The legal fight over Renatha Francis’s appointment to the Florida Supreme Court appears to be coming to a close, and this much now is clear: Gov. Ron DeSantis could lose.
The high court has already ruled that the Republican governor abused his authority in naming Francis to the state’s highest court because she doesn’t meet the constitutional requirement that potential justices must have belonged to The Florida Bar for 10 years.
Now the court faces a sticky choice: It could allow the governor to get away with it, tarnishing its own reputation by seating an unqualified justice. Or it could embarrass the governor by forcing him to back down on one of his signature priorities: reshaping Florida’s courts through the appointment of conservatives.
The latest evidence suggest the court might choose the second option.
On Tuesday, in an unanimous unsigned order, five of the justices ordered DeSantis to explain why they shouldn’t block Francis from taking her seat among them and order the governor to pick another candidate from among the seven left on the table when the Supreme Court Nominating Commission, or JNC, last vetted candidates in January.
“The governor is ordered to show cause why he should not be required immediately to fill the vacancy in office of justice of the Supreme Court by appointing a candidate who was on the JNC’s certified list of Jan. 23, 2020, and is now constitutionally eligible for appointment,” the court said.
That the court wants to decide soon is evidenced by the short deadline the justices gave DeSantis: A single day. State Rep. Geraldine Thompson, who earlier asked the court to block Francis, would have another day after that to file any response to the governor’s arguments.
It doesn’t appear the lack of a seventh justice has made any difference in rulings. Since three more liberal justices went into forced retirement at about the time DeSantis took office, to be replaced by solid conservatives, there have been no 4-3 split rulings by the court.
DeSantis had been eager to inject some diversity into his appointments to the state’s highest court, now dominated by white males (including three of Hispanic heritage).
Francis is a Black woman who immigrated from Jamaica and graduated from the Florida Coastal School of Law in Jacksonville. She’s now a trial judge in Palm Beach County.
Her other qualification, to DeSantis, was her affiliation with the Federalist Society for Law and Public Policy Studies, an organization that preps like-minded attorneys beginning in law school for roles in the conservative legal movement, including judgeships.
Every justice DeSantis has appointed has belonged to the society. He, himself, is affiliated with the group.
What Francis lacks is what the Florida Constitution considers sufficient experience in the law — specifically, that 10-year membership in The Florida Bar, which bestows licenses to practice in the state. She won’t reach that milestone until Sept. 24, when DeSantis plans to sign her commission and let her join the court.
In the meantime, the court’s website lists Francis as “justice-designate.”
Thompson, a Democrat from Orange County, argued the governor’s loyalty to the society amounts to a litmus test. She did not respond to a request for comment.
Neither did Daniel Nordby, the partner in Shutts & Bowen’s Tallahassee office who chairs the JNC. (He’s also a Federalist member.)
Meanwhile, a second lawsuit arguing against Francis’ appointment landed before the Supreme Court on Tuesday. This one, filed on behalf of a taxpayer from Fernandina Beach, reiterates the arguments first raised by Thompson.
“The unconstitutional appointment of a person to the Florida Supreme Court who could sit on the bench for 33 years certainly will impact the public’s confidence in the Supreme Court and its decisions for years to come,” the motion reads.
The second challenge was filed by Jacksonville attorney Terry Bork on behalf of Robert L. Burch, Jr.
Burch is described as a “former Ohio attorney and former state senator who has lived in Fernandina Beach about 9 years after his retirement,” according to an affidavit filed with the Supreme Court.
The case essentially piggybacks arguments first raised by Thompson.
Burch is suing as a taxpayer — a status the court has already ruled gives him standing to challenge the appointment.
Bork declined to read too much into the court’s order.
“I’ve learned not to guess court decisions. But it indicates that Thompson has a strong argument,” he said.
DeSantis announced the appointments of Francis and John Curiel (who has joined the court without objection and is recusing himself from the case) 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 JNC.
They were to replace Barbara Lagoa and Robert Luck, placed on the court by DeSantis early in his term but elevated in November to the U.S. Court of Appeals for the 11th Circuit.
The governor blamed the delay on his need to prioritize the campaign against COVID-19.
The court on Aug. 27 expressly rejected every argument the DeSantis administration raised in the defense of the appointment, including that a governor theoretically could wait for three years to place a qualified nominee on the court, as “untenable” and “implausible.”
It expressly ruled that an appointee to the court must be qualified to serve at the time of his or her selection by the governor.
Thompson originally wanted the court to order DeSantis to begin the selection process from the beginning, with a fresh slate of diverse nominees.
The court said it legally couldn’t do that. It did say that it could order the governor to pick another name from among the seven other original vetted candidates but, because Thompson hadn’t asked for that remedy, the court couldn’t provide it.
Attorneys for Thompson asked the court on Sept. 1 either to rehear the case or allow her to amend her motion to seek a new appointee from the original list. The governor filed his objections to either outcome late last week.
The court said no on Tuesday to a rehearing, but OK’d the amended motion, citing its rules of appellate procedure.
“Thompson’s initial request for legally unavailable relief prevented this court from possibly ruling consistent with Thompson’s meritorious constitutional claims. Permitting an amendment now would thus further the rule’s textually expressed purpose of allowing this court to dispose of Thompson’s claims on the merits,” the court said.
“While the governor understandably questions the timing of Thompson’s request to amend, that concern goes to whether the request causes prejudice or abuses the privilege to amend. Both factors are absent here,” it added.
The court cited “the interests of justice” in its order, saying Thompson was not trying to abuse procedural rules.
“And finally, to the extent that Thompson’s petition implicates both a public right and the institutional integrity of this court,” allowing Thompson to revise her arguments “would serve the public interest,” the court said.