Which Florida governor—the outgoing or the incoming one—will have the authority to appoint successors for appellate judges, including three Florida Supreme Court justices, whose terms are set to expire in January 2019? That is the question the petitioners asked the Florida Supreme Court to resolve in League of Women Voters of Florida v. Scott, SC17-1122. On December 14, 2017, the court dismissed the petition as unripe and refused, at least for now, to wade into a controversy that could make its composition a political issue in the 2018 gubernatorial election. This post describes the background of the case, summarizes the court’s ruling, and assesses the case’s significance.
In December 2016, Governor Rick Scott, who is serving his second consecutive term, announced at a press conference his intention to appoint three justices to fill vacancies that will arise on the Florida Supreme Court due to mandatory retirements in January 2019. Under Florida law, it is possible these vacancies will arise at the moment the transition of gubernatorial power occurs.
Under the Florida Constitution, governors are limited to two consecutive four-year terms, and those terms begin “on the first Tuesday after the first Monday in January” following the statewide general election. Art. IV, § 5(a), Fla. Const. However, the outgoing governor must “continue in office until a successor qualifies” by taking the oath of office. Art. II, § 5(b), Fla. Const. If the governor-elect pre-qualifies by executing the oath before his term begins, he will assume office at 12:00 a.m. on Tuesday, January 8, 2019.
Justices and appellate judges retained in office by the voters serve a six-year term that begins “on the first Tuesday after the first Monday in January following the general election.” Art. V, § 10(a), Fla. Const. If a judge or justice is not eligible for retention, a vacancy will arise “upon the expiration of the term being served by the justice or judge,” Art. V, § 10(a), Fla. Const., unless the vacancy arises sooner, whether by resignation or otherwise, see Art. V, § 11(a), Fla. Const.
Justices Barbara Pariente, Fred Lewis, and Peggy Quince were retained in office in November 2012. Therefore, should they serve the full remainder of their terms on the Florida Supreme Court, it appears that their terms will expire at the end of the day on Monday, January 7, 2019—the same moment at which Governor Scott’s term will expire if his successor pre-qualifies.
Proceedings and Ruling
The League of Women Voters of Florida and several other parties brought a petition for a writ of quo warranto in the Florida Supreme Court, asking it “to prevent Governor Scott from appointing the successor to any justice or appellate judge whose final term expires in January 2019.” Pet. 3. The petitioners argued that the judicial terms at issue run through the whole day of Tuesday, January 8, 2019, Pet. 14–16, and even assuming the vacancies would arise at the beginning of that day, Governor Scott still could not fill them because the incoming governor will have taken office by that time, Pet. 16–21.
In response, Governor Scott noted that “Florida’s governors have a long history of cooperation regarding end-of-term vacancies on” the Florida Supreme Court, including the vacancy that Justice Quince filled, and “[e]arlier disputes . . . were likewise resolved without judicial intervention.” Resp. 7–8. The Governor then argued that the petition should be dismissed because quo warranto writs may be used only to test the lawfulness of an official’s actions after they are taken; the petition raised a hypothetical and unripe controversy; and issuance of the writ would violate the separation of powers. Resp. 8–19. In support of his contention that the petitioners had prematurely invoked the court’s jurisdiction, the Governor asserted that they assumed various contingencies, including that any retiring justice or judge will serve the full remainder of his term. Resp. 14–16. In the alternative, the Governor sought denial of the petition on the merits. Resp. 19–30.
By a vote of six to one, the Florida Supreme Court agreed with the Governor that “the issue presented is not ripe for consideration,” Op. 1, and it dismissed the petition. In a per curiam opinion joined by the four non-retiring justices, the majority observed that “[q]uo warranto is used to determine whether a state officer or agency has improperly exercised a power or right derived from the State, and the history of the extraordinary writ reflects that petitions for relief in quo warranto are properly filed only after a public official has acted.” Op. 2 (quotation marks and citation omitted, emphasis in original). The court continued that “a threatened exercise of power which is allegedly outside that public official’s authority may not ultimately occur,” and deciding the merits of premature petitions “would amount to an impermissible advisory opinion based upon hypothetical facts.” Op. 3. Observing that “no appointments have been made,” the court held that “[u]ntil 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.” Op. 4.
The three retiring justices wrote separately. Justice Quince authored an opinion concurring in the result only, which Justice Pariente joined. While Justices Quince and Pariente agreed with the majority’s conclusion that the controversy was not ripe, they opined that “this Court could properly review a petition for quo warranto prior to the actual appointment of a new justice.” Op. 4–5 (Quince, J., concurring in result only). Justice Lewis dissented, opining that a writ of quo warranto may issue before the complained-of action occurs. Op. 9–17 (Lewis, J., dissenting).
The Florida Supreme Court’s ruling is significant in at least two respects. First, it makes clear that petitions for writs of quo warranto “are properly filed only after a public official has acted,” Op. 2, and Florida courts should dismiss unripe petitions. Second, its non-merits disposition declined to address whether Governor Scott would have the authority to make the judicial appointments that the petitioners sought to place at issue. Media outlets in Florida have widely covered the case and the three justices’ upcoming retirements more generally, predicting that the selection of their successors will profoundly impact the Florida Supreme Court’s ideological composition and will, therefore, feature as a political issue in the 2018 gubernatorial election. For now, the court has declined to entangle itself in that debate.
Jordan Pratt serves as Deputy Solicitor General in the Florida Office of the Attorney General, his position is used for identification purposes only. Any views expressed are the personal views of the author and are not an expression of the official views of the Florida Office of the Attorney General.