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DeSantis blasts Florida Supreme Court over decision on his appointment

The high stakes legal battle continued into this week as the court gave DeSantis until Wednesday to answer why it should not order him to immediately appoint someone who was qualified.
Florida Gov. Ron DeSantis.
Florida Gov. Ron DeSantis. [ CHRIS O'MEARA | AP ]
Published Sep. 9, 2020
Updated Sep. 9, 2020

MIRAMAR — Gov. Ron DeSantis declared his defiance against the Florida Supreme Court Wednesday, holding a news conference in Miramar to defend his appointment of Palm Beach County Judge Renatha Francis, who has been deemed unqualified by a unanimous court.

The court ruled on Aug. 27 that Francis is not qualified because she has not been a member of the Florida Bar for 10 years, a constitutional requirement, and concluded that the governor violated the Constitution by attempting to prospectively appoint someone who was not eligible to hold the job. Francis will not have been a member of the Florida Bar for 10 years until Sept. 24 and only then is she eligible to serve on the state’s highest court. He appointed her on May 26.

The high stakes legal battle continued into this week as the court gave DeSantis until Wednesday to answer why it should not order him to immediately appoint someone who was qualified. The governor had asked the court to reconsider the ruling but the court rejected that request and, in an unanimous ruling late Tuesday, said that the petitioner, state Rep. Geraldine Thompson, could amend her lawsuit to recommend a remedy for the governor to choose another candidate.

Related: How did Renatha Francis ascend to Florida’s highest court?

Instead of addressing the legal conflict, DeSantis convened Black local officials for a press event at Miramar City Hall and accused Thompson, a Black Democrat, of playing politics. He suggested she was a hypocrite because she has long called for a Black person to be appointed to the court. Of the seven names remaining for DeSantis to choose from, none are Black, although four are women.

"We’re now facing a politically motivated lawsuit attempting to prevent Judge Francis from assuming office in just the next two weeks,'' DeSantis said.

He called the lawsuit “an insult to the Jamaican-American community and the broader Caribbean-American community here in southern Florida,” and said he wants Francis to “be able to take office in two weeks.”

Francis, who is Black, also attended, surrounded by Black legislators and local elected officials from Broward County, most of them Democrats. They used the event to urge Thompson, of Windemere, to withdraw the lawsuit.

"Given the current setup of the court’s position, we risk losing the chance to have a Black justice on the Supreme Court,'' said state Rep. Dotie Joseph, a North Miami Democrat and a lawyer. "Please drop this lawsuit. And instead, direct our energies on bringing forth real reform on things that we can agree on, like criminal justice reform in light of the Black Lives Matter movement. "

Francis' comments

Francis, 42, was born in Jamaica and would have been the first Black justice since Peggy Quince retired early last year. She also would be the only woman on the court. She used the press conference to talk about her working-class upbringing, noting that she helped raise a younger sibling, worked her way through college and law school and emigrated to the U.S. as a young adult.

"I’m grateful that I’ve had this once in a lifetime opportunity that a Black immigrant woman from a small island with no famed family name or wealth, no inherent powerful connections could potentially rise to the highest state courts in one of the most important states is a testament to just how great this country is,'' she said.

Palm Beach County Judge Renatha Francis speaks during a press conference in Miramar, Florida on Wednesday, September 9, 2020. Gov. Ron DeSantis defended his appointment of Francis, who has been deemed unqualified by an unanimous court.
Palm Beach County Judge Renatha Francis speaks during a press conference in Miramar, Florida on Wednesday, September 9, 2020. Gov. Ron DeSantis defended his appointment of Francis, who has been deemed unqualified by an unanimous court. [ MATIAS J. OCNER | Miami Herald ]

Thompson filed the lawsuit in July, arguing that the Judicial Nominating Commission, an independently-appointed board that screens candidates for judicial appointments, “exceeded the limits of its authority” by violating procedural rules and the Constitution when it included Francis on the list of nominees sent to DeSantis in January. The suit further charged that DeSantis also violated the Constitution by selecting Francis from that list.

Thompson has said publicly and in her legal brief that she regrets that her successful appeal of the nomination likely means a Black judge may not get the appointment. Of the seven remaining candidates recommended by the Judicial Nominating Commission to DeSantis in January, four are women but none are Black.

On Wednesday, Thompson said in an interview that she has “no intention of withdrawing her lawsuit” and doubts DeSantis' intentions.

"The responsibility for diversifying the court rests with Ron DeSantis and his Judicial Nominating Commission,'' she said, adding that when the governor had his first opportunity to appoint three justices to the court in 2019, he named Carlos G. Muñiz, Barbara Lagoa and Robert Luck, none of whom are Black.

"He had an opportunity to appoint an African American and he did not,'' Thompson said. “Now, we come to this and he appoints someone who is ineligible. I don’t think he had any intention to put an eligible African American on the Florida Supreme Court.”

Although the court ruled unanimously, and two of the rulings were authored by Muñiz, DeSantis accused Thompson of playing politics and claimed it was her action that undermined the effort to bring diversity to the court.

However, Francis was the only Black candidate on the list DeSantis was given to choose from by the Judicial Nominating Commission. In Florida, the Judicial Nominating Commission is dominated by the Federalist Society, the powerful conservative legal group that plays a key role in promoting judicial nominees nationwide.

"What I saw in Judge Francis were qualities that I look for in any judge,'' DeSantis said. “I mean obviously fidelity to the Constitution, somebody that understands the proper role of the judge is to apply the law without fear or favor but not to play politics.”

But DeSantis said that if diversity on the court was Thompson’s goal, “then this lawsuit is totally undermining what you stated that you wanted to do and so when I see a politician, saying one thing, and then doing another, to me that’s the hypocrisy that so many people are sick and tired of when it comes to people in office.”

Francis, who would have been the first non-Cuban justice of Caribbean descent to serve on the court and only the second Black female, was on maternity leave from her Palm Beach County court when DeSantis appointed her.

"I’m very sensitive to that,'' DeSantis said of Francis' maternity leave, noting that his wife gave birth to their third child in March. “Sometimes you got to wait a little bit longer for good things to happen and so that’s what that’s what we did. So, when we announced the selection, we made clear that this would happen.”

It’s all about the timing

DeSantis' lawyers argued that because Francis did not intend to take the oath and assume office until Sept. 24, “eligibility is not material, nor is it in question.”

But the court agreed with Thompson and said in a 5-0 ruling that the governor can’t arbitrarily decide when a judge fills a vacancy and that when DeSantis appointed Francis, her appointment took effect “immediately. Not at some time in the future.”

The court warned that any other reading of the law would allow governors to manipulate the appointment process to control the timing of when a justice would begin serving.

None of the speakers disagreed that Francis was ineligible to serve, but each suggested that if Thompson withdrew the lawsuit, the court would have to allow her to serve. In addition to Joseph, Broward Mayor Dale Holness urged Thompson to withdraw the lawsuit.

"Judge Francis is very well qualified, minus the technicality that they want to use, and that technicality is a matter of days,'' said Holness, a Democrat. He said he has known Francis and her husband for many years and said he helped organize the media event after receiving a call from Shane Strum, the governor’s chief of staff and a native of Broward County, on Tuesday.

After DeSantis abruptly left Miramar City Hall without taking questions from reporters, Holness declined to defend the governor’s characterization of the dispute as a partisan one.

“I can’t tell you what’s in the governor’s mind,” Holness said. “His statement stands with him.”

Holness also acknowledged that, ideally, the Judicial Nominating Commission would have put forth more than one non-white candidate. But, he said, “We’re dealt the hand we have, and that’s the hand we must play.”

He pushed back on the suggestion that Francis would move the court in a more conservative direction. Francis is a member of the Federalist Society.

“I don’t necessarily see judge Francis as that kind of conservative. I see her as a moderate, someone who will bring balance to the job,” Holness said. “She has a different lived experience than the others that are there [on the Florida Supreme Court]. I see it as a positive.”

DeSantis appointed Francis and Miami attorney John Couriel to replace former justices Barbara Lagoa and Robert Luck, who left the Supreme Court after being named by President Donald Trump to the Atlanta-based U.S. Court of Appeals for the Eleventh Judicial Circuit. At the time DeSantis made the appointment, the Times/Herald and other news organizations reported that Francis did not meet the qualifications.

Francis graduated from the for-profit Florida Coastal School of Law in Jacksonville and later worked as a clerk in the First District Court of Appeal. In 2017, after working for seven months at the law firm of Shutts & Bowen representing insurance companies in personal injury protection cases, she was appointed to the Miami-Dade County bench by then-Gov. Rick Scott. A year later, Scott appointed her to the circuit bench in Palm Beach County.

Also attending the press conference were Lauderdale Lakes Rep. Anika Tene Omphroy, Miramar Mayor Wayne Messam and Southwest Ranches Mayor Doug McKay.

Aaron Leibowitz reported from Miramar; Mary Ellen Klas reported from Tallahassee.