Supreme Court Rejects Scott Push to Remove Justice

By Dara Kam

The News Service of Florida

THE CAPITAL, TALLAHASSEE, November 29, 2017......... The Florida Supreme Court on Wednesday rejected an attempt by Gov. Rick Scott to remove Justice Barbara Pariente from a case that could determine the shape of the state's highest court for decades.

In a one-sentence order, the court denied Scott's motion to have Pariente, part of a liberal-leaning bloc that has repeatedly thwarted the Republican governor, disqualified.

Scott's lawyers had accused Pariente of being biased against the governor in the case, which centers on whether Scott or his successor has the power to appoint three new justices before he leaves office in January 2019.

Attorneys for Scott, who contends he has the appointment power, filed a motion Nov. 20 arguing that Pariente should be disqualified because of comments she made that were caught on a “hot mic” after oral arguments in the case. The Scott administration alleges the comments indicated a bias against the governor.

But, accusing Scott of trying to “fan the flames of false controversy,” lawyers for the League of Women Voters and Common Cause filed a 12-page response Tuesday saying the motion to disqualify Pariente should be rejected. The two groups filed the underlying case about the appointment power in June.

The attempt to remove Pariente from the case stems from comments she made after oral arguments Nov. 1 and other remarks she made during a merit-retention campaign in 2012.

After the conclusion of the oral arguments in the case, Pariente was seen pointing to a piece of paper and speaking to Chief Justice Jorge Labarga. The exchange was captured on a video by The Florida Channel, which broadcasts court arguments.

Labarga reacted to the document by saying the name “Panuccio,” and Pariente could be heard saying the word “crazy,” although the entirety of their exchange could not be heard.

Labarga then said, “Izzy Reyes is on there. He'll listen to me.” Pariente appeared to say, “Look whose pick they're getting …”

During the conversation, the justices referred to a paper brought to the bench by Pariente. A public records request by Scott's lawyers found that the document was a list of the governor's appointees to the Florida Supreme Court Judicial Nominating Commission, along with the dates when each commissioner's term is set to expire. Jesse Panuccio and Israel “Izzy” Reyes are members of the commission.

“In the present case, disqualification is likewise required because the actions and comments by Justice Pariente would place a reasonably prudent person in fear of not receiving a fair and impartial hearing,” Scott's lawyers argued in the 17-page motion seeking Pariente's removal.

But in the response filed Tuesday, attorneys for the League of Women Voters and Common Cause wrote that the Nov. 1 comments “do not in any way commit or appear to commit Justice Pariente with respect to any party, issue, or controversy in this proceeding.”

“Respondent (Scott) has decided not to presume good faith by a leader of a co-equal branch of government and instead presumes the worst based on nothing but partial quotes devoid of context and amplified by baseless speculation,” the groups argued. “None of the comments attributed to Justice Pariente bear any reasonable relationship to the parties, lawyers, or any issue presented in this case.”

Relying on a 1980 decision in a case known as “In re Estate of Carlton,” lawyers for the groups said Pariente alone had discretion about whether to leave the case, as disqualification laws apply to trial judges --- not Supreme Court justices and other appellate judges.

In the Carlton case, which involved a request for the recusal of then-Justice Ben Overton, the court ruled “each justice must determine for himself both the legal sufficiency of a request seeking his disqualification and the propriety of withdrawing in any particular circumstances.”

That decision serves as the presiding law in similar cases, legal sources said.

Scott spokesman John Tupps blasted Wednesday's order.

“Governor Scott expects all judges to be fair and impartial. It is disappointing that today's decision was made without providing any plausible justification or explanation for Justice Pariente's comments. Given the gravity of this case, Floridians deserve better,” Tupps said in a prepared statement.

In filing the case in June, the League of Women Voters and Common Cause argued that Scott's successor should have to the authority to appoint replacements for Pariente and justices R. Fred Lewis and Peggy Quince, who will be forced to leave the bench in January 2019 because of a mandatory retirement age.

Whether Scott or his successor will have the authority could have a far-reaching impact on actions by the governor's office and the Republican-dominated Legislature.

Pariente, Lewis and Quince are widely considered part of a four-member liberal majority on the seven-member court. If Scott makes the appointments, he could reshape the court in a more conservative mode for years, if not decades.