The ACLU of Florida and retired Judge Kevin Emas of the 3rd District Court of Appeal are suing Gov. Ron DeSantis, demanding that the Governor fill a bench vacancy now six weeks past the constitutional deadline for appointments.
The suit, filed in the Florida Supreme Court, seeks a writ of mandamus to compel DeSantis to appoint one of six nominees a Judicial Nominating Commission (JNC) certified on March 17.
DeSantis had until May 18 to make the appointment under Article V, Section 11 of the Florida Constitution, which requires the Governor to appoint a Judge from the JNC’s certified list within 60 days of certification.
He still has not done so.
“A deadline is a deadline,” said Nicholas Warren, Senior Staff Attorney with the ACLU of Florida. “Gov. DeSantis doesn’t just get to ignore our Constitution if he feels like it. His repeated refusal to follow such a simple law is both troubling and illegal.”
Appointed to the County Court in 1996 by Gov. Lawton Chiles, Emas was elevated to the Circuit Court in 2001 by Gov. Jeb Bush. He has served on the 3rd District Court of Appeal — based in Miami and hearing appeals from courts in Miami-Dade and Monroe counties — for 16 years, beginning in 2010, when Gov. Charlie Crist appointed him there.
He served as Chief Judge from 2019 to 2021.
According to his and the ACLU’s petition, DeSantis violated his ministerial duty by failing to make an appointment by May 18, the first business day after the 60-day window closed on Saturday.
This is the second time in less than a year that the ACLU has sued DeSantis over a missed judicial appointment deadline. Last July, the organization filed suit when DeSantis failed to appoint a Judge to fill a vacancy in Tallahassee.
The Governor made that appointment only after the Supreme Court ordered him to explain his inaction, after which the ACLU dropped its complaint.
“This court cannot serve the people of Florida without a full bench,” ACLU of Florida Executive Director Bacardi Jackson said. “It’s unacceptable that we must sue him yet again to make him do the job he was elected to do.”
The new petition argues there’s been a pattern of appointment delays by DeSantis, including in 2023, when he waited four months to convene a JNC after Judge Kevin Caroll of the 2nd Judicial Circuit died unexpectedly.
DeSantis ultimately filled the seat seven months after the vacancy arose after local lawyers and the court objected to what they characterized as a slow-walking of the appointment.
Florida law mandates that judicial appointment processes must begin when a vacancy occurs, and a JNC has 30 days — which the Governor may expend for up to 30 more days — to nominate a slate of three to six candidates.
The Governor then has 60 days from certification to make the appointment, a duty Emas and the ACLU describe in their petition as “ministerial and nondiscretionary.”
The plaintiffs cite the Florida Supreme Court’s 2009 decision, Pleus v. Crist, in which the Court ruled unanimously that “the Governor is bound by the Florida Constitution to appoint a nominee from the JNC’s certified list, within sixty days of the certification. There is no exception to that mandate.”
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