Judge breathes new life into MDX in toll board dispute

Florida legislators violated the state Constitution when they dissolved the Miami-Dade Expressway Authority and replaced it with another toll road governing board that a faction of Republican lawmakers could have more influence over, a Leon County judge ruled Friday.

“There’s no doubt in my mind the intent was to abolish MDX and replace it with something else,’’ said Judge John C. Cooper at a hearing to challenge the new law. “What you do after that is not really relevant. This is an unconstitutional special law.”

The judge’s ruling came an hour into the preceding and is expected to be followed with a formal order sometime next week. The Florida House of Representatives, which pursued the law on behalf of a faction of Miami-Dade County lawmakers unhappy with MDX, is expected to appeal the decision along with the Florida Department of Transportation.

The ruling gives a temporary reprieve to MDX, which operates five of Miami-Dade’s busiest toll roads, including the Dolphin Expressway and the Don Shula. It leaves the replacement entity, the Greater Miami Expressway Agency, in limbo.

“We’re MDX again,’’ said Javier Rodriguez, the MDX director who was specifically barred from working at the new agency under the now unconstitutional law. He said the staff continues to work on the county toll roads as if nothing has changed, “maintaining the facilities, inspecting them, ensuring safe passage, construction and management.”

MDX collects about $250 million annually in tolls and, in recent years, toll increases and other decisions have rankled lawmakers, making the board a target for Miami-Dade Republicans in the Legislature.

The power struggle came to a head this year as House Speaker José Oliva, R-Miami Lakes, and former Miami legislator and now Lt. Gov. Jeanette Nuñez rose to power.

Their allies, Rep. Bryan Avila, R-Miami Springs, and Sen. Manny Diaz Jr., R-Hialeah Gardens, filed the bill that not only bars county Mayor Carlos Gimenez, who chairs the MDX board, and other MDX board members from taking seats with the GMX, it also gives the state’s Legislative Budget Commission approval power over borrowing decisions by the toll agency.

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The measure also aimed to reduce revenues at the road agency by forcing a financial analysis and requiring the new GMX to pursue a new rebate program for local toll payers and reduce tolls.

The MDX board sued. It argued that the law violates the state’s “home rule” provision, which prevents the Legislature from passing a law intended to specifically control government decisions that relate only to Miami-Dade County. The county then joined the lawsuit.

“These are meddling in the local affairs of Dade County,’’ said Gene Stearns, lawyer for MDX.

He noted that Florida voters amended the Constitution in 1956 to give Miami-Dade super-charged home rule powers that make it illegal for the Legislature to pass a bill that has the power to affect only Miami-Dade, the state’s most populous county.

Cooper agreed.

“Home Rule as it applies to Miami-Dade County is unique,’’ he said. “It’s special. It’s different. I recognize all that, but it’s in the Constitution.”

Dan Nordby, attorney for the Florida Department of Transportation, defended the law saying that the new authority granted to GMX could apply to other counties because the new expressway authority could create other toll roads that stretch into other parts of the state.

But Oren Rosenthal, attorney for Miami-Dade County, forcefully disagreed.

“It’s not a wolf in sheep’s clothing. It’s a wolf in wolf’s clothing,” he told the judge, adding that the law has no authority over anyone else.

“This case was directed at Miami-Dade County, directed only to Miami-Dade County. … This [law] is unconstitutional,’’ he said.

In a May 8 report, Fitch, a Wall Street credit agency, warned that if tolls are reduced as expected under the new law, it could increase the cost of bonds and potentially scuttle a plan to complete a 13-mile extension of SR 836 into West Kendall.

Nordby accused the plaintiffs of “trying to rile up some of the rating agencies.”

Cooper said that dispute “is interesting to me but not relevant.”

The judge’s final order is expected next week and is expected to be appealed, which will trigger an automatic stay to Cooper’s ruling. Cooper is then expected to hold a hearing and lift the stay that halts his ruling. During that time, MDX would remain operating and the measure would move to the First District Court of Appeal in Tallahassee.

If the appeals court decides to halt Cooper’s ruling while the appeal is litigated, it could result in a “train wreck — because no one will know who’s in charge,’’ Stearns said. “The status quo is a board which operates in the sunshine and the change would be to create a new board, which can’t even be appointed until, at the earliest, October.”

The law gives Tallahassee four GMX board seats, with the five other seats filled by the county commission and the county’s Transportation Planning Organization. DeSantis filled three GMX seats the same day he signed the bill. His appointees were Marili Cancio, a lawyer from Key Biscayne; Rodolfo Pages, an investment banker from Miami Beach; and Fatima Perez, an in-house lobbyist for Koch Industries.

Miami-Dade commissioners began their August recess without filling their two GMX posts. The TPO hasn’t filled its three seats and doesn’t have a meeting scheduled until Sept. 26 .

Cooper has already had to intervene once in a standoff between MDX and the new board when lawyers for MDX argued that it wasn’t able to use toll funds collected to pay contractors and employees because the new law had not authorized the transfer of bank accounts. Cooper ruled on July 15 that MDX funds and checks could be used to keep the expressway system running.

Stearns, a former legislative staff attorney, said the lesson from the case is: “Term limits don’t work.”

“Because there is nobody in the Legislature that knows what’s going on, there’s no institutional knowledge,’’ he said. “We’re talking about what happened in 1957 and ‘65 and nobody says ‘you can’t do that.’ ”

He added that the law is a fundamental threat to the ability of counties to govern themselves without state interference.

“Who would want to run local government in Tallahassee for the largest county in the state?’’ he asked. “Our concern is these legislators are disloyal to their county. They are more loyal to their political party than their county. This isn’t an issue about tolls; this is an issue about who runs local government.”

Gimenez’s office issued a statement after the hearing that began with the sentence: “Today is a great day for the residents of Miami-Dade County and our constitutional right for home rule.”

The Republican mayor in a nonpartisan post attended the hearing and will now resume his role as MDX chair. He said voters understood the need for home rule in 1956 because “government closest to the people governs the best.”

Gimenez said that if the appeals court upholds the law, it will mean that any county voter who wants to discuss a budget issue related to the new toll board, “they’ll have to purchase a ticket more expensive than flying to Paris to come to Tallahassee.”

Miami Herald reporter Douglas Hanks contributed to this report.

Mary Ellen Klas can be reached at meklas@miamiherald.com and @MaryEllenKlas

Mary Ellen Klas is the capital bureau chief for the Miami Herald, where she covers government and politics and focuses on investigative and accountability reporting. In 2018-19, Mary Ellen was a Nieman Fellow at Harvard University and was named the 2019 Murrey Marder Nieman Fellow in Watchdog Journalism. In 2018, she won the Sunshine Award from the Society of Professional Journalists. The Herald’s statehouse bureau is a joint operation with the Tampa Bay Times’ statehouse staff. Please support her work with a digital subscription. You can reach her at meklas@miamiherald.com and on Twitter @MaryEllenKlas.