FL Supreme Court To Hear Arguments Today On Compelling Rick Scott To Take The Money
On March 1, 2011, two Florida legislators filed the promised suit challenging Florida Governor Rick Scott's purported rejection of $2.4 billion of federal high speed rail funds. The petition is here (PDF).
The principal arguments are that (1) the Legislature has already appropriated the funds through legislation passed prior to Scott's ascension to the governorship and thus Scott has nothing to say on the matter except in a routine ministerial capacity and (2) Scott's failure to carry out laws duly enacted by the Legislature violate his duty to take care that the laws of the state are faithfully executed.
The Supreme Court immediately order Scott to respond and he has done so. Scott's response is here (PDF). The Petitioners replied to Scott's response. The reply is here (PDF) Argument before the Supreme Court is scheduled for today at 3:00 pm. The hearing may be viewable here (specifically here.) An analysis of the filings is provided below the fold.
What relief does the Petition seek from the Florida Supreme Court?
Petitioners respectfully request that this Court grant this Petition and order the Respondent to expeditiously accept the funds and apply such funds appropriated by Congress and the Florida Legislature for the Florida High Speed Rail Project.
The Petition provides us a clear exposition of what monies are at issue:
On or about March 17, 2009, former Governor Charles Crist made the requisite § 1607 (a) [ARRA Stimulus monies] certification to President Obama. [. . .] Two (2) days later, on March 19,2009, former Governor Crist made a second certification to Secretary Raymond L. LaHood, in which he certified that Florida would maintain its effort with regard to state funding for "covered programs" under the ARRA. [. . .] In September 2009, former Governor Crist and the cabinet unanimously approved a resolution in support of Florida seeking $2.6 billion for the Tampa-Orlando high speed rail corridor.
Further, the Florida Legislature in Special Session in December 2009 enacted §§ 341.8201-341.842, Florida Statutes, to implement this High Speed Rail Project in Florida. Section 341.822, Florida Statutes, in particular, creates the Florida Rail Enterprise as a single budget entity and sets forth the specific method for implementing high speed rail[. . .] Section 341.303(6)(a), Florida Statutes, specifically requires that the Florida Rail Enterprise shall be a single budget entity and shall develop a budget in accordance with Chapter 216. § 341.303(6)(a), Fla. Stat. Further, "[t]he enterprise's budget shall be submitted to the Legislature along with the department's budget." As such, the Enterprise's funding is controlled by the Legislature, not the Governor.
Importantly, the Florida Rail Act specifically creates a dedicated funding source of $60 million per year to the Florida Rail Enterprise beginning in 2014 from documentary stamp tax revenues allocated to the State Transportation Trust Fund. Section 20 1.15( 1)( c), Fla. Stat. The Governor's actions in aborting high speed rail in Florida has effectively, by executive conduct, repealed this appropriation of funds from this designated source.
On January 28,2010, the U.S. Department of Transportation awarded $l.25 billion to the State of Florida for high speed rail. [. . .] The Legislature acted on Governor Crist's prior certifications and the Florida Rail Act, and, through the 2010 General Appropriation Act, the Legislature appropriated $130.8 million of the ARRA funds in the 2010 Budget. On May 7, 2010, the U.S. Department of Transportation, Federal Railway Administration, issued a Record of Decision that effectively gave the State of Florida the "green light" to proceed with the design, engineering, right of way acquisition, and construction of the high speed rail project. Specifically, the Federal Railway Administration found that the requirements of the National Environmental Policy Act, 40 CFR Part 1505.2, had been satisfied for the Florida High Speed Rail Project from Tampa to Orlando.
On May 19, 2010, the Federal Railroad Administration and the Florida Rail Enterprise entered into Grant/Cooperative Agreement by which the U.S. Department of Transportation agreed to distribute $66.6 million of the $130.8 million appropriated by the Florida Legislature in the spring of 2010. [. . .] On June 28, 2010, the U.S. Department of Transportation (US DOT) awarded the State of Florida an additional $342 million. As a result of these two awards ($1.25 billion and $342 million), in October 2010, the Florida Rail Enterprise fully negotiated and completed a Grant Amendment with the USDOT that provides that the USDOT would fund an additional $1,525,660,128 for a total at that point of $1.592 billion. [. . .] In late 2010, the USDOT further awarded an additional $800 million to the Florida Rail Enterprise, resulting in a total award of $2.4 billion as part of the Legislature's Florida Rail Act and its appropriation in the spring of 2010.
From this, the Petitioners argue:
[B]oth the applications for and award of these monies occurred and were completed under a prior Legislature and a prior Governor. The legislation implementing high speed rail and the appropriations of the state and federal monies were fully accomplished prior to the election or inauguration of the Respondent.
Thus, the Florida HSR project, according to Petitioners, is a fait accompli whereby the only acts required of the Governor are ministerial or part of his responsibility to take care the laws of the State are faithfully executed. Instead, the Petitioners contend, Governor Scott is attempting to thwart duly enacted Florida law:
The Respondent was elected in November 2010 and inaugurated in January 2011. Once elected, Governor Scott has refused to permit the Grant Amendment to be executed by the Florida Rail Enterprise, even though the terms of these documents have been fully negotiated and were submitted to the Florida Rail Enterprise by the USDOT for signature. In a letter dated February 16, 2011, Respondent took the unilateral action of attempting to reject the funds that had been appropriated by the Legislature and to be funded by the U.S. Department of Transportation (USDOT), even though the Legislature had passed the Florida Rail Act specifically directing the Florida Rail Enterprise to finance and construct a high speed rail system and had appropriated $130.8 million to implement the awards from the USDOT; the Florida Rail Enterprise had fulfilled its obligation to obtain financing of the high speed rail.
The Petitioners contend that Scott's actions violate Florida law:
[U]nder the Florida Constitution, exclusive control over public funds rest solely with the legislature." State v. Fla. Police Benev. Ass 'n, Inc., 613 So. 2d 415,418 (Fla. 1992); see also State ex rei. Kurz v. Lee, 163 So. 859,868 (Fla. 1935) (requiring legislative appropriation prevents expenditure of public money "without the consent of the public given by their representatives in formal legislative Acts ... [and secures to the legislature] the exclusive power of deciding how, when, and for what purpose the public funds shall be applied in carrying on the government."). [. . .] As this Florida Supreme Court ruled in Chiles v. Children A, B, C, D, E, and F, et al., 589 So. 2d 260 (Fla. 1991), "this Court has long held that the power to appropriate state funds is legislative and is to be exercised only through duly enacted statutes." .... "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.... " Furthermore, the power to reduce appropriations, like any other lawmaking, is a legislative function." (Emphases in original). As such, the right, authority, and the power to fund the aforesaid appropriations, and the decision to reduce such funding, whether by state or federal funds, for the implementation of the Florida Rail Act lie exclusively with the Florida Legislature -not with the Governor.
Instead of completing the ministerial act of accepting the funds for the high speed rail project as he was required to do, Respondent instead requested that the monies be used for other Florida infrastructure projects.2 Such a claim of authority and the attempt to (1) reject the monies appropriated by the Florida Legislature; (2) reject financing specifically mandated by the Florida Rail Act; and (3) refuse to comply with the express directions of the High Speed Rail Act, all exceed Respondent's constitutional authority.
The argument, in a nutshell, is this - the Legislature has acted. The monies appropriated, the entity created, the plans described. The Governor has no say on the policy anymore. His function with regard to the HSR project is to carry out the law. And indeed, with regard to the Florida Rail Enterprise, his duties are quite sparse:
Had the Legislature intended for the Governor to exercise significant control of the HSR System, it would have simply delegated authority over the system to the Secretary of the Florida Department of Transportation, the Governor, or the Executive Office of the Governor. Instead, except for the power to hire and fire the Department's secretary and the secretary's authority to fire the Florida Rail Authority's executive director, the Legislature specifically removed such authority and power from the Governor. In any event, in the present case, the financing has been accomplished and cannot now be unilaterally rejected by the Governor.
The High Speed Rail Act requires the Florida Rail Enterprise to finance and construct the high speed rail system for the state. There is no discretion. As such, the authority to, and the requirement to, implement and execute upon the financing of high speed rail is imposed upon the Florida Rail Enterprise. Both explicitly and implicitly, the Legislature has set forth a specific methodology for implementing high speed rail. The Florida Rail Enterprise's executive director has no discretion to reject such financing as determined by the Legislature.
In his response, Governor Scott argues:
[T]he $2.4 billion in federal funds at issue, the Legislature has not enacted an appropriation for $2.27 billion of those funds. 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.
Putting aside the bluster, there is an argument in this - has the remaining $2.27 billion been appropriated and if not, what is the consequences of the previous appropriations by the Legislature? But before we get there, I think the following question is begged - who is asking Rick Scott to approve any appropriations at this time? Wouldn't the right time for him to act on this matter be when future appropriations are included in a budget? At that time,Scott can exercise his veto power (or line item veto power) and the legislature will either override it or sustain his veto. Why the drama now? Scott chose to create this crisis.
Scott makes a further argument that is dubious on the facts, but also questionable legally:
Petitioners ignore that the federal government has declared it will only transmit these funds to Florida ifthe Governor expresses unequivocal and unqualified support for high-speed rail. This, the Governor has made clear, he will not do. Accordingly, to grant Petitioners the relief they seek, this Court would also have to either (i) order the Secretary ofthe United States Department of Transportation to change his policy, or (ii) order the Governor to publicly reverse his policy position on the topic ofhigh-speed rail. Again, such relief lies far beyond anything this Court is empowered to do, and in any event, Petitioners have named neither the Legislature nor the United States Secretary of Transportation as parties to this action.
First, LaHood has merely said that Florida needs a viable plan to go forward, not that the Governor has to be on board with the plan. Second, can LaHood make the Governor's approval a condition of the grant after the fact? Recall that the certification was provided by then-Governor Charlie Crist. To the best of my knowledge, no further certifications are necessary. And indeed, had Crist (or any governor) not approved a stimulus grant, the ARRA contained a provision allowing state legislatures to bypass the disapproval of a governor.
Here is the reality of what Scott did and can do:
Governor Scott informed Secretary LaHood of the United States Department of Transportation (USDOT) that he would not support any measures designed to continue Florida's involvement in this high speed rail project. Id. Thus, as things stand, the Governor will veto any future appropriations for high-speed rail, and has and will direct agencies within his purview to plan accordingly.
If this is all he has done, then there is nothing to say on the matter. Clearly Scott can announce his disapproval of HSR and his intention to veto all future appropriations. What precisely would an order from the Supreme Court require Scott to do? Merely accept the funds for the Florida HSR project. this appears, at first blush, a purely ministerial act required of Governor Scott by his duty to take care that the laws are faithfully executed.
In its reply, the Petitioners make clear that the only relief they seek is that the Governor be ordered to perform the ministerial duty of accepting the money, as required by Florida law:
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 in rejecting a specific appropriation of $130.8 million; federal grants amounting to $2.4 billion subject to statutory authority; dedicated funding pursuant to the Florida Rail Act of $60 million per year; and thus the entire high speed rail project. So it is clear, the Petitioners are not asking this Court to direct the Respondent how to manage those matters over which he has the authority, as permitted and limited by statutes or by the Constitution.
On the immediate issue of accepting federal funds, it appears to me the the Petitioners stand on firm ground in arguing that the Governor has a duty to take care the laws are faithfully executed. In this case, the duty is to accept the funds. The question becomes whether Transportation Secretary LaHood will be satisfied by such relief. After all, appropriations will have to continue in the future and Scott could attempt to veto any future spending on the HSR project.
The filings make clear that in fact the Governor and the Florida Department of Transportation will not have any duties regarding the HSR project beyond the naming of an Executive Director of the Florida Rail Enterprise:
State law mandates that the High Speed Rail Enterprise, not the Governor, “… shall locate, plan design, finance, construct, maintain, own, operate, administer, and manage the high-speed rail system in Florida.” § 341.822(1) Fla. Stat. Respondent cannot escape such specific, unambiguous language.
Had the Legislature intended for the Governor to exercise significant control of the HSR System, it would have simply delegated authority over the system to the Secretary of the Florida Department of Transportation, the Governor, or the Executive Office of the Governor. Instead, except for the power to hire and fire the Department’s secretary and the secretary’s authority to hire or fire the Florida Rail Authority’s executive director, the Legislature specifically removed such authority and power from the Governor.
There is a certain insanity about this entire proceeding. In some respects,the fault lies with Transportation Secretary LaHood, who decided to humor a madman. The reality is that the case is quite simple, as the requested relief makes clear:
The Petitioners respectfully submit that the laws of the State of Florida and all duly enacted legislation provide a clear duty for the Respondent to accept the ARRA funds and apply the funds appropriated by Congress and the Florida Legislature for the Florida High Speed Rail Project. As such, Petitioners respectfully request that this Court grant their Petition and order the Respondent to expeditiously accept the federal funds and apply such funds as previously appropriated by the Florida Legislature and in compliance with the Florida Rail Act.
This seems undeniably true and the relief requested appropriate. Of course, for future appropriations, legislation must either be approved by Governor Scott or the Florida legislature must override his veto. But that is a fight for another day.
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