David P. Trotti v. Rick Scott, Governor

Supreme Court of Florida
____________
No. SC18-1217
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DAVID P. TROTTI,
Petitioner,
vs.
RICK SCOTT, GOVERNOR, et al.,
Respondents.
November 26, 2018
PER CURIAM.
We originally accepted jurisdiction to review Scott v. Trotti, 43 Fla. L.
Weekly D1691 (Fla. 1st DCA July 26, 2018), pursuant to article V, section 3(b)(3)
of the Florida Constitution. After further consideration, we conclude that
jurisdiction was improvidently granted. Accordingly, we hereby discharge
jurisdiction and dismiss this review proceeding.
It is so ordered.
CANADY, C.J., and POLSTON, LABARGA, and LAWSON, JJ., concur.
PARIENTE, J., dissents with an opinion.
LEWIS, J., dissents with an opinion.
QUINCE, J., dissents with an opinion, in which PARIENTE, J., concurs.
NO MOTION FOR REHEARING WILL BE ALLOWED.
PARIENTE, J., dissenting.
I fully concur with Justice Quince’s dissenting opinion, which proposes a
reasonable solution to this constitutional conundrum that would prevent judges
who favor merit retention in lieu of election from manipulating the system, ensure
that judicial vacancies do not exist for an extended period of time, and is consistent
with this Court’s precedent in Spector v. Glisson, 305 So. 2d 777 (Fla. 1974). See
dissenting op. at 15-16 (Quince, J.). We should not condone this practice of judges
announcing their resignation before the beginning of an election qualifying period
but not resigning until days before the end of their term, which has occurred since
2016, regardless of whether they prefer merit selection over election. This Court
should seize the opportunity to end this practice by holding, as Justice Quince
explains, that the vacancy in this case should be filled by election. Thus, I disagree
with the majority’s decision to discharge.
In my view, the solution set forth in Justice Quince’s dissent ensures that
trial court vacancies are filled, wherever possible, by election. See dissenting op.
at 20-21 (Quince, J.). This solution is consistent with my previous opinion in
Pincket v. Detzner, No. 16-768, 2016 WL 3127704 (Fla. June 3, 2016), where I
explained:
Although individual judges may prefer the merit selection
system for all judges rather than contested elections, no individual
judge should be able to circumvent the intent of the provisions of the
Florida Constitution that state the election of county and circuit judges
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“shall be preserved.” See art. V, §§ 10(b)(1) & (2), Fla. Const. In
fact, after the 1998 revision to the Florida Constitution, which allowed
any county to opt out of election in favor of merit retention, not one
county opted for this preference. Id.
As this Court stated in Spector, “if the elective process is
available, and if it is not expressly precluded by the applicable
language, it should be utilized to fill any available office by vote of
the people at the earliest possible date. Thus the elective process
retains that primacy which has historically been accorded to it
consistent with the retention of all powers in the people, either directly
or through their elected representatives in their Legislature.” 305 So.
2d at 782.
Clearly there is a problem with the current constitutional
provision as interpreted when the decision of whether a judicial
vacancy is to be filled by general election or gubernatorial
appointment rests solely with the actions of the retiring judge, rather
than with the clear directive of the Constitution. As Judge Padovano
expounded in his dissent in Trotti:
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 an 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 a
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 resignation before the
end of the term.
Trotti, 147 So. 3d at 648 (Padovano, J., dissenting).
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The personal preferences of individual judges, however well-
motivated their intentions, should not be the basis for determining
whether a vacancy exists that can either be filled by election or
appointment.
Id. at *2 (Pariente, J., concurring in result).
Justice Quince’s solution is also consistent with Spector, in which the Court
held that the elective process, if available, should be used to fill a vacancy. 305
So. 2d at 782. Thus, for the reasons stated by Justice Quince, I would retain
jurisdiction, quash the First District Court of Appeal’s decision, “and hold that
David P. Trotti, who properly qualified for election as circuit judge for the Fourth
Judicial Circuit, Group 6, and was elected by virtue of the fact that no other
candidate qualified for the seat, is entitled to take the seat that should be filled by
election.” Dissenting op. at 15-16 (Quince, J.).
Lastly, although I agree with Justice Quince and would retain jurisdiction to
resolve this important constitutional issue, I disagree with the tenor of my
colleague’s dissent and believe the attack on our fellow justices is unnecessarily
harsh and unjustified. See generally dissenting op. (Lewis, J.). This is hardly a
situation where, by discharging jurisdiction, the majority “neglects its duty and
turns a blind eye to [a] sham.” Dissenting op. at 6 (Lewis, J.). Rather, the
majority’s decision to discharge—which occurs at times after a case has been fully
briefed and oral argument heard—simply leaves in place the First District’s
decision, which concluded that, based on precedent, the judicial vacancy should be
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filled by appointment rather than election. Scott v. Trotti, 43 Fla. L. Weekly
D1691, 2018 WL 3580761, *3 (Fla. 1st DCA July 26, 2018).
Despite the harsh tone, Justice Lewis, in fact, agrees that the judicial
vacancy in this case should be filled by appointment. See dissenting op. at 9
(Lewis, J.) (“[T]he Governor properly filled the seat through appointment because
the vacancy occurred prior to the qualifying period.”). Thus, the difference
between the First District’s decision and Justice Lewis’s dissent is the effective
date of resignation. While the solution proposed by Justice Lewis would obviously
deter judges from announcing their intention to resign but not actually resigning
until months later—as it would force the judge to resign at the time that the
resignation is accepted by the governor—it would also create the potential for an
extended vacancy.
For the reasons stated, I disagree with the majority’s decision to discharge
jurisdiction and fully concur in Justice Quince’s well-reasoned dissent. I also
disagree with Justice Lewis’s dissent, both in its unnecessarily harsh tone in
criticizing the majority’s decision to discharge and his proposed solution for the
factual scenario presented.
LEWIS, J., dissenting.
Travesty, n, (1674): “a debased, distorted, or grossly inferior imitation .” Merriam-Webster’s Collegiate Dictionary 1257 (10th ed. 1999).
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This accurately describes the circumstances in this case, which allow judges to
make a mockery of our Florida Constitution with impunity. The issue is whether a
judge can prospectively resign during an election year to manufacture a vacancy
that will be filled by gubernatorial appointment instead of a regularly scheduled
election. Rather than addressing this direct affront to our constitutional system of
checks and balances, the Court neglects its duty and turns a blind eye to this sham.
To understand this grave disregard for the rule of law, it is necessary to set out the
details not included in the Court’s three-sentence discharge opinion.
Vacancies in circuit and county court judicial offices “occur upon the . . .
resignation of the incumbent.” Art. X, § 3, Fla. Const. When vacancies occur in
circuit and county courts (collectively trial courts), the Constitution provides that a
governor must make appointments to fill the seats. Art. V, § 11(b), Fla. Const.
Importantly, however, the people of Florida have specifically enshrined their right
to elect circuit and county court judges (collectively trial court judges). Art. V, §
10(b)(1)-(2), Fla. Const. Moreover, voters unanimously rejected the replacement
of trial court elections with a system of appointment and merit retention.1
1. In 2000, every Florida county and judicial circuit voted on this issue, art.
V, § 10(b)(3), Fla. Const., and each voted against trial court merit retention,
Pincket v. Detzner, No. SC16-768, 2016 WL 3127704, at *2 (Fla. June 3, 2016)
(Pariente, J., concurring in result); see also Fla. Dep’t of State, Div. of Elections,
Official Results from 2000 General Election,
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Accordingly, there is a tension between the relevant constitutional provisions with
regard to vacancies that occur during an election year in judicial seats scheduled to
be filled by election. Advisory Op. to the Governor re Appointment or Election of
Judges (Appointment or Election I), 824 So. 2d 132, 136 (Fla. 2002).
The Constitution is silent as to whether election or appointment applies to
these seats. Advisory Op. to the Governor re Sheriff & Judicial Vacancies Due to
Resignations (Sheriff & Judicial Vacancies), 928 So. 2d 1218, 1220-21 (Fla.
2006). Through various advisory opinions, we rectified this discord by drawing a
firm line at the qualifying period as the moment when appointment gives way to
election for the purpose of filling vacancies. Appointment or Election I, 824 So. 2d
at 136; see, e.g., Advisory Op. to the Governor re Judicial Vacancy Due to
Resignation (Vacancy Due to Resignation), 42 So. 3d 795, 797 (Fla. 2010);
Advisory Op. to the Governor re Appointment or Election of Judges (Appointment
or Election II), 983 So. 2d 526, 528-29 (Fla. 2008); Sheriff & Judicial Vacancies,
928 So. 2d at 1220. Pursuant to precedent, the Court does not look at when the
actual vacancy will occur; rather, it merely determines if the constitutional vacancy
occurred prior to the qualifying period. See Appointment or Election II, 983 So. 2d
at 529-30; Sheriff & Judicial Vacancies, 928 So. 2d at 1220-21. Vacancies
https://results.elections.myflorida.com/Index.asp?ElectionDate=11/7/2000&DAT
MODE= (last visited Nov. 21, 2018).
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occurring prior to the qualifying period are filled by appointment. Vacancy Due to
Resignation, 42 So. 3d at 797. A constitutional vacancy occurs upon submission
of the resignation to the governor and his or her acceptance thereof. E.g., In re
Advisory Op. to the Governor (1992 Advisory Opinion), 600 So. 2d 460, 462 (Fla.
1992). 2
This procedure is not perfect, Sheriff & Judicial Vacancies, 928 So. 2d at
1220-21, and it would be preferable for the people to respond with a constitutional
amendment to clarify their preferences in these circumstances, see Pincket, 2016
WL 3127704, at *2 (Pariente, J., concurring in result). Yet it is our system, and it
strikes a reasonable balance between a governor’s power to appoint and the
people’s right to elect. For the third straight election cycle, however, trial court
judges are manipulating this constitutional process by resigning prior to the
qualifying period—more than eight months before the end of their terms—while
unilaterally setting their retirement effective date far in the future and a matter of
days before they are required to leave office. This practice is clever albeit
2. Although the Court repeatedly cites this point of law, it likely cannot
completely withstand the scrutiny of review. In Smith v. Brantley, 400 So. 2d 443
(Fla. 1981), this Court held that gubernatorial acceptance of a judicial resignation
is not necessary to render it effective. Id. at 448-49. We specifically rejected the
argument there that section 114.01(1)(d), Florida Statutes (1977)—which required
gubernatorial acceptance—controlled over the plain language of the Constitution.
Id.
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disgraceful because, despite the voter’s clear preference for electing trial court
judges, this Court has made clear that it will watch indifferently as judges employ
this end around to the plain constitutional language.
Under the Court’s precedent, specifically Sheriff & Judicial Vacancies, the
answer to the election or appointment question here is quite simple: the Governor
properly filled the seat through appointment because the vacancy occurred prior to
the qualifying period. See 928 So. 2d at 1220-21. However, that conclusion is not
dispositive on the issue of when the resignation becomes effective. Since the
establishment of this Court in 1846, there is not a single opinion that stands for the
proposition that trial court judges, or any other public officers, can unilaterally
determine the manner of selecting their successors by tendering a delayed
resignation to take effect almost a year in the future. Rather, this Court has
specifically noted that the “Constitution still does not define or fix the effective
date of a resignation.” Brantley, 400 So. 2d at 447. Regardless, in Brantley, the
Court established that it has the power to qualify or limit a public official’s right to
relinquish office if necessary to protect the public. Id. Given the repetitive nature
of this problem and the clear harm that it causes to the public every two years, we
should discharge our constitutional obligation and put an end to this shameful
practice. In line with the Court’s precedent, it is obvious that the qualifying period
should act as the cutoff for when a resignation becomes effective along with
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determining which manner of filling the vacancy applies. See Appointment or
Election II, 983 So. 2d at 529-30; Sheriff & Judicial Vacancies, 928 So. 2d at
1220-21. If the qualifying period cutoff is to mean anything, then the Court must
enforce that date as the cutoff for all purposes.
Tellingly, the Constitution does not draw the distinction that we lawyers
have created between actual and constitutional vacancies. The Constitution says
that a vacancy occurs “upon the . . . resignation of the incumbent.” Art. X, § 3,
Fla. Const. Through the years, we have interpreted that language to mean that
prospective resignations create present constitutional vacancies. E.g., Spector v.
Glisson, 305 So. 2d 777, 780 (Fla. 1974). Yet outside of these insulated and
occasionally academic courthouse walls, a vacancy in office cannot occur at two
separate points in time. A vacant office is an unoccupied office. See Black’s Law
Dictionary, Vacancy (10th ed. 2014) (“[A vacancy is t]he quality, state, or
condition of being unoccupied, esp. in reference to an office.”). So, absent
additional constitutional guidance to allow this type of gamesmanship, the
resignation must create the vacancy now or create the vacancy later; but it cannot
create two vacancies for the purpose of thwarting an election. Therefore, it is our
jurisprudential wordplay, rather than the plain language of the Constitution, which
has enabled this practice to proceed unabated.
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Make no mistake, there is absolutely nothing in the Constitution, Florida
Statutes, or the decisional law of this State that grants trial court judges the right to
delay their resignation by eight months. We have consistently interpreted article
X, section 3 to mean that trial court vacancies occur upon acceptance of a
resignation by the governor. E.g., 1992 Advisory Opinion, 600 So. 2d at 462.
Additionally, we have noted that the “Constitution still does not define or fix the
effective date of a resignation.” Brantley, 400 So. 2d at 447. Without any
additional guidance from the constitutional plain language, it is self-evident that
both the constitutional and actual vacancies must occur simultaneously in these
cases. The effect of these manufactured vacancies is to deprive the people of an
election; therefore, it is an absolute travesty for this Court to allow these judges to
remain in office for essentially the remainder of their term. The only way for the
Court to rein in this practice is to set a firm date that coordinates the relevant
constitutional provisions—article V, sections 10(b)(1)-(2) and 11(b)—with the
dates between the actual and constitutional vacancies. Those dates should be one
and the same. To hold otherwise, the Court must subscribe to the fantasy that a
vacancy both occurs upon the resignation, but is also delayed until the officer
decides to leave office. For at least the better part of three centuries, it has been
part of western society’s collective conscience that people cannot have their cake
and eat it too. See Jonathan Swift, Polite Conversation 112 (George Saintsbury
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ed., Chiswick Press 1892) (1738). But the Court today rejects that common-sense
rationale, subscribing instead to the legal fiction that constitutional and actual
vacancy dates may be as far apart as any particular judge desires.
In my view, the Constitution prohibits judges from circumventing it,
requiring them to protect and defend that bedrock document instead of frustrating
its purpose. See art. II, § 5(b), Fla. Const. (requiring every state officer to swear to
“support, protect, and defend the Constitution and Government of the United States
and of the State of Florida”). Although our jurisprudence holds that the
replacement to this seat must be appointed, nothing in the Constitution or this
Court’s precedent suggests in any way that outgoing judges can set the effective
dates of their resignations eight months in the future and mere days before leaving
office. This practice is a brazen attempt to accomplish that which is otherwise
prohibited: judges cannot unilaterally dictate the constitutional process for filling
vacancies in the seats that they are vacating. Here, however, that is precisely
occurring, and it is accomplished through the use of a fake, false, and otherwise
hollow resignation date by setting the occurrence of the actual vacancy a matter of
days before the regularly scheduled end of the term. These judicial officers should
not be permitted to retain the benefits of office while at the same time creating a
constitutional vacancy that forecloses an election. If judges would like to resign
early, then they should actually resign and leave office. By allowing these judges
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to remain on the bench, the Court effectively allows its own qualifying period
cutoff to be rendered nugatory—subject to the whims of individual judges in
election years. Cf. Appointment or Election II, 983 So. 2d at 530 (“The
determination of constitutional provisions should not vary based upon fluctuations
of the individual ‘election process’ for a given year.”). Moreover, as a practical
matter, we are not only allowing judges to steal elections from their neighbors, but
now we are giving them paychecks for the trouble.
The Governor argues that these prospective resignations are necessary for
continuity on the bench and the administration of justice because a resignation
effective immediately would leave the seat vacant for up to four months. See art.
V, § 11(c), Fla. Const. However, the existence of an actual vacancy in a particular
seat is a red herring in this discussion for several reasons. First, there are hundreds
of senior judges across this State who are available for temporary assignment while
a governor makes an appointment to a vacant trial court seat. See art. V, § 2(b),
Fla. Const. (empowering the chief justice of this Court to assign senior judges to
any court). Thus, any effect on the administration of justice can be easily
ameliorated. Second, it is the judges manufacturing these vacancies, not the
constitutional process, that creates any problem which actual vacancies may
present. Unlike merit retention seats, where judges and justices can retire early in
order to allow the appointment process to commence prior to the end of a term,
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there is no justification for trial court judges to retire early. The terms of trial court
judges end on a set date, and their successors take office the following day,
ensuring a smooth transition. However, because these judges have set out to
manufacture vacancies, the offices will actually be vacant for a few days. Finally,
the occurrence of the actual vacancy is not dispositive in this Court’s analysis. We
have consistently held for two decades that it is the qualifying period that controls
regardless of whether a lengthy physical vacancy will result. E.g., Appointment or
Election I, 824 So. 2d at 133, 136. Accordingly, there is no rationale to support
these types of prospective resignations.
Certain jurists, including myself, may agree that merit retention is superior
to elections as a method for selecting judges. However, under our constitutional
system, the people chose to elect their trial court judges. It is a basic tenet of our
constitutional system that this Court should respect that decision. As we must
always remember,
Ours is a government of, by and for the people. Our federal and state
constitutions guarantee the right of the people to take an active part in
the process of that government, which for most of our citizens means
participation via the election process. The right to vote is the right to
participate; it is also the right to speak, but more importantly the right
to be heard. We must tread carefully on that right or we risk the
unnecessary and unjustified muting of the public voice.
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Boardman v. Esteva, 323 So. 2d 259, 263 (Fla. 1975). Instead of treading carefully
to effectuate the intent of the voters by applying its own precedent in a
commonsense fashion, this Court now decides to stick its head in the sand.
Alas, here we are in bizarro world: where a vacancy both exists and does not
yet exist; where we ignore the fact that an election could and should occur due to a
legal fiction not found in our Constitution. As a society, we call upon judges to
protect and uphold our Constitution. In my view, the people cannot be confident
that these judges will properly enforce the text of a document that they so willingly
scorned. Although we cannot prevent judges from sullying their robes as they
walk out the door, we can at least ensure that they leave office immediately.
Accordingly, I dissent.
QUINCE, J., dissenting.
I respectfully dissent from the decision to discharge jurisdiction in this case.
Instead, I would retain jurisdiction because the issues before this Court involve the
authority of a state officer to take certain actions and the interpretation of the
constitutional provisions relating to those actions. These issues are a matter of
great public importance. Thus, I would address the issues and quash the decision
of the First District Court of Appeal, and hold that David P. Trotti, who properly
qualified for election as circuit judge for the Fourth Judicial Circuit, Group 6, and
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was elected by virtue of the fact that no other candidate qualified for the seat, is
entitled to take the seat that should be filled by election.
We laid out the framework for adherence to judicial elections in Spector v.
Glisson, 305 So. 2d 777 (Fla. 1974), when we said:
We have historically since the earliest days of our statehood
resolved as the public policy of this State that interpretations of the
constitution, absent clear provision otherwise, should always be
resolved in favor of retention in the people of the power and
opportunity to select officials of the people’s choice, and that
vacancies in elective offices should be filled by the people at the
earliest practical date.
Id. at 781. We further stated that when there was an intervening election, a judicial
vacancy “should be filled by the intervening available elective machinery.” Id. at
784. We reasoned that to do otherwise “would frustrate the plain requirements of
our constitution.” Id. We later concluded “that the constitution mandates an
election when there is sufficient time to afford the electorate an opportunity to fill a
judicial vacancy.” Judicial Nominating Commission, Ninth Circuit v. Graham,
(JNC, Ninth Circuit), 424 So. 2d 10, 10 (Fla. 1982). In JNC, Ninth Circuit, we
explained our holding in Spector, stating:
[W]e held that if a judicial vacancy is known reasonably in advance of
an intervening primary and general election, the vacancy must be
filled by election. The holding in Glisson was predicated upon the
fact that the constitutional provision was intended to have the election
process select members of the judiciary if the electorate had adequate
knowledge that a vacancy would occur and that candidates could
qualify and run during the regularly scheduled primary and general
election process.
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JNC, Ninth Circuit, 424 So. 2d at 11-12.
Balanced with this principle—that the constitution prefers elections to occur
whenever practicable—is the principle that “[v]acancies in office are to be avoided
whenever possible.” In re Advisory Opinion to the Governor, 600 So. 2d 460, 462
(Fla. 1992). We therefore encouraged judges to “submit their resignations, to be
effective in the future, at a time that permits the process to proceed in an orderly
manner and keep the position filled.” Id. Accordingly, we held that Spector
“applies to a situation where a sitting judge unequivocally resigns effective at a
future date. When a letter of resignation to be effective at a later date is received
and accepted by [the Governor], a vacancy in that office occurs and actuates the
process to fill it.” Id.3
In our advisory capacity, we have consistently concluded that the conflict
between the sections of the constitution “must be resolved by a construction which
gives effect to the clear will of the voters that circuit and county judges be selected
by election.” Advisory Opinion to the Governor re Appointment or Election of
Judges (Appointment or Election of Judges), 824 So. 2d 132, 136 (Fla. 2002). We
opined, therefore, “that upon the qualification of a candidate or candidates for a
3. It should be noted that none of this applies to judicial vacancies occurring
in merit retention. See Mandatory Retirement, 940 So. 2d at 1094; art. V, § 10(a),
Fla. Const.
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circuit or county judgeship during the statutory qualification period, the election
method of selection required by section 10(b)(1) and (2) takes precedence over and
forecloses the Governor’s constitutional authority and obligation pursuant to
section 11(b) to fill a vacancy.” Id. In so doing, we defined the election process as
beginning “when a candidate or candidates have qualified for the circuit or county
judgeship.” Id. at 135 (citing ch. 2002-17, § 23, Laws of Fla.). We narrowed this
ruling to apply only “where a candidate or candidates have already qualified during
the statutory qualifications period, one of whom will fill the position by election.”
Id. at 136.4
In other words,
We have interpreted the interplay between article V, section
11(b), and article V, section 10(b), by holding that when a vacancy
occurs in the county or circuit courts before the qualifying period for
the seat commences, the vacancy should be filled by appointment, but
once the election process begins, such a vacancy should be filled by
election. Advisory Opinion to Governor re Sheriff & Judicial
Vacancies Due to Resignations, 928 So. 2d 1218, 1220 (Fla. 2006)
(Sheriff & Judicial Vacancies ); Appointment or Election of Judges
2008, 983 So. 2d at 528. In order to promote consistency in the
process of filling judicial vacancies, we identified the beginning of the
statutory qualifying period as a fixed point to mark the
commencement of the election process. Appointment or Election of
Judges 2008, 983 So. 2d at 529.
4. We distinguished that case from Pincket v. Harris, 765 So. 2d 284 (Fla.
1st DCA 2000), because “in Pincket no person had qualified for the election at the
time the vacancy occurred because the qualification period had not yet occurred.”
Appointment or Election of Judges, 824 So. 2d at 136 n.9.
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Advisory Opinion to the Governor re Judicial Vacancy Due to Resignation, 42 So.
3d 795, 797 (Fla. 2010).
As demonstrated, we have previously adopted and repeatedly reaffirmed a
bright-line rule that vacancies that occur once the election process begins should be
filled by election. Vacancies that occur before the election process begins or after
it has completed are filled by gubernatorial appointment. See, e.g., Advisory
Opinion to the Governor re Judicial Vacancy Due to Resignation, 42 So. 3d 795,
798 (Fla. 2010) (incumbent resigned after the election process had effectively
ended). In so doing, this Court has left an extremely narrow window by which the
“clear will of the voters” may be effected and has permitted gamesmanship within
the judicial election process that the people surely do not condone. Paraphrasing a
previous admonition of this Court, a judgeship is not an office that may be
capriciously forsaken at will for personal benefit. See, e.g., Advisory Opinion to
the Governor re Judicial Vacancy Due to Resignation, 42 So. 3d 795, 798 (Fla.
2010).
The question really becomes one of when the vacancy in office occurs. The
term “vacant” is defined as “empty, unoccupied.” Black’s Law Dictionary, 1782
(10th ed. 2014). In the case before us, Judge Robert M. Foster tendered his
resignation to Governor Scott on April 2, 2018, effective December 31, 2018, for
his term expiring January 7, 2019. Judge Foster was ineligible to seek re-election.
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Governor Scott accepted Judge Foster’s resignation on April 23, 2018, seven days
before the beginning of the statutory qualifying period for election of circuit court
judges. Thus, there would have been a natural vacancy—by expiration of his
term—on January 7, 2019. However, having chosen to leave on December 31,
2018, the empty, unoccupied office—the vacancy—will occur on December 31,
2018. Both dates are after the general election that will be held on November 6,
2018. Thus, pursuant to Glisson the position must be filled by an election. 5 An
election, in fact, took place when one candidate qualified for the position without
opposition.
This is not a case where an unreasonably long vacancy would occur because
Judge Foster is not vacating his seat until seven days before his term ends and a
new judge could fill his seat. Seven days after December 31 is not an unreasonable
delay. Judge Foster and Governor Scott are merely using the legal fiction of a
letter sent and acceptance of that letter before the qualifying period, a legal fiction
5. We have previously stated, “Under our precedent, a judicial vacancy
occurs when a letter of resignation is received and accepted by the Governor.”
Advisory Opinion to the Governor re Sheriff & Judicial Vacancies Due to
Resignation, 928 So. 2d 1218, 1220 (Fla. 2006) (citing In re Advisory Opinion to
the Governor (Judicial Vacancies), 600 So. 2d 460, 461 (Fla. 1992). I conclude,
however, that we have done so to reaffirm the constitutional preference for the
election of judges whenever possible. See, e.g., Glisson, 305 So. 2d at 784. To the
extent the legal fiction we created may be used to circumvent the political process,
I would clarify those holdings and place them back into the context in which they
were made.
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created by this Court, to circumvent the will of the voters. Allowing this practice
to continue undermines the credibility of the judicial branch by turning it into a
mere political game of hot potato—elections can be avoided by a mere day.
The importance of an independent judicial branch has been oft-repeated.
Arthur Vanderbilt of the New Jersey Supreme Court said it best in
1937 when he said: “If citizens have respect for the work of their
[c]ourts, their respect for law will survive the shortcomings of every
other branch of government; but, if they lose their respect for the work
of the courts, their respect for law and order will vanish with it.”
Richard H. Levenstein and Judge Michelle Sisco, Crisis of Knowledge: The
Importance of Educating the Public About the Role of Fair and Impartial Courts in
Our System of Government, Fla. B. J., May 2016 at 35, 37. The gamesmanship on
display here could serve to undermine the voters’ respect for the courts.
Accordingly, I would hold that, for the purposes of elected judges, a resignation
letter accepted during an election year that indicates that the judicial officer will
leave on a date after an intervening election, when there is still time for parties to
properly qualify for an election, creates a vacancy on the date stated in the letter,
not the arbitrary date it is accepted by the Governor. This ruling would reconcile
our previous decisions while still permitting retiring or resigning judges flexibility
to determine when they should step down. Surely when the people determined that
they would prefer to elect certain judges, they did not intend for that desire to be
circumvented by artificial vacancies.
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Because I would find that Judge Foster’s seat should be filled by election
and not appointment, I respectfully dissent.
PARIENTE, J., concurs.
Application for Review of the Decision of the District Court of Appeal –
Constitutional Construction/Class of Constitutional Officers
First District - Case No. 1D18-2387
(Leon County)
Philip J. Padovano and Joseph T. Eagleton of Brannock & Humphries, P.A.,
Tampa, Florida; Robert J. Slama of Robert J. Slama, P.A., Jacksonville, Florida;
and David P. Trotti of David P. Trotti, P.A., Jacksonville, Florida,
for Petitioner
Daniel E. Nordby, General Counsel, Meredith L. Sasso, Chief Deputy General
Counsel, John MacIver, Nicholas A. Primrose, and Alexis Lambert, Deputy
General Counsel, Executive Office of the Governor, Tallahassee, Florida; and
Bradley R. McVay, General Counsel, Ashley E. Davis, Deputy General Counsel,
and Jesse Dyer, Assistant General Counsel, Florida Department of State,
Tallahassee, Florida,
for Respondents
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