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.
Attorneys for the Governor had tried to scuttle a lawmaker’s renewed challenge to DeSantis’ appointment.
The DeSantis administration filed arguments late Friday that said Rep. Geraldine Thompson’s “efforts amount to no more than an impermissible attempt at a second bite of the apple.”
Thompson asked the Supreme Court last week to reconsider her challenge to Francis’ appointment. Days earlier, justices had ruled that DeSantis overstepped his authority in May when he appointed Francis because she had not met a legal requirement of being a member of The Florida Bar for 10 years. While justices agreed with Thompson that DeSantis had acted improperly, they said they couldn’t go along with her argument that DeSantis should be required to choose a different justice off a new list of nominees.
Justices said the proper fix would have been to require DeSantis to choose one of seven other nominees sent to him early this year. But since Thompson didn’t request that solution, the court rejected her challenge.
In court documents filed last week, Thompson’s attorneys argued for a rehearing or, potentially, to be able to amend the case, which she filed in July. They argued that the appointment of Francis should be invalidated and that the solution spelled out in the Supreme Court’s Aug. 27 ruling — that DeSantis choose one of seven other nominees — should be required.
But DeSantis’ attorneys argued in Friday’s filing that Thompson doesn’t have legal grounds for her requests.
“She suggests no point of law or fact that the (Supreme) Court overlooked or misapprehended in its (Aug. 27) decision,” DeSantis’ attorneys wrote. “She does not contend the court erred at all. Rather, her motion seeks, for the first time, a substitute remedy — an order requiring the governor to pick from the other seven nominees on the existing list.”
The dispute stems from DeSantis’ decisions in May to appoint Francis and Miami attorney John Couriel to the Supreme Court 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 request.
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 challenge in July, 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.
DeSantis’ attorneys in Friday’s filing noted that the potential solution offered in Thompson’s renewed challenge — that DeSantis be required to choose one of the other candidates on the nominating commission’s list — would mean that the court would not have any Black members. They said that “contravenes” Thompson’s hopes in the case that DeSantis would be required to consider other African-American candidates for the appointment.
“Petitioner’s attempt to play both sides of the remedy coin flies in the face of the long-standing doctrine that ‘a party electing one course of action should not later be allowed to avail himself of an incompatible course,’” DeSantis’ attorneys wrote, quoting a legal precedent. “This is especially true where newly raised positions are logically inconsistent from the original.”
In a document filed last week, Thompson’s attorneys appeared to acknowledge that blocking Francis’ appointment would lead to a court without a Black member.
“Representative Thompson has consistently indicated that she supports racial and gender diversity on the Florida Supreme Court,” Thompson’s attorneys wrote. “However, she has also consistently stated that achieving diversity should not, and is not, required to come at the expense of sacrificing the appointment of a qualified candidate to the Florida Supreme Court.”
Republished with permission from the News Service of Florida.