Florida Supreme Court Follows the Marbury Model: Executive Violated the Law, but Finds Remedy Is "Legally Unavailable Under These Circumstances"

And what a way to welcome a new colleague: an opinion stating that she was appointed illegally!


Generations of law students learn to venerate Chief Justice Marshall's opinion in Marbury v. Madison: he found that President Jefferson violated the law, but the Court lacked authority to issue the requested remedy. Political genius, right? Alas, far too many students learn, from the first week of class, that this sort of ju jitsu is the ideal form of judging. (Not my students). A young John Roberts no doubt enjoyed that day of ConLaw class. (Who are we kidding, Roberts developed a crush on Marshall as soon as the young pup learned to read.) And, it seems that the Justices of the Florida Supreme Court may have learned a similar lesson.

Yesterday, SCOFLA decided Representative Geraldine F. Thompson v. Governor Ron Desantis. The introduction concisely explains the issue:

Representative Geraldine Thompson wants us to undo Governor Ron DeSantis's appointment of Judge Renatha Francis to fill a vacancy in office on this Court. Thompson argues that the Florida Constitution requires Judge Francis to have been a member of the Florida Bar for ten years at the time of the appointment, which Judge Francis undisputedly was not. Thompson asks us to invalidate the appointment, require the judicial nominating commission to certify a new list of candidates, and order the Governor to appoint someone from the new list.

The Governor did exceed his authority in making this appointment. In a nutshell, when a governor fills by appointment a vacant judicial office, the appointee must be constitutionally eligible for that office at the time of the appointment. But that is not the end of the analysis, because the remedy Thompson seeks is legally unavailable under these circumstances. 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.

Poor Representative Thompson. She sought mandamus in the original jurisdiction of the Supreme Court, received a favorable ruling, but didn't get what she wanted. Sounds familiar, huh? William Marbury could not be reached for comment.

And what a way to welcome Justice Francis to the court: The Court held her appointment was illegal, but nothing can be done about it! This opinion must be the iciest welcome to a high court since a member of the U.S. Supreme Court bar challenged Justice Black's appointment. (See Will Baude's excellent discussion of Ex Parte Levitt).