Constitutional Challenge to Florida Supreme Court Appointment

On May 26, Florida Gov. Ron DeSantis (R) appointed attorneys John Couriel and Renatha Francis to the Florida Supreme Court after missing his constitutional deadline to fill the vacancies by March 23 due to the COVID-19 pandemic. However, state Rep. Geraldine Thompson (D) filed a motion in the Florida Supreme Court in July challenging Francis’ appointment because Francis would not be constitutionally qualified to sit on the bench until September 24—ten years after she became a member of the State Bar

Art. V, § 8 of the Florida Constitution states that “No person is eligible for the office of justice of the supreme court or judge of a district court of appeal unless the person is, and has been for the preceding ten years, a member of the bar of Florida.” Thompson’s motion asserts that this “language of the Florida Constitution requires that an individual satisfy that requirement prior to being eligible for appointment.” (Emergency Petition for Writ of Quo Warranto & Writ of Mandamus, 1, Thompson v. DeSantis & Nordby, No. 110155215 (Fla. 2020)).

In contrast, Governor DeSantis’ response argues that “appointment does not constitute assuming office” and Francis will not assume office until the end of her maternity leave on September 24.

Having anticipated that argument, Thompson also argued that “[i]f the Court concludes that Governor DeSantis has not yet formally ‘appointed’ Judge Francis to the Florida Supreme Court, it should issue a writ of mandamus requiring the Governor to immediately appoint another individual who meets all the qualifications of the Florida Constitution from a new list of qualified candidates. Pursuant to the Florida Constitution, Governor DeSantis had a clear duty to appoint a fully qualified nominee no later than March 23, 2020. If Governor DeSantis has not yet made the required ‘appointment,’ he is in express violation of the Florida Constitution” ((Emergency Petition, Thompson, No. 110155215 at 2).

In a previous blog post, I discussed how Florida’s constitution requires the governor to fill supreme court vacancies within a 60 day deadline but does not specify any repercussions if a governor passes the deadline. If the court agrees with Thompson’s argument that DeSantis violated the Constitution by delaying his appointments, it will be interesting to see if it also demands that DeSantis make a new appointment. Otherwise, such a finding of unconstitutional delay would seem toothless, as in the 2009 case of Pleus v. Crist in which the Florida Supreme Court chose not to declare any repercussions for the governor’s unconstitutional missing of the appointment deadline.

Thanks to Arrian Ebrahimi for research assistance.

 

Cancellation of Georgia Supreme Court Election Raises Concerns about the Role of Interim Judicial Appointments

Georgia’s Supreme Court recently decided whether the next member of that court would be elected by the state’s people or appointed by the governor. With six justices recused (and temporarily replaced by five lower court judges), Barrow v. Raffensperger let stand the Georgia Secretary of State’s cancellation of an election to fill resigning Justice Blackwell’s seat, thus allowing Gov. Brian Kemp (R) to appoint Blackwell’s successor.

Georgia’s Constitution provides that “All Justices of the Supreme Court ... shall be elected on a nonpartisan basis for a term of six years. The terms of all judges thus elected shall begin the next January 1 after their election.” (Art. 6, § 7, Par. 1). “Vacancies shall be filled by appointment of the Governor,” (Art. 6, § 7, Par. 3) and “An appointee to an elective office shall serve until a successor is duly selected and qualified and until January 1 of the year following the next general election which is more than six months after such person's appointment.” (Art. 6, § 7, Par. 4)

Justice Blackwell’s current term is set to end Dec. 31, 2020, and a May 19, 2020, election was scheduled to fill the next standard six-year term for his office, which would begin on Jan. 1, 2021. However, on Feb. 26, 2020, Justice Blackwell submitted a letter to Governor Kemp resigning from his office effective Nov. 18, 2020. The Governor accepted Justice Blackwell’s resignation and announced that he would appoint a successor to the office. The Georgia Secretary of State canceled the May 19 election for the next term of Justice Blackwell’s office on the ground that Blackwell’s resignation, once it was accepted, created a vacancy that the Governor could fill by appointment, and thus no election was legally required. The Georgia Supreme Court agreed in Barrow v. Raffensperger.

However, a dissent argued the secretary of state cannot cancel an election “based on an expected or highly likely vacancy in the office” and progressive Ian Millhiser objected to this “scheme to keep Blackwell’s seat in the GOP’s hands.” Millhiser predicted in Vox that “The upshot of Barrow is likely to be that when a justice who belongs to the same party as the governor wishes to retire, they will submit a post-dated resignation similar to the one Blackwell submitted to Kemp. That will effectively give that justice’s party an extra two years to hold on to the justice’s seat before the next election takes place.”

Interesting to note that Millhiser’s characterization of the judicial seat as “in the GOP’s hands” refers to a state with ostensibly non-partisan elections. And Millhiser’s reference to “a justice who belongs to the same party as the governor” conflicts with the notion that sitting justices do not identify with a political party or that using non-partisan judicial elections, as Georgia does, can keep partisan politics from the bench.

Thanks to Arrian Ebrahimi for research assistance.

 

Arizona Governor’s Record-Breaking Court Appointments Highlight Commission as the Only Check on the Governor

Arizona Governor Doug Ducey (R) just made headlines for setting a new record of 71 judicial appointments, a milestone that has drawn attention to the Arizona Commission on Appellate Appointments. The Commission is the only check on an Arizona governor’s appellate court appointments, because Arizona lacks confirmation of judicial nominees by the legislature. The force of the Commission’s check depends on the number of nominees the Commission sends the governor. “The more names you [the Commission] give him the more it’s like he can pick whoever he wants,” said former Arizona State University law dean Paul Bender. “The commission is there for a reason, and it’s to narrow down the people so the governor can appoint the best people… When you start sending in five or seven names, that doesn’t work as well anymore.”

When an Arizona appellate court vacancy occurs, Art. 6, Section 37(A) of the Arizona Constitution requires the Commission to “submit to the governor the names of not less than three persons nominated by it to fill such vacancy,” but there is no maximum. In contrast, the constitutional maximum from supreme court nominating commissions is three in Colorado (Art. 6, § 20), Indiana (Art. 7,  § 10), Iowa (Art. V, § 15), Missouri (Art. V, § 25(a)), Oklahoma (Art. 3, § 4), and Wyoming (Art. 5, § 4). New York’s Constitution (Art. VI, § 2), does not specify a maximum for its highest court, the Court of Appeals, but its statutory maximum is seven. N.Y. Judiciary Law § 63(2).

Arizona’s legislature plays a role in selecting the Commission. Art. 6, § 36(A) of Arizona’s Constitution states that, the sixteen commission members

shall be composed of the chief justice of the supreme court, who shall be chairman, five attorney members, who shall be nominated by the board of governors of the state bar of Arizona and appointed by the governor with the advice and consent of the senate in the manner prescribed by law, and ten nonattorney members who shall be appointed by the governor with the advice and consent of the senate in the manner prescribed by law.

The same section continues to say that no more than three lawyer members and five nonlawyer members may be from the same political party. Similar rules of political balance apply to the commission itself. Art. 6, Section 37(A) says that no more than 60% of the nominees submitted to the governor may be of the same political party.

Arizona Gov. Ducey’s second term has seen the commission offer increasingly long lists of nominees. His recent appellate appointment of Cynthia Bailey came from a list of ten candidates, after the Commission only eliminated one applicant. In contrast, the average number of nominees submitted by the Commission in 2017 was six, and Ducey’s predecessor, Gov. Jan Brewer (R), only received lists of three nominees for all her Supreme Court appointments. This shift seems to have occurred after Gov. Ducey appointed five new members to the commission in 2017, leaving the panel with only Republicans and independents. Democrats, like state Sen. Rebecca Rios, argue that these appointments were “blatantly skewed.” She went on to say “[w]hen Gov. (Janet) Napolitano was governor, I think it's important to note that she, in fact, nominated seven Republicans” to the commission.

The governor’s increased freedom from the commission’s large slates manifested in 2019 when Gov. Ducey appointed Supreme Court Justice Bill Montgomery to the bench. After replacing the three retired commissioners who voted against nominating Montgomery earlier that year, the Commission unanimously approved adding his name to the seven-person finalist list in July.

Thanks to Arrian Ebrahimi for research assistance.

Covid19 Pandemic Delays Governor in Filling Vacancies on Florida Supreme Court

Florida law gives Governor Ron DeSantis 60 days from Jan. 23 to fill vacancies on the Florida Supreme Court, but DeSantis said his power under his Mar. 9 pandemic emergency declaration allows him to extend the deadline.

Two of the court’s seven seats became vacant when two of DeSantis’ earlier appointments, Justices Barbara Lagoa and Robert Luck, were confirmed to the federal 11th Circuit Court of Appeals. Florida’s Constitution establishes a judicial nominating commission (JNC) charged with providing the governor “not fewer than three persons nor more than six persons” as nominees to fill vacancies, and Art. V, Section 11(c) states: “The governor shall make the appointment within sixty days after the nominations have been certified to the governor.” Those 60 days started Jan. 23 when the JNC submitted its nominations to Gov. DeSantis.

At a press briefing on Mar. 19, Gov. DeSantis was asked by a reporter: “You have until Monday to make two Florida Supreme Court decisions. Have you been able to interview all the nominees with everything that’s been going on?” The governor responded that he has interviewed the nominees but not read their judicial opinions in depth; therefore, he said “I will most likely delay under the state of emergency that deadline.” JNC chair Daniel Nordby agrees with Gov. DeSantis that the “slate of nominees isn’t affected by the expiration of the 60 days. I continue to have confidence in Governor DeSantis as he decides how best to fill these two vacancies from this talented list of nominees.”

However, not all court watchers approve of this delay. Adam Richardson, a West Palm Beach lawyer, asserts on Slate, that Gov. DeSantis “has been violating the state constitution since March 23. On that date, he refused to appoint two justices to fill vacancies on the Supreme Court of Florida by the constitutionally mandated deadline.” Richardson then refers to the case of the previous Florida governor, Charlie Crist, to miss the constitutional deadline for a judicial appointment. In 2009 Crist was sued by the retiring appellate judge whose seat on the Fifth District Court of Appeals he sought to fill. Gov. Crist rejected the JNC’s original six nominees, claiming that the panel overlooked qualified black candidates, and he asked the commission for a new slate. The JNC ignored this request, returning the same six names, and the governor subsequently refused to appoint a successor to Judge Robert Pleus. Judge Pleus’s suit against Gov. Crist came before the Florida Supreme Court, which held that “the Governor lacks authority under the constitution to seek a new list of nominees from the JNC and has a mandatory duty to fill the vacancy created by Petitioner's retirement with an appointment from the list certified to him” Pleus v. Crist, 14 So.3d 941, 946 (Fla. 2009). However, the court did not declare any repercussions if a governor passes the deadline.

The apparent power of the governor to exceed the 60-day limit would distinguish Florida from some other states with judicial nominating commissions. For instance, the Kansas Constitution says “In event of the failure of the governor to make the appointment within sixty days from the time the names of the nominees are submitted to him, the chief justice of the supreme court shall make the appointment from such nominees.” See Art. 3, § 5(b). Unclear whether an executive order declaring an emergency might forestall the chief justice. In a similar vein, the Missouri Constitution says “If the governor fails to appoint any of the nominees within sixty days after the list of nominees is submitted, the nonpartisan judicial commission making the nomination shall appoint one of the nominees to fill the vacancy.” See Art. 5, §25(a).

Thanks to Arrian Ebrahimi for research assistance.

Wisconsin’s Coronavirus Election Focused on its Hotly Contested State Supreme Court

Wisconsin’s election last week grabbed national headlines due to partisan battles over opening polling places during a pandemic, but followers of Wisconsin politics suggest the crucial partisan divide was over the state Supreme Court. “[T]he battle over the court is the reason that the GOP defied pleas to postpone the vote: Republicans calculated that holding the election in the midst of the pandemic gave incumbent conservative justice Dan Kelly a better chance of holding his seat,” according to veteran commentator Charles Sykes writing in Politico.

The winner of last week’s election, however, was liberal challenger Judge Jill Karofsky who beat incumbent Kelly by 10%, thus reducing conservatives’ edge on the court from 5-2 to 4-3.

Although Wisconsin Supreme Court elections are nominally non-partisan, the usual Red and Blue teams routinely dominate. As Sykes puts it, “While the election of judges is technically nonpartisan, over the past two decades all pretenses have been dropped, as the races have become high-stakes proxy battles between Democrats and Republicans. Spending on the current campaign between Kelly and progressive challenger Jill Karnofsky topped $8 million and, following the pattern of recent elections, the contest was both intensely ideological and personally bitter.” And: “During the campaign, Karnofsky, who is running as an advocate of ‘social justice,’ accused Kelly of ‘running his Supreme Court campaign out of the Wisconsin GOP headquarters,” and noted that he was touting the support of President Donald Trump.”

Other than coronavirus, this Supreme Court race “in most other respects resemble[d] those before it: intensely partisan, even though its nominally nonpartisan; awash in campaign spending; and high-stakes for the ideological balance of the court,” observed Riley Vetterkind in the Wisconsin State Journal. These elections first turned boisterous in 1999, where the court saw its first million dollar election battle, and Marquette University Professor Paul Nolette considers this transformation “a reflection in part of the polarization in Wisconsin in general.”

Battles over the Wisconsin Supreme Court, and within the court, have been raging for years. Formerly, the role of chief justice fell to the court’s most senior member, but a 2015 constitutional amendment changed this selection process to election by the other justices. Democrats derided that amendment as a veiled attempt to unseat then incumbent liberal Chief Justice Shirley Abrahamson, but it nonetheless passed the legislature and a statewide ballot. I observed in a previous post that tensions heightened even further as Chief Justice Abrahamson subsequently sued the other six members of her court after losing reelection as chief under the new rules.

#scowi

  

Thanks to Arrian Ebrahimi for research assistance.

Utah Judicial Selection in National Perspective

Utah is interesting, and not just for Mitt Romney being the only senator to break from party over removing President Trump from office. A proposed amendment to the Utah Constitution is a chance to note that Utah is also interesting because its method of supreme court selection seems to appeal both to advocates of "merit selection" and to people (like me) who reject that label, and what it often conceals, in favor of "democratic appointment."

The gist of "merit selection" (better called the "Missouri Plan") is that applicants for a judgeship are vetted by a nominating commission that supposedly cares about "merit" rather than "politics". Only the commission's three (or so) finalists may be chosen by the governor to fill the judgeship.

With the commission playing such a key role as gatekeeper to the court, the key is who appoints the commission? Who picks the picker?

Unfortunately, many "merit selection" states allow the bar to pick some members of the commission,  which violates basic democratic equality by privileging lawyers above their fellow citizens in the selection of important public officials. These officials, as every lawyer knows, sometimes move the law in a progressive direction or a conservative direction. State supreme court justices are important lawmakers.

Important lawmakers should, in our democratic society, be exercised by people selected in a democratic manner.

Fortunately, this does not have to mean electing judges. That sort of direct democracy is not as good for judges as the indirect democracy of having the executive and legislative branches select the judicial branch, as we do for federal judges with senate confirmation. In fourteen states (listed below), the governor's judicial nominees to the highest court are confirmed by the senate, whole legislature, or other popularly-elected officials. This is the usual method of "democratic appointment" I support.

But suppose the governor must pick from a commission's finalists before sending the governor's pick to the senate for confirmation? That three-step process (commission to governor to legislature) is  how Utah judges are selected.

This is still "democratic appointment" if the commission is selected in a democratically-legitimate way, as opposed to having commissioners selected by the bar. Fortunately, 4 of the 7 members of the Utah Appellate Nominating Commission are selected in a democratically-legitimate way--by the governor. Two more the governor also gets to appoint but only from a list of nominees submitted by the Utah State Bar. The chief justice appoints another member of the Utah Judicial Council to serve as a nonvoting member of each commission.

So Utah does give the bar a formal role it should not have w/r/t 2 of the 7 commissioners. But that's far from the states that allow the bar to pick (not merely suggest names to the governor) about half the commission. And I wonder whether Utah governors ever reject the bar's suggestions as occurs in Florida, which has a similar system?

Utah calls its system "merit selection" and its constitution says "Selection of judges shall be based solely upon consideration of fitness for office without regard to any partisan political consideration."
Yet it nevertheless manages to be (almost completely?) democratically legitimate. Good for Utah.

The 16 states that select their high courts with a democratic method of appointment are:

California
Connecticut
Delaware
Hawaii
Maine
Maryland
Massachusetts
New Hampshire
New Jersey
New York
Rhode Island
South Carolina
Tennessee
Utah
Vermont
Virginia

Voting in Judicial Retention Elections

Voter Response to Salient Judicial Decisions in Retention Elections is an interesting article by Yale Professor Allison P. Harris. Among its points:

"Appointed judges are generally accountable to whichever branch of government (executive or legislative) they rely on for appointment and reappointment. Citizens can hold elected judges accountable with their votes. However, most of the factors driving voter participation in judicial elections are associated with partisan and competitive, rather than retention, elections.
Nonpartisan uncontested judicial retention elections occur in many states for a variety of types of courts.
However, they are especially common in states, like Iowa, that have adopted the Missouri Plan, also referred to as merit selection, for the selection and retention of judges."

"High-profile campaigns against judges running for retention, like the one in Iowa in 2010, are not the norm, and most campaigns will not achieve their goal of removing judges from the bench. But justice removal is not the only reason we should be interested in campaigns against retention and shifts in retention race results. If voters are the only ones who can punish or reward Missouri Plan judges after appointment, then it is important to understand the factors related to shifts in participation in these races. The results of analyses presented in this article suggest that we need to take greater care in evaluating the extent to which judges who run in retention elections are independent from voters. Voters do respond to salient decisions and mobilization in retention races. Even if the judges running in these elections are ultimately retained because more of the voters cast yes votes than no votes, they are not as independent from voters as opponents of retention elections often argue."