# Petitioners Brief — Finley v. Murray

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petitioners Brief
- **Published:** January 1, 1982
- **Citation:** 456 U.S. 604

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_2371%3A05. Public record. Not legal advice.