The era of collaborative politics seems to be over in the state, justices mused as they considered a challenge to Gov. Rick Scott’s authority to fill seats on the Florida Supreme Court on his way out of office.
Justice Peggy Quince, the first justice ever appointed by two governors — incoming Gov. Jeb Bush and outgoing Gov. Lawton Chiles made the bipartisan decision in 1998 — drew laughs with one comment during Wednesday’s oral arguments that recalled the gentlemen’s agreement.
Quince cut in as lawyers mulled a scenario where Scott refuses to work with his successor on filling the three seats that will open in 2019.
“We know that there have been times in history — that I have personal knowledge of — that they have agreed,” she said.
There’s no ambiguity about whether justices turning 70 must leave the court, but there is a question of whether Scott can appoint the new justices on the morning of Jan. 8, 2019, hours before his successor’s customary midday swearing-in. After Scott announced his plan last year, the League of Women Voters and Common Cause filed a quo warranto action to compel Scott to prove he has the authority to exercise that power.
The groups argue Scott may not appoint justices before vacancies exist on the bench, which would be just after his term ends. Instead, the seats should be filled by Scott’s successor.
Justices Barbara Pariente, R. Fred Lewis and Quince, who are labeled liberal, are leaving the seven-member court as the conservative Republican governor exits.
“This is going to become a nightmare,” the petitioners’ attorney, John Mills of the Mills Firm in Tallahassee, told the court. “You can avoid it. You do not have to jump over the cliff that’s coming. You can resolve it right now, in a nice, calm, dispassionate way in which nobody can make any accusations that anybody’s worried about who’s picking their colleagues or who’s picking their successors.”
The controversy was seen as politically charged from the start.
“It’s so ironic because of course the whole idea of merit selection and retention was to take politics out of this whole process, and yet we’re seeing this fill with politics,” Pariente said during the hearing.
The governor’s attorney conceded circumstances exist under which Scott would be barred from appointing new justices but argued the challenge was improperly brought.
“This court has never used quo warranto to address and anticipated exercise of executive power,” Scott’s general counsel Daniel Nordby said. “In every case that the petitioners cite, quo warranto has been used to review executive actions that have occurred to determine whether they’re proper.”
Some justices said they saw a potential issue with the petition: “It just seems to me that it’s highly problematic to be bringing lawsuits over statements that are made at press conferences,” Justice Charles Canady said.
Others wondered aloud about the potential “constitutional crisis” Mills envisioned. If a quo warranto action can only be brought after Scott appoints new justices, chaos could ensue, Chief Justice Jorge Labarga worried.
“If we find that he’s incorrect in making the appointments, then there will be the issue of removing the three people he has appointed and starting the whole process again,” Labarga said. “Do we want to go there?”