As I discussed earlier (and Carrie Severino covered here and here) Florida Supreme Court Justices R. Fred Lewis, Barbara Pariente, and Peggy Quince won their retention elections even though none of them were qualified to be on the ballot. A Florida citizen — represented by the Southeastern Legal Foundation (SLF) — sued Florida Secretary of State Ken Detzner to resolve the matter.
The three justices moved to intervene in the case, which circuit judge Kevin Carroll granted. The justices’ response can be summed up in three categories: 1) The justices do not like the non-profit that is representing the citizen, 2) The citizen is being represented by, among others, an attorney from Georgia, and 3) An impressive array of cites to case law which are neither relevant nor responsive to the suit. This collection of non sequiturs has prompted the petitioner to move to strike the entirety of the Justices’ 21-page non-responsive response. The same goes for the secretary of state’s response to the writ, which is largely moot as it cites case law dealing with statutes that have since been extensively rewritten by the Florida legislature.
The Florida statute is clear, and from my reading of it and the facts in this case there seems to be little doubt that if the law were to be followed the citizen will win given that the only two matters presented — that the secretary exceeded his authority and that the justices did not qualify for the ballot — are straightforward. However, since the individuals in question are sitting State Supreme Court members there could be an institutional or collegial reluctance of lower courts to side with the petitioner.
It remains to be seen if the executive office of the governor will intervene in the case. Since the three justices did not qualify for the ballot the governor has the right to appoint their replacements, a right being denied to the executive branch by the secretary of state’s actions. Doing so would be a clear defense of the separation of powers, and a win for the rule of law in Florida in general and the reputation of its troubled supreme court in particular.