IN THE DISTRICT COURT OF APPEAL
                            FIRST DISTRICT, STATE OF FLORIDA

JOANNE McCALL, SENATOR      NOT FINAL UNTIL TIME EXPIRES TO
GERALDINE THOMPSON,         FILE MOTION FOR REHEARING AND
RABBI MERRILL SHAPIRO,      DISPOSITION THEREOF IF FILED
REV. HARRY PARROTT, JR.,
REV. DR. HAROLD BROCUS,     CASE NO. 1D15-2752
FLORIDA EDUCATION
ASSOCIATION, FLORIDA
CONGRESS OF PARENTS AND
TEACHERS, INC., LEAGUE OF
WOMEN VOTERS OF
FLORIDA, INC., AND
FLORIDA STATE
CONFERENCE OF BRANCHES
OF NAACP.

     Appellants,

v.

RICK SCOTT, GOVERNOR OF
FLORIDA, IN HIS OFFICIAL
CAPACITY AS HEAD OF THE
FLORIDA DEPARTMENT OF
REVENUE, ET AL. AND
UMENE PROPHETE ET AL.,

     Appellees.
_____________________________/

Opinion filed August 16, 2016.

An appeal from the Circuit Court for Leon County.
George S. Reynolds, III, Judge.

Ronald G. Meyer, Jennifer S. Blohm, and Lynn C. Hearn of Meyer, Brooks, Demma
and Blohm, P.A., Tallahassee; Pamela L. Cooper and William A. Spillias of Florida
Education Association, Tallahassee; John M. West of Bredhoff & Kaiser, P.L.L.C.,
Washington, D.C.; Alice O’Brien of National Education Association, Washington,
D.C.; David Strom of American Federal of Teachers, Washington, D.C., and Alex
J. Luchenitser of Americans United for Separation of Church and State, Washington,
D.C., for Appellants.

Pamela Jo Bondi, Attorney General, and Rachel Nordby, Deputy Solicitor General,
Tallahassee, for Appellees Rick Scott, Pam Bondi, Jeff Atwater, Adam Putnam, Pam
Stewart, and the Department of Revenue and Education.

Karen D. Walker and Nathan A. Adams IV of Holland & Knight LLP, Tallahassee;
Daniel J. Woodring of Woodring Law Firm, Tallahassee; Howard Coker of Coker,
Schickel, Sorenson, Posgay, Camerlengo & Iracki, Jacksonville; Jay P. Lefkowitz
and Steven J. Menashi of Kirkland & Ellis LLP, New York, NY; Raoul G. Cantero
of White & Case LLP, Miami, for Intervenor Appellees.

Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee, for Amicus
Curiae Black Alliance For Educational Options;



ROWE, J.

      The Florida Education Association, the Florida Congress of Parents and

Teachers, Inc., the League of Women Voters of Florida, Inc., the Florida State

Conference of Branches of the NAACP, a group of parents of children in public

schools, teachers employed by public schools, and religious and community leaders

                                        2
(collectively, Appellants) argue that the Florida Tax Credit Scholarship Program

(FTCSP) is unconstitutional. They filed suit, seeking a declaration that the FTCSP

violates the Florida Constitution by diverting public funds from Florida’s public

schools to religiously affiliated schools and by using taxpayer funds to create a

parallel and non-uniform system of schools. Governor Rick Scott, Attorney General

Pam Bondi, Chief Financial Officer Jeff Atwater, Commissioner of Agriculture

Adam Putnam, Commissioner of Education Pam Stewart, the Florida Department of

Revenue, and the Florida Department of Education (collectively, the State) moved

to dismiss the suit on grounds that Appellants lacked standing to challenge the

FTCSP.     Appellants claim that they have standing, pursuant to Rickman v.

Whitehurst, 

(Fla. 1917), based on their allegation of special injury, and

also as taxpayers under the limited exception to the special injury rule expressed

in Department of Administration v. Horne, 

(Fla. 1972). Rejecting

both arguments for standing advanced by Appellants, the trial court dismissed their

complaint with prejudice. For the reasons that follow, we affirm.

                                   I. Background

      Beginning in 1999, the Florida Legislature passed several laws to “[e]xpand

educational opportunities for children of families that have limited financial

resources.” Ch. 2001-225, § 5, Laws of Fla. The Legislature expressed its intent to

ensure “that all parents, regardless of means, may exercise and enjoy their basic right

                                          3
to educate their children as they see fit . . . .” § 1002.395(1)(a)3., Fla. Stat. (2014).

Among the education reforms adopted by the Legislature were two programs

authorizing scholarships for children in failing public schools and children in low-

income households: (1) the Florida Opportunity Scholarship Program and (2) the

Florida Tax Credit Scholarship Program.

                 A. The Florida Opportunity Scholarship Program

      In 1999, the Florida Legislature established the Florida Opportunity

Scholarship Program (OSP) to give students attending “failing” public schools the

choice to attend better-performing schools. Ch. 99-398, § 2, Laws of Fla. The

Legislature declared that:

      a student should not be compelled, against the wishes of the student’s
      parent or guardian, to remain in a school found by the state to be failing
      for 2 years in a 4-year period. The Legislature shall make available
      opportunity scholarships in order to give parents and guardians the
      opportunity for their children to attend a public school that is
      performing satisfactorily or to attend an eligible private school when
      the parent or guardian chooses to apply the equivalent of the public
      education funds generated by his or her child to the cost of tuition in
      the eligible private school . . . .

§ 229.0537(1), Fla. Stat. (1999) (repealed 2002).            The Legislature directly

appropriated funds to the Department of Education for the OSP. The Department

of Education transferred those funds to the private school chosen by a qualified

student’s parent or guardian via a state warrant. § 229.0537(6)(b), Fla. Stat. (1999)

(repealed).

                                           4
        Four years after the OSP was established, this Court held the OSP

unconstitutional on grounds that it violated the no-aid provision of the anti-

establishment clause in Florida’s Constitution because state revenues were used to

pay the cost of tuition at religiously affiliated schools. Bush v. Holmes, 

(Fla. 1st DCA 2004) (en banc) (Holmes I). Two years later, the supreme court

held that the OSP was an unconstitutional violation of the mandate in article IX,

section 1 because it “foster[ed] plural, nonuniform systems of education in direct

violation of the constitutional mandate for a uniform system of free public

schools.” Bush v. Holmes, 

, 398 (Fla. 2006) (Holmes II).

                  B. The Florida Tax Credit Scholarship Program

        In 2001, the Legislature established the FTCSP. Ch. 2001-255, § 5, Laws of

Fla. Designed to further expand school choice opportunities beyond those available

under the OSP, scholarships offered under the FTCSP are not limited to students

attending “failing” schools.      Rather, students receiving certain government

assistance or students whose families have an annual income below 185% of the

federal poverty level are eligible to receive scholarships. § 1002.395(3)(c), Fla. Stat.

(2015).

        The FTCSP operates as follows. Individual and corporate taxpayers make

voluntary contributions to Scholarship Funding Organizations (SFOs), including

state   universities,   independent   colleges   and    universities,   and   nonprofit

                                           5
organizations. After making a contribution to an SFO, the taxpayer may seek a credit

against their liability for the following taxes: (1) oil, gas, and mineral severance tax,

(2) alcoholic beverage tax, (3) corporate income tax, (4) insurance premium tax, and

(5) self-accrued direct-pay sales tax. § 1002.395(5)(b), Fla. Stat. (2015). Parents

and guardians apply to SFOs to secure a scholarship for their student at a school of

their choice. Scholarships may be used to pay tuition and fees at an eligible private

school or to pay for transportation to a Florida public school that is outside of the

student’s district or to a lab school. § 1002.395(6)(d), Fla. Stat. (2015). An eligible

private school may be religiously affiliated. § 1002.395(8), Fla. Stat. (2015). SFOs

pay the scholarship funds directly to the participating private schools.

§ 1002.395(7)(f), Fla. Stat. (2015). For the 2014-2015 school year, 69,950 children

from low-income families applied for and received scholarships under the

FTCSP. See Fla. Dep’t of Educ., Florida Tax Credit Scholarship Program Fact Sheet

1 (November 2015),

http://www.fldoe.org/core/fileparse.php/5606/urlt/FTC_Nov_2015.pdf.

                                II. Procedural History

      Thirteen years after the FTCSP was created, Appellants filed their lawsuit.

They alleged that the FTCSP violates two provisions of the Florida Constitution:

article I, section 3 and article IX, section 1(a). Appellants assert that the FTCSP

violates the no-aid provision of article I, section 3, by diverting funds from the public

                                           6
treasury and channeling those funds to religiously affiliated schools. Appellants

claim that the FTCSP violates the mandate for the provision of a system of free and

uniform public schools pursuant to article IX, section 1(a) by redirecting taxpayer

funds from public schools to provide private-school scholarships and by creating a

non-uniform system of public education.

      The State argued that Appellants lack standing to bring suit because (1)

Appellants did not allege any special injury, (2) Appellants failed to identify any

legislative appropriation subject to a constitutional limitation on the Legislature’s

spending authority, and (3) Appellants’ claims are not based on any constitutional

provision limiting the Legislature’s taxing authority. A group of parents whose

children receive tax credit scholarships intervened in the action and moved to

dismiss the complaint, echoing the State’s arguments concerning Appellants’ lack

of special injury and taxpayer standing.

      At the hearing on the motion to dismiss, the trial court determined that

Appellants’ allegations of harm were insufficient to establish standing. The court

provided Appellants with an opportunity to amend their complaint to include

additional factual allegations to support their claim of harm. But Appellants refused

this offer. Appellants’ counsel maintained at the hearing:

      Judge, we don’t think we need to amend in any way at all. We think
      what we have said here in the second sentence of paragraph 19 is fully
      sufficient to allege that some of the . . . [Appellants] who have children
      in the public schools, . . . [or] who are teachers and administrators in
                                           7
      the public schools have been directly injured because of the loss of
      funding caused directly by the scholarship program.

The trial court concluded that Appellants failed to allege special injury standing

because “whether any diminution of public school resources resulting from the

[FTCSP] will actually take place is speculative, as is any claim that any such

diminution would result in reduced per-pupil spending or in any adverse impact on

the quality of education.” The trial court added that it was not bound to “defer to a

speculative and conclusory allegation, such as pleaded here, that some Plaintiffs

have been ‘injured’ by the [FTCSP].” Finally, the trial court determined that

Appellants lacked taxpayer standing because their claims were not directed at any

exercise of the Legislature’s spending authority. Appellants now appeal that order.

                                 III. Analysis

      The sole issue before this Court is whether Appellants have standing to

challenge the FTCSP. Standing is a question of law, which we review de novo. Pub.

Def., Eleventh Jud. Cir. of Fla. v. State, 

, 282 (Fla. 2013).

      In order to have standing to challenge a governmental action, a citizen

taxpayer must show that he or she suffered or will suffer a special injury, distinct

from other members of the community at large. Council for Secular Humanism, Inc.

v. McNeil, 

, 121 (Fla. 1st DCA 2010); see also Miller v. Publicker

Indus., Inc., 

, 1375 (Fla. 1984) (“A party may challenge the

constitutionality of a statute after showing that enforcement of the statute will
                                          8
injuriously affect the plaintiff’s personal or property rights.”). An exception to the

special injury requirement has been recognized for challenges to governmental

action on constitutional grounds based directly on the Legislature’s taxing and

spending powers. 

; Alachua Cty. v. Scharps, 

, 198 (Fla. 1st DCA 2003). Thus, we consider whether Appellants have alleged

any special injury or whether the Legislature’s authorization of the FTCSP violates

specific constitutional limitations on the Legislature’s taxing and spending power.

                   A. Requirements for Special Injury Standing

      “[A] private citizen is precluded from filing a taxpayer complaint to challenge

government action unless the private citizen alleges and proves a ‘special injury,’

which is an injury that is different from that of the general public.” Smith v. City

of Fort Myers, 

, 1094 (Fla. 2d DCA 2006). The special injury rule

was first explained by the supreme court in 

. There, taxpayers

challenged the county commissioners’ decision to spend bond proceeds on the

construction of roads and bridges. 

In holding that the taxpayers in that

case were required to allege that they suffered a special injury distinct from other

members of the public, the court explained:

      We have . . . found no case in which such a suit has been maintained
      where it did not appear that special injury would result to the
      complainant as a taxpayer in the increased public burden as the result
      of the unauthorized act. The principle is universally recognized that to
      entitle a party to relief in equity he must bring his case under some
      acknowledged head of equity jurisdiction. In a case where a public
                                          9
      official is about to commit an unlawful act, the public by its authorized
      public officers must institute the proceeding to prevent the wrongful
      act, unless a private person is threatened with or suffers some public or
      special damage to his individual interests, distinct from that of every
      other inhabitant, in which case he may maintain his bill.

  The rationale for the special injury rule is grounded in the doctrine of

separation of powers and requires courts to accord proper deference to legislative

actions rather than opening the courthouse doors to disgruntled taxpayers who are

not pleased with the taxing and spending decisions of their elected representatives.

Paul v. Blake, 

, 259 (Fla. 3d DCA 1979) (“[I]t has long been

recognized that in a representative democracy the public’s representatives in

government should ordinarily be relied on to institute the appropriate legal

proceedings to prevent the unlawful exercise of the state or county’s taxing and

spending power.”); see also DaimlerChrysler Corp. v. Cuno, 

, 344-45

(2006) (“A taxpayer plaintiff has no right to insist that the government dispose of

any increased revenue it might experience as a result of his suit by decreasing his

tax liability or bolstering programs that benefit him. To the contrary, the decision

of how to allocate any such savings is the very epitome of a policy judgment

committed to the broad and legitimate discretion of lawmakers, which the courts

cannot presume either to control or to predict.” (internal quotations omitted)).

      Since adopting the Rickman rule almost one hundred years ago, the supreme

court has rejected invitations to eliminate the requirement of special injury for

                                          10
taxpayer lawsuits. See, e.g., 

(finding no reason to modify

the special injury requirement for taxpayer suits); Dep’t of Revenue v. Markham,

, 1121 (Fla. 1981) (reiterating that in the absence of a constitutional

challenge a taxpayer must show a special injury distinct from that suffered by other

taxpayers to have standing); U.S. Steele Corp. v. Save Sand Key, Inc., 

,

13 (Fla. 1974) (stating that although it had created a limited exception to the

Rickman rule in Horne “this Court did not intend to abrogate in any way the special

injury rule”).

       B. Appellants Failed to Allege that They Suffered Any Special Injury

      Here, the trial court correctly determined that Appellants lacked special injury

standing because they failed to allege that they suffered a harm distinct from that

suffered by the general public. Indeed, Appellants failed to allege any concrete harm

whatsoever.      Although Appellants were given an opportunity to amend their

complaint, they chose to rest their argument for standing on the following allegations

in their complaint:

      As Florida citizens and taxpayers, and organizations whose members
      are Florida citizens and taxpayers, plaintiffs have been and will
      continue to be injured by the unconstitutional expenditure of public
      revenues under the Scholarship Program. In addition, many of the
      plaintiffs (and members of the plaintiff organizations) whose children
      attend public schools, or who are teachers or administrators in the
      public schools, have been and will continue to be injured by the
      Scholarship Program’s diversion of resources from the public schools.

Thus, Appellants’ entire argument for special injury standing is that they have been
                                         11
harmed by the FTCSP’s alleged diversion of public revenues from public schools to

private schools.

      Appellants’ diversion theory is incorrect as a matter of law.           A close

examination of the statutory provisions authorizing the FTCSP exposes the flaws in

Appellants’ argument. No funds under the FTCSP are appropriated from the state

treasury or from the budget for Florida’s public schools. See §§ 1002.395(2)(e),

1002.395(6)(d), Fla. Stat. (2015). Rather, all funds received by private schools under

the FTCSP come from private, voluntary contributions to SFOs, after a parent or

guardian has exercised their choice to enroll their child in a private school.

§ 1002.395(1)(b)1., Fla. Stat. (2015). Further, as will be discussed in further detail,

tax credits received by taxpayers who have contributed to SFOs are not the

equivalent of revenues remitted to the state treasury. § 1002.395(5)(b), Fla. Stat.

(2015). Because there was no diversion of any state revenues from public schools

to private schools through the operation of the FTCSP, Appellants’ theory of harm

and argument for special injury are insufficient to support standing.

      Further, even assuming that Appellants’ diversion theory was legally

sufficient, Appellants’ allegations that the FTCSP has harmed them are conclusory

and speculative. Although it was bound to accept all material allegations within the

complaint as true when evaluating Appellants’ standing, Sun States Utilities, Inc. v.

Destin Water Users, Inc., 

, 945 n.1 (Fla. 1st DCA 1997), the trial

                                          12
court was not required “to accept internally inconsistent factual claims, conclusory

allegations, unwarranted deductions, or mere legal conclusions made by a party,”

Shands Teaching Hospital and Clinics, Inc. v. Estate of Lawson ex rel. Lawson, 

, 331 (Fla. 1st DCA 2015) (en banc). Examining the allegations of injury

claimed by Appellants, the trial court properly determined that they were conclusory

and speculative. See Response Oncology, Inc. v. The Metrahealth Ins. Co., 978 F.

Supp. 1052, 1058 (S.D. Fla. 1997) (“Courts must liberally construe and accept as

true allegations of fact in the complaint and inferences reasonably deductible

therefrom, but need not accept factual claims that are internally inconsistent; facts

which run counter to facts of which the court can take judicial notice; conclusory

allegations; unwarranted deductions; or mere legal conclusions asserted by a

party.”).

       Appellants argue that but for the tax credits offered in exchange for

contributions to SFOs, taxpayers would remit their full tax liability to the state, state

revenues would increase, and the Legislature would appropriate those revenues to

fund the public school system, in some manner that would benefit Appellants. This

argument is founded entirely on supposition. To reach such a conclusion, the trial

court would be required to anticipate whether the tax credit program positively or

negatively stimulates economic growth, and thus affects state revenue collection.1


1
    “When a government expends resources or declines to impose a tax, its budget
                                     13
Then, assuming tax revenues decrease as a result of the tax credits available under

the FTCSP, the court would have to predict whether the tax revenue that would have

been collected in the absence of the tax credit would have been allocated to the

budget for the public school system. The trial court would have to forecast whether

and how the Legislature would fund the education budget based on changes in public

school enrollment. Finally, the court would have to foretell how fluctuations in the

state’s overall budget would affect the budget for the public school system. The

cloudy crystal ball the trial court would be required to gaze into in order to identify

a particularized harm to Appellants underscores the speculative nature of their

arguments for standing.

      The United States Supreme Court considered a similar theory of harm alleged

by a group of taxpayers challenging Arizona’s tax credit scholarship program.

. The Arizona program operates very much like the FTSCP

– offering tax credits in exchange for contributions to organizations that fund

scholarships to students attending private schools. The Arizona taxpayers argued

that the program was unconstitutional and advanced a similar theory of injury to the

one asserted in this case – that the tax credit program unconstitutionally diverted



does not necessarily suffer. On the contrary, the purpose of many governmental
expenditures and tax benefits is ‘to spur economic activity, which in turn increases
government revenues.’” Arizona Christian Sch. Tuition Org. v. Winn, 

,
136 (2011) (quoting 

)).
                                          14
public funds from the Arizona public school system to private schools, resulting in

harm to the plaintiffs. 

The Supreme Court rejected the Arizona

taxpayers’ allegations that the scholarship program caused them harm:

              Even assuming the STO tax credit has an adverse effect on
      Arizona’s annual budget, problems would remain. To conclude there
      is a particular injury in fact would require speculation that Arizona
      lawmakers react to revenue shortfalls by increasing respondents’ tax
      liability. A finding of causation would depend on the additional
      determination that any tax increase would be traceable to the STO tax
      credits, as distinct from other governmental expenditures or other tax
      benefits. Respondents have not established that an injunction against
      application of the STO tax credit would prompt Arizona legislators to
      “pass along the supposed increased revenue in the form of tax
      reductions.” Those matters, too, are conjectural.

             Each of the inferential steps to show causation and redressability
      depends on premises as to which there remains considerable doubt. The
      taxpayers have not shown that any interest they have in protecting the
      State Treasury would be advanced. Even were they to show some
      closer link, that interest is still of a general character, not particular to
      certain persons. Nor have the taxpayers shown that higher taxes will
      result from the tuition credit scheme. The rule against taxpayer
      standing, a rule designed both to avoid speculation and to insist on
      particular injury, applies to respondents’ lawsuit.

(internal citations omitted). This same logic applies to Appellants’

allegations of harm here. Their alleged injury is simply too abstract to support

standing.

      Despite the speculative nature of the harm they allege, Appellants argue that

two decisions of the Florida Supreme Court support their argument for standing.

Appellants first rely on the decision in Coalition for Adequacy and Fairness in

                                           15
School Funding, Inc. v. Chiles, 

(Fla. 1996). In Chiles, the supreme

court held that public school students and their parents had standing to challenge the

denial of an adequate education under article IX, section 1 of the Florida Constitution

where the plaintiffs alleged concrete harm to particular students and to the school

system. 

n.4. The complaint in that case contained very specific allegations

of harm, including that certain students were not receiving adequate special

programs and that capital outlays were insufficiently funded. Thus, the Chiles case

is readily distinguishable from this case, and it exposes the infirmities in Appellants’

complaint.

      Appellants also rely on the Florida Supreme Court’s decision in Holmes II.

Their reliance on this case is equally misplaced. There, the court held that the OSP

undermined the quality of the public school system by appropriating state funds to

private schools. Holmes 

. Although the court did not address

standing in that case, the court found the diversion of appropriated education funds

from the public school system to private schools to be a tangible, concrete harm. 

Appellants assert no such concrete harm or particularized injury in this case.

      While the FTCSP has been fine-tuned since its creation in 2001, the essential

function of the program – using voluntary private contributions to fund scholarships

for eligible students – has remained unchanged. See Ch. 2001-225, Laws of Fla.;

ch. 2016-140, Laws of Fla. Thus, there has been ample opportunity in the ensuing

                                          16
fifteen years since the creation of the FTCSP for any decrease in funding to the

public school system to manifest. And yet despite arguing that public funds have

been diverted from the public school system, Appellants make no argument

whatsoever that public school funding has actually declined. Because Appellants’

allegations of harm are legally insufficient, entirely speculative, and express no

particularized injury to Appellants, they lack standing to bring suit on grounds of

special injury.

                  C. The Horne Exception to the Special Injury Rule

       Alternatively, Appellants insist that they have standing to challenge the

constitutionality of the FTCSP as taxpayers under the exception to the special injury

rule adopted in Horne. In Horne, the Florida Supreme Court recognized a limited

exception to the special injury rule in cases where a taxpayer challenges a legislative

exercise of the taxing and spending power in contravention of specific constitutional

. Horne followed a United States Supreme Court case,

Flast v. Cohen, 

(1968), which established a narrow exception for

standing in federal taxpayer suits.

      In Flast, a group of federal taxpayers challenged the appropriation of federal

funds to “finance instruction in reading, arithmetic, and other subjects in religious

schools, and to purchase textbooks and other instructional materials for use in such

. The taxpayers argued that Congress exceeded its

                                          17
authority in appropriating funds in violation of the Establishment and Free Exercise

Clauses of the First Amendment of the United States Constitution. 

The

Supreme Court determined that the taxpayers in that case had standing, explaining

the narrow circumstances in which a taxpayer may challenge congressional action:

      [W]e hold that a taxpayer will have standing consistent with Article III
      to invoke federal judicial power when he alleges that congressional
      action under the taxing and spending clause is in derogation of those
      constitutional provisions which operate to restrict the exercise of the
      taxing and spending power. The taxpayer’s allegation in such cases
      would be that his tax money is being extracted and spent in violation of
      specific constitutional protections against such abuses of legislative
      power. Such an injury is appropriate for judicial redress, and the
      taxpayer has established the necessary nexus between his status and the
      nature of the allegedly unconstitutional action to support his claim of
      standing to secure judicial review. Under such circumstances, we feel
      confident that the questions will be framed with the necessary
      specificity, that the issues will be contested with the necessary
      adverseness and that the litigation will be pursued with the necessary
      vigor to assure that the constitutional challenge will be made in a form
      traditionally thought to be capable of judicial resolution. We lack that
      confidence in cases such as Frothingham where a taxpayer seeks to
      employ a federal court as a forum in which to air his generalized
      grievances about the conduct of government or the allocation of power
      in the Federal System.

   Thus, the exception to the general rule against taxpayer standing

established in Flast requires a taxpayer to allege more than just that a legislative act

is unconstitutional. 

Rather, a taxpayer must allege that a legislative

act violates a specific constitutional limitation on the Legislature’s taxing and

spending power.



                                          18
      In Horne, the Florida Supreme Court similarly allowed a narrow exception to

the special injury rule it established in Rickman and held that a taxpayer has standing

to sue where the taxpayer can show that a government taxing measure or expenditure

violates a specific constitutional limitation on the Legislature’s taxing and spending

power. 

; 

. Subsequently, Florida

courts have found standing in a number of cases involving taxpayer challenges to

constitutional limits on the Legislature’s spending authority. See, e.g., Holmes 

(determining that article IX, section 1(a) was a restriction on the

Legislature’s spending power by “provid[ing] both a mandate to provide for

children’s education and a restriction on the execution of that mandate”); 

(Fla. 1st DCA 2010) (holding that taxpayers had standing under the

no-aid provision to challenge the constitutionality of statutes that authorized the state

to direct appropriations to sectarian institutions). Courts have also found standing

under the Horne exception where taxpayers identified a constitutional limit on the

Legislature’s taxing authority. See, e.g., Charlotte Cty. Bd. of City Comm’rs v.

Taylor, 

, 148 (Fla. 2d DCA 1995) (determining that a taxpayer had

standing to bring a constitutional challenge to a county tax exemption that was

inconsistent with general laws which required county commissioners, not electors,

to establish a budget and levy ad valorem taxes); 

(holding

that a taxpayer had standing to challenge the county’s authority to issue ad valorem

                                           19
tax exemptions that violated specific limitations imposed by the Florida

Constitution).

      Thus, in order to establish standing under the Horne exception to the special

injury rule, Appellants were required to identify both (1) a specific exercise of the

Legislature’s taxing and spending authority, and (2) a specific constitutional

limitation upon the exercise of that authority. Appellants failed to establish taxpayer

standing for two reasons. First, while both article I, section 3 and article IX, section

1(a) of Florida’s Constitution either expressly or implicitly limit the Legislature’s

spending authority, Appellants failed to identify any portion of the FTCSP that

exceeds the Legislature’s spending authority under either constitutional provision.

Second, neither provision limits the Legislature’s taxing authority.

      D. Appellants Lack Taxpayer Standing Pursuant to article I, section 3

      Appellants allege that the Legislature exceeded both its taxing and spending

authority in violation of article I, section 3 (Florida’s so-called “Blaine

Amendment”), which is also known as the no-aid provision. 2 Appellants assert that

the no-aid provision limits the authority of the Legislature to grant tax credits and to


2
  Blaine Amendments, which prohibit the use of public funds to support religious
schools, were widely enacted in response to political disputes over whether churches
or sectarian organizations should receive public assistance. Holmes 

. Approximately thirty states have “Blaine Amendments.” Mark Edward
DeForrest, An Overview and Evaluation of State Blaine Amendments: Origins,
Scope, and First Amendment Concerns, 26 Harv. J.L. & Pub. Pol’y 551, 576 (2003).

                                          20
authorize the funding of scholarships through voluntary contributions to SFOs under

the FTCSP. We disagree. The plain language of the no-aid provision imposes no

limitation on the Legislature’s taxing authority. And although the no-aid provision

expressly limits the Legislature’s spending authority by prohibiting the

appropriation of state revenues to aid any sectarian institution, Appellants identify

no such appropriation connected with the FTCSP.

      Any interpretation of a constitutional provision must begin with an

examination of the provision’s plain language. Brinkman v. Francois, 

, 510 (Fla. 2016). “If that language is clear, unambiguous, and addresses the

matter in issue, then it must be enforced as written.” 

Soc’y of

Ophthalmology v. Fla. Optometric Ass’n, 

, 1119 (Fla. 1986)).

Article I, section 3 of the Florida Constitution provides:

      There shall be no law respecting the establishment of religion or
      prohibiting or penalizing the free exercise thereof. Religious freedom
      shall not justify practices inconsistent with public morals, peace or
      safety. No revenue of the state or any political subdivision or agency
      thereof shall ever be taken from the public treasury directly or
      indirectly in aid of any church, sect, or religious denomination or in
      aid of any sectarian institution.

(emphasis added). The express language of Florida’s no-aid provision contains no

limit on the Legislature’s taxing authority, including the Legislature’s power to enact

laws creating tax credits or exemptions; rather, this provision “focuses on the use of

state funds to aid sectarian institutions, not other kinds of support.” Holmes I, 

.

      Further, the plain language of the no-aid provision restricts only the

Legislature’s authority to appropriate state revenues from the public treasury. In

construing this provision, our Court recognized that the grant of a tax exemption to

a sectarian institution is not prohibited by the no-aid provision because it does not

involve a disbursement from the public treasury. 

Thus, in order for a

taxpayer to have standing to challenge legislative action under the no aid provision,

“the challenge must be to legislative appropriations.” 

; see

also Philip J. Padovano, Florida Civil Practice § 4.3 n.9 (2015-2016 ed.) (“The rule

is often applied to challenges to appropriations acts, but it can also be used to

challenge other kinds of statutes, provided they authorize the expenditure of public

funds. But as the court explained in Flast, the expenditure must be for a specific

purpose that is related to the alleged constitutional violation and not merely

incidental to the regulatory scheme adopted by the statute.”). But Appellants

identify no legislative appropriation here.

      Indeed, the legislative actions challenged in this case, the authorization of tax

credits under the FTCSP and the payment of private funds to private schools via

scholarships authorized under the FTCSP, involve no appropriation from the public

treasury. The program is funded through voluntary, private donations by individual

and corporate taxpayers. §§ 1002.395(1)(b)1.; 1002.395(2)(e), Fla. Stat. (2015).

                                          22
Despite the lack of any appropriation by the Legislature in funding the FTCSP,

Appellants urge this Court to hold that the use of tax credits to fund the program

amounts to an indirect appropriation of revenue from the public treasury in violation

of the no-aid provision. Appellants assert that any distinction between tax credits

and revenues is constitutionally immaterial because the funds credited to taxpayers

could have been collected and transferred to the state treasury. In advancing this

novel construction of the no-aid provision, Appellants ignore the substantial

difference between tax credits and state revenues. In Holmes I, we explained that,

“[i]n the case of direct subsidy, the state forcibly diverts the income of both believers

and nonbelievers to churches. In the case of an exemption, the state merely refrains

from diverting to its own uses income independently generated by the churches

through voluntary contributions.” 

A. Giannella, Religious

Liberty, Nonestablishment, and Doctrinal Development, 81 Harv. L. Rev. 513, 553

(1968)). In so holding, our Court relied on the following reasoning advanced by

Justice Brennan:

      Tax exemptions and general subsidies, however, are qualitatively
      different [than the payment of state funds]. Though both provide
      economic assistance, they do so in fundamentally different ways. A
      subsidy involves the direct transfer of public monies to the subsidized
      enterprise and uses resources exacted from taxpayers as a whole. An
      exemption, on the other hand, involves no such transfer. It assists the
      exempted enterprise only passively, by relieving a privately funded
      venture of the burden of paying taxes. In other words, in the case of
      direct subsidy, the state forcibly diverts the income of both believers
      and nonbelievers to churches, while in the case of an exemption, the
                                           23
      state merely refrains from diverting to its own uses income
      independently generated by the churches through voluntary
      contributions. Thus, the symbolism of tax exemption is significant as a
      manifestation that organized religion is not expected to support the
      state; by the same token the state is not expected to support the church.

(quoting Walz v. Tax Comm’n of City of New York, 

,

690-91 (1970) (Brennan, J., concurring)).

      The United States Supreme Court made precisely the same distinction

between revenues and tax credits (as opposed to tax exemptions) when it considered

the constitutionality of the tax credits offered under the Arizona scholarship program

in 

. The Supreme Court observed that the expenditure of

state revenues on religiously affiliated activities made it known to a dissenter that

her tax dollars were spent in violation of her conscience. 

the

government declined to impose a tax, there was no connection between the

dissenting taxpayer and a religiously affiliated activity. 

The Supreme

Court also rejected the argument that taxpayers who benefited from tax credits were

in effect paying their state income tax to scholarship organizations. 

“Respondents’ contrary position assumes that income should be treated as if it were

government property even if it has not come into the tax collector’s hands. That

premise finds no basis in standing jurisprudence.” Id.; accord Kotterman v. Killian,

, 618 (Ariz. 1999) (en banc) (“[N]o money ever enters the state’s

control as a result of this tax credit. Nothing is deposited in the state treasury or


                                         24
other accounts under the management or possession of governmental agencies or

public officials. Thus, under any common understanding of the words, we are not

here dealing with ‘public money.’”); Manzara v. State, 

, 664 (Mo.

2011) (en banc) (finding no taxpayer standing because “tax credits are not

government expenditures”). Tax credits offered under the FTCSP involve no public

funds. And Appellants failed to identify any portion of the FTCSP authorizing

legislative appropriations or any other exercise of the Legislature’s spending

authority. See 

(holding that when taxpayers choose to

contribute to scholarship organizations, they are expending their own funds, not

revenue collected by the state). For this reason, we affirm the trial court’s ruling that

Appellants failed to demonstrate taxpayer standing under article I, section 3.

    E. Appellants Lack Taxpayer Standing Pursuant to article IX, section 1(a)

      Appellants also argue that in authorizing the FTCSP, the Legislature exceeded

its taxing and spending authority under article IX, section 1(a) of the Florida

Constitution. Appellants’ argument is set forth in the following two paragraphs of

their complaint:

      60. Like the OSP, the Scholarship Program is unconstitutional because
      through it the State has established a governmental program providing
      for private-school vouchers, funded by redirecting taxpayer funds, that
      educates Florida children in a manner other than through the system of
      free public schools mandated by Article IX, § 1.

      61. In addition, the Scholarship Program is – as was the case with the
      OSP – unconstitutional because it funds the education of Florida
                                           25
      children in a system of schools that is not “uniform,” as required by
      Article IX, § 1.

These allegations fail to show that the Legislature exceeded any limit on its taxing

and spending authority.

      In order to establish standing under Horne, Appellants were required not only

to identify a specific exercise of the Legislature’s taxing and spending authority, but

also a specific constitutional limitation on that authority. Article IX, section 1(a)

provides:

      The education of children is a fundamental value of the people of the
      State of Florida. It is, therefore, a paramount duty of the state to make
      adequate provision for the education of all children residing within its
      borders. Adequate provision shall be made by law for a uniform,
      efficient, safe, secure, and high quality system of free public schools
      that allows students to obtain a high quality education and for the
      establishment, maintenance, and operation of institutions of higher
      learning and other public education programs that the needs of the
      people may require.

The plain language of article IX, section 1(a) does not contain any express or implied

limitation on the Legislature’s taxing authority. But see, art. VII, § 3(c)-(d), Fla.

Const. (imposing restrictions on the authority of counties and municipalities to levy

certain taxes); art. VII, § 9, Fla. Const. (imposing restrictions on certain entities’

abilities to levy ad valorem taxes); art. VIII, §1(h), Fla. Const. (imposing a limit on

the authority of municipalities to impose a tax on property for services rendered by

the county exclusively for the benefit of the property or residents in unincorporated

areas). Because article IX, section 1(a) does not limit the Legislature’s taxing power,
                                          26
Appellants may only raise a constitutional challenge under that provision by

showing that the Legislature exceeded its spending authority.

      On two occasions, the Florida Supreme Court has recognized that article IX,

section 1(a) limits the Legislature’s spending authority. In Chiles, the supreme court

construed this provision to require the Legislature to appropriate sufficient public

revenue to adequately fund Florida’s public school 

.

In Holmes II, the supreme court construed this provision to restrict the Legislature’s

authority to use public revenues to fund private 

.

Although neither decision discussed standing in any significant detail, the court’s

holdings in those cases expose the flaws in Appellants’ arguments for standing here.

      First, in Chiles, the plaintiffs alleged that the Legislature violated article IX,

section 1 by failing to allocate adequate resources to public 

. There, the plaintiffs alleged:

      (1) Certain students are not receiving adequate programs to permit them
      to gain proficiency in the English language; (2) Economically deprived
      students are not receiving adequate education for their greater
      educational needs; (3) Gifted, disabled, and mentally handicapped
      children are not receiving adequate special programs; (4) Students in
      property-poor counties are not receiving an adequate education; (5)
      Education capital outlay needs are not adequately provided for; and (6)
      School districts are unable to perform their constitutional duties
      because of the legislative imposition of noneducational and quasi-
      educational burdens.

by the Chiles plaintiffs enumerated a number of specific harms

to the public school system, including inadequate special programs for specific
                                          27
groups of students and insufficient funding of capital outlays. Here, unlike the

Chiles plaintiffs, Appellants do not allege that the Legislature failed to adequately

fund Florida’s public school system. They do not allege that the authorization of the

FTCSP resulted in the deprivation of access to special programs, the inability to meet

capital outlay needs, nor any other specific harm held by the Chiles court to violate

article IX, section 1(a). Thus, a comparison to Chiles reveals the deficiencies in

Appellants’ complaint.

      Second, in Holmes II, the supreme court held that “[article IX, section 1(a)]

mandates that the state’s obligation is to provide for the education of Florida’s

children, specifies that the manner of fulfilling this obligation is by providing a

uniform, high quality system of free public education, and does not authorize

equivalent alternatives.” Holmes 

. In holding the OSP

unconstitutional, the supreme court identified a number of ways the Legislature

violated article IX, section 1(a) by exceeding its spending authority. 

concluded that the Legislature authorized some students “to receive a publicly

funded education through an alternative system of private schools that [were] not

subject to the uniformity requirements of the public school system,” 

“divert[ed] public dollars into separate private systems,” 

and

“transfer[red] tax money earmarked for public education to private schools” 

The court focused on the Legislature’s appropriation of public funds:

                                         28
      Our decision does not deny parents recourse to either public or private
      school alternatives to a failing school. Only when the private school
      option depends upon public funding is choice limited. This limit is
      necessitated by the constitutional mandate in article IX, section 1(a),
      which sets out the state’s responsibilities in a manner that does not
      allow the use of state monies to fund a private school education.

Thus, the supreme court’s analysis of whether the Legislature

exceeded its spending authority under article IX, section 1(a) was limited to

determining if the Legislature appropriated public funds for use in private schools.

      Here, Appellants failed to allege that the Legislature appropriated any public

funds to private schools. Appellants failed to allege any inadequacy in the funding

of the state’s system of education. Because of these failures, Appellants have

insufficiently alleged that the Legislature exceeded its spending authority under

article IX, section 1(a). Accordingly, we affirm the trial court’s finding that

Appellants failed to establish taxpayer standing under this provision.

                                  IV. Conclusion

      Appellants failed to allege that they suffered any special injury as a result of

the operation of the Florida Tax Credit Scholarship Program and failed to establish

that the Legislature exceeded any constitutional limitation on its taxing and spending

authority when it authorized the program. At most, Appellants quarrel with the

Legislature’s policy judgments regarding school choice and funding of Florida’s

public schools. This is precisely the type of dispute into which the courts must

decline to intervene under the separation of powers doctrine. Markham, 

at 1122. Appellants’ remedy is at the polls. 

.

      We conclude that the trial court properly found that Appellants lack standing

to attack the constitutionality of the Florida Tax Credit Scholarship Program. We

thus AFFIRM the trial court’s order dismissing the complaint.

MAKAR and BILBREY, JJ., CONCUR.




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