First District Court of Appeal rules in favor of Governor Scott to appoint Duval County Judge Lester Bass to Foster seat

By Adam Kaufman
Legal Analyst
July 27, 2018 3:21 p.m.

On April 2, 2018 Fourth Judicial Circuit Judge Robert Foster tendered a letter of resignation to Governor Scott indicating his last day in office would be December 31, 2018, one week before his term would expire on January 7, 2019. Foster reached the mandatory retirement age and could not seek re-election. On April 23, 2018 Scott accepted Foster’s resignation. The acceptance was one week before the election qualifying period would begin. On May 3, 2018 Jacksonville attorney David Trotti filed qualifying paperwork to run for Foster’s seat. Trotti was the only individual who filed. His paperwork was initially accepted but he was later notified that the seat would be filled by appointment of the Governor as a result of the “vacancy” created by Foster’s resignation.

Trotti filed an action in the Second Judicial Circuit Court in Tallahassee seeking a declaration that the “vacancy” should be filled by election, not appointment. That court found in Trotti’s favor, granting injunctive relief.

The First District Court of Appeal reversed that ruling on Thursday, July 26. Within hours, Scott announced he would name Duval County Judge Lester Bass to fill the seat.

The Court of Appeal found that the Circuit Court was required to follow its decision in 2014, where it ruled that a resignation before the election qualifying period of a Judge to be effective three days (one business day) before his term would expire created a vacancy that was appropriate to be filled by appointment. The Florida Supreme Court declined to review that decision.

The Court of Appeal rejected Trotti’s argument that the Court should find that Foster’s motives in tendering a letter of resignation “were a flagrant disregard of the election process.” The Court stated that “we decline to engage in an analysis of subjective factors such as unreasonableness of an impending vacancy or, in this case, Judge Foster’s motivation to resign.”

What also troubled the Court was the actual effect that the injunctive relief imposed by the Circuit Court would have as a practical matter.

“Mr. Trotti has argued that reversal of the injunction would deprive the voters of the Fourth Judicial Circuit of an election, but the practical reality of the remedy he seeks would be a greater disservice to the public. The circuit court ordered Secretary (of State) Detzner to keep Mr. Trotti on the ballot as a qualified candidate and to publically announce that Mr. Trotti qualified as a candidate for Group 6 of the Fourth Judicial Circuit. As no other prospective candidates had submitted paperwork to qualify for Judge Foster’s seat, Mr. Trotti would stand unopposed in the forthcoming election and would be deemed elected. Mr. Trotti’s proposed remedy would still disenfranchise the voters of the Fourth Judicial Circuit and prohibit them from actually choosing Judge Foster’s successor. Mr. Trotti would then serve a full six- year term as circuit judge, through January 2025, without his name ever appearing on a ballot.

In contrast, under appointment, candidates for Judge Foster’s seat will have been screened by lawyers and lay members of the Judicial Nominating Commission. The individual selected by the Governor would then have to appear at the next general election occurring more than one year after the date of appointment. This would allow the voters of the Fourth Judicial Circuit to actually vote to determine who occupies the seat in the general election held in 2020 rather than the general election held in 2024 if Mr. Trotti were installed as judge under the circuit court’s injunction.”

Whether or not, Trotti will seek review of this decision is unknown at this time.

Scott intends to formally appoint Bass to the Fourth Judicial Circuit when the Court of Appeal’s decision becomes final.

Bass, 55 has served as a Duval County judge since 2014. Prior to becoming a judge, Bass served as a general magistrate and hearing officer for the 4th Judicial Circuit. He was a former Assistant State Attorney, and a staff attorney with the Jacksonville Area Legal Aid.

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