Governor sued over judicial appointments

Chase Carle
Posted 5/16/18

TALLAHASSEE – A Jacksonville attorney is suing Gov. Rick Scott and Secretary of State Ken Detzner to prevent an upcoming judicial vacancy from being filled by the Governor’s office. Attorney …

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Governor sued over judicial appointments


TALLAHASSEE – A Jacksonville attorney is suing Gov. Rick Scott and Secretary of State Ken Detzner to prevent an upcoming judicial vacancy from being filled by the Governor’s office. Attorney David Trotti filed the suit on May 7, asking that the upcoming vacancy be filled by election rather than appointment.

Circuit Judge Robert M. Foster is currently a sitting circuit court judge in the Fourth Judicial Circuit, which encompasses Clay, Duval and Nassau counties. Foster sent in his resignation letter on April 2 to become effective on Dec. 31. Foster’s resignation comes due to his age, 70, or what the law refers to as “constitutional senility.”

The Florida Constitution states that “No justice or judge shall serve after attaining the age of seventy years except upon temporary assignment or to complete a term, one-half of which has been served.”

Scott received Foster’s letter on April 10 and convened the Fourth Circuit Judicial Nominating Commission on April 23, which announced the vacancy during the week of May 1.

After learning of the vacancy, Trotti filed his qualifying papers for the seat on May 3 including sending a $5,843.20 check for the qualifying fee. Trotti was placed on the Division of Election’s website as “Qualified” in Group 6 for the Fourth Judicial Circuit on May 3 but was then removed that same day.

Trotti’s suit, which was filed in Leon County, argues that he was improperly removed as a “qualified candidate” for the seat and that the seat should be filled by election rather than appointment by the Governor. The suit cites both the Florida Constitution as well as several previous cases brought before the State Supreme Court to support Trotti’s argument.

This is not the first suit Trotti has brought against Detzner. In 2014, Trotti filed a suit against Detzner for a similar situation as the current suit.

Circuit Judge Donald R. Moran Jr, sent his letter of resignation to Scott with the date to take effect on January 2, 2015. Trotti filed paperwork with the Division of Elections on April 2, indicating he planned to run for that seat. He was listed as a candidate for Group 12 for the Fourth Judicial Circuit. On April 25, Trotti received an email stating that the seat would be filled by appointment rather than election and that Trotti should withdraw his candidacy.

Trotti sued Detzner, petitioning the court to compel Detzner to accept his qualifying paperwork citing some of the same cases being cited in the current lawsuit. His petition was denied and the court stated that Trotti had “failed to show that the Secretary had a clear legal duty to accept his qualifying papers and fees and qualify him for Group 12 in the 2014 election as the law is clear that the vacancy created by Judge Moran’s resignation must be filled by appointment.”

The reason the vacancy “must be filled by appointment” rather than election was because Moran’s resignation date was three calendar days (one business day) before the expiration of his term. This left the seat physically vacant, even if only for a day, which allowed it to be filled by appointment rather than election.

Trotti’s current suit faces the same issue as his 2014 suit. Judge Foster’s resignation will take effect seven days before the end of his term, leaving a physical vacancy of four business days. Trotti is arguing that a four-day vacancy is not an unreasonable amount of time that would require the election process to be circumvented.

Governors appointing judges is not a rare occurrence or one that is limited to Florida. All but four states allow the Governor to appoint judges when necessary.

However, Governor Scott appears to appoint judges at a higher rate than most. Since taking office in 2011, Scott has appointed 263 judges. Among other governors holding office for that same timeframe, only California Gov. Jerry Brown has appointed more (422) while Ohio Gov. John Kasich is behind Scott with 184 appointments. While California has no mandatory retirement age for judges, both Florida and Ohio require judges to retire by age 70.

There is also the opinion of Judge Philip J. Padovano, now retired, who was one of the First District Court of Appeal judges to oversee Trotti’s appeal of the 2014 decision. Padovano disagreed with the majority opinion of the court and gave several reasons why.

Padovano said that the reason given for the number of days of physical vacancy being irrelevant is that deciding what constitutes too long or too short would “lead to arbitrary results.”

However, Podavano argued that “judges are well-equipped to make decisions like those” and “there is a greater danger in following an inflexible rule, no matter how unfair the result may be, simply for the sake of following the rule.”

Podavano further argued that the precedent being set by the 2014 decision would end up being abused by people who want to manipulate the election process for their own objectives. The example Podavano used was if two judges were to retire, one who supports the governor and another that opposes him, they could use their retirement to allow or deny the governor the power of appointing his replacement. It would be as simple as how and when they announced their retirement.

While both judges would have completed the required process legally, the appearance and method used would directly impact the electoral process.

“I see no reason why the court should allow the election process to be circumvented in this way,” states Podavano in his opinion to the court.

While Trotti could not be reached for comment by deadline and Scott’s office declined comment, the application and nomination process continues.

Judicial applicants have until 5 p.m. on May 23 to submit their applications to the Judicial Nominating Commission. The Commission then has until June 22 to complete the selection process and submit the nominees to Scott.

In 2016, Trotti ran for a Fourth Judicial Circuit judgeship but was defeated.


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