         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
                  _____________________________

                          No. 1D18-1891
                  _____________________________

FLORIDA DEPARTMENT OF
REVENUE and FLORIDA
DEPARTMENT OF FINANCIAL
SERVICES,

    Appellants,

    v.

BRENDA FORMAN, in her official
capacity as the Clerk of the
Circuit Court of the Seventeenth
Judicial Circuit and the Clerk of
the Court of Broward County,
Florida,

    Appellee.
                  _____________________________


On appeal from the Circuit Court for Leon County.
Karen Gievers, Judge.

                          May 16, 2019


PER CURIAM.

    The Department of Revenue and the Department of
Financial Services appeal an order finding that several statutory
provisions related to court filing fees are unconstitutional as
applied because they rendered the office of the Clerk of the
Circuit Court of the Seventeenth Judicial Circuit and the Clerk of
Court of Broward County unconstitutionally underfunded. We
find the Clerk failed to prove that her office is unconstitutionally
underfunded. Thus, we reverse.

     Brenda Forman, in her official capacity as the Clerk of the
Circuit Court for the Seventeenth Judicial Circuit and the Clerk
of Court of Broward County, Florida, filed a complaint against
the Florida Department of Revenue and the Florida Department
of Financial Services. She alleged that the Clerk’s office was
insufficiently funded, which was attributable to several statutory
provisions that require county and circuit court clerks to remit
portions of the funds they collect through filing fees, services
charges, and costs (“fees”) to the Department of Revenue and the
Department of Financial Services to be used for other purposes.
See     §§     28.2401(1),     28.241(1)(a)1.a.,    28.241(1)(a)1.b.,
28.241(1)(a)2.,     28.241(1)(c)1.,    28.241(1)(c)2.,    34.041(1),
34.041(1)(c), & 44.108(1), Fla. Stat.

      The Clerk alleged this redistribution of funds violated article
V, section 14(b) of the Florida Constitution, which requires that
“[a]ll funding for the offices of the clerks of the circuit and county
courts performing court related functions, except as otherwise
provided . . . shall be provided by adequate and appropriate filing
fees . . . and service charges and costs . . . .”

     The Clerk clarified she was not arguing that the statutes
were facially unconstitutional, nor was she challenging the
Legislature’s authority to divert portions of filing fees for other
purposes.    Instead,   she     argued    those    statutes   were
unconstitutional as applied to her office because the diversion of
fees resulted in her office being so underfunded that it was
unable to perform its constitutional duties.

     During an evidentiary hearing, the Clerk presented evidence
that her office had not been in total compliance with statewide
performance measures that set timeframes in which filings
should be processed. The Clerk attributed this failure to meet
performance measures to a lack of sufficient funding. The Clerk’s
Chief Financial Officer testified that even one instance of failing
to meet a performance measure was constitutionally
unacceptable.

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     The trial court found the filing fee statutes were
unconstitutional as applied because they rendered the Clerk’s
office unconstitutionally underfunded, agreeing that even one
instance of failing to meet a performance measure was indicative
of unconstitutional operations.

     However, we find the Clerk failed to prove her office was
unconstitutionally underfunded because she failed to put forth
any evidence that the alleged lack of funding impacted her ability
to meet her constitutional duties or impacted litigants’
constitutional rights. The supreme court has distinguished
between operational underfunding versus constitutional
underfunding, explaining “while this Court has stated that
Florida’s court system is operationally underfunded, see e.g., In re
Certification of Need for Additional Judges, 29 So. 3d 1110 (Fla.
2010), we have not determined that the judiciary is underfunded
to the point of it being a violation of the constitution.” Crist v.
Ervin, 56 So. 3d 745, 752 (Fla. 2010), as revised on reh’g (Jan. 20,
2011) (finding filing fee statutes were not an unconstitutional
tax, and there was no competent, substantial evidence to prove
the judiciary in Florida was constitutionally underfunded).

     The statewide performance measures for court clerks are not
an appropriate tool to measure whether the Clerk is
unconstitutionally underfunded. These standards, which were
promulgated by the Clerks of Court Operations Corporation as
directed by statute, are not constitutional requirements. See §
28.35(2)(d), Fla. Stat.; see also Citizens for Strong Sch., Inc. v.
Fla. State Bd. of Educ., 262 So. 3d 127, 141-42 (Fla. 2019)
(finding legislative standards for education were not
“constitutional requirements”).

     At most, the Clerk proved her office was operationally
underfunded. However, she failed to present any evidence that
she was unconstitutionally underfunded. Performance standards
are not constitutional requirements. Thus, the trial court erred in
finding that the filing fee statutes violated article V, section 14(b)
of the Florida Constitution. To the extent the trial court
suggested the entire statutory structure for funding county and
circuit courts was unconstitutional, we find that issue was not


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raised by the Clerk and was not proven by the evidence. Thus, we
REVERSE.

WOLF, OSTERHAUS, and JAY, JJ., concur.

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    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
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Ashley Moody, Attorney General, Amit Agarwal, Solicitor
General, Edward M. Wenger, Chief Deputy Solicitor General, and
Daniel W. Bell, Deputy Solicitor General, Tallahassee, for
Appellants.

Mark Herron and Albert T. Gimbel of Messer Caparello, P.A.,
Tallahassee; and Melanie R. Leitman of Coppins Monroe, P.A.,
Tallahassee, for Appellee.




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