TALLAHASSEE, Fla. – The Florida Supreme Court said Thursday that Gov. Ron DeSantis overstepped his authority when he appointed Palm Beach County Circuit Judge Renatha Francis to the Supreme Court, but it rejected a proposed fix that would have forced him to choose another candidate.
The ruling, in a challenge filed by state Rep. Geraldine Thompson, D-Windermere, stemmed from DeSantis’ decision in May to appoint Francis to the Supreme Court though she did not meet a requirement of being a member of The Florida Bar for 10 years. DeSantis said Francis would join the Supreme Court on Sept. 24, when she would meet the 10-year requirement.
Thompson’s attorneys challenged the constitutionality of the appointment and contended that the Florida Supreme Court Judicial Nominating Commission should provide a revamped list of candidates to DeSantis, who would then make a different selection.
The Supreme Court, in a 15-page main opinion written by Justice Carlos Muniz, agreed with the argument that DeSantis did not have the authority to appoint Francis. But the court said it couldn’t go along with requiring DeSantis to choose a different justice off a new list of nominees.
“The governor did exceed his authority in making this appointment,” wrote Muniz, who was appointed to the court by DeSantis in January 2019. “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. But that is not the end of the analysis, because the remedy Thompson seeks is legally unavailable under these circumstances. There is no legal justification for us to require a replacement appointment from a new list of candidates, rather than from the one that is already before the governor. And the correct remedy (an appointment from the existing list of eligible nominees) would be contrary to Thompson’s stated objectives in filing this case. Therefore, we hold Thompson to the remedy she requested and deny her petition.”
DeSantis in May announced that he was appointing Francis and Miami attorney John Couriel to replace former justices Barbara Lagoa and Robert Luck, who left the Supreme Court after being named by President Donald Trump to the Atlanta-based 11th U.S. Circuit Court of Appeals. Couriel has joined the Supreme Court, and his appointment was not an issue in Thursday’s ruling.
Francis was born in Jamaica and would be the first non-Cuban person of Caribbean heritage to serve on the Supreme Court, DeSantis said when he announced the appointments. She also would be the first Black justice since Peggy Quince retired early last year and would be the only woman on the court.
The judicial nominating commission in January sent the names of nine nominees, including Francis, to DeSantis. While DeSantis was supposed to make an appointment within 60 days, he put off the decision until May, citing the coronavirus pandemic.
Thompson filed the challenge last month at the Supreme Court, arguing, in part, that the nominating commission should provide a new list of nominees to DeSantis and asking that the JNC “strongly consider including for consideration the six fully qualified African-American candidates who applied for the vacancies in this case.” Francis was the only Black applicant on the list of nine nominees sent to DeSantis.
DeSantis’ attorneys disputed Thompson’s arguments about the appointment, contending in a court document that the state Constitution would require Francis to meet eligibility requirements “at the time of assuming office, not the date of appointment.”
Muniz, in an opinion joined by Chief Justice Charles Canady and Justices Jorge Labarga and Alan Lawson, rejected DeSantis’ interpretation of the eligibility requirement. Justice Ricky Polston backed DeSantis’ arguments.
Regardless, Muniz wrote that it “is not enough for the petitioner (Thompson) to establish that the governor exceeded his authority by appointing Judge Francis. To prevail in this action, the petitioner also must have sought proper relief. This is where the petitioner’s case fails.”
Muniz said the Supreme Court couldn’t order the nominating commission to reconvene and send a new list of nominees to DeSantis.
“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,” Muniz wrote. “This is the parties’ case, not ours. Accordingly, we must deny the petition.”
DeSantis spokesman Fred Piccolo said in a tweet that the governor’s office was looking at the ruling.
“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,” he said
Thompson, who is Black, has been involved in civil-rights issues and has provided re-enactments of historical Black leaders to the Legislature. The lawsuit said she “fully supports racial and gender diversity” on the Supreme Court.
In a concurring opinion Thursday, Labarga wrote that Thompson’s proposed fix in the case was motivated by an interest in diversity in the judiciary. Like Thompson, he also cited six qualified Black candidates who were not put forward by the Judicial Nominating Commission and said the panel “nominated the only African-American or Caribbean-American applicant who was constitutionally ineligible to fill either vacancy.”
“While I agree with the majority that there is no legal basis for granting this remedy (sought by Thompson), I write to underscore the missed opportunity to enhance the diversity of this court and to do so in a manner that adheres to the Florida Constitution,” Labarga wrote. “The original pool of applicants to the Supreme Court JNC included a generous slate of diverse applicants who were constitutionally eligible to fill the Lagoa and Luck vacancies.”