Transcription Costs Battle Leads to Mandamus Against Manatee Clerk

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In yet another sign that the clerks of court are feeling pinched by budget cuts and rising case loads, the Manatee County Clerk tried to cut costs by sending the parties to certain criminal appeals only electronic copies of trial transcripts, and not traditional paper copies. But both the State and the public defenders missed their paper copies, and they sought a writ of mandamus against the Clerk to force him to provide them with paper copies. In State, Office of Atty Gen’l v. Hon. R.B. “Chips” Shore, Clerk, Manatee County, 2D10-1932 (July 28, 2010) [.pdf] the Second DCA concluded that the litigants were correct, and the Florida Rules of Appellate Procedure require the Clerk, not the criminal appellant or court reporter, to bear the costs of making additional copies of the transcript.

Florida Rule of Appellate Procedure 9.140(f) provides for an exceptional procedure in certain publicly-funded cases whereby the court reporter files only the transcripts with the clerk, who must then make copies for distribution to the parties: “The lower tribunal may by administrative order in publicly-funded cases direct the clerk of the lower tribunal rather than the approved court reporter or approved transcriptionist to prepare the necessary copies of the original transcripts.” Fla. R. App. P. 9.140(f)(2)(F). The Court analyzed the phrase “copies of the original transcripts” with reference to portions of the Florida Rules of Judicial Administration that define what constitutes the record, and concluded that Rule 2.535 defines transcripts as being bound and printed documents.

What fascinates me about this decision, though, is the underlying policy battles at play. The Clerk claimed he had to go paperless, pursuant to a Supreme Court administrative order. He relied, too, on a state court administrative order. The public defender claimed it did not have the resources to print its own transcripts. In the end, the one provision of the rules in isolation supported the clerk’s take, but the rules as a whole supported the litigants’ view.

Florida Moves Toward Electronic Record on Appeal

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The Florida Supreme Court has issued in Interim Policy on Electronic Appellate Court Records, No. AOSC10-32 [.pdf]. Building on the fact that some trial courts are already keeping electronic court records, the Court noted that:

current rules of court procedure do not authorize appellate courts to utilize these electronic trial court records as the Record on Appeal, thereby necessitating the duplicative transmittion and use of both paper and electronic records.

Id. at 2. The Court declared that .pdfs would be considered sufficient to constitute the official record, whether or not indexed or searchable, but encouraged the trial court clerks to start creating indexed and searchable .pdf records as soon as possible.

The Supreme Court granted its chief justice and the chief judges of the District Courts of Appeal the power to “exercise his or her administrative authority to dispense with the requirement for a paper copy of the Record on Appeal.” ¶ 2.

By Feburary 1, 2011, all district courts of appeal are to require filing “in digital format as well as in paper.” This sounds like a tall order, but the reality is that all of the district courts already do this. They are also granted the power to dispense with paper filing altogether, when “determined to be feasible.”

Appendix, Please

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The appendix requirement of Florida Rule of Appellate Procedure 9.220 is not just an afterthought, it’s a necessity. When you are asking the Court to review a non-final order, in particular, the appendix is essential: The appellate court is not sent the record, and is counting on the litigants to provide it with copies of the pleadings, transcripts, and other relevant documents that were before the trial court.

And if you don’t serve an appendix with your brief, as required by Rule 9.130(e)? The Third DCA will affirm the holding below. Reliance Property Management, Inc. v. Transportation Equipment Specialists, Inc., No. 3D09-411 (Feb. 24, 2010)[/pdf].