Special Edition: Florida fee/fine/cost legislation in the 2017 session

HB 1017 AS COMMITTEE SUBSTITUTED:

  •  Amends existing law requiring the clerk of court to enter into a payment plan with an individual whom the court determines is indigent for costs and allows clerks to enter into payment plans with anyone. Provides that the monthly payment amount may not exceed two percent of the person’s annual net income, divided by 12, without the consent of the applicant.
  • Provides clerk may not assess any surcharge to refer the account to a private attorney or collection agent.
  • Provides collection agent or private attorney may not impose any additional fees or surcharges other than the contractually agreed upon amounts.
  • Requires traffic citation forms including information indicating
    that a person may enter into a payment plan with the clerk of court to pay a penalty.
  • Requires traffic citation forms indicate that a person ordered to pay a penalty for a noncriminal traffic infraction who is unable to comply due to demonstrable financial hardship will be allowed by the court to satisfy payment by participating in community service.
  • In civil citations/failure to appear, provides person’s driver license may not be suspended solely for failure to pay a penalty if the person demonstrates to the court that he or she is unable to pay, as evidenced by the person providing documentation to the appropriate clerk of court.
    1. The person receives reemployment assistance or unemployment compensation;
    2. The person is disabled and incapable of self-support or receives benefits under the federal Supplemental Security Income program or the Social Security Disability Insurance Program;
    3. The person receives temporary cash assistance;
    4. The person is making payments in accordance with a confirmed bankruptcy plan under chapter 11, chapter 12, or chapter 13 of the United States Bankruptcy Code;
    5. The person has been placed on a payment plan or payment plans with the clerk of court which in total exceed what is determined to be a reasonable payment plan; or
    6. The person has been determined to be indigent after filing an application with the clerk of court
  • In criminal cases, may not be suspended solely for failure to pay a penalty or court obligation if the person demonstrates to the court, after the court orders the penalty or obligation and before the suspension takes place, that he or she is unable to pay the penalty or court obligation. Specifies documentation (same as civil citations/failure to appear list, above) that demonstrates person is considered unable to pay to include
  • For traffic infractions, requires court to determine at the time a civil penalty is ordered whether the person is able to pay the penalty.

Approved by House Appropriation’s Committee, Transportation and Infrastructure Subcommittee 3/14/17.

HB 547

Requires specified reduction for civil penalty under certain circumstances. Deletes requirement that specified percentage of civil penalty be deposited in State Courts Revenue Trust Fund. Requires person to pay clerk of court specified percentage previously deducted under certain circumstances. In House Appropriation’s Committee, Transportation and Infrastructure Subcommittee.

HB 1173 AS APPROVED IN SUBCOMMITTEE

  • Requires the Department of Highway Safety and Motor Vehicles (DHSMV) to immediately suspend the motor vehicle registration for the first offense of failing to comply with a civil traffic infraction.
  • Keeps the existing driver license suspension penalty for a subsequent offense.
  • Allows the clerk of the court to authorize community service for indigent applicants for noncriminal traffic infractions and provides guidelines for authorizing community service. Courts can currently authorize community service if a person shows demonstrable financial hardship.

Approved by House Appropriation’s Committee, Transportation and Infrastructure Subcommittee 3/21/17.

SB 302 AS COMMITTEE SUBSTITUTED

  • Removes suspension and revocation penalties for a number of specified non-driving-related offenses
  • Allows individuals whose licenses are suspended for failure to comply with a court order or failure to pay court financial obligations to apply for a hardship license issued by the Department of Highway Safety and Motor Vehicles
  • Requires the court to inquire about a person’s financial ability to pay a fine at the time a civil penalty is ordered in court
  • Prohibits a Driver’s License (DL) from being suspended solely for inability to pay a financial penalty or court obligation if the individual demonstrates to the court that he or she cannot pay
  • Adds criteria of what evidence demonstrates to the court that a person is unable to pay
    1. The person receives reemployment assistance or unemployment compensation;
    2. The person is disabled and incapable of self-support or receives benefits under the federal Supplemental Security Income program or the Social Security Disability Insurance Program;
    3. The person receives temporary cash assistance;
    4. The person is making payments in accordance with a confirmed bankruptcy plan under chapter 11, chapter 12, or chapter 13 of the United States Bankruptcy Code;
    5. The person has been placed on a payment plan or payment plans with the clerk of court which in total exceed what is determined to be a reasonable payment plan; or
    6. The person has been determined to be indigent after filing an application with the clerk of court
  • Prohibits court-approved payment plans from exceeding two percent of an applicant’s income, unless approved by the applicant

Approved as substituted by Senate Transportation Committee 2/7/17.

SB 1574 See HB 1173 as filed. In Senate Criminal Justice Committee.

Florida: bills grant liability exemption for clerks of court that release confidential information if filer fails to make it clear info is confidential

What happens when a document is filed with the court that contains confidential information, but the filer does not indicate it? And then the clerk of court releases that information?

Under Florida HB 441 / SB 202 the clerk would not be liable for the release.

Specifically, the bills as amended provide

The clerk of the court is not liable for the release of information that is required by the Florida Rules of Judicial Administration to be identified by the filer as confidential if the filer fails to make the required identification of the confidential information to the clerk of the court.

The bills, as originally filed, included the word “inadvertent” (“The clerk of the court is not liable for the inadvertent release…”)

HB 441 as amended is now pending in the Civil Justice and Claims Subcommittee having been initially approved 15-0 by that group. SB 202 has cleared the Senate Judiciary and Governmental Oversight and Accountability Committees and is now in the Senate Rules Committee.

Florida is 2nd state this year to try and repeal judge’s authority to ban guns from their own courtrooms

I mentioned earlier this week the effort in Arkansas to repeal that state’s statute that allows judges to” “determin[e] who will carry a concealed weapon into his or her courtroom.” Now Florida’s House is considering a similar measure.

Current law in Florida provides a license to carry a concealed weapon or firearm doesn’t allow for either courthouse (F.S. 790.06(12)(a)(4)) or courtroom (F.S. 790.06(12)(a)(5)) carry. It is essentially identical to Arkansas’ law.

F.S. 790.06(12)(a)(5) in particular specifies a judge “determin[e] who will carry a concealed weapon in his or her courtroom.”

HB 803 as filed repeals all location-specific bans on concealed carry found in F.S. 790.06, including the restrictions on courthouse/courtroom carry and the judge’s authority in this area.

HB 803 has been filed in the House Judiciary Committee.

Florida: bill prohibits using public records act to obtain judges’ business email addresses for 5 years

Like most states, Florida law does not allow for personal information related to judges to be publicly released under the state’s open records act. Specifically exempted are the home addresses, dates of birth, and telephone numbers of current or former judges. Now a bill would make a judge’s business e-mail addresses not subject to release.

SB 1736 amends the general exemptions from inspection or copying of public records statute to include the business e-mail addresses of current judges/justices of the state’s 4 courts (supreme, district court of appeal, circuit, and county). The provision would last only 5 years and be automatically repealed unless re-enacted by October 2, 2022.

SB 1736 has been filed but not yet assigned to a committee.

 

Florida: Senate version of “Judicial Accountability” bill would no longer force judges off of criminal cases if racial disparity in sentencing found

The Florida Senate’s Criminal Justice committee earlier today held a hearing on SB 382 which would require the legislature’s Office of Program Policy Analysis and Government Accountability (OPPAGA) collect data on all criminal sentences handed down over the previous 5 calendar years to determine whether or not judges were issuing disparate sentences based on race or other demographic criteria. The reports would have to be posted online.

The committee-approved version of the bill makes two changes via amendment.

  1. Judges who are found to have issued disparate sentences would not be forced to automatically recuse/disqualify in cases involving a member of a particular demographic group.
  2. The demographic data collect would be different.
Original Amended
Age Date of Birth
Sex Sex
Race Race and ethnicity
Income Court-appointed or private counsel
Prior criminal history Scoresheet

Scoresheet here appears to refer to this scoresheet used to assist in determining sentences.

During the hearing (video here starting at 43:00) the author indicated this was not a bill to attack judges but only to collect data. Others voiced concerns that, given the high percentage of plea bargains (98% in at least one area in the state), that the data would not reflect the judge’s sentencing but the plea agreements reached between the prosecutors and defendants.

As a result of these concerns, the possibility of coming up with some form of compromise bill was brought up. In the end, SB 382 was postponed in the committee.

Florida: hearing on “Judicial Accountability” bill, would force judges off of criminal cases if racial disparity in sentencing found

A hearing has been set for next week before the Florida Senate’s Criminal Justice committee on a bill that could force judges to recuse if they are found to be handing down disproportionate sentences to members of minority groups.

Under SB 382 as discussed here the legislature’s Office of Program Policy Analysis and Government Accountability (OPPAGA) would be required to collect data on all criminal sentences handed down over the previous 5 calendar years. Data would include:

(a) The judge who presided over each trial.
(b) The judge who presided over the sentencing phase.
(c) The circuit in which, and the specific location of the court at which, each case was heard.
(d) Each offense for which the defendant was convicted or entered a plea of nolo contendere.
(e) The range of possible sentences for each offense.
(f) The sentence imposed for each offense, including, but not limited to, any fines or jail, prison, probation, or other imposed terms.
(g) Demographic information about the defendant, including, but not limited to:

1. Age.
2. Sex.
3. Race.
4. Income.
5. Prior criminal history.

If OPPAGA’s analysis found evidence of disparity in sentencing by a judge with regard to any demographic group, the judge would be disqualified from any case involving a member of that demographic group, pursuant to s. 38.10.

Additionally, OPPAGA’s judge-by-judge reports would be delivered to the individual judge as well as the Governor, Chief Justice, and Legislative leaders.

Florida: Senate now has its own constitutional amendment to allow legislature to override “activist judges” by 2/3rds vote

I mentioned last month the proposal in the Florida House that would allow the legislature to override state court decisions by a 2/3rds vote. Now the Senate has its own version.

HJR 121 and the identical SJR 1098 filed earlier this week provide

Any law, resolution, or other legislative act declared void by the supreme court, district court of appeal, circuit court, or county court of this state may be deemed active and operational, notwithstanding the court’s ruling, if agreed to by the legislature pursuant to a resolution adopted by a two-thirds vote of each house within five years after the date that the ruling becomes final. Such resolution is exempt from section 8 of this article and shall take effect immediately upon passage.

The House proponent has posted on own website that the rationale for the proposal, and a similar one urging Congress to enact a federal 2/3rds override plan, is to “curtail the tendency of activist judges to manipulate the law to suit their political views and agendas.”

SJR 1098 has been filed but not yet assigned to a committee.