JAMES S. MATTSON, ANDREW M. TOBIN, AND JOSEPH J. VETRICK, D/B/A MATTSON TOBIN & VETRICK, ATTORNEYS AT LAW, PETITIONERS,
v.
DANNY L. KOLHAGE, AS CLERK OF THE CIRCUIT COURT OF THE SIXTEENTH JUDICIAL CIRCUIT, IN AND FOR MONROE COUNTY, FLORIDA, RESPONDENT
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Attorneys petitioned for a writ of mandamus to compel the Circuit Court Clerk to accept and file civil motions without requiring a notice of hearing. The court granted the petition, holding that the clerk has a ministerial duty to accept all motions in pending cases regardless of whether they include a notice of hearing.
The clerk has a ministerial duty to accept all motions presented for filing in pending circuit court cases. The judges' memorandum placing a condition on the clerk's obligation to file motions is impermissible, and the clerk must accept motions regardless of whether they include a notice of hearing.
[1] A clerk of court has a ministerial duty to accept all papers filed in their office, including motions in pending cases.
[2] Judicial memoranda directing a clerk of court to refuse to file motions not accompanied by a notice of hearing are impermissible.
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Join FLexlaw to unlock all legal intelligence“The clerk is charged with the ministerial duty to 'keep all papers filed in his office with the utmost care and security, arranged in appropriate files (endorsing upon each the time when the same was filed)....'”
Establishes the clerk's mandatory statutory duty to accept all papers for filing without discretionary exceptions.
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Join FLexlaw to unlock all legal intelligenceTwo judges in the Middle Keys Division of the Sixteenth Judicial Circuit issued a memorandum instructing the clerk not to accept civil motions unless …
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PER CURIAM.
Petitioners James S. Mattson, Andrew M. Tobin and Joseph J. Vetrick petition for a writ of mandamus to the Clerk of the Circuit Court of the Sixteenth Judicial Circuit.* We grant the petition.
In March, 1989, two judges of the Sixteenth Judicial Circuit directed a memorandum to the Clerk of the Circuit Court for the Middle Keys Division. The memorandum instructed the clerk not to accept for filing any circuit court civil motion not accompanied by a notice of hearing setting the motion for a hearing with the appropriate judge. The memorandum does not apply elsewhere in the Sixteenth Judicial Circuit. The purpose of the memorandum is to assure that there is expeditious scheduling and resolution of motions in civil cases.
Petitioners are attorneys practicing in the Sixteenth Judicial Circuit. In three instances they have attempted to file motions in the Middle Keys Division without a notice of hearing. In each instance the clerk declined to file it. Each motion was returned unfiled, accompanied by a memorandum stating, “I’m sorry I cannot accept your motion without a notice of hearing. This is an order from the judge. If you have any questions, please call us.” Petitioners contend that the judges’ memorandum places an impermissible limitation on the obligation of the clerk to file motions in pending cases. We agree.
The clerk is charged with the ministerial duty to “keep all papers filed in his office with the utmost care and security, arranged in appropriate files (endorsing upon each the time when the same was filed)....” § 28.13, Fla.Stat. (1989) (emphasis added). The clerk is required to “keep a progress docket in which he shall note the filing of each pleading, motion, or other paper and any step taken by him in connection with each action, appeal, or other proceeding before the court.” Id. § 28.211. In short, the clerk is obliged to accept motions presented for filing in pending cases. See Outboard Marine Domestic Int’l Sales Corp. v. Florida Stevedoring Corp., 483 So. 2d 823, 823-24 (Fla. 3d DCA 1986); see also State ex rel. Kaufman v. Sutton, 231 So. 2d 874, 875 (Fla. 3d DCA 1970) (as qualified in Outboard Marine ). See generally State ex rel. Druissi v. Almand, 75 So. 2d 905, 906-07 (Fla.1954); Ferlita v. State, 380 So. 2d 1118, 1119 (Fla. 2d DCA 1980). The memorandum directed to the clerk was impermissible and the petitioners are entitled to the requested relief.
We sympathize with the judges’ stated objective of expediting the flow of judicial business. We do not quarrel with that objective, but less drastic means will need to be employed to achieve it.
We therefore grant the petition for writ of mandamus and direct that the clerk of the circuit court accept motions presented for filing in circuit court civil cases.
*
The court expresses its appreciation to the Florida Keys Bar Association for its brief as amicus curiae, and participation at oral argument, in this matter.
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Town Ctr. OF Islamorada, Inc. v. The Honorable J. Jefferson Overby, 592 So. 2d 774 (Fla. 3d DCA 1992)…ight to Disqualify Judge by Participation in Proceedings, 24 A.L.R. 4th 870 (1983). The petition for writ of prohibition is granted in case 91-1845 and denied in case 91-1873. . The challenge was successful. This court held, in Mattson v. Kolhage, 569 So. 2d 1358 (Fla. 3d DCA 1990), that the derk was required to accept all motions presented for filing in pending cases with or without notices of hearing.…
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Lewis v. State, 764 So. 2d 636 (Fla. 1st DCA 2000)…Kramp v. Fagan, 568 So. 2d 479 (Fla. 1st DCA 1990). In the instant matter, Lewis has not demonstrated that a respondent has failed to perform a ministerial duty and thus entitlement to a writ of mandamus has not been shown. See Mattson v. Kolhage, 569 So. 2d 1358 (Fla. 3d DCA 1990). Petitioner has not identified any other extraordinary writ remedy which would he to present the instant claim nor are we aware of any original jurisdictional vehicle which would allow us to reach the issue. The postcon-viction pr…
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Kollin v. Ader, 591 So. 2d 320 (Fla. 3d DCA 1991)…PER CURIAM. This proceeding challenges a practice which is identical to that held unlawful in Mattson v. Kohlage, 569 So. 2d 1358 (Fla. 3d DCA 1990), under which, in accordance with the instructions of the administrative judge of the criminal division, the Dade County Circuit Court Clerk refuses to accept motions for filing in that division unless they are accompanied by notic…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Ferlita v. State, 380 So. 2d 1118 (Fla. 2d DCA 1980)
- Outboard Marine Dom. Int'l Sales Corp. & Yatacha C.A. For Use & Benefit of Underwriters at Lloyds of London v. Fla. Stevedoring Corp., 483 So. 2d 823 (Fla. 3d DCA 1986)
- State of Fla. ex rel. Nicolino Druissi v. Almand, 75 So. 2d 905 (Fla. 1954)
- State v. Sutton, 231 So. 2d 874 (Fla. 3d DCA 1970)