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4th Circuit Chief Judge Don Moran is retiring in January.
Jax Daily Record Tuesday, Nov. 11, 201412:00 PM EST

Supreme Court clears way for governor to appoint Judge Don Moran's replacement

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by: Jim Saunders The News Service of Florida

The state Supreme Court on Monday refused to take up a dispute about whether voters should choose a replacement for a Northeast Florida judge, ensuring that Gov. Rick Scott will have the power to fill the post.

Justices, with no explanation, declined to hear an appeal from Jacksonville attorney David Trotti, who sought to run this fall for a judgeship in the 4th Judicial Circuit, which is made up of Duval, Nassau and Clay counties. A divided 1st District Court of Appeal ruled against Trotti in September.

Trotti’s attempted candidacy was short-circuited in March when the circuit’s chief judge, Donald Moran, submitted a letter of resignation effective Jan. 2,, one business day and three calendar days before the judge’s term was scheduled to end.

State elections officials said the resignation allowed Scott to fill the judgeship by appointment, rather than holding an election.

Attorneys for Trotti contended that the vacancy should be filled by voters. In a brief asking for the Supreme Court to hear the case, Trotti’s lawyers indicated that the dispute could have broader implications and that justices should determine whether efforts to “circumvent” part of the state constitution dealing with judicial elections are permissible.

“This (Supreme) Court has the discretion to review the decision of the First DCA because in determining the outcome, the appellate court ruled on an important issue that will impact, potentially, the entire judiciary,’’ the brief said. “The interpretation of the case law, and the Florida Constitution, made by the majority herein, changes the election law for the entire class of judicial officers.”

But in its September ruling, the appeals court 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 three-judge panel’s majority opinion, written by appeals-court Judge Clay Roberts and joined by Judge Ronald Swanson. Judge Philip Padovano dissented.

A two-paragraph order issued Monday by the Supreme Court indicates Chief Justice Jorge Labarga and justices Barbara Pariente, Charles Canady, Ricky Polston and James E.C. Perry declined to take up the case. The order does not indicate whether justices R. Fred Lewis and Peggy Quince took positions on the issue.

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