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September 15, 2017
Supreme Court to consider who should appoint three new justices in January 2019

By Gary Blankenship
Senior Editor

The Supreme Court will hear oral arguments November 1 on a challenge to Gov. Rick Scott’s claim he has the authority to appoint replacements for three Supreme Court justices scheduled to retire in January 2019.

The League of Women Voters, Florida Common Cause, and three individuals — Pamela Goodman, Deirdre Macnab, and Liza McClenaghan — filed a petition for a writ of quo warranto with the Supreme Court last June. That came after Scott announced at a December 2016 press conference that he intended to appoint the replacements for Justices Barbara Pariente, Fred Lewis, and Peggy Quince, who, under the age limit for judges in the Florida Constitution, must retire when their terms end on January 8.

The issue is Scott, who is term-limited under the constitution, also must give up the governorship on the same day. While Scott claims he has the right to fill the three vacancies, the petitioners argued under the Florida Constitution the new governor gets to pick the new justices.

It’s a question that hasn’t arisen in 20 years — when Quince was named to the court. That involved the replacement of retiring Justice Ben F. Overton. Then-Gov. Lawton Chiles, who was term limited and whose service ended the same day as Overton’s, began the JNC process to choose Overton’s replacement, but Gov.-elect Jeb Bush questioned whether he or Chiles should fill the vacancy.

The issue never went to court, as Chiles and Bush agreed to both interview the finalists selected by the Supreme Court Judicial Nominating Commission, and both agreed that Quince, then a Second District Court of Appeal judge, should get the nod.

(Lewis joined the court at the same time, but he was replacing Justice Gerald Kogan who retired a few days before the end of his term, letting Chiles alone choose his successor.)

In 2014, Florida voters rejected a constitutional amendment placed on the ballot by the Legislature that would have specified that a governor at the end of his or her term would get to fill vacancies on the Supreme Court and district courts of appeal that occurred on the last day of the gubernatorial term.

The petitioners in their filing noted that in 2006 the court issued an advisory opinion on filling a judicial (DCA or Supreme Court) vacancy due to mandatory retirement and found that “vacancies may be filled by the governor only ‘upon the expiration of the term of the judge or justice.’”

Since the governor’s term expires at the same time as the retiring justices, and the new governor’s term starts at the same time, the 2006 opinion “should make it clear that the outgoing governor does not get to appoint successor justices or judges on the way out of office, especially since an attempt to amend the constitution to authorize the outgoing governor to make appointments was rejected by the people of Florida less than three years ago,” the petition said.

The petition noted that Gov. Bush sought the court’s opinion in 2006 when Judge Richard Ervin III was retiring from the First DCA at the end of his term, which coincided with the end of Bush’s second term.

“This court unanimously concluded that the ‘definition for when a vacancy occurs with regard to merit retention judges is clear and unambiguous — a vacancy exists upon the expiration of the term of the judge or justice’. . . . Thus, no vacancy, constitutional or physical, occurs until that expiration date,” the petition claimed.

The petitioners also argued that it would let voters consider, when voting in the 2018 gubernatorial contest, the candidates’ attitudes about court appointments.

Scott’s response argued the petitioners failed to meet the standards for a quo warranto action, assumed all three departing justices would serve until the last day of their terms, and violates the separation of powers by interfering in the governor’s appointment authority.

“To the extent the petition seeks relief in the absence of a justiciable controversy, the doctrine of separation of powers justifies dismissal of the petition,” Scott’s response said.

It also pointed to a 1955 case, Tappy v. State ex rel. Byington, 82 So. 2d 161, 166, in which the Supreme Court held, “that a governor continues in office with the full authority to fill judicial vacancies through the exercise of the appointment power until his or her successor qualifies by taking the oath of office.”

The response noted that Gov. Buddy MacKay, who succeeded Chiles when he died weeks before his term ended, signed Justice Quince’s commission. It also observed, without elaboration, “Earlier disputes regarding end-of-term vacancies on this court following the terms of Justices [Raymond] Ehrlich, [Joseph] Boyd, and [James] Adkins were likewise resolved without judicial intervention.”

In those cases, for Boyd and Adkins in 1987 and for Ehrlich in 1991, the outgoing governor (Bob Graham in 1987 and Bob Martinez in 1991) began the JNC process, but the incoming governor (Martinez in 1987 and Chiles in 1991) made the actual appointments. (One of Martinez’ appointments was Kogan.)

The petitioners, in their answer to Scott’s response, argued that Tappy didn’t apply because it involved a trial judge, not appellate judge, and it occurred under a different constitution, which had a different provision about when governor’s term started. It also said that Scott had reaffirmed his intention to appoint the three new justices, and delaying deciding the case could cast doubt on the legitimacy of those new justices if the challenges were made after the appointments.

If Pariente, Lewis, and Quince serve until the end of their terms, it will mark the first time in more than a century that three justices have joined the court at once, according to Supreme Court Spokesman Craig Waters. The last time came after voters in 1902 approved a constitutional amendment enlarging the Supreme Court from three to six members. Then-Gov. William S. Jennings appointed Thomas M. Shackleford, Robert S. Cockrell, and Evelyn C. Maxwell (whose father and grandfather also served on the Supreme Court) to the new seats.

[Revised: 03-17-2018]