Petitioners Brief — Finley v. Murray

FILED

No. 80-2205 | JAW 3# We

STEVAS.

CLERK

In Tas

Supreme Court of the United States

Oorosrr Trem, 1980

MORGAN M. FINLEY, Clerk of the Circuit

Court of Cook County, Illinois,

Petitioner,

TONI MURRAY,

Respondent.

On Writ Of Certiorari To The United States

Court Of Appeals For The Seventh Circuit

BRIEF FOR PETITIONER

RICHARD M,. DALEY,

State’s Attorney of Cook County, Illinois,

600 Richard J. Daley Center,

Chicago, Dlinois 60602,

(312) 448-5460,

Attorney for Petitioner.

JANE CLARK CASEY,

Deputy State’s Attorney,

Chiof, Civil Actions Bureau,

JOAN 8. CHERRY,

Assistant State’s Attorney,

Of Counsel.

SCOTT A. MAYER,

Special Assistant State’s Attorney,

HALEY, BADER & POTTS,

77 W. Washington St., Suite 1616,

Chicago, Illinois 60602,

(312) 782-7416,

Of Counsel.

ee a a eR en ns ee tant ae enantio

PETITION FOR CERTIORARI FILED JUNE 29, 1981

CERTIORARI GRANTED NOVEMBER 2, 1081

QUESTION PRESENTED

Whether absolute judicial immunity shields the Clerk

of the Circuit Court of Cook County from §1983 damages

liability when performing judicial or quasi-judicial func-

tions.

LIST OF PARTIES BELOW

The parties in the Court below not named in the cap-

tion in this brief are defendants City of Chicago, John

Ziemke, Theodore Pappas, Sgt. Meyers, James Rochford,

and James O’Grady.

TABLE OF CONTENTS

QUESTION PRESENTED .............csccccscssssssssseseees

LIST OF PARTIES BELOW ..

TABLE OF AUTHORITIES ...........

OPINIONS BELOW

JURISDICTION .

STATUTORY PROVISION INVOLVED ...........

STATEMENT OF THE CASE .........cccssssssssssssess

SUMMARY OF ARGUMENT ...................

ARGUMENT:

Absolute Judicial Immunity Shields The

Clerk Of The Circuit Court Of Cook County

From § 1983 Damages Liability When The

Clerk Performs Judicial Or rene

Functions

A.

The Petitioner Is An Essential Officer Of The

Court Who Enables The Court To Properly

Perform Its Judicial Duties ................:00c00-

B.

Historical And Public Policy Considerations

Are The Foundation For Petitioner’s Abso-

aoe Immunity From §1983 Damages Lia-

ility

C.

The Petitioner’s Absolute Judicial Immunity

From §1983 Liability Is The Majority Rule

— By The Circuit Courts Of Ap-

pea

13

14

16

iv

D

Available Alternatives To §1983 Liability For

Clerks Of The Court Provide Superior Meth-

ods For Insuring That The Public Is Able To

Remedy A Court Clerk’s Misconduct ............. 32

E.

The District Court ig ag | Granted Sum-

mary Judgment For The Petitioner Where

No Genuine Issue Of Material Fact Existed

That The Petitioner Enjoyed Absolute Ju-

GRRTAT THIITD cxcccccneccsepeqeccccccoccceseseceasenesncscseres 34

CONCLUSION cceccccocccccsecocccsscerecscsesersosesersssseseoes 37

TABLE OF AUTHORITIES

Cases

an v. Hoffman, 617 F.2d 474 (7th Cir. a

Billings v. Lafferty, 31 Ill. 318 (1863) ....csvvssssvse« 20, 21

Blouin v. Dembitz, 367 F.Supp. 415 (S.D.N.Y.

1973), aff'd on other grounds, 489 F.2d 488 (2d

Cir. 1973) ... 13, 14, 26

Board of Supervisors of Peoria County v. Roche,

GD Bes FE GRUIUUED. veccensceccorecesssecsssoscndonenepepecenpniocsesors 18

ew) v. Coughlin, 545 F.2d 565 (7th Cir.

Bradley v. Fisher, 80 U.S. 646 (13 Wall. 335), 20

Bees BOB CRITI). ciecenescccsascoscessecess .. 10, 18

Brown v. Dunne, 409 F.2d 341 (7th Cir. 1969) ..... re

Cammer v. United States, 350 U.S. 399 (1956) ...... 17

= aS Louisville v. Bergel, 610 S.W.2d 292 (Ky.

Clark v. Wilcox, 31 Tex. 322 (1868) secs 19

min v. Thompson, 65 Ky. (2 Bush) 559 ;

Crocker v. Fales, 13 Mass. 260 (1816) ccc.

Davidson v. Wiley Bank & Co., 31 Ala. (Book 25)

452 (1858)

Davis v. McAteer, 431 F.2d 81 (8th Cir. 1970) ..... 18, 28

v

Denman v. Leedy, 479 F.2d 1097 (6th Cir. 1973) .. 13, 7H

Dennis v. Sparks, 449 U.S. 24 (1980) .........-s++0

Dieu v. Norton, 411 F.2d 761 (7th Cir. 1969) ...... 8, 13,

sienanil ‘ — Ft

Ex parte Morgan, 114 U.S. 174 (1885) ....... 16, 18, 22

Ex parte Virginia, 100 U.S. 339 (1879) ......0+0+ 29

Ferri v. Ackerman, 444 U.S. 193 (1979) ......++0 17

Fishbein v. State of New York, 204 Misc. 151

(N.Y. Ct. Cl. 1968) ..... ba domomaiakedaie 24

Ginsburg v. Stern, 125 F.Supp. 596 (W.D. Penn.

1955), affd, 225 F.2d 245 (3d Cir. 1955) ......... 27

Governor v. Dodd, 81 II]. 162 (1876) .........c+-e00 19

Gravel v. United States, 408 U.S. 606 (1972) .... 32

Gregoire v. Biddle, 177 F.2d 579 (2d Cir. 1949) ... 24

Gullick v. New, 14 Ind. 93 (1860) ..........0secsseeees 19

Haldane v. Chagnon, 345 F.2d 601 (9th Cir.

RIED. .sccsccssensstaschessionscncesitebenvecssenieessipesmstammnaciiaibne 18

Hamrick v. Norton, 332 F.Supp. 424 (D. Kan.

1970), affd, 436 F.2d 940 (10th Cir. 1971) ..... 13, 29

Hoeffner v. Stratton, 57 Me. 360 (1869) ............ 21

Imbler v. Pachtman, 424 U.S. 409 (1976) .......... 10, 16,

; dak eadesuacaahosnbndibanitis 17, 24, 31, 32, 33, 34

In re Lyman, 55 F. 29 (S.D.N.Y. 1893) .......s.0000 18

TUES) cecncseosesnshecidgrinenistebsshbabiaeneesonetiinninn mama 18

Kiess v. Eason, 442 F.2d 712 (7th Cir. 1971) .... 4

Lick v. Madden, 36 Cal. 208 (1868) .........:sssssss

Little v. Walker, 552 F.2d 193 (7th Cir. 1977) ...... &

Lockhart v. Hoenstine, 411 F.2d 455 (3d Cir.

TOG) scciceseccscncnpssoistnsctsssonesseehssessiosnetepesesens 13, 27, 34, 36

Mann’s Appeal, 1 Pa. 24 (1845) .......sssessesrernees 19

Monell v. Department of Social Services, 436 U.S.

GBB (1DTB) ccccrcocesccceccessccecescesccccscosseccsccssseqocsscosoessoses

Morrison v. Jones, 607 F.2d 1269 (9th Cir.

TOTOD cceisckestastcsenstessvninanssbundidiamecitinis > : 28

McCray v. Maryland, 456 F.2d 1 (4th Cir. 1972) .. 18, 24

McFarlan v. People, 13 II]. 9 (1851) .........ceeesses 20

Murray v. City of Chicago, 634 F.2d 365 (7th Cir.

1981) 1, 8, 25, 30, 34

O’Shea v. Littleton, 414 U.S. 488 (1974) ............. 32

Panko v. Rodak, 606 F.2d 168 (7th Cir. 1979), cert.

denied, 444 U.S. 1081 (19860) ...... . 18, 27

Pass v. Dibrell, 16 Tenn. (8 Yerg.) 470 (1835) ...... 19

People v. Brady, 275 Ill. 261 (1916) ........ssssseses 17, 18

vi

People v. Brown, 194 Iil. App. 246 (4th Dist.

1915), eo dismissed, 272 Ill. 146 (1916) ...... 33

People v. Fletcher, 3 Ill. 482 (1840) ..........cecseee 21

People v. Mobley, 2 II]. 214 (1835) ...........cseseeeeee 17, 19

Pierson v. Ray, 386 U.S. 547 (1967) ............ 13, 16, 24

Philadelphia, Wikalagtes. & Baltimore Railroad

Company v. Howard, 13 How. 305, 14 L.Ed.

At UnTEE Sidra ces sespnciddapsniibeaphansbaamaniniiid

Polk County v. Dodson, ..... US. ...... 50 U.S.L.W.

4077 (No. 80-824, decided December 14,1981). 14,

Rhodes v. Houston, 202 F.Supp. 624 (D. Neb.

1962), affd, 309 F.2d 959 (8th Cir. 1962), cert.

dented, STZ U.S. GOO (1968) .....ccccccccccccccccccccesseeee 13, 28

Rizzo v. Goode, 423 U.S. 362 (1976) ...........ccee 25

Rodriguez v. State of New York, 55 Misc.2d 669,

285 N.Y.S.2d 896 (N.Y. Ct. Cl. 1967) ...... 22, 23, 24

Russel v. Clayton, 7 Va. (7 Call.) 41 (1801) ....... 19

Scheuer v. Rhodes, 416 U.S. 232 (1974) .............. 16

Schnell v. City of Chicago, 407 F.2d 1084 (7th

ONSET EE Oe See 8

Shadwick v. City of Tampa, 407 U.S. 345 (1972) .. 17, 22

Slotnick v. Garfinkle, 632 F.2d 163 (lst Cir.

i eeebsnatilbnene 13, 26

Smith v. Rosenbaum, 460 F.2d 1019 (3d Cir.

SS GETS RR 27

State v. Merritt, 65 N.C. 558 (1871) .........scccseee 19

Steinpreis v. Shook, 377 F.2d 282 (4th Cir.

RS CES a a 13

Stewart v. Minnick, 409 F.2d 826 (9th Cir.

Nie cacauihbiesans 13, 28

Sullivan v. Kelleher, 405 F.2d 486 (lst Cir.

a i sciebbensbosuninions 13, 26

Tenney v. Brandhove, 341 U.S. 367 (1951) ......... 16

Williams v. Wood, 612 F.2d 982 (5th Cir. 1980) ... 13, 27

Yamamoto v. Santa Cruz County Board of

Supervisors, 124 Ariz. 538, 606 P.2d 28 (Ct.

iB CEE SC ne 22

Yates v. Lansing, 5 Johns. 282 (N.Y. 1810) ....... 24

Zimmerman v. Spears, 428 F.Supp. 759 (W.D.

Tex. 1977), affd on other — 565 F.2d 310

(5th Cir. 1977) 13, 27

vii

Constitutional Provisions and Statutes

ILL. CONST. art. IV, $6 (1818) .........ccccccccccscescssseess 17

ILL. CONST. art. VI, §18 (1970) . 17

ILL. Const. art. VI, §19 (1970) ...... 17

18 U.S.C. ie ll

42 U.S.C. §1983 2

Ill. Rev. Stat. 1845, p. 144, $15 ...cccccccccccccssssssssees 19

Ill. Rev. Stat. 1845, p. 147, $85 ....c.ccccecscccssseseeees 19

Ill. Rev. Stat. 1845, p. 147, $89 .....cccccccccccsscssseees 18

Ill. Rev. Stat. 1979, ch. 25, piiensibdlaneeibdeaniameiten 12, 19, 33

Ill. Rev. Stat. 1979, ch. 25, §18 ..... 19

Ill. Rev. Stat. 1979, ch. 25, §15 ...ccccccccccccssssssssseee 12, 32

Ill. Rev. Stat. 1979, ch. 25, §22 ..... , 18

Bike BEV. Be BETO, GR. BB, BBB ccccccceseseccsosascccsoses 33

Ill. Rev. Stat. 1979, ch. 38, §17-1(d) c.cccccccccccsssoese 3

Ill. Rev. Stat. 1979, ch. 38, §110-3 ooo.c.cccccccscsesese 16

Ill. Rev. Stat. 1979, ch. 38, Hone eulaideessestieiean 33

Ill. Rev. Stat. 1979, ch. 38, §110-7(h) ................... 5, 16

Ill. Rev. Stat. 1979, ch. 38, §110-10(a)(1) ............ 5, 15

Ill. Rev. Stat. 1979, ch. 110, $62 cocccccccccccccccccscees 33

Other Authorities

11 C.J. Clerks of Courts, §91 (1917) ...cccccccccccseoees 20

Fed. R. Civ. P (RATS Ca) ERS Pe Lea 12, 34

1979 Annual fant to the Supreme Court of

Illinois, Administrative — of the Illinois

yg te setae ieee ieee 14

Sk

In Tus

Supreme Court of the United States

Oocroszr Tram, 1980

MORGAN M. FINLEY, Clerk of the Circuit

Court of Cook County, Illinois,

Petitioner,

vs.

TONI MURRAY,

Respondent.

On Writ Of Certiorari To The United States

Court Of Appeals For The Seventh Circuit

BRIEF FOR PETITIONER

OPINIONS BELOW

The opinion of the Seventh Circuit Court of Appeals is

reported, Murray v. City of Chicago, 634 F.2d 365 (7th

Cir. 1981). (Pet. Cert. App. A at la) The opinion of the

District Court (Pet. Cert. App. B at 8a) is not reported.

online

JURISDICTION

The judgment of the Court of Appeals was entered on

November 25, 1980. A timely petition for rehearing en

bane was denied on March 31, 1981. (Pet. Cert. App. C

at 24a) On March 11, 1981, the Seventh Circuit issued

an amended opinion. The petition for a writ of certiorari

was filed on June 29, 1981 and was granted on

November 2, 1981. This Court’s jurisdiction rests upon

28 U.S.C. §1254(1).

STATUTE INVOLVED

Title 42 U.S.C.

§1983. Civil action for deprivation of rights:

Every person who, under color of any statute, or-

dinance, regulation, custom, or usage, of any State

or Territory, subjects, or causes to be subjected, any

citizen of the United States or other person within

the jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party

injured in an action at law, suit in equity, or other

proper proceeding for redress.

alias

STATEMENT OF THE CASE

A. Background

On March 23, 1979, respondent Toni Murray filed this

§1983 complaint against the petitioner, Morgan M.

Finley, the Clerk of the Circuit Court of Cook County,

the City of Chicago and five Chicago Police Officers, for

alleged violations of constitutional rights when respon-

dent was arrested on a recalled arrest warrant. on

March 25, 1975. The following facts led to respondent’s

arrest on the recalled warrant.

On June 18, 1974, respondent was charged in a mis-

demeanor complaint filed in the Circuit Court of Cook

County with deceptive practices in violation of Ill. Rev.

Stat. 1979, ch. 38, §17-1(d). (J.A. 31) A summons was

issued for respondent to appear in court to answer the

charge. (J.A. 31) On July 12, 1974, the summons was

returned to the court because the respondent could not

be found. (J.A. 31) On July 22, 1974 Judge Michael F.

Zlatnik issued a warrant for respondent’s arrest in the

amount of $500.00. (J.A. 31) On October 8, 1974, the

warrant was returned and filed with the court because

respondent had been arrested on the warrant. (J.A. 31)

This was the first arrest in respondent’s criminal case.

Respondent did not challenge this arrest in her §1983

complaint.

On November 4, 1974, respondent, free on bond,

appeared in Judge Zlatnik’s court where her deceptive

practices charge was continued on the prosecutor’s mo-

tion to December 9, 1974. (J.A. 31)

On December 9, 1974, respondent failed to appear in

court. Judge Zlatnik issued the following order as

reflected on the memorandum of orders: “Recognizance

tides

of defendant and surety forfeited—warrant ordered vs.

defendant $1500.” (J.A. 31) Respondent did not

challenge the issuance of this warrant in her §1983 com-

plaint.

On January 18, 1975, before Judge Goldstein, sitting

for Judge Zlatnik, respondent appeared in court to

quash and vacate the warrant issued on December 9,

1974. The memorandum of orders reflects that Judge

Goldstein released respondent on her own recognizance

(“‘I Bond’ $500”) and recalled the outstanding warrant

for her arrest. (J.A. 31) The court granted the

prosecutor’s motion for a continuance until January 27,

1975. The deputy clerk, Maurice McNicholas, entered

this order on the memorandum of orders. (J.A. 22)

Deputy Clerk MecNicholas then filled out a warrant

recall form, No. 181593. (J.A. 18, 22) The deputy clerk

and Judge Goldstein signed respondent’s warrant recali

form. (J.A. 18, 22) Deputy Clerk McNicholas was unable

to obtain respondent’s signature. (J.A. 18, 22) The deputy

clerk kept one copy of the warrant recall form for the

court file, placed the rest of the copies in the bundle of

“out work” for January 13, 1975, for his courtroom, and

deposited the bundle at a receiving location for disposal

and sorting of the forms and files by other deputy

clerks. (J.A. 22)

On January 27, 1975, Judge Zlatnik granted the

prosecutor’s motion for a continuance to February 10,

1975. (J.A. 31) On February 10, 1975, Judge Zlatnik

granted respondent’s motion to dismiss the deceptive

practices complaint against her.

On March 25, 1975, Chicago Police Officers John

Ziemke and Theodore Pappas arrested respondent on

the bond forfeiture arrest warrant issued December 9,

1974 and recalled on January 13, 1975. (J.A. 31) The

—~§—

Chicago Police Officers’ affidavits reflect that they did

not know the warrant was recalled. (J.A. 25-30)

Respondent alleged in her §1983 complaint that she

was transported from her home to the police station,

strip-searched and incarcerated. (J.A. 7) After six or

seven hours respondent was released from custody by

posting bond. (J.A. 7) On April 10, 1975, respondent

appeared in Judge Zlatnik’s court where the prosecutor

moved for respondent’s discharge in the criminal case.

(J.A. 31) The last entry on the memorandum of orders

reflected “no warrants outstanding”. (J.A. 31)

B. Warrant Recall Procedures

Illinois statutes governed the respondent’s criminal

proceedings. In Iliinois, when a person like respondent

is arrested and charged with an offense by the State’s

Attorney, a date is set for the defendant to appear in

court. If the defendant is released on bond, pursuant to

Ill. Rev. Stat. 1979, ch. 38, §110-10, and fails to appear

in court, a condition of the bond, the State’s Attorney

then moves for a bond forfeiture and a warrant to issue.

Ill. Rev. Stat. 1979, ch. 38, §§110-7(h), 110-10(aX(1) and

110-3. The court enters an order declaring the bail to be

forfeited, and an order requiring notice of the order of

forfeiture to be mailed to the defendant's !ast known ad-

dress. The court then may issue an arrest warrant for

the defendant’s failure to appear. Ill. Rev. Stat. 1979,

ch. 38, §§110-7(h) and 110-3. The court continues the

case during which time the defendant can appear, sur-

render, move to quash and recall the warrant, and

vacate the bond forfeiture order. Ill. Rev. Stat. 1979, ch.

38, §110-7(h). The clerk enters all orders on the reverse

side of the misdemeanor complaint which contains the

memorandum of orders. (J.A. 16, 31) In the instant case,

these procedures were followed by the judge, prosecutor

and the court clerk.

sinllnie

In effect at the time of respondent’s arrest on the

recalled warrant were General Order 74-8(M) and the

petitioner’s procedures designed to implement the

Genera’ Order. On August 13, 1974, the Presiding Judge

of the Municipal Department of the Circuit Court of

Cook County, signed General Order No. 74-8(M) which

created “Procedure Re: Motion to Vacate Bond For-

feiture and Recall of Warrants In all Courts (Except

Traffic).” (J.A. 23) In pertinent part the General Order

stated:

All motions to vacate bond forfeiture and warrants

orders made after the judgment date . . . shall be

processed as follows:

* * **

b. The warrant may be recalied, provided defen-

dant is in court. The clerk shall deliver the warrant

recall to the Central Warrant Unit. The court

sergeant shall notify the witnesses of the trial date

which shall be the judgment date. (J.A. 23)

The court sergeant is a police officer assigned to a

criminal courtroom. It is his function to notify crime vic-

tims and arresting officers of the new trial date since

they could not have known that the defendant voluntari-

ly appeared in court on a date other than the date set for

trial.

In order to implement the General Order, Robert

Grossman, the petitioner’s Chief Deputy Clerk of the

First Municipal District, Criminal Division, of the Cir-

cuit Court of Cook County, issued a memorandum to the

deputy clerks in the Criminal Division notifying them of

“New Procedure on Bring-Back B/F [bond forfeiture]

files. Effective August 15, 1974.” (J.A. 16, 19) The

memorandum, issued the same day as the General Order,

reflected that the new procedures were developed by

representatives from the petitioner’s office, the Pre-

pn

siding Judge, the Chicago Police Department, and the

Cook County State’s Attorney’s Office. (J.A. 17, 19)

The petitioner’s procedures included the following

steps to implement General Order 74-8(M):

When an outstanding warrant is ordered recalled

by a judge, it is the duty of the clerk to follow this

procedure:

a. The clerk notes the recall order on the “half

sheet” [memorandum of orders].

b. The clerk fills out a warrant recall order and

obtains the judge’s signature.

ce. The clerk sends the original of this order to

the Chicago Police Department [Central

Warrant Unit] and sends copies of the order

to the office of the Clerk by placing all copies

with outbound mail.

d. The clerk places a copy of the order in the

Court file. (J.A. 16-17)

In the instant case three of the four procedures were

unquestionably followed. (J.A. 17) As for notification to

the Police Department, either a deputy «clerk mailed the

warrant recall order to the police and it was lost in the

mail or the recall order was inadvertently lost some-

where between the courtroom and petitioner’s office.

C. Rulings Below

Respondent filed a §1983 complaint against the

petitioner seeking damages resulting from her arrest on

the recalled warrant, and from the harm that allegedly

flowed from that arrest. (J.A. 2-11) After examining the

petitioner’s documents and affidavits in support of his

motion to dismiss, or in the alternative, for summary

judgment, the District Court concluded:

ilies

[T]he procedures outlined previously were followed

as to the plaintiff's arrest warrant. At best, it can

only be said that if the Police Department did not

receive notice of the recall, the subsequent arrest of

the plaintiff was the result of inadvertence or acci-

dent. Such circumstances cannot give rise to an ac-

tion under 42 U.S.C. Section 1983. Little v. Walker,

552 F.2d 193, Seventh Circuit, 1977; Bonner v.

Coughlin, 545 F.2d 565, Seventh Circuit, 1976. (Pet.

Cert. App. B at 19a)

The court granted petitioner’s motion for summary

judgment.

The Seventh Circuit reversed the judgment for all

defendants below, remanded the case for trial, and held

that “[slomeone is surely at fault for failing to establish

or execute appropriate procedures for preventing such

serious malfunctionings in the administration of justice.”

Murray v. City of Chicago, supra, 634 F.2d at 366. In

a footnote, the Seventh Circuit concluded:

It is quite possible that the clerk of court, Finley,

will also ultimately be dismissed if by amplified

clarification of his procedures, he is able to es-

tablish that the methods used to convey recall

orders to the police department are appropriate and

adequate. See Schnell v. City of Chicago, 407 F.2d

1084, 1086 (7th Cir. 1968).

Mere negligence of course, will not support a §1983

action against Finley. See Bonner v. Coughlin, 545

F.2d 565, 568 (7th Cir. 1976). Moreover, pending

further clarification of the facts it would be

premature to consider whether Finley is entitled to

the defense of official immunity. See Dieu v. Norton,

411 F.2d 761, 763 (7th Cir. 1969). Jd. at 367 n.4.

The petitioner appeals to this Court from the Seventh

Circuit’s holding which denied petitioner judicial im-

munity at the present stage of the pleadings.

awe

SUMMARY OF ARGUMENT

The Clerk of the Circuit Court of Cook County con-

tends that absolute judicial immunity shields court

clerks from §1983 damages liability when the clerk per-

forms judicial or quasi-judicial functions. The Seventh

Circuit Court of Appeals denied the petitioner absolute

immunity at the summary judgment stage of the

pleadings. The Seventh Circuit’s decision below was con-

trary to its prior holdings and to the well established

majority rule today that court clerks are entitled to ab-

solute immunity from §1983 damages liability. This

Court’s reversal of the Seventh Circuit’s holding in this

case would establish the court clerk’s entitlement to ab-

solute judicial immunity, the majority rule, as the law of

the land.

The petitioner is an essential officer of the court who

enables the court to properly perform its judicial duties.

In Cook County, Illinois, the petitioner’s deputy clerks

are present every day to assist circuit court judges in

the performance of their judicial duties in seven

divisions and in six municipal districts throughout Cook

County. In this case the petitioner’s deputy clerks im-

plemented the judge’s order recalling respondent’s

warrant pursuant to court ordered procedures for-

mulated by a joint committee of representatives from

the Chicago Crime Commissions, the judiciary, the

Chicago Police Department, the Cook County State’s At-

torney’s Office, and petitioner’s office. The deputy clerk

assigned to the judge who issued respondent’s warrant

recall order followed every procedure required of him to

note the recall order on the memorandum of orders, to

fill out a warrant recall order, to obtain the judge’s

10—

signature, and to place a copy of the recall order in the

court file. (J.A. 16-24) The letter notifying the Chicago

Police Department of the fully executed warrant recall

order was not received by the police department. At

common law, and in other similar §1983 decisions,

judicial immunity shielded court clerks who performed

related judicial or quasi-judicial functions as though the

court had performed the act.

Historical and public policy considerations are the

foundation for petitioner’s absolute immunity from

§1983 damages liability. Imbler v. Pachtman, 424 U.S.

409, 421, 424 (1976). At common law, prior to the

passage of the Civil Rights Act of 1871, court clerks

were immune from liability when performing acts

ordered by the court. A presumption existed that

matters which the clerk was required to submit to the

judge for approval were performed under the direction

and with the approval of the judge. A court ordered act

performed by the clerk was a judicial or quasi-judicial

act cloaked with immunity from liability. A court clerk’s

negligent failure to carry out a court order did not sub-

ject the court clerk to liability because the clerk’s act

was considered the act of the judge who was not

amenable to suit at common law. Bradley v. Fisher, 80

U.S. 646 (13 Wall. 335), 20 L.Ed. 646 (1872). This com-

mon law immunity for court clerks clearly survived the

passage of the Civil Rights Act of 1871 as evidenced by

the majority rule followed in Circuit Courts of Appeals

that court clerks enjoy absolute immunity from §1983

damages liability.

The allegations in respondent’s §1983 complaint

against petitioner all related to acts and injuries which

are indistinguishable from the allegations in the majori-

ty of cases barring similar §1983 plaintiffs from

aT ee

challenging court clerks’ conduct performed within the

scope of the clerk’s judicial employment. Every Circuit

Court of Appeals, except the Fourth Circuit, has found

the court clerk immune from §1983 damages liability for

acts done in the performance of the clerk’s judicial or

quasi-judicial functions. Neither the nature of the clerk’s

duties nor the manner of performance has been a factor

in the determination of the clerk’s immunity when the

act was performed under a judge’s supervision and in-

timately related to judicial proceedings.

The majority of Circuits implicitly recognized that the

judicial immunity doctrine embraces the reality that

errors will be committed by clerks in courts with over-

crowded dockets. Court clerks, indispensable aides of the

court, must have the freedom as judges to discharge their

duties. To deny court clerks the immunity enjoyed by

the judges in a legal system presently subjected to un-

precedented strains, would instill in all clerks the fear

that one inadvertent mistake will subject the clerk to

§1983 liability damages, will inhibit the clerk’s active

interest to contribute toward positive improvements to

the administration of the judicial system, and as a result

will deny the public its right to the most efficient ad-

ministration of the judicial process. Immunity shields

the petitioner when he aids the judge he serves by de-

vising procedures best suited in the petitioner’s judg-

ment, to implement judicial orders including those orders

recalling warrants.

Available alternatives to §1983 liability for clerks of

the court provide superior methods for insuring that the

public is able to remedy a court clerk’s conduct. A clerk

who wilfully deprived someone of constitutional rights

can be punished criminally. See 18 U.S.C. §242. In II-

ites

linois, a court clerk can be punished criminally for fail-

ing to timely enter of record any order of his court and

can be removed from office for any subsequent failure to

comply with his statutory duties. Il]. Rev. Stat. 1979, ch.

25, §15. See also Ill. Rev. Stat. 1979, ch. 25, §4. These

federal and state remedies, therefore, protect the public

from the acts of clerks of the court who, contrary to the

allegations in this case, wilfully acted beyond the scope

of their authority or, who in the absence of judicial

directives, wilfully failed to comply with statutory

duties.

The District Court properly granted summary judg-

ment for the petitioner where no genuine issue of

material fact existed. Fed.R.Civ.P. 56(e). The petitioner’s

uncontroverted affidavits and documents clearly sup-

ported the District Court’s conclusion “that the warrant

recall procedures of the Circuit Court of Cook County

are not unconstitutional as applied to the allegations of

the plaintiffs’ complaint.” (Pet. Cert. App. B at 18a) No

further ciarification of the facts was necessary to deter-

mine whether the petitioner was entitled to absolute

judicial immunity for acts performed pursuant to court

order.

an

ARGUMENT

ABSOLUTE JUDICIAL IMMUNITY SHIELDS THE

CLERK OF THE CIRCUIT COURT OF COOK COUNTY

FROM §1983 DAMAGES LIABILITY WHEN THE

CLERK PERFORMS JUDICIAL OR QUASI-JUDICIAL

FUNCTIONS.

The petitioner's entitlement to absolute judicial im-

munity from §1983 damages liability is the majority

rule in the Circuits today.* The Seventh Circuit’s leading

decisions extending judicial immunity to court clerks

like petitioner relied on this Court’s decision in Pierson

v. Ray, 386 U.S. 547 (1967). This Court held that the

common law doctrine of judicial immunity for judges

survived the Civil Rights Act of 1871. Jd. See Brown v.

Dunne, 409 F.2d 341 (7th Cir. 1969); Dieu v. Norton, 411

F.2d 761 (7th Cir. 1969); Bradley v. Fisher, 80 U.S. 646

(13 Wall. 335), 20 L.Ed. 646 (1872).

Despite the well-established extension of the judicial

immunity doctrine to court clerks, the Seventh Circuit,

* Sullivan v. Kelleher, 405 F.2d 486 (1st Cir. 1968); Slotnick

v. Garfinkle, 632 F.2d 168 (1st Cir. 1980); Blouin v. Dembitz,

oer F Sup 415 (S.D.N.Y. 1973), ats om ether nds, 489

88 (od Cir. 1973); Lockhart v. Hoenstine, 411 F.2d 455

(ea Cire 1969); Steinpreis v. Shook, 377 F.2d 282 (4th Cir.

1967); Zimmerman v. Spears, 428 F.Supp. 759 (W.D.Tex.

all affd on other grounds, 565 F.2d 310 (5th Cir. 1977);

Denman v. Leedy, 479 F.2d 1097 (6th Cir. 1973); Dieu v. Nor-

ton, 411 F.2d 7 i (7th Cir. 1969); Brown v. Dunne, 409 F.2d

$41 (7th Cir. 1969); Panko v. Rodak, 606 F.2d 168 (7th Cir.

aoe cert. denied, 444 U.S. 1081 (1980); Davis v. McAteer,

2d 81 (8th Cir. 1970); Rhodes v. ouston, 202 ae

624 (D.Neb. 1962), affd, 309 F.2d 959 (8th Cir. 1962),

denied, 372 U. S. 909 (1963); Stewart v. Minnick, 409 F “596

9th Cir. 1969); Hamrick v. Norton, 322 F.Supp. 424 (D.Kan.

i970, aff'd, F.2d 940 (10th Cir. 1971). Contra, McCray v.

land, 456 F.2d 1 Jstin Cir. 1972); illiams v. Wood, 612

ro 982 (5th Cir. 1

vat V a

in the instant case, retreated from its own precedent and

refused to hold the petitioner, the Clerk of the Circuit

Court of Cook County, absolutely immune from §1983

damages liability. This Court’s reversal of the Seventh

Circuit’s holding below would establish the court clerk’s

entitlement to absolute judicial immunity, the majority

rule, as the law of the land.

A. The Petitioner Is An Essential Officer Of The Court

Who Enables The Court To Properly Perform Its

Judicial Duties.

Judges recognize that “no court can discharge its

judicial duties without the aid of clerks.” Blouin v. Dem-

bitz, 367 F.Supp. 415, 422 (S.D.N.Y. 1973), affd on other

grounds, 489 F.2d 488 (2d Cir. 1973). Without dispute,

the clerk is an integral part of the ever-expanding

judicial machinery buckling under “unprecedented

strains”. Polk County v. Dodson, ...... is ey Oe

U.S.L.W. 4077, 4080 (No. 80-824, decided December 14,

1981). In Cook County, Illinois, one of the most populous

areas in the country, petitioner’s deputy clerks are

present to assist each judge in the performance of the

court’s judicial duties. Every day of the year petitioner

assists the Circuit Court of Cook County in the court’s

law, chancery, county, domestic relations, juvenile and

criminal divisions as well as in the six municipal dis-

tricts in Cook County. In the instant case, petitioner’s

deputy clerks were present to assist the court in the im-

plementation of all court orders including warrant

recall orders like the one involved in the instant case.

In 1975, respondent’s misdemeanor case was one of

over one-half million misdemeanor cases filed in the Cir-

cuit Court of Cook County. 1979 Annual Report to the

Supreme Court of Illinois, Administrative Office of the

Illinois Courts, p. 39 (1979). The issuance of the warrant

recall order in respondent’s case was representative of

—15—

thousands of other warrant recall orders issued by the

Circuit Court and implemented by the petitioner’s depu-

ty clerks.

General Order 74-8(M), issued on August 18, 1974, by

the Presiding Judge of the First Municipal District of

the Circuit Court of Cook County established procedures

for warrant recall requests made either prior to or after

entry of judgment on the bond forfeiture. (J.A. 23-24)

The General Order required the clerk to “deliver the

warrant recall to the Centra! Warrant Unit” of the

Chicago Police Department. (J.A. 23) Beginning August

15, 1974, two days after the issuance of the Presiding

Judge’s Order, the petitioner instituted procedures to

implement court order 74-8(M). (J.A. 19)

Petitioner’s methods and procedures regarding war-

rant recall orders were formulated in 1974 by a joint

committee of representatives from the Chicago Crime

Commission, the judiciary, the Chicago Police Depart-

ment, the Cook County State’s Attorney’s Office, and

petitioner’s office. (J.A. 17, 19) Deputy clerks were ad-

vised of the court’s new warrant recall procedures by of-

fice memorandum. The petitioner’s procedures were

detailed in the petitioner’s Operating Manual which was

distributed among all deputy clerks. (J.A. 17, 19-21)

In 1974, the petitioner and the Presiding Judge

created and implemented these procedures to insure

notification to victims and police officers of new court

dates and to insure notification to the police department

of warrant recall orders. (J.A. 19) These procedures

were in effect at the time of the respondent’s arrest on

the recalled warrant on March 25, 1975.

The respondent, while free on bond, failed to appear

in court on the set court date. Ill. Rev. Stat. 1979, ch. 38,

§110-10. (J.A. 31) The court ordered respondent’s bail

—16—

forfeited, issued a bond forfeiture arrest warrant, and

set a return date for entering judgment on the bond

forfeiture order. Ill. Rev. Stat. 1979, ch. 38, §§110-7(h)

and 110-3. (J.A. 31) Prior to entry*of judgment respon-

dent voluntarily appeared in court without notice to the

complainant. The court sustained respondent’s motions

to quash the outstanding warrant and to vacate the bond

forfeiture order. (J.A. 31) The court continued the case

again after allowing respondent to remain free on bond.

The petitioner cooperated closely with the Presiding

Judge in this case “in order that judicial duties may be

properly accomplished.” Dennis v. Sparks, 449 U.S. 24,

30 (1980). In the instant case, the act of the petitioner

was the act of the court. Ex parte Morgan, 114 US. 174,

175 (1885). At common law, judicial immunity shielded

clerks who performed similar judicial or quasi-judicial

functions as though the court itself had performed the

act.

B. Historical And Public Policy Considerations Are The

Foundation For Petitioner’s Absolute Immunity From

§1983 Damages Liability.

In Pierson v. Ray, 386 U.S. 547 (1967) and Imbler v.

Pachtman, 424 U.S. 409 (1976), this Court provided the

framework for determining whether absolute judicial

immunity shields petitioner. The liability of court clerks

under §1983 must be determined in the same manner

that this Court determined absolute legislative immuni-

ty (Tenney v. Brandhove, 341 U.S. 367 (1951)), judicial

immunity (Pierson v. Ray, supra, 386 U.S. 547), and

prosecutorial immunity (Jmbler v. Pachtman, supra, 424

U.S. 409), as well as qualified official immunity (Scheuer

v. Rhodes, 416 U.S. 232 (1974)).

eC

In Imbler v. Pachtman, supra, 424 U.S. at 421 and

424, this Court held:

Rather, each [case] was predicated upon a con-

sidered inquiry into the immunity historically ac-

corded the relevant official at common-law and...

whether the same considerations of public policy

that underlie the common-law rule likewise

countenance absolute immunity under §1983.

Within this framework, historical and public policy con-

siderations insulate court clerks from liability for

judicial or quasi-judicial acts.

In Illinois the office of the Clerk of the Court was

created by Article IV, Section 6 of the Illinois Constitu-

tion of 1818. The Illinois Constitution allowed the circuit

court to appoint the clerk if his office was vacant when

the court was not in session “in order that the ad-

ministration of justice might not be delayed for the want

of so important an officer of the Court as a clerk.”

People v. Mobley, 2 Ill. 214, 221 (1835). The present

Illinois Constitution continues to recognize the special

relationship of the Clerk of the Court to the judiciary

where the Clerk’s Office, as well as the State’s At-

torney’s Office, originate in the Judiciary Article. ILL.

ConsT. art. VI, §§18 and 19 (1970).

At common law, the clerk was clearly an officer of the

court and not an executive or legislative officer. People

v. Brady, 275 Ill. 261, 262-263 (1916). This Court con-

sistently recognized that officers “within the ordinary

meaning of that term ... [included] ... marshals,

bailiffs, court clerks or judges.” Cammer v. United

States, 350 U.S. 399, 405 (1956). See Shadwick v. City of

Tampa, 407 U.S. 345, 351 (1972) (A court clerk is a

judicial officer “assigned to the . . . municipal court

judge for whom he does much of his work.”); Ferri

v. Ackerman, 444 U.S. 193, 202 n.19 (1979) (The clerk is

~15—

an officer of the court); cf. Haldane v. Chagnon, 345

F.2d 601, 604 (9th Cir. 1965) (Bailiffs are “entitled to the

protection of the judicial immunity which surrounded

the whole court.”); Johnson v. Granholm, 662 F.2d 449,

450 (6th Cir. 1981) (“Friends of the court” enjoyed

absolute immunity from §1983 damages liability when

failing to perform state statutory and court ordered

quasi-judicial duties to insure that the plaintiffs former

husband made child support payments as ordered in a

divorce decree.).

The clerk historically performed custodial, clerical

and court ordered functions. The “clerk of the court is

an officer of the court who has charge of the clerical

part of [the court’s] business and keeps its records and

seal, issues process, enters judgments and orders, [and]

makes certified copies from the record.” People v.

Brady, supra, 275 Ill. at 262.

At common law, judges supervised the clerk’s conduct

in and out of the courtroom. See Board of Supervisors of

Peoria County v. Roche, 65 Ili. 77 (1872). When record-

ing judgments of the court, the clerk’s “recording is in

legal effect the act of the court, and subject to its

judicial control.” Ex parte Morgan, supra, 114 U.S. 174,

175 (1885). Accord Commonwealth v. Thompson, 65 Ky.

(2 Bush) 559, 560 (1866). Illinois law required judges to

inspect the clerk’s office and to issue orders to the clerk

regarding the operation of the clerk’s office. Ill. Rev.

Stat. 1845, p. 147, §39; Ill. Rev. Stat. 1979, ch. 25, §22.

The court possessed its books, papers, and records

through its clerk. “The clerk is a necessary adjunct and

part of the court. His possession is the possession of the

court.” In re Lyman, 55 F. 29, 42 (S.D.N.Y. 1893).

In addition to the judiciary’s control over its clerks,

state legislatures enacted laws prescribing the clerk’s

=~

duties and responsibilities. See Ill. Rev. Stat. 1845, p.

147, §35; Ill. Rev. Stat. 1979, ch. 25, §13; People v.

Mobley, supra, 2 Ill. at 225. Prior to the passage of the

Civil Rights Act of 1871, the bulk of lawsuits filed in

state courts against clerks were primarily actions on the

clerk’s surety bond.

Illinois state law, representative of the other states’

bond laws, required the clerk of the court to post a sure-

ty bond “for faithful performance of the duties of his of-

fice, and to pay over all moneys that may come to his

hands by virtue of his office, to the parties entitled

thereto.” Ill. Rev. Stat. 1979, ch. 25, §4; Ill. Rev. Stat.

1845, p. 144, §15. Pursuant to this statutory fiduciary

contract with the state’s litigants, court clerks “agree

that they shall be responsible if he fails to perform his

official duty, and it is for this purpose that the bond is

required.” Governor v. Dodd, 81 Ill. 162, 164 (1876). The

bond statute, therefore, required the clerk to perform

ministerial acts mandated by state law.

State courts which predicated the clerk’s liability on

the ministerial nature of the clerk’s fiduciary duty to the

parties, for example, to enter a verdict for the proper

party or to accept a sufficient surety bond to cover a

verdict on appeal, strictly construed the legislature’s in-

tent to allow this narrow recovery on the bond against

the clerk. See Lick v. Madden, 36:Cal. 208 (1868); Gullick

v. New, 14 Ind. 93 (1860); State v. Merritt, 65 N.C. 558

(1871); Mann’s Appeal, 1 Pa. 24 (1845); Pass v. Dibrell,

16 Tenn. (8 Yerg.) 470 (1835); Clark v. Wilcox, 31 Tex.

32° (1868); and Russel v. Clayton, 7 Va. (7 Call.) 41

(1801).

In Illinois, however, prior to 1871, in order to main-

tain an action against the clerk for approving a bond

with insufficient surety, the Illinois Supreme Court re-

=e

quired the plaintiff to allege that the clerk acted wilful-

ly and maliciously. Billings v. Lafferty, 31 Ill. 318, 322

(1863). See also McFarlan v. People, 13 Il. 9 (1851). In

Massachusetts, no right of action existed on the clerk’s

bond where there was “nothing in the act which shows

a design to protect individual sufferers against the

negligence of the clerk te pay over moneys which may

come into his hands.” Crocker v. Fales, 13 Mass. 260, 261

(1816). The clerk’s liability, therefore, was a function of

statutory construction. Clerks were not always strictly

liable on their bond for failure to perform ministerial

duties required by state law.

The body of pre-1871 common law which evolved from

actions on the clerk’s bond clearly expressed the narrow

view that when clerks acted in a fiduciary relationship

with litigants, the plaintiff could recover on the clerk’s

bond if the clerk’s conduct prevented the plaintiff from

recovering against the defendant in the underlying tort

or contract action. At common law, the clerk’s judicial

relationship with the court, however, remained superior

to the unique fiduciary relationship with private

litigants.

State courts which found the court clerk liable at com-

mon law for failure to perform an act considered

ministerial did so because the act was mandated by the

bond statute rather than because the act was required to

be performed under the direction of the judge. The clerk

was immune from liability when performing acts

ordered by the court. At common law a presumption ex-

isted that matters which the clerk was required to sub-

mit to the judge for approval were performed under the

direction and with the approval of the judge. The

Philadelphia Wilmington & Baltimore Railroad Com-

pany v. Howard, 13 How. 305, 331, 14 L.Ed. 157, 168

(1851). See also 11 C.J. Clerks of Courts, §91 (1917)

x

A court-ordered act performed by the clerk was a

judicial or quasi-judicial act not a ministerial act. At

common law “the only reasonable construction to be

given to this language [of the statute] is, that all these

acts, thus required of the clerk, are to be performed by

him as clerk, acting ministerially, under the direction of

the law, and not under the direction of the court; and

they may be done as well out of court, as in court.” Peo-

ple v. Fletcher, 3 Ill. 482, 488 (1840).

A court clerk acting pursuant to a general order of

the Circuit Court was excused from liability for failing

to comply with a state statute. Davidson v. Wiley Bank

& Co., 31 Ala. (Book 25) 452 (1858). When the court

directed the clerk to enter a judgment “he will not be a

wrong-doer for following such directions, even if they

prove in the end to be erroneous . . . and the law will

protect him in so doing.” Hoeffner v. Stratton,*57 Me.

360, 362 (1869).

At common law, a clerk was not liable for damages

caused by his mistake in failing to enter judgment. Com-

monwealth v. Thompson, supra, 65 Ky. at 560. A clerk’s

mistake was not “fraud, culpable negligence, or willful

wrong.” Jd. The Kentucky Supreme Court concluded:

[T]he orders and judgments drawn by him,

although erroneous and prejudicial to the rights of

parties, are, when approved and signed by the

court, to be presumed to be the acts of the court

rather than the clerk, for which, for obvious

reasons, and on well-settled principles, no right of

action exists.

Id. at 560.

The clerk’s negligence, therefore, was no exception to

the clerk’s immunity from liability. See also Billings v.

Lafferty, supra, 31 Ill. 318 (1863). The act of the clerk

was the act of the court. Thompson, supra, 65 Ky. at 560;

—

Ex parte Morgan, supra, 114 U.S. at 175. The clerk was

no more liable for damages than the court if the court

had performed the act it had ordered the clerk to per-

form. Prior to 1871, despite the ministerial label at-

tached to the clerk’s duties, the clerk’s primary

relationship with the court became the judicial source of

the clerk’s immunity.

Recent common law decisions reinforce the historical

application of the doctrine of judicial immunity to court

clerks who performed ministerial acts pursuant to court

order (Yamamoto v. Santa Cruz County Board of Super-

visors, 124 Ariz. 538, 606 P.2d 28 (Ct. App. 1980)),

judicial functions (City of Louisville v. Bergel, 610

S.W.2d 292 (Ky. 1980)), and quasi-judicial acts

(Rodriguez v. State of New York, 55 Misc.2d 669, 285

N.Y.S.2d 896 (N.Y. Ct. Cl. 1967)). Neither the manner

of the performance nor the ministerial nature of the act

affected the absolute immunity of the court clerk from

liability.

In Yamamoto, supra, 124 Ariz. at 540, the Arizona

Appellate Court relied on Dieu v. Norton, supra, 411

F.2d 761 (7th Cir. 1969), the leading Seventh Circuit

§1983 court clerk immunity decision, to support the

Appellate Court’s holding for the court clerk. The Ken-

tucky Supreme Court relied on Shadwick v. City of Tam-

pa, supra, 407 U.S. 345 (1972), as controlling authority

for the clerks’ immunity. City of Louisville, supra, 610

S.W.2d at 293. The Kentucky Supreme Court held that

the court clerks’ erroneous issuance and approval of an

arrest warrant was “done in due course of their employ-

ment, [and] were judicial functions . . . This being true,

under familiar principles of judicial immunity neither

{clerk} is liable.” Jd.

—23—

In Rodriguez, supra, 55 Mise.2d 669, the claimant

filed an unlawful imprisonment action against the State

of New York based on the following facts. A judge sign-

ed an order discharging the claimant from a sentence of

probation while he was serving a prison sentence for an

unrelated offense. The clerk of the court failed to notify

the New York Department of Corrections of the proba-

tion termination order. Nearly one year later, however,

after Rodriguez completed his prison sentence, the

Department of Corrections, believing that he was still on

probation, arrested the claimant for violating the

previously terminated probation. A judge other than the

one whe placed Rodriguez on probation found him guilty

of violating his previously terminated probation and

sentenced the claimant to serve four months in custody.

In addition to his damages claim, Rodriguez claimed

that he contracted tuberculosis while in custody on the

violation due to the state clerk’s alleged negligence,

malfeasance, and carelessness. The trial court dismissed

the action against the court clerk.

On appeal, the New York Court of Claims affirmed

the dismissal. The Court held:

Courts have stated it to be the law by which this

court must be bound that a County Court Clerk, as

part of a court that had been absorbed into the

State judicial system, is protected from the conse-

quences of acts which are quasi-judicial in nature

and require the exercise of judgment and discretion

as also are such acts of a County Judge.

The Court finds the Clerk’s duty of notification

that probation had ended to be a quasi-judicial act

related to the sentencing process. Thus it differs

from duties of the Clerk to keep and certify records,

which duties have been classified as ministerial in

nature. Jd. at 673-674.

a ae

The Rodriguez court granted the clerk judicial immuni-

ty based on the same historical and public policy reasons

supporting judicial immunity for judges:

Harsh though the application of the rule of judicial

immunity may seem, it is essential to bear in mind

the comment of Judge Learned Hand in Gregoire v.

Biddle, (177 F.2d 579, 581) that liability under such

circumstances “would dampen the ardor of all but

the most resolute, or the most irresponsible, in the

unflinching discharge of their duties.” Jd. at 674.

In addition to these policy considerations the court relied

on Yates v. Lansing, 5 Johns. 282 (N.Y. 1810),* recogniz-

ed by this Court as the earliest American judicial im-

munity decision at common law prior to the Civil Rights

Act of 1871. See Imbler v. Pachtman, supra, 424 U.S. at

423 n. 20. The “doctrine which holds a judge exempt

from a civil suit or indictment, for any act done, or

omitted to be done, by him, sitting as judge has a deep

root in the common law” for clerks as well as judges and

prosecutors. Yates v. Lansing, supra, 5 Johns. at 291;

Imbler v. Pachtman, supra, 424 U.S. at 423 n. 20.

Only one §1983 decision, McCray v. Maryland, 456

F.2d 1 (4th Cir. 1972), has failed to recognize that clerks

historically “were protected by the traditional doctrine

of judicial immunity, and this rule of law was not

abolished by §1983.” Dieu v. Norton, supra, 411 F.2d at

763, citing Pierson v. Ray, supra, 386 U.S. at 553-555.

The McCray decision represents the only §1983 Circuit

Court of Appeals decision refusing to apply judicial

immunity to court clerks due to the ministerial nature of

those duties performed by the clerk not required by

* In Rodriguez v. State of New York, supra, 55 Misc.2d at

674, the court relied on Fishbein v. State of New York, 204

Mise. 151, 154 (Ct.Cl. 1953}, which cited Yates v. Lansing,

supra, 5 Johns. 282 , in a judicial immunity decision.

—25—

court order. This decision represents the minority rule

in the Circuits on the clerks’ immunity and is contrary

to the well-established common law foundation for the

clerks’ judicial immunity from §1983 liability. This com-

mon law immunity clearly survived the passage of the

Civil Rights Act of 1871 as evidenced by the majority

rule followed in Circuit Courts of Appeals that court

clerks enjoy absolute immunity from §1983 damages

liability.

C. The Petitioner’s Absolute Judicial Immunity From

§1983 Liability Is The Majority Rule Followed By The

Circuit Courts Of Appeals.

Respondent’s §1983 complaint alleged that petitioner

was liable for damages because petitioner’s deputy

clerks’ negligent failure to notify the Chicago Police

Department that the court had recalled respondent’s

arrest warrant caused her arrest, custodial strip-search

and seven hour detention on the recalled warrant.

Petitioner is not alleged to have personally failed to com-

municate, supervise, or implement respondent’s warrant

recall order. Petitioner cannot be held liable on the basis

of respondeat superior and could have been properly dis-

missed on that ground. Rizzo v. Goode, 423 U.S. 362,

370-371, 375-377 (1976); Monell v. Department of Social

Services, 486 U.S. 658, 690-695 (1978); and Polk County

v. Dodson, supra, 50 U.S.L.W. at 4080-4081 (A “general

allegation of administrative negligence fails to state a

constitutional claim cognizable under §1983.”). See also

Murray v. City of Chicago, 634 F.2d 365, 367 n. 4 (7th

Cir. 1981) (“Mere negligence, of course, will not support

a §1983 action against Finley. See Bonner v. Coughlin,

545 F.2d 565, 568 (7th Cir. 1976).”)

The petitioner’s absolute judicial immunity from

damages liability is an equally compelling ground for

cola

dismissal of respondent’s §1983 complaint. The al-

legations in the complaint against the petitioner all

related to acts and harm which are indistinguishable

from the allegations in the majority of cases barring

similar §1983 plaintiffs from challenging court clerks’

conduct performed within the scope of the clerk’s

judicial employment.

The First Circuit affirmed the summary judgment for

the court clerk who allegedly failed to give the plaintiff

tenant legal notice of a court ordered eviction. However,

judicial immunity prevented the court clerk from being

“held personally liable for any defects in service of

process, if indeed there were such defects.” Sullivan v.

Kelleher, 405 F.2d 486, 487 (1st Cir. 1968). In Slotnick v.

Garfinkle, 632 F.2d 163 (1st Cir. 1986), the First Circuit

upheld the court clerk’s motion to dismiss where the

clerk issued altered criminal commitment papers for the

plaintiff's admission to a hospital. The First Circuit held

that where the court clerk carried out “the official direc-

tives of a judge” the clerk enjoyed judicial immunity. Jd.

at 166.

The Second Circuit affirmed the District Court’s grant

of summary judgment for the court clerk who im-

plemented the Family Court’s procedure to issue arrest

warrants for husbands who failed to appear in response

to summons served by mail. Blouin v. Dembitz, 367

F.Supp. 415, 422 (S.D.N.Y. 1973), affd on other grounds,

489 F.2d 488 (2d Cir. 1973). The Third Circuit affirmed

the District Court’s dismissal of a §1983 complaint

against the Clerk of the Pennsylvania Supreme Court

who failed to file the plaintiff's disciplinary petition

against a lower court judge pursuant to tne Chief

Justice’s order and direction. The District Court held:

Thus, assuming that the failure to file said petition

was patently violative of complainant’s civil rights,

no basis in law exists whereby civil liability can be

imposed upon a public official acting pursuant to

court order and direction. Ginsburg v. Stern, 125

F.Supp. 596, 603 (W.D. Penn. 1955), affd, 225 F.2d

245 (8d Cir. 1955).

Cf. Smith v. Rosenbaum, 460 F.2d 1019, 1020 (8rd Cir.

1972) (The court clerk was protected by §1983 judicial

immunity when performing ministerial acts mandated

by state statute.); Lockhart v. Hoenstine, 411 F.2d 455

(3rd Cir. 1969).

The Fifth Circuit affirmed the District Court’s order

dismissing the §1983 complaint against the District

Court Clerk who “judicially” enforced Internal Revenue

Service summonses directed to the plaintiffs. Zimmer-

man v. Spears, 428 F.Supp. 759 (W.D. Tex. 1977), affd

on other grounds, 565 F.2d 310 (5th Cir. 1977). The

Court held that “clerks of the court are also entitled to

immunity the same as judges when performing their

duties.” Jd. at 762. But see Williams v. Wood, 612 F.2d

982 (5th Cir. 1980).

The Sixth Circuit affirmed the District Court’s ruling

granting the court clerk’s motion tw dismiss where the

clerk improperly failed to fix the plaintiff's bail follow-

ing his arrest. The Sixth Circuit held that where the act

was performed within the scope of his official quasi-

judicial duties, the clerk was entitled to immunity. Den-

man v. Leedy, 479 F.2d 1097, 1098 (6th Cir. 1973).

In Panko v. Rodak, 606 F.2d 168, 171 (7th Cir. 1979),

cert. denied, 444 U.S. 1081 (1980), the Seventh Circuit

held that the Clerk of this Court and his deputy were en-

titled to judicial immunity from damage liability for

their docketing actions because the Clerk of this Court

and his deputy were official aides of the Court when

“carrying out judicial or quasi-judicial functions within

ates

their authority.” Similarly, in the instant case, warrant

recall orders are unquestionably part of the circuit

court’s judicial functions. In enforcing and executing the

court orders, the petitioner clearly carried out judicial

and quasi-judicial functions within his authority. See

also Dieu v. Norton, supra, 411 F.2d 761, and Brown v.

Dunne, supra, 409 F.2d 341.

In Davis v. McAteer, 431 F.2d 81 (8th Cir. 1970), the

clerk lost certain court files that would have corroborated

the plaintiff's claim that his drug induced guilty plea

was invalid. The Eighth Circuit affirmed the District

Court clerk’s motion to dismiss, holding that “clerks of

courts are entitled to immunity the same as judges.” 431

F.2d at 83. See also Rhodes v. Houston, 202 F.Supp.

624 (D. Neb. 1962), affd, 309 F.2d 959 (8th Cir. 1962),

cert. denied, 372 U.S. 909 (1963).

The Ninth Circuit affirmed the District Court’s order

dismissing the plaintiffs §1983 complaint against the

court clerk who refused to furnish the plaintiff a portion

of his state criminal trial transcript. The Court held that

the act charged to the clerk was an act performed in his

capacity as a quasi-judicial officer and that the clerk

was clothed with judicial immunity. Stewart v. Minnick,

409 F.2d 826 (9th Cir. 1969).

In another Ninth Circuit §1983 decision the Court

held:

At best, [plaintiff] has charged [the court clerk] with

some kind of responsibility for her failure to receive

notice of the May 5, 1975, order [depriving her of

custody of her son]. His failure, if any, to perform

a ministerial duty which was a part of judicial

process is also clothed with quasi-judicial immunity.

Morrison v. Jones, 607 F.2d 1269, 1273 (9th Cir. 1979).

—29—

Thus, whether the clerk’s duty is described as ministeri-

al or judicial, the majority rule is that petitioner’s

failure to notify the Chicago Police Department did not

deprive him of his judicial or quasi-judicial immunity

from §1983 liability.

Finally, the Tenth Circuit affirmed the District Court’s

ruling granting the court clerk’s motion to dismiss

where the clerk failed to send a certified copy of the

plaintiff’s notice of appeal to the Clerk of the Kansas

Supreme Court pursuant to a statutory duty. The Dis-

trict Court held that this act did not state a cause of ac-

tion where “there are authorities which prescribe that

clerks of court are immune from liability under 42

U.S.C. §1983, for acts done in performance of their of-

ficial duties.” Hamrick v. Norton, 322 F.Supp. 424, 426

(D. Kan. 1970), affd, 486 F.2d 940 (10th Cir. 1971).

In each of the above cases the Court found the clerk

immune from §1983 damages liability for acts done in

the performance of the clerk’s judicial or quasi-judicial

functions. These decisions recognized that judicial im-

munity for court clerks transcended labelling the clerk’s

duties as ministerial in order to fix liability. In Brown v.

Dunne, supra, 409 F.2d 341, 343, the Seventh Circuit

held:

But if the term ministerial is used as the Court in

Ex Parte Virginia, 100 U.S. 339, 348, 25 L.Ed. 676

(1879) used it, it is plain that the charges [of

mere errors or irregularities] against the judge,

magistrate and clerks comprehend judicial rather

than ministerial functions, and therefore, do not

remove their official immunity.

The nature of the clerk’s duties was not a factor in the

determination of the clerk’s immunity where “those per-

forming ministerial acts under a judge’s supervision and

intimately related to judicial proceedings have quasi-

—30—

judicial immunity.” Ashbrook v. Hoffman, 617 F.2d 474,

477 n. 4 (7th Cir. 1980).

Therefore, contrary to the Seventh Circuit’s own

precedent, the determination of the clerk’s immunity

was ripe for decision, not “premature”. Murray v. City

of Chicago, 634 F.2d 365, 367 n. 4 (7th Cir. 1981). The

petitioner’s notification of warrant recall orders was

clearly performance of a quasi-judicial function required

by court order and intimately related to judicial

proceedings, thus entitling petitioner to absolute im-

munity. °

In the absence of absolute immunity, clerks, like

petitioner, knowing that an error in judgment will

subject them to §1983 liability, will have no incentive to

make decisions or suggestions to judges to promote the

efficient administration of the judicial system. In the

instant case, the petitioner, based on his experience,

possessed the most insight into the problems of bond

forfeitures and warrant recalls, and was in the best posi-

tion to advise the Presiding Judge and the interested

law enforcement groups which procedures would solve

the notification problems. In the absence of immunity,

however, only the Clerk of the Court will be liable

if the bond forfeiture and warrant recall procedures

recommended, created and implemented by the Clerk

do not work one-hundred per cent of the time and in

every case. The judicial immunity doctrine implicitly

recognizes that errors will occur, especially in courts

with overcrowded criminal dockets, so that indispensable

court aides, like the petitioner, will have the freedom to

make the best, if not necessarily perfect, decisions in-

tended to benefit the court and the public, both of which

clerks serve daily.

To deny court clerks the immunity enjoyed by the

judges in a legal system presently subjectéd to un-

jill at

precedented strains, would instill in all clerks the fear

that one inadvertent mistake will subject the clerk to

§1983 liability, would inhibit the clerk’s active interest

to contribute toward positive improvements to the judicial

system and, as a result, would deny the public their

right, to the most efficient administration of the judicial

process. Denying absolute immunity to petitioner would

fly in the face of policy considerations dictating the

immunity and “disserve the broader public interest.”

Imbler v. Pachtman, supra, 424 U.S. at 427.

Immunity will shield the petitioner when he aids the

judge he serves by devising procedures best suited, in

the petitioner’s judgment, to implement judicial orders

including those orders recalling warrants. In turn, in

the instant case, immunity will also accomplish the

petitioner’s ultimate dual purposes for the procedures,

the assurance that the Chicago Police Department will

be notified of recalled arrest warrants in order to

protect the public from arrests based on recalled arrest

warrants and the assurance that crime victims will be

notified of new court dates caused by defendants who,

like respondent, fail to appear in court and, thus, delay

the proceedings.

Respondent's §1983 complaint attempts to establish

that the petitioner is not absolutely immune by making

bald conclusory allegations of an official policy based on

the petitioner’s notification procedures which did not

communicate her single warrant recall order to the

police. These conclusory allegations, however, reinforce

the petitioner’s need for absolute judicial immunity for

acts performed pursuant to judicial order.

Public policy and historical considerations clearly es-

tablish that the petitioner enjoys the same judicial im-

=

munity shielding the judge who issued the warrant

recall order in this case. The petitioner respectfully re-

quests this Court to reverse the judgment of the Seventh

Circuit and hold that the petitioner is absolutely im-

mune from §1983 damages liability.

D. Available Alternatives To §1983 Liability For Clerks

Of The Court Provide Superior Methods For In-

suring That The Public Is Able To Remedy A Court

Clerk’s Misconduct.

In addition to the historical and public policy argu-

ments establishing judicial immunity for court clerks,

the fundamental question arises as to the overall

necessity for allowing a $1983 damages suit as a remedy

for a person injured by a court clerk's action or inaction.

As with prosecutors, legislators and judges, the public is

not powerless to remedy the misconduct of a court clerk

and to punish that which occurs. In /mbler v. Pachtman,

supra, 424 U.S. at 429, this Court emphasized the

following:

This Court has never suggested that the policy con-

siderations which compel civil immunity for certain

governmental officials also place them beyond the

reach of the criminal law. Even judges, cloaked

with absolute civil immunity for centuries, could be

punished criminally for willful deprivations of con-

stitutional rights on the strength of 18 U.S.C. §242,

the criminal analog of §1983. O'Shea v. Littleton,

414 U.S. 488, 503 (1974); cf. Gravel v. United States,

408 U.S. 606, 627 (1972).

Therefore, a clerk of the court will “fare no better for

his willful acts” than judges or prosecutors. /d.

Illinois provides for criminal punishment of a court

clerk “who fails to enter of record any order, judgment

or decree of his court within 45 days after the same is

made or rendered . . .” Ill. Rev. Stat. 1979, ch. 25, §15.

= =

Furthermore, the same statute provides that the clerk

may be removed from his office for any subsequent

failure to comply with the mandatory provisions of the

statute. Jd. See also Ill. Rev. Stat. 1979, ch. 33, §33 and

ch. 110, §62. Cf. Ill. Rev. Stat. 1979, ch. 38, §110-7(d).

Another section of the statute requires that every

Clerk of the Court in Illinois post a bond, with one or

more sureties, not less than $5,000 which is payable to

the People of the State of Illinois upon a showing that

the clerk or his deputies failed to execute the fiduciary

duties of the clerk’s office. Ill. Rev. Stat. 1979, ch. 25, §4.

The Illinois courts have historically held:

[T]he bond is given to protect not only the interests

of the county, but to protect the interests of any one

who may be injured by the official acts of the clerk.

“The object of an official bond is to obtain indemni-

ty against the misuse of an official position for

wrong purposes; and that which is done under color

of office, and which would obtain no credit, except

for its appearing to be a regular official act, is

within the protection of the bond and must be made

by those who sign it.” Murfree on Official

nds, Sec. 211. People v. Brown, 194 Ill.App. 246,

aol ag Dist. 1915); appeal dismissed, 272 Ill. 146

These federal and state remedies, therefore, exist to

protect the public from the acts of clerks of the court

who wilfully act beyond the scope of their authority or,

who in the absence of judicial directives, wilfully fail to

comply with their statutory duties. As in Jmbler v. Pacht-

man, supra, 424 U.S. at 429, these “checks undermine

the argument that the imposition of civil liability is the

only way to insure” that clerks of the court are mindful

of the constitutional rights of the public. This Court,

therefore, should uphold the ruling of the District Court

and hold that clerks of the court are entitled to the same

absolute immunity enjoyed by judges and prosecutors.

sities

E. The District Court Properly Granted Summary Judg-

ment For The Petitioner Where No Genuine Issue Of

Material Fact Existed That The Petitioner Enjoyed

Absolute Judicial Immunity.

The District Court granted summary judgment in

favor of the petitioner. On appeal the Seventh Circuit

Court of Appeals reversed and remanded the cause for

“further clarification of the facts . . . to consider whether

Finley is entitled to assert the defense of official im-

munity.” Murray v. City of Chicago, 634 F.2d 365, 367 n.

4 (7th Cir. 1981). The petitioner submits that the

Seventh Circuit erred in reversing the District Court’s

order granting summary judgment on behalf of the

petitioner as the District Court’s grant of summary

judgment was clearly based on the petitioner’s uncon-

troverted affidavits and documents which established

the absence of a genuine issue of material fact and that

the petitioner enjoyed absolute judicial immunity.

Fed.R.Civ.P. 56(e).

Previous civil rights immunity decisions amply sup-

port the District Court’s decision to grant summary

judgment where the petitioner’s immunity from liability

was clear from the record. See 6 J. Moore, Federal Prac-

tice 56.17 [8.-1] at 56-763 n. 1 (2d ed. 1966); Imbler v.

Pachtman, supra, 424 U.S. at 419 n. 13. In Lockhart v.

Hoenstine, supra, 411 F.2d 455 (3d Cir. 1969), the Third

Circuit affirmed the District Court’s grant of summary

judgment for the Prothonotary of the Superior Court of

Pennsylvania. The Court held that the court clerk was

absolutely immune from §1983 liability when his act

depriving the pro se plaintiff access to appellate review

was performed pursuant to court directive. As in

Lockhart, summary judgment was required in the in-

stant case where the District Court properly compared

the petitioner’s uncontroverted materials with the un-

a

supported allegations in respondent’s complaint. Jd. at

458-459.

The District Court carefully examined the warrant

recall procedures as reflected in the petitioner’s two

documents and two affidavits detailing warrant recall

procedures generally and respondent’s specific warrant

recall order in particular. (Pet. Cert. App. B at 18a) The

District Court observed that the respondent did not file

any opposing affidavits but, instead, relied solely on the

“conclusory” allegations in her complaint. (Pet. Cert.

App. B at 18a) The District Court held:

In the absence of such specific allegations [how the

warrant recall procedures were unconstitutional or

how the petitioner’s procedures proximately caused

an unconstitutional act] the Court must conclude

that the warrant recall procedures of the Circuit

Court of Cook County are not unconstitutional as

= ag to the allegations of the plaintiff's com-

plaint.

The Court is unable to determine that any genuine

issue of material fact exists in this case that would

result in any judgment other than one for the defen-

dant. Kiess v. Eason, 442 F.2d 712, Seventh Circuit,

1971. (Pet. Cert. App. B at 18a-19a)

In light of the District Court’s foregoing careful applica-

tion of Rule 56 to the record before it, the District Court,

therefore, properly granted summary judgment for the

petitioner.

Finally, the petitioner clearly required no more dis-

covery from the respondent than the taking of her

deposition in order to file his motion for summary judg-

ment. Rule 56(e) neither required the petitioner to defer

filing, nor required the District Court to defer ruling, on

the petitioner’s summary judgment motion until the

respondent decided to file interrogatory requests or

a we

notices of depositions. In fact, respondent failed to in-

itiate any discovery in the eight months between the

date the complaint was filed and the granting of sum-

mary judgment.

As in Lockhart, supra, 411 F.2d 455, no further

clarification of the facts was necessary to determine

whether the petiticner was entitled to absolute judicial

immunity for acts performed pursuant to court order.

As in the majority of Circuits, the District Court proper-

ly refused to permit the issues of the petitioner’s §1983

liability and immunity to proceed past the pleading

stage where, as in Polk County v. Dodson, supra, 50

U.S.L.W. at 4081, the complaint failed to allege that the

petitioner’s procedures were “constitutionally for-

bidden.” Since the petitioner’s uncontroverted affidavits

and documents established petitioner’s entitlement to ab-

solute judicial immunity within the meaning of Rule

56(e), this Court should hold that summary judgment

was properly granted for petitioner and reverse the

Seventh Circuit’s decision to the contrary.

—37—

CONCLUSION

For the foregoing reasons, Morgan M. Finley, the

Clerk of the Circuit Court of Cook County, respectfully

submits that this Court should reverse the judgment of

the Seventh Circuit Court of Appeals, should uphold the

order of the District Court granting summary judgment

for the petitioner, and hold that the petitioner is entitled

to absolute judicial immunity.

Respectfully submitted,

RICHARD M. DALEY,

State’s Attorney of Cook County, Illinois,

500 Richard J. Daley Center,

Chicago, Illinois 60602,

(312) 443-5460,

Attorney for Petitioner.

JANE CLARK CASEY,

Deputy State’s Attorney,

Chief, Civil Actions Bureau,

JOAN 8. CHERRY,

Assistant State’s Attorney,

Of Counsel.

SCOTT A. MAYER,

Special Assistant State’s Attorney,

HALEY, BADER & POTTS,

77 W. Washington St., Suite 1616,

Chicago, Illinois 60602,

(312) 782-7416,

Of Counsel.

January 12, 1982