text:
    OPINION OF THE JUSTICES.
    No. 280.
    Supreme Court of Alabama.
    Aug. 18, 1981.
   To the Members of the Senate

State Capitol

Montgomery, Alabama

Gentlemen:

In Senate Resolution 29 you requested our opinion regarding “S.B. 87 of the 1981 First Special Session,” which pertains to the creation, appointment, qualifications, powers, duties, compensation and appropriation for three proposed new judicial offices in the Tenth Judicial Circuit. The questions asked are as follows:

“1. Does Section 1 of this bill contravene Amendment 83 of the Constitution of 1901?”
“2. Does Section 2 of this bill contravene Amendment 83 of the Constitution of 1901?”
“3. Does Section 1 of this bill violate the provisions of Amendment 328, Section 6.14 of the Constitution?”
“4. Does Section 2 of this bill violate the provisions of Amendment 328, Section 6.14 of the Constitution?”

Since the passage of Act No. 43, Acts of Alabama, Regular Session 1923 (now codified at § 12-2-10, Code of Alabama 1975), the individual Justices, within permissible limits, have been privileged under the law to give advisory opinions on important constitutional questions then pending in the Legislature; and, in the spirit of harmony and cooperation, a majority of the individual Justices have frequently exercised this privilege. However, this procedure is not without difficulty in that the opportunity is not generally available for opposing views to present their respective positions, nor are pertinent facts presented as is usual in the adversary nature of our judicial system. The Supreme Court’s primary function is one of appellate review, exercised in the context of adversary proceedings. The very nature of our judicial process mandates that decisions be rendered only after all sides have presented their respective views, together with appropriate legal precedent and authority supporting such views. When the constitutionality of statutes is so tested, the end result is of binding force and effect; whereas the opinions of the individual Justices, promulgated under § 12-2-10, Code of Alabama 1975, are not so binding under this law. Opinion of the Justices, 254 Ala. 177, 47 So.2d 655 (1950); Opinion of the Justices, 291 Ala. 581, 285 So.2d 87 (1973); and Opinion of the Justices, 294 Ala. 589, 319 So.2d 715 (1975). Thus, opinions of the Justices are merely advisory — consultative only. Opinion of the Justices, 209 Ala. 593, 96 So. 487 (1923).

Although pending legislation, involving important constitutional issues, falls within the purview of this statutory prerogative, expressions of opinions, hastily and abstractly considered, may well pose a greater danger of confusion and uncertainty than the exercise of judicial restraint in declining to respond to the questions submitted. The issues presented by Senate Resolution 29 relating to S.B. 87 of the 1981 First Special Session has been submitted to the Justices of this Court without the benefit of the expression of opposing views by way of written briefs or oral presentation. In our study of the questions posed in Senate Resolution 29, we have noted that the Legislature has created a number of additional circuit judgeships since the ratification of Amendment 328 of the Constitution of 1901 providing for the initial selection of the person to fill the newly created judgeship either by authorizing appointment by the governor, or in some instances providing that the judgeship be filled by election at the next general election. In one such instance, Act No. 79-692 creating the office of circuit judgeship number twenty of the Tenth Judicial Circuit of Alabama, the Legislature provided that the first judge be appointed in the manner provided by Amendments 83 and 110 to the Constitution of Alabama. Thus, the Legislature has authorized additional judgeships, and has further provided for the filling of such judge-ships by several different methods. Pending S.B. 87 proposes to establish even another method of initially filling the newly created judgeship. To date, our research has revealed no decided cases by the Supreme Court since the adoption of Amendment 328 which could serve as a precedent or authority to express our opinion with respect to the questions posed by Senate Resolution 29.

Respectfully and regretfully, we are compelled to decline to answer the questions here submitted. Because of the complexity of the constitutional issues, the absence of any clear apparent authority readily discernible from a plain reading of the pertinent language of the present State Constitution and statutes, and the serious legal and political implications here involved, our considered judgments constrain us to await the appropriate adversary context of a more deliberative litigated proceeding in which to address and postulate a definitive response to these issues.

Respectfully submitted,

C. C. TORBERT, Jr.

Chief Justice

HUGH MADDOX

JAMES H. FAULKNER

RICHARD L. JONES

RENEAU P. ALMON

JANIE L. SHORES

T. ERIC EMBRY

SAM A. BEATTY

OSCAR W. ADAMS, Jr.

Justices

APPENDIX A

SR 29 REQUESTING AN ADVISORY OPINION OF THE JUSTICES OF THE SUPREME COURT RELATIVE TO PENDING S.B. 87 OF THE 1981 FIRST SPECIAL SESSION.

BE IT RESOLVED BY THE SENATE OF THE LEGISLATURE OF ALABAMA, That we do respectfully request the Honorable Chief Justice and Associate Justices of the Supreme Court, or a majority of them, to give this body their written opinions of the important constitutional questions which have arisen concerning the pending S.B. 87 of the 1981 First Special Session, which bill pertains, inter alia, to creating three new judgeships in the Tenth Judicial Circuit, providing for their appointment, qualifications, powers, duties and compensation and benefits. Copies of said bill are attached hereto and made a part hereof by reference.

1. Does Section 1 of this bill contravene Amendment 83 of the Constitution of 1901?

2. Does Section 2 of this bill contravene Amendment 83 of the Constitution of 1901?

3. Does Section 1 of this bill violate the provisions of Amendment 328, Section 6.14 of the Constitution?

4. Does Section 2 of this bill violate the provisions of Amendment 328, Section 6.14 of the Constitution?

5. Does Section 2 propose a local law within the meaning of Article 4, Section 106 of the Constitution?

6. Does Section 6 propose a local law within the meaning of Article 4, Section 106 of the Constitution?

7. Does the provisions of this bill violate the provisions of Article 4, Section 110?

RESOLVED FURTHER, That the Secretary of the Senate is hereby directed to send sufficient copies of the pending S.B. 87 with attachments to the Clerk of the Supreme Court of Alabama and to transmit this request to the Justices of the Supreme Court forthwith upon adoption of this resolution.

APPENDIX B

S. 87

By Mr. Pearson

RFD — Finance & Taxation

Rd 1-8-6-81

SYNOPSIS: This bill creates three additional judgeships for the Tenth Judicial Circuit.

A BILL TO BE ENTITLED AN ACT

To create three additional judgeships for the Tenth Judicial Circuit of Alabama; to prescribe definitions and legislative intent; to provide for the appointment of such judges; to prescribe the jurisdiction, powers, authority, qualifications, duties, and compensation of such judges, and to render such judges liable to all the pains and penalties of other circuit judges in the state; to further provide for a division of authority and duties between judgeships in said circuit; to amend Section 12-17-20 of the Code of Alabama 1975; to make an appropriation to the unified judicial system from the general fund of the state treasury for the fiscal years ending September 30, 1981 and September 30, 1982; to repeal all laws or parts of laws in conflict herewith, and to provide for the effectiveness and effective date of this act; and to provide that the provisions of the act are non-severable. BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:

Section 1. It is the express intent of the legislature that the three judgeships created by this act are not vacancies and, therefore, not subject to the provisions of Amendment 83 to the Constitution of 1901. As used in this act the word “created” shall mean to bring into being; to cause to exist and the word “vacancy” shall mean an office existing prior to the provisions of this act which office is unoccupied.

Section 2. There are hereby created the offices of circuit judgeships Nos. 21, 22, and 23 of the Tenth Judicial Circuit of Alabama, which shall be in addition to the judgeships of said circuit now existing. The first judges of said additional circuit judgeships Nos. 21,22, and 23 shall be appointed by the Governor and shall hold office until their successors have been elected and qualified as provided by law. The judges of said circuit judgeships Nos. 21, 22 and 23 shall be appointed for the same terms of office as other circuit judges are elected in the state as provided by Section 6.14 of Amendment 328.

Section 3. The judges of said circuit judgeships Nos. 21, 22, and 23 shall have and exercise all of the jurisdiction, powers, rights, and authority and possess all of the qualifications, perform all the duties, and be subject to all the pains, obligations, and penalties that other circuit judges may exercise, perform, or be subject to, and shall sit in that division of said circuit to which the circuit judges numbers 1 through 4, 6 through 11, 13 through 18 and 20, sit and perform the same duties in said division as performed by the other judges of the division, subject to assignment by the presiding judge of the circuit.

Section 4. The additional circuit judges appointed pursuant to the provisions of this act shall receive the same salary, and supplements payable in the same manner, as other circuit court judges in the Tenth Judicial Circuit.

Section 5. Section 12-17-20 of the 1975 Code of Alabama is amended to read as follows:

“§ 12-17-20. (a) Except as otherwise provided in this section, each judicial circuit of the state shall have one resident circuit judge.

“(b) In the following judicial circuits, there shall be the number of resident circuit judges listed below:

“(1) There shall be two circuit judges in the first judicial circuit. The judge occupying judgeship No. 1 shall be the presiding judge.

“(2) There shall be two circuit judges in the fourth judicial circuit.

“(3) There shall be three circuit judges in the fifth judicial circuit.

“(4) There shall be five circuit judges in the sixth judicial circuit.

“(5) There shall be four circuit judges in the seventh judicial circuit.

“(6) There shall be three circuit judges in the eighth judicial circuit.

“(7) There shall be two circuit judges in the ninth judicial circuit.

“(8) There shall be 20 23 circuit judges in the tenth judicial circuit.

“(9) There shall be two circuit judges in the eleventh judicial circuit.

“(10) There shall be two circuit judges in the twelfth judicial circuit.

“(11) There shall be nine circuit judges in the thirteenth judicial circuit.

“(12) There shall be three circuit judges in the fourteenth judicial circuit.

“(13) There shall be six circuit judges in the fifteenth judicial circuit. At least two judges shall be assigned to the criminal division of said circuit, and one or more judges shall be assigned to the civil division, in the discretion of the presiding judge.

“(14) There shall be four circuit judges in the sixteenth judicial circuit.

“(15) There shall be three circuit judges in the eighteenth judicial circuit.

“(16) There shall be two circuit judges in the ninteenth judicial circuit.

“(17) There shall be three circuit judges in the twentieth judicial circuit.

“(18) There shall be two circuit judges in the twenty-second judicial circuit.

“(19) There shall be six circuit judges in the twenty-third judicial circuit.

“(20) There shall be two circuit judges in the twenty-fifth judicial circuit.

“(21) There shall be two circuit judges in the twenty-sixth judicial circuit.

“(22) There shall be two circuit judges in the twenty-seventh judicial circuit.

“(23) There shall be two circuit judges in the twenty-eighth judicial circuit.

“(24) There shall be two circuit judges in the twenty-ninth judicial circuit.

“(25) There shall be two circuit judges in the thirtieth judicial circuit.

“(26) There shall be two circuit judges in the thirty-first judicial circuit.

“(27) There shall be two circuit judges in the thirty-second judicial circuit.

“(28) There shall be two circuit judges in the thirty-third judicial circuit.

“(29) There shall be two circuit judges in the thirty-seventh judicial circuit.

“(30) There shall be two circuit judges in the thirty-eighth judicial circuit.”

Section 6. The provisions of Section 5 of this act shall be effective upon the filling of the three new judgeships in the Tenth Judicial Circuit by the Governor.

Section 7. There is hereby appropriated to the unified judicial system from the general fund, the sum of fifty thousand dollars for the fiscal year 1980-81 and the sum of two hundred and thirty-five thousand dollars for the fiscal year beginning October 1, 1981, for the support and maintenance of the additional circuit judgeships herein created. These sums shall be in addition to any and all appropriations hereinbefore or herewith made.

Section 6. All laws and parts of laws, whether general, special or local, in conflict with the provisions of this act, are hereby repealed.

Section 7. The provisions of this act are inseparable and non-severable and that if any section, clause or provision herein shall be declared unconstitutional or invalid, the entire act shall be null and void ab initio.

Section 8. This act shall become effective immediately upon its passage and approval by the Governor, or upon its otherwise becoming a law.

      . Set out in appendix A.

      . Set out in appendix B.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Ex parte WALLACE & WALLACE CHEMICAL & OIL CORPORATION. In re Nora SEGREST and Claude Segrest v. L. M. GREGG, et al.
    80-797.
    Supreme Court of Alabama.
    April 16, 1982.
    Albert W. Copeland and Richard H. Gill of Copeland, Franco, Screws & Gill and Thomas T. Gallion of Gallion, Gallion & Gunter, Montgomery, for petitioners.
    T. Dudley Perry, Tuskegee, and J. Michael Rediker of Ritchie, Rediker & Warren, Birmingham, for respondents.
   PER CURIAM.

On August 14, 1981, an application for writ of prohibition, or in the alternative, writ of mandamus to the Honorable James A. Avary, Circuit Judge of Macon County, Alabama, was filed in this Court. In its application, Wallace & Wallace Chemical and Oil Company (Wallace) would have the Honorable James A. Avary (Court) desist from asserting jurisdiction over its property and be required to vacate and annul an order of July 21, 1981, and the lis pendens recorded pursuant thereto. On March 5, 1982, we denied relief, without opinion, to the petitioner. Ala., 416 So.2d 1017.

On March 19, 1982, petitioner filed an application for rehearing wherein it was pointed out, for the first time, that on December 10,1981, the Circuit Court of Macon County entered a decree in the severed portion of Segrest v. Gregg, et al., and failed to grant any relief against Wallace, but left the lis pendens untouched. Wallace claims that it is in a dilemma. It says it cannot appeal because it is not a party in the proceedings below and we have denied mandamus. The Court counters by saying that Wallace can get all the relief it is entitled to after the trial on the cross-claim in the remaining severed portion of the Segrest v. Gregg, et al. case. At this juncture, we believe that the Court’s response that Wallace can have all the relief it is entitled to on its cross-claim begs the question. The cross-claim should never have been required in the first place. We are constrained to grant Wallace’s petition.

A clear understanding of the facts in this case is crucial. In the early 1970’s, Wallace began negotiations with the City of Tuskegee, Alabama (the City), to acquire the Old Sharpe Airbase property, consisting of about 2,000 acres, to construct an oil refinery. On May 24, 1974, as a result of its efforts, Wallace was able to persuade the Industrial Development Board of the City of Tuskegee (Development Board) to give Wallace an option to buy the airbase property for the refinery project at a price of $150.00 an acre. Allegedly, the true market value of the property was approximately $750.00 an acre. The City intended the low price to be an inducement for Wallace to locate an industrial project in the Tuskegee area. The option signed by Wallace and the Development Board contained a provision that if the property was not used for industrial purposes, or if Wallace did not expend $25,000,000.00 toward the construction of a refinery, the property would revert to the Development Board.

In August 1979, Wallace indicated to the Development Board that it could not obtain the necessary financing to construct a refinery with the restrictions contained in the option. It documented its claim with letters from engineers, designers, and financiers.

On September 10, 1979, the Development Board deeded the property subject to the option to Wallace for the sum of $282,-963.75. Wallace paid the Development Board this amount. The deed of the Development Board to Wallace contained none of the restrictions Wallace’s engineers, designers and financiers had complained about. Included in the conveyance was property formerly owned by Nora Segrest and Henry Claude Segrest.

On September 13,1979, the Segrests filed suit against the City (Segrest, et al. v. Gregg, et al), claiming that neither the City nor its Development Board had authority to convey property which they had deeded to the City on June 6, 1961, because the deed conveying said property to Adometic Research Center, Inc., a Corp. (Adometic) contained a reverter clause. This clause provided in substance that in the event Adometic did not use the property for business activities directly related to the work of Adometic, the grantors would have the right to purchase said property at the best price Adometic was offered by a bona fide offeror. Adometic did not use the property for the purposes conveyed, but conveyed it to the City of Tuskegee in 1968 and the Segrests contend that said deed conveyed the property subject to the reservation in them as above described. The total amount of land involved in this litigation was 461.37 acres and (to purchase the property) the Segrests tendered a certificate of deposit in the amount of $69,250.50.

Although we do not have the entire record in this case, the facts agreed upon in the pleadings filed by counsel in this court lead us to the conclusion that we have sufficient agreed upon facts to reach a decision on what we consider the controlling issue. After the Segrest litigation was filed, Wallace was added as a defendant merely because it held the record title to what was once property held by the Segrests. The Development Board was also added as a defendant. The parties all agree that at no stage of the litigation have the Segrests attempted to make a claim to any of the property owned by Wallace other than the 461.37 acres they deeded to Adometic in 1961.

The only possible involvement of Wallace’s other lands in the Segrest litigation arises from a cross-claim filed by Wallace on September 22, 1980, and the answer thereto, filed by the Development Board and the City on the same date. A careful reading of the cross-claim and answer would indicate that this cross-claim sought to draw into issue the validity of the Board’s conveyance of property to Wallace on September 10, 1979. We say this because of the language in paragraph six of the cross-claim:

A justiciable controversy exists between Wallace on the one hand and the Board and the City on the other hand arising out of our [sic] relating to the conveyances described in Paragraphs 4 and 5 above as to the validity of said conveyances and/or the limitations, if any, upon the right of Wallace to use and develop said real estate subject to the rights, if any, of the plaintiffs as asserted in the complaint as amended.

These deeds conveyed to Wallace property other than the Segrests’.

But consider what provoked the filing of this cross-claim. The Court in its answer said it “.. . did not go on a ‘witch hunt’ to stir up this issue; the validity of the Wallace deed leaped from the pleadings and exhibits in the Segrest case .. . [it] could not be ignored with the transaction and parties already before the court.”

In its answer it went on further to say:

There are substantial issues involved in this matter, involving 2,000 acres of industrial property which is an irreplaceable asset for the City of Tuskegee and its citizens. There exists a very real possibility that that asset may be irretrievably lost, and Respondent is merely trying to minimize the possibility of such a loss.

The Court in its answer admits that the cross-claim was not the creature of Wallace, the City, or the Development Board. In the court’s answer it said:

[T]he Court instructed the defendants in the Segrest suit (the Development Board and Wallace) to file a cross-claim, putting in issue the legality of deed from the Development Board to Wallace. After several conferences with attorneys for the parties, it was agreed in substance that an existing land-use plan by Llewel-yn & Davies would be judicially imposed on the Airbase property, and that Wallace and subsequent owners would be bound by the land-use plan unless excused therefrom by the Court upon a showing of special need. (Emphasis supplied.)

The Court said in its answer that its approach to the problem was dictated because of several things, one among which was:

It has been suggested that Wallace does not intend to build the refinery at all; the refinery project is a pretext to allow Wallace to obtain allocations of imported crude oil and be assigned refining capability at an existing refinery owned by another oil company while Wallace’s Tuskegee refinery is “under construction.”

There is nothing in the record furnished us to lend support to this suggestion. Wallace stoutly denies this and calls it a rumor and an irresponsible speculation. However, all parties agree with the Court’s statement that the airbase property, with one or two exceptions, has a sad history, laced with mistakes and outright fraud, civil and criminal. wanted to be allowed to await the time of the Development Board, City litigation. This intent is fairly clear from the letters and documents sent to the Court by Attorney Albert Copeland on August 1,1980. To accomplish the severance Wallace was required to give a quitclaim deed to the Seg-rest property to be placed in escrow with the Court. We have been furnished that portion of the transcript of the parties’ conversations about Wallace withdrawing from the litigation. All sides could draw comfort from certain portions of it, but for the most part, the language used is couched in terms of outright dismissal. For instance, the Court said:

Several months after the cross-claim was filed, Wallace expressed the desire to be severed from the litigation involving the Segrests, because it had no substantial interest in that part of the litigation and it

All right. The question now is, whether you all can tender a deed and get out of the case, and let those others fight it out.

When all was said and done, the Court entered an order on February 24, 1981, unequivocally dismissing Wallace from the Segrest suit and dismissing the cross-claim. The Court in its answer to application for prohibition states that the order was signed by an oversight and it did not intend to dismiss the cross-claim, but only intended to relieve Wallace of having to participate in the trial of the issue involving the Segrest claim against the City and the Development Board. On August 19, 1981, the Court attempted to amend its order of February 24, 1981, nunc pro tunc to clarify that the dismissal did not extend to the cross-claim filed by Wallace.

The petitioners are solely aggrieved of, and make the basis of their petition, the fact that on July 21, 1981, the Court ex mero motu, ordered the clerk of Macon County to file, in the Probate Office of Macon County, a notice of lis pendens against all the property which Wallace obtained from the Development Board and ordered that the Development Board immediately make Santo Chemical, S. A., a party to the cross-claim originally filed. The clerk of the Court on the same date filed a notice of lis pendens with the Probate Court. This action of the court was prompted by the fact that Wallace had attempted to record a mortgage in the amount of $25,000,000.00, in which Santo Chemical, S. A., was named as a mortgagee. This recording was attempted after the cross-claim had been dismissed by the Court, although it claims, erroneously. Wallace did finally record a mortgage in the amount of $2,500,000.00, to Santo Chemical, S. A. No party had asked that a lis pendens be filed in the Segrest action.

The sole issue for our resolution is whether a court may ex mero motu instruct a party to file a pleading not required by the issues in the case because the court conceives that some harm may befall non-litigants if this claim is not filed. We answer in the negative and grant the petition for prohibition and mandamus.

First, we hasten to point out that we ascribe the highest motive to the Court’s actions. All parties agree that the Old Sharpe Airbase property has had a seamy history. It is likewise true that without the land use restriction in the deed from the Development Board to Wallace, the City, indeed, could be bilked out of a large sum of money. If the court’s figures are correct, the property is worth over a million dollars and Wallace only paid a fraction of that amount. However, the duties and responsibilities of a judge are limited. In the absence of statute, he has no duty to perform until a party invokes his judgment on some legal matter. 46 Am.Jur.2d, Judges § 21 (1969). Here, the Court admits that it was trying to minimize the possibility of loss to the citizens of the City of Tuskegee. It further admits that without request from any party, it instructed the defendants in the Segrest suit to file a cross-claim putting at issue the legality of the deed from the Development Board to Wallace. There is an old saw to the effect that: You may go wrong starting out right, but you can never get right starting out wrong. Here, the Court, with the best intentions, in effect, demanded that the lawyers file a pleading which could not possibly arise from the issue framed in the Segrests’ complaint. This it cannot do. The Segrests’ complaint was that when they sold the property to Adometic, it was impressed with a provision that if it was not used for the business purposes of Adometic, they would have the first refusal to purchase the property for the price offered by a bona fide offeror. This is a completely different issue from the issue raised by the cross-claim which questions the authority of the Development Board to convey property to Wallace without restricting its use for industrial purposes or requiring at least $25,000,000.00 to be spent for industrial purposes before it became Wallace’s property without an in-cumbrance.

Furthermore, we seriously doubt if there was a justiciable controversy between the City of Tuskegee and the Industrial Development Board and Wallace. They had agreed to sell the property to Wallace without any restrictions for $150.00 an acre and Wallace had agreed to purchase it for that price. Thus, we can see no real dispute between these parties. Undoubtedly, there is a lively debate in socio-economic and political circles in Tuskegee. That is evident in the pleadings before us. It appears in the Court’s statement “It has been suggested that Wallace did not intend to build a refinery at all.” We can only conclude from the record that the court became involved in the Tuskegee imbroglio. As a consequence of this inducement, it exceeded its jurisdiction.

The Court having erred in instructing the defendants to file a cross-claim, there was simply no jurisdictional basis for its order to the clerk to direct the Probate Judge to file a notice of lis pendens. Likewise, there was no jurisdictional basis for the Court to order Wallace to join Santo Chemical, S. A. Because of our holding that the original action of the Court was improper — that is, instructing Wallace to file a cross-claim — we do not reach the question of whether a court without request from any party can order notice of lis pendens. We note, however, that Code 1975, § 35-4-131 provides:

When any civil action or proceeding shall be brought in any court to enforce any lien upon, right to or interest in, or to recover any land, or where an application has been made to the probate judge of any county for an order of condemnation of land, or any interest therein, the person, corporation or governmental body commencing such action or proceeding or making such application shall file with the judge of probate of each county where the land or any part thereof is situated a notice containing the names of all of the parties to the action or proceeding, or the persons named as those having an interest in the land in the application for an order of condemnation, a description of the real estate and a brief statement of the nature of the lien, writ, application or action sought to be enforced. The judge of probate shall immediately file and record the notice in the lis pendens record and note on it and in the record the hour and date of the filing and the place and date of recording.

Here, there was no action pending to enforce a lien, right to or interest in land because the judge had no authority to require the cross-claim. Secondly, it would seem chat this section presupposes that a party, not the court, will file the notice with the Judge of Probate.

Because of the manner in which we resolve this case, we likewise do not reach the question of whether the Court could amend its order of February 24, 1981, nunc pro tunc on August 19, 1981. In a very recent case, we held that a Court could not amend its order to show that all parties had been dismissed when its previous order indicated that all parties had not been dismissed. Taylor Coal Company v. Pearson, 380 So.2d 779, 782 (Ala.1980).

Because the Court exceeded its jurisdiction, the writ of mandamus and writ of prohibition are due to be awarded.

If, upon advice of this decision, the Court does not vacate and amend the order of July 21, 1981, and the notice of lis pendens filed pursuant to that order, and further desist from exercising jurisdiction over petitioner’s lands as to which no lawsuit is filed or pending asserting any case or controversy with reference thereto, appropriate writs to effectuate such ends will issue upon request of the petitioners.

The motion for censure and motion to strike are hereby stricken.

WRITS AWARDED CONDITIONALLY.

TORBERT, C. J., and FAULKNER, JONES, ALMON, EMBRY, BEATTY and ADAMS, JJ., concur.

MADDOX and SHORES, JJ., dissent.


author: SENTELL, Clerk.

text:
    OPINION OF THE CLERK, Supreme Court of Alabama.
    Opinion No. 40.
    Supreme Court of Alabama.
    June 30, 1982.
   SENTELL, Clerk.

RULE 7, ALABAMA RULES OF JUDICIAL ADMINISTRATION — ORIGINAL FILING FOR COSTS — INDEPENDENT PROCEEDINGS FOR CHILD SUPPORT

Mr. Allen L. Tapley, Administrative Director of Courts, has asked me, pursuant to § 12-2-19(d), Code 1975, whether a fee should be charged whenever an independent proceeding is filed for an order of continuing garnishment for child support under § 6-6-492, 1981 Cumulative Supplement, Code of Alabama (Acts 1981, No. 81-697).

My answer to the question is in the affirmative. Rule 7, Alabama Rules of Judicial Administration, reads as follows: “FEES FOR MISCELLANEOUS FILINGS

Any filing for which there is no express cost under the consolidated fee structure shall be treated as an original filing for cost purposes.”

Section 6-6-492, 1981 Cumulative Supplement, Code of Alabama, reads as follows:

Filing of Petition for order of continuing garnishment; form, contents and service of petition; time period for responding to pleadings, motions, etc.
(a) In addition to the foregoing method for instituting a continuing wage garnishment proceeding for child support through motion, the mother, father, or guardian, or if the child is a public charge, the department of pensions and security may, in an independent proceeding, petition the court for an order of continuing wage garnishment.
(b) The petition shall be verified and shall state that the responsible parent is under court order, that said parent is delinquent in such child support, the name and address of the alleged employer-garnishee of the responsible parent, the responsible parent’s weekly disposable earnings from said employer, which may be based on information and belief, and the amount sought to be garnished, not to exceed 40 percent of the responsible parent’s weekly disposable earnings.
(c) The petition shall be served on both the responsible parent and his alleged employer in accordance with the provisions for service of process set forth in Rule 4 of the Alabama Rules of Civil Procedure.
(d) The time period for answering or otherwise responding to process issued pursuant to this section shall be in accordance with the time periods set forth in the Alabama Rules of Civil Procedure.

Section 6-6-493, 1981 Cumulative Supplement, Code of Alabama, reads:

Entry of order of garnishment by court; contents and service of order; review of order.
(a) Following the hearing held pursuant to this section, the court may enter an order of garnishment, not to exceed 40 percent of the responsible parent’s weekly disposable earnings.
(b) If an order of garnishment is entered, a copy of same shall be served on the responsible parent and the garnishee either personally or by certified or registered mail, return receipt requested.
(c) The order shall set forth sufficient findings of fact to support the action by the court and the amount to be garnished for each pay period.
(d) The order shall be subject to review for modification and dissolution upon the filing of a motion in the cause.

Mr. Tapley summarized his question as follows:

“In light of the fact that a garnishment proceeding initiated for child support obligations upon a verified petition is more analogous to a regular, civil proceeding in that it must be initiated upon the filing of a petition, may require a court hearing under certain circumstances, must be governed by the Alabama Rules of Civil Procedure and must require a court order on the issue of the amount, if any, to be garnished, should these proceedings be considered a filing for which no express fee is prescribed and for which an original filing fee should be charged pursuant to Rule 7, Alabama Rules of Judicial Administration?”

An original filing for cost purposes within the meaning of Rule 7 is the filing of a case. Opinion of Clerk, No. 1, 1977, Ala., 345 So.2d 1329; No. 3, 1977, Ala., 345 So.2d 1338, and No. 37, 1981, Ala., 403 So.2d 891. A case, within the meaning of Rule 7, is a suit or action in court. See Bell v. Mar-Mil Steel and Supply Co., Civ.App., 309 So.2d 471, 474, 54 Ala.App. 432; Webster’s Third New International Dictionary.

It appears that the filing of a petition, which initiates an independent proceeding, as heretofore described, commences a new suit and should be considered as the filing of a case.


text:
    OPINION OF THE JUSTICES.
    No. 299.
    Supreme Court of Alabama.
    Aug. 11, 1982.
   To the Honorable Members of the Senate of

Alabama

State Capitol

Montgomery, Alabama

Gentlemen:

We are in receipt of Senate Resolution 6 sponsored by Senator Higginbotham, which reads as follows:

“BE IT RESOLVED BY THE SENATE OF THE LEGISLATURE OF ALABAMA, That we respectfully request the Honorable Chief Justice and Associate Justices of the Supreme Court or a majority of them, to give this body their written opinions on the following important constitutional question which has arisen concerning the pending bill, S.B. 1:
“1. Does Section 16-5-8, paragraphs (e) and (d) of Senate Bill 1, concerning the Alabama Higher Education Commission’s authority to approve new programs or units or to terminate existing programs and units of instruction, research and public service funded by state funds conflict with Article XIV, Section 264 and Amendment No. 161, Section 1 of the Constitution of Alabama 1901, as amended; that is, would the Alabama Higher Education Commission’s authority to approve and/or terminate such programs and units apply equally to all public post-secondary institutions in Alabama regardless of whether they were subject to constitutionally prescribed management and control or statutorily prescribed management and control by their respective boards?”

We answer as follows:

We note that § 16-5-8(c) of S.B. 1 makes no change in existing law. Thus, we do not address that part of the question. Section 16-5-8(d), however, does conflict with Article XIV, § 264, and Amendment No. 161, § 1, of the Constitution of Alabama 1901, as amended.

Both constitutional provisions provide that the state university and Auburn University shall be under the management and control of a board of trustees. Therefore, any diminishment of that authority requires a constitutional amendment. Because management and control of these two institutions is vested in a board of trustees by virtue of the Constitution, the legislature has no authority by act to deprive the board of trustees of their discretion as to the management and control of these institutions. Stevens v. Thames, 204 Ala. 487, 86 So. 77 (1920).

Respectfully submitted,

C. C. TORBERT, JR,

Chief Justice

HUGH MADDOX

JAMES H. FAULKNER

RENEAU P. ALMON

JANIE L. SHORES

T. ERIC EMBRY

Justices


text:
    THE FLORIDA BAR, Complainant, v. Seymour LITMAN, Respondent.
    No. 60216.
    Supreme Court of Florida.
    March 11, 1982.
    Rehearing Denied Aug. 27, 1982.
    John F. Harkness, Jr., Executive Director and Stanley S. Spring, Staff Counsel, Tallahassee, and Paul A. Gross, Co-Bar Counsel and Denis A. Dean, Co-Bar Counsel, Miami, for complainant.
    Michael C. Spring of Carey, Dwyer, Cole, Selwood & Bernard, Miami, for respondent.
   PER CURIAM.

This disciplinary proceeding by The Florida Bar against Seymour Litman is before us on a petition for review of the report of the referee. The referee’s report and record have been filed with this Court pursuant to Florida Bar Integration Rule, Article XI, Rule 11.06(9)(b). We have jurisdiction. Art. V § 23, Fla.Const.

The report of the referee contains the following summary of allegations:

Count I±
The Florida Bar alleges that Respondent, acting in conspiracy or concert with Heriberto Sardina (“Sardina”) and Jose M. Morales Gomez (“Morales”), misappropriated $100,000 of funds of certain investors in Campbell Square, Inc. (formerly known as Monument Plaza, Inc.), a Florida Corporation. Respondent, who served as attorney in forming the corporation and buying land for the corporation using the investors’ funds, acknowledges the funds were paid into an escrow account in his name and on which he was the sole signatory and that the $100,000 in question was paid by him one-third each to Sardina, Morales and himself. Respondent, however, contends he was authorized to so disburse these funds.
Respondent’s essential defense to The Florida Bar’s allegations relates back to the earlier involvement of Respondent, Sardina and Morales in another corporation, referred to by the parties as “Yu-male.” Respondent asserts that Sardina and Morales owed him $40,000 for services to them in some connection with Yu-male and that this debt was settled by their authorization to him to pay himself $33,333.34 from the escrow account, they being otherwise entitled to receive that sum themselves. Since all essential facts underlying this defense are controverted, extensive Findings of Fact are required with respect thereto.
The Florida Bar alleges that, by reason of the allegations, Respondent violated his oath as an attorney; Rules 11.02(2) (Code of Ethics), (3) (moral conduct), and (4) (trust funds and fees) of the Integration Rule; and Disciplinary Rules 1-102(A)(3) (engaging in illegal conduct involving moral turpitude) and (4) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), 5-104(A) (limiting business relations with a client), 6-101(A)(3) (neglecting a legal matter entrusted to a lawyer); and 9-102(B)(1) (promptly notifying a client of receipt of the client’s securities and properties), (3) (maintaining complete records of clients’ funds and rendering appropriate accounts); and (4) (promptly paying a client funds the client is entitled to receive).
Count II
The Florida Bar alleges that Respondent, acting in conspiracy or concert with Sardina and Morales, misappropriated $158,000 of funds of certain investors in Petropolis Development Corp., a Florida corporation. Respondent acknowledges he served as attorney in forming this corporation and in buying land for the corporation using the investors’ funds, but denies any other involvement.
The method by which The Florida Bar asserts Respondent received his portion of such funds is not entirely clear, but apparently was through a promissory note in the amount of $60,000 to him executed by Sardina and Morales. Respondent’s essential defense to The Florida Bar’s allegations relates back to the earlier involvement of Respondent, Sardina, Morales and others in another corporation, referred to by the parties as “Mosar.” As the result of this Bar assertion, substantial testimonial and documentary evidence was offered as to Respondent’s entitlement to legal fees from Mosar, promises to pay those fees, and notes and a mortgage given in connection with those fees. Since all essential facts relating to these subjects are controverted, extensive Findings of Fact are required with respect thereto.
The Florida Bar alleges that Respondent violated by reason of the alleged actions, his oath as an attorney; Rule 11.01(2)(3) and (4) of the Integration Rule; and Disciplinary Rules l-102(a)(3) and (4), 5-104(a), 6-101(A)(3) and 9-102(b)(l)(2)(3) and (4).
The referee recommended the following:
As to Count I
I recommend that Respondent be found guilty and specifically that he be found guilty of the following violations of his Oath as an attorney, Rule 11.02(2)(3) and (4) The Integration Rules of The Florida Bar and Disciplinary Rules of the Code of Professional Responsibility 1-102(A)(4), 6-101(A)(3), and 9-102(b)(l) and (3). I recommend that Respondent be found not guilty of Disciplinary Rules of the Code of Professional Responsibility 1-102(A)(3), 5-104(A), and 9-102(b)(l)(4).
As to Count II
I recommend that Respondent be found not guilty and specifically that he be found not guilty of the violations of his Oath as an attorney, The Integration Rules of The Florida Bar and Disciplinary Rules of the Code of Professional Responsibility cited in Count II of the Complaint.

Finally, with regard to discipline the referee recommended: (1) that respondent be suspended for three months, and thereafter until he proves his rehabilitation; (2) that respondent pay the cost of this proceeding; and (3) that respondent make restitution to the Venezuelan group in the amount of $33,333.34.

Having carefully reviewed the record we approve the findings and recommendations of the referee. Accordingly, respondent, Seymour Litman, is hereby suspended from the practice of law in Florida for a period of three months and thereafter until respondent shall prove rehabilitation, effective thirty days after the filing of this opinion. Additionally, respondent shall make restitution to the Venezuelan group in the amount of $33,333.34. Respondent shall not accept any new business. Costs of these proceedings in the amount of $4,289.95, and any other such costs as may be incurred shall be charged to respondent.

It is so ordered.

ADKINS, A. C. J., and BOYD, OVER-TON, ALDERMAN and McDONALD, JJ., concur.

      . This Disciplinary Rule was not the subject of the Complaint. The Florida Bar moved to amend the Complaint at the close of all the evidence to include this Disciplinary Rule. Over Respondent’s objection, the Referee grants this motion, since he finds no prejudice to Respondent, concluding the response to the charges would have been the same had this Disciplinary Rule been initially pled.

      . Although the Complaint and, in particular, paragraph 28 thereof might be read to cover other funds, counsel for The Florida Bar and Respondent stipulated at the Pre-Hearing Conference that the only sums involved in this proceeding were the $100,000 as to one corporation and the $158,000 as to the other (Transcript of Pre-hearing, July 3, 1979 at 27).


author: ALDERMAN, Justice. SUNDBERG, Chief Justice, OVERTON, Justice,

text:
    In re INQUIRY CONCERNING A JUDGE, William C. GRIDLEY, Circuit Judge.
    No. 60182.
    Supreme Court of Florida.
    May 13, 1982.
    Rehearing Denied Aug. 30, 1982.

      Richard C. McFarlain and David W. Spi-cer of McFarlain, Bobo, Sternstein, Wiley & Cassedy, Tallahassee, for petitioner.
    Talbot D’Alemberte and Donald M. Mid-dlebrooks of Steel, Hector & Davis, Miami, for respondent.
    James C. Hauser, County Judge, Orange County, Orlando, for Executive Committee of County Court Judges, amicus curiae.
   ALDERMAN, Justice.

The Florida Judicial Qualifications Commission has filed its recommendations with this Court that Judge William C. Gridley, Circuit Judge for the Ninth Judicial Circuit, be reprimanded for violating Florida Bar Code of Judicial Conduct, Canons 2 A, 2 B, and 5 A. These recommendations are premised on its findings that Judge Gridley is guilty as charged in counts 1 and 2 of. the formal charges filed against him by the Commission. Judge Gridley, in response to our order to show cause as to why the Commission’s recommended action should not be taken, requests that we reject the Commission’s recommendations. He argues that the conduct delineated in count 1 does not constitute a basis for imposition of sanctions, that the publications alluded to in count 2 do not constitute a violation of the canons of judicial conduct, that he was denied due process by the Commission’s acting as both the investigator and recommending body, and that the Commission conducted its deliberations as to guilt or innocence and as to sanctions in private. We agree only with Judge Gridley’s assertion that the conduct charged in count 2 did riot amount to a violation of the Code of Judicial Conduct.

Count 1 of the formal charges relates to Judge Gridley’s personally injecting himself as an advocate into the case of Darrell Farmer. Judge Gridley recognizes that he acted improperly in this matter but suggests that since he acted without corrupt motive and solely with the interest of correcting what he perceived to be an injustice, he should not be reprimanded for his conduct. A finding of corrupt motive, however, is not a prerequisite to the disciplining of a judge. In Re Inquiry Concerning a Judge, 357 So.2d 172 (Fla.1978). Our concern is whether Judge Gridley failed to follow the requirements of impartiality and objectivity imposed by the Code of Judicial Conduct. In evaluating this question, we must view the entire sequence of events which led to this charge being filed against him.

The Commission made thorough findings of the facts underlying this charge. These facts are of persuasive force and should be given great weight. In Re LaMotte, 341 So.2d 513 (Fla.1977). The Commission found:

(1) Judge William C. Gridley, a circuit judge, presided at the first degree murder trial of Darrell Farmer, Case No. 74-1518, which commenced on October 17, 1974. The jury returned a verdict of guilty as charged on October 18, 1974, and Judge Gridley immediately imposed a sentence of life imprisonment without the possibility of parole for a minimum period of twenty-five years.
(2) Upon the conclusion of the trial and sentencing, Farmer’s family was advised by his privately retained attorney of the necessity to file a motion for new trial within four days from the rendition of the verdict if he intended to appeal the sufficiency of the evidence to support the verdict. This attorney was discharged from further representation and a timely motion for new trial was never filed.
(3) On November 15, 1974, Judge Grid-ley denied untimely motions for reconsideration of degree of guilt and reconsideration of judgment of acquittal. Farmer, through newly retained counsel, immediately appealed and, on November 22, 1974, filed a motion for post-conviction relief. This motion was argued and denied on December 2, 1974, and the previous motions were re-argued at the same time although no motion for rehearing appears in the record.
(4) At the hearing on December 2, 1974, Judge Gridley expressed his concern about the legal barriers to allowing the court to rule on the merits of the motions by stating:
If this matter doesn’t eventually get properly heard, this Court is concerned. I think that it needs to be heard and dealt with, and that merely based on a technicality of the attorney not filing it from within the fifteen days barring it from being heard would be an injustice in this case.
(5) From December 1974 to February 1975, Judge Gridley received three letters from members of Farmer’s family in which they expressed their concern over his conviction. Judge Gridley filed each letter in the court file.
(6) Judge Gridley was transferred from the criminal division of the court by the chief judge on March 31, 1975.
(7) In April 1975, Farmer filed another motion for post-conviction relief alleging that, through no fault of his own, a motion for new trial was not filed on his behalf. Judge Gridley recognized that he had no jurisdiction to entertain the motion because Farmer’s conviction was then on appeal and he denied the motion on May 16, 1975.
(8) On May 16, 1975, Judge Gridley entered written orders denying the motions he heard on December 2, 1974.
(9) In October 1975, Judge Gridley received a letter from Farmer. This was not placed in the court file until December 6, 1977.
(10) On December 3, 1975, Judge Grid-ley wrote to Farmer’s attorney (copy to the state attorney) requesting transcriptions of the post-trial proceedings and again expressing his problem with the jurisdictional aspects of the case. He wanted the hearings “transcribed for purposes of the record” because “. .. it would be beneficial to the justice of this case and to the continuing development of the law in this area.” The attorney complied with the request and Judge Gridley ordered the cost thereof to be paid by the county.
(11) In early 1976, Farmer’s conviction and sentence were affirmed on appeal. After the appeal was final, Judge Grid-ley, sua sponte, on March 17,1976, filed a lengthy memorandum in the criminal court record to record his observations which potentially justified post-judgment relief. . . .
(12) Farmer filed another motion for post-conviction relief which was heard in December 1977 by another judge then presiding over the case. Judge Gridley, without subpoena, appeared and testified at the hearing. The motion was denied in January 1978 and a resulting appeal affirmed the denial in February 1978. In its opinion the Court of Appeal alluded to Judge Gridley’s memorandum and stated in a footnote:
There is proof in the record that appellant was advised of the necessity for filing the motion, yet he discharged trial counsel and did not retain new counsel until it was too late.
(13) In March 1979, Judge Gridley received a letter from Farmer’s family requesting that he write to the Governor on Farmer’s behalf. This letter was not placed in the court file. Also in March 1979, Judge Gridley wrote to Farmer’s attorney expressing his belief that a pardon for Farmer would be “especially appropriate in this case, and within the bounds of judicial ethics, he would be willing to contribute information and opinion” as to the appropriateness of such a pardon. He referred to his previous memorandum as covering most of what he could contribute. A copy of this letter was not placed in the court file.
(14) The Supreme Court denied certio-rari in the Farmer case on October 11, 1979.
(15) In November 1979, Judge Gridley wrote directly to Farmer, who was then in prison, and sent copies of his letter to Farmer’s attorney and the Reverend George W. Farmer, Darrell Farmer’s father. In the letter he expressed his wish to communicate with Farmer “as a person” and not in his judicial capacity although the letter was typed by his secretary on his official judicial stationery. He further expressed his belief that a pardon would be appropriate and he gave his assurance that he would provide the “highest and strongest recommendation” that Farmer be pardoned. A copy of this letter was not placed in the court file.
(16) In December 1979, Judge Gridley received a letter from the Reverend Farmer thanking the Judge for his interest in Darrell’s case. This letter was not placed in the court file.
(17) In February 1980, Judge Gridley wrote to the Reverend Farmer advising that he had been “wrestling with Darrell’s case off and on for a long time to try and figure out the best way to approach it to get just and proper relief for him (+ us!) from the no parole sentence he is under.” He further suggested that Farmer retain the services of Chandler R. Muller, Esq., to represent Darrell “in an executive clemency proceeding or any other manner he deems appropriate.” He stated: “Chan and I go to the same church and I have talked about Darryl (sic) with him. Don’t worry about the money end of this representation. I imagine you have paid out a lot already and money is not going to be any barrier any more.” The letter concluded, “Your brother in Christ, Bill.” A copy was not placed in the court file.
(18) Also in February 1980, Judge Gridley wrote to Attorney Muller in which he summarized the trial and proceedings in the Farmer case and expressed his ideas about the ease. He acknowledged that he would have reduced the degree of the conviction to second degree murder if he had been able to rule upon the post-trial motions on their merits, and further announced:
So, that’s my epistle. At this point I may enter a non-jurisdictional order to the above effect. The other alternatives are a clemency proceeding or another Rule 1 or habeas corpus in Federal court. (Emphasis added.)
Thanks for looking into this matter. Let me know if you wish to represent Darryl (sic) or me!
(19) On March 4, 1980, Judge Gridley, with full knowledge that he had no jurisdiction to do so, entered a sua sponte order reducing Farmer’s degree of guilt from first to second degree murder, ordering a pre-sentence investigation, and scheduling a resentencing hearing. He also indicated that he would not proceed further if the State objected by including in his order:
On an objection being filed by the State the court will delay any resen-tencing until further authorized by any appropriate proceedings.
After a petition for writ of prohibition was filed by the State with the Fifth District Court of Appeal, and after Judge Gridley’s personal response thereto was filed, the Fifth DCA quashed the March 4, 1980, order.
(20) Judge Gridley conceded making two errors in his handling of the Farmer case.

These findings are supported by clear and convincing evidence. Taken singly, some of these actions may appear innocuous, but taking them in their entire context, we conclude that the Commission properly found that Judge Gridley did personally inject himself and his office into the matter as an advocate for Farmer, and in doing so he failed to conduct himself in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

Canon 2 provides:

A. A judge should respect and comply with the law and should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.
B. A judge should not allow his personal relationships to influence his judicial conduct or judgment. He should not lend the prestige of his office to advance the private interests of others; nor should he convey or authorize others to convey the impression that they are in a special position to influence him. He should not testify voluntarily as a character witness.

Judge Gridley’s course of conduct in the Farmer matter considered as a whole constitutes a violation of this canon. It is of utmost importance to the independence and integrity of the judiciary that a judge act impartially and avoid any appearance of impropriety. Contrary to this precept, Judge Gridley’s conduct demonstrated partiality and gave the appearance of impropriety.

Count 2 of the formal charges is predicated on two letters to the editor written by Judge Gridley and published in the Orlando Sentinel Star and an article written by Judge Gridley and published in an Episcopal church newsletter. One of the letters expressed his views on Christian forgiveness, and the other expressed his view against capital punishment. His article in the newsletter discussed his views against capital punishment but made clear that he would do his duty as a judge and follow the law as written.

The Commission recommends that we find that this conduct violates Canon 2 A, requiring him to act in a manner that promotes public confidence in the integrity and impartiality of the judiciary, and Canon 5 A, permitting a judge to write, lecture, teach, and speak on nonlegal subjects, if these activities do not detract from the dignity of his office or interfere with the performance of his duties.

Judge Gridley argues that to penalize him for these utterings violates his first amendment right to free speech and alternatively argues that his particular conduct does not offend the Code of Judicial Conduct. We agree with this latter contention and therefore do not reach his free speech argument.

Although finding no violation of the canons in this case, we caution judges against indiscriminately voicing their objection to the law lest they be misunderstood by the public as being unwilling to enforce the law as written, thereby undermining public confidence in the integrity and impartiality of the judiciary. In In re Kelly, 238 So.2d 565 (Fla.1970), cert. denied, 401 U.S. 962, 91 S.Ct. 970, 28 L.Ed.2d 246 (1971), we discussed responsible methods that could be utilized by a judge in expressing his views on law reform. We said:

There are many authorized methods of protest, dissent and criticism within the framework of the judiciary, such as the preparation of dissenting opinions, petitions to the Supreme Court for changes in the rules of procedure, submission of suggested changes to various committees of The Florida Bar, participating in the various legal seminars conducted by the Committee on Legal Education, or taking an active part in the state and local conferences of judges.

238 So.2d at 569. In our subsequent decision of In Re Inquiry Concerning a Judge, 357 So.2d 172 (Fla.1978), we stated that differences of opinion and variations in philosophy among judicial officers are tolerated, and strong minority views expressed by members of the judiciary are not grounds for disciplinary action. But we stressed that there are limits that judicial officers must observe. We said: “Judges are required to follow the law and apply it fairly and objectively to all who appear before them. No judge is permitted to substitute his concept of what the law ought to be for what the law actually is." 357 So.2d at 179 (emphasis supplied).

There is no doubt that a judge in an appropriate forum may express his protest, dissent, and criticism of the present state of the law as long as he does not appear to substitute his concept of what the law ought to be for what the law actually is, and as long as he expresses himself in a manner that promotes public confidence in his integrity and impartiality as a judge. The manner in which Judge Gridley expressed his criticism of the death penalty is close to the dividing line between what is appropriate and what is not. Most judges, we believe, would not have expressed their dissent in the same manner as Judge Grid-ley because, even if this conduct did not violate the Code of Judicial Conduct, they would have considered it to be in poor taste and subject to possible misinterpretation by the public. With the benefit of hindsight, it appears that today even Judge Gridley would consider more appropriate forums in which to express his dissent. Considering all of the circumstances of this ease, however, we conclude that Judge Gridley did not violate the Code of Judicial Conduct in writing his two letters to the editor and publishing an article in an Episcopal church newsletter. The record in this case does not establish that his letters and article caused any disrespect for the law or his judicial office, interfered with the performance of his official duties, or resulted in a loss of public confidence in the integrity and impartiality of the judicial system. Judge Gridley made it clear that he was duty bound to follow the law and that he would do so although he did advocate law reform in the area of capital punishment.

In addition to challenging the bases for the Commission’s findings that he violated the canons, Judge Gridley also challenges the procedure employed by the Commission. Although acknowledging that article V, section 12, Florida Constitution, allows the Commission to investigate and to recommend sanctions, he objects to the Commission’s being both the accuser and the factfinding and recommending body and argues that this dual role of the Commission violated his right to due process of law. More specifically, he focuses on the participation in the hearing process of a commissioner who was intimately involved in the investigation and whose activities are a part of count 2. We have previously rejected this contention in In Re Kelly and have been shown no reason to recede from this decision. Judge Gridley was accorded all his due process rights during these proceedings.

Finally, Judge Gridley maintains that the recommendations of the Commission should be held to be void because its deliberations were held in secret. He contends that open deliberations as well as open proceedings are what is intended' by article V, section 12(d), Florida Constitution, which provides in part:

Until formal charges against a justice or judge are filed by the commission with the clerk of the supreme court of Florida all proceedings by or before the commission shall be confidential; provided, however, upon a finding of probable cause and the filing by the commission with said clerk of such formal charges against a justice or judge such charges and all further proceedings before the commission shall be public. The commission may with seven members concurring recommend to the supreme court the temporary suspension of any justice or judge against whom formal charges are pending.

We disagree with Judge Gridley’s interpretation of this constitutional provision. The provision that “all further proceedings before the commission shall be public” does not mean that the deliberations among the commissioners must be public. Just as judicial deliberations are confidential, so may be the deliberations of the Commission when it is deciding the guilt or innocence of a judge. Therefore, the recommendations of the Commission are not void as Judge Gridley suggests.

Accordingly, finding no merit to his objections relating to the findings and recommendations of the Commission with regard to count 1 and no merit to his constitutional challenges to the procedures employed by the Commission, we approve the findings of the Commission as to count 1 and its recommendation that Judge Gridley be found guilty of violating Canon 2 and that he be publicly reprimanded. Publication of this decision in Southern Reporter will serve as a public reprimand. Finding no violation of the canons by his conduct specified in count 2 of the formal charges, we hereby dismiss count 2.

It is so ordered.

ADKINS, BOYD and EHRLICH, JJ., concur.

SUNDBERG, C. J., concurs specially with an opinion, in which ADKINS and EHRLICH, JJ., concur.

OVERTON, J., concurs in part and dissents in part with an opinion. •

SUNDBERG, Chief Justice,

concurring specially.

Although I concur in the Court’s opinion in this proceeding, I must voice my reservation about one aspect of the opinion. The majority concludes that Judge Gridley’s speaking out on the subject of the death penalty in the fashion which he did constituted no violation of the Code of Judicial Conduct. I agree. I also agree that judges should be circumspect in their public statements because of the special role of impartial arbiter which they play in our society. The judge must always guard against making public statements which compromise his impartiality or appearance of impartiality.

Nevertheless, I do not subscribe to the notion that the judge’s forum is limited to those means of expression categorized in In re Kelly, 238 So.2d 565 (Fla.1970), cert. denied, 401 U.S. 962, 91 S.Ct. 970, 28 L.Ed.2d 246 (1971), as suggested by the majority. The methods therein enumerated are limited to the judicial and legal communities. I believe judges, on occasion, may be obliged to speak out to a much larger community through other mediums. The efforts of members of this Court in support of the revision of Article V of our Constitution in 1972 and again in 1980 prove this assertion. There are times and issues which will compel judges to speak out in forums quite afield of those suggested in In re Kelly. I would not discourage fulfillment of that responsibility on their part.

ADKINS and EHRLICH, JJ., concur.

OVERTON, Justice,

concurring in part, dissenting in part.

I fully concur in the majority’s decision that Judge Gridley’s course of conduct in the Farmer matter was a clear violation of the Code of Judicial Conduct, Canon 2. I strongly dissent, however, from the finding that the judge’s course of conduct in publicly advocating the elimination of the death penalty did not interfere with the impartial performance of his duties and was not prohibited by the Code of Judicial Conduct. The fact that the comments of the judge deal directly with an issue which may come before him, in addition to the importance of the circuit judge’s role in the death sentence process, gives me considerable concern about the impact of the majority’s decision on our present Code of Judicial Conduct.

The instant conduct which I find improper took the form of two letters to the editor of the Orlando Sentinel Star and an article published in an Episcopalian church newsletter. I find that these publications have essentially destroyed Judge Gridley’s image of impartiality in death penalty cases, a very sensitive area of his jurisdiction.

A circuit judge has an extremely critical position in our death sentence procedure, which is illustrated by the fact that, irrespective of the jury’s recommendation or the desires of an appellate court, only a circuit judge can impose the death sentence. If the judge chooses not to do so, the state may not appeal that decision.

In my opinion, no reasonable person could read Judge Gridley’s letters or article and still realistically believe that the judge would actually impose a death sentence, even if it was in accordance with a jury’s recommendation. Even less realistic would be that the judge would override a jury recommendation of life and impose a death sentence in an appropriate circumstance as allowed by law. Assuming that Judge Gridley would, in accordance with his concluding remarks in the article, impose a death sentence where appropriate, his conduct in publishing the letters and article could adversely affect the death penalty process. For example, in Smith v. State, 197 So.2d 497 (Fla.1967), defense counsel advised the defendant that the circuit judge before whom he was to appear had publicly spoken in opposition to the death penalty. Defendant and his counsel believed that the judge, because of those comments, would impose a life sentence, and defendant accordingly entered a plea of nolo contendere. After the judge imposed the death sentence, defendant on appeal argued before this Court that the judge’s public expression of his views on the death penalty had convinced him that he would receive only a life sentence. This Court rejected that claim, although it reversed on other grounds and allowed defendant to withdraw his plea.

Judge Gridley contends that his first amendment right to free speech protected his conduct, that the Code of Judicial Conduct affirmatively allows this type of conduct through which judges may advocate the improvement of the administration of justice, and that other circuit judges have expressed themselves concerning the death penalty, their statements being distinguished only in that they were in favor of rather than opposed to the death penalty. Judge Gridley points out that those judges have not been disciplined.

As to the first point, the judicial canons clearly state that judges may not advocate a position on matters which may come before them for decision. The reason is simple. In each adversary proceeding, at least two sides must have the opportunity to be heard. No party wishes to appear before a judge who is predisposed as to an issue unless, of course, he is predisposed in that party’s favor. In my view, the first amendment rights of a judge are properly restricted by the judicial canons when those rights concern areas of the law in which the judge must reach a judicial decision. This is necessary to assure impartiality in the decision-making process. It is in fact a balancing test between the judge’s constitutional right to free speech and the constitutional right of the litigants to due process and a fair trial. Under the circumstances of this case, given the sensitive and emotional nature of the proceedings and the critical position of the circuit judge, I find that the canons, as I construe them, do not improperly limit or infringe upon the judge’s first amendment rights.

As to the second point, while the canons clearly and affirmatively suggest that judges should actively seek changes which improve the administration of justice, they do not grant a judicial officer a license to publicly project a strong impression of how he will rule in a particular matter. I find that Judge Gridley’s actions travel beyond the scope of acceptable speech for the improvement of justice because they destroy his image of impartiality.

Finally, Judge Gridley claims that other judges who have participated in similar conduct favoring the death penalty have suffered no discipline. The inference is that Judge Gridley was prosecuted before the Judicial Qualifications Commission because he opposed the death penalty. I find both types of conduct improper, whether opposing or advocating the death penalty, and would expect equal administration of judicial discipline.

Our judicial system requires public support and confidence for its existence. Public support in turn depends upon judicial credibility, established in my view only by a clear appearance of judicial integrity and impartiality. The Code of Judicial Conduct was promulgated to furnish judges guidelines which, if followed, would assure that judges’ conduct conformed to these standards.

I find that Judge Gridley clearly breached the letter and intent of the Code of Judicial Conduct. I would emphatically approve all the recommendations of the Judicial Qualifications Commission and publicly reprimand Judge Gridley accordingly.


text:
    THE FLORIDA BAR, Complainant, v. Gary H. NEELY, Respondent.
    No. 60205.
    Supreme Court of Florida.
    May 13, 1982.
    Rehearing Denied Aug. 27, 1982.

      David G. McGunegle, Bar Counsel, Orlando, and Stanley A. Spring, Staff Counsel, Tallahassee, for complainant.
    John Spencer Robinson, Daytona Beach, and Gary H. Neely, in pro. per., for respondent.
   PER CURIAM.

We have for review the report and recommendation of the referee. Jurisdiction is pursuant to article V, section 15, Florida Constitution.

The report of the referee included the following findings:

II. Findings of Fact as to Each Item of Misconduct of which the Respondent is charged: After considering all the pleadings and evidence before me, pertinent portions of which are commented upon below, I find that the Complainant has sustained the allegations of its Complaint; specifically I find the following: Respondent (admitted in his Answer that he) was at all times hereinafter mentioned a member of The Florida Bar subject to the jurisdiction and disciplinary rules of the Supreme Court of Florida; at all times material he resided in Volusia County, Florida, and practiced law there except for the 90-day period beginning July 9, 1979, during which he was suspended from the practice of law; before that suspension Respondent’s associate (Fabian Bagdes, Esquire) filed a criminal appeal with the Fifth District Court of Appeal; on motion filed July 24, 1979 by the associate an extension of time was granted to prepare appellant’s brief because (as stated in the motion) the associate was unable to handle the case, Respondent’s suspension precluded timely filing, and additional time was needed to find a competent law firm willing to handle the appeal; no brief was filed, apparently because Respondent’s office was closed due to his suspension from the practice of law; Respondent admitted (with reservation) receiving a January 29, 1980 order to show cause why the appeal should not be dismissed; he suffered dismissal of the appeal on February 20,1980 after neither he nor appellant showed cause; he responded February 28, 1980 to a separate order entered February 20, 1980 giving him ten days to show cause why he should not be held in contempt for failure to prosecute, stating therein his misunderstanding of who was responsible for handling the appeal; on April 29, 1980, he again moved for extension of time to file brief after the court eight days earlier reinstated the appeal; on May 19, 1980, he was denied the extension, directed to serve the brief by May 23,1980 and advised he would be found in contempt if not so filed; on May 22,1980, he submitted a response stating why he could not comply, and again moving for an extension of time to file brief; on June 2, 1980, he was removed as appellant’s attorney, was directed to appear before the Court to show cause why he should not be adjudged in contempt; on June 5, 1980 he filed an “Anders” brief (which the Court later struck); finally, he was adjudged in contempt June 20, 1980, and fined $250.00.

(Footnotes omitted.)

The referee recommended that respondent be found guilty of violating Fla.Bar Code Prof.Resp., D.R. 6-101(A)(3) and not guilty of violating Fla.Bar Code Prof.Resp., D.R. 6-101(A)(2).

As to discipline, the referee recommended the following:

IV. Recommendation as to Disciplinary measures to be applied: I affirm the recommendations of the Grievance Committee, arid recommend that the Respondent receive a public reprimand and be placed on probation for a period of one year. The terms of probation recommended are as follows: (1) That the Respondent accept no employment involving criminal appeals; (2) That the Respondent permit no other attorney to initiate or prosecute appeals in the name of Respondent, or as the Respondent’s associate; (3) That Respondent not engage in the practice of law except as an associate or partner of another member of The Florida Bar; (4) That the Respondent’s court appearances and representation of clients in the courts of this state be supervised or periodically reviewed by another member of The Florida Bar; (5) That the Respondent make periodic reports on his case load and supervision of his work; (6) That Respondent be required to file such report with the Clerk of the Supreme Court and serve a copy on staff counsel of The Florida Bar.

We agree with the recommendation of the referee except insofar as he would require the respondent to be an associate or partner of another member of The Florida Bar before the respondent could engage in the practice of law. The other recommended conditions of probation allow ample supervision over respondent’s practice during his period of probation. Furthermore, the effective result of requiring associate or partnership status of the respondent may well be to deny him the ability to practice at all, turning the probation into a suspension.

We find that in this case a public reprimand and a one year probation with the following terms is appropriate discipline:

(1) That respondent accept no employment involving criminal appeals;

(2) That respondent permit no other attorney to initiate or prosecute appeals in the name of respondent, or as the respondent’s associate;

(3) That respondent’s court appearances and representation of clients in the courts of this state be supervised or periodically reviewed by another member of The Florida Bar;

(4) That respondent make periodic reports on his caseload and supervision of his work;

(5) That respondent be required to file such report with the Clerk of the Supreme Court and serve a copy on staff counsel of The Florida Bar.

Costs in the amount of $339.06 are charged to the respondent, and in addition, any other costs that have been or may be incurred by these proceedings.

It is so ordered.

ADKINS, Acting C. J., and BOYD, OVERTON, ALDERMAN and MCDONALD, JJ., concur.


author: ADKINS, Justice. BOYD,

text:
    STATE of Florida, Appellant, v. ORANGE COUNTY INDUSTRIAL DEVELOPMENT AUTHORITY, Appellee.
    No. 61371.
    Supreme Court of Florida.
    June 3, 1982.

      Robert Eagan, State Atty., and James S. Lewis, Jr., Asst. State Atty., Ninth Judicial Circuit, Orlando, for appellant.
    Leighton D. Yates, Jr. of Maguire, Voo-rhis & Wells, Orlando; Talbot D’Alemberte and G. Keith Quinney, Jr. of Steel, Hector & Davis, Miami, Special Litigation Counsel; and R. William Ide, III and Frank A. Light-mas, Jr. of Kutak, Rock & Huie, Atlanta, Ga., Bond Counsel, for appellee.
   ADKINS, Justice.

This is an appeal from a final judgment entered in proceedings for the validation of bonds to be issued by an Industrial Development Authority. We have jurisdiction. Art. V § 3(b)(2), Fla.Const.

The Orange County Industrial Development Authority (hereinafter called the “authority”), adopted a resolution providing for the issuance of tax-exempt industrial development revenue bonds in the approximate amount of eight million dollars to finance the construction of a public lodging and restaurant facility (hereinafter called the “convention hotel”), by C. B. Day Realty of Florida, Inc. (hereinafter called “Day Realty”), in connection with the Orange County Convention/Civic Center (hereinafter called the “convention/civie center”).

The trial court entered a final judgment of validation finding (1) that chapter 80-287, Laws of Florida, amending Chapter 159, part II, was a constitutional and valid exercise of legislative power; (2) that the project, as defined in the bond resolution, was in an industrial or manufacturing plan within the meaning of Article VII § 10(c) of the Florida Constitution; (3) that the project serves a paramount public purpose and could, therefore, be financed through revenue bonds since the credit of neither the authority nor the state was at risk; and (4) that the primary purpose of the project was to provide service in connection with the convention/civic center, another facility qualifying under the act and authorized by the Florida Constitution.

The 1980 annual tourism report prepared by the division of tourism of the Florida Department of Commerce (introduced into evidence) reports that a record 35.9 million visitors traveled to Florida in 1980 and that tourists generated expenditures amounting to over $17 billion, tourism-generated employment for over five hundred eighty thousand Floridians with a payroll of almost four billion dollars and tourist generated state tax revenues exceeding $785 million. This report also reflects that Orange County is the primary destination in Florida for auto visitors and that it is the third most popular destination in Florida for air visitors.

This report also reflects that tourism in the Orange County area has grown primarily as the result of the opening of Walt Disney World in late 1971. This attraction is the number one drawing card in the world and currently has an annual attendance of approximately fifteen million people. The $800 million EPCOT futuristic theme park expansion program is scheduled for completion by Walt Disney World in 1983 and the annual attendance is expected then to increase dramatically. Sea World, located across the Beeline Expressway from the convention hotel, is Florida’s second most popular tourist attraction, currently attracting approximately three million persons annually. The 1980 annual tourist report also indicates that of ten leading tourist attractions in Florida, four are located in the Orange County area. Numerous other tourist attractions are being developed in this area, including Walt Disney World’s plan of seven hundred acre $100 million Reedy Creek Family Resort, the $170 million Little England Theme Park and a planned $170 million movie studio attraction to be built by MCA/Universal Studios.

The Orange County tourist development plan for the convention/civic center was approved by the voters and tourist development tax revenue bonds were issued by Orange County to finance construction of the convention/civic center. The specific site of the convention/civic center consists of seventy acres adjacent to the intersection of Interstate 4 and Beeline Expressway located within the Plaza International, a totally planned tourist/commercial development area. Plaza International will include various lodging and entertainment facilities, restaurants and retail/commercial centers all designed to complement and serve the convention/civic center. The convention hotel is part of the convention/civic center plan.

The proposed convention hotel is located on a 3.83 acre site within Plaza International, and less than a nine minute walk from the convention/civic center itself. It is expected to employ approximately sixty-five people. The convention/civic center development plan is based on the construction of larger facilities that are to provide accommodations for people attending the convention/civic center. Records show that the availability of lodging facilities within a short distance of the convention/civic center is vital to the success of the convention/civic center yet at this time, there are no such facilities located within the development area.

In this appeal the state concedes that the proceedings taken authorizing the issuance of the bonds were proper and raises no procedural argument regarding those proceedings. The state argues that the 1980 amendment to Chapter 159 part II, Chapter 80-287, Laws of Florida, is unconstitutional in that it provides that lodging facilities in connection with a convention center may be financed with industrial development revenue bonds.

Chapter 159 part II, Florida Statutes is known as the Florida Industrial Development Financing Act. In section 159.26 the legislature made a finding that “agriculture, tourism, urban development, and health care industries, among others, are vital to the economy of the state and the welfare of the people and need to be enhanced and expanded to improve the competitive position of the state.” The legislature also found that the purposes to be achieved by such projects and financing of them are public purposes and that such purposes implement the purposes of government under the state constitution of providing for the health, safety and welfare of the people, including “implementing the purpose of Section 10(c) of Article VII of the State Constitution.” Section 159.27(5) specifically states that a “ ‘[pjroject’ means any capital project comprising ... a convention or trade show facility . .. and all appurtenances and facilities incidental thereto, such as . . . public lodging and restaurant facilities

The state argues that the above projects added by the amendment, chapter 80-287, are not enumerated in Article VII, Section 10(c) of the Florida Constitution and the issuance of bonds for a convention hotel has not yet been found by this Court to be constitutionally permissible. The state concedes that the credit of the state, Orange County, the authority or any political subdivision thereof is not pledged to the repayment of these bonds. Nonetheless, the state questions whether the authority’s position can be sustained.

Under the provisions of Florida Constitution Article VII, Section 10 an agency of the state is prohibited from using its taxing power or credit to aid any corporation, association, partnership or person. However, the legislature may enact laws authorizing the issuance of “revenue bonds to finance or refinance the cost of capital projects for industrial or manufacturing plants to the extent that the interest thereon is exempt from income taxes under the then existing law of the United States . . . . ” Art. VII, § 10(c), Fla.Const.

In State v. City of Miami, 379 So.2d 651, 653 (Fla.1980), we said:

Article VII, section 10, of the Florida Constitution prohibits a municipality from lending or using its credit to any private enterprise. When public revenue bonds are used to finance a project other than those described in section 10(c), the particular circumstances must be considered in determining whether the lending or use of public credit for the project is contemplated. The validity of the proposed public revenue bond financing project depends on whether the bond issuance serves a paramount public purpose. See Nohrr v. Brevard County Educational Facilities Authority, 247 So.2d 304 (Fla.1971). If the bond issuance serves a public purpose, then even an incidental benefit to a private entity will not negate the public character of the project. See Gate City Garage, Inc. v. City of Jacksonville, 66 So.2d 653 (Fla. 1953). In addition, this Court has previously held that it is “impossible to conceive of a public improvement which will not incidentally benefit some private individual .. . engaged in private enterprise for private gain.” See State v. Board of Control, 66 So.2d 209, 210 (Fla.1953).

In State v. City of Miami, the Court approved revenue bonds to finance a convention center and garage. We held that the “convention center-garage does serve a valid public purpose.” In the City of Miami, the city had entered into various agreements to construct a convention center and parking garage and part of the project was an arrangement with a private developer to lease to the developer certain properties for the purpose of constructing and operating a hotel and other facilities. We upheld the authority of the city to issue the revenue bonds to finance the entire development. Although the bonds in the City of Miami case were issued under the municipal home rule powers act, Chapter 166, Florida Statutes, we specifically focused on whether the proposed projects served a paramount public purpose. We noted that incidental benefits accruing to the developer of the convention hotel were not so substantial as to tarnish the public character of the convention center.

The legislature in essence codified the City of Miami decision by the 1980 amendment to the Florida Industrial Development Financing Act. The amendment, which is now under attack, provides that a hotel in connection with a convention center is an eligible project.

When the legislature makes a determination of public purpose, a party challenging such a legislative determination must show that such determination “was so clearly wrong as to be beyond the power of the Legislature.” Nohrr v. Brevard County Educational Facilities Authority, 247 So.2d 304, 309 (Fla.1971); see also State v. Miami Beach Redevelopment Agency, 392 So.2d 875 (Fla.1980); State v. Housing Finance Authority of Polk County, 376 So.2d 1158 (Fla.1979).

The record reflects that the convention hotel will play a significant role in the development and success of the convention/civic center by providing accommodations for people attending the convention/civic center. The convention hotel is located within a short walking distance, thus making it easily accessible to people attending the convention/civic center.

The record reflects that Days Inn is a nationally recognized leader in the industry, and the convention/civic center will not succeed unless and until companies like Days Inn are encouraged to build hotels or motels near the convention/civic center. Moreover, Days Inn provides moderately priced facilities to provide the necessary mix of room prices.

The trial court in its findings included in the final judgment of validation said:

The Project as defined in the Inducement Resolution is a capital project for an industrial or manufacturing plant, consisting of a motel facility, within the meaning of Article VII, Section 10(c) of the Florida Constitution, and a “project” within the meaning of the Act, as amended.
The Project serves a paramount public purpose and there is no direct or indirect undertaking by Plaintiff or any other public body to pay the Bonds from public funds. Therefore, even if the Project is not an industrial or manufacturing plant within the meaning of Article VII, Section 10(c) of the Florida Constitution, the Legislature was authorized by the Florida Constitution to amend the Act with the 1980 Amendment and to provide for the financing of the Project by the issuance of industrial development revenue bonds.
Further, the Project consists of a public lodging facility as defined in s. 509.242 and a restaurant facility as defined in s. 509.013(5) whose primary purpose is to provide service in connection with a convention center, another qualifying facility as set forth in Section 159.27(12) of the Act. The Project’s connection with the Orange County Convention Center is so integral that it may be deemed to be a part of a convention center and therefore authorized by the Florida Constitution.

The primary purpose of the project is to provide services to a convention center which is a facility that qualifies under the Florida Industrial Development Financing Act and the Florida Constitution. The final judgment of the trial court validating the proceedings taken in connection with the issuance of the bonds and the authority’s power to issue the bonds is affirmed.

It is so ordered.

OVERTON, ALDERMAN, McDONALD and EHRLICH, JJ., concur.

BOYD, J., dissents with an opinion.

SUNDBERG, C. J., dissents.

BOYD,

Justice, dissenting.

I dissent from the decision of the Court approving the proposed bond issue. For the reasons stated in State v. Osceola County Industrial Development Authority, No. 61,-205 (Fla. June 3, 1982), I find that the project to be financed is not an authorized project under the Florida Industrial Development Financing Act.

The majority finds statutory authority for the proposed project because an authorized “project” is defined in the act to include “a convention or trade show facility . . . and all appurtenances and facilities incidental thereto, such as . . . public lodging and restaurant facilities.” § 159.27(5), Fla. Stat. (1981). The instant project, however, is only a motel. The statute contemplates that a motel may be financed as part of a larger project financed pursuant to the statute. But a “public lodging and restaurant,” standing alone, is not authorized as a project under the statute.

The majority opinion seeks to justify its decision on the ground that the motel is being constructed in connection with a convention facility or civic center. But this convention facility or civic center is a separate project. Its financing is not before the Court in this proceeding. The act contemplates bonded financing of “public lodging and restaurant” facilities only as a part of a “project” involving the development of a separate facility such as the one the majority refers to. The motel is not a facility or appurtenance incidental to a convention or trade show facility in the sense required by the statute. Viewed separately and standing alone, the motel is not an authorized project and may not be financed under the act. State v. Osceola County Industrial Development Authority, No. 61,205 (Fla. June 3, 1982).

For these reasons I dissent and would reverse the order of validation.