Gov. Rick Scott overstepped his legal bounds when he put a hold on proposed agency rules, keeping them from going into effect until they could be reviewed by the governor’s office, a divided state Supreme Court said Tuesday.
The governor immediately called the opinion nonsensical, while attorneys for a blind woman who sued over the new requirement said the ruling would help preserve the ability of Florida residents to participate in the process by which new regulations that affect them are put into place.
In a 5-2 ruling, the Supreme Court majority said rulemaking is a legislative function simply delegated to state agencies — and that the process by which rules are made is spelled out in state law under the Administrative Procedures Act.
Any hurdle for putting rules in place that isn’t required by the APA is invalid, the majority found.
That’s what Scott did in his first official act as governor when he issued an executive order that suspended rulemaking.
The order prohibited agencies under the governor’s authority from developing proposed rules, changing existing rules or adopting new rules without their first being approved by a new Office of Fiscal Accountability and Regulatory Reform, or OFARR.
That led the plaintiff, Rosalie Whiley, to sue. She was counting on one of the rules that had been in the pipeline but was blocked by Scott’s order.
Whiley, a blind food-stamp recipient favored a proposed change in the online application for food stamps that would make it easier for her to apply.
The issue in her case became almost immediately moot — OFARR approved the amendment to the rule within a day of receiving it from the Department of Children and Families.
But the court took on the larger issue of whether the governor overstepped his bounds in creating the additional hurdle before such rules could go into effect.
“The governor’s executive orders at issue here, to the extent each suspends and terminates rulemaking … infringe upon the very process of rulemaking and encroach upon the Legislature’s delegation of its rulemaking power as set forth in the Florida Statutes,” the majority said in an unsigned opinion. “We conclude that the governor exceeded his constitutional authority.”
The practical effect seems to be that the OFARR, which officials in the governor’s office say will continue to exist, can’t directly order an agency to hold up a proposed rule.
The governor’s lawyers believe that under the ruling, regulations that are already in effect can continue to be reviewed for whether they make sense or not, officials in Scott’s office said.
Scott said it is illogical that the agency heads who answer to him can’t actually carry out his policies when it comes to rulemaking, and can do only what the Legislature explicitly contemplated when it wrote the APA.
“It doesn’t make any sense to me,” Scott said a short time after the ruling was handed down. “I don’t think it follows the constitution and it’s a disappointment
“Think about it,” Scott continued. “Secretaries of these agencies … they work for me at will, and I’m not supposed to supervise them? That doesn’t make any sense.”
Two members of the court agreed with Scott.
Chief Justice Charles Canady and Justice Ricky Polston wrote separate dissents in which each agreed with the other.
Canady said the majority opinion put “unprecedented and unwarranted restrictions on the governor’s constitutional authority to supervise subordinate executive branch officers.”
The constitution gives the governor “supreme executive power,” Canady wrote.
While that doesn’t give the governor the right to order agency heads to disobey the law, “if supreme executive power means anything, it must mean that the governor can supervise and control the policymaking choices — within the range of choices permitted by law — of the subordinate executive branch officers who serve at his pleasure.”
Nothing in the APA says the governor can’t order agency heads to review rulemaking, Canady wrote in a sharply worded dissent.
The executive order that created OFARR was aimed at reviewing, with an eye toward eliminating, some of the 20,000 rules on the books that Scott reiterated Tuesday were “killing jobs” in the current economy.
Whiley’s lawyer, Florida Legal Services attorney Cindy Huddleston, said the purpose of spelling out the process for rulemaking in the APA was to allow citizen input, which is required at various parts of the maze through which a proposal travels on its way to becoming a rule.
“For our clients, they rely heavily on the ability of agencies to engage in rulemaking — it’s important to them because the way the APA is set up it provides an entry to the agency,” said Huddleston.
Florida Legal Services represents poor clients in the legal system.
“The governor kind of cut off that dialog you would normally have with the agency,” Huddleston said Tuesday. “Those decisions (by OFARR) were being made behind closed doors.”
Huddleston said the governor put a hold on other rules that Florida residents wanted to have a say on that sort of disappeared from the process.
One rule she cited had to do with defining autism for the purposes of providing services for autistic children.
“That was a rule that kind of went into limbo,” Huddleston said.
Lawyers for the governor pointed out in briefs and during arguments that agencies can, even without an order from OFARR, put a halt to the promulgation of a particular rule for a variety of reasons.
Officials in the governor’s office think that remains the case. It just can’t happen because of an order from OFARR.