MIGNON UPCHURCH BERANEK
7042 Duck Cove Road
Tallahassee, Florida 32312
deeberanek@yahoo.com
850.668.4894
March 9, 2009
Ms. Lisa Goodner
State Courts Administrator
Supreme Court Building
Tallahassee, Florida 32399-1900
Dear Lisa:
I enjoyed our discussion the other day and hearing about the bills that the courts are
following in the current legislative session. I was particularly interested in the Article V issues and
the FACC’s assertion that SB2108 and HB 1121 would undermine the clerks’ function as a “check
and balance” to the judiciary. I found this argument so puzzling that I couldn’t resist doing some
research, which may be of helpful to you and the legislative team.
Issue: Whether the county clerks are vested with the responsibility and authority to
serve as a “check and balance” on the Judiciary?
Summary: Absolutely not. The Florida Constitution does not vest authority or
responsibility in the county clerks for providing a “check and balance” on the exercise of
governmental power by the Judiciary, or by any of the branches of government. The Florida
Constitution establishes a very clear allocation of power among the three branches: Legislative,
Executive, and Judicial. In addition, the state constitution sets forth specific curbs on each branch’s
exercise of its governmental power by allocating duties and responsibilities to the other two, which
serves as a system of “checks and balances” among the three branches. County functionaries, such
as the clerks of court, have no role in this tripartite system.
The Florida Constitution merely establishes a clerk of the circuit court in each county, along
with four other local government officials – the sheriff, the tax collector, the property appraiser, and
the supervisor of elections. The Constitution is silent as to the clerk’s duties. Because the clerks
are county officials who do not exercise any of the inherent or enumerated constitutional powers,
the assertion that they serve as a “check and balance” on the Judiciary is nonsensical.
Doctrine of Separation of Powers – A System of Checks and Balances among the Three
Branches of Government: The Separation of Powers Doctrine, articulated by the founding fathers
as a basic tenet of American government, is established in Article II, Section 3, of the Florida
Constitution:
“The powers of the state government shall be divided into legislative, executive, and judicial
branches. No person belonging to one branch shall exercise any powers appertaining to
either of the other branches unless expressly provided herein.” [emphasis added]
Ms. Lisa Goodner
March 9, 2009
Page 2
Under both the federal and state constitutions, governmental powers and responsibilities are
allocated among the three branches – the Legislative, Executive, and Judicial – but also
intentionally overlap. This overlapping, or “balance of power,” serves to constrain the unbridled
exercise of governmental authority and ensure against the consolidation of power in one branch.
See, generally, The Federalist Papers, ##48, 51, 66, 73, 78. The branches are not only equal, but
are “coordinate.” They independently carry out their constitutional functions, and within that
exercise of sovereign function they discharge specific responsibilities which have a limiting effect
on the power of the coordinate branches.
The Florida Constitution is the one and only grant of political power from the people:
“The basic principle of constitutional system is that all political power is inherent in the
people. This inherent power is exercised by the people under a constitution adopted by
them. … It guarantees to the people certain rights, and also restrains them in the exercise of
their rights and inherent powers to the manner or methods prescribed by law.” Ayers v.
Gray, 69 So.2d 187, 193 (Fla. 1953)
All power vested in the government and in constitutional officers is expressly established through
the Constitution. Grants of power from the people are not implied, inferred, or created out of thin
air; they must be specifically stated in the Constitution. The Florida Constitution allocates
governmental powers to the three Branches of Government in Articles III, IV, and V: the
Legislative Power (the power to make the law) is established by Article III, the Executive Power
(the power to execute and enforce the law) is set forth in Article IV, and the Judicial Power (the
power to interpret and apply the law) is articulated in Article V. The constraints – checks and
balances – on the exercise of power by each Branch are also expressly provided in the Constitution.
(see attachment).
County Clerks of the Circuit Court – Ministerial Officers of the Court: The assertion
that the clerks of the circuit court – county officials whose ministerial functions on behalf the courts
are devoid of discretion – have a “check and balance” function over the Judiciary is a bizarre
misstatement of the Separation of Powers Doctrine. The Doctrine of Separation of Powers pertains
to the relationship between the three coordinate and coequal branches of government as set forth in
the Constitution. The concept of checks and balances arises out of the doctrine. The doctrine is
inapplicable and irrelevant to the role of county functionaries, such as the clerks of court, whose
duties and responsibilities are merely ministerial and are entirely established and defined in statute
and court rule. Furthermore, checks and balances makes no sense regarding the distribution of
responsibility within one branch; county officials whose court duties are ministerial in nature cannot
simply take it upon themselves to serve as a “check and balance” to judicial officers who are vested
under the Constitution with one of the three Powers of Government.
The Florida Constitution is utterly silent as to the role and responsibilities of the clerks of
court. The Constitution does not confer any authority on the clerks to do anything, and it
Ms. Lisa Goodner
March 9, 2009
Page 3
certainly doesn’t grant the clerks power to limit or constrain the Judiciary in the exercise of
its constitutionally mandated judicial function. Article VIII, section 1(d) merely authorizes the
electors of each county to elect five county officers, including a sheriff, a tax collector, a property
appraiser, a supervisor of elections, and a clerk of court. That same provision permits the electors
to vote to approve the selection of any county officer by another means as specified by county
charter or special law, or to transfer their statutory duties to another official and abolish the office
altogether. Article V, section 16 establishes the office of the clerk of the circuit court and
references Article VIII, section 1 regarding the method of their selection, but it does not address the
duties of their office. Without a grant of constitutional authority, no official can exercise
constitutional power or exert authority as a “check and balance” over a branch of government. To
assume such a role in the absence of constitutional authorization is absurd.
Florida law clearly establishes that the clerk’s role in the performance of court related
functions is ministerial and subject to the direction and control of the court:
“[T]he clerk of the circuit court is merely a ministerial officer of the court.” Leatherman v.
Gimourginas, 192 So.2d 301, 302 (Fla. 3DCA 1966).
“The clerk is an officer of the court whose duties are ministerial and as such he does not
exercise any discretion.” Pan American World Airways v. Gregory, 96 So.2d 669, 671 (Fla.
3DCA 1957).
“When the clerk performs duties as the court’s record keeper, the clerk is a ministerial
officer who has no discretion. Corbin v. State ex rel. Slaughter, 324 So.2d 203 (Fla. 1DCA
1977). The court has the inherent and exclusive constitutional authority over its agencies
who act in its behalf. See The Florida Bar, 398 So.2d 446 (Fla. 1981). The clerk, when
acting in the exercise of his duties derived from article V, is acting as an arm of the court
…” Times Pub.Co. v. Ake, 645 So.2d 1003, 1005 (Fla. 2d DCA 1994), aff’d 660 So.2d 255
(Fla. 1995).
“[The] clerks, when acting under the authority of their article V powers concerning judicial
records and other matters relating to the administrative operation of the courts, are an arm of
the judicial branch and are subject to the oversight and control of the Supreme Court of
Florida …” Times Pub. Co. v. Ake, 660 So.2d 255, 257 (Fla. 1995).
Furthermore, the clerk’s duties do not in any way limit or constrain the judicial function. They are
merely ministerial, and the clerk cannot review or contest any court act discharged in furtherance of
the judicial function:
“The settled law in respect to such officers [clerks] is that the making or keeping of court
records is a purely ministerial duty, and that in the performance of the duty such officers
have no power to pass upon or contest the validity of any act of the court for which they act
Ms. Lisa Goodner
March 9, 2009
Page 4
as clerk which purports to have been done in the performance of its judicial function.” State
v. Almand, 75 So.2d 905, 906 (Fla. 1954).
As a review of Section 28.35(4)(a) clearly establishes, the clerk’s duties consist of functions
performed as a service to the courts and are subject to judicial direction and oversight:
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Case maintenance
Records management
Court preparation and attendance
Processing the assignment, reopening, and reassignment of cases
Processing of appeals
Collection and distribution of fines, fees, service charges, and court costs
Processing of bond forfeiture payments
Data collection and reporting
Payment of jurors and witnesses
Determination of indigent status
Absolutely none of these responsibilities would provide the clerk with the ability or opportunity to
exert power as a counterbalance to the exercise of judicial authority. Furthermore, these activities
do not require discretion or independent judgment essential to a legislative, executive, or judicial
function.
The exercise of governmental power vested in one of the three branches – or the power to
constrain it – requires the exercise of independent discretion and judgment. In addition, that power
can only be conferred by the state and federal constitutions and is subject to constitutionally
established limitations:
“The governmental powers that are divided into the legislative, executive, and judicial
departments, and the exercise of which is forbidden to persons not properly belonging to the
particular department, are those so defined by the Constitution, or such as are inherent or so
recognized by immemorial governmental usage, and which involve the exercise of primary
and independent will, discretion, and judgment, subject not to the control of another
department, but only to the limitations imposed by the state and federal constitutions.” State
v. Duval County, 79 So. 692, 693 (Fla. 1918)
The only entities authorized under the Constitution to serve as a “check and balance” on the
Judiciary are the Legislative and the Executive Branches, in the exercise of legislative and executive
powers respectively and in those limited instances enumerated in the Constitution. (Again, see the
attached list.) A ministerial county official – whose duties do not entail the exercise of independent
will, discretion, or judgment – cannot oversee, limit, or otherwise interfere with the Judiciary’s
responsibility to carry out its constitutional functions.
Ms. Lisa Goodner
March 9, 2009
Page 5
In conclusion, I believe the assertion that the clerks serve as a check and balance on the
judiciary on behalf of the people is a callous distortion of constitutional principles for political ends.
The Constitution does not contain any such grant of power or authority to the clerks from the
people. Clerks do not exercise one of the three powers of government; they are county officials
legislatively charged with ministerial duties on behalf of the judiciary. When they are performing
court-related functions, they serve under the supervision of the court. Their responsibilities do not
require independent will, discretion, or judgment – necessary components to the exercise of
governmental power which would be required to serve as a “check and balance” on one of the three
branches.
Some clerks have apparently contended that SB2108 and HB1121 are judicial power grabs.
But in my opinion, the clerks’ proclamation of governmental power “on behalf of the people” in the
absence of constitutional authority is the ultimate “power grab.” With complete indifference to
fundamental constitutional principles, the clerks appear to be cloaking themselves with the mythical
power of a self-styled “fourth branch” whose job it is to protect the people from the imaginary
tyranny of an unrestrained judiciary. Such reckless manipulation of public opinion appears to be a
cynical attempt to garner political support and divert attention from the need for a critical review
and evaluation of clerk functions.
I will follow this legislative session with great interest. Let me know if you have any
questions about my analysis, or if there are related issues you’d like me to explore. I didn’t realize
how much I miss legal research! Give my regards to everybody at OSCA.
Sincerely Yours,
/s/ Dee Beranek
Dee Beranek
Attachments
CHECKS AND BALANCES UNDER THE FLORIDA CONSTITUTION
LEGISLATIVE BRANCH – limits the exercise of the Judicial Power by:
 adopting legislation clarifying judicial interpretation of the law [Article III, sec. 1: “the
legislative power”]
 adopting legislation that limits judicial discretion [Art. III, sec. 1: “the legislative power”]
 determining composition & selection of the JNC’s [Art. V, Sec. 11]
 repealing rules of court (2/3 vote) [Art V, sec. 2]
 appropriating the judicial branch budget [Art. V, sec. 14]
 establishing judicial salaries [Art. V, sec. 14]
 funding the certification of new judgeships [Art. V, Sec. 9]
 establishing appellate court districts & judicial circuits [Art. V, Sec. 1]
 establishing county court & circuit appellate jurisdiction [Art. V, Sec. 5 & 6]
 impeaching judicial officers [Art. III, sec. 17]
LEGISLATIVE BRANCH – limits the exercise of the Executive Power by:
 reviewing, revising, & appropriating the Governor’s budget proposal [Art. III, sec. 19]
 re-enacting vetoed bills or specific appropriations by 2/3 vote [Art. III, Sec. 8]
 reinstating or removing any official suspended by the Governor [Art. IV, Sec. 7]
 establishing salaries of all public officers [Art. III, Sec. 12]
 establishing the code of ethics for all public officers & employees [Art. III, Sec. 18]
 creating by law the civil service system for all state employees [Art. III, Sec. 14]
 impeaching Governor, Lieutenant Governor, & Cabinet Members for misdemeanors in
office [Art. III, Sec. 17]
 prescribing the planning & budgeting process for the state [Art. III, Sec. 19]
 considering the Governor’s proposed revisions to the state planning document [Art. III,
Sec.19]
 confirming gubernatorial appointments as provided by law [Art. IV, Sec. 6]
 approving proposals for reorganization of executive departments [Art. III, Sec. 6]
EXECUTIVE BRANCH – limits the exercise of the Judicial Power by:
 convening the Judicial Nominating Commissions [Art. V, Sec. 11]
 appointing a portion of the Judicial Qualifications Commission [Art. V, Sec. 12]
 appointing judges from nominees submitted by the JNC’s (all appellate, some trial
judgeships) [Art. V, Sec. 11]
 suspending public officers who serve the Judicial Branch but are not subject to impeachment
(state attorneys, public defenders, clerks of court) [Art. IV, Sec. 7]
 settling & approving all accounts, including the Judicial Branch (chief financial officer) [
Art. IV, Sec. 4]
 granting clemency [Art. IV, Sec. 8]
EXECUTIVE BRANCH – limits the exercise of the Legislative Power by:
 approving or vetoing legislation [Art. III, Sec. 8]
 preparing the state budget [Art. III, Sec. 19]
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preparing the state planning document [Art. III, Sec. 10]
convening special sessions & determining the call [Art. III, Sec. 19]
recommending measures in the public interest [Art. IV, Sec. 1]
making appointments to fill vacancies of unexpired terms of office of any state or county
elected official [Art. IV, Sec. 1]
establishing necessary budgetary reductions in order to balance the budget in times of
revenue shortfall [Art. IV, Sec. 13]
JUDICIAL BRANCH – limits the exercise of the Legislative Power by:
 determining the constitutionality of legislative enactments [Art. V, Sec. 3]
 interpreting statutes [Art. V, Sec. 1: “the judicial power”]
 reviewing legislative apportionment [Art. III, Sec. 16]
 issuing wrtis of habeas corpus, quo warranto, and mandamus [Art. V, ss. 3, 4, & 5]
 certifying the need for new judgeships [Art. V, Sec. 9]
(limitation: issue must arise in the context of a case or controversy; courts do not have the
power to act outside this context)
JUDICIAL BRANCH – limits the exercise of the Executive Power by:
 exercising appellate review of executive/agency action [Art. V, ss. 3 & 4]
 issuing advisory opinions at the request of the Governor or Attorney General [Art. IV, Sec.
1; Art. V, Sec. 3]
 issuing writs of habeas corpus, quo warranto, and mandamus [Art. V, ss. 3, 4, & 5]
(limitation: issue must arise in the context of a case or controversy; courts do not have the
power to act outside this contex)