Court challenge to newest member of Florida Supremes with a thin resume, but good optics

By Noreen Marcus, FloridaBulldog.org

Editor’s note: This is a July 13 update of a story first published June 3.

State Rep. Geraldine Thompson, D-Orlando, petitioned the Florida Supreme Court Monday to stop Gov. Ron DeSantis’s latest appointee to the high court from taking her seat.

Thompson is challenging the governor’s naming Palm Beach Circuit Judge Renatha Francis, 42, to the seven-member panel. She would be Florida’s first black Jamaican-American justice.

Francis won’t be eligible to assume her duties until Sept. 24, when she’s scheduled to be sworn in, because that’s the 10-year anniversary of her admission to the Florida Bar. The Florida Constitution says a justice must have at least 10 years’ experience as an attorney.

The basis of Thompson’s emergency petition: When the Judicial Nominating Commission sent Francis’s name to DeSantis for consideration, she was not yet constitutionally eligible for the position. Therefore, the JNC was exceeding its authority; the governor exceeded his by naming her to the court.

The petition asks the court to order the JNC to submit six more names to DeSantis so he can pick a replacement for Francis “immediately.” It lists six “constitutionally qualified” African-American applicants, all of whom have at least 20 years’ experience as lawyers, and urges DeSantis to choose one.

Thompson, who is African-American, wrote that she “fully supports racial and gender diversity on the Florida Supreme Court” and that she finds it “deeply disturbing” there are currently no African-Americans, Caribbean-Americans or women among the justices of the state’s highest court.

“Gov. DeSantis has said that diversity in the judiciary is important and I agree,” Thompson said in a news release. “He has also said to the Democratic Leader of the Florida Senate that if he appoints an African-American to the judiciary, that person would have to be someone like U. S. Supreme Justice Clarence Thomas.

“I believe a critical appointment such as this should be based on merit and not

Ideology,” Thompson said.

Justice with paper-thin resume

Francis was promoted to the court May 26 with a paper-thin resume that would have disqualified anyone else imaginable.

DeSantis’s choice of Francis, 42, appears to have more to do with conservative politics and good optics than with merit. While she’s never tried a case, she’s a black Jamaican-American – the first ever to reach the Florida Supreme Court – and a mother of two who was on maternity leave when the governor announced her appointment May 26.

Perhaps more important, Francis has the imprimatur of membership and activity in the Federalist Society, the conservative judge-making juggernaut that President Donald Trump, among others, looks to for nominees.

The court decides issues of life and death, including death penalty cases, interprets the Constitution and state laws, and strives to achieve equal application of the law throughout Florida’s judicial system. Some well-regarded critics challenge Francis’s readiness to master the complex issues the justices must unravel.

At the core of their criticism is the fact that Francis has practiced law for less than the minimum-mandatory 10 years to qualify for the Supreme Court. They say she applied illegally, and that DeSantis had no right to choose her.

Critics also wonder why DeSantis was so eager to pick Francis over better-qualified minority candidates that he delayed her start date in an effort to power past the debate about his authority to make the appointment.

Francis and Alexander Hamilton?

None of that came up at DeSantis’s May 26 announcement. Instead, the governor compared Francis to a Founding Father.

“Her understanding of the Constitution reminds me of another famous Caribbean-American, Alexander Hamilton,” DeSantis said. “Hamilton articulated what Judge Francis deeply understands, that the judiciary lacks authority to indulge its legislative preferences.”

Another supporter, Florida Family Policy Council President John Stemberger, evoked a famously right-wing U.S. Supreme Court justice, calling Francis “a ‘textualist’ in the tradition of Clarence Thomas,” in a blog. Textualists take a strictly conservative approach to interpreting the law.

Janet Ferris is speaking out against the Francis appointment. Now retired, she was a government lawyer for 20 years, as a prosecutor in Fort Lauderdale and with the Attorney General’s Office, then general counsel to the Florida Department of Law Enforcement and the Department of Juvenile Justice. In 1991 Gov. Lawton Chiles named Ferris Secretary of the Florida Department of Business Regulation.

To cap her career she ran for and won a circuit court judgeship in Tallahassee and spent 10 years trying cases. “I felt the burden of the job tremendously,” Ferris said. “People’s lives, their finances, their families, abused children are in your hands.”

“When I saw this appointment, I was stunned, because to seek an appointment to the Supreme Court of Florida when you don’t even have 10 years in the Florida Bar, that was something I couldn’t even begin to understand,” Ferris said.

“You mean to tell me there aren’t outstanding Republican, African-American women who couldn’t be good candidates, experienced and with other credentials?” she asked. “There are good people out there who would have been distinguished choices for the governor. So why did this happen?

“The governor has a responsibility to find the best and the brightest,” Ferris said.

Praise from minority voices

DeSantis spokesperson Helen Aguirre Ferre responded to questions from Florida Bulldog with this emailed statement: “Governor DeSantis appointed Judge Francis for her exemplary work on the Miami-Dade County and 15 Circuit Court.”

Ferre emailed endorsements of the governor’s choice from leaders of several associations that represent minorities and women.

For example, “The Caribbean Bar Association thanks Gov. DeSantis for his historic appointment of Jamaican-born Judge Renatha S. Francis to the Florida Supreme Court,” president Tricia-Gaye Cotterell wrote.

Also, Broward County Mayor Dale Holness wrote, “Judge Francis is a highly regarded circuit court judge who has demonstrated strong work ethic, intellect and integrity.”

And, State Rep. Bruce Antone, a Democrat from Orlando, wrote, “I applaud Governor DeSantis’ appointment of Judge Renatha Francis to the Florida Supreme Court. Judge Renatha Francis is highly qualified to serve on the Florida Supreme Court, and she brings diversity and diversity of experiences to the Florida Supreme Court.”

Ferre did not respond to Ferris’s objection or to any other criticism. “Never heard of retired Judge Ferris,” Ferre wrote in the email. “You must think he [sic] is a judicial expert?”

‘Uniquely qualified’

Francis would not respond directly to emailed questions from Florida Bulldog. Instead, she authorized attorney Eugene Pettis, who was the Florida Bar’s first African-American president, to speak for her. He explained in an email that Francis is on maternity leave.

“There were several other outstanding African-American trial court judges who applied for this vacancy on the Florida Supreme Court,” Pettis wrote.

“We believe that Judge Francis was uniquely qualified for the Florida Supreme Court because she has had significant appellate experience that is so critical to the pursuit of justice.

“Judge Francis worked for six years at the First District Court of Appeal, writing legal memoranda used in various judicial opinions,” he wrote. “She also has the experience of working at a large law firm and serving as both a County Court Judge and Circuit Court Judge.

“When Judge Francis takes office, she will be the only Justice who has worked at all four levels of the Florida judicial system. We believe this will add a valuable perspective to the court,” Pettis wrote.

The other new justice

Also on May 26, DeSantis named Miami lawyer John Couriel, 41, to the Florida high court. Couriel and Francis will replace Barbara Lagoa and Robert Luck, who moved up to the U.S. Court of Appeals for the 11th Circuit in Atlanta late last year.

A son of Cuban immigrants, Couriel began practicing law 16 years ago. The former federal prosecutor is a partner with Kobre & Kim in Miami, where he handled complex international cases and racked up 25 trials, arbitrations and administrative hearings, according to his Supreme Court application.

Couriel graduated from Harvard College with honors and made it into the top quarter of his class at Harvard Law. From school he went to a coveted clerkship with a judge on the federal trial court in Washington, D.C.

No one is questioning Couriel’s credentials. The opposite is true of Francis. Lawyers are expressing outrage about her appointment on message boards and blogs–anonymously, mostly, because they might represent clients in the court she’s about to join.

“Justice Francis is going to be very deeply out of her depth,” Miami criminal defense and appellate lawyer Nancy Wear wrote in an email to Florida Bulldog. “The cases before her will concern life and death, not simply setting bonds (her only assignment in the criminal courts of Miami-Dade County); on the civil side, they will also concern difficult issues (remember Bush v. Gore?).”

Seven years in Tallahassee

Francis never tried a case as a lawyer and spent just two months hearing cases in the family

and probate division of Palm Beach County Circuit Court before submitting her application for the high court.

Earlier she spent nine months in Miami-Dade County Court handling a large volume of minor civil matters, followed by 16 months determining bond amounts and eligibility in Miami-Dade Circuit Court.

Born and raised in Jamaica, Francis moved to the United States 16 years ago and settled in Florida in 2007. In May 2010, after co-managing a Caché cosmetics store in Atlanta and graduating from a low-rated law school in Jacksonville, Francis wound up at the First District Court of Appeal in Tallahassee. She gained the bulk of her legal experience there as a law clerk for one year and a staff attorney for the next six.

Then she moved to Miami and did mostly personal-injury-protection insurance defense work for Shutts & Bowen, where she made some influential friends during the months before starting her judicial career in 2017. Francis has never campaigned for election. Then-Gov. Rick Scott appointed her to the Miami-Dade county and circuit courts, and DeSantis named her to the Palm Beach Circuit Court.

Francis’s connections helped her rise. Shutts & Bowen managing partner Jason Gonzalez was one of her references for the high court. Another Shutts partner, Daniel Elden Nordby, chairs the Supreme Court Judicial Nominating Commission (JNC) that sent her name to DeSantis. Seven of her 10 Supreme Court references are First District Court of Appeal judges.

Law school and student debt

In contrast to Couriel’s Harvard pedigree, Francis received her undergraduate degree with high honors from the University of the West Indies in Jamaica, her Supreme Court application says. She graduated from Florida Coastal School of Law in Jacksonville.

Florida Coastal is the last standing of three for-profit law schools owned by Sterling Partners, a Chicago-based private equity firm. U.S. News & World Report ranks it at 148 of 194 law schools in the U.S.

A sister school in Charlotte, N.C., closed in 2017 under pressure from the American Bar Association and the North Carolina Attorney General’s Office, the New York Times reported. By April 2019, 25 former students had sued Sterling in Illinois state court alleging consumer fraud and deceptive business practices, according to the ABA Journal.

Like the defunct Charlotte school, Florida Coastal is known for relatively low Bar exam passage rates and high tuition. Francis’s Supreme Court application lists $155,238 in student debt as her only liability over $1,000.

Pettis did not respond to this question from Florida Bulldog about Florida Coastal: Is this a sufficient academic alma mater for a Florida Supreme Court justice?

The writing samples Couriel and Francis submitted with their Supreme Court applications are worlds apart. Couriel attached an elaborate investigative report about financial oversight in Puerto Rico and an intricate defense motion in a case brought bythe U.S. Commodities Futures Trading Commission.

Ready for the high court?

Francis sent the JNC three samples, none longer than eight pages. In one, she used textualism to decide an insurance case in favor of an insurance company. A second, from her time on the family court bench, is an order enforcing an equitable distribution agreement between former spouses.

The third, Luis Santovenia v. Miami-Dade County, is notable only because it misidentifies Miami-Dade County Attorney Abigail Price-Williams as representing Santovenia instead of the county.

Asked to comment on Francis’s credentials, former judge Ferris said, “I don’t want to be unkind or insult somebody. When you take every one of those little pieces of information you have to ask, is this person ready to assume the responsibilities of this incredibly important job? Maybe in 10 years she would be.”

The common denominator for Couriel and Francis is membership in the conservative Federalist Society. Their Supreme Court applications show that Couriel was less active in the group than Francis, who attended the national Federalist Society convention in 2016 and its Florida and national conventions in 2017.

President Trump’s federal judicial nominees must be confirmed by the Senate. But DeSantis has a free hand to choose state judges from a shortlist of applicants vetted by a JNC. The governor selects all JNC members.

An inconvenient provision

The governor is bound by the constitutional requirements for naming justices, Ferris said, and one of them sets a 10-year eligibility threshold. Article V Section 8 states, “No person is eligible for the office of justice of the Supreme Court … unless the person is, and has been for the preceding ten years, a member of the bar of Florida.”

The way Ferris reads that provision, Francis should not even have applied to the Supreme Court JNC until Sept. 24, 2020, her 10-year anniversary as a licensed attorney. Yet her application is dated Dec. 24, 2019.

“Although the Court would benefit from greater diversity, this appointment makes absolutely no sense, and the Governor’s lack of regard for the Constitution and laws of this state is appalling,” Ferris wrote in an email to Florida Bulldog.

Francis’s supporters dismiss the timing issue as a technicality — one called it “a legal nuance.”

“The Governor has discretion in determining when the term of a judge or justice will commence,” Pettis wrote for Francis. Since DeSantis set Sept. 24 as her commencement date, he sees no problem.

But another interpretation is that DeSantis is ignoring the law to serve his political purposes in an election year.

Ferris said, “I think it is a big deal because if we don’t adhere to some of these clearly articulated black-and-white requirements from the Constitution, what are we doing? Why do we obey any laws or any constitutional dictates?”