Florida Supreme Court orders judicial opening to be decided by voters

In a stunning rebuke to Gov. Rick Scott’s attempt to expand his powers to fill judicial vacancies, the Florida Supreme Court on Friday said he can’t appoint a new Palm Beach County judge, setting the stage for voters to pick a new jurist at an Aug. 30 election.

The ruling was short and quick. It took the high court less than three days after receiving final written motions from two candidates for the seat to decide the issue. And, it took the court slightly more than a page to explain why voters, not Scott, get to pick a replacement for County Court Judge Laura Johnson, who resigned to seek a circuit court judgeship but will remain in her current post until Jan. 3.

While steeped in legal jargon, the decision refers to a 43-year-old advisory opinion that emphasized that the state Constitution favors elections over judicial appointments. The court also cited a 42-year-old opinion that found that the governor’s constitutional power to fill judicial vacancies is limited by the state’s decades-old resign-to-run law.

“While it is true that the Constitution has been amended in some respects since those decisions were rendered, the logic of those decisions still controls,” the court wrote in a unanimous ruling.

Because of the uncertainty surrounding the election, as part of its decision, the court ordered Palm Beach County Elections Supervisor Susan Bucher to hold a special qualifying period for anyone interested in running for Johnson’s seat. The qualifying period runs from noon Monday until noon Friday.

Attorney Gregg Lerman, who challenged Scott’s plans to select Johnson’s replacement after he and former county Magistrate Thomas Baker filed papers to run for it, applauded the ruling.

“We were proven correct and the governor was proven wrong,” he said. His lawyer, Leonard Feuer, and attorneys representing Baker filed dozens of papers to persuade the high court to reject arguments from Scott’s lawyers and block Scott from making the appointment.

But, Lerman said, the debate boiled down to a simple question: Do voters get to decide?

“That’s what they’re preserving,” Lerman said.

Baker, who joined Lerman’s lawsuit, agreed. “It’s obvious that the Supreme Court wanted the people of Palm Beach County to choose who they want to be a judge,” he said.

An attorney representing the governor declined comment. The governor’s press office didn’t respond to an email.

But Friday wasn’t a total loss for Scott. In a more far-reaching ruling, the Supreme Court agreed he could appoint three circuit judges elsewhere in the state. While opponents sued, claiming the sitting judges were gaming the system by announcing they would step down in December, before their terms ended in January, the high court ruled that their early resignations created vacancies that Scott, not voters, should fill.

While supporting the opinion, Justices Barbara Pariente, Peggy Quince, James E.C. Perry and R. Fred Lewis joined a separate opinion saying that the outgoing circuit judges used the process to ensure that their successors would be appointed and not elected.

There was a key difference between the circuit court case and the one involving Johnson. The three circuit judges decided to leave office a month before their terms expired. Johnson, meanwhile, resigned under rules of the state’s resign-to-run law. Under that law, she had to resign 10 days before the qualifying period began.

In court papers, Scott’s attorneys argued that the state’s resign-to-run law can’t trump the Constitution, which gives the governor the power to fill judicial vacancies. Since Johnson resigned on April 18, she created a vacancy which the Republican governor is legally empowered to fill, they argued.

However, attorneys representing Lerman and Baker countered that her resignation didn’t create a vacancy. She made her resignation effective Jan. 3 — the date her replacement would be sworn in.

Johnson automatically was elected to the circuit bench when no one else filed to run for the seat now held by Circuit Judge Jack Cox. Lerman and Baker filed to run for her county court seat when Bucher agreed that it appeared the post should be filled by voters.

While they could face additional opponents, both Baker and Lerman said they were glad the issue was resolved.

“I think we’re both excited to get on with the campaign without a black cloud hanging over us,” Lerman said.

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