Senior Judge Assignments Rules and Opinions

8/9/2019 Senior Judge Assignments Rules and Opinions

1/26

672 So.2d 16 Page 1672 So.2d 16, 21 Fla. L. Weekly S57(Cite as: 672 So.2d 16)

2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works.

Supreme Court of Florida.The Honorable Joe A. WILD, As Acting Circuit

Judge of the Nineteenth Judicial Circuit, Petitioner,v.

Robert Lee DOZIER, Respondent.No. 85050.

Feb. 8, 1996.Rehearing Denied April 11, 1996.

Defendant in felony case being tried in circuit courtpetitioned for writ of prohibition claiming that county

court judge assigned to his trial lacked authority topreside over his trial. The District Court of Appeal,659 So.2d 1103, granted writ, quashed circuit judge'sorder denying disqualification and administrativeorder appointing county court judge for six-monthperiod, and certified question for review. The Su-preme Court held that: (1) Supreme Court had exclu-sive jurisdiction to review judicial assignments; (2)county court judge was properly assigned succes-sively and repeatedly in six-month assignments overseveral years to preside in circuit court over half ofall felony cases in county; but (3) another countyjudge was improperly assigned to hear cases.

Certified question answered, decision below quashed,and petition for prohibition denied.

Kogan, J ., filed opinion concurring in part and dis-senting in part, in which Shaw andAnstead, JJ., con-curred.

West Headnotes

[1] Courts 106 70

106Courts106II Establishment, Organization, and Procedure

106II(E)Places and Times of Holding Court106k70 k. Designation or Assignment of

Judges. Most Cited CasesCounty court judge may be assigned successively andrepeatedly in six-month assignments over severalyears to preside in circuit court over half of all felonycases in county. West's F.S.A. R.Jud.Admin.Rule

2.050(b)(4).

[2] Courts 106 472.2

106Courts106VII Concurrent and Conflicting Jurisdiction

106VII(A) Courts of Same State106VII(A)1In General

106k472 Exclusive or Concurrent Ju-risdiction

106k472.2 k. Appellate or SupremeCourts. Most Cited CasesSupreme Court has exclusive jurisdiction to review

judicial assignments and litigant who is affected byjudicial assignment made by chief judge of judicialdistrict must challenge assignment in trial court andthen seek review in Supreme Court either by petitionfor writ of prohibition or petition for relief under allwrits power. West's F.S.A. Const. Art. 5, 2(a, b),3(b)(7).

[3] Courts 106 216

106Courts106VI Courts of Appellate Jurisdiction

106VI(B) Courts of Particular States

106k216k. Florida. Most Cited CasesDistrict Court of Appeal lacked authority to reviewadministrative order reassigning county court judgeto circuit court duty. West's F.S.A. Const. Art. 5, 2(a, b).

[4] Courts 106 70



Judges. Most Cited Cases

Whether judicial assignment is proper temporaryassignment is not merely function of duration ofassignment, but rather successive nature of assign-ment, type of case covered by assignment, and prac-tical effect of assignment on circuit court jurisdictionover particular type of case must also be considered.West's F.S.A. R.Jud.Admin.Rule 2.050(b)(4).


2/26



[5] Courts 106 70



Judges. Most Cited CasesCounty judge was properly appointed to successivesix-month assignments to preside in circuit court overhalf of criminal cases in county, where judge contin-ued to do all his county judge work and criminal di-vision was only one of several division in circuitcourt. West's F.S.A. R.Jud.Admin.Rule 2.050(b)(4).

[6] Courts 106 70



Judges. Most Cited CasesCounty judge was improperly appointed to six-monthassignment to preside in circuit court over half ofcriminal cases in county, after another county judgehad been appointed to six-month assignment to pre-side over other half of criminal cases in county, sinceassignments in combination effectively usurped ma-jor segment of circuit court work within county.West's F.S.A. R.Jud.Admin.Rule 2.050(b)(4).*16 Application for Review of the Decision of the

District Court of Appeal-Certified Great Public Im-portance Fourth District-Case No. 94-1104 and AnOriginal Proceeding-Writ of Prohibition.

Robert A. Butterworth, Attorney General; JoanFowler, Senior Assistant Attorney General, Chief,West Palm Beach Bureau, and *17 Georgina J ime-nez-Orosa, Senior Assistant Attorney General, WestPalm Beach, for Petitioner.

Jeffrey H. Garland of Kirschner & Garland, P.A.,Fort Pierce, for Respondent.

Louis B. Vocelle, Jr. of Clem, Polackwich & Vocelle,Vero Beach, for Honorable L.B. Vocelle, Chief Judgeof the Nineteenth Judicial Circuit, Amicus Curiae.

PER CURIAM.

[1] We have for review Dozier v. Wild, 659 So.2d

1103 (Fla. 4th DCA 1995), wherein the Fourth Dis-trict Court of Appeal quashed an administrative orderof the Chief Judge of the Nineteenth Judicial Circuitassigning a county court judge to circuit court duty

and certified the following question to be of greatpublic importance:

MAY A COUNTY COURT JUDGE BE ASSIGNEDSUCCESSIVELY AND REPEATEDLY IN SIXMONTH ASSIGNMENTS OVER SEVERALYEARS TO PRESIDE IN THE CIRCUIT COURTOVER HALF OF ALL FELONY CASES IN ACOUNTY?

Id. at 1106. We have jurisdiction FN1 and quash thedecision under review.

FN1.Art. V, 3(b)(4), Fla. Const.

Since July 1990 the Honorable Joe A. Wild, Judge ofthe County Court of Indian River County, has beenassigned by the various Chief Judges of the Nine-teenth Judicial Circuit to serve for six-month periodsas an acting circuit court judge to preside over onehalf of all felony cases in Indian River County. Dur-ing this period, Judge Wild has continued to handle acounty court docket. In January 1994 the Chief Judgeassigned a second county judge to preside over theother half of felony cases arising within the county.In April 1994 the respondent, Robert Lee Dozier,

sought to disqualify Judge Wild from presiding overhis felony case, alleging that the judge had become ade facto permanent circuit judge and thereforelacked jurisdiction to hear his case. Judge Wild de-nied the motion.

Dozier then filed a petition for writ of prohibition inthe Fourth District Court of Appeal, claiming that asa county court judge assigned to de facto permanentduty in the circuit court, Judge Wild lacked authorityto preside over his case. The district court agreed,granted the writ, and quashed the order denying dis-qualification along with the administrative order ap-

pointingJudge Wild through 1994. 659 So.2d at1105-06. In holding the assignment invalid, the dis-trict court relied on this Court's decisions in Payret v.Adams, 500 So.2d 136 (Fla.1986), and Crusoe v.Rowls, 472 So.2d 1163 (Fla.1985), but certified theabove question for our consideration. Judge Wildseeks review.FN2


3/26



FN2. The Honorable L.B. Vocelle, ChiefJudge of the Nineteenth Judicial Circuit,who was not allowed to intervene in the dis-trict court, has filed an amicus curiae brief in

support of J udge Wild's position.

First, Judge Wild claims that the district court lackedauthority to quash the administrative order assigninghim to circuit court duty. Judge Wild correctly pointsout that this Court's decisions in Payret and Crusoe,wherein judicial assignments were reviewed by thedistrict court, do not control because the districtcourt's jurisdiction was not challenged in those cases.

[2] After considering the issue, we conclude that thisCourt has exclusive jurisdiction to review judicialassignments. This authority derives from article V,

sections 2(a) and (b) of the Florida Constitution.Article V, section 2(a) gives this Court authority toadopt rules for the administrative supervision of allcourts. Article V, section 2(b) gives the Chief Justiceof this Court, as the chief administrative officer of thejudicial system, power to assign justices or judges totemporary duty in any court for which the judge isqualified and to delegate that power to the chiefjudges of the judicial circuits.

Delegation of the Chief Justice's assignment power tothe chief judges of the judicial circuits is necessary tothe proper administration of our court system. This is

because, as the administrative officer of all courtswithin a judicial circuit,FN3 the chief judge is*18bestequipped to assess the needs of each trial court and toallocate the judicial labor available within the circuitaccordingly. With this reality in mind, Florida Ruleof J udicial Administration 2.050(b)(4) expresslyauthorizes the chief judges of the judicial circuits toassign any judge to temporary service for which thejudge is qualified in any court in the same circuit.We explained in State ex rel. Treadwell v. Hall, 274So.2d 537, 539 (Fla.1973), that the ruleFN4delegatingthe power to assign judges

FN3. Art. V, 2(d), Fla. Const.;Fla.R.Jud.Admin. 2.050(b)(2).

FN4. Florida Rule of Judicial Administra-tion 2.050(b)(4) is substantially the same asformer Florida Rule of Civil Procedure1.020(b)(3)(ii), which was approved in Stateex rel. Treadwell v. Hall, 274 So.2d 537,

539 (Fla.1973).

was designed, in part, to obviate the need for eachincoming chief justice to specifically delegate to the

twenty chief judges of the circuits the authority tomake assignments; it also was designed to obviate theneed for specific delegations when the chief judgeswithin the circuits were re-elected or changed. Unlessa chief justice indicates otherwise, his desire to con-tinue delegation via the Rule is assumed.

When a chief judge exercises this delegated assign-ment authority, the judge is acting under the ChiefJustice's constitutional power to make temporary ju-dicial assignments to ensure the speedy, efficient, andproper administration of justice within the variouscircuits. Because of the vital role temporary judicial

assignments play in the administration of our courtsystem, this Court must have exclusive jurisdiction toreview such assignments under its article V, section2(a) authority to oversee the administrative supervi-sion of all courts. This grant of exclusive authorityensures this Court's plenary control over the state'scourt system and avoids the disruptive effect allow-ing district courts to quash judicial assignmentswould have on that system. Moreover, there is noth-ing in our Constitution to indicate that district courtsare to share in the administrative supervision of ourtrial courts, and we decline to read our Constitutionto sanction the disruption to the judicial system in-

herent in such shared authority.

Accordingly, we hold that a litigant who is affectedby a judicial assignment made by a chief judge of ajudicial circuit must challenge the assignment in thetrial court and then seek review in this Court by wayof petition for writ of prohibition or petition for reliefunder the all writs power.FN5SeeArt. V, 3(b)(7),Fla. Const. (this Court may issue writs of prohibi-tion to courts and all writs necessary to the completeexercise of its jurisdiction); accord State ex rel.Treadwell v. Hall, 274 So.2d 537 (Fla.1973) (chal-lenge of assigned judge's jurisdiction raised in trial

court, followed by petition for writ of prohibitionfiled in this Court).

FN5. General questions concerning the ad-ministration or management of the courts ofthe circuit should be directed to the ChiefJustice through the state courts administra-tor, as provided in Florida Rule of Judicial


4/26



Administration 2.050(b)(3). Likewise, ad-ministrative orders also may be challengedas court rules or local rules by applying for adetermination by the Local Rules Advisory

Committee, as provided in Florida Rule ofJudicial Administration 2.050(e)(2).

[3] Accordingly, we hold that the district court ofappeal lacked authority to review the administrativeorder assigning Judge Wild to circuit court duty.However, we treat the petition for writ of prohibitionfiled in the district court as if it had been filed in thisCourt FN6 and address the certified question in an at-tempt to further define the parameters of a propertemporary assignment under rule 2.050(b)(4).

FN6.Art. V, 2(a), Fla. Const.

In Treadwell we approved an order appointing acounty judge to act as a circuit judge in DeSotoCounty in all matters of probate, guardianship, in-competency, trusts, proceedings under the FloridaMental Health Act and all juvenile proceedings, dis-solutions of marriage, and all uncontested civil mat-ters in circuit court. 274 So.2d at 538. Likewise, inCrusoe v. Rowls, 472 So.2d 1163 (Fla.1985), we up-held the successive and repetitive assignment ofcounty court judges to hear all petitions to enforcechild support orders that directed support payments tobe made through the child support section of the sher-

iff's office. In addressing whether the assignment wasproper, we explained that an *19 assignment is tem-porary under rule 2.050(b)(4) if it is not perma-nent:

Temporary is an antonym for permanent. It is acomparative term. It can be said that if a duty is notpermanent it is temporary. If a county judge is as-signed to perform solely circuit court work, the as-signment must be for a relatively short time for it tobe temporary. If a county judge is assigned to spend aportion of his time performing circuit work, the as-signment can be longer, but the assignment cannot

usurp, supplant, or effectively deprive circuit courtjurisdiction of a particular type of case on a perma-nent basis.

472 So.2d at 1165 (footnotes omitted). Where acounty judge is assigned solely to perform circuitcourt duties, we suggested that a sixty-day assign-ment was acceptable; where the judge is ordered to

spend only a portion of his time performing circuitcourt work, we suggested that a six-month assign-ment was acceptable. Id. at 1165 nn. 2-3. These timeperiods were suggested with the recognition that

chief judges must be given flexibility to effectivelyutilize available judicial labor. Id. at 1165.

Although the successive assignments at issue in Cru-soe totalled two-and-one-half years, we upheld themas proper temporary assignments in part because thecounty judges were assigned only a limited class ofsupport orders and the assignment was to supple-ment and aid the circuit judges rather than to replacethem. Id.

Shortly after the decision in Crusoe, this Court wasasked to further define the parameters of a temporary

judicial assignment under rule 2.050(b)(4). In Payretv. Adams, 500 So.2d 136 (Fla.1986), the Court heldthat a county court judge may not be indefinitely as-signed, by successive orders, circuit court duties in aspecially created jury district. The county judge inPayret had been annually reassigned for a five-yearperiod to be the acting circuit judge for a speciallycreated district of the Fifteenth Judicial Circuit. Wenoted:

Rather than being assigned to aid or assist the circuitjudges in a limited class of cases, respondent hasbeen assigned to hear all circuit court matters in the

Glades district. Indeed, respondent has conceded thatfor all intents and purposes, he is the circuit judge forthe Glades district.

Id. at 138. Under the circumstances, this Court heldthe successive one-year assignments invalid as a defacto permanent assignment. Id. at 138.

[4] These decisions illustrate that whether a judicialassignment is a proper temporary assignment underrule 2.050(b)(4) is not merely a function of the dura-tion of an individual assignment. The successive na-ture of the assignment, the type of case covered by

the assignment, and the practical effect of the as-signment on circuit court jurisdiction over a particu-lar type of case also must be considered. For exam-ple, Crusoe illustrates that successive assignmentstotalling more than two years may be consideredtemporary if the class of circuit court case covered bythe assignment is limited and the practical effect ofthe assignment is to aid and assist circuit judges


5/26



rather than to usurp circuit court jurisdiction over aparticular type of case. 472 So.2d at 1165. Similarly,Payret demonstrates that successive and repetitiveassignments that, when considered individually, may

be facially valid will not be considered temporarywhere their practical effect is to create a de factopermanent circuit judge by administrative order. 500So.2d at 138.

In multi-county circuits the county judges in the lesspopulous counties are often underutilized, yet theyare willing to do circuit judge work. In some in-stances there are no circuit judges resident withinthose counties. The most efficient use of scarce judi-cial resources dictates the assignment of countyjudges to handle limited aspects of circuit judge workin such counties, provided that the assignments do

not interfere with the full performance of countyjudge duties.

[5] In the instant case, Judge Wild continues to do allof his county judge work. In addition, Judge Wild hasreceived new assignments every six months to hearone half of the criminal circuit court work. Obvi-ously, the criminal division is only one of severaldivisions of the Nineteenth Judicial Circuit Court,and Judge Wild is assigned to only *20 half of thecases within that division. The orders appointingJudge Wild more nearly resemble those approved inTreadwell and Crusoe rather than the order disap-

proved in Payret.See alsoJ .G. v. Holtzendorf, 648So.2d 781 (Fla. 2d DCA 1994) (approving successivesix-month assignments of county judge to hear juve-nile and domestic matters in circuit court), reviewgranted, 659 So.2d 271 (Fla.1995). Thus, we con-clude that the successive six-month assignments ofJudge Wild to hear half of the cases in Indian RiverCounty are permissible.

[6] However, we cannot ignore the fact that CountyJudge Balsiger has now been assigned to hear theother half of the felony cases in Indian River County.To permit this practice to continue would have the

effect of permanently usurping a major segment ofcircuit court work within the county. Therefore, wedirect the Chief Judge of Indian River County tomake the appropriate judicial reassignments in orderthat county judges not be assigned to more than halfof the felony cases within the county. However, inview of the fact that Judge Wild and Judge Balsigerhave each been sitting on felony cases pursuant to

valid orders, this directive shall not be construed tomean that they have been without jurisdiction to hearthese cases.

We answer the certified question in the affirmative,quash the decision below, and deny the petition forprohibition.

It is so ordered.

GRIMES, C.J., and OVERTON, HARDING andWELLS, J J ., concur.KOGAN, J ., concurs in part and dissents in part withan opinion, in which SHAW and ANSTEAD, JJ.,concur.KOGAN, Justice, concurring in part and dis-senting in part.I agree that this Court has exclusive jurisdiction to

review judicial assignments. However, I cannot agreethat the successive assignments at issue here areproper temporary assignments under Florida Rule ofJudicial Administration 2.050(b)(4) and article V,section 2(b) of the Florida Constitution.

The majority recognizes that an assignment is tem-porary under rule 2.050(b)(4) if it is not perma-nent:

Temporary is an antonym for permanent. It is acomparative term. It can be said that if a duty is notpermanent it is temporary. If a county judge is as-signed to perform solely circuit court work, the as-signment must be for a relatively short time for it tobe temporary. If a county judge is assigned to spend aportion of his time performing circuit work, the as-signment can be longer, but the assignment cannotusurp, supplant, or effectively deprive circuit courtjurisdiction of a particular type of case on a perma-nent basis.

Majority op. at 19 (quoting Crusoe v. Rowls, 472So.2d 1163, 1165 (Fla.1985)). It further recognizesthat, under our caselaw,whether a judicial assignment is a proper tempo-

rary assignment under rule 2.050(b)(4) is not merelya function of the duration of an individual assign-ment. The successive nature of the assignment, thetype of case covered by the assignment, and the prac-tical effect of the assignment on circuit court jurisdic-tion over a particular type of case also must be con-sidered.


6/26



Majority op. at 19. The majority properly finds sup-port for this proposition in this Court's decisions inCrusoe and Payret v. Adams, 500 So.2d 136

(Fla.1986). As the majority notes, this Court upheldsuccessive assignments of county court judges tocircuit court duty in Crusoe, where 1) the class ofcase covered by the assignment-a limited class ofsupport orders-was much more limited than the classof case affected here-all felony cases-and 2) the prac-tical effect of the assignment was to aid and assistcircuit judges rather than to usurp circuit court juris-diction over a particular type of case. 472 So.2d at1165. Whereas, inPayret, the Court held invalid suc-cessive and repetitive assignments that when consid-ered individually were facially valid because theirpractical effect was to create a de facto permanent

circuit judge by administrative order. 500 So.2d at138.

Although the majority recognizes the considerationsrelevant to the determination at *21 hand, it fails toconsider those factors in the context of this case andmerely concludes, without explanation, that the as-signments at issue here are more like those approvedinTreadwell and Crusoe than the assignments disap-proved in Payret. Majority op. at 20. TheTreadwelldecision lends no support to the majority's conclusionbecause the issue inTreadwell was whether the chiefjudge was authorized to assign a county court judge

to circuit court duty, not whether the assignment wastemporary. The majority appears to base its holdingon the need for efficient use of scarce judicial re-sources. Id. at 19. While no one could dispute thisbasic premise, it is equally clear that judicial re-sources must be utilized within the constraints of ourconstitution. This is what our decisions inCrusoeandPayret teach.

Turning to the assignment at issue here, I agree withthe Fourth District Court of Appeal that it is a defacto permanent assignment of a county court judgeto circuit judge duties, in violation ofarticle V, sec-

tions 2(b) and10(b) of the Florida Constitution. As ofApril 1994, J udge Wild had been assigned in eightconsecutive administrative orders to preside over halfof the felony cases in Indian River County. Althougheach successive assignment was limited to the six-month term suggested by this Court in Crusoe, theeffect of the automatic reassignments was to give acounty court judge jurisdiction over half of all felony

cases arising in Indian River County for a period of atleast four years.

To my mind, the assignment cannot be considered

temporary. Such automatic reassignments have thepractical effect of creating a de facto permanent cir-cuit court judge and are no different than the indefi-nite assignment by successive order that was heldimproper in Payret. Moreover, as of January 1994,when a second county judge was assigned to presideover the other half of felony cases arising in IndianRiver County, circuit court jurisdiction over felonycases effectively was redesignated by administrativeorder, contrary to this Court's decision inCrusoe. Themajority recognizes as much when it states that topermit this practice to continue would have the ef-fect of permanently usurping a major segment of cir-

cuit court work within the county. Majority op. at20.

Even under the majority's analysis, the petition forwrit of prohibition should be granted and the orderdenying disqualification of Judge Wild in Dozier'scase quashed. Such relief is warranted because at thetime Dozier's felony case was assigned, he had nochance of having it heard by a duly elected circuitjudge since jurisdiction over all felony cases hadbeen unconstitutionally placed in the hands of twocounty court judges.

Accordingly, I would answer the certified question inthe negative, grant the petition for writ of prohibitionand quash both the order denying disqualification ofJudge Wild in Dozier's case and the administrativeorder at issue here. Moreover, regardless of how thiscase is resolved, I agree with Justice Anstead that thisCourt should enact specific guidelines for makingtemporary judicial assignments. SeeWallace v. State,609 So.2d 64, 65 (Fla. 4th DCA 1992) (Anstead, J.,concurring specially). Thus, in the hope of eliminat-ing much of the confusion that exists in this area, Iwould ask the Judicial Administration Rules Com-mittee to propose specific guidelines for assignments

made under rule 2.050(b)(4).

SHAW andANSTEAD, J J., concur.

Fla.,1996.Wild v. Dozier672 So.2d 16, 21 Fla. L. Weekly S57


7/26



END OF DOCUMENT


8/26

2009 Thomson Reuters. All rights reserved.

Date of Printing: Apr 20, 2009

KEYCITE

Wild v. Dozier, 672 So.2d 16, 21 Fla. L . Weekly S57 (Fla.,Feb 08, 1996) (NO. 85,050)

History

Direct History

1Dozier v. Wild, 1994 WL 524292, 19 Fla. L. Weekly D2068 (Fla.App. 4 Dist. Sep 28, 1994) (NO.94-1104)

Opinion Superseded on Rehearing by

2Dozier v. Wild, 659 So.2d 1103, 20 Fla. L. Weekly D199 (Fla.App. 4 Dist. J an 18, 1995) (NO. 94-1104)

Review Granted by

3Wild v. Dozier, 652 So.2d 819 (Fla. Feb 27, 1995) (Table, NO. 85,050)

AND Decision Quashed by

=> 4Wild v. Dozier, 672 So.2d 16, 21 Fla. L. Weekly S57 (Fla. Feb 08, 1996) (NO. 85,050), rehearingdenied (Apr 11, 1996)

Negative Citing References (U.S.A.)Holding Limited by

51-888-Traffic Schools v. Chief Circuit Judge, Fourth Judicial Circuit, 734 So.2d 413, 24 Fla. L.Weekly S239 (Fla. May 27, 1999) (NO. 94,314) HN: 2,3,4 (So.2d)

Distinguished by

6Diaz v. State, 868 So.2d 1281, 29 Fla. L. Weekly D808 (Fla.App. 4 Dist. Mar 31, 2004) (NO. 4D03-4016) HN: 2 (So.2d)

Related References

7Dozier v. State, 662 So.2d 382, 20 Fla. L. Weekly D2433 (Fla.App. 4 Dist. Nov 01, 1995) (NO. 94-2178), rehearing denied (Nov 22, 1995)Review Granted by

8State v. Dozier, 669 So.2d 252 (Fla. Feb 13, 1996) (Table, NO. 86,956)

AND Decision Quashed by

9State v. Dozier, 675 So.2d 110, 21 Fla. L. Weekly S199 (Fla. May 09, 1996) (NO. 86,956), rehearing


9/26


denied (Jun 17, 1996)On Remand to

10Dozier v. State, 677 So.2d 1007, 21 Fla. L. Weekly D1933 (Fla.App. 4 Dist. Aug 28, 1996) (NO. 94-

2178)

Court Documents

Appellate Court Documents (U.S.A.)

Fla. Appellate Briefs

11Joe A. WILD, Judge, etc., Petitioner, v. Robert Lee DOZIER, Respondents., 1995 WL 17015638(Appellate Brief) (Fla. Feb. 03, 1995)Amicus Curiae Brief of L . B. Vocelle, Chief J udge of theNineteenth J udicial Circuit, in Support of J oe A. Wild, J udge, etc., Petitioner (NO. 85050)

12The Honorable Joe A. WILD, County Court Judge, Petitioner, v. Robert Lee DOZIER, Respondent.,1995 WL 17015639 (Appellate Brief) (Fla. Feb. 13, 1995) Respondent's Answer Brief on theMerits(NO. 85050)

13The Honorable Joe A. WILD, County Court Judge, Petitioner, v. Robert Lee DOZIER, Respondent.,1995 WL 17015640 (Appellate Brief) (Fla. Feb. 17, 1995) Petitioner's Reply Brief on the Merits(NO. 85050)


10/26



Supreme Court of Florida.PHYSICIANS HEALTHCARE PLANS, INC., et al.,

Petitioners,v.

Raymond PFEIFLER, et ux., Respondents.Kurshid Kahn, M.D., et al., Petitioners,

v.Raymond Pfeifler, et ux., Respondents.

Nos. SC01-2062, SC01-2079.

May 1, 2003.

Medical malpractice action was brought and set fortrial on the senior judges' docket in the circuit court.Defendant physicians filed motion to return the caseto the elected circuit judge. The Circuit Court, Seven-teenth Judicial Circuit, denied motion. Defendantphysicians then petitioned for writ of prohibition. TheSupreme Court held that: (1) appointment ofnonelected judges as senior judges did not violatesuffrage rights; (2) use of senior judge docketamounted to a proper temporary assignment; (3)use of senior judges to relieve overcrowding of dock-ets did not constitute a division that had to be cre-ated by local rule and approved by the SupremeCourt; and (4) eligibility for temporary appointmentas a retired judge was not restricted to only thosejudges who reached retirement age.

Petition denied.

Wells, J., filed concurring opinion.

Lewis, J ., filed opinion concurring in part and dis-senting in part.

ParienteandQuince, J J ., concurred in result only.

West Headnotes

[1] Courts 106 472.2


106VII(A) Courts of Same State

106VII(A)1In General106k472 Exclusive or Concurrent Ju-

risdiction106k472.2 k. Appellate or Supreme

Courts. Most Cited CasesThe Supreme Court has exclusive jurisdiction to re-view judicial assignments. West's F.S.A. Const. Art.5, 2(a, b).

[2] Courts 106 70


106II(E)Places and Times of Holding Court106k70 k. Designation or Assignment ofJudges. Most Cited CasesWhen a chief judge of a judicial circuit exercises hisor her delegated assignment authority, the judge isacting under the Chief Justice's constitutional powerto make temporary judicial assignments to ensure thespeedy, efficient, and proper administration of justicewithin the various circuits. West's F.S.A. Const. Art.5, 2(a, b); West's F.S.A. R.J ud.Admin.Rule2.050(b)(4).

[3] Courts 106 472.2


106VII(A) Courts of Same State106VII(A)1In General

106k472 Exclusive or Concurrent Ju-risdiction

106k472.2 k. Appellate or SupremeCourts. Most Cited CasesBecause of the vital role temporary judicial assign-ments play in the administration of the state courtsystem, the Supreme Court must have exclusive ju-risdiction to review such assignments under its con-stitutional authority to oversee the administrativesupervision of all courts. West's F.S.A. Const. Art. 5, 2(a); West's F.S.A. R.Jud.Admin.Rule 2.050(b)(4).

[4] Prohibition 314 17

314Prohibition314II Procedure


11/26



314k17 k. Presentation of Objections inOriginal Proceeding. Most Cited CasesThe Supreme Court should not address by writ ofprohibition issues relating to judicial assignments that

have not been raised to the trial court.

[5] Courts 106 70



Judges. Most Cited CasesConstitutional provision specifically granting theChief Justice power to assign retired justices orjudges to temporary duty in any court for which theywere qualified, together with the authority to delegate

this power to the chief judge of a judicial circuit,permitted appointment of nonelected judges, and thussuch appointment was not a violation of suffragerights. West's F.S.A. Const. Art. 5, 2(b), 10(b).

[6] Constitutional Law 92 602

92Constitutional Law92V Construction and Operation of Constitutional

Provisions92V(A) General Rules of Construction

92k595Intrinsic Aids to Construction92k602 k. In Pari Materia. Most Cited

Cases(Formerly 92k15)

Constitutional provisions must be read in pari materiato form a congruous whole so as not to render anylanguage superfluous.

[7] Courts 106 70



Judges. Most Cited CasesUse of senior judge docket in one circuit amounted toa temporary assignment, and not an improper per-manent assignment in violation of Chief Justice'sconstitutional authority to assign retired judges totemporary duty, even if some senior judge assign-ments were successive, where assignment recordsand docket records indicated that cases were assigned

to senior judges primarily to relieve overcrowded andbacklogged calendars in both the civil and criminalcourt dockets or because a case was likely to be oneof long duration, and not all long-duration trials were

transferred to senior judge docket. West's F.S.A.Const. Art. 5, 2(b); West's F.S.A.R.Jud.Admin.Rule 2.050(b)(4).

[8] Courts 106 70



Judges. Most Cited CasesA county judge cannot be assigned to perform solelycircuit court work, and vice versa, unless the assign-

ment is for a relatively short time. West's F.S.A.Const. Art. 5, 2(b); West's F.S.A.R.Jud.Admin.Rule 2.050(b)(4).

[9] Courts 106 70



Judges. Most Cited CasesA judge may be assigned to hear other court work ona temporary, regular basis as long as the assignment

is directed to a specified class of cases, is used tomaximize the efficient administration of justice, andsupplements and assists the judges in the other courtrather than replaces them. West's F.S.A. Const. Art.5, 2(b); West's F.S.A. R.J ud.Admin.Rule2.050(b)(4).

[10] Courts 106 70



Judges. Most Cited CasesIn determining whether a judicial assignment is atemporary assignment, the Supreme Court consid-ers more than the duration of the individual assign-ment; the successive nature of the assignment, thetype of case covered by the assignment, and the prac-tical effect of the assignment on the court's jurisdic-


12/26



tion over a particular type of case also must be con-sidered. West's F.S.A. R.Jud.Admin.Rule2.050(b)(4).

[11] Courts 106 70



Judges. Most Cited CasesSuccessive and repetitive judicial assignments ofnonelected judges, which might be valid if consid-ered individually, are not temporary where the practi-cal effect is to create a de facto permanent circuitjudge by administrative order. West's F.S.A.R.Jud.Admin.Rule 2.050(b)(4).

[12] Courts 106 50


106II(A) Creation and Constitution106k50 k. Divisions and Parts of Courts.

Most Cited Cases

Courts 106 70

106Courts

106II Establishment, Organization, and Procedure106II(E)Places and Times of Holding Court106k70 k. Designation or Assignment of

Judges. Most Cited CasesUse of senior judges to relieve overcrowding of thecivil and criminal dockets in a judicial circuit by as-signing them to cases of long duration did not consti-tute a complex case division that had to be createdby local rule and approved by the Supreme Court, butcould be created by administrative order of the chiefjudge of the circuit court. West's F.S.A. Const. Art. 5, 7; West's F.S.A. 43.30; West's F.S.A.R.Jud.Admin.Rule 2.050.

[13] Courts 106 50


106II(A) Creation and Constitution106k50 k. Divisions and Parts of Courts.

Most Cited Cases

A special court division may not be created by meansof the temporary appointment power of the ChiefJustice which is delegated to the chief judges of thecircuit courts. West's F.S.A. Const. Art. 5, 2(b), 7.

[14] Courts 106 81


106II(F) Rules of Court and Conduct of Busi-ness

106k81 k. Making and Promulgation ofRules. Most Cited CasesUnlike local court rules, administrative orders of achief judge of a judicial circuit generally do not haveto be approved by the Supreme Court. West's F.S.A.Const. Art. 5, 7; West's F.S.A. 43.30; West's

F.S.A. R.Jud.Admin.Rule 2.050.

[15] J udges 227 16(2)

227Judges227II Special or Substitute Judges

227k16Appointment, Qualification, and Ten-ure

227k16(2) k. Qualification. Most CitedCasesA senior judge may be assigned temporarily to servein a circuit other than the one in which he or she re-sides. West's F.S.A. Const. Art. 5, 8.

[16] J udges 227 16(2)



227k16(2) k. Qualification. Most CitedCasesThe accountability for senior judges rests with theChief Justice rather than the voters of a particularcircuit or district; because the Chief Justice's author-ity and responsibility extend throughout the state, theChief Justice can assign a senior judge to duty with-out limitation to the jurisdiction of the senior judge'sprior service. West's F.S.A. Const. Art. 5, 8.

[17] Courts 106 70

106Courts


13/26



106II Establishment, Organization, and Procedure106II(E)Places and Times of Holding Court

106k70 k. Designation or Assignment ofJudges. Most Cited Cases

As the administrative officer of all courts within ajudicial circuit, the chief judge is best equipped toassess the needs of each trial court and to allocate thejudicial labor available within the circuit accordingly.West's F.S.A. R.Jud.Admin.Rule 2.050(b)(3).

[18] J udges 227 16(2)



227k16(2) k. Qualification. Most Cited

CasesEligibility for temporary appointment as a retiredjudge was not restricted to only those judges whoreached retirement age.West's F.S.A. Const. Art. 5, 2(b); West's F.S.A. 25.073(1); West's F.S.A.R.Jud.Admin.Rule 2.030(a)(3)(B).

[19] J udges 227 16(2)



227k16(2) k. Qualification. Most CitedCasesUnder both the Rules of Judicial Administration andstatutory definition of a retired judge, there are onlytwo restrictions on the eligibility of retired judgeswho may be assigned to temporary judicial duty: theymay not be engaged in the practice of law; and theymay not have been defeated for reelection or reten-tion in their last judicial office. West's F.S.A. Const.Art. 5, 2(b); West's F.S.A. 25.073(1); West'sF.S.A. R.Jud.Admin.Rule 2.030(a)(3)(B).

[20] J udges 227 15(1)


227k15 Necessity and Grounds for Appoint-ment

227k15(1) k. In General. Most Cited CasesThe express language of the constitutional provision

that gives the Chief Justice the power to appoint tem-porary judges does not restrict the power to emergen-cies. West's F.S.A. Const. Art. 5, 2(b).*1131Louise H. McMurray and Douglas M. McIn-

tosh of McIntosh, Sawran, Peltz & Cartaya, Miami,FL, on behalf of Physicians Healthcare Plans, Inc.; F.Bryant Blevins of Marlow, Connell, Valerius,Abrams, Adler & Newman, Miami, FL, on behalf ofRonald S. Gup, M.A., etc.; Kevin P. O'Connor ofO'Connor, Chimpoulis, Restani, Marreo & McAllis-ter, P.A., Coral Gables, FL, on behalf of RalphGreenwasser, J r., D.O.; and Nancy W. Gregoire andMichael J . Rotundoof Bunnell, Woulfe, Kirschbaum,Keller, McIntyre & Gregoire, P.A., Fort Lauderdale,FL, on behalf of Khurshid Khan, M.D., et al., Peti-tioners.

Gary M. Farmer, Jr. of Gillespie, Goldman, Kronen-gold & Farmer, P.A., Fort *1132 Lauderdale, FL;Charles J. Crist, J r., Attorney General, and CharlesM. Fahlbusch, Assistant Attorney General, Fort Lau-derdale, FL; and Michael S. Freedland of The LawOffices of Freedland & Glassman, Weston, FL, forRespondents.

PER CURIAM.

Physicians Healthcare Plans, Inc., Dr. Kurshid Kahn,and others petition this Court for a writ of prohibi-tion. We have jurisdiction. Seeart. V, 3(b)(7), Fla.

Const.

The instant case arose from a 1998 medical malprac-tice action by Raymond and Cynthia Pfeifler againstPhysicians Healthcare Plans, Inc. (Physicians), Dr.Kurshid Kahn (Kahn), and others, which was set fortrial on the senior judges' docket in the SeventeenthJudicial Circuit. In July 2000, the codefendants fileda motion in circuit court to return the case to theelected circuit judge, arguing that the assignment to asenior judge violated both this Court's general guide-lines and procedures for the assignment of seniorjudges and the Florida Constitution. The circuit court

heard argument in November 2000, denied the mo-tion, but certified the issue as being of great publicimportance and invited the codefendants to seek awrit of prohibition to resolve the issues presented.

Petitioners Physicians and Kahn have filed two sepa-rate petitions for writs of prohibition with this Court.Both petitions raise a number of challenges to the


14/26



senior judges' docket in the Seventeenth Judicial Cir-cuit and ask this Court to prohibit the assignment ofsenior judges to preside over long trial medicalmalpractice and other complex litigation cases.FN1

We have consolidated the cases as they present thesame issues for the Court's resolution.

FN1. In our recent review of the Report andRecommendations of the Committee OnAppointment and Assignment of SeniorJudges, we acknowledge [d] the reality ofproblems in isolated cases with seniorjudges presiding over complex and lengthytrials and urged chief judges to responddirectly to concerns expressed when suchproblems are presented to them. In re Re-port & Recommendations of the Comm. on

Appointment & Assignment of SeniorJ udges, op. at 15, 847 So.2d 415, 422, 2003WL 1987980 (Fla. May 1, 2003). Despitesuch problems, we declined to adopt eithera per se prohibition on the assignment ofsenior judges to complex cases or a re-quirement that chief judges be required toshow a good cause for such assignments,recognizing that [c]hief judges must be af-forded deference and latitude in the man-agement of judicial assignments and dock-ets. Id. at 15-16, at 422. Finally, we re-minded the chief judges of their duty to se-

lect senior judges with the proper skills andexperience to preside over complex caseswhen such assignments are necessary andtheir responsibility to periodically review[ ]the progress of all cases assigned to seniorjudges to ensure expeditious and properhandling. Id. at 16, at 422.

Before considering the challenges raised in the peti-tions, we find it necessary to explain the backgroundrelating to the assignment of senior judges. For thepurposes of judicial administration, a retired judgeis defined as a judge not engaged in the practice oflaw who has been a judicial officer of this state.SeeFla. R. Jud. Admin. 2.030(a)(3)(B). Section25.073(1), Florida Statutes (2001), also specifies thata retired judge may not have been defeated in seekingreelection or retention to his or her last judicial of-fice. In1990, Florida Rule of Judicial Administration2.030(a)(3) was amended to provide that a retiredjudge serving on assignment to temporary judicial

duty may be referred to by the honorary designationsenior judge. This designation had no effect on theresponsibilities or conduct of the retired judge. SeeInre Amendment to Rules of J udicial Admin., 560 So.2d

786, 787 (Fla.1990).

*1133[1][2][3] This Court has exclusive jurisdictionto review judicial assignments based upon article V,section 2(a)-(b) of the Florida Constitution. Article V,section 2(a) gives this Court authority to adopt rulesfor the administrative supervision of all courts.Article V, section 2(b) gives the chief justice of thisCourt, as the chief administrative officer of the judi-cial system, the power to assign justices or judges,including consenting retired justices or judges, totemporary duty in any court for which the judge isqualified and to delegate to a chief judge of a judicial

circuit the power to assign judges for duty in thatcircuit. Florida Rule of Judicial Administration2.050(b)(4) delegates the chief justice's assignmentpower to the chief judges of the judicial circuits toassign any judge to temporary service for which thejudge is qualified in any court in the same circuit.When a chief judge exercises this delegated assign-ment authority, the judge is acting under the ChiefJustice's constitutional power to make temporary ju-dicial assignments to ensure the speedy, efficient, andproper administration of justice within the variouscircuits. Wild v. Dozier, 672 So.2d 16, 18(Fla.1996). Because of the vital role temporary judi-

cial assignments play in the administration of ourcourt system, this Court must have exclusive jurisdic-tion to review such assignments under its article V,section 2(a) authority to oversee the administrativesupervision of all courts. See id.

This Court has long recognized the necessity of as-signing retired judges and justices to judicial servicein Florida courts. SeeIn re Assignments of Justices &J udges, 222 So.2d 22 (Fla.1969). As we have ex-plained, unless retired justices and judges are as-signed to ... other courts, long delays in the dischargeof case loads of some of the trial courts will result.Id. at 23. Thus, retired judges have provided valuableservice to Florida's judicial system for many years byassisting with increased caseloads and providing re-lief to active judges when they are ill or disqualified.See In re Rules Governing Assignment to Duty ofRetired Justices & J udges, 239 So.2d 254 (Fla.1970).Were it not for the availability of this resource, thedelays in scheduling hearings and trials ... would be


15/26



much greater. In re Certification of Judicial Man-power, 592 So.2d 241, 246 (Fla.1992). Furthermore,[t]he use of retired judges is the most cost effectiveand flexible program we have to address calendaring

problems and emergencies as they arise. In re Certi-fication of J udicial Manpower, 576 So.2d 1303, 1307(Fla.1991). We have repeatedly noted that the serv-ices of retired judges are available at much less ex-pense than full-time judges. In re Certification ofNeed for Additional J udges, 669 So.2d 1037, 1039(Fla.1996). Senior judges currently perform the workof approximately thirty-five full-time judges, at a costof about $2.9 million, a small fraction of the cost ofthat number of full-time judges. SeeComm. On Ap-pointment and Assignment of Senior Judges, Reportand Recommendations of the Committee On Ap-pointment and Assignment of Senior J udges, 4 (Feb.

22, 2002) (on file with Clerk, Fla. Sup. Ct.).

[4] It is against this background that we address thepetitioners' challenges to the assignment of seniorjudges. The petitioners claim that the use of seniorjudges violates the suffrage rights of voters; the as-signment of cases to the senior judges' docket in theSeventeenth Judicial Circuit constitutes an improperpermanent assignment and violates the constitutionalprohibition against the creation of special court divi-sions; the assignment of a retired judge who residesin another judicial circuit violates the constitutionaljudicial *1134 qualifications; the assignment of com-

plex cases to the senior judge docket results in delaywhich constitutes an unconstitutional restraint onaccess to courts; judges younger than seventy yearsof age and those who are not eligible for retirementbenefits under the state retirement system do notmeet the constitutional definition of a retired judge;and senior judges may not be appointed for matters ofconvenience.FN2

FN2. The Kahn petition makes two chal-lenges that were not raised below: the timestandards for civil litigation are violated bythe use of senior judges and the intent of theMedical Malpractice Reform Act is simi-larly violated. This Court should not addressissues relating to judicial assignments thathave not been raised to the trial court. SeeWild.Accordingly, we decline to addressthese challenges.

[5][6] The petitioners argue that the use of senior

judges violates their suffrage rights. SeeArt. V, 10(b) Fla. Const. (providing for election of circuitcourt and county court judges unless a majority of thevoters in the jurisdiction approve a local option to

select judges by merit selection and retention); id. 11(b) (providing that when a vacancy occurs on acircuit or county court where the judges are electedby the voters the governor shall appoint a judge to fillthe vacancy but an election shall be held to fill thejudicial office at the end of the appointed term). Thepetitioners contend that voters are being deprived ofthe right to have their cases tried by judges who areaccountable to the public because senior judges arenot elected to judicial office. However, constitutionalprovisions must be read in pari materia to form [a]congruous whole so as not to render any languagesuperfluous. Department of Envtl. Prot. v. Millen-

der, 666 So.2d 882, 886 (Fla.1996). The Florida Con-stitution specifically grants the chief justice power toassign retired justices or judges to temporary duty inany court for which they are qualified and the author-ity to delegate this power to the chief judge of a judi-cial circuit. Seeart. V, 2(b), Fla. Const. Thus, whereappointments fall within the parameters outlined inthis provision, the Florida Constitution obviouslypermits appointment of nonelected judges and doesnot consider this to be a violation of suffrage rights.

[7][8][9] Next the petitioners contend that the use ofsenior judges in the Seventeenth Judicial Circuit con-

stitutes an improper permanent assignment, whichviolates the chief justice's constitutional authority toassign retired judges to temporary duty. Art. V, 2(b). Based upon our previous cases, we can gleansome basic constitutional parameters relating to thetemporal nature of judicial assignments. A countyjudge cannot be assigned to perform solely circuitcourt work, and vice versa, unless the assignment isfor a relatively short time. See Payret v. Adams, 500So.2d 136 (Fla.1986); Crusoe v. Rowls, 472 So.2d1163 (Fla.1985). However, a judge may be assignedto hear other court work on a temporary, regular basisas long as the assignment is directed to a specifiedclass of cases, is used to maximize the efficient ad-

ministration of justice, and supplements and assiststhe judges in the other court rather than replacesthem. See Holsman v. Cohen, 667 So.2d 769(Fla.1996); Wild; Crusoe.

[10][11] In determining whether a judicial assign-ment is a temporary assignment under Florida Rule


16/26



of J udicial Administration 2.050(b)(4), this Courtconsiders more than the duration of the individualassignment. The successive nature of the assignment,the type of case covered by the assignment, and the

practical effect of the assignment on the court's juris-diction over a particular type of case also must beconsidered. See Wild.At one end of the *1135 spec-trum, this Court has concluded that successive as-signments totaling more than two years may be con-sidered temporary where the class of cases coveredby the assignment is limited and the practical effect isto assist the judges rather than usurp the court's juris-diction over a particular type of case. See Crusoe.However, successive and repetitive assignmentswhich might be valid if considered individually arenot temporary where the practical effect is to create ade facto permanent circuit judge by administrative

order. See Payret.

The petitioners have not challenged specific succes-sive senior judge assignments, but instead make ablanket claim that the senior judge docket in the Sev-enteenth Judicial Circuit is not a temporary assign-ment. However, even assuming that some of the sen-ior judge assignments have been successive, thisCourt has approved other successive judicial assign-ments. See Wild (approving successive six-monthassignments spanning four years of county judge topreside in circuit court over half of all felony cases ina county); Rivkind v. Patterson, 672 So.2d 819, 820-

21 (Fla.1996) (approving successive monthly as-signments spanning several years as a logical andlawful means to ensure the expeditious and efficientresolution of domestic violence issues in the EleventhCircuit); J .G. v. Holtzendorf, 669 So.2d 1043(Fla.1996)(approving successive six-month assign-ments of county judge to hear most, though not all, ofthe juvenile cases in the county and a few other cir-cuit court actions over the course of five years);Holsman (approving successive monthly assignmentsspanning several years of circuit court judge to han-dle a limited number of county court domestic vio-lence misdemeanors in special domestic violencecourt); but see Payret (disapproving successive one-

year assignments of county court judge assigned tohear all circuit court matters in special jury district ofFifteenth Judicial Circuit over five years).

Under Wild, however, the successive nature of theassignment is only one of three factors to be consid-ered in determining whether an assignment is tempo-

rary. The type of case covered by the assignment andthe practical effect of the assignment on circuit courtjurisdiction over a particular type of case must alsobe considered. See Wild, 672 So.2d at 19. In the in-

stant case, there is a factual dispute over the type ofcases handled by the senior judge docket. The peti-tioners contend that the senior judge docket handlesonly complex, long-duration cases. The respondentscounter that the records of the senior judge docketshow that a wide range of circuit court cases and mat-ters are being handled by senior judges. In fact, thecircuit court's assignment records indicate that casesare assigned to senior judges primarily because ofovercrowded and backlogged calendars in both thecivil and criminal court dockets or because the case islikely to be one of long duration. The docket recordsof the elected judges also indicate that not all long-

duration trials are transferred to the senior judgedocket. Senior judge utilization statistics reflect sen-ior judge assignments in each division of the Seven-teenth Judicial Circuit, and far more in the criminaldivision than in any other. Further, as noted in theprocedures for assignment of senior judges issued bythis Court and the forms for senior judge assign-ments, we conclude that the senior judge assignmentsin the Seventeenth Judicial Circuit are compatiblewith the instructions and the guidance of this Court.

As to the final Wild factor of the practical effect ofthe assignment on circuit court jurisdiction, the senior

judge assignments here are used to maximize theefficient administration of justice and have*1136 thepractical effect of supplementing and assisting thecircuit court judges rather than usurping the judges'jurisdiction over a particular type of case. Underthese criteria, we conclude the senior judge assign-ments are temporary and thus do not violate the con-stitutional parameters ofarticle V, section 2(b).

[12][13] Unlike the judicial assignment cases citedabove, the petitioners here challenge more than thetemporal nature of the senior judge assignments. Thepetitioners also contend that the senior judge docketis a de facto complex case division which cannot beestablished by administrative order, but must be es-tablished through a local rule which is approved bythis Court.FN3 The petitioners note that the adminis-trative judge who handles requests for transfer to thesenior judge docket in the Seventeenth Judicial Cir-cuit has described the docket as our complex litiga-tion division, handling cases that take more than


17/26



three weeks to try.

FN3. Article V, section 7 of the FloridaConstitution provides that [a]ll courts ex-

cept the supreme court may sit in divisionsas may be established by general law.Section 43.30, Florida Statutes (2001), pro-vides that divisions may be created by a lo-cal rule which is approved by this Court.Thus, a special division may not be createdby means of the temporary appointmentpower of the chief justice which is delegatedto the chief judges of the circuit courts.

[14] Pursuant to Florida Rule of J udicial Administra-tion 2.050(b), chief judges of the circuit courts issueadministrative orders to coordinate administrative

matters within their jurisdiction. Unlike local rules,administrative orders generally do not have to beapproved by this Court. As explained in In re Reportof Commission on Family Courts, 646 So.2d 178, 181(Fla.1994), divisions of Florida courts are to be estab-lished through local rules approved by this Court. Seealsoart. V, 7, Fla. Const.; 43.30, Fla. Stat. (2001).Under the provisions of rule 2.050, local rules mustbe approved by a majority of the judges in a circuit,must be noticed and advertised, and must be ap-proved by this Court.

Thus, if the senior judge docket is deemed a divi-

sion it would need to be created by local rule andapproved by this Court. However, this Court has ap-proved the creation of a drug division of the crimi-nal court created by administrative order in the Thir-teenth Judicial Circuit. See Mann v. Chief Judge ofthe Thirteenth J udicial Circuit, 696 So.2d 1184(Fla.1997). As this Court explained, despite its char-acterization as a division, the drug court was moreproperly viewed as a specialized section or subdivi-sion of the criminal division of the circuit court. Id.at 1185. In Mann, we cited our previous opinion inAdministrative Order Fourth Judicial Circuit (Divi-sion of Courts), 378 So.2d 286, 286 (Fla.1979), for

the proposition that the Florida Constitution onlyrequires the establishment of subject matter divisions,i.e., criminal, civil, juvenile, probate, and traffic.Accordingly, we concluded that the drug court divi-sion at issue inMannwas properly created by admin-istrative order. 696 So.2d at 1185. We further notedthat it would place too great a burden upon the effi-cient administration of justice ... [t]o require every

specialized section of the major subject-matter divi-sions of a court to be approved by local rule. Id.

In light of our reasoning in Mann and the senior

judge utilization statistics for the circuit, we concludethat the use of senior judges to relieve overcrowdingof the civil and criminal dockets in the SeventeenthJudicial Circuit does not constitute a complex casedivision that requires approval*1137 by local rule.Thus, the senior judge assignments are proper viaadministrative order of the chief judge.

[15][16] Next the petitioners argue that the assign-ment of a retired judge who resides in a different ju-dicial circuit violates the constitutional eligibilityrequirements of article V, section 8 of the FloridaConstitution. This section provides in pertinent part

that [n]o person shall be eligible for office of justiceor judge of any court unless the person is an electorof the state and resides in the territorial jurisdiction ofthe court. Despite this seeming constitutional restric-tion, this Court has ruled that a circuit judge may beassigned temporarily to serve in a circuit other thanthe one in which he or she was elected. See Card v.State, 497 So.2d 1169 (Fla.1986); see alsoJ udges ofPolk County Court v. Ernst, 615 So.2d 276 (Fla. 2dDCA 1993) (concluding that a county judge may betemporarily assigned to serve outside the countywhere elected). Based upon these cases, we find noimpediment to a similar temporary assignment of a

senior judge. Further, as we explained in In re Report& Recommendations of the Committee on Appoint-ment & Assignment of Senior J udges, 847 So.2d 415,2003 WL 1987980 (Fla. May 1, 2003), the account-ability for senior judges rests with the chief justicerather than the voters of a particular circuit or district.Because the chief justice's authority and responsibil-ity extend throughout the state, the chief justice canassign a senior judge to duty without limitation to thejurisdiction of the senior judge's prior service. op. at423. Thus, we find no merit to this challenge.

[17] The petitioners argue that the assignment of

complex cases to the senior judge docket results indelay which constitutes an unconstitutional restrainton access to courts. Seeart. I, 21, Fla. Const. (Thecourts shall be open to every person for redress ofany injury, and justice shall be administered withoutsale, denial, or delay.). However, most of the peti-tioners' delay arguments seem to be addressed to thecrowded civil docket and the resulting delay of civil


18/26



litigation in general. The petitioners have made noconvincing arguments that these cases would be re-solved any more quickly if they remained on theregular civil docket. Statistics indicate that the Seven-

teenth Judicial Circuit is very efficient in its man-agement and administration of judges and the con-duct of its jury trials. It is counterintuitive to assumejudicial efficiency would improve if we reduced thenumber of judges handling cases in the circuit byeliminating the use of senior judges. As noted above,senior judges currently perform the work of approxi-mately thirty-five full-time judges statewide. Ourjudicial system would be severely hamstrung withoutthese services. See, e.g., In re Certification of Judi-cial Manpower, 592 So.2d 241, 246 (Fla.1992)(Florida trial courts have continued to address work-load pressures by relying heavily on the temporary

assignment of senior judges.). We would all like tosee cases disposed of expeditiously. However, lim-ited judicial resources and burgeoning court docketsrequire that the chief judges retain the freedom tomanage the resources for the efficient and properadministration of all courts within [the] circuit. Fla.R. Jud. Admin. 2.050(b)(3). [A]s the administrativeofficer of all courts within a judicial circuit, the chiefjudge is best equipped to assess the needs of eachtrial court and to allocate the judicial labor availablewithin the circuit accordingly. Wild, 672 So.2d at17-18(footnote omitted).

[18] The petitioners make two challenges relating tothe definition of a retired judge. First, they arguethat only *1138 those judges who have reached theconstitutional age of retirement, seventy years of age,meet the definition of a retired judge who may betemporarily appointed to judicial service under articleV, section 2(b). The petitioners rely upon the judicialeligibility provision inarticle V, section 8 of the Flor-ida Constitution, which provides, in pertinent part,that [n]o justice or judge shall serve after attainingthe age of seventy years except upon temporary as-signment or to complete a term, one-half of whichhas been served. The petitioners contend that whenthe mandatory retirement provision in article V, sec-

tion 8 is read in pari materia with the judicial ap-pointment power in article V, section 2(b), we mustconclude that only those judges who have reachedretirement age are eligible for temporary appoint-ment. Second, the petitioners contend that only thosejudges who are eligible for retirement benefits underthe state retirement system qualify as retired judgeswho may be temporarily appointed to judicial service

under article V, section 2(b). Thus, the petitionersargue, persons who have resigned from judicial officeor have chosen not to seek reelection to judicial of-fice are not qualified for appointment as senior

judges. The petitioners argue that these eligibilityrestrictions on the appointment of senior judges di-minish the intrusion on the constitutional right tosuffrage as the judges who have performed the re-quired years of judicial service have withstood thechallenge of election and reelection and have a dem-onstrated history of support by their electors.

[19] We are not persuaded by either argument. TheFlorida Constitution gives the chief justice authorityto assign retired justices or judges to temporaryduty. Art. V, 2(b), Fla. Const. For the purpose ofjudicial administration, a retired judge is defined as

a judge not engaged in the practice of law who hasbeen a judicial officer of this state. Fla. R. Jud.Admin. 2.030(a)(3)(B). Florida Statutes also define aretired judge as any former justice or judge whohas not been defeated in seeking reelection or reten-tion in his or her last judicial office and is not en-gaged in the practice of law. See 25.073(1), Fla.Stat. (2001) (emphasis added). Thus, under both theRules of Judicial Administration and the FloridaStatutes there are only two restrictions on the eligibil-ity of retired judges who may be assigned to tempo-rary judicial duty: they may not be engaged in thepractice of law; and they may not have been defeated

for reelection or retention in their last judicial office.

In our recent review of the Report and Recommenda-tions of the Committee on the Appointment and As-signment of Senior Judges, we concluded that defer-ence to the constitutional electoral process dictate[s]that judges or justices who fail to win reelection orretention in their last judicial position are not eligiblefor senior judge service. In re Report & Recommen-dations of the Committee on Appointment & Assign-ment of Senior J udges, op. at 6, 847 So.2d 415, 418,2003 WL 1987980 (Fla. May 1, 2003). However, thesame concerns do not attend the temporary assign-ment of qualified and competent judges who havechosen to resign from judicial office before reachingthe constitutional age of retirement or who are not yeteligible for retirement benefits under the state retire-ment system. Thus, we find no merit to the definitionchallenges raised by the petitioners.

Finally, the petitioners argue that senior judges may


19/26



not be appointed for matters of convenience and in-stead all senior judge appointments must be measuredby an emergency of public business standard. Thepetitioners cite our opinion in Spector v. Glisson, 305

So.2d 777 (Fla.1974), to *1139 support the emer-gency of public business standard. Spector involvedthe question of whether a Supreme Court justice'sresignation tendered for a future date created a cur-rent vacancy that should be filled during an upcom-ing general election. In concluding that a present va-cancy had been created and that the vacancy could befilled in the upcoming election,FN4 this Court stated:

FN4. At the time of our decision in Spector,appellate judges and Supreme Court justiceswere subject to election by the voters. InNovember 1976, Florida voters approved an

amendment whereby appellate judges andjustices are subject to merit selection and re-tention. Seeart. V, 10(a), Fla. Const.

It has been said that the only excuse for the appoint-ment of any officer made elective under the law isfounded on the emergency of the public businessand that when an elective office is made vacant thepolicy of the law is to give the people a chance tofill it as soon as possible.

Id. at 781 (quoting63 Am.Jur.2d, Public Officers andEmployees 128). When considered in its propercontext, this opinion neither addressed the chief

justice's constitutional power to assign judges totemporary duty nor created an emergency of pub-lic business before that power could be exercised.

[20] The express language of the constitutional provi-sion which gives the chief justice the power to ap-point judges does not restrict the power to emergen-cies. Indeed, this Court has consistently measuredthe power to make temporary assignments by a stan-dard of flexibility and efficiency. See, e.g., Rivkind,672 So.2d at 820-21 (We find that the judicial as-signments at issue constitute a logical and lawfulmeans to ensure the expeditious and efficient resolu-

tion of domestic violence issues in the Eleventh Cir-cuit.) (emphasis added); Wild, 672 So.2d at 18(When a chief judge exercises this delegated as-signment authority, the judge is acting under theChief Justice's constitutional power to make tempo-rary judicial assignments to ensure the speedy, effi-cient, and proper administration of justice within thevarious circuits.) (emphasis added); Holsman, 667

So.2d at 772(The assignment ... is used to maximizethe efficient administration of justice....); Crusoe,472 So.2d at 1165 (Flexibility must be given thechief judge to utilize effectively judicial manpower in

the mutual assistance of each trial court.). Thus, weconclude that an assignment which meets the consti-tutional requirement of temporary duty need not bebased on an emergency of public business.

For the reasons discussed above, we conclude that theassignment of cases to the senior judge docket in theSeventeenth Judicial Circuit is constitutional and inaccord with applicable law. Thus, we deny the peti-tions for writ of prohibition, lift the stay on furtherproceedings below, and remand this cause to the Sev-enteenth Judicial Circuit.

It is so ordered.

ANSTEAD, C.J., WELLS, J ., and SHAW andHARDING, Senior Justices, concur.WELLS, J ., concurs with an opinion.LEWIS, J ., concurs in part and dissents in part withan opinion.PARIENTE and QUINCE, J J., concur in resultonly.WELLS, J ., concurring.I concur with the majority's decision.

I write to express my view, however, that it is clearlynecessary to the proper administration of justice in

our trial courts for the chief judge and trial counsel ineach circuit to have an ongoing meaningful *1140discussion about the type of problems which havebeen raised in these proceedings and before ourCommittee on the Appointment and Assignment ofSenior Judges. We on this Court are very dependenton the chief judges of the circuits to exercise theirdiscretion in the administration of the circuits be-cause each circuit has different problems which canonly be effectively worked upon by those who havedaily experience at the local level. The chief judgesand their administrative judges benefit from regularand substantive meetings with trial counsel. Many of

our chief judges presently do this. However, I believethat there needs to be a regularly working committeein each circuit for this purpose. I urge that in eachcircuit a bench-bar committee be established and thatthere be a meeting of this committee at least onceevery three months. This committee should consist ofthe chief judge of the circuit, all administrativejudges in the circuit, and selected counsel participants


20/26



who are active trial lawyers in the circuit. I suggestthat the counsel participants be either some or all ofthe circuit's representatives on the Board of Gover-nors of The Florida Bar or their nominees.

LEWIS, J ., concurring in part and dissenting in part.While I agree with the rejection of several challengespresented here, I write to express my disagreementwith the majority's determination that the assign-ments of senior judges in the Seventeenth JudicialCircuit are indeed temporary, and that the circuithas not effectively created a special senior divisionfor the purpose of trying complex civil cases.FN5 Ibelieve that the pattern of assigning such cases in thatcircuit exceeds the constitutional parameters permit-ting the assignment of senior judges for temporaryservice. In approving this de facto division, I believethis Court has permitted the concept of temporary

assignment-conceived to serve important public in-terests-to evolve into a constitutionally impermissiblebroad rule of convenience. Moreover, I believe aseparate complex case or senior judges' dockethas been created in violation of this State's constitu-tionally mandated court structure. Thus, for the rea-sons articulated herein, I must dissent from the ma-jority's determination that the assignment process inthe Seventeenth Judicial Circuit is constitutionallyproper.

FN5. While the problem presented here maybe unique to the Seventeenth Judicial Cir-

cuit, that fact, standing alone, does not re-lieve this Court of its responsibility to en-sure that the circuit adhere to constitutionalconstructs governing judicial assignments.

The ability of the Chief Justice of this Court to maketemporary judicial assignments is grounded in theneed to ensure the speedy, efficient, and proper ad-ministration of justice. SeeWild v. Dozier, 672 So.2d16, 18 (Fla.1996). Senior judges are a vital part ofachieving this important goal. By appointing seniorjudges, judicial circuits can increase case disposition,address court emergencies, and solve calendar con-flicts in a cost-effective manner. However, neither theneed for efficiency nor the corresponding ability ofsenior judges to meet that objective justifies exceed-ing the constitutional requirement that nonelectedjudges receive assignment on a temporary basis, only.Seeart. V, 2(b), Fla. Const. We cannot allow thegoal of judicial efficiency, however laudable it maybe, to trammel clear and direct constitutional direc-

tives. See Wild, 672 So.2d at 21 (Kogan, J., concur-ring in part and dissenting in part).

In reaching its decision, the majority must engage in

a judicial wink as it considers the true definition oftemporary. As recognized by this Court,[t]emporary is an antonym for permanent. *1141Crusoe v. Rowls, 472 So.2d 1163, 1165 (Fla.1985)(internal quotation marks omitted). A temporary as-signment, by definition, cannot usurp, supplant, oreffectively deprive circuit court jurisdiction of a par-ticular type of case on a permanent basis.Id. Ourdecision in Payret v. Adams, 500 So.2d 136(Fla.1986), compels us to be wary against circum-stances rendering de facto permanency to allegedlytemporary assignments. See id. at 138 (invalidatingan assignment that was successive and repetitive,

having been renewed annually for a period of fiveyears). Thus, we must examine the judicial assign-ment's duration as well as its nature, the type of casescovered, and the practical effect of the assignment oncircuit court jurisdiction over a particular type ofcase. SeeWild, 672 So.2d at 19.

The regularized process of assigning complex civilcases to senior judges in the Seventeenth Circuit ef-fectively supplants the jurisdiction of active judgesover those matters. The invalidity of this process isnot mitigated by the fact that not every complex civillitigation matter is assigned to the senior judges'

docket. A substantial percentage are, with consequentimpact on the rights of the parties involved. There isno corresponding emergency, such as a violation ofthe speedy trial rules, to justify consistent reassign-ment of these cases. Indeed, the only justificationoffered is the mantra of judicial efficiency, which,however noble, cannot create its own constitutionalfoundation that so clearly violates constitutional stric-tures.

In determining that no special division has been cre-ated in the Seventeenth Judicial Circuit, the majority,in my opinion, glosses over the practical de facto

effect of the process in operation there. By givingnotice that the trial of a case will likely exceed two-and-a-half weeks, attorneys can almost ensure place-ment on the docket slated for hearing by a seniorjudge. The process effectively allocates cases to adistinct group of judges-not by subject matter-but bythe complexity of the case and projected length oftrial. Cf. Mann v. Chief J udge of the Thirteenth J udi-


21/26



cial Circuit, 696 So.2d 1184, 1185 (Fla.1997). Thus,a distinct de facto complex case division has beencreated in the Seventeenth Judicial Circuit withoutissuance of a local rule in accordance with proper

procedure.

In Broward County, senior judges have become a defacto permanent circuit division for the trial of com-plex civil cases not by the method authorized by theFlorida Constitution, but by judicial direction. WhileI understand the demands placed upon those respon-sible for the administration of the local system andthe current status of resources, a de facto system suchas this exists beyond constitutional parameters, and Imust respectfully dissent from the majority opinionas outlined herein.

Fla.,2003.Physicians Healthcare Plans, Inc. v. Pfeifler846 So.2d 1129, 28 Fla. L. Weekly S370

END OF DOCUMENT


22/26


Date of Printing: Apr 20, 2009

KEYCITE

Physicians Healthcare Plans, Inc. v. Pfeifler, 846 So.2d 1129, 28 Fla. L . Weekly S370 (Fla.,May 01, 2003)(NO. SC01-2062, SC01-2079)

History

Direct History

=> 1Physicians Healthcare Plans, Inc. v. Pfeifler, 846 So.2d 1129, 28 Fla. L. Weekly S370 (Fla. May01, 2003) (NO. SC01-2062, SC01-2079)

Court Documents

Dockets (U.S.A.)

Fla.

2PHYSICIANS HEALTHCARE PLANS, INC., ET AL. v. RAY MOND PFEIFLER, ET UX., NO.SC01-2062 (Docket) (Fla. Sep. 17, 2001)

3KHURSHID KHAN, M.D., ET AL. v. RAY MOND PFEIFLER, ET UX., NO. SC01-2079 (Docket)(Fla. Sep. 28, 2001)


23/26

Fla. R. J ud. Admin., Rule 2.205 Page 1

2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

West's Florida Statutes AnnotatedCurrentnessFlorida Rules of Judicial Administration(Refs & Annos)

Part II. State Court AdministrationRule 2.205. The Supreme Court

(a) Internal Government.

(1) Exercise of Powers and Jurisdiction. The supreme court shall exercise its powers and jurisdiction en banc. Fivejustices shall constitute a quorum and the concurrence of 4 shall be necessary to a decision. In cases requiring only apanel of 5, if 4 of the 5 justices who consider the case do not concur, it shall be submitted to the other 2 justices.

(2) Chief Justice.

(A) The chief justice shall be chosen by majority vote of the justices for a term commencing on July 1 of even-numbered years. If a vacancy occurs, a successor shall be chosen promptly to serve the balance of the unexpiredterm.

(B) The chief justice shall have the following administrative powers and duties. The chief justice shall:

(i) be the administrative officer of the court and shall be responsible for the dispatch of its business;

(ii) have the power to act on requests for stays during the pendency of proceedings, to order the consolidation ofcases, to determine all procedural motions and petitions relating to the time for filing and size of briefs and

other papers provided for under the rules of this court, to advance or continue cases, and to rule on other proce-dural matters relating to any proceeding or process in the court;

(iii) have the power to assign active or retired county, circuit, or appellate judges or justices to judicial servicein this state, in accordance with subdivisions (a)(3) and (a)(4) of this rule;

(iv) have the power, upon request of the chief judge of any circuit or district, or sua sponte, in the event of natu-ral disaster, civil disobedience, or other emergency situation requiring the closure of courts or other circum-stances inhibiting the ability of litigants to comply with deadlines imposed by rules of procedure applicable inthe courts of this state, to enter such order or orders as may be appropriate to suspend, toll, or otherwise grantrelief from time deadlines imposed by otherwise applicable statutes and rules of procedure for such period asmay be appropriate, including, without limitation, those affecting speedy trial procedures in criminal and juve-nile proceedings, all civil process and proceedings, and all appellate time limitations; and

(v) perform such other administrative duties as may be required and which are not otherwise provided for bylaw or rule.

(C) The chief justice shall be notified by all justices of any contemplated absences from the court and the reasonstherefor.


24/26



(D) If the chief justice dies, retires, or is unable to perform the duties of the office, the justice longest in continu-ous service shall perform the duties during the period of incapacity or until a successor chief justice is elected.

(3) Administration.

(A) The chief justice may, either upon request or when otherwise necessary for the prompt dispatch of business inthe courts of this state, temporarily assign justices of the supreme court, judges of district courts of appeal, circuitjudges, and judges of county courts to any court for which they are qualified to serve. Any consenting retired jus-tice or judge may be assigned to judicial service and receive compensation as provided by law.

(B) For the purpose of judicial administration, a retired judge is defined as a judge not engaged in the practiceof law who has been a judicial officer of this state. A retired judge shall comply with all requirements that the su-preme court deems necessary relating to the recall of retired judges.

(C) When a judge who is eligible to draw retirement compensation has entered the private practice of law, thejudge may be eligible for recall to judicial service upon cessation of the private practice of law and approval of thejudge's application to the court. The application shall state the period of time the judge has not engaged in thepractice of law, and must be approved by the court before the judge shall be eligible for recall to judicial service.

(D) A senior judge is a retired judge who is eligible to serve on assignment to temporary judicial duty.

(4) Assignments of J ustices and Judges.

(A) When a justice of the supreme court is unable to perform the duties of office, or when necessary for theprompt dispatch of the business of the court, the chief justice may assign to the court any judge who is qualified toserve, for such time as the chief justice may direct.

(B) When a judge of any district court of appeal is unable to perform the duties of office, or when necessary forthe prompt dispatch of the business of the court, the chief judge shall advise the chief justice and the chief justice

may assign to the court any judge who is qualified to serve, for such time or such proceedings as the chief justicemay direct.

(C) When any circuit or county judge is unable to perform the duties of office, or when necessary for the promptdispatch of the business of the court, the chief judge of the circuit may assign any judge in the circuit to temporaryservice for which the judge is qualified, in accordance with rule 2.215. If the chief judge deems it necessary, thechief judge may request the chief justice to assign a judge to the court for such time or such proceedings as thechief justice may direct.

(b) Clerk.

(1) Appointment. The supreme court shall appoint a clerk who shall hold office at the pleasure of the court and per-form such duties as the court directs. The clerk's compensation shall be fixed by law. The clerk's office shall be in

the supreme court building. The clerk shall devote full time to the duties of the office and shall not engage in thepractice of law while in office.

(2) Custody of Records, Files, and Seal. All court records and the seal of the court shall be kept in the office and thecustody of the clerk. The clerk shall not allow any court record to be taken from the clerk's office or the courtroom,except by a justice of the court or upon the order of the court.


25/26



(3) Records of Proceedings. The clerk shall keep such records as the court may from time to time order or direct.The clerk shall keep a docket or equivalent electronic record of all cases that are brought for review to, or that origi-nate in, the court. Each case shall be numbered in the order in which the notice, petition, or other initial pleadingoriginating the cause is filed in the court.

(4) Filing Fee. In all cases filed in the court, the clerk shall require the payment of a fee as provided by law when thenotice, petition, or other initial pleading is filed. The payment shall not be exacted in advance in appeals in which aparty has been adjudicated insolvent for the purpose of an appeal or in appeals in which the state is the real party ininter

Senior Judge Assignments Rules and Opinions

Documents

Transcript of Senior Judge Assignments Rules and Opinions