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December 15, 2017
Court declines recusal request in justice selection case

By Gary Blankenship
Senior Editor

An inadvertently recorded exchange on the bench between Supreme Court Chief Justice Jorge Labarga and Justice Barbara Pariente led Gov. Rick Scott to ask Pariente to recuse herself from a pending case on Scott’s authority to appoint three new justices — including Pariente’s replacement — to the court.

Nine days after the motion was filed, the request was rejected with a one sentence order: “The Respondent’s Motion to Disqualify Justice Pariente is hereby denied.”

Scott’s opponents in the appointment controversy called his recusal motion “as strident as it is baseless” and a “transparent bullying tactic.”

Scott’s motion, filed on November 20, deals with a short conversation between Pariente and Labarga that was partially picked up by the court’s video recording system. It came immediately after the justices heard oral arguments November 1 on a petition for a writ of quo warranto that challenged Scott’s declared intention to choose the replacements for Pariente and Justices Fred Lewis and Peggy Quince.

All three are reaching the maximum age for judges and must retire no later than when their terms expire in January 2019 — which is also when Scott’s tenure ends.

Scott’s motion also said Pariente violated judicial canons by her actions.

The writ filed by the League of Women Voters and Florida Common Cause contends the Florida Constitution mandates that Scott’s successor gets to pick the new justices.

Scott’s recusal motion said, “Justice Pariente’s actions and comments following the oral argument in this case, in conjunction with her previous public comments as a judicial candidate regarding Gov. Scott’s potential exercise of the judicial appointment power to appoint her successor, provide a reasonable basis to question her impartiality toward the governor in this proceeding. Considering the totality of the circumstances, Gov. Scott is reasonably in doubt that this case will be decided fairly, impartially, and on the law alone.”

Scott’s motion said immediately after the oral argument on the quo warranto petition, as the lawyers for that case were leaving and the lawyers for the next case were setting up, Pariente produced a piece of paper and drew Labarga’s attention to it.

According to the motion: “After Justice Labarga reacted to the document by saying the name ‘Panuccio,’ Justice Pariente replied with the word ‘crazy.’ Justice Labarga then stated, ‘Izzy Reyes is on there. He’ll listen to me.’ Pointing again to the document, Justice Pariente appeared to say, ‘Look whose pick they’re getting . . . .’ Finally, Justice Pariente turned to Justice Quince, saying ‘Did you see who . . .’ before the next oral argument began.”

The comments were picked up and recorded by The Florida Channel, which broadcasts all sessions of the court. A footnote in the motion said additional comments were difficult to understand and had not been transcribed.

The response filed by the League of Women Voters and Common Cause said it’s not clear if Pariente said “crazy,” “where’s he,” or something else, and in any case is irrelevant.

Scott’s office filed a public records request to get the document, and the court complied. The document listed the nine members of the Supreme Court Judicial Nominating Commission.

Members of that JNC include Jesse Panuccio, Scott’s former general counsel and the former director of the Department of Economic Opportunity, and Israel U. Reyes, a Coral Gables attorney. (Panuccio is now the third-ranking official at the U.S. Department of Justice.)

Aside from that short conversation, the motion said in 2012, when Pariente was running for merit retention, she was quoted in the South Florida Sun Sentinel as urging voters at a campaign event to retain her along with Lewis and Quince, because if they lost that would “give Gov. Scott the right to make his appointments, which will result in partisan political appointments.”

Scott’s motion said that all allegations made in a recusal motion must be taken as true, and the motion must be granted if those allegations “would prompt a reasonably prudent person to fear that he could not get a fair and impartial trial.” Hayslip v. Douglas, 400 So. 2d 533. Under In re Estate of Carlton, 378 So. 2d 1212, it’s up to each justice to determine the legal sufficiency of a recusal motion.

Failure to recuse also would violate the Due Process Clause of the 14th Amendment, the motion said, because of the likelihood of bias.

Various provisions of Canon 3 of the Florida Code of Judicial Conduct require justices to be free from bias or prejudice and not make public comments about pending cases, Scott’s motion said, and in this case requires Pariente’s recusal because of a reasonable belief she would not conduct a fair and impartial hearing.

“Immediately following the oral argument in this proceeding, while still presiding on the bench, Justice Pariente was publicly observed discussing a document not provided by the parties, not discussed by the parties, and not contained in the record of this case,” the motion said. “. . . . Justice Pariente’s actions and comments following the oral argument are reasonably perceived as expressing ‘a personal bias or prejudice’” against Scott and his appointment authority.

The process for recusal of appellate judges is different than for trial court judges. For trial judges, there is both a state law and a Rule of Judicial Administration that govern recusals. For the appellate judiciary, it’s controlled by case law.

The response brief noted under trial court rules, Scott would have had to file the recusal motion within 10 days, which he did not do, and even though not binding in appellate cases that should be observed absent a good reason. The brief argued the precedents cited by Scott dealt with trial, not appellate, cases.

It also said, “No Supreme Court justice should be disqualified for unintelligible comments that ­— even as interpreted by the governor — had no possible relevance to the case that had just been heard and expressed no antipathy toward any party or attorney in the case. . . . The motion would not support disqualification even of a trial judge, who is powerless to address the substance of the accusations and is governed purely by appearances and not reality.”

It also said the newspaper article was irrelvant, but if Scott had concerns, those should have been raised earlier.

“How to strike the proper balance in this case — where the motion for disqualification is as strident as it is baseless — is the only even debatable question presented. On the one hand, whatever controversy Respondent [Scott] has sought to create might be diffused by voluntary recusal, which would certainly be the easy road for Justice Pariente. On the other hand, giving in to this transparent bullying tactic would set a dangerous precedent, guaranteeing a motion to disqualify her in every case involving the Respondent from this point forward,” the response brief argued.

Following rejection of the recusal motion, Scott’s communications director, John Tupps, said, “It is disappointing that . . . decision was made without providing any plausible justification or explantion for Justice Pariente’s comments. Given the gravity of this case, Floridians deserve better.”

Philip Padovano, a former circuit and First DCA judge who wrote a book on Florida appellate law, said the most recognizable feature of the trial court rule is the allegation itself is sufficient.

“If the allegation is facially sufficient and the motion is procedurally proper, the trial judge is required to recuse,” he said.

Padovano, however, said that doesn’t apply to justices and DCA judges.

“There is no rule, and there is no statute,” he said. “There’s a Florida Supreme Court case that says it’s entirely within the discretion of the appellate judge. There are some other cases that suggest . . . if it [the reason cited in the recusal motion] gives rise to reasonable fear of bias, it should be granted.”

Tallahassee attorney Barry Richard, another appellate practitioner, said recusal is simpler for appellate cases because judges sit in panels and, on the DCAs, it’s not a big matter to replace one judge.

“They recuse themselves, and they take a different case,” Richard said. “The Supreme Court is a little more difficult because they don’t sit in panels, so you can’t substitute someone.”

Padovano said: “If you’re talking about the Supreme Court of Florida, it’s something you have to ask and hope the justice agrees. There is no recourse. . . .

“This is something that she has to decide. I don’t think other people should weigh in on what she should do.”

[Revised: 12-18-2017]