TALLAHASSEE, Fla. (Legal Newsline) - Attorneys for two candidates vying for a vacant seat on the Leon County Court are asking the Florida Supreme court to let the voters decide who will replace an ousted state judge instead of leaving that decision to the governor.

The lawyers for rival candidates Nina Ashenafi Richardson and Sean Desmond filed a brief in the case Gov. Charlie Crist brought asking the state Supreme Court what is legally required to fill the vacancy left by a judge who was forced from the bench.

The judicial candidates argue that the Florida Constitution requires that an election should be held to decide which candidate fills the vacancy.

The circumstances of the vacancy created Crist's original question as to whether the seat should be filled by the results of an election or whether he should appoint someone.

Seat No. 5 had been previously scheduled for the 2008 general election, with the qualifying period scheduled to begin at noon, April 28 and continue through noon May 2.

However, on April 30 the Court entered an order removing incumbent Judge Timothy Harley, ordering him to be involuntarily retired effective that day.

That meant the qualifying period for the election was already underway when the vacancy occurred. The Leon County Supervisor of Elections said that when the vacancy occurred at midnight April 30 there was no candidate that had qualified for the judgeship.

Adding confusion to the matter was the supervisor's initial decision on May 1 not to accept applications from candidates to run for the vacant seat because it was thought that the seat should be filled by gubernatorial appointment.

However, when the supervisor of elections changed his mind on the morning of May 2 and notified the people he had turned away he previous day three candidates filed their qualifying papers by the deadline of noon that day.

That prompted Crist to ask the Court for its opinion as to whether the seat should still be filled by an election or by gubernatorial appointment.

The Republican governor pointed out that although both processes were now underway that filling the vacancy by appointment was quicker than waiting until the election and that it was the intent of the framers of the state's election laws that the time a vacancy for a judicial seat existed should be minimized.

He argued that it would minimize the hardship on Leon County residents if he alone appointed the next judge because he could do it in June 2008, meaning the vacancy only existed a maximum of 60 days.

But if the voters of Leon County decided the post would be vacant through the general election in November and it wouldn't be until Jan. 6, 2009 that the new judge could be sworn in, meaning an eight-month long vacancy.

From Legal Newsline: Reach reporter Lin Young at linyoung10@gmail.com.