With Circuit Judge Terence Perkins retiring in September, and opening a spot among the Seventh Judicial Circuit’s 27 circuit judgeships for appointment, Flagler County Judge Totten is considering applying, she said in a radio appearance on Friday.
Gov. Ron DeSantis appointed Totten, 44, to the county judge position in Flagler that the Legislature had just created in 2019, to split the workload that until then had been borne entirely by County Judge Melissa Distler. In 2022, Totten, a former prosecutor, was elected to a six-year term without opposition. Distler won her third term earlier this month, when she was also re-elected without opposition.
Perkins’s retirement announcement was not a surprise. Because of its timing, the seat will have to be filled by appointment until it’s up for election in 2026. Appointments open the field to a broad range of applicants, usually lawyers in private practice, prosecutors and public defenders, and sometimes, in the case of circuit judgeships, from county judges.
“That is a question that I’ve been asked a lot actually. So it’s very timely,” Totten said in answers to FlaglerLive questions on WNZF’s Free For All Friday last week. “And I’ve thought about it. I thought about applying in the past and I thought about applying once judge Perkins retires as well.” Circuit judges can be assigned anywhere in the circuit. The Seventh Judicial Circuit includes Flagler, Volusia, Putnam and St. Johns, so it isn’t a given that whoever is appointed to fill Perkins’s spot will actually be assigned to Flagler County. The likelihood is that he or she will not be so assigned: Perkins, the senior judge in Flagler, sits on felony and civil cases, a position that would require a more seasoned judge than someone freshly appointed. Perkins himself was assigned to Flagler after serving in Volusia County previously.
Raul Zambrano, formerly a judge in Flagler, announced last October that he planned to retire by the end of last year (he planned to care for his aging and ailing parents). DeSantis on March 26 appointed David Wainer, a Ponte Vedra lawyer in private practice since 2001 as a partner at Ford, Miller & Wainer, from a shortlist of half a dozen nominees that did not include Totten.
“Just because I’m in Flagler County doesn’t mean I’d have any special right to the position. I’d have to apply just like anybody else,” Totten said. “I can’t say that I’ve made a decision on that entirely, yet. There will also be no guarantee that I would stay in Flagler County. I could easily, almost certainly, would honestly, immediately get assigned to Putnam or St. Johns or Daytona, DeLand. So the commute is one of the things I think about right now. I live very close to the courthouse. I live close to where my kids go to school. I’m very entrenched in Flagler County and enjoy my short commute. I’m getting to do a lot of circuit court work now as it is–probate and guardianship is actually circuit. So I’m not lacking for Circuit Court work. On the other hand, there’s always room to grow and move. I’m trying not to rush the decision. I have the rest of my career to think about it. So I’m honestly still on the fence on that question.”
Totten would be familiar with the appointment process, having been one of 24 candidates up for appointment to the county judgeship in 2019. They were all interviewed by the circuit’s nine-member Judicial Nominating Commission, whose members are all appointed by the governor. The appointments are highly political as a result, as are the commissions’ recommendations–and the governor’s decision.
County court’s scope is more narrow, compared to circuit court, with county court handling misdemeanors, evictions, disputes between residents, violations of municipal and county ordinances, traffic offenses, and other civil cases involving damages of up to $50,000.
“In terms of starting out, a lot of it is just circumstance: there’s a county court judge position open, so that’s what people apply for,” Totten said. “There’s a circuit position open, so that’s what they apply for or run for as the case may be. A lot of county court judges–not the majority, but many–go from county to circuit. In terms of stepping stones, those who really want to go on to the appellate level would probably view circuit as a stepping stone.”
Totten spoke of some of the more difficult cases she’s faced–difficult from a human rather than a legal point of view: residential evictions. “If someone’s being evicted from their home in Flagler County and the court’s involved, it’s me doing it,” Totten said. “The court actually has very little discretion in the area of residential evictions, so I get a lot of sad letters from tenants. I’ve got cancer, I lost my job, my spouse left and–I mean, just some really sad stories. And there’s nothing that I can do about that. I have to apply the law. And more often than not, that’s resulting in an eviction. The law’s set up so that it happens really quickly too. It’s just a tough thing about being a judge. I don’t know if it keeps me up at night, but maybe sometimes, early on, it’s something that bothers me. I’ll say that.”
Th judge also mentioned guardianship cases–the sort of cases that may involve an elderly person with dementia who is no longer capable of being in charge of himself or herself, and family members petition the court to be their guardian. If the cases can often be straightforward in amicable families, they can sometimes be bitterly not so when competing family members litigate (evoking the famous opening of Anna Karenina: “Happy families are all alike; every unhappy family is unhappy in its own way.”)
“There’s hurt feelings amongst family members. Sometimes you’ve got a longtime paramour versus the adult children,” the judge said, “you may have stepmother or stepfather relationships involved. Sometimes it’s not even about the money. There may not be that much money there. It’s just a lot of hurt feelings. And I have to make some pretty hard decisions in those types of cases.” But in the end, Totten said, “you have to apply the law as it was given to you, whether you like it or not. And judges should and do, I think, regularly remind ourselves, themselves, that we’re not monarchs.”
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