First District Court of Appeal rules Foster vacancy selection to continue

By Adam Kaufman
Legal Analyst
June 18, 2018 8:50 p.m.

“The right of voting for representatives is the primary right by which other rights are protected. To take away this right is to reduce a man to slavery, for slavery consists in being subject to the will of another, and he that has not a vote in the election of representatives is in this case.”

Thomas Paine, 1795
Supreme Court of Florida
Ordering a New Election
Wright v. City of Miami Gardens

The First District Court of Appeal ruled Monday that the stay of the result of the decision of Circuit Court Judge Charles Dodson with regard to Judge Robert Foster’s seat was to continue and remain in effect pending final disposition of the merits of Governor Rick Scott’s appeal of that decision. Dodson ruled that Foster’s seat on the Fourth Circuit bench must be filled by election rather than appointment by the Governor. The Court of Appeal Order was posted on its website at 4:30 pm.

The effect of the Order is to permit the selection and appointment process to fill Foster’s seat by Scott to continue.

The Court of Appeal had previously issued an order re-imposing the stay of Dodson’s ruling on an interim basis “for the sole purpose” of the Fourth Circuit Judicial Nominating Committee to continue its interview and selection process. The Nominating Commission will complete its interviews of prospective appointees on Wednesday, June 20. The Commission is to provide Scott with the names of six candidates.

Dodson, in a separate decision on June 11, 2018, had vacated the automatic stay granted to the Governor when he appealed Dodson’s initial ruling that Foster’s and Scott’s actions were in violation of the Florida Constitution.

Automatic stays are afforded to governmental entities and officials are founded in “judicial deference to governmental decisions” and are to be vacated based upon a showing of “compelling circumstances.” Appellate Courts reviewing an application to vacate an automatic stay also consider the likelihood of irreparable harm to and the likelihood of success on the merits of the litigation of the parties contesting the imposition of the stay.

Trotti v. Scott

In the lawsuit brought by attorney David P. Trotti, Dodson had found that the voters of the Fourth Judicial Circuit (Clay, Duval and Nassau counties) were to be “deprived of their constitutional right to elect their circuit judge” by the conduct of Foster and Scott.

Foster tendered his resignation letter to the Governor on April 2, 2018, which was one month prior to the election qualifying period with an effective date of December 31, 2018, four business days before the end of his term, manufacturing a vacancy that could be filled by the Governor. Foster is barred from seeking re-election having reached the mandatory retirement age. His term of office was to end January 7, 2019.

Trotti had filed qualifying paperwork for election to Foster’s seat on May 3, 2018, which was initially accepted by the Florida Division of Elections. He was later notified that the judicial seat for which he had filed was not a seat that would be filled by election but by appointment by the Governor.

In his initial ruling, Dodson also instructed the Secretary of State to restore Trotti to the ballot for the Foster seat.

Foster’s Intent

It is now not disputed that before Foster tendered his resignation letter, he told Trotti directly that it was his intention to employ his resignation to effect a gubernatorial appointment because he wanted “the seat to go to a Nassau County attorney.”

Trotti has asserted that there is no precedent “that holds or should endorse that an ineligible judicial officer’s preference, no matter how well intentioned, should create a vacancy and deprive the voters of the right to vote for their elected officials.” To hold otherwise, he has argued, “is for the judiciary which is charged with upholding the Constitution and preserving its long-held principles to instead circumvent the election process and subordinate its otherwise assignment of power to the voters to the unfettered control of an ineligible judge [Foster].”

Circuit Court Judge Dodson in his ruling underscored that Foster’s vacancy would mandatorily occur without any action by him and found that “the [resignation] letter’s intent was to create an artificial appointment which is in violation of the constitutionally required elective process.” Article I Section 1 of the Florida Constitution states: “All political power is inherent in the people.” The Florida Supreme Court has “long considered free and fair elections vital to ensuring that such political power is not usurped from the people.”

In a 2014 case where a Judge sent a letter to the Governor in March 2014 resigning effective January 2, 2015, three calendar days and one business day before his term was to expire, the District Court of Appeal ruled that a “judicial vacancy occurs when a letter of resignation is received and accepted by the Governor, even if the resignation, as here, has a future effective date.” The Governor was found to have the authority to make that appointment. The Supreme Court declined to hear an appeal.

The Ballot

In reviewing the spurious legitimacy of the Foster resignation and vacancy the District Court, in part, may be troubled that, based upon Dodson’s decision, Trotti would be the only candidate on the ballot for Foster’s seat. The Governor has argued that the effect of Dodson’s ruling to place Trotti on the ballot would “potentially propel him into elected office by default.”

The Florida Supreme Court has, in other circumstances, “reinstated the election” creating a new qualifying period for a judicial office so that “the people should have the available opportunity to select their public officer from a multiple choice of candidates.”

The schedule for the hearing of the appeal on the merits of the Dodson decision has not as of this time been publicly disseminated.

To read the article about this lawsuit by Adam Kaufman “Judicial abdication – Judicial selection,”click here.

To read previous article on “Interviews for 4th Circuit Judgeship suspended” click here.

https://fernandinaobserver.com/uncategorized/4th-judicial-circuit-judicial-nominating-commission-announces-continued-interview-schedule-for-circuit-court-vacancy/

Editor’s Note: Adam Kaufman, a graduate of Northwestern University Pritzker School of Law, is a retired attorney, mediator, and arbitrator.