# Supreme Court of Florida

____________ No. SC2 2

- 1557

____________ WHITNEY BOAN , Petitioner ,
vs. FLORIDA FIFTH DISTRICT COURT OF APPEAL JUDICIAL NOMINATING COMMISSION, et al . , Respondent s .

____________ No. SC2 2

- 1558

____________ GERALDINE F. THOMPSON, etc . , Petitioner s ,
vs. FLORIDA SIX TH DISTRICT COURT OF APPEAL JUDICIAL NOMINATING COMMISSION, et al . , Respondent s .

____________ December 15 , 2022 MUÑIZ, C.J. When a judicial vacancy is to be filled by appointment, the Florida C onstitution requires a judicial nominating commission to- 2

- ce rtify 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
nomination s 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. A s a remedy, t he petitioners ask us to issue writs of quo warranto invalidating the nominations of the disputed candidates , leaving the
G overnor to make his appointments from among the remaining
nominees

. We deny the petitions.
I. Through its enactment of c hapter 202 2

- 163, Laws of Florida, the Legislature created a new, s ixth d istrict c ourt of a ppeal and made corresponding changes to the boundaries of the existing F irst,
S econd, and F ifth D istrict C ourts of A ppeal. T h at same legislation also authorized several new ju dgeships, 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
vacancie s
— four in the F ifth D istrict and three in the S ixth- 3

- D istrict

— the G overnor asked each district’s judicial nominating commission to convene and to submit nominees for hi s consideration. See art. V, § 11(a), Fla. Const. ( “Whenever a vacancy occurs in a judicial office to which election for retention applies, t he 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 commission s completed their respective task s in October of this year. It is undisputed that each
commission ’s list of nominees included individual s who d id not , at the time of nomination, reside in the territorial jurisdiction of the court of appointment. Two of the fifteen nominee s 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 commission s certified their lists of nominees, Whitney S. Boan ( as to the F ifth
D istrict) and Geraldine F. Thompson ( as to the S ixth D istrict) filed separate petitions in this Court seeking a writ of quo warranto directed to each judicial nominating commission. Each petition- 4

- name s as a respondent the applicable judicial nominati ng commission and its chairman in his official capacity

. T he petition ers 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, t he petitioners ask this Court to declare that the nomination of nonresidents exceeded each commission ’ s authority and to invalidate the disputed nominations, leaving the G overnor to make his appointments from among the remaining nominees

. We have consolidated the petiti ons 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- 5

- (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’ certificati on of nonresident nominees to the G overnor
— are complete ; and the petitions allege that the commissions ’ actions exceeded the authority granted by the Florida C onstitution. 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) adv isory 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
G overnor. 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 regulat ing the judicial appointment process. See Thompson v.
De S antis , 301 So. 3d 180 (Fla. 2020) ; Pleus v. Crist , 14 So. 3d 941- 6

- (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

war ranto cases , we conclude that the petitioners’ constitution

based allegations suffice to establish standing here

. We note that, although the S ixth D istrict ’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

no mination process would be most practical or efficient. The judicial eligibility criterion at issue here is found in a rticle V, section 8 of the Florida Constitution : “No person shall be eligible for office of justice or judge of any court unless the pers on . . .- 7

- resides in the territorial jurisdiction of the court.” The petitioners
maintain that this provision prevents a judicial nominating commission from nominat ing 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 urg ed 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, a rticle V, section 11( d ), mandates a separate nominat ing commission for each district court of appeal, without saying anything more specific about the commissions’ duties; a rticle 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.
F inally, one cannot infer an “eligible at the time of nomination” requirement from any constitutional provision in isolation , from the
struct ural relationship between article V , sections 8 and 11 , or from- 8

- 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 f airly 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. Th at case required us to consider the interaction of that requirement with the article V, section 11 , require ment 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 requir ement 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 appoint ment, an action which necessarily requires a
constitu tionally eligible nominee

.- 9

- 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 im poses 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 tha t the pet itioners here do not allege that it would be impossible for any of the disputed nominee s to satisfy the constitutional residency requirement by the appointment deadline.
C. That leaves us with the petitioners’ claim that the judicial nominating commission s 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.”)- 10

- T he petitioners po int 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 statuto ry 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

. T he respondents in turn maintain that they ha ve 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

.- 11

- 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 i t. The relevant rule provisions are contained in Section IX, under the title “Misconduct.” Ther e 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- 12

- be reported in writing to the Governor for action.” It further says: “The Governor sh all 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 rul es 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 a lleged 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 commi ssions 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- 13

- that this portion of our analysi s 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 jud ges attaches at the time of appointment

— not at the time of nomination . Therefore, the respondent judicial nominating commissions did not exceed their

co nstitutional authority by nominating nonresident candidates. W e 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 n ot 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.- 14

- 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
constitut ional 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

m ajority’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

- base d 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 war ranto jurisdiction.- 15

- 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 o f 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 a nd 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- 16

- Kenneth B. Bell of Gunster, Yoakley & Stewart, P.A., Tallahassee, Florida, and Jo seph W. Jacquot of Gunster, Yoakley & Stewart, P.A., Jacksonville, Florida, for Respondent s , 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 Respondent s , Florida Sixth District Court of Appeal Judicial Nominating Commission , et al.