Can a Florida circuit court clerk sell uncollected court-ordered debts (court costs, fines, attorney-fee liens) to a third-party debt buyer?

Plain-English summary

Florida Attorney General Ashley Moody concluded that a circuit court clerk lacks statutory authority to sell uncollected court-ordered debts to a third-party debt purchaser. The opinion responded to the Santa Rosa County Clerk, who reported that "millions of dollars of debt remain outstanding" despite use of an in-house compliance department and authorized collection agents, and who proposed to sell long-aged debts in bulk to a debt buyer.

The AG's analysis rests on two propositions. First, "the clerk of the circuit court, although a constitutional officer, possesses only such powers as have been expressly, or by necessary implication, granted by statute," and "official action, to be binding upon others, must be in conformity with the statutes." Second, § 28.246, Fla. Stat. specifies how clerks must collect and disburse court-ordered debts: in-house collection, payment plans, and referral to a Florida-Bar private attorney or a chapter 559-registered collection agent after 90 days. Sale to a third-party debt purchaser is not on the statute's list of authorized collection options.

The AG addressed the cross-reference in § 938.29(3) (which permits the clerk to "enforce, satisfy, compromise, settle, subordinate, release, or otherwise dispose of" certain debts and liens) by reading "or otherwise dispose" narrowly in light of the specific collection mechanisms § 28.246(6) sets out. The catch-all does not enable methods that contradict the specific authorization scheme.

Because the answer to the first question was no, the AG did not reach the second question (whether a judgment debtor's driver's license could be reinstated under § 322.245(5)(b)(1) after a sale).

The conclusion is qualified as one that holds "unless and until legislatively or judicially determined otherwise."

What this means for you

Florida circuit court clerks

The opinion treats § 28.246 as the exhaustive list of the clerk's collection authority for court costs, fines, and other dispositional assessments. The AG identifies four authorized mechanisms: in-house collection processes (collection court, collections docket, or other internal process); payment plans (including partial-payment options); referral to a private attorney who is a Florida Bar member in good standing; and referral to a collection agent registered under chapter 559. Sale to a debt purchaser is not among the authorized mechanisms under the AG's reading.

General counsel advising Florida clerks

The opinion relies on the long-standing rule that a clerk's authority is "entirely statutory," citing a string of prior AG opinions (Ops. Att'y Gen. Fla. 2010-20, 95-33, 90-69, 90-42, 86-38, 80-93). The AG also reads § 938.29(3)'s "or otherwise dispose" phrase narrowly: in the AG's reading, it does not authorize methods not enumerated in the § 28.246(6) collection scheme.

Debt-purchasing firms

The opinion concludes that Florida circuit court clerks lack statutory authority to convey court-ordered debts to a third-party debt purchaser. The AG framed the resolution of the policy concern (aged uncollected court debt) as legislative rather than interpretive.

Florida legislators

The AG concluded that § 28.246 as currently drafted does not authorize sale of court debts. The opinion does not separately analyze any consequences for debtor-side relief under § 322.245(5)(b)(1) because the second question was not reached.

Common questions

Q: Why doesn't § 938.29's "or otherwise dispose" allow a sale?
A: The AG read "or otherwise dispose" in light of "the specific context in which that language is used, and the broader context of the statute as a whole," and concluded that § 28.246(6) is the controlling specific authority. In the AG's reading, the catch-all does not authorize a method not within § 28.246(6)'s enumerated collection mechanisms.

Q: What collection mechanisms does § 28.246 authorize?
A: The AG identifies an in-house collection process, payment plans (with partial-payment options), referral to a Florida-Bar member private attorney, and referral to a chapter 559-registered collection agent (after 90 days unpaid and after the in-house process has attempted collection cost-effectively under applicable procurement rules).

Q: Did the AG address what happens to a debtor's driver's license after a sale?
A: No. The AG declined to reach the second question (about § 322.245(5)(b)(1) reinstatement after a sale) because the answer to the first question was no.

Q: Does this opinion address private civil judgments?
A: The opinion addresses the debts that § 28.246 covers, court costs, fines, dispositional assessments, and liens for attorney fees and costs under § 938.29. The opinion does not analyze other types of judgments.

Q: How firm is the AG's conclusion?
A: The AG framed the conclusion as one that holds "unless and until legislatively or judicially determined otherwise." AG opinions are persuasive but not binding on courts.

Background and statutory framework

Section 28.246, Florida Statutes, is the central statute on clerk collection of court costs, fines, and other dispositional assessments. The clerk must "collect court costs, fines, and other dispositional assessments and disburse such in accordance with authorizations and procedures as established by general law." It contains requirements for partial payments and payment plans, and subsection (6) sets the escalation when in-house efforts fail:

A clerk of court shall pursue the collection of any fees, service charges, fines, court costs, and liens for the payment of attorney fees and costs pursuant to s. 938.29 which remain unpaid after 90 days by referring the account to a private attorney who is a member in good standing of The Florida Bar or collection agent who is registered and in good standing pursuant to chapter 559. In pursuing the collection of such unpaid financial obligations through a private attorney or collection agent, the clerk . . . must have attempted to collect the unpaid amount through a collection court, collections docket, or other collections process, if any, established by the court, find this to be cost-effective and follow any applicable procurement practices.

Section 938.29 governs the imposition of debts and liens against defendants who received indigent-defense services; subsection (3) provides that the clerk "shall enforce, satisfy, compromise, settle, subordinate, release, or otherwise dispose of" such a debt or lien. The AG read this as accomplished "only … through the specific provisions of section 28.246(6)," with "or otherwise dispose" not enabling an outright sale.

The AG relied on the State v. Peraza canon that "the starting point for any statutory construction issue is the language of the statute itself, and a determination of whether that language plainly and unambiguously answers the question presented," and on the rule that "the plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole."

Citations and references

Statutes:
- § 28.246, Fla. Stat. (Clerk of court collection of court costs and fees)
- § 938.29, Fla. Stat. (Liens for legal assistance to defendants)
- § 322.245, Fla. Stat. (Suspension of driver's license for failure to pay financial obligations)
- Chapter 559, Fla. Stat. (Regulation of trade, commerce, investments, and solicitations)

Cases:
- State v. Peraza, Florida Supreme Court statutory-construction methodology (plain language first)

Prior AG opinions:
- Op. Att'y Gen. Fla. 2010-20 (2010), 95-33 (1995), 90-69 (1990), 90-42 (1990), 86-38 (1986), 80-93 (1980): a clerk's authority is purely statutory

Source

• Original PDF: https://www.myfloridalegal.com/print/pdf/node/26576

Original opinion text

The full opinion as issued by Attorney General Ashley Moody:

Mr. W. Timothy Weekley
General Counsel
Clerk of the Circuit Court and Comptroller
Santa Rosa County, Florida
PO Box 472
Milton, Florida 32572

Dear Mr. Weekley:

On behalf of the Honorable Donald C. Spencer, Clerk of the Circuit Court and Comptroller for Santa Rosa County ("Clerk"), you ask substantially the following questions:

1. Under sections 28.246(6) and 938.29(3), Florida Statutes, are circuit court clerks authorized to sell to a debt purchaser court-ordered debts, which such clerk is obligated by statute to collect either outright, through a payment plan, or "by referring the account to a private attorney who is a member in good standing of The Florida Bar or collection agent who is registered and in good standing pursuant to chapter 559"?

2. If so, may a judgment debtor's driver's license be reinstated pursuant to section 322.245(5)(b)(1), Florida Statutes, following such sale of the debtor's court-ordered financial obligation?

In sum

Section 28.246, Florida Statutes, obligates circuit court clerks ("clerks") to collect court costs, fines, and other dispositional assessments. The statute further requires such clerks to refer to a private attorney or collection agent judgment-debtors who do not establish a payment plan or who do not remain current with their payment plans. The statute does not specify that selling the debt to a third-party debt collector is a means of disposing of the debt; therefore, the clerk is not authorized to fulfill the clerk's statutory collection and disbursement obligations in that way. This conclusion makes it unnecessary to answer your second question.

Background

According to your correspondence, the Santa Rosa County Clerk's Office has an in-house compliance department and utilizes collection agents, as authorized by section 28.246(6), Florida Statutes. Despite these efforts, "millions of dollars of debt remain outstanding." The Clerk proposes to collect some payment towards these debts by selling longstanding financial obligations to a debt purchaser, thereby transferring the indebtedness to a third party. If such transfer is deemed authorized, you ask how this might affect certain debtor rights which, by statute, are dependent upon payment or other statutorily authorized resolution of these outstanding obligations.

Analysis

This office has previously stated that the clerk of the circuit court, although a constitutional officer, possesses only such powers as have been expressly, or by necessary implication, granted by statute. Moreover, "[t]he clerk's authority is entirely statutory, and his official action, to be binding upon others, must be in conformity with the statutes."

Section 28.246, Florida Statutes, specifies both the clerk's obligations and authority to collect and disburse payments a person is obligated to make in accordance with court-ordered debts. The question, then, is whether section 28.246 authorizes the clerk to sell certain uncollected debts to third-party purchasers.

In State v. Peraza, the Florida Supreme Court stated that the "starting point for any statutory construction issue is the language of the statute itself, and a determination of whether that language plainly and unambiguously answers the question presented." The Court has also stated, "[t]he plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole."

Here, section 28.246 plainly lays out both the clerk's obligations and the clerk's authority with respect to collection and disbursement of court-ordered debts. It also requires clerks to report certain information to the Legislature. Section 28.246 states that clerks must "collect court costs, fines, and other dispositional assessments and disburse such in accordance with authorizations and procedures as established by general law." It contains requirements applicable to partial payments and payment plans. Finally, section 28.246(6) mandates, in pertinent part:

A clerk of court shall pursue the collection of any fees, service charges, fines, court costs, and liens for the payment of attorney fees and costs pursuant to s. 938.29 which remain unpaid after 90 days by referring the account to a private attorney who is a member in good standing of The Florida Bar or collection agent who is registered and in good standing pursuant to chapter 559. In pursuing the collection of such unpaid financial obligations through a private attorney or collection agent, the clerk . . . must have attempted to collect the unpaid amount through a collection court, collections docket, or other collections process, if any, established by the court, find this to be cost-effective and follow any applicable procurement practices.

The statute does not list the sale of such debts to a third-party purchaser as a permissible option.

You refer to section 938.29, which section 28.246(6) cross-references. Section 938.29(3) pertains to debts or liens imposed where a "defendant-recipient was tried or received the services of a public defender, special assistant public defender, office of criminal conflict and civil regional counsel, or appointed private legal counsel, or received due process services after being found indigent for costs." It provides, in part, that the clerk of the circuit court "shall enforce, satisfy, compromise, settle, subordinate, release, or otherwise dispose of any debt or lien imposed under this section." The only way that a clerk may accomplish such actions is through the specific provisions of section 28.246(6), which unambiguously apply to the "collection of any fees, service charges, fines, court costs, and liens for the payment of attorney fees and costs pursuant to s. 938.29." The phrase "or otherwise dispose," as used in section 938.29, does not suggest that an outright sale of the specified debt is permissible under section 28.246(6).

Conclusion

Based on the foregoing, it is my opinion that, unless and until legislatively or judicially determined otherwise, the Clerk must collect court costs, fines, and other dispositional assessments as specified in section 28.246, Florida Statutes. Because the methods enumerated in that section do not include the sale of such debts to a third-party debt purchaser, the Clerk lacks authority to fulfill applicable statutory collection and disbursement obligations in that manner.

Sincerely,

Ashley Moody
Attorney General