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Briefs filed in Fifth DCA judicial appointment case

Senior Editor Regular News

Briefs filed in Fifth DCA judicial appointment case

Senior Editor

If Gov. Charlie Crist can’t reject nominees submitted by a judicial nominating commission, that would lessen the governor’s authority and could lead to manipulations by JNCs.

And the governor is contending that a retired Fifth District Court of Appeal judge who has challenged Crist’s refusal to appoint his replacement doesn’t meet the tests for the writ of mandamus he is seeking from the Supreme Court. Crist has criticized the list for not containing any African-American nominees.

Crist’s filing led a flurry of briefs in the mandamus action filed at the Supreme Court by retired Fifth District Court of Appeal Judge Robert J. Pleus, Jr.

Crist last year received a slate of six nominees to replace Pleus from the Fifth DCA Judicial Nominating Commission, but did not make an appointment, saying the commission overlooked qualified African-American candidates. He asked the JNC to revisit its list, but that panel declined, resubmitting the same six names.

Crist has since declined to make the appointment, which has forced Pleus to continue as a senior judge.

The judge, represented by Tallahassee attorney Sandy D’Alemberte, then filed a petition for writ with the Supreme Court, asking it to order the governor to make the appointment. The Bar’s Appellate Practice Section also filed an amicus brief asking the court to act. (See story in April 30 Bar News. )

The Central Florida Association for Women Lawyers, in a separate amicus, said if Crist is concerned with diversity, the Fifth DCA JNC’s list of six candidates included two women. CFAWL noted that no woman has been appointed to the Fifth DCA since 1990, and currently only one of the nine judges is a woman.

And the Florida NAACP also filed an amicus brief. It questioned whether racism may have played a part in the lack of African-American nominees and called for a change in JNC rules to allow the governor to see records of commission deliberations.

D’Alemberte has also filed a reply to Crist’s brief and argued the governor is overstepping his constitutional powers.

The case now rests with the Supreme Court, which has set oral argument for May 20.

Crist’s brief, prepared by Jason Gonzalez, Gerald B. Curington, Erik M. Figlio, and Carly A. Hermanson, devoted most of its argument to saying Pleus failed to make the case that a writ of mandamus was justified, noting those should only be used in extreme cases. It said that the writ could produce an absurd result, such as if a JNC tried to rig the appointment by submitting one qualified candidate, while the rest of the nominees were “window dressing” who only nominally met appointment criteria but “had some serious defect that would render his or her appointment impossible.”

That action would merit removal of the JNC members, Crist argued. “However, if Article V, section 11 is enforceable via mandamus, the governor would nonetheless have a mandatory duty to appoint from the list that resulted in the suspensions and removals.”

His brief noted that, “A petitioner seeking a writ of mandamus must meet the difficult standard of establishing (1) a clear legal right to compel a public officer (2) to perform a clear legal duty (3) for which no other legal remedies are available.”

And Pleus, Crist said, failed on all three criteria: “Judge Pleus has no clear legal right to compel the governor to exercise his judicial appointment power because the scope of the judiciary’s authority to compel a governor to exercise this power via mandamus is not clearly established. Judge Pleus cannot establish that the governor has a clear legal duty to exercise the power under the circumstances outlined in the petition because it is at best unclear whether the governor retains the authority to make an appointment outside of the time period prescribed in Article V, section 11(c) and, in any event, because the governor’s power of appointment is inherently discretionary and thus not clearly subject to judicial control via mandamus. Finally, Judge Pleus cannot establish that he lacks an ordinary remedy at law because a declaratory judgment action is a more appropriate means of remediating the alleged injury.”

The brief also asserted, “[T]he court has never used its mandamus jurisdiction to force a governor to perform a function that necessarily involves the exercise of significant executive discretion, such as the governor’s power of judicial selection at issue here. This power is a core constitutional function that, while mandatory, is immutably discretionary.”

D’Alemberte, on behalf of Pleus, said if the governor can reject nominees until he gets one he likes, then the power of the JNCs is eroded. Also undermined is the intended Article V check on the governor from appointing anyone he wants. He also disputed that mandamus is the wrong remedy and that Crist may be unable to make the appointment because the 60-day constitutional window has passed. For one, thing, D’Alemberte said, no action could be taken before the appointment deadline expired.

Crist’s lawyers argued that “requiring the governor to comply with the constitution will somehow render the provisions of the constitution ‘essentially meaningless,’”D’Alemberte wrote, adding, “Where the constitution tells us that a governor ‘shall’ perform an act, it is difficult to understand why an order directing that he perform the act renders the constitution meaningless.”

If a JNC committed malfeasance in submitting a list, then that list would be void, D’Alemberte said, and malfeasance has not been alleged.

Crist’s arguments amount to a claim that his actions cannot be reviewed by the court and that, by extension, the governor can operate above the constitution, D’Alemberte concluded.

He also wrote, “Equally troubling is the claim of a right to direct the operation of judicial nominating commissions. Although the governor already has vast power over the membership of the nominating commissions, the claim of respondent is that he should be able to displace their judgment. In effect, this position renders the nominating commission process a nullity.”

The CFAWL brief was prepared by Winter Park attorney Joyce C. Fuller and Orlando attorney Keersten Heskin Martinez. It noted that Crist, when he first directed the Fifth DCA JNC to begin its search, wrote that the nominees ‘“should reflect the racial, gender [emphasis added]
and geographic diversity of the people they serve’ and requested that the commission send the ‘maximum number of nominees (six)’ to accomplish that goal.”

Yet when Crist wrote back to the commission to tell it he was rejecting their slate of candidates, “The respondent suggested that the JNC had not followed his request for diversity and that his rejection of the list was in the ‘interest of diversity on our courts.’ Although the respondent had specifically noted the need for gender diversity in his letter dated September 8, 2008, he failed to acknowledge that two of the nominees — a full one third of the list — are female.” Gender diversity, CFAWL argued, is important and women remain underrepresented in Florida courts.

When Crist rejected the JNC’s nominees, he wrote to the commission saying he wanted African-American candidates, CFAWL contended, adding, “The JNC responded, noting that ‘the state’s interest in diversity was properly considered’ and that the prior list of names was the ‘most qualified’ applicants for the nomination. The JNC further stated that, according to the attorney general, it did not have the authority to withdraw the list and certify a new list. The JNC requested that the respondent provide contrary legal authority if he believed any existed. To date, the petitioner’s vacancy remains unfilled.

“With all due respect to the governor and his commendable attention to racial diversity, the governor can achieve his diversity goal by making the appointment from the list of six nominees certified by the JNC. The respondent has the opportunity to foster diversity by helping to fill a gender gap — a gap that has been gaping open for almost 20 years — by selecting a woman to fill the vacancy caused by the petitioner’s retirement.”

But the Florida NAACP looked at it differently. It also noted that minorities are underrepresented in Florida courts in general and on the Fifth DCA in particular, which currently has neither Hispanic nor African-American judges.

Further, its brief, prepared by Tallahassee attorney Charles Hobbs, said that Crist had found that there were three African-American applicants for the Fifth DCA vacancy who apparently were well-qualified, including two circuit judges with extensive experience.

“Despite being qualified and living in a district with a large population of African-American residents, neither of these African-American applicants was forwarded to the governor for consideration. The Florida NAACP avers that this reaches beyond oversight and that, at a minimum, the specter of discrimination has yet to be ruled out when considering the Fifth DCA’s refusal to balance the qualifications of all applicants with the region’s demographics,” Hobbs wrote.

The NAACP noted that JNC deliberations, and all related records, are closed, but that the court, by a 5-2 vote, can change JNC rules. “Accordingly, the Florida NAACP respectfully requests that this Honorable Court exercise its Article V powers and amend the JNC rules of procedure to allow a governor to obtain the requisite documents and transcripts to investigate misconduct or discrimination within the nominating process,” the brief said.

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