By Gary Blankenship
Senior Editor

When the Florida Constitution says that the governor “shall” perform a particular function, does he have the option of avoiding that duty, absent allegations of malfeasance or corruption?

That was a key question raised in oral arguments before the Florida Supreme Court May 20 when the justices considered Gov. Charlie Crist’s refusal to pick a successor successor to retired Fifth District Court of Appeal Judge Robert Pleus.

Although the six nominees submitted by the Fifth DCA JNC included two women, Gov. Crist asked the JNC to reconsider and include African-American nominees. The JNC declined, saying it had submitted the most qualified six candidates, and Crist has since declined to make the appointment.

That led Pleus, represented by Tallahassee attorney Sandy D’Alemberte, to ask the court to issue a writ of mandamus ordering Crist to make the appointment from the submitted list.

The justices closely questioned Jason Gonzalez, Crist’s general counsel who argued the governor’s case, and noted that the constitution says the governor “shall” make the appointment within 60 days from the list submitted by the JNC.

Justice Barbara Pariente said she accepted Crist’s motives in seeking diversity were good, but added, “The governor alleges that this was not a diverse slate and that’s why he rejected it. But in terms of clearing the air, the governor has not asserted corruption, or impropriety, or that the six people are not qualified. . . . Where is that discretion that the governor has, without establishing it in some forum, to say [he] didn’t like this list, I want another list?”

Gonzalez replied that after the list was submitted to Crist, “concerns were brought to his attention raising a question whether all Floridians had equal access to this process.”

The governor thought the best course, he said, was to decline to make the appointment and ask the JNC to submit a new list. Gonzalez argued that Crist has discretion to take that action in his role as the state’s chief executive.

But Justice Fred Lewis said that undermines the constitutional function of the JNCs, as well as the constitutional mandate that the governor “shall” make the appointment from the list submitted by the commission.

“This suggests that the JNCs are just sham organizations and a governor not having the good motives that your governor has could run the system anyway he wants to,” Lewis said. “This court could take the position we’re not going to hear death penalty cases. We could let them stack up. But the constitution says we shall [hear those cases].”

Gonzalez argued that Pleus failed to meet the conditions for issuing a writ of mandamus and the proper course was to seek a declaratory judgment in circuit court, where information could be developed. Pariente replied, “You say there are serious concerns, yet your response does not articulate the serious concerns. . . . There’s nothing you have raised in your response that would make us feel that the situation we have here is other than not liking the list of nominees.”

Gonzalez replied that going the declaratory judgment route would allow for such a record to be developed, and for discovery from JNC members on what went on in their deliberations. “There are other facts and they are not developed for this court,” he said.

He also contended the court could not act because the constitution specifies that the governor must make the appointment within 60 days of receiving the nominee list, and since that 60-day period has passed, the governor no longer has authority to act.

Justice Jorge Labarga raised that issue with D’Alemberte, who replied, “I thought Joseph Heller crafted that. Doesn’t that leave you in a terrible Catch 22?”

Under that argument, no one has standing to raise the issue within the 60-day appointment window because the governor might still act, and no one could raise it after the 60-day period because the governor no longer had authority to act, he said, adding, “What you’re saying is there’s no enforceability of that provision,” D’Alemberte said.

D’Alemberte argued that no one had even raised a hint of any impropriety by the JNC to the court, and if there had been, the governor had ample authority to order an investigation and could even suspend JNC members. Further, he said the court would not entertain a mandamus action if there were a question of corruption or malfeasance.

He also said the longer declaratory judgment option wouldn’t work, noting that Fifth DCA Chief Judge William D. Palmer had written to Crist saying the delay in appointing Pleus’ replacement was affecting the court’s ability to handle its workload.

Justices asked D’Alemberte if his request could lead to a situation where a governor would be required to make an appointment even when the process was tainted.

“I have full confidence that this court can craft an opinion that says the governor has a duty in the absence of some kind of corruption,” he said.

D’Alemberte said he agreed that Crist’s motives were good, but added, “If a governor is allowed to substitute his judgment for the judgment of the judicial nominating commission, what happens? What if we have a modern day George Wallace and we have a JNC who puts forth all women or all black candidates?”

Justice Charles Canady wondered if the six nominees submitted by the JNC might have a legitimate complaint if they were knocked off during the further deliberations requested by Crist.

Chief Justice Peggy Quince noted, “Either the governor has a right to ask the judicial nominating commission to reconsider or he doesn’t. . . . If the governor didn’t like the next list, we would be right back where we are.”