Saying the issue wasn’t ready for judicial review, the state’s highest court Thursday dismissed a challenge to Gov. Rick Scott‘s power to appoint three new justices on his last day in office in 2019.
In a 6-1 decision, the Florida Supreme Court said it couldn’t step into the controversy because the governor hasn’t taken any action yet.
The three justices who are retiring and will be replaced took issue with the decision, though two of them agreed with the result. The third called Scott’s intentions “blatantly unconstitutional.”
The League of Women Voters of Florida and Common Cause filed the case in June. Their unstated concern was that Scott, a Naples Republican, would pack the court with more conservatives.
Although Scott has said he intended to make the picks on his way out the door, “clearly no appointments have been made,” according to the per curiam opinion. “To review an action which is merely contemplated but not consummated, as in the present case, would require this Court to depart from historical” precedent.
“This we decline to do. Until 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 … relief is warranted,” the opinion said.
Chief Justice Jorge Labarga, usually a swing vote, joined with the court’s conservatives: Justices Charles Canady, Ricky Polston and Alan Lawson, its newest member.
Soon-to-retire Justices Barbara Pariente and Peggy A. Quince concurred, but said “the majority ignores that we have previously granted a petition … challenging the Governor’s authority to endeavor to fill a judicial vacancy.” That refers to a case over an empty county court judgeship.
“Under this Court’s precedent, we have the authority to act prior to the Governor’s making an appointment that is contrary to law,” their opinion said.
Justice R. Fred Lewis, the third of the justices who will retire on the same day Scott leaves office, dissented and called Scott’s proposed actions “blatantly unconstitutional.”
“Future Floridians have lost the ability to protect themselves and society from clearly unconstitutional action,” he wrote. “The Florida Constitution requires devoted protection and the Florida citizens deserve better.”
The suit challenged Scott’s ability to name successors for Pariente, Quince and Lewis—the court’s liberal-leaning triumvirate. Only the governor elected after Scott can, the plaintiffs said.
Scott has said he plans to name their replacements the morning of his last day in office, Jan. 8, 2019. His attorneys argued that their age-mandated retirements also will become effective that Jan. 8.
The League and Common Cause countered that the governor can’t replace the justices because he’ll be out of office earlier on the same day they retire, and their final judicial terms last till midnight.
The case also included a short-lived dispute over comments Labarga and Pariente made in a conversation caught on a “hot mic” after the Nov. 1 oral argument.
Scott’s lawyers tried but failed to have Pariente disqualified from the case, saying snippets of what could be heard were “disparaging remarks.” The court denied the request.