Gov. DeSantis abused his authority on appointing a justice, FL Supreme Court says, but now what happens?

Renatha Francis, behind podium, looks toward her family after Gov. Ron DeSantis announced on May 26, 2020, that he planned to place her on the Florida Supreme Court. Lt. Gov. Jeanette Nuñez stands at left. Credit: Florida Channel screenshot

The Florida Supreme Court ruled Thursday that Gov. Ron DeSantis abused his authority in naming Renatha Francis to a vacancy on the high court because she hadn’t belonged to the Florida Bar for the constitutionally mandated 10 years.

But what happens next isn’t clear.

“The governor did exceed his authority in making this appointment. In a nutshell, when a governor fills by appointment a vacant judicial office, the appointee must be constitutionally eligible for that office at the time of the appointment,” Justice Carlos Muñiz wrote.

In terms of a remedy, at best, the court said it might be able to order the governor to make a new selection from the original list of nominees submitted by a judicial nominating commission.

But Democratic state Rep. Geraldine Thompson of Windermere, who challenged the Francis appointment, didn’t ask for that, he wrote.

“It is not our role to impose a remedy that the petitioner has not requested and that is inconsistent with the petitioner’s stated goals. This is the parties’ case, not ours,” Muñiz concluded.

The ruling left unclear whether Thompson could amend her complaint to argue for the remedy the court suggested. She wasn’t immediately available for comment, but in remarks to the Orlando Sentinel suggested her case had hit a rock.

“What they’re saying is, ‘He exceeded his authority but so what?’” Thompson told the newspaper. “It gives free rein for this governor and any other governor to exceed their authority and there’s no repercussion for doing so.”

Her appellate attorney, William Ponall of Orlando, said in an emailed reply to a request for comment that Thompson was looking now to future appointments.

“We are happy that the Supreme Court agreed in entirety with our argument that the governor’s appointment of Judge Francis violates the Florida Constitution,” Ponall said.

“This validates our belief that the rule of law and the sanctity of the Florida Constitution remain paramount. Hopefully, neither the governor nor the JNC will seek to circumvent the requirements of the Constitution in the future.”

The governor’s office commented via a tweet from communications director Fred Piccolo, who said: “The general counsel’s office is reviewing the decision and we will have more to say after a thorough analysis of the court’s opinion.”

Joining the 5-0 opinion were Chief Justice Charles Canady and justices Jorge Labarga and Alan Lawson. Justice Ricky Polston agreed only with the outcome in an opinion much friendlier to the governor’s position.

Justice John Couriel — whom DeSantis appointed to the court at the same time as Francis — recused himself from the case. They would replace justices Barbara Lagoa and Robert Luck, who joined the U.S. Court of Appeals for the 11th Circuit.

DeSantis announced the appointments on May 26 — well past the March 23 deadline imposed under the Florida Constitution, which gives governors 60 days to select from nominees recommended by the judicial nominating commission, or JNC, for the Supreme Court.

He blamed the delay his need to prioritize the campaign against COVID-19.

“We express no view on whether the state of emergency made it permissible for the governor to miss the constitutional deadline,” Muñiz wrote in a footnote.

The problem for Francis, a Black Palm Beach County trial judge who’d immigrated from Jamaica, is that she hasn’t been a member of the Florida Bar for 10 years, as also required under the Constitution.

In pleadings before the Supreme Court in the case, attorneys for the governor argued that what mattered were not her qualifications at the time when her appointment was announced, but when she would receive her formal commission and take the bench.

The plan is for her to join the court on Sept. 24, when she would have been licensed to practice law through the Bar for the required 10 years. In the meantime, she has been on maternity leave following the birth of her second child.

Muñiz’s opinion dismisses the governor’s arguments — including that he is entitled to select a justice who’d need as many as three years to become eligible — as “untenable” and “implausible.”

He cited the legal doctrine of the “presumption against ineffectiveness,” which “ensures that a text’s manifest purpose is furthered, not hindered.”

“The most important point is that the appointment must — and does — fill the vacancy in office. And it does so immediately. Not at some time in the future, but on the effective date of the appointment itself,” Muñiz wrote.

“It necessarily follows that, in this context, any constitutional eligibility requirement ‘for the office’ attaches at the time of appointment. Otherwise, the governor would be filling an office — again, under Article V, Section 11 [of the Constitution] this happens at the time of appointment — with someone whom the Constitution deems ineligible for that office,” he added.

Muñiz rejected DeSantis’ argument that Thompson was ineligible to file her petition, concluding that her status as a citizen and taxpayer gave her standing as a matter of “public right.”

On this point the opinion expressly declined to overrule a precedent it established in 2011 and indicated how the court would address future requests to depart from “stare decisis” — a long established legal principle requiring respect for earlier decisions in the interests of stability.

“In this case, to justify departing from the principle of stare decisis, we would have to conclude that our relevant precedents clearly erred in their understanding of the ‘judicial power’ vested in Florida’s courts by Article V, Section 1” of the Florida Constitution, the court said.

“We will not lightly conclude that precedents of this court are clearly erroneous. Based on our review of the arguments and analysis that have been presented to us, we cannot say that the respondents have shown that the clearly erroneous standard is met here. We must therefore adhere to precedent and find that the petitioner has standing.”

Even so, Thompson can’t demand an entirely new list of nominees.

“The petitioner has shown no reason why the irregularity of one ineligible nominee on the JNC’s certified list requires discarding the whole list. As noted, that list already includes more than the minimum number of candidates that [the Constitution] requires,” Muñiz wrote.

“At this point, the only legally appropriate and available remedy would be to require the governor immediately to appoint a constitutionally eligible person from the JNC’s existing certified list of nominees.”

Justice Labarga agreed with Thompson in a separate opinion that the commission violated its own rules — specifically that “no person shall be selected for further investigation and consideration who does not meet all legal requirements for the office to be filled,” in recommending Francis.

“Each nominee must be immediately ready to fill the vacancy,” he wrote.

“Thus, although the majority concludes that Thompson’s Supreme Court JNC claims were untimely, it is nonetheless clear that the Supreme Court JNC also exceeded its authority in nominating a constitutionally ineligible applicant,” he wrote.

He agreed with the majority that there’s no legal basis for requiring the commission to draft a new list of nominees, but lamented “the missed opportunity to enhance the diversity of this court and to do so in a manner that adheres to the Florida Constitution.”

He noted that the list the JNC did send to DeSantis contained “six constitutionally eligible African-American or Caribbean-American applicants. Each of these six applicants is an experienced attorney who, at the time of application, had no fewer than twenty-one years of Florida Bar membership.”

Polston also agreed with the outcome but wrote a separate opinion in which he was the only justice who gave full credence to the governor’s arguments. He noted that DeSantis has yet to issue the commission that would allow Francis to take the bench.

“Although the governor does not have the authority to appoint someone ineligible, he has not yet done so by announcing Judge Francis as his selection,” Polston wrote.

“Nothing in [the Constitution] specifies that the governor must only select nominees certified by the JNC that are eligible … on the date of certification or the date of selection,” he continued.

“Instead, the text … requires a governor to appoint from the nominations certified by the JNC, and Gov. DeSantis has stated his intention to do so in regard to Judge Francis. The plain meaning of [the text] does not foreclose the possibility of an individual becoming eligible between the time a governor selects that individual from the JNC list and the time the individual assumes office.”