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In a one-page order issued today, the Florida Supreme Court has ruled that three vacancies that will occur on the court in January will be filled by the incoming governor elected in November.

The Florida constitution requires mandatory retirement for justices after they attain the age of seventy years, with the exception that justices over the age seventy can finish their term if at least half of the term has been served. At midnight on January 8, 2019, the terms of Justices Barbara Pariente, Peggy Quince, and Fred Lewis end due to mandatory retirement. The governor’s term likewise ends at midnight on January 8th. However, due to vagueness in the Constitution as to when the new governor’s term will begin, it had been unclear whether the outgoing or incoming governor has the authority to appoint the replacement justices.

In granting a writ of quo warranto against the governor filed by the League of Women Voters of Florida, the Florida Supreme Court has ruled that the incoming governor has the sole authority to fill the upcoming vacancies. The order leaves open the question of when the Supreme Court Judicial Nominating Commission can certify its nominations. This issue will be decided after the election, following oral argument on November 8th. Likewise, the short order issued by the clerk does not contain any analysis as to how the court reached its decision, nor does it show if any justices dissented to the order.

This issue last arose in 1998, when outgoing governor Lawton Chiles and incoming governor Jeb Bush both claimed the authority to fill a supreme court vacancy that coincided with the expiration of the governor’s term of office. The incoming and outgoing governors avoided a constitutional crisis by jointly agreeing to the appointment of Justice Peggy Quince.

A proposed constitutional amendment was placed on the ballot in 2016, with the goal of resolving the ambiguity in the constitution. Had the amendment passed, the outgoing governor would have been granted the explicit authority to appoint replacements where the expiration of judicial and gubernatorial terms coincided. The proposed amendment failed to get enough votes to be adopted.

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