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Florida Gov’t Weekly Roundup: Florida’s ‘Supreme’ Controversy

While the nation was fixated on the drama surrounding Brett Kavanaugh’s nomination to the U.S. Supreme Court, Floridians were reminded this week that they have their own Supreme Court controversy in triplicate.

Gov. Rick Scott reasserted his claim in court that he has the power, before he leaves office in January, to appoint replacements for three Florida Supreme Court justices who have reached a mandatory retirement age. Opponents contend the next governor, who takes office on Jan. 8, has that right.

Meanwhile, former U.S. Rep. Ron DeSantis, the Republican nominee for governor, told the Florida Chamber of Commerce this week that he intends to appoint the new justices.

“It’s important that we have a governor who understands that we have to appoint solid constitutionalists to our state courts, including our state Supreme Court,” he told the chamber members, who were meeting in Orlando.

“The next governor probably, and I know there’s a little bit of controversy about when these appointments happen, but I’m presuming that I get elected governor and get sworn in, that I will have three appointments to the state Supreme Court,” DeSantis said.

It’s not the first time DeSantis has asserted his right to make the court appointments. It became an issue in his final debate with Agriculture Commissioner Adam Putnam in the Republican gubernatorial primary.

“They’re not your appointments. They’re Gov. Scott’s appointments,” Putnam told him, saying DeSantis was aligning himself with groups like the League of Women Voters of Florida, who is challenging Scott on the court appointments.

For his part, Scott, who expects to get a list of potential court appointees by Nov. 8, has said he will work on the appointments with the winner of the Nov. 6 election.

Reaching an accommodation with DeSantis, who shares a similar conservative philosophy with Scott, seems possible. But if Democrat Andrew Gillum prevails, Floridians can expect the appointment controversy to intensify.

WHO’S GOT THE POWER

Scott’s lawyers on Wednesday argued the governor has the authority to appoint the replacements for justices Barbara Pariente, R. Fred Lewis and Peggy Quince, who are all leaving the court in early January because they have reached the mandatory retirement age.

The lawsuit, filed by the League of Women Voters of Florida and Common Cause, has asked the Supreme Court to block Scott’s action, through a procedure known as a “writ of quo warranto,” arguing the new governor who takes office on Jan. 8 should have that appointment power.

But in a 33-page response, Scott’s lawyers said he is following the precedent of beginning the appointment process before the vacancies actually occur, noting numerous justices have been appointed using this procedure in order to avoid prolonged vacancies on the court.

“The petitioners’ interpretation of the applicable constitutional provision is contrary to its plain language, the longstanding historical practice of the judicial nominating commissions for the Supreme Court and district courts of appeal, and the clearly articulated public policy underlying Article V of the Florida Constitution: avoiding extended vacancies in judicial office,” the lawyers wrote.

Earlier this month, Scott directed the Supreme Court Judicial Nominating Commission to begin accepting and reviewing applications for the court appointments. The commission has set an Oct. 8 deadline for the applications, followed by a Nov. 8 deadline — two days after the general election — for submitting names of potential justices to the governor.

Scott, a Republican who is running against incumbent U.S. Sen. Bill Nelson, said he has the “expectation” that he and the incoming governor could reach an agreement on the appointments.

Underscoring the legal challenge is the fact that the new appointments are likely to reshape the seven-member Supreme Court for years, if not decades. Pariente, Lewis and Quince are part of a liberal bloc, which now holds a slim 4-3 majority, that has thwarted Scott and the Republican-dominated Legislature on numerous occasions since the governor took office in 2011.

SEX AND THE SENATE

In another Florida parallel to the Kavanaugh controversy, where the nominee has been accused of sexually harassing women while in high school or college, a sexual discrimination case involving the Florida Senate advanced this week.

Florida Attorney General Pam Bondi and four high-ranking senators — including President Joe Negron — are among the witnesses being asked to testify in a discrimination case filed by legislative aide Rachel Perrin Rogers, who accuses the Senate of retaliation after she filed a sexual harassment complaint last year against former Sen. Jack Latvala.

Latvala, a Clearwater Republican who held the powerful post of Senate budget chief and was a candidate for governor when Perrin Rogers’ allegations against him first came out, resigned from the Senate shortly before the legislative session began in January. He has steadfastly denied any wrongdoing.

Latvala is among the witnesses Tiffany Cruz, a lawyer who represents Perrin Rogers, is asking to appear at a Jan. 14 federal administrative-court hearing in Tampa, according to court documents first reported Wednesday by Politico Florida.

The list of witnesses gives just a glimpse into the allegations made by Perrin Rogers, who filed the discrimination complaint with the Equal Employment Opportunity Commission in January.

One of the witnesses is Jean Seawright, who was hired by the Senate to conduct an investigation into Perrin Rogers after the aide filed the complaint against Latvala, according to court documents. Senate Special Master Ronald Swanson, who investigated Perrin Rogers’ allegations against Latvala, is also on the witness list.

Negron, a Stuart Republican who is leaving office after the November elections, “has knowledge that complainant suffered retaliation for making a report of sexual harassment,” Cruz wrote in a four-page list of witnesses submitted Tuesday to U.S. Administrative Law Judge Alexander Fernández.

The Senate president denied anyone punished Perrin Rogers, a high-ranking aide who works for Senate Majority Leader Wilton Simpson, after she complained about Latvala.

“The complaint of sexual harassment in this case was immediately and fully investigated.  At all times the Senate has acted appropriately and there has been no retaliation,” Negron said in a text message Wednesday.

But Cruz told The News Service of Florida on Wednesday that “there has been constant retaliation” against Perrin Rogers since she first complained about Latvala last fall. And the retaliation got worse after Swanson’s report was completed and the Senate aide filed her discrimination complaint, Cruz said.

“Instead, what we’ve seen happen here is the Senate has taken almost no action as the employer to protect Rachel when the retaliation was happening, and then subsequent to the investigation, they’ve actively taken steps to treat her differently as a result of her complaint,” she said.

The investigation into Latvala came amid a national spotlight on revelations of sexual harassment lodged against powerful men in Hollywood, business and politics that led to the demise of entertainment-industry titans such as Harvey Weinstein, Charlie Rose and Les Moonves.

STORY OF THE WEEK: Gov. Rick Scott reasserted his right to appoint three new justices to the Florida Supreme Court before he leaves office in early January.

QUOTE OF THE WEEK: “The message that women are receiving, to me, is you become a pariah for saying something about any type of misconduct that’s happening to you by a man, especially by a man of power. If you say something too late, you get attacked for that. If you say something right away, you get attacked for that. So essentially the message is, be silent, or these are the consequences.” — Tiffany Cruz, a lawyer who is representing legislative aide Rachel Perrin Rogers, who is suing the Florida Senate in a discrimination case.

by Lloyd Dunkelberger, The News Service of Florida