Filing # 134931072 E-Filed 09/20/2021 04:01:26 PM

IN THE FIRST DISTRICT COURT OF APPEAL

FOR THE STATE OF FLORIDA

GOVERNOR RON DESANTIS, in his

Official capacity as Governor of the State
of Florida; RICHARD CORCORAN, in his
official capacity as Florida Commissioner
of Education; FLORIDA DEPARTMENT
OF EDUCATION; and FLORIDA BOARD
OF EDUCATION,

Defendants/Appellants,

v. Case No. 1D21-2685

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 of 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,

___________________________________________/

APPELLANTS’ RESPONSE IN OPPOSITION TO APPELLEES’

SUGGESTION THAT ORDER BE CERTIFIED AS REQUIRING
IMMEDIATE RESOLUTION BY THE FLORIDA SUPREME COURT

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 This Court regularly decides high-profile cases that are time

sensitive. Significant cases with statewide interest are regularly

disposed of at the district court. This case is no different. The normal

appellate process should run its course and this Court, which is fully

equipped to timely decide difficult cases, should decide this appeal.

Appellants Governor Ron DeSantis, in his official capacity as

Governor of the State of Florida, Richard Corcoran, in his official

capacity as Florida Commissioner of Education, the Florida

Department of Education, and the Florida Board of Education,

submit this Response in Opposition to Appellees’ Suggestion that

Order be Certified as Requiring Immediate Resolution by the Florida

Supreme Court in accordance with Florida Rule of Appellate

Procedure 9.125(d) and respectfully request that the Court decline to

certify this case for immediate resolution by the Florida Supreme

Court.

INTRODUCTION

On September 10, 2021, this Court entered an order reinstating

the automatic stay imposed by Florida Rule of Appellate Procedure

9.310(b)(2), advising that it has “serious doubts about standing,

jurisdiction, and other threshold matters . . . [which] significantly

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militate against the likelihood of the appellees’ ultimate success in

this appeal.” Just hours after the Court issued the Order reinstating

the automatic stay, Appellees filed their Suggestion, requesting the

Court utilize an extraordinarily rare mechanism, referred to as “pass-

through jurisdiction.” Under this rarely-utilized procedural device, an

order or judgment of the trial court is “certified by the district court

of appeal . . . 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.” Art.

V, § 3(b)(5), Fla. Const.; see also Fla. R. App. P. 9.125(a).

However, pass-through jurisdiction should not be utilized to

avoid the normal appellate process just because a party receives an

adverse ruling in this Court. See R.C. v. Dep’t of Agric. & Consumer

Servs., Div. of Licensing, No. 1D19-2797, 2021 WL 3508357, at *1

(Fla. 1st DCA Aug. 6, 2021) (Long, J., concurring) (certification

should not be used to “‘provid[e] a losing party the opportunity to

target the forum,’ or relitigate a case just because they do not like the

Court’s decision.”) (quoting Univ. of Miami v. Wilson, 948 So. 2d 774,

792 (Fla. 3d DCA 2006) (Shephard, J., concurring)).

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 The Florida Supreme Court has expressly admonished district

courts “to discharge their responsibility to initially address the

questions presented in a given case.” Carawan v. State, 515 So. 2d

161, 162 n.1 (Fla. 1987). Further, the Florida Supreme Court

cautioned that “Article V, section 3(b)(5) is not to be used as a device

for avoiding difficult issues by passing them through to this Court.

The constitution confines this provision to those matters that ‘require

immediate resolution by the supreme court.’” Id. Moreover, “all

issues, including those regarding statutory construction and

constitutionality, should—where at all possible—first be finally

litigated in the trial court and then initially reviewed by the appellate

court.” Fla. Dep’t of Agric. & Consumer Servs. v. Haire, 824 So. 2d

167, 168 (Fla. 2002) (Pariente, J., concurring). Consistent with this

principle, the limited body of case law concerning pass-through

jurisdiction demonstrates that “certification has almost always been

withheld unless a decision from our supreme court was deemed

necessary within weeks or a few months of certification.” League of

Women Voters of Florida v. Detzner, 178 So. 3d 6, 9 (Fla. 1st DCA

2014) (Makar, J., dissenting) (compiling cases).

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 Appellees fail to demonstrate why the trial court’s Final

Judgment should be certified directly to the Florida Supreme Court.

Unlike most cases certifying resolution by the Florida Supreme

Court, there is no impending deadline—such as an upcoming election

or ballot initiative—that could render this case moot. Contrary to

Appellees’ implication that this Court will only delay the final

resolution of this case, this Court’s decision will aid the process—and

potentially fully resolve the case.

Appellees’ Suggestion provides little substantive analysis of the

case law of both this Court and the Florida Supreme Court regarding

pass-through jurisdiction—all which stress that bypassing the

normal appellate process is a mechanism that should be used

sparingly and only in the most compelling circumstances. In fact, the

decision to certify in the sole case relied upon by Appellees, State v.

Adkins, 71 So. 3d 184 (Fla. 2d DCA 2011), was rejected by this Court

in Flagg v. State, 74. So. 3d 138 (Fla. 1st DCA 2011). Additionally,

Appellees did not explain why expedited briefing would not

sufficiently resolve Appellees’ concerns. District courts, which are

intended to be courts of last resort for most litigants, regularly

determine matters that require swift resolution. Ultimately, Appellees

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fail to demonstrate that the trial court had jurisdiction, that the

issues raised are of great public importance or have a great effect on

the proper administration of justice throughout the state, and that

the circumstances require the highly unusual step of bypassing this

Court’s review. Certification to the Florida Supreme Court here is

neither warranted nor advised.

ARGUMENT

This Court articulated a three-prong test to determine whether

an appeal is appropriate for certification to the Florida Supreme

Court:

[W]hether (1) the order or judgment is appealable; (2) the

issues raised “are of great public importance” or are likely
to “have a great effect on the proper administration of
justice throughout the state”; and (3) circumstances exist
which require that the supreme court immediately resolve
the issues, rather than permitting the normal appellate
process to run its course.

Harris, 824 So. 2d at 246–47. Appellees do not satisfy any prong of

this test, and therefore, the Suggestion should be denied.

A. The order or judgment is not appealable.

To invoke pass-through jurisdiction, the order or judgment of

the trial court must be appealable. “Pass-through jurisdiction is

available only in cases where the lower tribunal had jurisdiction over

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the case from the beginning.” Tracy S. Carlin, The Ins and Outs of

Pass-Through Jurisdiction, Fla. B.J., December 2006, at 42, 43; see

also Kainen v. Harris, 769 So. 2d 1029, 1038 (Wells, C.J., concurring

in result only); Gore v. Harris, No. 00-2808, 2000 WL 1770382, at *1

(Fla. 1st DCA Dec. 1, 2000) (denying suggestion for certification as

moot when order on appeal was not rendered in accordance with Rule

9.020(h)).

The lack of jurisdiction below weighs against certification. This

Court has already expressed “serious doubts about standing,

jurisdiction, and other threshold matters.” September 10, 2021

Order. Because pass-through jurisdiction is exercised only in the

most compelling of circumstances, the normal appellate process

should not be bypassed when issues such as standing and the trial

court’s subject matter jurisdiction form a substantial basis for the

appeal—as is the case here. Such matters can and should be

addressed by this Court first. Indeed, this Court’s written opinion

would benefit the Florida Supreme Court if it were to ultimately

review the threshold matters affecting the trial court’s jurisdiction.

See Haire, 824 So. 2d at 168-69 (Pariente, J., concurring).

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 B. Appellees have not shown that the issues raised in this
case are “of great public importance” and are likely to “have a
great effect on the proper administration of justice throughout
the state.”

The second prong requires this Court to determine whether the

issues raised “are of great public importance” or are likely to “have a

great effect on the proper administration of justice throughout the

state.” Harris, 824 So. 2d at 246–47. Appellants address each aspect

of this prong in turn.

i. The issues presented are not of great public

importance.

Appellants acknowledge that this case presents matters of great

public interest, but Appellees have not shown that the issues

presented in this case rise to the level of “great public importance.”

There is a difference between the ongoing debate in both medical

communities and society at large regarding COVID-19 and effective

mitigation efforts versus the constitutional and statutory authority of

the Governor. The former is certainly a matter of great public interest,

and it is the focus of Appellees’ Suggestion. The latter, however, is

the central issue on appeal. The Governor’s exercise of his

constitutional and statutory authority is ultimately a straightforward

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application of longstanding legal principles. See R.C., 2021 WL

3508357, at *2 (Long, J., concurring).

In R.C., Judge Long’s concurrence distinguished Rule 9.331,

concerning en banc review, with pass-through certification. Id.

Although this Court had taken R.C. en banc, Judge Long stated that

the case was not of “great public importance” because the court’s

opinion was based on “longstanding legal principles,” did not

“address novel issues in the law,” and only required an executive

agency to “to comply with the plain language of [a] statute.” Id. The

same is true here. Appellants’ constitutional and statutory authority

is well-settled. Like in R.C., the issues here present straightforward

application of statutes based on their plain language. Thus, the Final

Judgment on appeal does not present a question of great public

importance that necessitates certification. See id.

Moreover, at a basic level, every case has “great importance” to

individuals affected by the outcome, and cases involving

governmental policy are likely to have more of those individuals. But

as Judge Long explained, it is not the case that must present great

public importance, it is the question on appeal. Id. Here, the legal

questions involve straightforward application of longstanding legal

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principles that are no more important to the public than any other

appeal concerning a challenged governmental policy or action. Every

case attacking government policy is not transformed into one that

should bypass the normal appellate process purely because it is

important to many people.

ii. The issues on appeal do not have a great effect on the

proper administration of justice throughout the state.

Appellees contend that the issues presented will “have a great

effect on the proper administration of justice throughout the state

because . . . each local district is attempting to discern whether it can

lawfully enact mask mandates with no parental opt-out without

punishment by Appellants.” Suggestion at 6. Further, according to

Appellees: “Parents suing in different districts may end up with

differing and conflicting results regarding similar issues as to the

effect, validity, and constitutionality of the Executive order and the

policies it caused to be generated as to local school districts’ ability

to impose mask mandates.” Suggestion, at 6. But these arguments

contain at least two incorrect assumptions: (1) that Appellees possess

the requisite standing to assert these claims; and (2) that the

“uncertainty” of the local school boards regarding the masking

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policies they are permitted to implement will be addressed by this

appeal. Setting these assumptions aside, the totality of the

circumstances demonstrates that allowing this appeal to follow the

normal course would not negatively impact the administration of

justice across the state.

First, each local school board is governed by Department of

Health Emergency Rule 64DER21-12, “Protocols for Controlling

COVID-19 in School Settings.” The Final Judgment has no effect on

the Rule because the Department of Health was not a party to the

underlying lawsuit. Appellee App. at 29. The Rule provides that

students may “wear masks or facial coverings as a mitigation

measure; however, the school must allow for a parent or legal

guardian of the student to opt-out the student from wearing a face

covering or mask.” 64DER21-12(1)(d). Regardless of what this Court

decides, this Rule remains in effect, even though the trial court had

enjoined Appellants from enforcing it. But, because this Court

reinstated the stay, Appellants can enforce this rule pending appeal,

regardless of which court hears it. Thus, there is no “uncertainty”

pending this appeal.

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 Second, Appellees’ argument that additional parent plaintiffs

will file lawsuits based upon the same or substantially similar subject

matter of the instant action is speculative and disregards the

practical realities of our legal system. Appellees have not provided

this Court with any information that would support the assertion

that there is, or will be, a flood of additional parent plaintiffs suing

upon the same or similar subject matter of this lawsuit. Also, the

possibility that an individual, at some unknown future time, may file

a lawsuit that could potentially result in an inconsistent ruling with

this case is not justification for certification. That possibility is

present in practically every lawsuit, and the judicial system has

multiple procedures in place to address those potential

inconsistencies—both from preventing that result at the outset and

on appeal.

Finally, this Court’s opinion in Flagg v. State, 74 So. 3d 138

(Fla. 1st DCA 2011), also supports a finding that the administration

of justice will not be affected by allowing the Court the opportunity

to hear this appeal. The Flagg court disagreed with State v. Adkins,

71 So. 3d 184 (Fla. 2d DCA 2011), the sole case Plaintiffs cite in their

Suggestion. Both cases involved constitutional challenges to Section

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893.13, Florida Statutes, and a federal district court had recently

reached a different result from prior Florida district court decisions

on that statute’s constitutionality. The Second District subsequently

determined that because of the important constitutional question at

issue, which would subject drug prosecutions to great uncertainty

throughout Florida, certification of the appeal was appropriate.

Adkins, 71 So. 3d, at 185-86. In Flagg, this Court found certification

inappropriate, stating:

Although we agree that the uncertainty caused by [the

federal court decision] is affecting the administration of
justice around the state and that an expeditious decision
from the supreme court addressing the constitutionality
of section 893.13 is needed, we do not see any reason not
to reaffirm our view that the statute is constitutional.
Indeed, we believe that a definitive statement from this
court reaffirming the constitutionality of section 893.13
notwithstanding [the federal court decision] will promote
the consistent administration of justice by resolving the
issue for the trial courts . . . .

Flagg, 74 So. 3d at 141.

Here, this Court can provide finality through its decision. In

fact, this Court’s ruling would be binding on all trial courts in Florida

unless and until another district court issues a contrary ruling. See

Shaw v. Shaw, 177 So. 3d 977, 982 (Fla. 2d DCA 2014) (Altenbernd,

J., dissenting); see also Shaw v. Shaw, 151 So. 3d 1228 (Fla. 2014)

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(declining to accept jurisdiction and citing Judge Altenbernd’s

dissent for the reasoning). Unlike the issues in Flagg, which

presented a stronger case for immediate resolution, there are no

conflicting decisions that would cause inconsistency throughout

Florida. The prospect that another case could be appealed and the

appeal could result in a different decision is not a basis for pass-

through jurisdiction; it is a basis for Florida Supreme Court

discretionary review under Florida Rule of Appellate Procedure

9.030(a)(2)(A)(iv).

Here, the Court reinstated the automatic stay afforded to

government entities on appeal. Fla. R. App. P. 9.310(b)(2). “The

purpose of the automatic stay provision triggered when a government

entity or officer appeal an adverse judgment is to accord judicial

deference to governmental decisions.” Fla. Dep’t of Health v. People

United for Med. Marijuana, 250 So. 3d 825, 828 (Fla. 1st DCA 2018).

Just as in Flagg, allowing the normal appellate procedure to proceed

will preserve the status quo. The Governor’s action in issuing

Executive Order 21-175 is presumed constitutional during the

pendency of the appeal. The state agencies affected by this litigation

continue to be free to act pursuant to their respective delegated rule-

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making authority, with those actions subject to challenge in

administrative proceedings. If anything, the Court’s refusal to certify

this appeal to the Florida Supreme Court will promote consistent

administration of justice throughout the state—not hinder it.

C. No circumstances exist which require the Florida

Supreme Court to immediately resolve the issues on appeal, in
deviation of the normal appellate process.

When a case is certified for immediate resolution by the Florida

Supreme Court, a member of this Court has noted that, in effect, the

court bypasses its constitutional authority to review decisions of the

circuit courts, and therefore “it should be rare that [the Court]

consider doing so.” Non-Parties, 150 So. 3d at 235 (Makar, J.,

dissenting) (quoting Haire, 832 So. 2d at 781). Indeed, “the history of

section 3(b)(5) reflects an understanding that it should be invoked

only when the crunch of time is so great that a final decision of our

supreme court must be made now.” League of Women Voters of Fla.

v. Detzner, 178 So. 3d 6, 9 (Fla. 1st DCA 2014) (Makar, J.,

dissenting).

The circumstances presented here do not justify circumventing

Appellants’ constitutional right to have this Court review the trial

court’s Final Judgment. In addition to not meeting the other Harris

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factors, Appellees have not demonstrated that this case requires

“immediate resolution” by the Florida Supreme Court. Art. V, §

3(b)(5), Fla. Const. “[C]ertifications in cases from this Court have

been issued where truly pressing deadlines were weeks or a few

months away.” Detzner, 178 So. 3d at 9 (Makar, J., dissenting).

Unlike the cases with an imminent election deadline, this case

presents no future date by which a final, conclusive determination is

needed.

Appellees also advocate for the untenable position that risk of

exposure to a virus (here, COVID-19) is sufficient to require

“immediate resolution” by the Florida Supreme Court. Suggestion at

5-6. Appellees’ argument lacks any limiting principle and would

result in an abuse of Rule 9.125 because it would justify the

certification of any case concerning COVID-19 or any other pervasive

communicable disease. Dealing with COVID-19 has become a regular

part of everyday life. Individuals must navigate potential exposure to

COVID-19 on a day-to-day basis, along with a plethora of other

infectious diseases. Policy relating to COVID-19 will continue to be

litigated and will rely on traditional legal principles and procedures.

Cf. Haire, 824 So. 2d at 168 (Pariente, J., concurring) (explaining that

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in “cases decided by [the Florida Supreme Court] involving the issue

of citrus canker, . . . jurisdiction in only one of those cases was based

upon pass-though jurisdiction . . . .”).

Appellants note that DeSantis v. Florida Education Association,

306 So. 3d 1202 (2020), which involved similar constitutional,

jurisdictional, and standing concerns, was briefed, argued, and

decided by this Court while Florida was in a state of emergency

regarding the COVID-19 pandemic. That appeal was not certified to

the Florida Supreme Court, either on the Court’s own motion or by

one of the parties, before or after this Court rendered a decision.

Appellees have not provided any basis on which to distinguish the

treatment of this appeal from the Court’s treatment of the appeal of

Florida Education Association—when there might arguably have

been a stronger basis to do so. Cf. Suggestion at 7 (“All Florida

citizens would be the beneficiary of pass-through jurisdiction given

the widespread nature of this public health calamity and continuing

pandemic.”).

Further, there is no reason why Appellees’ concerns could not

be addressed by scheduling this matter for expedited briefing. The

Court is equipped to reach a swift and reasoned resolution of this

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appeal if it determines in its discretion that this should be treated as

a high priority case; indeed, the Court regularly handles matters of

high priority. Similarly, should either party appeal the decision of this

Court, the Florida Supreme Court is equally capable of treating the

case on an expedited basis—and with the added benefit of this

Court’s written opinion.

CONCLUSION

For the foregoing reasons, Appellants respectfully request that

Appellees’ Suggestion that Order be Certified as Requiring Immediate

Resolution by the Florida Supreme Court be denied because the

issues presented on appeal regarding the trial court’s Final Judgment

do not satisfy the stringent standards necessary to justify

certification.

DATED: September 20, 2021.

Respectfully Submitted,

ABEL BEAN LAW, P.A.

By: /s/ Michael A. Abel

Michael A. Abel, Esq.
Florida Bar No. 0075078
Daniel K. Bean, Esq.
Florida Bar No. 0015539
Jacqueline A. Van Laningham, Esq.
Florida Bar No. 1003168

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Jared J. Burns, Esq.
Florida Bar No. 1003415
100 N. Laura St., Ste. 501
Jacksonville, FL 32202
mabel@abelbeanlaw.com
dbean@abelbeanlaw.com
jvanlaningham@abelbeanlaw.com
jburns@abelbeanlaw.com

Attorneys for Appellants,

Governor Ron DeSantis,
Commissioner Richard Corcoran,
Florida Department of Education,
and Florida Board of Education

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 CERTIFICATE OF SERVICE
I certify that a copy of this filing has been provided to all counsel
of record named below by email and via the E-Filing Portal on
September 20, 2021.
Charles R. Gallagher, III, Esq.
Erika T. Mariz, Esq.
Gallagher & Assoc. Law Firm P.A.
5720 Central Ave.
St. Petersburg, FL 33707
crg@attorneyoffices.org
service@attorneyoffices.org
fax@attorneyoffices.org
Co-Counsel for Appellees
Charles W. Dodson, Esq.
215 Delta Court
Tallahassee, FL 32303
chasdod@aol.com
Co-Counsel for Appellees
Joshua G. Sheridan, Esq.
Elizabeth Burchell, Esq.
Busciglio Sheridan Schoeb, P.A.
3302 N. Tampa St.
Tampa, FL 33603
josh@mytampafirm.com
elizabeth@mytampafirm.com
Co-Counsel for Appellees
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Martha E. Aristizabal, Esq.
Aristilaw, PLLC
1408 W. Swann Ave.
Tampa, FL 33606
martha@aristilaw.com
Co-Counsel for Appellees
Craig A. Whisenhunt, Esq
Ripley Whisenhunt, PLLC
8130 66th St. North, Ste. 3
Pinellas Park, FL 33781
Craig@rwrlawfirm.com
Co-Counsel for Appellees
Maria Pitelis, Esq.
Mary Lou Miller Wagstaff, Esq.
Wagstaff & Pitelis, Esq.
161 14th St. NW
Largo, FL 33770
maria@wagstafflawoffice.com
marylou@wagstafflawoffice.com
Co-Counsel for Appellees
Erin E. Woolums, Esq.
Erin K. Barnett, Esq.
Barnett Woolums, P.A.
6501 1st Ave. S
St. Petersburg, FL 33707
woolums@barnettwoolums.com
barnett@barnettwoolums.com
service@barnettwoolums.com

Co-Counsel for Appellees

Tracy Sticco, Esq.

4202 E. Fowler Ave. SOC 107
Tampa, FL 33620
tsticco@yahoo.com

Co-Counsel for Appellees

Natalie L. Paskiewicz, Esq.

Paz Mediation
PO Box 7233
St. Petersburg, FL 33734
natalie@pasmediation.com

Co-Counsel for Appellees

/s/ Michael A. Abel

Attorney

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