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 
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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’ constitutionbased 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’ proceduralrule-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 rulemaking 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.