With an opinion as evenly divided as an opinion could be, the state Supreme Court on Monday discharged its jurisdiction in the case of a Jacksonville attorney who challenged an appellate court’s ruling concerning the authority of Gov. Rick Scott to appoint the replacement for a judge who resigned from the 4th Judicial Circuit.
The court’s split decision was the end of a legal process that began seven months ago in Jacksonville.
Concurring in the discharge of David P. Trotti v. Rick Scott were Chief Justice Charles Canady and Justices Jorge Labarga, Alan Lawson and Ricky Polston.
Justices R. Fred Lewis, Barbara Pariente and Peggy Quince dissented.
In rendering its decision to refrain from ruling on the case, the majority of the justices agreed that “after further consideration, we conclude that jurisdiction was improvidently granted” and “no motion for rehearing will be allowed.”
After the court published its order discharging the case, the governor’s office issued a news release announcing that Duval County Judge Lester Bass, who was provisionally appointed by Scott in June while the case was in litigation, will join the 4th Judicial Circuit Court.
A history of litigation
The justices heard oral arguments in early October in the case that had since May made its way through the court system from Circuit Court in Jacksonville to Circuit Court in Tallahassee and then to the 1st District Court of Appeals before landing in the Supreme Court of Florida.
Trotti also filed similar actions in 2014 related to the resignation of former 4th Judicial Circuit Chief Judge Donald Moran, who notified Scott in March 2014 that he was resigning on Jan. 2, 2015, before his term on the bench was to expire.
Trotti filed to run for Moran’s seat before Scott accepted Moran’s resignation and before the statutory qualifying period began. He was the only candidate who filed for the office, then sought for the court to compel the secretary of state to accept his qualifying papers. A judge in the 2nd Circuit denied the writ after concluding the vacancy was by law to be filled by gubernatorial appointment rather than by election.
Trotti appealed the circuit court decision, but the appellate court held that the vacancy should be filled by appointment because Moran’s resignation was accepted before the election qualifying period began.
When Trotti appealed the 1st District’s ruling, the state Supreme Court denied review.
The 2018 dispute began when Circuit Judge Robert Foster tendered his resignation to Scott on April 2.
Scott accepted the judge’s resignation on April 23, seven days before the qualifying period for election of circuit court judges began.
Foster’s resignation is effective Dec. 31, four business days before his term in office was to expire.
Scott then directed the 4th Circuit Judicial Nominating Commission to convene and submit candidates for appointment to fill the vacancy created by Foster’s resignation.
Trotti submitted his name and qualifying fee to the state Department of Elections on May 3, one day before the qualifying period for election to Foster’s seat on the bench ended. Trotti was the only candidate who filed, but his name was removed from the candidate list when the department was notified by the governor’s office that Foster would be replaced by appointment.
The governor’s office contended that Scott’s acceptance of Foster’s resignation before the election qualifying period began created a vacancy that should be filled by appointment.
Trotti filed a motion in Jacksonville on May 10 to prevent the commission from interviewing applicants for the vacancy, which was denied May 17.
He filed a motion in Circuit Court in Tallahassee on May 7 to prevent appointment of a replacement and to put his name back on the ballot for the August primary election.
An order granting the motion was signed by Circuit Judge Charles Dodson June 6, retroactive to May 16.
Scott and Secretary of State Ken Detzner filed a challenge of that decision five days later in the 1st District Court of Appeal.
The appeal contended that under the Florida Constitution and binding precedent from the state Supreme Court, a circuit judge’s resignation that is accepted by the governor prior to the candidate qualifying period creates a vacancy in office to be filled by gubernatorial appointment, not by election.
When the appellate court ruled in favor of Scott appointing Foster’s successor, Trotti petitioned the Supreme Court to hear the case, which it did on Oct. 2.
The dissenting opinions
The three justices who dissented in the Nov. 26 discharge order, all of whom are leaving the court in January having reached mandatory retirement age, said the court should have issued a ruling instead of discharging its jurisdiction and review.
Lewis wrote the longest dissenting opinion, beginning with defining “travesty” as a debased, distorted or grossly inferior imitation of justice.
“This accurately describes the circumstances in this case, which allow judges to make a mockery of our Florida Constitution with impunity. The issue is whether a judge can prospectively resign during an election year to manufacture a vacancy that will be filled by gubernatorial appointment instead of a regularly scheduled election,” he wrote.
“We should not condone this practice of judges announcing their resignation before the beginning of an election qualifying period but not resigning until days before the end of their term,” wrote Pariente in her dissent.
Quince wrote in her dissent that the issues before the court are a matter of great public importance.
“Thus, I would address the issues and quash the decision of the First District Court of Appeal, and hold that David P. Trotti, who properly qualified for election as circuit judge for the Fourth Judicial Circuit, Group 6, and was elected by virtue of the fact that no other candidate qualified for the seat, is entitled to take the seat that should be filled by election.”
She referenced what the Court previously adopted and reaffirmed: Vacancies that occur once an election process begins should be filled by election and that vacancies that occur before the process begins or after it ends should be filled by appointment.
“In doing so, this Court has left an extremely narrow window by which the ‘clear will of the voters’ may be affected and has permitted gamesmanship within the judicial election process that the people surely do not condone,” Quince wrote.
“Alas, here we are in a bizarro world: where a vacancy both exists and yet does not exist, where we ignore the fact that an election could and should occur due to a legal fiction not found in our Constitution. In my view, the people cannot be confident that these judges will properly enforce the text of a document that they so willingly scorned. Although we cannot prevent judges from sullying their robes as they walk out the door, we can at least ensure that they leave office immediately,” Lewis wrote.
He points out the ambiguous nature of vacancy created by the current policy of allowing a vacancy to occur based on a judge informing the governor in writing of intent to resign but then remaining on the bench for months, even until a few days before his or her term would have expired.
“Tellingly, the Constitution does not draw the distinction that we lawyers have created between actual and constitutional vacancies. The Constitution says that a vacancy occurs ‘upon the resignation of the incumbent.’ Through the years, we have interpreted that language to mean that prospective resignations create constitutional vacancies.
“Yet outside of these insulated and occasionally academic courthouse walls, a vacancy in office cannot occur at two separate points in time,” Lewis wrote.
“To hold otherwise, the Court must subscribe to the fantasy that a vacancy both occurs upon the resignation, but is also delayed until the officer decides to leave office.”
Lewis in his dissent suggested a solution: refine the foundational law of the state.
“This procedure is not perfect, and it would be preferable for the people to respond with a constitutional amendment to clarify their preferences in these circumstances.”
What’s next
The next step in possibly changing how judicial vacancies are filled suggested by Lewis will have to be taken up by the Legislature or by a citizens petition to place a constitutional amendment on a future ballot.
The 4th Circuit Judicial Nominating Commission was directed Wednesday to convene to interview candidates for the vacancy on the Duval County Court.
Commission Chair Patrick Kilbane said applications must be submitted to him by 5 p.m Dec. 10. Interviews will be conducted Dec. 17 at the Duval County Courthouse.
“The commission has been ready for months to fill Judge Bass’s seat on the county court. We are looking forward to interviewing highly qualified candidates,” Kilbane said.
