DeSantis foe asks Supreme Court to make sure governor sticks to the Constitution in his next judicial picks

By Noreen Marcus, FloridaBulldog.org

Gov. Ron DeSantis may be obliged to take direction from the Florida Supreme Court before he names judges to new seats on two state appeals courts.

Earlier this month, state Sen. Geraldine Thompson, D-Windermere, and Orlando attorney Whitney Boan asked the high court to prevent the governor from picking any of seven short-listed candidates for the new Sixth District Court of Appeal in Polk County or the reconfigured Fifth District Court in Volusia County.

Seven judgeships are available, three on the new Sixth District Court and four on the revamped Fifth. Six of the nine judges for the new Sixth District Court will come from other districts.

One of Thompson’s targets, Hillsborough Circuit Judge Jared E. Smith, wants an appointment to the Sixth District. He lost his bid for reelection to the lower court in August, so his timing may be right.

Smith made national news by denying a teenager an abortion because, he said, her high school grades showed she lacked the maturity to make this personal health care choice. His decision was reversed on appeal.

A CASE ABOUT WHERE JUDGES LIVE

“The 17-year-old who came to Judge Smith had to be mature enough,” Brooklyn Law School professor Anita Bernstein wrote in a guest column for the Tampa Bay Times. “Hillsborough voters understood, and the nation took note.”

Now Smith is up for a gubernatorial promotion, at a time the Supreme Court is expected to approve the controversial 15-week abortion ban that DeSantis signed on April 14.

In court papers Thompson and Boan say nothing about Smith’s or the other six candidates’ records or qualifications. They don’t mention that at least two of the nominees give DeSantis opportunities to add more abortion opponents to state appellate courts.

Instead, Thompson and Boan make a technical but cogent claim: None of the seven short-listed candidates lives in the district they would serve, as required by the Florida Constitution.

The nominees who allegedly violate the residency rule are: Smith; Palm Beach Circuit Judge Paige Gillman Kilbane; John MacIver, chair of the Florida Gaming Control Commission; Tallahassee Circuit Judge Steven Everett; state Rep. Mike Beltran, R-Apollo Beach; DeSoto Circuit Judge Danielle Brewer, and Fort Myers Chief Judge Michael McHugh.

BUCKS OFTEN STOPS AT APPEAL COURTS

District courts of appeal rank above trial courts and below the Supreme Court. But their reach and power exceed their place in the judicial pecking order.

Because the Supreme Court’s jurisdiction is limited to a small group of topics, the average Floridian who loses at trial and perseveres can expect the final decision will come from a district court of appeal.

Since 1979 there have been five district courts spread across the state, from the First in Tallahassee to the Fifth in Daytona Beach. As of Jan. 1 there will be six.

Judges are supposed to live in their districts in order to achieve “proportional geographic representation,” Thompson’s petition says. Too many judges clustered in one place defeats the goal.

Thompson and Boan want the Supreme Court to order DeSantis to choose from the geographically correct candidates on the short lists—13 for the Fifth District and 14 for the Sixth. DeSantis’s deadline to name seven judges is late December.

IS IT 2020 ALL OVER AGAIN?

If Thompson’s actions look familiar, that’s because she did something along the same lines in 2020, when she was in the Florida House.

The situation was more dramatic, DeSantis having already made his appointment to the state’s highest court. But the through line from then to now is the Florida Constitution.

In 2020 Thompson argued to the Supreme Court that Renatha Francis, DeSantis’s nominee for the court, was ineligible because she hadn’t been a licensed lawyer for the minimal 10 years the Constitution requires.

The strategy worked; the high court forced DeSantis, on pain of contempt, to drop Francis and make another selection. He chose Justice Jamie Grosshans.

Still berating Thompson for his setback, DeSantis tapped Francis again this year and finally, on Sept. 1, put her on the Supreme Court.

NEXT UP: DISQUALIFICATION

The ongoing Supreme Court residency case promises a twist: Two of the court’s seven members will likely be disqualified from taking part in it. A third justice may also have to step aside.

Supreme Court Clerk John Tomasino revealed in letters to Thompson and Boan that Justice Charles Canady had agreed to serve as a reference for DeSoto Circuit Judge Danielle Brewer and Fort Myers ChiefJudge Michael McHugh, candidates for the Sixth District Court.

Justice John Couriel offered a similar boost to another Sixth District nominee, state Rep. Mike Beltran, according to Tomasino.

Couriel must know Beltran’s position on abortion. Beltran said he would “give my life to end abortion and protect the unborn” at a press conference after the U.S. Supreme Court overturned Roe v. Wade. Florida’s no-exceptions, 15-week abortion cutoff isn’t tough enough for Beltran, who wants a total ban.

Tomasino’s Nov. 21 letters, accessible from the online case file, suggest Canady and Couriel will be disqualified unless Thompson and Boan waive any objection to their handling the case. But later the same day, both declined to vouch for the justices’ impartiality.

PROVISO FOR JUDGES’ REFERENCES

Still, it’s not an outright violation for a judge to give a reference, Miami legal ethics consultant Jan Jacobowitz told Florida Bulldog.

“The Judicial Ethics Advisory Committee has said a judge may recommend a candidate on a factual basis, but ‘shall not lend the prestige of judicial office to advance the private interests of the judge or others,’ “ she wrote in an emailed response to questions.

“That being said, I am not sure how any recommendation from a judge is devoid of the ‘prestige of judicial office,’”Jacobowitz wrote.

In separate motions, Thompson and Boan asked the court to disqualify Justice Jamie Grosshans because her husband, Joshua Grosshans, is a member of the Sixth District Court of Appeal Judicial Nominating Commission.

The commission recommended five of the seven candidates whose eligibility is under attack.

KEEPING A QUORUM MAY BE HARD

Aside from that, the Grosshanses are anti-abortion activists, according to the Tampa Bay Times.

The Florida Code of Judicial Conduct requires disqualification if facts “would place a reasonably prudent person in fear of not receiving a fair and impartial hearing,” according to Thompson’s motion.

Thompson has “an objectively reasonable fear that Justice Grosshans cannot fairly and impartially render a decision in this case,” the motion says.

“The appearance of impropriety that would result from her participating in this case is not in the best interests of the administration of justice,” it says.

If three justices were disqualified, the court would lose its quorum. Internal rules require a quorum of five justices “to carry out all official business, including holding oral arguments and issuing opinions.”

Sidelining three justices would leave the court with four, one fewer than a quorum. If so, state law and court procedures direct Chief Justice Carlos Muniz to tap a lower-court judge to serve as an “associate,” or temporary, justice.

The panel would keep going until four justices agreed on how to resolve the case.