FL Supreme Court Considers Nomination Question

Nov 1, 2017

Credit Nick Evans

The gubernatorial field is widening as the state Supreme Court is wrestling with the question of when the eventual winner’s nominating powers take effect.  The court’s next move could have major repercussions for the bench.

Florida’s constitution prohibits judges from serving after the age of seventy unless they’re finishing out the end of a term.  That provision is sending three Supreme Court justices—Fred Lewis, Peggy Quince and Barbara Pariente—into retirement at the conclusion of their terms in January of 2019.  The question is, who gets to choose their replacements. 

At a press conference last December, Governor Rick Scott made his position clear. “I’ll appoint three more justices the morning I finish my term,” Scott said.  He was holding the event to introduce his last Supreme Court appointee, C. Alan Lawson.

The problem is Florida’s constitution is pretty explicit about the beginning of terms, but not always the end.  Offices begin the first Tuesday after the first Monday in January following a general election. 

John Mills, an attorney representing common cause and the league of women voters, says that means the governor’s four years will be up before the judicial terms expire. 

“January 6 of 2015 is when he started,” Mills says.  “His term ends on January 6 of 2019.  That’s a Sunday—that’s not a Tuesday, that’s a Sunday.  So his term ends at midnight that Sunday.” 

“On Monday you have a gap—Monday is not in either governor’s term.”

During that gap, Mills allows Governor Scott’s power would continue because a different constitutional provision says an official maintains his or her office until a successor qualifies.  That qualification would likely occur at midnight as the first Monday in 2019 becomes Tuesday—the same time the three expiring judicial terms end. 

But Governor Scott’s attorney Daniel Nordby suggests that only works if the incoming governor has already taken the oath of office.

“It may be likely that his successor pre-files the oath of office and has a commission issued but we don’t know that to be true for certain,” Nordby says.  “There is an argument based on facts that we don’t have in the record and that are not known yet, that if the governor’s successor qualifies later in the day there may be an opportunity for Governor Scott, as Governor Johns did in the Tappy case that we’ve cited, to make appointments during his continued term of office.”

While the argument might seemingly revolve around how to count days, the implications of the decision could be significant.  The three outgoing members are some of the more liberal voices on the bench.  Three new conservative minded judges could push the chamber far to the right. 

The governor’s office argues the court shouldn’t intervene ahead of time—the question isn’t ripe, and the court’s conservative wing seems to agree.  But Mills points out waiting until after the fact would present problems of its own. 

“We’re going to have three justices sitting up here and you’re going to have a quo warranto petition saying they can’t sit up here,” Mills argues.

“Who decides that case?” he asks.  “What do you do?”

State law says all judges should recuse themselves if they are party to a case.  Whether that would apply in such a challenge isn’t clear—but if it did, and the three new members sat the case out, the court would be one short of a quorum.