IN THE SUPREME COURT OF THE STATE OF FLORIDA

IN THE SUPREME COURT OF THE STATE OF FLORIDA John House, Petitioner, v. State of Florida, and the Honorable Dale Ross, Chief Judge of the 17th Judicial Circuit, in and for Broward County Florida, Respondents. / URGENT1 PETITION FOR WRIT OF PROHIBITION AND/OR PETITION FOR REVIEW OF ADMINISTRATIVE ORDER The Petitioner, John House, by and through undersigned counsel, respectfully petitions this Honorable Court, pursuant to Article V, section 3 (b)(7) of the Florida Constitution and Wild v. Dozier, 672 So.2d 16 (Fla.1996), to issue an order to show cause, and after response from opposing counsel, issue a writ of prohibition prohibiting the Respondent, the Honorable Royce Agner, from presiding over the trial in these matters in Broward County Criminal Case Nos. 9819462CF10A and 98-21812CF10A. Petitioner also seeks an order directing the chief judge appoint only as temporary judges retired judges who are residents of Case No. L.T. Case No. 98-19462CF10A 98-21812CF10A (Broward) This petition is designated “urgent” because the petitioner is scheduled for calendar call on May 4, 2001. 1 1 Broward County. Petitioner, John House, is a defendant in the Circuit Court, Criminal Division of the 17th Judicial Circuit, case nos. 98-19462CF10A and 98-21812CF10A. The Respondent, the Honorable J. Royce Agner, is the retired circuit court judge who is not a resident of Broward County, currently assigned to preside over the Petitioner’s criminal prosecution. The Respondent, the Honorable Paul Backman, is the Administrative Criminal Judge who denied petitioner’s Amended Motion to Vacate Order Transferring Case to Retired Judge. The Respondent, Honorable Dale Ross, is the Chief Judge of the 17th Judicial Circuit who rendered Administrative Orders VII-01-F-222, III-97-C-1 and I-92-J-1, which assign Judge Agner to Criminal Division FS and to the Petitioner’s cases. In this Petition, the Petitioner John House will be referred to as such. The Respondent, the Honorable Royce Agner, will be referred to as "retired judge." Respondent the Honorable Paul Backman will be referred to as “administrative This order assigns the retired judge to service in the circuit court from Monday, April 2, 2001, to Monday, April 30, 2001. Undersigned appeared before the retired judge on April 12, 2001in an unrelated criminal matter, State v. Lorenzo Mills, Broward Criminal Circuit Court Case No. 97-6463CF10A and was advised by the court that it would be on the bench on May 7, 2001. Therefore another monthly order of assignment is forthcoming. Petitioner will be requesting that order also be quashed and will file that order with this Court as a Supplemental Appendix when rendered. 2 2 judge.” Respondent the Honorable Dale Ross will be referred to as “chief judge.” The symbol "A" in this Petition refers to the Appendix attached hereto. JURISDICTION This Honorable Court has jurisdiction pursuant to Article V, Section 3(b)(7) of the Florida Constitution, Rule 9.030(a)(3), Fla.R.App.P. (2001), and Wild v. Dozier, 672 So. 2d 16 (Fla.1996), wherein this Court held that challenges to administrative orders on judicial assignments must first be made by motion in the trial court and reviewed by petitions to this Court. RELIEF SOUGHT The Petitioner seeks the immediate issuance of a Rule to Show Cause directing respondents to show cause why this petition should not be granted. Petitioner requests that the rule be issued immediately because he is scheduled for calendar call3 on May 4, 2001. (A 1) The petitioner further requests the issuance of a Writ of Prohibition, prohibiting the retired judge from sitting as a Broward Circuit Court Judge in State of Florida v. John House, Case Nos. 98-19462CF10A and 9821812CF10A. Additionally, petitioner seeks an order quashing Administrative Order VII-01-F-22 and directing the chief judge not assign as a temporary judge 3 At calendar call, cases are routinely set for the next week trial docket. 3 any retired judge who is not a resident of Broward County. 4 FACTS Procedural History The Petitioner is charged in case no. 98-194662CF10A with burglary with a battery, kidnaping, armed robbery, sexual battery- victim threatened. (A 2) In case no. 98-21812CF10A, petitioner is charged with burglary of a structure with a battery. (A 3) The Petitioner’s cases were originally assigned, via blind rotation, to the Honorable Susan Lebow, a duly elected circuit court judge. (A 4) Pursuant to Administrative Orders VII-01-F-22, III-97-C-1 and I-92-J-1, the cases were reassigned to Senior Judge J. Royce Agner. (A 5) Judge Agner is a senior judge who is not a resident of Broward County. Petitioner filed an Amended Motion to Vacate Order Transferring Case to Retired Judge. 5 (A 6) The motion was set before the retired judge. 6 Judge Agner The Seventeenth Judicial Circuit is comprised entirely of Broward County. §26.021(17) Fla.Stat. (2000) 4 The motion was filed before the trial court in light of this Court’s decision in Card v. State, 497 So. 2d 1169 (Fla. 1986) (Actions taken by a de facto judge are merely voidable and not void. Thus failure to timely object constitutes a waiver.) An objection in the trial court is required. 5 The motion was first heard on September 15, 2000, by the Honorable Stanley Goldstein, another senior judge who is not a resident of Broward County and is repeatedly assigned as a temporary judge in the Seventeenth Judicial Circuit. 6 4 stated that he would not vacate the Administrative Judge’s order of transfer and denied the motion without prejudice to bring it before the Administrative Judge. (A 8 at pages 7-8) The Amended Motion to Vacate Order Transferring Case to Retired Judge was heard by the Administrative Judge. (A 9) That Court denied the motion on February 28, 2001. (A 10) The case was reset before the retired judge and scheduled for calendar call on May 4, 2001. (A 1) Use of Retired Judges in the Seventeenth Judicial Circuit Judge J. Royce Agner is a retired judge authorized to sit as a senior judge7 by Florida Supreme Court Order rendered June 15, 2000, entitled “In Re: Assignment of Temporary Judges to the Seventeenth Judicial Circuit.” (A 11) The assignment order states: Under and by virtue of the authority of this order, these judges are hereby vested with all powers and prerogatives conferred by the Constitution and the laws of the State of Florida upon a judge of the court to which they are assigned. (A 11) The retired judge, Judge Agner, is named in the attachment to the assignment order as a judge temporarily assigned to the Seventeenth Judicial The court denied the motion and the case was transferred to Judge Agner. (A 7) 7 The terms “senior judge” and “retired judge” are synonymous. 5 Circuit. (A 11) In accordance with this Court’s order of assignment, the retired judge is routinely and consistently assigned to temporary duty in Broward County by monthly administrative order. These monthly orders, although not always consecutive, span more than three years. (A 12; A 5) Pursuant to Administrative Order No. III-97-C-1, Judge Agner handles cases assigned to division FS, a division staffed solely by retired judges. (A 13) Administrative Order I-92-J-1 establishes procedures for requesting the assignment of a senior judge. (A 14) The order incorporates this Court’s Memorandum of July 1, 1991, for case classification and assignment priorities. (A 15) This Court’s Memorandum sets forth the following priorities: (1) short term emergencies due to illness or other unforseen circumstances; (2) speedy trial rule problems and for coverage of criminal dockets, including statewide prosecution/grand jury cases that would otherwise be disruptive of criminal calendars; (3) other long duration criminal trials; (4) special categories of cases where an available senior judge has developed the necessary expertise (e.g. asbestosis cases); (5) vacancies due to retirement or death; (6) incapacity of a judge; (7) during the suspension of judges pending completion of criminal or Judicial Qualifications Commission investigations; (8) planned medical absences; (9) maternity leave; 6 (10) case requires non-resident judge and no active judges are available in adjacent circuits/counties; (11) long duration civil trials that would otherwise be disruptive of civil calendars; and (12) coverage of dockets for judges who are attending judicial education of more than a week’s duration. Administrative Order I-92-J-1 provides that, if a case meets the criteria set forth in the Memorandum, the trial judge should submit a written request with the Administrative Judge for assignment of the case to a retired judge. 8 (A 15) The Administrative Judge in turn must contact each active judge in the division (civil or criminal) to determine availability for temporary assignment to the case, seek the service of a retired judge to sit pro bono, or finally pass the written request to the Chief Judge for assignment to a retired judge. (A 15) ARGUMENT Retired Judges Not Residents of Broward County are not Qualified to Serve as Broward County Circuit Court Judges A senior judge is any jurist who has reached the age of 70, retired, and is “recalled to service.” See Art. V §8, Fla.Const.; Section 25.073 Fla.Stat (1999); Rule 2.030(3)(A),(B) Fla.R.Jud.Admin (2000). Florida Statute 25.073 defines “retired” judges and justices as jurists who were not defeated in their last election or At bar, petitioner’s cases were assigned a retired judge by the Administrative Judge without written request by the trial court. 8 7 declined merit retention and who are not engaged in the practice of law. Article V, section 2 (b) of the Florida Constitution empowers the chief justice of the Florida Supreme Court, as the chief administrator of the judicial system, to assign judges or justices, including consenting retired justices or judges, to temporary duty in any court “for which the judge is qualified and to delegate to a chief judge of a judicial circuit the power to assign judges for duty in that circuit.” (emphasis added) This provision was adopted in 1972. Early in our state’s history, the governor was constitutionally authorized to temporarily assign judges between circuits. Article 5, section 8 of the 1885 Florida Constitution provided: “The Governor may, in his discretion, order a temporary exchange of circuits by the respective judges, or may order any judge to hold one or more terms or parts of any term in any other circuit than that to which he is assigned. The judge shall reside in the circuit of which he is judge.” Johnson v. Adkins, 197 So. 526, 527 (Fla. 1940). Thus, the 1885 constitution specifically provided for the temporary assignment of judges among circuits. The authority to assign cases was later transferred to the chief justice in the 1956 amendment to Article V: Section 2. Administration. The chief justice of the 8 supreme court is vested with, and shall exercise in accordance with rules of that court, authority temporarily to assign justices of the supreme court to district courts of appeal and circuit courts, judges of district courts of appeal and circuit courts to the supreme court, district courts of appeal, and circuit courts, and judges of other courts, except municipal courts, to judicial service in any court of the same or lesser jurisdiction. Any retired justice or judge may, with his consent, be likewise assigned to judicial service. The 1956 amendment did not contain a provision that the judge be qualified for the assignment. It is important to note that the 1956 amendment did contain an eligibility provision which required at least ten years membership in the Florida Bar for justices and district court judges and membership in the Florida Bar of any person at least 25 years of age for a circuit court judgeships. Article 5, section 13 Fla.Const. (1956) The 1956 constitution did not have a residency provision for judges. Thus, the 1956 constitution allowed for the assignment of any judge to any court regardless of qualification or residency. A 25 year old attorney newly admitted to the Florida Bar was a candidate for assignment to the Florida Supreme Court. The present Article 5, section 2 does not authorize assignments outside the circuit to which a judge is elected or for which the judge is not qualified. This is a substantial change from prior constitutional provisions and limits the chief justice’s 9 power of assignment. Rule 2.030(a)(2)(B)(iii) Fla.R.Jud.Admin. (2000) authorizes the chief justice to assign retired judges to judicial service in this state in accordance with subdivisions (a)(3) and (a)(4). Subdivision (a)(3) provides: The chief justice may, either upon request or when otherwise necessary for the prompt dispatch of business in the courts of this state, temporarily assign justices of the supreme court, judges of the district courts of appeal, circuit judges, and judges of county courts to any court for which they are qualified to serve. Any consenting retired justice or judge may be assigned to judicial service and receive compensation as provided by law. (emphasis added) Subdivision (a)(4) provides: (C) When any circuit or county judge is unable to perform the duties of office, or when necessary for the prompt dispatch of business of the court, the chief judge of the circuit may assign any judge in the circuit to temporary service for which the judge is qualified, in accordance with rule 2.050. If the chief judge deems it necessary, the chief judge may request the chief justice to assign a judge to the court for such time or such proceedings as the chief justice may direct. (emphasis added) In the case at bar, the retired judge is not qualified to serve in the Seventeenth Judicial Circuit. Article V, section 8 of the Florida Constitution states: Eligibility. - No person shall be eligible for office of justice or judge of any court unless the person is an elector of the state and resides in the territorial jurisdiction of the court. No justice or judge shall serve after attaining the age of seventy years except upon temporary assignment or to complete a term, one-half of which has been served. 10 No person is eligible for the office of justice of the supreme court or judge of a district court of appeal unless the person is, and has been for the preceding ten years, a member of the bar of Florida. No person is eligible for the office of circuit court judge unless the person is, and has been for the preceding five years, a member of the bar of Florida. Unless otherwise provided by general law, no person is eligible for the office of county court judge unless the person is, and has been for the preceding five years, a member of the bar of Florida. Unless otherwise provided by general law, a person shall be eligible for election or appointment to the office of county court judge in a county having a population of 40,000 or less if the person is a member in good standing of the bar of Florida. (Emphasis added) The retired judge is not a resident of Broward County. In Brown v. State, 526 So. 2d 903 (Fla. 1988), this Court recognized that the Florida Constitution authorized the temporary assignment of a judge to any court for which the judge is “qualified.” The Court then defined “qualified” by relating the term to Article V, section 8, which “establishes the general qualifications for judicial service: Eligibility.-- No person shall be eligible for the office of justice or judge of any court unless he is an elector of the state and resides in the territorial jurisdiction of his court....” Id. at 905, note 8. See also, Treadwell v. Hall, 274 So. 2d 537 (Fla. 1973) (relying on Article V, section 8 to determine whether county judge is qualified to serve as temporary circuit court judge.) Judge J. Royce Agner is not qualified to sit as a Broward Circuit Court judge because he does not reside in the territorial jurisdiction of the 17th Judicial Circuit 11 and thus could not have been elected to the circuit court in Broward County. The residency requirement is as equally important to the qualifications of a judge as is the bar membership requirement. Article V, section 8 Fla.Const. A person with less than five years membership in the Florida Bar is unqualified to sit as a circuit court judge, just as is a person who is not an elector of the state or who is not a resident of the territorial jurisdiction of the court. Recently, in Miller v. Gross, 4D00-2951 9, the Fourth District Court of Appeal held that an individual who did not reside in Broward County did not qualify for election as a county court judge. The court equated the term “reside” with “domicile,” stating that “legal residence or domicile means a residence at a particular place, accompanied with positive or presumptive proof of an intention to remain there for an unlimited time.” The district court also noted in Miller the intent behind the judicial residency requirements: Moreover we sense that article V, section 8, has a purpose to insure that judges come from the community within the territorial jurisdiction of the court. While judges may not represent that territory in the same way that legislators do, it is quite understandable that the citizens of Florida would want their judges to be acquainted with the problems of the community, to be familiar with its history and mores, to have This opinion was issued August 30, 2000, but only released for publication on February 16, 2001. However, it has not appeared in the Florida Law Weekly and does not have a West Southern Second citation. A copy is contained in the appendix at A 16. 9 12 actually lived within its confines and experienced its recent history, in order to judge its cases. Opinion at page 4-5. The retired judge is not qualified to sit as a circuit court judge in the Seventeenth Judicial Circuit because he could not be elected as a judge in Broward County. The retired judge is not familiar with the problems of the community, its history and mores and is unqualified to judge the community’s cases. Repetitive Orders of Assignment Constitute Permanent Assignment The retired judge has not been assigned to temporary duty in Broward County, but has been routinely and repeatedly assigned to sit on the circuit court bench. Although each assignment has been for a one month period, the repetitive orders of assignments constitute a de facto permanent assignment. Contained in the appendix are 54 orders assigning the retired judge to handle cases in the Seventeenth Judicial Circuit. (A 5; A 18)10 In Payret v. Adams, 500 So. 2d 136 (Fla. 1986), this Court held the successive and repetitive assignment of a county court judge to sit as a circuit court judge amounted to de facto permanent All but 12 of the 54 orders are monthly assignments. All but one of the 12 orders assign the retired judge for a specified date and have corresponding monthly orders which cover that specified date making the order for the specified date unnecessary.(A 18) 10 13 assignment in violation of the constitution: [C]onstitutional provisions cannot be ignored for reasons of convenience. Article V, section 10(b), mandates that circuit court judges shall be elected by a vote of the qualified electors within the territorial jurisdiction of the court. Article V. Section 11(b), provides that when a vacancy on a circuit court occurs, the governor shall appoint a judge to fill that vacancy. Respondent has become a permanent circuit court judge not by the method mandated by the constitution, but by administrative order. This cannot be done. Id. at 139. The consistent and repetitive assignment of the retired judge constitutes a permanent appointment in violation of the Florida Constitution. Petitioner is aware that the utilization of retired judges has become a necessity for the effective administration of justice. See Rule 2.035(b)(1)(B)(ii) Fla.R.Jud.Admin. (2001); In Re Certification of the Need for Additional Judges, 755 So. 2d 79 (Fla. 2000) (senior judges provide approximately the equivalent of 34 full-time judge years of service annually); In Re Certification of the Need for Additional Judges, 26 Fla.L.Weekly S 181 (Fla. Feb. 29, 2001) (senior judges are vital to the continued operating effectiveness of Florida trial courts); In Re Certification of Need for Additional Judges, 728 So. 2d 730 (Fla. 1999); In Re Certification of Need for Additional Judges, 651 So. 2d 92 (Fla. 1995); In Re Certification of Need for Additional Judges, 669 So. 2d 1037 (Fla. 1996); However, necessity, like 14 convenience, is not an exception to the constitutional requirement that circuit court judges be elected. Moreover, petitioner does not challenge every assignment of retired judges - only the assignment of non-resident retired judges on a permanent basis. The Use of Retired Judges Infringes on the Right of Suffrage11 Article I, Section I of the Florida Constitution states: All political power is inherent in the people. The enunciation herein of certain rights shall not be construed to deny or impair others retained by the people. The right to vote is paramount in our democracy. Circuit court judges are elected unless a county exercises its local option for merit selection and retention: The election of circuit judges shall be preserved notwithstanding the provisions of subsection (a) unless a majority of those voting in the jurisdiction of that circuit approves a local option to select circuit judges by merit selection and retention rather than by election. The election of circuit court judges shall be by a vote of the qualified electors within the territorial jurisdiction of the court. Article V, section 10 (b)(1) Fla.Const. Broward County voters rejected the merit selection and retention option in November, 2000, and affirmed their desire to elect circuit court judges. This issue was not raised in Petitioner’s Amended Motion to Vacate Order Transferring Case to Retired Judge. However, the Administrative Judge’s order denying the motion addresses this point. 11 15 The right to elect circuit court judges, in territorial jurisdictions which reject merit selection, is subject to two exceptions. First, if a circuit court vacancy occurs, the Governor may appoint a replacement upon recommendation by the Judicial Nominating Commission. Article V, section 11 Fla.Const. However, the appointment may only extend to 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 the appointment.” Article V, section 11(b) Fla.Const. An election must then be held to fill the vacancy. Id. Thus, the Governor’s power of appointment is limited. Second, the chief justice is authorized by Article V, section 2(b) of the Florida Constitution to assign temporary judges or justices. The chief justice of the supreme court shall be chosen by a majority of the members of the court; shall be the chief administrative officer of the judicial system; and shall have the power to assign justices or judges, including consenting retired justices or judges to temporary duty in any court for which the judge is qualified and to delegate to a chief judge of a judicial circuit the power to assign judges for duty in that circuit. Again, the power of appointment is limited. A chief justice may only appoint qualified appointees for temporary duty. These limited powers of appointment “shall not be construed to deny or 16 impair” the people’s right of suffrage. Article I, section 1 Fla.Const (1968). The right to vote is critical to our system of government, as recognized by this Court: Ours is a government of, by and for the people. Our federal and state constitutions guarantee the right of the people to take an active part in the process of that government, which for most of our citizens means participation via the election process. The right to vote is the right to participate; it is also the right to speak, but more importantly the right to be heard. We must tread carefully on that right or we risk the unnecessary and unjustified muting of the public voice. Boardman v. Esteva, 323 So. 2d 259 (Fla. 1975). The repetitive assignment of retired judges in Broward County denies its citizens their expressed choice to elect judges. The citizens of Broward County explicitly rejected the local option of merit selection and retention. Yet retired judges from outside Broward County are repeatedly appointed to sit on the Broward Circuit Court bench. Additionally, Administrative Order II-97-C-1 creates criminal division FS and states that the division will be staffed by senior judges. (A 14) Thus unelected judges are presiding over an entire criminal division in the Seventeenth Judicial Circuit. The repetitive assignment of non-resident senior judges effectively disenfranchises the voters of Broward County. Accordingly, the Petitioner respectfully requests this Honorable Court to issue a Rule to Show Cause directed to the Respondent and, after appropriate response, issue a Writ of Prohibition quashing the trial court’s order denying the 17 Petitioner’s Motion to Vacate Order Transferring Cases to Retired Judge and further direct that the chief judge appoint as only temporary judges retired judges who are residents of Broward County. Petitioner further requests that this Court vacate administrative order VII-01-F-22 which assigns the retired judge to temporary duty from April 2, 2001 and April 30, 2001. Respectfully submitted, ALAN H. SCHREIBER Public Defender 17TH Judicial Circuit Diane M. Cuddihy Chief Assistant Public Defender Florida Bar No. 434760 201 S.E. 6th Street North Wing - Third Floor Ft. Lauderdale, Florida 33301 (954) 831-8814 Counsel for Petitioner CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing Petition for Writ of Prohibition was delivered by Inter-Office Mail to James Weick, Esq., Assistant State Attorney, Office of the State Attorney, Broward County Courthouse, Room 568 and James McLane, Esq., Assistant State Attorney, Office of the State Attorney, Broward County Courthouse, Room 675, 201 S.E. 6th 18 Street, Ft. Lauderdale, Fl. 33301, to the Honorable J. Royce Agner, Broward County Courthouse, The Honorable Paul Backman, Broward County Courthouse, and the 19 Honorable Dale Ross, Chief Judge, Broward County Courthouse, by Overnight Mail to the Department of Legal Affairs, 1655 Palm Beach Lakes, Blvd., Suite 300, West Palm Beach, Florida, this 16th day of April, 2001. Diane M. Cuddihy CERTIFICATE OF TYPE SIZE AND STYLE In accordance with the Rule 9.100(l) Fla.R.App.P., counsel for the Petitioner hereby certifies that the instant petition has been prepared with 14 point in Times New Roman font. Diane M. Cuddihy 20