The Florida Supreme Court on Thursday dismissed a lawsuit over whether Gov. Rick Scott or his successor has the power to appoint three new justices to the Florida Supreme Court saying that action is not "ripe" because the appointments have not yet been made.
In a majority opinion, in which Chief Justice Jorge Labarga joined the three conservatives on the court, Justice Charles Canady, Ricky Polston and Alan Lawson, the court held that the "writ of quo warranto," the method used by the litigants, the League of Women Voters and Common Cause of Florida, was inappropriate.
"Until some action is taken by the Governor, the matter the League seeks to have resolved is not ripe, and this Court lacks jurisdiction to determine whether quo warranto relief is warranted,'' the majority ruled.
But the decision was blasted by Justice R. Fred Lewis, who warned that the court may not have invited a "constitutional crisis" and created a dangerous precedent when the majority required "that that illegal and unconstitutional conduct which produces disarray must have already occurred to allow judicial action."
"Under the majority view, elected politicians can announce their intentions and plan to engage in all types of illegal and harmful conduct but no relief is available until the illegal and harmful act has already inflicted its damage,'' he wrote. "Magnificent trees cut, pristine waters fouled, and unthinkable harm inflicted upon our citizens, which may not be prevented when the actor plans and even announces his intentions. Today, we have a new test. The writ is only available when the illegal act is taken and harm is actually inflicted—at times even irreparable harm."
Lewis was explicit that the court was creating a new precedent that has the potential to harm future generations.
"I fundamentally disagree with depriving the citizens of Florida of their ability to challenge inappropriate action by a state official simply based on this unfounded limitation,'' he said. Today’s decision - 16 - allows state officials, such as Governor Scott, to circumvent this extraordinary writ at the convenience of the office holder based on a ripeness challenge that does not, in my view, have any legal justification."
Agreeing with the result, but not the reasoning, was Justices Peggy Quince and Barbara Pariente. Quince wrote the opinion and Pariente concurred, arguing that both the majority opinion and Lewis confuse the issue because they under court precedent in a previous case involving a Scott appointment to the court, the court has shown "we have the authority to act prior to the Governor’s making an appointment that is contrary to law."
Quince wrote that "while I agree with the majority that it is not appropriate for us to rule on the petition at this time, I do not agree that it would only become appropriate to do so after Governor Scott has consummated an appointment."
Quince, however, noted that Scott's lawyers conceded in their oral arguments that he may not have the authority to make the appointment.
Dan Nordby told the court that “the Governor’s term concludes at the end of the day on [the first] Monday” in January, “the same day that the Justices’ terms end" and if the justices do not leave before the end of their terms and “if the new governor’s term has begun, then the new governor would have the authority to make the appointment.”
Quince noted that this is what voters concluded when they rejected a 2014 amendment to the state Constitution to clarify the law and give the appointment power to the outgoing governor. Lewis also noted in his dissent that he disagreed with this interpretation as well.
The Florida branch of the League of Women Voters and the government watchdog group Common Cause filed a petition with the Supreme Court in June saying Scott's successor should make the appointments.
Age limits are forcing three justices to retire on the day Scott leaves office in January 2019 because of term limits. Scott has said he plans to name their replacements that same morning.