Polk Law Blog

Yesterday, Governor Rick Scott filed his response in the high speed rail lawsuit filed by two Florida senators. I posted a legal analysis of the Petition that was filed. Today, I analyze the Response filed by Governor Scott and the Reply to the response filed by the original Petitioners. For background, please see yesterday’s post. The actual case documents are posted online by the Supreme Court.

After having reviewed the papers filed and the law in more detail, I am going to retreat a bit from the position I took yesterday. You’ll see what I mean in a moment.

The Opening Play

From the very beginning, Governor Scott’s Response strikes me as somewhat over-the-top. He makes better arguments later, but the opening pages of the brief, and to a lesser extent the remainder of the document, seem better suited for a stump speech than a legal document. For example, his legal team makes a grand straw man argument that is almost laugh-out-loud ridiculous:

“Thus, to grant Petitioners their requested relief – the application of all proposed federal funds to a high-speed rail project – this Court would have to (i) order the Legislature to enact specific appropriations for some $2.27 billion, (ii) order the Governor not to veto such legislation, and (iii) order the Legislature, if  the Governor does veto the legislation, to override that veto.  It  goes without saying that such an unprecedented order would render the separation-of-powers doctrine utterly meaningless.” (Response, p. 2).

The Petitioners easily shoot down this nonsense in their reply, and rightly so:

“Respondent seriously mischaracterizes the argument made and the relief requested by the Petitioners.  Respondent has set up a fake argument just in order to tear it down.  Petitioners are not asking this Court to direct the Respondent how to manage the construction of the high speed rail in Florida.  Instead, the Petitioners are simply asking this Court to direct the Respondent that he does not have the jurisdiction or authority as granted by the laws of this State (which he is obligated to faithfully execute) to take the action he has taken…” (Reply, p. 1).

Indeed, that is correct. It also highlights one of the conundrums here. This legal proceeding concerns one thing and one thing only – the Governor’s legal authority to call up DC and tell them not to send us a check. There are a myriad of other ways that the governor may work against this project, including working against a more formal appropriation, vetoing future legislation, firing the Florida Rail Enterprise staff, refusing to grant access to the right of way, &c.

The Response to Argument One

In my last post, I described the Petitioners “Argument One”: The federal rail funds are an “appropriation” which the governor does not have the authority to reduce.

The Governor’s response is identical to the weakness that I initially perceived in the argument (more on my take in a moment):

“Petitioners repeatedly suggest that the Legislature has already appropriated $2.4 billion for a high-speed rail project… The Legislature simply has not enacted such an appropriation.” (Response, p. 9).

Governor Scott does not argue that he has the authority to reduce appropriations. Instead, he argues that merely giving the Florida Rail Enterprise the authority to seek and administer federal grant money is not an appropriation. In order to “appropriate” funds, and thereby bind the governor to use them, Governor Scott argues that the money must be specifically appropriated, presumably by amount, to the project that the legislature desires to fund.

In their reply, Petitioners assert that there has, in fact, been an appropriation:

“The Respondent is further in serious error regarding nature of the federal grants of $2.4 billion during 2010 and thereafter.  These are continuing appropriations pursuant to Chapter 216.011, Fla. Stat., et seq.  Since the Florida Rail had the authority to accept the federal grant monies without those funds ever going into the Florida treasury, then there is no need to have further appropriations by the Legislature.” (Reply, p. 4).

Petitioners also point out that the Governor has a policy obligation to carry out the laws enacted by the legislature, including the directive to proceed with high speed rail:

“Unquestionably, Governor Scott treads on the legislative branch’s authority to enact fundamental and primary policy decisions that have been articulated through the enactment of the Florida Rail Act when he unilaterally rejects federal funding. This is a question for the legislature; a question that has been previously addressed and answered in the affirmative. If the legislature wishes to now amend or repeal its prior legislation, that is the prerogative of the legislative branch of the government, not the executive branch. The executive branch is to carry out and put into effect the will of the people as expressed in the legislative acts of their duly elected representatives, not to unilaterally decide the policies of the State of Florida. Until such time as the legislative branch acts to amend or repeal its laws, Respondent  has a constitutional mandate to ‘take care that the laws be faithfully executed.’” (Reply, p. 7-8).

The Response to Argument Two

The Petitioners’ second argument was that the governor does not have the authority to interfere with the operations of the Florida Rail Enterprise because it is an agency not within the control of any “officials” of the State:

“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.”  §  341.839,  Fla.  Stat.  (2010).

Governor Scott rejects this argument. In his Response, he points out many times that the Executive Director of the Florida Rail Enterprise serves at the pleasure of the Secretary of the Department of Transportation, who himself serves at the pleasure of and under the control of the governor. He also appeals to what he argues is the absurdity of an agency that he cannot control:

“Petitioners assert that Section 341.839, Florida Statutes, precludes any ”outside interference” with the FRE, including “interference from other executive branch officials.”  … However, Petitioners also admit, as they must, that the executive director of  the FRE “serves at the pleasure of the Secretary [of  Transportation],” id., who of  course serves at the pleasure of  the Governor.

Petitioners also imply, absurdly, that the FRE is self-financing, a sort of  fiscal juggernaut that has the inherent ability to  finance a high-speed rail system and which cannot be “interfered” with by the Governor or, apparently, by the Legislature itself, leaving the Enterprise with “no discretion”  except to finance and construct the high-speed rail system….

Contrary to Petitioners’ claims, the FRE is clearly not beyond the control of  the Governor and the Legislature, despite the powers granted to it through the Florida Rail Enterprise Act, and despite the appropriation by a past Legislature of  a small portion of  the funds that would actually be  required to build and operate the high-speed rail system.” (Response, p. 16-17), citations omitted.

The Technicalities

The elephants in the room are the various technicalities that might enable the Florida Supreme Court to reject this case without ruling on the actual issue presented. I will not analyze them in detail, but I would like to give you a flavor for what these issues are:

• Governor Scott argues that the Petitioners do not have “standing.” A party cannot seek relief from a court unless he has “standing” to do so. For example, if you hit me with your car, my cousin cannot sue you. Only I can sue you, because I am the injured party. I have “standing;” My cousin does not. In the case of suits against government officials like this one, the standing issues get very complicated.
• Governor Scott also argues that the Petitioners cannot ask for all the things they are asking for without first suing him in Circuit Court. His argument is that the Supreme Court does not have jurisdiction over a portion of the case.
• It is also alleged that a “writ of mandamus” and a “writ of quo warranto” do not really fit the situation here. The argument is most forcefully made by the governor with respect to the writ of mandamus.

MY TAKE

My opinion of this case has been informed considerably by having the opportunity to review the briefs filed Wednesday and do additional research. My opinion has changed somewhat.

One of the key cases that will be consulted by the Court in deciding this matter will be Chiles v. Children A, B, C, D, E, and F, 589 So. 2d 260 (Fla. 1991). It is worth our time to digress and discuss that case.

Chiles v. Children A, B, C, D, E, and F

I’m going to call the case “Chiles v. Children” for ease of typing. In Chiles v. Children, at issue was a statue that gave the governor and a special commission the unilateral authority to reduce appropriations to make up for income shortfalls. The executive branch did exactly that, and a group of foster children (through their legal representatives) filed suit to challenge the funding reductions. (Children are often identified only anonymously in appeals, hence the A, B, C’s.)

The Florida Supreme Court agreed with the children and struck down the law as unconstitutional.

The Court acknowledged two fundamental tenets of the doctrine of separation of powers:

The first is that no branch may encroach upon the powers of another… The second is that no branch may delegate to another branch its constitutionally assigned power.” Chiles v. Children, 589 So. 2d 260, 264 (Fla. 1991).

The Court then characterized the case as an implication of the second principle — the legislature had attempted to delegate its power to determine appropriations to the executive agency.

The high speed rail situation is different. The accusation is that the governor is encroaching upon the power of the legislature to make appropriations, a problem of the first type, not the second. But in either type of case, the power of the legislature must be defined. Therefore, notwithstanding the fact that Chiles v. Children deals with a different situation, it does help define the power of the legislature.

The Court highlighted that the authority over appropriations derives from the Florida Constitution:

“More specifically, the constitution provides that “[n]o money shall be drawn from the treasury except in pursuance of appropriation made by law,” art. VII, § 1(c), Fla. Const. (emphasis added), and that “[p]rovision shall be made by law for raising sufficient revenue to defray the expenses of the state for each fiscal period.” Art. VII, § 1(d), Fla. Const. (emphasis added)…

The object of a constitutional provision requiring an appropriation made by law as the authority to withdraw money from the state treasury is to prevent the expenditure of the public funds already in the treasury, or potentially therein from tax sources provided to raise it, without the consent of the public given by their representatives in formal legislative acts. Such a provision secures to the Legislative (except where the Constitution controls to the contrary) the exclusive power of deciding how, when, and for what purpose the public funds shall be applied in carrying on the government.” Id. at 264-5, citations omitted.

Note the reference to the “object” of the constitutional provision. In law, if it is not clear how a law is to be applied, it is common to look at the intent of the law for guidance on whether it was intended to apply to a situation at issue. Here, the Supreme Court is telling us that the drafters of the Florida Constitution intended to give the legislature “the exclusive power of deciding how, when, and for what purpose the public funds shall be applied in carrying on the government.” Id.

The argument over the definition of “appropriation” misses the point.

I think the briefs are too focused on arguing about what an “appropriation” is. I was lead astray by that temptation as well. That is why, in the initial post, I said that Argument One was not as strong as Argument Two: because the legislature has not “appropriated” the $2.4 billion into the state budget. I now see it another way.

Whether the High Speed Rail Act is an “appropriation” or not is really just a shorthand way of asking whether the concept descibed in Chiles v. Children applies.

Unquestionably, the legislature:

• passed the High Speed Rail Act,
• created the Florida Rail Enterprise,
• empowered it to seek federal grants,
• prioritized a high speed rail line from Orlando to Tampa in the state’s comprehensive plan (to be fair, I haven’t reviwed the comp plan yet – I need to), and
• funded the Florida Rail Enterprise to the extent necessary to pay that portion of the cost of construction of a Tampa/Orlando rail line that the federal government did not pick up.

The question we should not ask is NOT whether all that stuff constitutes an “appropriation,” whatever that means. Instead, we should be asking the question that Chiles v. Children tells us to ask: has the legislature decided “how, when, and for what purpose the public funds shall be applied in carrying on the government?”

I think the answer to that question is “yes!” Therefore, it is inappropriate for the Governor to impose his own wishes on the “how, when, and for what purpose” this money should be used.

As for Argument Two, I see it as a subset of Argument One. The various laws that Argument Two asserts are being broken are the very same laws that establish the “appropriation” under Chiles v. Children.

I do have lingering concerns about the Constitutionality of the Florida Rail Enterprise. It is, in effect, an executive agency, but it is supposedly outside the control of the Governor. The Governor did not see fit to make the argument that the Florida Rail Enterprise is unconstitutional, so I have not given it any more thought. The issue is out there, however.

As I’ve already said, this is very complicated and politically charged stuff complicated by a ridiculously accelerated time frame. A lot could change between now and Friday and you shouldn’t take anything here as gospel.