Court declines to delay SC JNC process
Court declines to delay SC JNC process
Senior Editor
A divided Supreme Court has said the Supreme Court Judicial Nominating Commission may submit its nominations to replace three retiring justices before they leave office.
The court also rejected a request to force the JNC to reopen its application process, although it said the JNC may take more applications if it wishes. (The JNC met November 27 and made its nominations without taking further applications, see story, here.)
The court, by a 4-3 November 16 order, dismissed a further quo warranto petition and a request for a special writ to extend the application deadline that had been filed by the League of Women Voters and Common Cause.
The court had earlier granted a quo warranto request from the two groups that sought to specify that outgoing Gov. Rick Scott could not fill the vacancies and that task would fall to Gov.-elect Ron DeSantis. But the court left open for further argument when the JNC could submit three to six names for each vacancy.
The League and Common Cause then argued that the nominations could not be submitted until January 8, when the vacancies occur, and further asked the court to order the JNC to accept more applications. The JNC, following a letter from Scott asking for nominations by November 10, had set an October 8 filing deadline. The JNC and Scott’s office argued the JNC could submit the names before the vacancies actually occur and did not have to reopen nominations.
“We now further hold that the phrase ‘within thirty days from the occurrence of a vacancy’ in Article V, Section 11(c) of the Florida Constitution requires the JNC to make its nominations no later than thirty days after the occurrence of a vacancy, and does not prohibit the JNC from acting before a vacancy occurs,” the order said.
“Petitioners have requested that the JNC reopen its application period for the vacancies at issue in this case. We recognize that there is no impediment to the JNC reopening its application period.”
The order then dismissed the League and Common Cause’s additional petitions to the extent they did not follow the court’s original October 15 order barring Scott from making the order.
Chief Justice Charles Canady and Justices Ricky Polston, Jorge Labarga, and Alan Lawson concurred in the order. Justice Fred Lewis, joined by Justice Barbara Pariente, wrote a dissent saying the order mangles the Constitution, and Justice Peggy Quince, joined by Lewis and Pariente, wrote another dissent, which said, among other things, that she would have ordered the JNC to accept more applications. (Pariente, Lewis, and Quince are the three retiring justices.)
Justice Alan Lawson, with Canady and Labarga joining, wrote a specially concurring opinion saying Lewis’ strongly worded dissent erred in its constitutional interpretations.
“Simply put, the Judicial Nominating Commission (JNC) has no power to act without the occurrence of an actual vacancy, according to the plain language of the Florida Constitution and the JNC’s own Rules of Procedure,” Lewis wrote. “I will not sit silently while the majority muddles — or disregards — our Constitution and related rules.”
He argued that Art. V, Sec. 11(a), provides that “whenever a vacancy occurs” on the Supreme Court or one of the district courts of appeal the governor will fill the vacancies from the three to six nominees submitted by the JNC. Further, Sec. 11(c) mandates the nominations “shall be made within thirty days from the occurrence of a vacancy” unless the governor grants a 30-day extension.
In 2006 in an advisory opinion to then-Gov. Jeb Bush “this court unanimously agreed that the vacancy occurred upon the expiration of the term,” Lewis wrote. And in another 1992 advisory opinion, the court urged judges to submit resignations ahead of their actual departure date, which would count as a vacancy that would trigger the merit selection process.
And the Supreme Court JNC’s own rules specify that it is to receive applications “[w]henever a vacancy occurs on the Supreme Court,” Lewis argued.
“Therefore, based on the Constitution, the case law from our Court, and the JNC’s own Rules of Procedure, it is, in my view, absolutely clear that the Supreme Court JNC cannot begin accepting applications under the nomination process until a vacancy has occurred and certainly cannot terminate that process before a vacancy has even occurred,” Lewis concluded.
In her dissent, Quince said the solution approved by the majority’s order “may be a pragmatic one, it is not a constitutional one.”
She contended when the majority, and Lawson in his concurring opinion, interpreted Art. V. Sec. 11(c) that the nominations from the JNC to the governor must be made within 30 days of the vacancy, to mean “no later than thirty days after the occurrence of a vacancy.” That apparently leaves the starting date open.
There’s no constitutional basis for that, Quince said, and it fails to consider both sentences in that section, the second of which requires the governor to act within 60 days of receiving the nominations.
Lawson, in his specially concurring opinion, said since the inception of the JNC process, commissions have read the 30-day deadline in Sec. 11(c) as the latest time they could make their nominations. That also conforms with the court’s ruling in Barco v. Sch. Bd. of Pinellas Cty, 975 So. 2d 1116 (Fla. 2008), which held that a request for attorneys’ fees, which must be made within 30 days of a court award, meant no later than 30 days after the court action.
Lewis argued that Barco was misapplied in Lawson’s reasoning because it interpreted a rule of civil procedure and concerned a motion for attorneys’ fees in “an existing, pending case. It did not, however, determine the beginning date on which a party could file a motion without a case existing.”
Further, what past JNCs “have or have not done without challenge under different circumstances not present in the instant litigation is in no way controlling authority,” Lewis wrote.
The order came eight days after the court heard oral arguments on when the JNC should submit its nominations, where the League and Common Cause argued for extending the application deadline and attorneys for the JNC and Gov. Scott said the JNC has done nothing improper and should continue its process of selecting a slate for Florida’s next governor.
