          Supreme Court of Florida
                                   ____________

                                   No. SC17-1122
                                   ____________

            LEAGUE OF WOMEN VOTERS OF FLORIDA, et al.,
                          Petitioners,

                                         vs.

                          RICK SCOTT, GOVERNOR,
                                 Respondent.

                                [December 14, 2017]

PER CURIAM.

      This case is before the Court on the petition of the League of Women Voters

of Florida (the League) for a writ of quo warranto. Because the issue presented is

not ripe for consideration, we dismiss the petition.

      The League asks this Court to issue a writ of quo warranto against Governor

Rick Scott prohibiting him from “filling any judicial vacancies on Florida’s

appellate courts that occur due to terms expiring in January 2019.” The League’s

basis for filing the petition is Governor Scott’s December 2016 announcement of

intent to appoint the replacements for three justices of this Court. However, use of

the writ to address prospective conduct is not appropriate.
      Quo warranto is used “to determine whether a state officer or agency has

improperly exercised a power or right derived from the State,” Fla. House of

Representatives v. Crist, 999 So. 2d 601, 607 (Fla. 2008) (emphasis added), and

the history of the extraordinary writ reflects that petitions for relief in quo warranto

are properly filed only after a public official has acted.1 In Swoope v. City of New

Smyrna, 125 So. 371 (Fla. 1929), we explained that a challenge to an individual’s

exercise of official authority

      will not be determined by bill in chancery, such a case being regarded
      as appropriately falling within the jurisdiction of the common law
      courts by proceedings in quo warranto. And since this remedy is
      applicable the moment an office or franchise is usurped, an injunction
      will not lie to prevent the usurpation, even though the respondent has
      not yet entered upon the office or assumed to exercise its functions.
      In such case the party aggrieved should wait until an actual usurpation
      has occurred, and then seek his remedy in quo warranto.

Id. at 372 (quoting MacDonald v. Rehrer, 22 Fla. 198, 205-06 (1886)) (emphasis

added); see also MacDonald, 22 Fla. at 206 (explaining that quo warranto is “to be



       1. We recognize that Crist contained language suggesting the writ could be
used to prohibit future conduct. See, e.g., 999 So. 2d at 607 (“The Governor
contends that this Court lacks jurisdiction because the House does not seek either
to remove him from office or to enjoin the future exercise of his authority. We
conclude, however, that these are not the only grounds for issuing such a writ.”).
However, the history of quo warranto as well as our precedent belie any suggestion
to this effect. In Crist, we explained that “petitions for the writ historically have
been filed after a public official has acted,” and the disputed act had already
occurred. Id. In that case, the Florida House of Representatives challenged the
execution by Governor Charles Crist of a compact with the Seminole Indian Tribe
of Florida. See id. at 603.


                                         -2-
invoked after entry into, or exercise of authority under [a public official’s]

appointment” (second emphasis added)). A party must wait until a government

official has acted before seeking relief pursuant to quo warranto because a

threatened exercise of power which is allegedly outside of that public official’s

authority may not ultimately occur. To address whether quo warranto relief is

warranted under such premature circumstances would amount to an impermissible

advisory opinion based upon hypothetical facts.

      We previously considered whether issuance of the writ was appropriate in

situations where the state officer or agency had already acted. For example, in

Whiley v. Scott, 79 So. 3d 702, 705 (Fla. 2011), we reviewed a completed action,

in that the challenged executive order had already been issued. The same is true of

State ex rel. Butterworth v. Kenny, 714 So. 2d 404, 406 (Fla. 1998), receded from

on other grounds by Darling v. State, 45 So. 3d 444 (Fla. 2010), where we

considered the authority of the Office of the Capital Collateral Regional Counsel

for the Northern and Southern Regions to represent death row inmates in civil

rights actions.2 Most recently, in Ayala v. Scott, 224 So. 3d 755, 756-57 (Fla.

2017), we held that quo warranto was an appropriate vehicle for the state attorney



       2. Although the United States District Court for the Northern District of
Florida issued summary judgment in favor of the State, see Kenny, 714 So. 2d at
406, the federal civil rights action had nonetheless been filed and we, therefore,
addressed a past action taken by a state agency.


                                         -3-
for the Ninth Judicial Circuit to challenge a series of executive orders that

reassigned the prosecution of a number of pending death-penalty eligible cases to

the state attorney of another judicial circuit.

      Although Governor Scott announced his intent to appoint the replacements

for three justices of this Court, clearly no appointments have been made. To use

quo warranto to review an action which is merely contemplated but not

consummated, as in the present case, would require this Court to depart from the

historical application of the writ. This we decline to do. Until some action is taken

by the Governor, the matter the League seeks to have resolved is not ripe, and this

Court lacks jurisdiction to determine whether quo warranto relief is warranted.

      Based upon the foregoing, the petition is hereby dismissed.

      It is so ordered.

LABARGA, C.J., and CANADY, POLSTON, and LAWSON, JJ., concur.
QUINCE, J., concurs in result only with an opinion, in which PARIENTE, J.,
concurs.
LEWIS, J., dissents with an opinion.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.

QUINCE, J., concurring in result only.

      While I agree with the majority’s conclusion that the “issue presented is not

ripe for consideration,” majority op. at 1, I also agree with Justice Lewis that this

Court could properly review a petition for quo warranto prior to the actual


                                          -4-
appointment of a new justice. I write separately to clarify what I believe to be an

improper focus in both opinions and to highlight the concessions made by

Governor Scott’s counsel during oral argument regarding the Governor’s authority

to make these appointments.

      The majority currently states:

      Although Governor Scott announced his intent to appoint the
      replacements for three justices to this Court, clearly no appointments
      have been made. To use quo warranto to review an action which is
      merely contemplated but not consummated, as in the present case,
      would require this Court to depart from the historical application of
      the writ. This we decline to do. Until some action is taken by the
      Governor, the matter the League seeks to have resolved is not ripe,
      and this Court lacks jurisdiction to determine whether quo warranto
      relief is warranted.
Majority op. at 4 (emphasis added). First, the majority implies that the action

would not be ripe until the Governor makes an appointment (“clearly, no

appointments have been made . . . merely contemplated but not

consummated”). However, the majority then appears to suggest that only “some

action” would be necessary for this Court to consider the Governor’s authority to

make said action. Majority op. at 4. This inconsistent language creates

unnecessary confusion about when a future petition for quo warranto would be ripe

for this Court’s consideration. This confusion is compounded by Justice Lewis’

dissent, which also focuses on the presumption that the issue may only become

ripe once the Governor has made an appointment. See Dissenting op. at 11 (“The



                                        -5-
majority’s statement today that the appointment must be consummated before quo

warranto applies . . . .”).

       Furthermore, the majority ignores that we have previously granted a petition

for a writ of quo warranto challenging the Governor’s authority to endeavor to fill

a judicial vacancy. Lerman v. Scott, No. SC16-783, 2016 WL 3127708 (Fla. Jun.

3, 2016). In Lerman, the petitioners sought the writ of quo warranto “to show by

what authority [Governor Scott] has endeavored to fill a vacancy, created by the

Resign to Run statute, in the office of county court judge, in Group 11 of the

Fifteenth Judicial Circuit, through an appointment.” Petition at 1, Lerman v. Scott,

No. SC16-783. We granted the writ in Lerman because Governor Scott acted by

requesting the Judicial Nominating Commission to provide a list of names for his

consideration to make an appointment. Lerman, 2016 WL 3127708, at *1 (“The

Governor shall not utilize the Fifteenth Judicial Circuit Judicial Nominating

Commission to perform any functions related to nominating candidates for this

judicial office.”). Thus, unlike the dissent’s characterization of Lerman, we were

not merely responding to an announced intention, dissenting op. at 11, but did find

an action short of an actual appointment by which the petitioner could question the

Governor’s authority. Under this Court’s precedent, we have the authority to act

prior to the Governor’s making an appointment that is contrary to law.




                                        -6-
      On the merits of the instant petition, at oral argument in this Court, Governor

Scott’s counsel conceded that “the Governor’s term concludes at the end of the day

on [the first] Monday” in January, “the same day that the Justices’ terms end.”3

The Governor’s counsel further conceded that if the justices do not leave before the

end of their terms and “if the new governor’s term has begun, then the new

governor would have the authority to make the appointment.”4 This position is the

same as that taken by the majority of Florida voters in 2014 in response to a

proposed constitutional amendment which would have required the Governor “to

prospectively fill vacancies in a judicial office.”5




       3. Gavel to Gavel Video Portal, Archived Oral Argument of League of
Women Voters of Fla. v. Rick Scott, Governor, SC17-1122, (Nov. 1, 2017, at
28:10, 29:44) (available at
http://www.wfsu.org/gavel2gavel/viewcase.php?eid=2462).
       4. Gavel to Gavel Video Portal, Archived Oral Argument of League of
Women Voters of Fla. v. Rick Scott, Governor, SC17-1122, (Nov. 1, 2017, at
33:06, 36:15) (available at
http://www.wfsu.org/gavel2gavel/viewcase.php?eid=2462).
       5. Fla. Dep’t of State, Div. of Elections, Prospective Appointment of
Certain Judicial Vacancies,
http://dos.elections.myflorida.com/initiatives/initdetail.asp?account=10&seqnum=
91. The proposed amendment garnered the support of only 47.9% of voters, well
short of the 60% threshold for constitutional amendments. N.Y. Times, Florida
Election Results, (Dec. 17, 2014),
https://www.nytimes.com/elections/2014/florida-elections; see Art. XI § 5, Fla.
Const.


                                          -7-
      The Governor’s concession reflects Florida law. Under the Florida

Constitution, when a vacancy occurs in a judicial office to which election for

retention applies, “the governor shall fill the vacancy by appointing for a term

ending on the first Tuesday after the first Monday in January of the year following

the next general election.” Art. V, § 11(a), Fla. Const. However, a vacancy exists

only “upon the expiration of the term being served by the justice.” Art. V, § 10(a),

Fla. Const. We have explained that this provision “expressly provides that a

vacancy in a merit retention judicial office does not occur until the end of the judge

or justice’s term.” Advisory Op. to Governor re Judicial Vacancy Due to

Mandatory Retirement, 940 So. 2d 1090, 1091 (Fla. 2006) (emphasis added).

      Moreover, under article IV, section 5(a), of the Florida Constitution, a

governor’s term does not begin until “the first Tuesday after the first Monday in

January” of the year following the general election. As noted in an appendix to the

instant petition filed in this Court, Governors Bush, Crist, and Scott all took the

oath of office well before the first Tuesday after the first Monday in January so as

to assume gubernatorial duties immediately on the first day of their respective

terms. See App. to Pet’rs’ Reply at 2-4.




                                         -8-
      Although not before us, the Governor also conceded that a declaratory action

would be appropriate to challenge his endeavor to replace the retiring justices.6 I

agree. Moreover, while I agree with the majority that it is not appropriate for us to

rule on the petition at this time, I do not agree that it would only become

appropriate to do so after Governor Scott has consummated an appointment.

Furthermore, the concession made by the Governor during oral argument

effectively answers the question raised in the petition.

PARIENTE, J., concurs.

LEWIS, J., dissenting.

      It is most unfortunate that the majority finds it necessary to summarily

dismiss this common law action to protect our State from blatantly unconstitutional

actions7 for reasons other than a proper analysis of the law and do so directly

contrary to the application of quo warranto in this judicial appointment context in

2016 in Lerman v. Scott, No. SC16-783, 2016 WL 3127708 *1 (Fla. June 3, 2016),

in which the entire Court either concurred or concurred in result. It is even more



      6. Gavel to Gavel Video Portal, Archived Oral Argument of League of
Women Voters of Fla. v. Rick Scott, Governor, SC17-1122, (Nov. 1, 2017, at
39:33) (available at http://www.wfsu.org/gavel2gavel/viewcase.php?eid=2462)
(“I’m not saying there might not be some other vehicle available to solve this
question—an advisory opinion request, possibly a declaratory judgment . . . .”).

       7. See Advisory Op. to the Governor re Jud. Vacancy Due to Mandatory
Ret., 940 So. 2d 1090, 1093-94 (Fla. 2006).


                                         -9-
regrettable and distressing that future Floridians have lost the ability to protect

themselves and society from clearly unconstitutional action. The Florida

Constitution requires devoted protection and the Florida citizens deserve better.

Contrary to Florida law and the general common law, the majority has now

announced that the challenged conduct must have already produced a

constitutional crisis and calamitous result before illegal acts of government

officials are subject to quo warranto review or relief. Florida law has generally

recognized that quo warranto is available to prevent significant impacts on the

operation of government, Whiley v. Scott, 79 So. 3d 702, 708 (Fla. 2011), but the

majority now negates that common sense, reasonable, and logical analysis to

require that that illegal and unconstitutional conduct which produces disarray must

have already occurred to allow judicial action. While writs of quo warranto may

be applied to acts of state officials that have already been committed, the writ is

not foreclosed as an avenue of relief for threatened and imminent future actions of

state officials, based on the clear Florida law.

      As recently as the summer of 2016, this Court granted a petition for writ of

quo warranto in response to an announced intention by a Governor to appoint (not

having already appointed) a judicial officer to fill a position vacated by a judge

seeking higher office. Lerman, 2016 WL 3127708, at *1. County Court Judge

Johnson resigned pursuant to the Resign to Run statute and Lerman submitted the


                                         - 10 -
necessary paperwork to become a candidate for the judicial position previously

held by Judge Johnson. Governor Scott, as he has done here, announced that he

was going to make an appointment to the position held by Judge Johnson. Lerman

filed a petition for writ of quo warranto in this Court to prevent Governor Scott

from appointing or attempting to appoint a person to the position previously held

by Judge Johnson contrary to law. This Court granted the petition for quo

warranto and ordered the position filled by election. Id. This Court further

ordered that any functions related to the future appointment of candidates for this

position terminate. Id. The majority’s statement today that the appointment must

be “consummated” before quo warranto applies is simply incorrect, contrary to

common sense, and, in my view, dangerous. Majority op. at 4.

      Under the majority view, elected politicians can announce their intentions

and plan to engage in all types of illegal and harmful conduct but no relief is

available until the illegal and harmful act has already inflicted its damage.

Magnificent trees cut, pristine waters fouled, and unthinkable harm inflicted upon

our citizens, which may not be prevented when the actor plans and even announces

his intentions. Today, we have a new test. The writ is only available when the

illegal act is taken and harm is actually inflicted—at times even irreparable harm.

      The majority simply ignores that the Supreme Court of Vermont has recently

granted a petition for writ of quo warranto under virtually identical circumstances


                                        - 11 -
as we face here. Turner v. Shumlin, 163 A.3d 1173 (Vt. 2017). In Vermont, the

former Governor announced his intention to appoint the replacement for a current

Supreme Court Justice who decided not to seek retention for another term. Id. at

1176. The Justice’s term would not expire until after the current Governor’s term

had expired. Id. The same argument was made in Vermont as is advanced by the

majority here that the court could not act until an illegal appointment was actually

made. Id. at 1177. In rejecting the principle announced by the majority here, the

Supreme Court of Vermont recognized that the circumstances were not conjectural,

hypothetical, or abstract. Id. The announced intentions were concrete and

unequivocal. Id. Understanding that there is a fundamental interest in ensuring

that the constitutional process is sound, the court held that the Governor could not

constitutionally appoint the Justice in question’s replacement. Id. at 1188. We

must all heed the closing words from the Vermont Supreme Court:

      We reach our decision having in mind the overarching principles of
      our democracy: the integrity of our governing institutions and the
      people’s confidence in them.

Id.

      Today, the majority opinion has chosen to cherrypick only certain rules with

regard to writs of quo warranto, while ignoring the clear precedent from Florida

and other jurisdictions that have emphasized the notion that the writ can be

appropriate in cases of threatened or attempted action by a state official. State ex



                                        - 12 -
rel. Bruce v. Kiesling, 632 So. 2d 601, 603 (Fla. 1994) (“[W]e note that the

common law remedy of quo warranto is employed either to determine the right of

an individual to hold public office or to challenge a public officer’s attempt to

exercise some right or privilege derived from the State.” (emphasis added)); State

ex rel. Ervin v. Jacksonville Expressway Auth., 139 So. 2d 135, 137 (Fla. 1962)

(“It is a proper function of the Attorney General, in the interest of the public, to test

the exercise, or threatened exercise, of power by such a corporate state agency

through the process of a quo warranto proceeding.” (emphasis added)); Adm’r,

Retreat Hosp. v. Johnson, 660 So. 2d 333, 339 (Fla. 4th DCA 1995) (“[T]he

remedy of quo warranto . . . is designed to challenge a public officer’s attempt to

exercise some right or privilege derived from the state . . . .” (emphasis added)).8



       8. See also Richard W. Ervin & Roy T. Rhodes, Quo Warranto in Florida, 4
U. Fla. L. Rev. 559, 564 (1951) (“Injunction will not lie to prevent usurpation of a
franchise or office, even though the respondent has not entered upon the duties of
the office. The remedy is at law, by quo warranto, to be invoked after entry or an
attempt to exercise authority by virtue of the election or appointment.” (emphasis
added) (citing Winter v. Mack, 194 So. 225 (Fla. 1940); MacDonald v. Rehrer, 22
Fla. 198 (1886)); 43 Fla. Jur. 2d Quo Warranto § 32 (2015) (“[I]t is a proper
function of the Attorney General, in the interest of the public, to test exercise, or
threatened exercise, of power by a corporate state agency through the process of a
quo warranto proceeding.” (emphasis added)); Phillip J. Padovano, Florida
Appellate Practice § 3:16 (2016 ed.) (“Quo warranto is . . . commonly used in the
supreme court to challenge proposed actions that are beyond the authority of a
public official.” (emphasis added)); Patrick John McGinley, Elements of an Action
§ 1703:1 (West’s Fla. Prac. Series Vol. 21 2017-2018 ed.) (“Petitions for a writ of
quo warranto historically have been filed after a public official has acted. But the
writ is also available to challenge future actions.” (emphasis added)).


                                         - 13 -
      [I]t has been held that unlawful exercise of a franchise can be
      challenged by quo warranto, even though such exercise is merely
      planned and has not yet begun, where preparation and public
      announcement have made the matter imminent and taken it out of the
      realm of mere general intention.[n.4]

              [n.4] State ex rel. City Bank & Trust Co. v. Marshall &
              Ilsley Bank, 4 Wis. 2d 315, 90 N.W.2d 556 (1958).

65 Am. Jur. 2d Quo Warranto § 50 (2011) (emphasis added).

      Moreover, this Court has, in the past, entertained a petition for writ of quo

warranto in a case challenging the powers and duties of certain state actors, where

no attempt to exert such powers had yet been taken. See State ex rel. Feltman v.

Hughes, 49 So. 2d 591 (Fla. 1950). Similarly, courts across the United States have

applied the remedy of a writ of quo warranto to threatened future actions. See

Shumlin, 163 A.3d 1173 (petition for quo warranto seeking to enjoin the governor

from filling a future judicial vacancy occurring after the governor’s term was ripe

for review); Marshall & Ilsley Bank, 90 N.W.2d at 559 (remedy of quo warranto

not premature where defendant announced its intent to act because the

announcement took the challenged actions out of the realm of mere general

intention). Thus, the majority’s opinion today engages in a selective legal analysis

and refuses to acknowledge the nationwide precedent that contradicts its

conclusion.

      Further, in State ex rel. Butterworth v. Kenny, 714 So. 2d 404, 406 (Fla.

1998), the complained-of conduct had ceased and the civil litigation actions at


                                        - 14 -
issue had been dismissed, so there was no present conduct necessary for this Court

to rule on. Nonetheless, this Court determined that it should still address the issue

raised because it was one of great public importance and was likely to recur and

ultimately held that no future civil actions could be filed by Capital Collateral

Regional Counsel. Id. at 406, 411. Therefore, as demonstrated in Kenny, the

intention to act is not foreclosed from quo warranto relief.

      Additionally, I take issue with the majority’s attempt to limit the writ of quo

warranto only to past acts, when this Court has, in the past, declined to so limit a

similar arbitrary challenge to the timeliness of a petition for writ of quo warranto.

For example, in Florida House of Representatives v. Crist, 999 So. 2d 601 (Fla.

2008), the then-governor challenged the appropriateness of the relief of quo

warranto where the House of Representatives challenged Governor Crist’s

execution of a compact with the Seminole Indian Tribe of Florida because he had

already signed the compact, arguing that the writ’s issuance was foreclosed for past

state acts. Id. at 607. In that case, as in the present case, the governor attempted to

handicap the writ of quo warranto based on the arbitrary notion that the writ is

limited to actions committed at specific times. The attempt to do so here, as in

Florida House of Representatives, should fail. I fundamentally disagree with

depriving the citizens of Florida of their ability to challenge inappropriate action

by a state official simply based on this unfounded limitation. Today’s decision


                                        - 15 -
allows state officials, such as Governor Scott, to circumvent this extraordinary writ

at the convenience of the office holder based on a ripeness challenge that does not,

in my view, have any legal justification.

      The majority further wrongly attempts to cloak its flawed reasoning in a

reluctance to discuss the historical application of the writ, majority op. at 4, despite

our past precedent authorizing the Court to do just that, upon proper showing. See

State ex rel. Watkins v. Fernandez, 143 So. 638, 641 (1932) (discussing how this

Court has, on many occasions, used the common law writ of quo warranto and

applied it to circumstances beyond those originally intended because equity

mandates that a wrong have a remedy and that the law should evolve with the

varying needs of society); Belle Island Inv. Co. v. Feingold, 453 So. 2d 1143, 1146

(Fla. 3d DCA 1984) (“Quo warranto is a remedial writ and its use may be extended

to new situations on a proper showing.” (citing State ex rel. Pooser v. Wester, 170

So. 736 (Fla. 1936))).

      The majority goes astray because it relies entirely upon cases in which a

challenged action has already occurred. I do not disagree with this application of

quo warranto under those circumstances. The majority predicates its flawed

reasoning by interpreting those cases to say that quo warranto can only be based on

those past acts. Yet, no case in Florida so limits this extraordinary writ. Therefore,




                                         - 16 -
I disagree with the majority’s conclusion, as it applies to this case. Thus, for the

reasons set forth above, I dissent.

      Further, although as unfortunate as the majority’s dismissal may be, the

concurring opinion is even more misdirected. It appears that those concurring in

result seem to now believe that mere arguments of counsel or statements of counsel

in response to general questions, interpreted to be “concessions,” have been

transformed into some type of final, binding legal stipulations that now prohibit

and preclude, as a matter of law, the precise subject matter that generated this

action seeking quo warranto relief. The majority has certainly not endorsed that

view and I must admit it is a theory highly questionable at the very best.

Original Proceeding – Quo Warranto

John S. Mills, Thomas D. Hall, Courtney Brewer, and Andrew D. Manko, The
Mills Firm, P.A., Tallahassee, Florida,

      for Petitioner

Daniel E. Nordby, General Counsel, John P. Heekin, Meredith L. Sasso, Peter L.
Penrod, and John MacIver, Assistant General Counsel, Executive Office of the
Governor, Tallahassee, Florida;

      for Respondent




                                        - 17 -
