March 26, 1996
The Honorable Quentin T. Sumner Resident Judge of Superior Court
P.O. Box 1215 Rocky Mount, NC 27802-1215
Re: Advisory opinion; Procedures adopted by Clerk of Superior Court that directly affect magistrates, sureties and other persons not in the clerk’s office; Chapter 7A of the General Statutes; Chapter 15A of the General Statutes.
Dear Judge Sumner:
The following is in response to your letter dated February 20, 1996 requesting an opinion as to the validity of a set of procedures adopted by the Honorable Rachel M. Joyner, Clerk of Nash County Superior Court.
The set of procedures appear in a memorandum dated January 25, 1996 which reads as follows:
TO: MAGISTRATES, CLERKS AND OTHER COURT PERSON
FROM: RACHEL M. JOYNER, CLERK OF SUPERIOR COURT
SUBJECT: SURRENDER OF DEFENDANTS BY SURETY AFTER FAILURE TO APPEAR:
EFFECTIVE IMMEDIATELY, THE FOLLOWING PROCEDURES SHALL BE
ADOPTED AND FOLLOWED IN NASH COUNTY REGARDING THE ABOVE
SUBJECT MATTER.
- (1)
- The Surety will take the defendant to the jail where he will get a surrender form from the Custodian. The defendant is then placed in custody. The Surety shall note on the top of the surrender form the following: "Outstanding Order For arrest – Hold defendant for service.
- (2)
- The Custodian shall take the defendant to the Magistrate for an IMMEDIATE HEARING, pursuant to G.S. 15A-540(b). At this hearing, the Magistrate should determine that there is in fact an outstanding order for arrest and should contact the agency holding the order for arrest and notify that agency that the defendant is in custody and that the order for arrest should be served on the defendant. If for some reason the Magistrate is unable to locate the order for arrest, he should notify the custodian; the custodian shall then contact the Clerk’s Office as soon as possible to determine the location of the order for arrest.
- (3)
- The Magistrate should then prepare a release order. On that release order, the offense should be listed as "Surrender of Defendant by Surety" and the amount of the bond should be listed as "Hold for service of order for arrest".
- (4)
- When the order for arrest is served, the defendant shall again be taken before the Magistrate and a release order prepared and bond set at the amount ordered by the Court
on the order for arrest.
(5) The Custodian shall staple the two release orders together with the surrender form. (Emphasis supplied)
Undoubtedly, a clerk of superior court can set operating procedures and job related requirements for his or her assistants, deputies and other office staff personnel. However, the procedures set out in the clerk’s memorandum also set requirements and give mandatory directives to magistrates, sureties and custodians who are not officers or employees of the office of the clerk. A review of Chapters 7A and 15A of the General Statutes of North Carolina did not reveal any provision granting authority to the clerk to adopt operating procedures which would be mandatory for magistrates, sureties or custodians. Therefore, in the absence of any statutory authority, those procedures are not effective to control or direct the actions of magistrates, sureties and custodians. The preceding opinion does not address the validity of the procedures for consistency with the provisions of Chapter 15A of the General Statutes or with the North Carolina Constitution.
Charles J. Murray Special Deputy Attorney General
Andrew A. Vanore, Jr.
Chief Deputy Attorney General