By Adam Kaufman
June 10, 2018 8:14 p.m.
Robert Foster is retiring.
4th Circuit Court Judge Robert M. Foster is serving his last term as Nassau County’s Chief Judge and will retire at the end of that term having reached the mandatory retirement age for judges. That is the general understanding for most in our community. In anticipation of that retirement and as an acknowledgement of his thirty years of service to the County, the Justice Center, a judicial complex in Yulee, was dedicated in 2015 in his honor. It is a tribute that is manifestly deserved.
The method and manner by which Judge Foster is leaving office, however, is now the subject of litigation directed at Governor Rick Scott and Secretary of State Ken Detzner and points to a practice that is designed to constrain the public’s right to elect judges.
Judge Foster, who is not eligible to run for re-election because of the mandatory retirement age, in fact, is not retiring at the end of his term. He has resigned.
On April 2, 2018, in a letter to Governor Scott, Foster tendered his resignation effective December 31, 2018. His term of office was to end on January 7, 2019. The period between the effective date of the resignation and the end of his statutory term in office is four business days.
Foster has been quoted as considering his resignation “retirement.”
Why submit a resignation letter in April to be effective on December 31?
ENABLING GOVERNOR SCOTT
CANCELLING AN ELECTION
An election for Circuit Court Judge appears on the primary ballot and then on a subsequent ballot in the general election only if no candidate receives a majority of votes during the primary. Pursuant to Florida law judges are to be elected unless a judge retires, resigns or dies before the end of the judge’s term.
Where there is a “vacancy” as a result of resignation, death or retirement the governor can then appoint an individual “for a term ending on the first Tuesday after the first Monday in January of the year following the next primary and general election occurring at least one year after the date of appointment.”
On the basis of Foster’s submission in April of his letter of resignation, its acceptance and the resulting “vacancy” before the end of Foster’s term from December 31, 2018 to January 7, 2019, Governor Scott announced he would make an appointment to the Circuit Court. Scott then cancelled the election this August that would have determined who would succeed Foster.
Scott convened the 4th Judicial Circuit Nominating Commission to seek applicants for the vacancy. The Governor is entitled to “fill each vacancy” from a list of “not fewer than three persons nor more than six persons” nominated by that judicial nominating commission.
Eighteen applicants have submitted their applications to fill that “vacancy.”
Those applicants, including Nassau County residents Jan Carver, Leslie Hendrex, Jon Lasserre, Harrison Poole, Chanda Rodgers and Brett Steger, are scheduled to be interviewed in Jacksonville.
The interviews still slated for today, are each scheduled for twenty (20) minutes. Governor Scott has asked for six nominees.
CHALLENGES TO THE RESIGNATION PLOY
A MANUFACTURED VACANCY
There have been court challenges to this practice of faux resignation which one appellate court judge has characterized as a “manufactured vacancy” and last week a Circuit Court Judge has ruled as to the constitutionality of the practice of an individual judge having the power to block an election by submitting a letter of resignation to be effective just prior to the end of his or her term in office. Foster is not the first.
In 2014 Jacksonville lawyer David P. Trotti sought to qualify for a judicial vacancy in the 4th Judicial Circuit Court. The seat was occupied by Circuit Judge Donald R. Moran, Jr. On March 26, 2014, Judge Moran tendered a letter of resignation to Governor Scott to be “effective the last day of my term in January 2015.” After apparent reconsideration, Moran sent a second letter to Scott indicating that his specific date of resignation was to be Friday, January 2, 2015. January 2, 2015 was three calendar days and one business day before Moran’s term was expire on January 5, 2015.
On April 2, 2014 Trotti filed papers with the Division of Elections indicating his intention to run for the Moran seat on the Court. The statutory qualifying period for election was to begin on April 28, 2014. On April 10, 2014 Scott sent Moran a letter accepting his resignation. On April 25, 2014 Trotti was informed that Judge Moran had submitted his resignation and that the seat would be filled by a gubernatorial appointment rather than election. Trotti sued to be placed on the ballot. His petition was denied by the Circuit Court.
On appeal 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 District Court noted that the Florida Supreme Court has advised that when a vacancy is created prior to the commencement of the qualifying period for election, the vacancy is required to be filled by gubernatorial appointment. The acceptance of the resignation letter on April 10, 2014 was 18 days before qualifying period. Trotti’s appeal was denied, the Court having determined “there is no clear right to qualify for candidacy for a seat that is required to be filled by gubernatorial appointment.” The Florida Supreme Court declined to hear an appeal.
The Florida Supreme Court, however, has held that where a justice who was ineligible to run for another term in office sent a letter of resignation to the governor prior to the start of the qualifying period for election but where the resignation was to be effective at midnight on the last day of the incumbent justice’s term the seat should be filled by an election.
In his dissent in the 2014 Trotti decision Court of Appeal Judge Padovano wrote:
“Finally, I fear that the precedent the court has set here, although well intended, will be abused by those who would manipulate the election process to suit their own political or philosophical objectives. Suppose, for example, that two judges in the same judicial circuit are retiring at the end of their respective terms in office. One of them likes the governor very much and the other strongly opposes the governor. The first judge could bestow the power of appointment on the governor simply by resigning before the qualifying period but with an effective date the day before the last day of his or her term. In contrast, the second judge could block gubernatorial appointment simply by notifying members of the local bar that he or she does not intend to stand for re-election. Both judges would have chosen not to seek another term in office, yet one of them would have made the choice appear as though it were a resignation before the end of the term. I see no reason why the court should allow the election process to be circumvented in this way.”
INTERVIEWS TO PROCEED
On Wednesday June 6, Leon County Circuit Court Judge Charles W. Dodson, upon the application of David P. Trotti, issued an order directing that the proceedings of the 4th Judicial Circuit Nominating Committee to fill the Foster seat be suspended.
Trotti filed for the seat on May 3, 2018 and paid the $5,843.20 qualifying fee. He was listed as a candidate on the Florida Division of Election website until it was removed pending the nomination and gubernatorial appointment process.
The Dodson Order also prohibits Governor Scott from accepting any nominees, and enjoins him from appointing a successor to replace Foster. It further requires that Trotti’s name be restored to the ballot.
It is reported that Dodson found that since Judge Foster was not eligible to run for re-election as he reached the age of mandatory retirement pursuant to Article V, Section 8 [of the Florida Constitution] therefore, no notice of resignation was in fact required and he underscored that:
“The right of our citizens to vote, as specifically provided for in the Constitution with regard to election of our trial judges, is sacred.”
Scott has appealed the order and requested a stay of the injunction until a decision in the matter is rendered by the 1st District Court of Appeal.
It appears that, as a result of Scott’s appeal, the Nominating Commission will conduct its interviews today. And while one cannot make a determination with any degree of mathematical certainty, it is likely that one or more of the six potential prospective nominees for Circuit Court Judge will be known to Governor Scott.
It is unclear at this time as to when the 1st District Court of Appeal will rule on the issue.
Circuit Courts primarily handle civil cases where the amount in controversy is greater than $15,000 and felony criminal cases, as well as appeals from County Courts. The 4th Judicial Circuit includes Clay, Duval and Nassau Counties. To be eligible for the office of circuit judge, a person must be an “elector” of a county within the circuit and must have admitted to the practice of law in the state for the preceding five years.
The annual salary for a Circuit Court Judge is $146,080.
Editor’s Note: Adam Kaufman, a graduate of Northwestern University Pritzker School of Law, is a retired attorney, mediator, and arbitrator.