GUEST POST BY KYLE S. ROBERTS (UPDATED)

Florida Supreme Court Said Governor DeSantis Exceeded His Authority In Appointing Judge Renatha Francis, But Held Petitioner Thompson To The Remedy She Requested And Denied The Petition

By Kyle S. Roberts

The August 27^th Opinion denied Representative Geraldine F. Thompson’s challenge to Governor DeSantis’ appointment of Judge Renatha Francis to the Florida Supreme Court because the remedy sought was “legally unavailable under these circumstances.”

For those keeping an eye on this case, this dispute stems from Governor DeSantis’ appointment of Judge Francis to the Florida Supreme Court on May 26, 2020, and the undisputed fact that she has not been a member of the Florida Bar for the preceding ten (10) years—a milestone she will reach on September 24, 2020. Petitioner took the position that to be eligible for a seat on the Florida Supreme Court, the person must meet the requirements laid out in Florida’s Constitution at the time of appointment. Governor DeSantis took the position that the person must meet the requirements laid out in Florida’s Constitution at the time of actually taking the oath and assuming the duties of her office, which Judge Francis intends to do on September 24, 2020.

Rather than simply ask the Court to 1) find that Judge Renatha Francis is ineligible for office and 2) issue a writ of mandamus compelling Governor DeSantis to appoint someone else from the short list sent up on January 23, 2020, Petitioner asked the Court to compel the JNC to create a new list from the original applicants and to compel Governor DeSantis to appoint someone from that new list.

The Court found that “[w]hen we read Article V, section 8 together with article V, section 11, the only reasonable conclusion is that the Bar eligibility requirement attaches at the time of appointment.” This is contrary to the Governor’s position.

Although the Court cleared up the dispute as to the time all constitutional eligibility requirements must be met, it ultimately denied the petition because of the relief sought by Petitioner:

There is no legal justification for us to require a replacement appointment from a new list of candidates, rather than from the one that is already before the Governor. And the correct remedy (an appointment from the existing list of eligible nominees) would be contrary to Thompson’s stated objectives in filing this case. Therefore, we hold Thompson to the remedy she requested and deny her petition.

This Opinion leaves us wondering what will happen next as there is still close to a month before Judge Francis meets the constitutional eligibility requirement and the Court clearly stated that she needed to have met it at the time of appointment. Will Petitioner, or another Florida Citizen, challenge the appointment of Judge Francis, and this time request the correct relief as pointed out by the Court? Will Governor DeSantis revoke his appointment and select one of the remaining 7 individuals on the January 23, 2020, list to avoid further litigation? Will it be status quo until September 24^th and Judge Francis becomes Justice Francis?

The remaining individuals on the January 23^rd list, aside from Judge Francis and now Justice Couriel, are:

Jonathan Gerber

Jamie Grosshans

Norma Lindsey

Timothy Osterhaus

Eliot Pedrosa

Lori Rowe

Meredith Sasso

Kyle is a commercial litigator at Conrad & Scherer LLP in Fort Lauderdale.

Update--

Petitioner Thompson filed a Motion for Leave to amend, and also filed an Amended Emergency Petition for Writ of Quo Warranto and Writ of Mandamus yesterday.

 She is asking the Court to do exactly what it said would be the appropriate remedy and declare that Judge Francis was ineligible for appointment, and to compel Governor DeSantis to immediately appoint one of the 7 remaining on the January 23, 2020, list.

Media matters

 There's been a ton of publicity about the Steve Bannon arrest and charges.  The prosecution has issued its press releases and even held a press conference.  DOJ is a media machine these days.  It wasn't always like that.  But heaven-forbid that a defendant try to respond to the press... 

Bannon's co-defendant called the case a witch hunt and DOJ has filed a letter complaining to the judge that the defendants are making extra-judicial statements which may taint the jury pool.  DOJ had the chutzpah to cite to Sheppard v. Maxwell, F. Lee Bailey's Supreme Court case which found that the defendant (Sam Sheppard, a/k/a the Fugitive) could not get a fair trial with all of the publicity surrounding his trial.  

If DOJ is going to speak to the press, then defendants should be permitted to respond.

“The Department of Justice has been casting a wide net charging these SBA loan fraud cases, and I look forward to discovering if this is an example of that net having been cast too wide.”

That was Bradley Horenstein discussing his new COVID-19 case. His client is accused of getting a relief loan for a farm in Miami... according to the feds, no farm. From the Herald:

As the coronavirus spread havoc in South Florida, prosecutors say Latoya Stanley and Johnny Philus hauled in $1 million in federal relief loans while claiming they were struggling to operate a beauty supply store, an auto leasing business and a couple of farms in North Miami.

Their loan applications were all made up, the feds say — especially the part that they were “farmers” on tiny residential lots in the urban community.

Stanley, 38, and Philus, 33, were arrested Wednesday. They are charged with committing wire fraud and making false statements when they applied for Small Business Administration loans under a new federal program that provides financial assistance to businesses ailing from the impact of COVID-19. Both were released on a $100,000 bond and face arraignment on Sept. 9 in Miami federal court.

***

“In actuality, the complaint alleges that Stanley and Philus employed no one and the farms did not exist,” according to the U.S. Attorney’s Office.

In their government loan applications filed in May and June, Stanley and Philus claimed to operate two businesses — Dream Gurl Beauty Supply and Elegance Auto Boutique — out of a duplex building on one-sixth of an acre at 1275 NE 118th St.

Which circuit is the worst on qualified immunity?

You may have thought it was the 11th... but it’s the 5th actually.  We aren’t far behind, according to this interesting Reuters report.  And the best is the 9th Circuit. But the disparities is a good reason to abolish the doctrine altogether.  Here’s a small portion from Reuters:

For years, the words “qualified immunity” were seldom heard outside of legal and academic circles, where critics have long contended that the doctrine is unjust. But outrage over the killing of George Floyd and incidents like it have made this 50-year-old legal doctrine — created by the U.S. Supreme Court itself — a target of broad public demands for comprehensive reform to rein in police behavior.
The criticism that qualified immunity denies justice to victims of police brutality is well-founded. As Reuters reported just two weeks before Floyd’s death, the immunity defense has been making it easier for cops to kill or injure civilians with impunity. Based on federal appellate court records, the report showed, courts have been granting cops immunity at increasing rates in recent years — even when judges found the behavior so egregious that it violated a plaintiff’s civil rights — thanks largely to continual Supreme Court guidance that has favored police.
The regional differences Reuters has found in how qualified immunity is granted only add to arguments that the doctrine is unfair. “It’s essential to our system of government that access to justice should be the same in Dallas and Houston as in Phoenix and Las Vegas,” said Paul Hughes, a prominent civil rights attorney who frequently argues before the U.S. Supreme Court. “It shouldn’t turn on the happenstance of geography as to whether or not they (plaintiffs) have a remedy.”
The “happenstance of geography” shows up in a comparison of Collie’s case to the one Benny Herrera’s family filed after a cop killed him in 2011. Police in Tustin, California, were looking for the 31-year-old father of four after a former girlfriend reported that he had assaulted her. They found him walking along a lightly trafficked road, behaving erratically. As in Collie’s case, a cop opened fire when he thought Herrera was about to shoot him. Like Collie, Herrera did not have a gun.

Lori Loughlin gets two months...

... which is two months too long. 

First, she was bullied into pleading guilty.

Second, the government appears to have committed serious misconduct.

But most importantly, the sentence really doesn't serve any legitimate purpose.  I wrote about the same issue in the two-week Felicity Huffman sentence here.  Here's a snippet:

With as much subtlety and sophistication as a sledgehammer, social media erupted after Felicity Huffman’s 14-day sentence was announced, with commenter after commenter saying her sentence was way too light. A rich, white woman only received two weeks in jail. The system must be corrupt! Well, the system is corrupt, but not because Huffman’s sentence was too light, but because it was too severe.

But wait, you might be saying, she only received a few weeks; how can that be too severe?

Her sentence is wrong for at least four reasons:

1.    Our criminal justice system still has an unjust “jail-first” mentality. The default sentence for a first-time non-violent offender who accepted responsibility where no one suffered any loss should obviously be something other than incarceration. If that type of offender — with no aggravating factors — isn’t getting probation, then who is? The problem is that we are so tied to putting people in jail, even people we know will never do anything similar again, that our default is some prison. That’s wrong. It’s important to keep things in perspective: Huffman didn’t hurt anyone and it’s not altogether clear that paying someone to take a test should even be a federal crime in the first place.   

2.    Comparisons to other sentences show that those sentences are too high, not that Huffman’s is too low. With no sense of irony, the Huffman prosecutor cited other cases in which defendants received grossly and inappropriately high sentences as a reason to impose prison time on Huffman. For example, the prosecutor pointed to the case of Kelley Williams-Bolar, an African-American woman who originally was sentenced to five years in prison for using her dad’s address to get her kids into a different school district. The sentenced was later suspended to 10 days in jail. Everyone agrees: That sentence — even after it was reduced to 10 days — was obscene. Saying that Huffman should not get a probationary sentence because another prosecutor obtained an unjust sentence in another case demonstrates why we have a mass-incarceration problem. The prosecutor said at the Huffman sentencing: “If we believe in just punishment, we should not put the Williams-Bolars in jail while letting the Huffmans go free.” That’s true, but it means that we shouldn’t put the Williams-Bolars in jail, not that we should put both in prison. 

John Byrne discussed high school football

It's a little off-topic, but hey, it's Friday afternoon. Check out his Miami Herald op-ed here.  The intro:

 On Aug. 14, the Florida High School Athletic Association’s board of directors approved Aug. 24 as the start of practice for the fall sports seasons, including football. Under the FHSAA’s plan, the regular season will start on Sept. 4, and there will be a nine-week regular season. As in past years, there will be playoffs in November and a state championship in December.

Of course, this isn’t like past years in one major respect: the coronavirus pandemic. The pandemic has had an undeniable impact on this country — and on Florida and Miami-Dade County, in particular. And, in the sports arena, it’s already led major college football conferences to cancel the football season. The FHSAA however, plans to move forward as if it’s business as usual, with the only exception being that it’s giving high schools until Sept. 18 to opt-out of its proposed schedule and set their own, the consequence being that these schools can’t compete for a state championship.

The FHSAA plan is unacceptable.

If Judge Wilson takes senior status next year, who will take his spot on the 11th Circuit?

The vetting room blog says that Roy Altman is a likely candidate if Trump wins:

Judge Roy Altman (S.D. Fl.)

The 38 year old Altman was the youngest district court judge in the country when he was appointed in 2019, and, despite that youth, he sailed to confirmation by a 2-1 margin, a landslide among recent confirmation votes.  Altman will likely be strongly considered for a seat on the Eleventh Circuit if Judge Charles Wilson moves to senior status in a second Trump term, or if Judges Lagoa or Luck are elevated to the U.S. Supreme Court.

And if Biden wins:

Judge Leslie Abrams Gardner (M.D. Ga.)

The sister of the famous Stacey Abrams, Judge Leslie Abrams Gardner made history as the first woman ever appointed to the Middle District of Georgia.  The 45-year-old Gardner is poised to potentially make history again as the first black woman appointed to the Eleventh Circuit (and potentially further to the Supreme Court).

11th Circuit Zooms

Here's the picture from the Tampa Bay Times of the Zoom hearing regarding the felon voting rights case:

More:

In a case that could have major ramifications ahead of the November election, a panel of federal judges in Atlanta questioned lawyers Tuesday about Florida’s decision to require felons pay off all court fees and fines before voting. Ten judges from the U.S. Court of Appeals for the 11th Circuit, half of whom were appointed by President Donald Trump, peppered lawyers representing Gov. Ron DeSantis and more than a dozen felons about the state’s law and whether its requirements to pay off all fees equated to a modern-day “poll tax.” Most of the questioning, however, fixated on complicated judicial precedents. After more than two hours of back-and-forth that was carried on Zoom, the video conferencing site, judges gave little indication how they would rule. One exception was Judge Barbara Lagoa, who, along with Judge Robert Luck, was appointed to the court by Trump after Gov. Ron DeSantis named them to the Florida Supreme Court last year. Lagoa asked many questions that indicated she agreed with DeSantis’ position on Amendment 4, passed by Floridians in 2018 that wiped away the state’s Jim Crow-era ban on voting by people convicted of felonies. At one point, Lagoa questioned whether the court, if it finds parts of Amendment 4 unconstitutional, shouldn’t simply void the entire amendment. American Civil Liberties Union attorney Julie Ebenstein responded that not even DeSantis’ attorneys have said that Amendment 4 should be tossed out. Judges routinely “sever” parts of a law, striking some parts while preserving others. “Everybody agrees that nullifying Amendment 4 would be an absurd result that should be avoided,” Ebenstein said.