LEAGUE OF WOMEN VOTERS OF FLORIDA, et al., Petitioners, v. Rick SCOTT, Governor, Respondent, 232 So. 3d 264

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. In Swoope v.

City of New Smyrna, 98 Fla. 1082, 125 So. 371 (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 pro-, ceedings 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. 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. Most recently, in Ayala v.

Scott, 224 So.3d 755, 756-57 (Fla. 2017), we held that quo war-ranto 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. 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. . 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. . 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,