Advisory Opinion to Governor Request of June 29, 1979, In re

• Decision Date: 29 June 1979
• Citation: 374 So.2d 959
• Parties: In re ADVISORY OPINION TO the GOVERNOR REQUEST OF
• Court: Florida Supreme Court

Page 959

374 So.2d 959

In re ADVISORY OPINION TO the GOVERNOR REQUEST OF JUNE 29, 1979.

No. 57208.

Supreme Court of Florida.

July 17, 1979.

Sharyn L. Smith and Mark Herron, Tallahassee, for Florida Legislature.

J. Kendrick Tucker, Patricia R. Gleason and Percy W. Mallison, Jr., Asst. Atty. Gen., Tallahassee, for Attorney General.

Talbot D'Alemberte of Steel, Hector and Davis, Miami, for Volusia County Bar Association, Inc., Putnam County Bar Association, Inc., and St. Johns County Bar Association, Inc.

Thomas A. Clark and Peter J. Winders, for Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Tampa.

The Honorable Bob Graham

Governor, State of Florida

The Capitol

Tallahassee, Florida 32304

Dear Governor Graham:

We have the honor of acknowledging your communication of June 29, 1979, requesting our advice, pursuant to article IV, section 1(c) of the Florida Constitution and rule 9.500 of the Florida Rules of Appellate Procedure, as to the interpretation of a portion of the constitution affecting your executive power of appointment.

Omitting the formal parts, your letter reads as follows:

By virtue of the provisions of Article IV, Section 1(c), Florida Constitution, I respectfully request your written opinion as to the interpretation of a portion of the Florida Constitution affecting my executive powers and duties.

Pursuant to Florida Appellate Rule 9.500(b)(1), the first question for the Court is whether this request is within the purview of Article IV, Section 1(c), Florida Constitution. Under Article V, Section 11, Florida Constitution, it is my duty to fill by appointment vacancies in judicial office. Article X, Section 3, Florida Constitution, defines a vacancy in office and provides that a vacancy "shall occur upon the creation of an office . . . ." The question presented here is whether there has been a constitutional creation of judicial vacancies. This Court has previously determined that such a question is within the purview of Article IV, Section 1(c), Florida Constitution, by responding to a similar request from my predecessor in office. In re Advisory Opinion to the Governor, 281 So.2d 328 (Fla.1973).

Creation of Vacancies

The facts can be stated in chronological order. All dates are in the year 1979.

April 2. Pursuant to Article V, Section 9, Florida Constitution, the Supreme Court certified a need for increasing the number of judges and for increasing and redefining appellate districts to a regular session of the Legislature. In re Certificate of Judicial Manpower for Circuit and County Courts, As Required by Section 9, Article V, Florida Constitution, 370 So.2d 363 (Fla.1979); In re Certification Under Article V, Section 9, Florida Constitution, To Redefine Appellate Districts And To Increase the Number of Judges On the District Courts of Appeal, 370 So.2d 365 (Fla.1979).

June 6. After considering the Court's certificate, the Legislature, by two-thirds of the membership of both houses, enacted CS for SB 268. The bill altered the court's certification by increasing the number of judges recommended for the First District from 7 to 9 and decreasing the number of judges recommended for the Third District from 9 to 8. While the statute created a Fifth District, it altered the court's recommended alignment by taking the Tenth Judicial Circuit from the new Fifth District, and placing it into the realigned Second District. The bill left undisturbed the court's recommendation for: a) additional judges for the Second, Fourth, and Fifth Districts, b) realignment of the First and Fourth Districts, c) no change for the alignment of the Third District, and d) additional judges for various circuit and county courts. The Legislature then adjourned sine die.

June 20. After CS for SB 268 was enrolled and signed by the required constitutional officers, it was presented to this office.

Article V, Section 9, Florida Constitution, provides the procedure for the determination of the number of judges and for increasing and redefining appellate districts. Section 9 sets forth two different procedures for accomplishing this purpose. The first assumes that the Supreme Court presents a timely certificate of need to the Legislature:

If the supreme court finds that a need exists for increasing or decreasing the number of judges or increasing, decreasing or redefining appellate districts and judicial circuits, it shall, prior to the next regular session of the legislature, certify to the legislature its findings and recommendations concerning such need. Upon receipt of such certificate, the legislature, at the next regular session, shall consider the findings and recommendations and may reject the recommendations or by law implement the recommendations in whole or in part; provided the legislature may create more judicial offices than are recommended by the supreme court or may decrease the number of judicial offices by a greater number than recommended by the court only upon a finding of two-thirds of the membership of both houses of the legislature, that such a need exists. A decrease in the number of judges shall be effective only after the expiration of a term.

The second procedure is in the event the Supreme Court fails to make such certification to the Legislature:

If the supreme court fails to make findings as provided above when need exists, the legislature may by concurrent resolution request the court to certify its findings and recommendations and upon the failure of the court to certify its findings for nine consecutive months, the legislature may, upon a finding of two-thirds of the membership of both houses of the legislature that a need exists, increase or decrease the number of judges or increase, decrease or redefine appellate districts and judicial circuits.

Since the Court submitted a timely certificate, I am concerned with the first procedure.

The only specific authorization for the Legislature to alter the Court's recommendations for increasing, decreasing or redefining appellate districts appears in the second procedure. On the other hand, the first procedure authorizes the Legislature to reject the Court's recommendations or by law implement the recommendations in whole or in part.

The construction to be given Article V, Section 9, Florida Constitution, is in question.

Judicial Nominating Commissions

Article V, Section 20, Florida Constitution, requires the Governor and The Florida Bar to appoint members of judicial nominating commissions on July 1 from "within the territorial jurisdiction of the affected court." The status of these commissions is in question.

Effective Date

The bill contains a number of provisions which are not subject to question and are essential to the judiciary and citizens of Florida. I will allow the bill to become law without my signature.

Pursuant to Article III, Section 8, Florida Constitution, the bill will not become law until July 5. The bill provides an effective date of July 1. The effective date of the law is in question.

Questions

In view of the legislative implementation of Article V, Section 9, Florida Constitution, and considering the other provisions of the Florida Constitution as cited, I am in doubt as to whether these judicial offices have been created so that vacancies exist. Therefore, I request your written opinion on the following questions:

1. Has there been a constitutional creation of judicial vacancies by virtue of CS for SB 268 so as to permit gubernatorial appointments to judicial office and judicial nominating commissions?

2. If so, what is the effective date of the new law?

3. If not, is the law defective in whole or in part?

Article IV, Section 1(c), Florida Constitution, permits a written opinion in less than ten days if the delay would cause public injury.

Judicial nominating commissions to conform with district court alignment should be in existence by July 1. The judiciary needs new judges as soon as the appointments can be properly made. To allow these questions to be raised by others after realignment of districts and appointment of judges, could be chaotic.

In accordance with our rules, we made a preliminary determination that your request is properly within the purview of article IV, section 1(c), in that the legislation in question directly affects your duty as governor to fill vacancies in judicial office ¹ and to appoint members of the judicial nominating commissions. ² Your request notes certain confusion surrounding this important enactment, which creates new judicial positions at three levels of Florida's judiciary and redefines the state's appellate districts. In light of the irreparable harm to the public that might result from an erroneous implementation of this statute, we have determined that we will exercise our discretion to answer your inquiries. To assure full and fair consideration of the issues raised, we permitted interested persons to file briefs and to present oral argument before the court. ³

It is essential to our response to your inquiry that we recount briefly the sequence of events in 1979 which led to the enactment of CS for SB 268. On March 22 we certified to the legislature, pursuant to article V, section 9 of the Florida Constitution, our finding that a need exists for ten additional circuit court judgeships and seven additional county court judgeships. In re Certificate of Judicial Manpower for Circuit and County Courts, 370 So.2d 363 (Fla.1979). On April 2 we certified to the legislature, under the same constitutional provision, our finding that a need exists for ten additional district court of appeal judgeships and for a redefinition of the state's appellate districts. In re Certification Under Article V, Section 9, Florida Constitution, to Redefine Appellate Districts and to Increase the Number of Judges on the District Courts of Appeal, 370 So.2d 365 (Fla.1979). In this latter certification, the court recommended one additional judgeship for the second district, two...