By Adam Kaufman
Legal Analyst
November 27, 2018 10:20 a.m.
The Florida Supreme Court on Monday, with one Justice changing his prior position, determined 4-3 not to rule in the case brought by Jacksonville attorney David P. Trotti with regard to whether there should be an election or a gubernatorial appointment to fill a vacancy in the Fourth Judicial Circuit.
The dispute centers upon the prospective resignation of Judge Robert Foster in April 2018 to be effective on December 31, 2018 just four business days before the end of his term. The action by the Supreme Court let stand a decision of a lower appeals court that ruled in favor of the right of the Governor Scott to make the appointment.
The Supreme Court, in August, had ruled by a 4-3 margin to hear the case.
The Court heard oral argument this October. Justice Jorge Labarga, who was part of the majority deciding to hear the dispute reversed his position and now agreed that the decision to hear the case was “improvidently granted.” The Supreme Court discharged jurisdiction and dismissed the review proceeding. The ruling by the new four justice majority contained three sentences.
The three now dissenting Justices of the Supreme Court each filed opinions totaling twenty (20) pages.
Justice Pariente: “We should not condone this practice of judges announcing their resignation before the beginning of an election qualifying period but not resigning until days before the end of their term, which has occurred since 2016, regardless of whether they prefer merit selection over election.” “This Court” said Pariente, “should seize the opportunity to end this practice by holding…that the vacancy should be filled by election”
Justice Lewis: Suggested that the circumstances in this case are a “travesty,” which “allow judges to make a mockery of our Florida Constitution with impunity.” “The issue is whether a judge can prospectively resign during an election year to manufacture a vacancy that will be filled by gubernatorial appointment instead of a regularly scheduled election. Rather than addressing this direct affront to our constitutional system of checks and balances, the Court neglects its duty and turns a blind eye to this sham.” “Alas,” writes Lewis, “here we are in bizarro world: where a vacancy both exists and does not yet exist; where we ignore the fact that an election could and should occur due to a legal fiction not found in our Constitution.”
Justice Quince: “Judge Foster and Governor Scott are merely using the legal fiction of a letter sent and the acceptance of that letter before the qualifying period, a legal fiction created by this Court, to circumvent the will of the voters. Allowing this practice to continue undermines the credibility of the judicial branch by turning it into a mere political game of hot potato – elections can be avoided by a mere day.” “Surely,” writes Quince, “when the people determined that they prefer to elect certain judges, they did not intend for that desire to be circumvented by artificial vacancies.”
Editor’s Note: Adam Kaufman, a graduate of Northwestern University Pritzker School of Law, is a retired attorney, mediator, and arbitrator.
Adam, as always thanks for the concise and easy to read outcome. I personally agree with the minority opinion that this was pure political gamesmanship by Judge Foster and besmirks his otherwise good reputation. This process, like that of the fictional ‘write-in’ candidates that close off primary voting needs to be changed.