB’s
temporary policy generally requires all Duval County school children to wear
a mask while indoors to prevent the spread of COVID-19. The policy allows
parents to opt their children out if a licensed health care provider signs a form
certifying that the student has a medical, physical, or psychological reason
for being unable to wear a mask. Petitioners claim they are entitled to
mandamus relief, despite not alleging in their Petition that their children
attend DCSB schools, much less that their children are actually being
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required to wear masks or that they want to opt them out of wearing a mask
but were unable to do so.
Petitioners argue that this Court should issue a writ of mandamus
because the Board cannot “even challenge [the] validity” of the Florida
Department of Health’s Emergency Rule 64DER21-15 purporting to allow
parents to opt their children out of wearing masks without limitation and
allowing children to attend school even if they test positive for COVID-19, as
long as they are asymptomatic. In other words, they argue that a State
agency can make adminstrative rules and the DCSB has no discretion to
even challenge the rules or come up with local solutions to a continuing
pandemic while school is in session. Should the DCSB challenge the rules
or fail to comply, Petitioners argue this Court must in all circumstances issue
an extraordinary writ directing local elected officials how to run Duval
County’s school system.
Challenges surrounding the DCSB’s mask policy have been pending
in federal court for over a month and a hearing on those challenges is
imminent, making a stay of this action necessary. Moreover, the current
DOH Emergency Rule, included in Petitioners’ Appendix at pages 4-5, is the
subject of a rule challenge in the Division of Administrative Hearings
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(“DOAH”), discussed further below. Even without a previously filed
duplicative action, however, Petitioners are not entitled to mandamus relief.
B. The Petition Should Have Been Filed in Circuit Court.
Although both circuit courts and the Florida District Courts of Appeal
have the power to issues writs of mandamus within their jurisdiction under
Rule 9.030, Florida Rules of Appellate Procedure, courts have generally held
that circuit courts should address claims for mandamus to force ministerial
action by local officials and agencies while appellate courts typically only
enter writs of mandamus requiring circuit courts to act. Thus, this Court
should dismiss the Petition as it should have been filed in circuit court. See,
e.g., Scott v. State, 130 So. 3d 741, 742-43 (Fla. 3d DCA 2014) (holding that
circuit courts typically have authority over mandamus actions stemming from
Department of Corrections’ failure to act); Holveck v. State, 730 So. 2d 407,
408 (Fla. 5th DCA 1999) (holding that circuit court had jurisdiction over
mandamus action involving actions at mental institution); Sheley v. Fla.
Parole Comm’n, 720 So. 2d 216, 218 (Fla. 1998) (petitions for mandamus
seeking review of orders of Florida Parole Commission are properly directed
to circuit courts).1
1 In a similar case involving the same counsel, the Fifth District Court of Appeal entered an Order to Show Cause on October 7, 2021, directing petitioners to show cause within ten days as to why the petition for writ of
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C. Petitioners Have Not Alleged Standing.
The Petition should also be dismissed because there is no allegation
in the Petition as to who the Petitioners are or whether they are residents of
any specific county within the First District, or whether they are students or
parents of students attending any school within the First District. Nor have
they alleged that their children were not permitted to medically opt out of
wearing masks. In fact, they have not even alleged that their children attend
schools wearing masks, or that their children have been disciplined for
refusing to wear a mask.
A party seeking a writ of mandamus is required to show a clear legal
right to the performance of an act, and to do so, a petitioner must establish
standing. Chandler v. City of Greenacres, 140 So. 3d 1080, 1083 (Fla. 4th
DCA 2014). “Standing is a legal concept that requires a would-be litigant to
demonstrate that he or she reasonably expects to be affected by the
outcome of the proceedings, either directly or indirectly.” Id. quoting Hayes
v. Guardianship of Thompson, 952 So.2d 498, 505 (Fla.2006).
mandamus should not be transferred to circuit court, “which is in a better position to fact find.” This order is attached to Respondent DCSB’s Appendix as “Resp. 1.” The DCSB contends that the petition in this case should be denied and dismissed, but at the very least, it should have been filed in circuit court.
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Even if Petitioners alleged that they are parents of students in schools
in the First District (which they did not), they also have not alleged that they
have suffered any special injury beyond any other parent or member of the
public, which is required for standing to bring a mandamus action. See, e.g.,
Centrust Savings Bank v. City of Miami, 491 So. 2d 576, 578 (Fla. 3d DCA
1986) (affirming circuit court’s dismissal of petition for writ of mandamus
because property owner lacked standing when owner failed to allege special
injury apart from injury suffered by any member of the general public).2 The
lack of proper standing allegations mandates dismissal of the Petition.
D. The Petition Should Be Dismissed or Stayed as the Same Issues are Pending in Federal District Court. The Petition should also be dismissed or at least stayed because the
same individual parents (individually and on behalf of their children), with the
same counsel, sued the DCSB over a month ago and are seeking preliminary
injunctive relief in federal court to prevent enforcement of the temporary
mask mandate. See Helm, et al. v. Duval County School Board, Case No.
2 Recently, this Court expressed doubt as to parents’ standing to bring a challenge to the State’s policy on mask mandates in schools. See https://www.clickorlando.com/news/local/2021/09/13/parents-fighting-florida-mask-mandate-ban-want-to-speed-case-to-supreme-court/ (“Upon our review of the trial court’s final judgment and the operative pleadings, we have serious doubts about standing, jurisdiction, and other threshold matters”).
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3:21-cv-00900-TJC-JRK (M.D. Fla. Sept. 2, 2021). App., Resp. 2 (district
court docket).3 The parties have submitted extensive evidence and a
hearing on the Plaintiffs’ motion for preliminary injunction is scheduled in
federal court on October 15, 2021. The district court will decide whether to
enjoin the mask mandate based on constitutional, statutory and state law
claims.
The current Petition is therefore inappropriate concurrent litigation
seeking the same relief against the DCSB—an order directing the DCSB to
3 The full citation for the federal court case is Kyle and Taran Helm, individually and as next friends for Jane Doe 1, Jane Doe 2 and Jane Doe 3, Gary and Amy Desjardins, individually and as next friends for John Doe 1 and Jane Doe 4, Michelle Petty, individually and next friend for Jane Doe 5 and Jane Doe 6, Heather Wallace, individually and as next friends for Jane Doe 7 and Jane Doe 8, Gregory and Krystle Adame, individually and as next friend for Jane Doe 9, Jeff and Carrie Sellers, individually and as next friends for Jane Doe 10, John Doe 2, Jane Doe 11, Sean and Carolina Collins, individually and as next friend for John Doe 3, Robby and Tamsyn Bell, individually and as next friends for Jane Doe 12, Jane DOE 13, and Jane Doe 14, Stan and Katie Lewandowski, individually and as next friends for Jane Doe 15 and John Doe 4, Marleatia Bess and Robin Freel, individually and as next friends for Jane Doe 16 and John Doe 5 v. Duval County School Board, Case No. 3:21-cv-00900-TJC-JRK (M.D. Fla. Sept. 2, 2021). It appears all but one set of parents in the Helm federal case are represented in this original action. Twenty-one students are also represented in the Helm case. Interestingly, on their Docketing Statement in this Court, Petitioners did not list the Helm case as a related matter in answer to question number eleven, even though both cases are the same parties and counsel and seek the same ultimate relief.
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rescind and not enforce its temporary mask mandate.4 Nine of the
Petitioners seeking mandamus relief herein—Katie Lewandowski, Gregory
Adame, Heather Wallace, Gary Desjardins, Michelle Petty, Taran Helm, Jeff
Sellers, Sean Collins, and Tia Bess—are also Plaintiffs in the federal action
seeking a preliminary injunction to accomplish the same result as this
extraordinary writ action is attempting. Petitioners should not be permitted
to forum shop and the Petition should be dismissed or stayed pending
resolution of the federal litigation.
In Robeson v. Melton, 52 So. 3d 676, 679 (Fla. 4th DCA 2009), the
Fourth District Court of Appeal upheld the state court’s decision to stay a
subsequently filed action when a substantially similar action was already
pending in federal court. See also Beckford v. General Motors Corp., 919
So. 2d 612, 613 (Fla. 3d DCA 2006) (“It is well-settled that when a previously
filed federal action is pending between substantially the same parties on
substantially the same issues, a subsequently filed state action should be
4 It is also interesting to note that while a “Notice of Demand; Cease and Desist” letter sent to counsel representing Alachua County’s School Board is part of the Appendix to the Petition (at page 11), a similar letter sent to counsel for the DCSB, by the same counsel in the Helm case, is not part of the Appendix. That letter, referred to on page 12 of the Petition, is included in Respondent’s Appendix as “Resp. 3.” It shows that the same counsel was anticipating filing duplicative litigation even while pursuing the same relief in federal court.
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stayed pending disposition of the federal action.”). The same is true here.
Petitioners’ counsel already filed a lawsuit over a month ago on behalf of the
same parents seeking the same relief—an order declaring the DCSB’s mask
mandate null and void and ordering it not to enforce the temporary policy. In
that pending federal action, Petitioners’ counsel filed on September 20, 2021
a motion for preliminary injunction seeking an injunction against the DCSB
forbidding it to enforce its temporary mask mandate—the same relief being
sought here. A hearing on this motion is only a week away as of the filing of
this Response.
The Florida Supreme Court long ago held that “‘[w]here two actions are
pending between the same parties involving the same state of facts and
aiming to accomplish substantially the same result, the court may stay
proceedings in the latter action until the other shall have been heard and
decided and the same rule applies where the prior action is pending on
appeal.’” Solomon v. Gordon, 4 So. 2d 710, 711 (1941) (citation omitted;
emphasis added). Importantly, a stay does not require complete identity of
both the parties and the causes of action, but rather only a substantial
similarity of the parties and actions is required. See Sauder v. Rayman, 800
So. 2d 355, 358 (Fla. 4th DCA 2001); Polaris Pub. Income Funds v.
Einhorn, 625 So.2d 128, 129 (Fla. 3d DCA 1993). In fact, if the two cases
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“involve a single set of facts” and the prior case will resolve “many of the
issues involved in the subsequently filed case,” then the subsequent case
should be stayed. In re Guardianship of Morrison, 972 So. 2d 905, 909-10
(Fla. 2d DCA 2007), quoting Fla. Crushed Stone Co. v. Travelers Indem. Co.,
632 So. 2d 217, 220 (Fla. 5th DCA 1994). Moreover, it is “an abuse of
discretion to refuse to stay a subsequently filed state court action in favor of
a previously filed federal action which involves the same parties and the
same or substantially similar issues.” Fla. Crushed Stone Co., 632 So. 2d at
220.
Here, if this Court does not stay or dismiss this subsequent state court
action, it is possible that the court’s concern in Robeson will come to pass—
the two courts could issue inconsistent orders in these duplicative cases.
See Robeson, 52 So. 3d at 679. Thus, the federal court, as the first to have
jurisdiction over the validity and enforceability of the temporary mask
mandate, should rule first. Petitioners should not be permitted to forum shop
by filing actions in different courts seeking the same result. See id. at 677-
78. This Court should stay or dismiss the Petition.
E. The Requirements for the Extraordinary Writ of Mandamus are not Satisfied. Even if a challenge to the temporary mask mandate was not already
before another court, there is no basis for an original action in this Court
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seeking extraordinary mandamus relief directed at local officials. In order for
the Court to issue the extraordinary writ of mandamus, Petitioners must
establish “that [they have] a clear legal right to the performance of a clear
legal duty by a public officer and that [they have] no other legal remedies
available to [them].” RHS Corp. v. City of Boynton Beach, 736 So. 2d 1211,
1213 (Fla. 4th DCA 1999), citing Hatten v. State, 561 So. 2d 562, 563 (Fla.
1990) (internal citations omitted). Here, even putting aside that any petition
for relief should have been filed in the circuit court, mandamus should not lie
for a number of reasons.
1. Petitioners have another legal remedy—the federal lawsuit.
First, extraordinary mandamus relief is not available if the petitioner
has another adequate remedy. See Conner v. Moran, 278 So. 3d 790 (Fla.
1st DCA 2019); Point Conversions, LLC v. Pfeffer & Martin Holdings, LLC,
2020 WL 2048064 (Fla. 3d DCA 2020). Here, Petitioners obviously have
another adequate remedy—they are seeking the same relief in a federal
court lawsuit with a hearing one week away. Mandamus relief is therefore
not available and the Court should deny the Petition.
2. There is no clear, established right to mandamus relief.
Second, the Petition seeks a writ of mandamus to compel the
performance of an act that the DCSB does not have a truly ministerial duty
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to perform. Mandamus is the common law remedy to enforce an established
legal right by compelling a public officer or agency to perform a purely
ministerial duty required by law. See Pleus v. Crist, 14 So. 3d 941, 945 (Fla.
2009); Polley v. Gardner, 98 So. 3d 648, 649 (Fla. 1st DCA 2012).
A complaint for writ of mandamus must show a violation of a clear legal
right and corresponding breach of an indisputable duty. See Hoever v.
Florida Dep’t of Corr., 156 So. 3d 543, 544 (Fla. 1st DCA 2015). “The legal
duty must be ministerial and not discretionary. A ministerial duty or act is
one “where there is no room for the exercise of discretion, and the
performance being required is directed by law.’” Polley, 98 So. 3d at 649,
quoting Town of Manalapan v. Rechler, 674 So.2d 789,790 (Fla. 4th DCA
1996). Importantly, mandamus may be used “only to enforce a right already
clearly and certainly established in the law,” and may not be used to litigate
the existence of, or entitlement to, the right. See Florida League of Cities v.
Smith, 607 So. 2d 397,400-01 (Fla. 1992); Miami-Dade Bd. of Cty. Comm’rs
v. An Accountable Miami-Dade, 208 So. 3d 724, 731 (Fla. 3d DCA 2016).
Here, there is no clear, established or ministerial legal duty subject to
mandamus relief. Plaintiffs argue that school boards cannot challenge the
validity of the Florida DOH’s Emergency Rule 64DER21-15 under the
doctrine of “public official standing.” Pet. at 1. In other words, the State
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agency sets the law by administrative rule and the local boards can do
nothing about it. This is incorrect, and in fact, the prior DOH Rule was
challenged by five Florida school districts.5 Then, on or about October 6,
2021, the school boards of Miami-Dade, Leon, Duval, Orange, Broward and
Alachua counties jointly filed a Petition to Determine Invalidity of Department
of Health Emergency Rule 64DER21-15. App., Resp. 4 (petition exhibits
omitted). On October 8, 2021, the date of this Response, the DOAH
Administrative Law Judge entered an order and pre-hearing instructions,
expediting discovery and setting a final hearing within fourteen days. App.,
Resp. 3.
The school boards argue that the DOH does not have rulemaking
authority to protect parental rights and has no statutory basis to enact the
current Emergency Rule, and thus the Rule is an “invalid exercise of
delegated legislative authority” because it is an “action that goes beyond the
powers, functions, and duties delegated by the Legislature” under section
120.52(8), Florida Statutes. App., Resp. 4 at ⁋ 64. Moreover, the boards
5 See https://health.wusf.usf.edu/health-news-florida/2021-09-08/alachua-broward-orange-school-districts-challenge-state-health-dept-mask-rule Miami-Dade County School Board and Leon County School Board also filed a rule challenge at the Division of Administrative Hearings, that was consolidated with the challenge brought by Alachua, Broward and Orange County School Boards.
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argue that the DOH did not follow the proper rulemaking procedures in
Chapter 120, Florida Statutes, and it has no rulemaking powers under the
Parents’ Bill of Rights. This is a valid Rule challenge that is now before an
administrative law judge.
Therefore, because the Rule’s validity remains unclear, it cannot form
the basis for a “clear, established or ministerial” duty such that a writ of
mandamus can be issued to the DCSB. Contrary to Petitioners’ repeated
assertions that the Emergency Rule cannot be challenged, section
120.56(1)(a), Florida Statutes, provides: “[a]ny person substantially affected
by a rule or a proposed rule may seek an administrative determination of the
invalidity of the rule on the ground that the rule is an invalid exercise of
delegated legislative authority.” Section 120.52(14), defines “person” to
mean “any person described in s. 1.01, any unit of government in or outside
the state, and any agency described in subsection (1)” (emphasis added).
School districts are “units of government” in the state, and therefore are
eligible to challenge rules that substantially affect them.
School Districts are also “educational units” as defined in section
120.52(6), which are included within the section 120.52(1) definition of
“agency.” Mitchell v. Leon Cty Sch. Bd., 591 So. 2d 1032, 1033 (Fla. 1st
DCA 1991). There is no authority for the assertion that school boards, as
public officials and/or units of government, are barred by the public official
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standing doctrine—or by any other law—from challenging a rule that
substantially affects them under section 120.56.6 Indeed, such challenges
are routinely decided by DOAH.7 This makes sense, as the public official
standing doctrine was not intended to allow an executive agency to ignore
any limitations on its rulemaking authority with impunity by issuing rules
aimed solely at units of government and then claim, as the Petitioners do
here, that the units of government have no authority to challenge the rules.
Petitioners also point to the School Board of Collier County v. the
Florida Department of Education, 279 So. 3d 281, 288-89 (Fla. 1st DCA
2019), as support for school boards lacking authority to attack the validity of
6 Petitioners quote Scott v. Francati, 214 So. 3d 742, 749 (Fla. 1st DCA 2017), for the proposition that “this Court’s precedent prevents School Boards from challenging a rule they are required to apply.” Pet. at 12. That quote is nowhere to be found in the Francati case, which is completely inapposite to this case. Francati involved a nursing home resident challenging the constitutionality of a statute limiting claims against nursing homes. See id. Thus, not only is Francati irrelevant here in that it did not even involve school boards, the existence of that quotation is a mystery as the DCSB has so far been unable to locate where the quotation actually came from, assuming it is genuine quote in the first instance. 7 In fact, a DOAH Administrative Law Judge denied the Department of Health’s motion to dismiss the school boards’ petition challenging the previous Emergency Rule, reasoning that the public official standing doctrine did not deprive DOAH of jurisdiction to decide the rule challenge. App., Resp. 5. The Department of Heath sought a writ of prohibition from this Court based on the DOAH judge’s order, but that petition was dismissed after the previous Emergency Rule was repealed and replaced by the new Rule.
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laws that affect them. However, School Board of Collier County is also
inapposite to this case. School Board of Collier County involved a
constitutional challenge to a statute, not an administrative agency rule. See
id. at 286. The public official standing doctrine is grounded in the separation
of powers, recognizing “public officials are obligated to obey the legislature’s
duly enacted statute until the judiciary passes on its constitutionality.” Sch.
Dist. of Escambia Cty. v. Santa Rosa Dunes Owners Ass’n, 274 So. 3d 492,
494 (Fla. 1st DCA 2019). There is no separation of powers concern here
because the DOH Rule—which is not a statute—is being challenged with
DOAH, which is not the judiciary and cannot rule whether a statute is
unconstitutional. See Gulf Pines Memorial Park, Inc., v. Oakland Memorial
Park, Inc., 361 So. 2d 695 (Fla. 1978); Smith v. Willis, 415 So. 2d 1331, 1335
(Fla. 1st DCA 1982).
In short, Florida law provides a process for rules to be enforced and
challenged through DOAH or directly to the district courts of appeal (for
emergency aspects of rules). Importantly, here the Florida Board of
Education had an enforcement hearing on October 7, 2021, against eight
school districts, including Duval County, for which it has found probable
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cause regarding noncompliance with the DOH’s Emergency Rule.8 The
State Board found the counties in violation of the Rule and voted to sanction
the school boards.9 This finding that the districts are in violation of the Rule
can be appealed and ultimately reviewed by the appropriate appellate court.
That would be the time for the district court of appeal to be involved, not
through an original mandamus proceeding.
The Petitioners’ claim that the public official standing doctrine should
apply here is absurd. For example, if the Petitioners’ interpretation of the
public official standing doctrine is correct, then school boards could not even
challenge a DOH rule that the boards must segregate their classes by race.
This Court should deny the Petition.
3. Mandamus relief could subject the DCSB to federal liability.
In addition, should this Court issue a writ of mandamus forcing the
DCSB to rescind its temporary mask mandate, it could cause the DCSB to
violate the Americans with Disabilities Act (“ADA”) and subject it to a federal
lawsuit brought by parents of disabled students. This also demonstrates that
8 See https://www.fldoe.org/policy/state-board-of-edu/meetings/2021/2021-10-07/ 9 See https://www.tallahassee.com/story/news/local/state/2021/10/07/leon-duval-brevard-florida-school-districts-punished-board-education-mask-mandates/6018628001/
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the mask mandate issue is far from clearly established, indisputable law.
Petitioners are really asking this Court to issue the writ to order the DCSB to
make a discretionary decision, not a ministerial one.
Several federal courts have in recent weeks struck down state bans on
mask mandates, siding with parents who sued under the ADA to allow their
disabled students access to public schools where masks are required during
the COVID-19 pandemic and during an upswing in infections of the new
Delta variant of the virus. In Miranda v. Alexander, 2021 WL 4352328 *7
(M.D. La. 2021), the district court found that an alleged right not to wear a
mask does not invoke any constitutional right, nor does wearing a mask
impede a child’s right to an education. See id. at *4 (citing numerous cases).
As such, the right not to wear a mask is far from clearly established. On the
same day, a district court in Tennessee granted injunctive relief to a group
of parents and students under the ADA and the Rehabilitation Act, finding
that as disabled students face severe risks for injury or death as a result of
contracting COVID-19, the school board could not refuse to enforce a
previous mask mandate, and the Governor could not allow parents to opt out
of the school board’s mask mandate. See S.B., by and through M.B., et al.
v. Lee, 2021 WL 4346232 *28 (E.D. Tenn. 2021); see also Arc of Iowa v.
Reynolds, 2021 WL 4166728 *12 (enjoining enforcement of Iowa’s mask
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mandate ban was causing irreparable harm to disabled students); Disability
Rights South Carolina v. McMaster, 2021 WL 4444841 (D.S.C. 2021)
(enjoining state’s ban on mask mandates as denying disabled students
meaningful access to education).
In S.B., the district court cited extensive expert testimony and studies
demonstrating that mask wearing is essential to prevent the spread of
COVID-19 in schools. See S.B., 2021 WL 4346232 at *15 (emphasis in
original); Arc of Iowa, 2021 WL 4166728 at *8-9 (reviewing data and stating
that it “overwhelmingly supports” universal masking for all students, staff and
teachers); Disability Rights South Carolina, 2021 WL 4444841 at *6 (“…the
benefits of masking significantly exceed the costs”). The S.B. court further
recognized that, according to a study from Duke University, “when all
students inside a school are wearing masks, only one out of every 3,000
students contracts COVID-19.” S.B., 2021 WL 4346232 at *15.
In other words, particularly in light of the highly transmissible Delta
variant, masks are essential to stopping the spread of the virus. See id. at
*16-*17. Moreover, “very few” conditions “would preclude a child from
wearing a mask and needing an exemption.” Id. at *21 (internal citations
omitted); Arc of Iowa, 2021 WL 4166728 at *8 (“data shows that mask
wearing has no significant health effects for wearers”) (citation omitted).
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Here, should this Court force the DCSB to rescind its mask mandate,
it could be forcing the DCSB to violate the ADA and immediately subject it,
and the DOH and the Governor, to federal lawsuits from parents of disabled
students who are at a severe risk of injury or death from COVID-19. In fact,
this has already happened, as Respondent Alachua County School Board,
along with the Governor and Department of Education, are being sued by
parents of disabled children in the United States District Court for the
Southern District of Florida. See Hayes v. DeSantis, 2021 WL 4236698 (S.D.
Fla. 2021).
The bottom line is that masks work, and they are essential for some
students to have access to public schools. This Court should not force the
DCSB into potential liability under federal law. At the very least, this
demonstrates that mandamus is inappropriate because Petitioners are
seeking the writ to order the performance of a discretionary act, not a
ministerial one based on clearly established, indisputable law.
Given that there is no clearly established law to support the issuance
of an extraordinary writ of mandamus, and no clear, indisputable ministerial
duty to act on clearly established law, the Petition should be denied.
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F. Conclusion.
Mandamus relief should not be granted against the DCSB because the
Petition should have been filed in circuit court and the Petitioners do not
allege standing. Moreover, the act Petitioners are seeking to compel is not
ministerial. The validity of the DOH Emergency Rule upon which this action
is premised is the subject of a pending rule challenge in DOAH, a process
that is expedited and will proceed with a fully developed evidentiary record,
as opposed to no record in this extraordinary writ proceeding. The DOAH
proceeding, along with the pending federal court action against the DCSB,
should be allowed to play out.
In short, issuing a writ of mandamus herein would be a radical
departure from mandamus jurisprudence in Florida. It would transform what
is supposed to be an extraordinary writ into an ordinary one, and
concomitantly transform district courts of appeal into courts of first resort for
other forum-shopping litigants. This Court should deny the Petition, or
alternatively, stay this action.
Respectfully submitted,
/s/ Craig D. Feiser Jon R. Phillips (FBN 273813) Deputy General Counsel Craig D. Feiser (FBN 164593) Assistant General Counsel James E. Millard (FBN 047358) Assistant General Counsel
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City of Jacksonville Office of General Counsel 117 West Duval Street, Suite 480 Jacksonville, FL 32202 (904) 255-5100 (904) 255-5120 (facsimile) [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected] Counsel for Respondents, Duval County School Board, Superintendent Diana Greene
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 8th day of October, 2021, a true and
correct copy of the foregoing has been furnished by electronic mail upon
counsel of record for all parties in the above-captioned matter.
/s/ Craig D. Feiser Counsel for Respondents
CERTIFICATE OF COMPLIANCE
I HEREBY CERTIFY that this response complies with the font
requirements of Florida Rule of Appellate Procedure 9.045 and that it is in
Arial 14-point font.
/s/ Craig D. Feiser