Austin v. State ex rel. Christian

• Decision Date: 10 February 1975
• Docket Number: No. 46475,46475
• Citation: 310 So.2d 289
• Court: Florida Supreme Court
• Parties: The Honorable T. Edward AUSTIN et al., Petitioners, v. STATE of Florida ex rel. Floyd T. CHRISTIAN, Respondent.

Page 289

310 So.2d 289

The Honorable T. Edward AUSTIN et al., Petitioners, v. STATE of Florida ex rel. Floyd T. CHRISTIAN, Respondent.

No. 46475.

Supreme Court of Florida.

Feb. 10, 1975.

Robert L. Shevin, Atty. Gen., George R. Georgieff, Raymond L. Marky and Michael M. Corin, Asst. Attys. Gen., T. Edward Austin, Assigned State Atty., and Aaron K. Bowden, Asst. State Atty., for petitioners.

Joseph C. Jacobs and E. C. Deeno Kitchen, Ervin, Varn, Jacobs & Odom, Tallahassee, and Robert L. Floyd and Michael A. Pohl, Frates, Floyd, Pearson, Stewart, Proenza & Richman, Miami, for respondent.

Reubin O'D. Askew, Governor of Florida, and Arthur C. Canaday, Gen., Counsel, Tallahassee, for amicus curiae.

E. J. Salcines, Jr. and David H. Bludworth, State's Attys., for Florida Prosecuting Attys. Association, amicus curiae.

ADKINS, Chief Justice.

This cause is here on petition for writ of certiorari supported by certificate of the District Court of Appeal, First District, that its decision (opinion filed November 5, 1974) reported in 302 So.2d 811, is one which involves a question of great public interest. We have jurisdiction. See Fla.Const., art. V, § 3(b)(3), F.S.A.

On March 4, 1974, the Governor issued Executive Order 74--19 assigning T. Edward Austin, State Attorney of the Fourth Judicial Circuit, to discharge the duties of Harry Morrison, State Attorney of the Second Judicial Circuit, as such duties related to allegations or reports concerning Floyd T. Christian, Commissioner of Education. The order further provided that the assigned State Attorney and 'any one or more of his duly qualified assistant state attorneys, which assistants may be designated by him' shall proceed to the Second Judicial Circuit, investigate and receive testimony and evidence concerning Christian, and be vested with the powers and the prerogatives of 'state attorneys or assistant state attorneys as the case may be.'

Pursuant to this order Austin and two assistant state attorneys from the Fourth Judicial Circuit proceeded to the Second Judicial Circuit and conducted an investigation of Christian through means of the duly constituted grand jury then sitting in Leon County, Florida.

Five indictments were returned against Christian, who then questioned the validity of the assignment of Austin and his assistants. The Attorney General and the resident State Attorney Morrison refused to bring quo warranto proceedings, so the petition under consideration was brought by Christian in the District Court of Appeal alleging that Executive Order 74--19 was void.

If the power and authority of an assigned State Attorney is to be tested, it should be done in direct proceedings by quo warranto. Hart v. State, 144 Fla. 409, 198 So. 120 (1940); Johns v. State, 144 Fla. 256, 197 So. 791 (1940). See also Quo Warranto in Florida, by Richard W. Ervin and Roy T. Rhodes, 4 Fla.Law Review 559 (1951); Origins and Current Florida Status of the Extraordinary Writs, by Alto Adams and George J. Miller, 4 Fla.Law Review 421, 453 (1951).

When the Attorney General and the resident State Attorney refused to bring the proceedings, Christian became a proper party under the circumstances of this case to institute and maintain direct quo warranto proceedings in the District Court of Appeal. See State ex rel. Pooser v. Wester, 126 Fla. 49, 170 So. 736 (1936).

The District Court of Appeal held the assignment to be invalid and the decision was certified to us because it involved a question of great public interest.

The first question to be determined is whether the Governor had the authority to assign Austin to conduct the investigation of Christian in the Second Judicial Circuit while the resident State Attorney Morrison was available.

The pertinent statutes then in effect relating to assignments read as follows:

'27.14 Assigning state attorneys to other circuits.--If any state attorney shall be disqualified to represent the state in any case pending in the courts of his circuit, or if for any other good and sufficient reason the governor of the state thinks that the ends of justice would be best served by an exchange of state attorneys, the governor may require an exchange of circuits or of courts between such state attorney and any other state attorney of the state, or may assign any state attorney of the state to the discharge of the duties of state attorney in any circuit of the state. Any exchange or assignment of any state attorney hereunder to a particular circuit for a period in excess of sixty days in any one calendar year must be approved by order of the supreme court upon application of the governor showing good and sufficient cause to extend such exchange or assignment.

'27.15 State attorneys to assist in other circuits.--

'(1) The governor of the state may for good and sufficient reasons require any state attorney in the state to proceed to any place in the state and assist the state attorney holding office in the circuit where such place is located in the discharge of any of the duties of such state attorney. Any state attorney in this state who shall be so directed by the governor to go and assist any other state attorney in the discharge of his duties shall immediately proceed to the place designated and assist the state attorney of the circuit in which such place is located in the performance of his duties.'

The District Court of Appeal in its opinion said:

'(T)he Governor had the power and authority under F.S. 27.15, to order Respondent Honorable T. Edward Austin to the Second Judicial Circuit, there to Assist the resident State Attorney in the discharge of any of his duties without limitation of time, or in the alternative to Assign said Respondent as the State Attorney of the Second Judicial Circuit pursuant to F.S. 27.14 for the initial period not to exceed sixty days. In either case that circuit would have one and only one State Attorney personally charged with plenary responsibility for all investigations, informations, and prosecutions therein: But the Governor does not have the statutory power nor authority to 'assign' (as distinguished from 'exchange') a state attorney (in the absence of disqualification) to discharge the duties of (as distinguished from 'assist') another state attorney in a single case or in regard to a single individual.'

Four times in the last 35 years the Supreme Court of Florida has considered the propriety of an assignment of a state attorney. In Halll v. State, 136 Fla. 644, 187 So. 392 (1939), the Court upheld the assignment of a state attorney for the purpose of one case where the resident state attorney was disqualified in that case. This is clearly permitted by the first clause of Fla.Stat. § 27.14, F.S.A. In Johns v. State, Supra, the Court upheld the assignment of one state attorney 'to discharge all and singular duties of State Attorney' of the resident circuit to which assigned. In Hart v. State, Supra, the Court acknowledged that it had never before decided whether a state attorney could be assigned to another circuit for the purpose of one case where the resident state attorney was present and not disqualified. The Court avoided the question by ruling that the remedy lay in direct proceedings by quo warranto instead of in a direct appeal from the judgment of conviction. In Finch v. Fitzpatrick, 254 So.2d 203 (Fla.1971), the Court ruled that the Governor's determination of 'good and sufficient reasons' was conclusory. This was the only ground which the Court mentioned for the attack on the assignment.

A state attorney in Florida is not merely a prosecuting officer in the circuit in which he is elected, he is also an officer of the State in the general matter of enforcement of the criminal law. It is the State and not the county, that pays his salary and official expense. He is prohibited from appearing in some other circuit court in the State and defending a person charged with committing a crime in such other circuit. He is required by the Constitution to devote full time to his duties and prohibited from engaging in the private practice of law. (Fla.Const., art. V, § 17, F.S.A.) This constitutional provision also requires that a state attorney be elected in each judicial circuit and shall be the prosecuting officer of all trial courts in that circuit and 'shall perform other duties prescribed by general law.' See Hall v. State, Supra.

The Governor has the constitutional responsibility to 'take care that the laws be faithfully executed.' Fla.Const., art. IV, § 1, F.S.A. If there were no statute permitting an assignment of state attorneys and, upon disqualification of the resident state attorney, the trial judge were unable to select an acting state attorney from the members of the Bar, this constitutional provision is sufficient to authorize the assignment of a state attorney by the Governor. Advisory Opinion to Governor, 152 Fla. 119, 10 So.2d 926 (1942).

We hold that if for any good and sufficient reason the Governor thinks that the ends of justice would best be served, he may assign any state attorney of the State to the discharge of the duties of state attorney in any investigations in any circuit of the State.

Considerations of convenience, such as expediting the due administration of justice or considerations of sound public policy, should never be controlling in the construction of constitutional provisions. However, they may be of great assistance in ascertaining the intent and meaning of a constitutional or statutory provision as to which there may be some doubt arising from the uncertainty or generality of the language used. Hall v. State, Supra. Although this Court did not decide the issue in Hart v. State, Supra, it did make the following observations:

'It is conceivable that many situations would arise where the proper administration of justice would 'be subserved' by the transfer of state attorneys, even though the corresponding resident official might be present, and to all...