                                     IN THE DISTRICT COURT OF APPEAL
                                     FIRST DISTRICT, STATE OF FLORIDA

DAVID P. TROTTI,                     NOT FINAL UNTIL TIME EXPIRES TO
                                     FILE MOTION FOR REHEARING AND
      Appellant,                     DISPOSITION THEREOF IF FILED

v.                                   CASE NO. 1D14-3667

KEN DETZNER, SECRETARY
OF STATE,

      Appellee.

_____________________________/

Opinion filed September 17, 2014.

An appeal from the Circuit Court for Leon County.
George S. Reynolds, III, Judge.

David P. Trotti, pro se; Nick James and Christopher W. LoBianco of Hunt, Green
& James, Jacksonville, for Appellant.

J. Andrew Atkinson, General Counsel, Ashley E. Davis and Thomas D. Winokur,
Assistant General Counsels, Tallahassee, for Appellee.

John S. Mills and Andrew D. Manko of The Mills Firm, Tallahassee, for
Intervener, Bruce R. Anderson, Jr.


ROBERTS, J.,

      The appellant, David Trotti, seeks review of an order of the Second Judicial

Circuit in and for Leon County that denied his emergency petition for writ of

mandamus, which sought to compel the appellee Secretary of State (the Secretary)
to accept his qualifying papers for a judicial vacancy in Group 12 of the Fourth

Judicial Circuit Court. 1 On appeal, the appellant argues that the circuit court erred

in holding that the judicial seat should be filled by gubernatorial appointment

rather than by election. We disagree and affirm.

      The judicial seat at issue here is currently occupied by Circuit Judge Donald

R. Moran, Jr. On March 26, 2014, Judge Moran tendered a letter of resignation to

Governor Rick Scott in which he wrote that his resignation was to be “effective the

last day of my term in January 2015.” On March 31, 2014, Judge Moran sent a

second letter to Governor Scott clarifying that his specific date of resignation was

to be Friday, January 2, 2015. January 2, 2015, is three calendar days (one

business day) before Judge Moran’s term was due to expire on January 5, 2015.

See Art. V. §10(b)(3)b., Fla. Const.; § 100.041(4), Fla. Stat. (2014).

      On April 2, 2014, the appellant filed a Form DS-DE 9 with the Division of

Elections (the Division) indicating his intention to run for election for the seat at

issue. 2 On April 3, 2014, the Division acknowledged receipt of the appellant’s

paperwork and placed him on the Division’s list of active candidates.            The

appellant was listed as a candidate for Group 12 on the Secretary’s website on


1
  Appellee Bruce Anderson, Jr., intervened in the case below. His relief requested
on appeal is moot in light of our disposition of the case.
2
  Form DS-DE 9 must be filed before a candidate may raise or spend campaign
funds, which can occur up to almost two years prior to the qualifying period for the
office sought. § 106.021(1)(a), Fla. Stat. (2014).
                                           2
April 3, 2014. Although the appellant filed his preliminary paperwork in early

April, the statutory qualifying period for the seat was set to begin at noon on April

28, 2014, and end at noon on May 2, 2014. See §§ 105.031(1), 100.061, &

100.032, Fla. Stat. (2014).

      On April 10, 2014, Governor Scott sent Judge Moran a letter accepting his

resignation. On April 25, 2014, the appellant received an email from the Division

informing him that Judge Moran had submitted his resignation and accordingly

Group 12 would be fulfilled by gubernatorial appointment rather than election.

The Division advised the appellant to withdraw his candidacy or apply for

candidacy in a different group.

      The appellant filed a petition for mandamus seeking to compel the Secretary

to accept his qualifying papers for Group 12 of the Fourth Judicial Circuit. 3 On

August 1, 2014, the circuit court entered an order denying the petition. The order

found that because Judge Moran resigned prior to the start of the qualifying period

and a physical vacancy would occur between the effective date of his resignation

and the start of the following term, his seat should be filled by gubernatorial

appointment. The court recognized the appellant’s reliance on Spector v. Glisson,

305 So. 2d 777 (1974), for the assertion that Florida law generally favors elections.


3
  The appellant’s petition was originally filed with the Florida Supreme Court,
who transferred the petition to the Leon County Circuit Court via order of June 2,
2014.
                                         3
However, the court found that Spector’s holding had been limited to a set of facts

in which “a judge resigns effective at a future date and no interim vacancy will

exist” between the effective resignation date and the start of the new term. See

Pincket v. Harris, 765 So. 2d 284, 287 (Fla. 1st DCA 2000) (citing In re Advisory

Op. to the Gov. (Judicial Vacancies), 600 So. 2d 460, 462 (Fla. 1992)). We affirm

the order denying mandamus relief.

       “Mandamus may not be used to establish the existence of a right, but only

to enforce a right already clearly and certainly established in the law.” Fla.

League of Cities v. Smith, 607 So. 2d 397, 400 (Fla. 1992) (emphasis added). The

appellant failed to show that the Secretary had a clear legal duty to accept his

qualifying papers and fees and qualify him for Group 12 in the 2014 election as the

law is clear that the vacancy created by Judge Moran’s resignation must be filled

by appointment.

      Article V, section 11(b), of the Florida Constitution vests the Governor with

the power to fill judicial vacancies via appointment:

      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, one of not fewer than three persons nor more than six
      persons nominated by the appropriate judicial nominating
      commission. An election shall be held to fill that judicial office for
      the term of office beginning at the end of the appointed term.

                                         4
      The Florida Supreme Court has provided that when a vacancy is created

prior to the commencement of the qualifying period, the vacancy is required to be

filled by gubernatorial appointment. See Advisory Op. to the Gov. re Sheriff &

Judicial Vacancies Due to Resignations, 928 So. 2d 1218, 1220-21 (Fla. 2006).

Whereas a vacancy that occurs after the election process begins should be filled by

election. See Advisory Op. to the Gov. re Judicial Vacancy Due to Resignation, 42

So. 3d 795, 797 (Fla. 2010) (“[W]hen a vacancy occurs in the county or circuit

courts before the qualifying period for the seat commences, the vacancy should be

filled by appointment, but once the election process begins, such vacancy should

be filled by election.”).

      Thus, the salient question to answer here is when the vacancy occurred in

relation to the election process.    A judicial vacancy occurs when a letter of

resignation is received and accepted by the Governor, even if the resignation, as

here, has a future effective date. See In re Advisory Op. to the Gov. (Judicial

Vacancies), 600 So. 2d 460, 462 (Fla. 1992) (“When a letter of resignation to be

effective at a later date is received and accepted [by the Governor], a vacancy in

that office occurs and actuates the process to fill it.”). See also Sheriff & Judicial

Vacancies, 928 So. 2d at 1220; Spector, 305 So. 2d at 780. Thus, when Governor

Scott accepted Judge Moran’s resignation on April 10, 2014, the vacancy occurred.

      “In order to promote consistency in the process of filling judicial vacancies,

                                          5
we identified the beginning of the statutory qualifying period as a fixed point to

mark the commencement of the election process.”          Advisory Op. to Gov. re

Judicial Vacancy Due to Resignation, 42 So. 3d at 797.          Here, the statutory

qualifying period was due to commence at noon on April 28, 2014, 18 days after

the vacancy occurred.    As the vacancy occurred before the qualifying period

commenced, the Secretary could not conduct a qualifying period because the

vacancy had to be filled by appointment. See Sheriff & Judicial Vacancies, 928

So. 2d at 1220-21.

      The appellant argues that underlying policy considerations should lead to an

interpretation favoring election unless the resulting vacancy is “unreasonable.” He

argues that the vacancy here – one business day or three calendar days – is not so

unreasonable as to require an appointment. In support he relies on Spector, 305

So. 2d at 784. In Spector, an incumbent judge resigned effective at the end of his

term, midnight on the last day, the qualifying period and election were available

after the resignation letter, and there was no emergency or public business

requiring an immediate appointment. Id. The Florida Supreme Court held that the

seat should be filled by election, recognizing that Florida law generally favors the

elective process:

      Interim appointments need only be made when there is no earlier,
      reasonably intervening elective process available. As between the
      appointive power on the one hand and the power of the people to elect
      on the other, the policy of the law is to afford the people priority, if
                                         6
      reasonably possible . . . if such policy is to be modified, let the people
      speak.

Id.

      In Pincket v. Harris, this Court recognized that Spector had been limited to

“situations in which a judge resigns effective at a future date and no interim

vacancy will exist.” 765 So. 2d at 287 (citing In re Advisory Op. to the Gov., 600

So. 2d at 462)). The appellant argues that Pincket relied on dicta from In re

Advisory Opinion to the Governor and that the spirit of the law should be read to

mean if a circuit court judge resigns prior to the qualifying period his seat shall be

filled by appointment unless his resignation is for a future date and no

unreasonable vacancy will occur

      We reject the appellant’s arguments inviting an analysis of the

reasonableness of the vacancy, which, as pointed out by the Secretary, would be

arbitrary and cannot constitute a duty that can be compelled by mandamus.

Deciding the election versus appointment question on the duration of the vacancy

created rather than on the interplay between the vacancy and the commencement of

the election process would result in inconsistent and confusing precedent. Cf.

Advisory Opinion to the Governor re Appointment or Election of Judges, 983 So.

2d 526, 530 (Fla. 2008) (“The determination of constitutional provisions should

not vary based upon fluctuations of the individual ‘election process’ for a given

year.”). Of further note, Advisory Opinion to the Governor re Appointment or
                                          7
Election of Judges answered the question of whether a judicial seat vacated by an

involuntary retirement during the qualifying period should be filled by

appointment, which would result in a vacancy of no more than 30 to 60 days, or by

election, which would leave the seat unoccupied for more than eight months. Id. at

527-28. The Florida Supreme Court held that because the vacancy occurred during

the qualifying period, the vacancy was to be filled by election. Id. at 529. The

supreme court focused on the fact that the election process had commenced

without regard for the void that would occur in the office. Id.

      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.

      The circuit court appropriately denied the petition for writ of mandamus

                                          8
because there is no clear right to qualify for candidacy for a seat that is required to

be filled by gubernatorial appointment.

      AFFIRMED.

SWANSON, J., CONCURS; PADOVANO, J., DISSENTS WITH OPINION.




                                          9
PADOVANO, J., dissenting.

      The majority has concluded that a judicial vacancy created by a resignation

tendered before the qualifying period for a general election but with an effective

date one day before the end of the judge’s term must be filled by a gubernatorial

appointment. With respect for my colleagues in the majority, I believe that this

decision is contrary to the applicable case law and the controlling provisions of the

Florida Constitution. Moreover, I believe that the precedent the court has set here

is one that will have a high potential for abuse. The effect of the court’s decision is

to bestow upon an individual judge the power to block an election by resigning just

short of the end of his or her term in office. I do not think this decision is required

as a matter of law, nor do I think that it is wise. For these reasons, I dissent.

      The rationale of the majority’s decision is that an appointment is required

because the resignation at issue was accepted before the start of the qualifying

period. On this point, I believe that majority has misconstrued the requirements of

Article X, section 3 and Article V, section 11(b) of the Florida Constitution. The

fallacy of the majority’s reasoning is that it fails to account for the fact that the

resignation was to take place at a distant point in the future. I acknowledge that the

Governor would have had a right under these constitutional provisions to appoint

Judge Moran’s successor had the resignation become effective immediately or

even if it had been scheduled to take place several months after the date of the

                                           10
resignation letter, as it ordinarily the case. But the problem here is that Judge

Moran continues to occupy the office even to this day. His resignation was to take

effect approximately eight months after the date of his resignation letter. The

qualifying period for the 2014 general election occurred in the interim, and the

election itself will have taken place in the interim.

      It is true that the existence of a vacancy as defined in Article X, section 3

could trigger the need for a gubernatorial appointment, but that is not necessarily

the case if the vacancy is created by a resignation that is to take place in the future.

The Supreme Court’s decision in Spector v. Glisson, 305 So. 2d 777 (Fla. 1974)

serves as a good example. In that case, a justice who was ineligible to run for

another term in office sent a letter of resignation to the governor prior to the start

of the qualifying period for the next general election. The resignation was to take

effect at midnight on the last day of the incumbent justice’s term. A lawyer

attempted to qualify for election to the office during the qualifying period, but the

secretary of state refused to accept his qualifying papers, concluding that the seat

was to be filled by an appointment. The lawyer then filed a petition for writ of

mandamus seeking to compel the secretary to accept his qualifying papers. The

Supreme Court granted the petition and directed that the seat be filled by an

election.




                                          11
      The resignation in the Spector case did not create a right on the part of the

governor to fill the vacancy by an appointment, because there was an intervening

qualifying period and an intervening general election. The Supreme Court made it

clear that the appointment process is to be used only when necessary to fill a seat

that will be unoccupied. As the court stated, “the only excuse for the appointment

of any officer made elective under the law is founded on the emergency of the

public business.” Id. at 781 (citations omitted). The court expanded on this theme

by stating in no uncertain terms that there is a strong preference for elections in

Florida:

             We feel that it necessarily follows from this consistent view and
      steadfast public policy of this State as expressed above, that if the
      elective process is available, and if it is not expressly precluded by the
      applicable language, it should be utilized to fill any available office by
      vote of the people at the earliest possible date. Thus the elective
      process retains that primacy which has historically been accorded to it
      consistent with the retention of all powers in the people, either directly
      or through their elected representatives in their Legislature, which are
      not delegated, and also consistent with the priority of the elective
      process over appointive powers except where explicitly otherwise
      provided. We thereby continue the basic premise of our democratic
      form of government, that it is a ‘government of the people, by the
      people and for the people.’

Id. at 782. Because judges are elected in Florida and because the vacancy at issue

could have been filled by a candidate elected by the people in a general election,

the court concluded that the governor was not entitled to make an appointment.




                                         12
      The only difference between this case and the Spector case is that the

effective date of the resignation in this case was one day before the end of the term

and not on the last day. The question we should be asking ourselves is whether

this is the kind of difference that should compel an exception to the rule in Spector.

I think that it is not. In both cases, the judges communicated an intention not to

run for another term. The fact that one of them planned to leave office a day early

is not, in my view, a valid reason to reach a different result. Thus, I believe that

the majority has misapplied the Spector decision by relying on a distinction

without a difference.

      The majority contends that the Spector decision is not controlling here

because it is limited to situations in which there will be no actual vacancy in the

office. However, I think it is incorrect to say that any actual vacancy, regardless

of its duration, triggers an exception to the rule in Spector. The cases the majority

of this court relies on are all distinguishable in that they involve situations in which

an appointment was necessary to avoid a substantial period in which the office

would remain unoccupied.

      For example, in Advisory Opinion to the Governor, 600 So. 2d 460 (Fla.

1992) the judge sent a letter to the governor in March resigning effective the

following July. That case differs substantially from Spector and this case, in that

the office would have remained unoccupied for five months, irrespective of the

                                          13
intervening election. The same is true of all of the other cases. See Advisory

Opinion to the Governor re Sheriff & Judicial Vacancies Due to Resignations, 928

So. 2d 1218 (Fla. 2006) (the judge resigned in April effective the following May,

thus leaving the office unoccupied for seven months, regardless of the scheduled

election that year); Advisory Opinion to the Governor re Judicial Vacancy Due to

Resignation, 42 So. 3d 795 (Fla. 2010) (the resignation created an actual vacancy

of seven months); Pincket v. Harris, 765 So. 2d 284 (Fla. 1st DCA 2000) (the

judge resigned on June 19th effective the next day, leaving an actual vacancy in the

office for a period of six months).

      The common feature of the cases is that they all involve situations in which

the courts distinguished the holding in Spector, for the purpose of solving a

problem: to avoid a lengthy gap in judicial service. But there is no such problem in

this case. Here, as in Spector, there is no reason why the seat could not be filled by

an election. Judge Moran resigned before the start of the qualifying period for the

2014 general election, and the effective date of his resignation is after the date of

the election itself. The rationale of the Spector decision, that elective offices

should be filled by elections whenever that is possible, is as compelling in this case

as it was forty years ago when the decision was made.

      The majority has concluded that the duration of the actual vacancy is

immaterial, but in my view that is incorrect. Although there are cases holding that

                                         14
an actual vacancy of six months requires an appointment, as I have pointed out, it

does not follow from the principle established in these cases that an actual vacancy

of one day requires an appointment. I am not aware of any case that stands for the

proposition that any actual vacancy, no matter how brief it may be, requires an

appointment. And I am confident that there is no authority for the proposition that

the rights of voters can be overcome by a manufactured vacancy like the one we

have before us in this case.

      The reason given by the majority for holding that the duration of the actual

vacancy is immaterial is that the task of deciding whether the vacancy in a

particular case is too long or too short would lead to arbitrary results. There is

some merit to that point, but I think that judges are well-equipped to make

decisions like those – one could argue that is precisely what we are here to do –

and that there is a greater danger in following an inflexible rule, no matter how

unfair the result may be, simply for the sake of following the rule. I think it would

be far better to apply judgment and reason to resolve the issue on the facts

presented in the case.

      Finally, I fear that the precedent the court has set here, although well

intended, will be abused by those who would manipulate the election process to

suit their own political or philosophical objectives. Suppose, for example, that two

judges in the same judicial circuit are retiring at the end of their respective terms in

                                          15
office. One of them likes the governor very much and the other strongly opposes

the governor. The first judge could bestow the power of an appointment on the

governor simply by resigning before the qualifying period but with an effective

date the day before the last day of his or her term. In contrast, the second judge

could block a gubernatorial appointment simply by notifying members of the local

bar that he or she does not intend to stand for re-election. Both judges would have

chosen not to seek another term in office, yet one of them would have made the

choice appear as though it were resignation before the end of the term. I see no

reason why the court should allow the election process to be circumvented in this

way.

       For these reasons, I respectfully dissent.




                                          16
