Judge says migrant flights lawsuit needs changes

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Dara Farez, 2, sits in a stroller during a protest with the immigration reform advocacy group CASA, rally outside of the Republican National Committee building in Washington, on Wednesday, May 12, 2021. The protest, which included activists and undocumented immigrants from throughout the Mid-Atlantic region, was aimed at President Joe Biden, asking him to ensure citizenship and greater legal protection to undocumented workers. Farez's mother said she had been protesting for two months with her young daughter in tow. (AP Photo/Amanda Andrade-Rhoades)

By Dara Kam ©2022 The News Service of Florida

TALLAHASSEE — A Leon County circuit judge on Monday dismissed a lawsuit filed by a South Florida senator challenging the use of state funds to transport migrants from Texas to Martha’s Vineyard in Massachusetts, but advised how to revamp the legal complaint so the case can move forward.

Gov. Ron DeSantis’ administration in September paid for charter flights from San Antonio to the island enclave to relocate about 50 migrants, mostly Venezuelans, who had crossed into the United States from the Mexican border.

Sen. Jason Pizzo, a North Miami Beach Democrat who is a former prosecutor, quickly filed a lawsuit alleging that DeSantis’ action violated the state Constitution and a separate law.

Lawyers for DeSantis and the Florida Department of Transportation asked Circuit Judge John Cooper to dismiss the lawsuit, arguing that Pizzo lacked legal standing to pursue the case and that he failed to show the relocation program was illegal.

During a hearing Monday, Cooper ruled that Pizzo has legal standing, relying in part on a 1972 Florida Supreme Court case involving state senators who challenged what is known as proviso language in the budget.

But the judge said Pizzo’s lawsuit needed to be tweaked.

“I’m going to dismiss the complaint with leave to amend because I want the plaintiffs to argue or to allege in the complaint with some additional facts and clarity, similar to what I’ve heard today and similar to what’s in the response but I don’t think that’s in the complaint,” Cooper said.

The Sept. 14 flights have drawn international attention and spurred a potential class-action lawsuit in federal court in Massachusetts against DeSantis, Department of Transportation Secretary Jared Perdue and people who helped recruit the immigrants in Texas.

DeSantis, who is widely considered a potential 2024 Republican presidential candidate, contends that undocumented immigrants can pose a threat to Florida and has blasted “sanctuary” communities, such as Martha’s Vineyard.

Pizzo’s challenge centers on $12 million lawmakers earmarked in the budget this year, at DeSantis’ behest, to go to the Florida Department of Transportation “for implementing a program to facilitate the transport of unauthorized aliens from this state consistent with federal law.” The budget item also said the “department may, upon the receipt of at least two quotes, negotiate and enter into contracts with private parties, including common carriers, to implement the program.”

The Department of Transportation paid $1.565 million to Vertol Systems Company, Inc., for the two Martha’s Vineyard flights and for potentially additional flights of migrants to “sanctuary” communities.

But Pizzo’s lawsuit questioned the constitutionality of the immigrant relocation program, which was never vetted by a legislative committee but appeared in the budget negotiated by House and Senate leaders.

The Florida Constitution says that “laws making appropriations for salaries of public officers and other current expenses of the state shall contain provisions on no other subject.” Pizzo’s lawsuit argued that “substantive” policies must be approved in separate laws, rather than through the budget.

Pizzo’s lawsuit also alleged that, even if the budget item didn’t violate the constitutional requirement, DeSantis misused the money by spending it to transport migrants who only briefly landed in Florida.

After starting in San Antonio, the flights stopped briefly at an airport in the Northwest Florida community of Crestview and then headed north to Martha’s Vineyard. The lawsuit also alleged that the DeSantis administration didn’t seek bids for the flights.

But Cooper on Monday said Pizzo’s lawsuit needs to be more specific.

“I would like to see the complaint divided essentially into two counts,” the judge said. “Count one is the constitutionality argument … and the ‘sue-ability’ issues of the defendants.”

The second count, Cooper suggested, would focus on whether the DeSantis administration violated the budget item “by not getting a second bid and the other things.”

Cooper also advised Pizzo’s lawyer, Mark Herron, to explain why DeSantis is the “proper defendant” in the lawsuit.

“I think there needs to be more specific allegations as to what if any involvement the governor had in this,” Cooper said.

Nicholas Meros, DeSantis’ deputy general counsel, argued Monday that Pizzo failed to demonstrate the need for an injunction he is seeking.

“Plaintiffs have to show and have to specifically allege and demonstrate their entitlement to relief,” Meros said. “He would have to show a bona fide, practical need for that. … It has to be unique and specific to the plaintiff. It cannot be a general need or declaration.”

But Cooper read a lengthy excerpt from the 1972 court ruling, which found that legislators, in their capacities as “ordinary citizens and taxpayers,” had legal standing to sue the state without having to show they had suffered any direct injury.

The ruling warned that, under the “guise of ‘appropriations,’” new agencies or projects might be created without “vital independent consideration” by the Legislature.

“It could also be a subtle approach to government ‘empire building.’ In such instances, the evil does not end with the fiscal year which first creates such an agency. Having been established, subsequent appropriations can be granted to it and the agency thereby perpetuated without ever having legitimate birth. Such indirect enactment of law is contrary to our principles of representative government,” Cooper read, quoting from the ruling.

Speaking to reporters after Monday’s hearing, which Senate Minority Leader Lauren Book also attended, Pizzo said he was relieved that Cooper allowed him to proceed with the lawsuit.

“The takeaway for us is, we’re most excited that we satisfied the standing issue, which I think internally might have been the concern,” he said. “We walk out of here just knowing we’ve got to show our work, show our answers.”

Pizzo also said lawmakers this year, at the direction of DeSantis, passed a law cracking down on transportation companies that bring undocumented immigrants into the state. He suggested the stop in Florida after the flights left Texas might have violated that law.

“They’ve got to pick a side. They’ve got to say that there were no unauthorized aliens. They were just people, asylum seekers, signing a release form for a free trip to Martha’s Vineyard, or they have to say they’re unauthorized aliens, in which case, it specifically says this year you can’t do that. You can’t hire a common carrier,” he said. “And what is it, at $32,000 a person? I think Expedia has flights for $458 from San Antonio to Martha’s Vineyard.”

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