We thought "retired" Justice James E.C. Perry had served his last day on the Florida Supreme Court last Friday, Dec. 30. We thought it was Justice Alan Lawson's turn. Apparently not.
It seems the left majority on the high court has found a way to wind up liberal leaning Perry like the Energizer Bunny, keeping him and its agenda going as long as possible.
Check the Florida Supreme Court’s website. It properly lists Gov. Rick Scott's appointee, Alan Lawson, as the court’s seventh justice, effective Dec. 31. According to Florida law, “[u]pon the resignation … of any judge, all matters pending before that judge shall be heard and determined by the judge’s successor.” So you would think Justice Lawson would be on the case of Larry Darnell Perry, concerning an opinion given in October, one of a number of high-profile death penalty cases related to the U.S. Supreme Court ruling last January. Lawson was not. (The News Service of Florida has the story of Wednesday in court.)
He was not listed among the justices participating in the order. But retired Justice Perry was, in his supposed capacity of “senior justice.”
It's true, the Florida Constitution (article V, section 2(b)) grants the chief justice of the Supreme Court -- in this case, Chief Justice Jorge Labarga (another of the liberal majority) -- “the power to assign justices or judges, including consenting retired justices or judges, to temporary duty in any court for which the judge is qualified.” Labarga actually issued an order assigning Perry “for statewide judicial service, effective January 1, 2017.” Under that order, Perry can decide cases “as a temporary judge of any court in the State of Florida upon approval by the chief judge of that court.”
But how could Perry keep Lawson from his place on the Supreme Court in the order issued today?
Ed Whelan, Harvard-educated, politically conservative lawyer-president of the Ethics and Public Policy Center, explained it disdainfully Wednesday in the National Review -- and, frankly, blew the whistle on the whole ... let's call it ... "irregularity." Whelan called it a "coup."
"The Florida Constitution (article V, section 3) states: 'When recusals for cause would prohibit the court from convening because of the requirements of this section, judges assigned to temporary duty may be substituted for justices,'" Whelan cited in a story Wednesday afternoon.
"That same section further provides, 'Five justices shall constitute a quorum.' Thus, if there were otherwise only four justices available to decide today’s order and if the absence of a quorum were attributable to 'recusals for cause,' Labarga could approve of Perry’s participation in the matter.
"But there were six other justices on the matter," Whelan points out, "so those conditions weren’t met. And even if they were, Lawson, unless he were recused (and there’s no indication of that), would be one of the justices entitled to take part. The same thing happened -- Perry’s participation instead of Lawson’s -- in a second order that was issued in the same case today (and that was later withdrawn, evidently because it miscited a statutory section, for reasons explained here)."
What it looks like is, Labarga has every intention of hijacking Lawson's seat, allowing Perry to displace him as if he has to wait his turn like a school boy in a milk line. Read Mary Ellen Klas' Dec. 30 story in the Tampa Bay Times: Perry expects to “remain on the bench for the next month or two as a senior judge to complete rulings on the cases that remain in the court’s pipeline.”
Is this how state statutes intended Florida judicial procedure to work? We keep Perry -- the justice we said goodbye to last week -- participating in "matters pending" while Justice Lawson waits for permission from the chief justice to serve the people of Florida?
Does this smell right? Chief Justice Labarga? Anyone?
Reach Nancy Smith at nsmith@sunshinestatenews.com or at 228-282-2423. Twitter: @NancyLBSmith
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