The Florida Supreme Court heard oral arguments Wednesday in the lawsuit alleging Gov. Rick Scott overstepped his constitutional authority in issuing an executive order halting new agency rules from being finalized until they had his approval.

Scott's general counsel, Charles Trippe, argued that the governor -- who, as the state's chief executive, appoints agency heads and is responsible for their efforts -- has a responsibility to ensure new and existing rules abide by the policy set forth by him and the Legislature. Scott's original order issued in January froze rules in their tracks, preventing them from being implemented, but a later executive order superseded that one, declaring that he had authority to set up an agency to review existing rules.

"What we are talking about is an office under the governor which exercises his constitutional authority," Trippe said.

The lawsuit was brought by Rosalie Wiley, a blind Miami resident who alleges the temporary freeze on rulemaking unnecessarily halted a new regulation that would have streamlined the process of obtaining Food Stamps.

Sandy D'Alemberte, former president of the American Bar Association and former president of Florida State University, argued on her behalf, downplaying the effect of a new law passed by the Legislature this year that allows for the governor's office to review rules.

"There is nothing in that legislation that allows the governor to hold up rules," D'Alemberte said.

The justices, however, seemed persuaded that Scott is within his rights to institute a review of rules that his branch of the government is tasked with enforcing.

“It’s kind of hard to see that there’s encroachment, through these executive orders, of the Legislature’s authority, when the Legislature has recognized the role of the governor in rulemaking,” said Chief Justice Charles Canady.

For Whiley and D’Alemberte, the creation of a new agency under the governor to review rules causes an unnecessary delay in the process, impacting citizens who consistently deal with state agencies and the services they provide.

Trippe countered that the rule that is the subject of Whiley’s suit was reviewed by Scott’s office within 24 hours, and did not stall its progress. The rule streamlining the Food Stamp application process is still in the administrative pipeline and has not been implemented.

D’Alemberte argued that Scott is taking away the potential for citizens to suggest their own rules and have the agencies judge their merits, because now they are being filtered by his office.

Yet justices pointed out that agency heads are currently able to, and often do, confer with the governor’s office on potential rules in an informal way. Justice Barbara Pariente noted that HB 993, the rulemaking law passed by the Legislature, put much of Scott’s executive order into state statute.

“It looks like what it’s done is take all of the best parts of the executive order ...  and they’ve institutionalized that in a way where citizens have a chance to have an impact,” Pariente said.

The case is the second challenge of Scott’s authority since he took office. In March, Sens. Thad Altman, R-Viera, and Arthenia Joyner, D-Tampa, sued over his decision to cancel the high-speed rail line planned for Tampa to Orlando, which was to include state and federal funds.

They alleged Scott, who turned down the project over cost-overrun concerns, encroached on the Legislature’s power to set policy. In a unanimous ruling, the state Supreme Court upheld Scott’s decision.

A ruling in the case is expected in the next few weeks.




Reach Gray Rohrer at grohrer@sunshinestatenews.com or at (850) 727-0859.