Polk Law Blog

[UPDATE 3/3/2011: I have updated my analysis to include the response filed by Governor Scott and the reply filed by the petitioners in a subsequent post.]

On Tuesday, state senators Thad Altman and Arthenia Joyner sued Governor Rick Scott seeking a “writ of quo warranto” or a “writ of mandamus”.  A writ of quo warranto is an order demanding that the responding party prove by what authority he acts. It is most often used to challenge someone’s right to sit as an elected official if, for example, the election was faulty or he is not qualified to hold office. A writ of mandamus is simply an order telling a government official not to do something.

The various documents filed in the case are available online from the Florida Supreme Court. Also, I wrote an earlier post raising issues similar to those mentioned in the lawsuit. 

Wait, what are you talking about?

Here’s the nutshell. Florida has been working on securing federal funding for a high speed rail line between Tampa and Orlando for a while now. Last year, the feds agreed to give Florida 2.4 billion dollars to fund its construction, which made a lot of people very happy. Our new governor, Rick Scott, doesn’t like the project, so he up and decided all by himself that Florida wasn’t going to take the money. He called up DC and told them to keep it. That made the happy people very sad.

So now, some of those sad people are suing Governor Scott claiming that he did not have the legal authority to turn down the money. Got it?

There are two arguments in the petition. The first one is pretty clever, but I vote the second as most likely to succeed.

From here on out I am going to call the people who filed the case the “Petitioners” instead of the usual “Plaintiffs” because they technically filed a “Petition” for a writ, as opposed to a regular lawsuit.

OK, so what’s the first argument?

Argument One is that the governor does not have the authority to reject legislative appropriations. When I read it, my immediate reaction was “Wait a minute! This is not a legislative appropriation. This is a federal grant, an entirely different thing.”

Well, that’s the clever part. Under the Petitioners’ argument, funds collected from taxes are not the only funds under the control of the legislature. The Petitioners argue that money received from the federal government is a “legislative appropriation” that the governor does not have control over. In their view, the source of the funds is irrelevant. State appropriations are under legislative, not executive, control:

“In Florida’s tripartite system of government, the Legislature has the duty and authority to appropriate money as necessary  for  the  operation  of the  agencies  of government   and   has   the   right   to   specify  the   conditions   under which  the appropriated monies shall be spent…  This necessarily includes the duty to  appropriate and authorize the use of all federal funds available to the State.” (Petition, p. 12).

“Simply stated, whether such funds  derive from the state or from federal funds  granted  to  the  state,  the appropriation  of such  funds  constitutionally  lies exclusively with the Florida Legislature.” (Petition, p. 14).

The petitioners cite to a Florida Statute to support their argument, which says this (excerpt):

“Federal money appropriated by Congress or received from court settlements to be used for state purposes, whether by itself or in conjunction with moneys appropriated by the Legislature, may not be expended unless appropriated by the Legislature. However, the Executive Office of the Governor or the Chief Justice of the Supreme Court may, after consultation with the legislative appropriations committees, approve the receipt and expenditure of funds from federal sources by state agencies or by the judicial branch. ” Fla. Stat. sec. 216.212(3).

Next, the Petitioners anticipate and respond to an argument they expect from Governor Scott:  he may not have the authority to spend federal money without legislative approval, but he might argue that he has the authority to reject federal money. Spending and rejecting, possibly according to Scott, are two different things.

In response, Petitioners cite to the case of Chiles v. Children A, B, C, D, E, and F, 589 So.2d 260 (Fla. 1991), a Florida Supreme Court case in which the court decided that not only does a governor not have the authority to appropriate public money, he does not have the authority to reduce an appropriation, either:

“Based on all these constitutional provisions, this Court has long held that the power to appropriate state funds is legislative and is to be exercised only through duly enacted statutes... Furthermore, the power to reduce appropriations, like any other lawmaking, is a legislative function.” Id. at 265.

The Petitioners then describe a 2009 case from South Carolina where the South Carolina Supreme Court ordered the South Carolina governor to accept stimulus monies appropriated by the South Carolina legislature. (Note: it is both common and helpful to cite to the law of another state when the law in your state is not clear. Judges don’t like to invent wheels if they don’t have to.)

Will the First Argument succeed?

Well, there is at least one problem with it. You can put it in the “if I were the judge, I’d want to think more about this” category.

The authorities cited by the Petitioners — the statute, the Florida case, and the South Carolina case — are concerned with situations where monies had already been appropriated by the legislature. The governor sought to reduce the appropriations.

Here, the legislature has appropriated $300 million dollars or so of state money to high speed rail, which the Governor is obligated to spend as directed. But the legislature has not yet passed an appropriations bill concerning the $2.4 million federal grant, at least not explicitly that I am aware of. I can see how one could argue that a governor does not have the authority the reduce funds already appropriated. But what if the funds have NOT been appropriated yet, and are merely anticipated to be received? The legislature could solve this problem by appropriating them, I suppose (and then overriding the veto). In any event, it complicates the analysis.

I think I know what the Petitioner’s response to that would be. First, they’d argue that by rejecting federal money, the governor has “effectively” repealed the appropriation of the state money. (Petition, p. 6). They would also respond that by creating the Florida Rail Enterprise and authorizing and directing it to establish high speed rail and find money for it, the legislature has “appropriated” the federal funds to be received to high speed rail.

What is the Second Argument?

In my limited contemplation, I think the second argument is stronger. The second argument takes the court away from an appropriations analysis and deals directly with the issue of power. The second argument is that the Governor is required to comply with all the various laws passed concerning high speed rail. Here are the laws that Scott is allegedly violating, as described by the Petition:

• Ch. 187 Florida Statutes which requires the state to adopt a comprehensive plan. The Plan subsequently adopted includes a Tampa/Orlando rail line. The Governor does not have the authority to change the plan without legislative approval per Fla. Stat. 186.007(8). (Petition, p. 17-18).
• Fla. Stat. sec. 342.8201-842, which establishes the Florida Rail Enterprise and gives it the authority to plan, finance, construct, and operate high speed rail in Florida. (Petition, p. 18-20).
• Fla. Stat. sec. 341.839, which provides that “Except  as  otherwise  expressly provided  [by  the  Florida  Act], none of the powers granted to the [Florida Rail E]nterprise under [the Florida Rail Act]  are  subject  to  the  supervision  or  require  the  approval  or  consent  of any municipality  or political  subdivision  or any  commission,  board,  body,  bureau,  or official.” (Petition, p. 20).

Any weaknesses there?

The biggest weakness is simply lack of clarity. If the legislature had passed a statute specifically directing the Florida Rail Enterprise to apply for and accept this money for this project, it would be a potential slam dunk for the Petitioners. But it didn’t pass a law like that. Instead, the Petitioners are piecing together provisions from different places trying to paint a clear picture. The most intriguing question in my head at the moment is whether the Florida Rail Enterprise is truly outside of all control of the governor or not. These statutes seem to imply that it is, but the Constitutionality of such as super-agency is potentially dubious.

After all, the governor needed to be involved in the application process, didn’t he? If the governor does not have some say-so here, why was it necessary that he join the applications?

With that said, I think that tying this all to the comprehensive plan is interesting. Absent that tie-in, there is nothing to say exactly how the Florida Rail Enterprise  should exercise its power. Arguably, the governor might have some authority to shift priorities, but that argument is weaker when the legislature has prioritized this particular project. Sadly, there is insufficient time to really dive into it.

What about the governor’s line item veto power?

Red herring. There is no appropriation to veto, and all the bills at issue were signed into law a long time ago. Veto power has nothing to do with this unless and until the legislature passes a new bill of some kind for the governor to veto. The veto power is not retroactive.

What will happen next?

In the most amazing display of haste that I have ever personally seen out of a Florida court, the Supreme Court has directed Governor Scott to file a response by noon on Wednesday, with a reply from the Petitioners by 4:00pm the same day. This is an amazingly accelerated time frame. These sorts of things often take years to resolve. I will take a look at the Governor’s response and the Petitioners’ reply tonight and write some more.

Any other thoughts?

I am displeased by the situation because of the time frame. I do not think there is enough time for the litigants or the Court to give this issue the proper vetting and research that it deserves. This decision could have far-reaching implications and consequences for executive power in Florida. If the justices are not very careful about how they do this, they may end up doing something they do not intend. Unfortunately, that cannot be helped. Justice demands a speedy resolution.

As always, even this lengthy analysis leaves a lot of things out. There are all sorts of tricky moving parts to this that might give rise to a result not anticipated above, such as arguments about standing, technical minutiae from the various laws involved, court cases that I have not researched, etc…. So take all of this only for what it is worth: food for thought and a starting point for a deeper understanding of the issues. Then do what I am going to do: watch and see what happens next. Whatever it is, it’s gonna be dramatic.

Finally, consider this: Isn’t it really annoying when one government official sues another? We the people get to pay the lawyers on both sides and the salaries of the litigants. Grrr….

[UPDATE 3/3/2011: I have updated my analysis to include the response filed by Governor Scott and the reply filed by the petitioners in a subsequent post.]