Litigation Law

How We Select Our Judges

By: Clark, Campbell, Lancaster & Munson, P.A.

Q: Polk County has recently seen judges appointed by governor and elected by the people. What is the process for judicial appointments, elections, and resignations?

A: The short but problematic answer is that trial court judges are elected by the people unless a vacancy arises (by resignation, by a judge being elevated to another court, or otherwise). This answer is problematic, because courts continue to grapple with how and when judicial resignations create a gubernatorial power of appointment.

For example, in March, Jacksonville’s Judge Donald R. Moran, Jr. tendered a letter of resignation to the governor, effective one business day prior to the end of the judge’s term this coming January. Days later, the Secretary of State received the first candidate submission. Once the governor accepted the resignation, however, the Division of Elections advised the candidate that the position would be filled by appointment rather than election, because the judge was resigning.

The timing of the letter and effective date were important. If the date the resignation letter is accepted by the governor predates the election process (i.e. candidate submissions), regardless of whether the effective date is later, the position is filled by the governor; otherwise, the election process continues. According to a 1970s Florida Supreme Court decision, however, if the judge resigns effective as of the end of his term, creating no actual vacancy, Florida favors elections.

An appeals court last month held that, even though the effective date of Judge Moran’s resignation created only a single business day of vacancy, there was no clear right to an election. The court’s Judge Philip J. Padovano, in dissent, expressed concern that such a ruling creates the potential for abuse; specifically, a judge could give the governor appointment power by resigning effective just hours before the end of his term or could strip the governor of that power by refusing to formally announce resignation until after the election process begins.

Above, I refer to how trial court judges get on the bench. Florida has also has an intermediary “court of appeals” and a “supreme court”. Judges on those benches are appointed by the governor after a nominating commission provides the governor with suggested candidates. Appeals and Supreme Court judges, like other judges in Florida, typically serve six-year terms and must go through a retention election process at the end of each term.

The October 23rd edition of “The Law” will address the sometimes confusing HOA covenants and restrictions.

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