Saying it is too soon to rule on the issue, the Florida Supreme Court on Thursday dismissed a high-profile case about whether Gov. Rick Scott or his successor has the power to appoint replacements for three justices whose terms end as Scott’s tenure comes to a close.
Thursday’s decision — which a dissenting justice asserted sets up a “constitutional crisis” — isn’t a definitive ruling on whether the authority to select the new justices is vested in Scott or the winner of the 2018 gubernatorial election.
But it is at least a temporary victory for the Republican governor, who has said he plans to make appointments before he leaves office to replace three Supreme Court justices who face mandatory retirement age. Scott’s final term and the terms of three justices — Barbara Pariente, R. Fred Lewis and Peggy Quince — all end in January 2019.
Lewis and Pariente, a West Palm Beach lawyer who served on Florida’s 4th District Court of Appeal, were appointees of the late Democratic Gov. Lawton Chiles. Quince was named by Chiles jointly with former Gov. Jeb Bush, in a situation, like the current one, where her predecessor’s term ended at the same time as the end of Chiles’ final term. Chiles was a Democrat and Bush a Republican.
Scott did not cede any ground Thursday following the court’s ruling in his favor in the case filed by the League of Women Voters of Florida and Common Cause.
“I am pleased that the court upheld Florida law today and dismissed the challenge brought by these political organizations. As long as I am governor, I will continue to use my authority to appoint qualified judges,” Scott said in a statement.
In its dismissal of the case, the court found that the issue “is not ripe for consideration” because Scott hasn’t acted yet on the appointments.
The League of Women Voters and Common Cause filed the lawsuit in June, asking the court to prohibit Scott from filling any judicial vacancies that occur because of terms expiring in January 2019. The groups asked the court for a “writ of quo warranto,” which is used to determine whether a state officer or agency has improperly exercised power.
But the court on Thursday decided the use of the quo warranto writ “is not appropriate” to address something that might never happen.
“A party must wait until a government official has acted before seeking relief pursuant to quo warranto because a threatened exercise of power which is allegedly outside of that public official’s authority may not ultimately occur,” the court wrote in a four-page opinion. “To address whether quo warranto relief is warranted under such premature circumstances would amount to an impermissible advisory opinion based upon hypothetical facts.”
The majority opinion was a per curiam opinion, meaning that none of its four concurring judges — Chief Justice Jorge Labarga and Justices Charles Canady, Ricky Polston and Alan Lawson — was identified as the author.
Notably, the three justices who are to be replaced offered different opinions. Quince wrote a concurring opinion, in which she was joined by Pariente, while Lewis wrote a scathing dissent.
In the dissent, Lewis called Thursday’s majority opinion “regrettable” and “distressing.”
“The Constitution requires devoted protection and the Florida citizens deserve better,” Lewis wrote. “Contrary to Florida law and the general common law, the majority has now announced that the challenged conduct must have already produced a constitutional crisis and calamitous result before illegal acts of government officials are subject to quo warranto review or relief.”
Lewis wrote that the majority opinion negates common sense and logical analysis “to require that the illegal and unconstitutional conduct which produces disarray must have already occurred to allow judicial action.” He noted that as recently as this past year, the court issued a writ of quo warranto in response to an announced intention by Scott to appoint a judge to fill a vacancy in Palm Beach County.
In that case, the Supreme Court ruled that voters, not Scott, would decide the replacement for County Court Judge Laura Johnson, who had submitted her resignation to seek a circuit court judgeship but was remaining in office until the date that an elected replacement would be sworn in. West Palm Beach defense attorney Gregg Lerman filed a challenge to Scott’s plans to select Johnson’s replacement and subsequently lost a runoff election to Dana Santino for the seat. But Santino now faces possible removal from the bench for comments she made about Lerman during the election campaign.
Thursday’s decision sets a dangerous precedent, Lewis warned.
“Under the majority view, elected politicians can announce their intentions and plans to engage in all types of illegal and harmful conduct but no relief is available until the illegal and harmful act has already inflicted its damage,” he objected.
The outcome of the case could shape the makeup of the Supreme Court for years, if not decades. Pariente, Lewis and Quince are part of a liberal bloc, which now holds a slim 4-3 majority, that has thwarted Scott and the Republican-dominated Legislature on numerous occasions since the governor took office in 2011.
In her concurring opinion, Quince agreed with the majority’s result but wrote that she wanted to “highlight the concessions” made by a Scott’s lawyer during oral arguments this past month.
One of the key arguments in the case surrounds exactly when the terms of Scott and the justices end.
The League of Women Voters and Common Cause maintain that the judicial vacancies do not occur until after the outgoing justices’ terms expire at the end of the day on Tuesday, Jan. 8, 2019. That is also the day Scott’s successor will take office.
Even if the justices’ terms run out earlier in the day, Scott still doesn’t have the authority to appoint the judicial replacements, John Mills, a lawyer representing the League of Women Voters, argued in November. That would be up to the new governor, who could be sworn in immediately after midnight on inauguration day, according to Mills.
Scott’s general counsel, Daniel Nordby, conceded that “the governor’s term concludes at the end of the day on (the first) Monday in January,” Quince wrote Thursday.
“The governor’s counsel further conceded that if the justices do not leave before the end of their terms and ‘if the new governor’s term has begun, then the new governor would have the authority to make the appointment,’” she wrote.
Quince wrote that, while she agrees with the majority that the issue is not ripe for consideration at this time, she does not believe that the court has to wait until Scott makes the appointments to rule on the issue. And, she concluded, Nordby’s concession effectively answers the question about who has the authority to appoint the new justices.
Apart from the issue of the new appointments, the case was also in the spotlight after Pariente was caught on a “hot mic” following the Nov. 1 arguments. Scott tried to have Pariente recused from the case, arguing that her comments indicated she would not treat the governor fairly.
But Pariente refused to take herself off the case, and, on Thursday, joined the 6-1 majority dismissing the case.