Judge refuses DeSantis administration’s request to toss migrant flights lawsuit

The challenge was brought by Democratic state Sen. Jason Pizzo. A trial date has been set.
Two charter flights from Kelly Field in San Antonio, Texas, carried 48 Venezuelan migrants to Martha's Vineyard, Mass.
Two charter flights from Kelly Field in San Antonio, Texas, carried 48 Venezuelan migrants to Martha's Vineyard, Mass. [ CARL JUSTE | Miami Herald ]
Published Jan. 13|Updated Jan. 13

TALLAHASSEE — A Leon County Circuit Court judge on Friday refused to dismiss a lawsuit against Gov. Ron DeSantis brought by a North Miami Beach state senator who has accused Florida’s governor of illegally using taxpayer funds to fly migrants from Texas to Martha’s Vineyard in Massachusetts last September.

Judge John C. Cooper set a Jan. 30 trial date to hear the constitutional challenge brought by Sen. Jason Pizzo, a Democrat who is suing in his capacity as a private citizen. Cooper rejected attempts by DeSantis’ lawyers to dismiss the case, although he did agree to release Chief Financial Officer Jimmy Patronis as a defendant.

Pizzo argues that the 2022-23 state appropriations bill that financed the controversial flights improperly used the budget to create a substantial new program instead of authorizing it through a separate law. Under long-standing principles of the Florida Constitution, substantial policies and programs must be first authorized in a separate law so that they can be widely discussed and reviewed by lawmakers.

DeSantis signed the budget on June 8, including the provision that allocated $12 million in interest the state earned from COVID relief funds to pay for “relocation services” run by the Florida Department of Transportation “to facilitate the transport of unauthorized aliens from this state.”

Records obtained by the Florida Center for Government Accountability, the Miami Herald and other news organizations have shed light on the operation involving the governor’s staff, who worked with a politically connected vendor.

Pizzo argues that in addition to violating the Constitution by using the budget language to create a new program, the Florida Department of Transportation violated another law when it created written guidelines for the contract, rather than requiring vendors to submit a sealed bid as is required by state law for contracts over $35,000.

Pizzo also argues that the $1.5 million paid to Vertol Systems Company Inc., the Destin-based company whose CEO is a former legal client of the governor’s public safety czar Larry Keefe, “far exceed the $35,000 cost threshold triggering the competitive solicitation.”

Related: DeSantis aide used private email in talks with ex-client over migrant flights contract

The money appears to be for payments of $650,000 and $950,000, although three purchase orders for $950,000 have been posted on the state contract disclosure website. The Miami Herald learned that after Vertol coordinated two planeloads of migrants to Massachusetts from Texas on Sept. 14, it expected to conduct a second flight the next week bringing migrants from San Antonio to Delaware.

But, after intense media scrutiny and an investigation by a Texas sheriff, that flight was called off. State transaction records show that Vertol was paid in advance for both projects, including the flights that were never completed.

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Pizzo argued that Patronis should also be a defendant in the lawsuit because he “has failed to take action to recover any portion of those funds … for services which to date have not been performed.” He also accused Patronis of failing to demand information from the Florida Department of Transportation to justify the expense and explain its contracting decisions.

Patronis’ lawyer, Ty Jackson of the GrayRobinson law firm, argued that the CFO had no role in deciding how to spend state funds. Cooper agreed and dismissed him as a defendant in the case.

“It’s not his baby,” Cooper concluded during the hearing Friday. “He’s not the one who decided to do it and says he’s going to do it again. The CFO cut a check.”

Nicholas Meros, deputy general counsel for DeSantis, argued that the governor and legislators “did not create a new program” when they inserted the authority to spend $12 million on migrant relocation services into state law.

The reason, he said, is that the provision expanded on another law that prohibited the state from entering into a contract with anyone who transports “an unauthorized alien” into Florida except to detain or remove that person “from this state or the United States.”

That provision became law through SB 1808, a bill that passed on March 9 but wasn’t signed by the governor until June 17. That was 15 days after the governor signed the budget and Section 185, the provision that included the $12 million in relocation funds.

Under questioning by Cooper, Meros did not appear to be aware that the law he argued the budget was modifying wasn’t on the books yet when legislators passed the budget.

Cooper noted that before DeSantis could say he was relocating migrants out of Florida, he had to pay to fly them in.

Related: DeSantis used taxpayer money to fly migrants to Florida, then fly them out

“I don’t see anything ... that says you can go to Texas and pick up people, bring them to Florida for a few minutes and then take them to another state under this program,” he said.

Records released in November, after the Florida Center for Government Accountability filed a lawsuit, show that the two planes carrying migrants from San Antonio to Martha’s Vineyard made a 30-minute pit stop in the Panhandle town of Crestview.

The flights have been denounced by the governor’s critics as a stunt, but they have also contributed to his stature as a conservative stalwart among Republican voters as he considers a run for president in 2024. The attention also put a spotlight on the immigration crisis along the southern border.

As Republicans accused President Joe Biden of not doing enough to stem the growing influx of migrants, DeSantis announced last week he would increase state resources aimed at the surge of migrants from Cuba and Haiti. His deputies said the effort will focus on using state airplanes to help the federal government’s efforts to interdict and return migrants to their countries of origin.

Pizzo is asking the court to declare the section of the budget that includes the $12 million in relocation funds unconstitutional, and to prohibit the governor from spending any more of the money.

He also argues the state violates the Supremacy Clause of the U.S. Constitution because Congress gives the federal court exclusive power over immigration, and that by inserting itself into immigration enforcement, the state is violating the federal Constitution.

DeSantis’ lawyers argue, however, that the relocation program “does not regulate the flow of aliens into or out of the United States or determine anybody’s citizenship status.” Instead, they said in a motion filed last week that the state is only making funds available to “facilitate the transport of consenting unauthorized aliens from Florida to other states.”