Fair v. Kirk

• Decision Date: 15 September 1970
• Docket Number: Civ. A. No. 1611.
• Parties: Jim FAIR, individually and as an elected official in the State of Florida, Morton A. Tucker, Dorothy Weidemann and Gilbert O. Weidemann, individually and as registered qualified voters of Hillsborough County, Florida; and all others similarly situated, Plaintiffs, v. Claude R. KIRK, Jr., as Governor of the State of Florida, John E. Matthews, as President of the Senate of Florida, Frederick B. Karl, as Chairman of the Select Committee on Executive Suspensions of the Florida Senate, Joseph G. Spicola, Jr., as State Attorney, Hillsborough County, and Tom Adams, as Secretary of the State of Florida, and their successors in each office, Defendants.
• Court: U.S. District Court — Northern District of Florida

317 F. Supp. 12

Jim FAIR, individually and as an elected official in the State of Florida, Morton A. Tucker, Dorothy Weidemann and Gilbert O. Weidemann, individually and as registered qualified voters of Hillsborough County, Florida; and all others similarly situated, Plaintiffs, v. Claude R. KIRK, Jr., as Governor of the State of Florida, John E. Matthews, as President of the Senate of Florida, Frederick B. Karl, as Chairman of the Select Committee on Executive Suspensions of the Florida Senate, Joseph G. Spicola, Jr., as State Attorney, Hillsborough County, and Tom Adams, as Secretary of the State of Florida, and their successors in each office, Defendants.

Civ. A. No. 1611.

United States District Court, N. D. Florida.

September 15, 1970.

Norman Siegel, Charles Morgan, Jr. and Reber Boult, Jr., Atlanta, Ga., for plaintiffs.

Earl Faircloth, Atty. Gen., and T. T. Turnbull, and Roger W. Foote, Asst. Attys. Gen., for defendants.

Before DYER, Circuit Judge, and ARNOW and MIDDLEBROOKS, District Judges.

DYER, Circuit Judge:

Jim Fair, former Supervisor of Elections in Hillsborough County, Florida, here challenges the constitutionality of article IV, section 7 of the Florida Constitution.¹ In this proceeding before a three-judge district court,² Fair claims that this constitutional provision, under which Governor Claude Kirk suspended him from office, violates the due process clause of the United States Constitution. Specifically, he contends that article IV, section 7 denied him the opportunity to be heard and to refute the allegations against him, prior to the governor's suspension order. Moreover, he asserts that this constitutional provision is void for vagueness and overbreadth.

In November 1968, Fair was elected to the office of Supervisor of Elections in Hillsborough County; he assumed office on January 7, 1969. On April 7, 1970, State Circuit Judge I. C. Spoto impaneled a grand jury to investigate the Supervisor of Elections in Hillsborough County. The grand jury issued its report on April 13, 1970. After publishing copious findings of fact concerning Fair's conduct in office, the grand jury concluded that this conduct constituted "malfeasance, misfeasance and neglect of duty * * * under the election laws of the State of Florida" and "under those laws regulating the conduct of public officers * * *." Accordingly, the grand jury recommended "that the Governor of the State of Florida exercise his authority under Article IV, Section 7, of the Constitution of the State of Florida, and related statutes, to suspend the Supervisor of Elections of Hillsborough County and to appoint a qualified person to fill the office so vacated until such time as the Senate of the State of Florida can act upon the suspension." A copy of the grand jury's report is included as Appendix A of this opinion.

Governor Kirk wasted no time in implementing the grand jury's recommendation. On April 14, 1970, Kirk suspended Fair from the office of Supervisor of Elections "on the grounds of misfeasance, malfeasance, neglect of duty and incompetency in office, as reflected by the report of the Grand Jury of the Thirteenth Judicial Circuit in and for Hillsborough County, Florida * * *." The Governor incorporated a copy of the grand jury report in his suspension order.

Following notification by the Secretary of State, and upon due notice, the Select Committee on Executive Suspensions of the Florida senate held hearings in regard to the possible removal of Fair from office. The Committee heard testimony from forty-three witnesses, received thirty-seven exhibits, and considered various motions filed by Fair's attorneys. Fair does not claim that the Committee failed to afford him procedural due process. Based on the testimony heard and evidence introduced at the hearings, the Select Committee recommended to the senate that Fair be removed from office. The senate followed this recommendation, voting to remove Fair on July 8, 1970.

Because Fair has attacked the constitutionality of a provision of the Florida Constitution, this case is properly before a three-judge court. 28 U.S. C.A. §§ 2281, 2284. Jurisdiction is conferred by 28 U.S.C.A. §§ 1331(a) and 1343(3). The sole question which we need consider involves the constitutionality of article IV, section 7: Fair's only serious contention is that this provision denied him procedural due process, the right to be heard and to refute the charges against him prior to suspension, under the fourteenth amendment. No other issue presented in Fair's complaint merits three-judge consideration.³

At the outset, we may assume, as the Supreme Court of Florida has declared, that a public officeholder has a property right in his office and that this right may not be unlawfully taken away or illegally infringed. See Piver v. Stallman, Fla.App.1967, 198 So.2d 859, 862. Consequently, before a public official may be expelled or discharged from office upon a ground involving criminal guilt or individual disgrace, he is entitled to such notice and hearing as due process of law requires. McCarley v. Sanders, M.D.Ala.1970, 309 F. Supp. 8; see Slochower v. Board of Higher Education, 1956, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692.

In the present controversy, the issue is not whether Fair is entitled to notice and opportunity to be heard; instead, it is when may he exercise this right. Fair does not deny that he was given a hearing before the Select Committee on Executive Suspensions or that he was afforded procedural due process —as stipulated by the Florida statute, Laws of Fla. ch. 69-277, § 8⁴—during the committee proceedings. He asserts merely that the governor should have given him notice and an opportunity to be heard before suspending him. We find no pertinent legal precedent to substantiate this contention.

Long ago, in a similar case, the United States Supreme Court recognized that the act of a governor in suspending a public official is not a finality. Wilson v. North Carolina, 1898, 169 U.S. 586, 591, 18 S.Ct. 435, 42 L.Ed. 865. Noting that the state legislature had the ultimate power to remove or reinstate a suspended officer, the Court declared:

The controversy relates exclusively to the title to a state office, created by a statute of the State, and to the rights of one who was elected to the office so created. Those rights are to be measured by the statute and by the constitution of the State, excepting in so far as they may be protected by any provision of the Federal Constitution.

* * * * * *

* * * What kind and how much of a hearing the officer should have before suspension by the Governor was a matter for the state legislature to determine, having regard to the constitution of the State. The procedure provided by a valid state law for the purpose of changing the incumbent of a state office will not, in general, involve any question for review by this court. A law of that kind does but provide for the carrying out and enforcement of the policy of a State with reference to its political and internal administration * * *.

Id. at 592, 593, 18 S.Ct. at 438. Though procedural due process requirements have multiplied in other areas, Williams retains vitality. Given each state's manifestly legitimate interest in maintaining the integrity of its public offices, the Court's rule remains sound. "We should be very reluctant * * * in an action of this nature, to supervise and review the political administration of a state government by its own officials, and through its own courts." Id. at 596, 18 S.Ct. at 439.

It is true that in Williams the plaintiff "appeared before the governor, and denied in writing the various charges contained in the governor's communication, after which, in explanation of the charges, he made a written statement in regard to them." Id. at 587, 18 S.Ct. at 436. However, he was given no opportunity to view the evidence or to confront his accusers and cross-examine witnesses. Id. at 587-588, 18 S.Ct. 435. Moreover, the state statute in effect at that time did not specifically provide for any pre-suspension hearing. In reality Williams' appearance was pro forma: it did nothing to advance his cause or to delay his suspension.

In the instant case, Fair received no hearing prior to his suspension. The Florida statute enacted pursuant to article IV, § 7 authorizes a hearing after suspension but prior to removal. Laws of Fla. ch. 69-277, § 8. Prima facie this fact distinguishes Fair's case from Williams'. Nevertheless, the distinction lacks substance. Clearly a personal denial of the grand jury's charges could not have exonerated Fair, unless, perhaps, he also received the opportunity to confront his accusers and to crossexamine witnesses. Under the Williams' rationale, Fair had no inherent right to such an opportunity. Thus, he was in no worse position without a hearing than was Williams after an appearance in the governor's office.

To further substantiate his contention that a hearing is prerequisite to suspension, Fair relies on two cases in which federal courts ordered pre-suspension hearings for college students. In Knight v. State Board of Education, M.D.Tenn. 1961, 200 F.Supp. 174, the district court determined that indefinite suspension of college students without hearings violated their right to due process. The students had been suspended after a Mississippi magistrate's court convicted them of disorderly conduct resulting from their "freedom riding" activities in that state. Limiting its consideration to "the present record", the district court declared:

It is undeniable, in the first place, that the plaintiffs in being suspended, although they were given the conditional right to be reinstated if and when their Mississippi convictions should be reversed, were deprived of a valuable right or interest, i. e., the right or interest to continue their training at a university of their choice. * * * Indefinite suspension pending the appeals of the Mississippi convictions

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