DeSantis defends Supreme Court justice selection process
A state representative does not have standing to challenge Gov. Ron DeSantis’ appointment of 15th Circuit Judge Renatha Francis to the Supreme Court and Francis meets the qualification for that post.
Those were among the arguments made by DeSantis and the Florida Supreme Court Judicial Nominating Commission in opposing the petition from Rep. Geraldine Thompson, D-Orlando, asking the Supreme Court to block Francis’ appointment and for the Supreme Court JNC to submit a new slate of nominees to the governor.
Thompson filed her petition for writs of mandamus and quo warranto against the JNC and DeSantis on July 13 saying that since Francis won’t have been a member of The Florida Bar for 10 years until September 24, she was ineligible to apply, be considered for, or appointed to the Supreme Court. Francis won’t be joining the court until her 10-year anniversary as a Bar member.
On August 3, Daniel Nordby, chair of the JNC, and DeSantis filed their replies. Thompson now has until August 13 to respond.
DeSantis, represented by General Counsel Joseph Jacquot, Deputy General Counsels Nicholas Primrose and Kasey O’Connor, and Assistant General Counsel Joshua Pratt, argued Thompson lacked standing, there was no violation of separation of powers that would justify the court acting, that the appointment did not violate the state constitution as Thompson claimed, that the constitution appropriately limits the governor’s appointment powers, and that Thompson requests an inappropriate remedy.
Nordby, who represented himself, said Thompson failed to show any dispute between herself and the JNC, that her petition failed to show an emergency affecting governmental operations, that the constitution requires only that an applicant be eligible at the time he or she assumes a judicial office and not at the time of nomination, and there was no basis for relief against the JNC.
“Petitioner claims Judge Francis was ineligible to be nominated by the Supreme Court JNC and appointed by Governor DeSantis because she was not yet a member of the Florida Bar for ten years prior to her appointment,” according to DeSantis’ petition. “However, the plain language of the constitutional requirements, supported by this Court’s precedent, require eligibility at the time of assuming office, not the date of appointment.”
The petition went on to argue Thompson lacks standing as a taxpayer or representative to seek relief and failed to demonstrate any special injury from the appointments.
“Petitioner cannot distinguish herself from any other citizen in Florida. Nor does Petitioner even attempt to allege she has suffered a special injury as a result of Governor DeSantis appointing Judge Francis,” DeSantis’ reply said. “Petitioner simply believes Judge Francis is not qualified and would like another individual — someone who was not even nominated for the certified list to the Governor — to be appointed.”
Nor, the response said, does the appointment have any implications for the separation of powers, since the Legislature is not affected by the action.
As for the eligibility issue, DeSantis argued, “Petitioner’s request is rooted in the theory that the Florida Constitution does not distinguish between appointment and assuming office…. Petitioner’s reasoning is flawed because appointment does not constitute assuming office.”
The constitution, he added, “makes plain that eligibility attaches upon assuming office. Petitioner’s scant analysis is unsupported by the plain text of Article V and this Court’s precedent…. A judicial candidate can apply for appointment and be appointed, as long as he or she meets the eligibility requirements on the date of taking office.”
While Thompson claimed the governor’s action could create an absurd result of appointing a judge years before he or she would be eligible for the office, DeSantis argued the constitution sets a limit because judges or justices must stand for election or merit retention at the first election after they have served a year in office — a time between one year and one day and three years, one month and 28 days depending on when the appointment is made.
“Judge Francis will clearly satisfy the ten-year bar requirement and become constitutionally eligible for office under Article V, section 8 of the Florida Constitution on September 24, 2020 — two years, three months, and ten days prior to the end of her appointed term on January 3, 2023. Therefore, her appointment is valid,” the response said.
DeSantis also argued he had the right to extend the 60-day appointment period because of the pandemic and that there is nearly always a delay between announcing an appointment and a new judge or justice taking office because he or she must wind down their legal practice or previous judicial office.
The appointment delay was not an attempt to sidestep his duties or protest the list of nominees but rather done “because he was focused on protecting the public in responding to the COVID-19 emergency,” the response said.
Nordby, the JNC chair, made many of the same points in his brief.
As for Thompson’s standing, he contended, “The Petition here does not identify any actual justiciable controversy between the Petitioner and the JNC Chair. Instead, the Petitioner asks the Court to provide an opinion on the meaning of the Florida Constitution without any allegations that the Court’s determination will affect the Petitioner’s legal rights in any way.”
He also said the constitution requires Judge Francis to meet the requirements of the Supreme Court when she assumes the office, not during the application or nominating process.
“Because the Petitioner concedes that Judge Francis will satisfy all applicable eligibility requirements at the time she will assume office, the Petition’s underlying legal theory fails as a matter of law,” Nordby’s reply argued. “The Petitioner’s request for quo warranto and mandamus relief against the Chair of the Florida Supreme Court Judicial Nominating Commission…should be denied on the merits.”
Among other things, Thompson argued that JNC rules prohibit the commission from considering anyone but qualified nominees who meet “all constitutional and statutory requirements” for the court.
“Pursuant to Article V, Section 8 of the Florida Constitution, ‘[n]o person is eligible for the office of justice of the supreme court or judge of a district court of appeal unless the person is, and has been for the preceding ten years, a member of the bar of Florida.’ It is undisputed that Judge Francis had not been a member of The Florida Bar for the 10 preceding years on January 23, 2020, the day the JNC included her on the list of certified nominees provided to Governor DeSantis. She will not meet that requirement until September 24, 2020,” the petition said.
DeSantis in his petition also addressed Thompson’s claim that Judge Francis, a Jamaican native who would become the first Caribbean American on the court if Thompson’s petition fails, was less qualified than other Black trial court judges passed over by the JNC. He noted the Florida Legislative Black Caucus supported Judge Francis’ appointment, as did former Bar President Eugene Pettis, the first African-American Bar president.
Also supporting her selection was “the Judicial Diversity Initiative, a collection of bar associations in South Florida comprised of the Charles B. Norton Chapter of the National Black Prosecutors Association, the Caribbean Bar Association, the F. Malcolm Cunningham, Sr., Bar Association, the Gwen S. Cherry Black Women Lawyers Association, the Haitian Lawyers Association, the T.J. Reddick Bar Association, and the Wilkie D. Ferguson, Jr., Bar Association,” DeSantis said.
One claim by Thompson apparently has resulted in Justice John Couriel, whose appointment was announced the same day as Judge Francis’, recusing himself from the case. Thompson noted that the JNC nominated nine candidates for two vacancies on the Supreme Court on January 23, and the appointments of Couriel and Francis weren’t announced until May 26 and under the constitution DeSantis had 60 days to make the appointment. Couriel joined the court shortly after the announcement.
On July 22, Couriel recused himself from the case “[o]n his own initiative,” according to the recusal notice, although the previous day Thompson had filed a motion for recusal citing the dispute over the appointment date.
Filings in the case, Representative Geraldine F. Thompson, etc. vs. Governor Ron DeSantis, et al., may be found here.