Clerks of court have not only been interpreting the law for over 200 years but applying it too.
The role of clerk of court, such as the one created by the first United States Congress with the Judiciary Act of 1789, is a common fixture in both state and federal courts across the United States. The typical clerk of court has several administrative and clerical responsibilities. In many states, clerks even have judicial authority over select proceeding. For example, every county in North Carolina has an elected Clerk of Superior Court who serves for four-year terms. Similar to their out-of-state counterparts, the county clerks of court in North Carolina have responsibilities ranging from record-keeping and collection of money, to conducting initial hearings in criminal cases. In North Carolina clerks also handle many estate settling matters and arrange adoption and incompetency proceedings.
Some of this authority and responsibility held by clerks, in North Carolina specifically, has caused some contention between the clerks and other professionals in the legal community. In addition to clerks having authority in a range of administrative tasks in North Carolina, they even have original jurisdiction over some categories of judicial proceedings. As stated in a publication from the UNC School of Government, titled Judicial Responsibilities of the Clerk, such jurisdiction includes the administration of decedent estates, guardianship proceedings, and certain administrative matters pertaining to trusts. Additionally, clerks have original, but not exclusive, jurisdiction over matters like partition proceedings. The presence of exclusive original jurisdiction simply means the case must first be heard by the clerk before it can be transferred to a superior court judge, whereas original, non-exclusive jurisdiction means the clerk may decide to transfer it to superior court before first hearing the matter.
Regardless, in both of these types of proceedings, it is the presence of what basically amounts to the exercising of judicial responsibility by clerks that causes some members of the legal community disquiet. Specifically, they contend that clerks of court are actually interpreting law and then apply their interpretation of such law to the cases in front of them. Interpreting law as a clerk can be seen as problematic because clerks—unlike the judges most commonly viewed as the proper arbiter of what the law is in a given case— have not been trained in legal analysis in the same way that lawyers and judges have been trained.
Some opponents of clerks serving in this capacity further argue that the role of clerks interpreting law simply lies outside their basic qualifications. That is, the requirements all clerks of court must meet in order to run for office are insufficient to justify giving them the complex task of interpreting statutes and judicial opinions. Currently, the only educational requirement for a clerk of court is a high school diploma. While there is often a higher level of education preferred for an individual running to be elected as a clerk of court, the average education level of clerks of court is about that of an associate’s degree. Karen Mitchell, a federal clerk of court for the United States District Court for the Northern District of Texas, who herself holds a J.D., writes “if you want to be in leadership, you need an advanced degree . . . a Master’s, M.B.A., or J.D.”
The argument goes that the higher the education level one receives after high school the more competent a clerk they will be. Not only do college and law school provide potential clerks with the opportunities to learn more about the complex subjects they will encounter in handling legal matters than what is typically afforded in high school, but college and law schools can also further teach students how to better handle many of the diversity and inclusion issues encountered as clerks of court. This can be significant as the legal issues clerks of court encounter daily can affect people differently based on their background. Similarly, education can play an important role in how well clerks are able to understand and interpret the law.
Real Issues That Can Significantly Impact People’s Lives
The education gap widens even further when considering the differences between deputy and assistant clerks of court. It is not uncommon for a court order to be signed by a deputy or assistant Clerk of court, meaning they themselves interpreted and applied the law in that particular case, not the elected Clerk of Superior Court. For example, in North Carolina a default judgment for a sum-certain amount of money is often signed by a deputy or assistant clerk of court. The legal issues that clerks have jurisdiction over are real issues that can significantly impact people’s lives. Judgments, foreclosures, adoptions, guardianship hearings, estates, and trusts all can have life-changing impacts in the lives of the people involved in these proceedings and it all might come down to a specific clerk of court interpreting and applying a given law.
Removal of the Clerk of Court
One of the most important courses taught in every ABA-accredited law school in the United States is Professional Responsibility. This course teaches J.D. candidates what is required and expected of them in the legal profession. Students are also tested on this topic on the Multistate Professional Responsibility Exam. Since many clerks have not attended law school, most have not had to take this course, be tested on the subject matter, and have not otherwise learned about professional responsibility. This is an particularly important subject for everyone involved in administering the court system because it entails consideration of the many ethical responsibilities present in every proceeding.
Though it would likely be preferable for the issue to be avoided in the first place, and rare though it may be for a clerk to run afoul of these ethical considerations purposefully, there is a detailed protocol for what procedure must take place to remove a clerk of court for willful misconduct. So there is a safety valve of sorts for the worst of situations.
In North Carolina, Article IV, Section 17(4) of the State Constitution provides the grounds and procedure for the removal of a Clerk of Court. According to an article published by Michael Crowell at the UNC School of Government in 2015, quoting the N.C. State Constitution, “a Clerk of Court may be removed for willful misconduct or mental or physical incapacity.” The removal procedure is set out in detail by N.C.G.S. 7A–105. An affidavit must be filed with the Chief District Judge complaining of the clerk of court’s actions warranting removal. Then there must be a hearing for the removal of said clerk, to be presided over by a superior court judge. Again, while it would be preferable to solve such problems on the front-end, it is important that there are procedures in place for the discipline and removal of clerks because these officials have immensely important duties in the court system and there must be a check on their behavior.
“I’m Telling You the Law”
An example of such a removal comes from Franklin County, N.C. where a clerk of court was removed just last October. Citing willful misconduct, superior court judge Tom Lock ordered the removal of the Franklin County Clerk of Superior Court, Patricia Burnette Chastain. Judge Lock’s ruling detailed the clerk’s misconduct, apparently occurring on numerous occasions in several different cases. Judge Lock’s ruling, based upon the evidence shown at the hearing, found that she exceeded the scope of her authority as the Franklin County Clerk of Superior Court, going as far as to try to mediate a dispute between two neighbors, outside of the courtroom. According to WRAL, at one point, Ms. Chastain even yelled at the neighbors “I’m telling you the law.” A rather unorthodox application of the law, one might say. While rare for a clerk of court to act so blatantly out of line, it does, happen. But this is why the proper procedures are in place.
The Jury Is Still Out
In summation, it is well established that clerks of court interpret and apply law in the course of their duties as duly elected officers of the court. But the jury is still out about whether clerks should be interpreting law. While it is a position indisputably crucial to the operation of the court system, it remains unsettled if the scope of their duties is properly calibrated to align with the just administration of the law.