Gov. DeSantis suggests he might yet find a way to place Renatha Francis on FL Supreme Court

By: - September 10, 2020 1:10 pm
Florida Supreme Court

Florida Supreme Court. Credit:

Arguments filed by his attorneys with the Florida Supreme Court suggest Gov. Ron DeSantis may be playing for time and citing ambiguity over whether he formally appointed Renatha Francis to the high court back in May.

The legal contest may turn on whether, in selecting Francis for the bench on May 26, DeSantis was formally appointing her or merely announcing plans to appoint her on or around Sept. 24, when she will have been a member of The Florida Bar for the constitutionally required 10 years.

That’s exactly two weeks away. If the proceedings extend beyond that point, the attorneys suggest, DeSantis could go ahead and formally appoint Francis at that time. (The case docket is available here.)

The court has already ruled that the governor may not appoint an unqualified justice and suggested it might spike the Francis nomination and order him to pick one of the seven remaining candidates suggested by a judicial nominating commission, or JNC.

In legal arguments filed late Wednesday, DeSantis hinted at his strategy.

“The governor would appoint from the list as certified by the JNC a nominee who is eligible at the time of his near-future appointment — whether it be the actual act of Judge Francis’ appointment in barely two weeks or an appropriate reconsideration of all nominees with an appointment of one who is eligible at that future time,” the pleading says.

Although the justices have suggested they are eager to resolve the controversy, DeSantis’ legal team asked them to schedule oral arguments on the matter.

The dispute, initiated by a challenge to Francis’ appointment by Democratic state Rep. Geraldine Thompson of Orange County, is turning into a major conflict between the governor and the state’s high court, even after DeSantis used appointments to the court to cement a conservative majority.

In addition to the legal wranglings, DeSantis has mounted a political offensive in support of Francis. He called a news conference in Miramar on Wednesday to denounce Thompson for trying to keep his nominee, a Jamaican American trial judge from Palm Beach County who would become the court’s lone Black justice, off the court.

And he summoned Black office holders and Francis herself to appear alongside him during the event — a highly unusual role for an aspiring justice.

The Republican Party of Florida has taken up the cause, tweeting on Wednesday evening: “There’s a politically motivated lawsuit to stop Justice-Designate Francis from being sworn into the @flcourts {meaning Florida Supreme Court] this month. She’s a historic pick and would be the ONLY black and female jurist on the court. Tell @GovRonDeSantis and Judge Francis you’re with them! #SwearHerIn.

Thompson herself is Black and has objected to DeSantis’ reliance on the Federalist Society for Law and Public Policy Studies for candidates for judgeships, arguing it amounts to a political litmus test.

During a Zoom news conference Thursday, Thompson argued DeSantis is trying to blame her for his own failure to appoint a qualified Black justice. DeSantis has made five appointments to the court and could have appointed a Black justice on those occasions, she said.

In fact, DeSantis’ JNC passed over every qualified African American candidate, she said, in favor of an unqualified candidate who is politically acceptable to him.

“It is the governor who has the responsibility and who should have placed diversity on the court. It’s not my responsibility. It is his.”

Additionally, Thompson said, Francis has a thin resume, having served on the county and circuit benches only since 2017. Other applicants offered decades of experience.

“It’s almost as if to say if you want color you have to sacrifice qualifications,” Thompson said.

“This is one of the worst and most egregious examples of racial tokenism that I have ever seen in my life,” she said.

As for Francis’ participation in the governor’s news conference, it “was an extreme lack of judgment on this individual who wants to serve on the Florida Supreme Court to allow herself to be pulled into a partisan political event, and to actually speak. That was just amazing to me,” Thompson said.

Later, in a reply filed with the court to DeSantis’ brief, Thompson’s attorneys accused the governor of raising “bizarre arguments which seek to manipulate the requirements of the Florida Constitution so that his unconstitutional appointment is permitted to stand. The governor’s untenable position is directly contrary to the oath he took to support, protect, and defend the Constitution of the State of Florida.”

There are now two challenges to Francis: Jacksonville attorney Terry Bork filed a petition with the Supreme Court on Tuesday on behalf of Robert L. Burch Jr. Burch is described in court records as a “former Ohio attorney and former state senator who has lived in Fernandina Beach about 9 years after his retirement.” Burch’s case raises roughly the same complaints as Thompson.

In their latest legal arguments, DeSantis’ attorneys argue that if the justices order him to drop Francis they would upset the balance of power between the executive and judicial branches.

“Striking Judge Francis from consideration and requiring an ‘immediate appointment’ would not only prejudice the governor and the judiciary, but the very citizens of Florida whom both branches serve. The people of Florida reasonably expect that their governor will have sufficient time to vet and select a nominee to assume the duties of the state’s highest court,” the pleading says.

DeSantis argues that there exists some ambiguity over whether he formally appointed Francis on May 24 (along with John Curiel, whose appointment drew no objections and has joined the court, although he’s recused himself from this case) or merely announced his intention to appoint her once she was eligible.

“Of course, the governor would not have appointed her on May 26, 2020, knowing she would immediately be ineligible. Indeed, it makes no sense to assume the governor intended a futile appointment on May 26. The court should thus reject an unreasonable assumption and rely on the actual actions and expressed intentions of the governor on that day,” the pleading says.

But the court, in an Aug. 27 opinion written by DeSantis appointee Carlos Muñiz, ruled that governors are bound by strict deadlines for making appointments and expressly rejected the governor’s argument that he is entitled to select a justice who’d need as many as three years to become eligible — as “untenable” and “implausible.”

The vacancies at issue opened in November and the JNC recommended nine candidates, including Francis and Couriel, in March, following a delay that DeSantis attributed to the COVID-19 emergency. The court noted that delay in its Aug. 27 ruling but did not comment on its propriety.

The governor’s team cited a concurring opinion by Justice Ricky Polston on Aug. 27 that accepted DeSantis’ delay. “Nothing in [the Constitution] specifies that the governor must only select nominees certified by the JNC that are eligible … on the date of certification or the date of selection,” Polston wrote.

In recommending Francis notwithstanding her ineligibility at that time, the JNC relied on a reasonable interpretation of controlling Florida Supreme Court precedents, the governor’s team argued.

“Therefore, the JNC did its job and certified a list of nominees to the governor. Accordingly, a court order modifying the existing JNC must permit the commission to start over with its typical review process, especially considering the court’s [Aug. 27 ruling] and that eight months that have passed since its last certification,” the pleading says.

And that, the document says, would require “appropriate due diligence over the course of weeks” to vet backgrounds, legal writings, and public actions.

“Gov. DeSantis does not take this obligation lightly. He personally reviews extensive files of each nominee on the JNC’s certified list and conducts personal interviews with many, if not all, of the nominees,” the pleading says.

In response to DeSantis’ argument that he hasn’t appointed Francis yet, the Thompson brief notes that both parties agreed earlier in the case that he had appointed her, as the court pointed out in its Aug. 27 ruling.

“The governor’s response is replete with representations that he has ‘appointed’ Judge Francis to the Court, not merely announced his selection of Judge Francis,” the court wrote at the time.

“It is disingenuous at this point in the litigation to attempt to change the underlying facts in this case, particularly the facts provided to this court by the governor and relied upon by this court in resolving this matter,” Thompson’s brief says.

As for the need for additional vetting, the brief argues that “the governor has been required to appoint a constitutionally eligible individual to the court since March 23, 2020. Any interference with his ability to immediately appoint an eligible nominee to the Supreme Court is the result of his own actions and inaction. The governor cannot rely on his own unconstitutional conduct as a justification for further delay.”

Note: This story has been updated to include information from Rep. Thompson’s news conference and her reply brief.

Our stories may be republished online or in print under Creative Commons license CC BY-NC-ND 4.0. We ask that you edit only for style or to shorten, provide proper attribution and link to our web site. Please see our republishing guidelines for use of photos and graphics.

Michael Moline
Michael Moline

Michael Moline has covered politics and the legal system for more than 30 years. He is a former managing editor of the San Francisco Daily Journal and former assistant managing editor of The National Law Journal. He began his career covering the Florida Capitol for United Press International. More recently, he wrote for Florida Politics.