The scoop on that clerk of court thing

by Kemp Brinson

UPDATE: I got an e-mail from the trial lawyer’s section of the Florida Bar that contains an endorsement of these reforms by the chief judge of the twelfth circuit. So it appears that this is at least partly driven by a desire by judges for more control over their files. I wholeheartedly agree with the sentiment, but not the method. This effort seems too devoid of practical specifics to be helpful. Maybe the attempt will eventually result in a more carefully designed solution.

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If you haven’t been paying attention, you may not have noticed that there is a bill floating around the Florida Legislature that would bring the clerk of court functions in Florida state courts under the umbrella of the judicial branch. I was a bit surpised to see this crop up, as it was not something I would have predicted would happen, but since it’s out there, let’s discuss it.

I. The Current System

II. The New Bills

III. The Analysis

IV. The Players

V. Further Reading

I. The Current System

Currently, the Clerk of Court is an office established by the Constitution of the State of Florida (Art V, Sec. 16)for each county. The clerk has two primary functions: First, the clerk is the official record keeper for court system. The clerk keeps track of all the case files and performs about a gazillion different jobs as part and parcel of that (collecting fees, managing the registry of the court, tracking filing of bonds, conducting foreclosure sales, reviewing accountings, entering default judgments, etc., etc., etc.). In addition, the clerk of each county is the official record keeper and money manager for the county commissioners. They keep minutes of commission meetings, perform audits, and keep the official records (such as real estate records) for the county. 

The Clerk of Court is completely independent of the judiciary. This creates some interesting Kafkaesque moments sometimes, but in general it works out. For example, if you want to schedule a hearing with a judge, you have to call the judge’s office to schedule, but then you file your notice with the clerk’s office. If you want to file a motion for the court to consider on an expedited basis, you have to file it with the clerk, but you have to send a courtesy copy to the judge, because otherwise it will take some time to make it from the clerk’s office upstairs to the judge.  It takes some getting used to and seems to create unnecessary steps, but it works. 

The Clerk and his/her staff are, as far as I know (and I could be wrong) supported entirely from their fees. In other words, except to the extent that your tax dollars help provide facilities at the courthouse, the Clerk’s office pays its own way. In fact, if there is leftoever money at the end of the year (and there often is), the Clerk writes a check back to the state. The Clerk, an elected official, is answerable directly to the public, and not to the judges of the court.

There is a completely separate and smaller office known as the Court Administrator for each cicuit (circuits sometimes include more than one county, depending on the population of the counties).  The Court Administrator is appointed by the judges of the circuit. You can think of the administrator as being sort of the uber office manager for the entire circuit. They handle things like making sure the judges’ offices are staffed and equipped properly, dealing with court reporters and process servers, managing mediators, and acting as a liason with the clerk’s office and the county.  Court administrators let the judges focus on judging instead of administrating. 

II. The New Bills

The new bills, HB 1121 and SB 2108 would move a number of the functions of the clerk of courts and place them under the authority of the judges directly. In practice, this means that they would become a function of the court administrator in each circuit. The transferred duties listed in the bills are:

  1. Case maintenance. 
  2. Records management. 
  3. Court preparation and attendance. 
  4. Processing the assignment, reopening, and reassignment of cases. 
  5. Processing appeals. 
  6. Collection and distribution of fines, fees, service charges, and court costs. 
  7. Processing bond forfeiture payments. 
  8. Payment of jurors and witnesses. 
  9. Payment of expenses for meals or lodging provided to  jurors. 
  10. Data collection and reporting. 
  11. Processing jurors. 
  12. Determinations of indigent status. 
  13. Keeping progress dockets. 
  14. Disposal of evidence. 
  15. Pro se assistance.

This includes most of the core functions of the clerk associated with their court duties (as opposed to county duties).  The stated purpose of the change is to save money and eliminate duplication. For example, because many circuits have more than one county, moving the duties of the clerk under the judicial umbrella will consolidate some functions in muli-county circuits. 

III. The Analysis

My take: This is a very bad move in a somewhat good direction. 

Management of a modern court system is an appallingly complex thing. There are millions of pieces of paper that have to get shuffled around properly or people (quite literally) get hurt, get in and out of jail, get assessed fines, get judgments entered for and against them, and any number of other momentous things. It’s a difficult job that has to be done correctly. 

The new bills create monumental changes to this vital system. Passage would result in a complete reorganization of our local court system. A properly conceived attempt at something like this would take joint committees of legislators, clerks, administrators, judges, and attorneys and lots of grit, spit and duct tape. I would imagine the finished product would be lengthy, extensively cross-referenced, and carefully drafted to minimize headaches associated with a transition. 

Instead, this bill is all of ten pages long (double spaced), and eight pages of that is devoted to describing who gets to keep and use the various fees charged for court services. That leaves two double-spaced pages explaining how this whole new system is going to work. Yeah, right, like that’s going to work. 

One positive change noted is that excess fee revenue is deposited into a trust fund to help support the court system (I presume this includes things that typically fall under the court administrator’s functions). This is a logical and sorely needed reform, but this is a hasty and ill-conceived effort to get there. 

Personally, I would support an effort to streamline the way in which the judiciary interacts with the clerk and the public. There is too much bureaucracy at the courthouse and too much time spent running back and forth between the clerk and the judge to get anything done. Reforms that make this relationship more invisible to the public are needed. There are probably ways to make the clerk’s office run on less money. I see no way in which moving those functions from one office to another without further direction is really going to help. Will judicial oversight magically make things run more cheaply?

Lawyers (and hence, judges) are notoriously bad managers. In general, I don’t think giving them any jobs to do that take them away from their core duties as judges will serve the public well, but I remain open to the possibility that the clerk may need to be more answerable to judges in some way. But not like this. 

I am also concerned about the extent to which, in the future, this move will enable the legislature to view the entire judicial branch as self-sustaining. (“You have all those clerk’s fees now, why do you need more money to hire magistrates?”) This would be bad. 

IV. The Players

This whole thing is all about…. drum roll please….. Bdddddddddddddddddddddddddd….. MONEY! (I know, a shocker).  I am not sure what to make of all this. Maybe the Clerks have hidden behind their constitutional authority to avoid legislative tinkering with their system, and this bill is designed as a wake-up call. Maybe there is some sort of judge/clerk money fight going on somewhere and this is a biproduct of that. I don’t know. Whatever it is, I hope this bill is not something our representatives take seriously. It deserves to die in committee. 

Florida clerks have taken very outspoken positions against this bill. Our local clerk has even posted his own website about the bill (see links below) and put prominent notices up about his disdain for it. As far as I know, judges have been pretty quiet, although the Supreme Court has endorsed the limited principal of putting excess fees into the court trust fund instead of contributing them to general revenues. I am not aware of a core constituency vocally supporting this reform anywhere. If one emerges, it’s identity should tell us more about what’s really going on here. 

The Clerks are doing a bit of fear mongering, pointing out the grave injustices that could result if their crucial check on the judicial system is eliminated. The truth is that federal and state clerks all over the country operate under the supervision of the judges without a lot of problems, so I don’t really buy this. 

V. Further Reading

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