Longtime judge Richard Orfinger retiring from appeals court in Daytona Beach

Retiring 5th District Court of Appeal Judge Richard Orfinger said that judges did their jobs in the wake of the national election as outgoing President Donald Trump and his supporters challenged the results showing that Joseph Biden had won.

“Recent experiences have shown us that democracy is fragile,” Orfinger wrote in an email to The News-Journal. “Judges across the country, both those appointed or elected by Republican or Democratic administrations, demonstrated fidelity to the rule of law when they considered the numerous lawsuits brought after the election and did their jobs. They asked simply what law and more importantly, what evidence, supports the allegations. And they acted as important guardrails protecting our democratic institutions.”

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Orfinger, 68, retired effective Sunday after 30 years on the bench, first as a judge in the 7th Circuit, which covers Volusia, Flagler, St. Johns and Putnam counties, and then on the 5th District Court of Appeals in Daytona Beach.

Orfinger’s retirement was surprising coming soon after a retention election in November in which 71% of voters cast ballots to retain him at the 5th District Court of Appeals in Daytona Beach. That 71% was about the same support other judges up for retention received.

Orfinger said in a phone interview that the timing of his departure soon after the retention election was due to his miscalculating his retirement date related to his state pension. He said he needed to stay on the bench a little longer.

Appellate judges are appointed to their seats and then are in retention elections in which they do not face an opponent, meaning regardless of how and when Orfinger left office the governor would appoint his replacement.

Retention election provides judges more independence, although not nearly as much as federal judges who are appointed for life.

"Judicial independence is the reason the founders gave federal judges life tenure — they did not want the judges to worry about pleasing the crowd or losing their job because of a decision," Orfinger wrote in an email.

He said judges have to put aside any personal thoughts they have on decisions they make.

"Like all human beings, judges come to the bench with their own life experiences and biases. But we must be intellectually honest, recognize our own biases and, to the extent possible, put them aside and make decisions based solely on law and fact," he wrote.

While Orfinger is retiring he is not stopping work completely. He plans to become a certified mediator in civil and appellate work at Upchurch Watson White & Max, which according to its website is an association of professional mediators based in Florida and Alabama.

He is also looking forward to more family time.

"I have two grandchildren that live just down the street from me and I plan on spending a lot of time with them," Orfinger said. "They are only 2 and 4 years old, so I have a great time with them. They like to spend time with their grandpa.”

A long line of judges

Orfinger comes from a family of judges. His younger brother, Mike Orfinger, is a circuit judge in Daytona Beach. His father, Melvin Orfinger was a circuit judge in the 7th Circuit and then was appointed to the 5th District Court of Appeal when it was created in 1979. The appeals court handles cases from a large section of central and northeast Florida, including Volusia, Flagler and St. Johns counties.

Melvin Orfinger served on the 5th DCA as a judge and then as a senior judge until he was 85. He died at age 87 in 2009.

Richard Orfinger said it was great having his father serve on the appeals court at the same time he did, although they would not serve together on a panel hearing an appeal.

"We had an internal rule that we would never sit together, because we didn’t want it to look like the family business," Orfinger said. "So we never sat on cases together. But it was always a joy to have him to bounce ideas off of."

Richard Orfinger served as a circuit judge on the 7th Circuit from 1991 to 1999 and served as the chief judge from 1996 to 1999. In 2000, Orfinger was appointed by then Gov. Jeb Bush to the 5th DCA. He served as the appeals court's chief judge from 2011 to 2013.

Orfinger “was instrumental in transitioning the court from paper records to an all-electronic environment,” according to a press release from the 5th DCA.

“For more than four decades, Judge Orfinger has provided the local and state legal communities with his sound judgment, leadership and professionalism. We will miss his knowledge, dedication and experience at the court,” 5th DCA Chief Judge Kerry Evander said in a statement in the press release.

Orfinger returned the compliment.

"My greatest joy is I’ve worked with a great group of judges both as a circuit judge and as an appellate judge and a lot of great lawyers," he said. "I was honored."

Like most proceedings in other courts, the 5th DCA has been conducting its hearings via Zoom.

The appellate court has seen about a 35% reduction in cases since 2019 because trial courts aren’t able to conduct trials due to the pandemic, so there are less cases to appeal, Orfinger said. But that will eventually change.

“There’s this great big bubble that’s building up in the trial courts because of the pandemic that at some point is going to explode,” Orfinger said. “And you got all these people waiting for civil trials, for criminal trials and there’s going to be a huge backlog that has to be worked through.”

And the appeals court may have to work through that backlog with less people, because the entire court system has been asked to project a budget cut of 8.5% to 10%, Orfinger said.

In the court system, 90% of the cost is people, and the only way to cut the budget by that amount is to let go of people, Orfinger said.

“So you’ve got fewer people but this huge bubble of work,” he said.

As the process to replace him begins, Orfinger said judges must keep in mind to what their allegiance is.

“There is no truly apolitical way to pick judges as politics are involved whether a judge is picked by the president/governor or elected,” Orfinger wrote. “But as judges, our allegiance should be to the Constitution and the rule of law and not to the person or party who appointed us or to any special interest group that may like or dislike a particular decision."

Orfinger added: "As judges, we must do our best not to be Republican or Democratic judges, but simply to be judges who do our best to follow and, when necessary, interpret the law."

Applicants for seat on the 5th District Court of Appeal in Daytona Beach.

Sixteen people are scheduled for interviews on Monday and Tuesday with a committee which will select finalists whose names will be forwarded to Gov. Ron DeSantis, who will select the person to fill the opening on the 5th District Court of Appeal. District court of appeal judges earn $174,641 per year and run in retention elections. Circuit court judges and county court judges earn $165,509 and $156,377 a year respectively and could be challenged in elections. Judges serve six-year terms. Attorneys and county and circuit judges who have applied to fill the seat vacated by retiring 5th District Court of Appeal Judge Richard Orfinger are:

Circuit Judge Tesha Scolaro Ballou in Titusville

Putnam County Judge C. Joseph Boatwright II in Palatka

Circuit Judge Melanie F. Chase in Sanford

Circuit Judge Vincent S. Chiu in Orlando

David J. D'Agata, general counsel for Florida Virtual School in Orlando

Circuit Judge Mary G. Jolley in Daytona Beach

Jill Ellen Kelso, attorney and regional appellate coordinator, location redacted

Circuit Judge Howard O. McGillin Jr. in Palatka

Orange County Judge Adam McGinnis in Orlando

Katherine Hurst Miller, attorney in New Smyrna Beach

Joshua Aaron Mize, attorney in Winter Park

Therese Ann Savona, attorney in Orlando

Circuit Judge Michael G. Takac in Tavares

Circuit Judge Keith F. White in Orlando

Orange County Judge Carly S. Wish in Orlando

Carrie Ann Wozniak attorney in Orlando

This article originally appeared on The Daytona Beach News-Journal: Longtime judge Richard Orfinger retiring from appeals court in Daytona Beach

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