In a split decision, the state Supreme Court on Monday discharged its jurisdiction and review in the case of a Jacksonville attorney who filed suit against Gov. Rick Scott and Secretary of State Ken Detzner over whether the governor is authorized to appoint the replacement for a judge retiring for the 4th Judicial Circuit.
Concurring were Chief Justice Charles Canady and Justices Jorge Labarga Alan Lawson and Ricky Polston.
Justices R. Fred Lewis, Barbara Pariente and Peggy Quince dissented.
“After further consideration, we conclude that jurisdiction was improvidently granted,” the ruling states.
It also states, “No motion for rehearing will be allowed.”
The court heard on Oct. 2 oral arguments in David P. Trotti v. Rick Scott, Governor, et al.
The decision means that Scott’s appointment of Duval County Judge Lester Bass to replace Circuit Judge Robert Foster on the Circuit Court is upheld.
The dispute began when Foster tendered his resignation to Scott on April 2, before the qualifying period for the Nov. 6 general election began. He resigned effective Dec. 31, four business days before his term in office was to expire on Jan. 7.
Foster is ineligible to retain his seat because he has reached the mandatory retirement age for judges.
Trotti submitted his name and qualifying fee to the state Department of Elections, but his name was removed from the ballot when the department was notified by the governor’s office that Foster would be replaced by appointment.
The governor’s office contended that his acceptance of Foster’s resignation before the election qualifying period began created a vacancy that should be filled by appointment.
Trotti’s position was that the seat should be filled by election, just as it would have had Foster served out his term and retired on Jan. 7.
Scott convened the 4th Circuit Judicial Nominating Commission, which interviewed applicants for Foster’s seat and submitted six candidates to Scott.
After he filed a motion in Circuit Court in Jacksonville to prevent the commission from interviewing applicants that was denied, Trotti changed the venue and sought an injunction to prevent Scott from appointing Foster’s replacement, which was granted by the 2nd Circuit Court in Tallahassee. Scott’s office then challenged the ruling in the 1st District Court of Appeal, which ruled that the governor had the authority to appoint Foster’s replacement.
While the case was being appealed, Scott announced his intention to provisionally appoint Bass, one of the nominees submitted by the commission, to fill Foster’s seat on the bench.
Trotti petitioned the Supreme Court in July to stay the appellate court’s ruling and to hear the case.
