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The Forgotten Amendment, Amendment Three Targets Judicial Appointments

Florida Supreme Court

Three proposed state constitutional amendment are slated for Florida’s November ballot. So far most of the media and the public’s attention has been paid to two of them. But the one proposal that could have the most impact on state policy, is the one many people are overlooking.

Some political watchers say Florida is heading toward a crisis in the judicial system.

“The deal is, we’re going to have three Supreme Court justices retiring, and there’s a question of whether the incoming governor, or outgoing governor gets to appoint the justices," says Kurt Wenner, Vice President for Tax Research at the government spending watchdog group, Florida Tax Watch. 

In January 2019 the terms of Florida Supreme Court Justices Barbara Pariente, Peggy Quince and Fred Lewis expire. The justices are turning 70, the mandatory retirement age for state Supreme Court. But the ending of their terms coincides with the start of a new gubernatorial term. And that, says League of Women Voters of Florida Executive Director Jessica Lowe Minor, is where things get hairy:

“There has been some unclarity in the past," Minor says. "But in 2006 the Florida Supreme Court issued an interpretation n which they said a new judge or justice couldn’t be appointed until a person has left. In the situation a vacancy exists, it’s clear a new governor has already taken office.”

But the Supreme Court’s view does not make it law.

The issue has come up once before: during the transition period between former Governors Lawton Chiles and Jeb Bush. Chiles appointed Justice Quince to the Bench right before he left the governor’s mansion. Bush affirmed the appointment, but Amendment Three would have given Chiles sole authority over Quince’s appointment. Now there are three seats up for grabs. And those justices, along with the rest of the court, decide everything from whether amendments appear on the ballot, to whether state laws are constitutional or not. Minor says Amendment Three could give the next governor an unprecedented amount of power.

“Those vacancies will be opening up at the end of whoever is elected in this upcoming fall election—whether its Rick Scott or Charlie Crist—the end of their term is when those terms expire. So if amendment three passes, the governor who is elected in this November 4 election, will have the power to determine the entire balance of the Florida Supreme Court.”

But Amendment Three has largely been overlooked. Instead, the public debate has largely centered on whether Florida should amend the constitution to allow for Medical Marijuana, or whether there should be a dedicated funding source for land conservation. Both are important issues, but Florida Tax Watch’s Wenner says they could be solved legislatively. Amendment Three, he says, is the only measure that should be before voters:

“You can’t clarify amendment three legislatively. It would have to be done through the constitution. That’s the difference," Wenner says.

And at the end of the day, it could be one of the most important election decisions voters will make. Supporters say it will alleviate confusion over judicial appointments, while opponents argue an outgoing governor shouldn’t be able to appoint people who will serve under a new governor. The League of Women Voters of Florida is opposed to Amendment Three, while Florida TaxWatch is neutral.