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Jax Daily Record Tuesday, Jun. 19, 201809:27 AM EST

Appellate court reinstates automatic stay in judicial replacement battle

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4th Circuit Judicial Nominating Commission to reconvene Wednesday.
by: Max Marbut Associate Editor

After more than a month of legal wrangling, an appeals court in Tallahassee on Monday cleared the path for Gov. Rick Scott to appoint a replacement for a Nassau County judge.

The 1st District Court of Appeal issued an order granting a motion from the Governor’s Office for review of a 2nd Judicial Circuit judge’s order vacating an automatic stay put in place by Florida Rule of Appellate Procedure.

The trial court’s order vacating the stay would have prohibited Gov. Scott from appointing a replacement for 4th Circuit Judge Robert Foster, who is resigning from office effective Dec. 31, before his term in office expires.

The appellate court quashed the trial court’s order and provided that the automatic stay “shall remain in effect pending final disposition of the merits of this appeal.”

The 1st DCA also denied a suggestion for certification of the appeal to the state Supreme Court.

The order Monday is the latest in a series of actions that began when Jacksonville attorney David Trotti filed a motion in circuit court in Duval County to enjoin the 4th Judicial Nominating Commission from interviewing applicants to replace Foster.

Trotti also filed a motion in Leon County against Scott and Secretary of State Ken Detzner, contending that Foster should be replaced on the bench through the election process, rather than allowing Scott to appoint his replacement.

When 2nd Circuit Judge Charles Dodson ruled June 6 in Trotti’s favor and enjoined Scott from appointing Foster’s replacement, the governor’s office filed the appeal, which resulted in the automatic stay that was vacated June 11 by Dodson and reinstated by the appeals court on Monday.

Trotti did not return a phone call Tuesday for comment. 

Foster notified Scott and 4th Circuit Chief Judge Mark Mahon on April 2 that he is resigning because he has reached the mandatory retirement age of 70 and his last day in office would be Dec. 31, four business days before his term expires.

On April 23, attorney Patrick Kilbane, chair of the 4th Circuit Judicial Nominating Commission, was notified that Scott wanted the commission to convene to fill the vacancy created by Foster’s resignation and that the commission submit the names of six nominees by June 22.

Kilbane published on May 1 a public notice stating that the commission was seeking applicants for the vacancy.

On May 3, Trotti filed as a candidate for Foster’s Group 6 seat and paid to the state Division of Elections the $5,843.20 qualifying fee.

Trotti on May 7 sent an email to Kilbane with a letter attached requesting the commission cease and desist “until such time that this matter is resolved by the Court.”

He also advised Kilbane that he had filed a Complaint for Declaratory Judgment in Leon County.

On May 10, Trotti filed in Duval County for injunctive relief on his motion to prevent the 4th Circuit Judicial Nominating Commission from accepting applications, interviewing applicants and then submitting to Scott candidates to replace Foster.

Fourth Judicial Circuit Judge Waddell Wallace denied Trotti’s petition, finding that Trotti could not demonstrate that he is likely to prevail on the merits of the case.

The commission adjourned on June 11 in the middle of interviewing an applicant when the commission was notified by the Governor’s Office that the circuit court vacated the stay by the appellate court.

The commission will reconvene at 9 a.m. Wednesday to complete interviews of the 18 applicants for the vacancy.

Kilbane said previously the commission will begin deliberations upon completion of the interviews and will send to Scott six applicants after the commissioners adjourn.

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