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

Supreme Court of Florida
____________

No. SC22-1557
____________

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.
____________

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

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(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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