Holy Cow! Fla. Supremes Say Oops (kind of) in Strand

Wow! Three weeks after issuing Strand v. Escambia County, and after numerous motions for rehearing poured in because of the implications of the decision on existing non-validated bonds and obligations, the Supreme Court issued this revised opinion AND granted rehearing.

The revised opinion expands protections for bonds and obligations already issued (especially critical to CRAs) and also COPS (certificates of participation) already issued by school boards under the Sarasota School Board case.

Here's the language from the order on rehearing, the likes of which I have never seen:

Having issued a revised opinion, the Court defers ruling on the Appellee's Motion for Rehearing and Clarification until after the below scheduled oral argument.
The Court's order dated September 20, 2007, previously setting oral argument, is hereby vacated. Oral argument on rehearing is hereby scheduled at 9:00 a.m., Tuesday, October 9, 2007. A maximum of twenty minutes to each side is allowed for the argument, but counsel is expected to use only so much of that time as is necessary. The motion to expand time for oral argument, filed by Escambia County, Florida, is denied. Parties and amici curiae on each side shall agree on the division of time for each respective side prior to oral argument, but not more than one attorney may speak on behalf of each category of interest.

The revised opinion removes any issue with regard to bonds issued or validated prior to this opinion becoming final and they are unaffected. Additionally, the revised opinion removes any issue with regard to certificates or obligations issued in reliance upon State v. School Board of Sarasota County, 561 So. 2d 549 (Fla. 1990), and they are similarly unaffected. Therefore, the Court will not entertain any arguments related to bonds previously issued or validated or any arguments related to certificates or obligations issued in reliance upon State v. School Board of Sarasota County.

Here's the guts of the revisions to the opinion:

Also, our decision in this case does not affect bonds that were validated prior to this opinion becoming final. See Miami Beach, 392 So. 2d at 895; County Comm’rs v. King, 13 Fla. 451 (1869). As this Court has stated, “after validation, the courts will protect even the purchasers of unconstitutional bonds.” Miami Beach, 392 So. 2d at 895 (citing Giles J. Patterson, Legal Aspects of Florida Municipal Bond Financing, 6 U. Fla. L. Rev. 287, 289 (1953)). Moreover, our decision in this case does not affect bonds that were issued prior to this opinion becoming final. In other words, this opinion does not retroactively apply to bonds and obligations that have been issued based on the authority of the precedent from which this Court now recedes.

Accordingly, we reverse the trial court’s final judgment in this case and hold that Escambia County does not have authority to issue the subject bonds without a referendum. In so doing, we recede from Miami Beach.8

8. Our receding from Miami Beach does not impact the ultimate holding of State v. School Board of Sarasota County, 561 So. 2d 549 (Fla. 1990), or the validity of similar certificates of participation issued or to be issued in reliance thereon. See 561 So. 2d at 552 (explaining that like the agreements this Court authorized without a referendum in State v. Brevard County, 539 So. 2d 461 (Fla. 1989), the agreements at issue in School Board of Sarasota County do not “matur[e] more than twelve months after issuance”).

[emphasis added by RL]

The local government community and school boards all over the state have been in a panic over whether the original decision left existing bonds in limbo, and I heard last week that pretty much the entire body of TIF bonds had been de-rated by S&P due to the decision (and the fact that these generally don't get validated).

I'll say it again - WOW!