In a strongly worded ruling, a state appeals court Thursday backed Gov. Rick Scott in a dispute about his authority to appoint a replacement for a retiring Northeast Florida judge.
A panel of the 1st District Court of Appeal overturned a lower-court decision that blocked Scott from appointing a replacement for Judge Robert Foster of the 4th Judicial Circuit, which is made up of Duval, Nassau and Clay counties. Jacksonville lawyer David Trotti filed a lawsuit to try to prevent the appointment, arguing that Foster’s replacement should be chosen by voters during this year’s elections.
Leon County Circuit Judge Charles Dodson sided with Trotti, issuing a preliminary injunction to prevent Scott from making an appointment. But the appeals court said Dodson’s ruling conflicted with “binding precedent” in a similar case that Trotti filed in 2014 because of a different judicial opening.
“Mr. Trotti strenuously argues that an injunction would serve the public interest by maintaining primacy of the election process,” said Thursday’s ruling, written by appeals-court Judge Clay Roberts and joined by judges T. Kent Wetherell and Timothy Osterhaus. “We do not disagree with the general principle that the election process should be used when available. However, we cannot ignore that the Florida Constitution directs the governor to appoint a successor in situations like the one before us.”
Late Thursday afternoon, Trotti's attorneys filed a notice that they will ask the Florida Supreme Court to take up the issue. As is common, the notice did not provide detailed arguments.
Also, Scott announced that he intends to appoint Duval County Judge Lester Bass to replace Foster when the appeals-court ruling becomes final. In the announcement, Scott's office said the governor's "authority to appoint Judge Foster’s successor was affirmed today by the First District Court of Appeal."
Attorneys for Trotti, who wants to run to replace Foster, have alleged that the outgoing judge engaged in “electoral gamesmanship” to try to clear the way for Scott to make an appointment.
Foster was expected to leave office Jan. 7, 2019, which would be the end of his term, because of a mandatory retirement age. But on April 2, Foster sent a letter to Scott making the retirement effective Dec. 31, four business days ahead of schedule.
The Scott administration argues that the governor’s acceptance of a judicial resignation before the start of an election-qualifying period creates a vacancy that should be filled by appointment, rather than election. If Foster retired on Jan. 7, the post would be filled by election.
The appeals court agreed, saying it was applying a “bright-line rule” that was also used in the 2014 case involving Trotti. The court also said it declines to “engage in an analysis of subjective factors such as unreasonableness of an impending vacancy or, in this case, Judge Foster’s motivation to resign.”
“Under Mr. Trotti’s logic … a reviewing court would have to analyze a resigning judge’s subjective intent in the hopes of determining whether the resignation was a matter of political gamesmanship,” the ruling said. “Is resigning with five days left in a term gamesmanship? What about two weeks? Or two months? And what about the judge’s motivation to resign? Should it matter if the vacancy was created because the judge wanted to create a vacancy filled by appointment? What if a vacancy occurred because the judge was going on a cruise or elected to have a medical procedure? Such an analysis of subjective factors poses a slippery slope that, in our opinion, is avoidable under the plain language of the Florida Constitution and the case law interpreting it.”
The appeals court also said Trotti was the only candidate who tried to qualify to run for Foster’s seat this year. Under Dodson’s decision, the appeals court said, Trotti would be unopposed in the election.
“In contrast, under appointment, candidates for Judge Foster’s seat will have been screened by lawyers and lay members of the Judicial Nominating Commission,” the appeals court said. “The individual selected by the governor would then have to appear at the next general election occurring more than one year after the date of appointment. This would allow the voters of the Fourth Judicial Circuit to actually vote to determine who occupies the seat in the general election held in 2020 rather than the general election held in 2024 if Mr. Trotti were installed as judge under the circuit court’s injunction.”