TALLAHASSEE – Washington-based Foundation for Accountability and Civic Trust (FACT) is seeking emails from two Florida Supreme Court justices following a controversy over comments the pair made that were picked up by a hot mic.

The group wants the court to release emails sent or received by Chief Justice Jorge Labarga and Justice Barbara Pariente that mentions the state Judicial Nominating Commission (JNC) and its nominating commissioners. It filed the records request Nov. 13.

Florida Supreme Court chamber in Tallahassee
Florida Supreme Court chamber in Tallahassee | Nagel Photography / Shutterstock.com

Questions have been raised about the actions of the two justices, who are heard mentioning the names of two members of the commission at the end of a Nov. 1 hearing in a case that centers on whether Gov. Rick Scott has the right to appoint three new judges to the bench.

A list of the members of the commission was passed between the two justices, and the document was not entered into the public record. The JNC is responsible for drawing up a list of nominees to sit on the state's highest court.

FACT does not know whether there are emails to or from the pair that mention the JNC or its members, but it is "common for people to express their opinions in emails," Kendra Arnold, the organization's executive director, told the Florida Record.

The group wants any emails to or from Pariente and Labarga that contain the phrases “Judicial Nominating Commission” or “JNC” or the names of the nine members of the commission.

Arnold expects to receive a response from the Supreme Court soon but is already calling on the two justices to recuse themselves from this case.

As the Florida Record has previously reported, Pariente is heard mentioning the name "Panuccio" as she shows the piece of paper to her court colleague. Jesse Panuccio is a commission member. Pariente is then heard to use the word “crazy," to which Labarga is heard mentioning “Izzy Reyes” and that “he will listen to me.” Israel Reyes is a member of the JNC.

Pariente as well as Justices R. Fred Lewis and Peggy Quince face mandatory retirement on the same day in January 2019, as they will be 70 by that date. All three are regarded as left-leaning to varying degrees.

Two organizations, The League of Women Voters and Common Cause, argue that Scott does not have the power to appoint the new justices; that it is the job of his successor.

In court filings, they argue that Scott will no longer be governor by the time the justices must officially retire at midnight on Jan. 8, 2019. Scott's successor will assume office sometime during the day on Jan. 8.  

"The conversation that was caught indicated they may be considering issues outside of the court," Arnold said. "Our concern is that they have already pre-judged the case, already expressed an opinion."

Arnold said her organization became involved after reading and hearing press reports and wants to ensure any justices considering a case are "fair and unbiased." If any have expressed prior opinions that impact on the case, "recusal is important," Arnold said.

It is "very troubling" that the justices passed any documents that are not part of the record, she added.

"If it is not part of the case, they may be considering issues outside of the court and have a personal and prejudicial opinion," Arnold said. "That would require disqualification."

"Both Justice Labarga and Justice Pariente have exhibited behavior that should disqualify them from hearing the case brought by politically motivated organizations who want to prevent the governor from filling vacancies on the Florida State Supreme Court," Arnold said in an earlier statement issued by the organization. "Moreover, Justice Pariente has previously expressed her opinion that she did not want the governor to make judicial appointments – the very issue in the case before the court. Both justices should immediately recuse themselves from this case as they have demonstrated a bias against the governor.”

Scott made a public-records request Nov. 7 asking for the document that was passed between the two justices and all audio recordings of the proceedings.

The state Supreme Court sent the document, which was a list of the names of the nominating commission, to the governor's office, along with the audio recordings supplied by WFSU/Florida Channel, which are contracted to cover the court proceedings.

"This is the only recording in our custody and control," court spokesman R. Craig Waters wrote in a letter to the governor's general counsel, Daniel Nordby, the Florida Record previously reported. Waters added that the court does not independently record proceedings.

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