Florida justices hear case to decide their own future

Result could skew court liberal or conservative

TALLAHASSEE – Amid warnings of a potential constitutional crisis, Florida Supreme Court justices on Wednesday heard arguments in a case that could determine the future of the court for decades.

Three justices — Barbara Pariente, Peggy Quince and Fred Lewis — must retire by Jan. 8, 2019, the last day of Gov. Rick Scott’s term. Whether Scott or his successor gets to appoint replacements could alter the ideological balance of the court.

Daniel Nordby, Scott’s general counsel, argued the court shouldn’t take on a situation that might not occur, because the justices could retire before that date. But John Mills, attorney for the plaintiff, League of Women

Voters, said waiting until after the 2018 election or after Scott makes the appointments would be too late.

“If you wait until then, you now are going to pull this court and the whole court system into a political landmine,” Mills said.

Under the Florida Constitution, justices are required to retire after they turn 70, but they are allowed to finish out a term if they’ve completed half of it by the time they hit 70. Pariente, Lewis and Quince will all turn 70 before their terms end in 2019.

The trio are part of what’s considered to be the liberal majority on the court. In recent years, it has rendered 4-3 decisions, striking down laws passed by the GOP-controlled Legislature and signed by Scott, also a Republican. Rulings to nullify laws to allow nonunanimous juries to issue death sentences and applying caps to non-economic damages in medical malpractice cases are two recent examples.

Scott has asserted he has the power to replace the three justices, even though his term ends on the same day, and he can’t run for reelection because of term limits.

Nordby argued the court has rarely ruled on something that hasn’t yet happened.

“We don’t know what the circumstances will be,” Nordby said.

Justices Charles Canady and Alan Lawson, both considered court conservatives, seemed to agree and questioned whether the court has the power to thwart an action the governor hasn’t taken.

“It just seems like there’s a lot of speculation that surrounds all of this, and I’m really struggling to see how this is a ripe controversy for us to resolve,” Canady said.

The unique nature of the case was reflected in the arguments, which touched on the personal histories and futures of the justices themselves.

Pariente said the problem was real, not an imagined scenario.

“There’s no question about the age of the three justices who [must retire],” Pariente said. “There’s no ambiguity in that situation, the last time I looked at my birth certificate.”

Nordby also cited Quince, appointed in 1998 after Gov. Jeb Bush won election but before he took office in January 1999. But Quince said that circumstance wouldn’t apply in this case because Bush and then-Gov. Lawton Chiles made the appointment jointly.

“No, this was not just Governor Chiles,” Quince said. “They came to what I always viewed as a compromise.”

After a bribery scandal in the 1970s, a process was set up to nominate Florida Supreme Court justices, who were previously elected, to keep politics a step removed. Judicial nominating committees, consisting of members appointed by the governor and the Florida Bar, were set up to give the governor recommendations when a vacancy occurred.

In addition, justices were appointed to six-year terms, with a merit retention vote by the electorate deciding whether they could stay on for another six years.

“It’s so ironic because, of course, the whole idea of merit selection and retention is to take politics out of this whole process, and yet we’re seeing it’s filled with politics,” Pariente said.

Mills argued the situation is unique and needs to be addressed before the credibility of the court is disputed. He also said Scott could clear up the question on his own by asking the court for an advisory opinion.

“The governor has put us on a collision course to a constitutional crisis that he could avoid,” Mills said. “I wish that he would, but that’s his prerogative.”

Chief Justice Jorge Labarga asked whether the court should wait until after Scott makes the appointments to take up the case.

“If we find that he’s incorrect in making the appointments there will be the issue of removing the three people he has appointed and starting again Do we want to go there?”

The court did not issue an immediate ruling.