Florida Supreme Court reinstates stay on moves by Gov. Scott to appoint judge

By John Breslin | Jul 19, 2018

TALLAHASSEE – The Florida Supreme Court recently reinstated a trial court decision that bars Gov. Rick Scott from appointing a judge while a lawsuit against the move plays out.

David Trotti, who filed candidacy papers to be placed on the ballot for the judicial seat in the Fourth Judicial Circuit being vacated by Judge Robert Foster due to mandatory retirement, was granted in trial court a stay on any further move by the governor in the appointment process.

The state appealed against the injunction and prevailed in the First District Court of Appeal.

Trotti then asked for a review by the Supreme Court, which by a 4-3 vote effectively reinstated the trial court's stay on the grounds that there is a chance the plaintiff will prevail in the underlying case, a June 25 opinion by the high court said .

Justices Barbara Pariente, R. Fred Lewis, Peggy Quince and Jorge Labarga voted in the majority, while Chief Justice Charles Canady and Justices Ricky Polston and Alan Lawson were in the minority.

Foster faces mandatory retirement on Jan. 7 and is therefore ineligible to run for re-election.

But, in a move designed to allow Scott to appoint a successor, Foster told the governor that he would be resigning on Dec. 31. Because this is a date prior to the official end of the judge's term, the governor and state argue this allows them to fill the seat.

Trotti's lawyers, in a filing to the Supreme Court, argued against the appeals court decision lifting a stay on moving head with the appointment.

This, they argued, was "deja vu all over again" because it is the third election that "a handful of Florida county and circuit court judges have, contrary to the express instructions of a majority of this court, gamed the judicial appointment process to disenfranchise Florida voters," according to the high court order. "The last time it happened, in 2016, this court denied several extraordinary writ challenges on procedural grounds, but suggested that this electoral gamesmanship is antithetical to our Constitution and should be resolved through a declaratory judgment action."

"This court is now the only thing standing in the way of that appointment – an appointment that essentially steals a judicial seat from Florida voters in violation of the state Constitution, and gives it to Gov. Scott – becoming a reality," the high court opinion said.

None of the justices gave a reason for their vote.

According to a report by news station News4Jax, attorneys for Scott and Secretary of State Ken Detzner wrote in a filing: "Here, the undisputed facts establish that Judge Foster’s resignation was tendered and accepted by the governor before the election process commenced at the beginning of the candidate qualifying period."

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