author: ENGLAND, Justice.

text:
    The CITIZENS OF the State of FLORIDA, Petitioners, v. William T. MAYO, Chairman, et al., Respondents.
    No. 47503.
    Supreme Court of Florida.
    May 5, 1976.

      Woodie A. Liles, Public Counsel, Lake-land, and Donald W. Weidner, Deputy Public Counsel, Tallahassee, for petitioners.
    William L. Weeks, Prentice P. Pruitt, Donald R. Alexander, Tallahassee, and Robert P. Gaines and C. Roger Vinson, Beggs, Lane, Daniel, Gaines & Davis, Pensacola, for respondents.
   ENGLAND, Justice.

This cause is here on a petition for the writ of certiorari to review an order of the Public Service Commission awarding Gulf Power Company an interim rate increase under Section 366.06(4), Florida Statutes (1975). Our jurisdiction to review the petition is found in Article V, § 3(b)(3) of the Florida Constitution.

On July 2, 1974, Gulf Power filed a petition with the Commission seeking both an immediate temporary (or “interim”) and a permanent annual increase of approximately $18,800,000 in its electric utility rates. The interim rate increase request was the first filed by any public utility in the State of Florida under a newly-enacted “file and suspend” provision of Chapter 366, Florida Statutes.

On July 23, 1974, the Commission suspended the effectiveness of the proposed rate increase in Order No. 6196, stating:

“WHEREAS, Gulf Power Company, a public utility subject to our jurisdiction, has filed on July 2, 1974, a Petition and new proposed rate schedules pursuant to Section 366.06(4), Florida Statutes, seeking to adjust its rates and charges so as to produce additional annual gross revenues in the amount of $18,-798,000; and . . .
WHEREAS, upon consideration of the proposed rates and charges contained in the aforesaid rate schedules it appears the same may not be justified and may be unjust, unreasonable, unduly discriminatory or preferential, or otherwise unlawful under the provisions of Chapter 366, Florida Statutes; . . .
[T]he Commission has determined it should withhold consent to the operation of all the new rate schedules pending public hearings . . . . ”

On November 5, 1974, the Commission published a notice stating that public hearings would be held on December 10-13, 1974 in Gulf Breeze, Florida. On November 18, Gulf Power moved for immediate rate relief at the December hearing, and on November 20 the Commission republished its hearing notice with amendments designed to give notice of Gulf Power’s motion, stating:

“The purpose of the hearings in this Docket shall be to permit the Petitioner to make a presentation of its testimony and exhibits in support of its Petition for a rate increase and its Motion for Immediate Rate Relief, to permit all public witnesses who so desire the opportunity to give testimony regarding the proposed rate increase and the Motion as well as the adequacy and the quality of service rendered by Gulf Power Company. Questions for clarification will be permitted with respect to the Petition for a rate increase and the Motion, but cross examination of Company witnesses will be deferred until a time and place to be later announced by the Commission. Interveners, [sic] if any, actively participating in the case will be given an opportunity to present evidence at a time and place to be later announced by the Commission.”

Public counsel for the State of Florida intervened in the rate proceeding and was granted authority by the Commission to participate fully.

The scheduled hearings were held on December 11 and 12. The record before us indicates that they included, generally, (1) direct testimony from Gulf Power in support of its rate increase requests, (2) “clarifying questions” from the Commission’s staff, from public counsel and from other intervenors with respect to Gulf Power’s testimony and evidence, and (3) testimony and evidence from public witnesses both for and against the proposed rate increases. Public counsel did not cross-examine Gulf Power witnesses or present any direct evidence contradictory of the data supplied by Gulf Power. Throughout the hearing, Gulf Power restated its request for immediate rate relief, hoping the Commission would act before year-end.

On December 20, 1974, the Commission met in a so-called “agenda conference” and, without notice to the parties in this case, entered its Order No. 6420 awarding Gulf Power an interim rate increase of approximately $17,200,000. The Order recited in relevant part:

“Public hearings on the Petition and Motion were held in Gulf Breeze, Florida, on December 11 and 12, 1974. At that time the Company presented its case in chief in support of both its Petition and Motion. Although full cross-examination was deferred until the week of February 11, 1975, questions for clarification were permitted by all interested parties. Also, members of the public were afforded the opportunity to present their views regarding the proposed rate increase.”

The Order directed Gulf Power to file a bond to protect Gulf Power’s customers in the event the interim award was later found to be unjustified.

On May 7, 1975, the Commission entered Order No. 6650, awarding Gulf Power a permanent rate increase, confirming the interim rate increase previously awarded, and cancelling Gulf Power’s bond. That portion of the order confirming the interim rate increase is the subject of public counsel’s present appeal.

The sole issue we are asked to review relates to the Commission’s procedures which led to its grant of the interim rate increase. Public counsel contends that due process under the Federal and Florida Constitutions and under applicable statutory law, requires an opportunity for the cross-examination of Gulf Power’s witnesses and the presentation of evidence by opponents of the interim rate increase. Public counsel does not contend that the statute is unconstitutional, or that the Legislature lacked power to enact a “file and suspend” law. Public counsel contends only that the “hearing” which the Commission conducted did not meet required due process standards. This contention requires an analysis of the statutory scheme created by the Legislature for these rate proceedings.

Section 366.06, Florida Statutes (1975), provides general standards for the award of rate increases to public utilities in the State of Florida. The general procedure has • been and remains that rate increases are awarded only after a public hearing in which testimony is presented by all interested parties and cross-examination is permitted. In the framework of this general approach to rate regulation, the 1974 Legislature enacted a special provision expressly designed to reduce so-called “regulatory lag” inherent in full rate proceedings. Subsection 366.06(4) was created to provide a series of alternatives for the Commission whenever, in conjunction with a general rate increase request for which a full rate proceeding is required, a utility company seeks immediate financial relief. The Commission’s alternatives in these situations are:

(1) If the Commission does not affirmatively act within 30 days to suspend the proposed new rate schedule filed as a part of the request for higher rates, the new rates go into effect automatically on the 31st day following the utility company’s filing. Since the Commission’s inaction is equivalent to its consent to the new rate schedule, no bond is required of the utility and there is no mechanism by which customers of the utility system can ever recover interim charges which, after the full rate proceeding, the Commission may find to have been wholly or partly unwarranted.

(2) If the Commission acts within thirty days to suspend all or part of the tariffs, the utility may not charge its customers the proposed new rates. The Commission’s action is effective on a day to day basis until either (a) it grants full or partial consent to the new rates, or (b) eight months elapse from the date the new schedules were filed. If consent is given before the time expiration, as it was here, the utility may then begin to charge the new rates. Where consent is continuously withheld, the utility may still begin to charge its customers on the new basis after eight months have passed, under bond and record-keeping requirements required by statute.

As a first matter in this proceeding, we note that the Legislature’s attempt to reduce regulatory lag will be advanced whether we accept public counsel’s argument that a right to produce evidence and to cross-examine witnesses is required in all cases where the Commission has acted to suspend a rate schedule, or whether we accept Gulf Power’s argument that no hearing or other form of “due process” is required at all with respect to this class of cases. Since the general objective of the Legislature is met in either case, our more narrow goal is to determine how the new mechanism for accelerated rate relief was intended to fit into the general scheme of rate regulation. In approaching that task, these conclusions seem beyond dispute:

(1) The Legislature did not intend all public utility filings to go into effect without some review by the Public Service Commission. Had that been the intent, the Legislature would not have created a “suspend” power in the Commission.

(2) By placing the file and suspend law in Section 366.06, however, the Commission was given direct responsibility in this type of proceeding to insure that all charges collected by a public utility are lawful. See Section 366.06(1), Florida Statutes (1975).

(3) The Legislature did not intend a full rate hearing before all new rate schedules become effective. Had it intended that result, there would have been no need to enact subsection 366.06(4) at all.

(4) The Legislature obviously intended to allow public utilities the benefit of proposed rate increases from the date they could satisfy the Commission on the basis of an uncontested preliminary showing that the needs of the company were such as to necessitate immediate financial aid. Where the Commission is so satisfied after a preliminary analysis extending over a period not longer than thirty days, the rates become effective without further action by the Commission. (It follows from this, of course, that the Commission’s affirmative act of suspending proposed rates means that the Commission is dissatisfied with the utility’s preliminary showing.)

(5) The Legislature has relieved the Commission of responsibility for balancing the rights of the company and its customers when the utility is unable to develop new facts to show that there exists good cause to put into operation the new rates which have been found to be unjustified on the basis of the preliminary showing. This was done by providing that Commission inaction following an initial suspension is overcome by time, and that the rates become effective at the end of eight months, automatically, under bond.

(6) In light of the conclusion in paragraph 5 and the fact that the Commission must provide its “reason or written statement of good cause” whenever it withholds consent to the new rates, the Legislature must have intended that there be some presentation of evidence or development of new facts between that initial withholding of consent by the Commission and its later grant of consent.

The questions for our review, then, narrow down to these: what showing must be made before the Commission consents to rates once determined to be unjustified; what showing was made in this case; and of what effect on these proceedings are the procedures actually adopted by the Commission in this situation ?

Public counsel argues for minimal due process (principally an opportunity to be heard and a right of cross-examination) as a general matter, and in this case specifically because the Commission had publicly promised these rights. He essentially argues that “hearings” in Florida, in the context of rate regulation under Section 366.06, connotes cross-examination and direct contradictory evidence. He concedes, however, that a full rate hearing obviously was not intended. Gulf Power argues that the Commission may employ any process ordinarily permitted in administrative proceedings, including uncontested preliminary presentations if circumstances dictate.

We agree with public counsel that the Legislature’s placement of subsection 366.06(4) suggests no reason to alter the public policy of this state in favor of traditional due process rights in rate “hearings”, permanent or interim. On the other hand, we agree with Gulf Power that an inflexible hearing requirement was not intended inasmuch as the Commission can obviate any hearing requirement simply by failing to act for 30 days. We must conclude, therefore, that the Legislature intended to provide elected Public Service Commissioners with a range of alternatives suitable to the factual variations which might arise from case to case. The range of options might include, for example, developing additional facts through curative supplemental filings where specific deficiencies are described in the required statement of “good cause” or are otherwise targeted through questions formulated by the Commission’s staff. The Commission could, of course, elect to conduct public hearings in an interim rate proceeding, and thereby allow a utility’s data to be challenged by cross-examination or to be rebutted by evidence presented in opposition to the interim increase. It could schedule a presentation of the company’s data without authorizing scrutiny or challenge, provided some public benefit would warrant the expenditure of state funds for that purpose.

Whatever public format the Commission chooses to provide, however, special conditions pertain in cases where public counsel has intervened. This is a consequence of the statutory nexus between the file and suspend procedures and the role prescribed for public counsel in rate regulation. Public counsel was authorized to represent the citizens of the State of Florida in rate proceedings of this type. That office was created with the realization that the citizens of the state cannot adequately represent themselves in utility matters, and that the rate-setting function of the Commission is best performed when those who will pay utility rates are represented in an adversary proceeding by counsel at least as skilled as counsel for the utility company. The office of public counsel was created by the same enactment which brought the utilities accelerated rate relief. Under these circumstances, the Commission cannot schedule a “public hearing” and preclude public counsel, the public’s advocate, from acting to protect the public’s interest. Indeed, where public hearings are scheduled for interim rate increases these procedural requirements may be more important than they are for permanent rate increases, since the need for special expertise in rate matters is compressed into a shorter period of time.

Whether public hearings are scheduled or not, the test to support an interim rate increase should be whether the Commission had additional or corroborative data on which to grant temporary rate relief at the time that it lifts its suspension —data which it did not initially have, or data which clarifies or amplifies matters initially found to be inadequate. The requisite showing, naturally, will vary from case to case, and judicial review of an interim award will be premised on the traditional test of whether the award is supported by competent and substantial evidence. Section 120.68(10), Florida Statutes (1975).

Turning now to facts before us, we see that the Commission here chose to conduct public hearings by publishing three notices in which it promised intervenors, including public counsel, the right to present evidence and to cross-examine Gulf Power’s witnesses. Under these circumstances the Commission should have provided public counsel the full due process rights which its hearing notices promised. By foreclosing public counsel’s effective participation in the interim rate process after having assured it, the procedures used by the Commission to grant interim rate relief in this case were plainly improper. As a consequence, we are forced to consider what consequence should attend the impropriety.

Neither Gulf Power nor public counsel were responsible for the impropriety of the Commission’s procedures. Since the defect is not of constitutional significance, and despite the fact that public counsel was misled, we believe that it would be unduly harsh to punish Gulf Power by directing a refund of charges collected between December 30, 1974 and March 2, 1975. The Commission’s procedural defect does not alone establish a failure by Gulf Power to justify the interim award. The test to be met is and was whether, from the record, Gulf Power developed substantial and competent evidence to sustain the interim award after the Commission first rejected its proposed rate increase as “unjust, unreasonable, unduly discriminatory or preferential, or otherwise unlawful.” On this point we simply lack sufficient information to proceed.

Commission Order No. 6420, first approving the interim award, recites:

“a comprehensive examination of the documentary evidence submitted by the Company has not been undertaken although the Company did present its case in chief on December 11 and 12, 1974. We see no legal impediment to granting interim relief under the rationale of the Bell decision, since it is on all fours with the case at bar. While one party has suggested that no interim relief can be granted until full cross-examination on this portion of the case is completed, such an approach would be contrary to the guidelines laid down by the Supreme Court in a case such as is before us herein. Moreover, full and complete protection is afforded the public inasmuch as the increases which are being authorized hereinafter shall be subject to refund in the event our comprehensive investigation to be undertaken in February, 1975 reflects such increases are unreasonable or unjustified.”

Although the Commission’s order also made certain financial adjustments to Gulf Power’s request which necessarily flow from their analysis of the data presented, it is apparent that the Commission reserved any serious scrutiny of the request until after the full rate proceeding. Moreover, we cannot discern from the Commission’s order whether Gulf Power made an evi-dentiary showing after their proposed rates were first suspended, which would then warrant the suspension being lifted. As previously stated, that showing must be made in fact and then identified for judicial review in the interim award order.

Commission Order No. 6650, confirming the interim award after the full rate proceeding, is similarly defective. The Commission there states that the interim award cannot be excessive or unreasonable inasmuch as Gulf Power’s revenue requirements as established in the full proceeding exceed those authorized on an interim basis. First, we note a failure to identify the particular matters which persuaded the Commission to overturn its initial rejection of Gulf Power’s rate request on the ground that the requested rates were unjust, unreasonable, unduly discriminatory or preferential, or otherwise unlawful. Second, we reject the suggestion that full public hearings conducted in February 1975 could breathe life into the prior proceedings. If the full rate proceeding could provide retroactive justification for an interim award there would have been no need for the Commission to be given preliminary review and suspension authority. The Legislature would have simply authorized immediate increases upon the filing of new rates, under bond.

There being inadequate findings in the Commission’s orders, as a consequence of which we are unable to discern whether Gulf Power’s interim rate increase is supported by competent substantial evidence in the record, and there being a material error in procedure which has affected both the fairness and the correctness of the interim rate proceeding, we are compelled to remand this case for further action by the Commission in conformity with this opinion. Sections 120.68(8) and (10), Florida Statutes (1975).

It is so ordered.

OVERTON, C. J., and ROBERTS, ADKINS, BOYD, SUNDBERG and HATCHETT, JJ., concur.

      . A previous petition seeking review of an initial award of this interim rate increase was denied by the Court on March 7, 1975, on the ground that the order then brought to the Court was not reviewable. This previous petition was one of several requests for our direct review of interim rate increase awards which were granted by the Commission in 1975. In each case the Court was asked, but declined, to treat the initial interim rate increase order as final. E. g., Citizens of Florida v. Mayo, (Florida Power Corp.,) 316 So.2d 262 (Fla.1975); Citizens of Florida v. Mayo (Southern Bell Tele. & Tele. Co.), 322 So.2d 911 (Fla.1975).

      . Oh. 74-195, § 4, Laws of Florida, now appearing as Section 366.06(4), Fla.Stat. (1975).

      . An amended notice was published on November 8, 1974, changing the first hearing date to December 11.

      . The office of public counsel, which was created to represent the public in rate proceedings before the Commission, came into existence in the same legislative enactment which created the file and suspend rate procedure. Chapter 74-195, § 1, Laws of Florida, now appearing as Sections 350.061-0614, Fla.Stat. (1975).

      . Public counsel indicated a lack of preparedness to either present evidence or cross-examine Gulf Power’s witnesses, claiming that the notice of hearing indicated that these facets of the hearing would be held at a later date.

      . Bond is required under Section 366.06(4) for rates allowed to go into effect after the expiration of eight months from a rate request filing. Although the statute would not have required bond on December 20, 1974, it would have required bonding not later than March 2, 1975.

      . A motion to dismiss the petition in this case was denied on October 15, 1975. 324 So.2d 35 (Fla.1975.).

      . Section 366.06(l)-(3), Fla.Stat. (1975). These proceedings are normally called full rate proceedings and will be so described for convenience here.

      . Obviously, the question of due process does not arise if the Commission does not suspend the new rates within 30 days. In those cases, the Legislature has directed that proposed rates become effective on the 31st day.

      . This alternative will generally he impolitic for elected Public Service Commissioners. The Commissioners would have to justify their analysis of the company’s needs, generally based on staff recommendations, without the benefit of a publicly developed record and without any publicly expressed reasons to support the new increase.

      . See Section 366.06(4), Fla.Stat. (1975).

      .Gulf Power also argues for the applicability to this proceeding of our decision in Sotrthern Bell Telephone & Telegraph Co. v. Bevis, 279 So.2d 285 (Fla.1973), on which the Commission also relied. The argument and reliance are not well taken. Southern Bell, which involved a proceeding under Chapter 364, Florida Statutes, is not applicable to proceedings under subsection 366.06(4). There, without the present legislative authorization, we held that the Commission could award interim rate relief where a financial need was demonstrated on the basis of the utility’s initial filings with the Commission. The Legislature has now addressed itself to the subject of interim rate relief, consistent with our views in Southern Bell it so happens, so that reliance on judicial intervention into this aspect of rate regulation is no longer justified.

      . In these cases, it would seem essential that a grant of previously withheld consent be accompanied by a written statement setting forth the reasons why there then exists good cause to grant the rate relief which was earlier denied for good cause. By this means public counsel (or any other contestant) will have the factual basis upon which to challenge the validity of the Commission’s interim award through cross-examination at the full rate proceeding.

      . See footnote 4 above.

      . As to the indispensability of cross-examination generally, see In re Integration Rule of The Florida Bar, 103 So.2d 873, 876 (Fla.1956). Gulf Power does not contend, and the Commission did not suggest, that “clarifying questions” are the equivalent of cross-examination.

      . At the time of these proceedings the acts of the Commission in rate proceedings were subject to Florida’s Administrative Procedure Act, Chapter 120, Fla.Stat. (1973), which in relevant part provided:
      “120.26 Procedure for due process. — The agency shall afford each party authorized by law to participate in an agency proceeding the right to:
      (1) Present his case or defense by oral and documentary evidence,
      (2) Submit rebuttal evidence, and to conduct such cross-examination as may be required for a full and true disclosure of the facts.
      Any seeming inconsistency between these mandatory procedures and those later established in the file and suspend law seemingly would have to be resolved in favor of the former. Section 120.20 of that Act declares the Legislature’s unequivocal intent that “ [subsequent inconsistent laws shall supersede . . . [the Act’s procedures] only to the extent that they do so by express reference.” Although nothing in the file and suspend law expresses a later legislative directive for the non-applicability of Section 120.-26, there is no inconsistency between the due process procedures required before “final” agency action (Section 120.21(3), Fla.Stat. (1973)), and interim agency action under the file and suspend law. (It should be noted that the Act applicable to this proceeding was superseded by a completely revised set of administrative procedures as of January 1, 1975. Chapter 74-310, Laws of Florida. The new Act has no effect on this proceeding. Section 120.72(2), Fla.Stat. (1975); Lewis v. Judges of District Court of Appeal, 322 So.2d 16 (Fla.1975)).

      .In the Commission’s defense it should be noted that the notices it released after Gulf Power moved for interim relief were merely amendments to its first notice, inserting references to the interim request in sentences which had been framed when the full rate proceeding was the only matter being noticed. I-Iad the Commission exercised more care in framing its later notices, it would have delineated the different procedures it intended to apply to the interim and full proceedings, respectively.

      . Collections after this date are protected by statute.

      . Sections 120.59(1) and (2), Fla.Stat. (1975).


source: Caselaw Access Project

author: HATCHETT, Justice.

license: Public Domain

text:
    Robert L. SHEVIN, Attorney General, on relation of the STATE of Florida and its executive agencies, Petitioners, v. PUBLIC SERVICE COMMISSION, a state entity, et al., Respondents. The CITIZENS OF the STATE of Florida, Petitioners, v. William T. MAYO, Chairman, et al., Respondents.
    Nos. 48416, 48404.
    Supreme Court of Florida.
    May 12, 1976.
    Rehearings Denied June 25, 1976.

      Robert L. Shevin, Atty. Gen., James D. Whisenand and Thomas M. Beason, Asst. Attys. Gen., and Woodie A. Liles, Public Counsel, Lakeland, Donald W. Weidner, Deputy Public Counsel, and C. Earl Henderson, Associate Public Counsel, Tallahassee, for petitioners.
    William L. Weeks, Prentice P. Pruitt and Jerry M. Johns, Tallahassee, Karl Berolz-heimer of Ross, Hardies, O’Keefe, Babcock & Parsons, Chicago, Ill., and D. Fred Mc-Mullen, Lee L. Willis and James D. Beasley, of Ausley, McMullen, McGehee, Caro-thers & Proctor, Tallahassee, for respondents.
   HATCHETT, Justice.

Central Telephone Company of Florida and Florida Central Telephone Company (CenTel) initiated proceedings before the Public Service Commission by filing a petition for rate increases. Public counsel and then the attorney general intervened in the proceedings, Docket No. 750320-TP. The intervenors raised orally the question of the extent of their participation at the agenda conference, at which the Commission would take final action on CenTel’s rate increase application. In response to the Commission’s request that the intervenors set forth their positions in writing, public counsel filed a motion to delineate procedure and the attorney general filed a motion for clarification of procedures. The motions argued that the intervenors should be permitted to participate in agenda conferences on the same footing as the Commission staff. As reflected in the Commission minutes, these motions were denied on October 20, 1975, but no written order has ever been entered. For purposes of deciding the present case, we assume that the lack of a written order is no impediment to review of an unequivocal ruling; on written motions by the Public Service Commissioners, duly recorded in the Commission minutes.

Public counsel filed in this Court a petition for writ of certiorari or writ of mandamus or other relief, No. 48,408, and the attorney general filed a petition for review of preliminary, procedural or intermediate agency action. No. 48,416. We granted a motion to consolidate the two cases on November 25, 1975, and granted CenTel’s motion for leave to intervene on December 22, 1975. Subsequently Commission counsel filed a motion to quash and dismiss, and CenTel filed a separate motion to dismiss. At public counsel’s request, the Court decided in an unreported order to “consider pending motions when it considered] the merits”, and set the matter down for oral argument. We conclude that we are without jurisdiction to entertain the petitions, except insofar as public counsel’s petition embodies a suggestion for writ of mandamus. We do not grant a writ of mandamus, however, for reasons which hereafter appear.

All petitions were filed on November 21, 1975, which is 32 days after the Commission’s action on October 20, 1975. Except insofar as they ask for a writ of mandamus and for a constitutional writ, these petitions are insufficient to confer jurisdiction on this Court because they were filed out of time. The District Court of Appeal, First District, has reached the same conclusion. The attorney general sought review of the Commission’s decision, by filing petitions for review on November 21, 1975, not only in the Supreme Court of Florida, but also in the District Court of Appeal, First District. The First District dismissed the attorney general’s petition filed there, partly on the basis that the petition was filed out of time.

Under the former administrative procedure act, and in accordance with Rule 4.1, Florida Appellate Rules, 1962 Revision, the exclusive mode of judicial review of agency action was by certiorari, which required the filing of a petition in the reviewing court within thirty days of the action sought to be reviewed. Rule 4.5(c), Florida Appellate Rules, 1962 Revision. The new administrative procedure act contemplates judicial review of certain agency action by means other than certiorari. In Yamaha Int’l Corp. v. Ehrman, 318 So.2d 196 (Fla. App.lst 1975), the court considered the question of how promptly a party aggrieved by agency action must initiate proceedings for review, when he files a petition for review which is not a petition for writ of certiorari. The court concluded in the Yamaha case that the same time limit as applies to petitions for writ of certiorari should also apply to petitions filed pursuant to Fla.Stat. § 120.68 (1975). We adopt as our own Yamaha’s holding that the time limitation for filing petitions for writ of certiorari should apply to all “petitions for [judicial] review of administrative orders.” Yamaha Int’l Corp. v. Ehrman, supra at 197.

There is no inflexible time requirement governing the initiation of mandamus proceedings. But where another means of review of agency action has been provided by statute or court rule, mandamus is unavailable to extend the time limits. Cf. Whitney Nat’l Bank v. Bank of New Orleans, 379 U.S. 411, 85 S.Ct. 551, 13 L.Ed. 2d 386 (1965) (where Congress “has enacted a specific statutory scheme for obtaining review [of agency action] . . . the statutory mode of review [must] be adhered to notwithstanding the absence of an express statutory command of exclusiveness.” 379 U.S. at 422, 85 S.Ct. at 558). Mandamus “is not awarded as a matter of right, but in the exercise of sound judicial discretion.” Dickinson v. Stone, 251 So.2d 268, 271 (Fla.1971). Here, as in State ex rel. Robert L. Turchin, Inc. v. Herin, 99 So. 2d 578 (Fla.1957), we “have concluded that this is a case where the court, in the exercise of its discretion . . . must decline to grant the writ, irrespective of the technical legal rights of the parties.” At 581.

Although mandamus is a legal remedy, the granting of the writ is governed by equitable principles. City of Miami Beach v. Jonathan Corp., 238 So.2d 516, 519 (Fla.App.3d 1970); State ex rel. Davis v. Adams, 283 So.2d 415, 418 (Fla.1970) (on reh.); State ex rel. Mann v. Burns, 109 So. 2d 195 (Fla.App.1st 1959); State ex rel. Robert L. Turchin, Inc. v. Herin, supra. Just as equitable remedies are unavailable when there is an adequate remedy at law, Egan v. City of Miami, 130 Fla. 465, 178 So. 132 (1938); City of Jacksonville v. Giller, 102 Fla. 92, 135 So. 549 (1931), so relief by mandamus is unavailable unless “no other adequate remedy exists.” State ex rel. Blatt v. Panelfab Int’l Corp., 314 So.2d 196, 198 (Fla.App.3d 1975); Moneyhun v. Pur-dy, 258 So.2d 505 (Fla.App.3d 1972). We proceed on an assumption that petitioners might have invoiced the jurisdiction of this Court by timely filing their petitions here, so that they had an adequate means of raising in this Court the issues sought to be raised by mandamus, but did not avail themselves of it. Mandamus will not issue to relieve litigants of the consequences of failing to file in time for other appropriate relief.

Public counsel has also invoked the all writs clause as a basis for this Court’s jurisdiction. That provision confers jurisdiction on the Court to issue “all writs necessary to the complete exercise of its jurisdiction.” Fla.Const. Art. V, § 3(b)(4). This language contemplates a situation where the Court has already acquired jurisdiction of a cause on some independent basis, and the complete exercise of that jurisdiction might be defeated if the Court did not issue an appropriate writ or other process, e. g., a stay of related proceedings in another court or their transfer here for consolidation. Wilson v. Sandstrom, 317 So.2d 732 (Fla.1975); State v. Lee, 8 So.2d 19 (Fla.1942) (the all writs provision “has reference only to ancillary writs . and does not confer added original or appellate jurisdiction in any case.” At 21). In the present case, we do not have jurisdiction on any independent basis, so there is no occasion for any ancillary writ.

The suggestion for writ of mandamus is denied. Insofar as they seek other relief, the petitions are dismissed.

OVERTON, C. J., and BOYD and SUNDBERG, JJ., concur.

ENGLAND, J., dissents.

      . The body of the order of dismissal reads: As stated by the Florida Supreme Court in the Citizens of the State of Florida v. Mayo, 324 So.2d 35, 37 (Fla.1975) : “By law, the Orders of the Commission in utility rate cases are only reviewable here,” Fla.Cons., Art. Ar, § 3(b) (3) ; § 366.10, Fla.Stat. (1973); § 120.68, Fla.Stat. (Supp.1974). In addition, even if we had jurisdiction, the petition for review was not filed within the time period allowed by the rules, Yamaha International Corp. v. Ehrman, 318 So.2d 196 (Fla.App.1st 1975); Rule 4.5 c. F.A.R.

      . Petitioners rely on the decision in Dubin v. Department of Business Regulation, 252 So. 2d 290 (Fla.App.1st 1971) for the proposition that the 30 day time limit for filing should be extended three days when judicial review of administrative orders is sought. Assuming, without deciding, the correctness of the Dubin case, the extra-three-days rule laid down in Dubin can have no application to an order that is never reduced to writing and is never mailed.

      . Even if the petitions had been timely filed, the Court would not necessarily have been obliged to reach the merits or, reaching the merits, to grant the “extraordinary remedy of judicial intervention in agency proceedings still in progress.” Coca-Cola Co. v. Federal Trade Com’n, 475 F.2d 299, 304 (5th Cir.1973) cert. den. 414 U.S. 877, 38 L.Ed.2d 122, 94 S.Ct. 121 (1973).


author: OVERTON, Chief Justice.

text:
    James HARDIE, Appellant, v. STATE of Florida, Appellee.
    No. 46319.
    Supreme Court of Florida.
    May 19, 1976.
    Warner S. Olds, Public Defender, and Robert S. Horowitz, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Stephen R. Koons, Asst. Atty. Gen., for appellee.
   OVERTON, Chief Justice.

This case concerns the constitutional application of Florida’s new loitering statute, Section 856.021, Florida Statutes, as construed by this Court in State v. Ecker, 311 So.2d 104 (Fla.1975). Since the trial court directly passed on the validity of this statute, we have jurisdiction.

The facts of this incident are as follows. Police officers at 2:55 a. m. first noticed appellant sitting slouched in the front seat of a station wagon, one of several automobiles parked at a closed service station. They observed him remain in the car for a few minutes, then exit it, move to another, enter it, and move around in it a bit. The area was well lighted by street lamps and the interior dome light in the second automobile.

One officer testified he saw appellant riffling through the contents of the glove compartment in the second automobile. When the officer subsequently observed the interior of the second car, what appeared to be the contents of the glove compartment were scattered on the front seat. While appellant was in the second car, the officers approached, one of them rapping on the vehicle’s window to draw appellant’s attention. One officer testified to the ensuing inquiry:

“. . .1 said, ‘Police officers.’ He just sat there. I said, ‘Is this your car?’ He said, ‘Yes.’ So, we asked him to step from the vehicle and provide some identification. He said he didn’t have any. I asked him what his name was. He said his name was Jim Hardie. I didn’t understand him and I asked him to repeat his name. He did. I asked him what his address was. He said, T don’t have to tell you anything. I want to talk to my attorney.’ Then we asked him — I asked him again, ‘Is this your car?’ He said, ‘No, it’s not my car.’ I said, ‘What were you doing in the other vehicle?’ He said, T wasn’t in another vehicle.’ ”

Appellant was arrested following the conversation.

At trial he testified he was merely walking through the gas station and had entered no automobile when arrested.

We hold that the behavior observed by the police, the time of day, and appellant’s failure to properly identify himself constituted circumstances warranting justifiable and reasonable alarm and immediate concern for the safety of property in the vicinity. We held, in State v. Ecker, supra, that under circumstances where the public safety was threatened by an individual, no constitutional provision was violated in requiring credible and reliable identification, citing California v. Byers, 402 U.S. 424, 91 S.Ct. 1535, 29 L.Ed.2d 9 (1971). We recognized a suspect cannot be compelled to explain his presence and conduct without first being advised of his Miranda rights, but an individual nevertheless may be required to identify himself when the public safety is endangered.

The observations alone of the police officers in this case, reflected in their testimony, establish overwhelming evidence of alarm for the safety of property in the vicinity and justify a finding of guilt. See Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969).

Affirmed.

ROBERTS, ADKINS, ENGLAND and SUNDBERG, JJ., concur.

HATCHETT, J., concurs in result only.

      . Section 856.021, Florida Statutes, reads in its entirety:
      “856.021 Loitering or prowling; penalty.—
      “(1) It is unlawful for any person to loiter or prowl in a place, at a time or in a manner not usual for lawabiding individuals, under circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity.
      “(2) Among the circumstances which may be considered in determining whether such alarm or immediate concern is warranted is the fact that the j>erson takes flight upon appearance of a law enforcement officer, refuses to identify himSelf, or manifestly endeavors to conceal himself or any object. Unless flight by the person or other circumstances makes it impracticable, a law enforcement officer shall, prior to any arrest for an offense under this section, afford the person an opportunity to dispel any alarm or immediate concern which would otherwise be warranted by requesting him to identify himself and explain his presence and conduct. No person shall be convicted of an offense under this section if the law enforcement officer did not comi>ly with this procedure or if it appears at trial that the explanation given by the person is true and, if believed by the officer at the time, would have dispelled the alarm or immediate concern.

        “(3) Any person violating the provisions of this section shall be guilty of a misdemean- or of the second degree, punishable as provided in § 775.082 or § 775.083.”

      . Art. V, § 3(b)(1), Fla.Const.


text:
    TAMIAMI TRAIL TOURS, INC., etc., Petitioner, v. William T. MAYO et al., Respondents.
    No. 48655.
    Supreme Court of Florida.
    May 28, 1976.
    Gregory A. Presnell of Akerman, Sen-terfitt, Eidson & Wharton, Orlando, for petitioner.
    Prentice P. Pruitt and Cynthia S. Joach-im, Tallahassee, for respondents.
    John P. Bond of Bond & Woitesek, Miami, for A-l Bus Lines, Inc., intervenor.
    John H. Wilbur of Milam & Wilbur, Jacksonville, for Greyhound Lines, Inc. East Division, intervenor.
   ENGLAND, Justice.

By petition here Tamiami Trail Tours, Inc. has requested that we strike from an order of the Public Service Commission, entered on our mandate in Tamiami Trail Tours, Inc. v. Bevis, 316 So.2d 257 (Fla.1975) a grant of authority to A-l Bus Lines, Inc. (“A-1”) to provide tourist and sightseeing transportation within the state. A-l was not a party to the litigation in this Court, but on remand the benefits obtained by the parties were bestowed by the Commission on A-l to the same extent as those who sought the relief we directed. Tamiami says that result is improper.

Beginning in 1973, five bus line companies sought permission from the Commission to provide sightseeing and tourist transportation in Florida. Three were joined in one proceeding for which public hearings were held in October and November 1973. Two were joined in a proceeding for which public hearings were held, before a different hearing examiner, in December 1973. The examiners issued a “consolidated recommendation”, which they both signed, recommending that all five requests be denied on jurisdictional grounds. None of the parties had requested consolidation, and it does not appear from the record before us on what authority the examiners combined their recommendation. No one objected to consolidation, however, at any phase of the proceeding.

On review of the hearing examiners’ consolidated report, the Commission adopted the examiners’ recommendation in a single order denying all five applications. Four of the applicants sought review of the Commission’s order in this Court, and prevailed. On remand, the Commission applied the legal effect of the Court’s mandate not only to the four bus lines who had sought review but to A-l as well.

Tamiami argues that A-l’s application was administratively dead when A-l failed to seek timely review in this Court or to preserve its status as a pending application before the Commission. The Commission and A-l argue that A-l must, benefit from the Court’s mandate because all five applications had been consolidated in fact at the administrative level, and the only point on review was the legal authority of the Commission to grant any application. That obstacle having been removed, say A-l and the Commission, the administrative unity of the five applications required equal treatment on remand.

We hold that the Commission erred in granting A-l’s application. The opinion of this Court was predicated on the record before us, and our mandate to the Commission was confined to the parties before us. Although the Commission had legal authority to grant any application for this type of carriage once our directive became final, it is an essential requirement of Section 323.03, Fla.Stat. (1975), that the Commis-• sion have before it a viable, valid and pending application. In this case there was none. A-1’s application had been denied (irrespective of the reason), and there was no appeal or timely request for reconsideration. See, Peoples Gas System, Inc. v. Mason, 187 So.2d 335 (Fla.1966); Leonard Bros. Transfer & Storage Co. v. Douglass, 159 Fla. 510, 32 So.2d 156 (1947). Under these circumstances, the Commission could not grant to A-l the benefits of litigation obtained by others, no matter how similarly situated.

Certiorari is granted. Orders No. 12270 and 12471 of the Commission are quashed to the extent they grant authority for “special operations” transportation to A-l Bus Lines, Inc.

It is so ordered.

OVERTON, C. J, and SUNDBERG and HATCHETT, JJ., concur.

BOYD, J., dissents.

       We note that A-l is now free to file a new application for this type of service. Section 323.03 (3) (b), Fla.Stat. (1975).


author: PER CURIAM.

text:
    THE FLORIDA BAR. In re Harold TURK.
    No. 48424.
    Supreme Court of Florida.
    May 26, 1976.

      Louis M. Jepeway of Jepeway, Gassen & Jepeway, Miami, and W. J. Oven, Jr., Tallahassee, for petitioner.
    Charles F. Sansone, Bar Counsel, Miami, and John A. Weiss, Asst. Staff Counsel, Tallahassee, for The Florida Bar, respondent.
   PER CURIAM.

We have for review the petition of Harold Turk for reinstatement to The Florida Bar, which reinstatement was recommended by the Referee and opposed here by the Bar. The background and prior law of the case appears in The Florida Bar v. Turk, 202 So.2d 848 (Fla.1967), in which the Court said:

“Accordingly, it is the order of this Court that the respondent, Harold Turk, be disbarred from the practice of law for a period of three years from the date of the judgment of the Board of Governors herein, and thereafter until the respondent demonstrates to the Board of Governors of the Florida Bar and to this Court that he has rehabilitated himself pursuant to Article XI of the Integration Rule of the Florida Bar, 32 F.S.A., and has made full restitution of the monies misappropriated by him or has obtained satisfactory releases for such funds from the persons entitled thereto.”

and in In Re The Florida Bar (Turk), 307 So.2d 162 (Fla.1975).

The period of three years has elapsed and Turk has obtained satisfactory releases from the injured persons as required in the judgment of disbarment and the only remaining question is that of his rehabilitation. On this issue, the Referee, appointed by this Court to hear the cause, heard the testimony, some of which was in conflict, and made his finding that Turk had rehabilitated himself and recommended reinstatement which finding is supported by competent evidence. We agree.

Accordingly, the findings of fact, opinion, and recommendation of the Referee are approved and the petitioner, Harold Turk, is hereby reinstated as a member of The Florida Bar.

It is so ordered.

OVERTON, C. J., and ROBERTS, BOYD and ENGLAND, JJ., concur.

HATCHETT, J., dissents.


text:
    Joan T. KERN, Appellant, v. Jack D. KERN, Appellee.
    No. 47771.
    Supreme Court of Florida.
    May 26, 1976.

      Charles R. Holley, Naples, for appellant.
    J. Blan Taylor of Taylor & Locker, Naples, for appellee.
   PER CURIAM.

This is an appeal from a judgment rendered by the Circuit Court in and for Collier County. Our jurisdiction vests under Article V, Section 3(b)(1), Florida Constitution.

Appellant Joan and Appellee Jack Kern were married on June 5, 1954, in Oak Park, Illinois. They are the parents of six children, four of whom are minors. After moving many times since 1954, the Kerns, both ordained Unity ministers, came to Naples, Florida, where they organized a church of that denomination.

Jack Kern filed a petition for dissolution of marriage in the Palm Beach County Circuit Court on May 11, 1972. The court entered a default and final judgment granting the dissolution and awarding him custody of the minor children. This order was reversed on appeal. Kern v. Kern, 291 So.2d 210 (Fla.App. 4th 1974), cert. denied, 294 So.2d 657 (Fla.1974). However, the minor children have continued to live with their father. On remand the trial court held a contested hearing, and thereafter Mrs. Kern moved for a change of venue to the Collier County Circuit Court; such transfer was ordered on August 26, 1974.

The circuit court in Collier County held a motions hearing on June 9, 1975, and had trial the following day. The trial was continued until June 17, 1975, when the court rendered its decision. The marriage was found to be irretrievably broken, and Mr. Kern was awarded custody of the minor children and given exclusive possession of the marital home in which to reside until the youngest child reaches majority. The trial court set aside the previous conveyance of this property from Joan Kern to her husband, rendering it a tenancy in common. When the youngest child reaches majority, the property is to be sold, with the net proceeds divided equally. The court also denied Joan any monetary relief such as alimony, special equity or child support.

On this appeal Mrs. Kern seeks relief from all aspects of the trial court’s ruling save for the dissolution order itself. She raises some fifteen points on appeal. We find that of these issues only the constitutional question which vests this Court with jurisdiction merits discussion.

Section 61.20, Florida Statutes, reads as follows:

“Social investigation and recommendations when child custody is in issue. — In any action where the custody of a minor child is in issue, the court may request the [Department of Health and Rehabilitative Services] to make an investigation and social study concerning all pertinent details relating to the child and each parent. The [Department of Health and Rehabilitative Services] shall furnish the court with a written report with its recommendation with a written statement of facts found in its social investigations on which its recommendations are based. The court may consider the information contained in the report in making a decision on the child’s custody and the technical rules of evidence do not exclude such report from consideration.”
(Note: Prior to the abolition of the Division of Family Services, Chapter 75-48, Laws of Florida, the name of that agency appeared where that of H.R.S. now apppears in the above statute, and the briefs discuss the role of D.F.S. in this connection.)

Appellant contends that the trial judge’s consideration of such reports, which by their very nature contain hearsay and opinion statements otherwise inadmissible in a court of law, constitutes a denial of due process of law. She alleges further that the statute is an unconstitutional infringement of her right to confrontation of witnesses. In support of her position she cites a dissenting opinion in Green v. Green, 307 So.2d 246, 247 (Fla.App. 4th 1975), in which Judge Owen suggests that Section 61.20 authorizes a practice which “is so shockingly violative of fundamental due process safeguards that I feel the statute should be abolished forthwith.”

The issue of the constitutionality of Section 61.20, Florida Statutes, has not been the subject of a reported appellate opinion. (The majority in Green, supra, a per curiam affirmance without opinion, did not discuss the statute’s constitutionality.) In the absence of such authority, we look to out-of-state cases on this subject and to a United States Supreme Court decision whose reasoning is applicable to the instant controversy. Such cases persuade us to take a view which differs from that expressed in the dissenting opinion in Green, supra.

At the outset we note the wide discretion reposed in the trial court where, as in the instant case, the future of young children is at stake. Because the credibility of witnesses and the weight of their testimony is best determined by the trial court, fact findings made by trial judges in child custody hearings should be accorded great weight. Grant v. Corbitt, 95 So.2d 25, 28 (Fla.1956). The late Judge Kenneth Keat-ing of the New York Court of Appeals recognized further that the unusual nature of this responsibility necessitates certain modifications in traditional trial proceedings:

“The burden on a Judge when he acts as parens patriae is perhaps the most demanding which he must confront in the course of his judicial duties. Upon his wisdom, insight and fairness rest the future happiness of his wards. The procedures of the custody proceeding must, therefore, be molded to serve its primary purpose and limited modifications of the traditional requirements of the adversary system must be made, if necessary. The test is whether the deviation will on the whole benefit the child by obtaining for the Judge significant pieces of information he needs to make the soundest possible decision.” Lincoln v. Lincoln, 24 N.Y.2d 270, 272, 299 N.Y.S.2d 842, 843-44, 247 N.E.2d 659, 660-61 (1969) (citations omitted).

By providing the trial court with potentially valuable information compiled by professional social workers, the instant statute constitutes a legislative cognition of the suitability of modified proceedings in this special area.

It has been held that, so long as such reports or a description of the contents thereof are made available to the parties, there is no violation of due process guarantees. Trial courts have consistently been reversed, however, for considering such reports without notice to, or knowledge of, the parties. See, e.g., Dees v. Dees, 41 Wis.2d 435, 164 N.W.2d 282 (1969); McGuire v. McGuire, 140 So.2d 354 (Fla.App.2d 1962); Herb v. Herb, 8 A.D.2d 419, 188 N.Y.S.2d 41 (1959). Implicit in Section 61.20, Florida Statutes, of course, is a procedural due process requirement that when the trial court relies on such investigative reports, counsel for the parties should be given an opportunity to review the reports for purposes of introducing any evidence that might rebut the conclusions or recommendations which the reports contained. In the instant case, nothing prevented Mrs. Kern from calling as witnesses the case workers who prepared the reports as well as the persons whom they interviewed nor from attempting to discredit the methods used to reach conclusions adverse to her cause. There is no showing that such witnesses would have been unavailable at trial had they been subpoenaed. Yet their presence would not be necessary to make such evidence admissible :

"... [I]n general, it may be argued that the report itself is admissible under well-recognized exceptions to the hearsay rule. In fact, it may be doubted whether the report is within the hearsay ban at all. The dangers of faulty perception and narration seem alleviated by the social workers’ special skills and training; falsification seems unlikely; and memory is unimportant if the report is more or less contemporaneous. A similar approach is suggested by numerous statutes providing that such reports shall be ‘competent’ or ‘admissible’ as evidence.” (footnotes omitted)
Comment, Use of Extra-Record Information in Custody Cases, 24 U.Chi.L.Rev. 349, 357 (1957).

We note further that the United States Supreme Court has upheld a death sentence based partially on information not made available to counsel. While “open court testimony with cross-examination” is required when the issue is guilt or innocence of a particular offense, limiting a judge’s consideration to such evidence in the determination of an appropriate sentence would be “totally impractical if not impossible,” since such a deliberation should include the “fullest information possible concerning the defendant’s life and characteristics.” Williams v. New York, 337 U.S. 241, 247, 250, 69 S.Ct. 1079, 1083, 1084-5, 93 L.Ed. 1337, 1342, 1343-4 (1949). The Williams reasoning has been applied to permit consideration of secret reports and hearsay in proceedings to determine the future status of juveniles already found to be delinquent. E.g., In re Holmes, 379 Pa. 599, 109 A.2d 523 (1954); In re Halamuda, 85 Cal.App.2d 219, 192 P.2d 781 (1948). As in such proceedings, the overriding concern in custody litigation between parents is again the child’s welfare, and thus cases such as that before us today would also seem to call for the Williams result.

For the foregoing reasons we hold Section 61.20, Florida Statutes, to be a constitutional legislative recognition of the necessity for professional social workers’ investigative skills and personal counseling as a means of furthering the trial court’s search for just and humane results in this sensitive area.

We have carefully considered and analyzed the record, briefs, and arguments of counsel with respect to the remaining points on appeal and conclude that the trial court did not commit reversible error nor did he abuse his discretion in the conduct of the proceedings.

Accordingly, the judgment is affirmed.

OVERTON, C. J., and ROBERTS, ADKINS, BOYD, ENGLAND, SUNDBERG and HATCHETT, JJ., concur.

      . Decisions in other appeals taken by Mrs. Kern are reported at 309 So.2d 563 (Fla.App.2d 1975) and 311 So.2d 130 (Fla.App. 2d 1975).

      . We note that Green is distinguishable factually from the case sub judice because in Green “[t]he report, prepared and filed at the request of the court, was considered by the court in reaching its determination on the custody issue, although neither party had access to the report or its content.” 307 So. 2d at 247 (dissenting opinion).

      . Jenkins v. Jenkins, 304 Mass. 248, 23 N.E. 2d 405 (1939); Swain v. Swain, 250 Cal. App.2d 1, 58 Cal.Rptr. 83 (1967); Forslund v. Forslund, 225 Cal.App.2d 476, 37 Cal.Rptr. 489 (1964); Neb.Rev.Stat. § 42-307. In the instant case the reports were filed and made available to counsel for both parties, although apparently one was missing from the court file when sought by counsel at the June 9 motion hearing. The fact that this report was apparently viewed by the court in connection with an earlier hearing on temporary matters, but thereafter mislaid through inadvertence is not sufficient to convince us that the trial court’s judgment should be reversed. See Burns v. Carricarte, 336 So.2d 1171 (Fla.1976) (concurring opinion expressing views of four members of this Court).


text:
    Wilma S. JONES et al., Petitioners, v. CITY OF TALLAHASSEE, a Municipal Corporation created and existing under the laws of the State of Florida, Respondent.
    No. 46719.
    Supreme Court of Florida.
    May 26, 1976.
    L. Ralph Smith, Jr., of Smith & Moore, Tallahassee, for petitioners.
    Bryan W. Henry and Mark H. Rodman, of Henry, Buchanan, Munroe & Rodman, Tallahassee, for respondent.
    Winifred Sheridan Smallwood and Geoffrey B. Dobson, Tallahassee, for State of Florida, Dept, of Transportation, amicus curiae.
   OVERTON, Chief Justice.

This is a petition for writ of certiorari to review the decision of the First District Court of Appeal reported at 304 So.2d 528 (Fla.App.lst 1974), upon the certified question concerning which party has the right to open and close in condemnation proceedings. Subsequent to the filing of the petition, this Court in City of Fort Lauderdale v. Casino Realty, Inc., 313 So.2d 649 (Fla.1975), resolved the issue presented by the certified question.

The petitioners also seek review of an issue not certified, specifically, the interpretation of the order of taking by the trial court’s holding that the easement appropriated by the City was not in the circumstances of this case tantamount to the taking of a fee simple estate. The District Court affirmed. Petitioners assert conflict with Houston Texas Gas and Oil Corporation v. Hoeffner, 132 So.2d 38 (Fla.App.2nd 1961), and Smith v. City of Tallahassee, 191 So.2d 446 (Fla.App.1st 1966). The facts in each of those cases are distinguishable from the facts in the instant case, and there is no conflict.

The petition for certiorari is denied.

It is so ordered.

ROBERTS, ADKINS, BOYD and ENGLAND, JJ., concur.


text:
    In re INQUIRY CONCERNING A JUDGE NO. 76-13.
    No. 49428.
    Supremo Court of Florida.
    May 21, 1976.
   PER CURIAM.

This cause is before the Court upon the request of the Judicial Qualifications Commission to suspend Honorable J. Cail Lee as a circuit judge pending disposition of proceedings on formal charges which have been filed against said judge and made a part of this proceeding. This request inherently constitutes an application to open all further proceedings in this matter, eliminating confidentiality pursuant to the provisions of Article V, Section 12(d) of the Florida Constitution, and Judicial Qualifications Commission Rule 8.

This Court received this request on Thursday, May 13, 1976, and it appearing that Judge Lee had been afforded no opportunity to be heard before the Judicial Qualifications Commission, we issued an order directing Judge Lee to show cause in writing on or before 12:00 Noon, May 18, 1976, why suspension should not be granted as requested. This order, the formal charges, and the request for suspension were personally served upon Judge Lee on Friday, May 14, 1976. A response by Judge Lee has been duly filed in this cause, advising the Court that he had voluntarily suspended himself. He further represented to the Court that he would consent to a formal order of suspension in the event his trial scheduled for May 20, 1976, in Municipal Court, was for any reason postponed or continued. We withheld our decision in order not to influence the immediate impending trial in the Municipal Court. Said trial was postponed by reason of the request by Judge Lee to have said cause transferred to the County Court for Broward County, Florida.

There is public knowledge of the formal charges made by the Judicial Qualifications Commission against Judge Lee. The Commission and Judge Lee, by his actions and response, concur that his effectiveness as a judge has been adversely affected by the public knowledge of the charges, and we agree that he should be temporarily suspended with pay pending an early disposition by the Judicial Qualifications Commission of the charges against him.

We hereby grant the Judicial Qualifications Commission’s request for suspension of the Honorable J. Cail Lee as a circuit judge until further order of this Court, effective this date.

It is so ordered.

OVERTON, C. J., and ROBERTS, ADKINS, BOYD, ENGLAND, SUND-BERG and HATCHETT, JJ., concur.


text:
    In re INQUIRY CONCERNING A JUDGE NO. 76-14.
    No. 49429.
    Supreme Court of Florida.
    May 19, 1976.
   PER CURIAM.

This cause is before the Court upon the request of the Judicial Qualifications Commission to suspend Honorable Stewart F. LaMotte, Jr., as a circuit judge, pending disposition of proceedings on formal charges which have been filed by the Commission against said judge and made a part of this proceeding. This request inherently constitutes an application to open all further proceedings in this matter to the public, eliminating the confidentiality to which Judge LaMotte is entitled if suspension is not approved. See Article V Section 12(d), of the Florida Constitution, and Judicial Qualifications Commission Rule 8.

This Court received this request on Thursday, May 13, 1976, and it appearing that Judge LaMotte had been afforded no opportunity to be heard before the Judicial Qualifications Commission, we issued an order directing Judge LaMotte to show cause in writing on or before 12:00 Noon, Tuesday, May 18, 1976, why suspension should not be granted as requested. This order, the formal charges, and the request for suspension were personally served upon Judge LaMotte on Friday, May 14, 1976. A response by Judge LaMotte has been duly filed in this cause.

Confidentiality in Judicial Qualifications Commission proceedings is mandated by the constitutional provision except when suspension is granted. The need and reasons for confidentiality are: (1) to protect the judicial officer from unsubstantiated charges, and (2) to protect the complainant from possible recriminations, thereby keeping open sources of information. Confidentiality, however, should not be absolute in these types of proceedings when the reasons for the confidentiality doctrine no longer exist. This is particularly so when there is public knowledge of the incident, and confidence in the administration of justice is threatened due to the lack of information concerning disciplinary proceedings.

The formal charges made against Judge LaMotte concern a subject which in its entirety is a matter of public record.

There is public knowledge of the alleged misconduct in the community which he serves. In our opinion it is in the best interest of both the individual judge and the judicial system that these charges be disposed of publicly. The Commission has recommended and we independently conclude that the effectiveness of Judge La-Motte has been adversely affected by the public knowledge of the incident, and it is necessary to public confidence in the administration of justice that he be temporarily suspended with pay pending an early disposition by the Judicial Qualifications Commission of the charges against him.

Although we agree that this cause should be open and the judge suspended pending disposition of the Judicial Qualifications Commission charges, we are concerned that the judge had no notice or opportunity to be heard before the Judicial Qualifications Commission concerning the issue of his suspension. In our view a notice of at least twenty-four hours with an opportunity to be heard would be advisable in future matters before suspension is recommended by the Commission.

In view of the temporary suspension of the judge and its effect on the administration of justice in the area which he serves, we further request the Commission to proceed expeditiously and afford this cause priority over all Commission proceedings where a suspension is not involved.

For the reasons expressed herein, we hereby grant the Judicial Qualifications Commission’s request for suspension of Honorable Stewart F. LaMotte, Jr., as a circuit judge until further order of this Court.

It is so ordered. This suspension shall be effective at 12:00 Noon, May 20, 1976.

OVERTON, C. J., and ROBERTS, ADKINS, BOYD, ENGLAND, SUNDBERG and HATCHETT, JJ., concur.

      . We previously explained the need for confidentiality in judicial disciplinary proceedings in Forbes v. Earle, 298 So.2d 1 (Fla.1974), citing the American Bar Association Commission on Standards of Judicial Administration and the fact that thirty-four states require confidentiality.


text:
    THE FLORIDA BAR, Complainant, v. Royall P. TERRY, Jr., Respondent.
    No. 48044.
    Supreme Court of Florida.
    March 24, 1976.
    Rehearing Denied June 14, 1976.
    Daniel R. Vaughen, Bar Counsel, De-Land, and David G. McGunegle, Asst. Staff Counsel, Tallahassee, for the Florida Bar, complainant.
    Royall P. Terry, Jr., in pro. per.
   PER CURIAM.

This disciplinary proceeding is before us upon complaint of The Florida Bar, report of the Referee, and petition for review thereof filed by respondent.

The conduct of respondent giving rise to this proceeding concerns his breach of fiduciary duty as a guardian. The Referee found the following undisputed facts.

Respondent was appointed guardian of his physically incapacitated and aged aunt by court order December 18, 1970. Following the appointment, respondent discovered $19,700 cash in a bank safe deposit box held by his ward, which he alleges she gave to him on a later, joint visit to the bank. The existence and disbursement of the sum went undisclosed and unreported in the guardianship accounts until a potential heir of the aunt intervened through counsel. No court order was made or sought authorizing the disbursement. Ultimately, the County Judge’s Court of Duval County, upon finding the ward mentally incapable of making such a gift, ordered the sum returned to the estate and, “for failure of the Guardian to discharge his duties and for mismanagement of his ward’s property,” removed respondent from the guardianship. Respondent has repaid the sum as ordered.

The Referee found respondent guilty of violating the disciplinary rule prescribing that: “A lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.” See DR 1-102(A)(4). We note that respondent held a fiduciary office when he committed these acts. He was chargeable with knowledge of the requirements to properly inventory property, to obtain court permission for disbursements, and to make accountings thereof.

Fulfillment of these requirements by an attorney fiduciary for an incompetent before making fundamental alteration or disposition of a ward’s property is elementary and indispensable to the supervisory functions of the courts and the estate interests, which the law and public policy require the courts to protect. The respondent’s contention of ignorance of these procedures is not a proper or adequate defense.

Respondent has asserted numerous procedural objections to these proceedings. Our examination of the record discloses no prejudice to respondent, the recommendation being more lenient than we deem appropriate.

The Referee recommended a private reprimand in this cause. We disagree, feeling the circumstances require a public reprimand. Persons aware of the facts of this cause should be aware of the discipline administered. The Referee further recommended that respondent be placed on probation for a period of three years and that costs incurred in these proceedings be charged against him. We agree.

The respondent is hereby publicly reprimanded and placed on probation for a period of three years from the date of this opinion. During this period respondent shall file with Staff Counsel for The Florida Bar and the Clerk of this Court quarterly reports of his activities as an attorney. Execution is directed to issue for the costs of these proceedings against the respondent in the amount of $834.19. The first quarterly report is to be filed by June 22, 1976.

It is so ordered.

OVERTON, C. J., ROBERTS, BOYD and ENGLAND, JJ., and DRURY, Circuit Court Judge, concur.