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In the United States, does the Clerk of Court typically have any type of decision-setting power, or does the Clerk's authority extend only to carrying out directives of judges?

  • Would you count things like scheduling, assigning court staff to rooms, and other administrative jobs to be decision-making power? – cpast May 27 '15 at 6:11
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The answer is going to vary from state to state and, even within a state, from jurisdiction to jurisdiction.

However, in general terms, non-judicial court officers, such as clerks of court and prothonotaries, will have specific tasks delegated to them by the court; they can make decisions on matters that the legal system does not consider to require judicial discretion and judgment. These are often described as "ministerial." They may include significant decisions with significant consequences: for example, dismissing a case, or granting judgment against a party, where a party has missed a deadline. In some if not all cases, these decisions can be appealed to a judge, but are unlikely to be overruled.

There are also another class of non-judges, such as magistrate judges and administrative law judges, who take on more traditional, non-ministerial judicial roles, acting and making decisions that call for the exercise of judgment; again, these are generally appealable to a regularly appointed or elected judge.

The short answer, then, is: Clerks of court cannot do everything a judge can do, but they can act on their own discretion when the matter falls within their ministerial authority. This authority can include, in appropriate cases, deciding who wins and who loses a lawsuit.

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  • 2
    I'm not sure magistrate judges and administrative law judges are non-judges. They are judges, just a different kind of judge. – cpast May 27 '15 at 19:19
  • A magistrate is a "regularly appointed" judge. Administrative law judges are not Art III judges though. Magistrate judges just cannot act on determinative issues. (e.g. motions for summary judgment since deciding that would be determinative of the case.) – Andrew Jul 6 '15 at 18:01
  • In many states clerks of court have the power to reject filings with defects in form, to issue default judgments, to issue post-judgment writs (e.g. of garnishment or execution), to accept satisfactions of judgment, and to probate wills and appoint executors based upon uncontested facially regular probate applications. – ohwilleke Jun 6 '18 at 20:02
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Most work of court clerks is ministerial, but it varies.

The biggest areas where court clerks are sometimes allowed to take action in some states and jurisdictions are:

  • Issuing post-judgment debt collection process.
  • Issuing subpoenas on behalf of pro se parties (i.e. for self-represented non-lawyer litigants).
  • Determining if filing formalities have been met and a document can be filed, or if it will be rejected.
  • Determining an appropriate filing fee in cases of ambiguity.
  • Approving uncontested informal probate filings, and entering orders and letters for the executor (a clerk with this authority usually has special training and the additional title of "registrar").
  • Issuing a "clerk's default" or even a full default judgment when a deadline to a civil complaint is not timely filed, or in response to post-judgment collection process.
  • Determining if a bill of costs for a prevailing party in a civil case is valid and should be added to a judgement.
  • Accepting bonds in civil and criminal cases that meet safe harbor requirements.
  • Accepting bonds in criminal cases prior to a court setting bond where the court has approved a set schedule of bond amounts for certain offenses.
  • Determining if a supposed "emergency" filing will be referred to a "duty judge" for immediate action.
  • Releasing money held by a court after a satisfaction of judgment has been filed in a case.
  • Scheduling hearings after consultation with all parties of record or pursuant to a standing court policy.
  • Registering foreign judgments if everything seems to be in order.
  • Determining if a document that the clerk has been authorized to sign by a judge conforms to the court's order authorizing the signature.
  • Cancelling hearings and trials on a court calendar pursuant to a court-wide policy due to pandemics and weather conditions and giving notice to those affected.
  • A great many matters related to summoning jurors and excusing or deferring jurors from serving, before a juror in question is seated in a particular case.
  • Management of court facilities (snow removal, cleaning, IT service, etc.)
  • Supervising security measures in a court house (some clerks are also ex-officio appointed as the bailiff, the court official in charge of court security).

The modern trend is to reduce the authority of court clerks in most circumstances.

Also, keep in mind that many courts have two main classes of clerks. One serves the courthouse as a whole. The other kind consists of clerks assigned to particular judges. The list above refers mainly to the former. Clerks assigned to particular judges typically evaluate calls to the judge's division to determine what action, if any should be taken, and play an active role in management of a particular courtroom (e.g. making arrangements for AV resources, interpreters, court reporters and lunches for jurors when needed, scheduling hearings and trials, keeping track of case deadlines, doing preliminary evaluations of cases for judicial evaluation, preparing "minute orders" summarizing what happened at hearings, etc.).

In appellate courts, clerks assigned to particular judges are basically research assistants for judges.

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