Thompson’s reply brief refutes the governor’s rational for appointing Justice Francis
Gov. Ron DeSantis has ignored the Florida Constitution, contorted a past Supreme Court decision, and made arguments that “border on bizarre” in defending his appointment of 15th Circuit Judge Renatha Francis to the state’s top court, according to Rep. Geraldine Thompson, D-Orlando.
Thompson filed her final brief on August 13, replying to DeSantis and the Supreme Court Judicial Nomination Commission Chair Daniel Nordby’s defense of the JNC nominating Francis and the governor’s appointing her on May 26.
Thompson filed for writs of mandamus and quo warranto on July 13, arguing Francis was not qualified for the office because she will not have been a Bar member for 10 years, as required by the Constitution, until September 24. She also said the Constitution mandated that DeSantis make the appointment within 60 days of the JNC submitting its nominations, which occurred on January 23.
DeSantis delayed the appointment (and that of Justice John Couriel) in March, saying issues related to the coronavirus pandemic were preventing him from reviewing the nominees.
In their August 3 reply briefs, DeSantis and Nordby said Thompson lacked standing to pursue the writs and the nomination and appointment were proper because Francis will meet all the constitutional requirements upon joining the court on September 24.
They also cited Mendez v. Miller, 804 So. 2d 1243 (Fla. 2001), where the court held that an elected judge had to meet all of the qualifications for the office on the day the judge assumed office, not on election day.
Thompson, represented by William R. Ponall of Maitland and Lisabeth J. Fryer of Sanford, said that reasoning misconstrues Mendez because it applies to elections, not appointments.
“The Mendez holding is limited to candidates for election and provides no guidance in the context of a JNC nomination or a Governor’s appointment of a Florida Supreme Court Justice,” Thompson argued. “The Constitution dictates independent procedures and independent timeframes for elected judicial candidates as opposed to judicial vacancies filled by appointment….
“Mendez has never been applied to situations involving judicial appointments, nor has any other case cited by the Respondents. In fact, no authority exists that justifies the actions of the JNC or the Governor in appointing a Florida Supreme Court Justice who does not meet the minimum constitutional requirements.”
The brief also contended that, “The JNC is required to nominate candidates who are ready to take office immediately per the Constitution, case law, and the JNC’s own rules,” which includes that applicants it considers must meet all constitutional requirements, including the 10-year-Bar-membership standard for the appellate judiciary.
“It is well outside the legitimate concerns of the JNC to attempt to justify the nomination of a constitutionally unqualified candidate with novel arguments that contort the plain text of the Florida Constitution,” Thompson’s brief said. “If the JNC hopes to retain a modicum of independence in the process of judicial appointments, as it was designed to do at its inception, this will be the first and last time it places itself in a position to defend an illegal nomination to the highest Court in the State of Florida.”
DeSantis, the brief said, is required to appoint someone who meets the constitutional standards and act within 60 days of the nominations’ submission. However, “With all due respect, in defending his failure to fill the vacancy, the Governor asserts some arguments that border on bizarre,” Thompson said.
The brief rejected the argument that the appointment won’t be effective until Francis gets her commission and assumes office, and hence is constitutional. No commission, Thompson said, is required to complete the appointment under the Constitution.
“Further, the failure to issue a commission does not extend the constitutional timeline to allow an illegally appointed Florida Supreme Court candidate to ripen into a candidate who meets the minimum constitutional requirements for the office,” the brief said.
Thompson also rejected DeSantis’s argument that since the seat Francis is scheduled to assume won’t be on the ballot for merit retention until November 2022, he has a year before that election, or November 2021, to fill the vacancy, and hence Francis’s appointment is proper.
“Contrary to the Governor’s assertion that ‘the Florida Constitution is silent as to when an appellate court’s appointee’s term begins,’ the answer is plain: the appointment can begin as soon as the JNC certifies at least three nominees per vacancy, but must not exceed sixty days from that date,” the brief said, adding previous Supreme Court advisory opinions to the governor have held that six and seven month-long judicial vacancies were too long.
The brief also rebuffed the claim that COVID-19 justified delaying the appointments, noting that DeSantis made a dozen lower court appointments between his first pandemic emergency order on March 1 and the time he announced he would delay filling the two pending Supreme Court vacancies.
Thompson rejected the claim she lacks standing, noting the Constitution and case law give wide standing to Florida citizens to pursue quo warranto proceedings, and she has standing as a state representative because DeSantis’s actions affect another branch of government.
She said her requested remedy of the JNC revisiting the list of applicants and submitting a new list of nominees to DeSantis is proper, adding, “in In re Advisory Opinion to the Governor, 551 So. 2d 1205 (Fla. 1989), this Court previously concluded that the Governor is not required to appoint a Florida Supreme Court Justice until the JNC has complied with its constitutional duties.”
Francis was selected to succeed former Justice Robert Luck, the same day DeSantis named Couriel to replace Justice Barbara Lagoa. Both Luck and Lagoa had been appointed to the court by DeSantis in early 2019, but were named late last year to the 11th U.S. Circuit Court of Appeals.
Couriel has recused himself from the case. His appointment, like Francis’s, came after the 60-day deadline that is being challenged in Thompson’s petition, although the petition does not challenge Couriel’s appointment.
Thompson has requested oral arguments on her petition, but the court has not acted on that. All the filings in Representative Geraldine F. Thompson, etc. vs. Governor Ron DeSantis, et al., Case No. SC20-985, can be found on the court’s website.
