Opinion
No. 44772.
January 4, 1974.
Albert J. Datz, Jacksonville, for Warren A. Nelson.
The Judicial Qualifications Commission has conducted proceedings under Rule 6, Judicial Qualifications Commission Rules, 32 F.S.A., to determine whether Judge Warren A. Nelson, a Circuit Judge in the Fourth Judicial Circuit of Florida, should be involuntarily retired for disability seriously interfering with the performance of his duties, which was or is likely to become permanent in nature. Fla. Const., art. V, § 12, F.S.A.
After an appropriate hearing the Commission made the following findings of fact and conclusions of law:
"FINDINGS OF FACT
"1. Judge Nelson is 51 years of age, having been born on November 19, 1922. He was appointed to the bench as Judge of the Criminal Court of Record of Duval County on June 14, 1967. He has served continuously as a Judge from that time until the date hereof. On January 1, 1973, the effective date of the present Article V of the Florida Constitution, he became a Circuit Judge of the Fourth Judicial Circuit, having been elected to that office at the judicial election of 1972.
"2. On or about September 27, 1972, Judge Nelson suffered a `heart attack' (myocardial infarction) during his term of office as Judge of the Criminal Court of Record. He returned to the bench on or about December 13, 1972. On or about February 27, 1973, he sustained another attack of a cardiac nature during his term of office as a Circuit Judge. Open heart surgery was performed thereafter, but Judge Nelson has not been able to return to his duties as a Circuit Judge.
"3. The Commission finds, based upon the medical evidence presented, that the stress and strain of his judicial duties proximately contributed to the causation of the myocardial infarction suffered by Judge Nelson.
"4. That as a result of the said myocardial infarction and the subsequent open heart surgery, Judge Nelson has sustained a physical disability that seriously interferes with the performance of his duties as a Circuit Judge and that such disability is permanent.
"5. That Judge Nelson should be involuntarily retired as a Circuit Judge of the Fourth Judicial Circuit, in and for Duval County, Florida.
"CONCLUSIONS OF LAW
"1. Judge Nelson should be involuntarily retired for disability seriously interfering with the performance of his duties, which is permanent in nature.
"2. Pursuant to Section 121.091(4) (d), Florida Statutes [F.S.A.], Judge Nelson is entitled to a pension benefit based upon 42% of his average monthly compensation."
The majority of the Commission has recommended that we enter an order of retirement.
From the record it affirmatively appears that the stress and strain of Judge Nelson's duties as a judge proximately contributed to the causation of the myocardial infarction and his resulting disability. We approve the findings of fact and the conclusions of law made by the Commission.
Warren A. Nelson is hereby retired from service as a Circuit Judge on the date of the filing of this opinion, his retirement being by reason of a physical disability of a permanent character incurred in the line of duty and interfering with and preventing the performance of his duties. He is, therefore, entitled to compensation of 42 per cent of his average monthly compensation from the Judges' Retirement Fund in accordance with Fla. Stat. § 121.091(4)(d), F.S.A.
After the date of the filing of this opinion, Circuit Judge Warren A. Nelson, insofar as the relationship of the Court is concerned, is that of a retired judge, and by reason of his retirement there exists a vacancy in the Circuit Court of the Fourth Judicial Circuit, in and for Duval County.
The Court having fully considered this matter and because of its emergency nature, there shall be no petition for rehearing, and this order shall be effective immediately.
It is so ordered.
CARLTON, C.J., and ROBERTS, ERVIN, ADKINS, BOYD, McCAIN and DEKLE, JJ., concur.