The Florida Supreme Court is being asked to avoid a potential "constitutional crisis" and affirm that Gov. Rick Scott does not have the authority to appoint judges whose term expires on the same day he leaves office in 2019.
The request came in the form of a quo warranto petition filed late Wednesday by the Florida League of Women Voters and Common Cause which argues that governor cannot appoint the successors of three Florida Supreme Court justices who will be retiring on the same day he is out of office because the justice's terms "run through the last second of the evening of Jan. 8, 2019."
Under current law, the governor is not allowed to make an appointment to the Florida Supreme Court, or the state courts of appeal, unless there is a vacancy. Justices R. Fred Lewis, Barbara Pariente and Peggy Quince are scheduled to retire because they have reached the mandatory retirement age of 70 on Jan. 8, 2019 -- the same day a new govenror will be sworn in the replace Scott.
Scott, a two-term Republican, said during a December press conference that: "I'll appoint three more justices the morning I finish my term.” But the League warns that if Scott attempts a "midnight appointment" and attempts to choose the successors before the deadline, it will draw lawsuits and set the court system into chaos.
"The importance of deciding this issue before Gov. Scott attempts to make the subject appointments cannot be overstated,'' wrote the attorneys for the voting rights groups. "Not only would that invite a constitutional crisis, especially if his successor makes different appointments, but it would disrupt the functioning of this court and any district court on which a similar vacancy might arise."
The petition urges the court to decide the matter swiftly to "clarify for the electorate and potential candidates the scope of what is at stake in the 2018 election."
It also asks the court not to send the issue to the lower courts to decide. Although the 2018 election is "over a year away, there is simply not enough time" for the case to wind its way through the court system to reach a resolution, the petition said.
The petition also argued that the high court should accept the case because there may be candidates for their jobs among the judges on the lower courts and "that is a very real conflict of interest that simply does not exist for any member of this court."
The petition cites previous court opinions to conclude "that the outgoing governor does not get to appoint successor justices or judges on the way out of office."
The issue has already came before voters in 2014 -- in the form of a constitutional amendment asking them to give the outgoing governor the appointment authority. But the measure needed approval from 60 percent of voters and only 48 percent approved.
The 2014 amendment was the brainchild of the Florida Legislature and Sen. Tom Lee, R-Thonotosassa, who was then chair of the Senate Judiciary Committee.It was supported by the Florida Chamber of Commerce and the Florida Council of 100 but was opposed by the League of Women Voters.
Lee argued the current law is unclear about whether the incoming or outgoing governor can make the appointment and also warned that a potential legal battle could set off a “constitutional crisis.”
But in the petition, lawyers for the voting groups also note that a resolution to this soon "would also preempt cynical complaints by anyone dissatisfied with the decision that the case was contaminated by political considerations."
Photo by Scott Keeler, Tampa Bay Times