IN RE INVOLUNTARY RETIREMENT OF CIRCUIT JUDGE JACK A. FALK

PER CURIAM.

The Judicial Qualifications Commission has conducted proceedings under Rule 6, Judicial Qualifications Commission Rules, to determine whether Judge Jack A. Falk, a Circuit Judge in the Eleventh Judicial Circuit of Florida, should be involuntarily-retired for disability seriously interfering with the performance of his duties, which was or is likely to become permanent in nature. Fla.Const., art. V, § 12, F.S.A. After an appropriate hearing the Commission made the following findings of fact and conclusions of law:

“FINDINGS OF FACT

“1. Judge Jack A. Falk is suffering from a carcinoma of the prostrate gland and has been, for several months, unable to perform his duties as a Circuit Judge.

“2. Said disability is permanent in nature and will continue to make it impossible for Judge Falk to perform his duties as a Circuit Judge.

“CONCLUSIONS OF LAW

“That because of the foregoing, Judge Jack A. Falk should be involuntarily retired as a Circuit Judge of the Eleventh Judicial Circuit in and for Dade County, Florida.

“RECOMMENDATION FOR ORDER OF RETIREMENT

“The Florida Judicial Qualifications Commission, being well satisfied that Judge Jack A. Falk is suffering from a permanent physical disability, which said disability seriously interferes with and prevents the performance of his duties as a Circuit Judge, recommends to the Supreme Court of Florida that said Court enter an Order of Involuntary Retirement of Judge Jack A. Falk as a Circuit Judge of the Eleventh Judicial Circuit of Florida in and for Dade County, and declare that a vacancy exists in said Court.”

Nine members, constituting a clear majority of the Commission, have recommended that we enter an order of retirement.

We approve the findings of fact and the conclusions of law made by the Commission, and accordingly, Jack A. Falk is hereby retired from service as a Circuit Judge on the date of the filing of this opinion, his retirement being by reason of a physical disability of a permanent character and interfering with and preventing the performance of his duties. He is, therefore, entitled to compensation as provided by law in such cases.

After the date of the filing of this opinion, Circuit Judge Jack A. Falk, insofar as the relationship of the Court is concerned, is that of a retired judge, and by reason of his retirement there exists a vacancy in the Circuit Court of the Eleventh Judicial Circuit, in and for Dade County.

The Court having fully considered this matter and because of its emergency nature, there shall be no petition for rehearing, and this order shall be effective immediately.

It is so ordered.

ADKINS, C. J., and ROBERTS, McCAIN, DEKLE and OVERTON, JJ., concur. ON MOTION TO VACATE

PER CURIAM.

Upon further consideration of this cause, the Court concludes that the Motion to Va cate the Judgment of this Court contained in the opinion upon Motion for Clarification filed September 10, 1974, should be granted and the original opinion filed August 27, 1974, reinstated. This disposition of this cause is made without consideration or determination of the merits of the controversy duly presented on oral argument.

Thereupon it is ordered that the opinion filed herein on September 10, 1974 be and the same is hereby vacated and the opinion originally filed in this cause on August 27, 1974 be and the same is hereby reinstated.

This opinion and order is without prejudice to the rights of the widow of Judge Falk to institute and prosecute appropriate proceedings for the determination of the compensation she is entitled to receive under the applicable retirement laws of the State of Florida.

It is so ordered.

ADKINS, C. J., and BOYD, ENGLAND and DREW (Retired), JJ., concur. ROBERTS, J., dissents with an opinion.

ROBERTS, Justice

(dissenting) :

The effect of this Order is to bifurcate the questions of mandatory retirement and the amount of retirement benefits. Judge Falk died on November 5th, 1974, and there is no longer any question about his compulsory retirement because such is now moot. The only remaining question is the amount of the benefits which can be determined by the construction of several allegedly conflicting and overlapping statutes, and ten months have passed since his death without his widow knowing the amount of, or receiving retirement benefits. In my opinion, all parties are before the Court or could easily be brought before the Court, and I would take jurisdiction under Section 3(b)(4), Article V, Constitution of Florida, commonly referred to as the “All Writs Section,” as was done in Mize v. County of Seminole, 229 So. 2d 841 (Fla. 1969), and Wilson, et al. v. Sandstrom, 317 So. 2d 732 (Fla.1975). After providing all proper persons an opportunity to be heard, I would dispose of the total litigation.

I, therefore, respectfully dissent.