Florida voters are being asked to approve a little-noticed amendment to the state Constitution that would rewrite the way judges are appointed to the state’s highest courts and strengthen the powers of governors who are leaving office.
Proponents say it is needed to avert a constitutional crisis, but opponents say it is a manufactured problem and a partisan power grab that could have ominous consequences.
Amendment 3 is the brainchild of Florida Republicans in the Legislature who describe it as a modest change needed to correct a constitutional ambiguity that could arise in 2019.
Under current law, the governor is not allowed to make an appointment to the Florida Supreme Court, or the state courts of appeal, unless there is a vacancy. On the same day the governor takes office in 2019 — after the 2018 elections — three of the state’s seven Supreme Court justices are scheduled to retire because they have reached the mandatory retirement age of 70. The justices, R. Fred Lewis, Barbara Pariente and Peggy Quince, are considered the court’s liberal wing.
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State Sen. Tom Lee, R-Brandon, sponsored the amendment as chairman of the Senate Judiciary Committee. He said his legal scholars concluded the current law is unclear about which governor can make the appointment and a potential legal battle could set off a “constitutional crisis.”
“Even if the appointments could be made on the incoming governor’s inauguration day in 2019, the Supreme Court would likely not be fully functional for weeks,’’ Lee wrote in an opinion piece distributed to several newspapers.
The amendment has the support of the Florida Chamber of Commerce and the Florida Council of 100 and is opposed by the League of Women Voters. It needs to receive the approval of 60 percent of voters on Election Day to become law and, recent polls show, most voters remain undecided about it.
Under the proposal, the Constitution would establish a new legal term — “prospective vacancy” — and allow a sitting governor to fill an opening to the Supreme Court and to the courts of appeals before it occurs.
Opponents, led by a bi-partisan group of lawyers including former Supreme Court Justice Harry Lee Anstead, say the amendment is a solution without a problem and the proposed language is an overreach.
“There is no impending crisis because there is no ambiguity,’’ said Anstead, who served on the court from 1994 to 2009 and was appointed by former Gov. Lawton Chiles. “Who would want to inject into our Constitution this dangerous term ‘prospective vacancy?’”
He warned that if the legal term is applied to the courts there may be no stopping anyone from arguing that the governor could apply the same power to people leaving other constitutional offices.
Alex Villalobos, a former Miami state senator and a Republican lawyer, has joined Anstead in working to oppose the amendment. They cite a 2006 opinion of the Florida Supreme Court, which clarified that a vacancy occurs on the day the term expires. It does not specifically address which governor has the power to fill that vacancy.
They also point to a court rule that allows the chief justice of the Supreme Court to temporarily extend the terms of the sitting justices until the governor’s appointments are made. In the past, the court has extended the terms of retiring justices to finish out the cases they have already heard and it will do that again.
Anstead, for instance, stayed on the court for a month after he retired to complete his case load of pending cases. Justice Ben Overton stayed on the court for nearly a year after he retired in 1978 — not to hear new cases but to complete old ones, said Craig Waters, communications director for the Florida Supreme Court.
“That has been a routine practice the 28 years I’ve been here,’’ Waters said. “It doesn’t make sense to bring in a new justice to learn everything a justice already learned. That’s a waste of taxpayer’s money.”
Lee points to a 1955 case “when two governors appointed different individuals to fill the same vacancy on a county court.” The Supreme Court ruled back then that when a conflict existed the outgoing governor would make the appointment.
Opponents say that ruling was based on the previous state Constitution and before the merit retention and selection process proposed by former Gov. Reubin Askew and amended to the 1968 Constitution. Lee argues that the changes in wording was minimal and “the ambiguity remains.”
Florida has resolved conflicts over judicial appointments before. In 1998, when Gov. Lawton Chiles was leaving office and Gov. Jeb Bush was arriving, the two men agreed to appoint Quince to the Supreme Court from the list of nominees provided by the Judicial Nominating Commission. Anstead argues that can happen again.
“Instead of making a battle out of it, they did something that doesn’t seem humanly possible in today’s political atmosphere -- they agreed and shook hands on it,’’ he said.
Anstead and other opponents claim the amendment, which passed on a party-line vote in both the House and Senate, is part of a decade-long attempt by the Republican Party to control the judiciary. If Gov. Rick Scott is elected and the amendment passes, the Republican governor could stack the court before he leaves office in a second term. By contrast, if Charlie Crist wins election, he could do the same.
“All I’m saying is, let’s get some clarification now before we know which governor would benefit,’’ Lee said.
Lee’s wife, Lauren Lee, was appointed to the circuit court in Hillsborough County by Gov. Rick Scott in 2013 after being rejected by Scott for an earlier appointment. Text messages obtained by the Herald/Times between Scott’s deputy chief of staff, Carrie O’Rourke, and Lee’s former aide, Ron Pierce, show that Lee, a former state Senate president, lobbied to get his wife appointed during her first attempt, before he was elected to return to the Senate in 2012.
“Tom Lee’s wife Laurel Lee has been nominated by the JNC for a judgeship in Tampa,’’ Pierce wrote in a message. “President Lee wants to know who in the Governor’s office should calls and letters of support be sent.”
Lee said his support for the amendment was unrelated to Scott’s decision to appoint his wife and more to resolve what he identified was a problem. “Everybody lobbies very heavily for these judicial appointments,” he said.
Mary Ellen Klas can be reached at meklas@MiamiHerald.com and @MaryEllenKlas
Ballot Summary for Amendment 3
ARTICLE V, SECTIONS 10, 11
PROSPECTIVE APPOINTMENT OF CERTAIN JUDICIAL VACANCIES.
Proposing an amendment to the State Constitution authorizing the Governor to prospectively fill a vacancy in a judicial office to which election for retention applies that results from a justice’s or judge’s reaching the mandatory retirement age, failure to qualify for a retention election, or failure to be retained through election. Under current law, the Governor may not act to fill such vacancies until after the current justice or judge completes his or her term.
For more information and text of the full amendment, see here.