Re: Ongoing Judicial Coup in Florida?

by Ed Whelan

Last week I spelled out how retired Florida supreme court justice James E.C. Perry’s continued participation in decisions of his court in the place of his lawfully appointed successor Alan Lawson appears to be in plain violation of Florida law. In response to an email inquiry, Craig Waters of the Florida supreme court’s public information office has provided me this explanation (which I quote in full):

The Court’s longstanding practice for many decades has been that retiring Justices remain in senior status to complete their unfinished work after retirement unless they cannot do so due to death or a conflict of interest. Conflicts of interest can include the fact that they have become a judge on another court or have reentered the practice of law and thus cannot simultaneously work as both a senior judge and a private attorney. At present Justice Perry is not a judge on another court and has not gone to work in a law firm.

There are serious workload issues involved in processing cases because the work is cumulative, much like studies in a law-school class. For example, you would not place a law student into a class on a complex aspect of the death penalty after that class is more than half complete. Doing so would have unfair results – slowing down the entire class so that the one student could get up to speed, or unfairly handicapping the one student who has not had the benefit of the first half of the class. 

By the same token, asking a new Justice to step in and get up to speed on work in individual cases that may be more than half completed can greatly slow decision-making in those cases – a result that would impose delay and additional expense on the parties to those cases, some of which are facing the death penalty. The Supreme Court always has taken the approach that avoids unnecessary delay and expense.

I find this explanation woefully deficient:

1. The proposition that the court has employed this “practice for many decades” does not speak meaningfully to the legality of the practice. One would expect that the court might have used those decades to muster a legal defense of the practice. But Mr. Waters’s statement does not provide one. I also specifically asked Mr. Waters: “If you are aware of any legal support for your court’s actions beyond anything contained in your statement, would you please provide it to me?” I received nothing additional.

To briefly restate the elementary points in my initial post: Justice Perry retired effective December 30. Justice Lawson filled Perry’s seat on December 31. So retired Justice Perry may not, without some further authorization, act as a justice in any matter.

Perry is eligible, as a retired justice, to be assigned “to temporary duty in any court for which the judge is qualified,” and chief justice Labarga has issued a blanket order that makes him eligible for such service.

But under the Florida constitution, the Florida supreme court has seven justices, and all seven seats are filled. Further, even if there were a recusal in a particular case, the Florida constitution allows “judges assigned to temporary duty” to fill in on the supreme court only when recusals for cause would deprive the court of its quorum of five justices—in other words, only if three of the current seven justices recused for cause. (See fuller explanation in my previous post.)

So, I ask again, how is it lawful for Perry to be displacing Lawson on court decisions issued after Perry’s retirement?

2. Mr. Waters’s “workload” efficiency arguments also don’t make sense.

To be sure, I assume that it is routine for supreme courts to go ahead and decide cases already well into the pipeline—those in which oral argument and conference have taken place—without the participation of a newly appointed justice. The Supreme Court did just that when Justice Alito replaced Justice O’Connor mid-term in 2006. Thus, decisions argued before Alito took his seat but decided while he was on the Court state (here’s an example) that Alito “took no part in the consideration or decision” of the case.

But it’s one thing to decide already-argued cases without the new member. It’s quite another thing to allow the retired justice to displace the new member in those cases. This elementary distinction seems to have escaped the Florida supreme court.

In other words, in any case in which Lawson’s participation wouldn’t be dispositive (and that’s the bulk of them on a court that has four remaining liberals among its seven justices), the efficiency gains that Waters touts would be achieved by simply deciding the case without him.

To be sure, there may be a small number of cases that would have to be re-argued because Lawson’s participation would break a tie among the six remaining justices who heard oral argument. But those are precisely the cases in which having Perry displace Lawson is most objectionable. And any supposed efficiency gains would be offset by the uncertainty resulting from a ruling in which the decisive vote is cast by someone who has taken part illegally.

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If the Florida supreme court can’t offer a compelling legal explanation for its practice of allowing a retired justice to continue to decide cases after his retirement, it ought to terminate that practice pronto. 

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