The Honorable Dorothy H. Wilken Clerk of the Circuit Court Post Office Box 229 West Palm Beach, Florida 33402-0229
Dear Ms. Wilken:
You ask substantially the following question:
Does the word "assist" in section
In sum:
The term "assist" as used in section
Section
1. The clerk of the court shall assist petitioners in seeking injunctions for protection against domestic violence.
2. All clerks' offices shall provide simplified petition forms including instructions for completion.
3. The clerk of the court shall advise petitioners of the availability of affidavits of insolvency or indigence in lieu of payment for the cost of the filing fee, as provided in paragraph (a).
4. The clerk of the court shall ensure the petitioner's privacy to the extent practical while completing the forms for injunctions for protection against domestic violence.
5. The clerk of the court shall provide petitioners with a minimum of two certified copies of the order of injunction, one of which is serviceable and will inform the petitioner of the process for service and enforcement.
6. Clerks of court and appropriate staff in each county shall receive training in the effective assistance of petitioners as provided or approved by the Florida Association of Court Clerks.
7. The clerk of the court in each county shall make available informational brochures on domestic violence when such brochures are provided by local certified domestic violence centers.
8. The clerk of the court in each county shall distribute a statewide uniform informational brochure to petitioners at the time of filing for an injunction for protection against domestic violence or repeat violence when such brochures become available.
You state that your office does not offer professional counseling or legal advice to victims of domestic violence. According to your letter, however, a question has arisen as to whether you should offer more programs and legal services to victims of domestic violence than mere clerical assistance.
The courts and this office have recognized that the clerk, although a constitutional officer, possesses only such powers as have been expressly or necessarily implied.2 However, where a statute imposes a duty on an officer, unaccompanied by definite directions as to how the authority is to be exercised, such a grant implies a right to employ the means and methods necessary to comply with the statute.3
The language of section
An examination of the legislative history surrounding the 1991 amendment indicates that the legislation sought to revise the form and filing procedures related to an injunction for protection against domestic violence and that "clerks of court trained in these issues are to assist petitioners at the time of filing."6 (e.s.) As set forth in the staff analysis for the legislation,
The bill amends s.
The staff analysis notes that several circuit courts, such as the Hillsborough County clerk's office, have domestic violence programs that "are very similar to those described in this bill." This office has been advised that the domestic violence program of the Hillsborough County clerk's office offers clerical assistance to persons in filling out the forms for injunctive relief against domestic violence. In addition, the clerk has set aside a room where petitioners may fill out the forms in privacy. Legal advice, however, is not given. While assistance is given to petitioners as to how to file the petition and what fees may be imposed, petitioners are not advised as to the content of the information they should include in the petition.
Section
Language in the original bill that required court clerks to "effectively assist" petitioners for domestic violence injunctions was deleted after The Florida Bar indicated that such language "could infringe into the unauthorized practice of law if it included advising petitioners on what relief and remedies to seek."8 Thus, the bill was amended to require clerks to assist rather than "effectively assist."9
In light of the above, it appears that the legislative directive that the clerks of court provide assistance to petitioners for injunction protection in domestic violence cases contemplates that the clerk will provide clerical assistance in filling out the forms necessary to seek an injunction in domestic violence cases. While the decision regarding the manner of best carrying out such a duty rests with the clerk, the clerk should make every effort to ensure that the purpose of the 1991 reforms to the statute are fullfilled — to assist victims being subjected to abuse by establishing procedures to ensure that an injunction against domestic violence may now be more quickly and easily obtained. As the Supreme Court of Florida recognized in The Office of the State Attorney, Fourth Judicial Circuit of Florida,10
[T]he Florida Bar has developed and this Court has approved simplified forms to obtain the injunction. Supreme Court Approved Simplified Forms 3. These forms are readily available throughout Florida, at the office of every clerk of the court, at The Florida Bar's offices, and in many libraries. And the Florida Legislature also has directed that each clerk of the court shall assist women in filling out the simplified forms and shall waive fees, whenever necessary.
Sincerely,
Robert A. Butterworth Attorney General
RAB/tjw
That concern may become moot because a uniform petition for injunction for protection against domestic violence form is now before the Florida Supreme Court along with other uniform legal forms for a determination of approval as a uniform approved legal form. Under Rule 10-1.1(b) of the Rules Regulating The Florida Bar, a nonlawyer may assist an individual in filling out a Supreme Court approved uniform legal form without engaging in the unauthorized practice of law.