Who decides how many deputy court clerks to hire in Maryland, and who pays them, when judges and the state comptroller disagree?

Plain-English summary

The Clerk of the Circuit Court for Worcester County asked what to do when the judges of the court ordered him to hire additional deputy clerks but the State Comptroller had neither set nor approved a salary for those positions. The opinion explained that a Clerk of Court is subject to dual supervision: the judges have "visitorial power" under the Maryland Constitution to decide how many deputy clerks are necessary and must confirm their appointment, while the Comptroller, by statute, has authority to set the deputies' compensation. Citing a 1905 Court of Appeals decision, the opinion noted this division of power is deliberate, meant to prevent both an oversized deputy staff and the "wrongful absorption" of court fees through excessive salaries. The opinion concluded the Clerk should appoint the deputies the judges ordered, request that the Comptroller set their salaries, and pay those salaries from the Clerk office's own fees, distinguishing available surplus fees (which could fund the new positions) from statutorily earmarked transfer-tax collections (which could not). If office fees proved insufficient, the Clerk should seek alternative funding and, failing that, request supplemental funds through the next budget cycle, since a budget-bill restriction limiting new hires applied only to legislatively appropriated supplemental funds, not to the office's own unbudgeted fees.

Currency note

This opinion was issued in 1984. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Who decides how many deputy court clerks to hire in Maryland, and who pays them, when judges and the state comptroller disagree?
According to this 1984 opinion, the judges of the circuit court alone decide how many deputy clerks are necessary and the Clerk must appoint that number, while the State Comptroller alone sets their salaries; the Clerk then pays those salaries from the fees of the Clerk's office.

Could the Clerk refuse to hire deputies the judges said were needed, citing a lack of Comptroller-approved funding?
The opinion concluded no. Under Article IV, §26 of the Maryland Constitution and Smith v. Turner, the Clerk "cannot refuse to appoint such number as the Court may require," even though the Comptroller separately controls what those deputies will be paid.

Could a budget restriction on hiring override the judges' constitutional authority to order new deputy clerks?
The opinion concluded it could not. It explained that a Fiscal Year 1984 budget-bill restriction limiting a Clerk's ability to hire beyond budgeted funding applied only to legislatively appropriated supplemental funds, not to the office's own unbudgeted fees, and that such budget language could not override the Maryland Constitution's clear mandate giving judges responsibility for staffing levels.

Background and statutory framework

The opinion drew on Article IV, §10 of the Maryland Constitution, giving circuit court judges "visitorial power" over the Clerk's office, and Article IV, §26, requiring judges to confirm the appointment of deputy clerks while leaving their compensation to be "determined by law." The General Assembly implemented that compensation authority through CJ §2-505(a), giving the Comptroller power to set deputy clerks' salaries, and through CJ §2-202(b), subjecting Clerk office expenses to Comptroller approval. The opinion also addressed the funding mechanism under Article XV, §1 of the Constitution, requiring Clerks to be paid from office fees, with any surplus going to the State Treasurer, and CJ §2-504.1(c), authorizing supplemental state budget funds when office fees are insufficient to cover salaries.

Citations

Statutes:

• Article IV, §10 of the Maryland Constitution (judges' visitorial power over the Clerk's office; Clerks paid from office fees)
• Article IV, §26 of the Maryland Constitution (judges confirm deputy clerk appointments; compensation determined by law)
• Article XV, §1 of the Maryland Constitution (Clerk's account-book and fee-surplus requirements)
• CJ §2-505(a) of the Maryland Code (Comptroller's authority to set deputy clerk compensation)
• CJ §2-505(c) of the Maryland Code (exception for classified-service employees in Washington County)
• CJ §2-202(b) of the Maryland Code (Clerk office expenses subject to Comptroller approval)
• CJ §2-504(a) of the Maryland Code (Board of Public Works sets the Clerk's own salary)
• CJ §7-202 of the Maryland Code (court fees assessed by Clerk's office)
• CJ §2-504.1(c) of the Maryland Code (Governor may include supplemental funds for Clerks in the State budget)
• CJ §2-504.1 of the Maryland Code (budget request procedure for supplemental Clerk funding)
• Article 17, §74 of the Maryland Code (Clerk's 5% commission on transfer tax collections)
• Chapter 63, Laws of Maryland 1983 (Fiscal Year 1984 Budget Bill hiring restriction)

Cases:

• Peter v. Prettyman, 62 Md. 566, 576 (1884) (judges' visitorial power is limited to supervision, regulation, and direction)
• Smith v. Turner, 101 Md. 584, 590 (1905) (Clerk must appoint the number of deputies the court deems necessary, but cannot fix their salaries)

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1984/Volume69_1984.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

CLERKS OF COURT

Judiciary-Comptroller-Personnel-Deputies-Appointment and Salary of Deputies-Budgetary Administration-Fees of Office-Judges to Set Number of Deputies-Comptroller to Set Salaries-Clerk to Pay Salaries From Fees or Alternative Funding Sources.

February 27, 1984

The Honorable Wayne C. Littleton
Clerk of the Circuit Court
for Worcester County

You have requested our opinion on your responsibility as Clerk of the Circuit Court to provide for the salary of new deputy clerks when, as has recently occurred, the judges of your Court have ordered you to hire additional clerks but the State Comptroller has neither set nor approved a salary payment for them.1

For the reasons given below, we have concluded as follows: If the judges of your Court determine that the Clerk's office requires additional deputy clerks and order you to hire those clerks, you should (i) appoint the necessary personnel; (ii) request the Comptroller to set their salaries; and (iii) pay the salaries so set from the available fees of your office. If there are insufficient fees to pay the salaries and you are unable to secure alternative funding sources, you should include the additional positions and necessary funds in your next budget request, and seek to assure that the General Assembly appropriates the funds necessary to pay the salaries of those additional deputy clerks.

I
Dual Supervision of the Clerk of Court

As Clerk of the Circuit Court you are a constitutional officer. Nevertheless, you are subject to supervision by both the judges of your Court and the State Comptroller.

First, the Maryland Constitution provides that "the office and business of said Clerks, in all their departments, shall be subject to the visitorial power of the Judges of their respective Courts". Article IV, §10. This provision of the Constitution allows the judges "no other or greater power than supervisal, regulation and direction, through rules intended to insure the orderly, prompt, and efficient discharge of [the Clerk's] duty". Peter v. Prettyman, 62 Md. 566, 576 (1884).

In addition, by statutory enactment, the State Comptroller has been given certain oversight responsibilities with respect to the fiscal operations of the Clerks of the Circuit Courts. For example, under the Courts and Judicial Proceedings Article ("CJ" Article), "the Comptroller may set the compensation of" the Clerks' employees, CJ §2-505(a); and the expenses of the Clerks' offices are "subject to the approval of the Comptroller", CJ §2-202(b).2

From time to time, questions have arisen over whether the Comptroller or the judges have supervisory responsibility over the Clerk as to a particular matter. See e.g., Smith v. Turner, 101 Md. 584, 590 (1905); 58 Opinions of the Attorney General 69 (1978); 68 Opinions of the Attorney General 96 (1983); Letter of Advice from Frederick S. Koontz, Assistant Attorney General, to William Allen, Clerk of the Superior Court of Baltimore City (January 11, 1980).

The general rule, as this Office has previously indicated, is that "the Comptroller has authority over the offices of the Clerks of Court in those matters related to revenue", while "control over the day-to-day operation of the Clerks' offices... is vested in the courts under their visitorial powers". 58 Opinions of the Attorney General 69, 73 (1973).

II
Appointment and Salary of Deputy Clerks

Article IV, §26 of the Maryland Constitution states, in relevant part:

"The Clerks shall appoint, subject to the confirmation of the Judges of their respective Courts, as many deputies under them, as the Judges deem necessary, to perform, together with themselves, the duties of the office, who shall be removable by the Judges for incompetency, or neglect of duty, and whose compensation shall be determined by law."3

Thus, the framers of the Consitutiton placed on the Judges of the respective Circuit Courts the responsibility of determining the number of deputy clerks necessary to perform the duties of the Clerk's office. Article IV, §26 in effect requires the judges to set the number of deputy clerks, It also provides, however, that the deputy clerks' compensation "shall be determined by law", that is, as or in the manner set by the General Assembly.

The General Assembly, in turn, has expressly authorized the Comptroller, on application of a Clerk or on the Comptroller's own initiative, to "set the compensation of an employee of the clerk's office". CJ §2-505(a).4 It is our understanding that, pursuant to this legislative mandate, the Comptroller's office has established criteria for determining appropriate salaries for deputy clerks, based on the size of the particular Clerk's office, the volume of work handled by that office, the responsibilities of the particular position, and the experience and length of service of the individual holding that position.

In Smith v. Turner, 101 Md. 584 (1905), the Court of Appeals addressed the division of authority between the judges and the Comptroller as to deputy clerks.5 There, the Court explained:

"There is no discretion as to employment of deputy clerks. Under the 26th section of Art. 4 of the Constitution, the duty to appoint is imperative. There is no absolute discretion as to whom the clerk shall appoint. He can appoint no one without the approval of the Judge of his Court, nor can he retain him if found by the Judge to be incompetent or negligent, and the only reason for these provisions is that the proper performance of the duties of the office, so many of which can only be performed with due promptness by the aid of deputies, may be guaranteed to the public. He cannot appoint a greater number of deputies than the Court deems necessary for the discharge of the duties of the office, and he cannot refuse to appoint such number as the Court may require. He cannot himself fix and limit the salaries to be paid to his deputies, but must allow such as the Comptroller of the State shall determine to be just and proper. The manifest purpose of this provision is to prevent the wrongful absorption of the receipts of the office by excessive salaries on the one hand, and to secure the services of competent persons by the assurance on the other hand of just and reasonable compensation. In no clerk's office in the State would it be possible for the clerk unaided to perform all the clerical work when and as it should be done for the protection of the public, and it was this consideration which cause the framers of the Constitution to embody in that instrument the duty of appointing deputies, and the power of confirmation and supervision conferred upon the Court." 101 Md. at 590-91.

The constitutional mandate is thus unequivocal: you cannot refuse to appoint the number of deputies that the Court considers necessary to discharge the duties of your office. However, to protect the fees of the office from "wrongful absorption... by excessive salaries", the General Assembly has separated the power to compensate from the power to appoint. See CJ §2-505; Smith, 101 Md. at 590. Although this separation establishes a balance of power and guards against potential abuse arising out of unnecessary appointments at high salaries, it also has created the dilemma you now face.

Nonetheless, the constitutional and statutory provisions of Maryland law are clear. The judges of each Circuit Court have the authority to set the number of deputy clerks that they deem necessary to perform the functions of the Clerk's office for that Circuit Court, and Comptroller has the authority to set the salary of those deputy clerks.

III
Source of Funds to Pay Salaries

The Constitution provides that the Clerks of the Circuit Court are to be paid from the fees of their offices. See Article IV, §10. Because the Clerks are paid in this fashion, they are subject to the provisions of Article XV, §1 of the Constitution. As such, the Clerk must keep an account book of all money received as payment or compensation for his or her official duties and submit that book yearly to the Comptroller. In addition, the Clerk must pay yearly to the State Treasurer any payment or compensation received that exceeds the amount allocated for the salaries and expenses of the office.

Thus, the Clerk's salary, set by the Board of Public Works pursuant to CJ §2-504(a), the salaries of the deputy clerks and other employees, and the other expenses of the office are all deducted from the fees relative to the "business and receipts" of the Clerk's office.6 Any excess fees are paid over to the State Treasurer.

You have advised us that there is "more than enough revenue to provide for [the additional] positions" in question. Specifically, your office "sent to the General Fund sums in excess of one hundred thousand dollars on June 30, 1983, as well as over one and one-quarter million in transfer taxes in fiscal year 1983".

We assume that the "one hundred thousand dollars" constitutes excess fees over and above established salaries and other office expenses; in our view, such excess fees, otherwise to be sent to the General Fund, may be used to subsdize the salaries of those deputy clerks requested by the judges. By contrast, the "one and one-quarter million dollars in transfer taxes" collected by your office in fiscal year 1983 is not available to pay the salaries of the deputy clerks; these taxes are not fees of your office but, rather, are taxes that each clerk is statutorily required to collect and turn over to the State of Maryland.7

Therefore, if the judges of your Court direct you to hire additional deputy clerks, you should (i) appoint new deputy clerks, subject to the judges' approval; (ii) request the Comptroller to set their salaries in accordance with established procedures; and (iii) pay the salaries from the fees of your office.

If, however, there are insufficient fees in a Clerk's office to pay for additional deputy personnel, alternative salary sources must be secured. Absent either a transfer of funds from another part of the Clerk's office budget or approval from the Board of Public Works for emergency funds, a Clerk cannot fill deputy clerk positions until the General Assembly appropriates supplementary funds pursuant to CJ §2-504.1(c).8

Thus, as a general matter, if the judges of the Court order the appointment of additional deputy clerks and there are insufficient fees to pay the additional salaries, a Clerk should first attempt to secure an alternative source of funds, from elsewhere in that Clerk's budget or from the Board of Public Works. If this fails, the Clerk should (i) include a request for additional positions and funds in the next budget submitted to the Comptroller, in accordance wth CJ §2-504.1; and (ii) take whatever steps are necesary to insure that the additional supplemental funding is included in the State budget.

IV
FY 1984 Budget Language

We understand that the Comptroller has refused to set a salary for any new deputy clerk positions, if not already requested in the budget for the last fiscal year, because of the restrictions appended to Program 24.06.00.01 of the Budget Bill for Fiscal Year 1984. Those restrictions provide:

"[T]hese funds shall not be expended by a Clerk of the Court for hiring additional personnel or incurring office expenses beyond the projected total funding budgeted for his office without prior written authorization of the Comptroller of the Treasury... In approving this appropriation it is the intent of the General Assembly that the Clerks shall make every effort to improve efficiency of operations and take all reasonable measure to reduce the need for general fund appropriation." Chapter 63, Laws of Maryland 1983 at 2&4.

We are sympathetic to the Comptroller's position that, inasmuch as the General Assembly has directed him to improve the efficiency of the Clerks' offices and reduce general fund appropriations, he should not approve additional positions.

Nevertheless, this budgetary restriction applies only to funds that the General Assembly has appropriated to supplement the Clerks' offices, not to the fees of their offices. Because no supplementary funds have been budgeted for your office, this restriction is not applicable. And, as to the unbudgeted fees of your office, this budget language cannot override the clear mandate of the Maryland Constitution, which places express responsibility to determine the number of persons necessary to conduct the duties of the Clerks' offices on the judges of the Circuit Courts.

IV
Conclusion

In the final analysis, the position in which you find yourself is best resolved between the judges of your Court and the Comptroller's office.

Nevertheless, it is our opinion that, if the judges of your Court determine that the Clerk's office requires additional deputy clerks and order you to hire those clerks, you should (i) appoint the necessary personnel; (ii) request the Comptroller to set their salaries; and (iii) pay the salaries so set from the available fees of your office.

If there are insufficient fees to pay the salaries and you are unable to secure alternative funding sources, you should include the additional positions and necessary funds in your next budget request, and seek to assure that the General Assembly appropriates the funds necessary to pay the salaries of those additional deputy clerks.

Stephen H. Sachs, Attorney General

Catherine M. Shultz
Assistant Attorney General

Avery Aisenstark
Chief Counsel
Opinions and Advice

1 You have informed us that the judges of your Court believe it is necessary for you to hire one or two additional employees to assist in the court-related functions of the Clerk's office, but the Comptroller's office will not authorize the funding for those positions. You further indicate that, in your own opinion, there is indeed a need for additional positions and that your office has sufficient revenue to fund them.

We appreciate the delicacy of your position. Although a solution to this problem is perhaps most appropriately worked out among the parties, we will discuss below the relevant constitutional and statutory provisions for your guidance.

2 However, the Comptroller does not set the salaries of "employees of the Clerk's office in Washington County who are under the classified service." CJ §2-505(c).

3 However, Article IV, §26 also provides that the deputy clerks and other employees of the Clerks' offices in Washington County and Baltimore City are to be selected and removed under procedures established by law.

4 But see note 2 above.

5 In all material aspects, the then extant contitutional and statutory provisions were similar to those now in effect.

6 These include court fees assessed under CJ §7-202; fees for issuing marriage, alcohol, trader's, and other licenses; and commissions received for collecting public money.

7 Of course, as you know, Article 17, §74 of the Maryland Code authorizes you to retain a 5% commission for collecting this tax. That commission does constitute a fee of your office and can be used as a source from which to pay the salaries of your deputy clerks.

8 CJ §2-504.1(c) authorizes the Governor to "include in the State budget funds to supplement the fees and receipts of the clerks of the circuit courts".