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Supreme Court Weighs Scott's Power to Appoint Judges

November 1, 2017 - 6:00pm

Arguments before the Florida Supreme Court are often lively, with the black-robed justices peppering highly prepped attorneys on matters of law ranging from the esoteric to the mighty.

But Wednesday's arguments were especially animated as the justices delved into a potential constitutional crisis involving the makeup of the court itself.

The controversy hinges on whether Gov. Rick Scott has the authority to appoint three Supreme Court justices, as he has said he plans to do, before he leaves office.

Scott's final term and the terms of three justices --- Barbara Pariente, R. Fred Lewis and Peggy Quince --- all end in January 2019.

The three justices, who face a mandatory retirement age, are part of what is widely considered 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. Whoever has control over their replacements will shape the balance of the court for years, if not decades, to come.

Scott's lawyers have maintained that Scott has the authority to appoint replacements for the justices before he leaves office on Jan. 8, 2019.

But the League of Women Voters of Florida and Common Cause, which filed the lawsuit in June, contend that Scott's successor holds the privilege of naming three new justices.

On Wednesday, Scott's general counsel, Daniel Nordby, appeared to acknowledge that the new governor would have the power to make the appointments under certain circumstances.

But, he argued, the court shouldn't rule on the case because nothing has happened yet.

Justices Charles Canady and Alan Lawson seemed to agree.

“It just seems like there's a lot of speculation that surrounds all of this. And I'm really struggling to see how this is a ripe controversy for us to resolve,” Canady said, saying the plaintiffs were asking the court “to give advice about what someone can or can't do in the future.”

But John Mills, a lawyer representing the plaintiffs, said the court could face a crisis if the justices wait until after the appointments are made to deal with the issue.

A legal challenge filed after the new appointments are on the bench would require three of the justices to recuse themselves, leaving the court without the five-member quorum required to rule on cases, Mills said.

That would “pull this court and the whole court system into a political land mine that you have the authority to avoid” now, Mills argued.

“You do not have to jump over the cliff that's coming. You can resolve it now in a nice, calm, dispassionate way,” he said. “I'm asking you to do something extraordinary. I recognize that. … But it's very bad. This is very bad for this court. You can avoid these problems right now. You can ensure the orderly conduct of our courts.”

One of the key arguments in the case surrounds exactly when the terms of Scott and the justices end.

The plaintiffs maintain that the judicial vacancies do not occur until after the justices' terms expire at the end of the day on Tuesday, Jan. 8.

Even if their terms run out earlier in the day, Scott still doesn't have the authority to appoint the judicial replacements, Mills argued. That would be up to the new governor, who could be sworn in immediately after midnight Tuesday morning, according to Mills.

Nordby conceded that the governor's successor would have appointment authority once he or she took office on Tuesday.

But, he argued, the court should not grant the petitioners' request for a “writ of quo warranto,” which should be reserved for an action already taken.

“This court has never used quo warranto to address an anticipated exercise of executive power. In every case the petitioners cite, quo warranto has been used to review executive actions that have occurred and whether they're proper,” Nordby said.

But Chief Justice Jorge Labarga expressed concern about the situation the justices would find themselves in if they agreed that the case could only be considered ripe after the governor made the appointments.

“If we find he is incorrect, then it will be the issue of removing the three people he had appointed. … De we want to go there?” Labarga asked.

Nordby said it would be the same situation as it was in 1998, when “no constitutional crisis occurred” and outgoing and incoming governors agreed on replacements for retiring justices whose terms were also ending in January.

“How is this the same as in 1998?” Quince wanted to know.

Nordby said that was when Gov. Lawton Chiles appointed her to the court.

But Quince contradicted Nordby, saying “it was not just Gov. Chiles” but that Chiles and newly elected Gov. Jeb Bush made a deal regarding the appointment to avoid the legal battle the court now faces.

“That was a situation where they did agree where they would make a joint appointment to eliminate or at least not get into the whole notion of a constitutional crisis if Gov. Chiles had sought to do it alone,” she said.

Mills was asked if it was possible that, as in 1998, Scott and his successor might reach an accord over the new appointments. In the current political climate, “that is very difficult to imagine,” he answered.

Pariente chided Scott for failing to seek an advisory opinion from the Supreme Court that, while not legally binding, would have acted to “avoid a constitutional crisis” on Jan. 7 or Jan. 8 in 2019 when there are vacancies on the court “and the governors start to fight as to who makes the appointments.”

“It seems to me that is a very real concern for all of us,” she said.

Standing on the steps of the court speaking to reporters after the hearing, Mills said the court would be thrown into chaos if justices don't settle the matter before the end of Scott's term.

The situation with three of the seven Supreme Court justices having to retire at once is unique.

“But this has been a problem that we've had for decades, and it has been resolved with backroom deals between ingoing and outgoing governors and our clients just don't believe that that's how it should be resolved,” he said. “Getting a firm resolution right now would benefit the court, the court system, the state of Florida and democracy.”

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