by Jason Garcia
Updated 5 yearss ago
Gov. Rick Scott is about to make one of the most important decisions of his career.
After five years in office, the Republican governor will soon get his first appointment to the Florida Supreme Court. Mandatory retirement will force Justice James E.C. Perry off the bench by early January of next year, creating the first opening on the state's high court since 2009, when Gov. Charlie Crist appointed Perry. It may be the only Supreme Court appointment that Scott gets to make.
Scott won't have total discretion. He will have to choose from a list of nominees submitted by a separate nominating commission, though Scott has been working to fill those commissions with people he trusts. And because the constitution requires that the Supreme Court include representatives from every region in the state, Scott will have to pick someone from the 5th District - a 13-county swath of central Florida that includes Orlando, Ocala, Daytona Beach, Melbourne and St. Augustine.
The selection will be subject to intense vetting by Scott's administration, a process that has already informally begun. Here's a look at the early short list.
The First Tier
Wendy W. Berger, Judge, 5th District Court of Appeal: If there is a first among equals at this point in the process, it is Berger, whom Scott appointed to the 5th District Court of Appeal in mid-2012.
Berger, 47, worked for eight years as a prosecutor in St. Augustine from January 1993 until December 2000. She was then hired to be a lawyer in Gov. Jeb Bush's office - where she worked under Bush's then-general counsel, Charles T. Canady, who is now himself a Florida Supreme Court justice and is regarded as the court's leading conservative voice. Berger served as Bush's deathpenalty attorney, often representing the governor at executions, and advised him on clemency cases and criminal-justice legislation. In mid- 2005, Bush chose her for an opening on the 7th Circuit bench in St. Augustine. Berger spent seven years on the trial court, building a reputation as a judge who was extremely tough on criminal defendants, before Scott elevated her to the appellate court - Canady swore her in.
Berger cemented herself as someone conservatives trust in 2013 when she wrote a partially dissenting opinion in a case in which the family of a University of Central football player who died during practice had sued the university. Berger said she believed the actions of UCF's coaching staff led to Ereck Plancher's death, writing "it is difficult to comprehend how one human being can ignore another in obvious distress or prevent someone from offering aid to one in distress." But she nonetheless ruled that the law was clearly in UCF's favor and that she would have granted summary judgment for the university.
If Scott's vetting process results in a tie, age and gender could tilt the appointment to Berger. Younger than the other top-tier contenders, she could serve for many more years before she is forced to retire. Choosing a woman for the Supreme Court - where five of the seven current justices are men - could also help Scott's office soften any criticism if the governor does not chose another minority to replace Perry, who is African-American. Some also expect Scott to consult with Canady before making a decision, another potential advantage for Berger.
Berger, who lives in Ponte Vedra Beach, hasn't determined whether she will apply for the opening. "I can tell you that I'm thinking about it, but I'm undecided," she says.
Daniel J. Gerber: If the governor prefers to look beyond the judiciary for his Supreme Court selection, insiders say one of the people he'll consider is Gerber, a partner in the Orlando office of Rumberger, Kirk & Caldwell.
Gerber, 53, is a favorite of the Tallahassee business lobby. A partner at Rumberger since 1988, Gerber has carved out a specialty defending manufacturers of chemical products against claims of injury from chemical exposure. He once successfully defended Orkin against a $10-million claim for termitedamage repair costs brought by the owner of an apartment complex in Hillsborough County. In another case, he persuaded an appellate court to overturn a $300,000 judgment against Orkin and declare that "stigma" damages could not be recovered by homeowners unhappy with the treatment of their homes for termites. Gerber has also represented makers of dietary supplements in products-liability cases and retailers in slip-and-fall cases.
And he is plugged into Florida's Republican leadership. He was part of the early 1990s legal team - a group that also included former Republican Party of Florida Chairman Al Cardenas - that successfully challenged the state and congressional districts drawn by the then-Democratic-controlled Florida Legislature, arguing that the districts violated the federal Voting Rights Act. The decision helped pave the way for Republicans to win a majority in the Legislature. He also defended the state GOP in its attempt to prevent former Klu Klux Klan leader David Dukes from being listed as a Republican on the state's presidential primary ballot. When Gerber applied for an appointment to the Supreme Court in 2009, his references read like a who's who of Florida Republican luminaries, including former Attorney General Bill McCollum, former U.S. Rep. Ric Keller and former Florida House Speaker Dean Cannon. His brother, Jonathan D. Gerber, was appointed to the 4th District Court of Appeal in 2009 by former Gov. Charlie Crist.
Gerber, who lives near Winter Park, was one of four finalists for the Supreme Court opening that was eventually filled by the nowretiring Justice Perry. He declined to say whether he will try again, although he is widely expected to do so.
C. Alan Lawson: Nobody has come closer to serving on the Florida Supreme Court without actually doing so than appellate Judge Alan Lawson, who has twice been a finalist for an appointment - first losing out to Justice Jorge Labarga and then (along with Gerber) to Perry, both appointed by Crist in 2009.
Lawson, 57, is the most experienced judge among those seen as the early front-runners for Scott's first Supreme Court selection. He's currently the chief judge for the 5th DCA, to which he was appointed by former Gov. Jeb Bush in 2006. Bush had previously appointed him to the trial court in Orlando in 2002.
Lawson began his career practicing commercial law, both in the private practice (he represented car-rental companies including Hertz in a suit challenging sales-tax assessments levied by the Florida Department of Revenue) and in the public sector (as an assistant county attorney in Orlando he defended Orange County in contract disputes stemming from construction of the Orange County courthouse). But he has become especially popular with social conservatives. In 2011, Lawson dissented in a 2-1 ruling in which the 5th DCA declared that both mothers in a lesbian relationship had parental rights. Lawson argued that only the biological mother was legally entitled to such rights, writing that to rule otherwise would also mean to "invalidate laws prohibiting same-sax marriage, bigamy, polygamy or adult incestuous relationships." Last year, he wrote the majority opinion in a 2-1 decision upholding a temporary injunction preventing Planned Parenthood of Greater Orlando from performing abortions at an Osceola County facility.
Groups including the National Rifle Association and Florida Right to Life organized letter-writing campaigns in support of Lawson's candidacy the last time he was a finalist for a Supreme Court opening. When Crist chose to go with Perry instead, it marked one of the key breaking points in the former Republican governor's relationship with the party's conservative base.
Though he has come up short twice before, Lawson, a runner who once completed the Boston marathon, doesn't plan to give up. The Orlando resident says he intends to apply when nominations for the seat open up later this year.
In the Mix
Frederic Rand Wallis: Like Berger and Lawson, Wallis is a Scott appointee on the 5th DCA.
Wallis, 48, checks off some important boxes for conservatives. He began his career as a prosecutor in Seminole County and then launched a private commercialdefense practice, defending companies such as Walt Disney World and Ford against general, premises and products liability suits. He was appointed to the 9th Circuit by former Gov. Crist and then elevated to the appellate court in 2013 by Scott.
Insiders say the issue for Wallis is simply that there's not much of an argument to be made for Scott to choose him over Berger or Lawson. Many don't think he will even apply; Wallis has five children all ages 15 or younger, making it difficult for him to move or commute to Tallahassee. Wallis, who lives in Maitland, says he's thinking about it but hasn't reached a decision yet.
Frank Kruppenbacher: The GOP lawyer and fundraiser supported Scott for governor at a time when most Florida GOP fundraisers were against him. Kruppenbacher has since become one of Scott's political point men in Orlando.
Frederick Lauten: The chief judge for the 9th Judicial Circuit (Orange and Osceola counties) is a prominent local Republican whose wife is active in the business lobby.
Lee Schmudde: A vice president and the top attorney at Walt Disney World, Schmudde is a Scott appointee to the board that screens judicial candidates for the 5th DCA.
Vincent Torpy: A Bush appointee who has been on the 5th DCA since 2003, he is thinking about applying.
Heather Pinder Rodriguez: A Scott appointee on the 9th circuit, she has applied in the past for an appellate opening.
Alicia Latimore: The Jeb Bush appointee has been a 9th Circuit judge since 2006.
David Simmons: A Republican state senator and a partner at the Orlando firm of de Beaubien, Knight, Simmons, Mantzaris & Neal, Simmons has a reputation as one of the Legislature's sharpest legal minds. But relations between Scott and the Florida Senate aren't exactly warm.
The Wild Card
Controversy: The Florida Constitution says the Supreme Court must always include at least one justice from each of the state's five appellate districts. But it doesn't say anything about how long someone must live in a district before he can be appointed. So it's always possible that the Scott administration could encourage someone to briefly relocate to central Florida in order to become eligible for the appointment. It would likely trigger a controversy, but Scott has shown he isn't afraid to make controversial decisions and insiders say this appointment may be worth it, since it's the only high court pick Scott is certain to make.
There was lots of speculation that Scott confidante Jesse Panuccio could be a candidate for such a maneuver. But Panuccio, the former secretary of the Department of Economic Opportunity and a former general counsel to Scott, became ineligible after Scott placed him on the board that will nominate the finalists for the next Supreme Court justice.