79 So.3d 702 (Fla. 2011), SC11-592, Whiley v. Scott
| Citation | 79 So.3d 702, 36 Fla. L. Weekly S 451 |
| Opinion Judge | PER CURIAM. |
| Party Name | Rosalie WHILEY, Petitioner, v. Hon. Rick SCOTT, etc., Respondent. |
| Attorney | Cindy Leann Huddleston and Kathy Newman Grunewald of Florida Legal Services, Inc., Tallahassee, FL; Valory Toni Greenfield of Florida Legal Services, Inc., Miami, FL; and Talbot D'Alemberte and Patsy Palmer of D'Alemberte & Palmer, Tallahassee, FL, for Petitioner. Charles M. Trippe, Jr., General ... |
| Judge Panel | PARIENTE, LEWIS, QUINCE, LABARGA, and PERRY, JJ., concur. CANADY, C.J., dissents with an opinion, in which POLSTON, J., concurs. POLSTON, J., dissents with an opinion, in which, CANADY, C.J., concurs. CANADY, C.J., dissenting. POLSTON, J., concurs. POLSTON, J., dissenting. CANADY, C.J., concurs. |
| Case Date | August 16, 2011 |
| Court | Florida Supreme Court |
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This case is before the Court on the petition of Rosalie Whiley for a writ of quo warranto seeking an order directing Respondent, the Honorable Rick Scott, Governor of the State of Florida, to demonstrate that he has not exceeded his authority, in part, by suspending rulemaking through Executive Order 11-01. We have jurisdiction. See art. V, § 3(b)(8), Fla. Const. In exercising our discretion to resolve this matter, we grant relief and specifically hold that the Governor impermissibly suspended agency rulemaking to the extent that Executive Orders 11-01 and 11-72 include a requirement that the Office of Fiscal Accountability and Regulatory Reform (OFARR) must first permit an agency to engage in the rulemaking which has been delegated by the Florida Legislature.1 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. Accordingly, upon this basis we grant the petition for writ of quo warranto.
BACKGROUND
On January 4, 2011, Governor Scott issued " Executive Order Number 11-01 (Suspending Rulemaking and Establishing the Office of Fiscal Accountability and Regulatory Reform)," which created that office (OFARR) within the Executive Office of the Governor.2 OFARR is tasked
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with the goal of ensuring that agency-created rules do not hinder government performance and that they are fiscally responsible. OFARR specifically looks for rules that affect businesses, public health/safety, job growth, and indirect costs to consumers. Under Executive Order 11-01, state agencies controlled by the Governor were directed to immediately " suspend " rulemaking activities. State agencies not directly under the Governor's control were requested to " suspend" rulemaking activities. The executive order further provided that, before submitting a notice of proposed rulemaking or of amendments to existing rules pursuant to the rulemaking procedures mandated by Chapter 120, the agencies under the direction of the Governor were required to submit the complete text of the proposed rule or amendment to OFARR for review, along with any other documentation the office may require. The executive order directed each agency head to do the following: appoint an " Accountability and Regulatory Affairs Officer" ; review and evaluate the agency's current policies " relating to programs and operations administered or financed by the agency and make recommendations to improve performance and fiscal accountability" ; submit to the Governor a comprehensive review of existing rules and regulations, together with recommendations as to whether any such rules should be modified or eliminated; and submit a " regulatory plan" which identifies and describes any rules the agency head expects to promulgate during the following twelve-month period. The Secretary of State was ordered not to publish any rulemaking notices in the Florida Administrative Weekly absent authorization from OFARR.
A superseding, second executive order, Executive Order 11-72, also pertaining to agency rulemaking, was issued by the Governor's Office on April 8, 2011. The two executive orders are substantially the same; the primary differences are that the superseding order does not expressly use the terms " suspending" and " suspend," and that the operation of OFARR is continued rather than established.3
On March 28, 2011, Whiley, in her capacity as a citizen and taxpayer, filed a petition for a writ of quo warranto naming Governor Scott as the respondent. The petition challenges the authority of the Governor to issue Executive Order 11-01 as a violation of separation of powers. To the extent that Executive Order 11-01— and superseding Executive Order 11-72 (issued subsequent to the date Whiley filed her petition)— suspend the rulemaking process established by the Florida Legislature under Chapter 120, the Florida Administrative Procedure Act (APA), we conclude that the Governor exceeded his constitutional authority.4
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I. JURISDICTION
Whiley seeks a writ of quo warranto, and it is clear that the Florida Constitution authorizes this Court as well as the district and circuit courts to issue writs of quo warranto. See art. V, §§ 3(b)(8), 4(b)(3) and 5(b), Fla. Const. The term " quo warranto" means " by what authority," and the writ is the proper means for inquiring into whether a particular individual has improperly exercised a power or right derived from the State. See Fla. House of Reps. v. Crist, 999 So.2d 601, 607 (Fla.2008); Martinez, 545 So.2d at 1339. This Court " may" issue a writ of quo warranto which renders this Court's exercise of jurisdiction discretionary. Art. V, § 3(b)(8), Fla. Const. Furthermore, the Court is limited to issuing writs of quo warranto only to " state officers and state agencies." Id. The Governor is a state officer. See art. III, § 1(a), Fla. Const. (" The governor shall be the chief administrative officer of the state...." ).
Here, Whiley asserts that the Governor lacked authority to issue Executive Order 11-01 to the extent a portion of the order suspending agency rulemaking exceeds the Governor's authority and violates the doctrine of separation of powers. Thus, the petition asserts a proper basis for quo warranto relief upon which this Court may exercise its discretionary review. See, e.g., Fla. House of Reps. v. Crist, 999 So.2d 601, 607 (Fla.2008) (concluding that the Court had quo warranto jurisdiction where petitioners sought relief against the governor for exceeding his authority to unilaterally execute a gambling compact expanding casino gambling on tribal lands); Martinez, 545 So.2d at 1339 (deciding that quo warranto was the proper method to test the governor's power to call a second special session).
As a general rule, unless there is a compelling reason for invoking the original jurisdiction of a higher court, a quo warranto proceeding should be commenced in circuit court. See State ex rel. Vance v. Wellman, 222 So.2d 449, 449 (Fla. 2d DCA 1969). This Court may choose to consider extraordinary writ petitions " where the functions of government would be adversely affected absent an immediate determination by this Court." Chiles, 714 So.2d at 457; see, e.g., Allen v. Butterworth, 756 So.2d 52, 55 (Fla.2000) (entertaining jurisdiction on a petition for writ of mandamus where failure to resolve the issue would result in a large number of postconviction death case proceedings being in " limbo," and where the responsibilities of a large number of state-employed attorneys would be affected); Moreau v. Lewis, 648 So.2d 124, 125-26 n. 4 (Fla.1995) (entertaining jurisdiction on a mandamus petition which sought to invalidate a portion of a General Appropriations Act that required Medicaid recipients to make a $1 co-payment for pharmacy services, finding that " an immediate determination is necessary to protect governmental functions," and noting that there was no relevant factual dispute which would require " extensive fact-finding" ). Moreover, in
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Harvard v. Singletary, 733 So.2d 1020, 1021-22 (Fla.1999), this Court explained that it would " decline jurisdiction and transfer or dismiss writ petitions which ... raise substantial issues of fact or present individualized issues that do not require immediate resolution by this Court, or are not the type of case in which an opinion from this Court would provide important guiding principles for the other courts of this State." (Emphasis in original).
We find that the present case raises a serious constitutional question relating to the authority of the Governor and the Legislature respectively 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. We also note that a decision from this Court on such an issue would provide important guiding principles to other state courts, and that there do not appear to be any substantial disputes of material fact. Accordingly, we exercise our discretionary jurisdiction and entertain the petition for writ of quo warranto.
II. DISCUSSION
Our precise task in this case is to decide whether the Governor has overstepped his constitutional authority by issuing executive orders...
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