>> ALL RISE.
HEAR YE, HEAR YE, HEAR YE, THE
SUPREME COURT OF FLORIDA IS NOW
IN SESSION, ALL WHO HAVE CAUSE
TO PLEAD, DRAW NEAR, GIVE
ATTENTION AND YOU SHALL BE
HEARD.
GOD SAVE THESE UNITED STATES,
THE GREAT STATE OF FLORIDA AND
THIS HONORABLE COURT.
>> LADIES AND GENTLEMEN, SUPREME
COURT OF FLORIDA, PLEASE BE
SEATED.
>> GOOD MORNING AND WELCOME TO
THE FLORIDA SUPREME COURT.
THE FIRST CASE ON THE DOCKET
THIS MORNING'S LEAGUE OF WOMEN
VOTERS IN FLORIDA VERSUS SCOTT.
>> MAY IT PLEASE THE COURT, JOHN
MILLS ON BEHALF OF THE
PETITIONER'S.
I RESERVE 7 MINUTES AND IF I
MADE SO I DON'T FORGET, I WILL
BEGIN WITH AN APOLOGY TO MY GOOD
FRIEND AND ESTEEMED COLLEAGUE
MISTER CAN TAROT.
SOME PEOPLE HAVE READ OUR
PETITION IS ACCUSING MISTER CAN
TEAR OF NOT BEING FORTHRIGHT OR
PROVIDING DOCUMENTS WHEN
REQUESTED.
NO SUCH INSINUATION WAS
INTENDED, NOR WOULD IT BE TRUE.
HE HAS BEEN NOTHING BUT HIGHLY
PROFESSIONAL THROUGHOUT AND WE
TRY TO COORDINATE AND
COMMUNICATE IN WAYS TO MAKE
THINGS AS EASY AS POSSIBLE WITH
THE COURT AND I REGRET ANY
SUGGESTION TO THE CONTRARY.
THE ISSUES, THERE ARE 3 ISSUES
BEFORE THE COURT TODAY AND NOT A
SINGLE ONE OF THEM DEPENDS WHO
WON THE ELECTION TUESDAY IF WE
KNOW THE ANSWER YET.
NOR ARE THEY UNIQUE TO TODAY'S
SITUATION.
THESE ARE ISSUES THAT ARE LIKELY
TO RECUR.
>> LET ME ASK YOU THAT.
IN VIEW OF THE PASSAGE OF THE
AMENDMENT CONCERNING MANDATORY
RETIREMENT WHICH NOW HAS A
PROVISION ADOPTED BY THE PEOPLE,
PROSPECTIVELY ADOPTED, A
PROVISION THAT WILL REQUIRE
UNIFORM RULE OF REQUIREMENT NO
LATER THAN THE AGE WHEN A PERSON
TURNS 75 WHICH IS DIFFERENT THAN
WE HAVE NOW THAT WE HAVE
COLLEAGUES SUBJECT TO MANDATORY
RETIREMENT, THE WEIGHT IS
OPERATING UNDER THE CURRENT
VERSION THEY ARE REQUIRED TO
RETIRE AT THE END OF THEIR
TERMS.
THAT WILL NOT BE HAPPENING IN
THE FUTURE.
UNDER THE NEW CONSTITUTIONAL
PROVISION WE WILL NEVER FACE,
AND UNLESS WE HAVE AN EXTRA
AMERICA WHEN SIDDONS, AT THE END
OF THE TERM?
>> YES AND NO.
BEFORE THE AMENDMENT IF A
JUSTICE RESIGNS, A VACANCY RECUR
IS WHEN RESIGNATION IS ACCEPTED
WHEN THEY LEAVE.
THAT IS DECIDED BY THE COURT.
THAT IS NOT THE SCENARIO HERE OR
ALL THESE OTHER REASON SOMEBODY
COULD LEAVE.
THE ONLY SCENARIO UNDER THE
CURRENT CONSTITUTION WE TALK
ABOUT IS WHEN SOMEBODY SERVES
OUT THERE FINAL TERM.
IN THIS CASE IT IS THE REASON
THIS IS THERE FINAL TERM, THESE
THREE JUSTICES CANNOT RUN FOR
ANOTHER TERM BECAUSE OF
MANDATORY RETIREMENT.
AND IN JULY, EVEN IF IT IS A DAY
LEFT IN YOUR TERM OR WHATEVER,
THAT IS GONE.
HOWEVER, THE SAME PROVISION WHAT
APPLY WHERE THIS COULD OCCUR, IF
A JUDGE OR JUSTICE WAS EVER NOT
RETAINED, THERE'S A RETENTION
ELECTION AND NOBODY HAS EVER NOT
BEEN RETAINED YET BUT IT COULD
HAPPEN.
OR IF JUDGES AND JUSTICES DECIDE
NOT TO SEEK RETENTION EVEN IF
THEY ARE ELIGIBLE AND DON'T FIRE
PAPERWORK OR IF THEY FORGET TO
FILE THEIR PAPERWORK OR ANY
OTHER REASON THEY DON'T QUALIFY
FOR RETENTION.
ALL OF THOSE CIRCUMSTANCES
THERE'S A SPECIFIC
CONSTITUTIONAL PROVISION THAT IS
NOT AMENDED THAT SAYS THEY
COMPLETE THEIR TERM AND VACANCY
OCCURS AFTER THE TERM HAS
EXPIRED.
THIS CAN RECUR.
IT WOULD NOT RETURN HER IN A
SITUATION OF MANDATORY
RETIREMENT IT COULD RETURN WITH
FAILURE TO RETAIN OR TO SEEK
RETENTION.
>> I WANT TO UNDERSTAND IF IN
LIGHT OF OUR ORDER THAT STATED
THE INCOMING GOVERNOR HAS THE
AUTHORITY.
ARE YOU REQUESTING THAT THE
NOMINATIONS BE REOPENED?
>> THE APPLICATIONS, YES.
>> AND THIS IS THE PART THAT IS
OF CONCERN, THAT NOTHING,
EVERYTHING STOPS.
THE RELIEF YOU ARE SEEKING
BECAUSE PREVIOUSLY, IN YOUR
FIRST PETITION, YOU CONCEDED
THAT THE JNC HISTORIC WORKED
EARLIER.
>> WE CAN SEE THE CONSTITUTION
IN OPERATIVE AT THAT.
>> EXTENDING IT TO SAY
DECEMBER 8TH, WHAT YOU SAID IS A
DATE OF 30 DAYS OR SO.
WHAT IS THE REASON FOR YOUR
CHANGE POSITION AND WHY SHOULD
WE NOT GO WITH YOUR ORIGINAL
POSITION?
>> WE MAINTAIN THE POSITION IN
OUR ORIGINAL PETITION AND FILE A
SUPPLEMENTAL PETITION.
WE ARE SEEKING THREE THINGS.
THE FIRST AND ONLY THING
RELEVANT FROM OUR ORIGINAL
PETITION IS WE SEEK A
DETERMINATION FROM THIS COURT AS
TO WHEN NOMINATIONS CAN BE MADE.
UNDER THAT PROVISION IS NO
PROHIBITION ON MAKING
NOMINATIONS BEFOREHAND BUT IT IS
A QUESTION OF WHEN NOMINATIONS
CAN BE MADE.
I WILL GET INTO THAT IN A MOMENT
ABOUT TO BE VERY CLEAR, ISSUE 2
IS THE COMMISSION HAD NO
AUTHORITY TO SET THE APPLICATION
DEADLINE.
IT HAS NO AUTHORITY UNDER ITS
RULES, THERE IS NO SUBSTANTIVE
PROVISION THAT SAYS YOU SHALL
NOT ACCEPT APPLICATIONS BEFORE
THE VACANCY.
THEIR RULES WOULD BE CONSTRUCTED
IN A WAY, HE ONLY HAD ONE OTHER
VOTE.
THE MAJORITY MAY HAVE DISAGREED
WITH HIM BUT I UNDERSTOOD HIS
REASONING TO MEAN AS LONG AS THE
COMMISSION'S RULES AUTHORIZED
APPLICATIONS BEFORE AND START
INTERVIEWS OR WHATEVER, IT COULD
MAKE NOMINATIONS AT THE EARLIEST
POSSIBLE TIME.
NOT THAT THE RULES DON'T ALLOW
THAT.
>> ARE YOU DISTINGUISHING
BETWEEN NOMINATIONS AND
CERTIFICATION?
BECAUSE THE COURTS RULED
CERTIFICATION CANNOT OCCUR UNTIL
THE NEW GOVERNOR IS IN.
ARTICLE 5 SECTION 11 SEE WHICH
GOVERNS THIS ALSO TALKED ABOUT
THE NOMINATIONS SHALL BE MADE
WITHIN 30 DAYS FROM THE
OCCURRENCE OF A VACANCY SO IT
WOULD SEEM TO ME THAT
NOMINATIONS AND CERTIFICATION
ARE ESSENTIALLY THE SAME.
>> WE ARE NOT SEEKING TO
DISTINGUISH IS IT HYPOTHETICALLY
POSSIBLE TO MAKE THE NOMINATIONS
AND CERTIFY THEM TWO MONTHS
LATER?
I DON'T KNOW HOW YOU CAN DO
THAT.
IT DOESN'T MAKE SENSE TO ME.
>> IT SEEMS THE CONSTITUTION
DOESN'T ALLOW IT.
>> YOU HAVE TO READ THOSE
SENTENCES TOGETHER AND WHEN YOU
DO IT IS A SIMPLE TIMELINE.
>> WHAT IS YOUR ARGUMENT FOR THE
PROCESS?
I AGREED BECAUSE I AGREE THE
DEADLINE WAS SET BASED ON THE
GOVERNOR'S LETTER THAT
NOMINATIONS SHOULD BE REOPENED
BUT WHAT IS YOUR ARGUMENT THAT
NOTHING CAN START UNTIL AFTER
THE NEW GOVERNOR IS SWORN IN?
IF THE JNC CHANGED COMPOSITION,
IF THE STATUTE SAID THE NEW
GOVERNOR, THERE WILL BE A NEW
JNC, IT WOULD HAVE A DIFFERENT
BALLGAME.
HERE, JNC COMPOSITION DOES NOT
CHANGE.
>> IT DOES NOT CHANGE BY
CONSTITUTION BUT WHEN A NEW
GOVERNOR TAKES OFFICE IT IS
TRADITIONAL TO ASK THEM ALL TO
RESIGN WHETHER THEIR TERMS ARE
UP OR NOT.
>> DOES THAT HAPPEN WITH JNCs?
>> NOT SURE IT IS EVER BEEN
POLITICIZED, NO IDEA IF THAT CAN
BE DONE WILL BE DONE.
NOT SURE IF THERE'S AND INTENDS
TO DO THAT.
IT WILL BE IN THEIR PREROGATIVE
AND WOULD BE INAPPROPRIATE FOR
ME TO ASSUME ONE WAY OR THE
OTHER.
>> I AM A LITTLE CONFUSED.
EXPLAINED TO ME WHAT IS IT THAT
CAN BE DONE BEFORE THE VACANCY
OCCURRED AND CANNOT BE DONE?
CAN THE JNC INTERVIEW PEOPLE OR
DO THOSE THINGS?
WHAT CAN THEY DO OR CANNOT DO?
WHAT DO YOU SAY?
>> UNDER SUPPLEMENTAL PETITION
THE SECOND ORDER BEFORE THE
COURT TODAY, THE CONSTITUTION
REQUIRES THEM TO FOLLOW RULES
AND PUT RESTRICTIONS ON THOSE
RULES AND LOOKING AT THOSE
RESTRICTIONS THE ANSWER TO THE
QUESTION IS NO, NOT THAT THEY
WILL ACCEPT APPLICATIONS UNTIL
THE VACANCY OCCURS.
NOT THAT APPLICATIONS SUBMITTED
SHOULD BE THROWN AWAY.
I DON'T THINK THERE'S ANY HARM
THEY HAVE BEEN ACCEPTED, AND
THEY WILL ALL HAVE BEEN
INTERVIEWED.
THAT IS FINE AND DOESN'T GO
AWAY.
WE ARE JUST SAYING THEY ARE
SUPPOSED TO WAIT BY THEIR OWN
RULES UNTIL JANUARY 8TH.
>> YOUR ARGUMENT FOR THE FIRST
PETITION HAS SHIFTED FROM AN
ARGUMENT THAT WOULD DELAY
CERTIFICATION OF THE NOMINATION
UNTIL THE NEW GOVERNOR TAKES
OFFICE TO AN ARGUMENT THAT WOULD
PRECLUDE THE PROCESS FROM
GETTING STARTED UNTIL THE NEW
GOVERNOR TAKES OFFICE.
UNDER THE SCENARIO YOU ARE
OUTLINING WITH THE SUPPLEMENTAL
POSITION, THIS COURT WILL BE ON
POSITION WHERE THERE WOULD BE
THESE POSITIONS WOULD BE
UNFILLED OR FILLED WITH OTHERS
BUT THE NEW JUSTICES WOULD NOT,
THE PROCESS FOR SELECTING THEM
COULD NOT EFFECTIVELY START
UNTIL THE NEW GOVERNOR TAKES
OFFICE.
>> IT IS AN ENTIRELY NEW
ARGUMENT.
>> IT IS.
LISTEN.
IF THIS COMMISSION HAD AMENDED
ITS RULES TO PROVIDE
APPLICATIONS BEFORE THE VACANCY,
IT SHOULD BE AFTER THE ELECTION.
>> WHAT WOULD KEEP THEM FROM
DOING THAT NOW.
WHAT WOULD PRECLUDE THEM FROM
DOING THAT?
>> I'M NOT AWARE OF ANYTHING.
AND IF A DON'T DO THAT, THEY
WOULD FOLLOW YOUR.
AND MORE IMPORTANTLY THEIR
RULES, THEY ARE REQUIRED TO
FOLLOW THEIR RULES, YOU REVIEW
THEIR RULES, LEGISLATURE REPEALS
THEIR RULES, THEY CAN BE
REPEALED.
IF IT HAS TO APPLY 6 MONTHS IN
ADVANCE BEFORE ANY ELECTION OR
WHATEVER, YOU SHOULD DO THAT
BECAUSE THAT IS NOT FAIR OR THE
LEGISLATURE SHOULD.
YOU MUST HAVE AN OPPORTUNITY TO
DENY THE OPPORTUNITY.
>> IN ANSWER TO JUSTICE
KENNEDY'S QUESTION, PREVIOUSLY
IN YOUR PETITION YOU SUGGESTED
THE DATE OF DECEMBER 8TH.
>> I DON'T REMEMBER IT BEING
DECEMBER 8TH.
>> SOMETHING IN DECEMBER.
>> IF THEY DID IT DECEMBER 8TH
THAT WOULD GET 30 MORE DAYS.
>> WHAT I WOULD ASK YOU, IN
ANSWER TO THE QUESTION, THE ONLY
THING YOU SAY STOPPED THE JNC
FROM ACTING NOW TO INTERVIEW,
BACKGROUND CHECKS IS THEIR OWN
RULES.
IS THAT WHAT I'M UNDERSTANDING?
>> IT IS TWO PARTS, THAT IS THE
MAIN PART.
EVEN IF THEIR RULES AUTHORIZED
IT, NOW THAT WE HAVE SEEN THEIR
RECORDS AND THEY HAVE GIVEN US
THE RECORDS OF ALL THE MEETINGS,
THEY DID NOT HAVE A MEETING OR A
MAJORITY VOTE.
>> THIS ISSUE, I FEEL WE ARE
HERE TO GET THIS CONSTITUTIONAL
ISSUE STRAIGHT, THE ISSUE OF
WHETHER THERE WAS MEETING TO SET
THE DEADLINE AND MY QUESTION IS
I DON'T THINK THEY HAVE THE
AUTHORITY.
EVERYONE KNEW WHEN WE WERE GOING
TO RETIRE BECAUSE THEY KNEW OUR
AGE.
IF THEY STARTED LAST YEAR ON THE
PROCESS ABSENT THE GOVERNOR
DIRECTING THEM NOT SURE THERE IS
INDEPENDENT AUTHORITY TO START
THE PROCESS SO THAT IS ANOTHER
QUESTION BUT GIVEN THEY HAVE
STARTED THE PROCESS AND NO JNC,
NO GOVERNOR EVER INTERPRETED
THEIR OWN RULES I READ BEFORE
YOUR FIRST PETITION, TO
INTERPRET THAT TO MEAN A CAN'T
START THE PROCESS UNTIL THERE'S
AN ACTUAL VACANCY.
EVEN THOUGH IT SAYS IT, IS IT
THERE?
AND THE ACTUAL VACANCY.
>> THERE HAS BEEN NO ARGUMENT AS
TO WHY THE SAME EXACT WORDS IN
THEIR RULE THE TRACKS THE
CONSTITUTIONAL LANGUAGE THE
COURT UNANIMOUSLY SAID, THAT
MEANS YOU CAN'T DO IT UNTIL THE
VACANCY.
THEY DO THAT.
JUSTICE CAN TAROT TOLD THEM
THAT.
>> THE WORD VACANCY MEANS
DIFFERENT THINGS.
FACETS IN WHICH THEY ARE USING
THE RULES, NOT NECESSARILY THE
SAME SETS THEY USE ELSEWHERE.
WOULD YOU ADMIT THAT?
>> THEY ARE NOT ON DIFFERENT
DOCUMENTS.
WHEN RULES IN THE CONSTITUTIONAL
USING THE SAME WORDS IN THE SAME
CONTEXT THE CONTEXTS ARE NO
DIFFERENT, EVEN IF THEY WERE
ALLOWED TO INTERPRET THEIR RULES
AS THEY HAVE, THEY NEED TO ACT
BY MAJORITY VOTE.
THERE NEEDS TO BE MEETING AND
THE PUBLIC HAS TO KNOW ABOUT IT
AND THEY HAVE TO VOTE.
THIS IS A CONTROVERSIAL
APPLICATION DEADLINE.
YOU HAVE BRIEFS FROM ALL KINDS
OF ORGANIZATIONS SAYING WE WANT
TO APPLY.
>> BEFORE WE MOVE TO SOMETHING
ELSE I CANNOT THINK OF A
DELIBERATIVE BODY IN THIS BODY
OR ANYWHERE ELSE BUT CAN'T WAIVE
IT TO PROCEDURAL RULES.
>> THIS ONE CANNOT.
THE REASON --
>> THE LEGISLATURE DOES IT.
>> THERE IS NO RULE THAT SAYS
THE LEGISLATURE MUST FOLLOW ITS
OWN RULES AND ITS RULES CAN BE
UP REPEALED BY ANOTHER BRANCH.
THESE RULES CAN BE REPEALED BY
YOU OR BY THE LEGISLATURE.
IF THEY CAN JUST WAVE AND NOT
COMPLY WITH THEIR RULES, THAT
REQUIREMENT THAT IS IN THE
CONSTITUTION, THEY CAN'T REPEAL
THEIR RULES BECAUSE THEY DON'T
HAVE TO FOLLOW THEIR RULES.
YOU CAN'T REPEAL THEIR RULES
BECAUSE THEY DON'T HAVE TO
FOLLOW THEM.
THEY HAVE TO FOLLOW THEM AS A
MATTER OF CONSTITUTIONAL LAW,
CONSTITUTIONAL PROVISION
REQUIRING THEM TO HAVE RULES AND
MAKING THEM SUBJECT TO REPEAL IS
UNIQUE.
THERE IS NOT ANOTHER
COMMISSIONER BODY I AM AWARE OF
THAT DOES THEM.
THAT IS BINDING ON THEM.
IF THEY DON'T HAVE TO FOLLOW
THEIR RULES THEN YOU ARE RIGHT
TO REPEAL THE RULES, IT IS
ABSOLUTELY MEANINGLESS.
YOU SHOULD NOT INTERPRET THE
CONSTITUTION TO HAVE NOTHING
LIKE THAT BE MEANINGLESS.
YOU HAVE TO HAVE THE RIGHT TO
SAY YOU CAN'T DO THAT AND IF YOU
REPEAL THE RULE YOU BETTER NOT
FOLLOW IT ANYWAY.
IF THERE IS A RULE YOU KNOW WHAT
THEY ARE, YOU ARE ENTITLED, THE
PUBLIC IS ENTITLED THAT HELD
THEM IN THE MOST SOLEMN OCCASION
TO FOLLOW THEIR OWN RULES.
>> I AM STILL PUZZLED BY THE WAY
THIS HAS EVOLVED BECAUSE THIS IS
AN ARGUMENT THAT WOULD HAVE BEEN
AVAILABLE FOR THE SUPPLEMENTS
PETITION WAS FILED.
>> I DIDN'T HAVE THE INFORMATION
THAT WAS AVAILABLE.
THE OTHER RULES SAY THEY ARE
EFFECTIVE IN 2016.
I DIDN'T KNOW THEY COULD AMEND
THEM.
I WOULD ASSUME THIS BODY WOULD
FOLLOW ITS RULES.
>> I THOUGHT YOU WERE SAYING THE
RULES REQUIRE THEY CAN'T ACCEPT
THE APPLICATIONS UNTIL THE
VACANCY OCCURS.
THAT OBVIOUSLY WAS AVAILABLE TO
YOU ALL ALONG.
>> I HAVEN'T KNOWN WHAT THE
RULES WERE.
>> WHAT DO YOU MEAN YOU DIDN'T
-- THAT IS PUBLICLY ACCESSIBLE
INFORMATION.
IF YOUR KNOWLEDGE IS NOT AT
ISSUE, THIS IS AN ARGUMENT THAT
WAS AVAILABLE TO YOU.
IF I REMEMBER YOUR ORIGINAL
PETITION YOU ESSENTIALLY WERE
SAYING IT IS FINE TO GO AHEAD
AND GET STARTED.
YOU QUIBBLED ABOUT THE TIMING
AND THOUGHT IT SHOULD BE LATER.
YOU DIDN'T ATTEND TO THAT IN THE
CONSTITUTION OR ANYWHERE BUT YOU
BASICALLY AFFIRMED THEY ARE
PROCEEDING WITH ACCEPTANCE OF
APPLICATIONS UNTIL THE END OF
THE TERMS THAT ARE TO BE FILLED.
IS THAT CORRECT?
>> THAT IS NOT CORRECT.
I AFFIRMED THE CONSTITUTION
OPERATED THEM FROM DOING THE.
I PRESUME THE COMMISSION AS THEY
ARE ENTITLED TO DO HAD A MEETING
AND SAID WE BETTER AMEND THE
RULE BECAUSE WE WANT TO START
EARLY AND AMENDED THE RULE WHICH
THEY ARE ENTITLED TO DO AND HAD
MINUTES AND I WOULD BE ABLE TO
SEE THERE WAS A MAJORITY VOTE
AND THIS WAS DONE.
THEY HAD EVERY RIGHT TO DO THAT
AND I WASN'T GOING TO PRESUME
THEY DIDN'T DO THAT.
WE KNOW WHERE CAN I FIND THAT
OUT OTHER THAN BY ASKING THEM
CAN I HAVE ALL THE MINUTES OF
YOUR MEETINGS?
I HAVE DONE THAT.
>> THE AMENDED RULES BECOME
EFFECTIVE BEFORE THEY ARE
REVIEWED BY THIS COURT.
>> I BELIEVE SO.
THERE IS NO PROVISION THAT
UPHOLDS IT.
IF THEY HAD A PUBLIC MEETING
THEY NEED TO GIVE SOME ADVANCE
NOTICE.
THEN WE CONSIDER A RULE CHANGE
TO ALLOW APPLICATION FOR A
VACANCY CAN DO THAT AND IF THEY
HAVE A MAJORITY VOTE IT IS THE
RULE UNTIL THAT IS REPEALED.
THEY HAVEN'T DONE ANYTHING TO
THOSE THINGS AND THEY HAVE A
DELIBERATIVE SESSION THEY HAVE
TO CONSIDER THE SINCE THE
APPLICATION DEADLINE THE
QUALIFICATION OF BEING A JUSTICE
HAVE CHANGED.
AND THEY KNOW ALL THE
AFRICAN-AMERICAN BAR
ASSOCIATIONS, WOMEN LAW
ASSOCIATIONS ARE SAYING THERE IS
NO SPECULATION LIKE THEY SUGGEST
IN THEIR RESPONSE, THEY SAY
OUTRIGHT THEY HAVE MEMBERS WHO
WANT TO APPLY, BUT WOULDN'T
APPLY WHEN IT LOOKED LIKE
GOVERNOR SCOTT WAS MAKING IT.
>> ISN'T IT THE CASE THAT IT HAS
BEEN KNOWN FOR A LONG TIME THAT
THERE WAS MUCH CONTROVERSY
SWIRLING AROUND HOW THESE
APPOINTMENTS ARE MADE AND HOW
THAT WOULD WORK.
THAT IT IS NOT NEWS TO ANYBODY.
AND APPLYING FOR JUDICIAL
POSITIONS, ONE OF THE KEY
FACTORS IS UNCERTAINTY.
NO ONE EVER KNOWS HOW THE
PROCESS WILL TURN OUT.
PEOPLE THAT WAIT FOR CERTAINTY
OR I HIGHER DEGREE OF CERTAINTY
IN THE PROCESS ARE GOING TO BE
WAITING FOR GODOT.
THIS WAS A KNOWN UNCERTAINTY.
I STRUGGLING TO UNDERSTAND WHY
PEOPLE ARE ENTITLED TO A HIGHER
LEVEL OF CERTAINTY.
>> I'M NOT SAYING PEOPLE ARE
ENTITLED, WHAT IS FAIR IS FAIR
AND KNOWING WHO WILL MAKE THE
SELECTION IS IMPORTANT.
>> YOU ARE NOT SAYING THEY ARE
ENTITLED TO IT?
I DON'T UNDERSTAND.
YOU ARE ASKING WE REQUIRE
SOMETHING, IF THEY ARE NOT
ENTITLED TO IT.
>> THEY ARE ENTITLED TO HAVE THE
RULES FOLLOWED.
THEY ARE NOT ENTITLED TO A
CERTAIN DEADLINE.
MY ONLY POINT IS THIS
DELIBERATIVE BODY INSTEAD OF A
CHAIR ON HIS OWN, IF THEY SAT IN
A ROOM AND SAID WHETHER THEY
AGREE THAT THAT IS UNREASONABLE
AND EVERYBODY SHOULD HAVE TO
KNOW THAT OR THEY SAID IT IS NOT
UNREASONABLE ESPECIALLY FOR A
PRIVATE LAWYER WHO THEY FILE AN
APPLICATION, THEIR BOSS KNOWS
THEY ARE LOOKING FOR ANOTHER
JOB, THEIR CLIENTS KNOW ABOUT
THE LAWYER, NEW CLIENTS MAY
NEVER HIRE THEM.
>> JON S. MILLS, I WOULD LIKE TO
ASK YOU, I DON'T CARE WHY YOU
DID NOT DO A SPECIFIC THING AT A
SPECIFIC TIME, BUT I'M VERY
INTERESTED IN WHAT THIS COURT
SHOULD BE DOING ABOUT WHETHER
YOU OPEN UP THE PROCEDURE, WHEN
THE DEADLINES GOT TO BE SO WOULD
YOU PLEASE GIVE ME YOUR BEST
ARGUMENT ABOUT WHAT WE SHOULD BE
DOING?
WHAT SHOULD THE JNC BE DOING
FROM THIS POINT FORWARD?
>> TWO THINGS THAT ARE CLEAR,
YOU SHOULD SAY THE APPLICATION
DEADLINE WAS INVALID AND THEY
MUST FOLLOW A DEADLINE THAT
COMPLIES WITH THEIR POOLS.
AND SECOND --
>> THE APPLICATION DEADLINE
ACCORDING TO THEIR RULES, TELL
ME SPECIFICALLY.
>> THAT APPLICATION DEADLINE CAN
BE NO EARLIER THAN JANUARY 8TH.
IF THEY CHANGE THEIR RULES IT
COULD BE EARLIER.
THE LAST THING I'M ASKING FOR IS
EXTRAORDINARY, I RECOGNIZE IT IS
SIGNIFICANT AND USE YOUR POWER
TO MAKE THOSE REMEDIES
MEANINGFUL, PROHIBIT THEM FROM
CHANGING THE RULES OF THE GAME,
AND OTHER GAMESMANSHIP.
>> WHAT IS THE STANDARD FOR AN
EXTRAORDINARY WRIT?
>> WHETHER THE STATUS QUO NEEDS
TO BE HELD IN PLACE SO SOMETHING
THE COURT HAS JURISDICTION TO DO
CAN BE MEANINGFUL.
IT IS NOT AN INDEPENDENT BASIS.
>> WHAT IS THE STANDARD?
>> IT IS WHETHER AN ACTION AS WE
NOW KNOW HAS BEEN TAKEN, AN
OFFICIAL ACTION IS WITHIN THE
ACTOR'S AUTHORITY.
>> THESE ARE DISCRETIONARY?
>> YES THEY ARE.
>> SLIGHTLY INTO YOUR REBUTTAL
TIME, YOU MAY PROCEED OR
RESERVE.
>> LET ME MAKE SURE I HAVE GOT
EVERYTHING I NEED TO.
I HAVEN'T TALKED A LOT ABOUT THE
TRAINING MATERIALS.
WITH TIME PERMITTED WE WILL RELY
ON OUR BRIEFS BUT THESE ARE
IMPORTANT TO US.
THEY ARE NOT COMPLYING WITH
THEIR RULES, THEIR OWN TRAINING
MATERIALS SHOW THEY ARE DOING
IDEOLOGICAL VETTING, THAT IS NOT
APPROPRIATE.
IT IS AGAINST THE RULES, THEY
ARE NOT SUPPOSED TO DO THAT.
THAT IS WHY WE NEED TO FREEZE
THIS.
THE COMMISSION THAT CONSIDERS
THESE TO THE EXTENT IT IS OKAY
TO ACCEPT INPUT FROM THE
GOVERNOR --
>> THE BASIS FOR THAT ARGUMENT
THAT THIS WAS A PARTISAN TAINTED
PROCEDURE WAS THERE WAS A VIDEO
IN WHICH THE GOVERNOR ADDRESSED
THE JNC AND SAID WHAT HE WAS
LOOKING FOR BUT YOU DIDN'T HAVE
ANY STATEMENTS THAT WERE MADE
THAT WOULD SUPPORT THAT.
IT WAS YESTERDAY YOU FILE THE
TRANSCRIPT, VERY SHORT STATEMENT
FROM THE GOVERNOR THAT SAYS HE'S
LOOKING FOR HIGH-QUALITY PEOPLE
AND FROM THE GENERAL COUNSEL THE
GOVERNOR BELIEVES MANY QUALITIES
MAKE A GOOD JUDGE, EXPERIENCE
DIVERSITY, AND HE TALKS ABOUT
THEM COMMITTED TO THE RULE OF
LAW.
>> THINGS THEY AGREE IS
APPROPRIATE TO ALL JUDGES.
THE NEW GOVERNOR WHO IS ELECTED
SHOULD AMPLIFY IF THEY WISH.
IT IS IMPORTANT THE JUDICIARY
REFLECT THE RACIAL AND GENDER
BACKGROUND OF OUR CITIZENRY.
FOR EIGHT YEARS WE'VE NOT HAD A
SINGLE AFRICAN-AMERICAN
APPOINTED TO AN APPELLATE BENCH.
IT IS IMPORTANT TO ME THESE
REFLECT OUR POPULATION.
I DON'T WANT ANYBODY WHO'S NOT
GOING TO FOLLOW THE LAW, BUT
PROVIDE ME AS GOVERNOR CRIST DID
TO HAVE THAT INPUT.
HE CAN'T FORCE THEM TO DO THAT
BUT SHOULD HAVE THAT
CONVERSATION, PLEASE DON'T BE
ASKING THESE QUESTIONS WHEN YOU
ASK ABOUT IDEOLOGY.
THAT MAKES ME NERVOUS BECAUSE
THAT IS MY JOB TO DETERMINE THE
RIGHT IDEOLOGY.
>> WHAT JUSTICE LAWSON JUST READ
WASN'T ABOUT IDEOLOGY.
>> IT IS NOT OVERTLY ABOUT
IDEOLOGY, MOST OF THE BAR AND
JUDICIARY REQUIRE SOMEONE LIKE
GOVERNOR SCOTT SAID SOMEONE WILL
FOLLOW THE LAW WHEN HE SAYS YOU,
JUSTICES, THIS COURT, HAVE NOT
FOLLOWED THE LAW.
>> THIS IS SO SPECULATIVE.
WHAT WAS SAID THAT WAS IMPROPER?
GIVE ME THE WORDS.
>> NOTHING, NOT ONE THING.
>> WHAT IS THIS ARGUMENT ABOUT?
>> IT IS ABOUT THE NEW GOVERNOR
SHOULD BE ABLE TO --
>> THAT IS NOT AN ARGUMENT YOU
EVER MADE.
THE ONLY ARGUMENT YOU MADE WAS
THINGS WERE SAID TO THIS JNC
THAT WERE PARTISAN AND IMPROPER
AND WE SHOULD STOP THE PROCESS
BECAUSE IT IS INFECTED WITH THIS
PARTISANSHIP AND WHAT YOU
POINTED TO WAS WHAT I JUST READ.
>> I POINTED TO MORE THAN THAT.
PUBLIC STATEMENTS, THE
VIEWPOINT, YOU MIGHT DISAGREE
WITH IT.
MANY PEOPLE IN THE STATE AND
THIS BAR AND ON THIS JUDICIARY
BELIEVE THIS JNC IS
IDEOLOGICALLY VETTING, WE HAVE
OBJECTIVE EVIDENCE THAT THEY
ARE.
AND THE NEW GOVERNMENT ENTITLED
TO SAY DON'T DO THAT AT ALL OR
IS SOMETHING PERMISSIBLE TO
SHARE WITH THEIR IDEOLOGY?
THAT IS ALL.
THE SECOND THIS LAST FORM OF
RELEASES EXTRAORDINARY.
>> AS A MATTER OF DISCRETION
GIVEN ALLEGATIONS OF YOUR
PETITION AND WHAT YOU ARE SAYING
NOW, WOULDN'T IT MAKE MORE SENSE
TO LET THE NEW GOVERNOR FILE
SOMETHING, INSTEAD OF ACTING,
SPECULATING --
>> BEST WAY TO DO THAT IS TO
STAY EVERYTHING TO DO THAT.
>> THERE HAS NOT BEEN ELECTION
CERTIFIED AND ONCE THEY ARE
CERTIFIED IT APPEARS IT WILL BE
MISTER DESANTIS AND IF GOVERNOR
ELECT DESANTIS IS MADE GOVERNOR
ELECT HE CAN INTERVENE.
WE ARE HERE TO VINDICATE THE
PEOPLE, THE VOTERS, WE KNOW THE
VOTERS VOTED FOR ONE OF THESE
TWO MEN, TO HAVE HIS FULL
AUTHORITY, HE IS ENTITLED TO
HAVE THAT AUTHORITY SO IF YOU
DON'T WANT TO STAY UNTIL
JANUARY 8TH YOU MAKE AN
EXCELLENT POINT.
AND WILL JANUARY 8TH OR UNTIL
THE GOVERNOR ELECT SAYS PLEASE
LET THIS BEGIN, HAVE SOME
OPPORTUNITY TO PARTICIPATE IN
THE PROCESS.
WE DON'T WANT TO CREATE PROBLEMS
WITH THE COURT.
IT HAS BEEN DIFFICULT TO DRAFT
THESE ARGUMENTS IN THE MOST
RESPECTFUL WAY POSSIBLE.
WE BELIEVE THIS IS IDEOLOGICALLY
VETTING.
I HOPE THEY AREN'T.
MAYBE WE ARE WRONG BUT PUBLIC
PERCEPTION SHOULD MATTER.
IT SHOULD MATTER WHEN THE STAKES
ARE THIS HIGH.
THE CLEANEST PROCESS.
IF THEY SAY WE ARE GOING TO
REOPEN PEOPLE CAN APPLY NOW THAT
THE ELECTION IS OVER WE WILL
CONSIDER THOSE, LARGELY THIS
BECOMES THAT.
THE MOST IMPORTANT THINGS YOU
CAN DO TODAY THAT I DON'T THINK
SHOULD BE CONTROVERSIAL ARE TO
SAY THEY CAN'T NOMINATED UNTIL
JANUARY 8TH AND UNLESS THEY
VALIDLY CHANGE THE RULES AND
HAVE A MAJORITY VOTE, THEY HAVE
TO ACCEPT APPLICATIONS
JANUARY 8TH.
THEY HAVE TO DISREGARD
APPLICATIONS THAT HAVE BEEN
RECEIVED, A LOT OF WORK HAS BEEN
DONE.
I SEE NO REASON TO IMPOSE
UNFAIRNESS ON THE APPLICANTS.
MORON COMMISSION FOR THE WORK
THAT IS DONE.
THOSE TWO THINGS HAVE BEEN
CLEAR.
THE GAMESMANSHIP THAT CONTINUE
TO SAY THE GOAL IS TO LET
GOVERNOR SCOTT PARTICIPATE IN
THE PROCESS.
HE HAS NO SUCH RULE, YOU SHOULD
STOP IT.
>> UNLESS YOU WANT.
>> CAN I NEGOTIATE FOR TIME.
>> ON BEHALF OF THE JUDICIAL
NOMINATING COMMISSION, AND ON
BEHALF OF ITS CHAIR, JASON
UNDER, I WILL RESERVE A FEW
MINUTES ON BEHALF OF THE
GOVERNOR.
AS TO GOVERNOR SCOTT, THE COURT
HAS DETERMINED THE ISSUES IN ITS
ORDER.
I BELIEVE AS TO THE COMMISSION
THEY HAVE PROVIDED NO BASIS FOR
THE EXTRAORDINARILY RELIEF THEY
ARE REQUESTING.
>> DO YOU AGREE WITH MISTER
MILLS THAT NOMINATION IS TIED TO
CERTIFICATION.
EVEN THOUGH IT OUR ORDER WE SAID
THEY CAN'T BE CERTIFIED UNTIL
THE NEW GOVERNOR ASSUMES OFFICE.
IF YOU LOOK AT THE LANGUAGE OF
ARTICLE 5 SECTION 11 SEE, IT
SEEMS THOSE NOMINATIONS,
WHATEVER THAT MEANS, THE NAMES,
THE 18 NAMES OR WHATEVER IT WILL
BE.
>> HOW I INTERPRET THE ORDER IN
THE CONSTITUTION IS THE
COMMISSION CAN CERTIFY IS
NOMINATION BEFORE JANUARY 8TH.
BUT THE 60 DAY PERIOD THE
GOVERNOR HAS IN ORDER TO APPOINT
DOESN'T BEGIN UNTIL THAT
GOVERNOR TAKES OFFICER
REGARDLESS WHEN THE COMMISSION
CERTIFIES, THE GOVERNOR WILL
HAVE 60 DAYS FROM JANUARY 8TH.
>> IF YOU DON'T AGREE WITH THE
ARTICLE 5 SECTION 11 SEE DOESN'T
ALLOW NOMINATIONS TO BE MADE
UNTIL 30 DAYS, WITHIN 30 DAYS
MEANING AFTER THE OCCURRENCE OF
THE VACANCIES.
>> DOESN'T SAY AFTER.
>> SO LET ME --
>> THAT IS WHAT IT IS ABOUT.
>> ONE OTHER THING AND PLEASE
ADDRESS THAT.
THE DEADLINE ISSUE.
THE DAY AFTER THE LETTER,
WHETHER IT WAS THE CHAIRMAN SET
THE DEADLINE OF OCTOBER 8, '30
DAYS BEFORE THE DEADLINE.
HE WOULD HAVE 30 DAYS TO MAKE
THE NOMINATIONS UNDER THAT
LETTER.
WITH THE FACT THAT GOVERNOR
SCOTT DID NOT HAVE THE AUTHORITY
TO SET THAT DEADLINE.
WHAT IS THE POSITION OF WHAT THE
JNC CAN DO ACTING ON ITS OWN
WITHOUT DIRECTION FROM THE
GOVERNOR WHO HAS AUTHORITY TO
APPOINT?
>> YOU WANT ME TO ANSWER THIS
ONE?
LET ME GET TO THE FIRST
QUESTION, THE FINAL
CONSTITUTIONAL LANGUAGE, THE
CONSTITUTION PROVIDES THE
NOMINATION SHALL BE MADE WITHIN
30 DAYS OF THE OCCURRENCE OF THE
VACANCY.
THIS CAN BE INTERPRETED AS THIS
COURT SAID A FEW TIMES IN BARCO
VERSUS SCOREBOARD INTERPRETING
THE TERM WITHIN INTERPRETING 1.5
WHICH REQUIRED ATTORNEYS FEES
AND COSTS TO BE FILED WITHIN 30
DAYS OF THE JUDGMENT AND THE
COURT IN INTERPRETING THE TERM
WITHIN LOOKED BEHIND THE PURPOSE
OF THE RULE AND THE WILL HAD
BEEN CHANGED WHERE BEFORE IT HAD
SET A DEADLINE OF A REASONABLE
TIME, AND SOME PEOPLE WERE
MISSING A DEADLINE THEY DIDN'T
KNOW EXISTED BECAUSE REASONABLE
TIME CANNOT BE DETERMINED.
THE COURT SAID IN THE CONTEXT OF
THIS RULE, NO LATER THAN 30 DAYS
YOU CAN FILE BEFORE JUDGMENT BUT
YOU DON'T HAVE TO WAIT UNTIL IT
IS FILED TO FILE A MOTION FOR
ATTORNEYS FEES.
INTERPRETING THAT IS EXPANSIVE
IN THAT CONTEXT.
SIMILARLY IT IS CITED, ANOTHER
SUPREME COURT OPINION REGARDING
A TAX ASSESSMENT AND WHEN YOU
FILE TO CHALLENGE A TAX
ASSESSMENT IN THE STATUTE IN 60
DAYS WHEN THE ASSESSMENT IS
FINAL, AND FILED BEFORE THE TAX
ASSESSMENT BECAME FINAL IN THE
COURSE SAID NO.
WE WANT TO GIVE THEM AS MUCH
TIME AS POSSIBLE.
IF THEY FILED IT BEFORE AS LONG
AS THEY DON'T FILE IT AFTER 60
DAYS HAS RUN ON THE BACK END,
THEY FILE IT ON THE FRONT END.
>> THE LANGUAGE WAS WITHIN 30
DAYS AFTER FILING, CORRECT?
THE COURT STILL SAID WE LOOK AT
THE PLANE MEANING, COULD BE READ
SEVERAL DIFFERENT WAYS, THAT IS
WHAT MAKES SENSE IN CONTEXT
HERE.
BARCO ANSWERS THE QUESTION, THEY
CAN DO IT BEFOREHAND.
>> IT MAKES PERFECT SENSE IN
THIS CONTEXT, BECAUSE THIS COURT
IN 1992 IN THE ADVISORY OPINION
SAID VACANCY SHALL BE LIMITED TO
THE EXTENT POSSIBLE.
I WOULD LIKE TO QUOTE WHAT THE
COURT SAID.
WHEN JNCs HAVE BEEN FOLLOWING
FOR THE LAST 26 YEARS AND
VACANCIES IN OFFICE ARE TO BE
AVOIDED WHENEVER POSSIBLE.
WE ARE CONFIDENT THE FRAMERS OF
ARTICLE 5 INTENDED THE
NOMINATING AND APPOINTMENT
PROCESS WOULD BE CONDUCTED IN
SUCH A WAY AS TO AVOID MINIMIZE
THE TIME THEY SEES EXISTED.
JNCs HAVE BEEN FOLLOWING THIS
AND THE PRACTICE UNIFORMLY FOR
THE LAST 20 PLUS YEARS HAS BEEN
THAT JNCs THE PROCESS AND MAKE
THE NOMINATIONS BEFORE THE
JUSTICE OR JUDGE LEAVES OFFICE.
THERE ARE NO EXCEPTIONS TO THAT
RULE FOR THE JUSTICES ON THIS
COURT OR JUSTICE, JUDGES ON THE
COURT.
>> IT HASN'T BEEN CHALLENGED.
JUST GOING BACK, THE ADVISORY
OPINION WHERE YOU WROTE YOUR
CONCURRENCE.
GOVERNOR BUSH REQUESTING THE
ADVISORY OPINION, THE
CONSTITUTIONAL VACANCY IS THE
STARTING POINT, WOULD BE 120 DAY
VACANCY.
ALL WE ARE TALKING ABOUT HERE,
YOU AND I, THE NOMINATION
PROCESS IS TERMINUS WITH THE
CERTIFICATION.
I DON'T THINK THERE HAS EVER
BEEN A CHALLENGE BECAUSE IT
HASN'T BEEN AN ISSUE.
AND SOMETHING DIFFERENT WE NEVER
HAD BEFORE WHICH IS A CHALLENGE
AND ALSO THE JNCs AT THE PRESENT
TIME ARE MARKEDLY DIFFERENT FROM
WHAT THEY WERE IN THE YEAR
BEFORE JUSTICE QUINCE WAS
APPOINTED BECAUSE ALL OF THEM
ARE ESSENTIALLY APPOINTEES OF
THIS CURRENT GOVERNOR.
THAT CHANGED THE NATURE OF THE
JNC.
TO SAY IT HAS BEEN DONE THAT WAY
DOESN'T MEAN THAT IS
CONSTITUTIONALLY THE CORRECT
INTERPRETATION.
IT HAS BEEN ASSUMED IN THAT 2006
OPINION, WOULD HAVE A START AT
THE POINT OF THE VACANCY.
WOULD YOU AGREE WITH THAT?
THE LETTER TO THE GOVERNOR.
>> I DON'T THINK IT DOES HAVE TO
START AT THE POINT OF A VACANCY.
>> THE GOVERNOR IN THE LETTER IN
WHICH THE ADVISORY OPINION IS
ISSUED ASSUME THE VACANCY WOULD
START THE PROCESS.
>> THAT REGARDED JUDGE IRVIN,
AFTER THE COURT OPINION, AND THE
JUDICIAL NOMINATING COMMISSION
SENT OUT APPLICATIONS AND
NOMINATED BEFORE JUDGE IRVIN
LEFT OFFICE WOULD EVEN HAVING
THAT OPINION THE JC INTERPRETED
IT AS NOMINATING BEFORE THE
VACANCY OCCURRED I THINK IN
JANUARY OR WHENEVER IT WAS.
THEY NOMINATED BEFORE THEN.
>> RAOUL G. CANTERO, THIS IS
TROUBLING TO ME.
IF IT IS NOT COUPLED WITH THE
CONCEPT OF VACANCY, A GOVERNOR
OR JNC, EVERYONE KNEW 6 YEARS
AGO THE AGE OF THE JUSTICES.
THEY COULD HAVE ACTED THAT MANY
YEARS AGO.
ACCORDING TO THIS ARGUMENT IT
HAS NOTHING TO DO WITH THE
TIMING OF A VACANCY.
>> THAT HAS NEVER HAPPENED IN
THE HISTORY --
>> I DIDN'T SAY -- WE ARE
PLAYING WORD GAMES THIS MORNING.
I'M ASKING YOU WITH THE THEORY
BEING ADVANCED IF IT IS NOT TIED
TO THE VACANCY ITSELF, THEY CAN
ACT AT ANY TIME INCLUDING, IT IS
KNOWN IT MAY BE LEAVING, 6 YEARS
AGO.
>> THAT WOULD BE UNREASONABLE
AND IT WOULD BE AVAILABLE AT
THAT POINT BUT THAT HAS NEVER
OCCURRED.
>> NOTHING WOULD STOP ACCORDING
TO THE ARGUMENT BEING MADE.
IF IT IS NOT TIED TO VACANCY,
THE LEAVING OF OFFICE, IT CAN BE
DONE.
>> WHEN A VACANCY OCCURS WE KNOW
OF VACANCY IS GOING TO OCCUR
IMMINENTLY, IT DOESN'T --
>> WHERE DID IT COME FROM?
THERE IS NO IMMINENTLY IN THERE.
YOU ARE ARGUING ON ONE SIDE THAT
THERE IS NO RESTRICTION AT ALL.
>> YOU HAVE TO INTERPRET THOSE
WORDS REASONABLY.
YOUR INTERPRETING THE
CONSTITUTION, YOU HAVE TO
INTERPRET THEM IN A WAY THAT
WILL COMPLY WITH THE
CONSTITUTION, NOT IN A WAY --
>> THEY COMPLY WITH THE
CONSTITUTION BECAUSE ACCORDING
TO THE ARGUMENT I AM HEARING THE
PROCESS IS NOT TIED TO VACANCY.
>> IT IS TIED TO A VACANCY BUT
IF THE PROCESS STARTED COULDN'T
EVEN START UNTIL JANUARY, THEY
ARE MAXIMIZING THE TIME OF THE
VACANCY BECAUSE THE VACANCY,
THEY COULDN'T EVEN SEND A CALL
FOR APPLICATIONS.
>> I UNDERSTAND THAT.
I'M ASKING ABOUT THE ARGUMENT
THAT IT IS NOT TIED TO VACANCY.
WHERE'S THE POINT THEY CANNOT
OPERATE?
ACCORDING TO THE ARGUMENT YOU
ARE MAKING THEY COULD ACT AT ANY
TIME ON THEIR OWN MOTION, THEIR
OWN ACTIVITY.
>> WITHIN 30 DAYS OF OCCURRENCE
OF A VACANCY COULD BE
INTERPRETED 30 DAYS BEFORE, 30
DAYS AFTER UNLESS GRANTED BY THE
GOVERNOR ANOTHER 30 DAYS WHICH
HAPPENED IN THIS CASE.
GOING 60 DAYS BACK, 60 DAYS
FORWARD, NOT BACK AS LONG AS YOU
ONES, NOT INFINITELY BACK BUT 60
DAYS.
THAT IS AN INTERPRETATION THAT
COMPLIES WITH THE PLAIN LANGUAGE
OF THE CONSTITUTION EXCEPT THE
GOVERNOR GIVES AN EXTENSION 60
DAYS BEFORE OR AFTER.
>> YOU NEED TO COMPLY WITH YOUR
OWN RULES, THE APPLICATION
PROCESS SHOULD NOT BE COMPLETE
UNDER HIS ARGUMENT, BEGIN UNTIL
JANUARY?
>> ONE A VACANCY OCCURS THE JNC
SHELL CALL FOR A NOMINATION.
ALL JNCs HAVE THE SAME LANGUAGE,
ALL 5 HAVE THAT LANGUAGE, THEY
INTERPRETED THE LANGUAGE IN THE
RULES AS ONE OF VACANCY IS
IMMINENT SO THEY CAN START THE
PROCESS AND COMPLY WITH THE GOAL
OF THE CONSTITUTION TO MINIMIZE
THE TIMING OF A VACANCY.
IT WORKED PRETTY WELL, NOBODY
COMPLAINED IT HASN'T WORKED FOR
THE LAST 20 YEARS.
I THINK THIS IS MUCH ADO ABOUT
NOTHING.
I'M TRYING TO FIGURE OUT WHAT WE
DID WRONG.
>> MY QUESTION ABOUT
NOMINATIONS.
IN LIGHT OF WHAT WE SAID, THAT
THE GOVERNOR HAS 60 DAYS FROM
WHEN THE NOMINATIONS HAVE BEEN
CERTIFIED THEIR CERTIFIED BY
JUDICIAL NOMINATING COMMISSION,
CORRECT?
>> YES.
>> IF YOU READ THAT IN
CONJUNCTION WITH THE FIRST
SENTENCE I DON'T KNOW HOW YOU
CAN SAY NOMINATION WHICH IS THE
NAME GO OUT ANY EARLIER THAN
WHEN THE NEW GOVERNOR TAKES
OFFICE AND MOST RESPECTFULLY.
LET'S GO TO THE SECOND POINT CAN
THEY START EARLIER, TO FOLLOW UP
ON WHAT JUSTICE LEWIS ASKED, HAS
IT EVER BEEN THE CASE THAT THE
JNC HAS ACTED ON ITS OWN AS
OPPOSED TO DIRECTION FROM THE
GOVERNOR IN OFFICE TO START THE
PROCESS?
>> I DON'T KNOW THE ANSWER TO
THAT QUESTION.
I DON'T KNOW IF THAT HAS EVER
HAPPENED.
I WAS A PRECIPITATING EVENT.
I WILL SAY THAT.
IN THE VAST MAJORITY, THEY USE
THE GOVERNOR'S LETTER IS A
PRECIPITATING EVENT, NOT THAT
THEY HAVE TO DO IT AND -- THEY
CAN ALWAYS SAY NO.
>> THIS IS THE GOVERNOR'S JNC.
>> THE NEXT GOVERNOR FOR THREE
YEARS, IS THAT HOW LONG WE WANT
TO WAIT UNTIL THE GOVERNOR PUT
HIS OWN JNC IN.
>> THE DEADLINE, I'M MORE
CONCERNED WITH WHAT IS BEING
ASKED FOR THAT BECAUSE THE
DEADLINE WAS SET BASED ON A
LETTER BY GOVERNOR SCOTT WHO DID
NOT HAVE THE AUTHORITY TO MAKE
-- TO SEND THAT LETTER, NO
ASSERTIONS ON GOVERNOR SCOTT IN
ACCORDANCE WITH PAST TRADITION
THAT THE PROCESS SHOULD NOT
NECESSARILY STOP BUT SHOULD BE
REOPENED FOR ANY ADDITIONAL
NOMINATIONS.
>> DON'T THINK THERE HAS BEEN
ANY ARGUMENT, NOTHING IN THE
CONSTITUTION WOULD PROHIBIT JNC
FROM SENDING OUT A LETTER EVEN
WITHOUT A LETTER FROM THE
GOVERNOR.
HISTORICALLY AND TRADITIONALLY
THAT HAS BEEN A PRECIPITATING
EVENT BUT IT IS NOT LEGALLY
REQUIRED.
THEY CAN TO HONOR AND WITH THE
GOVERNOR SCOTT HAD THE AUTHORITY
OR NOT.
IT IS TOTALLY IRRELEVANT BECAUSE
JNC CAN DO IT ON THEIR OWN.
>> IS THERE ANYTHING IN THE
RULES THAT PROHIBIT JNC NOW?
IF IT WANTED TO OPEN UP THE CASE
AND EXTEND THE DEADLINE. GO?
>> I DON'T THINK SO.
THEY CAN DO THAT.
MY BIGGEST PROBLEM IS THE LEAGUE
OF WOMEN VOTERS, NOBODY EVER
ASKED THE JNC TO EXTEND THE
DEADLINE TO EXPEND UNTIL
SEPTEMBER 20, 2018, WHEN THEY
FILE THIS POSITION.
WE NEVER GOT A CALL, NOBODY
CALLED THE CHAIR, NO LETTER
SAYING PLEASE EXTEND THE
APPLICATION DEADLINE, ASK FOR
MORE APPLICATIONS, THIS
UNCERTAINTY, THEY WENT STRAIGHT
TO LITIGATION, PERHAPS SOMETHING
COULD HAVE BEEN DONE, MAYBE NOT
BUT WE WILL NEVER KNOW.
>> WHAT WOULD BE THE DOWNSIDE?
SOMETHING LIKE THAT, MORE PEOPLE
APPLY.
>> WE HAVE 59 APPLICATIONS BUT
DESPITE WITH THE AMIGA SUGGESTS
THERE ARE SEVERAL
AFRICAN-AMERICANS, HISPANICS,
WOMEN, ASIANS WHO HAVE APPLIED,
WE HAVE MORE APPLICATIONS THAN
WE EVER RECEIVED, AND MORE
APPLICATIONS THAN EVER, NO
EVIDENCE WHATSOEVER THAT WE
WOULD GET MORE APPLICATIONS.
WHEN JUSTICE QUINCE WAS
APPOINTED THEY CALLED FOR MORE
APPLICATIONS.
NUMBER FORTHCOMING.
NO EVIDENCE THEY WOULD DO ANY
GOOD AND WOULD DO BAD BECAUSE IT
WOULD DELAY THE PROGRESS.
>> THERE IS NO EVIDENCE OTHER
PEOPLE WOULD NOT APPLY.
THIS WAS AN ARTIFICIAL DEADLINE,
WHY NOT?
THAT WAS THE QUESTION.
WHAT IS THE DOWNSIDE OF OPENING
THE PROCESS, AT LEAST ANOTHER 30
DAYS SO EVERYONE KNOWS YOU HAVE
AN OPPORTUNITY, THEY KNEW AT
THAT POINT BUT THE LANDSCAPES
ARE CHANGED WITH THE ISSUANCE OF
THIS ORDER ON OCTOBER 15TH SO
WHAT IS THE DOWNSIDE TO DOING
THAT?
IF THE CERTIFICATION CAN'T BE
MADE UNTIL A NEW GOVERNOR'S
SWORN AND WHAT IS THE DOWNSIDE?
WE ARE HERE NOVEMBER 8TH, THAT
IS GOING TO TAKE PLACE IN
JANUARY SO WHAT IS THE DOWNSIDE?
>> WE CAN NOMINATE NAMES BEFORE
JANUARY 8TH, THAT WILL GIVE TIME
TO VET.
>> LET'S ASSUME ON JANUARY 8TH,
THE JANUARY COMMISSION UNTIL
JANUARY 8TH, WHAT IS THE
DOWNSIDE?
TWO MONTHS FROM NOW.
>> I DON'T KNOW THAT THERE IS A
DOWNSIDE EXCEPT THE THANKSGIVING
HOLIDAYS AND CHRISTMAS HOLIDAYS
ARE COMING UP IN NOVEMBER AND
DECEMBER AND IT IS A HARD ENOUGH
PROCESS TO GET EVERYONE TOGETHER
FOR THESE FOUR.
>> I AM SURE PEOPLE WILL MAKE --
>> YOU SAID IF THE LEAGUE OF
WOMEN VOTERS HAD ASKED NICELY.
>> BEFORE THEY FILED LITIGATION.
>> ALL THE FLORIDA ASSOCIATION
FOR WOMEN LAWYERS, THE NAACP,
BLACK LAWYER ORGANIZATIONS ARE
ASKING THIS COURT BUT ALSO I'M
ASSUMING ASKING THE JNC, SEEMS
TO ME IF WE ARE REALLY TRYING TO
ACT IN A WAY THAT IS JUST WE
FORGOT SOMETHING THAT NEVER
HAPPENED BEFORE WHICH IS THREE
JUSTICES OF THIS COURT WILL BE
RETIRING AT THE SAME TIME BY
MANDATORY RETIREMENT, THE SECOND
AND THIRD WOMAN ON THE COURT ARE
RETIRING AND THE ONLY
AFRICAN-AMERICAN ON THIS COURT
IS RETIRING.
GIVEN THAT TO SAY THAT WITH
THREE VACANCIES YOU HAD 59
APPLICATIONS AND THAT IS A
RECORD NUMBER SEEMS TO BE NOT
TAKING IN THE REALITY OF THE
FACT THAT THERE ARE ONLY 6
AFRICAN-AMERICANS THAT APPLIED
AND 11 WOMEN AND I WOULD JUST
WHENEVER THIS COURT DOES, YOU
HAVE ALWAYS ACTED HONORABLY TO
DO A GREAT DEAL BY REQUESTING
JNC TO DO WHAT IS REQUESTED TO
OPEN IT UP FOR 30 DAYS, DID THAT
TODAY, IT WOULD PERHAPS STOP A
GREAT DEAL OF THIS CONTINUING
CONTROVERSY.
I RESPECTFULLY SUGGEST THE FACT
THAT THERE ARE 59 APPLICATIONS
AND SUCH HARD WORK AND YOU HAVE
TO DO MORE WORK AND THERE IS A
VACANCY ON THIS COURT FOR 30
DAYS OR 60 DAYS THE COURT WILL
DEAL WITH IT, TALKING ABOUT THE
NEXT 40 YEARS ON THE COURT IF
YOU NOMINATE A YOUNG ENOUGH
JUSTICE.
IT IS A MONUMENTAL TIME IN OUR
STATE.
>> THE QUESTION BEFORE THE COURT
IS WHETHER THE DECISION TO DO SO
OR NOT IS SO EXTRAORDINARY THAT
IT WARRANTS RELIEF FROM THE
COURT.
THAT IS WHAT WE ARE HERE TO TALK
ABOUT.
THAT REQUEST TO THE JNC IS
TOTALLY LEGITIMATE.
>> THE OCTOBER 8TH DEADLINE WAS
APPROPRIATELY SET BECAUSE IT WAS
BASED ON A DIRECTION FROM THE
GOVERNOR THAT WAS DECLARED
INVALID.
IN RESPONSE TO WHAT JUSTICE
LEWIS SAID, IT WAS A MONUMENTAL
TASK.
>> THE OUTSIDE DEADLINE, 60
DAYS, ONE OR THE OTHER.
THAT I DON'T THINK THAT SHOULD
BE A CONCERN FOR THE COURT AND
AS FAR AS THE AUTHORITY WHETHER
THE GOVERNOR HAD AUTHORITY TO DO
SO OR NOT THE JNC HAS AUTHORITY.
I'M RUNNING INTO TIME, I ASK YOU
TO DECLINE THE ISSUE FOR THE
COMMISSION.
>> WHAT I THINK IS A LIMITED
PURPOSE, RELIEF REQUESTED IN THE
SUPPLEMENT A PETITION AGAINST
GOVERNOR SCOTT BY PETITIONERS
HERE.
I WANTED TO TALK ABOUT SOMETHING
JUSTICE KENNEDY MENTIONED AT THE
BEGINNING OF THIS ARGUMENT THAT
THIS IS IN ALL LIKELIHOOD THE
LAST TIME THIS PRECISE ISSUE
WILL OCCUR AS A RESULT OF THE
ADOPTION OF AMENDMENT 6.
ABSENT AN UNPRECEDENTED
CIRCUMSTANCE SUCH AS FAILURE OF
VOTERS TO RETAIN A JUSTICE THE
SITUATION WILL NOT OCCUR AGAIN.
AS JUSTICE. HE --PARIENTE
MENTIONED IT WAS ALWAYS WORKED
OUT WITHOUT CONTROVERSY.
GOVERNOR ELECT DESANTIS AND
GOVERNOR SCOTT SAID THEY WOULD
DESIRE TO WORK SOMETHING OUT
WITHOUT LITIGATION.
>> IS THAT THE WAY THE STATE
OPERATE?
A COUPLE POLITICIANS GETTING
TOGETHER AND AGREEING WHAT THEY
WANT TO DO NO MATTER WHAT THE
CONSTITUTION SAYS?
IS THAT WHAT YOU ARE ARGUING?
>> IN THE CONTEXT OF A
DISCRETIONARY WRITTEN --
>> I'M TALKING ABOUT OUR
CONSTITUTION.
YOU SUGGEST WE SHOULD ALLOW A
COUPLE POLITICIANS TO GET
TOGETHER, AND THEY ON THEIR OWN
CAN DECIDE WHAT THEY WANT TO DO
NO MATTER WHAT THE CONSTITUTION
SAYS?
>> I'M NOT SUGGESTING THAT AT
ALL.
I'M SUGGESTING THE WAY INCOMING
AND OUTGOING GOVERNORS HAVE
RESULT THIS ISSUE HAS ALLOWED
FOR A PROCESS TO UNFOLD WITHOUT
ANY CONTROVERSY.
JUSTICE QUINCE'S APPOINTMENT WAS
MADE 20 YEARS AGO --
>> TAKE INTO CONSIDERATION THE
LAY OF THE LAND.
WE HAD A DIFFERENT JUDICIAL
NOMINATING COMMISSION PROCESS
AND TOTALLY DIFFERENT KIND OF
PROCESS TODAY.
AFTER THAT, EVERYTHING CHANGED
AND NOW WE HAVE A JUDICIAL
NOMINATING COMMISSION THAT IS
APPOINTED SOLELY BY ONE PERSON.
YOU HERE AND YOU READ ABOUT THIS
IS SUPPOSED TO BE A FAIR AND
IMPARTIAL PROCESS, TO BE
REALISTIC ABOUT THE SITUATION
HERE AND THEY MAY HAVE GOTTEN
TOGETHER THEN, A WHOLE DIFFERENT
LANDSCAPE.
>> JUSTICE QUINCE, THE
SUPPLEMENT A PETITION THE
PETITIONERS HAVE FILED HAS A LOT
OF ALLEGATIONS AND ASPERSIONS ON
MY CLIENT AND MEMBERS OF THE
JUDICIAL NOMINATING COMMISSION.
IN THE CONTEXT OF ORIGINAL
PROCEEDING BEFORE THIS COURT, WE
ARE NOT AFFORDED THE OPPORTUNITY
TO RESPOND TO THE ALLEGATIONS.
THEY INCLUDED A TRANSCRIPT OF
JNC TRAINING, BECAUSE I WOULD
ASK EACH OF YOU TO LOOK AT THE
TRAINING PROVIDED TO THE JNC
MEMBERS INCLUDING ABERDEEN, WHAT
HE THINKS IS IMPORTANT IN THE
PROCESS.
THE GOVERNOR WHAT'S JUDGES WHO
WILL SERVE WITH HUMILITY.
I DON'T THINK ANYTHING IS
CONTROVERSIAL IN THE PROCESS.
AS TO THE IMPORTANT OF DIVERSITY
IN THE APPOINTMENTS THIS IS THE
FIRST TIME IN HISTORY A SUPREME
COURT JNC MAKING APPOINTMENTS
WAS COMPRISED OF 5 WOMEN OUT OF
9 MEMBERS APPOINTED BY GOVERNOR
SCOTT, TWO MEMBERS OF RACIAL
MINORITY GROUPS ON THE SUPREME
COURT JNC.
AS TO THE IDEA THE GOVERNOR HAS
REJECTED JNC NOMINATIONS AS HE
IS ALLOWED TO DO UNDER THE
STATUTE, HE HASN'T DONE THIS ON
THE SUPREME COURT VACANCY.
ALL THE MEMBERS OF THE SUPREME
COURT JNC WERE APPOINTED OFF OF
LISTS SUBMITTED WITHOUT ANY
REJECTIONS TO THAT.
WITH THE GOVERNOR AND THE
GOVERNOR ELECT STATING, THE
ACTUAL CONCRETE AND
PARTICULARIZED INTEREST WITH THE
EXECUTIVE AUTHORITY WITH NEITHER
OF THEM RAISING AN ISSUE FOR
DISPUTE BEFORE THIS COURT, A
DISCRETIONARY WRITTEN THAT THERE
WOULD BE AMPLE ROOM TO DISCHARGE
JURISDICTION, AND SOME OTHER
GROUNDS TO ALLOW THE PROCESS TO
MOVE FORWARD.
>> I NEVER HEARD AN ANSWER.
HOW WOULD YOU HAVE A WARRANT TO
STOP NOMINATING JUSTICE LAWSON'S
SUCCESSORS?
WE HAVE TO BE CORRECT.
AS TO WHETHER THERE IS A GAP,
THE LONGEST GAP THAT COULD
POSSIBLY HAPPEN IS IF THEY GO
AHEAD AND DO WHAT THEY ARE ABOUT
TO DO AND MAKE THESE NOMINATIONS
AND ON JANUARY 8TH WHOEVER IS
GOVERNOR FOR THE FIRST TIME HAS
THAT AUTHORITY, THEY DIDN'T GET
TO DO ANYTHING.
WHAT ARE THEY GOING TO SAY?
GOVERNOR DESANTIS IS GOING TO
SAY IT, MAYBE NOT, IT IS UP TO
HIM, I REJECT THIS LIST AS PART
OF THE PROCESS --
>> THIS IDEA THAT THE GOVERNOR
CAN REJECT A LIST BECAUSE HE
WASN'T INVOLVED --
>> NOT BECAUSE OF THAT.
HE WOULD HAVE TO --
>> THE IDEA OF A TAINTED
PROCESS, THIS IS TOTALLY
SPECULATIVE, THIS POLITICAL
RHETORIC CAN BE VIEWED AS SUCH.
WHEN I ASK YOU WHAT WAS DONE
THAT WAS WRONG, TO NAME IT, YOU
CAN'T NAME IT.
>> YOUR HONOR, I THINK I NAMED
IT, IT IS SPELLED OUT IN A
REPLY.
IT IS A NUMBER OF THINGS.
>> TELL ME NOW.
>> THEY SET A DEADLINE AGAINST
THEIR RULES, REFUSED TO OPEN THE
PROCESS TO ALLOW BLACK AND WOMEN
AFRICANS WHO SAY THEY ARE GOING
TO APPLY, THEIR MEMBERSHIP,
FORGET THEIR MEMBERSHIP, THEIR
MEMBERSHIP SHOWS THEY ARE
PARTISANS WHICH RAISES OTHER
CIRCUMSTANCES THE SUSPICION THIS
MAY HAVE HAD DIFFICULTY PUTTING
ASIDE THEIR BIAS.
THEY SET THE DEADLINE BACKWARDS
FROM THE DEADLINE, PAGE 29 OF
TRAINING MATERIALS SAY FIND THE
DEADLINE FOR MAKING NOMINATIONS,
WORK YOUR APPLICATION BACKWARD.
THEY HAVE NOT HELD PUBLIC
MEETINGS TO CONDUCT THEIR
ACTIONS, THEIR CHAIR HAS
UNILATERALLY DECIDED ALL THESE
THINGS.
A NUMBER OF PROBLEMS HERE AND IT
IS NOT FOR ME TO PROVE.
>> ADDITIONAL TIME HAS EXPIRED.
30 SECONDS.
>> I WILL ASK YOU A QUESTION.
SOMETIMES THE LAW GETS SO WOUND
UP IN ITSELF, WE OVERLOOK
SOLVING PROBLEMS.
MISTER NORDBY TELLS US THIS
PROBLEM WILL BE RESOLVED WITH
WHOEVER IS ELECTED GOVERNOR,
LOOKS LIKE NOW.
THOSE TWO PEOPLE GETTING
TOGETHER WORKING THIS OUT SO IT
IS NOT A BIG DEAL IN THE FUTURE.
WE ARE JUST EXERCISING OUR JAWS
AND THAT IS WHAT THIS AMOUNTS
TO.
>> IT IS UP TO THE NEW GOVERNOR
IF HE WANTS INPUT FROM GOVERNOR
SCOTT OR ANYBODY ELSE THEY ARE
ENTITLED TO.
TO COMPLETE THE ANSWER TO THE
QUESTION YOU ARE RIGHT.
THERE IS SPECULATION HERE.
BEFORE HIM TO DETERMINE THAT IS
THE GOVERNOR ELECT WHO IS THE
SAME PERSON WITH POLITICAL
DISCRETION TO LOOK AT
CIRCUMSTANCES AND DECIDE WHETHER
IT IS TAINTED.
>> THE BEST ARGUMENT YOU MADE
FOR WHY WE SHOULD EXERCISE
DISCRETION TO ENTER A
DISCRETIONARY WRIT UNDER THE
CIRCUMSTANCES, IT COULD CAUSE
MORE DELAY IF THEY DIDN'T, THE
NEW GOVERNOR CAN DO ANYTHING IF
HE WANTS TO UNTIL HE TAKES
OFFICE AND THAT WOULD DELAY
THINGS MORE.
I DON'T UNDERSTAND THAT, GIVEN
THAT WE HAVE ENTERTAINED YOUR
PETITION IT SEEMS THE NEW
GOVERNOR IF HE WANTS TO TAKE
ACTION TO DO IT, THE GOVERNOR
ELECT TODAY OR TOMORROW, IS
THERE A BETTER REASON WHY WE
SHOULD EXERCISE DISCRETION TO
ISSUE A NEXT ORDINARY WRIT EVEN
IF WE THOUGHT IT WAS LEGALLY
APPROPRIATE RATHER THAN LETTING
THE NEW GOVERNOR ACT.
>> THAT ONLY GOES TO THE
QUESTION WHETHER YOU SHOULD STOP
THE PROCESS AND WHEN THERE'S A
GOVERNOR ELECT THEY COULD
INTERVENE TO SAY THEY DON'T WANT
THE PROCESS STOPPED OR PLEASE
KEEP IT STOPPED.
AND HEAR FROM THE PERSON WHO HAS
THAT AUTHORITY.
I THINK YOU SHOULD WAIT TO SEE
THAT.
THAT IS CONSTITUTIONAL RELIEF.
THE QUARTO RELIEF DOESN'T DEPEND
ON THAT.
IT IS SQUARELY FOR THIS COURT,
NO POLITICAL JUDGMENT.
>> YOUR ARGUMENT THAT THEY
SHOULD ADDRESS THOSE ISSUES
BECAUSE THEY ARE LIKELY TO
RECUR.
>> GOOD REASON TO EXERCISE
DISCRETION.
YOU SHOULD ANSWER THIS RIGHT NOW
SO IT ISN'T RESOLVED BY BACKROOM
DEALS BUT BY A COURT SO
EVERYBODY CAN KNOW WHAT THE
RULES ARE AND THEY WILL BE
FOLLOWED.
THANK YOU VERY MUCH.
>> WE THANK ALL THREE OF YOU FOR
YOUR ARGUMENTS.
