League of Women Voters of Fla. v. Scott, SC17–1122

• Decision Date: 14 December 2017
• Docket Number: No. SC17–1122,SC17–1122
• Citation: 232 So.3d 264
• Parties: LEAGUE OF WOMEN VOTERS OF FLORIDA, et al., Petitioners, v. Rick SCOTT, Governor, Respondent.
• Court: Florida Supreme Court

232 So.3d 264

LEAGUE OF WOMEN VOTERS OF FLORIDA, et al., Petitioners,

v.Rick SCOTT, Governor, Respondent.

No. SC17–1122

Supreme Court of Florida.

[December 14, 2017]

John S. Mills, Thomas D. Hall, Courtney Brewer, and Andrew D. Manko, The Mills Firm, P.A., Tallahassee, Florida, for Petitioner

Daniel E. Nordby, General Counsel, John P. Heekin, Meredith L. Sasso, Peter L. Penrod, and John MacIver, Assistant General Counsel, Executive Office of the Governor, Tallahassee, Florida, for Respondent

PER CURIAM.

This case is before the Court on the petition of the League of Women Voters of Florida (the League) for a writ of quo warranto. Because the issue presented is not ripe for consideration, we dismiss the petition.

The League asks this Court to issue a writ of quo warranto against Governor Rick Scott prohibiting him from "filling any judicial vacancies on Florida's appellate courts that occur due to terms expiring in January 2019." The League's basis for filing the petition is Governor Scott's December 2016 announcement of intent to appoint the replacements for three justices of this Court. However, use of the writ to address prospective conduct is not appropriate.

Quo warranto is used "to determine whether a state officer or agency has improperly exercised a power or right derived from the State," Fla. House of Representatives v. Crist, 999 So.2d 601, 607 (Fla. 2008) (emphasis added), 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.¹ In Swoope v. City of New Smyrna, 98 Fla. 1082, 125 So. 371 (1929), we explained that a challenge to an individual's exercise of official authority

will not be determined by bill in chancery, such a case being regarded as appropriately falling within the jurisdiction of the common law courts by proceedings in quo warranto. And since this remedy is applicable the moment an office or franchise is usurped, an injunction will not lie to prevent the usurpation, even though the respondent has not yet entered upon the office or assumed to exercise its functions. In such case the party aggrieved should wait until an actual usurpation has occurred, and then seek his remedy in quo warranto.

Id. at 372 (quoting MacDonald v. Rehrer, 22 Fla. 198, 205–06 (1886) ) (emphasis added); see also MacDonald, 22 Fla. at 206 (explaining that quo warranto is "to be invoked after entry into, or exercise of authority under [a public official's] appointment" (second emphasis added)). A party must wait until a government official has acted before seeking relief pursuant to quo warranto because a threatened exercise of power which is allegedly outside of that public official's authority may not ultimately occur. To address whether quo warranto relief is warranted under such premature circumstances would amount to an impermissible advisory opinion based upon hypothetical facts.

We previously considered whether issuance of the writ was appropriate in situations where the state officer or agency had already acted. For example, in Whiley v. Scott, 79 So.3d 702, 705 (Fla. 2011), we reviewed a completed action, in that the challenged executive order had already been issued. The same is true of State ex rel. Butterworth v. Kenny, 714 So.2d 404, 406 (Fla. 1998), receded from on other grounds by Darling v. State, 45 So.3d 444 (Fla. 2010), where we considered the authority of the Office of the Capital Collateral Regional Counsel for the Northern and Southern Regions to represent death row inmates in civil rights actions.² Most recently, in Ayala v. Scott, 224 So.3d 755, 756–57 (Fla. 2017), we held that quo warranto was an appropriate vehicle for the state attorney for the Ninth Judicial Circuit to challenge a series of executive orders that reassigned the prosecution of a number of pending death-penalty eligible cases to the state attorney of another judicial circuit.

Although Governor Scott announced his intent to appoint the replacements for three justices of this Court, clearly no appointments have been made. To use quo warranto to review an action which is merely contemplated but not consummated, as in the present case, would require this Court to depart from the historical application of the writ. 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 quo warranto relief is warranted.

Based upon the foregoing, the petition is hereby dismissed.

It is so ordered.

LABARGA, C.J., and CANADY, POLSTON, and LAWSON, JJ., concur. QUINCE, J., concurs in result only with an opinion, in which PARIENTE, J., concurs.

LEWIS, J., dissents with an opinion.

QUINCE, J., concurring in result only.

While I agree with the majority's conclusion that the "issue presented is not ripe for consideration," majority op. at 264, I also agree with Justice Lewis that this Court could properly review a petition for quo warranto prior to the actual appointment of a new justice. I write separately to clarify what I believe to be an improper focus in both opinions and to highlight the concessions made by Governor Scott's counsel during oral argument regarding the Governor's authority to make these appointments.

The majority currently states:

Although Governor Scott announced his intent to appoint the replacements for three justices to this Court, clearly no appointments have been made. To use quo warranto to review an action which is merely contemplated but not consummated, as in the present case, would require this Court to depart from the historical application of the writ. 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 quo warranto relief is warranted.

Majority op. at 266 (emphasis added). First, the majority implies that the action would not be ripe until the Governor makes an appointment ("clearly, no appointments have been made ... merely contemplated but not consummated"). However, the majority then appears to suggest that only "some action" would be necessary for this Court to consider the Governor's authority to make said action. Majority op. at 266. This inconsistent language creates unnecessary confusion about when a future petition for quo warranto would be ripe for this Court's consideration. This confusion is compounded by Justice Lewis' dissent, which also focuses on the presumption that the issue may only become ripe once the Governor has made an appointment. See Dissenting op. at 269 ("The majority's statement today that the appointment must be consummated before quo warranto applies ....").

Furthermore, the majority ignores that we have previously granted a petition for a writ of quo warranto challenging the Governor's authority to endeavor to fill a judicial vacancy.

Lerman v. Scott, No. SC16-783, 2016 WL 3127708 (Fla. Jun. 3, 2016). In Lerman, the petitioners sought the writ of quo warranto "to show by what authority [Governor Scott] has endeavored to fill a vacancy, created by the Resign to Run statute, in the office of county court judge, in Group 11 of the Fifteenth Judicial Circuit, through an appointment." Petition at 1, 2016 WL 2760518, Lerman v. Scott, No. SC16–783. We granted the writ in Lerman because Governor Scott acted by requesting the Judicial Nominating Commission to provide a list of names for his consideration to make an appointment. Lerman, 2016 WL 3127708, at *1 ("The Governor shall not utilize the Fifteenth Judicial Circuit Judicial Nominating Commission to perform any functions related to nominating candidates for this judicial office."). Thus, unlike the dissent's characterization of Lerman, we were not merely responding to an announced intention, dissenting op. at 268-69, but did find an action short of an actual appointment by which the petitioner could question the Governor's authority. Under this Court's precedent, we have the authority to act prior to the Governor's making an appointment that is contrary to law.

On the merits of the instant petition, at oral argument in this Court, Governor Scott's counsel conceded that "the Governor's term concludes at the end of the day on [the first] Monday" in January, "the same day that the Justices' terms end."³ The Governor's counsel further conceded that if the justices do not leave before the end of their terms and "if the new governor's term has begun, then the new governor would have the authority to make the appointment."⁴ This position is the same as that taken by the majority of Florida voters in 2014 in response to a proposed constitutional amendment which would have required the Governor "to prospectively fill vacancies in a judicial office."⁵

The Governor's concession reflects Florida law. Under the Florida Constitution, when a vacancy occurs in a judicial office to which election for retention applies, "the governor shall fill the vacancy by appointing for a term ending on the first Tuesday after the first Monday in January of the year following the next general election." Art. V, § 11(a), Fla. Const. However, a vacancy exists only "upon the expiration of the term being served by the justice." Art. V, § 10(a), Fla. Const. We have explained that this provision "expressly provides that a vacancy in a merit retention judicial office does not occur until the end of the judge or justice's term." Advisory Op. to Governor re Judicial Vacancy Due to Mandatory Retirement, 940 So.2d 1090, 1091 (Fla. 2006) (emphasis added).

Moreover, under article IV, section 5(a), of the Florida Constitution, a governor's term does not begin until "the first Tuesday after the first Monday in January" of the year following the general election. As noted in an appendix to the instant petition filed in this Court, Governors Bush, Crist, and Scott all took the oath of office well before the first Tuesday after the first Monday in January so...