By Noreen Marcus, FloridaBulldog.org
Lawyer Margaret “Maggie” Wagner, who campaigned for a year to succeed a retiring Brevard County judge, was “devastated” when the election was canceled as Gov. Ron DeSantis snatched the opportunity to name another new judge.
Rejecting the role of collateral damage, Wagner petitioned the Florida Supreme Court for relief last month. Although she has little chance of reviving the election this year, she’s still determined to test the governor’s power to bypass Floridians’ right to elect their trial court judges.
The law doesn’t allow governors to disrupt these elections, according to Philip Padovano. The former Tallahassee appellate court judge warned in a dissent 12 years ago that the method DeSantis now uses to replace certain judges has “a high potential for abuse.”
“It’s a deliberate attempt to manipulate the election process and an attempt to circumvent elections, and it shouldn’t be permitted,” Padovano told Florida Bulldog last week.
DeSantis has devoted himself to eliminating all traces of diversity, equity and inclusion in the state court system, largely through his handpicked judges. He appears to be amping up his crusade in the final months before he leaves office in January.
The governor brags about installing “the most conservative Supreme Court anywhere in these United States.” He seems to seize every chance to appoint right-wing activist judges who can extend his influence over decades.
“I know that this is a pattern,” Wagner’s Melbourne-based lawyer Jessica Travis said at a recent press conference. “A lot of judges with a political persuasion or who anticipate losing their race against a really strong candidate resign early and they know that triggers, at least under the governor’s interpretation, the right to come in and cancel the election and put in whoever the governor wants.”
As a result, she said, “millions of people have been denied the right to elect their judges.”
The gamesmanship that sabotaged Wagner’s campaign is nothing new – “I expect it happens at least a few times every election cycle,” Padovano said. But with midterm elections just six months away, the national debate about voter suppression is getting louder and more intense.
APPOINTMENT VS. ELECTION
This cycle, elections for trial judges have been canceled in Brevard, Orange, Leon and Palm Beach counties, the Orlando Sentinel reported.
In South Florida, Palm Beach Circuit Judge Greg Keyser announced his resignation on April 13, shortly before candidates could file for his seat. The Palm Beach County Supervisor of Elections Office quickly announced that Keyser’s group listing would be removed from the Aug.18 primary ballot.
Gov. Charlie Crist appointed Keyser to the Palm Beach County Court in 2010. A year later Gov. Rick Scott promoted him to the circuit court.
Keyser, 70, said he’s leaving Aug. 31, creating an opening that an elected judge wouldn’t fill until January. The four-month gap allows DeSantis to pick his successor.
Asked about the timing, Keyser told The Palm Beach Post he’s moving to Maryland before his grandkids’ school year starts and he wants to avoid a lengthy court vacancy.
Floridians elected their judges until Supreme Court scandals in the early 1970s inspired popular support for appointing judges, as this method was considered less susceptible to political influence than electing them. In 1976 voters passed a constitutional amendment that introduced a hybrid system:
The governor picks judges for the Supreme Court and district courts of appeal from lists compiled by nominating commissions. Then voters retain or reject the judges for additional terms. (In 50 years Florida voters haven’t rejected any Supreme Court justices or appeals court judges.)
Lower-ranking trial court judges are voted into office and reelected or replaced in nonpartisan elections. The governor makes appointments only to fill gaps – when judges resign, retire or die – between the end of their service and the start of the next term.
Journalist Martin Dyckman, who’s credited with exposing the Supreme Court scandals, described what came next in a 2012 University of Florida Law Review article.
Voters showed they still wanted to elect trial court judges in 2000 when they rejected switching over to appointing them. Soon after, Gov. Jeb Bush directed legislators to take a step that turned court appointments into a patronage-reward tool.
“A year later, the Legislature gave the governor the power to appoint all nine members of every nominating commission, erasing their independence,” Dyckman wrote. “The public scarcely took notice.”
MAGGIE WAGNER’S CURIOUS CASE
The public probably wouldn’t have known how Maggie Wagner’s judicial campaign ended if not for the judge she tried to succeed.
Brevard County Court Judge Benjamin Garagozlo, who is 65, intends to retire on Dec. 31, and he didn’t want his departure to be misconstrued and used as an excuse to cancel an election, according to Wagner’s Supreme Court petition.
Yet that’s apparently what happened. The petition quotes court spokeswoman Michelle Kennedy saying Garagozlo told her he sees what the governor did “as a black mark on his good name.” (The judge couldn’t file an affidavit in the case without violating an ethics rule against engaging in politics, the petition says.)
It says on April 15 Garagozlo sent a formal notice sharing his plan to “retire” with Florida Supreme Court Chief Justice Carlos Muniz. Taken literally, his retirement would have left a one-workday gap between his last day on Dec. 31 and the end of his term on Jan. 5. Then an elected successor’s term would have begun.
Somehow, Judge Garagozlo’s retirement plans quickly found their way to Gov. DeSantis. Two days after the judge gave his notice, he received a letter from DeSantis accepting his “resignation,” the petition says. The resignation automatically launched the nomination process.
How did DeSantis find out? “The chief justice did not notify the governor’s office,” court spokesman Paul Flemming said.
“The Governor’s Office did not contact Judge Garagozlo to confirm whether he intended to resign, to clarify the nature of his letter, or to afford him any opportunity to withdraw it before it was used to cancel a scheduled election,” the petition says.
The election was canceled despite the facts that Wagner and another candidate had already prequalified to run for Garagozlo’s seat and the qualifying period was about to begin.
Wagner asked the Supreme Court to find “no valid vacancy has been created and the judicial election must proceed.” Timing is critical because once DeSantis names a new judge, the election issue will likely be ruled moot and the case will be dismissed.
The Supreme Court punted Wagner’s petition. The day after she filed it there, the court, without explanation, sent the case to Leon County Circuit Court in Tallahassee.
Observers noted that it landed with the uniquely experienced — or conflicted — Leon Circuit Judge Angela Dempsey, who had been running for reelection but resigned on April 14, effective Dec. 28. Dempsey, who reportedly said she was quitting because her mother is ill, gave DeSantis another opening to fill.
The Wagner case was reassigned to Judge Joshua Hawkes, a 2020 DeSantis appointee. After he ruled against Wagner on a preliminary matter, she went to the First District Court of Appeal, where her case is pending.
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