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Hernando Today

Shift Clerk Duties To Save Tax Dollars

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DANIEL B. MERRITT SR.

Special to Hernando Today

Published: March 28, 2009

It is important for the public to understand that considerable misinformation has been purposefully disseminated by some clerks of court of the state of Florida as a result of certain legislation proposed this legislative session. The proposed bills seek to remove some duties from the clerks and transfer them to the judiciary and to require the clerks to undergo the same budgetary process that the judicial branch, state attorney, public defender and the remaining entities in state government are required to undergo.

The judiciary and the clerks of court in the Fifth Judicial Circuit have enjoyed an excellent working relationship over the years. We have efficient, exceptionally competent and innovative clerks in our circuit. However, that is not necessarily the case throughout the state.

Statewide, the clerks consistently and erroneously assert they serve as an independent "check and balance" for the judiciary. This is simply not true. There is no check or balance on the judiciary assigned to the clerks by the Florida Constitution or by statute. To think otherwise is a fundamental misunderstanding of the separation of powers doctrine and how our system of government works. The checks and balances are reserved to the three branches of government. The clerks are not a branch of government. The only entities authorized under the Florida Constitution to serve as checks and balances for Florida's judicial branch are Florida's legislative and executive branches.

The clerks' self-serving proclamation of governmental power in the absence of constitutional authority is the ultimate "power grab." This distortion by the clerks is an attempt to garner political support and divert attention from the core issues. There are historical and political reasons, but no logical or legal reasons why court-related functions should not be under the supervision of the branch they serve, subject to such reporting and oversight requirements as provided by general law. The Legislature currently maintains a check and balance for the courts' use of state funds and should continue to do so.

The real issue is one of securing stabilized and adequate funding for the judicial branch through a dedicated funding source. Historically, the judicial branch has been underfunded by receiving only .7 percent of the entire state budget (i.e. less than 1 percent of the entire state budget). The courts' budgets have been repeatedly scrutinized and reduced by the Legislature in the last two fiscal years. The clerks' budgets have not been subjected to the same scrutiny.

The issue the judiciary has with the clerks is not one of "checks and balances" but "checks and bonuses" paid out by the clerks. Most clerks have continued to give employee raises, cost of living increases, merit pay, etc., while the courts (not to mention the private business sector) have been forced to reduce budgets and terminate employees. The Fifth Circuit lost the equivalent of 9 full-time employees. One clerk in South Florida reportedly gave out $800,000 in bonuses.

In round numbers, the judicial branch generates $981 million in revenue for the state consisting of filing fees, fines, court costs and related user fees. Of the $981 million produced by the courts only 2.5 percent ($24.2 million) is dedicated to the courts. The clerk's keep about $550 million of the court-generated funds for their budget.

Unlike the judicial branch, state attorneys, public defenders and other state entities, the clerks' budgets are not appropriated by the Legislature. The clerks report through the Department of Financial Services, not the two chambers of the Legislature. Their budgets are certified by a corporation authorized by law, but comprised of eight elected clerks and a staff of five - the Clerks of Court Operations Corporation. In effect, the clerks certify their own budget. They reportedly send a copy of their budget to the Legislature and to the state comptroller.

The clerks say this process is sufficient scrutiny of their budgets, but scrutiny is not the same as oversight. Currently, the clerks submit their budget yearly for financial review that merely establishes whether dollars were spent in accordance with their planned budgets. That is quite different from the actual legislative oversight that the judicial branch, state attorneys, public defenders and other state entities go through each year.

From the public fees collected by the clerks, the clerks fund their budgets and any balance or excess is transferred to the state's general revenue fund. The funds collected by the clerks are not the clerks' money, just as the fines that judges assess are not the courts' money. All funds collected are public funds - the people's money - and should be appropriated by the Legislature during the Legislature's budgetary process. The clerks should not be singled out and exempt from the legislative appropriation process.

The proposed legislation is not a "power grab" by the courts and does not abolish the constitutional office of clerk of court. Under state law, the clerks provide ministerial functions related to record keeping for the courts and those functions are already under the control of the judges. The clerks' duties are entirely established and defined by statute and court rule. The Constitution is utterly silent as to the clerks' duties in regard to their court-related functions.

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, but would be funded by the state. This is the model of the Florida appellate courts, federal courts and about 15 states.

These are rational and logical ideas that could potentially save substantial tax dollars and are worthy of a mature, impartial and deliberate review and evaluation of clerk functions by the Legislature. To assert otherwise in these austere economic times does not comport with ensuring that the public interest is being best served.

Daniel B. Merritt Sr. is chief judge of the Fifth Judicial Circuit.

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