TALLAHASSEE - Florida's Supreme Court will hear oral arguments over whether Gov. Rick Scott has the right to appoint a judge to the circuit court just weeks before the November election, and after ballot papers are printed.
This continues the legal tussle between an attorney and the governor, who believes he has the Florida Constitution on his side that allows him to appoint the successor to a judge in the 4th Judicial Circuit.
The case, involves attorney David Trotti, who filed candidacy papers to be placed on the November ballot and would potentially have been unopposed, but which has bounced between a trial, appeals, and the high court.
Arguments have centered on a dispute over Scott moving ahead with the appointment process before the legal action in the underlying issue, whether he is allowed to do so, was exhausted.
Most recently the Supreme Court, in a split 4-3 decision, stated it would consider the underlying issue, with oral argument penciled in for Oct. 2.
This put on hold the appointment of Duval County Judge Lester Bass to replace Judge Robert Foster, who told Scott April 2 that he was resigning Dec. 31, four business days before his official retirement.
His resignation announcement before the qualifying period for the November election allows the governor to appoint a replacement, according to the Florida Constitution.
"Our office will continue through the judicial process and looks forward to appointing Judge Bass to the Fourth Circuit bench, a position he is greatly qualified for," Ashley Cook, Gov. Scott's press secretary, told the Florida Record in a brief statement.
"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,” attorneys for Scott and Secretary of State Ken Detzner wrote in one motion to the Supreme Court.
Trotti, who had already filed his candidacy papers prior to Foster's announcing his resignation, was then told he could not stand because the position was filled by Scott.
He filed suit, claiming in essence the judge and governor were gaming the system and, therefore, depriving Florida voters of their rights. The 2nd Judicial Circuit put on hold the nomination process while the legal action continued.
But this was overturned by the First District Court of Appeals, which ruled it had no business attempting to determine "whether the resignation was a matter of political gamesmanship.”
In a late July opinion, Judge L. Clayton Roberts wrote, "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.”
He added, "In our view, allowing for the immediate appointment to fill Judge Foster’s seat respects the language of the Florida Constitution."
This is the second time around for Trotti, who challenged a 2014 appointment made in similar circumstances. It was unsuccessful, with the appeals court upholding the right of the governor to fill a vacancy, a decision backed by the Supreme Court.
But Trotti's lawyers, in a motion to the Supreme Court in late June, argued that this does not hinder the attorney's argument, rather it makes it more important.
"This is the third straight election cycle in which 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," the motion read.
"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."
Three retiring justices, Barbara Pariente, R. Fred Lewis, and Peggy Quince, as well as Justice Jorge Labarga, voted in the majority to hear the Trotti case.
The three were caught up in a dispute involving Scott over his announcement that he planned to appoint replacements before stepping down as governor on Jan. 8 next year.
Scott argued it was within his rights to do so, which led to the League of Women Voters to launch a challenge, which was heard by the Supreme Court.
In December, 2017, the court, by a 4-3, margin decided it could not rule until Scott had moved to make the appointments. The three retiring justices dissented. The governor has made no further moves since.
Patricia Brigham, president of the League of Women Voters of Florida, reiterated its stance to the Florida Record: "We believe the incoming governor has the authority to appoint the Supreme Court nominee. That is our position."