The Florida Bar

Let the Legislature Study Court Records Handling

By Ben F. Overton & Major B. Harding*

The Florida Legislature is considering a proposal to transfer the administrative responsibility for court records to the courts and away from the locally-elected county clerks. The Legislature is evaluating this proposal.

The Supreme Court supports this Legislative evaluation. We, as former Chief Justices of that Court, believe that this is a logical and rational idea that could save substantial tax dollars particularly in this new electronic era. It warrants a reasoned discussion based on facts. We both believe that trial court record keeping and administrative functions need to be uniform and electronically compatible throughout the state.

Some clerks have reacted, asserting that they are elected constitutional officers who serve as an independent check and balance on the courts on behalf of the people. We wish to emphasize that this is not their function under the Constitution and law of this state. They are the administrative officers for the courts and keeper of court records. Their administrative functions are subject to control by the Chief Justice and the Chief Judges of the lower courts.

Yes, clerks are elected. Yes, they are constitutional Officers, but no, they do not serve an independent check and balance on our courts. They have no judicial function nor can they act contrary to Supreme Court Rules or state statutes on how court records are kept .

The suggestion that they serve as a check or balance on the courts is totally inconsistent with the framework of our State Constitution and the concept of our Founders who articulated the Separation of Powers Doctrine in our U.S. Constitution as a basic tenet of American government. For our state government, the doctrine is established in Article II, Section 3, of the Florida Constitution.

The Legislature serves as a check and balance on the Executive Branch and the Judicial Branch. The Executive serves as a check and balance on the Legislative Branch and the Judicial Branch. And the Judicial Branch serves as a check and balance on the Legislative and Executive Branch.

The clerks of court simply are not part of the equation.

Although they are elected local officials who are established in the Florida Constitution, clerks do not exercise one of the three powers of government - legislative, executive or judicial. They are county officials charged by statute with ministerial administrative duties on behalf of the judiciary. When the Clerks are performing court-related functions, they are serving under the supervision of the court and do not have the ability or the opportunity to exert independent will, discretion or judgment, all of which would be necessary components to serve as a legitimate "check and balance" on any of the three branches of government.

The only entities authorized under the Florida Constitution to serve as a "check and balance" on Florida's judicial branch are Florida's legislative branch and Florida's executive branch. In sum, the argument advanced by some clerks cannot be allowed to stand unchallenged.

This effort to affect public opinion appears to be an attempt to garner political support and divert attention from the need for a critical and necessary review and evaluation of clerk functions to ensure that the courts and the public are being appropriately served in this new electronic age.

Let this factual evaluation begin. In the final analysis, there simply is no harm done in a public legislative review of how well the current system of handling court records works.

* Ben F. Overton served on the Florida Supreme Court from 1974 to 1999 and was Chief Justice from 1976 to 1978. Major B. Harding served on the Florida Supreme Court from 1991 to 2002 and was Chief Justice from 1998 to 2000.

For more information on the role of the clerks of court:

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[Revised: 05-26-2011]