Fla. SC nixes governor's executive order

Jessica M. Karmasek Aug. 23, 2011, 1:52pm


TALLAHASSEE, Fla. (Legal Newsline) - The Florida Supreme Court, in a ruling last week, said an executive order issued by Gov. Rick Scott "impermissibly" suspended agency rulemaking.

The Court, in an opinion filed Aug. 16, granted a petition by Rosalie Whiley for a writ of quo warranto.

The term "quo warranto" means "by what authority," and the writ is the means for inquiring into whether a particular individual has improperly exercised a power or right derived from the State.

Whiley, who is disabled and a food stamp recipient, said the governor's executive order made it more difficult for her to re-apply for food stamps. She asserted that Scott lacked the authority to issue the order and that it violates the doctrine of separation of powers.

Scott issued Executive Order 11-01 in January, soon after assuming office. The order created the Office of Fiscal Accountability and Regulatory Reform, or OFARR, within the Executive Office of the Governor.

The office was tasked with the goal of ensuring that agency-created rules do not hinder government performance and that they are fiscally responsible. It specifically looks for rules that affect businesses, public health/safety, job growth and indirect costs to consumers.

Under the order, state agencies controlled by the governor -- and those not directly under his control -- were directed to immediately suspend all rulemaking activities.

The order further provided that those agencies under the direction of the governor were required to submit the complete text of a proposed rule or amendment to OFARR for review, along with any other documentation the office may require.

A second executive order, 11-72, was issued by Scott in April. It also pertained to agency rulemaking.

The Court, in its per curiam opinion, said the case raises "a serious constitutional question" relating to the authority of the governor and the Legislature in rulemaking proceedings.

"The issue of whether the Governor has the power to suspend agency rulemaking directly and substantially affects the fundamental functions of state government," the majority wrote in its 27-page ruling.

The Legislature, it said, retains "the sole right" to delegate rulemaking authority to agencies and all provisions in both executive orders that suspend rulemaking "constitute an encroachment upon a legislative function."

"Absent an amendment to the Administrative Procedure Act itself or other delegation of such authority to the Governor's Office by the Florida Legislature, the Governor has overstepped his constitutional authority and violated the separation of powers," the majority concluded.

Chief Justice Charles T. Canady, along with Justice Ricky Polston, dissented.

The two argue that there is no basis for the majority's decision and that, in issuing the executive orders, Scott acted lawfully to supervise the agency heads who are responsible to him and for whom he is responsible.

"The petitioner strikingly has failed to show any specific action required by law that was prevented by the implementation of the executive orders at issue here. In the absence of such a showing, the majority nonetheless rules in favor of the petitioner by imposing unprecedented and unwarranted restrictions on the Governor's constitutional authority to supervise subordinate executive branch officers," Canady wrote.

"In doing so, the majority's decision insulates discretionary executive policy decisions with respect to rulemaking from the constitutional structure of accountability established by the people of Florida."

Canady argues that the governor's right to exercise supervision and control flows from the "supreme executive power," vested in the governor by the Florida Constitution, to appoint executive department heads who serve at his or her pleasure.

"If 'supreme executive power' means anything, it must mean that the Governor can supervise and control the policy-making choices -- within the range of choices permitted by law -- of the subordinate executive branch officers who serve at his pleasure," the chief justice wrote.

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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