Ongoing Judicial Coup in Florida?

by Ed Whelan

I’ve recently ridiculed the Left’s extravagant use of “coup” rhetoric, but have just run across a much stronger example of a coup by the Left.

In September, Florida justice James E.C. Perry announced his resignation (pursuant to the state’s mandatory-retirement-age provisions), effective December 30. Florida governor Rick Scott appointed Alan Lawson to replace Perry, effective December 31. The Florida supreme court’s website properly lists Lawson as the court’s seventh justice.

Florida law provides that “[u]pon the resignation … of any judge, all matters pending before that judge shall be heard and determined by the judge’s successor.” So Lawson ought to be replacing Perry in “all matters pending.” But earlier today, in an order concerning an opinion issued in October, Lawson was not listed among the justices participating in the order—and Perry was listed, in his supposed capacity of “Senior Justice.”

To be sure, the Florida constitution (article V, section 2(b)) confers on the chief justice of the supreme court “the power to assign justices or judges, including consenting retired justices or judges, to temporary duty in any court for which the judge is qualified.” Further, chief justice Labarga, on December 1, issued an order assigning Perry “for statewide judicial service, effective January 1, 2017.” Under that order, Perry can decide cases “as a temporary judge of any court in the State of Florida upon approval by the chief judge of that court.”

But how could Perry displace Lawson on the supreme court in the order issued today?

The Florida constitution (article V, section 3) states: “When recusals for cause would prohibit the court from convening because of the requirements of this section, judges assigned to temporary duty may be substituted for justices.” That same section further provides, “Five justices shall constitute a quorum.”

Thus, if there were otherwise only four justices available to decide today’s order and if the absence of a quorum were attributable to “recusals for cause,” Labarga could approve of Perry’s participation in the matter. But there were six other justices on the matter, so those conditions weren’t met. And even if they were, Lawson, unless he were recused (and there’s no indication of that), would be one of the justices entitled to take part.

The same thing happened—Perry’s participation instead of Lawson’s—in a second order that was issued in the same case today (and that was later withdrawn, evidently because it miscited a statutory section,, for reasons explained here).

These two examples might seem trivial, except that it appears that Labarga intends to have Perry continue to displace Lawson. According to this December 30 article, Perry expects to “remain on the bench for the next month or two as a senior judge to complete rulings on the cases that remain in the court’s pipeline.”

I don’t claim to be expert on Florida judicial procedure, but I don’t see how Perry’s post-retirement participation in pending matters and his purported displacement of Lawson are compatible with the governing state laws.

It probably won’t surprise you to learn that Labarga and Perry are liberals (part of the long-dominant liberal majority on the Florida supreme court) and that Lawson is a conservative.

Bench Memos

NRO’s home for judicial news and analysis.