Does a Florida clerk have to charge a filing fee to file a domestic violence protection petition?

Plain-English summary

The clerk of court for Putnam County had a problem created by a 2009 budget bill. Since 2002, section 741.30(2)(a) had flatly barred charging any filing fee for a petition for protection against domestic violence. But during the 2009 session, the Legislature amended section 28.241 to set circuit court filing fees, and one new provision listed a fee of up to $295 for cases under chapter 741, the very chapter that covers domestic violence injunctions. The clerk asked which statute won: did he now have to charge a fee, or did the old prohibition still control?

Attorney General Bill McCollum concluded the clerk may not charge the fee. The key was the language of section 741.30(2)(a), which prohibits the fee "notwithstanding any other provision of law." While one rule of construction says the later-enacted statute usually prevails in a true conflict, another says a specific provision controls over a general one, and the Florida Supreme Court in American Bakeries Company v. Haines City held that a later general act does not repeal an earlier specific one. The opinion reviewed the legislative record behind Chapter 2009-61 and found no sign the Legislature meant to lift the domestic violence fee bar. To the contrary, the conference committee summary said the fee increases applied except for family law cases in chapters 39, 61, 741, 742, 747, 752, and 753. So the specific, emphatic prohibition in section 741.30(2)(a) survived, and clerks could not assess a filing fee for these petitions. The opinion added that, given the confusion, the Legislature might want to clarify its intent.

Currency note

This opinion was issued in 2009. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Is there a filing fee to get a domestic violence injunction in Florida?
A: The opinion concluded there is not. Section 741.30(2)(a) prohibits a filing fee for a petition for protection against domestic violence, and the 2009 fee amendment did not change that.

Q: Didn't the 2009 law set a fee for chapter 741 cases?
A: It listed a fee for chapter 741 generally, which created the confusion. But the opinion read the specific, "notwithstanding any other provision of law" prohibition in section 741.30(2)(a) as controlling over that general fee provision.

Q: How did the AG decide which statute wins?
A: It applied the rule that a specific statute controls over a general one, backed by American Bakeries Company v. Haines City, and found nothing in the legislative history showing intent to repeal the domestic violence fee bar.

Q: How does the clerk recover costs if there is no fee?
A: Section 741.30(2)(a) lets the clerk submit a quarterly certified request to the Office of the State Courts Administrator for reimbursement at $40 per petition issued, subject to legislative appropriation, and pay the serving law enforcement agency up to $20 from it.

Background and statutory framework

Two statutes collided here. Section 741.30(2)(a), effective October 1, 2002, prohibits assessing a filing fee for a domestic violence protection petition and sets up a reimbursement mechanism through the Office of the State Courts Administrator instead. Section 28.241, as amended by section 5 of Chapter 2009-61, raised circuit civil filing fees and, in a subparagraph, listed a fee for proceedings under chapter 741 among other family-law chapters.

The opinion resolved the tension with settled construction principles. The general rule that the latest expression prevails (Askew v. Schuster) gives way when the earlier statute is specific and the later one general, as American Bakeries Company v. Haines City holds and Alford v. Duval County School Board echoes for implied repeals. The companion rule that a specific provision controls over a general one (McKendry v. State; Gretz v. Florida Unemployment Appeals Commission) pointed the same way, and legislative intent remains the polestar (State v. Rife; McLaughlin v. State). The conference committee summary and the bill title confirmed the 2009 changes aimed to raise civil fees, not to strip the domestic violence exemption, and section 28.241 itself still recognized cases with no initial filing fee.

Citations and references

Statutes:

• Section 741.30(2)(a), Florida Statutes (no filing fee for domestic violence protection petition)
• Section 28.241, Florida Statutes (circuit court filing fees)
• Ch. 2009-61, Laws of Fla. (2009 filing-fee amendments)

Cases:

• American Bakeries Company v. Haines City, 180 So. 524 (Fla. 1938), later general act does not repeal earlier specific one
• Askew v. Schuster, 331 So. 2d 297 (Fla. 1976), latest expression generally prevails
• McKendry v. State, 641 So. 2d 45 (Fla. 1994), specific controls over general
• Gretz v. Florida Unemployment Appeals Commission, 572 So. 2d 1384 (Fla. 1991), specific fee statute controls
• State v. Rife, 789 So. 2d 288 (Fla. 2001), legislative intent is the polestar

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/clerks-domestic-violence-protection-injunction
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/1754

Original opinion text

The Honorable Tim Smith

Clerk of Courts, Putnam County

Post Office Box 758

Palatka, Florida 32178-0758

RE: CLERKS OF COURT–DOMESTIC VIOLENCE–COURTS–FILING FEES–clerk prohibited from imposing filing fee for domestic violence protection petition. ss. 28.241 and 741.30, Fla. Stat.

Dear Mr. Smith:

As clerk of the circuit court for Putnam County, you ask substantially the following question:

In light of the recent amendment to section 28.241(1)(a)1.b., Florida Statutes, by section 5, Chapter 2009-61, Laws of Florida, is a clerk of court required to assess a filing fee for the filing of a petition for a domestic violence injunction despite the language of section 741.30(2)(a), Florida Statutes, which prohibits the assessment of filing fees for such petitions?

In sum:

In light of the specific prohibition in section 741.30(2)(a), Florida Statutes, the clerk of court may not assess a filing fee for the filing of a petition for a domestic violence injunction.

Section 741.30(2)(a), Florida Statutes provides:

"Notwithstanding any other provision of law, the assessment of a filing fee for a petition for protection against domestic violence is prohibited effective October 1, 2002. However, subject to legislative appropriation, the clerk of the circuit court may, on a quarterly basis, submit to the Office of the State Courts Administrator a certified request for reimbursement for petitions for protection against domestic violence issued by the court, at the rate of $40 per petition. The request for reimbursement shall be submitted in the form and manner prescribed by the Office of the State Courts Administrator. From this reimbursement, the clerk shall pay any law enforcement agency serving the injunction the fee requested by the law enforcement agency; however, this fee shall not exceed $20." (e.s.)

During the 2009 legislative session, however, the Legislature in section 5, Chapter 2009-61, Laws of Florida, amended section 28.241, Florida Statutes, to provide:

"1.a. Except as provided in sub-subparagraph b. and subparagraph 2., the party instituting any civil action, suit, or proceeding in the circuit court shall pay to the clerk of that court a filing fee of up to $395 in all cases in which there are not more than five defendants and an additional filing fee of up to $2.50 for each defendant in excess of five. . . .

b. The party instituting any civil action, suit, or proceeding in the circuit court under chapter 39, chapter 61, chapter 741, chapter 742, chapter 747, chapter 752, or chapter 753 shall pay to the clerk of that court a filing fee of up to $295 in all cases in which there are not more than five defendants and an additional filing fee of up to $2.50 for each defendant in excess of five. . . ." (e.s.)

Due to the amendment to section 28.241(1)(a), Florida Statutes, the question has been raised as to whether a clerk is now required to charge a filing fee for a petition for protection against domestic violence.

While the rules of statutory construction provide that the last adopted expression of the Legislature will generally prevail in the case of two statutory provisions that cannot be reconciled,[1] it is also a rule of construction that the specific provision will control over the more general provision.[2] As the Florida Supreme Court recognized in American Bakeries Company v. Haines City,[3] the rule of construction that last in time prevails is inapplicable where precedent act is special or particular and subsequent act is general, as later general act does not repeal former particular statute. Moreover, it is well settled that legislative intent is the polestar that guides a court's statutory construction analysis.[4]

A review of the legislative records surrounding the enactment of Chapter 2009-61, Laws of Florida, did not reveal any evidence that the Legislature intended to remove the prohibition against imposing a filing fee for domestic violence protection petitions. Rather, an examination of the statute indicates that the legislation was intended to increase certain fees for filing civil actions. As reported in the Summary of Conference Committee Action, the increased fees were to be imposed except for family law cases in Chapters 39, 61, 741, 742, 747, 752 or 753, Florida Statutes.[5]

Accordingly, in light of the above and the plain language of section 741.30(2), Florida Statutes, which clearly prohibits the imposition of such a fee "[n]otwithstanding any other provision of law," I am of the opinion that the recent amendment to section 28.241(1)(a)1.b., Florida Statutes, by section 5, Chapter 2009-61, Laws of Florida, does not require a clerk of court to assess a filing fee for the filing of a petition for a domestic violence injunction. However, in light of the confusion raised by the 2009 legislation, the Legislature may wish to clarify its intent on this issue.

Sincerely,

Bill McCollum

Attorney General

BM/tjw

[1] See, e.g., Askew v. Schuster, 331 So. 2d 297 (Fla. 1976); Florida Association of Counties, Inc. v. Department of Administration, Division of Retirement, 580 So. 2d 641 (Fla. 1st DCA 1991), approved, 595 So. 2d 42 (Fla. 1992) (general rule is that in cases of conflicting statutory provisions, latter expression will prevail over former).

[2] See, e.g., McKendry v. State, 641 So. 2d 45 (Fla. 1994); Gretz v. Florida Unemployment Appeals Commission, 572 So. 2d 1384 (Fla. 1991) (specific statute stating no fee for transcript preparation in unemployment compensation appeals controls over general statute requiring agency to provide transcripts at actual cost); Barnett Banks, Inc. v. Department of Revenue, 738 So. 2d 502 (Fla. 1st DCA 1999).

[3] 180 So. 524 (Fla. 1938). And see Alford v. Duval County School Board, 324 So. 2d 174 (Fla. 1st DCA 1975), stating that while statutes may be impliedly as well as expressly repealed, the enactment of a statute does not operate to repeal by implication prior statutes, unless such is clearly the legislative intent and that the mere fact that a later statute relates to matters covered in whole or in part by a prior statute does not cause a repeal of the older statute.

[4] See State v. Rife, 789 So. 2d 288, 292 (Fla. 2001); McLaughlin v. State, 721 So. 2d 1170, 1172 (Fla. 1998).

[5] See Summary of Conference Committee Action on CS/SB 1718, dated May 6, 2009,

(http://www.flsenate.gov/data/session/2009/Senate/bills/analysis/ConferenceReports/2009s1718.conf.pdf), stating:

"Except for family law cases in chapters 39, 61, 741, 742, 747, 752, or 753, the bill increases the circuit civil filing fee from $295 to $395 and directs the increase to be deposited in the State Courts Revenue Trust Fund."

And see Title to Ch. 2009-61, Laws of Fla., stating that the bill

"amending s. 28.241, F.S.; increasing the maximum filing fee for certain civil actions; providing for a portion of circuit court filing fees to be deposited in the State Courts Revenue Trust Fund; eliminating a requirement for the clerk of court to remit a portion of excess filing fees to the Department of Revenue; prescribing a maximum filing fee for certain family law actions; providing for the distribution of such fee; providing for the payment of graduated filing fees in certain real property or mortgage foreclosure actions; providing a manner for valuing mortgage foreclosure claims; prescribing graduated filing fees based on the value of the claim; requiring a fee for filing a pleading for relief by counterpetition; providing for the payment of graduated filing fees for certain real property or mortgage foreclosure pleadings for relief by cross-claim, counterclaim, counterpetition, or third-party complaint; prescribing graduated filing fees based on the value of the pleading; providing for remittance of fees by the clerk of court and for deposit into specified funds; eliminating a requirement for the clerk of court to remit a portion of fees collected to the Department of Revenue for deposit into a specified trust fund; . . . ."

See also s. 28.241(1)(b)(18), Fla. Stat., as amended, which indicates that the Legislature still recognized that there were cases for which no filing fee was to be imposed, by providing:

"A party reopening any civil action, suit, or proceeding in the circuit court shall pay to the clerk of court a filing fee set by the clerk in an amount not to exceed $50. . . . A party is exempt from paying the fee for any of the following:

• • *18. Cases in which there is no initial filing fee."