In Boan v. Fla. Fifth Dist. Court of Appeal Judicial Nominating Comm'n, Nos. SC 22-1557, SC 22-1558 (Fla. 2022), the judicial nominating commissions of the Florida Fifth and Sixth District Courts of Appeal nominated potential judges for vacancies in both districts. Some of the nominees did not reside in the territorial jurisdiction of the court of appointment at the time of their nominations. The petitioners filed petitions alleging that the inclusion of nonresidents on each commission's list of nominees violated the Florida Constitution and the commissions' rules of procedure (at 3).
The Florida Supreme Court denied the petitions. The Court held that the constitutional residency requirement for judges attaches at the time of appointment—not the time of nomination. Therefore, the respondent judicial nominating commissions did not exceed their constitutional authority by nominating nonresident candidates (at 12).
Article V, section 8 of the Florida Constitution provides that: "No person shall be eligible for office of justice or judge of any court unless the person . . . resides in the territorial jurisdiction of the court" (at 6). The petitioners argued 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 (at 6).
The Court explained that 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 (at 6). In addition, article V, section 11, which specifies the judicial nominating commissions' role in the appointment process, also does not explicitly require nominees to reside in the district at the time of nomination (at 7). Finally, the Court held that 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 the relevant provisions' evident purpose (at 7).
The Court noted that in Thompson v. DeSantis, 301 So. 3d 180 (Fla. 2020), which involved a different article V, section 8 judicial eligibility requirement (the requirement that a justice of the Supreme Court have been a member of the Florida Bar for the preceding ten years), the Florida Supreme Court concluded that "the Bar eligibility requirement attaches at the time of appointment" (at 7-8).
Consistent with the Florida Supreme Court’s decision in Thompson, here, the Court held that the article V, section 8, residency requirement attaches at the time of appointment and ruled that the constitution does not impose an "eligible at the time of nomination" requirement. Rather, the constitution leaves to the commissions' discretion whether to nominate only candidates who are residents at the time of nomination (at 8).