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Can Gov. Scott Appoint 3 Justices On Last Days in Office? Supreme Court Takes On Potential Constitutional Crisis

| November 2, 2017

He thinks he can. (© FlaglerLive)

He thinks he can. (© FlaglerLive)

Arguments before the Florida Supreme Court are often lively, with the black-robed justices peppering highly prepped attorneys on matters of law ranging from the esoteric to the mighty.

But Wednesday’s arguments were especially animated as the justices delved into a potential constitutional crisis involving the makeup of the court itself.

The controversy hinges on whether Gov. Rick Scott has the authority to appoint three Supreme Court justices, as he has said he plans to do, before he leaves office.

Scott’s final term and the terms of three justices — Barbara Pariente, R. Fred Lewis and Peggy Quince — all end in January 2019.

The three justices, who face a mandatory retirement age, are part of what is widely considered a liberal bloc, which now holds a slim 4-3 majority, that has thwarted Scott and the Republican-dominated Legislature on numerous occasions since the governor took office in 2011. Whoever has control over their replacements will shape the balance of the court for years, if not decades, to come.

Scott’s lawyers have maintained that Scott has the authority to appoint replacements for the justices before he leaves office on Jan. 8, 2019.

But the League of Women Voters of Florida and Common Cause, which filed the lawsuit in June, contend that Scott’s successor holds the privilege of naming three new justices.

On Wednesday, Scott’s general counsel, Daniel Nordby, appeared to acknowledge that the new governor would have the power to make the appointments under certain circumstances.

But, he argued, the court shouldn’t rule on the case because nothing has happened yet.

Justices Charles Canady and Alan Lawson seemed to agree.

“It just seems like there’s a lot of speculation that surrounds all of this. And I’m really struggling to see how this is a ripe controversy for us to resolve,” Canady said, saying the plaintiffs were asking the court “to give advice about what someone can or can’t do in the future.”

But John Mills, a lawyer representing the plaintiffs, said the court could face a crisis if the justices wait until after the appointments are made to deal with the issue.

A legal challenge filed after the new appointments are on the bench would require three of the justices to recuse themselves, leaving the court without the five-member quorum required to rule on cases, Mills said.

That would “pull this court and the whole court system into a political land mine that you have the authority to avoid” now, Mills argued.

“You do not have to jump over the cliff that’s coming. You can resolve it now in a nice, calm, dispassionate way,” he said. “I’m asking you to do something extraordinary. I recognize that. … But it’s very bad. This is very bad for this court. You can avoid these problems right now. You can ensure the orderly conduct of our courts.”

One of the key arguments in the case surrounds exactly when the terms of Scott and the justices end.

The plaintiffs maintain that the judicial vacancies do not occur until after the justices’ terms expire at the end of the day on Tuesday, Jan. 8.

Even if their terms run out earlier in the day, Scott still doesn’t have the authority to appoint the judicial replacements, Mills argued. That would be up to the new governor, who could be sworn in immediately after midnight Tuesday morning, according to Mills.

Nordby conceded that the governor’s successor would have appointment authority once he or she took office on Tuesday.

But, he argued, the court should not grant the petitioners’ request for a “writ of quo warranto,” which should be reserved for an action already taken.

“This court has never used quo warranto to address an anticipated exercise of executive power. In every case the petitioners cite, quo warranto has been used to review executive actions that have occurred and whether they’re proper,” Nordby said.

But Chief Justice Jorge Labarga expressed concern about the situation the justices would find themselves in if they agreed that the case could only be considered ripe after the governor made the appointments.

“If we find he is incorrect, then it will be the issue of removing the three people he had appointed. … De we want to go there?” Labarga asked.

Nordby said it would be the same situation as it was in 1998, when “no constitutional crisis occurred” and outgoing and incoming governors agreed on replacements for retiring justices whose terms were also ending in January.

“How is this the same as in 1998?” Quince wanted to know.

Nordby said that was when Gov. Lawton Chiles appointed her to the court.

But Quince contradicted Nordby, saying “it was not just Gov. Chiles” but that Chiles and newly elected Gov. Jeb Bush made a deal regarding the appointment to avoid the legal battle the court now faces.

“That was a situation where they did agree where they would make a joint appointment to eliminate or at least not get into the whole notion of a constitutional crisis if Gov. Chiles had sought to do it alone,” she said.

Mills was asked if it was possible that, as in 1998, Scott and his successor might reach an accord over the new appointments. In the current political climate, “that is very difficult to imagine,” he answered.

Pariente chided Scott for failing to seek an advisory opinion from the Supreme Court that, while not legally binding, would have acted to “avoid a constitutional crisis” on Jan. 7 or Jan. 8 in 2019 when there are vacancies on the court “and the governors start to fight as to who makes the appointments.”

“It seems to me that is a very real concern for all of us,” she said.

Standing on the steps of the court speaking to reporters after the hearing, Mills said the court would be thrown into chaos if justices don’t settle the matter before the end of Scott’s term.

The situation with three of the seven Supreme Court justices having to retire at once is unique.

“But this has been a problem that we’ve had for decades, and it has been resolved with backroom deals between ingoing and outgoing governors and our clients just don’t believe that that’s how it should be resolved,” he said. “Getting a firm resolution right now would benefit the court, the court system, the state of Florida and democracy.”

–Dara Kam, News Service of Florida

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11 Responses for “Can Gov. Scott Appoint 3 Justices On Last Days in Office? Supreme Court Takes On Potential Constitutional Crisis”

  1. Stranger in a strange land says:

    If he does, what back flips will be done by Republicans to justify the act? Wasn’t it just last year that they held up President Obama’s Supreme court appointment because it was too close to an election and so “that seat should represent the will of voters in Novenber”? Scalia died in February, almost a year before Trump took office. If Scott tries this stunt it would be after our next Governor is elected. Hypocricy seems to be a key platform of the Republican party. The last vestiges of doing what is right and fair are gone thanks to the partisanship that is ruining our country. Today it seems in Victory you crush “the enemy”, in defeat, grab what you can and burn everything else.

  2. Coyote says:

    @Stranger – Speaking of hypocrisy – remember how one of the Republicans’ talking points for 8 years was that President Obama was a ‘novice’ Senator, with no long-term political experience, therefore shouldn’t be qualified to be President? So, 8 years later, they replace him with a total newbie with ZERO political experience, but NOW it’s ok?

  3. Sherry says:

    Republican Hypocrites!!! So what else is new???

  4. JohnX says:

    Speaking of hypocrisy, having a DNC that allows itself to be RIGGED from the start, bought and paid for, by the admission of its successor Chairman, is pretty bad. You want to know why a novice was elected?? Because people are sick of Clintons and Bushes and politicans that collude with each other to enrich themselves by entering into NAFTA (remember Ross Perot’s “giant sucking sound” warning?), TPP, and other grossly unfair treaties that cost the ordinary Whirlpool worker in Michigan his salary. and then take millions of dollars from other countries for their “foundations”, in exchange for going against American interests. That’s why Trump was elected and he is doing a damn good job at rectifying the damage done by these greedy, rich, colluding, politicians. No, he is not part of the club, thankfully. Obviously, neither was Rick Scott, who was fought, tooth and nail, by some of the Republican establishment. He too, has done a damn good job.

  5. Pogo says:

    @Fox & Fools Fans

    Trump is what comes of enough money combined with an anthropomorphized pig – or in tricky ricky’s case a weasel.

    Reporter: “What do you think of Western civilization?”

    M. Gandhi: “I think it would be a good idea.”

  6. Sherry says:

    Really? Here’s the latest trump FACT CHECK from the Associated Press. . . Takes the time to read and get educated:,-taxes-and-Russia-probe

  7. Sherry says:

    Speaking of trump. . . here are some FACTS how he supports American jobs. . . this from The Hill:

    The Trump Organization has won the permission to hire 70 foreign workers to serve as maids, cooks and servers for the 2017-2018 tourist season, according to data from the U.S. Labor Department.

    The Palm Beach Post reported Friday that Trump’s Mar-A-Lago resort in Palm Beach, Florida, won the permission after first applying for the H-2B visas in July. The request was originally filed during Trump’s “Made In America week” at the White House.

    Palm Beach’s unemployment rate currently sits at 3.6 percent. A local job placement agency told the Post that there are plenty of local workers who would be eager to fill the positions.

    “We currently have 5,136 qualified candidates in Palm Beach County for various hospitality positions listed in the Employ Florida state jobs database,” CareerSource spokesman Tom Veenstra said Friday.

    The number of foreign workers hired by Mar-A-Lago is a slight increase from the 2016-2017 season, when the resort hired 64 foreign workers using H-2B visas. Trump defended the practice during a GOP primary debate in March of last year.

  8. Anonymous says:

    Sounds about right….last minute shenanigans. If this governor were on the up and up he would do what he is going to do now instead of do something and run out the door. We must not forget Scott is running for another public office because he is term limited as Governor and he plead the 5th multiple times during a Medicare Fraud case and we still elected him as Governor. He is not approachable and it is next to impossible to get him to act on behalf of the people…he’s all about big government. His attachment to Bondi is enough for me to know I will never vote for him for any position–she does nothing to protect us other than stand on a soap box. When she is contacted she refers you to contact someone else. I am hopeful that voters will wake up before the next election and learn from their mistakes of the past. If you keep elected the same, you will get the same. If he is not part of the solution to stop the corruption in this state, he is part of the problem.

  9. Stranger in a strange land says:

    @JohnX Scott has done a great Job? He is worse than the captain of the Titanic. The only difference is the Titanic sank into the ocean at a faster pace than Florida. Members of the Scott administration aren’t even allowed to say “climate change”. At least the captain of the Titanic acknowledged his mistake once the ship started taking on water!

    Seriously, why, whenever anything negative about Trump or his minions are brought up, their defenders bring up something Hilary, Obama, the DNC, etc. has done rather than refuting what is said. Are you giving any justification for Gov. Scott appointing Judges when he is days from leaving office? No. Do you dispute what I said about what Republicans did with Scalia’s vacancy? No. You are proving that partisanship and Trump’s constant “us vs. them” stretegy is making it so there is no right or wrong. The attitude has becomes whatever is done that helps “My side” is justified. Directing the beating up disenters at a rally? Fine. Waterboarding and torture? Fine. Neo-nazis chanting hate? Fine. etc. etc. etc. And, coming soon, “colluding with a hostile government to win an election ” fine (as long as “My guy” won). Very reminiscent of the last political party that believed the ends justify the means (hint, it begins with N and ends with i). This country has lost it’s moral compass.

    As far as what Hillary is accused of doing by Donna Brazil, a little shady but not illegal (it’s a political party, not a governmental agency). but maybe she was the better deal maker after all. “I will get the party out of debt but I expect to be favored”. Sounds like what a deal maker would do to me.

  10. Sherry says:

    Excellent post Stranger in a strange land! Now let’s take a look at Scott. . . this from MSNBC:

    A Tallahassee attorney sued the governor a few years ago in a real-estate dispute. But as the Miami Herald reported, the underlying controversy grew and ended up mattering quite a bit.

    Gov. Rick Scott has agreed to spend $700,000 in taxpayer money to settle seven public records lawsuits alleging he and several members of his staff violated state law when they created email accounts to shield their communications from state public records laws and then withheld the documents.

    The settlement, first obtained by the Herald/Times Tallahassee bureau, is precedent-setting in that it is the first time in state history that a sitting governor and attorney general have been sued successfully for violations of Florida’s public records laws. It is also the third legal defeat in recent months for the governor, and the second time he has agreed to use state dollars to end a lawsuit against him.

    Each of these details seems slightly worse than the last. It’s a problem that Rick Scott and his aides violated state law; it’s a bigger problem that they keep losing in court; and it’s a bigger problem still that Team Scott is using taxpayer money to resolve the cases.

    And given the political world’s extraordinary interest in public officials and email accounts, it’s probably worth emphasizing that in Scott’s case, the governor and his staff “set up a series of private Gmail accounts and used them to conduct public business.”

    The governor had previously claimed those accounts didn’t exist. Those claims weren’t true.

    But it’s the use of public funds that has Carl Hiaasen thinking that Rick Scott is “certainly a prime contender for worst ever, and each new screwing of Floridians pushes him closer to the title.”
    During the last few months, taxpayers have been soaked for more than $1 million to settle lawsuits in which Scott and his dim-bulb Cabinet flagrantly violated Florida’s open-records and open-meetings laws.

    No other sitting governor has used tax money to end public-records cases that were caused by his own secretive misbehavior. Scott couldn’t care less.

  11. Anonymous says:

    No matter what Scott does he is not going to be able to restore the fact that he sucks as a Governor. He will never get elected to another political position. Waiting to the last minute to say and do all the right things is years too late Mr. Governor….you will not go out as a superstar–we can see through the smoke.

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