Thompson v. Desantis

301 So.3d 180

Representative Geraldine F. THOMPSON, Petitioner,

v.Governor Ron DESANTIS, et al., Respondents.

No. SC20-985

Supreme Court of Florida.

August 27, 2020

William R. Ponall of Ponall Law, Maitland, Florida, and Lisabeth J. Fryer of Lisabeth J. Fryer, P.A., Sanford, Florida, for Petitioner, Geraldine F. Thompson, in her Official Capacity as Representative in the Florida House of Representatives

Joe Jacquot, General Counsel, Nicholas A. Primrose and Kasey B. O'Connor, Deputy General Counsel, and Joshua E. Pratt, Assistant General Counsel, Executive Office of the Governor, Tallahassee, Florida, for Respondent, The Honorable Ron DeSantis, in his Official Capacity as Governor of Florida

Daniel E. Nordby of Shutts & Bowen LLP, Tallahassee, Florida, for Respondent, Daniel E. Nordby, in his Official Capacity as Chair of the Florida Supreme Court Nominating Commission

Jesse Panuccio, Commissioner, Supreme Court Judicial Nominating Commission, Fort Lauderdale, Florida, for Amicus Curiae Supreme Court Judicial Nominating Commission

MUÑIZ, J.

Representative Geraldine Thompson wants us to undo Governor Ron DeSantis's appointment of Judge Renatha Francis to fill a vacancy in office on this Court. Thompson argues that the Florida Constitution requires Judge Francis to have been a member of the Florida Bar for ten years at the time of the appointment, which Judge Francis undisputedly was not. Thompson asks us to invalidate the appointment, require the judicial nominating commission to certify a new list of candidates, and order the Governor to appoint someone from the new list.

The Governor did exceed his authority in making this appointment. In a nutshell, when a governor fills by appointment a vacant judicial office, the appointee must be constitutionally eligible for that office at the time of the appointment.¹ But that is not the end of the analysis, because the remedy Thompson seeks is legally unavailable under these circumstances. There is no legal justification for us to require a replacement appointment from a new list of candidates, rather than from the one that is already before the Governor. And the correct remedy (an appointment from the existing list of eligible nominees) would be contrary to Thompson's stated objectives in filing this case. Therefore, we hold Thompson to the remedy she requested and deny her petition.

I. BACKGROUND

Former Justices Barbara Lagoa and Robert Luck resigned from this Court in November 2019. As mandated by article V, section 11(c), the Supreme Court Judicial Nominating Commission then carried out the process of selecting nominees to replace the outgoing justices. On January 23, 2020, the JNC certified to the Governor a total of nine nominees for the two vacancies. It is undisputed that this started the clock running on the Governor's duty under article V, section 11(c) to fill the vacancies by appointment "within sixty days after the nominations have been certified."

Because he was focused on the COVID-19 pandemic and in light of the declared state of emergency, the Governor delayed his appointments beyond the constitutional deadline of March 23, 2020.² Then, on May 26, 2020, the Governor appointed John Couriel and Judge Renatha Francis to the offices of justice of the supreme court.³ The Couriel appointment is not at issue in this case.

The Petitioner filed an "Emergency Petition for Writ of Quo Warranto and Writ of Mandamus" in this Court on July 13, 2020. The petition seeks relief against Supreme Court JNC Chair Daniel Nordby and Governor Ron DeSantis in their official capacities. The factual basis for the petition is that, on the date of her appointment, Judge Francis had not been a member of the Florida Bar for the preceding ten years. It is undisputed that Judge Francis will not have attained ten years’ Bar membership until September 24, 2020. The Petitioner alleges that article V, section 8 requires Judge Francis to have been a member of the Bar for at least ten years as of the date of her appointment, and that accordingly the JNC's nomination and the Governor's appointment of her are invalid.

As to the JNC, the Petitioner seeks a "writ of quo warranto specifically concluding that the JNC exceeded its legal authority by including Judge Francis on the list of certified nominees." The Petitioner also seeks a "writ of mandamus compelling the JNC to immediately provide Governor DeSantis with a new list of nominees." The Petitioner asks that the candidates for inclusion on the revised list be limited to those who originally applied to fill the Lagoa and Luck vacancies and who were "constitutionally eligible to hold the office as of January 23, 2020, the date the JNC was originally required to certify its list of nominees to Governor DeSantis." Based on a concern for diversity in the judiciary, the Petitioner urges the JNC to "strongly consider" including on its revised list the six African-American candidates in the original applicant pool. The Petitioner argues that this remedy is warranted because "the entire process for filling the vacancy in question was corrupted by the JNC including an ineligible nominee" on its certified list.

As to the Governor, the Petitioner seeks a writ of quo warranto establishing that the appointment of Judge Francis exceeded the Governor's constitutional authority. The Petitioner further asks for a writ of mandamus ordering the Governor to "immediately appoint" one of the individuals from the JNC's "new list."

In the analysis that follows, we will consider the Petitioner's claims for relief against the Governor, but not her claims against Chair Nordby. The Petitioner asserts that the JNC violated its procedural rules and the constitution by including Judge Francis on its list of nominees—an alleged defect that was immediately apparent on January 23, 2020. Nonetheless, the Petitioner waited nearly six months to bring this action. It would not be proper under these circumstances for us to entertain a challenge to the JNC's list of nominees. See State ex rel. Pooser v. Wester , 126 Fla. 49, 170 So. 736 (1936) (petitioner's unreasonable four-month delay precluded grant of extraordinary relief).

II. ANALYSIS

A. Standing

It is undisputed that article V, section 3(b)(8) gives this Court discretionary jurisdiction to issue writs of mandamus and quo warranto to state officers. Nonetheless, the Governor argues that the Petitioner lacks standing to bring this action "because she alleges no direct and articulable stake in the outcome of this" proceeding. The Petitioner responds that she has standing as a citizen and taxpayer.⁴

This Court's precedent favors the Petitioner. For example, the petitioner in Whiley v. Scott , 79 So. 3d 702, 705 (Fla. 2011), sought a writ of quo warranto to establish that an executive order suspending certain agency rulemaking exceeded the governor's constitutional authority. As to standing, a majority of the Court held that "the extent of harm to the petitioner is not pertinent." Id . at 706 n.4. Suggesting that the case involved the vindication of a "public right," the majority held that "when bringing a petition for writ of quo warranto, individual members of the public have standing as citizens and taxpayers." Id . Similarly, in Pleus v. Crist , 14 So. 3d 941 (Fla. 2009), the Court unanimously found that the petitioner had standing as a "citizen and taxpayer" to seek mandamus relief compelling the governor to comply with his constitutional duty to fill a judicial vacancy. Id . at 945. We observed that mandamus relief was necessary "in order to effectuate the intent of the framers to avoid or minimize further delay in filling" the vacant office. Id . at 946.

Our Court recently addressed the issue of stare decisis in State v. Poole , 297 So.3d 487 (Fla. 2020), clarified 45 Fla. L. Weekly S121 (Fla. Apr. 2, 2020). There we held: "When we are convinced that a precedent clearly conflicts with the law we are sworn to uphold, precedent normally must yield." Id . at S48. In this case, to justify departing from the principle of stare decisis, we would have to conclude that our relevant precedents clearly erred in their understanding of the "judicial power" vested in Florida's courts by article V, section 1.

We will not lightly conclude that precedents of this Court are clearly erroneous. Based on our review of the arguments and analysis that have been presented to us, we cannot say that the Respondents have shown that the clearly erroneous standard is met here. We must therefore adhere to precedent and find that the Petitioner has standing.

B. Merits

Article V, section 8 says that "[n]o 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." This case requires us to decide when this eligibility requirement attaches in the context of a governor's appointment to fill a vacancy in judicial office under article V, section 11. The Petitioner argues that the eligibility requirement attaches at the time of appointment. The Governor responds that the eligibility requirement does not attach until the appointee actually takes the oath and assumes the duties of her office. According to the Governor, because Judge Francis does not intend to take the oath and assume office until September 24, 2020, "eligibility is not material, nor is it in question."

The plain text of article V, section 8—with its bare reference to eligibility "for the office of justice of the supreme court"—does not explicitly resolve the parties’ dispute. But the constitution nonetheless yields a clear answer to the question before us. That is because, "in construing multiple constitutional provisions addressing a similar subject, the provisions ‘must be read in pari materia to ensure a consistent and logical meaning that gives effect to each provision.’ " Zingale v. Powell , 885 So. 2d 277, 283 (Fla. 2004) (quoting Caribbean Conserv. Corp. v. Fla. Fish & Wildlife Conserv. Comm'n ...