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A "Workgroup" was "created" by
the Chief Justice of the Florida Supreme Court with an Administrative
Order dated September 18, 2000. The Workgroup consisted of 14 members, all
judges and lawyers. The task was to make recommendations on access and
retention of records by the Clerk of Court, The Florida Board of Bar
Examiners, The Florida Bar and the Judicial Qualifications Commission.
Although the records involved included all the papers filed by litigants
in the various courts on all levels and the complaints filed with The Florida
Bar and Judicial Qualifications Commission there is no trace of any public
involvement. Even though the Workgroup claims to have met six times there
does not appear to have been any public hearing.
On April
30, 2001 the Workgroup issued its "Report of the Supreme Court Workgroup
on Public Records".
In a Per Curiam Corrected Opinion dated March 7, 2002 the Florida Supreme
Court adopted all of the Workgroup’s proposals and ruled that as to the
Judicial Qualifications Commissions "the individual complaints received
from citizens, judges or lawyers against members of the judiciary" where
the complaints are "summarily dismissed" are to be kept for "3 years".
Only in cases where the complaints are not summarily dismissed are the
records to be kept for the lifetime of the judge. However, by the JQC’s
own statistics it summarily dismisses 99% of the complaints. So, that now
99% of the complaints are discarded after 3 years of dismissal of the
complaint. See,
http://www.flcourts.org/pubinfo/documents/recordsreport.pdf
What is noteworthy that
concurrently at the time with that Report of the Workgroup, legislation
was contemplated to be introduced by a number of Florida State legislators to
make public all complaints filed against judges with the Judicial
Qualifications Commission. The objective was to make judges more
accountable. The legislation was intended for the 2002 legislative
Session, House Bill No. 1181 by Joint Resolution with Senate Bill No.
0162, providing for a constitutional amendment to make all records &
proceedings of Judicial Qualifications Commission public upon finding of
no probable cause, effective July 1, 2003..." That bill passed in the
House with 79 YEAS and 33 NAYS, but it died in the Senate Committee on the
Judiciary. That is it did not even get out of the Committee in the Senate.
Even if bills are introduced by a legislator they have to go through a
number of committees in both houses, before they are even voted on the
floor. That is where the lobbyist come in. It is not only that many
legislators are members of The Florida Bar but, The Florida Bar itself is
a powerful lobby group which actively lobbies to assure that no legal
reform passes in the Legislature.
As to the complaints filed
against lawyers with the Florida Bar the retention period of those records
has been and is was continued to be one year. That one year period came about
following change in the law requiring complaints against lawyers to be made public after
the investigation was completed regardless whether probable cause was
found. So, that the Supreme Court, simply counteracts any attempt by the
public for legal reform, without any participation by the public. One of
the clear objectives here in the case of making complaints public is to
destroy evidence of any repetitive misbehavior by judges and lawyers.
The appellate records, which
includes the briefs, are also disposed after two years in a civil case and
after five years in a criminal case. These various retention periods for
the records in various cases are covered under Florida Rules of Judicial
Administration 2.075 and 2.076.
In 1992, the state constitution
was amended to guarantee that documents produced by the legislative and
judicial branches of Florida are open and available to its citizens. Here
again the Florida Supreme Court took action to put an obstacle into the
access to public records. It legislated under Rule 2.051(e)(1) a
requirement that request for access to records must be in writing and must
be directed to the custodian of records. Well in this Twenty-First Century
age of Computers and the Internet, in the federal courts, not only the
docket sheets, but all papers filed with clerk are scanned page by page
into the computer and can be accessed on the Internet. This can be done in
the clerk’s office. It can also be accessed on any computer with Internet
service through the Pacer system, (Public Access to Court Electronic
Records) at a cost of seven (0.7) cents a page. This is a service provided
by the federal judiciary for electronic access to federal court case
information. All is required is a login name and a password all of which
is provided by Pacer, and then a periodic bill is sent to the user.
In the Florida State court system
only the docket sheets can be accessed on the Internet and any papers
filed in the court have to be requested in writing to the clerk in charge
of the records. This was obviously, instituted to prevent an electronic
access system to the court files. It would appear that the state court
judiciary is not willing to institute an easy access system to the court
files. The excuse is the "protection of the privacy of the litigant", a
hollow reasoning when those records are a matter of public record as long
as you go down the courthouse to request it in writing.
The Supreme Court asserts that
its power to act on these records was derived from "separation of powers
doctrine"; the powers granted in Article V Florida Constitution" and
because "the judicial branch has the exclusive right to control access to
its own record". As to what specific provision in Article V that is
omitted. However, Article V Section 2 provides for the Supreme Court
"to adopt rules for the
practice and procedure in all courts including the time for seeking
appellate review, the administrative supervision of all courts".
This clearly has been employed by
the Supreme Court to be used on a broad basis. Additionally, it has been
extended by the Supreme Court beyond the "courts" to include other
entities and agencies by purporting to give an extensive definition to
"judicial branch" stated in that Report as follows:
"Judicial branch means the
judicial branch of government which includes the State Courts
System, the clerk of court, when acting as an arm of the court, The
Florida Bar, the Florida Board of Bar Examiners and the Judicial
Qualifications Commission. (Emph. added)
But, what is interesting that the
Judicial Qualification Commission on its own website
www.flcourts.org/pubinfo/jqc asserts that it is not part of
the Supreme Court stated as follows:
"The Judicial Qualifications
Commission is an independent agency created by the Florida
Constitution solely to investigate alleged misconduct by Florida state
judges. It is not a part of the Florida Supreme Court and
operates under rules it establishes for itself. The JQC has no
authority over federal judges or judges in other states.
Complaints against judges must be filed with the JQC, not with the
Supreme Court." (Emphasis added)
This obviously is in accordance
with Article V Section 12 of Florida Constitution in which it is expressly
stated that "A judicial qualifications commission is created" and that The
commission shall adopt rules regulating its proceedings".
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