The traditionally staid justices in black robes on Florida’s Supreme Court got emotional and animated Wednesday as lawyers asked them to weigh in on something more intimate than what usually comes before them: their jobs.
The issue before the court was whether Gov. Rick Scott has the authority to appoint three new justices to replace three current justices whose terms expire on the same day he leaves office in January 2019. Those appointments could tip the 4-3 balance of the court from progressive to conservative.
The Florida League of Women Voters and Common Cause Florida urged the court to avoid a “constitutional crisis” that could emerge if Scott replaces Justices R. Fred Lewis, Barbara Pariente and Peggy Quince before his successor takes the oath of office. They argued that if Scott attempts a “midnight appointment” and chooses the successors before the deadline, it will draw lawsuits and send the court system into chaos.
The justices must decide whether to clarify a law that has traditionally been murky — and potentially influence who may be their replacements and new colleagues in the next term — or leave the issue unresolved to potentially face another lawsuit to be decided by justices whose appointments could be questioned, thereby disrupting the normal functioning of the court.
Pariente hinted that political and ideological issues were overshadowing the case.
“This is so ironic,” she said. “Because the whole idea of merit selection and retention was to put politics out of this office and, of course, we’re seeing politics.”
The case came in the form of a quo warranto petition, which argues that the governor cannot appoint because the justice’s terms “run through the last second of the evening of Jan. 8, 2019” while the governor leaves office earlier in the day when his replacement takes the oath.
The governor’s office argued in opposition to the petition, saying that the court has no jurisdiction to provide an opinion because there is no issue yet and there won’t be until the governor makes the appointments.
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. The three justices are scheduled to retire because they will have reached mandatory retirement.
Scott, a two-term Republican, said during a December press conference that: “I’ll appoint three more justices the morning I finish my term.”
But Scott’s general counsel, Daniel Nordby, told the court Wednesday that they agree that “if the new governor’s term has begun, then the new governor would have the authority to make the appointments.”
However, Nordby suggested that while they agree that Scott’s term ends when his successor takes the oath of office, “there is an argument that if the governor’s successor qualifies later in the day, there may be an opportunity for Gov. Scott to make appointments during this continued term in office.”
In an animated colloquy with John Mills, the appellate court lawyer for the League and Common Cause, Justice Charles Canady, one of the court’s more conservative justices, waved his hands and said “this is all speculative. I’m having a hard time seeing how this is a ripe controversy.”
Mills told him: “We are asking you to test an assertion of power by the governor who says he has this power. We say he does not.”
Canady replied: “It’s highly problematic to be bringing lawsuits about statements that are made in press conferences.”
Chief Justice Jorge Labarga questioned why the court would wait until the appointments were made and a quo warranto claim was filed before resolving the conflict. “Then we would be in the position of ordering the removal of three judges he appointed,” he said.
Rather than wait for such a scenario, Scott could ask the court to issue an advisory opinion to clarify which governor has the authority to make the appointments but, rather than make that request, Scott has chosen to fight the lawsuit.
“The governor has put us on a collision course toward a constitutional crisis that he could avoid,” Mills said, after the hearing. “I wish that he would but that’s his prerogative.”
He said that while the situation is unique now because three of seven justices could leave at once, “this has been a problem for decades and it has been resolved with backroom deals between incoming and outgoing governors, and our clients just don’t believe that’s how it should be resolved.”
Mills warned that if the court does not resolve the issue and Scott appoints three replacements as he has said he would, “some lawyer is going to challenge it and they’re going to have a good basis.”
He said that Scott could resign and run for another office and any of the members of the court could get sick and not finish their term, but it is unwise to assume any of those options would be the case.
The plaintiffs want the court to decide the matter swiftly to “clarify for the electorate and potential candidates the scope of what is at stake in the 2018 election.”
“Getting a firm resolution right now I think would benefit the court, the court system. the state of Florida and democracy here,” Mill said. “That’s why it’s so important — not the personalities involved.”
The issue has already come before voters in 2014 — in the form of a constitutional amendment asking them to give the outgoing governor the appointment authority. But the measure needed approval from 60 percent of voters and only 48 percent approved.
The 2014 amendment was the brainchild of the Florida Legislature and Sen. Tom Lee, R-Thonotosassa, who was then chair of the Senate Judiciary Committee. It was supported by the Florida Chamber of Commerce and the Florida Council of 100 but was opposed by the League of Women Voters. A similar amendment has returned as a proposal before the Constitution Revision Commission, which has the power to put it on the November 2018 ballot.