On January 2, 2023, the Chief Judge of the Eleventh Judicial Circuit of Florida issued an administrative order appointing a Clerk Ad Interim after the passing of the Clerk of the Circuit Court in and for Miami Dade County, Florida. This administrative order will automatically terminate following an appointment by the Governor that replaces the order or following another person taking office and being sworn in as the Clerk in accordance with an election or a special election (whichever takes place first). The passing of the former Clerk and the appointment of the Clerk Ad Interim raises the question of when it is required to change the name of the Clerk on summonses.
What Is a Summons?
A summons is an official written notice on behalf of a plaintiff and issued by a court to another party (the defendant), notifying the defendant that he or she is being sued or is being ordered to appear in court. A summons also informs the defendant that he or she must respond to the lawsuit. Additionally, a summons is then “served” to the defendant, along with the complaint, which is the first document used to begin a lawsuit. “Service” refers to the action of delivering the summons and complaint to the defendant. There are particular rules that must be followed for issuing summons, depending on whether the lawsuit is being filed in state or federal court.
Who Must Authorize a Summons in Federal Court?
According to Rule 4(b) of the Federal Rules of Civil Procedure, “[t]he summons shall run in the name of the State and be dated and signed by the clerk, assistant clerk, or deputy clerk of the court in the county in which the action is commenced.”
Therefore, a Federal Court Clerk, Assistant Clerk, or Deputy Clerk must sign off on a summons in order for it to be issued by a federal court. If one of those individuals is not named and does not sign off on the summons, it may not be valid or enforceable upon the defendant.
Who Must Authorize a Summons in Florida State Court?
According to Rule 1.070(a) of the Florida Rules of Civil Procedure, “[u]pon the commencement of the action, summons or other process authorized by law shall be issued forthwith by the clerk or judge under the clerk’s or the judge’s signature and the seal of the court and delivered for service without praecipe.”
To summarize, a clerk or judge must sign off on a summons in order for it to be issued by a clerk or judge in a Florida state court. If the name of the clerk or judge is missing from the summons, it may not be valid or enforceable upon the defendant.
Can A Clerk Ad Interim Authorize a Summons in Florida State Court?
Under Chapter 28, Section 09 of the Florida statutes, “[i]n the case of vacancy occurring in the office of a clerk of the circuit court by death, resignation, or other cause, the judge of that court shall appoint a clerk ad interim, who shall assume all the responsibilities, perform all the duties…as if he or she had been duly appointed to fill the office…”
In other words, a Clerk Ad Interim fulfills the same roles as a duly appointed clerk and is the appropriate person to issue a summons in Florida State Court. For example, after the passing of the Clerk of the Circuit Court in and for Miami Dade County, Florida, the Clerk Ad Interim should be the person named to sign off on summonses once the Administrative Order took effect on January 2, 2023.
