Florida Supreme Court Grapples With Judicial Appointment
Jacksonville attorney David Trotti filed the case, arguing that voters should choose a replacement for outgoing Circuit Judge Robert Foster in the November election.
October 03, 2018 at 10:45 AM
4 minute read
With some justices appearing torn between legal precedents and the circumstances of the case, the state Supreme Court weighed whether Gov. Rick Scott should be able to appoint a replacement for a Northeast Florida judge who is stepping down at the end of the year.
Jacksonville attorney David Trotti filed the case, arguing that voters should choose a replacement for outgoing Circuit Judge Robert Foster in the November election. But Scott contends, and the First District Court of Appeal agreed, that he has the power to appoint a new judge.
Justices Barbara Pariente and R. Fred Lewis pointedly expressed concerns during oral arguments Tuesday that Foster had manipulated the process to try to make sure his replacement would be appointed instead of elected.
Foster was expected to leave office Jan. 7, 2019, which would be the end of his term, because of a mandatory retirement age. But on April 2, Foster sent a letter to Scott making the resignation effective Dec. 31, four business days ahead of schedule.
The Scott administration argues that the governor's acceptance of a judicial resignation before the start of an election-qualifying period creates a vacancy that should be filled by appointment, rather than election. If Foster retired on Jan. 7, the post would be filled by election.
“My problem is with the charade that's being played,” Lewis said. “He's not really resigning, let's face it.”
But earlier, in questioning Trotti's attorney, Philip Padovano, Lewis pointed to Supreme Court precedents that he indicated would back the appointment of a replacement for Foster.
“The jurisprudence of this court has interpreted the resignation as being effective when accepted,” Lewis said. “So in this case, then what we would have to do is overrule a number of cases to get to the point where you would like us to be.”
Padovano, a former appellate judge, agreed that legal precedents exist but tried to draw a distinction with the Foster resignation.
“I think these cases, your honor, basically were founded on a principle of good faith, that a resignation was actually going to be a resignation in the near future,” he said.
But Daniel Nordby, general counsel for Scott, called it “long-settled law” that a judicial vacancy occurs at the time a resignation letter is submitted to the governor and accepted, not at the time the judge leaves office. He also said the court has not based its decisions on the lengths of judicial vacancies.
Pariente, Lewis and Justice Peggy Quince asked questions during the oral arguments that appeared to be probing for ways to change the process to reduce what Pariente described as “arbitrariness.”
Nordby, however, said basing resignations on when letters are sent and accepted can help provide a “seamless transition” to new judges. That transition includes providing time for judicial nominating commissions to review and recommend replacements to the governor.
Similarly, Chief Justice Charles Canady said that if judicial resignations were effective immediately when submitted, it would “essentially guarantee that there will be probably at least a two- to three-month physical vacancy before the merit-selection process and appointment process can do its work.”
Foster is a judge in the Fourth Judicial Circuit, which is made up of Duval, Clay and Nassau counties. Trotti, who wanted to run for the seat in November, also filed a similar lawsuit in 2014 because of a different judicial opening but lost at the First District Court of Appeal.
Amid this year's legal fight, Scott announced that he plans to appoint Duval County Judge Lester Bass to replace Foster. It is unclear how long the Supreme Court will take to rule in the case.
Jim Saunders reports for the News Service of Florida.
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
NOT FOR REPRINT
© 2024 ALM Global, LLC, All Rights Reserved. Request academic re-use from www.copyright.com. All other uses, submit a request to [email protected]. For more information visit Asset & Logo Licensing.
You Might Like
View All'Serious Disruptions'?: Federal Courts Brace for Government Shutdown Threat
3 minute readDivided State Court Reinstates Dispute Over Replacement Vehicles Fees
5 minute readSecond Circuit Ruling Expands VPPA Scope: What Organizations Need to Know
6 minute read'They Got All Bent Out of Shape:' Parkland Lawyers Clash With Each Other
Trending Stories
- 1Call for Nominations: Elite Trial Lawyers 2025
- 2Senate Judiciary Dems Release Report on Supreme Court Ethics
- 3Senate Confirms Last 2 of Biden's California Judicial Nominees
- 4Morrison & Foerster Doles Out Year-End and Special Bonuses, Raises Base Compensation for Associates
- 5Tom Girardi to Surrender to Federal Authorities on Jan. 7
Who Got The Work
Michael G. Bongiorno, Andrew Scott Dulberg and Elizabeth E. Driscoll from Wilmer Cutler Pickering Hale and Dorr have stepped in to represent Symbotic Inc., an A.I.-enabled technology platform that focuses on increasing supply chain efficiency, and other defendants in a pending shareholder derivative lawsuit. The case, filed Oct. 2 in Massachusetts District Court by the Brown Law Firm on behalf of Stephen Austen, accuses certain officers and directors of misleading investors in regard to Symbotic's potential for margin growth by failing to disclose that the company was not equipped to timely deploy its systems or manage expenses through project delays. The case, assigned to U.S. District Judge Nathaniel M. Gorton, is 1:24-cv-12522, Austen v. Cohen et al.
Who Got The Work
Edmund Polubinski and Marie Killmond of Davis Polk & Wardwell have entered appearances for data platform software development company MongoDB and other defendants in a pending shareholder derivative lawsuit. The action, filed Oct. 7 in New York Southern District Court by the Brown Law Firm, accuses the company's directors and/or officers of falsely expressing confidence in the company’s restructuring of its sales incentive plan and downplaying the severity of decreases in its upfront commitments. The case is 1:24-cv-07594, Roy v. Ittycheria et al.
Who Got The Work
Amy O. Bruchs and Kurt F. Ellison of Michael Best & Friedrich have entered appearances for Epic Systems Corp. in a pending employment discrimination lawsuit. The suit was filed Sept. 7 in Wisconsin Western District Court by Levine Eisberner LLC and Siri & Glimstad on behalf of a project manager who claims that he was wrongfully terminated after applying for a religious exemption to the defendant's COVID-19 vaccine mandate. The case, assigned to U.S. Magistrate Judge Anita Marie Boor, is 3:24-cv-00630, Secker, Nathan v. Epic Systems Corporation.
Who Got The Work
David X. Sullivan, Thomas J. Finn and Gregory A. Hall from McCarter & English have entered appearances for Sunrun Installation Services in a pending civil rights lawsuit. The complaint was filed Sept. 4 in Connecticut District Court by attorney Robert M. Berke on behalf of former employee George Edward Steins, who was arrested and charged with employing an unregistered home improvement salesperson. The complaint alleges that had Sunrun informed the Connecticut Department of Consumer Protection that the plaintiff's employment had ended in 2017 and that he no longer held Sunrun's home improvement contractor license, he would not have been hit with charges, which were dismissed in May 2024. The case, assigned to U.S. District Judge Jeffrey A. Meyer, is 3:24-cv-01423, Steins v. Sunrun, Inc. et al.
Who Got The Work
Greenberg Traurig shareholder Joshua L. Raskin has entered an appearance for boohoo.com UK Ltd. in a pending patent infringement lawsuit. The suit, filed Sept. 3 in Texas Eastern District Court by Rozier Hardt McDonough on behalf of Alto Dynamics, asserts five patents related to an online shopping platform. The case, assigned to U.S. District Judge Rodney Gilstrap, is 2:24-cv-00719, Alto Dynamics, LLC v. boohoo.com UK Limited.
Featured Firms
Law Offices of Gary Martin Hays & Associates, P.C.
(470) 294-1674
Law Offices of Mark E. Salomone
(857) 444-6468
Smith & Hassler
(713) 739-1250