Court says governors must pick from the lists the JNCs send them.

The Florida Constitution requires the governor to fill judicial appointments from a list submitted by the appropriate judicial nominating commission and does not give the governor the authority to reject such a slate and request a new one.

A unanimous Supreme Court reached that conclusion July 2 in deciding that Gov. Charlie Crist must fill a vacancy on the Fifth District Court of Appeal from a list of six candidates submitted by the Fifth DCA Judicial Nominating Commission.

Shortly after the decision was released, Crist's office released a statement saying he would comply with the court ruling.

"The plain language of article V, section 11(c), mandates that the Governor, upon receipt of the certified list of nominees from a judicial nominating commission, make an appointment from that list within 60 days to fill the judicial vacancy," Justice Jorge Labarga wrote for the court. "Significantly, in addition to the mandatory language that is expressly stated in the provision, we note the absence of any language granting the Governor authority to reject the JNC's certified list of nominees or to extend the time in which the appointment for judicial office must be made."

The issue arose last year when Judge Robert Pleus, Jr., announced his retirement from the district court, having reached the mandatory retirement age. The JNC met and nominated six possible replacements, including two women.

But Crist said he thought the panel should include African-Americans and noted two apparently qualified black candidates had applied. He returned the list to the JNC and asked them to reconsider. But the commission refused, with members saying they had chosen the most qualified applicants and there was no constitutional authority for them to reopen deliberations.

Since that action late last year, Crist has refused to fill the vacancy, and has not interviewed the six nominees. Earlier this year, Pleus, represented by Tallahassee attorney Sandy D'Alemberte, filed for a writ of mandamus from the Supreme Court, asking it to order Crist to fill the vacancy. He said the Fifth DCA was having difficulties because of the continuing vacancy, even though Pleus, as a senior judge, was continuing to serve.

The court heard oral arguments on May 20.

In the court's opinion, Labarga looked at past court advisory opinions concerning JNC operations and at the clear language of Article V in concluding that Crist was required to make the appointment.

He also rejected an argument made by the governor's legal team that Pleus should have sought a declaratory judgment in circuit court, rather than mandamus relief from the Supreme Court. Extended judicial vacancies cause problems, Labarga wrote, and the one in the Fifth DCA has now lasted for more than six months.

"... [W]e hold that article V, section 11(c), imposes a clear and indisputable legal duty upon the Governor, in his exercise of appointing judicial nominees to act with 60 days of receiving the certified list of nominees," the opinion said. "Petitioner, as a citizen and taxpayer, has a clear legal right to request that the Governor carry out that duty. In so holding, we reject the proposition that the Governor's failure to act within the mandated time frame obviates that duty. To hold otherwise would render the constitutional provision nugatory."

The court also held that its action did not infringe on the governor's executive appointment authority, saying that it was only holding that the governor had to make the appointment from the submitted list, and not telling him which person to select.

"[W]hile we applaud the Governor's interest in achieving diversity in the judiciary--an interest we believe to be genuine and well-intentioned--the constitution does not grant the Governor the discretion to refuse or postpone making an appointment to fill the vacancy on the Fifth District Court of Appeal," Labarga said.

In finding for Pleus, though, he added the court was withholding the issuing of the mandamus writ, believing that Crist will comply without that.

And he did. Within an hour of the opinion's release Crist's press office released this statement from the governor: "While I am disappointed by today's decision that the Judicial Nominating Commission cannot reconsider these important nominations, I respect the Supreme Court's decision and their consideration of this case. I remain committed to ensuring that the diversity of the people of Florida is represented in our judiciary. In respect to the court's decision, I look forward to interviewing and considering the nominees for the Fifth District Court of Appeal."

Gary Blankenship

Senior Editor