Miami Herald: Fla. justices say Scott overstepped his authority

TALLAHASSEE, Fla. — The Florida Supreme Court handed Gov. Rick Scott a defeat Tuesday with a ruling that he exceeded his authority by ordering state agencies to freeze rulemaking and submit planned regulations to his office for review and approval before formally proposing them.

The justices split 5-2 in favor of a disabled woman who challenged Scott’s freeze after it delayed the adoption of a rule making it easier for her to apply for food stamps.

The Republican governor suspended rulemaking less than an hour after taking office Jan. 4. His executive order also set up the governor’s Office of Fiscal Accountability and Regulatory Reform to review and approve existing and proposed rules to make sure they are in synch with Scott’s campaign promise to expand business and jobs.

“The governor has overstepped his constitutional authority and violated the separation of powers,” the majority justices wrote in the unsigned opinion.

Rulemaking is an extension of the Legislature’s lawmaking authority. Rules must implement a specific law and the Legislature must grant authority to executive agencies to adopt pertinent rules, the justices wrote.

“It’s a disappointment,” Scott said. “You know, think about it. The secretaries of these agencies report to me. They work for me at will, then I’m not supposed to supervise them? It doesn’t make any sense.”

The ruling, though, delighted Scott’s political opponents.

Florida Democratic Party executive director Scott Arceneaux said in a statement the suspension was part of Scott’s “effort to promote his Tea Party agenda. This is the kind of disregard for the law, and the people of Florida, that we have come to expect from this Governor and Republican Legislature.”

The high court, though, virtually invited the Legislature to give Scott the authority it says he lacks. The justices declined to order state agencies to comply with their ruling. Instead, they wrote that they trusted Scott wouldn’t enforce the suspension “at this time, and until such time as the Florida Legislature may amend” existing law or delegate rulemaking authority to the governor.

“We’ve always thought if the governor got authority from the Legislature he could have done what he did,” said former Florida State University President Talbot “Sandy” D’Alemberte, who argued the case on behalf of Rosalie Whiley, a blind Opa-Locka resident.

The Supreme Court noted the Legislature did pass a new law taking a step in that direction. It went into effect June 24 with Scott’s signature. The law essentially approved the review process contained in Scott’s executive order but only for rules in effect on or before Nov. 16, 2010. It does not, though, authorize the suspension or termination of rulemaking.

Cindy Leann Huddleston, an attorney with Florida Legal Services, which also represented Whiley, said she didn’t challenge provisions of the order covered by the law. Huddleston said the ruling will help Legal Services clients whose benefits are affected by state rules.

“It’s a tremendous victory for our clients,” Huddleston said. She said Whiley was “excited and pleased.”

The rule Whiley was concerned about eventually was adopted after a month-and-a-half delay, Huddleston said. It allows blind people to apply orally for food stamps.

Chief Justice Charles Canady and Justice Ricky Polston, the high court’s most reliably conservative members, dissented. They wrote separately but concurred with each other.

Both argued the Florida Constitution gives the governor “supreme executive power.” The majority ruled there are limits to that power and noted the Legislature has given rulemaking authority to department heads, not the governor.

Polston also contended the rulemaking “suspension” was a moot issue because Scott later revised the executive order to remove that word. The majority called that argument a “red herring” and wrote that the new order was “nothing more than sleight of hand” because it still had the effect of suspending rulemaking.

The decision also won praise from Audubon of Florida and Disability Rights of Florida, which filed “friend of the court” briefs.

“It secures the place of ordinary people being able to participate in rulemaking,” said Audubon executive director Eric Draper. “The governor was trying to make rules in the dark halls of the Capitol out of the sunshine.”

Draper said his organization now will push for rulemaking on Everglades restoration and stormwater pollution to resume.