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,
David P. Trotti, an individual, Appellee.
final until disposition of any timely and authorized motion
under Fla. R. App. P. 9.330 or 9.331.
appeal from the Circuit Court for Leon County. Charles W.
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.
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.,
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.
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.Having reached the age of seventy, Judge
Foster was only eligible to finish out his term and could not
seek re-election. 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. 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.
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.
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.
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.
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