Supreme Court of Florida
FRIDAY, AUGUST 7, 2026
Kevin Emas, SC2026-0985
Petitioner(s)
v.
Ron D. DeSantis, Governor,
Respondent(s)
Petitioner’s “Verified, Time-Sensitive, Non-Routine Petition for
Writ of Mandamus” is hereby denied as moot.
COURIEL, C.J., and MUÑIZ, GROSSHANS, FRANCIS, and
SASSO, JJ., concur.
LABARGA, J., concurs with an opinion.
TANENBAUM, J., specially concurs with an opinion.
LABARGA, J., concurring.
I concur in denying the mandamus petition as moot given the
Governor’s July 10, 2026, appointment to fill the vacancy on the
Third District Court of Appeal. Yet, I write to emphasize that under
article V, section 11(c) of the Florida Constitution, “[t]he governor
shall make the appointment within sixty days after the nominations
have been certified to the governor.” (Emphasis added.)
The Florida Constitution does not provide an exception to this CASE NO.: SC2026-0985
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60-day requirement, which serves to ensure the orderly
administration of our courts. In this case, the appointment
exceeded the constitutional deadline by more than 50 days.
TANENBAUM, J., specially concurring.
This court has no authority to issue a compulsory writ against
the Governor regarding one of his core functions: appointment. To
be sure, the Florida Constitution authorizes us to issue writs of
mandamus “to state officers and state agencies.” Art. V, § 3(b)(8),
Fla. Const. This authorization, in one form or another, has been in
the State’s Constitution since 1956. Yet, over a century-and-a-half
span straddling the year this provision was added, we consistently
considered the Governor to be no ordinary officer, instead
recognizing him as the State’s supreme executive—the branch head
co-equal in dignity with this court and the Legislature—and reading
our Constitution’s separation-of-powers provision to preclude this
court from issuing mandamus to him.
More recently, the court has taken to just ignoring the
century-old gubernatorial immunity principle it consistently had CASE NO.: SC2026-0985
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been applying—namely, entertaining petitions for mandamus writs
to the Governor on the merits, without expressly saying it was
overruling itself or explaining how the immunity principle suddenly
was demonstrably wrong. The principle, of course, is not wrong,
and there has been no change to the Constitution’s text that could
justify this court’s abrupt change in course. I will continue to
adhere to this long-recognized immunity principle until there has
been some meaningful legal justification for discarding it. Applying
that principle in this case, I would have dismissed the petition at
the very beginning, before ordering a response, for lack of
jurisdiction. 1
1. Under our internal operating procedures, a single justice may, in the name of the court, order a response to an extraordinary writ petition. See Fla. S. Ct. I.O.P. II.D.2. This is so despite our rule of appellate procedure requiring the petition to “demonstrate[] a preliminary basis for relief” before a court would order a respondent either to “show cause” why the writ should not issue or to otherwise respond to the petition. Fla. R. App. P. 9.100(h).
Whether a petition meets this “preliminary basis” requirement can be a substantive determination. The response under this provision replaces the alternative writ of mandamus that used to issue if the court determined that, taking the asserted facts as true, there was a legal basis for issuing the writ. That alternative writ had judicial force once issued, and its “mandate” was “peculiarly CASE NO.: SC2026-0985
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I
A
The People of Florida demand that their government’s
sovereign powers be distinct and separate, and they have included
that mandate in every one of their constitutions, from the 1838
territorial constitution through the current, 1968 revision. See Art.
II, § 3, Fla. Const. (1968); see also Art. II, Fla. Territorial Const.
(1838). For nearly 150 years, we faithfully honored that separation
within the control of the court,” to be fashioned “to suit the case made in the petition.” City of Bradenton v. State ex rel. Perry, 160 So. 506, 507 (Fla. 1935).
Given that “the alternative writ takes the place of a declaration at law,” it was necessary “that it should show a clear prima facie case in favor of the relator.” State v. Richards, 39 So. 152, 154 (Fla. 1905). The party to whom the writ was directed in turn had to comply with the mandate of the alternative writ or submit a return showing why the party had not. If the respondent failed to demonstrate good cause, the court would issue a final judgment directing issuance of a peremptory writ. See generally Merchants’ Broom Co. v. Butler, 70 So. 383 (Fla. 1915).
When we do not order a response, it is the same as when a court would refuse issuance of an alternative writ in the first instance or would discharge it following a demurrer—saying, essentially, the petition is facially deficient. This is the case here because there could be no legal basis for issuing the requested writ to the Governor regarding his appointment power.
CASE NO.: SC2026-0985
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by refusing to issue writs of mandamus to the Governor, reasoning
that to issue the writ would be to subordinate the Governor to the
court. See State ex rel. Bisbee v. Drew, 17 Fla. 67, 70–71 (1879)
(“The Executive, Legislative and Judicial Departments of the
government are, by express provisions of the Constitution, each
entirely independent of the other in their official action.”); id. at 71
(“It has ever been considered by statesmen and jurists that where
one has power over another, in a public capacity, the one is the
greater and the other the inferior power.”); id. at 85 (refusing
mandamus to “control the action of the Governor in respect to a
political duty of his office”).
In Drew, the court put in some serious analytical work to
support its conclusion. It surveyed decisions from other states’
courts on the topic, and it determined that issuing a compulsory
writ to the Governor would be akin to subjugating a co-equal
branch to the court.
The Drew Court went on, correctly, to observe the following:
To assume that this court or the Circuit Courts may
direct what acts he shall perform as the Governor of the CASE NO.: SC2026-0985
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State, under the laws of the State, or what acts he shall
not perform . . . is to place the office of Governor in a
position inferior to that of a judge of a court of record,
and to absorb the power of the “Supreme Executive,” the
“Chief Magistrate, who shall be styled the Governor of
Florida.”
If the courts have this power and command him to
obey, we must have power also to imprison him for
contempt, when he shall see fit to differ with the courts
in reference to his duties and neglect to obey a writ which
shall command obedience. Have the courts power thus
to deprive the State of its head? If we have a case in
which we cannot punish the disobedience, it results that
we had no power to command; the command is idle and
nugatory; we can produce no result except the exposure
of our own impotence.
Id. at 72–73; see also id. at 73 (“To employ the power of the courts
in the business of managing the office of Governor and directing
him in the exercise of executive duties, is to blot out the character
given him in the Constitution of ‘Supreme Executive’ and ‘Chief
Magistrate’ of the State, and reduce him to the level of a secretary
or county clerk.”).
In an additional nod toward judicial restraint and respect for
the Constitution’s separation of powers, the court construed the CASE NO.: SC2026-0985
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Governor’s “right” to request a written opinion of this court’s
justices “as to the interpretation of any portion of this Constitution
upon any question affecting his executive powers and duties”—a
right that the Constitution still provides to him—“as fixing the
boundary . . . beyond which the courts or judges shall not go in the
direction of intermeddling with the duties of the Governor of the
State.” Id. at 72–73; cf. Art. IV, § 1(c), Fla. Const.
Decades later, we continued to take the same view regarding
any duty to be performed by the Governor, regardless of how
ministerial it might be—including countersigning payment
warrants—categorically stating that the “[j]udiciary is without power
to direct or coerce the Governor in the exercise of any
administrative function.” State ex rel. Axleroad v. Cone, 188 So. 93,
93 (Fla. 1939) (once again refusing mandamus and citing Drew).
Notably, this statement merely reaffirmed what we had said in
Drew—that the court would make no distinction between
ministerial duties that could be performed by any officer and core
political functions that only the Governor could perform. See Drew, CASE NO.: SC2026-0985
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17 Fla. at 72, 83–84 (explaining that even a ministerial duty “is yet
an act of executive authority and power, whether derived from the
Constitution or the Statutes,” such that the Governor “cannot be
commanded by the courts to perform any act which may be
required of him by a law of the State relating to the executive office,
or any duty which he may be required to perform of a political
nature, even though private rights may be involved”).
Regardless of the duty, then, this court was not about to
subordinate the Governor via issuance of a writ. Cf. Kirk v. Baker,
229 So. 2d 250, 252 (Fla. 1969) (observing that the Governor is
“cloaked with immunity” from the courts’ contempt power because
“[i]t is unthinkable that any inferior officer of this state could, in the
guise of the exercise of judicial power, thwart the powers of the
executive and thereby prevent or interfere with the full, unfettered
performance of his official duties”).
This court later noted in 1973 that “the rigid rule” against
issuing mandamus to the Governor in any instance, announced in
Axleroad (and even earlier, in Drew), had “been greatly eroded by CASE NO.: SC2026-0985
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subsequent decisions and constitutional changes,” doing so,
though, without discussing in any detail those purported decisions
or changes. Willits v. Askew, 279 So. 2d 1, 3 (Fla. 1973). It did,
however, cite a relatively new provision, added as part of the 1968
Constitution, which stated as follows:
The treasurer shall keep all state funds and securities.
He shall disburse state funds only upon the order of the
comptroller, countersigned by the governor. The
governor shall countersign as a ministerial duty subject to
original mandamus.
Art. IV, § 4(e), Fla. Const. (1968) (emphasis supplied).
A similar provision in the 1885 Constitution had stated the
following:
The Treasurer shall receive and keep all funds, bonds,
and other securities, in such manner as may be
prescribed by law, and shall disburse no funds, nor issue
bonds, or other securities, except upon the order of the
Comptroller countersigned by the Governor, in such
manner as shall be prescribed by law.
Art. IV, § 24, Fla. Const. (1885) (emphasis supplied). So the 1968
revision clearly and specifically repudiated the principle announced
in Axleroad. And Willits was appropriately limited to its facts, the
court holding, in recognition of that 1968 alteration, only that the CASE NO.: SC2026-0985
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Governor “is not immune merely by reason of his chief executive
status from being coerced by mandamus to issue a state warrant.”
Willits, 279 So. 2d at 3 (emphasis supplied).
Framing the holding this way, we implicitly acknowledged the
still-extant, overarching legal principle Drew announced in the
1800s—that the Governor, as supreme executive, is immune from
mandamus regarding all his core executive functions and nearly all
his ministerial duties—consistent with the specific exception
included in Article IV, section 4. 2 Seven years later, the court
expanded ever so slightly on the set of ministerial duty exceptions,
holding that the Governor could be subject to mandamus when the
“ministerial duty lodged in the Governor could as easily have been
imposed upon any other person.” Republican State Exec. Comm. v.
Graham, 388 So. 2d 556, 557 n.1 (Fla. 1980) (noting that the duty
2. Notably, in 1984, the voters rewrote section 4, removing in the process the reference to the Governor’s having to countersign warrants, and along with it, the provision expressly subjecting him to mandamus for that ministerial duty. See Fla. HJR 435 (1983) (proposed the amendment to Article IV, section 4 adopted by voters in 1984).
CASE NO.: SC2026-0985
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“is presently shared with the secretary of state”). It cited Drew and
Willits as authority, thereby reaffirming the continued viability of
the 1879 gubernatorial immunity principle with respect to the
Governor’s executive powers, despite the 1950s constitutional
addition of mandamus authority over “state officers.” As late as
1980, we necessarily continued to consider the Governor to be
beyond the scope of the term “state officer,” as it is used in Article
V.
B
The Governor obviously is not a “state officer” under the
Constitution. Indeed, he is unlike any other officer in this State’s
government. The Florida Constitution vests “[t]he supreme
executive power” in the Governor alone. Art. IV, § 1(a), Fla. Const.
(emphasis supplied). The Constitution does not expressly vest
executive power in anyone else (save for the Florida Fish and
Wildlife Conservation Commission under very narrow
circumstances, as provided in Article IV, section 9). He is the
commander-in-chief of this State’s armed forces, and he has the CASE NO.: SC2026-0985
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sole responsibility to “take care that the laws be faithfully executed”
and “transact all necessary business with the officers of
government.” Id. He also has the responsibility to “commission all
officers of the state and counties.” Id. (emphasis supplied). Of
particular relevance here, in nearly every instance, he has the
authority to fill vacancies in elected and appointed “state [and]
county office[s],” as well as “judicial office[s]” (but not “legislative
office[s]”). See Art. IV, § 1(f), Fla. Const.; Art. V, § 11, Fla. Const.;
but cf. Art. III, § 15(d), Fla. Const. These powers—especially the
appointment power—are core executive functions that only the
Governor can perform.
He also is the only constitutional officer expressly given the
authority to “initiate judicial proceedings in the name of the state
against any executive or administrative state, county or municipal
officer to enforce compliance with any duty or restrain any
unauthorized act.” Art. IV, § 1(b), Fla. Const. Moreover, he has the
authority to “suspend from office any state officer not subject to
impeachment.” Id. § 7(a) (emphasis supplied). And, as noted CASE NO.: SC2026-0985
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above, the Constitution expressly gives only the Governor the
authority to “request in writing the opinion of the justices of the
supreme court as to the interpretation of any portion of this
constitution upon any question affecting the governor’s executive
powers and duties.” Id. § 1(c); see also id. (requiring that we issue
that written opinion no earlier than ten days after receiving the
request, unless we determine that an earlier response is necessary).
If this prerogative of the Governor to request from us an
advisory opinion is one, as we have said, that sets the “boundary”
beyond which we cannot go to “intermeddle” in his executive duties;
and if it has existed in the Constitution in one form or another since
the 1880s; then absent a clear constitutional change, there could
be no logical justification for taking a different view now, right?
Taking this prerogative together with his authority to initiate writ
proceedings against any state, county, or local officer, one easily
can see that what we said in the 1880s still applies today—that our
involvement in the Governor’s own executive functions can be only
at his behest.
CASE NO.: SC2026-0985
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II
Yet, with nary a whisper of analysis, this court in 1982
suddenly and boldly—almost by fiat—claimed for itself the ability to
subjugate the supreme executive to its own power. See Fla. Senate
v. Graham, 412 So. 2d 360 (Fla. 1982); Jud. Nominating Comm’n v.
Graham, 424 So. 2d 10 (Fla. 1982).
In the Florida Senate decision, while at least still
acknowledging there was a problem with issuing “an alternative writ
of mandamus to the chief executive of this state” (as there had been
for the preceding century), the court nevertheless tried to avoid the
question by relying on, ostensibly, “an independent basis for
jurisdiction in this case”—this court’s so-called “all writs” authority.
412 So. 2d at 361. The court, though, failed to specify what other
writ it supposedly could issue to the Governor that was not
mandamus, meaning it also simply ignored the fact that it was still,
for the first time in the State’s history, claiming the power to
subordinate the Governor to its own authority regarding his
performance of core executive functions. Later that year, the court CASE NO.: SC2026-0985
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dispensed with any jurisdictional analysis at all, merely citing
Article V, section 3(b)(8) of the Florida Constitution as the authority
to consider a petition for mandamus against the Governor regarding
one of his core functions—though the court ultimately denied the
requested writ. See Jud. Nominating Comm’n, 424 So. 2d at 10.
This court’s effort to subjugate the Governor has continued in
earnest, it not once in the ensuing decades acknowledging that it
had effectively abrogated the age-old gubernatorial immunity
principle or explaining what constitutional change justified that
abrogation. See Fla. House of Representatives v. Martinez, 555
So. 2d 839, 846 (Fla. 1990) (in a mandamus proceeding, ordering
“the Governor and Comptroller [to] take all actions necessary to
ensure that [the secretary of state’s mandated] expunctions are
reflected in the financial operations of the state”); Jones v. Chiles,
638 So. 2d 48, 48 (Fla. 1994) (citing to Article V, section 3(b)(8) as
authority to consider mandamus petition asking that the Governor
be ordered to reappoint a compensation-claims judge, but denying
the writ).
CASE NO.: SC2026-0985
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A decade later, this court jumped another guardrail in its
ongoing effort to claim power over the Governor’s performance of
core executive functions when it actually ordered the Governor to
make a judicial appointment, merely citing, with a sigh and shrug
(and in a footnote, no less), to Article V, section 3(b)(8) as its sole
authority. Pleus v. Crist, 14 So. 3d 941, 942 & n.3 (Fla. 2009) (in a
mandamus proceeding, ordering the Governor to make a judicial
appointment within a constitutionally established time period and
simply citing Article V, section 3(b)(8) as authority).
It has been full speed ahead since then. See, e.g., Pizzi v.
Scott, 160 So. 3d 897, 2014 WL 7277376, at *2 (Fla. 2014) (table)
(ordering the Governor to revoke his own executive order
suspending a municipal officer, but without citing any authority at
all for doing so); Thompson v. DeSantis, No. SC20-985, 2020 WL
5362111, at *2 (Fla. Sep. 8, 2020) (ordering the Governor “to show
cause why he should not be required immediately to fill the
[supreme court] vacancy . . . by appointing a candidate who was on
the JNC’s certified list,” citing Pleus as authority); Thompson v. CASE NO.: SC2026-0985
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DeSantis, No. SC20-985, 2020 WL 5494603, at *2 (Fla. Sep. 11,
2020) (requiring the Governor to “fully comply with [the court’s]
order” within three days, citing Pleus as authority); cf. Whiley v.
Scott, 79 So. 3d 702, 707 (Fla. 2011) (claiming authority to issue a
quo warranto writ to the Governor under Article V, section 3(b)(8)
because the “Governor is a state officer”); Thompson v. DeSantis,
301 So. 3d 180, 184 (Fla. 2020) (citing Pleus and Whiley as
authority, from a standing perspective, to compel the Governor by
writ to perform his constitutional duty).
Across all these decisions, the court essentially has ignored
the position of restraint it took toward the supreme executive for
more than a hundred years—a position rooted in the Florida
Constitution’s text as well as in well established legal history and
tradition. More should be required before this court makes such a
significant about-face on a fundamental separation-of-powers
matter regarding the head of a branch who is co-equal in dignity
with us.
CASE NO.: SC2026-0985
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III
As to this last point, let me close with two court observations
about its own precedent that seem pertinent here. First, we have
made clear that the court “does not intentionally overrule itself sub
silentio.” Puryear v. State, 810 So. 2d 901, 905 (Fla. 2002). We
instead “adhere[] to the doctrine of stare decisis,” so if this court is
going to recede from a prior line of decision, it will do so “expressly.”
Dorsey v. State, 868 So. 2d 1192, 1199 (Fla. 2003). Second, “[i]t is
no small matter for one Court to conclude that a predecessor Court
has clearly erred,” which means we need to show our work in
reaching that conclusion, showing “a searching inquiry, conducted
with minds open to the possibility of reasonable differences of
opinion.” State v. Poole, 297 So. 3d 487, 506 (Fla. 2020).
This court’s approach to claiming writ authority over the
Governor in the mandamus context—by simply ignoring what it
said before to the contrary—fails on both these fronts. This court
wrestled with the question in 1879 and explained in detail how it
reached the conclusion it did in Drew. We owe the public an CASE NO.: SC2026-0985
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analytical response (rather than silence) before claiming a power
over the Governor that we historically eschewed. In turn, the
restraint and immunity principles to which this court had faithfully
hewed for over a century in matters concerning the Governor carry
the day for me. I would have dismissed the petition at the outset.
A True Copy
Test:
SC2026-0985 8/7/2026
SC2026-0985 8/7/2026
SO
Served:
GENERAL COUNSEL, GOVERNOR
CAROLINE ANDREWS MCNAMARA
MICHELLE MORTON
ADAM JEFFREY RICHARDSON
DANIEL BOAZ TILLEY
NICHOLAS LYNDOL VILLACORTA WARREN