SC08-844 - Advisory Opinion To The Governor RE: Appointment or Election of Judges

SUPREME COURT CASES

Laws-info.com » Cases » Florida » Florida Supreme Court » 2008 » SC08-844 - Advisory Opinion To The Governor RE: Appointment or Election of Judges

State: Florida

Court: Supreme Court

Docket No: SC08-844

Case Date: 01/10/2008

Preview:Supreme Court of floriba

ADVISORY OPINION TO THE GOVERNOR RE: APPOINTMENT OR ELECTION OF JUDGES.
[May 19,20081

The Honorable Charlie Crist Governor, State of Florida The Capitol Tallahassee, Florida 32399
Dear Governor Crist:

By letter dated May 5 , 2008, you requested our opinion on a question of
constitutional interpretation involving your executive powers and duties with regard to a judicial vacancy in the Leon County Court. This request and our

response are pursuant to article IV, section (l)(c) of the Florida constitution.'

1. Article TV,section (l)(c) provides in full:
The governor may request in writing the opinion of the justices of the supreme court as to the interpretation of any portion of this constitution upon any question affecting the governor" executive powers and duties. The justices shall, subject to their rules of procedure, permit interested persons to be heard on the questions presented and shall render their written opinion not earlier than ten

Your letter provided as follows: This question has arisen in the context of the recent vacancy in Leon County Court Seat 5. Seat 5 was previously scheduled for election in the 2008 general election cycle with the qualifying period scheduled to commence at noon, Monday April 28,2008, and continue through noon, Friday, May 2,2008. On April 30,2008, the Court entered an order declaring incumbent Judge Timothy D. Harley to be involuntarily retired from judicial service effective midnight on the date of the order. In an advisory opinion issued in 2002, the Justices of the Court opined that circuit and county court vacancies are filled by gubernatorial appointment, unless the vacancy occurs after the "election process" begins, which the Justices found to be "when a candidate or candidates have qualified for the circuit or county judgeship." In re Advisory Opinion to Governor re: Appointment or Election of Judges, 824 So. 2d 132, 135 (Ela. 2002). According to the Leon County Supervisor of Elections (the "Supervisor"), at the time the Leon County Court vacancy occurred at midnight, April 30,2008, no candidate or candidates had qualified for the judgeship. After receiving that information, and in accordance with the Court's 2002 advisory opinion to the Governor, my General Counsel notified the Judicial Nominating Commission for the Second Judicial Circuit (the "JNC") of the vacancy and constitutional requirement that the SNC submit a. list of nominees to the Governor within thirty days from the date of the vacancy. On May 1,2008, the JNC advertised the vacancy and application deadline. On May 1,2008 my legaI counsel contacted the Leon County Supervisor of Elections, and informed him that the JNC had been notified of the vacancy and commenced the judicial nominating process. The Supervisor informed my counsel that he was aware of the vacancy to be filled by gubernatorial appointment and that he intended to refuse to accept qualifying papers from individuals attempting to qualify on May 1,2008. On Friday, May 2,2008, the Supervisor contacted my legal counsel and informed him that, upon hrther review, the Supervisor had reversed his position and
days from the filing and docketing of the request, unless in their judgment the delay would cause public injury.

determined that, despite commencement of the JNC process, he had a ministerial duty to accept qualifying papers and fees. On the morning of May 2,2008, prior to the noon qualifying deadline, the Supervisor also affirmatively advised three candidates of his reversal and qualified these candidates for Leon County Court, Seat 5 , all of whom the Supervisor had rehsed to quali@ on May 1,2008. Consequently, both the appointment and election processes are now underway to fill the same vacancy. . . . In order to minimize hardship on the Leon County Court, I intend to fill the vacancy in June 2008, resulting in a vacancy of no more than 30 to 60 days. By contrast, if the vacancy were to be filled by election, Seat 5 wouId be unoccupied for more than eight months from May 1, 2008 until January 6, 2009.

.,.. . . . I respectfully request an opinion of the Justices of the

Supreme Court as to whether the Governor" constitutional obligation under article V, section I 1(b), Florida Constitution, to fill a vacancy on a circuit or county court by appointment continues until a candidate or candidates have qualified for the office, irrespective of whether the statutory qualifying period has commenced. Letter from Governor Charlie Crist to Chief Justice R. Fred Lewis dated May 5 ,

2008, at 1-4. On May 6, 2008, this Court issued an order permitting all interested
parties to file briefs on an expedited bask2 ANALYSIS

The instant inquiry arises because the Florida Constitution contains two
conflicting provisions with regard to the filling of judicial vacancies. Article V, section I 1(b) governing judicial vacancies provides that "the governor shall fill each vacancy on a circuit court or on a county court, wherein the judges are elected

2. Briefs were filed by the Supervisor of Elections of Leon County, Ion Sancho, and by candidates Nina Ashenafi Richardson and Sean Desmond.

by a majority vote of the electors, by appointing for a term ending on the first
Tuesday after the first Monday in January of the year following the next primary

and general election occurring at least one year after the date of appointment, one
of not fewer than three persons nor more than six persons nominated by the appropriate judicial nominating commission.'~~onversely, the portion of article V

that addresses judicial elections specifically provides that the election of circuit and
county court judges "shall be preserved." Art. V,

Download SC08-844 - Advisory Opinion To The Governor RE: Appointment or Election of Judge