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Jax Daily Record Wednesday, May 25, 201612:00 PM EST

Scott defends power to appoint judges

by: Jim Saunders The News Service of Florida

Pointing to constitutional powers, Gov. Rick Scott and Secretary of State Ken Detzner are asking the Florida Supreme Court to reject challenges to Scott’s authority to appoint four judges across the state.

Attorneys for Scott and Detzner filed arguments Monday in the Supreme Court in disputes about whether the governor or voters should choose replacements for three outgoing circuit judges and a Palm Beach County judge.

While the underlying circumstances in the circuit-judge cases and the county-judge case differ, the common thread is that Scott accepted resignations from the judges before the start of qualifying for this year’s elections.

Though none of the departing judges will leave office for months, Scott and Detzner argue that the governor’s acceptance of the resignations in April created vacancies in office that should be filled through appointments, not elections.

“The Constitution … provides that the resignation of an incumbent county judge creates a vacancy in office,’’ Scott’s attorneys wrote in the Palm Beach County case.

“And this (Supreme) Court’s precedents have established a bright-line rule that a judicial resignation accepted by the governor before the candidate qualifying period for that office should be filled by gubernatorial appointment.”

The cases center on the resignations of Palm Beach County Judge Laura Johnson, 10th Judicial Circuit Judge Olin Shinholser, 12th Judicial Circuit Judge Scott Brownell and 7th Judicial Circuit Judge Joseph Will.

The 10th Circuit includes Highlands, Polk and Hardee counties; the 12th Circuit includes Manatee, Sarasota and DeSoto counties; and the 7th Circuit includes Volusia, Flagler, Putnam and St. Johns counties.

In the Palm Beach County case, Johnson submitted a letter of resignation last month as she prepared to run for a circuit-judge seat. The resignation was effective on the date of taking office as a circuit judge or on the date that her successor as a county judge would take office.

The three circuit judges, meanwhile, submitted letters of resignation last month and made them effective in late December, shortly before the judges’ terms would otherwise end in January 2017. The qualifying period for judicial elections was May 2-6.

The Supreme Court challenges, filed by attorneys in Palm Beach County and the three circuits, argue that voters should be able to fill the positions, rather than Scott making appointments.

“The public’s right to choose who should fill the seat in Group 11 (Johnson’s Palm Beach County seat) through an election should not be abridged by the governor’s attempt to fill the same position through an appointment,” said a petition filed on behalf of Palm Beach County attorney Gregg Lerman, a potential candidate for the county judgeship.

In the circuit-court cases, challengers suggested, in part, that the outgoing judges had used the process to try to ensure that successors would be appointed instead of elected.

“Our Constitution provides that circuit judges shall be elected by a vote of the electors,” said a petition filed on behalf of Lakeland attorney Steve Pincket, challenging the appointment of a replacement for Shinholser.

“It is not for the departing judge to circumvent the elective process by resigning with an effective date a few days before the end of the term, simply because that judge holds a personal view that the appointment process might yield a better result.”

But Detzner’s attorneys, in the documents filed Monday, pointed to a similar 2014 case in which the 1st District Court of Appeal upheld the authority of Scott to appoint a replacement for retiring Judge Donald Moran in Northeast Florida’s 4th Judicial Circuit. The Supreme Court declined to take up that challenge.

“(The) ‘ultimate question’ here … is whether petitioner (Pincket) has a clear legal right to qualify for election to the seat at issue,’’ Detzner’s attorneys wrote. “And the answer is simple: No, because Article V (of the Florida Constitution) requires filling the vacancy by appointment, obviating an election for which the secretary could qualify candidates. The motivation of a judge in submitting his or her resignation is beside the point.”

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