TALLAHASSEE - Governor Rick Scott today moved to disqualify Florida Supreme Court Justice Barbara Pariente from the case of League of Women Voters Florida, et al. v. Rick Scott, in the wake of the justice's controversial "hot mic" remarks after the conclusion of oral argument in the case nearly three weeks ago.
“Governor Scott strongly believes that all Floridians deserve judges that are impartial, fair and non-partisan. Justice Pariente’s past remarks cast grave doubt on her ability to take an objective and unbiased position when evaluating Governor Scott’s authority in this case," stated McKinley Lewis, deputy communications director for Scott. "She must be disqualified to ensure a fair decision."
In a press release announcing Scott's move, his office also noted that Pariente had made the following remarks while campaigning for retention in 2012: “A vote yes will be a vote to retain me and the other two justices. … A vote no will give Gov. Scott the right to make his appointments, which will result in partisan political appointments.”
The underlying controversy involves comments made by, and a document exchanged between, Chief Justice Jorge Labarga and Pariente moments after oral arguments on Nov. 1.
The comments, which suggest the pair were discussing members of the Judicial Nominating Commission (JNC), were made after a hearing into a case that will decide who appoints the next three justices, and whether Scott should do so, or his successor.
Labarga is heard on the audio, which cuts in and out, stating the name of "Izzy Reyes" and that he "will listen to me." Israel Reyes is a member of the Judicial Nominating Committee.
Pariente, Quince, and Justice R. Fred Lewis, the former two appointed by a Democrat, the latter jointly, face mandatory retirement - they will all have turned 70 - in January 2009. The term limited Scott will step down on the same day.
Two organizations, The League of Women Voters and Common Cause, argue that Scott does not have the power to appoint the new justices; that is the job of his successor.
In filings, they argued that Scott will, in fact, no longer be governor by the time the justices must officially retire, that is at midnight on Jan. 8. Scott will officially no longer be governor earlier that day, it is argued..
Scott's motion to disqualify Pariente questions her impartiality.
"Justice Pariente's actions and comments following the oral argument in this case, in conjunctionn with her previous public comments as a judicial candidate regarding Governor Scott's potential exercise of the judicial appointment power to appoint her successor, provide a reasonable basis to question her impartiality toward the Governor in this proceeding," the motion states.
Scott's general counsel Daniel E. Nordby argues for disqualification based on Florida's Code of Judicial Conduct, writing that it is mandated when "the judge's impartiality might reasonably be questioned," as well as on due process grounds when a judge's bias is apparent.
"The circumstances of this case create such an appearance and probability of actual bias that objective standards require Justice Pariente's recusal 'whether or not actual bias exists or can be proved,'" the brief states, citing a U.S.Supreme Court ruling in Caperton.