Florida Gov. Rick Scott (Jill Kahn)
Voters are challenging Florida Gov. Rick Scott’s plan to replace three retiring justices on his last day in office in 2019.
Scott has said he will name three new jurists to replace Justices R. Fred Lewis, Barbara Pariente and Peggy Quince — all of whom tend to rule liberally — when they reach the end of their age-limited terms in January 2019.
But the League of Women Voters Florida and Common Cause are asking the high court to rule that Scott’s successor should be the one to pick the three justices’ replacements. The justices’ terms expire the day after the end of Scott’s term, the group argues in a petition filed Wednesday.
“As a matter of constitutional law, these judicial terms do not expire to create vacancies until Governor Scott’s successor will have taken office,” the petition argues.
The Republican governor said in December that he planned to name three more justices on the morning he leaves office, Tuesday, Jan. 8, 2019. The statement came just after Scott announced his first pick for the Florida Supreme Court, Justice C. Alan Lawson.
Such a move would shift the balance of the court, where Chief Justice Jorge Labarga usually rules with the three outgoing justices, and Justices Charles Canady, Ricky Polston and Lawson form a more conservative minority.
The state constitution says appellate judges’ terms end the first Tuesday after the first Monday in January after the election, the same day the new governor’s term starts. Although the new governor will likely not be sworn in until midday that Tuesday, he or she has the right to be sworn in at midnight, according to the voters’ groups. A Tuesday morning appointment session would fall outside Scott’s term, they argue.
Gov. Jeb Bush once asked the high court to advise him on whether he could fill a First District Court of Appeal vacancy on his way out the door in 2006.
The “definition for when a vacancy occurs with regard to merit retention judges is clear and unambiguous — a vacancy exists upon the expiration of the term of the judge or justice,” the court unanimously responded. Bush’s successor filled the seat.
The issue also arose in 1990 when Gov. Bob Martinez said he would select a new Florida Supreme Court justice instead of leaving the decision to Gov.-Elect Lawton Chiles. Martinez ultimately backed down.
When Chiles left office, he and incoming Gov. Bush reached a bipartisan compromise and decided to jointly appoint Quince.
“That ended up being almost a show of unity than anything else,” said Tallahassee attorney Dan Stengle, who served as Chiles’ general counsel. “That was an offer that Gov.-Elect Bush made, thinking there was going to be a dispute about that.”
Stengle said he believes three vacancies are the most that have occurred at the same time in modern Florida Supreme Court history. “It’s absolutely clear” Scott has no constitutional authority to fill them, he said.
In 2014, Florida voters “pretty soundly” rejected a proposed constitutional amendment that would have allowed the outgoing governor to fill vacancies that occur after the governor leaves office, Stengle said.
Scott is leaving office because he’s term-limited, but the right decision becomes clearer if you imagine a governor appointing justices after he was voted out, argue the voters’ groups represented by the Mills Firm in Tallahassee.
“Attempting to make appointments to shape the judiciary on his way out of office would run directly contrary to the core principle of this state that political power is inherent in the people,” the petition argues.
A media request sent to the governor’s office did not receive a reply.
Thomas Hall of the Mills Firm declined to comment on the petition he prepared with colleagues John Mills, Courtney Brewer and Andrew Manko.
The petitioners said they hope the court will decide the issue quickly, before the gubernatorial race progresses much further.
“Potential candidates and, more importantly, the voting public need to know what is at stake as soon as possible because the appointment of three justices to this Court is no small matter,” they wrote.