Court Rules Florida Governor Can Appoint Retiring Judge’s Successor

(CN) – Florida Gov. Rick Scott can appoint a retired judge’s successor instead of allowing voters to decide, an appellate court ruled Thursday.

The decision stems from the retirement of Robert Foster, a state judge in northeast Florida whose term expires on January 7, 2019. Foster could not seek re-election due to the state’s mandatory retirement age of 70.

But the judge did not want to wait until the new year to retire, which would have forced an election this fall. Instead, Foster gave the governor a letter of resignation stating his last day in office would be December 31, technically giving Scott the green light to fill the seat.

When Jacksonville attorney David Trotti filed paperwork to qualify for the position, Florida’ s Division of Elections told him there would be no election. Trotti then promptly sued Scott and Secretary of State Ken Detzner.

This is not Trotti’s first legal foray into the issue of judiciary appointments. In 2014, Trotti attempted to qualify for another seat vacated by a retiring judge. In that case, Florida’s First District Court of Appeals affirmed a lower court’s decision denying Trotti’s petition and ruled an election would have taken away the governor’s constitutional powers of appointment.

On Thursday, a panel of three appellate judges used the precedent established by a 2014 case to reverse a lower court’s decision and strike down Trotti’s attempts again.

In the short and terse opinion, Judge Clayton Roberts declined 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.”

“Is resigning with five days left in a term gamesmanship?” Roberts wrote. “What about two weeks? Or two months? And what about the judge’s motivation to resign? Should it matter if the vacancy was created because the judge wanted to create a vacancy filled by appointment? What if a vacancy occurred because the judge was going on a cruise or elected to have a medical procedure?

“Such an analysis of subjective factors poses a slippery slope that, in our opinion, is avoidable under the plain language of the Florida Constitution and the case law interpreting it,” Roberts added.

Judges Kent Wetherell and Timothy Osterhaus concurred.

Scott has yet to make a decision on the appointment. The Judicial Nominating Commission for the Fourth Judicial Circuit Court interviewed 18 applicants last month and will choose six candidates to forward to the governor.

The controversy over Scott’s judicial appointments could heat up in the coming months. Three Florida Supreme Court justices face mandatory retirement right as Scott finishes his last term as governor. Scott has said he will appoint the new justices on the morning he leaves office. Critics argue the new governor should have that power.

The Florida Supreme Court visited the issue last year after the League of Women Voters and Common Cause, a progressive organization, filed a petition to enjoin Scott from making the appointments.

The Supreme Court declined to review the case until Scott actually appointed the new justices. In a dissent, one justice said the issue could become a “constitutional crisis.”

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