You Can’t Appeal The Clerk

Hell hath no fury like a clerk challenged.  Anyone constrained to deal with bureaucracy learns this lesson early or learns to spend untold hours waiting, usually only to be told to come back another day to wait some more.  Lawyers, in constant need of the kindness of clerks, come to realize this very quickly.

Even so, there are times when no amount of sweet talk, no amount of sincere kindness, and certainly no amount of bluff, is going to change an unfortunate but immutable fact: the clerk neglected to do something that caused significant and clear harm.  Matt Brown in Tempe found himself in this unenviable position.

Brown’s client was stopped for a DUI in the evil Arizona town of Gilbert, where a blood draw was taken and, as is their local way, summons supposedly sent in the mail after the results come back.

That was my client’s situation when we set up an initial consultation. I filed my notice of appearance as soon as he hired me, and when I called the court that day to see if a complaint had been filed, the lady said they had already issued a warrant for his arrest because he missed his court date. The hearing had apparently been set for the day before. She tried to comfort me by explaining that the judge had just received my notice of appearance and would be quashing the warrant and setting a pretrial conference. She insisted the court had sent my client notice of the hearing he missed.

The client said he received nothing.  Maybe not. Maybe it was lost in the mail. Maybe it will show up in a few years. Serving a summons for a criminal case by mail, if allowed at all, is a horrible idea for just this reason. Absent in hand service, there is no adequate assurance that a court has acquired personal jurisdiction. That, unfortunately, isn’t enough to prevent a court from acting, such as issuing a bench warrant.

But see what the clerk did?  The judge will quash the warrant.  No harm, no foul, as far as she was concerned.  Mind you, it likely didn’t occur to her that should the defendant be arrested again, he might have a warrant history, justifying the imposition of bond to hold him so he doesn’t flee again.

But in the evil town of Gilbert, there was another outcome that didn’t concern the clerk.

Because he thought the problem was solved, the license suspension notice he eventually received from the MVD was that much more irritating. Confused, I called the MVD and found out the Gilbert court had reported his failure to appear to the MVD, which resulted in a license suspension.

The very efficient, at least at the fun parts of the job, clerk apparently did her job in notifying the department of motor vehicles of the warrant, and the MVD complied with the law and suspended his license.

I called the court again and explained the situation. To say that the woman on the phone lacked empathy would fail to do justice to her impressively hostile attitude toward me and my client. She said my client would have to wait until the next court hearing before they would report to the MVD and end the suspension. That hearing was weeks away. I told her my client never received anything, and she insisted again that they sent notice.

Two related problems appeared simultaneously. First, the system is designed to create ways to accomplish its own dedicated goals, such as suspending the license of drivers who fail to appear.  The system assumes that it can never be wrong, and therefore neglects to include a process to undo its mistakes.

Second, clerks are never wrong.

When a judge is wrong, whether in a hotly contested, deeply nuanced legal ruling or an off-the-rails totally outrageous ultra vires failure to honor the law, there is an appeal.  It’s not much of a solution, but at least it provides a process to challenge a wrongful decision.  But you can’t appeal the clerk.

You can complain to the judge about something the clerk did, but that’s tantamount to committing suicide. The judges rely on the kindness of the clerk too, especially in small town courts. Double especially in small town courts where they tend to make up their own rules and procedures, and the clerk is the person who makes the wheels of justice grind if they’re to grind at all.

Should a judge rebuke a clerk, she will learn their relative importance to the system swiftly, as her charmed robed life is turned to misery. No, judges do not challenge clerks if they know what’s good for them.

When I pointed out they had yet to mail me notice of the next date despite saying they would and that I only knew about the first hearing, the suspension, and the new hearing because I called and asked, her attitude got worse. It was hard to believe that was even possible, but it happened. She said there was nothing I could do to get my client’s license back. The court would not consider a motion to notify the MVD, and I could file a motion to accelerate the next hearing, but the court would deny it.

Note that it’s the clerk informing the lawyer of what the judge will rule.  No sane lawyer would doubt that she’s correct.  The judge knows who butters her bread, and the clerk knows that she can state, with certainty, the outcome of any attempt to make her look bad.

And anyway, what’s the big deal about a client, a professional, deprived of the “privilege” of driving for weeks, more likely months by the time the clerks are done with him, over a bench warrant for failure to appear for a hearing about which he was never told?  It’s just a prelude to his conviction anyway, because the cops who arrested him certainly wouldn’t have done so if he wasn’t guilty anyway.   Cops and clerks are usually friends.

24 comments on “You Can’t Appeal The Clerk

  1. Charles B. Frye

    Such a clear and reasonable explanation when you set it out. Why can’t my client understand when I try to explain it to her?

    “What do you mean we can’t do anything?! Make them fix it!”

  2. Bartleby the Scrivener

    The most pertinent question is: Can anything be done to fix this?

    After much careful thought I’ve reached the conclusion that it isn’t any particular political party that will cause the downfall of this country. When it happens, it will be a result of bureaucrats that are ‘just doing their jobs.’

    …or should it be that they were ‘just following orders?’

  3. pml

    The problem here is we are assuming the defendant in this case did not receive the notice in the mail. Like all defendants in criminal actions always tell the truth.

    1. SHG Post author

      If you went to Matt’s post, you would have learned that he, too, never received notice of the court date, as well as some additional background on his client to support his belief that his client wouldn’t be inclined to lie. Links are there for a reason.

    2. se

      Did you just assume he is a criminal and thus lying based on him being arrested once and missing one court appointment?

      1. SHG Post author

        In fairness, clients lie all the time, having less to do with their being a criminal than their being embarrassed at screwing up. It happens, but it doesn’t appear to have happened this time.

        1. Bartleby the Scrivener

          Hm. Does that mean that a client who says, “I screwed up here and here, but not here…” is more likely to be believed than one who insists they didn’t screw up at all? I haven’t needed an attorney for some time, but when I have one I don’t lie to them or conceal things from them. Clients lying would be a big reason why I’d have a hard time being involved in criminal law. I cannot help but think learning something pertinent and potentially damaging to the case from the other side and in open court that my client knew and that I could’ve planned for ahead of time would make me want to scream.

        2. pml

          However, I would not that he hired the attorney the next day after he was supposed to appear in court. Coincidence maybe or maybe not.

          The ” I didn’t receive any notice” excuse wears thin after you have heard it over and over.

          1. SHG Post author

            When you reach the point where you can no longer consider a client’s story individually, it’s time to take a long vacation.

            1. pml

              You may belive your client, but since I sit on the other side of the bench I may not after hearing that excuse all the time.

            2. SHG Post author

              You miss the point. Is that deliberate or too much effort? Some clients lie. Some tell the truth. Part of the job, regardless of which side you’re on, is to be willing and able to distinguish between the two. If you can’t be bothered, you don’t belong on either side.

          2. Dave Susens

            The excuses getting old cuts both ways. Just like not every excuse by a criminal defendant is a lie, not every cop is lying when “the battery on the digital recorder died right before Mr Bad Guy made an inculpatory statement.” I just hope that those on the “other side of the bench” are able to objectively evaluate the validity of all excuses.

    3. Mark Draughn

      This is why service by mail is unjust and stupid. You imply the defendant is lying, but his statement that he didn’t receive service is not disputed by anyone who could claim actual knowledge. Yet you, and apparently the Arizona court system, are willing to disbelieve him in favor of no one. Because justice.

      1. pml

        So what do you propose? Doing away with all service by mail? That would be a ludicrous and unworkable.

        1. SHG Post author

          On the contrary, many states require personal in-hand delivery of summonses. It’s neither ludicrous nor unworkable, but more importantly, the commencement of a criminal prosecution isn’t based on the ease and convenience of the state. It’s based on due process.

          You’re seriously scaring me.

          1. SHG Post author

            Why? What possible reason should there be for creating in personam jurisdiction in a criminal prosecution without the “burden” of putting a summons in the defendant’s hands. Why is convenience of the prosecution even a question?

            1. Chris Ryan

              I guess I could have made it clearer that my response was meant to PML.

              My personal belief is that if you cant be bothered to hand it to a person, that should be your problem not theirs. I found PML’s argument that the dislike for regular mail implied that all mail is equally bad to be a bit absurd. Unfortunately getting what we would really like is in itself unlikely, so a faulty improvement can sometimes be better then no improvement.

            2. SHG Post author

              Yes, I understood your comment to be meant for PML. Do you understand that these aren’t private conversations? Even guys like me get to jump in and have a say.

              As for your “faulty improvement can sometimes be better then no improvement,” PML doesn’t make any decisions, so there’s no point in trying to convince him or compromise with him. Truth be told, he doesn’t get any more of a vote than you or I. Protip: Never negotiate with someone who isn’t a decision-maker. You’re wasting your time.

              More importantly, if you plan to compromise other people’s rights, do it on your own dime. Some say the perfect is the enemy of the good. Other say a camel is a horse designed by committee. I say you needlessly offered to compromise other people’s rights, and I think your compromise is a bad idea. But that’s just me. And this is just my blawg, so there ya go.

  4. Bruce Coulson

    Schadenfreude is when a clerk has to deal with another clerk, and the positions are reversed. Clerks never seem to appreciate the irony.

    1. SHG Post author

      I wondered what you would think about this. But you aren’t a clerk in the sense of these clerks, and you know it.

      1. PaulaMarie Susi

        Thank you, my friend. But, I’m just fucking horrified. I mean, who issues a warrant for one missed appearance?!? (I will admit, for the record, that I have had a warrant issued for an attorney who consistently failed to appear…). I cannot fathom the reasoning of people who make shit harder for everyone else, just because they can. Nor do I wish to. My job is to facilitate. Make the process go as smoothly as possible for ALL parties. Be the ‘go-to’ person when someone is in a jam, even (esp) if it’s not my case. Those of us who wield such power, and great power it is, should remember we do so to serve.
        G-d don’t like ugly, some people just suck. I’m sorry.

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