Judicial elections, democratic appointment (e.g., senate confirmation), and the Missouri Plan (a/k/a "merit selection")

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Monday, August 10, 2020

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.