MICHAEL STEIN, PETITIONER,
v.
PATRICIA CLARK FOSTER, ET AL., RESPONDENTS
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
The Florida Supreme Court reviewed a case involving a surrogate parenting agreement and adoption, holding that the district court erred in voiding the trial court's rulings based on a procedural defect in the judge's assignment.
The court held that the administrative orders validly appointed the county judge as an acting circuit court judge with the power to hear the case, and the district court erred in voiding the trial court's rulings.
[1] A judge acting under color of authority, even with a procedural defect in actual authority, is considered a de facto judge whose acts are valid.
[2] Public policy and necessity mandate the adoption of the de facto judge doctrine to protect the interests of the public and those dealing with a de facto officer.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligenceA surrogate mother challenged an adoption judgment, arguing the county judge acting as a circuit judge was not properly assigned. The district court r…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse De Facto Judge Doctrine cases and more on FLexlaw
McDonald, justice.
We review Foster v. Stein, 534 So. 2d 1218 (Fla.3d DCA 1988), because of conflict with Card v. State, 497 So. 2d 1169 (Fla.1986), cert. denied, 481 U.S. 1059, 107 S.Ct. 2203, 95 L.Ed.2d 858 (1987). Our jurisdiction is based in article Y, section 3(b)(3), Florida Constitution. We hold that the district court erred in reversing the trial court’s rulings and quash Foster. In January 1986 Michael Stein and Patricia Foster executed a surrogate parenting agreement under which Foster agreed to bear Stein’s child and then give it to Stein and his wife. A county judge serving as an acting circuit court judge entered an order determining the unborn child’s paternity in December 1986.1 Foster gave birth in March 1987 and turned the child over to the Steins. In May 1987 the same Florida judge granted the petition of Hayat Stein (Michael’s wife) to adopt the child. Within a year Foster petitioned for relief from the judgment of adoption, alleging, among other things, that the administrative order assigning the county judge to the circuit court did not authorize him to enter a final judgment of adoption. The same judge who heard the earlier proceedings denied the petition. The district court reversed, voided the lower court’s rulings, and held that “the county judge who executed the order and judgment was never appropriately assigned to the cause as an acting circuit judge." 534 So. 2d at 1218.
As authorized by article V, section 2(b), Florida Constitution, and rule 2.050(b)(4), Florida Rules of Judicial Administration, by administrative order no. 86-149, November 10, 1986, Chief Judge Weth-erington appointed seventeen county court judges to the circuit court
to temporarily serve as Acting and Temporary Judges of the FAMILY CIVIL DEPARTMENT of the Circuit Court, to hear, try, conduct, determine and dispose of those cases assigned to them by the Associate Administrative Judge of the Family Division of the Circuit Court, effective through December 1, 1986, and inclusive of December 31, 1986, and thereafter to dispose of all those matters considered by them during said period.
The named judges include Edward H. Swanko, the judge who presided over this case. On April 24, 1987 Judge Wethering-ton issued administrative order no. 87-59, substantively the same as order no. 86-149, covering the month of May 1987. Foster argues that, because the associate administrative judge of the family division did not assign her case to Judge Swanko specifically,2 he had no jurisdiction to hear it.
Even assuming that Judge Swanko had not been assigned specifically to the instant case,3 we find the district court’s voiding of his orders unwarranted. Judge Wethering-ton’s orders validly made Judge Swanko an acting circuit court judge with the power to hear any case properly in the circuit court and within the scope of the administrative orders. Under those orders Judge Swanko “was in peaceful position, discharging his official duties in view of the public, with public acquiescence, and without the slightest appearance of a usurper.” State ex rel. Hawthorne v. Wiseheart, 158 Fla. 267, 273, 28 So. 2d 589, 593 (1946). It appears that Judge Swanko was, at the very least, a de facto circuit judge.
A de facto judge functions under color of authority even though that judge’s actual authority suffers from some procedural defect. Card. Public policy and necessity, to protect the interest of the public and others dealing with a de facto officer, mandate adoption of the de facto doctrine. Wiseheart. By ignoring the de facto doctrine and voiding Judge Swanko’s orders the district court has, in essence, also voided orders entered by the other judges assigned to the circuit court.4 The family division, to which these judges were assigned, deals with delicate and sensitive matters. Casting doubt on the finality, the very legitimacy, of the orders entered by Judge Swanko and the other judges does not protect or well serve the interests of the public.
We hold, therefore, that Judge Swanko was a de facto judge. A de facto judge’s acts are valid. Card. An objection to a de facto judge’s authority to serve must be timely made. At the latest this should be before the final judgment is en tered in the action.5 Because Foster did not object in a timely manner, Judge Swan-ko’s orders should not be vacated on the grounds that he lacked capacity to act as a circuit judge.6 Therefore, we quash the district court’s decision and remand with directions to affirm Judge Swanko’s rulings in this case.
It is so ordered.
EHRLICH, C.J., and OVERTON, SHAW, BARKETT, GRIMES and KOGAN, JJ., concur. . A Michigan court entered a similar order in January 1987. All documents pertaining to this adoption were executed in Michigan, and the child was born in Michigan. The petition for adoption was silent on the residence of the parties, but because of the foregoing it appears that all are Michigan residents. The issue of the jurisdiction of the Florida courts to consider the adoption was not raised. § 63.185, Fla.Stat. (1987), enacted subsequent to these proceedings, would clearly proscribe this in the future.
. The record does not contain any such order, and Foster alleges that none exists.
. We do not reach the question of whether a showing that Judge Swanko had been assigned the case according to procedures dictated by the administrative judge would supplant the necessity of a written order specifically assigning the case to him.
.At oral argument Foster's counsel stated that he had looked at the circuit court's records and that hundreds of orders might be affected by the district court’s ruling.
. This is consistent with § 38.06, Fla.Stat. (1987), dealing with the effect of disqualification of judges.
. The only argument presented at the trial court level was the defect in the assignment of Judge Swanko. We therefore choose to limit this opinion to the de facto judge issue and not to address any other points now raised by the parties.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Williams v. State, 596 So. 2d 791 (Fla. 4th DCA 1992)…titutional system, administrative convenience often collides with limitations on the power of the officers of government. Defendant’s appellate arguments on this issue are too late, however. He failed to make this objection below. Stein v. Foster, 557 So. 2d 861 (Fla.), cert. denied, — U.S. —, 111 S.Ct. 134, 112 L.Ed.2d 101 (1990), is clear that objections of this kind must first be raised in the trial court. The failure to do so prevents us from taking it up now. My only purpose in commenting on the subjec…
-
Pierre v. State, 821 So. 2d 1174 (Fla. 3d DCA 2002)…udge to maintain an active Florida Bar membership in order to be eligible for assignment to judicial service. Assuming that is so, the defendant nonetheless is not entitled to relief. Florida recognizes the de facto judge doctrine. Stein v. Foster, 557 So. 2d 861 (Fla.1990). The retired judge in this case was operating under a valid order of appointment. As explained in Stein: A de facto judge functions under color of authority even though that judge’s actual authority suffers from some procedural defect. P…
-
ROY v. Honorable James L. Tomlinson, 639 So. 2d 1112 (Fla. 1st DCA 1994)…tered an order stating that Judge Pierce was functioning as a de facto judge “in peaceful position, discharging his official duties in view of the public, with public acquiescence, and without the slightest appearance of a usurper.” Stein v. Foster, 557 So. 2d 861, 862 (Fla.1990), quoting State ex rel. Hawthorne v. Wiseheart, 158 Fla. 267, 273, 28 So. 2d 589, 593 (1946). Finding that a reasonably prudent person would not fear that he would not receive a fair and impartial trial due to the judge’s technically…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Card v. State, 497 So. 2d 1169 (Fla. 1986)
- State v. Wiseheart, 158 Fla. 267 (Fla. 1946)
- Clark v. Texas, 481 U.S. 1059 (U.S. 1987)
- Maxtone-Graham v. Burtchaell, 481 U.S. 1059 (U.S. 1987)
- Patricia (Clark) Foster and Brent Foster v. Stein, 534 So. 2d 1218 (Fla. 3d DCA 1988)