A divided appeals court today upheld the power of Gov. Rick Scott to appoint a Northeast Florida judge, rejecting arguments that voters should fill the seat in November.
The 1st District Court of Appeal ruled against Jacksonville attorney David Trotti, who planned to run for a vacancy in the 4th Judicial Circuit, which includes Duval, Clay and Nassau counties.
The dispute stems from a move in March by the circuit's chief judge, Donald Moran, to submit a letter of resignation effective Jan. 2, one business day and three calendar days before his term was scheduled to end. The state said the resignation allows Scott to fill the judgeship by appointment, rather than holding an election.
Trotti filed a lawsuit challenging the state's appointment decision. A circuit judge ruled against him last month, prompting the appeal.
In the ruling, a majority of a three-judge panel said a judicial vacancy occurs when a resignation letter is accepted by the governor, even if the effective date of the resignation is in the future. It said that meant the Moran vacancy occurred April 10, when Scott sent a letter to the judge accepting the resignation — and before qualifying started for judicial races.
"Here, the vacancy created by Judge Moran’s resignation occurred before the qualifying period, and a physical vacancy will occur during his term such that the vacancy must be filled by gubernatorial appointment,'' said the majority opinion, written by appeals-court Judge Clay Roberts and joined by Judge Ronald Swanson.
But Judge Philip Padovano dissented, saying the precedent set by the case has a "high potential for abuse." He pointed to the fact Moran will remain in office until January, even though he submitted his resignation in the spring.
"The effect of the court’s decision is to bestow upon an individual judge the power to block an election by resigning just short of the end of his or her term in office,'' Padovano wrote. "I do not think this decision is required as a matter of law, nor do I think that it is wise."
But the majority disputed that it should consider the length of vacancy in determining whether the seat should be filled by election or appointment.
"Deciding the election versus appointment question on the duration of the vacancy created rather than on the interplay between the vacancy and the commencement of the election process would result in inconsistent and confusing precedent," wrote Roberts, who before getting appointed to the bench, served stints as general counsel of the Florida Department of State and director of the state Division of Elections.