THE NEWS SERVICE OF FLORIDA: State Supreme Court Says Crist Must Name 5th DCA Judge

By KATHLEEN HAUGHNEY
THE NEWS SERVICE OF FLORIDA

THE CAPITAL, TALLAHASSEE, July 2, 2009… The Florida Supreme Court told Gov. Charlie Crist Thursday that he must name a new judge to an appellate court after months of fighting over the slate of candidates for the job.

Nearly 10 months ago, Fifth District Court of Appeal Judge Robert Pleus informed the governor that he intended to retire from the bench, triggering a process that has a judicial nominating commission assemble a list of candidates of potential replacements. But when the list for Pleus’ spot was sent to Crist, the governor said the candidates did not reflect his goal of diversity on the court and he refused to name a replacement from the list.

Twenty-six people had applied for the opening and the Fifth District Judicial Nominating Commission had forwarded six names to the governor. Four men, two women, all white.Crist then said in a letter to Fifth District JNC chair James H. Fallace that at least three African-Americans, including Ninth Circuit Chief Judge Belvin Perry, were among the list of applicants for the position and wanted to know why not one of them had made the list..

The refusal sparked a long back-and-forth among the governor’s office, the JNC and the courts. The JNC did not believe it had constitutional authority to change the list and the appeals court simply wanted a new judge.

Ultimately, Pleus sued the governor to force him to name someone to the vacancy.

Supreme Court Justice Jorge Labarga – a recent Crist appointee – wrote in the unanimous opinion that Crist was bound by the constitution to make the judicial appointment.

“Moreover, while 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,” he wrote.

Crist released a statement shortly after the Supreme Court Decision was released Thursday morning, saying he was disappointed that the JNC would not be reconsidering its list of nominees, but that he respected the court’s decision.

“I remain committed to ensuring that the diversity of the people of Florida is represented in our judiciary,” he said in the statement. “In respect to the Court’s decision, I look forward to interviewing and considering the nominees for the Fifth District Court of Appeal.”
The court didn’t directly set out a timeline for when Crist must make the appointment, noting only that the constitution creates a 60-day deadline from the time the JNC sends the governor the list. In this case, it’s not clear how the delay created by the court battle affects the timeline. Labarga wrote that the court wasn’t issuing a direct order directing the details of how Crist should comply, but noted that the justices expected he would.

Sandy D’Alemberte, the lawyer who represented Pleus, said that Crist’s diversity objective is admirable, but that the constitution simply didn’t permit him to go around the JNC.

“Under the constitution, I don’t see much counter argument… as soon as you allow a governor to displace the wisdom of a nominating commission, you simply don’t have a nomination commission,” he said.

James Fallace, chairman of the nominating commission, did not respond immediately to a request for comment.