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Written briefs and counter-briefs were filed with the Florida Supreme Court Wednesday both by Florida Governor Rick Scott and State Senators Thad Altman (R-Rockledge) and Arthenia Joyner (D-Tampa) in a lawsuit brought by the two legislators seeking to overturn Scott's decision to refuse $2.4 billion in federal funding for Florida's high-speed rail project.

The lawsuit was filed Tuesday, and the Supreme Court, recognizing U.S. Transportation Secretary Ray LaHood's Friday deadline for a decision on the funds, ordered Gov. Scott to respond by noon Wednesday, and the petitioners to file a counter-response by 4 p.m. the same day.

Both Gov. Scott's response and Altman and Joyner's counter-response were filed within the deadline, and oral arguments in the case have been set for 3 p.m. today. A decision is expected tomorrow, in time to meet Secretary LaHood's March 4 deadline.

Details of Gov. Scott's response to the suit, and Altman and Joyner's counter-response, are below the fold.

In a 29-page brief responding to the suit filed against him, lawyers for Gov. Scott makes two central arguments:

(1) That Sens. Altman and Joyner have no standing to sue him over this issue; and

(2) That the Court cannot force him to accept the money, because doing so would violate the doctrine of separation of powers.

I'm no legal expert, but my sense based upon what I've read about the case so far is that Scott's first argument won't hold up... my hunch is the Court, by agreeing to hear the case, has already agreed the Petitioners (Altman and Joyner) have standing.

It is the second argument which is at the heart of the matter: Does Rick Scott, in his role as governor, have the power to bring this entire project to a halt by unilaterally refusing federal funding for it?

Reading Gov. Scott's response to the suit offers interesting insight into both his view of his role in state government, and his contempt for anyone who disagrees with him. Indeed, that contempt is on display in the very first sentence of his response:

Petitioners - State Senators whose policy preferences have not prevailed in the political process - ask this Court to step into, and take over, the planning, implementation, and operation of a proposed high-speed rail line.

Not only is this sentence dripping with contempt (although it does include some pretty impressive alliteration), it also happens to be completely wrong.

For starters, Altman and Joyner's "policy preferences" did in fact prevail when the legislature approved the Florida High Speed Rail Authority Act in March, 2001 (Altman was not yet serving in the legislature when the original legislation was passed, Joyner was a freshman member of the House of Representatives and voted in favor of the bill).

Both Altman and Joyner voted with the majority in the Florida Senate last year when legislation authorizing the SunRail commuter service in Orlando was passed. That bill also provided additional funding for the TriRail commuter service in South Florida, and replaced the Florida High Speed Rail Authority with a new entity, Florida Rail Enterprise (FRE).

Altman and Joyner's "policy preferences," then, have failed now only because Gov. Scott has taken it upon himself to overrule the wishes of the legislature and previous governors - which is precisely what this lawsuit is about.

Scott's second point in this one sentence is also way off the mark: Altman and Joyner are not asking the Court to "take over" the high-speed rail project. They're only seeking a ruling from the Court as to who has jurisdiction of the money.

What is the answer to that question? Again, I'm no legal expert, but it seems to me the Court's ruling will hinge upon the answer to a key question: Was the bulk of the $2.4 billion being offered to the state already accepted and allocated by the legislature, or does the legislature need to take further action to allocate it?

Gov. Scott argues the latter:

...of the $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.

In their response, Altman and Joyner say the governor is wrong about the money not already having been appropriated:

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 [Enterprise] 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. This Court should simply look to Exhibit "E" and see that the grants were actually being made directly from the federal government to the Florida Rail Enterprise - not to the Governor. That is the very reason that the $1.5 billion grant was also being made in the fall of 2010 to the Florida Rail Enterprise. As such, the Respondent is completely wrong about the grants not being an appropriation by the Legislature. They are a continuing appropriation for which no further appropriation is needed.

In addition to not being a legal expert, I'm not familiar with the details of the bill creating the Florida Rail Enterprise, so I don't know who is right in the above exchange. I would tend to put my money on Altman and Joyner, since they have been part of this process for as long as they have both served in the legislature, whereas the governor, by his own admission, has a lot to learn about how state government works.

Each side will be given 20 minutes to make their oral arguments before the Court this afternoon. I will be working tonight, so I doubt I'll have an opportunity to diary the hearing today. But I will try to diary the outcome on Friday (unless, of course, someone else following this case beats me to it).

I did find two more interesting things in reading these briefs. The first is a crystal clear statement by Gov. Scott as to how he sees his role in state government:

Petitioners make the unsupported argument that the Governor is an "official" within the meaning of Section 341.839, ignoring the obvious fact that he is the chief executive of the State, as well as its chief administrative officer "responsible for the planning and budgeting of the state."

As I interpret this, Gov. Scott sees himself not as a co-equal part of three branches of government, but as the CEO of Florida, Inc., whose word is law. Altman and Joyner addressed this comment in their response with incredulity:

In making his argument, Respondent has admitted that he claims that he can exercise the powers expressly allocated to the Legislature regarding the budget. He admits that he alone is refusing to spend $130.8 million that was expressly appropriated by the Legislature for high speed rail. Additionally, and amazingly, he claims he is not an "official" or an officer, and that he can ignore the express laws enacted by the Legislature in order to protect what he perceives are the finances of this State. [emphasis mine]

The second item seems to hint at Gov. Scott's next course of action should he lose this lawsuit and be forced to accept the federal high-speed rail funds:

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 also serves at the pleasure of the Governor.

I read this as a veiled threat: Should the Florida Supreme Court rule against Gov. Scott, I believe he will direct his secretary of transportation (or acting secretary, since he has yet to appoint a permanent secretary to head the department) to fire the current director of Florida Rail Enterprise and replace him with someone hostile to high-speed rail who will simply take no action to move the high-speed rail project forward.

That, of course, remains to be seen, and I'll admit I'm getting ahead of myself. This week, the focus is on obtaining the money promised us.

There is one more interesting wrinkle to this story. Although he moved quickly to kill high-speed rail, Gov. Scott is being much more deliberative on another rail project, the Orlando SunRail commuter service. This despite the fact that SunRail is a much more dubious project, with much greater risk to the taxpayers (and I say that as a proponent of passenger rail in general).

One key criticism of SunRail is that it contains a number of unwarranted giveaways to CSX Corporation, the railroad which owns the tracks upon which SunRail will operate. In addition to paying CSX a huge amount of tax money to use the rails, the enabling legislation for SunRail absolves the company of all liability in the event of a train wreck.

So why hasn't Gov. Scott, who claims he only has the taxpayers' best interest at heart, also killed this project? I can't say for sure that he won't, but I did find one interesting tidbit of information in researching this story: Gov. Scott's general counsel, who is the lead attorney representing the governor in this lawsuit, is a gentleman named Charles Trippe.

And who did Trippe work for before becoming Gov. Scott's general counsel? That would be CSX Corporation.

As we like to say in the journalism biz, more on this story as it develops.

Originally posted to ObamOcala on Thu Mar 03, 2011 at 05:37 AM PST.

Also republished by DKos Florida.

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Comment Preferences

  •  Since I no longer (5+ / 0-)

    live in Central FL and haven't in years I have no dog in this fight. That said I sincerely hope Gov. Scott gets his ass handed to him first, for the sake of the jobs created and second to knock him down a peg or two, if that is possible.

    In the choice between changing ones mind and proving there's no need to do so, most people get busy on the proof.

    by jsfox on Thu Mar 03, 2011 at 05:58:49 AM PST

  •  If the FL Supreme Court (4+ / 0-)
    Recommended by:
    Losty, gulfgal98, ObamOcala, MartyM

    sides with High Speed Rail, how will this be reconciled?
    St. Pete Times

    The attorneys note that the federal government will give Florida the money only if the governor expresses "unequivocal support" for high-speed rail.

    "This, the Governor has made clear, he will not do," the court filing says.

    Excellent point you found about the SunRail and CSX connection to Scott.

    "make sure to put me back in the bed! I don't want to be on the ceiling!"

    by donnamarie on Thu Mar 03, 2011 at 05:59:13 AM PST

    •  This is Rick Scott's interpretation... (4+ / 0-)
      Recommended by:
      donnamarie, gulfgal98, DruidQueen, MartyM

      ...and I'm not sure how accurate it is. It may be that Ray LaHood assured him during their meeting last week that he would only release the funds if Gov. Scott had a change of heart.

      My guess, however, is that Secretary LaHood now realizes Gov. Scott is not an honest broker, and if the state Supreme Court rules that FRE can accept the money without needing Scott's approval, he will comply and release the money to FRE.

      What FRE does with the money, of course, depends upon whether Scott leaves the current director in place or has him fired and appoints someone hostile to the project.

      There's no doubt Rick Scott can continue to throw obstacles in the way of high-speed rail. But he's not going to be our governor forever (it's my hope he's forced out before even completing one term), so the important thing is not to lose ground in our efforts. High-speed rail will come to Florida simply because there's no other viable alternative.

  •  Another unexplainable move (6+ / 0-)

    from a GOP governer that could only cost jobs. Thank you for keeping this in the public eye, the residents in Florida need to understand who is responsible for this hold-up and the other dracoinan cuts he's proposing.

    •  Residents in Florida (0+ / 0-)

      are fucking pissed about this and some of our Republican lawmakers are none too pleased either, and that's saying a lot since half the time Republicans in this state are too busy wasting our money on booze and hookers to take note of much. But since the rail project promises MORE money from private companies for them to use on booze and hookers, they have a dog in this fight.

      And Floridian residents had already voted for a rail years ago and we got the finger. Now Scott is giving us the finger again, and Floridians are pissed. Those are desperately needed jobs.

      It doesn't make any goddamn sense why Scott is doing this. I mean if he was able to pocket the Federal money for himself like he pocketed the Medicare money years ago (for which he should be in jail today), I would understand. But that money is going away to other states, so why would he fucking do this?

      Rick Scott: "Let's get to work putting Floridians out of work!"

  •  Repub Governors Are Acting as CEO's Across the (8+ / 0-)

    country.

    We are called to speak for the weak, for the voiceless, for victims of our nation and for those it calls enemy.... --ML King "Beyond Vietnam"

    by Gooserock on Thu Mar 03, 2011 at 06:00:45 AM PST

    •  that's the plan! (4+ / 0-)
      Recommended by:
      celdd, donnamarie, gulfgal98, ObamOcala

      Bush campaigned on governing the U.S. as a business and he was the CEO.  We know how that turned out - DEregulation and UNBRIDLED CAPITALISM.

    •  State Sen. Nan Rich's op ed today (1+ / 0-)
      Recommended by:
      donnamarie

      Today, my local newspaper, the Tallahassee Democrat ran a great op ed by state Senator Nan Rich (D) who is the leader of the Democratic caucus.  I cannot link to my newspaper as it requires a subscription to access it on line, but I found a copy of this op ed at Ruth's List which is a Florida organization dedicated to electing progressive women to state and local offices.

      Here is a great quote from Senator Rich's op ed that addresses the whole CEO concept:  

      Critics are fond of saying the public sector should mirror the private one. They forget that government is not about profit-making; it's about service. Perhaps the better question is why private-employee wages and benefits are still taking a beating while CEOs are banking record salaries and bonuses. Most public servants have not seen raises or cost-of-living adjustments in five years.

      The United States is not just losing its capacity to do great things. It's losing its soul.--Bob Herbert

      by gulfgal98 on Thu Mar 03, 2011 at 08:25:30 AM PST

      [ Parent ]

  •  Why is Scott against speed rail? (1+ / 0-)
    Recommended by:
    donnamarie

    On the surface, which I can't really see from my living room in Nebraska, it sounds like a great idea.  Why is Scott opposed?

    •  Simply put... (7+ / 0-)

      ...he's against it because President Obama is for it.

    •  My Speculation (6+ / 0-)

      1. It's coming from the Obama administration
      2. With Florida being a swing state, I think this is all about making the Obama administration look bad prior to the 2012 elections.  HSR would get many people back to work.
      3. The guys an arrogant asshole.

      "make sure to put me back in the bed! I don't want to be on the ceiling!"

      by donnamarie on Thu Mar 03, 2011 at 06:28:22 AM PST

      [ Parent ]

    •  Scott is a Tea Party person (6+ / 0-)

      Extrapolating from statements I see in my local North Florida paper from City Commission candidates trying to win the Tea Party vote, I think the Tea Party is against mass transportation.  All the conservative candidates in the City Commission race want to downsize or eliminate our bus service. Today's profiled candidate said that people need to take responsibility for themselves and buy a car, walk or ride a bike rather than riding a bus.

      The LTEs I see against HSR all say the Interstate highway should be expanded rather than put in HSR. I think HSR is too European (socialist) for the Tea Party folks. But the bottom line is that the Florida Tea Party folks are against HSR and Scott's their guy.

    •  And..... (6+ / 0-)

      GOP types in general, but a lot of politicians in general, simply HATE passenger rail. This has a fair bit to do with the strength of the highway lobby (lots of contractors involved in roadbuilding: heavy equipment, concrete, asphalt, gravel, trucking. Fortunes have been made painting the broken white lines between lanes.)
      It has something to do with the air lobby (lots of contractors involved in parking ramp building, runway repair, jet fuel concessions, carpet for the gates, waxing the floors. Fortunes have been made replacing fluorescent bulbs in the ceilings of concourses.)
      And partly this is still a kind of group payback/revenge for what rail did to themselves. Back in the robber baron days of the 19th & early 20th centuries the rail owners really were robber barons. The ONLY practical way of moving goods or people any distance with high reliability was by rail. They had monopolies by region, they knew it, and they used it to the max. Part of the push behind the auto industry and the roads that went with it was the knowledge this could finally overturn rail's grip on transport. Air transport followed the same idea.

      Road and air have been so successful at using rail's old tricks against them educated people can passionately object to all forms of rail and say "Rail needs subsidies!" The idea that ALL forms of transportation are subsidized and have been since civilization was invented has been successfully obscured.
           People honestly think their $79 fare on Southwest air really does cover their share of (government) air traffic control, (government) runway construction and noise abatement, and (government) terminal construction and maintenance.
          People honestly think their 15 or 18 or 22 cents a gallon gas tax pays all the costs of rebuilding I-75 through Cincinnati, all the costs of Boston's "Big Dig", all the snowplowing costs in Wyoming, all the bridge replacement costs in Minneapolis.

         This is how well road and air have played the game. Gov. Scott is only the latest in a long line of willfully blinded nincompoops who are anti-rail, but he has many friends.

      Shalom.

      "God has given wine to gladden the hearts of people." Psalm 104:15

      by WineRev on Thu Mar 03, 2011 at 07:51:01 AM PST

      [ Parent ]

    •  Because real 'Mare-Kuns don't ride trains (2+ / 0-)
      Recommended by:
      JohnInWestland, JFinNe

      they drive 1974 Camaros.

      Done with politics for the night? Have a nice glass of wine with Palate Press: The online wine magazine.

      by dhonig on Thu Mar 03, 2011 at 08:10:28 AM PST

      [ Parent ]

  •  Excellent analysis (8+ / 0-)

    The main issue here as I see it.  Can the current governor unilaterally by fiat undo legislative actions taken by the legislature and signed by a previous governor?

    Every day he is in office, Scott's arrogance never ceases to amaze me.  The freaking mindless idiots who voted for him do not understand the amount of damage this man is doing and will do to Florida.

    Off topic:  I was wondering if Rick Scott is charging the cost of his use of his own private plane back to the tax payers after he sold off the state's air pool at a bargain price?

    The United States is not just losing its capacity to do great things. It's losing its soul.--Bob Herbert

    by gulfgal98 on Thu Mar 03, 2011 at 06:21:10 AM PST

  •  wonder what Scotts approval is? (2+ / 0-)
    Recommended by:
    donnamarie, ObamOcala

    Must be really low. he only got elected because democrats stayed home and he still barely beat a horrible candidate.
    Another state Obama will win with protest votes against their state govt!

    •  Most polls I've seen... (2+ / 0-)
      Recommended by:
      Dichro Gal, gulfgal98

      ...have his approval ratings in the mid-30s, with disapproval about the same and undecideds around 40 percent. My hunch is every move he makes shifts more people from the undecided to the "disapprove" column, and that the mid-30 percent number represents his rock-solid Tea Party support.

    •  well he only had DOWN to go (1+ / 0-)
      Recommended by:
      gulfgal98

      he only won the governoship by 60,000 votes. So I'd say disapproval must be lower even tan that at this point.

      Don't tell me what you believe. Tell me what you do and I will tell you what you believe. h/t MeteorBlades

      by mdmslle on Thu Mar 03, 2011 at 08:27:30 AM PST

      [ Parent ]

  •  Republican Governors in general (3+ / 0-)
    Recommended by:
    celdd, donnamarie, ObamOcala

    Seem to have no clue about their true role - or, rather, they see it as a state-sized version of Bush's "unitary executive" idea, and boss of the legislature combined.

    There comes a time when every team must learn to make individual sacrifices.

    by Jaxpagan on Thu Mar 03, 2011 at 06:28:44 AM PST

  •  Your hunch is wrong (1+ / 0-)
    Recommended by:
    ObamOcala

    The court can still dismiss the case for lack of standing.  

    •  Good to know... (1+ / 0-)
      Recommended by:
      donnamarie

      ...but in their counter-response, Altman and Joyner make a pretty good case, with precedents, that they do have standing.

      We do still have a relatively liberal State Supreme Court, so I still think they'll rule on the merits of the executive branch powers argument rather than dismissing it for lack of standing.

      Of course, I could be wrong.

  •  Thank you for linking to the filings (1+ / 0-)
    Recommended by:
    gulfgal98

    Do you know if the Exhibits to the original petition are available too?   The Petitioners' Response references documents that were exhibits to the original petition.  

  •  If Scott loses the case (0+ / 0-)

    and Florida does get the money, I expect he'll pull every dirty trick he can to delay, disrupt and damage the construction.

    "The power of accurate observation is commonly called cynicism by those who have not got it." -- George Bernard Shaw

    by Inspector Javert on Thu Mar 03, 2011 at 12:21:33 PM PST

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