Three Florida State Supreme Court Justices Could Leave the Bench

On November 6, Florida Supreme Court justices R. Fred Lewis, Barbara Pariente, and Peggy Quince were up for retention election and were easily retained. As I discussed earlier on Bench Memos (as did Carrie Severino here and here) all three of these incumbents failed to qualify for the retention election, but made it onto the ballot anyway.

The original suit over this was dismissed on grounds that the two Floridians represented by the Southeastern Legal Foundation (SLF) did not have standing for the case (in fact, the court asserted that no one could have standing). That ruling is now under appeal.

On Monday, November 5, SLF, on behalf of another Florida citizen and taxpayer, filed an original action in the Florida Supreme Court asking the Court to issue a writ of quo warranto regarding the actions of Secretary of State Ken Detzner in determining the Justices “qualified” to be placed on the ballot. The argument is not one of conduct, but instead contends that none of the three justices lawfully qualified for the retention election and that the secretary of state failed to properly carry out his constitutional and administrative duties in the matter.

Incumbent Florida Supreme Court justices wishing to appear on the ballot for retention must submit certain documents in a particular manner during a particular timeframe; all three justices failed to do this. The secretary of state therefore should not have allowed them on the ballot, which has prompted the quo warranto action (i.e., a demand to show what authority he had for his actions as the secretary of state). Under the law, Secretary Detzner shall make every reasonable effort to inform those who have filed for retention election that they have failed to properly do so. But further, he also shall not contact any individual who has not filed for retention election that they need to take action, as he did for these three justices who had taken no action to file until he contacted them.

In fact, the suit asserts that the three justices had neither the intention nor ability to file the proper paperwork for the retention election. The issues of misconduct are not being raised here; the petitioner is simply asking the court to order the secretary of state to answer under what authority he determined the justices “qualified” to be placed on the ballot, since they had failed to meet the statutory qualification requirements. The petitioner is also asking under what authority he assisted the justices in “meeting” the deadline for qualifying. The evidence is undisputed that none of the three justices could have done so without the assistance of the secretary of state. Yesterday, the Florida Supreme Court transferred the case to a lower court where it will be heard. If this case is successful, Florida governor Rick Scott will appoint their replacements to the seven-member court.

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