February 25, 2002
Re: Inquiry concerning authority of court clerk
Dear Town Manager,
Your letter of February 4 concerning the authority of your court clerk has been forwarded to me.
Your letter raises several questions which are addressed below.
May the court clerk issue and sign state warrants?
The answer depends on the specific circumstances, but in my opinion the clerk should never
sign a warrant after making an unsupervised decision that probable cause exists. Only in those
cases in which a judge or district attorney has made such a probable cause determination, or if
an affidavit is signed by a witness or officer, would it be prudent for a clerk to sign a warrant.
By state law, generally a “magistrate” has the power to issue a search warrant. T.C.A.'' 40-1106 and 111. The term “magistrate” actually refers to a class of individuals who are authorized
to perform certain functions, and therefore may be any number of different officials. This list
includes: judges of all courts, judicial commissioners and county executives. T.C.A.' 40-1-106.
The Attorney General has opined that a magistrate is not required to be a licensed attorney.
Tenn. Atty. Gen. Op. 97-093.
The limitation placed on the definition of who may act as a magistrate is that the person must be
“neutral and detached,” and “be capable of determining whether probable cause exists.” State v.
Bush, 626 S.W.2d 470, 473 (Tenn. App. 1981).
Rule 4 of the Tennessee Rules of Criminal Procedure does state that a clerk may issue warrants
upon a finding of probable cause. The United States Supreme Court has held that the use of
the word “clerk” within the rule is to be understood as being qualified by the words
who is neutral and detached and who is capable of the probable cause determination required
by this rule.
Shadwick v. City of Tampa, 407 U.S. 345 (1972).
There is no court or attorney general opinion addressing whether a court clerk may be
sufficiently “neutral and detached” in order to determine probable cause. The Attorney General
has opined that a “deputy general sessions court clerk who is also a full-time deputy sheriff...is
not a ‘neutral and detached’ magistrate...” Tenn. Atty. Gen. Op. 90-07.
When making a probable cause determination, the law requires a magistrate to examine the
informant, under oath, to reduce to writing the information received during examination, and to
have that written statement signed by the witness. T.C.A. '' 40-6-104 and 40-6-203, 204. Only
after such examination and receipt of a signed statement shall a warrant for the violation of a
state criminal statute be issued. T.C.A. '' 40-6-105 and 40-6-205.
Another factor to consider is whether the clerk receives any fee associated with the issuance of
the warrant. T.C.A.' 40-5-106 states:
No search warrant, arrest warrant or mittimus shall be issued
by any state, city or county officer whose compensation is
contingent in any manner upon the issuance or nonissuance
of such search warrant, arrest warrant or mittimus.
In In re William M. Dender, 571 S.W.2d 491 (Tenn. 1978), the Tennessee Supreme Court ruled
that the issuance of a state warrant by a nonsalaried justice whose personal compensation is
enhanced by issuance of warrants, is unconstitutional. If the clerk receives a fee, or is entitled to
levy costs on warrants issued, then the clerk should be precluded from signing or issuing
warrants.
Beyond such statutory and judicial prohibitions, the ability of a court clerk to make a probable
cause determination should be carefully considered. Probable cause challenges make up a
large percentage of appeals in criminal cases, and there is a humongous and very technical
body of law devoted to the definition of probable cause. The United States Supreme Court has
held that a probable cause determination is to be based upon the “Aguilar-Spinelli” test. Illinois
v. Gates, 462 U.S. 213 (1983). Basically, an officer seeking a search warrant is required to
swear out an affidavit stating that either he personally has a knowledge of the underlying facts,
or an informant relied upon is credible and has a basis of knowledge of the underlying
circumstances. The Tennessee Court of Criminal Appeals states that probable cause is a
“reasonable ground for suspicion supported by circumstances indicative of an illegal act.” State
v. Lewis, 36 S.W. 3d 88 (Tenn. App. 2000).
Although the law permits clerks to issue warrants, I would be reluctant to submit a clerk to the
scrutiny of a criminal defense lawyer challenging a probable cause determination. Under any
circumstances, the clerk should rely on affidavits signed by witnesses or officers, so he or she
will have a verified record of the proof considered. If the clerk’s compensation is in any manner
tied to the issuance of warrants, then the practice should cease completely.
May the clerk assign bail bonds up to $1,000.00?
Yes. This is a task which may be delegated to a ministerial officer.
May the clerk prepare and stamp subpoenas with the Judge’s signature?
Yes. Rule 17 of the Tennessee Rules of Criminal Procedure, and Rule 45 of the Tennessee
Rules of Civil Procedure, permit court clerks to issue subpoenas. The clerk herself may actually
sign her name to the subpoena pursuant to these rules.
May the clerk prepare a mittimus and stamp it with the Judge’s name?
No. The issuance of a mittimus should be treated in the same manner as the issuance of a
warrant. Generally, the clerk should not prepare and stamp a mittimus with the Judge’s name.
May the clerk pass cases?
Yes. Courts are permitted to create rules regarding such administrative matters. In many
jurisdictions, clerks are permitted to pass cases without judicial approval.
May the clerk discuss details of the cases with district attorneys and defense counsel?
There is no prohibition against such discussions.
I hope this information is helpful. As we discussed in our phone conversation, please do not
hesitate to contact me if you have any questions about this opinion letter or need further
information concerning this issue.
Thank you for consulting with MTAS.
Sincerely,
Melissa A. Ashburn
Legal Consultant