In May, Florida governor Ron DeSantis announced his selection of Justice-designate Renatha Francis to the state’s highest court. Francis is currently a circuit judge in Palm Beach County.
When DeSantis announced that Francis’ appointment, he said that it would take effect on September 24, when she meets an eligibility requirement for ten years of membership in the Florida Bar. The Florida constitution requires justices to serve ten years in the Florida Bar prior to holding office. The text of the Florida constitution, however, does not require ten years of bar membership before a lawyer or judge may apply or be nominated and selected for office.
Moreover, the Florida supreme court previously held in Miller v. Mendez that the eligibility requirements must be met at the time a justice takes office, not earlier. Another Florida supreme court opinion (Lawson v. Page) held that the governor’s appointment is not complete until the governor issues a commission to the justice, which in this case will happen on September 24, when Francis will meet all eligibility requirements, including the ten-year bar-membership threshold.
The nine-member Judicial Nominating Commission relied on this text and those precedents when it evaluated the applicants and certified a slate of nominees, which included Francis. Governor DeSantis similarly relied on the same authority when he announced Francis’ selection on May 26th.
Nonetheless, Democratic state house representative Geraldine Thompson petitioned to invalidate Justice Francis’s appointment. After initially denying Representative Thompson’s petition, yesterday the Florida supreme court took the extraordinary step of allowing Thompson to amend her petition to state a new claim after the case had been fully briefed and decided on the merits. Perhaps even more surprising was that yesterday the court issued an order for the governor to show cause why the court should not order him to pick a new justice from a group of seven of the initial nine nominees. The court gave the governor only one day to respond to the amended petition and the order to show cause.
It is impossible to speculate on what the Florida supreme court will do next, but if it takes the extreme step of declaring Francis’s prior nomination and selection defective in the face of the court’s prior precedents, the legally appropriate remedy must allow the Judicial Nominating Commission to reconvene and certify a new slate of nominees in light of the court’s new interpretation of the eligibility requirements.