FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IF
Proceeding - Quo Warranto
S. Mills, Thomas D. Hall, Courtney Brewer, and Andrew D.
Manko, The Mills Firm, P.A., Tallahassee, Florida, for
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
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.
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
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. In Swoope v. City of New
Smyrna, 125 So. 371 (Fla. 1929), we explained that a
challenge to an individual's exercise of official
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 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.
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. 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 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.
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
upon the foregoing, the petition is hereby dismissed.
LABARGA, C.J., and CANADY, POLSTON, and LAWSON, JJ., concur.
QUINCE, J., concurs in result only with an opinion, in which