Polk Law Blog

Thursday, oral arguments were held before the Florida Supreme Court in the case of Altman v. Scott. I have written several prior posts about this case with background.

These oral arguments were a bit of a spectacle. Going in, I was personally impressed with the argument of the Petitioners in favor of the project and looking forward to clarification and support. Their brief seemed more throughly researched and well-written than did the Governor’s, which came across as overly political to me.

In my opinion, the attorney for the Petitioners was far less effective during oral arguments than the attorney for the Governor, who was poised, knowledgeable, and direct.

To begin with, the Petitioners’ attorney had a hearing problem. At the outset of the proceeding, Justice Pariente started to ask him a question and he did not hear her — he just kept on talking. The first rule of appearing in court is: shut your mouth when the judge or justice opens hers. Chief Justice Canady had to bang his gavel to get him to stop and listen. It was painful to watch.

Throughout the proceeding, he clearly had trouble hearing the Court’s questions. Far from being a minor annoyance, I think it may have caused him to misunderstand some of their questions. In particular, I think there was some confusion at one point over whether he was answering a question concerning $130 million already appropriated to the Florida Rail Enterprise or the $2.4 billion in federal funding yet to be received.

It was pretty awkward for all involved. As the advocate for your client, you never want to be the cause of such a scene, whether it is the result of an unforeseen issue or lack of planning.

The Heart of the Matter: The Question of Future Appropriations

The justices were very interested in finding out about future appropriations. Justice Pariente, in particular, hammered the Petitioner’s attorney with the question of whether the legislature was required to pass future appropriations acts for the remainder of the $2.4 billion grant.

The question is important. If the legislature is required to pass future appropriations bills to authorize expenditure of the future federal grant monies, then there is absolutely nothing whatsoever wrong with the governor telling the federal government that he intends to veto those appropriations.

If, on the other hand, no future appropriations are required, the existing laws on the books function as a continuing appropriation. The governor would have no choice under the law but to acquire and spend the money, and it would be inappropriate for him to tell the federal government that the money would not be accepted.

In the Petition and the Reply brief, the Petitioners made it clear that the existing laws are all that is needed for the state to accept and spend the entire federal grant:

[The grants totally $2.4 billion dollars] are continuing appropriations pursuant to Chapter 216.011, Fla. Stat., et seq. Since the Florida Rail [Enterprise] has the authority to accept the federal grant without the funds ever going into the Florida treasury, then there is no need to have further appropriation by the Legislature.” (Reply, p. 4).

So what did the Petitioner’s attorney do when pressed about that exact question at oral argument? He caved and changed his story!

[Justice Pariente] My question remains, I think you answered it but I’m not sure, I’ll give you a chance: the legislature has neither appropriated $2.4 billion, nor have they, within the Florida Rail Act or Chapter 216, provided that the federal money, the federal grant money, flow to the Rail Enterprise without continuing [meaning additional] appropriations by the legislature. In other words, the legislature, on a yearly basis, still has to act to appropriate… The question is, let’s say we give you relief on $66 million, that’s not going to get this rail project built, and so it’s really up to the legislature to decide whether they want a continuing appropriation or not. So tell me, what’s wrong with that view, could you please answer that?…

Please answer my question. Is the rest of the money dependent upon what the legislature may do in the future, not the governor? Or both? Is that not correct? In other words, there is no situation of a continuing source of the $2.4 billion coming to the state from the federal government without the legislative action?

[Petitioner] The legislature on a yearly basis, under this law, has to approve the budget…

The Petitioner’s counsel then responds to several rapid-fire questions with hints that some of the money might be in the form of reimbursements, some of the money might be advanced, some of the money might flow “independent of the legislature,” and similar confusing statements. I could almost hear the train screeching to a halt as he spoke.

Justice Pariente did not seem impressed, either:

[Justice Pariente] I think this goes back to the question; I’m still not sure you answered it. The legislature could have made this a continuing appropriation, or they could have exempted it… but it’s not clearly done — the law… [So] we’re trying to figure out whether the governor has violated some clear law, and what you’re telling us is that we have to piece together about ten different statutes and exhibits and do it by, you know, nine o’clock tomorrow morning… I cannot see the legal right.

Chief Justice Canady summed up the trouble nicely about twenty-three minutes into it:

[Chief Justice Canady] Basically, didn’t the federal government ask the governor to give assurances that he is all for this, and he would support it along the way, and if he’s not for it, why can’t he express his opposition to it? Particularly when the consummation of this is all subject to these appropriations that the legislature still has to make and which have to come before the governor in his capacity of possibly exercising his veto.

It seems like to to me, this is a project which is still very much an expectancy; it’s not something the legislature has fully authorized.

In my view, the Petitioners could have only won this case if they had convincingly make the argument that the the legislature is done with its job. They made the argument in the pleadings, but then could not sustain it at oral argument.

Unfortunately for proponents of high speed rail, I would be quite surprised if the Court grants the Petition, and, in my opinion, they should not grant the Petition.

The Petitioners’ argument made sense (I was quite taken by it myself, yesterday) only if future legislative appropriations of the grant money would not be required. If future appropriations are required, I can’t see any legal prohibition on the governor expressing his opposition to the project to the U.S. Department of Transportation or anyone else.

We’ll see what happens in a few hours!