The Florida Supreme Court has asked Gov. Rick Scott to respond to a lawsuit claiming he doesn’t have authority to appoint three new justices on the last day of his term.
The organizations this week filed a petition for “writ of quo warranto,” a court action against government officials to demand they prove their authority to perform a certain action.
Scott, a Naples Republican, has said he plans to name the replacements for the court’s liberal-leaning trio of Justices R. Fred Lewis, Barbara Pariente and Peggy A. Quince.
They face mandatory retirement on the same day—Jan. 8, 2019—that is Scott’s last in office as governor. He’s term limited next year.
The filing says Scott can’t replace those justices because he’ll be out of office earlier on the same day all three retire, and their terms last till midnight.
The Supreme Court, in a 2006 advisory opinion, said appellate vacancies may be filled by a governor only “upon the expiration of the term of the judge or justice.”
Advisory opinions, however, “do not constitute binding precedent, though they can be persuasive,” wrote former Justice Gerald Kogan and court spokesman Craig Waters in a 1994 law review article. “They are authorized by the (state) constitution to deal with situations in which the Court’s opinion on an abstract question can advance public interests.”
A Scott spokesman previously declined comment on the suit.
“A prompt, final decision on this pure question of constitutional law … would preempt cynical complaints by anyone dissatisfied with the decision that the case was contaminated by political considerations,” the petition says.
The petitioners also include LWVF President Pamela Goodman, former LWVF president Deirdre Macnab, and Liza McClenaghan, the state chair of Common Cause Florida.
They’re represented by Tallahassee attorneys John S. Mills and Thomas D. Hall, a former Clerk of the Florida Supreme Court.