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DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA

APPEAL NO.: 1D21-2994

Original Proceeding GINA DORTCH, BRAD GONZALEZ, SCOTT BURFORD, AMBER BURFORD, NICHOLE CARLISLE, CARRIE GILLESPIE, KIM HICKEY, AMANDA MOORE, MICHAEL TICKEL, AMANDA WEBER, AMANDA DONOHO, DEE BASSO, SHELISA WINGENBACH, KATIE LEWANDOWSKI, GREGORY ADAME, HEATHER WALLACE, GARY DESJARDINS, MICHELLE PETTY, TARAN HELM, JEFF SELLERS, SEAN COLLINS, and TIA BESS,

Petitioners,

vs. ALACHUA COUNTY SCHOOL BOARD, Superintendent Carlee Simon, DUVAL COUNTY SCHOOL BOARD, Superintendent Diana Greene,

Respondents. __________________________________________/

RESPONDENTS’, DUVAL COUNTY SCHOOL

BOARD, SUPERINTENDENT DIANA GREENE, RESPONSE TO COURT’S OCTOBER 4, 2021 ORDER

TO SHOW CAUSE OR, ALTERNATIVELY, MOTION TO STAY

Respondents, Duval County School Board, Superintendent Diana

Greene (hereinafter “DCSB”), pursuant Rule 9.100(h) & (j), Florida Rules of

Appellate Procedure, hereby respond to the Court’s October 4, 2021 Order

Filing # 136231760 E-Filed 10/08/2021 04:54:45 PM

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to Show Cause why the Petitioners’ Emergency Petition for Writ of

Mandamus should not be granted. Alternatively, the DCSB seeks a stay of

this action because many of the Petitioners here are Plaintiffs in a previously

filed and still pending federal court action making the same and similar claims

and seeking similar relief in the form of a preliminary injunction. For the

following reasons, this Court should deny the Petition or, alternatively, stay

this matter until the federal court’s disposition of the substantially similar

pending case seeking preliminary injunctive relief and damages. The

Petition is duplicative, procedurally and legally defective on its face, and does

not state a cause of action for extraordinary mandamus relief.

A. Background facts.

Petitioners allege that mandamus should lie to compel the DCSB to

comply with a Department of Health (“DOH”) Emergency Rule. The DCSB’s

temporary policy generally requires all Duval County school children to wear

a mask while indoors to prevent the spread of COVID-19. The policy allows

parents to opt their children out if a licensed health care provider signs a form

certifying that the student has a medical, physical, or psychological reason

for being unable to wear a mask. Petitioners claim they are entitled to

mandamus relief, despite not alleging in their Petition that their children

attend DCSB schools, much less that their children are actually being

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required to wear masks or that they want to opt them out of wearing a mask

but were unable to do so.

Petitioners argue that this Court should issue a writ of mandamus

because the Board cannot “even challenge [the] validity” of the Florida

Department of Health’s Emergency Rule 64DER21-15 purporting to allow

parents to opt their children out of wearing masks without limitation and

allowing children to attend school even if they test positive for COVID-19, as

long as they are asymptomatic. In other words, they argue that a State

agency can make adminstrative rules and the DCSB has no discretion to

even challenge the rules or come up with local solutions to a continuing

pandemic while school is in session. Should the DCSB challenge the rules

or fail to comply, Petitioners argue this Court must in all circumstances issue

an extraordinary writ directing local elected officials how to run Duval

County’s school system.

Challenges surrounding the DCSB’s mask policy have been pending

in federal court for over a month and a hearing on those challenges is

imminent, making a stay of this action necessary. Moreover, the current

DOH Emergency Rule, included in Petitioners’ Appendix at pages 4-5, is the

subject of a rule challenge in the Division of Administrative Hearings

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(“DOAH”), discussed further below. Even without a previously filed

duplicative action, however, Petitioners are not entitled to mandamus relief.

B. The Petition Should Have Been Filed in Circuit Court.

Although both circuit courts and the Florida District Courts of Appeal

have the power to issues writs of mandamus within their jurisdiction under

Rule 9.030, Florida Rules of Appellate Procedure, courts have generally held

that circuit courts should address claims for mandamus to force ministerial

action by local officials and agencies while appellate courts typically only

enter writs of mandamus requiring circuit courts to act. Thus, this Court

should dismiss the Petition as it should have been filed in circuit court. See,

e.g., Scott v. State, 130 So. 3d 741, 742-43 (Fla. 3d DCA 2014) (holding that

circuit courts typically have authority over mandamus actions stemming from

Department of Corrections’ failure to act); Holveck v. State, 730 So. 2d 407,

408 (Fla. 5th DCA 1999) (holding that circuit court had jurisdiction over

mandamus action involving actions at mental institution); Sheley v. Fla.

Parole Comm’n, 720 So. 2d 216, 218 (Fla. 1998) (petitions for mandamus

seeking review of orders of Florida Parole Commission are properly directed

to circuit courts).1

1 In a similar case involving the same counsel, the Fifth District Court of Appeal entered an Order to Show Cause on October 7, 2021, directing petitioners to show cause within ten days as to why the petition for writ of

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C. Petitioners Have Not Alleged Standing.

The Petition should also be dismissed because there is no allegation

in the Petition as to who the Petitioners are or whether they are residents of

any specific county within the First District, or whether they are students or

parents of students attending any school within the First District. Nor have

they alleged that their children were not permitted to medically opt out of

wearing masks. In fact, they have not even alleged that their children attend

schools wearing masks, or that their children have been disciplined for

refusing to wear a mask.

A party seeking a writ of mandamus is required to show a clear legal

right to the performance of an act, and to do so, a petitioner must establish

standing. Chandler v. City of Greenacres, 140 So. 3d 1080, 1083 (Fla. 4th

DCA 2014). “Standing is a legal concept that requires a would-be litigant to

demonstrate that he or she reasonably expects to be affected by the

outcome of the proceedings, either directly or indirectly.” Id. quoting Hayes

v. Guardianship of Thompson, 952 So.2d 498, 505 (Fla.2006).

mandamus should not be transferred to circuit court, “which is in a better position to fact find.” This order is attached to Respondent DCSB’s Appendix as “Resp. 1.” The DCSB contends that the petition in this case should be denied and dismissed, but at the very least, it should have been filed in circuit court.

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Even if Petitioners alleged that they are parents of students in schools

in the First District (which they did not), they also have not alleged that they

have suffered any special injury beyond any other parent or member of the

public, which is required for standing to bring a mandamus action. See, e.g.,

Centrust Savings Bank v. City of Miami, 491 So. 2d 576, 578 (Fla. 3d DCA

1986) (affirming circuit court’s dismissal of petition for writ of mandamus

because property owner lacked standing when owner failed to allege special

injury apart from injury suffered by any member of the general public).2 The

lack of proper standing allegations mandates dismissal of the Petition.

D. The Petition Should Be Dismissed or Stayed as the Same Issues are Pending in Federal District Court. The Petition should also be dismissed or at least stayed because the

same individual parents (individually and on behalf of their children), with the

same counsel, sued the DCSB over a month ago and are seeking preliminary

injunctive relief in federal court to prevent enforcement of the temporary

mask mandate. See Helm, et al. v. Duval County School Board, Case No.

2 Recently, this Court expressed doubt as to parents’ standing to bring a challenge to the State’s policy on mask mandates in schools. See https://www.clickorlando.com/news/local/2021/09/13/parents-fighting-florida-mask-mandate-ban-want-to-speed-case-to-supreme-court/ (“Upon our review of the trial court’s final judgment and the operative pleadings, we have serious doubts about standing, jurisdiction, and other threshold matters”).

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3:21-cv-00900-TJC-JRK (M.D. Fla. Sept. 2, 2021). App., Resp. 2 (district

court docket).3 The parties have submitted extensive evidence and a

hearing on the Plaintiffs’ motion for preliminary injunction is scheduled in

federal court on October 15, 2021. The district court will decide whether to

enjoin the mask mandate based on constitutional, statutory and state law

claims.

The current Petition is therefore inappropriate concurrent litigation

seeking the same relief against the DCSB—an order directing the DCSB to

3 The full citation for the federal court case is Kyle and Taran Helm, individually and as next friends for Jane Doe 1, Jane Doe 2 and Jane Doe 3, Gary and Amy Desjardins, individually and as next friends for John Doe 1 and Jane Doe 4, Michelle Petty, individually and next friend for Jane Doe 5 and Jane Doe 6, Heather Wallace, individually and as next friends for Jane Doe 7 and Jane Doe 8, Gregory and Krystle Adame, individually and as next friend for Jane Doe 9, Jeff and Carrie Sellers, individually and as next friends for Jane Doe 10, John Doe 2, Jane Doe 11, Sean and Carolina Collins, individually and as next friend for John Doe 3, Robby and Tamsyn Bell, individually and as next friends for Jane Doe 12, Jane DOE 13, and Jane Doe 14, Stan and Katie Lewandowski, individually and as next friends for Jane Doe 15 and John Doe 4, Marleatia Bess and Robin Freel, individually and as next friends for Jane Doe 16 and John Doe 5 v. Duval County School Board, Case No. 3:21-cv-00900-TJC-JRK (M.D. Fla. Sept. 2, 2021). It appears all but one set of parents in the Helm federal case are represented in this original action. Twenty-one students are also represented in the Helm case. Interestingly, on their Docketing Statement in this Court, Petitioners did not list the Helm case as a related matter in answer to question number eleven, even though both cases are the same parties and counsel and seek the same ultimate relief.

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rescind and not enforce its temporary mask mandate.4 Nine of the

Petitioners seeking mandamus relief herein—Katie Lewandowski, Gregory

Adame, Heather Wallace, Gary Desjardins, Michelle Petty, Taran Helm, Jeff

Sellers, Sean Collins, and Tia Bess—are also Plaintiffs in the federal action

seeking a preliminary injunction to accomplish the same result as this

extraordinary writ action is attempting. Petitioners should not be permitted

to forum shop and the Petition should be dismissed or stayed pending

resolution of the federal litigation.

In Robeson v. Melton, 52 So. 3d 676, 679 (Fla. 4th DCA 2009), the

Fourth District Court of Appeal upheld the state court’s decision to stay a

subsequently filed action when a substantially similar action was already

pending in federal court. See also Beckford v. General Motors Corp., 919

So. 2d 612, 613 (Fla. 3d DCA 2006) (“It is well-settled that when a previously

filed federal action is pending between substantially the same parties on

substantially the same issues, a subsequently filed state action should be

4 It is also interesting to note that while a “Notice of Demand; Cease and Desist” letter sent to counsel representing Alachua County’s School Board is part of the Appendix to the Petition (at page 11), a similar letter sent to counsel for the DCSB, by the same counsel in the Helm case, is not part of the Appendix. That letter, referred to on page 12 of the Petition, is included in Respondent’s Appendix as “Resp. 3.” It shows that the same counsel was anticipating filing duplicative litigation even while pursuing the same relief in federal court.

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stayed pending disposition of the federal action.”). The same is true here.

Petitioners’ counsel already filed a lawsuit over a month ago on behalf of the

same parents seeking the same relief—an order declaring the DCSB’s mask

mandate null and void and ordering it not to enforce the temporary policy. In

that pending federal action, Petitioners’ counsel filed on September 20, 2021

a motion for preliminary injunction seeking an injunction against the DCSB

forbidding it to enforce its temporary mask mandate—the same relief being

sought here. A hearing on this motion is only a week away as of the filing of

this Response.

The Florida Supreme Court long ago held that “‘[w]here two actions are

pending between the same parties involving the same state of facts and

aiming to accomplish substantially the same result, the court may stay

proceedings in the latter action until the other shall have been heard and

decided and the same rule applies where the prior action is pending on

appeal.’” Solomon v. Gordon, 4 So. 2d 710, 711 (1941) (citation omitted;

emphasis added). Importantly, a stay does not require complete identity of

both the parties and the causes of action, but rather only a substantial

similarity of the parties and actions is required. See Sauder v. Rayman, 800

So. 2d 355, 358 (Fla. 4th DCA 2001); Polaris Pub. Income Funds v.

Einhorn, 625 So.2d 128, 129 (Fla. 3d DCA 1993). In fact, if the two cases

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“involve a single set of facts” and the prior case will resolve “many of the

issues involved in the subsequently filed case,” then the subsequent case

should be stayed. In re Guardianship of Morrison, 972 So. 2d 905, 909-10

(Fla. 2d DCA 2007), quoting Fla. Crushed Stone Co. v. Travelers Indem. Co.,

632 So. 2d 217, 220 (Fla. 5th DCA 1994). Moreover, it is “an abuse of

discretion to refuse to stay a subsequently filed state court action in favor of

a previously filed federal action which involves the same parties and the

same or substantially similar issues.” Fla. Crushed Stone Co., 632 So. 2d at

220.

Here, if this Court does not stay or dismiss this subsequent state court

action, it is possible that the court’s concern in Robeson will come to pass—

the two courts could issue inconsistent orders in these duplicative cases.

See Robeson, 52 So. 3d at 679. Thus, the federal court, as the first to have

jurisdiction over the validity and enforceability of the temporary mask

mandate, should rule first. Petitioners should not be permitted to forum shop

by filing actions in different courts seeking the same result. See id. at 677-

78. This Court should stay or dismiss the Petition.

E. The Requirements for the Extraordinary Writ of Mandamus are not Satisfied. Even if a challenge to the temporary mask mandate was not already

before another court, there is no basis for an original action in this Court

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seeking extraordinary mandamus relief directed at local officials. In order for

the Court to issue the extraordinary writ of mandamus, Petitioners must

establish “that [they have] a clear legal right to the performance of a clear

legal duty by a public officer and that [they have] no other legal remedies

available to [them].” RHS Corp. v. City of Boynton Beach, 736 So. 2d 1211,

1213 (Fla. 4th DCA 1999), citing Hatten v. State, 561 So. 2d 562, 563 (Fla.

1990) (internal citations omitted). Here, even putting aside that any petition

for relief should have been filed in the circuit court, mandamus should not lie

for a number of reasons.

1. Petitioners have another legal remedy—the federal lawsuit.

First, extraordinary mandamus relief is not available if the petitioner

has another adequate remedy. See Conner v. Moran, 278 So. 3d 790 (Fla.

1st DCA 2019); Point Conversions, LLC v. Pfeffer & Martin Holdings, LLC,

2020 WL 2048064 (Fla. 3d DCA 2020). Here, Petitioners obviously have

another adequate remedy—they are seeking the same relief in a federal

court lawsuit with a hearing one week away. Mandamus relief is therefore

not available and the Court should deny the Petition.

2. There is no clear, established right to mandamus relief.

Second, the Petition seeks a writ of mandamus to compel the

performance of an act that the DCSB does not have a truly ministerial duty

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to perform. Mandamus is the common law remedy to enforce an established

legal right by compelling a public officer or agency to perform a purely

ministerial duty required by law. See Pleus v. Crist, 14 So. 3d 941, 945 (Fla.

2009); Polley v. Gardner, 98 So. 3d 648, 649 (Fla. 1st DCA 2012).

A complaint for writ of mandamus must show a violation of a clear legal

right and corresponding breach of an indisputable duty. See Hoever v.

Florida Dep’t of Corr., 156 So. 3d 543, 544 (Fla. 1st DCA 2015). “The legal

duty must be ministerial and not discretionary. A ministerial duty or act is

one “where there is no room for the exercise of discretion, and the

performance being required is directed by law.’” Polley, 98 So. 3d at 649,

quoting Town of Manalapan v. Rechler, 674 So.2d 789,790 (Fla. 4th DCA

1996). Importantly, mandamus may be used “only to enforce a right already

clearly and certainly established in the law,” and may not be used to litigate

the existence of, or entitlement to, the right. See Florida League of Cities v.

Smith, 607 So. 2d 397,400-01 (Fla. 1992); Miami-Dade Bd. of Cty. Comm’rs

v. An Accountable Miami-Dade, 208 So. 3d 724, 731 (Fla. 3d DCA 2016).

Here, there is no clear, established or ministerial legal duty subject to

mandamus relief. Plaintiffs argue that school boards cannot challenge the

validity of the Florida DOH’s Emergency Rule 64DER21-15 under the

doctrine of “public official standing.” Pet. at 1. In other words, the State

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agency sets the law by administrative rule and the local boards can do

nothing about it. This is incorrect, and in fact, the prior DOH Rule was

challenged by five Florida school districts.5 Then, on or about October 6,

2021, the school boards of Miami-Dade, Leon, Duval, Orange, Broward and

Alachua counties jointly filed a Petition to Determine Invalidity of Department

of Health Emergency Rule 64DER21-15. App., Resp. 4 (petition exhibits

omitted). On October 8, 2021, the date of this Response, the DOAH

Administrative Law Judge entered an order and pre-hearing instructions,

expediting discovery and setting a final hearing within fourteen days. App.,

Resp. 3.

The school boards argue that the DOH does not have rulemaking

authority to protect parental rights and has no statutory basis to enact the

current Emergency Rule, and thus the Rule is an “invalid exercise of

delegated legislative authority” because it is an “action that goes beyond the

powers, functions, and duties delegated by the Legislature” under section

120.52(8), Florida Statutes. App., Resp. 4 at ⁋ 64. Moreover, the boards

5 See https://health.wusf.usf.edu/health-news-florida/2021-09-08/alachua-broward-orange-school-districts-challenge-state-health-dept-mask-rule Miami-Dade County School Board and Leon County School Board also filed a rule challenge at the Division of Administrative Hearings, that was consolidated with the challenge brought by Alachua, Broward and Orange County School Boards.

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argue that the DOH did not follow the proper rulemaking procedures in

Chapter 120, Florida Statutes, and it has no rulemaking powers under the

Parents’ Bill of Rights. This is a valid Rule challenge that is now before an

administrative law judge.

Therefore, because the Rule’s validity remains unclear, it cannot form

the basis for a “clear, established or ministerial” duty such that a writ of

mandamus can be issued to the DCSB. Contrary to Petitioners’ repeated

assertions that the Emergency Rule cannot be challenged, section

120.56(1)(a), Florida Statutes, provides: “[a]ny person substantially affected

by a rule or a proposed rule may seek an administrative determination of the

invalidity of the rule on the ground that the rule is an invalid exercise of

delegated legislative authority.” Section 120.52(14), defines “person” to

mean “any person described in s. 1.01, any unit of government in or outside

the state, and any agency described in subsection (1)” (emphasis added).

School districts are “units of government” in the state, and therefore are

eligible to challenge rules that substantially affect them.

School Districts are also “educational units” as defined in section

120.52(6), which are included within the section 120.52(1) definition of

“agency.” Mitchell v. Leon Cty Sch. Bd., 591 So. 2d 1032, 1033 (Fla. 1st

DCA 1991). There is no authority for the assertion that school boards, as

public officials and/or units of government, are barred by the public official

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standing doctrine—or by any other law—from challenging a rule that

substantially affects them under section 120.56.6 Indeed, such challenges

are routinely decided by DOAH.7 This makes sense, as the public official

standing doctrine was not intended to allow an executive agency to ignore

any limitations on its rulemaking authority with impunity by issuing rules

aimed solely at units of government and then claim, as the Petitioners do

here, that the units of government have no authority to challenge the rules.

Petitioners also point to the School Board of Collier County v. the

Florida Department of Education, 279 So. 3d 281, 288-89 (Fla. 1st DCA

2019), as support for school boards lacking authority to attack the validity of

6 Petitioners quote Scott v. Francati, 214 So. 3d 742, 749 (Fla. 1st DCA 2017), for the proposition that “this Court’s precedent prevents School Boards from challenging a rule they are required to apply.” Pet. at 12. That quote is nowhere to be found in the Francati case, which is completely inapposite to this case. Francati involved a nursing home resident challenging the constitutionality of a statute limiting claims against nursing homes. See id. Thus, not only is Francati irrelevant here in that it did not even involve school boards, the existence of that quotation is a mystery as the DCSB has so far been unable to locate where the quotation actually came from, assuming it is genuine quote in the first instance. 7 In fact, a DOAH Administrative Law Judge denied the Department of Health’s motion to dismiss the school boards’ petition challenging the previous Emergency Rule, reasoning that the public official standing doctrine did not deprive DOAH of jurisdiction to decide the rule challenge. App., Resp. 5. The Department of Heath sought a writ of prohibition from this Court based on the DOAH judge’s order, but that petition was dismissed after the previous Emergency Rule was repealed and replaced by the new Rule.

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laws that affect them. However, School Board of Collier County is also

inapposite to this case. School Board of Collier County involved a

constitutional challenge to a statute, not an administrative agency rule. See

id. at 286. The public official standing doctrine is grounded in the separation

of powers, recognizing “public officials are obligated to obey the legislature’s

duly enacted statute until the judiciary passes on its constitutionality.” Sch.

Dist. of Escambia Cty. v. Santa Rosa Dunes Owners Ass’n, 274 So. 3d 492,

494 (Fla. 1st DCA 2019). There is no separation of powers concern here

because the DOH Rule—which is not a statute—is being challenged with

DOAH, which is not the judiciary and cannot rule whether a statute is

unconstitutional. See Gulf Pines Memorial Park, Inc., v. Oakland Memorial

Park, Inc., 361 So. 2d 695 (Fla. 1978); Smith v. Willis, 415 So. 2d 1331, 1335

(Fla. 1st DCA 1982).

In short, Florida law provides a process for rules to be enforced and

challenged through DOAH or directly to the district courts of appeal (for

emergency aspects of rules). Importantly, here the Florida Board of

Education had an enforcement hearing on October 7, 2021, against eight

school districts, including Duval County, for which it has found probable

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cause regarding noncompliance with the DOH’s Emergency Rule.8 The

State Board found the counties in violation of the Rule and voted to sanction

the school boards.9 This finding that the districts are in violation of the Rule

can be appealed and ultimately reviewed by the appropriate appellate court.

That would be the time for the district court of appeal to be involved, not

through an original mandamus proceeding.

The Petitioners’ claim that the public official standing doctrine should

apply here is absurd. For example, if the Petitioners’ interpretation of the

public official standing doctrine is correct, then school boards could not even

challenge a DOH rule that the boards must segregate their classes by race.

This Court should deny the Petition.

3. Mandamus relief could subject the DCSB to federal liability.

In addition, should this Court issue a writ of mandamus forcing the

DCSB to rescind its temporary mask mandate, it could cause the DCSB to

violate the Americans with Disabilities Act (“ADA”) and subject it to a federal

lawsuit brought by parents of disabled students. This also demonstrates that

8 See https://www.fldoe.org/policy/state-board-of-edu/meetings/2021/2021-10-07/ 9 See https://www.tallahassee.com/story/news/local/state/2021/10/07/leon-duval-brevard-florida-school-districts-punished-board-education-mask-mandates/6018628001/

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the mask mandate issue is far from clearly established, indisputable law.

Petitioners are really asking this Court to issue the writ to order the DCSB to

make a discretionary decision, not a ministerial one.

Several federal courts have in recent weeks struck down state bans on

mask mandates, siding with parents who sued under the ADA to allow their

disabled students access to public schools where masks are required during

the COVID-19 pandemic and during an upswing in infections of the new

Delta variant of the virus. In Miranda v. Alexander, 2021 WL 4352328 *7

(M.D. La. 2021), the district court found that an alleged right not to wear a

mask does not invoke any constitutional right, nor does wearing a mask

impede a child’s right to an education. See id. at *4 (citing numerous cases).

As such, the right not to wear a mask is far from clearly established. On the

same day, a district court in Tennessee granted injunctive relief to a group

of parents and students under the ADA and the Rehabilitation Act, finding

that as disabled students face severe risks for injury or death as a result of

contracting COVID-19, the school board could not refuse to enforce a

previous mask mandate, and the Governor could not allow parents to opt out

of the school board’s mask mandate. See S.B., by and through M.B., et al.

v. Lee, 2021 WL 4346232 *28 (E.D. Tenn. 2021); see also Arc of Iowa v.

Reynolds, 2021 WL 4166728 *12 (enjoining enforcement of Iowa’s mask

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mandate ban was causing irreparable harm to disabled students); Disability

Rights South Carolina v. McMaster, 2021 WL 4444841 (D.S.C. 2021)

(enjoining state’s ban on mask mandates as denying disabled students

meaningful access to education).

In S.B., the district court cited extensive expert testimony and studies

demonstrating that mask wearing is essential to prevent the spread of

COVID-19 in schools. See S.B., 2021 WL 4346232 at *15 (emphasis in

original); Arc of Iowa, 2021 WL 4166728 at *8-9 (reviewing data and stating

that it “overwhelmingly supports” universal masking for all students, staff and

teachers); Disability Rights South Carolina, 2021 WL 4444841 at *6 (“…the

benefits of masking significantly exceed the costs”). The S.B. court further

recognized that, according to a study from Duke University, “when all

students inside a school are wearing masks, only one out of every 3,000

students contracts COVID-19.” S.B., 2021 WL 4346232 at *15.

In other words, particularly in light of the highly transmissible Delta

variant, masks are essential to stopping the spread of the virus. See id. at

*16-*17. Moreover, “very few” conditions “would preclude a child from

wearing a mask and needing an exemption.” Id. at *21 (internal citations

omitted); Arc of Iowa, 2021 WL 4166728 at *8 (“data shows that mask

wearing has no significant health effects for wearers”) (citation omitted).

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Here, should this Court force the DCSB to rescind its mask mandate,

it could be forcing the DCSB to violate the ADA and immediately subject it,

and the DOH and the Governor, to federal lawsuits from parents of disabled

students who are at a severe risk of injury or death from COVID-19. In fact,

this has already happened, as Respondent Alachua County School Board,

along with the Governor and Department of Education, are being sued by

parents of disabled children in the United States District Court for the

Southern District of Florida. See Hayes v. DeSantis, 2021 WL 4236698 (S.D.

Fla. 2021).

The bottom line is that masks work, and they are essential for some

students to have access to public schools. This Court should not force the

DCSB into potential liability under federal law. At the very least, this

demonstrates that mandamus is inappropriate because Petitioners are

seeking the writ to order the performance of a discretionary act, not a

ministerial one based on clearly established, indisputable law.

Given that there is no clearly established law to support the issuance

of an extraordinary writ of mandamus, and no clear, indisputable ministerial

duty to act on clearly established law, the Petition should be denied.

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F. Conclusion.

Mandamus relief should not be granted against the DCSB because the

Petition should have been filed in circuit court and the Petitioners do not

allege standing. Moreover, the act Petitioners are seeking to compel is not

ministerial. The validity of the DOH Emergency Rule upon which this action

is premised is the subject of a pending rule challenge in DOAH, a process

that is expedited and will proceed with a fully developed evidentiary record,

as opposed to no record in this extraordinary writ proceeding. The DOAH

proceeding, along with the pending federal court action against the DCSB,

should be allowed to play out.

In short, issuing a writ of mandamus herein would be a radical

departure from mandamus jurisprudence in Florida. It would transform what

is supposed to be an extraordinary writ into an ordinary one, and

concomitantly transform district courts of appeal into courts of first resort for

other forum-shopping litigants. This Court should deny the Petition, or

alternatively, stay this action.

Respectfully submitted,

/s/ Craig D. Feiser Jon R. Phillips (FBN 273813) Deputy General Counsel Craig D. Feiser (FBN 164593) Assistant General Counsel James E. Millard (FBN 047358) Assistant General Counsel

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City of Jacksonville Office of General Counsel 117 West Duval Street, Suite 480 Jacksonville, FL 32202 (904) 255-5100 (904) 255-5120 (facsimile) JPhillips@coj.net; CRegister@coj.net; CFeiser@coj.net; BOsburn@coj.net; JEMillard@coj.net; KGay@coj.net Counsel for Respondents, Duval County School Board, Superintendent Diana Greene

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 8th day of October, 2021, a true and

correct copy of the foregoing has been furnished by electronic mail upon

counsel of record for all parties in the above-captioned matter.

/s/ Craig D. Feiser Counsel for Respondents

CERTIFICATE OF COMPLIANCE

I HEREBY CERTIFY that this response complies with the font

requirements of Florida Rule of Appellate Procedure 9.045 and that it is in

Arial 14-point font.

/s/ Craig D. Feiser