Environmental groups looking for Amendment 1 redemption from the courts probably shouldn't get their hopes up.
If ever a lawsuit looked like a colossal waste of everybody's time and money, it's this one -- filed last week by Earthjustice on behalf of the Florida Wildlife Federation, the St. Johns Riverkeeper, and the Environmental Confederation of Southwest Florida.
These folks have about as much chance of compelling lawmakers to comply with their interpretation of Amendment 1 as they do finding Sasquatch in the Big Cypress National Preserve.
Earthjustice attorneys certainly know their business. So I'm going to assume they're familiar with Graham v. Haridopolos, a precedent-setting case that slogged through the state court system under various names for nearly six years. It ended badly for the plaintiffs in January 2013, when the Florida Supreme Court ruled in the Legislature's favor.
It was former Gov. and U.S. Sen. Bob Graham who in 2007 sued to establish the Board of Governors as the body responsible for setting tuition. Graham had helped lead a citizen initiative that amended the Florida Constitution to create the board in 2002. The intent was to curtail political interference with the universities.
The plaintiff list was impressive. Besides Graham, it included former U.S. Rep. Lou Frey and former Florida State University President Talbot "Sandy" D'Alemberte. Nevertheless, despite appeal after appeal, they lost at every level.
Finally, the Florida Supreme Court unanimously rejected an argument that would have allowed the Board of Governors to set tuition rates without limits, saying the Legislature could restrain the board or even set the rates itself. It resolved a key question about the board’s power under the 2002 constitutional amendment that created the panel, replacing the Board of Regents. Graham had argued the BOG could set tuition rates without interference from lawmakers.
The Legislature has granted the board more power in recent years, particularly through the state’s “differential tuition” law, which allows increases of up to 15 percent, but with a limit on how that money can be used.
Good luck finding much written about the outcome outside of the attorney general's office. The Miami Herald was one of the few state newspapers to cover the Supreme Court ruling with more than a brief buried inside. Imagine, if you will, the lavish, celebratory front-page court coverage the media would have given the story, had the Supremes ruled for the plaintiffs.
Writing for the majority (there was no minority), Justice Barbara Pariente said the Legislature’s authority to control how state money is spent was tied to the ability to raise money to pay for those expenses -- including tuition.
"Nothing within the language of article IX, section 7, of the Florida Constitution indicates an intent to transfer this quintessentially legislative power to the Board of Governors," Pariente wrote.
At the circuit court level, the case was made as plain as it gets:
Graham's attorney Robin Gibson argued, "It's fundamental to our form of government that legislative powers are limited by the Constitution, and the will of the people as expressed in the Constitution is to prevail over the Legislature. We contend that a simple reading of the amendment shows that the people have given the full power to govern the university system to the Board of Governors."
Chief Judge Charles Francis didn't agree. In his 22-page ruling, he said the plaintiffs' premise that tuition and fees are not state funds and inference that "the Legislature has improperly appropriated monies 'from the treasury' that are not 'state funds'" is legally incorrect.
The bottom line here is, the Legislature has authority over the state budget, how money is appropriated and where it goes. It's a bedrock in the Constitution. Any effort to use the courts to do otherwise is unlikely to be met with success.
Yes, Amendment 1 is in the Constitution, just as the establishment of the Board of Governors through a constitutional amendment in 2002. But Earthjustice attorney David Guest will have a far tougher job making his case for Amendment 1 than even Graham's attorney did. “The constitutional amendment is clear” Guest said last week. But that's where many will beg to differ.
The undoing of Florida's Water and Land Legacy is the ballot language. As one attorney at the Capitol told me, "It's broad enough to drive a Mack truck through." The amendment's creators gave lawmakers enormous latitude -- it's almost carte blanche -- by not including, say, a percentage of proceeds that must go specifically for land purchase. Language is lofty and evocative, but virtually open-ended.
Remember, Graham's suit took nearly six years to conclude, with unhappiness every step of the way. And in the end, universities got most of what they wanted outside the courtroom -- by means of reason. By working with lawmakers.
Challenging the Legislature in a lawsuit is flashy, but it isn't the way to go here. The Graham suit is a telling precedent.
Reach Nancy Smith at nsmith@sunshinestatenews.com or at 228-282-2423. Twitter: @NancyLBSmith
