Justice Francis gets sweet revenge by helping torpedo a state senator’s court challenge to judicial nominees

By Noreen Marcus,FloridaBulldog.org

Novice Florida Supreme Court Justice Renatha Francis got a chance to rule against the woman who thwarted her high court bid two years ago – and ran with it.

Because of their history, State Sen. Geraldine Thompson, D-Windermere, had asked the current Supreme Court to disqualify Francis from ruling on Thompson’s challenge to several nominees for appellate judgeships.

Or Francis could have voluntarily stepped aside like her colleague, Justice Jamie Grosshans, did in the same case.

Thompson “has a reasonable fear that Justice Francis cannot fairly and impartially” apply the law to her case because her earlier court action “had a direct personal effect on Justice Francis,” Thompson’s motion says.

That language tracks Florida Code of Judicial Conduct Canon 3E(1):  “A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned…[including instances where] the judge has a personal bias or prejudice concerning a party…”

FRANCIS KEEPS THOMPSON CASE

“If I were the judge, I’d say, well, I’d best get out of this one,” said judicial ethics expert Jennifer LaVia, referring to Francis. She stressed that judges must examine their own impartiality, mindful of public perception.

“It’s kind of a close call, although, given the fact that Thompson went after Francis, it looks like the justice would have a hard time being impartial. But that’s their job,” said LaVia, a family lawyer in Tallahassee and former professor at Florida State University.

In response to Thompson’s motion, Supreme Court Clerk John Tomasino issued a one-sentence order that kept Francis on the case. There was no explanation from any of the justices; none of their names appear on the order.

LaVia found that procedure “weird.” She wondered “how the clerk can sign something that has to be evaluated by the court.”

Asked about this, Supreme Court spokesman Paul Flemming said, “It is a ruling of the court but issued by Clerk Tomasino speaking for the court.” Tomasino could not be reached for comment; he silently rerouted a Florida Bulldog call to Flemming.

SEN. THOMPSON: 1 WIN, 1 LOSS

In 2020, a similar Thompson challenge ended with the Supreme Court forcing Gov. Ron DeSantis to drop Francis, his first choice, and select another justice. He chose Grosshans.

Francis was a West Palm Beach family court judge with a thin resume but also close ties to the influential, conservative Federalist Society. Thompson’s winning argument was that Francis lacked the requisite 10 years of law practice to join the Supreme Court.

The governor seized every opportunity to berate Thompson for her court action. This year, when he picked Francis again, DeSantis apologized for what he characterized as her unfairly aborted 2020 candidacy.

On Dec. 15 Thompson lost her latest court battle, with Francis signing onto Chief Justice Carlos Muniz’s unfavorable opinion. The court rejected Thompson’s contention that when judicial candidates are nominated, to qualify for appointments they must already live in the districts where they want to work.

“We hold that the constitutional residency requirement for judges attaches at the time of appointment—not at the time of nomination,” Muniz wrote for the court.

DID 3 NEW JUDGES SCRAMBLE?

Then, presumably, three of the designated appellate judges broke land-speed records relocating their households.

Right after the court’s ruling, DeSantis tapped three out-of-district candidates, along with four who clearly met the residency requirement, for the Fifth and Sixth District appellate courts.

One nominee was supposed to have moved by Dec. 16, when the governor announced appointments to the new Sixth District Court in Lakeland. Two others were supposed to have moved by Dec. 20, when DeSantis named judges for the existing Fifth District Court in Daytona Beach.

Florida Bulldog could not independently determine whether the out-of-district appointees moved quickly enough to meet their deadline. Judges’ home addresses aren’t public records.

In addition to the appointments, judicial personnel at several district courts were reshuffled to staff the new Lakeland court. All the changes will take effect on Jan. 1.

LOSING JUDGE WINS PROMOTION

The four new appellate judges whose residency went unchallenged are Orange Circuit Judges Joshua Mize and Keith White for the Sixth District, and for the Fifth District, Duval Circuit Judge Adrian Soud and Putnam County Judge Joseph Boatwright.

Former Hillsborough Circuit Judge Jared Smith is the most controversial of the three out-of-district nominees DeSantis chose. The two others, who are going to the Fifth District court, are John MacIver, chair of the Florida Gaming Control Commission, and Palm Beach Circuit Judge Paige Kilbane.

Voters dumped Smith after he briefly blocked a teenager’s abortion, citing her high school grades as evidence of immaturity. He was reversed on appeal.

But now, thanks to the governor, the Supreme Court and a Judicial Nominating Commission, Smith is being promoted to the Sixth District bench. He’ll join other abortion opponents that DeSantis has placed on state appellate courts, just as the Supreme Court awaits the restrictive abortion law it’s widely expected to rubber-stamp.

Thompson’s latest petition to the Supreme Court prompted an unusual flurry of activity that shrank the panel from seven to four justices. So, to assemble the required five-justice quorum for the case, Muniz had to bring in a visiting “associate” justice; he tapped Chief Judge Ivan Fernandez of the Third District Court of Appeal in Miami.

A TOUGH QUORUM T0 KEEP

Grosshans had recused herself after Thompson called for the justice’s disqualification because her husband, Joshua Grosshans, is a member of the Sixth District Court’s Judicial Nominating Commission. Thompson targeted five of the commission’s short-listed candidates.

Justices Charles Canady and John Couriel were excluded from the case because they had agreed to provide references for particular candidates. Canady stepped up for DeSoto Circuit Judge Danielle Brewer and Fort Myers Chief Judge Michael McHugh, nominees for the Sixth District Court.

And Couriel would have supported another Sixth District nominee, state Rep. Mike Beltran, R-Lithia. None of the candidates Canady and Couriel backed made DeSantis’s final cut.

If Francis gave up the case, Muniz would have been in the awkward position of having to import a second judge to restore the quorum.

In the end, one court member wasn’t entirely on board with the chief justice’s opinion. Justice Jorge Labarga wrote a partial dissent.

He agreed with the main point about residency, but had another idea about who gets to decide if a Judicial Nominating Commission broke its own rules. It’s the Supreme Court, Labarga wrote; the other justices opted for the governor.