Clerk's role key to integrity of court records

By Howard C. Forman

March 27, 2009

In a recent guest column, former Supreme Court Justices Ben F. Overton and Major B. Harding stated that Florida's clerks of the court do not serve as an independent check and balance on our courts. They are right. Independently elected clerks are not a check and balance on the impartiality of the judiciary, but on the integrity of the records. In that role, clerks provide an important public protection that should not be lost.

The clerk of court's role in protecting public records is written into the Florida Constitution and has been ratified by the voters twice in the past 40 years — once in 1970, when voters passed Article V of the Florida Constitution, and again in 1998, when voters adopted Revision 7 to Article V.

Judges are the ultimate authority over what happens in their courtrooms and the undisputed finders of fact in the cases they hear. It is appropriate and protective that a disinterested third party, independently elected by and answerable to the public — the clerk — maintains and protects the court records. This separation eliminates any possibility of wrongful recording of what occurs in a courtroom or a case.

The other issue raised by Justices Overton and Harding — that Florida "could save substantial tax dollars, particularly in this new electronic era," by embracing uniformity and electronic compatibility — ignores the fact that it is many judges themselves who have resisted uniformity and electronic access to the courts.

The clerks have repeatedly asked the Supreme Court for a uniform format for the preparation and transfer of information in an effort to realize the efficiencies and economies that come from standardization. The court has refused. For the past two years, the clerks have offered to create a statewide e-filing system at no additional cost to the courts. Not only would such a system save money for the courts and those who use it, but it would greatly enhance convenience for those who use the court and extend access to justice. Yet the courts have steadfastly opposed that offer.

There is good reason why Common Cause of Florida, the Florida Prosecuting Attorneys Association and the Florida Sheriff's Association all have weighed in against SB 2108/HB 1121 and in favor of preserving the important role of the clerk. The role of the clerk is protective of the public, and generally, we don't take away the public's constitutional rights without putting it to a vote of the people — even if the judges want it that way.

Howard C. Forman is clerk of the circuit court, 17th Judicial Circuit, Broward County.