Court: Crist must choose from current judicial nominations

By Bill Cotterell, Florida capital bureau

A unanimous Florida Supreme Court told Gov. Charlie Crist Thursday he must order off the menu handed to him by the Judical Nominating Commissions - no going back for seconds, even to for a worthy goal of diversity.

"I'm quite pleased with this," said former Florida State University President Talbot "Sandy" D'Alemberte, who argued the case before the seven justices. "I was a little apprehensive, arguing a case against the governor after he had appointed four justices, but they didn't play politics with it at all. I had a sense during oral argument that this was how they were going to rule."

Crist, who had balked at a roster of six nominees sent to him for the all-white Fifth District Court of Appeal, said he will promptly start interviewing some of them so Senior Judge Robert Pleus can finally retire. The justices diplomatically refrained from issuing the mandate Pleus sought, saying they are sure the governor would comply with the 11-page edict.

"We conclude that the governor is bound by the Florida Constitution to appoint a nominee from the JNC's certified list, within 60 days of that certification," wrote Justice Jorge Labarga. "There is no exception to that mandate."

Pleus, 73, notified Crist of his resignation on Sept. 2 - effective Jan. 5 - from the Daytona Beach-based appeals court. Crist asked the district JNC for up to six nominees, specifying that they should reflect the gender and racial diversity of the region. The commission got 26 applications and sent six to Crist - four men and two women - all of them white.

Crist bounced the list back, asking the JNC to consider three black applicants, but panel reconvened and said it was powerless to do so. When Crist insisted, Pleus petitioned the Supreme Court for an order making him use the list.

Tallahassee lawyer Chuck Hobbs, legal adviser to the Florida NAACP, said the ruling was understandable but disappointing. In a "friend of the court" brief, he had argued that the bypassed black applicants were "well qualified" and asked the justices to use their rule-making authority to investigate the nominating process.

"I have spoken to many minority lawyers and judges across the state who are convinced that the nominating process is flawed and subject to malfeasance, but who are reticent to formally complain or file suit for fear of being made a pariah," said Hobbs. "We will continue to advocate for change in the Legislature as well as pleading our cause directly to the JNCs to ensure that talented and experienced African-American and Latino candidates receive fair and just consideration."

Ava Doppelt, an Orlando lawyer who heads the Florida Bar committee on JNC procedures, said she was not surprised by the high court's decision.

"The Constitution speaks for itself," she said. "I'm happy to see the governor has already said he will go forward and start interviewing. The Fifth needs a judge."

Besides the NAACP and the Bar, the case also drew a "friend of the court" brief from the Central Florida Association of Women Lawyers. It argued that, "with all due respect to the governor and his commendable attention to racial diversity," Crist could serve the same purpose by choosing one of the two women nominated. The association said there have been no women appointed to the Fifth District bench in almost 20 years.

Judge Jacqueline Griffin is the only woman on the court, whose 13-county jurisdiction stretches from Brevard to Hernando County and across the state through Orlando to St. Augustine. There are nine active judges and four senior judges, including Preus, available for temorary duty.

"While I am disappointed by today's decision that the Judicial Nominating Commission cannot reconsider these important nominations, I respect the Supreme Court's decision and their consideration of this case," Crist said in a prepared staetment. "I remain committed to ensuring that the diversity of the people of Florida is represented in our judiciary. In respect to the court's decision, I look forward to interviewing and considering the nominees for the Fifth District Court of Appeal."