With some justices appearing torn between legal precedents and the circumstances of the case, the state Supreme Court on Tuesday weighed whether Gov. Rick Scott should be able to appoint a replacement for a Northeast Florida judge who is stepping down at the end of the year.
Jacksonville attorney David Trotti filed the case, arguing that voters should choose a replacement for outgoing Circuit Judge Robert Foster in the November election. But Scott contends --- and the 1st District Court of Appeal agreed --- that he has the power to appoint a new judge.
Justices Barbara Pariente and R. Fred Lewis pointedly expressed concerns during oral arguments Tuesday that Foster had manipulated the process to try to make sure his replacement would be appointed instead of elected.
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 resignation 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.
“My problem is with the charade that’s being played,” Lewis said. “He’s not really resigning, let’s face it.”
But earlier, in questioning Trotti’s attorney, Philip Padovano, Lewis pointed to Supreme Court precedents that he indicated would back the appointment of a replacement for Foster.
“The jurisprudence of this court has interpreted the resignation as being effective when accepted,” Lewis said. “So in this case, then what we would have to is overrule a number of cases to get to the point where you would like us to be.”
Padovano, a former appellate judge, agreed that legal precedents exist but tried to draw a distinction with the Foster resignation.
“I think these cases, your honor, basically were founded on a principle of good faith — that a resignation was actually going to be a resignation in the near future,” he said.
But Daniel Nordby, general counsel for Scott, called it “long-settled law” that a judicial vacancy occurs at the time a resignation letter is submitted to the governor and accepted — not at the time the judge leaves office. He also said the court has not based its decisions on the lengths of judicial vacancies.
Pariente, Lewis and Justice Peggy Quince asked questions during the oral arguments that appeared to be probing for ways to change the process to reduce what Pariente described as “arbitrariness.”
Nordby, however, said basing resignations on when letters are sent and accepted can help provide a “seamless transition” to new judges. That transition includes providing time for judicial nominating commissions to review and recommend replacements to the governor.
Similarly, Chief Justice Charles Canady said that if judicial resignations were effective immediately when submitted, it would “essentially guarantee that there will be probably at least a two- to three-month physical vacancy before the merit-selection process and appointment process can do its work.”
Foster is a judge in the 4th Judicial Circuit, which is made up of Duval, Clay and Nassau counties. Trotti, who wanted to run for the seat in November, also filed a similar lawsuit in 2014 because of a different judicial opening but lost at the 1st District Court of Appeal.
Amid this year’s legal fight, Scott announced that he plans to appoint Duval County Judge Lester Bass to replace Foster. It is unclear how long the Supreme Court will take to rule in the case.