Briefing: Amendment 3 Would Give Governor Power to Make Midnight Appointments to Florida’s Courts

A low-profile ballot proposal that supporters say would avert a constitutional crisis but opponents say is nothing more than thinly-veiled partisan power grab is headed to voters in November, possibly with the future of the Florida Supreme Court at stake.

Amendment 3 would essentially grant an outgoing governor the right to appoint replacements for Supreme Court justices and District Courts of Appeal judges who leave office at the same time as the governor does.

It comes after years of heated battles over the high court, which has served as one of the last barriers to the Republican agenda in Tallahassee. And it comes against the backdrop of an election between Republican Gov. Rick Scott and former Gov. Charlie Crist, his Democratic rival, that could decide which governor gets to make the appointments in 2019.

That has left critics suspicious of the motives of Republican lawmakers who approved it.

“We think that this is politicizing the way that the court works,” said former Republican Sen. Alex Villalobos, who has sometimes butted heads with his party since leaving office.

At the center of the issue are three justices — R. Fred Lewis, Barbara Pariente and Peggy Quince — who are part of the court’s left-of-center majority. That voting bloc, which often decides controversial cases on a 5-2 margin, has frustrated GOP lawmakers and governors for years.

Lewis, Pariente and Quince will reach the mandatory retirement age for justices before their next retention election, meaning they will have to step aside in early 2019. That will happen at the same time that the governor elected in the November 2018 elections is taking office.

As it stands now, according to Senate Judiciary Chairman Tom Lee, R-Brandon, it is unclear who would have to power to appoint replacement justices — the outgoing governor or the incoming governor. The proposed constitutional amendment, if approved, would give that power to the outgoing governor.

“The Senate Judiciary Committee thoroughly researched the Florida Constitution and case law surrounding the filling of court vacancies and concluded that, under the Florida Constitution and case law, either governor is arguably authorized to make these appointments,” Lee wrote in an op-ed distributed to media members.

Former Supreme Court Justice Harry Lee Anstead and others say that flies in the face of a 2006 advisory opinion from the Supreme Court that “a vacancy exists upon the expiration of the term of the judge or justice.” Anstead, who was a member of the court that unanimously approved the opinion, said that means the new governor gets to make the appointment.

“What’s wrong with that?” he asked. “We have lived with that at least 40 years, and nothing terrible has happened to us.”

But Lee pointed to a 1955 case involving county judges in which the Supreme Court ruled that the outgoing governor’s appointments were valid. That ruling occurred before the adoption of the merit-retention process for appeals court judges in Florida, though Lee said the current rules are “substantially the same” now.

“The stakes will be immeasurably higher in 2019 when the dispute involves three Supreme Court vacancies,” Lee wrote.

He also highlighted logistical issues in having the new governor make the appointments.

“Even if the appointments could be made on the incoming governor’s inauguration day in 2019, the Supreme Court would likely not be fully functional for weeks as the new appointees close existing law practices, relocate to Tallahassee and get up to speed with their new duties,” Lee wrote.

Anstead said existing justices or judges from the state’s district courts of appeal can be appointed by the chief justice to serve as acting justices — something that briefly happened, for instance, at the end of Anstead’s final term to allow him to wrap up some cases.

Lewis, Pariente and Quince have been in the middle of a political storm for several years now. In 2011, in the wake of several court decisions that went against the Legislature, then-House Speaker Dean Cannon proposed splitting the Supreme Court into two panels and putting those three justices on the court that would handle criminal cases — not challenges to the Legislature’s authority.

That plan was killed in the Senate.

In 2012, when the three justices faced their last merit-retention election — in which a candidate runs for re-election, but not against an opponent — the Republican Party of Florida formally opposed the justices. All three still easily won another term.

Coincidentally, Quince was appointed in 1998 during a change in administrations from outgoing Democratic Gov. Lawton Chiles to incoming Republican Gov. Jeb Bush. After Bush argued that he had the right to name the next justice, he and Chiles agreed to jointly appoint Quince.

Business groups like the Florida Chamber of Commerce, often closely allied with the Republican Party, and the Florida Council of 100 have supported the proposed constitutional amendment.

“Florida can’t afford to let its highest courts fall victim to uncertainty and doubt if it wants to continue to shine as a prime location for doing business,” Susan Pareigis, president and CEO of the council, said in a news release.

They have been countered in the low-level fight by interest groups that have traditionally opposed GOP efforts on the courts and elections, such as the League of Women Voters of Florida.

Anstead said he’s concerned that allowing an outgoing governor to appoint the justices to the court will remove the accountability that would face a governor who would later seek a second term. Anstead said he’s “not cynical, but … no dummy” when it comes to whether politics is at play.

“If there is partisanship here, it appears to be something of a gamble that Governor Scott will be re-elected,” he said.

But Lee said the uncertainty about the battle between Scott and Crist is the reason to change things now.

“Voting ‘yes’ on Amendment 3 avoids all these questions before we know which political party will be positively or negatively impacted,” he wrote.

–Brandon Larrabee, News Service of Florida