Holley v. Adams

This is an appeal from a final judgment rendered by the Circuit Court of the Second Judicial Circuit in Leon County, Florida, directly passing upon the validity of Ch. 70-80, Laws of Florida, amending § 99.012, Fla.Stat, F.S.A. We have jurisdiction. Art. V, §4(2).

The appellant, hereinafter referred to as Holley, is currently a Circuit Court Judge and the term of his office does not expire until January of 1973. He intends to qualify for the office of Justice of the Supreme Court of Florida, but is faced with the following provisions of Ch. 70-80, Laws of Florida:

“(2) No individual may qualify as a candidate for public office who holds another elective or appointive office, whether state, county or municipal, the term of which or any part thereof runs concurrent to the term of office for which he seeks to qualify without resigning from such office not less than ten (10) days prior to the first day of qualifying for the office he intends to seek. Said resignation shall be effective not later than the date upon which , he would assume office, if elected to the office to which he seeks to qualify, or the expiration date of the term of the office which he presently holds, or the general election day at which his successor is elected, whichever occurs earlier. With regard to elective offices said resignation shall create a vacancy in said office thereby permitting persons to qualify as candidates for nomination and election to that office, in the same manner as if the term of such public officer were otherwise scheduled to expire; or, in regard to elective municipal or home rule charter county offices, said resignation shall create a vacancy which may be filled for the unexpired term of the resigned officer in such manner as provided in the municipal or county charter. This does not apply to political party offices.

“(3) Any incumbent public officer whose term of office or any part thereof runs concurrent to the term of office for which he seeks to qualify and who desires to resign his office pursuant to the provisions of this act shall execute an instrument in writing directed to the governor irrevocably resigning from the office he currently occupies. The resignation shall be presented to the governor with a copy to the department of state. The resignation shall become effective and shall have the effect of creating a vacancy in office as provided herein, and the public officer shall continue to serve until his successor is elected or the vacancy otherwise filled as provided above in subsection (2).

“(4) Nothing contained in this act shall relate to persons holding any federal office.”

Not wishing to resign his present office unless he is successful in his quest for the office of Justice of the Supreme Court, Holley brought a declaratory action against Tom Adams, as Secretary of the State of Florida, and the State of Florida. In his complaint, Holley alleges that he “intends, and has publicly announced, he intends, this year to be a Republican candidate for nomination and election to the office of Justice of the Supreme Court of Florida.” He further alleges that, although he has complied with all other requirements of law, the Secretary of State has informed Holley that unless he submits an irrevocable resignation from his office of Circuit Judge ten (10) days before the first date of qualifying (the resignation filing date being June 27, 1970) that the Secretary will reject his qualification papers for the office of Justice of the Supreme Court. In his complaint, Holley attacked the constitutionality of Ch. 70-80. The lower court held that it had jurisdiction and then sustained the provisions of Ch. 70-80, Laws of Florida, as not violating the provisions of the Florida Constitution or of the United States Constitution.

This appeal resulted and the cause has been accelerated so as to make possible the rendition of a decision prior to the June 27, 1970 deadline for submission of the resignation.

The appellees maintain that Holley only seeks advice as to his future action and is not entitled to relief under the decision in Bryant v. Gray, 70 So.2d 581 (Fla.1954). The Bryant case, a suit for declaratory decree, sought a construction of the constitutional provision declaring the Governor ineligible for re-election for the next succeeding term. It was alleged that plaintiff Bryant desired to be a candidate and might he a candidate for the next succeeding term. He was not sure. The question was therefore hypothetical and too remote as to time and too uncertain as to contingencies to warrant declaratory relief.

In the case sub judice, Holley alleges that he intends to be a candidate and has publicly announced his intention to be a candidate. He has filed with the Secretary of State a declaration of such intention, designation of campaign treasurer and campaign fund and depository collection, deposit and disbursement of campaign funds. These circumstances call into play the principle announced in James v. Golson, 92 So.2d 180 (Fla.1957), which held that under the provisions of § 86.011(2) (formerly § 87.01(2), Fla.Stat., F.S.A., the Court may render a declaratory judgment,

“Of any fact upon which the existence or nonexistence of such immunity, power, privilege or right does or may depend, whether such immunity, power, privilege or right now exists or will arise in the future. Any person seeking a declaratory judgment may also demand additional, alternative, coercive, subsequent or supplemental relief in the same action.”

the fact that a controversy had not matured is not always essential.

The action for declaratory judgment was appropriate and the Circuit Court had jurisdiction.

Holley contends that Ch. 70-80, Laws of Florida, is invalid as a legislative attempt to prescribe qualifications of eligibility to a constitutional public office, the qualifications for which are prescribed by the Florida Constitution. In considering this contention, the distinction between eligibility for office and qualifications or conditions imposed upon an office seeker should be kept clear,

In determining the validity of the statute certain basic principles of constitutional construction must be followed.

First, it is the function of the Court to interpret the law, not to legislate.

Second, courts are not concerned with the mere wisdom of the policy of the legislation, so long as such legislation squares with the Constitution.

Third, the courts have no power to strike down an act of the Legislature unless the provisions of the act, or some of them, clearly violate some express or implied inhibition of the Constitution.

Fourth, every reasonable doubt must be indulged in favor of the act. If it can be rationally interpreted to harmonize with the Constitution, it is the duty of the Court to adopt that construction and sustain the act.

Fifth, to the extent, however, that such an act violates expressly or clearly implied mandates of the Constitution, the act must fall, not merely because the courts so decree, but because ,of the dominant force of the Constitution, an authority superior to both the Legislature and the Judiciary. Amos v. Mathews, 99 Fla. 1,126 So. 308 (1930).

The judiciary will not nullify legislative acts merely on grounds of the policy and wisdom of such act, no matter how unwise or unpolitic they might be, so long as there is no plain violation of the Constitution. Jackson Lumber Company v. Walton Company, 95 Fla. 632, 116 So. 771 (Fla.1928). See also Williams v. City of Jacksonville, 118 Fla. 671, 160 So. 15 (1935).

Holley relies upon Burroughs v. Lyles, 142 Tex. 704, 181 S.W.2d 570 (1944), where the Court considered a statute requiring resignation by any executive or administrative officers before running for another office. The Texas Supreme Court held that the statute was unconstitutional as attempting to impose an additional qualification beyond that required by the Constitution.

On the other hand, the appellees rely upon Mulholland v. Ayers, 109 Mont. 558, 99 P.2d 234 (1940), which also involved a resignation statute substantially similar to the one at issue in the case sub judice. The Court upheld the statute as being constitutional, saying,

“A person may possess the requisite qualifications or may be eligible to many different offices. The legal requirement, however, that he may not hold more than one at a time does not affect his eligibility to hold them all. On the other hand, the requirement that an office held by one who becomes a candidate for another becomes vacated goes not to his eligibility to hold either office.” (p. 239)

Decisions in other jurisdictions concerning this question are in conflict, so it is necessary to determine the rule which would be applicable in this jurisdiction in the light of our previous decisions.

In Webster’s Third New International Dictionary, the word “eligible” is defined as “fitted or qualified to be chosen or used.” The word “qualified” is defined as “fitted (as by endowments or accomplishments) for a given purpose: competent, fit.”

The word “eligible,” when used in speaking of a candidate for office as being eligible, means capable of being chosen, while qualified means the performance of the acts which the person chosen is required to perform before he can enter into office. See Bradley v. Clark, 133 Cal. 196, 65 P. 395 (1901).

Holley relies upon Thomas v. State ex rel. Cobb, 58 So.2d 173 (Fla.1952), where a statute requiring candidates for the office of county superintendent of public instruction to have a valid Florida Graduate Teacher’s Certificate was held to be unconstitutional in that it added qualifications to the office so as to make such qualifications different from those prescribed in the Constitution. The requirement of the Florida Graduate Teacher’s Certificate was clearly a qualification for office and quite different from a statute pertaining to eligibility as a candidate for election. The requirement in the Thomas case related to the academic, professional, or mental requirements as a qualification for holding the office. Ch. 70-80 is not a legislative determination that a person who currently holds the office of Circuit Judge is not fit to be a Supreme Court Justice.

State ex rel. Fair v. Adams, 139 So.2d 879 (Fla.1962), involved the question of whether an office seeker could run for two offices at the same time. This Court conceded that there was no constitutional or statutory prohibition in Florida against running for several offices at the same time. The Court pointed out that an office holder may become a candidate for another office if the term of that office begins before the term of the office which he holds expires. He would have to resign his present office before entering upon the duties of the office to which he might be elected. The Court held a candidate could not seek the nomination to several state offices at the same time, even though there was no constitutional or statutory provision.

Jones v. Board of Control, 131 So.2d 713 (Fla.1961), was an action by a former faculty member of a state university for alleged breach of contract in terminating his employment on the ground that he had breached a rule in filing as a candidate for a judgeship. The Court held that a rule prohibiting university employees from seeking election to public office was constitutional. The Court in its opinion said:

“We think that we can dispose of our problem on a much broader plateau of reasoning with the view that any right which an individual does have to work for the government or to continue in the public employ or to seek public office must necessarily be subject to all reasonable rules and regulations promulgated by the government in the interest of the public and for the well-being of the public services.” (Emphasis supplied) (p. 717)

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“We think that the decision of the trial judge and our own conclusion is clearly supported by the opinion of the Supreme Court of the United States in United Public Workers of America v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754. There, the highest Court sustained the constitutionality of the so-called Hatch Act, 18 U.S.C.A. § 594 et seq:, 5 U.S.C.A. § 118i et seq. which prohibited government employees in the Civil Service from seeking election to public office. We think it unnecessary to elaborate upon the details of that decision. It is perfectly clear that the United States Supreme Court found adequate justification for a requirement which would preclude participation in political campaigns in the interest of saving the employees against political retaliation and providing job security.” (p. 718)

Ch. 70-80 does not prescribe additional qualifications for the office, as the candidate may well be qualified in a legal sense to hold either. The law is simply a limitation upon the right to retain the office already held when seeking another. It is not a limitation upon the right to seek another office, for the incumbent of an office has the choice under the statute to retain it unmolested or give it up and seek another. See Mulholland v. Ayers, supra.

This holding is not in conflict with Wilson v. Newell, 223 So.2d 734 (Fla.1969), where a statute, requiring a candidate for county commissioner or county school board to have been a bona fide resident of the district from which he qualified for a period of at least six (6) months prior to the qualifying date, was held unconstitutional. This statute required additional “qualifications” for the office. Ch. 70-80 does not prescribe qualification but relates to the eligibility of those who may become candidates.

Holley also says that Ch. 70-80 must be given prospective application only and should not apply to those office holders who obtain their offices at a time when it was unburdened by the provisions.

The right to seek public office is not a constitutional absolute, but such privilege is subject to reasonable restraint and conditions. Jones v. Board of Control, supra. Ch. 70-80 is not a burden imposed upon the office of circuit judge presently held by Holley. His term of office as circuit judge remains as before and this right is-affected only by the voluntary act of the incumbent in office.

The acceptance of an incompatible office by one already holding office operates as a resignation of the first. In the absence of Ch. 70-80, Holley would have been required to resign as circuit judge in the event he were elected and assumed the duties of a Justice of the Supreme Court. See State ex rel. Fair v. Adams, supra. Ch. 70-80 simply extends the rule of resignation or abandonment of office to those who become candidates for another office when they already hold one office, the term of which or any part thereof runs concurrent to the term of office for which he seeks to qualify. Certainly, a person will be held to have abandoned his office when he leaves the state or changes his residence from the territorial jurisdiction of the office. Similarly, there is no constitutional provision prohibiting the Legislature from declaring that the mere filing for a second office by the holder of one office under the circumstances covered by Ch. 70-80 operates as an abandonment of the first. Mulholland v. Ayers, supra.

Holley contends that under State ex rel. Hatton v. Joughin, 103 Fla. 877, 138 So. 392 (1931) and State ex rel. Holland v. Ledwith, 14 Fla. 220 (1872), although the rights of the office may be restricted prior to its terms, an office holder upon election receives a property interest in the office, which interest is protected against reduction by the Legislature. This principle is not applicable, because the reduction of the term, if any, is caused solely by the act of the office holder in abandoning the office which he presently holds. This is particularly true under the principle announced in Jones v. Board of Control, supra, that the privilege of seeking public office is subject to reasonable restraint and conditions.

The statute does not violate the appointive powers of the Governor. With regard to elective offices the resignation is effective not later than the date upon which he would assume office, if elected to the office to which he seeks to qualify, or the expiration date of the term of the office which he presently holds, or the general election day at which his successor is elected, whichever occurs earlier. With regard to elective offices the resignation creates a vacancy in the office thereby permitting persons to qualify as candidates for nomination and election in the same manner as if the terms of such public offices were otherwise scheduled to expire. The vacancy would occur as of the effective date of the resignation and, in the event no' one qualified for election to the office, the vacancy would then be filled by the Governor.

Ch. 70-80 contains the following statement of legislative intent:

“WHEREAS, it is generally agreed to be considered inequitable to permit an elected official or appointive official holding office to use the prestige and power of that office in seeking election to a higher or different office, and

“WHEREAS, it is generally agreed that by providing for prospective resignations the people of the State of Florida would not be compelled to bear unnecessary cost of special elections occasioned by elected or appointed officials who, while holding one office, seek and obtain another elective office.”

Police power is the sovereign right of the State to enact laws for the protection of lives, health, morals, comfort and general welfare. State ex rel. Municipal Bond and Inv. Co., Inc. v. Knott, 114 Fla. 120, 154 So. 143 (1934). The State may enact laws whenever demanded by public interest, and large discretion is vested in the Legislature to determine public interest and measures for its protection. Scarborough v. Newsome, 150 Fla. 220, 7 So.2d 321 (1942).

Ch. 70-80 was enacted for the benefit of the public welfare as stated in the above-quoted clauses. The statute fulfills its purposes.

Holley is not in a position to assert the constitutional right of a notary public or military officer to simultaneously hold another office, nor the right of a Legislator to hold judicial office, nor the question of whether the statute places an undue qualification on a federal officer.

Elton J. Gissendanner, Mayor of the City of North Miami, has filed a petition to intervene or in the alternative to appear as amicus curiae. The petition raises issues collateral to those under consideration and intervention should not he allowed. See Dickinson v. Segal, 219 So.2d 435 (Fla.1969). However, the brief filed on behalf of Mr. Gissendanner has been treated as that of an amicus curiae.

In summary, Ch. 70-80 does not relate to the qualifications one must possess in order to hold office, but merely conditions under which he may become eligible to be a candidate. The Legislature, in its wisdom, considered it inequitable for an elected official or appointive official holding office to use the prestige and power of that office in seeking election to a higher or different office. Furthermore, the Legislature agreed that by providing for prospective resignations the people of the State of Florida would not be compelled to bear the unnecessary cost of special elections occasioned by elected or appointed officials who, while holding one office, seek and obtain another elective office.

To construe the provisions of Ch. 70-80 as imposing additional qualifications upon the office of Justice of the Supreme Court or any other office would be to legislate and not to interpret. The objections made to the law are matters of legislative concern.

The judgment of the Circuit Court is

Affirmed.

DREW, CARLTON and BOYD, JJ., and MASON, Circuit Judge, concur.

THORNAL, J., concurs with opinion.

ERVIN, C. J., dissents with opinion.