Scott Fights to Appoint Judges Instead of Letting Voters Decide

Jun 12, 2016 by

Under our system of government, we value the concept of three separate but equal branches of government—the legislative, judicial and executive—and the principle that all political power is inherent in the people.

The executive and legislative branches should not hold great sway over the judicial branch but sometimes try. The courts can rule on the constitutionality of a legislative or executive action but only if legally challenged.

That’s what just happened at the Florida Supreme Court over whether Florida Gov. Rick Scott has the authority to appoint replacements for four judges who recently submitted resignation letters or if voters should decide in the August election.

While I find it preferable for judicial selections to be decided by voters to the greatest extent possible, unfortunately our laws on judicial appointments allow for a little gamesmanship. Perhaps the appointment process affords a more thorough review, but it also could lead to more partisanship and influence over the courts.

Here’s some background:

Article V, Section 11 of the Florida Constitution speaks to the process used to fill a vacancy in a judicial office. The relevant portion states: “The governor shall fill each vacancy on a circuit court or on a county court, wherein the judges are elected by a majority vote of the electors, by appointing for a term ending on the first Tuesday after the first Monday in January of the year following the next primary and general election occurring at least one year after the date of appointment…”

The key word in this constitutional language is vacancy. The intent is to fill seats by appointment if it couldn’t be done timely by election.

There is also statutory language at play. Florida has a “resign to run” law found in Florida Statutes 99.012. To qualify to run for another office, the elected or appointed official must resign from the current office under the following terms:

The resignation is irrevocable. The written resignation must be submitted at least 10 days prior to the first day of qualifying for the office he or she intends to seek.

The resignation must be effective no later than the earlier of the following dates:
the date the officer would take office, if elected; or the date the officer’s successor is required to take office.

Palm Beach County Judge Laura Johnson decided to run for a seat on the Circuit Court. Johnson sent her irrevocable written resignation letter on April 18—prior to the qualifying period for those seeking office. It was to take effect January 3, the day her successor would take office. In short, she complied with all of the terms of the “resign to run” law.

Defense attorney Gregg Lerman was one of several candidates intending to run for Johnson’s seat. He filed the required paperwork. Secretary of State Ken Detzner instructed Palm Beach County Supervisor of Elections Susan Bucher not to accept candidate paperwork since Scott was going to fill the seat by appointment. Bucher believed the seat should be decided by election and accepted the paperwork.

Scott and Detzner did not back off. Lerman petitioned the court, challenging Scott’s legal authority to stop an election and appoint Johnson’s replacement. In a unanimous decision, the court sided with Lerman by ruling that voters would elect Johnson’s replacement.

In this case, there was no vacancy—Johnson’s resignation was in compliance with the state’s “resign to run” law and her departure date was the same day her successor would have started.

Three other petitions were filed involving the resignations of three circuit court judges who were not seeking other offices. The “resign to run” law did not apply to them. These didn’t bode as well for the voters.

The judges in the 7th, 10th and 12th judicial circuits sent resignation letters prior to the qualifying period—in time for candidates to run. But they strategically listed the effective date several days before elected successors would have taken office. By leaving before the swearing-in date of January 3rd, they deliberately created a vacancy and ensured that Scott would appoint their replacements.

The Florida Supreme Court had no choice but to rule in Scott’s favor, allowing him to fill the circuit court positions.

Four of the justices acknowledged that the outgoing judges manipulated the system. By resigning days before their terms ended, they denied candidates the opportunity to run and the voters the right to choose.

Did they do it on their own or were they asked to do so? Perhaps we should change the definition of vacancy through a constitutional amendment to restore political power to the people.

Paula Dockery is a syndicated columnist who served in the Florida Legislature for 16 years as a Republican from Lakeland. She can be reached at

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