A state lawmaker has asked the Florida Supreme Court to reconsider its recent holding that, even though Gov. Ron DeSantis abused his authority in appointing Palm Beach trial judge Renatha Francis to the court, it was powerless to do anything about it.
A legal motion filed by attorneys for state Rep. Geraldine Thompson, who represents a part of Orange County, asks the high court to either rehear the case or order DeSantis to select someone else from the list of possible nominees from which the governor selected Francis.
“Permitting such an amendment is in the interests of justice because it would allow this court to impose a remedy for the governor’s constitutional violation and to invalidate an unlawful appointment to the Supreme Court,” the motion says.
“It would certainly enhance public confidence in the judiciary if all seven members of the Supreme Court were lawfully appointed and constitutionally eligible to serve as justices on the highest court in the state.”
The court had ruled 5-0 on Thursday that Francis was ineligible for the May 26 appointment because she hadn’t been a member of the Florida Bar for 10 years. It rejected outright the administration’s argument that it’s enough that she will have passed that threshold by Sept. 24, when she plans to take the bench.
But the court added that Thompson’s requested remedy — ordering the judicial nominating commission, or JNC, that recommended Francis to reopen the process and come up with a diverse new slate of nominees — was not legally possible.
The justices said Thompson didn’t ask for the legally available remedy — ordering DeSantis to pick another name from among the nominees the commission recommended at the same time as Francis — and so they would not give it to her.
The motion, filed Monday, argues that the court’s own Rules of Appellate Procedure allow it to do just that. Specifically, they say:
“If a party seeks an improper remedy, the cause shall be treated as if the proper remedy had been sought; provided that it shall not be the responsibility of the court to seek the proper remedy.”
The pleading continues:
“Accordingly, this court should … invalidate Judge Francis’ appointment to the Florida Supreme Court. As a result, the governor would be required to immediately appoint a constitutionally eligible person from the remaining seven individuals included on the JNC’s existing certified list of nominees.”
DeSantis blew well past his March 23 constitutionally mandated deadline for filling vacancies created by the elevation of former justices Barbara Lagoa and Robert Luck to the U.S. Court of Appeals for the 11th Circuit, but blamed his preoccupation on fighting COVID-19.
Francis, an immigrant from Jamaica, would be the only Black person serving on the court.
(DeSantis appointed John Couriel to the Supreme Court at the same time as Francis. Couriel has taken the bench but recused himself from this case.)
“As of this date, there has been a vacancy on the Florida Supreme Court for more than nine months,” Thompson’s attorneys argue in separate legal papers also filed Monday.
“The continued existence of a vacancy on the Florida Supreme Court since November 2019 adversely affects the function of government and requires that this court make an immediate determination on the issues in this petition,” these papers says.
Thompson has criticized the governor’s judicial picks on substantive ground, as well as the procedural fault she sees in the Francis appointment. In a news conference in July, Thompson argued that DeSantis has implemented a litmus test that threatens judicial independence.
DeSantis favors members of the Federalist Society for Law and Public Policy Studies, a conservative-to-libertarian organization that promotes so-called “textualist” or “originalist” judicial philosophies as opposed to purportedly legislating from the bench.
DeSantis is affiliated with the organization, as are Francis and Couriel. Lagoa and Luck, too, and also Carlos Muñiz, another of his appointments to the Supreme Court (and who wrote last week’s opinion).
In practice, Federalist Society members oppose economic regulation, affirmative action, and marriage equality and support for states’ rights and an expansive reading of presidential power.
The governor also has turned to the organization to populate the JNCs that screen potential judges.
Intervention by the court is appropriate, an earlier Thompson brief argues, when “a state officer or agency has improperly exercised a power or right derived from the state.”
Update: This story has been changed to include background about the governor’s favor toward members of the Federalist Society.