Florida Gov. Ron DeSantis, a Republican, 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. Now the governor appears to be mulling another unconstitutional move: He may appoint a nominee who cannot legally take office.
After Justice Peggy Quince’s retirement from the court in January 2019, the court was left without a black justice for the first time in 36 years. The Florida appellate bench is in desperate need of diversity. During eight years in office, former Gov. Rick Scott appointed 36 judges to the appellate courts—more than half the bench—and one to the Supreme Court. Scott appointed only one black judge—in mid-December 2018, less than 30 days before he left office.
DeSantis is different. He seems to have a genuine desire to increase diversity on the bench. He has appointed several black trial judges since taking office. Now that his first two state Supreme Court appointees resigned to take seats on a federal appellate court, DeSantis has the opportunity to appoint a black justice. And he is under pressure to do so by Democratic state lawmakers and editorial boards.
Thirty-two people applied for the two vacancies. Six of the applicants were black. Of those six, the court’s judicial nominating commission, which vets applicants and sends the governor nominees, nominated one, Palm Beach County Circuit Judge Renatha Francis. (The JNC failed to nominate any black applicant in the last round of appointments for three vacancies.) The problem is that the JNC has nominated someone who is constitutionally ineligible to sit on the Florida Supreme Court at the time the vacancies must be filled.
Under Article V, Section 8, of the Florida Constitution, “No person is eligible for the office of justice of the supreme court … unless the person is, and has been for the preceding ten years, a member of the bar of Florida.” Francis was admitted to the Florida Bar on Sept. 24, 2010. She will not meet the constitutional requirement until Sept. 24, 2020. DeSantis was obligated to appoint justices by March 23, but he declined to and said he would probably make the appointments on May 1. Even then, Francis would not be eligible.
Her ineligibility has been briefly noted by news articles, an editorial board, and Democratic state Rep. Geraldine Thompson, who criticized the nomination in an op-ed. Nova Southeastern University professor Robert Jarvis, the Florida Legislative Black Caucus, former president of the Florida Bar Eugene K. Pettis, and even Francis herself acknowledge the issue but paper over it. They argue there is a difference between appointment and commission. A commission, as defined by Black’s Law Dictionary, is “[a] warrant or authority, from the government or a court, that empowers the person named to execute official acts.” It is a formal document signed by the governor. According to those who support Francis’ appointment, she need not be eligible at the time of appointment so long as she is eligible at some time in the future. At that point, the governor can issue her the commission and she can take office.
But the text of the Florida Constitution does not support that view. There are two other constitutional provisions that are relevant. First, Article V, Subsection 11(c) states that “[t]he governor shall make the appointment within sixty days after the nominations have been certified to the governor.” Next, Article V, Subsection 11(a) provides that “[w]henever a vacancy occurs in a judicial office to which election for retention applies, the governor shall fill the vacancy by appointing for a term.” (Emphasis added.)
The plain language of the Florida Constitution does not distinguish between appointment and commission. The constitutionally significant event is the appointment, which is what fills the vacancy. How can a vacancy be filled if the appointee does not take office for a few months? It can’t.
Florida Supreme Court precedent confirms that, when an appointment to office depends solely on the governor’s authority—which is the case with appellate judgeships in Florida—the appointment is not complete until the governor issues a commission. In 1971’s State ex rel. Lawson v. Page, the court considered rival claims to a seat on the South Broward Transit Authority District. Gov. Claude Kirk had sent a letter to the secretary of state declaring his intent to appoint William R. Page. But Kirk failed to sign Page’s commission before he left office. The new governor, Reubin Askew, canceled the appointment and commissioned William Lawson to the seat instead. The Florida Supreme Court determined that Lawson was the lawful holder of the office. “By failing to execute a commission in favor of [Page],” the court said, “Governor Kirk failed to appoint him.” It concluded that, because “the act of appointment was not completed by the execution of a commission,” Page was never actually appointed.
In 1966’s In re Advisory Opinion to the Governor, the court held a governor can’t issue a commission to a person who is ineligible for judicial office. There, voters elected a judge who would not have been legally eligible to take office at the start of his term, or during a grace period created by statute. The Supreme Court told the governor “that you are not authorized to sign his commission” at all because the judge-elect would “not now nor will he within the time allowed by law possess the qualifications now required by the Constitution of this State to hold the office of a Judge of a Circuit Court.”
DeSantis is not authorized to issue Francis a commission—to make the appointment—until she is eligible on Sept. 24. The governor can’t simply announce his intent to appoint her and satisfy the constitutional appointment requirement. Nor can he leave the vacancy open until Sept. 24. Yet DeSantis appears to reject these constitutional limitations on his authority. His top aide said in March that “the governor is open to waiting until September to name” Francis to the court.
The Florida Supreme Court needs to be diverse. It needs different perspectives; it should be representative of our state. But the words of the state constitution are paramount, and those words are unequivocal. The Florida Constitution forbids DeSantis from appointing Francis to the court by issuing her a commission while she is ineligible, and he cannot lawfully hold the seat open until she becomes eligible. If the governor ignores these rules, he will demonstrate that he feels unbound by “the fundamental law of the state.”
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