Whitney Boan v. Florida Fifth District Court of Appeal Judicial Nominating Commission & Geraldine F. Thompson, etc. v. Florida Sixth District Court of Appeal Judicial Nominating Commission ( 2022 )

Supreme Court of Florida
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No. SC22-1557
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WHITNEY BOAN,
Petitioner,
vs.
FLORIDA FIFTH DISTRICT COURT OF APPEAL JUDICIAL
NOMINATING COMMISSION, et al.,
Respondents.
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No. SC22-1558
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GERALDINE F. THOMPSON, etc.,
Petitioners,
vs.
FLORIDA SIXTH DISTRICT COURT OF APPEAL JUDICIAL
NOMINATING COMMISSION, et al.,
Respondents.
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December 15, 2022
MUÑIZ, C.J.
When a judicial vacancy is to be filled by appointment, the
Florida Constitution requires a judicial nominating commission to
certify nominees for the governor’s consideration. Here, in
connection with pending judicial vacancies, two judicial nominating
commissions certified nominees who did not at the time of their
nominations reside in the territorial jurisdiction of the applicable
court. The petitioners in these consolidated cases allege that the
nomination of nonresident candidates violated the Florida
Constitution and the commissions’ own rules of procedure. As a
remedy, the petitioners ask us to issue writs of quo warranto
invalidating the nominations of the disputed candidates, leaving the
Governor to make his appointments from among the remaining
nominees. We deny the petitions.
I.
Through its enactment of chapter 2022-163, Laws of Florida,
the Legislature created a new, sixth district court of appeal and
made corresponding changes to the boundaries of the existing First,
Second, and Fifth District Courts of Appeal. That same legislation
also authorized several new judgeships, effective January 1, 2023,
for the reconfigured Fifth District Court of Appeal and the new Sixth
District Court of Appeal. To begin the process of filling those
vacancies—four in the Fifth District and three in the Sixth
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District—the Governor asked each district’s judicial nominating
commission to convene and to submit nominees for his
consideration. See art. V, § 11(a), Fla. Const. (“Whenever a vacancy
occurs in a judicial office to which election for retention applies, the
governor shall fill the vacancy by appointing for a term . . . one of
not fewer than three persons nor more than six persons nominated
by the appropriate judicial nominating commission.”).
The judicial nominating commissions completed their
respective tasks in October of this year. It is undisputed that each
commission’s list of nominees included individuals who did not, at
the time of nomination, reside in the territorial jurisdiction of the
court of appointment. Two of the fifteen nominees for the Fifth
District vacancies are nonresidents, as are four of the eighteen
nominees for the Sixth District vacancies.
Roughly one month after the judicial nominating commissions
certified their lists of nominees, Whitney S. Boan (as to the Fifth
District) and Geraldine F. Thompson (as to the Sixth District) filed
separate petitions in this Court seeking a writ of quo warranto
directed to each judicial nominating commission. Each petition
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names as a respondent the applicable judicial nominating
commission and its chairman in his official capacity.
The petitioners allege that the inclusion of nonresidents on
each commission’s list of nominees violated the Florida Constitution
and the commissions’ rules of procedure. As relief, the petitioners
ask this Court to declare that the nomination of nonresidents
exceeded each commission’s authority and to invalidate the
disputed nominations, leaving the Governor to make his
appointments from among the remaining nominees. We have
consolidated the petitions because they raise identical legal
arguments.
II.
A.
We begin with the threshold issues of jurisdiction and
standing. Article V, section 3(b)(8) of the Florida Constitution gives
this Court discretionary jurisdiction to issue writs of quo warranto
“to state officers and state agencies.” The writ of quo warranto
“historically has been used to determine whether a state officer or
agency has improperly exercised a power or right derived from the
State.” Fla. House of Representatives v. Crist, 999 So. 2d 601, 607
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(Fla. 2008). These jurisdictional criteria are satisfied here:
members of Florida’s judicial nominating commissions are state
officers; the governmental actions at issue—the commissions’
certification of nonresident nominees to the Governor—are
complete; and the petitions allege that the commissions’ actions
exceeded the authority granted by the Florida Constitution.
The respondents say that, because the Governor has yet to
make his appointments from among the lists of nominees, the
petitioners challenge only future action. According to the
respondents, the petitioners here seek the equivalent of an
(unauthorized) advisory opinion. That is incorrect. The challenged
actions (the nomination of nonresident candidates) and the
requested remedy (the invalidation of those nominations) are
directed at the judicial nominating commissions, not at the
Governor.
As to standing, we see a close analogy to cases where this
Court has recognized “citizen and taxpayer” standing to challenge a
governor’s alleged noncompliance with constitutional provisions
regulating the judicial appointment process. See Thompson v.
DeSantis, 301 So. 3d 180 (Fla. 2020); Pleus v. Crist, 14 So. 3d 941-5-
(Fla. 2009). Petitioners’ claims are similar in kind, even if directed
at a different actor in the constitution’s appointment process.
Assuming the correctness of our precedents on standing in quo
warranto cases, we conclude that the petitioners’ constitution-
based allegations suffice to establish standing here. We note that,
although the Sixth District’s nominating commission contests the
petitioners’ standing, the commission did not take on the burden of
establishing that our precedents in analogous cases are “clearly
erroneous.” See State v. Poole, 297 So. 3d 487, 507 (Fla. 2020)
(explaining this Court’s stare decisis criteria).
B.
Turning to the merits of the petitioners’ constitutional claim,
we emphasize at the outset that our focus must be on what the
constitution does and does not require of a judicial nominating
commission. It is not our role to sit in judgment of a commission’s
discretionary choices or to impose our own views of what
nomination process would be most practical or efficient.
The judicial eligibility criterion at issue here is found in article
V, section 8 of the Florida Constitution: “No person shall be eligible
for office of justice or judge of any court unless the person . . .
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resides in the territorial jurisdiction of the court.” The petitioners
maintain that this provision prevents a judicial nominating
commission from nominating any candidate who does not reside in
the territorial jurisdiction of the corresponding court at the time of
nomination.
We disagree. First, the text of article V, section 8, on its face
does not speak to the nomination process, and it does not explicitly
contain the limitation urged by the petitioners. Second, article V,
section 11, which specifies the judicial nominating commissions’
role in the appointment process, also does not explicitly contain
such a limitation. Instead, article V, section 11(d), mandates a
separate nominating commission for each district court of appeal,
without saying anything more specific about the commissions’
duties; article V, section 11(a), says only that a commission must
nominate “not fewer than three persons nor more than six persons”
per vacancy; and article V, section 11(c), sets forth the deadlines
within which the commissions must make their nominations.
Finally, one cannot infer an “eligible at the time of nomination”
requirement from any constitutional provision in isolation, from the
structural relationship between article V, sections 8 and 11, or from
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the relevant provisions’ evident purpose. Cf. Verizon Md., Inc. v.
Pub. Serv. Comm’n of Md., 535 U.S. 635, 644 (2002) (“[W]e will not
presume that the statute means what it neither says nor fairly
implies.”).
Instead, we think that our holding in Thompson v. DeSantis,
301 So. 3d 180 (Fla. 2020), points to the correct resolution of the
petitioners’ constitutional claim. Thompson involved a different
article V, section 8, judicial eligibility requirement, namely, that a
justice of the supreme court have been a member of the Florida Bar
for the preceding ten years. That case required us to consider the
interaction of that requirement with the article V, section 11,
requirement that the governor “fill [a] judicial vacancy” by making
an appointment within 60 days of the certification of nominees.
Reading the relevant provisions in pari materia, and seeking to give
effect to each, we concluded that “the Bar eligibility requirement
attaches at the time of appointment.” Id. at 185. We said that our
conclusion followed from the constitutional text’s focus on the
governor’s obligation to “fill the vacancy” by making an
appointment, an action which necessarily requires a
constitutionally eligible nominee.
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Consistent with our decision in Thompson, we hold that the
article V, section 8, residency requirement likewise attaches at the
time of appointment. Given that the constitution provides for a 60-
day period between a commission’s certification of nominations and
the gubernatorial appointment deadline, and in the absence of clear
textual direction to the contrary, we cannot say that the
constitution imposes an “eligible at the time of nomination”
requirement. Rather, we believe that the constitution leaves to the
commissions’ discretion whether to nominate only candidates who
are residents at the time of nomination. In so holding, we note that
the petitioners here do not allege that it would be impossible for any
of the disputed nominees to satisfy the constitutional residency
requirement by the appointment deadline.
C.
That leaves us with the petitioners’ claim that the judicial
nominating commissions violated their own rules of procedure by
nominating nonresident candidates. See art. V, § 11(d), Fla. Const.
(“Uniform rules of procedure shall be established by the judicial
nominating commissions at each level of the court system.”)
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The petitioners point to sections II, V, and VI of the Uniform
Rules of Procedure for District Courts of Appeal Judicial
Nominating Commissions. Section II says that the commission
shall not classify an applicant as “ ‘most qualified’ ” unless “the
commission affirmatively determines that the applicant meets all
legal requirements for that judicial office.” Section V says that “[n]o
nominee shall be recommended to the governor for appointment
unless the commission finds that the nominee meets all
constitutional and statutory requirements.” Section VI says that
the commission shall select applicants “who meet all legal
requirements for the judicial office.” The petitioners emphasize that
these provisions’ consistent use of the present tense means that a
commission may not nominate a nonresident candidate in the hope
or expectation that he or she will become a resident before being
appointed.
The respondents in turn maintain that they have not violated
these rules. They also suggest that, in any event, it would be
impermissible for rules of procedure to impose a nominee eligibility
requirement more stringent than what the constitution demands.
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Last, the respondents say that the petitioners’ rule-based claim is
not properly before this Court.
We need not and do not decide the merits of the petitioners’
procedural-rule-based claim, because we conclude that the
commissions’ compliance with their procedural rules is not the
proper subject of a quo warranto proceeding. For starters, the
petitioners have not identified any precedent where this Court
exercised its discretionary quo warranto jurisdiction to review a
comparable procedural-rule-based claim. On the contrary, our
precedents in this area consistently involved claims that official
action exceeded limits imposed by the constitution or by a statute.
Just as important, the uniform procedural rules themselves
indicate that alleged violations are to be evaluated and dealt with by
the governor rather than by a court. Indeed, the rules give the
governor the sole authority to decide whether a rule violation of the
kind alleged here has occurred, and if so, what to do about it.
The relevant rule provisions are contained in Section IX, under
the title “Misconduct.” There the rules say: “A complaint alleging
the misconduct of a judicial nominating commission chair and one
or more commissioners of a judicial nominating commission shall
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be reported in writing to the Governor for action.” It further says:
“The Governor shall investigate any complaint if the allegations are
in writing, signed by the complainant, and deemed sufficient.”
Then: “A complaint is sufficient if the Governor determines that it
contains allegations which if proven would be a violation of these
rules or reflects discredit on the judicial selection process.” And
finally: “Upon determination of sufficiency each charge may be
disposed of by the Governor solely, [subject to consultation with
commission members uninvolved in the disposition or in the alleged
misconduct.]” Whatever behavior one might intuitively associate
with the label “misconduct,” the text says that Section IX applies to
all alleged rules violations, not just to ethics-related violations.
Given our quo warranto precedents and the rule provisions we
have just described, we conclude that the petitioners’ procedural-
rule-based claim is not the proper subject of a quo warranto
proceeding. In so holding, we reiterate that we take no position on
whether the judicial nominating commissions here complied with
their rules. Nor do we take up the respondents’ argument that the
constitution prohibits a procedural rule that disallows nominees
who are nonresidents at the time of nomination. Finally, we note
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that this portion of our analysis is limited to the petitioners’ claim
that is based solely on alleged noncompliance with the nominating
commissions’ procedural rules, which we distinguish from the
petitioners’ constitutional claim.
III.
Consistent with our decision in Thompson, we hold that the
constitutional residency requirement for judges attaches at the time
of appointment—not at the time of nomination. Therefore, the
respondent judicial nominating commissions did not exceed their
constitutional authority by nominating nonresident candidates. We
do not reach the merits of the petitioners’ procedural-rule-based
challenge to the disputed nominations, because alleged
noncompliance with the nominating commissions’ rules of
procedure is not the proper subject of a quo warranto proceeding.
The petitions are denied.
It is so ordered.
POLSTON and FRANCIS, JJ., and IVAN F. FERNANDEZ, Associate
Justice, concur.
LABARGA, J., concurs in part and dissents in part with an opinion.
CANADY, COURIEL, and GROSSHANS, JJ., recused.
NO MOTION FOR REHEARING WILL BE ALLOWED.
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LABARGA, J., concurring in part and dissenting in part.
I concur with the majority that under this Court’s holding in
Thompson v. DeSantis, 301 So. 3d 180 (Fla. 2020), the
constitutional residency requirement attaches at the time of the
governor’s appointment. However, as to the petitioners’ argument
that the judicial nominating commissions violated their own rules
in nominating nonresident candidates, I strongly disagree with the
majority’s analysis.
Like the petitioners’ claim that the judicial nominating
commissions violated the Florida Constitution, the petitioners’
rules-based claim is properly before this Court. However, the
majority concludes that the petitioners’ rules-based claim is not
appropriately considered in this quo warranto proceeding. The
majority reaches this conclusion despite the fact that the rule-
making authority of the judicial nominating commissions is derived
from the Florida Constitution. Under article V, section 11(d) of the
Florida Constitution, “[u]niform rules of procedure shall be
established by the judicial nominating commissions at each level of
the court system.” This constitutional authority is essential to
properly invoking this Court’s quo warranto jurisdiction.
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What is more, under the majority’s interpretation of the
Uniform Rules of Procedure for District Court of Appeal Judicial
Nominating Commissions, the majority concludes that the
petitioners’ rules-based claim is properly brought before the
governor and not this Court. This Court, in fact, has the
constitutional authority under article V, section 11(d) to repeal all
or part of those very rules: “Such rules, or any part thereof, may be
repealed by general law enacted by a majority vote of the
membership of each house of the legislature, or by the supreme
court, five justices concurring.” (Emphasis added.) Surely then, this
Court is the appropriate body to consider whether the respondent
judicial nominating commissions violated their own rules.
Because the petitioners’ claim properly falls under this Court’s
quo warranto jurisdiction, I cannot agree with the majority’s
interpretation on this issue. Thus, I dissent in part.
Original Proceeding – Quo Warranto
William R. Ponall and Eric J. Sorice of Ponall Law, Maitland,
Florida; and Lisabeth J. Fryer and Laura Cepero of Lisabeth J.
Fryer, P.A., Sanford, Florida,
for Petitioners, Whitney Boan, and Geraldine F. Thompson, in
her Official Capacity as a Senator in the Florida Senate
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Kenneth B. Bell of Gunster, Yoakley & Stewart, P.A., Tallahassee,
Florida, and Joseph W. Jacquot of Gunster, Yoakley & Stewart,
P.A., Jacksonville, Florida,
for Respondents, Florida Fifth District Court of Appeal Judicial
Nominating Commission, et al.
Mayanne Downs and Jason A. Zimmerman of GrayRobinson, P.A,
Orlando, Florida; and Michael A. Sasso of Sasso & Sasso, P.A.,
Winter Park, Florida,
for Respondents, Florida Sixth District Court of Appeal
Judicial Nominating Commission, et al.
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