When he took office on Jan. 8, 2019, Florida Gov. Ron DeSantis, a Republican, declared: “I will only appoint judges who understand the proper role of the courts is to apply the law and Constitution as written, not to legislate from the bench.” Does DeSantis believe he’s also bound by the law? The answer appears to be no. On Monday, the governor will violate the state constitution. And it’s not a close question.
In November, Justices Barbara Lagoa and Robert Luck, whom DeSantis appointed to the Florida Supreme Court, resigned to take seats on a federal appellate court. The governor’s office issued a letter to convene the court’s judicial nominating commission, which vets applicants and sends a list of nominees to the governor, on Nov. 25. The JNC had 60 days from that date to send the governor a certified list of nominees. It did so on Jan. 23.
The Florida Constitution tells us in Article V, Subsection 11(c), what comes next: “The governor shall make the appointment within sixty days after the nominations have been certified to the governor.” (Emphasis added.) We all know what shall means: The governor must appoint new justices by or on March 23.
Yet DeSantis does not share that understanding of the simple word. As a result of the coronavirus pandemic, DeSantis declared a state of emergency on March 9. Last Thursday, the governor announced at a press conference that he was extending the deadline: “I will most likely delay, under the state of emergency, that deadline, probably push it back to May 1.” DeSantis claims that his time is better spent on the emergency, and that he hasn’t had time to read the nominees’ writings—but he has interviewed all of them.
(This is not the only problem that has arisen in the appointment process. One of the nominees will not have satisfied the constitutional requirements for eligibility by March 23. A nominee cannot join the high court unless she has been a member of the Florida Bar for 10 years; this nominee will not satisfy that rule until September.)
There’s no denying that Florida is in a state of emergency—although the governor has come under criticism for his reluctance to invoke his emergency powers in ways that might more adequately address the current crisis. But let’s be clear: DeSantis has absolutely no authority to postpone the appointments.
In January, quoting Justice Antonin Scalia’s and Bryan Garner’s influential treatise, Reading Law, the Florida Supreme Court said it “adhere[s] to the ‘supremacy-of-text principle’: ‘The words of a governing text are of paramount concern, and what they convey, in their context, is what the text means.’ ” The citizens of Florida used the word shall in telling the governor by when he needs to make appointments. We meant what we said and said what we meant. We could have said something different. We didn’t.
We have given the government more leeway in other provisions of the constitution dealing with emergencies. In Article VI, Subsection 5(a), we said: “A general election may be suspended or delayed due to a state of emergency or impending emergency pursuant to general law.” Next, in Article II, Section 2, we established that Tallahassee is the seat of government “provided that, in time of invasion or grave emergency, the governor by proclamation may for the period of the emergency transfer the seat of government to another place.” And in Article II, Section 6, we gave the Legislature the authority to ensure continuity of government operations “[i]n periods of emergency resulting from enemy attack.” In such a circumstance, the Legislature may “adopt such other measures as may be necessary and appropriate” and that, “[i]n exercising these powers, the legislature may depart from other requirements of this constitution, but only to the extent necessary to meet the emergency.”
The citizens of Florida know how to give the government flexibility in the event of an emergency. We did not give the governor any in the timing of judicial appointments. The plain language of the constitution proves the governor’s decision is unconstitutional. As the Supreme Court said in 1888: “When a constitution directs how a thing shall be done, that is in effect a prohibition to its being done in any other way.”
In fact, there is a controlling Florida Supreme Court decision that explains why DeSantis must appoint new justices immediately. In 2009, the court decided Pleus v. Crist. A judge retired from one of our appellate courts, creating a vacancy there. The JNC for that court certified a list of nominees to the governor. Then–Gov. Charlie Crist rejected the list, citing the need for greater diversity; he requested the JNC send him a new one, which it refused to do; and the governor failed to make the appointment by the deadline. In a unanimous opinion, the Supreme Court held the constitution required the governor to make the appointment within 60 days of certification.
“We conclude,” the court wrote, “that the Governor is bound by the Florida Constitution to appoint a nominee from the JNC’s certified list, within sixty days of that certification. There is no exception to that mandate.” Under a controlling state Supreme Court decision, then, DeSantis has no authority to postpone the two appointments to the court.
It doesn’t matter that the governor has cited an emergency. In In re Advisory Opinion to the Governor, decided in 1942 during World War II, the governor asked the court whether the constitution allowed him to suspend certain public officials from office merely because they were absent as a result of national war service. The court said no. It wrote:
Emergencies do not create power or authority; but emergencies may afford occasions for the exercise of powers already existing. This principle of law is peculiarly applicable to Executive powers and authority to meet great public emergencies and to conserve governmental efficiency and the welfare of the State. Implied power when not forbidden is as potent as power expressly conferred.
Luckily, Floridians who want the governor to comply with our constitution have the power to take action. Any Florida citizen and taxpayer can file a petition in the state Supreme Court to obtain an order forcing DeSantis to perform his indisputable legal duty to make the appointments by the deadline. That’s what happened in Pleus.
Yes, Florida is in a state of emergency. The Florida Constitution still applies. It still matters. And it requires DeSantis to appoint two new justices to the Supreme Court of Florida on March 23. The clear and unambiguous language of the constitution contains no exceptions. So the question, governor, is this: Will you follow the “Constitution as written”?
For more on the impact of the coronavirus, listen to Tuesday’s episode of What Next.