‘Sovereign immunity’ makes Florida a deadbeat debtor

By one estimate, the state of Florida has collected $1 billion in voluntary donations from citizens with promises to partially match what they were giving to state universities, colleges and students. The grants, spelled out in contracts, were for scholarships and facilities.

For a while, the state kept its part of the bargains. Then it reneged, leaving an estimated $628 million unpaid to the students and schools that were supposed to get it.

It’s like a state-sponsored Ponzi scheme and the state may get away with it. Florida is arguing — successfully so far — that sovereign immunity bars the class-action suit filed by people who want Florida to pay its contracted debts.

Twice now, most recently last week, the First District Court of Appeal has bought that antique argument. That’s the court Republican governors have taken pains to pack with a pro-government bias.

The plaintiffs’ attorneys promise an appeal to the Supreme Court, where it deserves to be heard.

The high court heard arguments Aug. 28 in two other sovereign immunity cases, one linked to the 2018 mass shooting at Marjory Stoneman Douglas High School in Parkland that killed 17 students. The issues in those lawsuits are whether state law limits all victims to sharing a maximum of $300,000 or whether each could claim $200,000 separately. Lower courts ruled for lesser amount.

Those cases and the matching fund issue involve what the late U.S. Supreme

Court Justice John Paul Stevens called “a doctrine that should never have been adopted in a democracy.”

Sovereign immunity is as out of place here as its source in the divine right of kings. It was the courts, rather than Congress or the state legislatures, that brought it to a new nation that had rejected kingship and absolute rule.

Though the Florida Legislature eventually compromised on exceptions, the dollar limits have no relation to the modern world. Sovereign immunity should not apply at all to a situation such as the educational matching grant programs, which ought to be as binding as any other form of contract.

The state’s argument, as endorsed by the First District Court, boils down to this: The colleges and State Board of Education had no authority to make those contracts, no matter what four laws appeared — and still appear — to say.

That’s as shabby a defense as saying a contract doesn’t count if it was written in disappearing ink. And if those contracts don’t count, shouldn’t the donors get their money back?

Regardless of what the Supreme Court might do, the Legislature owes it to the public to find the money to honor those contracts. Then it should repeal sovereign immunity, as it did on a temporary basis in 1969. Lawmakers buckled a year later under pressure from school boards that were complaining of having to pay more for liability insurance.

That left victims dependent on claims bills from the Legislature, which can take years — if ever — to hear them even when the courts have found a public agency at fault.

Some school boards have weighed in again on the wrong side of the issue with a friend of the court brief in the Parkland victims’ case. They argue that without sovereign immunity they couldn’t afford the potential damages over children killed or injured. But that only makes a case for ending the policy that lets them self-insure and for requiring them to participate in a statewide indemnity fund.

The matching grants laws were uncontroversial but the state stopped paying its shares after 2008 and the Great Recession. Revenues were recovering when Gov. Rick Scott took office in 2011, but he refused to resume payments. The Legislature remains unwilling. So does Gov. Ron DeSantis, a defendant in the lawsuit.

The Legislature and Scott amended all four laws in 2011 with curious language saying the funds “are temporarily suspended for donations received…after June 30, 2011.” But it went on to say, “Existing eligible donations remain eligible for future matching funds. The program may be restarted after $200 million of the backlog for programs…have been matched.”

Among those who relied on that were Tommy Warren and his wife Kathleen Villacorta, attorneys in Tallahassee. In 2003, they contributed $100,000, which was matched with the required $50,000, to establish the Calvin Patterson Civil Rights Endowed Scholarship at the Florida State University law school. It was named for FSU’s first black football player, a close friend of Warren’s when the future lawyer was FSU’s quarterback. Patterson never played a varsity down and took his own life.

Relying on the apparent promise in the 2011 amendments, the couple gave another $100,000 to the Patterson fund and $100,000 for FSU marine research, but the state has not paid the contractually stipulated $50,000 match for each.

Warren and Villacorta are two of the five named plaintiffs in a combined class-action suit against the governor, the State Board of Education, the university system’s Board of Governors, and Education Commissioner Richard Corcoran. Other plaintiffs are former University of Florida students and the Symphonic Band of the Palm Beaches Inc.

Facing the first litigation in 2017, Scott and the agencies won an appeals court order partly blocking it but allowing the circuit court at Tallahassee to consider evidence of breach of contract, which is a court-made exception to sovereign immunity. The state then got around that by appealing to the District Court for last week’s ruling saying the agencies “did not have the authority to enter into contracts mandating the state to appropriate matching funds…”

In other words, the contracts were worthless — just like a Ponzi scheme.