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.

 

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.

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

Florida Supreme Court Appointments More Conservative

New Florida Governor Ron DeSantis, a Republican, named Barbara Lagoa to the Florida Supreme Court. Lagoa is the first Cuban-American woman to serve on Miami’s appeals court and will be the first Latina on the Florida Supreme Court.

Gov. DeSantis also appointed to the state supreme court, Judge Robert Luck, "the first Jewish justice appointed in over 20 years", according to the The Miami Herald.

The Herald explains that these appointments will likely make the court more conservative as "The Republican governor ... is replacing three retiring Supreme Court justices: Barbara Pariente, Fred Lewis and Peggy Quince, who often sided on liberal issues and against the Republican-controlled Legislature."

Florida Supreme Court Selection Litigation

Three Florida Supreme Court justices are required to leave the court in January because of reaching a mandatory retirement age. All three are, the Orlando Sentinel writes, part of what is "widely considered a left-leaning majority on the seven-member court." That has led to the possibility that their replacements could spur a rightward shift of the court, debate about whether Republican Gov. Rick Scott, who will also leave office in January, should have the authority to appoint the new justices or whether that power should go to his successor. 

The Judicial Nominating Commission will have 60 days — expiring shortly after the election — to nominate a list of three to six people for each court vacancy. Unless a lawsuit stops this process. "The League of Women Voters and Common Cause of Florida have asked the state supreme court to stop the Judicial Nominating Commission from nominating candidates to fill the vacancies," The Tampa Bay Times reports. "Their case was previously struck down because Scott had not yet picked new justices, but last week, he directed the commission to begin seeking nominees."

FL Supreme Court Selection

Last week's Florida Bar Convention included a serious discussion of Florida Supreme Court selection and retention involving Professors Brian Fitzpatrick, 

Chris Bonneau, 

and yours truly, Stephen Ware.

As the Daily Business Review summarizes:

 research shows judicial nominating commissions like Florida's, with some members chosen by the bar, tend to pick judges who are more liberal than the state's population. And retention elections for justices see low participation and high shares of "yes" votes, the professors said Thursday during a panel hosted by the bar's constitutional judiciary committee.
"I think it's a healthy thing to think about whether you might want to switch to a different method," said Brian Fitzpatrick, a law professor at Vanderbilt University... States where lawyers have a bigger hand picking justices end up with a more liberal bench, according to his research.
Why? Because lawyers tend to be liberal, Fitzpatrick said... he would still change the system that gives the Florida Bar's board of governors the power to nominate four of nine members of the Supreme Court Judicial Nominating Commission.
University of Kansas law professor Stephen Ware would do the same. When state supreme courts skew more liberal than the population, conservatives start opposing justices' retention, and then liberals and bar groups charge conservatives with trying to politicize the courts, he said.
"It's not an ideal pattern," Ware said.
Instead, lawyers need to admit to themselves that political leanings on the bench exist and matter, Ware argued. Therefore, the judicial selection process should be more democratic. He suggested adopting the model federal courts use, with transparent, public Senate confirmations.
Because judicial independence is important, Ware said the retention process should consist of nonrenewable terms of 16 years or so. A lack of retention elections keeps judges from "looking over their shoulders" as they make rulings, he said.
Chris Bonneau, a nonlawyer who teaches political science at the University of Pittsburgh, believes state justices should be chosen through partisan elections.

Thoughtful contributions to this discussion also came from Judge Michelle Sisco, Dean Cannon, and Richard Levenstein, who appear with the Professors Fitzpatrick and Ware on this interview by the Legal Talk Network, hosted by Florida Bar President Michael Higer. Listen on YouTube

SCOTUS to Address Judicial Election Campaign Funding

Is it constitutional to prevent candidates in judicial elections from personally soliciting campaign contributions?  The Supreme Court may tell us when it rules in Williams-Yulee v. Florida Bar.  It is scheduled for argument Jan. 20, 2015.

"The case brings three important questions to the fore, Ware said. The narrow question is whether prohibiting a judicial candidate from personally soliciting campaign funds is constitutional. This question is intertwined with broader questions about how to fund judicial election campaigns and, at the broadest level, whether to have judicial elections at all." 

Judicial Elections vs. Federal Method (esp. in Florida)

The Miami Herald editorializes:

A member of the Miami Herald Editorial Board was present as the 20-plus members of the Florida Judicial Nominating Commission quizzed and grilled the 15 candidates for 25 minutes each, the final phase of a long process that began in July for the privilege of having their names recommended to Florida’s two U.S. senators.
    
In this race, voters did not pick the winner; the blue-ribbon panel made up of local legal eagles and community leaders had the honor — and somehow that seemed right and how, perhaps, it should be done for all judicial races.
 The different selection processes for state and federal judges — the first are generally elected, the latter selected — highlighted the anemic slate of judicial candidates and bitter races with plenty of mudslinging that played out in Miami-Dade and Broward last month. Judicial decorum was missing among a number of candidates.  Leaving aside the pros and cons of "mudslinging" in judicial elections, the role of judicial nominating commissions at the federal level raises several interesting questions.  Among them: 1. Who appoints the commission: "the blue-ribbon panel made up of local legal eagles and community leaders"?2. How much deference do Florida's senators give the commissions and why?3. How similar are commissions in the federal system (where ultimate power to select a judge rests with the president and sensate) to commissions in Missouri Plan states in which the commission and governors share power to select judges?

Read more here: http://www.miamiherald.com/2014/09/04/4328563/the-making-of-a-federal-judge.html#storylink=cpy

Update on Florida and Alaska Judicial Selection

by Bill Raftery

Florida, Minnesota and Alaska Judicial Selection Bills

These various bills summarized by Bill Raftery seem generally to fit a pattern of Red State Republicans pushing for more democratic judicial selection methods while Blue State Democrats push for more lawyer-controlled judicial selection methods.

When Is A Judgeship Vacant?

"When is a judicial office vacant for purposes of allowing a governor to fill the vacancy?" asks Gavel to Gavel's Bill Raftery, who discusses a Florida bill to answer this question.

National Association of Women Judges on Judicial Selection

The National Association of Women Judges' involvement on judicial selection is here in its "Informed Voters Project."  Its project states are

Alaska
California

Florida

Iowa

Kansas

Missouri
Tennessee
Washington

Most of these are Missouri Plan (a/k/a "merit") states in which proponents of other methods of judicial selection have been active in recent years. 

Florida Judicial Selection Contrasted with Missouri, Kansas, etc.

This article, Florida Gov. Rick Scott often rejects Florida Bar's lists of lawyers to nominate judges, shows how the bar's preferences can clash with a governor's.  The Florida bar's power to pick members of the Judicial Nominating Commission is checked by the Florida governor.  In contrast, the bar in "hard Missouri Plan" states (like Missouri and Kansas) has unchecked power to appoint some members of the nominating commission.  In Kansas, the bar picks a majority.