Finley v. Murray

LOCATION:Residence of Fitzgerald

DOCKET NO.: 80-2205
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: United States Court of Appeals for the Seventh Circuit

CITATION: 456 US 604 (1982)
ARGUED: Apr 21, 1982
DECIDED: May 17, 1982

John S. Elson – on behalf of the Respondent
Scott A. Mayer – on behalf of the Petitioner

Facts of the case


Audio Transcription for Oral Argument – April 21, 1982 in Finley v. Murray

Warren E. Burger:

We will hear arguments next in Finley against Murray.

You may proceed whenever you’re ready.

Scott A. Mayer:

Mr. Chief Justice and may it please the Court:

This case is before you on a writ of certiorari to the Seventh Circuit Court of Appeals.

Petitioner should enjoy absolute judicial immunity from Section 1983 damages liability for acts taken in discharge of his duties as an aide to the court, in order that the court’s judicial duties may be properly accomplished.

The intimate relationship between the court clerk and the court is clearly reflected in the record in this case.

Petitioner, the clerk of the Circuit Court of Cook County, created court procedures in order to implement a general order issued by the presiding judge of the Municipal District in the Criminal Court of Cook County.

The clerk created these court procedures in conjunction with the general order in order to notify the Chicago Police Department of warrant recall orders, as well as to notify victims and witnesses of court dates when a criminal defendant, such as Respondent, fails to appear in court on the designated court date.

Mr. Mayer, is it your position basically that the clerk should enjoy absolute immunity here, even if, for example, he refused to forward any recall orders involving blacks?

Scott A. Mayer:

The clerk would enjoy absolute judicial immunity only if he was acting in his capacity as clerk in order that judicial duties may be properly accomplished.

As a clerk, he declines to forward any recall orders involving blacks.

Absolutely immune in your view?

Scott A. Mayer:

He would not be absolutely immune in that situation.

He would be immune only if he was acting pursuant to court order or directive, within the scope of his duties as the clerk of the court.

Well, how is that different?

Scott A. Mayer:

In this case, there is no allegation of a clerk intentionally failing to communicate to the police department an arrest recall warrant.

In this case the only allegations are against the Petitioner as the clerk of the court in his official capacity in creating procedures.

These procedures, there are no allegations that they are unconstitutional, but merely that those procedures were not followed by one clerk who, by mistake or inadvertence, inadvertently failed to communicate the warrant recall to the Chicago Police Department.

Well, does the mandatory nature of the duty, then, affect whether in your view there is absolute immunity?

Scott A. Mayer:

No, it is not relevant whether or not the duty is labeled discretionary or ministerial.

The relevant inquiry is not into that nature, but into whether or not that is a function intimately associated to the court process.

Therefore, the question devolves not on whether or not the clerk must or must not… whether it’s a ministerial or discretionary duty, but on the function.

The test is whether the clerk is acting as an official aide and whether he is functioning in that capacity as clerk, as the Petitioner in this case was in fact doing.

In his close association with the presiding judge, he created procedures.

There are no allegations against any other clerk in this case.

But Mr. Mayer, is it not true that the complaint alleges that those procedures were knowingly adopted even though they were unconstitutional procedures?

Page 9 of the Joint Appendix has that kind of allegation.

Scott A. Mayer:

The complaint on its face alleges that the Petitioner knowingly implemented court procedures, but there are no allegations on the face of the complaint other than–

Well, here’s the paragraph I have reference to:

“The conduct, procedures and customs herein alleged occurred and continued to occur during the course of and as a result of Defendant’s knowing and unconstitutional adoption, promulgation, revocation, and implementation of policies, statements, regulations, and known custom. “

Scott A. Mayer:

–It’s correct that that allegation is in the complaint.

And you’re saying that your client is immune even though he did exactly what’s alleged there, absolutely immune?

Scott A. Mayer:

Even assuming, taking all facts–

That is your position?

Scott A. Mayer:

–Yes, that is true, our position is that he is absolutely immune as a function of his status as clerk, acting as clerk for the court.

This would be no different than if the Respondent alleged that the judge in his creation of procedures in his general order knowingly created procedures similar to the allegations in the complaint.

He is, like the judge, performing a function as clerk for the court, in a quasi-judicial capacity, within the scope of his authority, which is admitted in the face of the complaint.

The complaint admits that this was his duty as the court clerk, that he created these procedures, and that all that he failed to do was to create perfect procedures.

When we discuss the question of judicial immunity, we are dealing with an imperfect world.

That is all that happened here.

A mere mistake and a mislaid file in the court’s office, clerk’s office, was at most what caused the failure of the recall warrant to be communicated.

Mr. Mayer, do you see any distinction between the clerk’s act in carrying out the order of the judge or the court or in refusing to carry it out?

Scott A. Mayer:

It is irrelevant whether or–

If the clerk just refuses to carry out the judge’s order to transmit recalls?

Scott A. Mayer:

–Our position is that the clerk would be absolutely immune in that situation, because it is… the policy considerations behind allowing… the policy considerations are as follows: that court clerks, as judges, should be free from allegations of… free from defending against allegations of a 1983 complaint for acts that are intimately related to the judicial process, whether or not those acts are carried out.

The majority of circuits who have decided whether or not clerks are absolutely immune have held that they are as long as the act is pursuant to a court order or directive or intimately related to the process.

Even the Fifth Circuit in Williams versus Wood held that without regard to scienter, which is a factor that is always taken… which is never taken into consideration in a question of immunity of judges, dating back to Bradley versus Fisher.

It is irrelevant because the policy is that the potential harm to deny absolute judicial immunity from Section 1983 damages is greatly outweighed by the good to the public.

Is this derivative from the judge?

Scott A. Mayer:

Our position is that the absolute judicial immunity enjoyed by the court clerk… he derives his status from the court, but he… the test for his immunity is dependent not only on his status from the court–

Well, suppose the judge said, that rule you’ve got that’s set out on page 9, don’t you ever follow it, and he continues to follow it.

Is he still immune?

Scott A. Mayer:

–If the clerk refused to follow the court order, we would still submit that he would be absolutely immune in this case.

It is a question of status and function.

As long as the duties are performed in order that–

Does that go to the property clerk, too?

Does your rule apply to the deputy clerk, too?

Scott A. Mayer:

–Yes, Your Honor.

And the assistant clerk?

Scott A. Mayer:

As long as he is an official, yes.

Tell me when to stop.

And the stenographer?

Scott A. Mayer:

Your Honor–

And the man that opens the door, and the man that sweeps the room?

You haven’t told me to stop yet.

Scott A. Mayer:

–The line should be drawn at the… in this case, based on the test that is applied in judicial immunity cases, to stop when the clerk is… when the person is no longer acting as an official aide of the judge in order that judicial duties may be properly accomplished.

This applies, you say, to the judge’s bailiff?

Scott A. Mayer:

Absolute judicial immunity has been applied to bailiffs in courts where their acts–

His chauffeur–

Scott A. Mayer:

–No, Your Honor.

–Why not?

Scott A. Mayer:

Because the chauffeur is not an extension of the court as the clerk is an arm of the court.

The chauffeur has–

Well, how about the bailiff?

Scott A. Mayer:

–The bailiff–

How about the bailiff acting as a chauffeur–

Scott A. Mayer:

–The bailiff acting as a chauffeur–


Scott A. Mayer:

–is not absolutely immune from 1983 damages liability.

Why not?

Under your theory, why not?

Scott A. Mayer:

Because he is not acting as an aide to the court.

His status… he is taken out of the context of the court.

He can be called bailiff or anything else, but you look then to what is his conduct, and if his conduct as a chauffeur has nothing to do with the court system, which I assume it does not, he would enjoy no immunity in his status as a chauffeur.

Earlier I thought you responded to one question that indicated that if the clerk had an order from the judge and he failed to carry that order out he would still have immunity.

Now, if it’s derivative from the judge, how is it a quasi-immunity act if he’s doing not what the judge ordered him to do, but failing to do what the judge ordered him to do?

Scott A. Mayer:

Our position is that in the sense that a clerk is acting as a judge he would have derivative immunity.

In the sense that the clerk acts as the clerk and not the judge, he enjoys absolute judicial immunity without regard to the manner of performance of the act, because we look not to the specific result of whether or not the act was accomplished; we look to what was the function of the clerk at the time.

In this case, the failure of the warrant recall order to be communicated was merely the result of at most inadvertence, and in that case it is no different than in the common law when a court clerk failed… erroneously entered an order by the court.

It was as if the clerk did not enter the order at all, but under the common law the clerk did in fact enjoy immunity from damage liability.

Why wouldn’t qualified immunity be adequate here, in terms of exactly what happened?

If you say all it was was a piece of negligence, why would he need any more than qualified immunity?

Scott A. Mayer:

The clerk should enjoy absolute… the absolute judicial immunity, not a qualified immunity, because he would be forced at trial to defend against the good faith acts of conduct that is intimately related to the judicial process.

The independence of the judiciary… this would require the clerk to go to court, to sit at the defense table, to defend against conduct that may in the end turn out not in fact to have been the result of negligence, or if even intentional conduct.

The point is that the court system will be clogged, the judicial machinery will break down, if court clerks are required to defend their actions in court in 1983 actions.

Why do clerks ever post bonds?

Scott A. Mayer:

Court courts post bond in their fiduciary capacity as a trustee–

Well, why aren’t they just absolutely immune?

Are they just paying money out for nothing for bonds?

Scott A. Mayer:

–No, they’re not.

But the question of bonds is a different question from whether or not the court in a 1983 action should be subject to absolute–

Can you sue a clerk on his bond?

Can the clerk be sued on his bond for this conduct, for malfeasance in office?

Scott A. Mayer:

–A clerk could be sued on his bond, but he could also… there are other alternative remedies that a clerk can be sued on besides his bond.

Why can he be sued on his bond if he’s absolutely immune?

Scott A. Mayer:

Because the statute… well, the state statute can provide, as it does in Chapter 25, Section 10, as an alternative remedy, that the clerk of the court can… the principal clerk is liable for the acts of his subordinates.

Well, in Illinois… in Illinois is the bond required of a clerk, a bond, an insurance policy like the public liability for driving an automobile, or is it a bond simply to replace any money which he receives and embezzles?

Scott A. Mayer:

Yes, the latter aspect is the purpose of the bond in the State of Illinois, for the purpose of… to replace those moneys that are taken illegally by the clerk.

Suppose the Illinois legislature passed a statute that says, we know we’ve read all about this immunity for state officers under 1983, but that just is an assumption by the Supreme Court or by some courts that this kind of immunity is essential to get the public work done.

Well, we hereby declare that it is not essential to get the Illinois public work done to have immunity under 1983.

There certainly wouldn’t be any immunity then, would there?

Scott A. Mayer:

The clerk would be immune only if he was acting as an official aide of the court in order to discharge the court’s duties.

But the state doesn’t want any protection for its officers to protect its public business.

Scott A. Mayer:

The state can legislate in this area, as it has done already in the Illinois Revised Statutes in the Clerk’s Act.

Would you think… could the clerk have been sued under state law here?

Scott A. Mayer:

The clerk could have been sued under state law.

And he would not have been immune?

Under state law he would not have been immune?

Scott A. Mayer:

Under state law today there is a statute that would provide that the principal clerk can be sued for the acts of his deputies.

He could be sued for this conduct right here, and he would not be immune under state law?

Scott A. Mayer:

Under state law, the question has not been decided whether the clerk enjoys judicial immunity.

But there is a state statute and there is case authority that permits a clerk to be sued in a civil action.

For the negligence of his deputies?

Scott A. Mayer:

yes, for the negligence of his deputies.

Aren’t you asking the federal courts, then, to be more Roman than the Romans?

If the Illinois courts, the Illinois legislature, permit this sort of an action in state court against a clerk, I would think Justice White is quite right that Illinois has determined that absolute immunity isn’t necessary.

Or any kind of immunity.

Scott A. Mayer:

Well, the statute that I referred to is an available alternative remedy that has not been tested that I can tell in my research.

The statute is on the books, but there is a question now raised by Drury versus Mclean County, which has held that the clerk of the court in Illinois has historically been a member of the judiciary branch.

So you say it’s an open question–

Scott A. Mayer:

It is an open question in Illinois.

The Drury case did not–

–You just told me that there could be recovery against this clerk in an Illinois court under state law for this very conduct.

Scott A. Mayer:

–Your Honor, I’m sorry.

The case–

That’s what you just told me a while ago.

Scott A. Mayer:

–Well, the case is an… the issue is an open issue.

My point is only that there is a state statute that could provide a remedy against the clerk.

Well, that’s… so what do you mean, is there a remedy for this conduct under state law or not?

Scott A. Mayer:

It is not clear, other than by the fact that this statute exists.

Is your state statute cited anywhere?

Scott A. Mayer:

Yes, Your Honor, it is.

In your brief or what?

Scott A. Mayer:

It is cited in the Respondent’s brief and in our reply brief.

It’s in footnote 3 of the Respondent’s brief.

Thank you.

May I ask this question.

Is there a difference between action and non-action by the clerk?

Assume, for example, that the clerk neglected to issue the mandate of the court, just inadvertently failed to do it.

That would be non-action.

You have non-action in this case.

Does the immunity for which you argue extend regardless of whether it’s action or non-action?

Scott A. Mayer:

Yes, Your Honor, and the reason for that again is that acting as an official aide of the judge in his capacity as the clerk, it is not relevant whether the intended… whether the intended result was accomplished.

The fact is that the policy considerations require that in order for the judicial machinery to be able to function with the essential court officers, the clerks… the courts will be clogged with petitioners like the clerk of the circuit court having to go in to defend against actions of performance or non-performance, it will disrupt the court system to such a degree that the potential harm to deny absolute judicial immunity must be outweighed by the public good to have clerks clerking and not sitting in courtrooms defending against actions and complaints under 1983 either for inaction or action.

What if the inaction was deliberate?

The clerk just didn’t want to have the mandate issue because he didn’t agree with it.

Scott A. Mayer:

Our position would be the same, that an absolute judicial immunity would exist regardless of the intent or the malice or the bad faith.

Even if he deliberately ignored the judgment of the court?

Scott A. Mayer:

It is better to… yes.

It is better to allow one corrupt… a corrupt clerk to go free than to have the faithful clerks, whose ardor will definitely be dampened from performing their faithful duties if a policy is instituted where they can be subject to liability for allegations of malice or bad faith in a complaint.

The facts in this case are simple.

The clerk here is not alleged to have done anything wrong.

All he did was create procedures.

These procedures were intimately–

Mr. Mayer, you didn’t raise any question as to whether or not the clerk could be held substantively liable under 1983.

As I understand your petition, the only question you raise is, assuming that the clerk can be held liable for these rather detached and passive acts, whether notwithstanding the substantive liability he may assert an absolute immunity.

Scott A. Mayer:

–Yes, Your Honor, our petition… the question presented is limited to whether or not he should enjoy absolute judicial immunity for acts taken in discharge of his duties as an official aid of the court, in order that the court’s judicial functions can be properly accomplished.

And the facts in this case clearly reflect that when the clerk, the Petitioner, created these procedures he did it with the court’s knowledge, with the court’s approval, under the court’s supervision… clearly an act as the clerk within his scope of authority as the clerk of the court.

In this case, Petitioner is clearly and should be clearly held absolutely immune for an act that is so intimately related and integrally related to the judicial process.

The 1983 cases in the circuits that have dealt with this issue have all held… the majority of the cases that have held that the clerks are immune have held that the clerk of the court’s common law immunity has not been abrogated by the enactment of Section 1983.

Well, what if it’s abrogated by state law?

Scott A. Mayer:

Well, if… the clerk’s immunity should still survive regardless of whether… in 1983 actions, the question is whether–

Why would it?

Scott A. Mayer:

–The question of whether or not the clerk is absolutely immune under 1983 is dependent upon whether or not at common law the clerk was… enjoyed immunity from damages when sued when performing acts as a clerk in discharge of his duties, regardless… and as the common law establishes, the clerk of the court was not amenable to suit when acting under the direction and supervision of the court.

A presumption existed that when a clerk acted he acted with the authority of the court for whom he acted, regardless of whether or not it was negligent or intentional.

Now, the cases that have dealt with this in the circuits have consistently held that whether or not it was a failure to notify someone pursuant to a court order, whether it was a failure to send notice of a copy of a notice of appeal, regardless of whether or not the clerk refused to docket a particular piece of paper, the end result was the same.

The analysis focused on whether or not the clerk acted as an official aid of the judge in order that the judicial duties could be properly accomplished.

And the policy considerations behind this are clear, that if clerks are required to defend their actions in a federal court plaintiffs will be able to do indirectly what they cannot do directly.

The clerk will be the one who will have to go in and defend against court orders and court actions, which cannot be done if the judge himself had been sued under Section 1983.

By bringing the clerk into court, the court system will be bogged down.

Scott A. Mayer:

In a system like Cook County, in the Circuit Court of Cook county, to have the clerk of the court go in and defend every time a disgruntled person feels like filing a Section 1983 suit based upon conduct of the–

Well, certainly this Respondent is not a disgruntled person.

Scott A. Mayer:

–That is correct.

You haven’t made any mention of the facts underlying this.

She was a victim, as I understand it, of a robbery or a mugging or something.

Scott A. Mayer:

Your Honor, in this case she was charged–

She was more than disgruntled.

Scott A. Mayer:

–The clerk of the court agrees that she is not a disgruntled person.

In fact, it is unfortunate that what happened happened here.

The warrant recall order should have gotten to the Chicago Police Department.

The facts in this case are clear that she was not the victim of a mugging.

She was in fact initially charged as a criminal defendant for deceptive practices, and in this case the Respondent–

But arising out of the theft of her credit cards, no?

Scott A. Mayer:

–Assuming the allegations in the complaint are taken as true, yes, that is correct.

But even under these set of facts, we must go back to the allegations in the complaint.

The allegations in the complaint clearly reflect that the Respondent acknowledges that the clerk was acting as an official aide of the judge, acted in discharge of his judicial duties to implement court orders, and that all that the Respondent seeks in this case is that the clerk create perfect procedures, which are impossible in an imperfect world, where immunity recognizes that mistakes will occur.

And especially in a large metropolitan court system, like the one in Circuit Court of Cook County with 2100 deputy clerks, 6 municipal districts, a likelihood of one mistake in a thousand like this happening will happen.

Without judicial immunity, the clerk should… would be subject to having to leave his duties and thus impair the effective administration of justice in the circuit court.

Mr. Mayer, at this point we really don’t know what happened, do we, because it was resolved on summary judgment?

Scott A. Mayer:

We know… it’s not relevant beyond the facts as they’re stated on the complaint as to what happened.

We know what happened as to what the clerk did.

The clerk created the procedures with the court to promote the efficient management of the court system.

Whether or not the clerk on the tenth floor mislaid that file intentionally, negligently, whether or not the Chicago Police Department failed to execute their procedures, is not relevant to the question of whether the clerk is absolutely immune as an official aide, doing his job to promote the efficient management of the judiciary.

We would ask that this Court reverse the Seventh Circuit’s decision and extend absolute judicial immunity to court clerks.

I would ask that the remaining time I have be reserved.

Warren E. Burger:

Mr. Elson?

John S. Elson:

Mr. Chief Justice and may it please the Court:

This case is not about a clerk’s liability for the proper execution of a court order.

The complaint alleges both that Petitioner did not fulfil his duty to deliver to the police the court order recalling Respondent’s arrest warrant and that the failure to deliver that order is alleged to have resulted from Petitioner’s continued implementation of policies and customs that he knew were inadequate, as Mr. Justice Stevens pointed out in reading from the complaint.

Mr. Elson, suppose you had a situation, instead of hundreds of clerks in the office, you have a justice of the peace, a judicial officer out in the country, who has no clerk, no staff, no secretary, and then you postulate all the facts that happened here: that he should have sent something to the sheriff or to the police, but he went fishing or he just forgot it or he put it in the drawer and mislaid it.

Would the judge have absolute immunity?

John S. Elson:

The opinions of this Court on that question are not recent and the question is not clear.

Well, what’s the general proposition about judicial immunity?

John S. Elson:

The general proposition is that the court would look at the nature of the duty, and this is an administrative duty, so that judicial immunity simply wouldn’t apply, since this Court has determined–

Well, the Strunk case should shed some light on the answer to that question, shouldn’t it?

John S. Elson:

–I’m sorry, Stump?



John S. Elson:

Stump versus Sparkman?


John S. Elson:

In Stump versus Sparkman, the court… one of the requirements for judicial immunity was that the court act within its jurisdiction.

It seems clear from the context of the case that the Court was referring to jurisdiction in the sense of jurisdiction to decide cases.

And I think this interpretation was augmented in the Court’s recent decision in Dennis versus Sparks, in which the Court held that the purpose of judicial immunity… that judicial immunity arose in order to protect judges’ ability

“to exercise their independent judgment about the merits of cases. “

The only precedent on this, direct precedent on this subject dates back to 1879 in the case of Ex Parte Virginia, in which the Court was explicit in saying that… this Court was explicit in saying that it’s necessary to look at the actual function performed by a judge, and that if a judge performs a function that could just as well be handled by anybody… in that case it was a purely ministerial duty… then the Judge has no immunity simply because of his title and status.

Of course, that was a mandamus action.

John S. Elson:

That was a mandamus action.

Thi Court has looked at the policies for mandamus for immunity in terms of injunctive relief and damages in some cases being related.

In that case there was no indication that the Court would have had a different view in terms of damages, certainly, in that case.

I would even hazard that the reasons for injunctive relief might be even stronger than for damages.

Is it your position, counsel, that the clerk would be entitled to qualified immunity for failure or refusal to perform a mandatory duty?

John S. Elson:

No, Your Honor.

It’s our position that on the facts of this case it’s just premature to determine whether any immunity would be appropriate.

Judge Swygert–

Just in abstract terms, not with reference to the determination of the facts of this case, assuming that we had a clerk who failed or refused to perform a mandatory duty–

John S. Elson:

–If a mandatory–

–what is your view of th appropriate of what would be appropriate?

John S. Elson:

–If the mandatory duty were of a ministerial nature, then no immunity would be appropriate.

And this Court… all of this Court’s decisions dealing with the question of immunity have held that the fundamental purpose of immunity is to protect an official’s discretion, ability to exercise discretion independently.

Where there is no discretion, then the fundamental purpose of immunity disappears.

John S. Elson:

Judge Swygert in his opinion below noted that, and the Fourth Circuit has held that in its leading opinion of McCray versus Maryland.

Judge Swygert’s opinion was a concurring opinion.

John S. Elson:

I’m sorry.

In his concurring opinion he noted that, and referred to McCray versus Maryland in the Fourth Circuit as also holding that.

And that is in line with the historical–

Do you understand on the remand for trial, which I gather was the order of the Court of Appeals, wasn’t it?

John S. Elson:

–That’s correct.

Is there any issue of immunity open?

John S. Elson:

Yes, there is.

The Court of Appeals remanded on the Ground that factual clarification was necessary to determine whether official immunity was appropriate, and cited to previous Seventh Circuit case–

Now, you say whether official immunity.

In what form, absolute or–

John S. Elson:

–Well, the court… the only indication was its reference to its previous case in Dieu versus Norton.

In that case the court determined that a court clerk had absolute immunity for actually carrying out the orders of a judge acting pursuant to his legal duties.

So the implication from the Seventh Circuit’s remand would be a remand for a factual determination of whether the clerk was in fact acting pursuant to judicial–

–And if not, no immunity at all?

John S. Elson:

–And if not, the question of no immunity is unclear.

All we have is Judge Swygert’s concurrence, in which he says that no immunity would be appropriate.

Of course, he was also referring to the problem of whether negligence is appropriate–

Are you suggesting that, if on the remand there were a determination there ought to be some immunity, that what, the trial judge would have to determine whether it was going to be qualified or not?

John S. Elson:

–The trial judge would have to determine whether there’s qualified or no immunity.

No on the theory that he wasn’t acting within the scope of his authority or something like that?

John S. Elson:

Well, no immunity on the theory that he was performing purely a ministerial function.

Ministerial office.

John S. Elson:

And he had no disecretion whatsoever And the ministerial… the proposition that there is no immunity for ministerial functions fits within the historical background of Section 1983.

One of the requirements for proving absolute immunity under Section 1983 is to show… the Petitioner has the burden of showing that there was an equivalent immunity in 1871, when Section 1983 was enacted.

Mr. Elson, before you leave the question on remand, is it not correct that there are three alternatives, rather than two, even under your view of the law?

One would be that if it were a mere ministerial act there would be no immunity at all.

And the other extreme, if he’s carrying out a direct order of the judge and if he does exactly what the judge tells him to, I think you probably would agree that’s absolute immunity.

John S. Elson:

No, I would not, because the order in this case of the chief judge was purely an administrative order, and it’s our position–

Well, let me put it a little differently.

Would there not be some situations in which the clerk did nothing more than carry out a direct order of a judge where he would be entitled to absolute immunity?

John S. Elson:


All right.

But is there not an intermediate category where he might have… he’s not carrying out a direct order, he might be performing a discretionary act, such as drafting new procedures or something like that, where you might recognize qualified immunity?

John S. Elson:

That’s correct.

And this conceivably could be such a case, because one of the questions is whether his procedures are reasonable or not.

John S. Elson:

That’s correct.

And the recent decisions, though not the historical decisions on this, would indicate that a qualified immunity would be appropriate.

So that actually on remand any one of those three alternatives is at least conceivable?

John S. Elson:

That’s correct.

If we were to affirm the remand, we need not now determine what immunity he’s entitled to.

John S. Elson:

That’s correct, exactly.

Mr. Elson, I take it from the Court of Appeals’ opinion that the issue of liability, as opposed to immunity, isn’t totally resolved by the Court of Appeals.

As I read the author of the opinion, he kind of treats the case like a hunting accident and said, you know, one of these five people must be liable, go back and figure out who.

But it’s not irrefutably foreclosed that the clerk here might be held not liable, is it?

John S. Elson:

Oh, definitely not.

That’s not closed, and the Seventh Circuit I think as very clear on that.

But of course, that is not the issue presented–


John S. Elson:

–in this case.

Going back to the historical, the equivalent immunity… and I would emphasize that, because this Court has made it clear that without any equivalent historical, any equivalent immunity at common law, then the official’s claim to absolute immunity must fail because the literal terms of Section 1983 require an all-inclusive scope of liability which must be give effect without the background of an equivalent immunity.

And here the law in the nineteenth century was absolutely clear, and it was best stated in this Court’s 1870 decision in Amy versus Supervisors, in which the Court held, this Court held, that officials had not even a good faith immunity for their negligence in carrying out their duties.

And there’s no reason… and the law is very clear that court clerks were not exempted from this rule of official liability.

There’s no dispute in this case as to what the mandatory duty of the court clerk was.

And this is stated in the appendix at page 23, which stated–

Suppose the clerk had a mandatory duty to send this form along, this warrant recall form along, and there was just some negligence by him or one of his deputies that… suppose when the facts are… it’s just a pure case of negligence.

Now, wasn’t there a footnote in the Court of Appeals’ opinion that that wouldn’t… if it were just negligence, it would not amount to a 1983 violation?

John S. Elson:

–That’s correct, that was the view in the Seventh Circuit prior to this Court’s decision in Parrot versus Taylor.


John S. Elson:

Which indicated that that was no longer the law in terms of negligence being not sufficient to state a claim under Section 1983.

Suppose all the clerk did was negligently fail to carry out what… the requirements of a quite adequate set of procedures and regulations that he and the judge worked out.

On their face they’re perfectly all right.

He just negligently failed to carry it out.

And he’s sued in 1983, stating a cause of action, and the facts show that he has been negligent.

Now what kind of an immunity would you say he would enjoy in that?

John S. Elson:

I’m not sure whether your hypothetical is talking about the deputy clerk who failed to actually physically get the document to the police or the chief clerk who was responsible for the procedures.

Either one.

John S. Elson:

Either one.

Well, in either case there would be no… it would be our position that there would be no absolute immunity.

Because he just negligently failed to carry out an order.

John S. Elson:

I believe the question you’re asking goes to whether or not there’s a constitutional violation, and it could very well be–

No, no, my question doesn’t.

I thought you went that there was a constitutional violation.

Let’s assume there is.

Negligent conduct may nevertheless amount to a constitutional violation.

Assume there is.

Now the question is immunity.

John S. Elson:

–Well, it’s our position that the nature of the constitutional violation does not affect the determination of whether or not here’s immunity.

Those are wholly separate questions, and it’s given in any immunity case that there is a sufficiently severe violation to rise to constitutional proportions.


So would you put this in the category that this was a ministerial act that he failed to carry out?

John S. Elson:

–Yes, I–

So no immunity at all.

John S. Elson:

–It’s unclear.

But the duty was, as is spelled out in the chief judge’s order which is quoted on page 23 of the appendix, where it says, three times actually.

“The clerk shall deliver the warrant recall order to the central warrant unit. “

It couldn’t be more explicit in that regard.

Well, why then was there a remand?

Did a majority of the Court of Appeals decide that there might be immunity even though it was only a ministerial act?

John S. Elson:

No, I don’t believe the Court of Appeals reached that level of inquiry into the case.

There had simply been no factual development to determine whether there had been any violation at all, and possibly whether in fact the clerk may have acted pursuant, adequately acted pursuant to the commands of the judge.

Counsel, do you think that mere negligence rises to a constitutional violation under 1983?

John S. Elson:

Well, I think it can in certain situations, and I believe that this Court has already decided that it can in its Parrot decision.

Again, however, I would emphasize that that question is not raised in this case.

Certainly if this Court could find that negligence is not… does not rise to a constitutional violation, the issue here is absolute immunity given a constitutional violation.

Even if Petitioner were able to show a common law background for absolute immunity, Petitioner could not meet the second burden, independent burden of establishing immunity, and that is that the immunity is essential to the proper performance of a court clerk’s duties.

Petitioner has no explanation for why an absolute immunity is essential to the performance of the court clerk’s duties, while on the other hand this Court has held that such immunity is not essential to the performance of the duties of a governor, of school board members, hospital administrators, prison administrators, policemen.


Cabinet officers.

John S. Elson:

–That’s correct.

And if the Petitioner’s duties in this case are anything more than ministerial, they are certainly no more than of an executive or administrative nature and therefore deserve no more immunity than administrative or executive officials.

Indeed, I would argue that it deserves less immunity because normally court clerks perform… have less discretion in their duties than say governors, cabinet officers, et cetera.

Petitioner’s primary policy argument is that, as we’ve heard, the clerks serve as an aide to the judge and that they are important to judicial proceedings.

Well, this Court has made it clear that official immunity depends not on an official’s status or his location in the judicial process, but on whether the judgments of the official are functionally comparable to the judgments of a judge in deciding cases, as this Court pointed out in the Dennis opinion.

Since the Petitioner’s responsibility for the unconstitutional arrest in this case in failing to have adequate procedures had nothing to do with deciding the merits of a case, this functional comparability argument, ground, is conclusive that judicial immunity cannot apply.


In the Gravel case, we extended immunity that was primarily that of a Senator to a Senatorial aide.

Would you think that judicial immunity might at least rub off on the judge’s secretary or the judge’s law clerk?

John S. Elson:

–Well, insofar as the judge’s secretary’s and law clerk’s duties were concerned with the merits of the case, of an actual case in the adjudicative process, definitely.

If they were routine administrative duties, although that question of course is not before this Court, I would assert that the rationale for judicial immunity simply would not apply.

And you feel the court clerk is just sufficiently removed beyond that intimate connection with the judge for it to rub off on the court clerk?

John S. Elson:

Yes, in terms of deciding the case.

The court clerk does not have anything to do with deciding the case.

In certain cases–

He’s not supposed to.

John S. Elson:

–That’s correct.

However, in certain cases, court clerks ar given authority to perform what may be called quasi-judicial kinds of functions, like deciding the appropriateness of probable cause for arrest or th appropriateness of bonds.

And there I think the quasi-judicial immunity might apply, because it’s judge-like decision on a case.

Do you think there’s a remedy against the clerk for this conduct under state law?

John S. Elson:

The statute provides a remedy.

I know of no cases in which damages were actually collected, but the Illinois statute–

But you would think that… is that a declaration that the clerk has no immunity under state law?

John S. Elson:

–Certainly implicit in that is the judgment of the Illinois legislature that immunity is not necessary for a court clerk’s functions.

And do you think that has any relevance to the immunity question under 1983?

John S. Elson:

I definitely do, although immunity is a federal law matter, as Martinez versus California indicates, it certainly–

Well, it’s a question of construction of 1983 and what Congress might have intended when they passed it and whether the intended to revoke common law immunities.

But if the common law in a certain state has suddenly changed, been changed by statute, and the otherwise… the immunity that a clerk would otherwise have in that state has suddenly been eliminated by the state legislature, what should the federal courts do about it under 1983?

John S. Elson:

–Well, I think that would simply reinforce the proposition that there are no valid policy reasons–

Well, let’s say that there had been a clear decision in the federal courts that in state A that court clerks were immune, absolutely immune.

And than there’s a statute passed in state A that says there is no such immunity, we don’t need that kind of immunity.

And then there’s a 1983 suit brought in the same state against a clerk for very similar… would he then be immune?

John S. Elson:

–Well, I think one could rely on Section 1988 of Title 42 to argue that where the federal law is deficient in any respect, that is, it doesn’t provide in any way about immunity, then you would look to state law that most effectively serves the purposes of the federal statute.

And in that case you would look at the state law’s abrogation of immunity.

I would point out that there is no law in Illinois to indicate that clerks even had immunity in this type of situation, that Illinois was in line with all of the other states in indicating that court clerks had no immunity.

None whatsoever, qualified or otherwise?

John S. Elson:

Well, they… for ministerial duties they had no immunity.

Well, how about for non-ministerial?

John S. Elson:

I don’t know of any cases that deal with discretionary duties.

Yes, but under your Illinois statute, suppose one of these clerks, who I think you suggested might fix bond, for example, or determine probable cause, do that in substitution for the local magistrate, and suppose he does it in some impermissible way.

Could he be liable under your statute in state court?

John S. Elson:

Under the statute cited in the brief, it indicates that the clerk would be civilly responsible for the failures of the clerk.

And that would be for a judicial act, wouldn’t it?

John S. Elson:

That very well could be.

There is also a statute in Illinois that gives immunity for discretionary acts of officials doing governmental functions, as in most states.

And how Illinois would interplay with these two statutes is unclear in this case.

I would also point out that the case, the new case cited by Petitioner, the new Illinois Supreme Court decision, points out that in 1870, I believe, when the Illinois constitution was promulgated, court clerks were not considered even non-judicial officers of the court, that they were county officials.

So they didn’t even have that proximity under the law at the time 1983 was enacted.

Petitioner also argues that immunity is necessary to promote judicial efficiency.

Well, the opposite is true.

John S. Elson:

The protection of constitutional rights and the promotion of judicial administration are clearly mutually reinforcing goals, not antagonistic at all.

The facts of this case I believe demonstrate the possibility of a clerk’s liability for an constitutional arrest caused by ineffective procedures for handling warrant recalls would have two effects.

It would be an incentive to have more efficient procedures and thereby to reduce the incidence of unconstitutional arrest.

And I think it’s interesting to note that Petitioner himself recognized this effect of 1983 liability when he in his office memo to his clerk that’s on page 20 of the appendix… that memo warns that deputies who failed to follow correct procedures on the handling of recall orders may be subject, as well as may subject the clerk’s office, to liability under Section 1983.

If such liability encourages Petitioner’s subordinates–

Warren E. Burger:

We’ll resume there at 1:00 o’clock.

Mr. Elson, you may resume.

John S. Elson:

Thank you, Your Honor.

Mr. Chief Justice, may it please the Court:

Before we recessed for lunch I was discussing why absolute immunity is not necessary to promote judicial efficiency.

And I was pointing out, the Petitioner’s own memo to his clerks, to his subordinates, showed recognition that 1983 liability is indeed an incentive to promote efficient judicial procedures.

And I would point out that if it’s an incentive to Petitioner’s subordinates there’s no reason to think that it wouldn’t be an incentive to Petitioner himself to use adequate procedures.

There is a third criteria for establishing absolute immunity from damages, and that is that Petitioner must show that there are adequate safeguards built into the process by which the court clerk or any official acts that reduce the need for a damage, 1983 damage remedy.

This Court has never found absolute immunity justified unless there were adequate, such adequate safeguards built into the process by which the official acts.

And those safeguards, which were described in Economou versus Butts… the most essential ones are the right to an adversarial hearing, the right to appeal, and recourse to precedent.

Petitioner’s failure here to have adequate safeguards, being a purely administrative… to have adequate procedures for handling these recalls, is purely an administrative type of action and occurred wholly outside of the adjudicative process.

So there is no possibility of such safeguards being present, and therefore there’s no need… there’s no reduction in the need for a Section 1983 damage remedy to restrain constitutional violations.

And this is an independent requirement of absolute immunity the Petitioner has the burden of showing, the existence of these safeguards.

In response to Petitioner’s argument, I would point out that essentially I think Petitioner has conceded the question presented of whether he’s entitled to absolute immunity in his response to Justice O’Connor’s question as to whether there is… as to whether a clerk would be immune if the clerk violated a court order and discriminated against an individual.

In conceding that there would be no immunity in that case, I think that essentially essentially concedes the question presented.

I think that concession is dictated in sum, by the three separate requirements for absolute immunity that this Court has set up in all of its immunity cases: that there be adequate safeguards, that there be policy reasons that make immunity necessary for the accomplishment of the official’s duties, and that there be an equivalent historical immunity as a background.

In other words, you’re saying that it must be something paralleling the kind of derivative immunity that was defined in Gravel: that if a Senator’s aide is performing a legislative task, which is the way Gravel limited the immunity, then he is immune.

If he is not performing something which is essentially the same as what the Senator would do for himself–

John S. Elson:

That’s right.

–then there is no derivative immunity.

John S. Elson:

That’s correct.

I don’t know if I would phrase it as a derivative immunity.

There must be… the clerk must perform a function–

It’s certainly derivative immunity in the Gravel case.

John S. Elson:

–That’s correct, because the legislative aide was performing a task that would be immune if the legislator had himself performed it.

John S. Elson:

Derivative immunity of a court clerk, however, would be not a judicial type of action.

It would be related to carrying out a judge’s order, and therefore almost as an arm of the judge.

If he issued, if the clerk issued, was authorized to and did issue a warrant or a subpoena, would you say that was quasi-judicial and subject to immunity?

John S. Elson:

The task itself wouldn’t be quasi-judicial because it’s not functionally like deciding cases.

There would be a derivative immunity, an absolute immunity.

I think the term “quasi-judicial” has been used in many senses, but there would be an absolute immunity because he’d be carrying out an explicit order of a judge.

And in the same sense I think that the Gravel case indicates that just because a court clerk happens to be an aide of the judge, just as the legislative aide was an aide of the Senator, that status does not in itself confer immunity.

There has to be a functional equivalence.

Because Petitioner has not met any of the three separate requirements for absolute immunity this Court has set forth, there is no basis for the claim of absolute immunity in this case.

Warren E. Burger:

Very well.

Do you have anything further, Mr. Mayer?

Scott A. Mayer:

Yes, Your Honor.

Mr. Chief Justice and may it please the Court:

Clearly on the face of the complaint, the Petitioner in this case could have done no more than what he did in creating the procedures in conjunction with the general order in this case.

Furthermore, the courtroom deputy in this case followed each of the procedures that was assigned to him and there are no allegations that the deputy clerk involved in this case did not comply or implement the procedures.

As far as intentional violation of the court orders, it is clear that the clerk of the court is amenable to alternative available remedies when he intentionally violates a court order.

He is subject… he is answerable to the court.

He is subject to contempt.

He is subject to removal from office, just as well as a judge, and in addition would be subject to the criminal analogue of the Section 1983 Act under Section 242 for criminal intentional violations of civil rights.

The clerk would enjoy no greater immunity than a judge or a prosecutor would for intentional violations.

Furthermore, it’s clear that the negligent act that occurred here, the mere inadvertent mislaying of the warrant recall order, was something that could not have been prevented even with the threat of the memo.

Mistakes will happen in a large system such as the one in Cook County and merely the fact that this memo was there was not something that even could prevent this one isolated incident.

Clearly, the clerk is intimately related to the court.

He is not acting independent of the court.

As this Court held in Shadwick versus City of Tampa, the clerk when working with the court is intimately related to the court.

He is a judicial officer and, when acting under the supervision of a judge, he should be accorded the same protection of absolute judicial immunity as the judge would be if the judge in fact had performed the act of failing, in this case, either to adequately communicate to the police department a warrant recall order or in fact created procedures as he did.

For these reasons, we’ve asked that the Seventh Circuit Court of Appeals be reversed.

Warren E. Burger:

Thank you, gentlemen.

The case is submitted.