What is at stake in this year's race for governor goes beyond whose vision of education funding prevails or what the state's transportation plan should look like. The next governor may remake the Florida Supreme Court. Four of the seven justices on the court will reach the mandatory retirement age over the next four years. But the judicial retirement language in the Florida Constitution sets up a potential conflict between the outgoing governor and the incoming governor in appointing replacements, and the rules should be clarified.
The Florida Constitution sets the retirement age for justices at 70 years old. However, if a justice is more than halfway through a six-year term, he or she can opt to wait to retire at the end of the term. Justice James E.C. Perry, appointed by former Gov. Charlie Crist in 2009 when he was a Republican, will turn 70 this month. But Perry won't have to retire until the end of his term in January 2017.
The potential conflict arises in appointing replacements for Justices Barbara Pariente, R. Fred Lewis and Peggy Quince. Each will turn 70 over the next four years but won't have to retire until January 2019 — the end of their terms and the moment when the next governor's term expires.
Pariente, Lewis and Quince were all appointed by former Gov. Lawton Chiles, a Democrat, and occupy the more moderate side of the court. If Republican Gov. Rick Scott is re-elected, those justices could choose not to leave before his second term is up. Scott could attempt to name their successors early, leading to a lawsuit that ultimately would be decided by the justices themselves. That would be unduly messy and raise conflict of interest questions.
In 1998, Justice Ben Overton timed his retirement to try to give incoming Gov. Jeb Bush the appointment instead of Chiles. A lawsuit was averted when Chiles and Bush agreed to jointly appoint Quince.
Voters should change the Florida Constitution to either set a mandatory retirement age at 70 without regard to when a term ends or to give the sitting governor the power to make those end-of-term judicial appointments. Supreme Court seats would not remain vacant while a new governor is getting up to speed, and justices would be less prone to try to tie their retirement to election results.