Brannock & Humphries Blocks Florida Governor From Making Judicial Appointment

For the second time in less than a month, Brannock & Humphries convinced the Florida Supreme Court to stop Governor Rick Scott from filling a seat on the Fourth Judicial Circuit until the conclusion of ongoing litigation over whether that seat should instead be filled by an election.

The case, involving Jacksonville attorney David Trotti, stems from a loophole in Florida law that has been interpreted to allow trial judges to convert the selection of their successors from elections into gubernatorial appointments by setting their resignations far in the future while they continue serving virtually all of their remaining terms in office.  The Fourth Circuit seat at issue is currently held by Judge Robert M. Foster, who faces mandatory retirement in January and is ineligible to run for reelection.  If Judge Foster had simply served the remainder of his term, the seat would be filled by the voters in Duval County during the 2018 election.  Instead, back in April, Judge Foster prospectively “resigned,” effective four business days prior to the end of his term, ostensibly clearing the way for Governor Scott to make an appointment.

Mr. Trotti, who had filed qualifying papers to run for election to the seat, challenged the Governor’s power to select Judge Foster’s successor.  The trial court ruled in Mr. Trotti’s favor, but the Governor appealed and obtained a stay of the trial court’s ruling from the First District Court of Appeal.  That cleared the way for an appointment until, at Brannock & Humphries’ urging, the Florida Supreme Court stepped in and reinstated the trial court’s ruling pending the outcome of Governor Scott’s appeal.  When the First District later reversed the trial court, Brannock & Humphries again implored the Supreme Court to hit the pause button.  Today, the Supreme Court did just that, granting Mr. Trotti’s second request and preventing an appointment until the Supreme Court itself has an opportunity to review the First District’s decision and resolve the constitutional debate over whether judicial vacancies like the one created by Judge Foster’s resignation should be filled by elections or by appointments.