Petuskey v. Cannon

OPALA, Justice,

concurring.

Although I concur generally in the court’s pronouncement, I offer my own analysis in the hope of providing some easy-to-follow guidelines for a more harmonious interaction of the court clerk with the presiding judge of the judicial administrative district — the two constitutional officers 1 now locked in combat for the control of certain management functions in the operations of the district court.

The presiding judge has “general administrative authority” over the judicial administrative district. 2 The personnel who stand subordinate to this authority, which is subject to the Supreme Court’s system-wide control conferred by Art. 7 § 6, Okl. Const., 3 are judicial officers of the district court and their staff. The latter resource is made up of court reporters and bailiffs. The presiding judge’s administrative power over human resources not in the direct employ of the state district courts is circumscribed by law. 4

Unlike court reporters and bailiffs, courtroom deputies, known in some parts of the state as “minute clerks,” just as other deputies, are the employees of the court clerk, an independently elected county executive heading a service agency for the district court. In the performance of all their ministerial functions for the court, the clerk and his deputies are subject to summary control by the judges. 5 Neither advance notice nor the opportunity for a hearing need be afforded the court clerk or his deputies if a judicial command calls for the performance of a ministerial act. 6

Personnel management of human resources on the clerk’s payroll as his deputies is not a ministerial but rather an executive function dischargeable by the clerk in his capacity as a county official. Courtroom deputies stand under a judge’s direct and exclusive control only for so long as they are actually performing duties within a courtroom, the judge’s *1126 chambers, the jury room or some other courthouse space directly controlled by the judges. These deputies remain under like control when they are on a ministerial mission elsewhere in the courthouse pursuant to a judge’s direction.

Judges are powerless to exercise pure managerial control over any of the court clerk’s deputies. They may not: (a) choose the deputies who are to be assigned to them for courtroom service; (b) dictate to the court clerk either the salary terms or other payroll benefits a courtroom deputy is to receive and (c) specify the time period a courtroom deputy may be off on vacation leave.

A presiding judge may, without advance notice or hearing, [a] direct the court clerk to assign courtroom deputies, as needed, for duty with individual judges and [b] authorize each judge to regulate, on any given day, the time when an assigned courtroom deputy is to report for service and to return to the court clerk’s office. A deputy is deemed to be under the exclusive control of the court clerk both before and after he enters upon daily courtroom assignment duty.

In short, the quantum of control the judiciary may exercise over the court clerk’s office must vary with, and be tailored to, the function whose performance is to be exacted. Court clerk personnel ordered for assignment to courtroom duty may be temporarily requisitioned and supervised as a needed resource for so long as their service to the judiciary is termed essential; 7 but these deputies may not be chosen for hiring, slated for firing or otherwise treated as if they were judicial staff persons. If need be, a presiding judge may direct that a courtroom deputy be relieved of duty for unacceptable job performance and that a person with adequate skills be assigned as replacement. Although de-ployable to the full extent necessary for the performance of the court’s constitutionally mandated mission, courtroom deputies must nonetheless be utilized in a manner that does not invade the court clerk’s managerial prerogative over any human resources in his employ as a county official.

. Both officials may claim that they are holders of a constitutional office. Art. 17 § 2, Okl. Const., creates the office of clerk of the district court; Art. 7 § 10(b), Okl.Const., establishes the office of presiding judge in each judicial administrative district.

. Art. 7, § 10(b), Okl.Const.

. Court Fund of Tuba County v. Cook, Okl., 557 P.2d 875, 877 [1976].

. Persons who are not serving as judges or as their staff members may not be managed as resources of the judicial service. See in this connection, Earl v. Tuba County Dist. Court, Okl., 606 P.2d 545, 548 [1980] and State ex rel. Trimble v. Brown, Okl., 488 P.2d 1217, 1222 [1971]. Judicial rule-making power cannot be used to regulate the activities of an executive agency. See, Sterling Refining Co. v. Walker, 165 Okl. 45 , 25 P.2d 312, 320 [1933].

. Barrett v. Barrett, 207 Okl. 234 , 249 P.2d 88 [1952]; Hirsch v. Twyford, 40 Okl. 220 , 139 P. 313 [1913] and Matney v. King, 20 Okl. 22 , 93 P. 737, 745 [1908].

. Barrett v. Barrett, supra note 5.

. The judiciary 1 s constitutionally invested power to provide itself with resources essential for the performance of duties the courts are commanded by our fundamental law to carry out is discussed in Little v. County Excise Board of Marshall County, 161 Okl. 40 , 16 P.2d 1080, 1082 [1932].