Florida Supreme Court says DeSantis exceeded his authority in naming new justice

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In a stunning rebuke to Gov. Ron DeSantis, the Florida Supreme Court on Thursday said the governor exceeded his authority when he appointed Renatha Francis to the high court by selecting the Palm Beach judge for the post before she was eligible but also said, as of now, nothing will change.

In a 5-0 ruling, the court agreed with Democratic state Rep. Geraldine Thompson, who filed the lawsuit claiming that the governor’s appointment of Francis in May was unlawful because Francis had not been a member of The Florida Bar for 10 years as required by the Florida Constitution.

“In a nutshell, when a governor fills by appointment a vacant judicial office, the appointee must be constitutionally eligible for that office at the time of the appointment,’’ wrote Justice Carlos G. Muñiz, himself a DeSantis appointee to the court, who authored the opinion.

“It is undisputed that Judge Francis will not have attained ten years’ Bar membership until September 24, 2020.”

But while the court invalidated the appointment in principle, it also did not change the outcome. The court rejected Thompson’s petition because her proposed remedy was that the Judicial Nominating Commission “reconvene and certify a new list from the existing applicant pool, and that the Governor then be compelled to select an appointee from that new list.”

The court said, instead, that Thompson should file a new petition because the “only legally appropriate and available remedy would be to require the Governor immediately to appoint a constitutionally eligible person from the JNC’s existing certified list of nominees.“

“There is a light at the end of the tunnel,’’ said Thompson. “They have made it very clear you have to be eligible on the day you are appointed, not some future date.”

She said she is discussing options with her attorneys but believes the law already authorizes the court to order the governor to appoint an eligible candidate. The court has asked Thompson to respond to the ruling by Monday, Aug. 31.

Neither the governor nor Francis could be reached for comment.

DeSantis in May appointed Francis and Miami attorney John Couriel to replace former justices Barbara Lagoa and Robert Luck, who left the Supreme Court after being named by President Donald Trump to the Atlanta-based U.S. Court of Appeals for the Eleventh Judicial Circuit. At the time DeSantis made the appointment, the Herald/Times and other news organizations had reported that Francis did not meet the qualifications.

Couriel has joined the Supreme Court but recused himself from this decision. Francis, who would become the first non-Cuban person of Caribbean heritage to serve on the Supreme Court, is ineligible to serve as a justice until Sept. 24, the date on which she will have been a 10-year member of The Florida Bar.

Francis, 42, was born in Jamaica and, if reappointed, would be the first Black justice since Peggy Quince retired early last year. She also would be the only woman on the court.

Francis graduated from the for-profit Florida Coastal School of Law in Jacksonville. In 2017, after working for seven months at the law firm of Shutts & Bowen representing insurance companies in personal injury protection cases, she was appointed to the Miami-Dade County bench by then-Gov. Rick Scott. A year later, Scott appointed her to the circuit bench in Palm Beach County.

Others were eligible

In the lawsuit, lawyers William Ponall and Lisabeth Fryer, who represent Thompson, wrote that of the 32 applicants for the two posts several Black or Caribbean-American applicants were included. Among them, all but Francis had been members of the Bar for the 10 years required by the time they applied.

DeSantis’ lawyers argued that because Francis, who has been on maternity leave from the Palm Beach County circuit court bench, did not intend to take the oath and assume office until Sept. 24, “eligibility is not material, nor is it in question.”

But the court concluded that the governor can’t arbitrarily decide when a judge fills a vacancy and that when DeSantis appointed Francis, her appointment took effect “immediately. Not at some time in the future.”

Executive vs. judicial branch

The dispute underscores a significant difference between the two branches of government, and the court made the distinction between appointed judges and elected judges, who fill a term based on a fixed date. Unlike elected judges, Supreme Court justices are appointed under Article V, Section 11 which “imposes a hard deadline on a governor’s duty to fill a vacant judicial office.”

Another litmus test for judicial applicants is how much they abide by the libertarian views of the Federalist Society, whose members dominate the Florida Supreme Court Judicial Nominating Commission and are closely aligned with the governor.

Thompson’s lawsuit, which was filed in July, argues that in addition to the governor, the JNC “exceeded the limits of its authority” by violating its procedural rules and the Constitution by including Francis on its list of nominees sent to DeSantis in January. But rather than rule on that claim, the court concluded that while including Francis on the list was “an alleged defect that was immediately apparent on January 23, 2020,” Thompson waited too long to challenge it.

“The Petitioner waited nearly six months to bring this action,’’ Muñiz wrote for the majority, which was joined by Justices Charles Canady, Alan Lawson and Jorge Labarga. Justice Ricky Polston concurred in result only and wrote a separate opinion.

Labarga, the lone moderate on the bench, wrote a concurring opinion in which he concluded that the JNC did violate the Constitution by nominating Francis. He also noted that Thompson’s concerns relating to a diverse judiciary were “highlighted” by the JNC’s “failure to certify any of the six constitutionally eligible African-American or Caribbean-American applicants.”

The matter of diversity

Thompson, who is Black, accused the JNC of ignoring “the widely recognized interest in diversity on the judiciary” by failing to advance any of the African-American or Caribbean-American applicants.

Under Florida law, the JNC nominates candidates to the court, and the governor chooses from the list of nominees to make his appointment. Under the Supreme Court’s rules, the nominating commission cannot recommend appointees to the governor “unless the commission finds that the nominee meets all constitutional and statutory requirements” to serve as a justice.

Meanwhile, Thompson said she is concerned the Francis appointment demonstrates that DeSantis “is trying to stack the courts with certain individuals for certain political outcomes.”

She noted that in a conversation with Senate Democratic Leader Audrey Gibson last year, the governor told Gibson that if he were to appoint any Black to the state’s highest court, “it would have to be someone like [U.S. Supreme Court Justice] Clarence Thomas.”

“That concerns me,’’ Thompson said. “Although Clarence Thomas’ pigmentation may indicate he is Black, his rulings have not borne that out.”

The court also refrained from addressing other complaints in the lawsuit, specifically that under the Florida Constitution, DeSantis was obligated to make the appointments 60 days after the nominating commission certified a slate of nominees on Jan. 23. The governor argued that because of the pandemic, he delayed those appointments.

Thompson said that during that same time the governor made 30 other appointments to the judiciary so she considers his explanation “a contrivance to put in place a person who has his ideological bent and who is aligned with his political views.”

“We express no view on whether the state of emergency made it permissible for the Governor to miss the constitutional deadline,’’ the court says in its footnote to the case.

DeSantis, a first-term Republican governor, has had the rare opportunity of appointing five justices to the seven-member court. After two of his first three appointees, Luck and Lagoa, were elevated to the appeals court bench he made another round of selections.

Mary Ellen Klas can be reached at meklas@miamiherald.com and @MaryEllenKlas

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