Judicial power play underway as 4 near retirement

Herald/Times Tallahassee BureauDecember 24, 2013 

TALLAHASSEE -- Florida's 2014 governor's race may become an expensive popularity contest over who steers the state in the next four years but one little-discussed part of the job - the power to appoint - could give the next governor a legacy that could last much longer.

Four members of the seven-member state Supreme Court reach their mandatory retirement age during the next four years and, depending on how the retirements play out, the next governor may have the power to pick their replacements.

The prospect of choosing the men and women who serve as a powerful check on legislative and executive power is so potent it has already become a significant fundraising draw in the governor's race for Democrat challenger Charlie Crist and Republican Gov. Rick Scott.

But, in addition to the power of the pick, there is palace intrique: Florida law is so unsettled about the exact timing of the retirement that some suggest three of the justices could wait out the next governor until the last day of his term, in January 2019, and it could take a lawsuit to resolve it, which could be decided by the retiring justices.

Florida's Constitution requires all justices retire on their 70th birthdays or at the end of their six-year term, if they are halfway through the term, whichever is later.

Three retiring justices, Barbara Pariente, R. Fred Lewis and Peggy Quince, are the longest-serving members of the court, each having been appointed more than 15 years ago by former Gov. Lawton Chiles, a Democrat. They must retire by January 2019.

The other justice, James E.C. Perry, was appointed by Crist in 2009, when he was a Republican governor. Perry turns 70 in January but, because he is halfway through his six-year term, he is not required to retire until his term ends in January 2017.

For Pariente, Lewis and Quince, the state Constitution allows the justices to serve out their six-year terms but each must turn over the robes no later than the precise moment the sitting governor's term ends.

That leaves open an unsettled question in Florida law: What happens when a justice announces her retirement will take effect the moment the sitting governor would cease to be governor?

Since the Chiles contingent comprises the court's liberal faction, it's possible if Scott is re-elected, the justices won't retire until they know who his successor is.

A similar scenario occurred in 1998 after Jeb Bush won the governor's race and then-Justice Ben Overton made his retirement effective the moment Chiles' term ended. Bush signaled he would litigate if Chiles did not consult him on the replacement, so the two agreed on Quince, and she became the only justice ever appointed by two governors at once.

Lawyers who have studied the issue don't want to discuss it on the record, but several agree if Pariente, Lewis and Quince don't retire early and Scott is governor, there is a chance he could attempt to fill their pending vacancies before his successor takes office - and that could draw a lawsuit. These same justices could decide the lawsuit.

With this uncertainty pending, Crist, the former Republican-turned-Democratic candidate, is primed to make the court a campaign issue.

Crist tells audiences Scott "would put a bunch of ideologues" on the Florida Supreme Court.

"If that happens, if we don't win and he does, forget about it," Crist told an audience of Democratic lawyers at a fundraiser in Palm Beach earlier this month.

His opponents, of course, share a similar view -- but about Crist.

"A Charlie Cirst Florida Supreme Court would be a liberal trial-lawyer-led, John Morgan court," said Republican Party of Florida chairman Lenny Curry, referring to the trial lawyer who employs Crist, also a lawyer. "That would be anti-business, anti-jobs and wouldn't be good for Florida."

Crist said he hears from lawyers and the general public the judiciary is the branch "holding Florida together."

"It affects gays, minorities, immigrants, women, public education and voter rights," he said. "If we don't have justices who are fair-minded, it's bad for the executive and the Legislature but it's horrific for the judicial branch."

Tthe Florida Supreme Court has not always been good to Scott and the Republican-controlled state Legislature.

In the last four years, the court has rejected the Legislature's language for proposed constitutional amendments to ban the state from participating in the Affordable Care Act, weaken a citizen redistricting initiative, give tax breaks to first-time homebuyers and weaken the voter-approved class size amendment.

In August 2011, the justices, in a 5-2 opinion, said Scott had violated the separation of powers doctrine when he suspended rulemaking by state agencies as one of his first acts in office. This month, the court ruled 5-2 against Republcans to require legislators to testify about their motives in a dispute over redistricting. And this month the court raised doubts about the constitutionality of a law passed last year and signed by Scott to limit medical malpractice lawsuits when it rejected a procedural rule on expert witnesses by a 5-2 margin.

While Scott and legislative leaders did not campaign against Pariente, Lewis and Quince when they were up for merit-retention election in 2012, their public comments made it clear they did not support them.

"The current administration is not receptive to the rights of the individual," said Lance Block, former chairman of the Academy of Trial Lawyers. "There's so much at stake this election, you'll see trial lawyers participate at a very significant rate."

Since announcing his candidacy in November, Crist has raised more than $3 million for his political committee and his election fund and more than a third of it has come from lawyers and law firms. The largest donation came from Grossman Roth, a personal injury law firm in Coral Gables.

"The only real check we've had on legislative power since Republicans took control of both chambers has been the Supreme Court," said Neal Roth, who has spent a career representing patients in medical malpractice disputes.

Roth also said Scott imposed a litmus test on court appointees, rejecting dozens of applicants because of party affiliation and temperment, and he considers that short-sighted. "I want honest umpires," he said.

Roth said when Crist was a Republican his record was more moderate and he was more inclined to pick judges that "don't start out with some preconceived notion of where these cases should land."

By contrast, Scott's political committee has raised more than $22 million, and much of it has come from groups who want to see the Supreme Court more aligned with the conservative principles of the governor and Legislature.

Scott's general counsel, Pete Antonacci, who advises the governor on court appointments, rejects the notion the governor applies an ideological litmus test to his court picks.

"He wants people with humility," Antonacci said. "And he wants judges who will follow the law and not make it up as they go along."

Florida law requires the governor make his selection for trial and appellate courts judges from a list supplied to him by 26 judicial nominating commissions. But Scott has worked hard to make sure he has a stamp on the nine-member nominating commissions.

The governor appoints five nominating members and picks the four others from a list provided by the Florida Bar's Board of Governors, some of whom are Democrats who opposed Scott's election.

Scott has rejected dozens of attorneys nominated by the Florida Bar, many of whom are Democrats or aligned with left-learning groups, to be appointed to judicial nominating commissions and has made it clear he wants conservatives appointed to the court.

If Crist is re-elected, this time as a Democrat, and each of the current justices who will turn 70 announces retirement before Crist's term ends, he will have appointed the entire court. The three justices who will not reach the mandatory retirement age in the next four years - Jorge Labarga, Charles Canady and Ricky Polston - were each appointed by Crist.

While Chiles' appointees have comprised the more liberal-minded wing of the court, Crist's appointees reflect his own political shift. Polston and Canady, appointed at a time when Crist was trying to shore up his conservative bonafides, are strict conservatives while Labarga and Perry are moderates who have provided the swing vote in several pivotal cases.

In a handful of cases, the others have sided with the conservatives. Last year, for example, the court gave the governor the biggest legal victory of his term, a 4-3 decision by the Florida Supreme Court upholding a 2011 law that reduced state employees' payments by 3 percent to offset the state's contribution to their retirement. In that case, Canady, Polston, Labarga and Pariente sided with the majority. In the dissent were Justices Quince, Perry and Fred Lewis.

And in March 2011, the court upheld a decision by the governor to reject federal stimulus money for a high-speed railroad line through Central Florida.

But more frequent have been the 5-2 decisions on controversial political cases that have pitted the two conservatives appointed by Crist against the others. Crist said when he was governor, he interviewed every candidate before he made his high court selections and imposing an ideological litmus test was never his marker, fairness was.

Now, he says, going forward: "There might not be a bigger issue."

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