By Noreen Marcus, FloridaBulldog.org
Aug. 27 – The Florida Supreme Court ruled today that Gov. Ron DeSantis exceeded his authority when he appointed Palm Beach Court Circuit Judge Renatha Francis to the high court.
Yet she will still be sworn in on Sept. 24, the day that marks her 10-year anniversary as a member of the Florida Bar. DeSantis violated the Florida Constitution when he chose Francis before she reached the 10-year mark, the court decided.
The justices rejected a challenge to the appointment filed by State Rep. Geraldine Thompson (D-Orlando), saying she lost because she chose the wrong remedy. Thompson wanted the Judicial Nominating Commission to supply DeSantis with a new list of nine candidates drawn from the larger pool of applicants, but precedent requires the governor to return to the original list, Justice Jorge Muniz wrote for the majority.
Muniz did not explain why the court didn’t order this remedy, but merely said it was holding Thompson to her request and rejecting it.
The panel of five justices agreed on the result but provided different reasoning in separate opinions by Justices Jorge Labarga and Ricky Polston. Labarga wrote that he lamented the missed opportunity to increase diversity on the court while also following the Florida Constitution by picking from among six qualified black applicants.
Lawyers for Gov. Ron DeSantis and the commission that screens prospective Florida Supreme Court justices had lashed out court fiings in response to Thompson’s audacious court challenge that targeted the governor.
In court documents they also complained about having to defend their actions and reached for seemingly irrelevant cases to support their arguments and stretch the Florida Constitution to cover DeSantis’s agenda.
“The governor and the JNC [Judicial Nominating Commission] are twisting themselves into pretzels to try to come up with a justification for what they did, but that doesn’t carry the day,” said Janet Ferris, a retired Tallahassee trial court judge.
Thompson mounted the challenge last month. She was trying to prevent what she insisted was the illegal promotion of Palm Beach Circuit Court Judge Francis to the state’s most powerful tribunal.
All this commotion about a Supreme Court justice is happening in-house at the high court. Justice John Couriel, who was appointed along with Francis to fill two vacancies, recused himself, and Francis obviously can’t be involved. That left five justices to resolve one of the most politically fraught contests in recent memory.
Optics pro, optics con
Optics helps the 43-year-old Francis, who would be the first Jamaican-American woman of color to serve on the high court. The same optics could hurt Thompson, an African-American who knows that black leaders enthusiastically support this breakthrough in judicial diversity.
Instead of echoing them or staying silent, however, Thompson engaged lawyers to approach the court Francis is set to join on Sept. 24 and try to stop it from happening.
Thompson’s legal attack was directed not at Francis but at the JNC that recommended her and the governor who named her.
The challenge “is based solely on the requirements of the Florida Constitution” and “in no way questions whether Judge Francis has the abilities or qualifications to be considered for appointment” at the proper time, the petition by lawyers William Ponall and Lisabeth Fryer says.
What Francis lacked is 10 years of experience as an attorney, the minimum set by the Constitution to qualify for the state’s premier court. Her investiture is scheduled for Sept. 24 because that’s the 10-year anniversary of the day Francis joined the Florida Bar.
Federalist friends in high places
She never tried a case as a lawyer or campaigned to become a judge. Her close ties to the conservative Federalist Society apparently greased her rapid rise within the court system.
The bulk of Francis’s experience was six years at the First District Court of Appeal in Tallahassee as a staff attorney, a research and writing job.
Then she worked briefly on insurance defense at Shutts & Bowen, where prominent Federalist Society member Daniel Nordby is a partner. As chair of the JNC that short-listed Francis for the Supreme Court, Nordby is fighting Thompson’s challenge.
In 2017 then-Gov. Rick Scott named Francis to Miami-Dade County Court; two years later, after another promotion, DeSantis moved her from the circuit court in Miami-Dade to the one in Palm Beach County. Two months later Francis applied to the Supreme Court JNC.
Her conservative credentials were on full display May 26, when DeSantis introduced Francis as the newest justice and invoked a Federalist Society icon, U.S. Supreme Court Justice Clarence Thomas.
The governor said Francis understands “the judiciary lacks authority to indulge its legislative preferences.” These are buzzwords for the right-wing goal of unquestioning deference to the Legislature.
The politics of diversity
When Thompson filed her challenge July 13, she disagreed with DeSantis that ideology—even if it’s coupled with diversity—should outweigh all else in picking judges.
“Gov. DeSantis has said that diversity in the judiciary is important and I agree,” her media release said. “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 Court Justice Clarence Thomas.
“I believe a critical appointment such as this should be based on merit and not ideology,” Thompson said in the release.
This year Thompson is running for re-election against Republican businessman Bruno Portigliatti. The House District 44 race is bound to be fierce because the district was a Republican stronghold until Thompson captured it in 2018.
It will be surprising if the Portigliatti campaign doesn’t seize and weaponize the issue of Thompson opposing Francis’s elevation to the Supreme Court.
Thompson, a seasoned politician who has served in the Legislature for 12 of the last 14 years, must have anticipated a political backlash when she filed Thompson v. DeSantis, Ferris said. She admires Thompson for doing it anyway.
“Just the investment, the time and energy and willingness to put your name on a case like this…It takes courage and it takes dedication to the rule of law,” Ferris said.
Thompson also must know it’s hard to question her commitment to diversity—and not just because she herself is black.
She was secretary to the late Rep. Gwen Cherry, the first African-American woman elected to the Florida Legislature. After a career as a college administrator, Thompson founded the Wells’ Built Museum of African American History and Culture in Orlando.
Her lawyers’ argument to the Supreme Court was straightforward: The Constitution says an applicant to the high court must have 10 years’ experience. Francis was short of the 10-year mark when she applied.
The Constitution also says that once the governor gets a list of recommended candidates for an opening, he or she has 60 days to make a final selection. DeSantis announced his choice two months too late.
A missed deadline
For support, Thompson’s lawyers pointed to Pleus v. Crist, a 2009 Supreme Court opinion. Then-Gov. Charlie Crist didn’t like the JNC’s list of candidates to fill a vacancy on the Fifth District Court of Appeal because he wanted greater diversity and none of the three African-American lawyers who applied was on the list.
He asked for a do-over, and the JNC sent him the same list. Then Crist sat on his hands for almost six months until the Supreme Court ordered him to pick a judge immediately.
“While we applaud the Governor’s interest in achieving diversity in the judiciary … the constitution does not grant the Governor the discretion to refuse or postpone making an appointment to fill the vacancy,” Justice Jorge Labarga wrote for a unanimous court.
Lawyers for DeSantis and the JNC responded that the Constitution does indeed authorize the Francis appointment. The 10-year benchmark means she needs to qualify on the date she’s sworn in, not on the date she applied.
And, they wrote, this time the governor required more than 60 days to choose Couriel and Francis from a list of nine candidates because he was laser-focused on the state’s COVID-19 response.
Attack on Thompson ‘broadsides’
Ferris scoffed at their reasoning. “If the governor is right that time limits in the Constitution are irrelevant, then why are they there?” she asked.
As support for their side, lawyers for DeSantis and the JNC offer decisions mostly having to do with residency requirements for elected officials.
A friend-of-the-Supreme-Court brief that JNC commissioner Jesse Panuccio filed attacks Thompson for challenging the JNC and the governor. It takes the unusual tack of trying to turn against Thompson some “broadsides” she allegedly directed at Francis outside of court.
Her effort is “part of a larger campaign of abusive rhetoric and attempted intimidation,” Panuccio wrote. He accused Thompson of using the judiciary as “grist” for her “public-relations mill” and urged the court to “deny the Petition outright and without oral argument.” In other words, let’s end this now and go home.
Ferris called the filing “extremely intemperate” and pointless. Rather than complaining about having to put on a defense, she said, “just defend your actions.”
The justices could decide to keep the case going, ditch precedent and rewrite the law. Referring to the “citizen and taxpayer” authority, or, standing that Thompson used to get the court’s attention, JNC chair Nordby wrote, “This Petition represents an opportunity for the Court to reconsider that precedent.”
An ‘incredibly disturbing’ view
The venerable doctrine of stare decisis, or, respect for precedent, would seem to prevent that reconsideration. But Nordby called the doctrine an excuse to perpetuate “mistakes.”
Adam Richardson, a West Palm Beach civil appellate lawyer who studied Thompson v. DeSantis, said he finds the governor’s theory of standing “incredibly disturbing.” The Supreme Court accepting his view “will make it almost impossible for his actions to be challenged in court” by people like Thompson.
Still, Nordby may be preaching to the already converted. Dominated by hard-right conservatives, the court has been accused of rejecting its own liberal precedents for no better reason than they’re not conservative precedents.
“I have never seen a court reverse its prior decisions in such a political way and such a disingenuous way,” retired criminal defense attorney Stephen Harper has said.