By Adam Kaufman
August 5, 2018 5:00 p.m.
“It ain’t over till it’s over.” Lawrence Peter Berra
Four of the seven members of the Florida Supreme Court have indicated a willingness to give additional scrutiny to the circumstances and the validity of the purported “vacancy” created by Judge Robert Foster’s April, 2018 resignation. The resignation is to be effective four business days before Foster’s term would expire in January, 2019.
The creation of this “vacancy” allegedly allows a gubernatorial appointment pursuant to the Florida Constitution rather than the election that would occur if Foster simply finished his term.
On Friday, August 3, the Florida Supreme Court in a one sentence order, with Justices Pariente, Lewis, Quince and Labarga voting in the affirmative, stayed the effect of the lower courts’ decisions in Trotti v. Scott, et al.
Trotti v. Scott is the law suit brought by Jacksonville attorney David Trotti challenging the validity of the Foster resignation. The stay was granted upon Trotti’s petition to the Supreme Court for review. A decision of the First District Court of Appeal in the Trotti case 12 days ago, if final, would have permitted Governor Scott to make a judicial appointment.
The facts of this case bear repeating. On April 2, 2018, Judge Foster tendered a letter of resignation to Scott indicating his last day in office would be December 31, 2018, one week (four business days) before his term would expire. Foster, having reached mandatory retirement age was not eligible for 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, Trotti filed qualifying paper work 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 sued.
The Second Judicial Circuit Court in Tallahassee found in Trotti’s favor and ordered an election with Trotti’s name on the ballot. The First District Court of Appeal reversed that ruling on July 26.
The Court of Appeal found that the Circuit Court was bound by a 2014 Court of Appeal decision where it ruled a Judge’s resignation before the election qualifying period which was to be effective one business day before his term would expire created a “vacancy” that was appropriate to be filled by gubernatorial appointment rather than by election. The Florida Supreme Court declined to review that 2014 decision.
Attorneys for Scott acknowledge, in their submission to the Supreme Court, that the practice of judicial resignation before the end of a term, creating what one Judge has termed a “manufactured vacancy,” thus preventing an election and depriving the voters of their right to vote, is a fact pattern “capable of repetition.”
What has been troubling to the courts is that if an election is ordered, Trotti would be the only candidate on the August 2018 primary ballot for Foster’s seat since the election qualifying period has closed.
Judicial races appear on the primary ballot and on a subsequent ballot in the general election if no candidate receives a majority of votes during the primary. The 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.” Scheduling a new election for November, if ordered, would appear to not unnecessarily burden election officials in the Fourth Judicial Circuit.
Within hours of the First District Court of Appeal ruling on July 26, Scott announced his intent to appoint Duval County Judge Lester Bass to fill the Foster “vacancy.” If that appointment is permitted by the Supreme Court, Bass would have to stand for election in 2020, but, of course, he would benefit from the power of incumbency.
Attorneys for Scott are to file briefs with the Supreme Court no later than 12:00 p.m. Wednesday, August 8, 2018.
The stay remains in effect until the Supreme Court makes a determination on Trotti’s petition for review.
Editor’s Note: Adam Kaufman, a graduate of Northwestern University Pritzker School of Law, is a retired attorney, mediator, and arbitrator.