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July 1, 2017
Court asked who should appoint the next justices

Gov. Rick Scott should not be able to follow through on his intention to fill the vacancies created on the Supreme Court in January 2019 when three justices will retire, prohibited because of their age from seeking retention, according to a petition quo warranto filed with the court.

The League of Women Voters, Common Florida Cause, and three voters filed the petition on June 14 saying justices should resolve the issue well before the 2018 gubernatorial campaign kicks into high gear.

The petitioners, represented by The Mills Firm in Tallahassee, said it was proper for the Supreme Court to directly take up the issue with a quo warranto petition because the issue would sooner or later end up before it, and there are no material facts in controversy. They argued the vacancies won’t occur until Scott has left office and hence he has no constitutional authority to fill the seats.

“Although the urgent need for resolution of this question was created by the specific fact that Gov. Scott announced his intention to appoint the successors to three justices whose terms end in January 2019 and are not eligible for retention due to their age, that fact is not subject to reasonable dispute and, in any event, does not affect the constitutional analysis. The answer must be the same whether the vacancy is created by the expiration of a district court of appeal judge’s term or the term of a justice of this court. It should be the same regardless of how the appellate judge’s term started or why it is ending. And it should be the same regardless of the identity of the specific appellate judge or specific governor. As there will be no need for any fact-finding or weighing of evidence, a trial court would be in no better position to resolve the issues,” the petition said.

It also argued it’s better to settle the question before the heat of next year’s gubernatorial campaign, when candidates might announce potential slates of who they would appoint to the Supreme Court.

The petition argued the question has already been decided by an advisory opinion sought by former Gov. Jeb Bush, in Mandatory Retirement, 904 So. 2d 1090 (2006). In that opinion, which related to filling a vacancy on the First District Court of Appeal for a judge retiring because of age at the end of his six-year term, the court said appellate judges’ terms do not end until the first Tuesday after the first Monday in January.

“The letter of a merit retention judge or justice announcing his or her mandatory retirement at the end of the term does not create a vacancy in that judicial office until the actual date that the judge or justice’s term expires pursuant to the specific constitutional provision which addresses when a ‘vacancy’ occurs,” a unanimous court said in that advisory opinion.

The quo warranto petition argued that means the judges’ and justices’ terms run through the last second of that second Tuesday (in this case January 8, 2019) during which the new governor will be inaugurated, and hence the vacancy does not occur until the new governor is in office. Indeed, the petition said the new governor could choose, under the Florida Constitution, to be sworn in on midnight at the start of January 8.

“In sum, if any ambiguity existed in our constitutional scheme, it should be resolved in favor of allowing the incoming governor, who best represents the will of the people, to fill judicial vacancies arising the same day he or she is set to take office,” the petition concluded.

Voters addressed the issue in a 2014 constitutional amendment that would have given the outgoing governor the appointment authority, but only 48 percent supported the idea, far below the 60 percent needed for approval.

The last time the issue came up involving the Supreme Court was almost 20 years ago when a vacancy occurred as Bush was succeeding former Gov. Lawton Chiles. Chiles began the search to fill the vacancy, but Bush claimed it was his right. The two agreed to do a joint appointment and selected Justice Peggy Quince, who along with Justice Barbara Pariente and Justice Fred Lewis are the three justices retiring in 2019.

[Revised: 11-21-2017]