DeSantis overstepped authority in picking justice but no going back now, Florida Supreme Court rules

TALLAHASSEE — Gov. Ron DeSantis exceeded his authority when he appointed Renatha Francis to the Florida Supreme Court, even though she didn’t meet the legal requirements, the court ruled Thursday.

But the court decided that Francis’ appointment will stand because the solution sought by state Rep. Geraldine Thompson, D-Orlando, who brought a lawsuit challenging the appointment, can’t be done.

Thompson asked the court to require the Judicial Nominating Commission to come up with a new set of nominees that includes a qualified African American. Francis was the only Black person nominated, but she was admitted to the Florida Bar on Sept. 24, 2010, a few months short of the 10-year requirement in state law to be eligible for the Supreme Court.

Francis isn’t on the court now, and only intends to take her oath of office and take her seat on Sept. 24, when she legally qualifies.

“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,” the ruling states. “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.”

Thompson said the decision opens the door for DeSantis and future governors to flout the law.

“What they’re saying is, ‘He exceeded his authority but so what?’” Thompson said in an interview. “It gives free rein for this governor and any other governor to exceed their authority and there’s no repercussion for doing so.”

It was a 5-0 unanimous ruling, with Justice John Couriel, who was appointed on May 26 along with Francis, recusing himself. It was written by Justice Carlos Muniz, a DeSantis appointee.

“The General Counsel’s office is reviewing the decision, and we will have more to say after a thorough analysis of the Court’s opinion,” DeSantis spokesman Fred Piccolo stated in an email.

The ruling chides the arguments made by lawyers for DeSantis that because Francis doesn’t intend to take office until Sept. 24, the eligibility factors are moot.

But it also says Thompson didn’t file suit earlier when Francis was first named among the commission’s slate of nominees, which it issued Jan. 23. Since she didn’t challenge Francis’ appearance on the list, the list of nominees must stand.

And since she sought to throw out the list of nominees and require the panel to create a new list, there’s nothing the court can do to rescind Francis’ appointment, Muniz reasons.

“It is not our role to impose a remedy that (Thompson) has not requested and that is inconsistent with the (Thompson’s) stated goals,” the ruling states. “This is the parties’ case, not ours. Accordingly, we must deny the petition.”

Black lawmakers have pressed DeSantis and his predecessor, Rick Scott, now a U.S. Senator, to appoint more black judges to courts at all levels. But they especially urged DeSantis to appoint a Black justice when two seats opened in December. That’s because in his first three appointments, made early in 2019, none were Black, leaving the court without a Black justice for the first time in 40 years.

DeSantis picked Francis and Couriel to fill the spots left vacant by Justices Robert Luck and Barbara Lagoa, who were his first two appointees. But they were on the bench only for a few months before getting nominated and confirmed to the U.S. 11th Circuit Court of Appeals based in Atlanta.

Legislative Black Caucus chairman Rep. Bruce Antone, D-Orlando, praised DeSantis when the Francis appointment was announced, saying “she brings diversity and diversity of thought and experience to the bench.”

Thompson, though, split from the Black Caucus and objected to Francis when she was first nominated by the JNC, writing in an op-ed to the Orlando Sentinel that she was unqualified and a member of the Federalist Society, a conservative legal foundation. But she didn’t file a lawsuit until after Francis was appointed.

The ruling cited the case of Pleus v. Crist in denying Thompson’s request for a new slate of nominees from the commission. In that case, former Gov. Charlie Crist wanted to reject the list of nominees and order them to come back with more non-white candidates. The court found Crist was required to pick from the list.

The commission was set up in the 1970s after a string of scandals to constrain the power of the governor in appointing justices. Unlike at the federal level, the Florida Senate doesn’t confirm justice appointees.

The JNC is a nine-member panel composed of appointees of the governor, which interviews applicants and develops a list of three to six nominees for each vacancy when a seat becomes open.