A divided appeals court upheld the power of Gov. Rick Scott to appoint a replacement for Donald Moran, chief judge of the 4th Circuit, who is retiring in January.
The 1st District Court of Appeal ruled Wednesday against Jacksonville attorney David Trotti, rejecting arguments that voters should fill the seat in November. Trotti had planned to run for a vacancy in the circuit, comprised of Duval, Clay and Nassau counties.
The dispute stems from a move in March by Moran to submit a letter of resignation effective Jan. 2, one business day before his term was scheduled to end.
“I believe with this notice that the judgeship I am resigning from should be filled by appointment,” Moran’s March 26 letter said. “Qualifying for this seat begins in late April if you elect to allow it to be filled by election.”
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 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,’’ he wrote. “I do not think this decision is required as a matter of law, nor do I think that it is wise.”
Trotti is among 17 applicants to be interviewed Oct. 1 to replace Moran on the bench.
Circuit Judge Mark Mahon was elected by his peers to succeed Moran as chief judge.