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.