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Duties and Responsibilities of the Clerks are Key to Integrity Failure of the US Courts

by Joseph Zernik, PhD, Human Rights Alert (NGO) Friday, Nov. 19, 2010 at 3:46 PM PO Box 526

US Congress is called upon to take action to restore the integrity of the US Courts, through placing the Clerks under authority of the US Attorney General and enacting federal rules of PACER and CM/ECF.

Nov 18, 2010 – Linked [1] and outlined below are three publications of the Federal Judicial Center, referring to the duties and responsibilities of the Clerks of the US Court. The publications highlight the vast difference between the letter and spirit of the law relative to duties and responsibilities of the Clerks of the US Courts as Custodians of Records of the US courts, bonded and bound by Oath of Office, and practices of the US courts today.

The Salary Act of 1919, which placed the Clerks of the US Courts under the authority of the US Attorney General, is credited as a key measure in restoring the integrity of the US courts following a period of rampant corruption.

Yielding the authority over the Clerks of the US Courts to the US judiciary in the mid and late 20th century and implementation of PACER and CM/ECF, both through the Administrative Office of the US Courts, are claimed as central to undermining the authority and integrity of the Clerks of the US Courts and the US courts themselves, as seen today. [2]

The US Congress is called upon to restore the integrity of the US courts through: [2]a) Enactment of federal rules of PACER and CM/ECF - restoring accountability of the Clerks of the US Courts for integrity of electronic court records, and

b) Again placing the Clerks of the US Courts under authority of the US Attorney General.


Points of interest:

1) Russell R. Wheeler, Origins of the Elements of Federal Court Governance, Federal Judicial

Center (1992) - page 3 of instant PDF file (page numbers below - as shown in the record itself)

Page 3:

1789 First Judiciary Act is passed. It

• creates the office of the clerk of court in each district court;

Page 11:

Clerk of Court (1789)

(28 U.S.C. §§ 711 (court of appeals), 751 (district), 156(b) (bankruptcy) (In effect, the chief administrative officer in almost all district and bankruptcy courts; in courts of appeals, mainly responsible for case-flow management support and being custodian of court records).

The First Judiciary Act authorized the Supreme Court and each district court to appoint a clerk, who was “to discharge the duties of his office, and seasonably to record the decrees, judgments, and determinations of the court for which he is clerk.” Congress subsequently authorized appointment of clerks for the circuit courts and then for the circuit courts of appeals.

The paragraph adequately lists the Clerk of the Court as Custodian of Records, but fails to mention that the Act prescribed that Clerk of the Court must take an Oath of Office and be bonded.

2) Conference on Assessing the Effects of Legislation on the Workload of the Courts: Papers and Proceedings, A. Fletcher Mangum, Editor, Federal Judicial Center (1995) - page 35 of instant PDF.

Page 172:

307. For civil cases, these data are generated at the time of initiating an action in federal district court by the filing attorney. When filing a case in federal court, the attorney must complete a form (JS-44) that includes coded information on the general nature of the suit and reference to a precise statutory section and subsection of the U.S. Code that links the case filing to a relevant cause of action. The clerk of court verifies and transcribes the information from the JS-44 to a more condensed format (the JS-5), which the clerk transmits to the Administrative Office.

The paragraph highlights the significance of form JS-44 (Civil Cover Sheet). Today, except for the Summons, it is the only record in the full civil docket, where a valid signature (either graphic or digital) of a Deputy Clerk, bound by Oath of Office, may be found. In cases, which were previously opined as pretense litigations and Fraud on the Courts, no signed Civil Cover Sheet and no valid signed Summons could be found.

3) Federal Courts and What They Do, Federal Judicial Center (publication year unknown)

Page 10:

The courtroom deputy or clerk. The courtroom deputy or courtroom clerk, who is usually seated next to the judge, administers the oaths to the witnesses, marks the exhibits, and generally helps the judge keep the trial running smoothly. Sometimes the deputy or clerk is away from the courtroom performing other tasks during parts of the trial. The courtroom deputy is employed by the office of the clerk of the court. The clerk of the court by all the judges on the court and works closely with chief district judge, who is responsible for the court’s overall administration.

The paragraph entirely blurs the difference between a Courtroom Deputy and a Deputy Clerk. In fact, the former is a court employee, who has no duties and responsibilities prescribed by law, and who is not bound by Oath of Office, while the latter has specific duties and responsibilities prescribed by law, and must take Oath of Office.

Moreover, the paragraph inserts a comment:

Sometimes the court deputy or clerk is away from the courtroom performing other tasks during the trial.

In fact, an authorized Deputy Clerk, bound by Oath of Office, must sit in all court proceedings, for the proceedings to be a valid seatings of the court.

Page 17:

CLERK OF THE COURT – an officer appointed by the court to work with the chief judge and other judges in overseeing the court’s administration, especially to assist in managing the flow of cases through the court.

The paragraph entirely fails to mention that the office of the Clerk of the Court is established by law, and the main duties and responsibilities of the Clerk of the Court – attesting/authenticating and maintaining valid court records.

COURTROOM DEPUTY or CLERK – a court employee who assists the judge by keeping track of witnesses, evidence, and other trial matters, and sometimes by scheduling cases.

The paragraph again blurs the difference between a Deputy Clerk and a Courtroom Deputy (in fact a secretarial assistant).



[1] Three publication of the Federal Judicial Center

[2] 10-08-18 Zernik, J: Data Mining of Online Judicial Records of the Networked US Federal Courts, International Journal on Social Media: Monitoring, Measurement, Mining 1:69-83 (2010)

10-10-30 Zernik, J: Case Management and Online Public Access Systems of the Courts in the United States - A Call for Action - pending

10-11-08 SEC v Bank of America Corporation (1:09-cv-06829) at the US District Court, SDNY - Opined as Fraud on the Court

10-11-15 Calendars and Clerks of the US Courts – Additional Evidence of Fraud on the Courts in Litigations Involving Bank of America and Government Officers

10-11-11 Table 1: US District Courts: PACER and CM/ECF - Public Access to Calendars, Survey of over 20 district courts

10-11-11 Table 2: US District Courts PACER and CM/ECF: Public Access to Calendars - Survey of Individual Cases in 5 District Courts

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