In Baiardi v. Tucker, Case No. 2011 CA 1838 (Fla. 2d Cir. Ct. Sept. 30, 2011), a circuit court in the Second Judicial Circuit held that the appropriations act “proviso, which mandates that the [Florida] D[epartment] o[f] C[orrections] privatize numerous facilities in a single procurement, is unconstitutional under Art[icle] III, Sections 6 and 12 of the Florida Constitution.” The court noted that under current law, the Department of Corrections (DOC) may enter into contracts with private vendors for the operation of private prisons. § 944.105, Fla. Stat. (2010). But, the Florida Statutes require that specific conditions be met and specific procedures followed. See §§ 944.105, 287.057(b)(1), 287.0571, 287.001, 216.023, 216.023(4)(a), & 216.023(4)(b), Fla. Stat. (2010).

At issue in this case was whether the proviso language adopted as part of the General Appropriations Act during the 2011 Legislative Session, that purported to create an alternate procedure for prison privatization, was valid. The court found that it was not, and held that the Legislature had improperly “bypassed the very safeguards it built into the process that DOC is required to follow when DOC initiates privatization pursuant to substantive law.” Rejecting this attempt to set public policy via proviso, the court held that “if it is the will of the Legislature to itself initiate privatization of Florida prisons, as opposed to DOC, the Legislature must do so by general law, rather than ‘using the hidden recesses of the General Appropriations Act.’”(quoting Dickinson v. Stone, 251 So. 2d 268, 273 (Fla. 1971)).