IN RE RULES OF PROC. OF COM’N ON JUDICIAL RETIRE., 116 So.2d 433 (Fla. 1959)

IN RE RULES OF PROCEDURE OF COMMISSION ON JUDICIAL RETIREMENT.

Supreme Court of Florida.
Adopted December 14, 1959. Effective December 14, 1959.

PER CURIAM.

Pursuant to the provisions of § 17(2) of Article 5 of the Constitution of Florida, F.S.A., the following rules of procedure are hereby established and adopted for the purpose of carrying out the terms thereof:

Section 1. The commission created by § 17(2) of Article 5 shall be referred to as the Commission on Judicial Retirement.

Section 2. Selection of Commission Members; Authority Beyond Term. The commission shall consist of the chief justice of the supreme court of the State of Florida, two judges of the district courts of appeal to be selected by the judges or said district courts of appeal, and two circuit judges and two county judges to be selected by the supreme court. During the absence, inability or disqualification of the chief justice, the senior justice of the supreme court sitting on the court shall serve as a member of the commission.

In the event the term of office of any member judge or justice expires during the pendency of a retirement case before the commission, the authority of such member shall continue beyond the expiration of his judicial term for the purpose of deciding any such case or cases then remaining undecided.

Section 3. Officers. The chief justice of the supreme court, or the senior justice in the absence, inability or disqualification of the chief justice as provided by Section 2 hereof, shall be the chairman of the commission. The clerk of the supreme court shall be the permanent secretary of the commission and shall maintain the permanent files and records in his office.

Section 4. Consideration for retirement of Justice or Judge; Activation of Commission; Application for Retirement. Upon information in writing being filed with the secretary by one or more of the authorized complainants designated in Section 5 hereof, charging that any justice or judge is unable to discharge the duties of his office with efficiency by reason of continued sickness or physical or mental infirmity of a permanent nature or upon a statement of any justice or judge that he is so incapacitated, the secretary shall, without delay, notify the chief justice and the justices of the supreme court; whereupon the supreme court may cause the matter to be considered informally as to probable cause that such lack of capacity exists. After such informal consideration, and upon the affirmative vote of five justices thereof, the supreme court shall activate the commission for the

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purpose of making a study of such condition and making appropriate disposition of same, by selecting the six additional judges specified by § 17 of Article 5 in the manner provided by Section 2 of these rules, and formally referring the matter to the Commission.

The commission shall not conduct such hearing as an adversary proceeding, but as an impartial inquiry to ascertain the facts with due regard to public welfare and the rights of the justice or judge under consideration.

The proceeding shall be styled “In re inquiry as to retirement of Justice (or Judge) ____.”

Section 5. Authorized Complainants in Involuntary Retirement.
The supreme court will consider a request or complaint for involuntary retirement and make the informal investigation referred to in Section 4 hereof only upon the complaint of (1) the Board of Governors of The Florida Bar by Resolution agreed to by two-thirds of its members; or (2) the chief judge, joined by one other member, of a district court of appeal; or (3) the Conference of Circuit Judges by Resolution adopted; or (4) by petition signed by one hundred fifty (150) qualified electors residing in the state, district, circuit or county accordingly, as a justice of the Supreme Court, District Court of Appeal, Circuit Judge or County Judge is concerned. By an affirmative vote of five justices thereof, the supreme court may sua sponte conduct the informal inquiry, determine the probable cause, and activate the commission for the purpose of considering and determining the involuntary retirement of any justice or judge; and, by such vote, may initiate proceedings for the voluntary retirement by the commission of any justice or judge upon his or her written request as provided by Section 4 hereof.

Section 6. Hearing: Notice. The hearing before the commission on the request or complaint shall be held, within thirty days from date of appointment of commission members by this court, at such time and place as the chairman may direct. The secretary shall give reasonable notice thereof to the members of the commission.

Section 7. Witnesses; Mental or Physical Examination. The commission shall have power to compel the attendance of witnesses and the giving of testimony, and may require a physical or mental examination of the justice or judge under consideration, and may appoint one or more physicians to make such examination.

Section 8. Rights of Justice or Judge. Ample opportunity shall be afforded the justice or judge sought to be retired to file a formal answer within ten days after service of a copy of the complaint, unless otherwise ordered by the commission, subpoena witnesses, present evidence and be heard in person and by counsel. Where no answer is filed, the commission may enter a general denial for the justice or judge sought to be retired.

Section 9. Order of Retirement; Service. If after a final hearing the commission, by a vote of five or more of its members, finds that the justice or judge is unable to discharge the duties of his office with efficiency by reason of continued sickness or physical or mental infirmity, and that such disability is permanent, such findings shall be entered upon the permanent records of the commission and an order shall be forthwith issued under the hand of the chairman and secretary directing that the justice or judge be retired from office.

Such order shall be served on the justice or judge to be retired by an officer authorized to serve process, unless service is accepted by him, and one certified copy thereof delivered to the Governor, one to the Comptroller, and one filed in the office of the Secretary of State. Upon the filing of such copy in the office of the Secretary of State, the office of the retired justice or judge shall be deemed to be vacant, to be filled as provided by law.

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Section 10. Voluntary Retirement. The commission may, in its discretion, dispose of an application for retirement voluntarily made by any justice or judge because of the disability specified in Section 4 hereof upon the sworn certificates of three physicians who have for ten years or more been licensed to practice medicine in this state, averring that they have examined such justice or judge and that he or she is unable to discharge the duties of the office with efficiency by reason of continued sickness or physical or mental infirmity, and that such disability is permanent; and in such event the formal hearing prescribed by these Rules need not be required.

Section 11. Tenure of Commissioners. Upon final disposition of the matter or matters pending before it, the commission shall stand adjourned, and the membership thereon of the six additional judges selected and designated to hear and determine such matter or matters shall terminate.

Section 12. Expenses; Attorney Fees. The members of the commission, and the secretary shall perform the services herein required without compensation, but shall be paid their actual and necessary expenses in performing such services. No attorney fees shall be taxed as costs.

Section 13. Costs. If an order for retirement is made the commission, in its discretion, may tax against the justice or judge being retired the fees and mileage of witnesses ordered by him and the costs of serving subpoenas upon them. All other costs and expenses shall be paid out of an appropriation which the Legislature may make therefor, on the order of the chairman of the commission certified to the State Comptroller.

Section 14. Effective date. The rules of procedure herein adopted shall become effective on December 14, 1959.

THOMAS, C.J., and TERRELL, HOBSON, ROBERTS and THORNAL, JJ., concur.

DREW and O’CONNELL, JJ., dissent.

DREW, Justice (dissenting).

Section 17 of Article V of the Constitution creates a commission and vests in it the power to retire any justice or judge for disability. This Section gives this Court the power to “establish * * * rules of procedure” to govern the commission and to select the justice of this Court and two circuit judges and two county judges who, with two district court judges selected by the judges of those courts, compose the commission.

Paragraph 14 of Section 26 of Article V directed this Court “upon the adoption of this Article” to adopt rules “to give effect to its provisions.”

In my humble judgment this Court has gone far beyond its constitutional powers in the enactment of the foregoing rule. It is clear to me that when rules of procedure are prescribed by us and we select the members of the commission we are required to name we have exhausted our power except to amend or amplify from time to time, as may be necessary, such rules. The power reserved to this Court in this rule is power given the commission — not to this Court — by the people.

These being my firm and abiding convictions I have no alternative but to dissent from the views of my esteemed brothers embodied in the rule.

O’CONNELL, J., concurs.

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