Gov. Scott files terse response to rail lawsuit

TALLAHASSEE -- Gov. Rick Scott says two state senators suing him because he rejected federal money to build high-speed rail want the court to push their failed policies.

His sometimes stinging response filed Wednesday with the Florida Supreme Court calls them “senators whose policy preferences have not prevailed in the political process.”

Republican Thad Altman and Democrat Arthenia Joyner filed the lawsuit Tuesday, saying Scott overstepped his executive authority by killing the project after the Legislature approved it and appropriated money for it.

Oral arguments in the case are set for 3 p.m. today. Both sides have asked the court to rule by Friday. That’s the deadline that U.S. Department of Transportation Secretary Ray LaHood set for Florida to determine whether the project can go forward. After that, the money will go to other states.

LaHood said Wednesday he has received a half dozen letters from governors or senators who want the $2.4 billion that Scott wants to turn down.

In a 29-page court document filed Wednesday, attorneys for Scott argue that the Legislature appropriated only $131 million for high-speed rail, not the entire $2.4 billion awarded by the federal government.

To fulfill the request made by Altman and Joyner, Scott’s attorneys say, would require the court to order the Legislature to appropriate the entire $2.4 billion, order the governor not to veto the legislation, and, if the governor does veto the legislation, not to override the veto.

“Such an unprecedented order would render the separation-of-powers doctrine utterly meaningless,” say Scott’s attorneys.

The attorneys note that the federal government will give Florida the money only if the governor expresses “unequivocal support” for high-speed rail.

“This, the Governor has made clear, he will not do,” the court filing says.

As for the $131 million already appropriated, Scott’s attorneys say the Florida Rail Enterprise has the discretion over its use. And spending the money on rail without enough money to build the entire project would result in construction of a “few miles of railroad for no apparent purpose. The Court will have created the high-speed railroad to nowhere.”

Scott further argues that a legislative appropriation merely “authorizes” the expense of money. It does not require it.

“Fortunately for the taxpayers of Florida, nothing in Florida law compels the Governor or the FRE to pour millions of dollars into a black hole during the historic fiscal crisis with which the State is presently grappling,” reads Scott’s response.

In a reply to Scott filed by Altman and Joyner on Wednesday afternoon, the pair said it’s incorrect that they want the court to take over the rail project.

They say Scott “set up a fake argument just in order to tear it down.”

What they want is for the court to rule on the limits of Scott’s executive authority.

An attorney for Altman and Joyner argues that the Constitution requires Scott to execute laws passed by the Legislature, and “the Legislature expressly set forth in the Florida Rail Act the public policy of this state regarding high-speed rail.”

The Legislature approved the act in December 2009 during a special session called specifically to discuss rail. The legislation passed by a vote of 27 to 10 in the Senate and 84 to 25 in the House.

Altman and Joyner contend that no other action needs to be taken by the Legislature or the governor to accept the remaining federal money because it is considered a continuing appropriation and can be awarded directly to the Florida Rail Enterprise.

The $2.4 billion in federal money would cover nearly all the construction costs of a line between Tampa and Orlando.

But Scott said he rejected the funding because he doesn’t want to saddle Florida taxpayers with any financial burdens due to construction cost overruns, operating losses or the refund of the federal money if the project fails.

Scott’s refusal to accept the money set off a scramble by federal, state and local officials to circumvent him and save the long-planned project. Local governments, including Orlando, Tampa, Lakeland and Miami, formed a coalition they said would assume responsibility for putting the project out to bid and ensuring that a private company would cover any cost overruns .

Even so, making the project happen would still require technical assistance from the Florida Department of Transportation, which reports to Scott.

Joseph Little, professor emeritus at the University of Florida law school who specializes in state Constitutional law, said he believes Altman and Joyner have a strong case.

“In my opinion, once the Legislature enacts the statute and directs that something be done, then the governor’s job is to enforce that statute,” Little said. “He can say he doesn’t like it, but he has to enforce it.”

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