Let Floridians elect their own judges

As the people who most deal with the judicial system, lawyers generally prefer judges be appointed rather than elected, believing it leads to a better bench. But that’s not what the voters want.

When the question was put to Floridians in 2000, all 67 counties and all 20 circuits voted no — overwhelmingly so. Disapproval ranged from 61 percent in Broward to 81 percent in Baker County.

The vote ought to have settled it, but some retiring judges have been exploiting an ambiguity in the Constitution to deprive the people of the right to elect their successors.

They do so by sending Gov. Rick Scott a resignation to be effective many months later, usually with only a few days left on their term. His secretary of state, Ken Detzner, then cancels the scheduled election — sometimes after candidates already have filed — and Scott appoints a new judge after receiving names from the nominating commission.

For reasons that defy common sense, the First District Court of Appeal and the Supreme Court went along with this subterfuge in the last two election cycles. This year, the district court was poised to do so again. On Scott’s appeal, it suspended a trial judge’s preliminary injunction that restored an election and barred the governor from filling an impending vacancy in the Jacksonvillebased Fourth Circuit.

Two weeks ago, however, the Supreme Court overruled the district court and restored the injunction issued by Circuit Judge Charles Dodson in Tallahassee. The vote was 4-3, with the court’s liberal justices forming the majority. No written opinion was issued, but none was necessary because it wasn’t the final action in the case. Two years ago, however, three of the four justices expressed disapproval of the resignation scam, even though they felt bound by precedent to allow it.

In this case, Dodson found a different circumstance. The retiring circuit judge, Robert Foster of Nassau County, was ineligible to seek re-election on account of Florida’s mandatory retirement age of 70. Therefore, “no notice of resignation was required” and the appointment process, in his case, was “artificial.” That was a polite way to put it. Foster reportedly wanted to maximize the chance that his successor would come from Nassau County, rather than from Clay or much larger Duval, which round out the circuit. But the Constitution contemplates no such preferences.

“The right of our citizens to vote, as specifically provided for in the Constitution with regard to election of our trial judges, is sacred,” Dodson wrote.

His order quoted what Supreme Court Justice Fred Lewis had written in a 2016 case:

“It is truly a sad day for Floridians when their trial court judges may manipulate the electoral process and prioritize their personal preferences over those espoused in the very Constitution they swore to defend.”

“This is a situation much too capable of being repeated,” Dodson warned.

Indeed, it almost surely will be repeated unless the Supreme Court puts a stop to it. Currently, a circuit judge in Sarasota has handed Scott another contrived vacancy.

As Dodson’s order was not a final ruling on the merits, it could still be undone on appeal and voters could still be short-changed whenever some retiring judge disagrees with the people’s right to vote.

For the moment, however, the situation is ironic. When Detzner shut down the election process with one day left in the qualifying period, David Trotti, a Jacksonville lawyer, was the only person to have filed for Foster’s seat.

The ruling gives Trotti the judgeship by default, unless something happens to change that. He’s the plaintiff, so far successful, in the lawsuit.

Trotti certainly deserves credit for persistence. When the same thing happened to him four years ago, he sued and lost his case. Two years ago, he ran for an open seat and lost.

It is surely too late to reopen qualifying for Foster’s seat. But for Trotti to get it by default would be preferable to leaving the basic issues unresolved.

In the long run, there needs to be a permanent stop to the judicial appointment ploy. A constitutional amendment is appropriate, but in the meantime the Supreme Court should use its constitutional authority over the judiciary to forbid judges from insulting the voters in such a way.

If a retiring judge wants to retire early, so be it. But make the resignation effective the day it’s sent to the governor, not months later.

The governor, who’s a candidate for the U.S. Senate, may want to consider this: The Fourth Circuit vote in that 2000 referendum went 69 percent against appointing trial judges. Does the governor really want to offend those voters?