Orr v. Trask

464 So. 2d 131, 10 Fla. L. Weekly 132
CourtSupreme Court of Florida
DecidedFebruary 21, 1985
Docket65487
StatusPublished
Cited by27 cases

This text of 464 So. 2d 131 (Orr v. Trask) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Orr v. Trask, 464 So. 2d 131, 10 Fla. L. Weekly 132 (Fla. 1985).

Opinion

464 So.2d 131 (1985)

Wallace ORR, Secretary, State of Florida, Department of Labor and Employment Security; and D. Robert Graham, Governor of the State of Florida, Appellants,
v.
David L. TRASK, Appellee.

No. 65487.

Supreme Court of Florida.

February 21, 1985.
Rehearing Denied March 22, 1985.

*132 Dan F. Turnbull, Jr., Asst. Gen. Counsel, Tallahassee, for Wallace Orr.

Jim Smith, Atty. Gen., and Kent Weissinger and Gerald B. Curington, Asst. Attys. Gen., Tallahassee, for D. Robert Graham.

Reubin O'D. Askew of Greenberg, Traurig, Askew, Hoffman, Lipoff, Rosen & Quentel, Arthur J. England, Jr. of Fine, Jacobson, Block, England, Klein, Colan & Simon, Miami, and Stephen Marc Slepin of Slepin, Slepin, Lambert & Waas, Tallahassee, for appellee.

Mark Herron and Chris Haughee, the Florida House of Representatives, and D. Stephen Kahn of Kahn & Dariotes, Tallahassee, amicus curiae, for The Florida House of Representatives, Representative H. Lee Moffitt, Representative Herbert F. Morgan, and The Florida Senate, Senator N. Curtis Peterson, Jr., and Harry A. Johnston, II.

SHAW, Justice.

This cause is before us on a certification by the district court of appeal that the judgment of the trial court is of great public importance. We have jurisdiction. Art. V, § 3(b)(5), Fla. Const.

Appellee Trask is a deputy commissioner of Workers' Compensation in District K, Dade and Monroe Counties. He was initially appointed to his post in January 1974, and subsequently reappointed to four-year terms in 1978 and 1982 following the favorable determination of the judicial nominating commission in accordance with section 440.45, Florida Statutes (1981). His current term expires in January 1986.

Funds to pay deputy commissioners are drawn from the Workers' Compensation Administration Trust Fund by authority of the legislative appropriations act. In 1983 the legislature undertook to reduce the number of deputy commissioner positions in District K by reducing the funds appropriated and by including in the 1983 General Appropriations Act, chapter 83-300, Laws of Florida, a proviso that

*133 [f]unds and positions in Specific Appropriation 1203 contemplate the elimination of one Deputy Commissioner by July 1, 1983 and three Deputy Commissioners by December 31, 1983; one from District J and three from District K.

Chapter 83-300 was enacted 24 June 1983, approved by the Governor on 30 June 1983, and became effective 1 July 1983.

Secretary Orr and Governor Graham undertook to reduce the District K deputy commissioner positions as contemplated by the appropriations act. At that time two positions were unfilled because of the retirement of a deputy in 1982 and the death of another in June 1983. Another deputy, whose term was scheduled to expire in November 1983, had been selected for retention in March 1983. Secretary Orr, the cognizant department head responsible for budgetary adjustments in accordance with the appropriations act, conducted a review of the District K positions and incumbents in order to select the positions to be abolished. Secretary Orr forwarded his recommendation, along with supporting analysis, to the Governor on 22 August 1983. The same day Secretary Orr advised Deputy Commissioner Trask of his decision to eliminate his position effective 31 December 1983. On 17 December 1983 Trask brought an action in circuit court seeking a declaratory judgment declaring his entitlement to complete his term of office and enjoining petitioners from aborting that term of office. The trial court granted a temporary injunction which had the effect of continuing five deputies in office in District K beyond 31 December 1983, although there were only four positions authorized under the appropriations act. On 20 February 1984 one of the five deputies resigned her office in order to accept an appointment to a circuit judgeship. Thereafter, on 10 April 1984, the trial court entered its final judgment finding that Trask had a vested right and title to his office, that the legislature could not terminate that office by the annual appropriations act, and that Secretary Orr's arbitrary selection of Trask's position for elimination could not and did not abolish Trask's right to his office. The trial court permanently enjoined appellants from attempting to oust Trask from his office and, alternatively, enjoined appellants from appointing a successor to the deputy who resigned on 20 February 1984. On appeal to the district court of appeal, the case came on to us by certified question.

The parties present us with a wide ranging variety of constitutional and statutory questions, most of which are not squarely posed or are not necessary to a disposition of the case. We choose to address only three issues.

We first address the argument presented to us most prominently in support of the trial court's judgment. The thrust of this argument is that Trask has no quarrel with the legislature's authority to abolish statutory offices, that the culprit was the Governor who chose to reappoint a deputy whose term expired in November 1983, thus creating the problem of five deputies with only four positions. In Trask's view the legislature knew of the two open positions and the November expiration of the term of a third deputy when it deleted the three deputy positions in District K. Thus, Trask concludes, appellants frustrated legislative intent. In support, Trask argues that if appellants' actions are upheld, it will set a precedent whereby future governors will politicize the deputy system by firing deputies at will and replacing them with political cronies. This argument has no merit in fact or law. Appellants were not acting on their own volition; they were responding to legislative directions which, at least on their face, were valid. Further, under the provisions of section 440.45 a governor can only remove deputies for cause. A governor's only truly discretionary power on appointing and reappointing deputies is to select an initial appointee from the list of the three or more nominees provided to him by the appellate district judicial nominating commission. The decision as to whether an incumbent will be reappointed rests entirely with the judicial nominating commission.

(2) ... If the judicial nominating commission votes not to retain the deputy *134 commissioner, the deputy commissioner shall not be reappointed... . If the judicial nominating commission votes to retain the deputy commissioner in office, then the Governor shall reappoint the deputy commissioner for a term of four years.

§ 440.45(2), Fla. Stat. (1981) (emphasis supplied). In the case at hand, as it was required to do by law, the judicial nominating commission reviewed the conduct of the deputy whose term was scheduled to expire in November and submitted a report of its decision to retain the deputy in office to the Governor in March 1983, at least six months prior to the expiration of the term of office. The reappointment of the deputy in November was purely ministerial; the Governor had no discretion under the law to do otherwise. The notion that the Governor frustrated legislative intention is founded on the twin assumptions, both of which we reject, that the legislature did not know the statutory law concerning reappointments and that the Governor had discretion to reject the nominating commission report rendered four months prior to the enactment of the appropriations act.

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Bluebook (online)
464 So. 2d 131, 10 Fla. L. Weekly 132, Counsel Stack Legal Research, https://law.counselstack.com/opinion/orr-v-trask-fla-1985.