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.