Wednesday, March 2, 2011

Altman v. Scott--Excerpts from the Petition

Senator Thad Altman (R-Melbourn), who believes in strictly construing the Florida Constitution, and Senator Arthenia Joyner (D-Tampa) filed a Petition for Writ Quo Warranto (a common law inquiry into the authority of a public official), a Writ of Mandamus (an Order to perform a ministerial act), or other injunctive relief in the Florida Supreme Court.  The Senators are asking the high court to order Governor Scott to perform the ministerial act of accepting high speed rail federal funds.  Below you'll find excerpts from the 25 page brief, to which the Florida Supreme Court ordered a response by noon today.  Click HERE to read the entire brief. 

Court decisions are inherently unpredictable.  A University of Florida law professor suggested in the Sentinel the Governor will claim the Senators lack standing to bring the Petition.  Standing to bring a court action requires an injury in fact.  In Coleman v. Miller, 307 U.S. 433 (1939), the United States Supreme Court held, "We think that these senators have a plain, direct, and adequate interest in maintaining the effectiveness of their votes."  The Court reaffirmed, "“[O]ur holding in Coleman stands... for the proposition that legislators whose votes would have been sufficient to defeat (or enact) a specific legislative Act have standing to sue if that legislative action goes into effect (or does not go into effect), on the ground that their votes have been completely nullified.”  Raines v. Byrd, 521 U.S. 811 (1997). 

The legal arguments below appear strong: 
Basis for a Writ Quo Warranto, Writ of Mandamus, or Other Injunctive Relief
Instead of completing the ministerial act of accepting the funds for the high speed rail project as he was required to do, Respondent instead requested that the monies be used for other Florida infrastructure projects. Such a claim of authority and the attempt to (1) reject the monies appropriated by the Florida Legislature; (2) reject financing specifically mandated by the Florida Rail Act; and (3) refuse to comply with the express directions of the High Speed Rail Act, all exceed Respondent's constitutional authority.

Governor Scott Wants to Spend $2.4 Billion in Stimulus Funds Elsewhere
It is clear that Respondent is not philosophically opposed to taking the ARRA (American Recovery & Reinvestment Act) monies. He wants the $2. 4 billion for Florida. He just refuses to apply it to high speed rail. Under federal law, the monies simply cannot be used for other projects.

Florida Supreme Court Precedent: Legislature Has Exclusive Authority to Appropriate Funds and Reduce Funding
As this Florida Supreme Court ruled in Chiles v. Children A, B, C, D, E, and F, et al., 589 So. 2d 260 (Fla. 1991), "This Court has long held that the power to appropriate state funds is legislative and is to be exercised only through duly enacted statutes." .... "Such a provision secures to the Legislative (except where the Constitution controls to the contrary) the exclusive power of deciding how, when, and for what purpose the public funds shall be applied in carrying on the government.... "Furthermore, the power to reduce appropriations, like any other lawmaking, is a legislative function." (Emphases in original). As such, the right, authority, and the power to fund the aforesaid appropriations, and the decision to reduce such funding, whether by state or federal funds, for the implementation of the Florida Rail Act lie exclusively with the Florida Legislature - not with the Governor. Simply stated, whether such funds derive from the state or from federal funds granted to the state, the appropriation of such funds constitutionally lies exclusively with the Florida Legislature.

High Speed Rail in Florida's Comprehensive Plan Since 1985
While there have been amendments and changes to the State Comprehensive Plan since 1985, the high speed rail policy has retained its vitality and continues to be an integral part of the transportation element of the State Comprehensive Plan.

Governor Cannot Lawfully Interfere with the Florida Rail Enterprise
The Florida Legislature intended that, once appropriations were made and authorized by the Legislature, the Florida Rail Enterprise shall have the full authority to comply with its legislative mandate, free from outside interference.

Additionally, and importantly, the Legislature crafted the legislation so that the Florida Rail Enterprise function without interference from other executive branch officials. "Except as otherwise expressly provided [by the Florida Act], none of the powers granted to the [Florida Rail E]nterprise under [the Florida Rail Act] are subject to the supervision or require the approval or consent of any municipality or political subdivision or any commission, board, body, bureau, or official." § 341.839, Fla. Stat. (2010). (Emphasis added). The Governor is an official within the meaning of the Act, and is not permitted to interfere with the implementation of high speed rail.
The delegation of the power and independence to the Florida Rail Enterprise was an intentional element of the Legislature's policy because the evaluation and selection criteria for the award of ARRA funds to the Florida Rail Enterprise included a requirement that the Florida Rail Enterprise "affirmatively demonstrate that it has or will have the legal. .. capacity to carry out [high-speed rail.]"  See High-Speed Intercity Passenger Rail "Notice of Funding Availability," Fed. Reg. Vol. 74, No. 119 at 29921 (June 23,2009).
Had the Legislature intended for the Governor to exercise significant control of the HSR System, it would have simply delegated authority over the system to the Secretary of the Florida Department of Transportation, the Governor, or the Executive Office of the Governor.
High Speed Rail Act Is Mandatory

The High Speed Rail Act requires the Florida Rail Enterprise to finance and construct the high speed rail system for the state. There is no discretion. As such, the authority to, and the requirement to, implement and execute upon the financing of high speed rail is imposed upon the Florida Rail Enterprise. Both explicitly and implicitly, the Legislature has set forth a specific methodology for implementing high speed rail. The Florida Rail Enterprise's executive director has no discretion to reject such financing as determined by the Legislature.
The Governor has no authority to refuse to implement the directives of the state law, especially funding that has already been applied for and awarded to the State of Florida when state law mandates the High Speed Rail Enterprise" ... shall locate, plan design, finance, construct, maintain, own, operate, administer, and manage the high -speed rail system in Florida." § 341. 822( 1) Fla. Stat.

The appropriations and the funds which are the subject of this Petition represent the appropriations to implement the high speed rail elements in the State Comprehensive Plan and the High Speed Rail Act. The Governor has no authority to refuse to implement the directives of the state law, especially funding that has already been applied for and awarded to the State of Florida when state law mandates the High Speed Rail Enterprise" ... shall locate, plan design, finance, construct, maintain, own, operate, administer, and manage the high -speed rail system in Florida." § 341. 822( 1) Fla. Stat.

Policy Reason: Hindrance of Major Infrastructure Planning, Financing, and Construction
If every newly elected governor decided to stop the major infrastructure project which [was] underway when he was elected, after the State of Florida has adopted by state law a policy to build the major infrastructure project; the Legislature has appropriated the funds for the project and directed the construction of the project, Florida will not be able to plan, finance, and construct the major infrastructure projects it requires for its people and its future.

Click HERE for a summary of the Governor's Response and HERE to read the entire Response.

Click HERE for a summary of the Senators' Reply Brief and HERE to read the entire Reply Brief.

UPDATE--March 4--Lakeland attorney Kemp Brinson has a good analysis of the oral argument at THIS LINK.  A granting of the Senators' Petition would surpise me.

SECOND UPDATE--March 4--Click HERE for a link to the Supreme Court's Order denying the Petition.  The Order does not contain legal analysis.