Can Rick Scott Be Compelled To Greenlight Florida's HSR Project?
The high-speed train between Orlando and Tampa got an unexpected one-week reprieve Friday, just hours after Gov. Rick Scott again rejected $2.4 billion in federal money for the project. The sudden shift may have been triggered by a possible lawsuit against Scott contending he has overstepped his authority by killing the train. The suit, which could be filed as soon as Monday, is expected to argue that a law passed by the Legislature during a special session in 2009 compels Scott to pursue the train. Two sources close to the situation said the suit likely would be filed with the state Supreme Court in Tallahassee. It was unclear who would sign on to it.
(Emphasis supplied.) Can the Florida Supreme Court compel Rick Scott to greenlight Florida's HSR project? Let's explore this issue on the flip.
Article V, Section 3 of the Florida Constitution provides that:
[The Supreme Court . . . m]ay issue writs of mandamus and quo warranto to state officers and state agencies.
A writ of mandamus is an order by a court compelling the government or its officials to take certain actions. An order of quo warranto is an order by a court requiring a government official to demonstrate to a court the basis of the power the official is purporting to exercise. Clearly then, the Florida constitution envisions the Supreme Court exercising power over the Governor and the Executive Branch in the exercise of its duties.
The issue in this matter appears to be whether Governor Scott is bound by the 2009 legislation passed by the Florida legislature (and signed by Governor Charlie Crist.) If it were my case, I would expand the argument to the issue of whether Scott is bound by the certification Crist submitted to the federal government to accept the stimulus funds in 2009.
The argument that Scott is bound by the actions of former Governor Crist appears to be on good ground. In the 1955 case Tappy v. State of Florida, the Supreme Court of Florida ordered that a judicial appointment by an Acting Governor could not be undone by the ascension of a successor Governor. The Tappy court stated that:
[T]he commission issued to Tappy by Acting Governor Johns became immediately effective. Tappy having theretofore duly qualified in accordance with the law[. . .] , the holder of the office of Governor, by whatever name, was without power to revoke the commission, but could only remove for cause where cause existed. 42 Am.Jur. 959, 960, 962, Public Officers, sections 104, 105, 110; 89 A.L.R. 135; 67 C.J.S., Officers, � 33, page 161. This is so far the reason that "as a fact which has existed cannot be made never to have existed, the appointment cannot be annihilated; and, consequently, if the officer is by law not removable at will * * * the rights he has acquired are protected by the law, and are not resumable by the [executive]." Marbury v. Madison, 1 Cranch 137, 167, 2 L. Ed. 60.
What has been said above in respect to the limitation upon the right of an executive presently in office to withdraw an appointment is equally applicable to his successor, because the supreme executive power of the state, which is vested in the office of governor, is continuous and never ending. "It knows neither names nor persons. It began with the first Governor, has continued ever since, and will continue unbroken so long as the Constitution exists." While a successor to the office has the same power of removal as his predecessor, he has no greater power than that which would have been possessed by his predecessor had he remained in office. Barrett v. Duff, 114 Kan. 220, 217 P. 918. As the matter is stated in American Jurisprudence: "Officers in which the executive power of appointment is vested are generally regarded as continuous offices, the power of the successor with respect to matters arising in the previous administration being considered as exactly the same as that of his predecessor. It would seem then that an appointment to office which has become complete and irrevocable will continue so." 42 Am.Jur. 962, Public Officers, Section 110. See also People ex rel. Williams v. Reid, 11 Colo. 138, 17 P. 302, and State ex rel. Haight v. Love, 39 N.J.L. 14; Attorney General ex rel. Haight v. Love, 39 N.J.L. 476.
(Emphasis supplied.) If the Florida Supreme Court issues an order compelling Scott to take actions, or refrain from taking actions, that effectuate the actions of former Governor Crist and the Florida legislature with regard the the HSR project, that would not be the end of the story. In an apocryphal story, President Andrew Jackson is reputed to have said ""John Marshall has made his decision; now let him enforce it!" The quote is supposed to have been in response to the Supreme Court's decision in Worcester v. Georgia. But in fact the Worcester case required no specific action from the Jackson Administration, but rather, as the caption indicates, from the State of Georgia. Georgia in fact complied with the order.
Rick Scott however, appears to be mercurial, to put the matter kindly. I imagine bringing on a constitutional crisis in Florida would be right up his alley. Time will tell.
|< Friday Night Open Thread | Citizens United And Political Solidarity Strikes >|