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No. SC06-668
ADVISORY OPINION TO THE GOVERNOR RE: SHERIFF
JUDICIAL VACANCIES DUE TO RESIGNATIONS
AND
[May 4, 2006]
CORRECTED OPINION
The Honorable Jeb Bush
Governor, State of Florida
The Capitol
Tallahassee, Florida 32399
Dear Governor Bush:
By letter dated April 19, 2006, you requested our opinion on two questions
of constitutional
interpretation
involving your executive powers and duties. This
request and our response are pursuant to article IV, section (1)(c) of the Florida
Constitution.l
One question involves a judicial vacancy created by the resignation
1. Article IV, section (1)(c) provides in fill:
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’s 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
of a circuit court judge. The other question pertains to a vacancy created by the
intended resignation of a county sheriff. Upon receipt of your letter, we issued an
order allowing interested parties to file briefs on an expedited basis.2 We address
your questions regarding the judicial vacancy and sheriff vacancy separately
below.
JUDICIAL
VACANCY
You state in your letter that Judge Gene R. Stephenson, who is serving a
term that expires on January 2,2007, tendered his resignation on April 5,2006,
with a future effective date of May 31, 2006. You accepted his resignation on
April 14,2006.
Because Judge Stephenson’s seat would have been up for election this year
had he not tendered his resignation, the Department of State sent out the statutory
notice of general election for this vacancy on April 12, 2006. The qualifying
period for this seat is from May 8,2006, through May 12,2006.
&
Q 105.03 l(l),
Fla. Stat. (2005) (“Candidates for judicial office shall qualify no earlier than noon
of the 120th day, and no later than noon of the 116th day, before the primary
election.”).
Your question is whether Judge Stephenson’s seat should be filled by
days from the filing and docketing of the request, unless in their
judgment the delay would cause public injury.
2. We received a brief from the Florida Democratic Party on the issue of the
sheriff’s vacancy. We received briefs from Vickie Levy Eskin and Jack E. Holt,
III, attorneys and candidates for judge, on the issue of the judicial vacancy.
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appointment prelection.
Weareofthe
opinion that this vacancy should be filled
by appointment.
Under article V, section 11(b) of the Florida Constitution the Governor is
required to
fill each vacancy on a circuit court or on a county court, wherein the
judges are elected 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 . . . .
Article X, section 3 of the Florida Constitution addresses when a vacancy occurs
and provides:
Vacancy in office shall occur upon the creation of an office, upon the
death, removal from office, or resignation of the incumbent or the
incumbent’s succession to another office, unexplained absence for
sixty consecutive days, or failure to maintain the residence required
when elected or appointed, and upon failure of one elected or
appointed to office to qualify within thirty days from the
commencement of the term.
(Emphasis supplied.)
Under our precedent, a judicial vacancy occurs when a letter
of resignation is received and accepted by the Governor.
~
In re AdvisoW
Opinion to the Governor (Judicial Vacancies), 600 So. 2d 460,462
(Fla, 1992)
(“When a letter of resignation to be effective at a later date is received and
accepted by you, a vacancy in that office occurs and actuates the process to fill
it.”).
In our most recent advisory opinion to you, we opined that a judicial
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vacancy created by an immediate involuntary retirement after candidates had
qualified for the judgeship should be filled by the election process, &
AdvisoW
Opinion to the Governor re Appointment or Election of Judges, 824 So. 2d 132,
136 (Fla. 2002). In that case, we framed the issue as “whether your constitutional
authority and obligation to fill a vacancy pursuant to section 11(b) continues after
the election process begins for the specific election of a circuit or county judge for
the term which will begin in January after the impending election.”
~ at 135. We
noted that there was a conflict between article V, section 11(b) and article V,
section 10(b)( 1), (2), and (3)(c), Florida Constitution, which expressly preserves
the election process for circuit and county judges.
See id. at 134-35. We then
concluded that “the conflict must be resolved by a construction which gives effect
to the clear will of the voters that circuit and county judges be selected by
election.”
~
at 136. However, we emphasized that our opinion was “limited to
the circumstances
described in your letter, i.e., where a candidate or candidates
have already qualified during the statutory qualifications period, one of whom will
fill the position by election,”
2d 284,284-85
~
We also distinguished Pincket v. Harris, 765 So.
(Fla. 1st DCA 2000), in which the First District Court of Appeal
concluded that gubernatorial appointment was appropriate when the sitting judge’s
resignation letter was submitted and the effective date of the resignation occurred
prior to the qualifying period. ~
Appointment or Election of Judges, 824 So. 2d
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at 136 n.9
The circumstances
in this case are more akin to those presented in Pincket
than those presented in Appointment or Election of Judges. Although Judge
Stephenson’s resignation is not effective until May31, 2006, under our prior case
law, a vacancy occurred when you received and accepted Judge Stephenson’s
resignation on April 14, 2006. Because the qualifying period for Judge
Stephenson’s seat has not commenced, under this Court’s decision in Appointment
or Election of Judges the election process has not yet begun. Thus, we conclude
that article V, section 11(b) controls over article V, section 10(b)(1), (2), and
(3)(c), and the vacancy should be filled by appointment.
We are aware from the briefs filed by attorneys Eskin and Holt that even
though the qualifying period for Judge Stephenson’s seat has not yet begun, several
candidates have stated their intent to run, and at least one candidate has actively
pursued qualification through the petition process under section 99.095, Florida
Statutes (2005). The Constitution does not provide a perfect answer. However, we
conclude that establishing the statutory qualifying period as the start of the election
process is consistent with our precedent.
Although this position will now be filled
initially by appointment rather than election, the Governor’s appointment is for a
limited term that concludes “on the first Tuesday after the first Monday in January
of the year following the next primary and general election occurring at least one
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year after the date of appointment.”
Art, V, $ 11(b), Fla. Const. Accordingly,
there will bean opportunity to fill this seat by election in 2008.
SHERIFF
VACANCY
Your letter states that you were advised that the county sheriff, whose term
expires on January 6, 2009, will tender his resignation in May of 2006, effective in
October 2006. As noted above, article X, section 3 of the Florida Constitution
provides that a “[v]acancy in office shall occur upon the . . . resignation of the
incumbent .“ Article IV, section (1)(f) of the Florida Constitution provides that
[w]hen not otherwise provided for in this constitution, the governor
shall fill by appointment any vacancy in state or county office for the
remainder of the term of an appointive office, and for the remainder of
the term of an elective office if less than twenty-eight months,
otherwise until the first Tuesday after the first Monday following the
next general election.
(Emphasis supplied.)
Under this constitutional provision, you have the authority to
fill by appointment the anticipated vacancy in the sheriff’s office either for the
“remainder of the term . . . if less than twenty-eight months” or “until the first
Tuesday after the first Monday following the next general election.”
In other
words, when a vacancy occurs in the sheriff’s office your appointment will be
effective either until January 6, 2009, or December 12, 2006,
You ask when the vacancy arises so that you may discern the appropriate
date from which to calculate the “remainder of the term” under this provision—the
date the resignation is tendered or the effective date of the resignation?
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In posing
this question, you refer to conflicting statements in our opinions addressing judicial
vacancies.
You note that we have stated both that “a vacancy does not occur until
the date upon which the office actually becomes vacant,” In re Advisory Opinion
of the Governor Request of September 6, 1974, 301 So. 2d 4, 6 (Fla. 1974), and
that a vacancy occurs “[w]hen a letter of resignation to be effective at a later date is
received and accepted by you.” Judicial Vacancies, 600 So. 2d at 462.
In Judicial Vacancies, we acknowledged our prior statement that “a vacancy
does not occur until the date upon which the office actually becomes vacant.” ~
at 463 n.4 (quoting In re Advisov
Opinion, 301 So. 2d at 6). However, we
explained that our decision in “Spector v. Glisson, 305 So. 2d 777 (Fla. 1974),
nullified this statement.”
Judicial Vacancies, 600 So. 2d at 463 n.4.3 Accordingly,
we are of the opinion that if the sheriff were to tender his resignation in May, a
vacancy would occur at that time. Thus, the remainder of the term should be
calculated from the date of the resignation letter, not its effective date.
This conclusion is consistent with the resign-to-run law. Under section
99.0 12(3)(a), Florida Statutes (2005), an officer cannot quali~ as a candidate for
3. Even if our prior statements that a vacancy does not occur until the office
is actually vacated were still valid, we have recognized that one exception to this
rule is “those circumstances establishing artificial vacancies created by the resignto-run law.” In re Advisory Opinion, 301 So. 2d at 6. Although your letter does
not identify the resigning sheriff, there is an indication that your request is in
response to Alachua County Sheriff Steve Oelrich’s stated intent to run for the
State Senate this year.
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another elected office without resigning from the office he or she currently holds.
The resignation must be irrevocable and must be submitted “at least 10 days prior
to the first day of qualifying for the office he or she intends to seek.” $
99.0 12(3)(b)-(c), Fla. Stat. (2005). The effective date of the resignation can be ~
futuro but must be “no later than the earlier of following dates: 1. the date the
officer would take office, if elected, or 2. the date the officer’s successor is
required to take office.”
$ 99.012(3)(d), Fla. Stat. (2005).
The qualifying dates for federal, judicial, state attorney, and public defender
positions are generally in May of the election year,4 while the qualifying dates for
statewide, multicounty, county, and district positions are generally in July of the
election year.5 In either case, if the officer is seeking to qualify as a candidate for
another office in an election year other than the election year in which the officer’s
current position is up for election, the officer’s resignation will necessarily be
submitted prior to the qualifying date, thereby creating a vacancy that is greater
4, & $$ 99,061(l), 105.031(l), Fla. Stat. (2005) (stating that candidates
for these offices may qualify after noon of the 120th day but no later than noon of
the 116th day prior to the date of the primary election); see also Florida
Department of State, Division of Elections, 2006 Dates to Remember 1, 3,
available at http: //election. dos.state.fl .us/publications/index .shtml.
5. & $ 99.061(2), Fla. Stat. (2005) (stating that candidates for these offices
may qualify after noon of the 50th day but no later than noon of the 46th day prior
to the date to the primary election); see also Florida Department of State, Division
of Elections, 2006 Dates to Remember 1, 4 available at
http: //election.dos. state. fl.us/publications/index. shtml.
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than twenty-eight months.b
Section 99.012(3)(f)(l),
Florida Statutes (2005),
recognizes this by providing that “[w]ith regard to an elective office, the
resignation creates a vacancy in office to be filled by election.”
CONCLUSION
We answer your question about the resignation of Judge Stephenson by
stating that it is our opinion that this vacancy should be filled by appointment.
We
answer your question about the impending resignation of the county sheriff by
stating that it is our opinion that the “remainder of the term” should be calculated
from the date the resignation is tendered.
Respectfully,
Cl@~es T<Wells
Kenneth B. Bell
/
6. Assuming that your letter is referring to Sheriff Oelrich, the sheriff must
tender an irrevocable resignation no later than July 7, 2006 (ten days prior to the
first day of qualifying for a Senate seat). Thus, even if Sheriff Oelrich were to
tender his resignation on the last possible day (rather than in May), the remainder
of the term would still be greater than twenty-eight months.
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Original Proceeding – Advisory Opinion to the Governor
Raquel A. Rodriguez, General Counsel, Office of the Governor, Tallahassee,
Florida,
for Petitioner, The Honorable Jeb Bush
Mark Herron and Robert J, Telfer of Messer, Caparello and Self, P.A., Tallahassee,
Florida,
for The Florida Democratic Party
Vicki Levy Eskin, pro se, of Levy and Associates, P.A., Lake Mary, Florida
for Interested Party, as a Candidate for Circuit Court Judge, Group 12,
Eighteenth Judicial Circuit
Jack E. Holt, III, pro se, of Grower, Ketcham, Rutherford, Bronson, Eide, and
Telan, P.A., Orlando, Florida
for Interested Party or as an Amicus Curiae, as a Candidate for Circuit Court
Judge, Group 12, Eighteenth Judicial Circuit
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