Lawsuit filed in Supreme Court challenges constitutionality of Gov. Rick Scott's rule-making freeze

TALLAHASSEE — A blind woman from Miami seeking to reapply for food stamps has filed a petition in the Florida Supreme Court challenging the constitutionality of Gov. Rick Scott's rule-making freeze.

The freeze was one of Scott's first acts as governor, included in an executive order signed less than an hour after his Jan. 4 inauguration.

More than 900 rules on their way to approval were affected. Many have received an okay from the governor, but many more are still on hold.

Rosalie Whiley, the plaintiff in the lawsuit, said one of the stalled rules will make it easier for her to apply for food stamps online. She wants the executive order revoked. "Because of my visual handicap, I have to get someone to come in and put in information for me online. I feel like it's important for me to do it by myself," said Whiley, 54, who lost her vision due to glaucoma, which she has suffered with since age 16.

Whiley said she has to reapply for food stamps every six months.

"I'm really concerned," she said of Gov. Scott. "He's coming in and he's disrupting a lot of things that are going to affect a lot of people. A lot of people."

It's the second lawsuit filed in the Florida Supreme Court this month charging that Scott has exceeded his power. The first came from state Sens. Arthenia Joyner, D-Tampa, and Thad Altman, R-Melbourne, over Scott's decision to reject federal money for high-speed rail. The court rejected that suit.

"I'm very comfortable that I have legal ground," Scott said of the latest court challenge. "And we'll continue down this path of reviewing existing regulations and doing whatever we can to amend regulations that are killing jobs."

In addition to freezing all rules in the works, Scott's order created the Office of Fiscal Accountability and Regulatory Reform. No new rules can move forward without approval by the office.

Former Florida State University president Sandy d'Alemberte, who represents the St. Petersburg Times in some First Amendment cases, is part of Whiley's legal team. He said Scott is overstepping his constitutional authority on several fronts with the executive order.

Creating a new state office requires legislative approval, d'Alemberte said. Plus, Scott is usurping the power of agency heads to make rules, say court papers.

"He has no authority to do that," d'Alemberte said. "The Legislature gives rulemaking authority to those agencies, not to the governor."

The lawsuit also alleges the standards for reviewing agency rules are too vague. And it says the order keeps the secretary of state from publishing rules as required by Florida law.

"The Administrative Procedures Act lays out the ways in which rules should be adopted," d'Alemberte said. "He basically displaces all of that."

Rep. Ken Roberson, R-Bradenton, has filed a bill based on Gov. Scott's executive order that would add a section to the Administrative Procedures Act allowing the governor and other Cabinet members to repeal rules already in place.

"Because the governor has done this, the thinking was to lay out a process," Roberson said. "If there's going to be a rule review, there has to be a process that the Legislature authorizes."

HB 993 would allow Cabinet members during their first six months in office to repeal rules if they are obsolete or if they conflict with policies they are trying to implement. The repeal could be challenged, but Cabinet members could individually override the challenge. An objection to the override could be filed with the 1st District Court of Appeal.

Scott is currently reviewing more than 11,400 existing rules, according to his website, FloridaHasARightToKnow.com. He has targeted more than 1,400 for repeal and or revision, and more than 1,200 for revision. Most of those are in the departments of Business and Professional Regulation and Environmental Protection.

Roberson's bill still has two committee stops before going to the House floor. It has no companion in the Senate.

Times/Herald staff writer Michael C. Bender contributed to this report. Janet Zink can be reached at jzink@sptimes.com or (850) 224-7263.

Lawsuit filed in Supreme Court challenges constitutionality of Gov. Rick Scott's rule-making freeze 03/29/11 [Last modified: Tuesday, March 29, 2011 10:57pm]

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