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Clerks Aren't A Government Branch

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By JOSEPH P. FARINA

Special to The Tampa Tribune

Published: March 28, 2009

The purpose of this letter is to clarify misconceptions being circulated by opponents of SB 2108 and HB 1121 - two bills that deal with court funding and are now before the Florida Legislature.

FICTION: These bills are a "money grab" by the courts and would take all fines, fees and court costs collected by the clerks and redirect them to the courts.

FACT: All court-related revenues, which are assessed by judges, paid by the public and merely collected by the clerks, would be directed to legislative budget committees, and thereafter appropriated to state trust funds, under the control of the Legislature, to be distributed to entities within the justice system, including the courts, state attorneys and public defenders.

FACT: Currently, all revenues collected by the clerks are kept by the clerks to fund their budgets, which are managed internally by the clerks, without any direction or control by the Legislature. Any excess funds not needed by the clerks are then returned to the state's general revenue fund. The clerks are the only state-funded entity permitted to manage public dollars without legislative oversight.

FACT: While all other entities receiving state funds - including public schools, police departments and social service agencies serving the state's most vulnerable citizens - have been forced to lay off employees and cut back on critical public services, the clerks have been hiring and handing out bonuses to their employees, as recently acknowledged by John Dew, executive director of the Clerks of Court Operating Corporation, during a House Criminal and Civil Justice Appropriations Committee meeting in Tallahassee.

FACT: Recognizing the need to end the clerks' inequitable budgeting and spending practices, the Senate Judiciary Committee on March 18 voted unanimously in favor of SB 2108, which states in part: "The Legislature finds that, in order to enhance accountability and efficiency in state funding of court-related functions ... it is necessary to provide for the appropriation of revenues from fines, fees, service charges, and costs to the clerks of court through the appropriations act. It is, therefore, the intent of the Legislature to facilitate the orderly transition from the current clerk budgeting process ... to the legislative appropriation of funds... (emphasis added)."

FICTION: These bills are a "power grab" by the courts and would place all court records under the control of judges. The clerk's office would cease to exist, and hundreds of employees would lose their jobs.

FACT: Under state law, the clerks provide ministerial functions related to record-keeping for the courts, and those functions are already under the control of judges. Accordingly, only the clerks' court-related functions are under consideration for transfer to the courts - all other county-related duties and responsibilities would remain intact.

Clerk employees who provide record-keeping functions in court would have the same job, only funded by the state.

FICTION: The clerks are constitutional officers and provide a "check and balance" on the judiciary.

FACT: The Florida Constitution provides that a publicly elected clerk shall exist but lets the Legislature define the clerk's functions and duties. The only entities authorized under the Florida Constitution to serve as a check and balance on Florida's judicial branch are the legislative branch and the executive branch. There is no fourth branch known as the clerks.

SB 2108 and HB 1121 are an attempt to bring the public dollars merely collected by the clerks into the same legislative funding process that all other state entities participate in every year. All public dollars should be accounted for and distributed by the Legislature, the public's elected representatives.

Joseph P. Farina is completing his 14th year as chief judge of the Eleventh Judicial Circuit (Dade County), the state's largest trial court. He also chairs the statewide Task Force on Judicial Planning.

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