Florida’s fight over filling a judicial vacancy

A curiously timed judicial retirement in Florida has spurred a lawsuit and a debate over whether the vacancy should be filled by the governor or the voters.

Robert Foster, a trial judge on the state’s Fourth Judicial Circuit, was expected to retire on January 7, 2019–the last day of his term. (Foster will have reached the state’s mandatory retirement age.) In April, however, Foster informed Governor Rick Scott that he will take retirement one week earlier, on December 31.

That one week makes a big difference. Normally when a Florida judge leaves on the final day of the term, his seat is filled by popular election. But the governor interpreted the December 31 retirement to be an “early” retirement, which would allow him to fill the seat by gubernatorial appointment. In early May, the Fourth Judicial Circuit’s Judicial Nominating Commission announced the vacancy and invited applications.

That triggered a lawsuit from David Trotti, a local lawyer who wants to run for Foster’s seat, and who argues that the position should be filled by election. Trotti claims that retiring just a few days before the end of the term creates an “artificial” vacancy, which should not trigger a gubernatorial appointment. The Circuit Judge overseeing the case agreed with Trotti, but the case is now on appeal, with no clear resolution in sight.

Regular readers know that I am no fan of judicial elections. But Trotti seems to have the better of the argument here. Allowing a gubernatorial appointment under these circumstances would invite future judges and governors to game the timing of retirements. It would be better, I think, to set a hard date for retirements, before which the position is filled by appointment and after which it is filled by general election.

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