Florida Supreme Court Justice James E.C. Perry notified Gov. Rick Scott on Monday that he will retire from the Florida Supreme Court on Dec. 30, 2016, as required by law, formally setting in motion the opportunity for the governor to make a coveted pick to the state's highest court.
Perry, who was appointed to the bench in March 2009 by former Gov. Charlie Crist, must retire because of a state law requiring justices to retire on their 70th birthday or the end of their six-year term if they are half-way through the term. Perry turned 70 in January 2015 but his term ends Jan. 3, 2017.
Scott will choose from a list of three to six candidates from the region that encompasses the Fifth District Court of Appeal in Central Florida. Under Florida's judicial appointment system, the governor appoints new justices from a list of three to six names submitted to him by the Supreme Court Judicial Nominating Commission, a nine-member panel controlled by the governor’s appointees. Last week, Scott reappointed three members of the commission, including his former general counsel, Jess Panuccio.
The likely candidates are expected to be Daniel J. Gerber, of the Orlando office of the law firm Rumberger, Kirk and Caldwell, Fifth DCA Judges Alan Lawson and Wendy Berger. Gerber also applied when Perry was nominated and Berger was named to the trial court bench by Scott.
Perry’s retirement is the first opportunity Scott will have to name a justice to the moderate court that has vexed Republicans during his term on issues ranging from redistricting, abortion and workers compensation to declaring that the Republican-controlled Florida House violated state law when it adjourned early in protest over a budget dispute over the Affordable Care Act.
Perry, the newest member of the court, is the fourth African-American jurist to to serve on Florida's high court. He was first appointed to the trial court by former Gov. Jeb Bush when he was named to the state’s 18th judicial circuit, which includes Seminole and Brevard counties, in March 2000. He was the first Africian American to serve on that bench.
Perry has since been in the court majority, which has frequently been 5-2 in several pivotal cases. In April this year, he voted with Justices Barbara Pariente, R Fred Lewis, Jorge Labarga and Peggy Quince in strking down a state law limiting attorney's fees in workers-compensation insurance.
He has also been with the majority in ruling that the Legislature’s redistricting maps violated the constitution, in temporarily blocking a state requirement that women wait 24 hours before receiving an abortion and in ruling that Florida House violated the state constitution when it more than three days early to protest the budget impasse that had deadlocked over accepting a federally-funded health care expansion.
Last week, Perry joined justices Pariente, Labarga and Lewis in a 4-2 ruling overturning the death sentence for an intellectually disabled murderer, Freddie Lee Hall, after the U.S. Supreme Court rejected the U.S. Supreme Court sent Hall's case back to the Florida high court the state's use of a rigid IQ score.
The court’s majority has also upheld the constitutionality of a law that provides reduced prison terms for "youthful offenders" who are sentenced before age 21 and has ruled that the public may collect attorneys fees when they are forced to sue agencies that fail to comply with Florida’s public records law.
Scott’s appointment “will not a shift the court as it relates to outcomes,’’ said Jason Gonzalez, the statewide co-chair for the Federalist Society, a conservative liberatarian lawyers group that tracks the judicial appointment process. “But, instead of a 5-2 split on the court, we will probably have a 4-3 split with the judicial conservatives still in the minority.”
Scott said he will await the recommendation of the JNC but wouldn’t elaborate on what judicial temperament he will expect in his appointees.
“It’s a responsibility I have and I take very seriously,’’ he told reporters. “What I do is try to find individuals who will uphold the law.”
Perry, who can trace his family roots to slavery, told the Herald/Times he does not consider his judicial temperment “traditionalist” but he is also confused by the conservative label.
“What do they want to conserve? If you want to keep things the way they are -- 1865 or 1965 -- that’s not a good place for me,’’ he said. “The good ‘ol days weren’t so good for me.”
However, he said that while “there are a lot of laws I don’t like” it is not the role of the court to change them. Instead, the court’s role is to follow the state and federal Constitutions, “regardless of the merits.”
“People don’t know the roles,’’ he said. “To the extent they want us to be rubber stamps and I don’t do that, that makes me a liberal,’’ he added. “But Jesus was a liberal.”
This year, Perry authored an opinion upholding a 4th District Court of Appeal ruling that said the state law requiring write-in candidates to live within the district boundaries at the time of qualifying was unconstitutional. Voters in 1998 approved a constitutional amendment that opens primaries to all voters if every candidate is from the same party and Perry wrote that the law violated voters’ intent.
Bush’s appointment of Perry wasn’t the first time the lawyer broke barriers.
A native of New Bern, North Carolina, Perry graduated from Columbia University Law School in 1972 and passed a multi-state bar exam but was required to pass a separate bar exam in Georgia to practice law there. When he and 49 other black applicants failed the exam, he sued the Georgia Board of Bar Examiners, alleging violation of the Civil Rights Act. They won.
While the case was still in litigation, Georgia administered another bar exam and Perry and 23 other black applicants passed. Within months the number of black attorneys in Georgia more than doubled.
Perry moved to Florida, where he began working with the Seminole Employment and Economic Development Corp. in Sanford. He went into private practice, specializing in civil and business law as a senior partner in Perry & Hicks, P.A.
He told the Herald/Times he was asked to apply for the Florida Supreme Court in 2009 and initially turned it down.
“I have an office overlooking the lake. I have a docket under control and I have Magic season tickets,’’ he said. “They said. It’s not about you and I said, ‘You’re right. It’s not about me.’”
Perry used his voice to sharply rebuke critic, such as U.S. Rep. Corrine Brown, a black member of Congress from Jacksonville, who compared the changes her court-drawn district to slavery.
"The efforts to paint this process as partisan or invoke the antebellum period are an unjustified attack on the integrity of our judicial system," Perry wrote in a strongly-worded concurring opinion joined by Justice Peggy Quince, the court’s only other black justice. " ... Originally, the right to vote was limited to white male landowners. Others had to fight and die for the privilege to be extended to them. It is an insult to their struggle for politicians to now use that sacrifice for personal benefit."
Perry called his time on the Florida court, the “hardest job he’s ever had.” He noted the enormous volume of reading required to keep up on the cases, provide oversight of thousands of lawyers and review of all death penalty appeals -- which comprise about 60 percent of what the court does.
Perry is married to Adrienne M. Perry, whom he met at Columbia Law School. They have three children, two attorneys and a human resource manager.
Staff Writers Michael Auslen and Steve Bousquet contributed to this report