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Whiley v. Scott
Citations: 79 So. 3d 702; 36 Fla. L. Weekly Supp. 451; 2011 Fla. LEXIS 1900; 2011 WL 3568804Docket: No. SC11-592
Court: Supreme Court of Florida; August 16, 2011; Florida; State Supreme Court
Rosalie Whiley petitioned for a writ of quo warranto against Governor Rick Scott, challenging his authority to suspend agency rulemaking through Executive Orders 11-01 and 11-72. The court determined it had jurisdiction and concluded that the Governor impermissibly exceeded his constitutional authority by requiring the Office of Fiscal Accountability and Regulatory Reform (OFARR) to approve agency rulemaking, which violated the separation of powers. Executive Order 11-01, issued on January 4, 2011, mandated the suspension of rulemaking for state agencies under the Governor's control and requested similar actions from others, establishing OFARR to oversee rulemaking compliance and fiscal responsibility. The order required agency heads to submit proposed rules to OFARR for review and prohibited the Secretary of State from publishing rulemaking notices without OFARR’s authorization. Executive Order 11-72, issued on April 8, 2011, continued OFARR's operations without explicitly suspending rulemaking. Whiley filed her petition on March 28, 2011, contending that these executive orders violated the Florida Administrative Procedure Act (APA). The court granted Whiley’s petition, reaffirming that the Governor's actions were unconstitutional. Jurisdiction for a writ of quo warranto is established under the Florida Constitution, which allows this Court, along with district and circuit courts, to issue such writs. Quo warranto, meaning "by what authority," is used to question whether an individual has improperly exercised state-derived powers. The Court's authority to issue this writ is discretionary and limited to state officers and agencies, including the Governor, who serves as the chief administrative officer of the state. Whiley contends that the Governor overstepped his authority in Executive Order 11-01, particularly regarding the suspension of agency rulemaking, which allegedly violates the separation of powers doctrine. This assertion provides a valid basis for quo warranto relief, aligning with precedents where the Court has intervened in similar matters of gubernatorial authority. Typically, quo warranto proceedings are initiated in circuit court unless there are compelling reasons for higher court intervention. However, the Court may consider extraordinary writ petitions if immediate resolution is necessary to prevent adverse effects on government functions. The current case presents significant constitutional questions regarding the Governor's and Legislature's roles in rulemaking, impacting state government operations and providing essential guidance for other courts without substantial factual disputes. Therefore, the Court opts to exercise its discretionary jurisdiction and will hear the petition for writ of quo warranto. The task at hand is to evaluate whether the Governor has exceeded constitutional authority through executive orders that limit the legislative rulemaking powers of agencies. This analysis is grounded in Florida's constitutional principle of separation of powers, which delineates distinct roles for the executive, legislative, and judicial branches. The doctrine prohibits any branch from encroaching upon the powers of another or delegating its constitutionally assigned powers. The case at hand pertains to the first prohibition, emphasizing mutual respect among branches for each other's constitutional prerogatives. Executive Orders 11-01 and 11-72 are central to this discussion, specifically regarding their potential infringement on legislative authority. The first step involves identifying the governmental functions affected by these orders. Executive Order 11-01 mandates that all agencies under the Governor suspend rulemaking activities unless directed by the newly established Office of Fiscal Accountability and Regulatory Reform. This order restricts agencies from developing, amending, or adopting rules independently, raising questions about the balance of power and the proper scope of executive authority in relation to legislative rulemaking functions. Executive Order 11-72 mandates that agencies under the Governor's direction must suspend rulemaking activities until they obtain approval from the Office of Fiscal Accountability and Regulatory Reform (OFARR). Agencies are required to submit proposed notices and the full text of any new or amended rules to OFARR, along with any additional documentation it may require, before publication. The executive order emphasizes that no agency can publish required notices without OFARR's approval. The text clarifies that the focus of the executive orders is on rulemaking and regulation. A dissenting opinion claims that the suspension from the first executive order has been lifted by the second; however, this summary disagrees, noting that the distinction between the two orders is that the first established OFARR, while the second continues its operation. The dissent's argument fails to account for the provision requiring OFARR's approval for publication of notices. The document further explores the nature of rulemaking, asserting it is a derivative of lawmaking and falls under the executive branch, as agencies can adopt rules only if they have statutory authority and a specific law to implement. Rulemaking authority, defined as explicit statutory authorization for agencies to develop rules, is highlighted, and the role of agency heads in the rulemaking process is detailed. The authority to propose, amend, or repeal rules cannot be delegated, reinforcing that rulemaking is fundamentally a legislative function. The Legislature has the authority to enact self-contained laws aimed at serving a general public purpose and may delegate rulemaking authority to designated officials with specific limitations for the law's operation and enforcement. This delegation is justified as state agencies possess the necessary expertise for oversight in specific areas. To evaluate potential encroachments by executive orders on legislative rulemaking authority, the established procedure under the Florida Administrative Procedure Act (APA) must be considered. Agencies must follow several steps: first, they must publish a preliminary notice of proposed rules in the Florida Administrative Weekly; second, after agency head approval, they must issue a more detailed notice in the Florida Law Weekly at least 28 days before the intended action; and third, they must file the proposed rule with the Administrative Procedures Committee. Additionally, affected individuals may request to present evidence and arguments on the issues at hand. A rule is adopted after filing with the Secretary of State and becomes effective twenty days later, unless it is an emergency rule necessitated by immediate dangers to public health, safety, or welfare, which can be adopted without following normal procedures. The analysis of two executive orders from 1995 issued by Governor Lawton Chiles reveals that these orders were limited to reviewing agency rules and did not override the APA's delegated legislative authority. Specifically, Executive Order 95-74 instructed agencies to assess the necessity of their rules, identify obsolete rules, and send the findings to the Office of Planning and Budgeting for analysis before submission to the Legislature for review and potential repeal or amendment of any related statutes. Agencies were required to submit rules they could repeal to the Legislature for review and comment, as established in Executive Order 95-256, which transformed a one-time review process into a continuous mandate every sixty days, with reports to the Office of the Executive. This order also instructed agencies to evaluate Florida Statutes for potential legislative mandates that could be eliminated without jeopardizing public health or safety, aiming to reduce government operating costs. Further, agencies were tasked with identifying obsolete or unnecessary rules; Executive Order 95-256 expanded this to include rules that could be achieved more efficiently or were overly precise or redundant. In contrast, Executive Orders 11-01 and 11-72 from 2011 introduced significant changes. Unlike the Chiles orders, which allowed agencies to review their own rules, the 2011 orders established the Office of Fiscal Accountability and Regulatory Reform (OFARR) to independently review rules, ensuring they do not negatively affect businesses or impose unjustified costs. Additionally, the 2011 orders required agencies to obtain OFARR's approval before publishing any required notice related to rulemaking actions, a provision absent in Executive Order 95-256, which allowed agencies independent authority in proposing, amending, or repealing rules. The Court finds that the Governor's executive orders, which suspend and terminate rulemaking by preventing notice publication and compliance with Chapter 120 without prior approval from OFARR, violate the Administrative Procedure Act (APA) and infringe upon the Legislature's delegated rulemaking authority under Florida Statutes. The determination of whether the Governor exceeded his authority is not dependent on the frequency of the encroachment or personal impact on the petitioner. Specifically, Executive Order 11-72, particularly section 1, suspends rulemaking, which is clearly indicated in its language. The dissenting opinion regarding the Governor's authority to issue this order is deemed irrelevant. The Governor claims his authority to establish OFARR and its responsibilities is derived from the Florida Constitution, article IV, section 1(a), which outlines the Governor's executive powers. A prior attorney general opinion from 1981 concluded that this constitutional provision does not grant the Governor the power to directly control state agencies. It asserted that the heads of departments, not the Governor, are responsible for directing agency functions, and the Governor cannot issue binding directives to comply with specific plans without explicit authorization from relevant laws. Although the attorney general opinion is not binding, the Court finds it persuasive and concludes that article IV, section 1(a) does not permit the Governor to suspend or control agency rulemaking in violation of the APA. Dissents in the case assert that the Governor holds 'supreme executive power' under article IV, section 1(a) of the Florida Constitution, which is contested as an overreach. The interpretation of 'supreme executive power' should not imply unlimited authority, as the state constitution serves to limit rather than grant power. The dissents overlook the Administrative Procedure Act (APA), which explicitly delegates rule-making authority to agency heads, an authority that cannot be delegated by any entity other than the Legislature. The Governor claims authority under article IV, section 6, which allows him to supervise departments and remove agency heads at will. However, it is argued that this does not equate to control over legislative functions, as the Legislature has designated that authority to department heads, not the Governor. Executive Orders 11-01 and 11-72 are viewed as attempts by the Governor to override legislative delegations by imposing new directives that restrict agency rule-making processes. Additionally, the potential for the Governor to require prior approval from the Office of Fiscal Accountability and Regulatory Reform (OFARR) for rule-making is highlighted, suggesting that any such authority must come from a clear legislative delegation or amendment to Chapter 120. Historical legislative actions demonstrate that the Legislature can clearly grant oversight authority to the Governor when intended, implying that the current lack of such delegation indicates a deliberate omission. Delegation of rulemaking authority to the Governor could occur through an amendment to the Administrative Procedure Act (APA), specifically targeting the Executive Office of the Governor. Section 120.745 of the Florida Statutes, enacted on June 24, 2011, enables the Office of Fiscal Accountability and Regulatory Reform (OFARR) to review existing agency rules, but its scope is limited to rules effective before November 16, 2010. This section does not grant the authority to suspend or terminate rulemaking as outlined in Executive Orders 11-01 and 11-72. The distinction is made between the Governor's constitutional authority regarding executive orders and the Legislature's lawmaking authority under Article III, Section 1 of the Florida Constitution. The Legislature alone has the right to delegate rulemaking authority, and any provisions in the executive orders that contradict the APA infringe upon legislative functions. While the court grants Whiley's petition, it withholds the writ of quo warranto, expressing concern that Executive Order 11-72’s suspension of APA compliance will not be enforced against agencies until the Legislature chooses to amend the APA or delegate authority. The dissenting opinions highlight disagreements about the validity of portions of the executive orders, with Justice Polston arguing that some sections may be valid while others are not, which complicates the constitutional evaluation of the executive orders. Whiley, as a citizen and food stamp recipient, claims harm from Executive Order 11-01, but the court finds her allegations irrelevant to the quo warranto inquiry. The court emphasizes the importance of constitutional scrutiny over executive orders and the separation of powers between the legislative and executive branches. A petition for writ of quo warranto challenges the actions of a state officer, specifically whether those actions exceed constitutional authority. Standing in such cases is granted to individual citizens and taxpayers, as established in Martinez v. Martinez, where the public is considered the real party in interest, allowing suit without a personal stake. The context shifts to the Governor’s authority regarding Executive Orders 11-01 and 11-72, which contain provisions affecting agency rulemaking. The Governor referenced three administrative cases related to food stamp application regulations, all dismissed as moot, stating they are not relevant to this case. Whiley, the petitioner, argued personal impact from the Governor's orders, but the case focuses on the legality of the Governor's authority rather than personal interests. The discussion includes the nondelegation doctrine, which restricts the Legislature's ability to delegate rulemaking power, yet the current dispute does not challenge the extent of this delegation. Section 120.536 outlines that agencies require both rulemaking authority and a specific law to adopt rules, emphasizing that rules must implement or interpret powers granted by enabling statutes, rather than being based solely on general legislative intent. Statutory provisions regarding rulemaking authority are limited to the implementation and interpretation of specific powers granted by the enabling statute. According to section 20.05 of the Florida Statutes (2010), the heads of departments are required to exercise their authority to adopt rules that align with their conferred powers and functions. A department is defined as a principal administrative unit within the executive branch, with the head of the department being the individual or board in charge. The excerpt references the Florida Coastal Planning and Management Act as part of Chapter 380, which is relevant to Attorney General opinion 81-49. The arguments presented by Attorney General Bondi in support of the Governor include that the Governor's rule review process does not conflict with the separation of powers, and that the significance of the attorney general's opinion has diminished due to a new administrative accountability framework and expanded gubernatorial powers following the passage of Amendment 4 and section 20.051. However, it is noted that while OFARR's review function is permissible, its initial rulemaking role may not be. The legislature's repeal of section 14.2015 during the 2011 session, which transferred functions from the Office of Tourism, Trade, and Economic Development to the Department of Economic Opportunity, is highlighted as significant. This transfer aligns with the Governor's objectives pursued through Executive Orders 11-01 and 11-72. The goals of the former office included collaborating with various stakeholders to create policies for economic opportunities in Florida. Additionally, the Governor is to appoint a rules ombudsman to assess the impact of agency rules on citizens and businesses, particularly focusing on rules affecting small and minority businesses and making recommendations to mitigate adverse effects.