Supreme Court denies petition barring governor from making judicial appointments

By John Breslin | Dec 15, 2017

The Florida Supreme Court has ruled a petition requesting it bars Gov. Rick Scott from appointing three new justices to the state's highest court is not "ripe for consideration."

Florida Supreme Court chamber in Tallahassee   Nagel Photography /

The Florida Supreme Court has ruled a petition requesting it bars Gov. Rick Scott from appointing three new justices to the state's highest court is not "ripe for consideration."

It is, however, entirely unclear when the time will be right, and whether Scott will be allowed to make the actual appointments before the court can consider the matter.

The court voted 6-1 that the issue was not "ripe for consideration." but two of the justices, while concurring with the overall conclusion of the majority, made clear the panel does not have to wait until Scott makes the appointments to consider the matter again.

The League of Women Voters asked the court to issue what is called a quo warranto writ barring Scott from “filling any judicial vacancies on Florida’s appellate courts that occur due to terms expiring in January 2019.”

Justices Barbara Pariente, Peggy Quince, and R. Fred Lewis must step down from the court that month as each will be 70, the mandatory age for retirement.

Scott will also finish his second term on the same day. He has indicated he will appoint replacements for the three justices, all of them regarded as left leaning.

"Although Governor Scott announced his intent to appoint the replacements for three justices of this Court, clearly no appointments have been made," the majority found.

"To use quo warranto to review an action which is merely contemplated but not consummated, as in the present case, would require this Court to depart from the historical application of the writ," the justices wrote. "This we decline to do."

They added, "Until some action is taken by the governor, the matter the League seeks to have resolved is not ripe, and this Court lacks jurisdiction to determine whether quo warranto relief is warranted."

While the majority opinion appears to suggest that it cannot review the matter until the appointments are made, it also states the court could do so after "some action" is taken by the governor.

Scott welcomed the court's decision, claiming the justices "upheld Florida law today and dismissed the challenge brought by these political organizations."

“As long as I am governor, I will continue to use my authority to appoint qualified judges," Scott said in a prepared statement.

Pamela Goodman, president of the League of Women Voters, said she was disappointed in the decision but isn’t giving up hope that the court could yet decide in the league’s favor.

“We were trying to get ahead of the curve; we didn’t,” Goodman told the Orlando Sentinel. “But that doesn’t mean the door is closed.”

Justice Quince concurred with the majority that the case was not "ripe for consideration," but issued an opinion that the court can review the petition before Scott actually makes any new appointments. Justice Pariente agreed with that opinion.

It was left to Justice Lewis to deliver a blistering dissent to the majority opinion, arguing that his fellow justices have announced that the "challenged conduct must have already produced a constitutional crisis and calamitous result before illegal acts of government officials are subject to quo warranto review or relief."

Lewis wrote that the "majority now negates that common sense, reasonable, and logical analysis to require that that illegal and unconstitutional conduct which produces disarray must have already occurred to allow judicial action."

Elected politicians can now announce their intentions to engage in all types of illegal and harmful conduct but no relief is available until the act has already inflicted its damage, Lewis wrote.

This case has attracted much attention, most notably after Pariente and Chief Justice Jorge Labarga were caught on a "hot mic" apparently remarking on members of the Judicial Nominating Committee, which is charged with drawing up names of appellate court judges for the governor to consider.

They also passed a document containing the names of the committee members. The document had not been read into the record.

The incident happened after a hearing on the League of Women Voters' petition.

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