A mystery clouds a top judicial appointment | Editorial

Fifteen applicants will be interviewed in public next week in Orlando for a Florida Supreme Court vacancy, but only 10 of them appear to be eligible.

Strange backroom maneuvering is going on, but those who know aren’t saying.

The other five applicants don’t live in the territorial area of the new Sixth District Court of Appeal, as a literal reading of the Florida Constitution would seem to mandate.

“Of the seven justices,” Article V states, “each appellate district shall have at least one justice elected or appointed from the district to the supreme court who is a resident of the district at the time of the original appointment or election.”

None of the six sitting justices was appointed from the new Sixth, which came into being on Jan. 1. Two justices live there, only because their home counties were reassigned to the new district.

What the Constitution means

Jon Mills, dean emeritus of the University of Florida Levin College of Law and former Florida House Speaker, doesn’t see a close question.

“If you adhere to the language, it says ‘at the time of the original appointment,’” Mills told the Sun Sentinel Editorial Board. “There is no one from the Sixth now.”

Imagine that: Judges and lawyers professing to believe in strict constructionism, or a literal reading of laws, then not living by it.

The vacancy created by Justice Ricky Polston’s resignation was advertised to lawyers and judges statewide. Polston resigned to become general counsel of Citizens Property Insurance Corp., nearly doubling his salary.

Gov. Ron DeSantis’ communications director, Taryn Fenske, and Fred Karlinsky, chair of the Supreme Court Judicial Nominating Commission, did not reply to our question as to whether the constitutional provision was considered.

A clear favorite

The question becomes moot if DeSantis appoints a finalist who lives in the Sixth. It’s widely assumed in legal circles that his favorite is Meredith Sasso, chief judge of the new Sixth, whose home county of Orange is in the new district. As a judge of the Fifth District Court of Appeal, Sasso was one of the nominees for an earlier Supreme Court vacancy that went to Justice Renatha Francis.

The Judicial Nominating Commission, which must recommend from three to six applicants for a vacancy, will have no trouble finding the sort of deep-dyed conservatives DeSantis prefers. Ten of the 15 applicants, including eight of those living in the Sixth District, reported membership in the right-wing Federalist Society. Several have conspicuous litigation or judicial records mirroring DeSantis’ social conservatism.

Jared Smith is a judge on the Sixth District Court, appointed by DeSantis despite (or perhaps because of) his defeat for re-election as a circuit judge at Tampa last year. At issue was his ruling denying an abortion to a 17-year-old seeking to bypass parental permission. He questioned her “overall intelligence, emotional development and stability.”

The Second District Court of Appeal interpreted her testimony differently and overruled him. The dissenter in that 2 to 1 vote was John Stargel, another applicant for this vacancy and a judge in the Sixth.

A disqualifying op-ed

Another is Roger Gannam of Maitland, an attorney with Liberty Counsel, a nonprofit that advocates for religious groups and conservative causes. In 2015, he wrote a Florida Times Union op-ed strenuously opposing a proposed Jacksonville equal rights ordinance that foreshadowed DeSantis’ anti-LGBTQ policies.

“Most insidiously,” Gannam wrote, “male predators will use the legal cover of female identity to gain unchallenged access to women-only bathrooms and dressing rooms.”

Despite that record, Gannam wrote “N/A,” not applicable, to a question on the JNC application asking if he would be biased on an issue that might reach the Supreme Court.

That answer strikes us as elusive. It’s also disqualifying.

No matter who is appointed, there ought not to be any residency requirement for Supreme Court justices. Their jurisdiction is statewide. The rule creates inequality of opportunity because judicial districts are not equal in population. It deprives the nominating commission and the governor of suitably wide pools of candidates.

No applicants for the Polston vacancy came from any judges of the other five district courts of appeal. They must have read the Constitution the same way Mills does.

The residency rule owes to a Central Florida legislator who resented that the first two of Gov. Reubin Askew’s Supreme Court appointees came from Pinellas County and the third was born and raised there. A 1976 constitutional amendment providing for all justices to be appointed rather than elected gave him the opportunity to get the residency formula into the Constitution. There were only four appellate districts then.

Repealing the residency requirement is one of many reforms urgently needed at the court. Askew created Florida’s judicial nominating commissions to be independent, but since 2001, the law has allowed the governors to appoint all nine members of each. That enabled DeSantis to pack the Supreme Court with right-wing ideologues.

Polston’s replacement will be DeSantis’s fifth appointment to the high court. No other Florida governor has made as many.

The Sun Sentinel Editorial Board consists of Editorial Page Editor Steve Bousquet, Deputy Editorial Page Editor Dan Sweeney, and Editor-in-Chief Julie Anderson. Editorials are the opinion of the Board and written by one of its members or a designee. To contact us, email at letters@sun-sentinel.com.