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Scott's Judicial Appointments Could Trigger Constitutional Crisis, Lawyers Warn

Florida Supreme Court building in front of blue sky
Nick Evans

The Florida Supreme Court has tossed out a case challenging the governor's right to make last minute appointments. The justices say it’s too soon to review because the appointments haven't been made yet. Without a clear ruling, some are worried about a potential constitutional crisis. 

A year ago, Governor Rick Scott declared he would appoint three Supreme Court justices on his last day in office. Age limits are forcing Justices Barbara Pariente, Fred Lewis and Peggy Quince into retirement.

“I’ll appoint three more justices the morning I finish my term,” Scott told reporters.

The League of Women Voters sued Scott over this, saying his terms and the justices expire at the same time. They argued the vacancies don’t happen until after he’s out of office, and it’s the next governor’s right to appoint. A lawyer for the group, John Mills, asked the Supreme Court to solve the potential crisis before it happens.

“This is very bad for this court, you can avoid these problems rights now. You can ensure the orderly conduct of our courts by resolving this right now and I urge you to do so one way or the other,” Mills said.

But the court didn’t do that. It decided it’s too soon to say, because the appointments haven’t been made yet. Justice Charles Canady said as much during the oral arguments in November.

“There’s a lot of speculation that surrounds all of this. And I’m really kind of struggling to see how this is a ripe controversy for us to resolve,” Canady said.

"It's at the peril of the citizens if our top officials don't take into consideration the seriousness of this issue."

Justice Fred Lewis railed against the majority decision in his dissent, calling Scott's plan blatantly unconstitutional.

"It is most unfortunate that the majority finds it necessary to summarily dismiss this common law action to protect our State from blatantly unconstitutional actions for reasons other than a proper analysis of the law," Lewis wrote.

"It is even more regrettable and distressing that future Floridians have lost the ability to protect themselves and society from clearly unconstitutional action. The Florida Constitution requires devoted protection and the Florida citizens deserve better."

The decision means the court didn’t settle an issue that has plagued administrations for decades. Dan Stengle is the former general counsel for Governor Lawton Chiles, who dealt with this problem too. 

“My thinking is, as in past history, the governor’s term ends at the same time as the terms of the three retiring justices,” Stengle said.

Chiles and his successor Jeb Bush compromised, and appointed current Justice Peggy Quince together. For many politicos it’s difficult to picture that happening again. Democratic candidates for governor have already said they’ll sue Scott if he goes through with the plan. Stengle hopes Scott reconsiders, and avoids a constitutional crisis.

“It’s at the peril of the citizens if our top officials don’t take into consideration the seriousness of this issue and do underestimate the burden that would place on the citizens of Florida and our judicial institutions,” Stengle said.

Floridians will once again have to wait and see what happens. In 2014, the Florida Legislature tried and failed to give the power to the outgoing governor through a constitutional amendment. Whichever governor makes the appointments has the potential to reshape the balance of the court for decades. The outgoing justices skew liberal, and form the court’s 4 to 3 liberal majority. Their replacements could have a greater impact than either governor.

As a Tallahassee native, Kate Payne grew up listening to WFSU. She loves being part of a station that had such an impact on her. Kate is a graduate of the Florida State University College of Motion Picture Arts. With a background in documentary and narrative filmmaking, Kate has a broad range of multimedia experience. When she’s not working, you can find her rock climbing, cooking or hanging out with her cat.