“There is no there there” in Gov. Rick Scott‘s complaint that Florida Supreme Court Justice Barbara Pariente is biased against him, say the plaintiffs in a case over his judicial appointment power.
The League of Women Voters of Florida and Common Cause Florida responded Tuesday to Scott’s motion for disqualification against Pariente. It was filed earlier this month by Daniel Nordby, Scott’s general counsel.
“No Supreme Court Justice should be disqualified for unintelligible comments that – even as interpreted by the Governor – had no possible relevance to the case that had just been heard and expressed no antipathy to any party or attorney in the case,” the latest filing says.
Pariente and Chief Justice Jorge Labarga had been caught on a ‘hot mic’ immediately after a Nov. 1 oral argument in the case. The groups say Scott, term-limited as governor in 2018, does not have authority to appoint three new Supreme Court justices on the last day of his term.
Those openings are caused by the mandatory retirements for the court’s liberal-leaning trio of Justices R. Fred Lewis, Pariente and Peggy A. Quince.
Moments after the argument ended, Labarga can first be heard on a recording from the courtroom saying what sounds like, “…anything on there, Panuccio.” Jesse Panuccio, once Scott’s general counsel and a former head of the Florida Department of Economic Opportunity, is a member of the Supreme Court Judicial Nominating Commission.
Pariente then can be heard saying what sounds like “crazy.” Nordby said that was “an apparent reference either to Gov. Scott or to (his) appointees to the Supreme Court Judicial Nominating Commission—the constitutional body that will be responsible for nominating her successor.”
That’s followed by Labarga: “Izzy Reyes is on there, he’ll listen to me.” JNC member Israel U. Reyes is founder of The Reyes Law Firm in Coral Gables and a former circuit judge. He’s also one of four members nominated to the nine-member JNC by The Florida Bar; the others are appointed by the governor.
Tuesday’s filing, by plaintiff’s attorney Thomas D. Hall, starts with an extended footnote on the “bugaboo that has plagued the bench and bar in wired courtrooms for years.”
“One would be hard pressed to find a trial judge or practicing lawyer today with any significant courtroom experience who does not have at least one war story of embarrassing private remarks caught on a live microphone at counsel’s table or in chambers,” he wrote, including “Justices Scalia and Thomas hoping for stiff sentences for courtroom protesters to President Obama criticizing a foreign leader to current United States Senators criticizing President Trump.”
As to the “crazy” remark, he said “no reasonable person could read the partial remarks by Justice Pariente as suggesting any view whatsoever about (Gov. Scott) or any of the lawyers representing him, much less bias or prejudice against them … It is simply impossible to tell what the remark referenced.”
Pariente, Labarga and court spokesman Craig Waters have not commented publicly on the matter.
The filing also dismisses statements made by Pariente while campaigning for retention in 2012, “A vote ‘yes’ will be a vote to retain me and the other two justices … A vote ‘no’ will give Gov. Scott the right to make his appointments, which will result in partisan political appointments.”
“Under no reasonable view was this a comment on what would or should happen if the justices were retained and completed their final terms and (Scott) successfully ran for re-election,” it says.
“(W)hatever controversy (Scott) has sought to create might be diffused by voluntary recusal, which would certainly be the easy road for Justice Pariente,” he added. “On the other hand, giving in to this transparent bullying tactic would set a dangerous precedent,” adding that it could also lead to a 3-3 split, causing more expense and delay.
“At bottom, whether to voluntarily recuse at this late stage is a question (that) precedent places solely in Justice Pariente’s discretion,” Hall wrote.
Later Tuesday night, Scott spokesman John Tupps said that “given Justice Pariente’s remarks, it’s abundantly clear that she will not be able to remain impartial and unbiased in this case. She must recuse herself.”