By Jan Pudlow
He is 94 years old and walks with a cane, but Richard Ervin still isn’t ready to retire.
Each weekday morning, the former Attorney General and Florida Supreme Court justice sits behind his desk at his brother’s law firm in downtown Tallahassee, bends over law books, keeps up with changing laws and contributes legal research to appellate briefs.
That’s where he’s been working since his 70th birthday, one of Florida’s first victims of the 1972 mandatory retirement provision that set an age limit for judges.
“Yes, it did shorten my time in the law a great deal,” Ervin said a bit wistfully, at his office filled with a lifetime of mementos, across the hall from where the late Governor LeRoy Collins once worked with him after public service, too.
Atop Ervin’s desk rests a five-volume set of his opinions that number more than 600, testament to 11 productive years on the bench from 1964 to 1975, and 220 dissents that speak to a justice who was ahead of his time.
In 1975, the law said his time on the bench was up.
“I could have stayed on maybe five or six years or more without my product being dimmed by old age memory. But maybe it’s best for our justice profession to cut people off before they become old dodderers,” he said with a smile, the first lawyer in a family now filled with lawyers.
Just then, his younger brother, Bob Ervin, founding partner of the Ervin, Varn, Jacobs, Odom and Ervin law firm and former Florida Bar president, popped in to add a playful brotherly jab: “Yes, he became constitutionally incapacitated, mentally retarded according to the constitution.”
Justice Ervin is living proof that age is nothing but a number. He may be nearing the century-old mark, but his sharp mind still plucks from memory opinions he wrote long ago that are still cited today.
Even with his remarkable resume that spans helping create the Florida Highway Patrol and wayside parks in the ’40s to running racetrack bookies out of Miami in the ’50s to helping peacefully guide Florida through school desegregation into the ’60s and writing dissents that later became the law of the land, Justice Ervin remains humble.
“Well, I have some experience, yes ma’am,” he said softly.
He has his father to thank for his polite ways and quiet drive to excel.
“My father told me to say ‘yes, sir,’ and ‘no, sir,’ and to ‘honor your father and mother’ and to ‘study, study, study hard during a time period every day if you’re going to make your grades.’ And he used to tell us: ‘Hit the road and make a dollar!’”
His father, a farmer, a country store proprietor and a roving high-school principal, taught his son to love the written word.
“My father fed me on Shakespeare,” Ervin recalled, and instilled in all seven children the value of an education.
Justice Ervin, who was born in Carrabelle where his father once taught school, went to law school at the University of Florida in 1925, back in the day when a career in the law was strictly for men.
“There were no women. That is significant,” Justice Ervin said. “I thought about that the other day, with all of the women lawyers we have here in Tallahassee. I joined their association, because I thought it was very, very wonderful that women have come into the legal profession.”
After serving as a lawyer in many capacities, including general counsel with the state road department and with the Florida Public Service Commission, Ervin decided to give politics a try in 1946, filing for Attorney General.
Bob Ervin, who had just left the Marine Corps as a major, and was returning to law school, agreed to be his big brother’s campaign manager.
“As a retired veteran, he just told his friends, and he told them to get to work, and they were afraid not to obey him!” Richard Ervin recalled with a chuckle. “He got them to work on my campaign. And Bob kept me on the road day and night. . . . I’ll tell you, that’s my only objection to him. He never got over being a Marine!”
Campaigning for chief legal officer of the state in the ’40s was before television ads could make or break a candidate.
“They couldn’t see how I looked! I didn’t have to show my face,” Justice Ervin laughed.
His campaign strategy included driving throughout the state, blaring music from a big horn mounted on top of his car.
“I put Eddie Arnold on: ‘Anytime,’ ‘Cattle Call,’ ‘I Walk Alone,’ and some of the other great singers of the time,” Justice Ervin recalled of his political stumping musical accompaniment. “Then I’d go into the small towns, and where I could get a permit, I’d have a little rally at the courthouse square and talk over a loud- speaker to anybody who would listen to me.”
What was his platform?
“I had the experience, and we were going to serve good government and carry on the people’s type of operations, that their rights would be vindicated, so far as the state was concerned while I was Attorney General. That was about it.”
Little brother and former campaign manager Bob Ervin interjected: “And that worked. It was a totally different environment then. . . . Dick’s experience and his broader circle of acquaintances, I think, gave him an edge, and it worked out very nicely.”
As retired Supreme Court Justice Joe Boyd, Jr., tells the story, when Ervin ran for Attorney General, the folks in his hometown of Fellowship, near Ocala, decided to celebrate Ervin’s victory the night before the election.
“They had a local orator who was supposed to make an introduction of local hero, Dick Ervin,” Boyd said. “But the orator got a real bad cough and couldn’t talk. So they had a farmer from Fellowship introduce him instead. And that farmer got up and said: ‘Well, ain’t much new I can say about Dick Ervin. He’s one of us. Everybody here has either “et” with or slept with Dick Ervin at one time or another.’”
Boyd let out a belly laugh and said, “I take him to the Lion’s Club with me. He knows everybody since Moses. He is a person who can walk with kings and queens and with common people, and they will all like him.”
‘Unmatched as a Public Official’
As Governor Collins once described Ervin: “He was a man possessed by great ideas and his whole life has revolved around them up to this day. He is a man with a deep sense of love for his fellow man, especially the one who, for whatever reason, has become a societal underdog. He is democratic to the core. Nothing in this man’s thinking or beliefs has even the slightest tinge of elitism.”
David Kerns, who became top lawyer at the state road department when Ervin left that job to become Attorney General, has remained a longtime friend.
Kerns recalled how even after Ervin was elected Attorney General, he and his wife, Frances, and their children lived in a “modest little cottage” at the corner of Franklin Boulevard and College Avenue.
“When we moved here in 1949, the town people would mention to us how proud they were a member of their community had become Attorney General. And they always pointed out how modest he was and what high integrity he had and what a fine, humble man he was. They would say: ‘And he has said he will not move to a more sumptuous house until he pays off his campaign debts. He’s taking those campaign debts in their order, and when they’re paid off, then they’ll move.’”
Bob Ervin pondered this question: What makes you most proud of your big brother?
And Dick Ervin piped up: “I wish you hadn’t asked that question! He might not have an answer!”
“Well, certainly his achievements,” Bob Ervin answered. “I hasten to add that philosophically I have some differences with him. I have had some arguments with him. I think the relationship between government and its people should be a little different than he thinks it should be. That does not lessen my affection for him or my respect for him. We came from a family of seven children. We looked up to our parents. And after we lost our parents, Dick was kind of the patriarch of the family.”
And Dick Ervin remains a respected patriarch of Florida’s legal family, too.
“As indicated by the number of his dissents which have since become the prevailing view, he was ahead of his time,” Tallahassee attorney Dean Bunch remarked last year at a ceremony announcing the Justice Richard Ervin Eminent Scholar Chair at FSU College of Law.
“But history has demonstrated that he was on the right track in so many areas.”
As Kerns said: “He has a sterling character, absolute honesty and integrity, high moral and high religious character and excellent legal thinking. And his mind is still sharp and clear at 94.”
Justice Boyd said: “He is an honest and sincere man and he tried very, very hard to reach the proper conclusion on every case. He was a leader and an example for any person who might want to enter government. If they have a record like Dick Ervin produced, they will have done their job.”
And this from George Owen, who worked with Ervin in the Attorney General’s office assigned to handle the gambling racketeering cases, was his next-door neighbor from 1935 to 1950, and still drives Ervin to local meetings of the International Christian League:
“He was a tireless worker. I often think about a passage from Sir Walter Scott’s “The Lady of the Lake,” when a fellow is talking about his hunting dogs: ‘Two dogs, of black Saint Hubert’s breed, unmatched for courage, breath and speed.’
“I think of Judge Ervin in that light. He was unmatched as a public official. He stays with it, courageous in his work and doesn’t run out of gas on these big decisions. He is the best public official I’ve ever met. He didn’t like to turn people aside. He’d stick to an issue if it was in the public interest. That was the dividing line between him and a lot of people in office who might have yielded to the pressure.”
As Attorney General, it fell to Dick Ervin to carry out desegregating Florida’s schools.
“Being an Attorney General after the United States Supreme Court decision in Brown v. Board of Education was not a politically easy place to be,” said semi-retired Justice Ben Overton, who was given his first job out of law school as one of Ervin’s “special assistant attorneys general.”
“He assumed a quiet leadership role, being a moderate in the area, and was particularly interested in assuring that the schools would remain open,” Overton said, adding that Ervin’s leadership expanded to the presidency of the National Conference of Attorney Generals from 1958 to 1960.
But with characteristic modesty, Ervin said of his school desegregation challenge:
“I had good help. I had fine assistance in Ralph Woodham and Dr. Lewis Killian, a sociology professor at Florida State University. They advised me and we set up a committee with members drawn from faculties at FSU and FAMU (Florida A&M University). We studied the question and filed an implementation brief with the court, which the court was kind enough to receive without rejecting altogether. . . . We worked out each case, each school. It turned out remarkably well. We had worked closely with the school authorities, particularly my friend, Tom Bailey, who was state superintendent of schools. He didn’t want the schools to be closed down in any sense of the word. So we worked closely with him and Governor Collins, and we had relatively little trouble. Very few lawsuits. We had some problems with bussing, but not much. Florida had a very peaceful desegregation.”
Wrestling with Death Cases
But death penalty cases proved most difficult for Ervin as a justice.
In his dissent in State v. Dixon in 1973 after the U.S. Supreme Court’s Furman decision, Ervin wrote: “The nation’s highest court recognizes we have come a long way from the rack, the ‘drawing and quartering,’ the headsman’s axe, the public executions, the ‘hanging judge,’ from cruel and unusual punishments. We can little afford to turn back, because it is clear to thinking people that brutality and cruelty at the hands of government soils the fabric of an enlightened nation.”
A deeply spiritual man, Justice Ervin said it was the Bible that helped guide him through many difficult cases, including his death penalty dissents.
Asked if he is against the death penalty, Justice Ervin answered, “Unfortunately, I am. . . Despite the terrible, horrible crimes that are committed resulting in homicide, it just seems to me that we’d be better off as a society not to have the death penalty.”
Why does he say ‘unfortunately’?
“Because it goes against the stream. You get a hard reaction from some people. Some people think the death penalty is a deterrent, a good thing, and if we didn’t have it homicides would be greater. They feel like the only justice is an eye for an eye and a tooth for a tooth. Though the Bible says differently on that. Christ said differently. It’s in the Scriptures: ‘Love your enemies.’”
Justice Ervin added: “And I had the benefit of a great lawyer here in the state of Florida: Toby Simon. Toby used to argue death penalty cases before the court, and he brought statistics of how it was meted improperly on blacks and minorities and so forth.”
Boyd would often join him in dissents on death cases.
“Justice Ervin and I were extremely cautious about putting people in the electric chair. It’s hard to make sure who’s deserving of the electric chair,” Boyd said.
And Boyd described that lonely dissenters’ feeling as “kind of like a distant cousin at a family reunion and nobody knows you.”
But, in another dissent, vindication would come 26 years later for Ervin.
In 1967, Ervin was the lone dissenter in Bencomo v. Bencomo, in which he said a woman who had been beaten by her husband during their marriage had a right to sue him. In 1993, the Florida Supreme Court agreed with Ervin and struck down the interspousal immunity from lawsuits.
“Most of my brethren disagreed with me when I wrote that,” Justice Ervin said. “But this court sitting now finally agreed with me!”
As Ervin says: “Honestly, I did dissent a lot. I was not quite in line with the others. I came from the Attorney General’s office, and I was dealing with people’s rights and people’s problems, and I did dissent a lot over there.”
Justice Ervin said he tried to exercise his conscience within the bounds of the law.
“I really believe, when you get down to it, that you try to do the right thing, the good thing. Don’t cut any corners. Don’t be unethical. Be careful. And treat people right. I don’t care who they are, treat them right: high or low or black or white, treat them right. Be good to them. And that will usually help you in the long run.”
And when he looks back over the long run of his life, his only regret is this: “I think some things I might have been more forthright in, might not have been as political, might have run for Governor.”
So what held him back?
“Well, I never thought I had it. It takes a lot of personality to capture the imagination of the people. My father brought us out of the woods in Fellowship and brought us up here to Tallahassee. I thought I’d better stick in these jobs that I had and raise my family and make my livelihood, rather than run off on a mare’s nest.”
Still, he admitted, a little glimmer in his heart makes him wonder if he could have been a good Governor.
“Yes, but in a way I’m glad I didn’t, because I might have been a flop!”
And he lets out a hearty laugh in the office that keeps beckoning him back, a place that keeps him close to what he’s spent a long lifetime doing: thinking about the law, thinking about what’s fair.