In re Advisory Opinion to the Governor , 1966 Fla. LEXIS 3174 ( 1966 )

PER CURIAM.

SUPREME COURT OF FLORIDA

Tallahassee

December 13, 1966

Honorable Haydon Burns

Governor of Florida

Capitol Building

Tallahassee, Florida

Dear Governor Burns:

Receipt is hereby acknowledged of your request for an advisory opinion of December 8, 1966, reading as follows:

“The Honorable Chief Justice Campbell Thornal

Supreme Court Building

Tallahassee, Florida

“Dear Justice Thornal:

“Under Section 13 of Article IV of the Florida Constitution, [F.S.A.], the Governor is authorized to request the written opinion of the Justices of the Supreme-Court as to the interpretation of any question affecting his powers and duties.

“Article IV, Section 14, of said Constitution provides that all Commissions shall be-signed by the Governor.

“On November 8, 1966, the Honorable Stephen R. Booher was elected to the office of Circuit Judge for the Seventeenth Judicial Circuit, Group 9, in and for Broward County, Florida. At the time the election took place, the said Honorable Stephen R. Booher was in all respects eligible for the office of judge of the circuit court, pursuant to Article V, Section 13, of the Florida Constitution.

“On November 8, 1966, the electorate voted in favor of an amendment to Article V of the Florida Constitution, adding a new section to be numbered by the Secretary of State, which provides:

“ ‘ * * * no person shall be eligible for the office of judge of a circuit court unless he is a citizen of this state and unless he is, and for a period of five (S) years lias been, a member of the Florida bar.’

“The Honorable Stephen R. Booher has been a practicing attorney since March 26, 1957, but he has only been a member of the-Florida bar since November 16, 1962.

“The said amendment to the Constitution contained no effective date for its operation although reference to an effective date is recited in the preamble.

“In view of the above situation, I am uncertain as to whether the aforesaid amendment to the Constitution is in any way applicable to the eligibility requirments of the-Honorable Stephen R. Booher. Accordingly, I have the honor to request your opinion as to whether I shall sign his commission, as provided by Section 14 of Article-IV of the Florida Constitution, for the term; commencing January 3, 1967.

“Respectfully yours,

/s/ Haydon Burns,

Governor”

The amendment to Article V of the Constitution referred to in your request was adopted by the people and became effective simultaneously with the election by .the people of the Honorable Stephen R. Booher as Circuit Judge for the Seventeenth Judicial Circuit, Group’ 9, in and for Broward County. The words therein “ * * * no person shall be eligible for the office of judge * * * unless he is, and for a period of five (5) years has been, a member of the Florida bar” refer to eligibility at the time cf assuming office and not at the time of qualification or election to office.

The Constitution, Article XVI, Section 2, provides:

“Each and every officer of this State, including the members of the Legislature, shall before entering upon the discharge of his official duties take the following oath of office: I do solemnly swear (or affirm) that I will support, protect, and defend the Constitution and Government of the United States and of the State of Florida; that I am duly qualified to hold office under the Constitution of the State, and that I will well and faithfully perform the duties of-on which I am now about to enter. So help me God.”

Chapter 114.01, Florida Statutes 1965 F.S. A. provides that “[ejvery office shall be deemed vacant * * * [b]y [the incumbent’s] neglect or refusal to qualify according to law within sixty days after his election or appointment * * * ” It is obvious from the disclosures of your communication that the Honorable Stephen R. Booher does not now nor will he within the time allowed by law possess the qualifications now required by the Constitution of this State to hold the office of a Judge of a Circuit Court.

You are, therefore, advised that you are not authorized to sign his commission as provided by Section 14 of Article IV of the Florida Constitution for the term commencing January 3, 1967.

The above are the views of all of the Justices of this Court except Mr. Justice Caldwell, who has the view that the eligibility requirements in the Constitution relate to the time of qualification for election and not to the time of- assuming office.

Respectfully yours,

CAMPBELL THORNAL, Chief Justice

ELWYN THOMAS

B. K. ROBERTS

E. HARRIS DREW

STEPHEN C. O’CONNELL

MILLARD F. CALDWELL

RICHARD W. ERVIN Justices