High court to rule on Gov. Crist's rejection of court nominees

TALLAHASSEE — Gov. Charlie Crist says his goal was a more diverse court system, but in a case before the Florida Supreme Court he is accused of violating the Constitution by rejecting all six candidates for a vacancy.

Crist took all 60 days allowed by law to consider an opening on the 5th District Court of Appeal in Daytona Beach. From a field of 26, all six finalists were white, and every other judge on that bench is white.

Crist wrote to the nominating commission chairman last Dec. 1 and cited the fact that "at least three well-qualified African-Americans applied for nomination." Crist ordered that the commission reconvene "and reconsider these important nominations and provide me with a new list of nominees as soon as possible."

But the panel sent back the same six, the maximum number allowed by law. Four are men, and two are women.

When Crist refused to act, the judge whose retirement created the vacancy asked the Supreme Court to order Crist to make the appointment. Both sides squared off in court Wednesday.

Attorney Talbot "Sandy" D'Alemberte, a former president of Florida State University and the American Bar Association, said Crist is bound by a clause in the Constitution that says "the governor shall make the appointment within 60 days."

D'Alemberte, a former Democratic legislator from Miami, helped write the law in the early 1970s that created the judicial nominating commissions with a goal of making the courts more professional and less political.

Facing the seven justices, D'Alemberte said: "The governor may not substitute his judgment for that of the JNC."

Justices quickly picked up on that line of thought. "I'm having difficulty, because the Constitution says 'shall,' " Justice Fred Lewis said.

Justice Barbara Pariente wondered whether a governor with different motives might take action to force a panel to put cronies on the bench.

"If the governor can simply say, 'I'm not going to accept any of the six nominees because there are others I would rather have,' " Pariente said, "to me, it completely undermines the judicial nominating commission process. It completely eviscerates the constitutional provision that contemplates this independent body."

Crist's lawyer, general counsel Jason Gonzalez, said Crist's refusal to appoint was to "clear the air" and "remove that cloud hanging over that process."

After Crist got the six finalists in December, Gonzalez said, "information was brought to his attention that raised a serious concern as to whether or not all Floridians had had equal access to this process."

He did not provide specifics in court or with reporters later.

Florida has 26 judicial nominating commissions: a statewide panel for the state Supreme Court; a commission for each of the 20 circuit courts; and a commission for each of the five district courts of appeal. They consist of nine members who serve four-year terms. All are appointed by the governor. Five members must live in the court's jurisdictional area, and four members must be members of the Florida Bar.

Through their questions, justices suggested that if Crist knew of any improper behavior, he could have ordered an investigation or suspended the members. Six of the nine members are Crist appointees; five of those six are white, and one is Hispanic.

"You're talking about all these things by innuendo," Lewis told Gonzalez. "There are no facts before us with regard to improprieties." He called it "terribly specious" to ignore the Constitution's 60-day timetable.

Crist, who's running for U.S. Senate in 2010, has made diversity a priority. He emphasized that again Wednesday in a speech marking Emancipation Day, which observes the freeing of slaves in Florida.

The governor said he had no proof that the panel engaged in a pattern that excluded the black candidates from consideration.

"I wouldn't characterize it that way," Crist said. "Its just our desire to seek more diversity on the bench." Steve Bousquet can be reached at bousquet@sptimes.com or (850) 224-7263.

High court to rule on Gov. Crist's rejection of court nominees 05/20/09 [Last modified: Monday, May 25, 2009 4:57pm]

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