State ex rel. Turner v. Earle

• Decision Date: 27 February 1974
• Docket Number: No. 44339,44339
• Citation: 295 So.2d 609
• Parties: STATE of Florida ex rel. Jack M. TURNER, Relator, v. Richard T. EARLE, Jr., Chairman, et al., Respondents.
• Court: Florida Supreme Court

Page 609

295 So.2d 609

STATE of Florida ex rel. Jack M. TURNER, Relator, v. Richard T. EARLE, Jr., Chairman, et al., Respondents.

No. 44339.

Supreme Court of Florida.

Feb. 27, 1974.

As Modified on Denial of Rehearing May 31, 1974.

Marion E. Sibley, of Sibley, Giblin, Levenson & Ward, Miami Beach, for relator.

Wm. Reece Smith, Jr., of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Thomas C. MacDonald, Jr., of Shackleford, Farrior, Stallings & Evans, John Germany of Holland & Knight, Tampa, and Sam Daniels, Miami, for respondents.

ROBERTS, Justice.

This cause is before us on petition for writ of prohibition by which relator seeks to prohibit the Judicial Qualifications Commission from proceeding further in the formal proceedings initiated by the Commission against him. Relator urges that the Commission is without constitutional jurisdiction to proceed against him for acts allegedly committed by him while he served as Criminal Court of Record Judge and prior to the time he was elected and commissioned as a Circuit Judge, in and for the Eleventh Judicial Circuit of this State.

Preliminarily, we directed that rule nisi in prohibition issue and in said order circumscribed the following question for briefing by the respective parties:

'Does the Judicial Qualifications Commission have jurisdiction to investigate and if appropriate to recommend discipline of, an incumbent circuit judge for misconduct alleged to have been committed prior to the time he became a circuit judge (and while he held another office not within the jurisdiction of the Judicial Qualifications Commission)?'

Relative to our jurisdiction and the remedy employed by relator to vest this court with jurisdiction of the immediate cause, we must initially conclude that prohibition does not lie herein because the Judicial Qualifications Commission has no power to enter judgments or orders. The Judicial Qualifications Commission is not a judicial tribunal or commission within the purview of Article V, Section 3(b)(4), Florida Constitution, F.S.A. ¹ But rather it is the duty of this commission to investigate judicial conduct and make recommendations when agreed to by two-thirds of the members as to discipline of a judge to the Supreme Court. ² The commission is an adjunct of the judicial branch of the government and shares the responsibility with the Supreme Court in matters involving discipline of judges. It is the Supreme Court which must take the final action. In In Re Kelly, a proceeding on recommendation of the commission, this court opined that, 'The commission is in fact an arm of this Court dealing with a vital function of the Court and under its exclusive jurisdiction. While the power to render the ultimate judgment in these cases is vested in this Court, the findings and recommendations of the Florida Judicial Qualifications Commission are entitled to receive due consideration and are of persuasive force. . . . However, the ultimate responsibility of making a determination rests with this Court. . . .' Prohibition is that process by which a superior court prevents an inferior court or tribunal possessing judicial or quasi-judicial ³ powers from exceeding its jurisdiction in matters over which it has cognizance or usurping jurisdiction over matters not within its jurisdiction to hear and determine. Prohibition is an extraordinary writ, a prerogative writ, very narrow in its scope of operation, used with great caution where ordinary remedies provided by law are not applicable or adequate. State ex rel. B. F. Goodrich Co. v. Trammell, 140 Fla. 500, 192 So. 175 (1939); Burkhart v. Circuit Court of Eleventh Judicial Circuit et al., 146 Fla. 457, 1 So.2d 872 (1941); State ex rel. Gillham v. Phillips, 193 So.2d 26 (Fla.App.1966); State ex rel. Ferre v. Kehoe, 179 So.2d 403 (Fla.App.1965); Owen et al. v. Bond et al., 83 Fla. 495, 91 So. 686 (1922). In State ex rel. swearingen et al. v. Railroad Commissioners of Florida, 79 Fla. 526, 84 So. 444 (1920), this Court succinctly stated:

'The statutes regulating the procedure in issuing writs of prohibition contemplate the use of the writ only to restrain the unlawful exercise of judicial or quasi judicial power.

'At common law it is well settled that a writ of prohibition must be directed to some judicial tribunal or officer. In other words, it lies only to prevent or control judicial (or quasi judicial) action, as distinguished from legislative, executive, or ministerial action. Accordingly, it is generally held that prohibition will not lie to prevent the performance of ministerial duties by executive or administrative officers, or to restrain the performance by the courts of duties which are merely administrative and ministerial.'

Since the commission lacks the power essential to judicial or quasi-judicial tribunals either to reach a final decision or to implement that decision, prohibition is an inappropriate remedy, sub judice.

However, in view of Article V, Section 2(a), Florida Constitution as amended 1973, F.S.A., which provides in pertinent part that '. . . no cause shall be dismissed because an improper remedy has been sought,' Article V, Section 12(c), Florida Constitution 1973, F.S.A., which provides:

'The supreme court shall adopt rules regulating proceedings of the commission, the fil(l)ing of vacancies by the appointing authorities and the temporary replacement of disqualified or incapacitated members. After a recommendation of removal of any justice or judge, the record of the proceedings before the commission shall be made public.'

and Article V, Section 3(b)(4), Florida Constitution 1973, F.S.A., which provides:

'(b) Jurisdiction. The supreme court:

'. . .

'(4) May issue . . . all writs necessary to the complete exercise of its jurisdiction.'

we have jurisdiction of this cause and in this posture we will proceed with the disposition of the question of law presented.

We are primarily concerned at this time with the above posited question which was specified in our order directing that rule nisi in prohibition issue. With regard to this issue, the following facts presented by Turner in his petition are pertinent. Jack M. Turner is a duly elected and commissioned Circuit Judge of the Eleventh Judicial Circuit in and for Dade County, Florida. He Was elected to a six-year term which commenced on the first Tuesday after the first Monday in January, 1973, and was commissioned to this office as Circuit Judge on November 8, 1973. Prior to becoming a Circuit Judge, Turner had been elected and commissioned for a term of four years from the first Tuesday after the first Monday in January, 1969, to the office of Judge of the Criminal Court of Record of Dade County, Florida, and had served in such capacity until the first Tuesday after the first Monday in January, 1973. On April 6, 1973, an indictment was returned against Turner charging that he, as a judicial officer, namely a Criminal Court of Record Judge, on August 14, 1972 through October 13, 1972, conspired to commit the felony of bribery. The Judicial Qualifications Commission initiated formal proceedings against Turner charging him with conduct unbecoming a member of the judiciary based on the events described in the indictment occurring from August 14, 1972, and continuing and including October 13, 1972, alleged acts and conduct which occurred while Turner served as a Criminal Court of Record Judge and before he was commissioned as a Circuit Judge. Based on the aforestated charges, the commission filed a request for suspension of Turner on April 16, 1973, upon which this Court declined to act at that time since Turner filed a statement of his intent not to discharge his duties as Circuit Judge pending disposition of the charges. Subsequently, on August 14, 1973, he was tried before a jury on these charges and was acquitted. Turner states that he has been informed that the commission is proceeding against him and intends to file a second request for his suspension with this Court based upon the same grounds, the charges included in the indictment as above explained.

Relator contends that the commission lacks power to further proceed against him for alleged acts committed by him in another public office. There is no dispute between the parties herein involved that prior to January 1, 1973, the 'new' commission ⁴ could not have investigated or made recommendations to this Court regarding relator since he was not a member of that part of the judiciary within the commission's jurisdiction as defined by Article V, Section 17, Florida Constitution 1968, F.S.A. Prior to January 1, 1973, the Judicial Qualifications Commission had jurisdiction only of alleged misconduct on the part of justices of the Supreme Court, judges of the District Courts of Appeal, and judges of the Circuit Courts. No other judgeships were under the jurisdiction of the Judicial Qualifications Commission. Because of this factual background, the Court in disposing of the matter, circumscribed the above-described question containing particularly the bracketed words 'and while he held another office not within the jurisdiction of the Judicial Qualifications Commission.' The issue now presented is whether the new commission may now proceed against relator for alleged misconduct occurring prior to his commission as Circuit Judge and while he was in another public office.

Although as aforestated, it is not the prerogative of the Judicial Qualifications Commission to suspend or remove a member of the judiciary from office, but rather only to make recommendations to this effect to the Supreme Court, we are compelled to render a decision by the facts of the instant cause and the necessity to avoid duplicitous and lengthy future proceedings on this matter when such may be avoided by an opinion in the form of a rule-making opinion dispositive of the issue.

Recognizing that there are divergent views, we find that the rule supported by the great weight of authority and...