Scott v. Trotti

283 So.3d 340

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,

v.David P. TROTTI, an individual, Appellee.

No. 1D18-2387

District Court of Appeal of Florida, First District.

July 26, 2018

Daniel 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.

Robert 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., Jacksonville, Appellee.

Roberts, J.

The 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.¹

Facts

On 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, 2019.² Having reached the age of seventy, Judge Foster was only eligible to finish out his term and could not seek re-election.³ 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.⁴ 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.

Mr. 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.

This 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.

Trotti I

In 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.

We 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 pre-election process resignations. Stated otherwise, we would be allowing the limited exception created by Spector to swallow Article V, section 11(b), of the Constitution.

Id. at 645.

Mr. Trotti appealed our decision to the Florida Supreme Court, which denied review. Trotti v. Detzner , 157 So.3d 1051 (Fla. 2014).

The Order on Appeal

Without distinguishing the facts in the instant case from the facts in Trotti I , the circuit court disregarded our binding precedent in Trotti I and granted Mr. Trotti's preliminary injunction, effective immediately.⁵ This was error for several reasons.

The Circuit Court Erred in Granting Injunctive Relief

A preliminary injunction is an "extraordinary remedy that should be granted sparingly." State, Dep't of Health v. Bayfront HMA Med. Ctr., LLC , 236 So.3d 466, 472 (Fla. 1st DCA 2018) (citing Sch. Bd. of Hernando Cty. v. Rhea , 213 So.3d 1032, 1040 (Fla. 1st DCA 2017) ). To obtain a preliminary injunction, the movant must prove: (1) a substantial likelihood of success on the merits, (2) a lack of an adequate remedy at law, (3) the likelihood of irreparable harm absent the entry of an injunction, and (4) that injunctive relief will serve the public interest. Id. If the movant fails to prove any of these requirements, the motion must be denied. Id.

Mr. Trotti Did Not Establish a Substantial Likelihood of Success on the Merits

"A substantial likelihood of success on the merits is shown if good reasons for anticipating the result are demonstrated. It is not enough that a merely colorable claim is advanced." City of Jacksonville v. Naegle Outdoor Advertising Co. , 634 So.2d 750, 753 (Fla. 1st DCA 1994). Trotti I is binding precedent that the circuit court was obligated to follow. Yet, the circuit court, aligning itself with non-binding unpublished concurring opinions, believed that this case was controlled by Spector . This was error.

The Circuit Court was Required to Follow Trotti I

The circuit court did not find Trotti I distinguishable from the instant case, nor do we. Mr. Trotti argues that the instant case is distinguishable because Judge Foster faced mandatory retirement, thus the vacancy was a "known vacancy" that was simply waiting to be filled by the election process. Mr. Trotti argues that Judge Foster's motives in tendering a letter of resignation when he faced mandatory retirement were a flagrant disregard of the election process such that we should be even more compelled to apply Spector to this case. As we stated in Trotti I , we decline to engage in an analysis of subjective factors such as unreasonableness of an impending vacancy or, in this case, Judge Foster's motivation to resign.

Under Mr. Trotti's logic, and the logic of the dissent in Trotti I , a reviewing court would have to analyze a resigning judge's subjective intent in the hopes of determining whether the resignation was a matter of political gamesmanship. Is resigning with five days left in a term gamesmanship? What about two weeks? Or two months? And what about the judge's motivation to resign? Should it matter if the vacancy was created because the judge wanted to create a vacancy filled by appointment? What if a vacancy occurred because the judge was going on a cruise or elected to have a medical procedure? Such an analysis of subjective factors poses a slippery slope that, in our opinion, is avoidable under the plain language of the Florida Constitution and the case law interpreting it.

The bright-line rule we applied in Trotti I , derived from the language of the Florida Constitution, allows a reviewing court to apply neutral principles to evaluate objective facts. See Advisory Op. to the Gov. Re Appointment or Election of Judges , 983 So.2d 526, 530 (Fla. 2008) (advocating the "definitive" and "practical" answer that the election process commenced on a fixed date rather than a "fluctuating" date that would be based on "variable" factors and would "inject uncertainty" into the process). These neutral principles will apply no matter who the Governor is or what the current political climate looks like.

The opinion in Trotti I is directly on point. When a resignation is tendered with a future effective date, the vacancy is deemed to occur when the Governor accepts the resignation. Trotti I , 147 So.3d at 644 (citing In re Advisory Op. to the Gov. (Judicial Vacancies) , 600 So.2d 460, 462 (Fla. 1992) ). When a circuit court vacancy occurs before the commencement of the election process, the Governor shall fill each circuit court vacancy by appointment. See Trotti I , 147 So.3d at 643-44 ; In re Advisory Op. to the Gov. re Sheriff & Judicial Vacancies Due to Resignations , 928 So.2d 1218, 1220-21 (Fla. 2006) ; Art. V, § 11(b), Fla. Const.

Like the facts in Trotti I , the facts of this case fall under the bright-line rule: Governor Scott accepted Judge Foster's resignation before the start of the qualifying period; therefore, the judicial vacancy had to be filled by appointment rather than by election. Because this Court...