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Florida Supreme Court rules against Gov. Rick Scott in rulemaking case

TALLAHASSEE — The Florida Supreme Court on Tuesday ruled that Gov. Rick Scott "overstepped his constitutional authority and violated the separation of powers" with an executive order freezing all pending rules until he could approve them.

In a 5-2 opinion, the court concluded that rulemaking authority belongs to the Legislature, not the governor.

"The Legislature retains the sole right to delegate rulemaking authority to agencies," the majority justices wrote, "and all provisions in (Scott's executive orders) that operate to suspend rulemaking contrary to the Administrative Procedures Act constitute an encroachment upon a legislative function."

Scott called the decision a "disappointment" and "not right," saying he didn't understand the court's logic.

"Think about it. Secretaries of these agencies report to me. And they work for me at will," he said. "And I'm not supposed to supervise them? It doesn't make any sense."

Rosalie Whiley, a blind woman from Opa-locka, charged that Scott took over the Legislature's constitutional authority to direct rulemaking when he signed an executive order hours after his Jan. 4 inauguration requiring his approval of all proposed rules through the newly created Office of Fiscal Accountability and Regulatory Reform.

Whiley wanted the executive order lifted. Instead, justices concluded the order "will not be enforced against an agency" unless the Legislature specifically grants the governor rulemaking authority.

The order was part of Scott's effort to eliminate "burdensome" and "duplicative" rules and "job-killing" regulations he believes hinder economic growth.

State agencies develop thousands of rules each year to implement laws.

Of the nearly 900 proposed rules reviewed by Scott's Office of Regulatory Review, only a few dozen were rejected. They related to such procedures as record-keeping by home health aides and management of documents by the Agency for Workforce Innovation.

But Scott's order delayed many rules, and Whiley argued it delayed one that would have made it easier for her to apply for food stamps online. The governor ultimately approved the rule specific to her case.

Whiley said she didn't come up with the idea of suing on her own. Miami lawyer Valory Greenfield approached her, asking if she would put a face to those hurt by the governor's action. Whiley agreed.

"The impact is just letting him know, even though we elected you and we put you there, you have to respect us in all different ways," she said Tuesday.

Scott attorney Charles Trippe had argued that the "supreme executive power" granted the governor by the state Constitution is among the reasons he has final say over rules developed by state agencies under his control.

The court rejected that argument, saying such an interpretation "ignores the fundamental principle that our state Constitution is a limitation upon, rather than a grant of, power."

Trippe said he thinks even with the ruling, the governor, who has hiring and firing authority over agency heads, still can voice his opinion on rules proposed by agencies. He just can't add a formal okay to the administrative process of rule approval.

Chief Justice Charles Canady and Justice Ricky Polston disagreed with the majority.

Rep. Matt Gaetz, R-Fort Walton Beach, a Scott supporter, described the court's opinion as "bizarre," questioning why justices would decline to quash the executive order but expect the governor to not implement it.

"It proves how outcome driven the opinion is," he said. "The court doesn't like the governor's policies."

He also warned that the Legislature might give the governor more rulemaking authority.

"When the court invites the Legislature to the dance on rulemaking, they may not like the song that we pick," he said. "The Legislature clearly has the intent of curbing the authority that each individual agency has to promulgate burdensome rules."

In the 2011 session, lawmakers passed a law giving the governor's Regulatory Review office authority to review existing rules, but not suspend pending rules.

So far, the office has analyzed more than 11,400 existing rules, and identified more than 1,600 for repeal. More than half of those are in the departments of Business and Professional Regulation and Environmental Protection, according to floridahasarighttoknow.com, which tracks the governor's rule review.

House Speaker-designate Will Weatherford, R-Wesley Chapel, said the GOP-led Legislature has no issue with Scott's objective.

"We have a need for rules. But it got a little bit out of hand," he said. "We recognize that the excessive rulemaking is drowning businesses. Regardless of what the Supreme Court decision is, we are going to continue to scrutinize rules being made to make sure they're helping our economy and not hurting it."

Eric Draper, executive director of the Audubon Society, one of three groups that filed court briefs supporting Whiley, said the ruling serves the public well.

"There is no mechanism by which ordinary people can get into or even figure out what's going on," he said. "It substitutes for public participation the personal judgment of the governor, and, we think, the special interests the governor is listening to."

Scott has been named in nine lawsuits since he took office. This is the first where a court has ruled against him.

Sen. Arthenia Joyner, D-Tampa, earlier this year unsuccessfully sued the governor in the Supreme Court, saying he overstepped his authority when he killed a high-speed rail project approved by the Legislature.

She said Tuesday's decision underscores the limits of Scott's power in a government with three equal branches.

"He's the governor, he's not a king," she said. "The court is saying, that's it. You can't run state government like a business. . . . You are the governor of Florida and you don't have the authority to run every facet of state government."

Times/Herald staff writers Steve Bousquet and Michael Vasquez contributed to this report. Janet Zink can be reached at jzink@sptimes.com or (850) 224-7263.

Florida Supreme Court rules against Gov. Rick Scott in rulemaking case 08/16/11 [Last modified: Tuesday, August 16, 2011 11:24pm]
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