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The fate of Florida's Supreme Court could rest on a day of the week and the case of Thomas Tappy

Florida supreme court.1_12061496_8colThe future of the Florida Supreme Court could all come down to Monday or Tuesday.

Gov. Rick Scott argued Wednesday in a late-afternoon response to a challenge by a group of left-leaning voting groups, that he alone has the power to appoint the next three justice of the state's high court because their terms expire on a Monday, while his expires on a Tuesday.

In a 38-page response to a lawsuit filed in June by the Florida League of Women Voters and Common Cause, Scott's lawyers argue that his term technically ends at the moment his successor takes the oath of office -- on the first Tuesday in January 2019 -- and the power to appoint the successors to Justices R. Fred Lewis, Barbara Pariente and Peggy Quince  continues until that very moment.

The justices, however -- who are scheduled to retire because they have reached the mandatory retirement age of 70 -- face six-year terms that expire "at the end of the first Monday in January," the governor argues.

Because Monday ends before Tuesday, Scott's lawyers argue, the lawsuit should be dismissed and the governor should be allowed to proceed with the appointment of the three justices.

If that were to happen, Scott would leave an indelible mark on the state's highest court by having named at least four of the seven justices. It is a prospect that liberal and progressive groups fear could shift the balance of power on the bench for the next decade.

But the voting rights groups disagree. They say the justices' term expires on the same Tuesday he leaves office in 2019 and instead and want the court to avoid a potential "constitutional crisis" and affirm that Scott does not have the authority to appoint the justices.

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 voting-rights groups warn that if Scott attempts to choose the successors before the deadline, it will draw lawsuits and set the court system into chaos. 

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."

But the governor's lawyers cited a 1955 case, Tappy v. State, in which outgoing Gov. Charley Johns appointed Thomas Tappy to be a county court judge but incoming Gov. Leroy Collins rejected him and, after he took the oath of office at noon on a Tuesday, Collins appointed someone else to fill the court vacancy. The court sided with Johns.

Scott's lawyers also argue that the lawsuit by the voting-rights groups is inappropriate because they court can't rule on something that happened yet based on a "hypothetical set of facts."

"The petition should be dismissed on jurisdictional grounds because its allegations of a pending 'constitutional crisis' depend upon a series of factual assumptions that may never ripen into a justiciable controversy,'' they argue.

The voting-rights groups provide "no factual basis for its assumptions regarding the future plans of any currently serving justice or appellate judge,'' the governor argues.

"More than half of the justices to depart this court over the last two decades did so before their final day of constitutional eligibility,'' his response claims.

Ironically, the only people who might know what the future plans of the three justices are the justices themselves -- who will decide the case.

Photo: Florida Supreme Court in Tallahassee by Scott Keeler of the Tampa Bay Times.