In an unusual move, a divided Florida Supreme Court on Thursday at least temporarily blocked Gov. Rick Scott from appointing a Jacksonville-area circuit judge while a legal battle plays out over filling the post.
The Supreme Court, in a 4-3 decision, rejected a decision by the 1st District Court of Appeal and effectively kept in place a preliminary injunction in a case that centers on whether Scott should be able to appoint a replacement for 4th Judicial Circuit Judge Robert Foster --- or whether voters should elect a new judge in November.
The Supreme Court did not detail its reasoning, but justices Barbara Pariente, R. Fred Lewis, Peggy Quince and Jorge Labarga were in the majority, while Chief Justice Charles Canady and justices Ricky Polston and Alan Lawson were in the minority.
The majority ruled in favor of a request from Jacksonville attorney David Trotti, who wants to run in the November election to replace Foster in the 4th Judicial Circuit, which is made up of Duval, Clay and Nassau counties. Trotti’s attorneys allege that Foster has 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 takes the position 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.
Trotti filed a lawsuit arguing that the replacement should be elected in November. Leon County Circuit Judge Charles Dodson issued an injunction that, in part, sought to block a judicial nominating commission from continuing with a process to recommend replacements for Foster to Scott.
The Scott administration immediately appealed, which placed an automatic stay on Dodson’s ruling. The case then bounced back to Dodson, who vacated the automatic stay. But the 1st District Court of Appeal then reinstituted the automatic stay --- effectively allowing the appointment process to advance while the case continued.
Stymied by the 1st District Court of Appeal, Trotti asked the Supreme Court to step in and halt the appointment process, with Trotti’s attorneys noting in a filing last month that it is not a “routine case.”
In another document filed at the Supreme Court, Trotti’s attorneys argued that the injunction was necessary to prevent Scott from making an appointment while the two sides continue to battle about the underlying legal issues in the case.
“Given that the ‘vacancy’ at issue will not even arise for another six months, it would seem a simple matter to let the litigation play out and allow this (Supreme) Court (as the Florida Constitution envisions) to have the final say on whether Judge Foster’s successor should be chosen by election or by appointment,” Trotti’s attorneys wrote in a document filed Tuesday. “Instead, though, the governor’s approach has been to aggressively push forward with the nominating process and try to run out the clock on this important constitutional issue before it can be presented to this court on its merits.”
In a document filed last week, attorneys for Scott said the 4th Circuit Judicial Nominating Commission on June 20 sent the names of six nominees for Foster’s seat to Scott. But it said Scott has not made an appointment and argued that the Supreme Court did not need to step into the case before the 1st District Court of Appeal rules on the underlying legal issues.
Also, Scott administration attorneys pointed to court precedents that have allowed the governor to make appointments in similar situations, including in a case filed by Trotti in 2014.
“Here, the undisputed facts establish that Judge Foster’s resignation was tendered and accepted by the governor before the election process commenced at the beginning of the candidate qualifying period,” attorneys for Scott and Secretary of State Ken Detzner wrote. “The governor is therefore constitutionally authorized and obligated to fill the vacancy by appointment, and the secretary of state is prohibited from qualifying candidates for a judicial seat that will not be filled by election. Because petitioner’s arguments raised below are contrary to the language of the Florida Constitution and well-established precedent, the trial court (Dodson) erred as a matter of law in issuing the preliminary injunction order.”
