DeSantis ordered to pick another justice

Florida
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TALLAHASSEE (The News Service of Florida) — In a rebuke to Gov. Ron DeSantis, the Florida Supreme Court on Friday unanimously rejected his selection of a circuit judge to serve on the Supreme Court and gave the governor until noon Monday to appoint another candidate from a list of nominees offered early this year.

DeSantis’ appointment of Palm Beach County Circuit Judge Renatha Francis “has not complied with the Constitution’s clear commands” because she has not met a constitutional requirement that justices be members of The Florida Bar for 10 years, Friday’s unanimous decision said.

The governor, a Harvard Law School graduate, has been locked in a racially charged legal and political battle over his selection of Francis, who would have been the Florida court’s first Jamaican-American justice. She would also have been the court’s sole female justice and the only Black justice.

After Friday’s unanimous ruling, the state’s high court will continue to lack a Black justice.

The legal wrangling over Francis began in July, when state Rep. Geraldine Thompson, D- Windermere, asked the Supreme Court to find that the Republican governor’s appointment of Francis violated the state Constitution because Francis won’t reach the 10-year Bar membership requirement until Sept. 24.

DeSantis in May announced he was choosing Francis and Miami attorney John Couriel to fill two Supreme Court openings, selecting them from a list of nine candidates submitted by the Florida Supreme Court Judicial Nominating Commission on Jan. 23. Couriel immediately joined the Supreme Court, but DeSantis said Francis would be sworn in as a justice after she reached the Bar requirement on Sept. 24.

Francis “was constitutionally ineligible for the office of the justice of the Supreme Court” earlier this year, Friday’s opinion said.

“And Judge Francis remains constitutionally ineligible now,” justices added.

The justices took issue with DeSantis not only for his appointment of Francis, but also for waiting beyond a constitutionally mandated 60-day time period to fill the two vacancies on the Supreme Court.

The vacancies occurred after President Donald Trump tapped former justices Barbara Lagoa and Robert Luck to serve on the Atlanta-based 11th U.S. Circuit Court of Appeals.

The Florida Constitution requires that governors fill vacancies within 60 days after receiving lists of nominees from the nominating commission, but DeSantis said he postponed the two appointments due to the coronavirus pandemic.

“The Constitution’s 60-day deadline to fill this vacancy in office expired many months ago. Yet the governor has not satisfied his legal obligation to fill the vacancy by making a constitutionally valid appointment,” justices wrote in Friday’s four-page ruling.

The 10-year Bar membership and 60-day appointment deadline “are bright-line textual mandates that impose rules rather than standards and prioritize certainty over discretion,” Chief Justice Charles Canady and Justices Ricky Polston, Jorge Labarga, Alan Lawson and Carlos Muñiz — who was appointed by DeSantis — wrote in the unanimous decision. Couriel has not participated in the challenge over Francis.

Justices also relied on the late U.S. Supreme Court Justice Antonin Scalia to bolster their interpretation of the law.

“To some, enforcing rules like these might seem needlessly formalistic when the result is to preclude the appointment of an otherwise qualified candidate. But ‘formalism,’ as Justice Scalia observed, ‘is what makes a government a government of laws and not of men,’” they wrote.

The court also rejected arguments by DeSantis’ lawyers that Thompson’s request to cancel Francis’ appointment was an “eleventh-hour attempt to redline” the nominating commission’s list.

“The JNC itself made the decision to nominate a constitutionally ineligible candidate, and it is responsible for the consequences of that decision,” Friday’s ruling said.

The candidates remaining on the list include 1st District Court of Appeal Judges Lori Rowe and Timothy Osterhaus. The other candidates are 4th District Court of Appeal Judge Jonathan Gerber; 5th District Court of Appeal Judges Jamie Grosshans and Meredith Sasso; 3rd District Court of Appeal Judge Norma Lindsey; and Miami-Dade County attorney Eliot Pedrosa, who is United States executive director of the Inter-American Development Bank.

Thompson, a 71-year old retired educator who is Black, acknowledged that Friday’s decision leaves the Supreme Court without a Black justice.

The legal victory “is bittersweet, but it does affirm that all of us are governed by the rule of law, including the governor of the state of Florida,” she told The News Service of Florida in a phone interview.

In her original legal challenge, Thompson also expressed concern about diversity on the court and asked Supreme Court to order the nominating commission to come up with a new list of candidates.

The Supreme Court ruled on Aug. 27 that the governor overstepped his authority with Francis’ appointment but rejected Thompson’s request for a new slate of candidates. The court later allowed her to amend her petition to seek the remedy of forcing the governor to choose from one of the other applicants on the Jan. 23 list.

DeSantis has lashed out at Thompson, saying she would be at fault if the state ends up with Supreme Court that lacks a Black member.

But Thompson pointed out that none of DeSantis’ other four appointees to the Supreme Court have been Black. In addition to Muniz and Couriel, DeSantis appointed Luck and Lagoa as justices before they moved on to the federal appeals court.

“The person (Francis) that he appointed, he knew, by his own statements, he knew that she was unconstitutionally ineligible for the job. I think it points out the double-speak on the part of the governor who wants people to believe that he has a commitment to diversity but he has missed numerous opportunities to demonstrate that,” she said.

Thompson’s effort to keep Francis from joining the Supreme Court sparked acrimony among Black lawyers and legislators who maintain that the need for diversity on the court overrides Francis’ qualifications.

“To have a court in the state of Florida, which is one of the most diverse in our country, to not have any person of color is a travesty,” Eugene Pettis, a Fort Lauderdale attorney who was the first Black president of The Florida Bar.

Diversity on the court is critical to establish “people’s respect and trust” of the judiciary, Pettis said.

“Part of that trust is, people have to see their reflection in the mirror of the court. If they don’t, they’re suspicious of the results,” he said. “At this time, when there’s an awakening of how we need to do better in race relations, we step out and we have for the next five, 10, 15, 20 years, a court that doesn’t reflect us.”

But Thompson said significant civil rights accomplishments have been achieved even without the help of Black jurists.

“In my lifetime, I have seen major advances in terms of opportunities being opened up and barriers being broken down, and these were courts that didn’t have the pigmentation that we wanted but had the competence and the will to follow the rule and rule based on law,” she said.

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