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State v. Trotti

Florida Court of Appeals, First District

July 26, 2018

Rick Scott, in his official capacity as Governor of the State of Florida, and Ken Detzner, in his official capacity as Secretary of State of the State of Florida, Appellants,
v.
David P. Trotti, an individual, Appellee.

         Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.

          On appeal from the Circuit Court for Leon County. Charles W. Dodson, Judge.

          Daniel E. Nordby, General Counsel, and Meredith L. Sasso, Chief Deputy General Counsel, Executive Office of the Governor, Tallahassee; David A. Fugett, General Counsel, and Jesse C. Dyer, Assistant General Counsel, Department of State, Tallahassee, for Appellants.

          Robert J. Slama of Robert J. Slama, P.A., Jacksonville; Nicholas A. James, Jacksonville; Steven L. Brannock and Joseph T. Eagleton of Brannock & Humphries, Tampa, for Appellee; David P. Trotti, pro se, of David P. Trotti, P.A., Jacksonville, Appellee.

          ROBERTS, J.

         The appellants, Governor Rick Scott and Secretary of State Ken Detzner, seek review of an order from the Second Judicial Circuit granting a motion for a preliminary injunction in favor of the appellee, David P. Trotti. They argue the circuit court erred in granting injunctive relief where Mr. Trotti could not demonstrate a substantial likelihood of success on the merits in light of this Court's binding precedent in Trotti v. Detzner, 147 So.3d 641 (Fla. 1st DCA 2014) (Trotti I). They further argue that Mr. Trotti failed to demonstrate that the injunction would serve the public interest. We agree with the appellants and reverse the order on appeal.[1]

         Facts

         On April 2, 2018, Fourth Judicial Circuit Judge Robert M. Foster tendered a letter of resignation to Governor Scott conveying his last day in office would be December 31, 2018, one week (four business days) before his term would expire on January 7, 2019.[2]Having reached the age of seventy, Judge Foster was only eligible to finish out his term and could not seek re-election.[3] On April 23, 2018, Governor Scott accepted Judge Foster's resignation. One week later, on April 30, 2018, the statutory qualifying period for election of circuit court judges began.[4] On May 3, 2018, one day before the qualifying period was to conclude, Mr. Trotti delivered his qualifying paperwork to run for Judge Foster's seat. Notably, Mr. Trotti was the only candidate who submitted qualifying paperwork for the office of Circuit Judge, Fourth Judicial Circuit, Group 6. The Division of Elections preliminarily determined Mr. Trotti was a qualified candidate, but promptly notified Mr. Trotti that the judicial seat for which he sought to qualify was not a seat that would be filled by election.

         Mr. Trotti filed a declaratory judgment in the Second Judicial Circuit Court seeking a declaration that the judicial vacancy at issue must be filled by election, not appointment. Mr. Trotti also filed a verified motion for ex parte injunctive relief seeking to enjoin Governor Scott from filling the judicial vacancy at issue by appointment and to enjoin Secretary Detzner from removing Mr. Trotti from the August 28, 2018, election ballot.

         This familiar fact pattern revives the issue of election versus appointment that this Court decided less than four years ago in Trotti I after Mr. Trotti attempted to qualify for another judicial seat in the Fourth Judicial Circuit, that of Judge Donald R. Moran, Jr.

         Trotti I

         In March 2014, Judge Moran tendered a letter of resignation with an effective date of January 2, 2015, three days (one business day) before his term would expire on January 5, 2015. On April 10, 2014, Governor Scott accepted the resignation. In the interim, Mr. Trotti had submitted preliminary paperwork to qualify for the vacancy, but the statutory qualifying period for the seat did not begin until April 28, 2014. After Mr. Trotti was informed that the judicial vacancy would be filled by appointment, he filed an emergency petition for mandamus relief, which was denied by the lower court. Trotti I, 147 So.3d at 642-43.

         We affirmed the order denying mandamus relief, determining the judicial vacancy occurred when Governor Scott accepted Judge Moran's resignation before the commencement of the qualifying period; therefore, the vacancy had to be filled by appointment. Id. at 644. We expressly rejected Mr. Trotti's arguments premised upon Spector v. Glisson, 305 So.2d 777 (Fla. 1974), holding,

Here, the vacancy created by Judge Moran's resignation occurred before the qualifying period, and a physical vacancy will occur during his term such that the vacancy must be filled by gubernatorial appointment. While the dissent may eschew a bright-line test, we cannot engage in a determination of what does or does not constitute an unreasonable vacancy warranting an appointment. If we were to interpret the case law as the dissent suggests and find that an election was required here when the election process had not yet begun, we would be nullifying the Governor's power of appointment in Article V, section 11(b), of the Constitution in post-election process resignations and ...

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