A Brevard County judicial candidate is suing Gov. Ron DeSantis and several election officials after the election to fill a retiring judge’s post was canceled due to DeSantis’ decision to fill the vacancy through his appointment power.
Candidate Margaret Wagner petitioned the state Supreme Court on April 23 to issue an order to put Wagner’s name back on the county ballot and to reinstate a judicial election to fill the post now occupied by Judge Benjamin Garagozlo. Alternatively, Wagner urged the high court to find that the election cancellation ran afoul of the Florida and U.S. constitutions.
DeSantis
The court, however, opted to transfer the case to the Second Judicial Circuit Court in Leon County for consideration. Meanwhile, the qualifying period for the now-canceled judicial election ended last Friday.
Wagner and at least one other candidate had been actively campaigning for the judicial post and had submitted paperwork to run, according to the petition. Garagozlo’s term is set to expire on Jan. 5 of next year, and he submitted a letter to the state Supreme Court’s Chief Justice, Carlos Muniz, expressing his intention to retire from the bench effective on Dec. 31 of this year.
The petition indicates that in August of last year, the Governor’s Office had called on the Office of the State Courts Administrator to provide email notifications of all judicial resignations or retirements. The purpose of the notifications was to “streamline the appointment process and increase efficiency,” according to the petition.
Wagner was notified earlier this month that the judicial seat was “no longer up for election during the 2026 election cycle” and that DeSantis would fill Garagozlo’s post by appointment using appointment powers outlined in the Florida Constitution, the petition says.
But Wagner and a co-petitioner, voter Marcelle Adkins, allege that their own rights under both the state and U.S. constitutions have been violated through the governor’s aggressive use of his appointment authority.
“If the vacancy is filled by gubernatorial appointment rather than election, the voters of Brevard County, including voter Adkins, will be deprived of their constitutional right to elect their county court judge,” the petition says.
Aubrey Jewett, a political science professor at the University of Central Florida, said the governor’s appointment power is expansive and that it is likely DeSantis’ decision to appoint a new Brevard County judge – and the decision to cancel the judicial election – will be upheld.
“Generally speaking, in Florida, judges on the trial courts (county and circuit) are selected through nonpartisan elections,” Jewett, who is not an attorney, told the Florida Record. “However, the governor of Florida has the authority to name interim appointments for county and circuit judges whenever a vacancy occurs between terms.”
In the Garagozlo case, the judge is retiring several calendar days before the end of his term. Jewett pointed to a 2018 case in which former Gov. Rick Scott received a letter from a judge saying he intended to resign on the last day of December, seven days before his term was to expire.
“An appeals court ruled that Gov. Scott was allowed to name the interim replacement and thus a nonpartisan judicial election would not be held,” he said.
To avoid election cancellations, outgoing judges could ensure that their retirements correspond with the last day of their terms – or not officially submit a retirement letter until after a replacement election has taken place, according to Jewett.
“DeSantis did not invent this system, but he is certainly taking maximum advantage of it,” he said. “This is particularly the case in some of Florida’s more urban areas that are more Democratic or moderate and might elect a different type of judge than he is appointing … even though the judicial races are nonpartisan officially.”
