Whiley v. Scott
79 So. 3d 702 (2011)
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Rule of Law:
A governor exceeds his constitutional authority and violates the separation of powers doctrine when an executive order effectively suspends the rulemaking process delegated by the legislature to state agencies by requiring prior approval from the governor's office before an agency can comply with statutory procedures.
Facts:
- On January 4, 2011, Governor Rick Scott issued Executive Order 11-01.
- The order created the Office of Fiscal Accountability and Regulatory Reform (OFARR) within the Executive Office of the Governor.
- The order directed state agencies under the Governor's control to "immediately suspend all rulemaking" activities.
- It required these agencies to submit the complete text of any proposed new rules or amendments to OFARR for approval before they could submit any official notices for publication, as required by Florida's Administrative Procedure Act (APA).
- The order also directed the Secretary of State not to publish any rulemaking notices in the Florida Administrative Weekly without authorization from OFARR.
- On April 8, 2011, Governor Scott issued a superseding order, Executive Order 11-72.
- While this new order did not use the word "suspend," it continued OFARR's operation and still required agencies to obtain OFARR's approval before submitting any required rulemaking notices for publication.
Procedural Posture:
- On March 28, 2011, Rosalie Whiley, as a citizen and taxpayer, filed a petition for a writ of quo warranto directly in the Supreme Court of Florida, the state's highest court.
- The petition named Governor Rick Scott as the respondent.
- The petition challenged the Governor's authority to issue Executive Order 11-01, arguing it violated the separation of powers doctrine.
- The Supreme Court of Florida exercised its discretionary jurisdiction to hear the case.
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Issue:
Does a governor's executive order that requires executive agencies to obtain pre-approval from the governor's office before initiating the statutorily-defined rulemaking process violate the separation of powers doctrine under the Florida Constitution?
Opinions:
Majority - Per Curiam
Yes, the executive orders violate separation of powers. The Governor's executive orders, to the extent they require prior approval from OFARR before agencies can engage in the statutorily mandated rulemaking process, impermissibly suspend agency rulemaking and encroach upon the legislative branch's authority. Rulemaking is a quasi-legislative function delegated by the Legislature directly to agency heads under the Administrative Procedure Act (APA). By inserting OFARR as a gatekeeper with veto power before the statutory process can even begin, the Governor unilaterally altered the legislative delegation. The Governor's general constitutional authority as 'chief administrative officer' and his power to remove agency heads does not grant him the authority to control the specifics of a delegated legislative function. The Legislature knows how to grant such specific oversight power to the Governor's office, as it has done in other statutes, but it did not do so in the APA.
Dissenting - Canady, C.J.
No, the executive orders do not violate separation of powers. The executive orders are a valid exercise of the Governor's constitutional authority to supervise subordinate executive branch officers. The Governor is vested with 'supreme executive power' and has the authority to appoint and supervise department heads who serve at his pleasure. This power must include supervising and controlling the discretionary policy choices made by those subordinates, including choices related to rulemaking. The Legislature's delegation of rulemaking authority to agency heads does not implicitly divest the Governor of his constitutional supervisory power over those same officials.
Dissenting - Polston, J.
No, the executive orders do not violate separation of powers. The petition should be denied because it is based on a hypothetical violation of law, and the operative executive order is a constitutional exercise of the Governor's duty as the state's chief administrative officer. The majority is issuing an improper advisory opinion about what could happen, as the petitioner has not demonstrated a single instance where the executive order caused an actual violation of the APA. The Governor's review process through OFARR is a permissible form of executive oversight to ensure agency rules are effective and lawful, and it is possible for agencies to comply with both the executive order and the APA's requirements.
Analysis:
This case reinforces a strict interpretation of the separation of powers doctrine concerning delegated legislative authority. The decision clarifies that the Governor's broad supervisory power over the executive branch does not extend to inserting the executive office into a statutorily defined, quasi-legislative process like rulemaking, thereby altering the delegation made by the Legislature. It establishes a clear line between permissible executive oversight, such as reviewing existing rules, and impermissible encroachment, such as acting as a gatekeeper for new rulemaking. The precedent limits a governor's ability to unilaterally halt or control the regulatory process outside the specific procedures enacted by the legislature.
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