Martin DyckmanSuppose that Gov. Rick Scott cancelled an election and announced that he, not the voters, would select their new state senator or representative.
That hasn’t happened–yet.
But something of the same nature is happening with a circuit judgeship in Jacksonville. It doesn’t pass the smell test either.
The six-year term of Donald Moran, presently the chief judge of the Fourth Circuit, is expiring. He said he would retire, and David P. Trotti, a Jacksonville lawyer, filed candidacy papers for the seat on April 1. Secretary of State Ken Detzner accepted them.
But Moran contrived to have Scott appoint his successor. He submitted a resignation to be effective nine months later, on Jan. 2, 2015, the last day of his term.
“I believe with this notice that the judgeship I am resigning from should be filled by appointment,” Moran wrote to Scott.
Detzner’s Division of Elections tried twice to talk Trotti into switching to a different seat, which would have meant a three-way race or opposing an incumbent. Then an email told him that Scott would appoint Moran’s successor and the seat would not be on the ballot.
Detzner works for Scott.
Trotti is asking the state Supreme Court to overrule Detzner and order the election restored.
In a reasonable world, that would be an easy and right decision.
But the Supreme Court has ruled both ways in related cases. “The Constitution does not provide a perfect answer,” it remarked in 2006 when it let Gov. Jeb Bush replace a judge who had resigned after the qualifying period.
In that case, the seat would have been vacant for more than six months. Moran, however, will remain on the bench until the last 24 hours of his term.
The problem is that the people who wrote the pertinent part of the Constitution didn’t anticipate anyone gaming the system like that. The appointment provision was meant for actual vacancies, not gimmicks.
When a vacancy occurs on a trial court normally subject to election (appellate judges are all appointed), the governor must appoint someone to serve until the next general election more than a year later.
That would give Scott’s judge until 2016 before facing election, but in effect it could be an appointment for life. Twelve Fourth Circuit judges are unopposed for re-election this year. The only competition is for an open seat.
The court’s decision may turn on picayune technicalities such as whether Moran’s prospective vacancy was created before or after the filing period began. He sent the letter before then, but Scott didn’t accept the resignation until after Trotti had qualified for the ballot.
However the court parses that, it needs to keep several realities in mind:
–Its own 1974 precedent saying an election should fill any available office “if it is not expressly precluded by the applicable language.” In that case, the court denied Gov. Reubin Askew the opportunity to appoint a Supreme Court justice.
–A ruling for Scott, according to Trotti’s petition, would mean that no judge could announce an end-of-term retirement without forfeiting the public’s right to elect his or her successor.
–Voters in the Fourth Circuit, as elsewhere in Florida, voted overwhelmingly against having the governor appoint all their trial judges when the question was put to them 14 years ago.
In theory and often in practice, appointment is the best way to select judges. Election is invariably the worst. Judges are supposed to be above politics.
But Florida’s practice has become corrupted by politics. The independent judicial nominating commissions that Askew established in 1971 were perverted 30 years later when the Legislature made them into tools of the governors. Scott is manipulating them so that any judge he appoints will be a right-wing ideologue like him.
If the court rules for Trotti and doesn’t reopen qualifying, he’ll get the seat by default. So be it. A Scott appointment would be worse.
Once again, Florida is suffering the consequences of letting political hacks oversee elections. In 2000, an elected secretary of state, Katherine Harris, made a travesty of the presidential count. Under Scott, appointed secretary Detzner is to voting rights as the fox is to the henhouse.
Florida deserves an independent, professional elections office. That ought to be high on the agenda of the next Constitution Revision Commission in 2017. It bears keeping in mind that the governor elected this year will appoint nearly half its members, including the chair.
Martin Dyckman is a retired associate editor of the St. Petersburg Times. He lives near Waynesville, North Carolina. Column courtesy of Context Florida.
