State ex rel. Christian v. Rudd, W--313

• Decision Date: 05 November 1974
• Docket Number: No. W--313,W--313
• Citation: 302 So.2d 821
• Parties: STATE of Florida ex rel. Floyd T. CHRISTIAN, Relator, v. The Honorable John A. RUDD and the Homorable Ben C. Willis, as Judges of the Circuit Court, in and for Leon County, Florida, Respondents.
• Court: Florida District Court of Appeals

Page 821

302 So.2d 821

STATE of Florida ex rel. Floyd T. CHRISTIAN, Relator, v. The Honorable John A. RUDD and the Homorable Ben C. Willis, as Judges of the Circuit Court, in and for Leon County, Florida, Respondents.

No. W--313.

District Court of Appeal of Florida, First District.

Nov. 5, 1974.

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

Robert L. Shevin, Atty. Gen., Raymond L. Marky, Asst. Atty. Gen., T. Edward Austin, Jr., Aaron K. Bowden and Robert S. Willis, Jacksonville, for respondents.

PER CURIAM.

We here consider an Alternative Pleading filed by Relator, praying for Writ of Prohibition or in the Alternative our Writ of Common Law Certiorari.

This case is companion to, but not consolidated with, State of Florida ex rel. Floyd T. Christian v. The Honorable T. Edward Austin and The Honorable Aaron K. Bowden and The Honorable Robert Willis, as Assigned State Attorney and Assigned Assistant State Attorneys of the Second Judicial Circuit in and for Leon County, Florida, Case No. W--312, 302 So.2d 811, in which our opinion was filed this date. The relevant factual background is recited in that opinion and will not be here repeated.

After the indictments were returned Relator resigned his office as Commissioner of Education. Subsequent to arraignment he filed motions in the Circuit Court seeking to have dismissed the indictments against him, the thrust of his arguments being that in his capacity as Commissioner of Education he was not subject to indictment prior to impeachment and conviction in the manner prescribed by law and that unauthorized persons were present in the Grand Jury room during the time that evidence was presented which unauthorized persons actually conducted the interrogation of Petitioner before the Grand Jury in violation of F.S. 905.17(1) and F.S. 905.19. Those Motions were denied by the trial judge.

Our jurisdiction was invoked by the filing of a Petition for Writ of Prohibition, which contained an Alternative Prayer that in the event we should determine Prohibition inappropriate then the Petition be considered and treated as a Petition for Writ of Common Law Certiorari. We issued Rule Nisi and Respondents have filed their return.

While prohibition under certain circumstances might be available (see Eberhardt v. Barker, 1932, 104 Fla. 535, 140 So. 633; State ex rel. Crabtree v. Porter, 1933, 111 Fla. 621, 149 So. 610; State ex rel. Pearson, et al. v. Trammell, et al., 1936, 124 Fla. 543, 169 So. 45; and State ex rel. Schwarz v. Heffernan, 1940, 142 Fla. 137, 194 So. 313) we do not find it to be the proper remedy sub judice. (State ex rel. Losey v. Willard, Sup.Ct.Fla.1951, 54 So.2d 183 and Crill v. State Road Department, et al., 1928, 96 Fla. 110, 117 So. 795) Accordingly the Petition for Writ of Prohibition is denied.

We do, however, find common law certiorari to be appropriate under the facts of this particular case. This Court has often recognized that the issuance of the common law writ of certiorari to an inferior court lies in the sound judicial discretion of the Court and that the writ may be issued to correct the procedure of courts wherein they have not observed those requirements of law deemed to be essential to the administration of justice. In Gay v. City of Gainesville, Fla.App.1st 1966, 186 So.2d 41, we said:

'* * * A common law writ of certiorari issues in the sound judicial discretion of the court, the function of which is to cause the entire record of an inferior court to be brought up in order that it may be determined from the face thereof whether the inferior court has exceeded its jurisdiction, or has not proceeded according to the essential requirements of law. Confined to its legitimate scope, the writ may issue in the court's discretion to correct the procedure of an inferior court which has failed to observe those requirements of law which are deemed to be essential to the administration of justice.' (186 So.2d at page 43)

(See also State v. Smith, Fla.App.1st 1960, 118 So.2d 792; and Townsend v. State, Fla.App.1st 1957, 97 So.2d 712)

In Girten v. Bouvier, Fla.App.2nd 1963, 155 So.2d 745, our sister court of the Second District said, relative to the granting of common law certiorari:

'* * * Only in exceptional cases, such as those where the lower court acts without or in excess of jurisdiction, or where the interlocutory order does not conform to the essential requirements of law and may reasonably cause material injury throughout the subsequent proceedings for which remedy by appeal will be inadequate, will the appellate court exercise its discretionary power to issue the writ. See Wolf v. Industrial Supply Corp., Fla.1952, 62 So.2d 30; Kauffman v. King, Fla.1956, 89 So.2d 24; Taylor v. Board of Public Instruction of Duval County, Fla.App.1961, 131 So.2d 504. * * *' (155 So.2d at page 748)

In another opinion of the Second District, Leithauser v. Harrison, Fla.App.2nd 1964, 168 So.2d 95, that Court said:

'Certiorari is a discretionary writ which will be issued only where the lower court acts without or in excess of jurisdiction or where the interlocutory order does not conform to the essential requirements of law and may reasonably cause material injury throughout the subsequent proceedings for which the remedy by appeal will be inadequate. Kauffman v. King, Fla.1956, 89 So.2d 24. Normally, orders entered in discovery proceedings do not qualify for review under the above rule. However, review has been granted in exceptional cases where it appeared, among other things, that such orders were reasonably likely to result in substantial injury. * * *' (168 So.2d at page 97)

In recognition of exceptional circumstances, the District Court of the Second District again, in Rich v. Harper Neon Company, Fla.App.2nd 1960, 124 So.2d 750, held that since numerous condemnation cases were arising all over the State the court would entertain common law certiorari to pass upon an interlocutory order entered in an eminent domain proceeding.

Should we now refuse to act, deferring consideration until an appeal following trial should there be a conviction, the only practical result would be the great expense of time and money incurred by the Relator as well as the public. We are ever mindful of the great tax burden placed upon those who support our government and prefer to relieve them of undue expenses whenever feasible. Too, the achieving of justice is the primary responsibility of courts. We exercise our discretion and grant common law certiorari.

We do not agree with Petitioner's contention that he could not be indicted prior to impeachment or conviction pursuant to Article III, Section 17, Constitution of Florida, resignation or completion of his term of office. Article III, Section 17, Constitution of Florida, provides, in pertinent part as follows:

§ 17. Impeachment

(a) The governor, lieutenant governor, members of the cabinet, justices of the supreme court, judges of the district courts of appeal and judges of circuit courts shall be liable to impeachment for misdemeanor in office.

'(c) * * * Judgment of conviction in cases of impeachment shall remove the offender from office and, in the discretion of the senate, may include disqualification to hold any office of honor, trust or profit. Conviction or acquittal shall not affect the civil or criminal responsibility of the officer.' (Emphasis added)

There have been numerous cases in other jurisdictions in which indictments or informations have been returned against incumbent officials. (State ex rel. Olson v. Langer, 65 N.D. 68, 256 N.W. 377 (1934)--Indictment for commission of felony and conviction of Governor of North Dakota while in office; State ex rel. DeConcini v. Sullivan, 66 Ariz. 348, 188 P.2d 592 (1948)--Attorney General convicted of felony of conspiracy to violate the gambling laws. See also: 67 C.J.S. Officers § 133; Briggs v. Board of County Commissioners of Muskogee County, et al., 202 Okl. 684, 217 P.2d 827, 20 A.L.R.2d 727)

In response to this identical point in In re Investigation by Dauphin County Grand Jury, September, 1938, 332 Pa. 342, 2 A.2d 804, the Supreme Court of Pennsylvania in interpreting a constitutional provision almost identical to the impeachment provision of our Florida Constitution and in being confronted with a similar separation of powers argument, explained petitioner's position and held as follows:

'Petitioner stands on Article 6 of the constitution, dealing with impeachments, section 1, P.S.Const. art. 6, § 1, providing that, 'The House of Representatives shall have the sole power of impeachment', and section 3, P.S.Const. art. 6, § 3, that 'The Governor and all other civil officers shall be liable to impeachment for any misdemeanor in office, but judgment in such cases shall not extend further than to removal from office and disqualification to hold any office of trust or profit under this Commonwealth; the person accused, whether convicted or acquitted, shall nevertheless be liable to indictment, trial, judgment and punishment according to law.' Petitioner contends that as the sole power of impeachment has been delegated to the House of Representatives, the legislature may, on the conditions specified in Act number 4, halt the grand jury investigation of crimes alleged to have been committed by impeachable officers.

'Both parties, in support of their positions, refer to the doctrine of the separation of governmental powers into legislative, executive and judicial.

'The right of the people to be protected against crime and their opportunity of ascertaining and punishing the criminal, as well as the criminal's right (except where by leave of court he may be proceeded against for oppression or misdemeanor in office), is therefore not only as fully recognized in the constitution as the power to impeach civil...