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Francis appointment to the Supreme Court challenged

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Renatha FrancisThe Florida Supreme Court has been asked to void the appointment to its ranks of 15th Circuit Judge Renatha Francis by state Rep. Geraldine Thompson, D-Orlando, who said Francis is ineligible because she hasn’t been a Florida Bar member for 10 years.

Gov. Ron DeSantis appointed Francis to the Supreme Court on May 26, but she is ineligible to join the court until September 24, which will be her 10th anniversary of Bar membership. The Florida Constitution requires appellate judges to have been members of the Bar for 10 years.

Thompson, represented by attorneys William R. Ponall of Maitland and Lisabeth J. Fryer of Sanford, filed an Emergency Petition for Writ of Quo Warranto and Writ of Mandamus on July 13, asking the justices to prevent Francis from taking the seat.

Justice John D. Couriel, appointed the same day as Francis, has already joined the court.

When he announced the appointment, DeSantis brushed aside questions about Francis and the 10-year requirement, saying she could assume the new post in September.

The petition named DeSantis and Daniel Nordby, chair of the Supreme Court Judicial Nominating Commission, as respondents.

Thompson’s filing argued that the JNC and Gov. DeSantis each exceeded their authority in, respectively, nominating and appointing Francis to the court.

“On the date the JNC certified Circuit Judge Renatha Francis as a nominee, she had not been a member of The Florida Bar for the preceding ten years. Based on that fact, the plain and unambiguous language of the Florida Constitution and the Supreme Court Judicial Nominating Commission Rules explicitly precluded the JNC from certifying Judge Francis as a nominee,” said Thompson’s petition. “This Court should issue a writ of quo warranto reaching that conclusion and a writ of mandamus compelling the JNC to immediately provide Governor DeSantis with a new list of nominees that are constitutionally eligible to hold the office.”

For the same reason, Thompson asked for a writ of quo warranto on DeSantis saying the governor exceeded his authority because the Florida Constitution bars Francis’s appointment because of the experience requirement.

A footnote said that the petition was not arguing that Francis was not qualified to be on the court and the request was based solely on the constitutional requirements.

The petition argued that the Supreme Court JNC violated three of its own rules because those rules prohibit it from selecting for further investigation or recommending to the governor any candidate who does not meet “all constitutional and statutory requirements” of the office.

The rules also say only “qualified nominees” shall be selected by the commission in carrying out its duties.

“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.

The petition also asked the court to issue a writ of mandamus compelling the JNC to give DeSantis a new set of nominees for the seat, using the remaining names on the applicant list for the two most recent vacancies.

DeSantis had until March 23 – six months before Francis meets the 10-year requirement – to make the appointment from the nine finalists forwarded by the JNC. Citing pressures from the COVID-19 pandemic, DeSantis gave himself more time to review the nominated candidates.

Aside from the 10-year standard, the petition said DeSantis lacked the authority to extend the constitutionally imposed 60-day period after receiving the nominations in which to make the appointment.

“In this case, the entire process for filing the vacancy in question was corrupted by the JNC including an ineligible nominee on the list of individuals it certified to the Governor,” the petition said. “As a result, the only remedy that is fair to all 31 individuals who originally applied for the vacancies is to require the JNC to immediately certify a new list of nominees to Governor DeSantis.”

In ex. rel. Lawson v. Page, 250 So.2d 257 (Fla. 1971), the court held that a gubernatorial appointment was not final until the governor executes the commission, the petition said. It went on to argue that decision was wrongly decided because the Constitution does not require the commission be issued to complete an appointment and in any case, the governor cannot issue a commission to someone who is not constitutionally qualified.

Also, Page does not apply because DeSantis missed the March 23 appointment deadline, the petition said, and the court should issue a writ mandamus to “instruct Governor DeSantis to promptly select a constitutionally-qualified nominee from the original list of 31 eligible applicants.”

The petition argued that allowing appointment of Francis to be carried out would lead to an absurd result because, “It would permit Governor DeSantis and future governors to allow vacancies in Florida’s appellate courts to remain open for extremely lengthy periods of time. There would be nothing that would prevent a governor from appointing someone who has been a member of The Florida Bar for only seven years and then waiting three years to sign that individual’s commission when they finally met the eligibility requirements of Article V.”

If the court grants petition, it said the JNC could consider the six African Americans in the original applicant pool who were not on the final list of nominees and all of whom the petition said were well qualified, including having been Bar members for between 21 and 36 years. Having African Americans on the finalist list would promote diversity which has been recognized as a goal by both the Legislature and the Governor, the petition said.

If Francis, who was born in Jamaica, does join the court, she would become the first Caribbean-American to serve.

Calls to the Governor’s Office, Nordby, and Rep. Thompson were not returned in time for this story.

The petition, its appendix, and a motion requesting oral argument can be found on the court’s website at https://www.floridasupremecourt.org/News-Media/Court-News/Geraldine-Thompson-v.-Ron-DeSantis.

On July 14, the court set an August 3 deadline for DeSantis and Nordby to file their responses and August 13 for Thompson to file her reply. The court said it will determine later whether to have oral arguments.

Curiel and Francis were selected by DeSantis by replace Justices Barbara Lagoa and Robert Luck, who joined the U.S. 11th Circuit Court of Appeals last year. Their resignations were effective in November.

Even though she hasn’t joined the court, Francis’s picture does appear, with no other information, on her biographical page on the Supreme Court’s website. The page has a note that she cannot join the court until September 24.

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