State Rep. Geraldine Thompson on Monday asked the Florida Supreme Court to reconsider her challenge to Gov. Ron DeSantis’ appointment of a Palm Beach County circuit judge to the Supreme Court and require DeSantis to choose another nominee for the post.
The request came after justices on Thursday ruled that DeSantis overstepped his authority in May when he appointed Judge Renatha Francis to the Supreme Court though she had not met a legal requirement of being a member of The Florida Bar for 10 years. While justices agreed with Thompson that DeSantis had acted improperly, they said they couldn’t go along with her argument that DeSantis should be required to choose a different justice off a new list of nominees.
Instead, justices said the proper fix would have been to require DeSantis to choose one of seven other nominees sent to him early this year. But since Thompson didn’t request that solution, the court rejected her challenge.
In court documents filed Monday, Thompson’s attorneys argued for a rehearing in the case or, potentially, to be able to amend the case that the Windermere Democrat filed in July. They argued that the appointment of Francis should be invalidated and that the solution spelled out in Thursday’s ruling — that DeSantis choose one of seven other nominees — should be required.
“Representative Thompson supports adherence to the rule of law and the Florida Constitution,” Thompson’s attorneys wrote in one of the documents. “She opposes any decision which permits the Governor to unlawfully appoint a constitutionally unqualified candidate to the Florida Supreme Court.”
The legal fight stems from DeSantis’ decisions in May to appoint Francis and Miami attorney John Couriel to the Supreme Court to fill vacancies created when former Justices Barbara Lagoa and Robert Luck were named to the 11th U.S. Circuit Court of Appeals. Couriel joined the Supreme Court immediately, but DeSantis said Francis would become a justice on Sept. 24, when she would meet the 10-year Bar membership requirement.
Thompson’s attorneys challenged the constitutionality of the appointment and contended that the Florida Supreme Court Judicial Nominating Commission should provide a revamped list of candidates to DeSantis, who would then make a different selection. But the Supreme Court, in a 15-page main opinion Thursday, said it couldn’t go along with that request.
“The governor did exceed his authority in making this appointment,” Justice Carlos Muniz wrote in the main opinion. “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. 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.”
The judicial nominating commission in January sent the names of nine nominees, including Francis and Couriel, to DeSantis. While DeSantis was supposed to make appointments within 60 days, he put off the decisions until May, citing the coronavirus pandemic.
Francis was born in Jamaica and would be the first non-Cuban person of Caribbean heritage to serve on the Supreme Court, DeSantis said when he announced the appointments. She also would be the first Black justice since Peggy Quince retired early last year and would be the only woman on the court.
In her challenge in July, Thompson argued that the nominating commission should provide a new list of nominees to DeSantis and asked that the JNC “strongly consider including for consideration the six fully qualified African-American candidates who applied for the vacancies in this case.” Francis was the only Black applicant on the list of nine nominees sent to DeSantis.
In one of the documents filed Monday, Thompson’s attorneys appeared to acknowledge that blocking Francis would lead to the Supreme Court continuing to lack a Black justice. Thompson, who is Black, has been involved in civil-rights issues and has provided re-enactments of historical Black leaders to the Legislature.
“Representative Thompson has consistently indicated that she supports racial and gender diversity on the Florida Supreme Court,” one of the documents Monday said. “However, she has also consistently stated that achieving diversity should not, and is not, required to come at the expense of sacrificing the appointment of a qualified candidate to the Florida Supreme Court.”
One of the documents noted that Joe Jacquot, DeSantis’ general counsel, opposes the motion for rehearing or the potential filing of an amended case.