The Florida Bar News - March 15, 2011

Courts and clerks work to keep the doors open

By Jan Pudlow
Senior Editor

Hit with a cash flow crisis caused by a dramatic drop in foreclosure filings, Florida’s courts and clerks are working together to hammer out an agreement with the Senate, House, and governor for emergency funds to keep the courts open.

The current cash shortfall for the courts is $72.3 million and $51 million for the clerks, according to official numbers released February 18 by the Art. V Revenue Estimating Conference.

“The courts are running out of money, and if we run out of money, we cannot keep our doors open,” said 10th Circuit Judge John Laurent, chair of the Trial Courts Budget Commission.

“It’s important we keep the doors open. One reason is access to justice, and one is public safety. I don’t think we could go for several months without a court system. No, that’s not an experiment we want to participate in.”

Judge Laurent said March 2 that the issue will not be resolved by March 4, when this News went to press, but that “it’s got to be resolved in the next couple of weeks.”

Trying to cut $72.3 million from what remains of the 2010-11 fiscal year’s state courts’ $467 million budget, he said, “would be catastrophic.”

State Courts Administrator Lisa Goodner said the shortfall will bring the State Courts Revenue Trust Fund balance to zero by the end of March.

Without emergency dollars there would be no choice but to furlough employees in the court system.

Judge Laurent said he does not expect that worst-case scenario to happen, but the clock is ticking as the Office of the State Courts Administrator, Chief Justice Charles Canady, the court budget commissions, and the clerks continue to talk to legislative and executive branch leaders at the Capitol.

“We need to get the House, Senate, and the governor to agree on something,” Judge Laurent said. “This is last year’s budget, and they are focused on this year’s budget. . . . The Legislature is facing a very difficult situation, but they have been responsive. They are not stonewalling us or playing chicken with us. Different people have different ideas on how we resolve this. We’ve got to get the i’s dotted and t’s crossed with the House, Senate, and governor.”

Money for Florida’s appellate courts is so tight right now that all travel has ceased; no more senior judge days are being used; Law Day activities for high-schoolers have been canceled; and there’s a hiring freeze, said 5th District Court of Appeal Chief Judge David Monaco, chair of the DCA Budget Commission.

“We are scraping so close to the end now, if something goes wrong, we can’t fix it. We don’t have any reserves to fix it,” Monaco said, stressing they are spending within their budget, but sufficient revenues are not coming in as expected.

“I am just holding my breath one of the air-conditioners doesn’t go on the fritz. We have leaking skylights we can’t fix. We pray for sunshine.”

He’s also praying for a cash infusion before money runs out at the end of March.

What if emergency funding does not arrive in time?

“That’s a very eerie prospect. And that means closing the doors,” Monaco said.

“I’ve already got a couple of courts talking about shortening their day so they don’t have security guards. It’s at that level. This is not a joke. There seems to be a perception that government is bloated. Not in this branch. There is no spare money around.”

The good news, he said, is that legislators working on the problem “have been very fair with the branch over the years. I have high optimism we will get some relief. The question is whether that will be sufficient. We are hoping that message that there is a need will be understood loud and clear.” Goodner called the crisis a “dynamic situation” changing every day. She is working with Chief Justice Canady on a plan to present to the Legislature when it convenes March 8.

“We’ve got to get it resolved before the March payroll runs,” Goodner said.

“And the clerks are in the same boat.”

Sarasota County Clerk of Court Karen Rushing, legislative chair of the Florida Association of Court Clerks and Comptrollers, said the clerks, like the courts, must grapple with dealing with a shortfall to a budget that is more than 80 percent payroll.

The appropriated amount for the clerks’ budget this fiscal year is $451.4 million. However, the most recent estimate from the Art. V Revenue Estimating Conference would reduce the available funding for the clerks’ budgets to just over $400 million.

Already, Rushing said, some clerks’ offices, including her own, have had to furlough employees.

“This would mean additional furloughs. That is the case in my office each month. We have to look at whether we will furlough or not. We’ve been dealing with furloughs for two years. It’s difficult when your workforce is primarily clerical staff to cope with those kinds of things,” Rushing said.

The declining foreclosure filings are the largest contributing factor, Rushing said. But an anomaly is that people think if business is shrinking, so should expenses for the clerks.

“The problem with that theory is that business didn’t shrink. The existing (foreclosure) cases became more complex. A foreclosure used to be: file a complaint, serve papers, go to court, get a judgment, have a sale, and issue the title.

“Now, with all the controversy with documentation, it’s get canceled, reschedule, get a sale, cancel, reschedule. And that is all work that has to be done by the clerk.”

While the courts hired senior judges to deal with the foreclosure backlog, and are trying to hear as many cases in a day as they can, “from a clerk’s perspective, to get 400 to 500 cases in one day is impossible. . . . It’s the equivalent of taking a dump truck full of dirt and plopping it in the office,” Rushing said.

The courts and clerks may have competing interests on dealing with the foreclosure backlog, Rushing said, but the clerks are “excited to partner with the court” to get emergency funding to resolve the current cash-flow crisis.

“The clerks of court couldn’t be more pleased with the chief justice. He is an eloquent speaker, a thoughtful person, and he has been encouraging to the clerks that we will be able to work together to come to the best solution, because we are serving the same people.”

Gauging whether working together will pay off is difficult, Rushing acknowledges.

“When asking for money in an environment where there is none, it is hard to anticipate and hard to say right at the moment what it will mean. We hope it means there will be open minds and ears and true conscientiousness not to shut access to the courts,” Rushing said.

“In my view, the worst-case scenario would be the civil bench shuts down except for a true emergency. And the criminal courts would take precedence,” Rushing said, because of due process and public safety reasons.

“That is the worst- case scenario. That will be the call of the courts, not the clerks. . . .

“My big thing is I’m sworn to uphold the laws and the Constitution. And if I don’t have the ability with the resources to do that, I’m in a pretty precarious situation. And it’s not a comfortable situation to be in.”

Rushing has been in Tallahassee lobbying the Legislature every other week since January.

“I can’t say anything with any degree of certainty that’s positive,” Rushing said. “What I could say is that I hope that access to justice is something that the people in the Legislature respect and will do everything they can to make sure people have access to it.”

Goodner agrees that is the main message she hopes legislators and governor hear.

“Preserving access to the court system is critical. This is not a pain that would only be felt by judges and the court staff,” Goodner said.

“It would be felt by every citizen walking into a courthouse trying to conduct business and trying to exercise their constitutional rights every day.”