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Court Rules on appointment or election cases.

There will be one more judicial race in Florida, after the Supreme Court granted a writ of quo warranto filed by two attorneys who sought to replace a Palm Beach County judge who, under the state's resign-to-run law, gave up her seat to run for the circuit bench.

Gov. Rick Scott had sought to fill that vacancy through the judicial nominating commission merit selection process.

The court, though, turned down candidates for three other circuit court seats where the incumbents resigned just before the elective qualifying period began but made the resignations effective only days before their terms end next January.

However, in an interesting twist, a majority of the court said they thought the challengers seeking to force an election for the seats instead of allowing the gubernatorial appointment had a case, but that in these instances, the court was forced to reject their arguments

for procedural or technical reasons.

Those circuit races are in the Seventh, 10th, and 12th circuits. Judge Joseph Will resigned in the Seventh Circuit and Judge Scott Brownell resigned in the 12th Circuit, both effective December 28, a few days before their terms would normally have ended. Tenth Circuit Judge Olin Shinholser resigned effective December 26.

Elizabeth Boyle sought to run for the 12th Circuit seat; Michael Lambert wanted the Seventh Circuit vacancy; and Steve Pincket tried to file for the 10th Circuit seat.

In separate orders issued on June 3, the court granted the petition filed by Gregg S. Lerman and Thomas Baker to stop the JNC process in Palm Beach County and Scott from appointing a successor to Judge Laura Johnson, who ran unopposed for a circuit judgeship. Her resignation is effective the last day of her term.

The Supreme Court said its previous opinions and rulings have "specifically determined that Section 99.012 [the resign-to-run law] Florida Statutes, is an exception to the Governor's power of appointment in the context of judicial vacancies. See In re Advisory Op. to Governor, 276 So. 2d 25, 26 (Fla. 1973); Spector v. Glisson, 305 So. 2d 111, 782-83 (Fla. 1974) (noting that Section 99.012 is a restriction on the governor's power of appointment); see also In re Advisory Op. of Governor Request of September 6, 1974, 301 So. 2d4,6-7 (Fla. 1974)(noting Section 99.012 as an exception to the appointment process because 'the effective date of the vacancy coincided with the commencement of the terms of other judicial officers elected during the same elective process')."

In Spector v. Glisson, the court 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.... We feel that it necessarily follows from this consistent view and steadfast public policy of this state as expressed above, that 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."

The court ordered the Palm Beach County Supervisor of Elections to conduct an election for the seat being vacated by Judge Johnson and to accept additional candidates between June 6 and June 10. (One more candidate, Dana M. Santino, filed.)

Chief Justice Jorge Labarga and Justices Barbara Pariente, Fred Lewis, Peggy Quince, and James Perry concurred in that finding; Justices Charles Canady and Ricky Polston concurred in the result.

In the three circuit court cases, two of the prospective candidates sought writs of mandamus, and one sought a writ of quo warranto. In those cases, Labarga, Canady, and Polston concurred in the orders dismissing the cases. Pariente, joined by Quince and Perry, concurred with a separate opinion, and Lewis also concurred with an opinion.

In the mandamus cases, the justices said that is used to enforce a right "already clearly and certainly established in the law," and in these cases no such right existed for the candidates to be able to run for the seats being vacated. In the quo warranto case, the court merely denied the petition.

Pariente, in virtually identical opinions in all three cases, noted the only case on point is Trotti v. Detzner, 147 So. 3d 641 (Fla 1st DCA 2014) held that even a one-day gap between the effective date of the judge's resignation and the start of the new term complied with the requirements of the Florida Constitution that allows the governor to fill judicial vacancies.

"I do not agree that the decision of the First District Court of Appeal is faithful to the true purpose of the Florida Constitution and the voters' preference for election of their circuit and county court judges," Pariente wrote. "As Judge [Philip] Padovano, dissenting from the majority's opinion in Trotti, stated, the 'effect of the court's decision is to bestow upon an individual judge the power to block an election by resigning just short of the end of his or her term in office.'"

She added: "If this case were before us on the merits to decide the constitutional question and we were thus not constrained by the narrow scope of mandamus relief, I would adopt the reasoning of Judge Padovano's dissent. In my view, it is most consistent with the intent of our constitution and our citizens that favor election of circuit and county court judges over the appointment process."

Some of the resigning judges made it clear their actions were taken specifically to allow their replacement to be selected by the governor instead of voters, Pariente wrote.

Lewis, in his opinion, said he would apply Spector v. Glisson to the cases if he were starting with a fresh slate without being bound by the strictures of the quo warranto or mandamus process.

"Tellingly, our constitution vests each judicial circuit the opportunity to vote to replace the election of trial judges with merit selection and retention .... Without fail, a majority of the citizens of every jurisdiction have voted to reject merit selection and retention of their trial judges every time such an opportunity has been presented. It therefore defies both logic and common sense that an elected judge in the last year of a term could unilaterally effect such a change by simply resigning before the statutory qualifying period with an effective date just days before the end of the term," Lewis wrote.

He added, "While I may even agree that the merit selection and retention of judges is far superior to the election of judges, the citizens of Florida clearly disagree. Thus, it is truly a sad day for Floridians when their trial court judges may manipulate the electoral process and prioritize their personal preferences over those espoused in the very constitution they swore to defend."

Padovano, who has retired from the First DCA, represented the three circuit court candidates in those cases and had mixed feelings about the rulings.

"We're disappointed by the ruling. I was trying to get relief in these three cases, not just to make the larger point about election law. Of course, we didn't succeed in that," he said. "I am encouraged by the fact there were four justices who view that the Trotti decision was improperly decided, and Justice Lewis said he would apply the Spector case."

While the court rejected the mandamus and quo warranto approaches, Padovano said he thought the justices had the authority to act in those cases. They did indicate a declaratory action would be heard, but he said that would likely take too long and the election would be over before the prospective candidate got a final answer.

Nonetheless, he thinks the outcome may have an effect on future such resignations that involve what he called a "nominal" instead of actual vacancy of the office.

"I'm hopeful that it will discourage judges from resigning in this way," he said.

By Gary Blankenship

Senior Editor
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Title Annotation:Florida Supreme Court
Author:Blankenship, Gary
Publication:Florida Bar News
Geographic Code:1U5FL
Date:Jul 1, 2016
Words:1354
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