| |
Agencies of
government are created by the Florida Constitution. Administra-tive
agencies are creatures of the Legislature. The Constitution permits the
Legislature to enact statutes providing for administrative functions to
be per-formed by administrative officers, boards, or commissions. Since
the jurisdic-tion and powers of an administrative agency are created by
the Legislature, it follows that the Legislature may oversee and alter
them; to hold otherwise would mean that once created, administrative
agencies would be beyond control of the people.
(7)
The Florida Bar is not a creation of the Constitution nor of the
Legislature. The Florida Bar is not a state agency. The Florida Bar
Integration Rules refer to the Florida Bar as an "official arm of the
court". (8) This is
clearly because, the Florida Supreme Court is without authority to
create a state agency. For tax purposes The Florida Bar is a private
non-profit organization under IRS Code §501(c)(6). The lawyers are
purported to be "licensed" by order of The Florida Supreme Court, and the certificate is
signed by the Clerk of Court. The lawyers are required to be members of
The Florida Bar and to pay annual dues. This structure is unparalleled
in any other branch of government and defeats provision of the Florida
Constitution placing the creation of an agency of government in the
Legislature.
The Florida Supreme Court in integrating the Bar
in 1949 was fully aware that only the Legislature could levy a license
fee or a tax on the attorneys. Nevertheless, the court said that it had
the power to require annual dues from the attorneys, because the
membership fee in the Bar Association was an exaction for regulation,
while the purpose of a tax is revenue. The court said that because of
this distinction between a fee and a tax, the court could levy a
membership fee. This annual membership fee is collected by The Florida
Bar to this date. All this is meaningless semantics. The membership fees
collected by The Florida Bar pursuant to its Bylaws is designated a
"revenue". (9) Revenue
collected by the state is under exclusive control of the Legislature
which includes taxes, fees, licenses and charges for services imposed by
the legislature on individuals, businesses or agencies outside state
government.(10)
The
moneys exacted by the Board of Bar Examiners is a fee for admission to
the Bar permitting a person to practice law in the State. The so-called annual dues
required to be paid
to the Bar is nothing more than an annual renewal of that admission to
the Bar. Article V Section XV of the Florida Constitution
refers to the "admission of persons to the practice law", and makes no
referen-ce to any licensing. A person so admitted receives a "Bar
Number" and not a "License Number". Under Article IV
Section 6(b) of the Florida Constitution the authority for "licensing"
is in the Executive Branch placed into "Boards authorized to grant and
revoke licenses to engage in regulated occupations". The issuance
of a Bar card to lawyers is the general practice in the United States.
A 1980 Report of the Select Subcommittee on the Legal
Profession, prepared by members of the Florida House of Representatives,
found the court's distinction between a fee for regulation and a tax, to
be a distinction without a difference. The Report said it is not a
question of what the money is being used for. The question is how the
money is being raised. The Report said that since the court has wielded
state power to raise the dues money, that makes any such funds public
money.
(11)
The Report relied on 25 Fla. Jur.§ 1 in stating that:
"Public
funds are moneys belonging to the state or a subdivision thereof,
or a municipal corporation. They represent moneys raised by
operation of law for the support of government or the discharge of
its obligation."
The Report
reaffirmed that the dues are public money as well as the application and
test fees paid by applicants to the Board of Bar Examiners. The Report
said that since these are state funds, it should not be held either by
the Florida Bar or Bar Examiners. It was further stated that these funds
properly belong to the state treasury under Art. IV, § 4(e) of the
Florida Constitution which provides that "The treasurer shall keep all
state funds and securities." The Report also relied on Section 18.101
F.S. (1979) implementing this section of the constitution, and mandating
that "All moneys collected by state agencies..... shall, except as
otherwise provided by law, be deposited in the State Treasury".
The Report relying on In re, The Florida Bar , 316 So.2d 45
(Fla. 1975) and In re, The Florida Board of Bar Examiners, 353
So.2d 98 (Fla. 1977) noted that the Bar and Bar Examiners function as
agencies of the judiciary and that the Supreme Court defines these
agencies to be arms of the court in the governmental function of
regulating the practice of law. The Report pointed out that when the
court speaks of its traditional and inherent powers, it still must be
kept in mind that it is the traditional and inherent power of the
Legislature to raise money, to pay for public programs and to regulate
the use of all public money and that, Article III § 12 of the Florida
Constitution (the legislative article) makes clear the power of the
Legislature with regard to appropriations as follows:
"Laws making
appropriations for salaries of public officers and other current
expenses of the state shall contain provisions on no other
subject".
The Florida Bar
and The Florida Board of Bar Examiners are the only regulatory bodies in
the state whose budgets are not subject to review by the Legislature.
The Report concluded that the salaries and expenses of the Bar and the
Board of Bar Examiners are no different than the salaries and operating
expenses of the Supreme Court. Since the budget of the Florida Supreme
Court, and all inferior state courts, is constitutionally subject to
legislative appropriation those of the Bar and Bar Examiner should not
be excluded. The Report was of the opinion that the public has a right
through their elected Legislatures to scrutinize a matter of crucial
public concern, the control of public money collected and spent under
the authority of the state. The Report advised the court that, this
money is public money, raised by state power. That it is the traditional
inherent and exclusive power of the Legislature to raise and regulate
the spending of public money and since the court has no power to fix
appropriations for public money the court was not acting within the
Florida Constitution in authorizing the Bar and Board to do so.
In our frame of government, the Florida Supreme Court itself is not
self-supporting. It does not, and cannot, use the power of the state to
collect money to pay for its operations. The Florida Constitution states
that the judiciary shall have no power to fix appropriations. The judges
have no power to appropriate state money to pay their own salaries or
that of their staff and for operating expenses. In fact the judges are
prohibited from appropriating any state money whatsoever. (12) Thus, the
Supreme Court depends entirely on legislative appropriation. Each year
the court must submit for legislative consideration and approval or
modification a budget providing for the needs of the entire court
system, for which the Supreme Court has administrative responsibility. (13) The budget
of the Supreme Court is also subject to audit by the Auditor General.
Constitutional questions are raised by the fact that the Bar and Bar
Examiners collect and spend money for their operations under the
authority of the court and do not seek legislative appropriations as the
Supreme Court itself must do. The Florida Constitution gives the
Legislature the exclusive power of deciding how, when and for what
purpose public funds shall be applied in carrying on the government.
(14) The
budgetary procedures of the Board and the Bar are in conflict with these
provisions. The judicial branches' action in not submitting all funds
collected and expended by the Board and Bar is in violation of the
provision of the Florida Constitution.
(15)
The budgets of the Board and the Florida Bar escape any legislative
scrutiny. The Board of Bar Examiners consists of twelve members of the
Florida Bar and three non-lawyers members. The budget of the Board is
submitted by the Board for approval to the Florida Supreme Court.
(16) The Florida
Bar is governed by a Board of Governors currently consisting of 52
members of whom 50 are private attorneys and two token non-lawyers.
Pursuant to the Rules Regulating the Florida Bar it is this Board of
Governors who is required to adopt an annual budget of the Florida Bar
setting forth the anticipated revenues and expenditures for the fiscal
year. The budget becomes final unless objected to by a member of the
Florida Bar and/or by the Florida Supreme Court. The budget includes the
dues of the members of The Florida Bar. The budget is audited by a
certified public accountant and a copy of it is filed with the Florida
Supreme Court. A condensed summary of the budget is published in The
Florida Bar Journal or The Florida Bar News.
(17)
The Florida Bar is essentially conducted as a private organization,
within the judicial branch of government. The Florida Bar is a
multi-million dollar sophisticated business operation. It has an
operating budge of about thirty million dollars, half of which comes
from membership dues. The additional revenue is to come from sources such
as continuing education, sale of ad space in the Bar publications, fines
paid in disciplinary proceedings, and rental of exhibit space at bar
meetings. Only 40 percent of the total budget is budgeted for attorney
regulation. The March 15, 1999 Bar News reported the investment earnings
of the Florida Bar on its reserve and contingency fund. Pursuant to this
article the Bar's investment strategy began in 1990 which now includes
not only certificates of deposit, but stocks and bonds as well. The
report stated that there were 8 million dollars in earnings and that the
portfolio exceeds 13 million dollars. As noted above, since these sums
are state funds, they were required to be deposited into the State
Treasury.
Additionally, the Florida Bar requires attorneys to keep a trust
account for the funds and property of clients or others. The attorney
has to deposit these funds into an interest bearing trust account in a
bank, for the benefit of the Florida Bar Foundation known as an IOTA
account.
(18) The Florida
Bar Foundation Inc., is yet another non-profit corporation created in
conjunction with the Florida Bar. An objective is to provide funds for
the pro-bono services rendered by attorneys. These deposits likewise run
into the millions of dollars, usually consisting of escrow account of
clients, who earn no interest on their funds because, it goes to The
Florida Bar Foundation. For a recent account of how the IOTA funds
were used
click here.
It is further noteworthy that no trust fund of the State of Florida or
other public body may be created by law without a three-fifth vote of
the membership of each house of the Legislature in a separate bill for
that purpose only.
(19) All moneys
collected by the Department of Business and Professional Regulations
from fees and fines or from costs awarded to the department by a court
are required to be paid into the Professional Regulation Trust Fund. The
Legislature then appropriates the trust fund sufficient sums to carry
out the statutory provisions and any surplus goes into the treasury.
(20)
HOME
|
|
