ADVISORY OPINION TO THE GOVERNOR
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The Florida Supreme Court addressed whether a Circuit Judge's extended illness and consequent inability to perform duties constitutes a constitutional vacancy in office. The Court held that illness alone, without legislation declaring it a vacancy, does not create an office vacancy that would authorize gubernatorial appointment.
The Court held that the constitutional provision requiring officers to devote personal attention to their duties does not ipso facto create a vacancy when an incumbent fails to do so. An office is vacant only when there is no incumbent authorized to perform its functions. Since the disabled judge remains an authorized incumbent, no vacancy exists, and the Governor lacks authority to appoint a successor.
“The provision of the constitution that "no person shall hold any office of trust or profit under the laws of this State without devoting his personal attention to the duties of the same," does not ipso facto cause a vacancy in an office which is held by an incumbent "without devoting his personal attention to the duties of the same."”
Establishes that violation of the constitutional duty to devote personal attention does not automatically create a vacancy
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Join FLexlaw to unlock all legal intelligenceA Circuit Judge has been wholly disabled by illness for approximately ten months and is unable to devote personal attention to his duties. Medical evi…
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Tallahassee, April 28, 1914.
To the Honorable Justices of the Supreme Court .of Florida: Gentlemen— Section 17 of Article XVI of the State Constitution is as follows: “No person shall hold any office of trust or profit under the laws of this State without devoting his personal attention to the duties of the same.”’ Section 33 of Article V of the Constitution is as follows: “When the office of any Judge shall become vacant from any cause, the successor to fill such vacancy shall be appointed or elected only for the unexpired term of the Judge whose death, resignation, retirement or other cause created such vacancy.”
Section 6 of Article IY of the Constitution provides that the Governor shall take care that the laws are faithfully executed.
It is-officially known to me as Governor, that for a period of about ten months last past the Judge of the Circuit Court for one of the Judicial Circuits of this State has been wholly disabled, by reason of illness, to discharge any of the duties of his office and that said Judge has not during such period devoted his personal attention to the duties of the same.
There is medical evidence before me which is deemed reliable, to the effect that the illness of the said Judge is incurable and that by reason of the ffature of same he will not again be able to devote his personal attention to the duties of his said office.
The term of the said Judge will not expire until June, 1917.
During the period which has elapsed since the said Judge was stricken with illness, the duties which were incumbent upon him to discharge, have been discharged as far as it was practicable by the Judges of the other Circuits, under the provisions of law.
There are a number of representations before me that the public interests and the proper administration of justice in said Circuit are suffering because of the conditions stated. In view of the premises I have the honor, In pursuance of the provisions of Section 13 of Article IV of the Constitution, to request a written opinion of the Justices of the Supreme Court as to whether the extended and continuing illness of the said Circuit Judge and his consequent inability and failure to “devote his personal attention to the duties” of his office, creates in the meaning of the Constitution such a vacancy in the said office of Judge of the Circuit Court as to make it the duty of the Governor to make an appointment to fill such vacancy.
Very respectfully, PARK TRAMMELL, Governor. IN THE SUPREME COURT OF FLORIDA, JANUARY TERM, A. D. 1914.
Tallahassee, April 30th, 1914.
To His Excellency, Park Trammell, Governor of Florida-. .Sir— Your request under, the constitution for an opinion as to whether serious and long continued illness resulting-in the inability and failure of a Circuit Judge to “devote his personal attention to the duties of his office, creates, in the meaning of the constitution, such a vacancy in the said office as to make it the duty of the Governor to make an appointment to fill such vacancy,” has been duly considered. - The provision of the constitution that “no person shall hold any office of trust or profit under the laws of this State -without devoting Iris personal attention to the duties of the same,” does not ipso facto cause a vacancy in an office which is held by an incumbent “without devoting his personal attention to the duties of the same.”
No legislation has been enacted making the failure of the Circuit Judge from anjr cause or for any reason, to devote his personal attention to the duties of his office, to operate as or cause a vacancy in the office.
An office is vacan i when there is no encumbent of it authorized to perform its functions.
In the case stated there is an incumbent of the office authorized to perform its functions.
In this Slate the authority of an officer is not affected by his physical or mental inability to perform the functions of his office.
Under these circumstances you are advised that on the facts stated in your communication there exists no vacancy in the office referred to so as to authorize an executive appointment thereto.
Very -respectfully, T. M.
Shackleford, R. F. Taylor, R. S.
Cockrell, W. A. Hocker, J. B.
Whitfield, Justices Supreme Court.
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In re Advisory Opinion to Governor, 151 Fla. 44 (Fla. 1942)…n and the Governor withholds his consent to the absence of the judge, no vacancy will occur which may be filled by appointment by the Governor unless and until the legislature takes affirmative action by impeachment. See, In Re: Opinion of Justices, 67 Fla. 423, 65 Sou. 4. [*62] I know of no authority anywhere vested by which the Governor may be stripped of his sovereign power as Chief Executive of a State except in cases where the State, by reason of some emergency, is placed under martial law and the civ…
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In re Advisory Opinion to Governor, 150 Fla. 556 (Fla. 1942)…sence for the duration of services required in the armed forces, or will withhold the granting of leave of absence and suspend the officer because of failure to comply with Section 17, Article XVI of our Constitution. See in Re: Opinion of Justices, 67 Fla. 423, 65 Sou. 4. Also see Sec. 3, Chapter 20718, Acts of 1941: Paramount allegiance is due to the Federal Government. Sec. 2, Fla. Constitution. The Constitution and laws of the United States are the supreme law of the land. Article VI, Federal Constitu…
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In re Advisory Opinion to Governor, 94 Fla. 986 (Fla. 1927)…first election held thereafter. In this case such election was the general election of 1926. After the creation of the office it was vacant until there was an incumbent of it authorized to perform its functions. See Advisory Opinion to the Governor, 67 Fla. 423, 65 South. Rep. 4. Your appointment of Mr. Cohen, therefore, to hold the ■ office until the general election in 1926, was in accordance with your constitutional duty. The commission which was issued by you to him on November 26, 1926, to hold the…
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