Filing # 132731378 E-Filed 08/16/2021 11:39:49 AM IN THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT IN AND FOR LEON COUNTY, FLORIDA ROBIN MCCARTHY and JOHN MCCARTHY, individually and on behalf of L.M., a minor; 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; EREN DOOLEY, individually and on behalf of G.D., D.D., and F.D., minors; 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, 1 CASE NO.: 2021-CA-1382 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. DI ANTS’ Mi DISMI. Florida’s Governor and Legislature have determined that it is in the best interests of the State to empower Florida parents with the right to manage thehealthcare of their children. This includes the freedom to choose whether they must be masked in public schools. The Governor and Surgeon General carefully balanced the legitimate state interests of school safety, educational well-being, and parental rights and determined not to impose a categorical mask mandate on students who attend the State’s public schools. Plaintiffs fundamentally disagree with this policy decision. Despite their lack of standing, Plaintiffs ask this Court to override the complex balancing of several competing interests—as well as carefully reviewed determinations—that have already been thoroughly assessed by the two branches of government in which this authority exclusively lies. Plaintiffs’ request, if granted, would vitiate the fundamental rights of countless Florida parents to make healthcare decisions for their own children. Moreover, the Court cannot grant the relief Plaintiffs seek because it is beyond the purview of the judiciary to make the policy determinations at issue in this case. Plaintiffs’ claims can be distilled to three requests: declare the Governor's Executive Order unconstitutional, declare a Florida Department of Health Rule unconstitutional, and enjoin enforcement of the Executive Order. Plaintiffs do not seek relief that can be granted. First, Governor Ron DeSantis, using his constitutional authority and power, issued Executive Order 21-175. In the Order, he directed the Florida Department of Health and the Florida Department of Education to use all legal authorities necessary to implement 2safety protocols governing the control of COVID-19 in schools that do not infringe upon parents’ rights. The Governor made this policy decision after considering multiple factors including science and law. The Governor as Chief Executive has the authority pursuant to Article IV, Section 1(a) of the Florida Constitution to direct his state agencies to adopt rules implementing Florida laws in accordance with their respective legal authorities. The Order—merely directing agencies to take some future action within their legal means to achieve a policy goal—does not itself impose any state action against plaintiffs, and thus plaintiffs lack standing to challenge it. Second, the Department of Health duly enacted Emergency Rule 64DER21-12 pursuant to Florida law. Plaintiffs do not question the constitutionality of Section 1003.22, Florida Statutes, the statute pursuant to which the Department of Health issued the Rule. Instead, they challenge the Defendants’ policy determinations that reserve to Florida’s parents the right to make important healthcare decisions for their children. In sum, Plaintiffs disagree with how the Governor balanced the various interests expressed in the Executive Order. They also disagree with the determinations of the Surgeon General, the state’s chief health official. Plaintiffs only real challenge is to the Rule which was appropriately promulgated pursuant Florida Statutes, and their Complaint is over a political question. Ultimately, Plaintiffs lack standing, and their request that the Court 3make policy decisions reserved exclusively to the executive and legislative branches of government is, itself, unconstitutional. Because Plaintiffs fail to raise any colorable claim, Defendants Governor Ron DeSantis, Commissioner Richard Corcoran, the Department of Education, and the State Board of Education, under Florida Rule of Civil Procedure 1.140(b)(1) and (6), collectively move the Court for an order dismissing Plaintiffs’ claims with prejudice. I. SUMMARY OF THE ARGUMENT Less than a year ago, the First District Court of Appeal held that the terms “safe” and “secure” as used in Article IX, Section 1(a) of the Florida Constitution “lack judicially discoverable or manageable standards” and that “falny judicial effort to evaluate the State's compliance with those constitutional . . . requirements would violate Florida's strict requirement for the separation of powers.” DeSantis v. Fla. Educ, Ass'n, 306 So. 3d 1202, 1216 (Fla. 1st DCA 2020). Despite this clear edict, Plaintiffs ask the Court to do just that. Plaintiffs’ Complaint asks the Court to declare the Executive Order and 1 On August 13, 2021, the Court held a case management conference and determined that the Court would hear argument concerning threshold substantive matters that may result in dismissal of this action. This Motion is filed in accordance with the Court’s ruling at the case management conference. By filing this Motion, Defendants do not waive and expressly reserve the right to file a response to the Complaint in accordance with the Case Management Order. Nothing contained herein is intended to be or should be construed as a waiver of any claims or defenses Defendants may raise in the event a responsive pleading is required, 4the Rule unconstitutional as well as to enjoin Defendants from enforcing the Executive Order and Rule. However, Plaintiffs’ claims fail for any or all of the following reasons: (1) the claims alleged raise political questions; (2) Plaintiff's lack standing to raise the alleged causes of action; and (8) any judicial interference with the executive's discretionary authority violates the separation of powers doctrine. Accordingly, the Court must dismiss Plaintiffs’ claims with prejudice. For Count I, whether an education policy provides for “safe” and “secure” schools amid a pandemic is a political question and a judicial determination of 106 So. such would violate the separation of powers doctrine. Fla. Educ. As 8d at 1216. Moreover, Plaintiff's have not, and cannot, demonstrate an injury in fact that was caused by the Executive Order and Rule and that can be redressed by the Court. Count II argues that the Executive Order violates Article IX, Section 4 of the Florida Constitution, referred to by Plaintiffs as the “Home Rule,” by intruding into the powers of local school districts. But only local school districts, not Plaintiffs, would have standing to argue whether the Executive Order infringes their constitutional authority. No school district has raised such a suit because the law is clear that the Florida Constitution delineates a hierarchical structure between the State Board of Education and the localschool districts, and the Executive Order and Rule appropriately leverage the constitutional supervisory authority granted to the State Board of Education. Count Il—which alleges that the Executive Order undermines schools’ safety and is arbitrary and capricious—is subject to dismissal on several grounds. Although a determination of whether executive action is arbitrary and capricious is normally subject to judicial review, here, Plaintiffs’ allegations as to why the action is arbitrary and capricious are the same as Count I—that the action does not provide for “safe” schools. This, as stated by the First District Court of Appeal, is a non-justiciable political question and any judicial decision related thereto would violate the separation of powers doctrine. Moreover, as with every other count, Plaintiffs cannot demonstrate standing to bring this claim. Count IV alleges that the Executive Order exceeds the authority of the Department of Education and therefore violates the Florida Constitution. Count IV is inherently contradictory and must be dismissed for at least two reasons. First, it is difficult to comprehend what Plaintiffs are alleging. Plaintiffs seek “a declaration ... that the Executive Order exceeds the authority of the Department of Education and the subject matter of public health matters, such as masking in schools, is appropriately within the authority of the Florida Department of Health under section 1003.22.” Compl. | 136. The Executive Order was issued by the Governor, and it directed the 6