Florida Supreme Court clears way for challenge to DeSantis pick

Justices on Tuesday rejected a rehearing but unanimously granted Rep. Geradline Thompson’s request to revise her complaint against Gov. Ron DeSantis and gave him until Wednesday to respond.
Renatha Francis smiles as she speaks during a news conference, Tuesday, May 26, 2020, at the Miami-Dade Public Library in Miami.
Renatha Francis smiles as she speaks during a news conference, Tuesday, May 26, 2020, at the Miami-Dade Public Library in Miami. [ WILFREDO LEE | AP ]
Published Sept. 8, 2020|Updated Sept. 8, 2020

TALLAHASSEE — Striking a blow to Gov. Ron DeSantis, a unanimous Florida Supreme Court on Tuesday allowed a state representative to move ahead with a revised challenge to the governor’s appointment of Palm Beach County Circuit Judge Renatha Francis to the state’s high court.

Rep. Geraldine Thompson, D-Windermere, last week asked the Supreme Court to reconsider her challenge to Francis' appointment, which the Republican governor announced in May.

Thompson’s request came days after justices ruled that DeSantis overstepped his authority when he appointed Francis because she did not meet a legal requirement of being a member of The Florida Bar for 10 years.

Although justices agreed with Thompson that DeSantis' appointment of Francis was improper, they said they could not support her proposed remedy, which would have required the governor to choose a different justice from a new list of nominees.

Following the court’s ruling, Thompson asked for a rehearing in the case or for permission to amend her original petition.

Justices on Tuesday rejected a rehearing but unanimously granted Thompson’s request to revise her complaint against the governor and gave DeSantis until Wednesday to respond.

“We believe that the interests of justice favor allowing Thompson to amend her petition,” Chief Justice Charles Canady and Justices Ricky Polston, Jorge Labarga, Alan Lawson and Carlos Muñiz wrote in a seven-page order. Justice John Couriel, whom DeSantis also appointed in May, has recused himself from the dispute over Francis.

Allowing Thompson to revise her petition would not cause DeSantis “any prejudice,” justices wrote.

“Nor is this a case where Thompson has abused the privilege to amend or where an amendment would be futile,” they added. “And finally, to the extent that Thompson’s petition implicates both a public right and the institutional integrity of this court, allowing an amendment would serve the public interest. To deny Thompson’s request to amend in these circumstances would not be a proper exercise of our discretion.”

The order was a rebuke to the governor, whose lawyers on Friday argued in a court document that Thompson’s “efforts amount to no more than an impermissible attempt at a second bite of the apple.”

DeSantis' lawyers argued in part that Thompson should not be allowed to amend her petition, referring to a rule of judicial procedure about amending legal challenges.

The rule “is not meant to provide litigants like petitioner with an opportunity to reopen and refashion their initial pleadings after a decision on the merits,” the governor’s attorneys wrote.

But the Supreme Court justices on Tuesday picked apart DeSantis' arguments, calling them “unpersuasive.”

Thompson’s “initial request for legally unavailable relief prevented this court from possibly ruling consistent with Thompson’s meritorious constitutional claims,” justices noted.

Allowing her to amend her petition would allow the court “to dispose of Thompson’s claims on the merits,” they wrote.

“While the governor understandably questions the timing of Thompson’s request to amend, that concern goes to whether the request causes prejudice or abuses the privilege to amend. Both factors are absent here,” justices said.

In seeking a rehearing or to be able to amend the original petition, Thompson’s lawyers last week urged the court to invalidate Francis' appointment and initiate a solution laid out in the Supreme Court’s Aug. 27 ruling --- that DeSantis choose one of seven other nominees proposed early this year by the Judicial Nominating Commission.

The court’s Tuesday order gave DeSantis until Wednesday “to show cause why he should not be required immediately to fill the vacancy in office of justice of the Supreme Court by appointing a candidate who was on the JNC’s certified list of Jan. 23, 2020, and is now to constitutionally eligible for appointment.”

The dispute stems from DeSantis' decisions in May to appoint Francis and Couriel 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 the Aug. 27 decision said it couldn’t go along with that requested fix.

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 original challenge, Thompson, who is Black, 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 nominees sent to DeSantis.

Also on Tuesday, a Fernandina Beach resident asked the Supreme Court to block Francis' appointment.

The petition was filed by an attorney for Robert Burch, who is identified as a former attorney who served in the Ohio Senate.

Burch’s petition asks for the court to order DeSantis to choose one of the other seven nominees, arguing the case deserves “swift action” as Francis could join the court on Sept. 24.

“Needless to say, this is an issue of great importance to the state as it is possible that Judge Francis could sit on the Supreme Court for 33 years,” Burch’s attorney, Terry Bork, wrote, alluding to a mandatory retirement age for justices. “The unconstitutional appointment of a person to the Florida Supreme Court who could sit on the bench for 33 years certainly will impact the public’s confidence in the Supreme Court and its decisions for years to come.”

This story was written by Dara Kam.