          DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

    ROBERT ZOBA, individually and on behalf of all others similarly
                            situated,
                           Appellant,

                                      v.

                 THE CITY OF CORAL SPRINGS, et al.,
                             Appellee.

                              No. 4D14-1182

                              [March 9, 2016]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Carlos A. Rodriguez, Judge; L.T. Case No. 12-10596.

   John Caserta of John Caserta, P.A., Delray Beach, for appellant.

   Scott C. Cochran and W. Tucker Craig of Billing, Cochran, Lyles Mauro
& Ramsey, P.A., Fort Lauderdale, for appellee.

MAY, J.

   The boundaries of judicial immunity are challenged in this appeal. The
plaintiff argues that the clerk of court (“clerk”) is not entitled to judicial
immunity for collecting, apportioning, distributing, and retaining monies,
in conjunction with alleged illegal traffic fines. We disagree and affirm.

   The plaintiff filed a proposed class action against four government
defendants, the City of Coral Springs (“city”), Broward County (“county”),
the Florida Department of Revenue (“DOR”), and the clerk (collectively
“defendants”), seeking a refund of traffic fines illegally charged and
collected. The amended complaint alleged that the county established a
school zone in violation of a county ordinance and that the school zone
created an unlawful “speed trap.”

   The plaintiff received a $600 traffic ticket for speeding in the school
zone. He paid his fine in full because failure to comply would result in the
suspension of his driver’s license. Plaintiff’s counsel received a ticket for
the same violation on a different date. He fought the ticket arguing that
the school zone was illegal because it was established in violation of county
ordinance 23-6(d). He was acquitted.

   The plaintiff alleged in the amended complaint that the defendants have
collected thousands of dollars from tickets originating in an illegally
established school zone. He alleged the clerk collects, apportions, and
distributes the fine monies to the defendants for those noncriminal traffic
violations. Pursuant to Florida statutes, the city receives 50.8% of the
fines, DOR receives 43.1%, the clerk receives 6.1%, and the county
receives a surcharge of $12.50 per violation. As to the clerk specifically,
he alleged the clerk “receives the payment of fines for violations of Florida
Statute § 316.1895(10); in accordance with Florida Statutes § 318.21,
142.01.” He alleged a claim for unjust enrichment against the clerk
seeking “disgorgement of all monies illegally collected and accepted.”

    The clerk moved to dismiss the amended complaint based on judicial
immunity. At the first hearing on the motion, the clerk argued that his
collection of fines is part and parcel of the overall decision-making process
for noncriminal traffic infractions, a discretionary judicial act. The plaintiff
responded that the clerk is not entitled to judicial immunity because his
collection and retention of fines for administrative costs is purely
ministerial, nondiscretionary, and nonjudicial.

   The trial court suggested that if the class prevailed, the clerk could
agree to comply with orders requiring reimbursement of funds even if he
did not remain a party. The court indicated it would ensure the clerk
received notice of all hearings so that he could not later argue a denial of
due process.

    At the second hearing, the clerk advised that if dismissed, he would not
agree to comply with any reimbursement order because he is entitled to
absolute immunity from suit and damages. The plaintiff responded that
no governmental body is entitled to keep funds collected as a result of an
illegal school zone because it violates due process.

   The trial court later entered a final order granting the clerk’s motion to
dismiss with prejudice. From that order, the plaintiff now appeals.

    The plaintiff argues on appeal that the trial court erred in dismissing
the clerk based on judicial immunity. He argues that because the clerk’s
receipt of money is a purely ministerial act, judicial immunity does not bar
the unjust enrichment claim. Lastly, he argues the clerk’s retention of
illegally collected fines violates the due process clauses of the United
States and Florida Constitutions.


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   The clerk responds that he was acting as an arm of the county court by
collecting and enforcing the traffic fines. He argues this is a judicial act
giving rise to immunity because it is done at the direction of a judge,
pursuant to an administrative order, and is integrally related to the overall
judicial process. He also argues that because the plaintiff failed to allege
a constitutional violation in the complaint, he cannot argue on appeal that
the collection of fines violates due process. Even if the plaintiff prevails,
the clerk argues that he is entitled to retain the statutorily allotted portion
of the civil penalties collected because the plaintiff voluntarily paid the
ticket with knowledge of the facts.

  We have de novo review. Andrews v. Fla. Parole Comm’n, 768 So. 2d
1257, 1260 (Fla. 1st DCA 2000).

    “[J]udicial immunity ‘insures that judges are immune from liability for
damages for acts committed within their judicial jurisdiction [and] is
essential to the preservation of an independent judiciary.’” Fong v.
Forman, 105 So. 3d 650, 652 (Fla. 4th DCA 2013) (second alteration in
original) (quoting Berry v. State, 400 So. 2d 80, 82–83 (Fla. 4th DCA 1981)).
“This doctrine has been extended to quasi-judicial officials, such as a clerk
of court, performing judicial acts.” Id. (citations omitted). “The reason for
extending immunity to quasi-judicial officers is because a strict guarantee
of immunity is necessary to preserve the[ir] effectiveness and impartiality.”
Fuller v. Truncale, 50 So. 3d 25, 27–28 (Fla. 1st DCA 2010) (alteration in
original) (citation omitted) (internal quotation marks omitted).

   In Florida, the clerk is a quasi-judicial officer. See Fong, 105 So. 3d at
652. “The office of the clerk of the circuit court derives its powers and
authority from . . . the Florida Constitution. . . . Article V, section 16,
establishes the office of clerk of the circuit court within the judicial
framework.” Times Pub. Co. v. Ake, 645 So. 2d 1003, 1004–05 (Fla. 2d
DCA 1994).

   Two prerequisites must be met for judicial immunity to apply: “(1) the
ruling in question [must be] a ‘judicial act;’ and (2) there [must be]
jurisdiction to issue the ruling.” Fuller, 50 So. 3d at 28 (citations omitted).
“When these two prongs can be shown, the judge or quasi-judicial official
may claim judicial immunity, even if the ruling in question was unwise,
reckless, or malicious.” Id. (citation omitted).

    Significantly, “analysis of judicial immunity must focus upon the
outcome of a particular action, instead of the act itself.” Id. “Nonjudicial
officials have absolute immunity for their duties that are integrally related
to the judicial process. Absolute quasi-judicial immunity for nonjudicial

                                      3
officials is determined by a functional analysis of their actions in relation
to the judicial process.” Jenkins v. Clerk of Court, U.S. Dist. Court, S. Dist.
of Fla., 150 F. App’x 988, 990 (11th Cir. 2005) (citing Roland v. Phillips, 19
F.3d 552, 555 (11th Cir. 1994)).

    Here, the parties disagree on which of the clerk’s acts is the judicial act
to be analyzed. The plaintiff argues the only act alleged in the amended
complaint is the clerk’s ultimate collection/receipt of 6.1% of the proceeds
of the traffic fines. He argues the trial court erred by looking outside of
the four corners of the complaint to examine how the clerk’s act of
receiving fines fits within the larger judicial process of handling traffic
violations. The clerk responds that the act of receiving a percentage of the
fine cannot be viewed in isolation. We agree with the clerk.

    Section 316.1895, Florida Statutes, governs the establishment of
school speed zones, enforcement, and designation. See § 316.1895, Fla.
Stat. (2010). Subsection (10) provides that a “[v]iolation of the speed limits
established pursuant to this section must be cited as a moving violation,
punishable as provided in chapter 318.” Id. § 316.1895(10). Section
318.14(1) provides that “any person cited for a violation of chapter 316 . .
. is charged with a noncriminal infraction and must be cited for such an
infraction and cited to appear before an official.” § 318.14(1), Fla. Stat.
(2010).

   Section 318.14(4)(a) provides that a person charged with a noncriminal
infraction, who does not elect to appear before an official within thirty days
after the issuance of the citation shall: “1. Pay the civil penalty and
delinquent fee, if applicable, either by mail or in person; or 2. Enter into a
payment plan in accordance with s. 28.246 with the clerk of the court to
pay the civil penalty and delinquent fee, if applicable.” Id. § 318.14(4)(a).

   If a person charged with a noncriminal traffic infraction elects to appear
before an official at a hearing, the official “shall make a determination as
to whether an infraction has been committed,” and if one has been
committed, “the official may impose a civil penalty.” Id. § 318.14(5).
However, if a person simply pays the citation or enters into a payment plan
without appearing before an official, that person is “deemed to have
admitted the infraction and to have waived his or her right to a hearing on
the issue of commission of the infraction.” Id. § 318.14(4)(b).

   Section 28.246(3), Florida Statutes, provides that “[c]ourt costs, fines,
and other dispositional assessments shall be enforced by order of the
courts, collected by the clerks of the circuit and county courts, and
disbursed in accordance with authorizations and procedures as

                                      4
established by general law.” § 28.246(3), Fla. Stat. (2010) (emphasis
added). Rule 6.480(b) of the Florida Rules of Traffic Court also provides
“the clerk, under the authority of an administrative order, may allow a
reasonable amount of time before requiring the payment of civil penalties
or costs.” Fla. R. Traf. Ct. 6.480(b).

    Section 318.21 governs the disposition of civil penalties by county
courts and provides that “[a]ll civil penalties received by a county court
pursuant to the provisions of this chapter shall be distributed and paid
monthly as follows: . . . . (f) Five-tenths percent shall be paid to the clerk
of the court for administrative costs.” § 318.21(f), Fla. Stat. (2010). It also
provides that if the violation occurred within a municipality, “5.6 percent
shall be deposited into the fine and forfeiture trust fund established
pursuant to s. 142.01.” Id. § 318.21(g)2. Section 142.01, Florida Statutes,
directs the clerk to establish “a separate fund to be known as the fine and
forfeiture fund for use by the clerk of the circuit court in performing court-
related functions.” § 142.01, Fla. Stat. (2010).

   These statutes and rules read together support the clerk’s argument
that his collection, apportionment, and disbursement of traffic fines is part
and parcel of the overall judicial process. Prior to the fine collection, the
person who has received the noncriminal traffic infraction may appear
before a court, or may waive that right and simply pay the ticket or enter
into a payment plan.         Either way, the person participates in the
adjudicatory process or waives it.          The clerk’s act of collection,
apportionment, and disbursement is part of that judicial process—it is a
judicial act entitling the clerk to immunity. And no one disputes the
jurisdiction of the court and the clerk to perform their respective statutory
duties.

   Fuller v. Truncale, 50 So. 3d 25 (Fla. 1st DCA 2010), and Fong v.
Forman, 105 So. 3d 650 (Fla. 4th DCA 2013), also support this conclusion.
In Fong, we followed the First District’s decision in Fuller. Fong, 105 So.
3d at 652–53. Both cases held the clerk’s act of sending notices to the
DMV with the recommendation to suspend someone’s license without first
scheduling a hearing was a “judicial act” protected by judicial immunity.
Fong, 105 So. 3d at 653; Fuller, 50 So. 3d at 28–29.

   In Fuller, the First District reasoned the clerk’s license suspension
recommendation was part and parcel of a judicial discretionary act. Fuller,
50 So. 3d at 29.

      [The clerk] lacked the power to suspend the licenses of those
      in the class, his recommendation was one step in that process.

                                      5
      Without his recommendation, license suspension—which is
      obviously a discretionary judicial act—would not have
      occurred. Therefore, [the clerk] was engaging in a judicial act,
      not a ministerial one, when he recommended license
      suspension without scheduling a hearing.

Id. Turning to the second prong of the judicial immunity test, the First
District held the clerk had jurisdiction to issue the license suspension
notifications pursuant to a controlling administrative order. Id.

    In Fong, we addressed the same issue. The plaintiffs “sought restitution
in the form of a refund for the administrative fees they were required to
pay in conjunction with the suspension of their licenses, and a declaration
that the [c]lerk’s ‘policy or practice’ was illegal.” Fong, 105 So. 3d at 651–
52. We found Fuller “directly on point and consistent with the established
principle that a quasi-judicial official carrying out the directive of a judge
is protected from suit by the doctrine of the judicial immunity.” Id. at 653
(citation omitted).

   Here, the collection and receipt of 6.1% of the proceeds of noncriminal
traffic infractions is authorized by Florida statute. In addition, an
administrative order authorized the clerk to “accept and defer payments
up to 30 days, for a civil penalty, from the date the clerk processes the
option for a civil penalty or other statutory costs or fees imposed
hereunder.” Admin. Order No. VI-99-A-3 § 5.c. (Fla. 17th Jud. Cir. Ct.
Oct. 13, 1999).1 The administrative order was a judicial act from which
the clerk’s duty to collect payments for citations stemmed.

   Because the clerk’s collection, apportionment, and distribution of the
fines are both statutorily and judicially ordered, they fall within the
protection afforded by judicial immunity. Similar to Fuller and Fong, the
clerk’s acts are part and parcel of the judicial process. In fact, in Fuller
and Fong, it was the clerk’s bypass of the hearing process, an allegation of
wrongdoing on its part, which was the focus of the plaintiff’s complaint.


1 The plaintiff argues the clerk failed to preserve the administrative order
argument as it did not rely on it when arguing to the trial court. We are, however,
able to take judicial notice of the administrative order in resolving the issue. See
Sullivan v. State, 913 So. 2d 762, 763 (Fla. 5th DCA 2005). Administrative Order
VI-99-A-3 was later vacated and superseded by Administrative Order 2014-3-CO
in February 2014. The current administrative order contains a similar provision
to section 5.c., but authorizes the clerk to accept or defer payments only after a
non-guilty plea. See Admin. Order No. 2014-3-CO § C.(2)b. (Fla. 17th Jud. Cir.
Ct. Feb. 6, 2014).

                                         6
Here, there is no allegation of wrongdoing by the clerk, but rather
allegations that the clerk followed its statutory and judicial mandates.

   The elephant in the room, however, is whether the clerk can ultimately
be required to refund any of the monies it retained if the school zone is
determined to be illegally established. The plaintiff argues that because
the school zone is illegal by definition, the clerk’s retention of the monies
violates his constitutional rights.2 The clerk argues it is immune from
refunding any money.

    In Wilken v. North County Co., 670 So. 2d 181 (Fla. 4th DCA 1996), we
addressed whether the clerk “must refund registry and sales fees to a
successful bidder at a foreclosure sale where the mortgagor/debtor, prior
to the sale and without written notice to the clerk, has filed a suggestion
of bankruptcy in federal court, requiring the sale to later be invalidated.”
Id. at 181. We answered the question in the negative. Id.

       The holding in Bauer may be considered to stand for the
       proposition that the clerk “earns” the statutory sales and
       registry fees when the services are rendered, i.e., when the
       judicial sale takes place and the funds are received into the
       court registry. Therefore, that the sale is later invalidated
       through no blunder of the clerk is of no consequence in
       determining whether or not the clerk is entitled to collect his or
       her administrative costs.

Id. at 182 (emphasis added) (internal citations omitted) (citing Bauer v.
Resolution Trust Corp., 621 So. 2d 521, 522 (Fla. 4th DCA 1993)).

   Here, if the school zone is found to be illegal, then a traffic fine for an
infraction committed in the school zone is unconstitutional, but the
administrative costs the clerk earned by statutorily collecting the fine are
not. The clerk earned the costs for performing his statutorily and judicially
directed job.

   Judicial immunity bars the clerk from having to defend against the
plaintiff’s claim and incur attorney’s fees. We therefore affirm the
dismissal of the clerk.

    We do not reach, however, whether funds retained by the clerk and

2 The clerk argues that this argument is not preserved. We disagree. At both
hearings, the plaintiff argued that the clerk is not entitled to keep money collected
in violation of the law because it is unconstitutional.

                                         7
deposited into the fine and forfeiture trust fund above the 0.5% for
administrative costs are susceptible to a refund should the plaintiff
prevail, as that issue has not yet been fully litigated in the trial court. In
the complaint, the plaintiff alleged an unjust enrichment claim against the
clerk seeking to recoup all monies paid and retained. Today, we hold the
clerk immune from the underlying suit and defense of the suit, and affirm
the trial court’s decision on immunity.

    What has yet to be litigated is whether the plaintiff can recoup monies
paid to the clerk should he succeed in obtaining a favorable final
judgment. There are several hurdles the plaintiff must first overcome: (1)
proving the school zone was illegally created; (2) defending the voluntary
payment waiver defense; and (3) whether the clerk must refund monies
beyond the administrative fees authorized by statute. Wisely, the trial
court foresaw the issue, but the case was not yet in the procedural posture
for the trial court to rule on it. See, e.g., State v. Barber, 301 So. 2d 7, 9–
10 (Fla. 1974). We save that issue for another day.

   Affirmed.

JEFFREY DANA GILLEN, Associate Judge, concurs.
WARNER, J., dissents with opinion.

WARNER, J., dissenting.

    Although I agree that the clerk of court can assert judicial immunity for
the acts of collecting and distributing the traffic fines, including the
administrative fee, I cannot agree that there is any judicial immunity for
the retention of the portion of the fine which the clerk is allowed to keep in
a fine and forfeiture fund pursuant to statute. That is directed by statute,
not judicial discretion. See §§ 28.246(3); 318.21, Fla. Stat. (2010). In fact,
pursuant to section 28.246(3), as quoted by the majority, such funds are
disbursed “in accordance with authorizations and procedures as
established by general law,” not judicial authority. § 28.246(3), Fla. Stat.
(emphasis added). The ultimate action is not judicial, but statutory. The
clerk was not acting as an arm of the court in retaining the funds; he was
retaining a portion of the funds at the legislative directive to help fund the
clerk’s office, the funding of which is a legislatively controlled action.

   Fong v. Forman, 105 So. 3d 650 (Fla. 4th DCA 2013), and Fuller v.
Truncale, 50 So. 3d 25 (Fla. 1st DCA 2010), are not on point. There, the
plaintiffs were challenging the clerks’ actions in the process of adjudicating
traffic infractions and suspending drivers’ licenses. Here, the plaintiff’s
claims are directed not at the judicial process, but at the retention of the

                                      8
statutorily mandated fines by the clerk and others. The amount of the
fines and who is entitled to them is really not integral to the judicial
process.

   I would reverse the order of dismissal, as the clerk is not protected by
judicial immunity for his retention, pursuant to statute, of funds collected
from traffic citations, the ground upon which the dismissal was
predicated. While the majority opinion appears not to decide the issue of
whether the clerk is judicially immune from being required to issue a
refund, the refund is the subject of the suit and the relief requested, so the
issue should be decided in this appeal. Although the clerk raises the
“voluntary payment doctrine” as a defense to this case, it was not raised
by the clerk in the trial court. It would be premature to dispose of this
appeal on an unpled defense.

                            *         *         *

   Not final until disposition of timely filed motion for rehearing.




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