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Court enters show cause order over Gov. DeSantis’ Supreme Court appointment

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Justices allow Rep. Thompson to amend her challenge to the selection of Francis

Gov. Ron DeSantisGov. Ron DeSantis must show cause why the Supreme Court should not order him to select another qualified finalist to replace 15th Circuit Judge Renatha Francis to fill a vacancy on the state’s top court.

The action came September 8 as the court granted Rep. Geraldine Thompson’s motion to amend her original petition challenging Francis’s appointment to the court.

Just before the court’s order, a Fernandina Beach resident filed a separate action asking the court to order DeSantis to make another choice.

On August 27, the court ruled against Thompson’s original petition, although the majority agreed with her that DeSantis had exceeded his authority on his May 26 pick because Francis is ineligible to join the court until September 24. That’s her 10-year anniversary of Bar membership and the Florida Constitution requires that justices and appellate judges be Bar members for at least 10 years when they take office.

The court, though, dismissed the petition because Thompson asked the court to order the Supreme Court Judicial Nominating Commission to select another list of finalists from the original applicants and for DeSantis to choose someone from that list. The court said the only legal remedy was to have DeSantis pick someone from the original nominee list. (That list had nine names for two vacancies. Those finalists include now Justice John Couriel and Francis, so seven names remain.)

On August 31, Thompson, D-Windermere, asked the court for a rehearing or to allow her to amend her original petition to include the court’s specified remedy. DeSantis replied on September 4, opposing the request.

The court dismissed the request for a rehearing but allowed Thompson’s amended petition. It gave DeSantis until the end of September 9 to show cause why the amended petition should not be granted and Thompson until the end of September 10 to reply to any response by DeSantis.

“We believe that the interests of justice favor allowing Thompson to amend her petition. The Governor does not argue that allowing the amendment would cause him any prejudice, and we see none. Nor is this a case where Thompson has abused the privilege to amend or where an amendment would be futile,” the court said in its order. “And finally, to the extent that Thompson’s petition implicates both a public right and the institutional integrity of this Court, allowing an amendment would serve the public interest. To deny Thompson’s request to amend in these circumstances would not be a proper exercise of our discretion.”

DeSantis, in his September 4 reply, said under Florida Rule of Appellate Procedure 9.040(d), amending a petition is only proper before a case has been “disposed of on the merits” or “[i]n the absence of amendment, the court may disregard any procedural error or defect that does not adversely affect the substantial rights of the parties.”

Neither, the reply said, apply to Thompson’s request.

But the court said the governor did not cite any supporting case law for “this interpretation of the rule.”

“We do not see an inconsistency between the text of rule 9.040(d) and allowing Thompson to amend her petition. Thompson’s initial request for legally unavailable relief prevented this Court from possibly ruling consistent with Thompson’s meritorious constitutional claims,” the court said. “Permitting an amendment now would thus further the rule’s textually expressed purpose of allowing this Court to dispose of Thompson’s claims on the merits. While the Governor understandably questions the timing of Thompson’s request to amend, that concern goes to whether the request causes prejudice or abuses the privilege to amend. Both factors are absent here.”

Chief Justice Charles Canady and Justices Ricky Polston, Jorge Labarga, Alan Lawson, and Carlos Muñiz concurred in the order. Justice Couriel recused himself from the case.

The new challenge to the Francis appointment came just hours before the court released its order. It was filed by Jacksonville attorney Terry D. Bork on behalf of Fernandina Beach resident Robert L. Burch, Jr.

Burch, in his petition, argued that all of the constitutional issues were decided in the court’s August 27 ruling in Thompson’s case and he was now reiterating those as well as requesting what the court had defined as the proper legal remedy.

“Since the facts and the law in Thompson are identical to this case, it is clear that Thompson controls and that the same conclusion must be reached in this case — the Governor’s appointment of Judge Francis was unconstitutional,” according to Burch’s petition. “Simply stated, this Court must issue a writ of quo warranto to the Governor formally invalidating her appointment and a writ of mandamus ordering the Governor to select a new nominee from the certified list of nominees originally provided by the JNC.”

The petition identified Burch as a former Ohio attorney and state senator who retired to Florida about nine years ago. According to Wikipedia, he ran for Ohio governor in 1994, but was overwhelmingly defeated by a much better financed incumbent, Republican Gov. George Voinovich. In the two subsequent elections, he unsuccessfully ran for a seat in the U.S. House.

As this story went online, the Governor’s Office had not responded to a phone call and email from the Bar News seeking DeSantis’s response to the court’s order.

Filings in Thompson v. DeSantis, Case No. SC20-985, can be found at: http://onlinedocketssc.flcourts.org/DocketResults/CaseDocket?Searchtype=Case+Number&CaseTypeSelected=All&CaseYear=2020&CaseNumber=985.

Filings for Burch’s petition, Case No. SC20-1313, can be found at: http://onlinedocketssc.flcourts.org/DocketResults/CaseDocket?Searchtype=Case+Number&CaseTypeSelected=All&CaseYear=2020&CaseNumber=1313.

 

 

 

 

 

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