SAVANNAH, Ga. (CN) – Georgia’s judges have blunted a power grab by the state’s court clerks who wanted to gain control over electronic filing and throw off the authority of the judges. “The issue here is judicial control over court records and the clerks who maintain them,” a Georgia lawyer said.
As drafted, the “Clerks Modernization Act” allowed Georgia’s clerks to start an electronic filing system on their own and required the county to pay for it. The bill also cut out a host of provisions that allowed the presiding judge to discipline or remove the clerk.
“This is the issue that is at the center of the continuing e-filing controversy here,” said a Georgia lawyer who asked to speak without attribution. “The judges see court records as their records and see themselves as responsible for ensuring public access to them. The clerks see them as their records, in part because their control over access presents a revenue opportunity.”
The clerks’ bill is related to initiatives in state courts across the nation tied to electronic filing of court documents, generally considered a source of new funds. The technology changes have often gone hand in hand with administrative power grabs elsewhere.
California’s Administrative Office of the Courts, for example, pushed changes through a presiding judges’ committee last year that gave court clerks full control over technology issues at the court and reduced the supervisory power of the presiding judge to general oversight.
At the same time, California’s central court administrators pushed a $2 billion software project called the Court Case Management System intended to allow electronic filing and expected to generate millions of dollars for the courts. But the project was labeled a “fiasco” and a “boondoggle” and was halted last month.
Unlike clerks in California who are civil servants hired by the presiding judge, clerks in Georgia are elected politicians. They argue that their bill is nothing more than an attempt to bring Georgia in line with the digital revolution.
“The act cleans up some old code sections that no longer apply in the 21st century,” said Greg Allen, Clerk of Superior and State Courts of Forsyth County. “Language is updated to include words such as ‘digital’ in mandated areas, and gives the superior court clerk the option of eliminating the costly printing of index books that are now available by computer.”
But many of the state’s lawyers and judges see the digital revolution as a stalking horse for clerks trying to increase their power. The proposed legislation is sometimes referred to as the “Clerk of the World” bill because it goes so far in aggrandizing the clerk’s role.
Georgia’s clerks are elected every four years in each of the state’s 159 counties. They are paid by the state, with salaries based on county population.
“The clerk of court’s job is a very important one, and we did feel we needed to make sure we had the authority to ensure that the job gets done,” said Douglas County Superior Court Judge David Emerson. “We expressed our concern that we have to have authority and we feel like we have reached a good compromise on those provisions.”
Emerson, who is the president-elect of the Council of Superior Court Judges, also serves as chair of the Technology Subcommittee of the Next Generation Courts Commission. He said the legislation does not directly involve electronic filing.
“We are working on something to try to lay the foundation to an electronic filing system,” said Emerson, “but that doesn’t mean every county will be able to afford that.”
As drafted, the bill allowed the clerk to “install digital equipment for use in filing,” and it removed the section of existing law that said “with the consent and permission of the county governing authority.”
That was interpreted by lawyers and judges to mean the clerk could start an electronic filing service on his own and the county was required to pay for it.
In addition, a series of provisions were added that removed the judges’ authority over records and gave the clerk sole contol, including the power to move the records outside the courthouse without the presiding judge’s consent.
At the same time, the bill allowed the clerk to continue charging the old prices associated with paper filing, thus turning the electronic filing process into a money-maker funded by the taxpayer but controlled entirely by the clerk.
On that score, Georgia law specifically allows the clerk to make a “profit” off the sale of court records.
The state statutes provide, “Any contract to distribute, sell, or otherwise market records or computer generated data of the office of the clerk of the superior court for profit shall be made by the clerk of the superior court.”
The lawyer familiar with the legislation noted that, “Many of the provisions of the bill don’t directly relate to court records but do dilute judicial control over clerks. The present system is that clerks maintain court records but under supervision of the court. This bill seems designed to eliminate that supervision.”
In the final version of the bill that is now before Georgia Governor Nathan Deal, some provisions of the original bill have been watered down somewhat.
Judges now have the right to check out files, for example. And they are not required to obtain written consent from the clerk, as the original bill required.
The final version also says the county “shall” supply the equipment needed to run the clerk’s office. But that is interpreted to mean that an efiling program would have to be approved through the budget process controlled by the county.
At the same time, a host of provisions expanding the clerk’s control of court records and cutting back on the authority of the presiding judge remain in the bill.
Under Georgia law, for example, judges fill superior court clerk vacancies pending election. Under the terms of the clerks’ bill, the position goes instead to the clerk-appointed chief deputy. If the unexpired term is more than two years. a special election is mandated.
Basically that provision allows the clerk to name his or her successor rather than the presiding judge.
Under current law, as a second example, a head judge can remove the clerk from office “for any sufficient cause.”
That power is handcuffed under the bill.
It changes the law to require that the Georgia governor first authorize an investigation by two other clerks as well as the state attorney general, and only if they recommend removal can the governor suspend the clerk. And only for a period of 60 days with a possible 30-day extension.
Only at that point do the original procedures kick in, allowing the head judge to remove a clerk after notice and trial before a jury. The clerk stays in office in the meantime.
Under current law, as another example, a judge on the judge’s own motion can fine the clerk for contempt: “Any clerk who fails to discharge the duties set forth in this Code section is subject to be fined by the presiding judge, on his own motion, for a contempt whenever the judge discovers that the clerk has failed to discharge his duties.”
That language is struck entirely in both the original and final version of the bill.
The legislation also deletes current statutory provisions whereby superior court judges tell grand juries about the court’s contempt power over the clerk and direct jurors to inform the court whether the clerk is properly discharging his or her duties.
Another section of the bill increases the power of a superior court clerk to take over the clerkship responsibilities for lesser courts.
“One problem I have with the process is a lack of emphasis on examining the history of various provisions and procedures,” said Judge Lynwood Jordan, Probate Court Judge of Forsyth County. He is particularly skeptical of the provision that excludes probate judges from the clerk’s appointment process when a vacancy occurs.
“Another example of historical considerations is the appointment process,” Jordan said. “Reasons exist for the present processes, including the geographic isolation of the great number of rural counties with no superior court judge living within two counties distant and having somewhat restricted knowledge of a particular county.”
“A probate judge is present in each county,” he added. “The probate judge is the county judicial officer with the intimate knowledge of that county.”