Sayfie Review Editorial

To Uphold an Independent Judiciary, Pariente Must Recuse

In the mid-1970’s the Florida Supreme Court was in crisis. Justice David McCain resigned amid allegations he improperly lobbied another court and received $10,000.00 for his efforts. Justices Hal Dekle and Joseph Boyd were accused of improperly using a document not in the record in a utility case that was pending before the Court. Following an investigation, the State Judicial Qualifications Commission recommended that both Justices be removed from office.  Ultimately, Justice Dekle resigned and Justice Boyd was reprimanded.  

Four decades later history seems to be repeating itself. Two Justices are accused of improperly using a document not in the case record and plotting to lobby a court-related body, this time an executive branch commission that nominates judges and lawyers for appointment to the Supreme Court. The eerie similarities to the 1970’s scandals involve Chief Justice Jorge Labarga and Associate Justice Barbara Pariente, whose activities came to light during a Florida Channel broadcast of oral arguments at the Court.  

A courtroom video captured the Justices whispering to each other while Pariente shows Labarga a list of individuals appointed by Governor Rick Scott to the Supreme Court Judicial Nominating Commission. A “hot mic” picked up Labarga reacting to the document by saying the name "Panuccio," Justice Pariente is heard replying with the word "crazy." Justice Labarga then stated, "Izzy Reyes is on there. He'll listen to me." Pariente is seen pointing to the document again and appears to say, "Look whose pick they're getting...." Finally, Justice Pariente turned to Justice Quince, saying "did you see who . . .”   The Justices’ whispering makes the rest of their conversation difficult to hear.    

To those familiar with the case, it’s obvious that Justice Pariente was expressing her contempt for Governor Scott’s appointments to the nine member Judicial Nominating Commission which includes Commissioner Jesse Panuccio and Commissioner Israel “Izzy” Reyes. It is equally obvious that the Justices are discussing plans to lobby the Commission. 

Perhaps the most unsettling aspect of what has become a public embarrassment for the Court is that when their comments were made, the Justices had just heard arguments in a lawsuit challenging Governor Scott’s authority to appoint three new Justices on his last day in office. The only issue the Justices should have been considering was whether the text of the Florida Constitution allows the incoming or outgoing Governor to make the three appointments. The case has absolutely nothing to do with the nominating process or Justice Pariente’s opinion of the attorneys Governor Scott has appointed to the Commission.

Yet, as soon as oral arguments concluded, Chief Justice Labarga and Justice Pariente were not interested in engaging each other regarding the applicable Constitutional language, or the relevant case law, or the legal issues raised by the parties during their oral arguments. Instead, the two Justices immediately began conspiring on how to undermine the integrity of the Supreme Court appointment process, by inappropriately using their influence as Supreme Court justices to lobby members of the nominating commission (Labarga: “He’ll listen to me.”) The ultimate goal of their lobbying efforts still remains a mystery.

The Justices’ behavior on the bench is more serious than a passing public relations embarrassment. It calls into question the Court’s ability to rule with fairness and impartiality, as well as every Florida judge’s ability to do so. If Supreme Court Justices are secretly calling the Governor’s list of appointees “crazy,” and discussing how to manipulate the list of nominees from which the Governor will choose when he appoints new Justices, how can he possibly expect the same Justices to give him a fair and impartial ruling on his appointment authority? 

And if the Governor of the State cannot have confidence in the process, how can average Floridians have confidence their cases will receive a fair hearing?

If the highest ranking judges in our state’s judicial system conduct themselves like this and don’t recuse themselves, what kind of message does it send to the hundreds of County Court Judges and Circuit Court Judges in our state? What message does it send to the millions of residents of our state who expect and deserve impeccable conduct from those who serve in the judiciary? The message it would send is this: Judges make decisions not based on the law, not based on the legal precedent, not based on principles of jurisprudence, and not based on the Constitution; they make decisions based on political considerations without regard to the appearance of impartiality.

That message will have unhealthy consequences for our system of self-governance.

A fair, impartial and independent judiciary is the cornerstone of our Constitutional Republic. Canon 1 of the Florida Code of Judicial Conduct begins, “A judge shall uphold the integrity and independence of the judiciary.” Judicial independence and integrity must be continually earned, and can only be earned if judges conduct themselves in ways that demonstrate that their independence is a sacred trust that will never be compromised or abused. When circumstances arise that create even an appearance of bias, a judge should put the credibility of the judicial system above all else and recuse from further consideration of the case. If the people of our state conclude that judicial independence has merely become a rhetorical shield that enables judges to play political games from the bench, then the people of Florida should be expected, through their elected representatives, to cure the judiciary of their abusive independence.

A recusal by Justice Pariente will set a positive example for all judges and help preserve judicial independence in our state. A refusal to recuse will undermine the legitimacy of the Court’s decision. And perhaps even worse, if Justice Pariente refuses to recuse herself in this case, she will have done great, and perhaps irreversible damage, to the cause of an independent judiciary in Florida.  That's too great a price to pay for her continued involvement in this case.

Finally, it is our hope that Justice Pariente's colleagues on the Supreme Court will take full measure of the import of her decision, and not allow the Court or its opinion in this case to be sullied by any potential desire of Justice Pariente to put her own interest and personal agenda above the interest of the Court, its reputation, and the reputation of our state's judicial system. Whatever Pariente may think is 'crazy' about the Supreme Court appointment process, for our system of self-governance to endure, the people of Florida cannot be given reason to believe that our Supreme Court has also gone crazy.