TALLAHASSEE – The Florida Supreme Court this week gave state Rep. Geraldine Thompson (D-Orlando) an avenue to sideline Gov. Ron DeSantis’ effort to appoint Judge Renatha Francis to the high court.
The appointment now may be in doubt after the court allowed Thompson time to amend her original petition challenging Francis, who doesn’t yet meet the constitutional requirement that Supreme Court justices have at least 10 years as a Florida Bar member. That petition urged the court to call on a Judicial Nominating Commission (JNC) to provide the governor with a new list of finalists for the court vacancy.
But in an Aug. 27 opinion, the high court deemed that solution “legally unavailable,” even though the court found that DeSantis exceeded his authority when he appointed Francis to the high court last May. DeSantis said previously that Francis would take her seat on Sept. 24, when she will attain 10 years as a member of the bar.
“At this point, the only legally appropriate and available remedy would be to require the governor immediately to appoint a constitutionally eligible person from the JNC’s existing certified list of nominees,” the court said in its Aug. 27 decision.
This week, the court unanimously granted Thompson the opportunity to amend her petition to propose the option of appointing one of the other names on the JNC’s Jan. 23 list of finalists. Thompson is expected to submit such an amended complaint this week.
If Francis is seated, she will be the first Caribbean-American justice on the court. None of the others on the list of finalists is Black.
A former prosecutor with the state Attorney General’s Office and former general counsel to the Florida Department of Law Enforcement said she did not see a possibility that DeSantis could reappoint Francis after Sept. 24.
“I do not think there is any chance that the court will permit an appointment other than one from the original list,” Janet Ferris told the Florida Record in an email, “and the appointee must be ‘a candidate who was on the JNC’s certified list of January 23, 2020, and is now constitutionally eligible for the appointment.’ ”
Ferris was quoting from the high court’s order issued on Tuesday, in which the justices also called on the governor to show cause for why he should not be mandated to fill the vacancy with a person on the list “who is now constitutionally eligible for the appointment.”
“... The court, in its September 8th order, has essentially disposed of the governor’s arguments regarding the amended petition and rehearing,” she said. “... It is difficult to conceive of any viable argument the Supreme Court would be willing to consider at this point.”
In its Aug. 27 opinion, the court concluded that prospective court justices must be constitutionally eligible for the office at the time of the appointment by the governor.
“The most important point is that the appointment must – and does – fill the vacancy in office,” the decision states. “And it does so immediately. Not at some time in the future, but on the effective date of the appointment itself. It necessarily follows that, in this context, any constitutional eligibility requirement ‘for the office’ attaches at the time of appointment.”