Filing # 134403679 E-Filed 09/10/2021 09:07:45 PM

IN THE FIRST DISTRICT COURT OF APPEAL

OF THE STATE OF FLORIDA

GOVERNOR RON DESANTIS, in his Case No.: 1D21-2685

official capacity as Governor of the L.T. Case No.: 2021-CA-
State of Florida; RICHARD 001382
CORCORAN, in his official capacity as
Florida Commissioner of Education;
FLORIDA DEPARTMENT OF
EDUCATION; and FLORIDA BOARD
OF EDUCATION,

Defendants/Appellants,

v.

ALLISON SCOTT, individually and on

behalf of W.S., a minor; LESLEY
ABRAVANEL and MAGNUS
ANDERSSON, individually and on
behalf of S.A. and A.A., minors;
KRISTEN THOMPSON, individually
and on behalf of P.T., a minor; AMY
NELL, individually and on behalf of
O.S., a minor; DAMARIS ALLEN,
individually and on behalf E. A., a minor;
PATIENCE BURKE, individually and on
behalf of C.B., a minor; and PEYTON
DONALD and TRACY DONALD,
individually and on behalf of A.D., M.D.,
J.D., and L.D., minors,

Plaintiffs/Appellees.
_______________________________/

APPELLEES’ SUGGESTION THAT ORDER BE CERTIFIED AS

REQUIRING IMMEDIATE RESOLUTION BY THE
FLORIDA SUPREME COURT

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 Plaintiffs/Appellees, LESLEY ABRAVANEL and MAGNUS

ANDERSSON, individually and on behalf of S.A. and A.A., minors; KRISTEN

THOMPSON, individually and on behalf of P.T., a minor; AMY NELL,

individually and on behalf of O.S., a minor; and DAMARIS ALLEN,

individually and on behalf of E.A., a minor (collectively “Appellees”), move

this Court to certify the Order below as requiring immediate resolution by the

Florida Supreme Court. See Fla. R. App. P. 9.125.

ARGUMENT

This case concerns Executive Order 21-175 (“Executive Order”),

entitled “Ensuring Parents’ Freedom to Choose—Masks in Schools.” On

September 2, 2021, the trial court issued its Final Judgment (“Order”), which

incorporated by reference the transcript of the trial court’s oral ruling of

August 27, 2021, as Exhibit A to the Order.1

Florida’s Constitution allows pass-through jurisdiction in cases that are

“certified to require immediate resolution by the supreme court.” Art. V, §

3(b)(5), Fla. Const. Pursuant to Article V, § 3(b)(5) of the Florida Constitution,

the Florida Supreme Court

may review any order or judgment of a trial court

certified by the district court of appeal in which an

1
Due to a clerical error, the transcript attached to the Order was incomplete.
On September 8, 2021, the trial court filed a Notice of Filing a Complete Copy
of Exhibit “A” to the Final Judgment.

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 appeal is pending to be of great public importance,
or to have a great effect on the proper administration
of justice throughout the state, and certified to require
immediate resolution by the supreme court.

An order requires immediate resolution by the supreme court when the issue

pending in the district court is an issue of great public importance or when

the issue will have a great effect on the proper administration of justice

throughout the state. See State v. Adkins, 71 So. 3d 184, 186 (Fla. 2d DCA

2011); Fla. R. App. P. 9.125. This appeal requires immediate resolution by

the Florida Supreme Court because the underlying issues are of great public

importance and will have a great effect on the proper administration of justice

throughout the State of Florida.

First, this case presents issues of great public importance as to the

Executive Order. The Executive Order precludes local school districts from

enacting mask mandates without parental opt-out and penalizes “non-

compliant” school boards by threatening to withhold state funds for violating

rules or agency action relative to the Executive Order. Core to these issues

are the enforcement of the Executive Order, the right of county school boards

to govern their schools, and the public health concerns relative to masking

of students to prevent the spread of the dangerous COVID-19 Delta variant.

Children have contracted COVID-19 at a rate ten times that of last year

at this time. Demonstrably less is being done to protect those in schools this

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year as compared to last year. The effect of the Executive Order renders

schools unsafe by leaving school boards without the means to enact safety

procedures to mitigate the spread of COVID-19, including the Delta variant.

Florida remains the nation’s hotspot for the present wave of the

COVID-19 Delta variant. Present COVID-19 cases and hospitalizations are

at the highest point in the history of this pandemic in Florida. Unequivocally,

doctors and medical experts opine that the Delta variant is vastly different

from the original COVID-19 strain and the Alpha variant, including:

transmissibility that mirrors chicken pox, a viral load more than 1,000 times

the original COVID-19 strain, and vulnerability to the childhood population.

Hospitals throughout the state are nearing capacity for COVID-19 patients.

Neither vaccinated individuals nor children are immune from infection by or

transmission of the COVID-19 Delta variant. Importantly, children under the

age of twelve are not eligible for vaccination. Thus, the ability to mask in

schools constitutes an important mitigation measure to prevent children from

contracting COVID-19.

Both the Centers for Disease Control and the American Academy of

Pediatrics (“AAP”) recommend mandatory masking in schools to arrest the

spread of COVID-19. No child has died from the requirement to wear a mask

while indoors at school; however, children have died from contracting

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COVID-19. Undoubtedly, this Executive Order, which directly affects the

health of Appellees’ children, as well as all the children of Florida, constitutes

an issue of great public importance.

Second, the issue requires immediate resolution by the supreme court

because the school year is already underway with students attending brick-

and-mortar schools. In its Summary of Findings (data available as of

September 2, 2021), the AAP stated that for the week ending on September

2, children represented 26.8% of the reported weekly COVID-19 cases.

https://www.aap.org/en/pages/2019-novel-coronavirus-covid-19-

infections/children-and-covid-19-state-level-data-report/. “About 252,000

cases were added the past week, the largest number of child cases in a week

since the pandemic began.” Id.

Without a definitive and immediate resolution by the Florida Supreme

Court, local school boards, students, teachers, and parents will be mired in

uncertainty. Local school boards require certainty to be able to impose mask

mandates with no parental opt-out without being subject to punishment by

Appellants. In the meantime, Appellees’ children are faced with the

increased risk of exposure to the Delta variant in attending school in-person

with no reasonable alternative and are being subjected to continuing

constitutional violations.

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 In the first week of school, across Florida, cases of COVID-19 occurred

at a rate ten times higher than at the same time last year (at which time

students were required to wear masks). Both children and adults are sick

and dying as a result of COVID-19. Thus, there is a palpable urgency for

immediate review by the Florida Supreme Court in this matter.

Third, this issue will have a great effect on the proper administration of

justice throughout the state because as brick-and-mortar schools are open

and in session, each local district is attempting to discern whether it can

lawfully enact mask mandates with no parental opt-out without punishment

by Appellants. Presently, Appellants are actively trying to punish local school

districts which they claim are failing to comply with the Executive Order and

the Parents’ Bill of Rights. Parents suing in different districts may end up with

differing and conflicting results regarding similar issues as to the effect,

validly, and constitutionality of the Executive Order and the policies it caused

to be generated as to local school districts’ ability to impose mask mandates.

Therefore, it is most appropriate for the supreme court to address these

issues of statewide import and if the Executive Order can be enforced.

Accordingly, this appeal concerns an issue of great public importance

and will have a great effect on the proper administration of justice throughout

the state as it relates to the Executive Order, Appellants’ ability to enforce

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the Executive Order, the ability of local school boards to require mask

mandates with no parental opt-out, and ultimately, the health and well-being

of the children and parents of the State of Florida. All Florida citizens would

be the beneficiary of pass-through jurisdiction given the widespread nature

of this public health calamity and continuing pandemic.

WHEREFORE, Appellees respectfully request the Court certify the trial

court’s Order for immediate resolution by the Florida Supreme Court.

ATTORNEY CERTIFICATION

We express a belief, based on a reasoned and studied professional

judgment, that this appeal requires immediate resolution by the supreme

court and (a) is of great public importance, or (b) will have a great effect on

the administration of justice throughout the state.

/s/ Charles R. Gallagher III

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 10th day of September, 2021, the

foregoing was electronically filed with the Clerk of the Courts by using the

Florida Courts E-Filing Portal, which will send a notice of electronic filing to

the following: Michael A. Abel, Esquire, Daniel K. Bean, Esquire,

Jacqueline A. Van Laningham, Esquire, and Jared J. Burns, Esquire,

ABEL BEAN LAW, P.A., 100 N. Laura Street, Suite 501, Jacksonville, FL

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32202, (mabel@abelbeanlaw.com; dbean@abelbeanlaw.com;

jvanlaningham@abelbeanlaw.com; jburns@abelbeanlaw.com), Counsel

for Appellants.

/s/ Charles R. Gallagher III

CHARLES R. GALLAGHER III, ESQ.
Florida Bar No. 0510041
E-Mail: crg@attorneyoffices.org
ERIKA T. MARIZ, ESQ.
Florida Bar No. 0040106
Gallagher & Associates Law Firm, P.A.
5720 Central Avenue
St. Petersburg, FL 33707
Telephone: (727) 344-5297
Primary E-Mail:
service@attorneyoffices.org
Secondary E-Mail:
fax@attorneyoffices.org
Co-Counsel for Appellees

/s/ Joshua Sheridan

JOSHUA G. SHERIDAN, ESQ.
Florida Bar No. 615536
Busciglio Sheridan Schoeb, P.A.
3302 N. Tampa Street
Tampa, FL 33603
Phone: 813-225-2695
Fax: 813-868-3695
E-mail: josh@mytampafirm.com
Co-Counsel for Appellees

/s/ Elizabeth D. Burchell

ELIZABETH D. BURCHELL, ESQ.
Florida Bar Number: 1010372
Busciglio Sheridan Schoeb

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 3302 North Tampa Street
Tampa, Florida 33603
Telephone: (813) 225-2695
Facsimile: (813) 868-3695
E-mail: elizabeth@mytampafirm.com
Co-Counsel for Appellees

/s/ Martha E. Aristizabal

MARTHA E. ARISTIZABAL, ESQ.
Florida Bar No.: 1003190
ARISTILAW, PLLC
1408 W. Swann Ave.
Tampa, FL 33606
(813) 333-6994
E-mail: Martha@AristiLaw.com
Co-Counsel for Appellees

/s/ Craig Whisenhunt

CRAIG A. WHISENHUNT, ESQ.
Florida Bar No: 081745
Ripley Whisenhunt, PLLC
8130 66th Street North, Suite 3
Pinellas Park, FL 33781
Phone: (727) 256-1660
Fax: (855) 215-3746
E-mail: craig@rwrlawfirm.com
Co-Counsel for Appellees

/s/ Maria Pitelis

MARIA G. PITELIS, ESQ.
Florida Bar No. 605212
Wagstaff & Pitelis, P.A.
161 14th St. N. W.
Largo, FL 33770
Phone: (727) 584-8182
Fax: (727) 581-0249
E-mail: maria@wagstafflawoffice.com
Co-Counsel for Appellees

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 /s/ Mary Lou Miller Wagstaff
MARY LOU MILLER WAGSTAFF, ESQ.
Florida Bar No. 129986
Wagstaff & Pitelis, P.A.
161 14th St. N. W.
Largo, FL 33770
Phone: (727) 584-8182
Fax: (727) 581-0249
E-mail: marylou@wagstafflawoffice.com
Co-Counsel for Appellees

/s/ Erin Woolums

ERIN E. WOOLUMS, ESQ.
Florida Bar No. 670804
Barnett Woolums P.A.
6501 1st Ave. South
St Petersburg, FL 33707
Phone: 727-525-0200
Fax: 727-525-0211
E-mail: woolums@barnettwoolums.com
Co-Counsel for Appellees

/s/ Erin Barnett

ERIN K. BARNETT, ESQ.
Florida Bar No. 568961
Barnett Woolums P.A.
6501 1st Ave. South
St Petersburg, FL 33707
Phone: 727-525-0200
Fax: 727-525-0211
E-mail: service@barnettwoolums.com
Barnett@barnettwoolums.com
Co-Counsel for Appellees

/s/ Tracey Sticco

TRACEY L. STICCO, ESQ.
Florida Bar No. 0042513

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 4202 E. Fowler Avenue, SOC 107
Tampa, FL 33620
Phone: 352-262-0446
E-mail: tsticco@yahoo.com
Co-Counsel for Appellees

/s/ Natalie Paskiewicz

NATALIE PASKIEWICZ, ESQ.
Florida Bar No. 99853
Paz Mediation
PO Box 7233
St. Petersburg, FL 33734
Telephone: (727) 827-7705
E-mail: natalie@pazmediation.com
Co-Counsel for Appellees

/s/ Charles W. Dodson

CHARLES W. DODSON, ESQ.
Florida Bar No. 228931
215 Delta Court
Tallahassee, FL 32303
Telephone: (850) 508-6348
E-Mail: chasdod@aol.com
Co-Counsel for Appellees

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