TALLAHASSEE -- For the second time since Gov. Rick Scott took office in January, his attorney appeared before the Florida Supreme Court to defend him.
Rosalie Whiley, a blind woman from Opa-locka, charges Scott took over the Legislature’s constitutional authority to direct rule-making when he signed an executive order requiring his review of all rules through the newly created Office of Fiscal Accountability and Regulatory Reform.
The order, Whiley said, delayed a rule that would make it easier for her to apply for food stamps online. The governor has since approved the rule specific to Whiley’s case.
But her attorney, former Florida State University president Talbot “Sandy’’ d’Alemberte, said that doesn’t make the case moot.
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He told justices Wednesday that the governor inappropriately added a step to the Administrative Procedures Act, which sets out the process for making rules to implement state laws.
“This is a distinctly legislative process,” d’Alemberte said.
Much of the discussion, which lasted less than an hour, focused on a law Scott recently signed that Scott’s attorney, Charles Trippe, said gives the governor authority to review rules.
But d’Alemberte disputed that.
“There’s nothing in that legislation, not a word, that gives the governor the authority to hold up rules,” he said.
D’Alemberte noted that the rule-making process allows citizens to initiate rules and receive a hearing on them.
“The Legislature has laid down a very open process,” he told the court.
The governor’s executive order puts a crucial step in rule-making “behind closed doors” in the hands of an unknown person in Scott’s office, d’Alemberte said. Justices queried the attorneys repeatedly on the practical impact of the executive order, including delays in rule-making, as well as executive control over agency heads and duties assigned to those employees by the Legislature.
Justice Barbara Pariente questioned d’Alemberte on Trippe’s contention that agency heads, with whom the Legislature entrusts rule-making, serve at the pleasure of the governor.
It “seems reasonable,” she said, for the governor to supervise their work.
“They’re his appointees. Not the Legislature’s appointees,” she said.
That’s true, d’Alemberte said. And just as the Legislature can’t step in and appoint or dismiss agency heads, a distinctly executive power, the governor can’t interfere with rule-making, a distinctly legislative power.
The practical effect or motivation of the governor’s executive order, D’Alemberte said, is irrelevant. More important, is whether he has the authority to jump into the process.
The rules 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.
A second executive order revised the process, but left the rules review in place.
Three groups -- the Audubon Society, Disability Rights Florida and the Academy of Florida Elder Law Attorneys and the Elder Law section of the Florida Bar -- filed briefs with the Supreme Court supporting Whiley.
The high court did not indicate when it would issue a ruling. In March, the justices threw out a petition from two state senators who argued Scott exceeded his constitutional authority when he rejected $2.4 billion in federal money for a high-speed rail line connecting Tampa to Orlando.
Janet Zink can be reached at firstname.lastname@example.org.