Can a Virginia circuit court clerk refuse to forward a court-appointed lawyer's pay request for missing a 'detailed accounting' of time?

Plain-English summary

The Wise County / Norton clerk asked whether his office could review and reject a court-appointed attorney's payment request if the accompanying "detailed accounting of the time expended for representation" required by § 19.2-163 was, in the clerk's judgment, not detailed enough.

The AG concluded the clerk could not. Under Article VII, § 4 of the Virginia Constitution and the Dillon Rule's strict construction of clerk authority, clerks have no inherent power; their powers are limited to what statute grants expressly, by necessary implication, or as essential and indispensable. Section 19.2-163 vests the power to approve or disapprove a court-appointed counsel's pay request in the presiding judge (or, for certain additional waivers, the chief judge of the circuit). It makes no reference to a clerk approving, disapproving, or rejecting a request. The Supreme Court of Virginia's DC-40 "List of Allowances" form does include a clerk's certification block, but that certification can only be read as confirming that the form is correctly and completely filled out and that the amount has not already been paid. It cannot be read as authorizing a clerk to evaluate whether the time documentation is "detailed" enough, because forms cannot expand statutory powers (Commonwealth v. Appalachian Electric Power Co., 193 Va. 37, 45 (1951)).

Once the judge has authorized payment, the clerk must "forthwith" forward the request to the Supreme Court of Virginia (or other responsible payer) under § 19.2-163. The clerk's duty is ministerial (Harvey v. Chesapeake & Potomac Tel. Co., 198 Va. 213, 218 (1956)).

Currency note

This opinion was issued in 2016. 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.

Court-appointed counsel fee caps, waiver procedures, and form numbers (such as the DC-40 List of Allowances) have evolved since 2016. Anyone implementing this division of labor between judge and clerk today should verify the current text of § 19.2-163 and the current OES/Supreme Court form instructions.

Background and statutory framework

Article VII, § 4 of the Virginia Constitution creates the office of circuit court clerk and provides that the clerk's duties "shall be prescribed by general law or special act." As a long line of AG opinions and Virginia Supreme Court decisions has held, clerks have no inherent powers; their authority is limited to what statute expressly grants, what is necessarily or fairly implied, and what is essential and indispensable (City of Richmond v. Confrere Club of Richmond, Virginia, Inc., 239 Va. 77, 79 (1990)). That is the Dillon Rule of strict construction applied to constitutional officers.

Court-appointed counsel are paid on an hourly basis under § 19.2-163, subject to statutory fee caps and waivers. The statute requires that "a detailed accounting of the time expended for [the] representation" accompany each request for payment. The statute then commits approval or disapproval of the request to the presiding judge, with the chief judge of the circuit involved in certain waivers. The court is also authorized to "direct the payment of such reasonable expenses incurred by such court-appointed counsel as it deems appropriate under the circumstances of the case." Significantly, the statute does not give the clerk any role in approving, disapproving, or rejecting payment requests.

The Supreme Court of Virginia's DC-40 form, used to record time expended and request payment, contains a block for the clerk to sign certifying that "[s]aid account has been duly examined . . . and appears to be correct and unpaid." Because the statute gives the approval power to the judge with no co-equal power in the clerk, the AG concluded the clerk's certification can only mean that the form is correctly and completely filled out as a request for payment not already made. It cannot mean the clerk has independently judged the adequacy of the documentation, because "[a] form promulgated by a government agency may not modify in any way powers and limitations set out by statute" (Commonwealth v. Appalachian Electric Power Co., 193 Va. 37, 45 (1951)).

The AG drew an analogy to a 2009 opinion holding that a clerk could not refuse to record certain survey plats that had not been approved by local planning officials. That opinion described the clerk's filing duties as ministerial. The same principle controlled here: the clerk has no statutory authority to reject applications deemed deficient in the required accounting or to withhold them from the court.

Common questions

Q: What does the clerk actually do with a payment request?
A: Confirm the form is correctly and completely filled out and that the requested amount has not already been paid. Then submit it to the presiding judge for approval. After the judge has approved, forward the form to the Supreme Court of Virginia (for state-funded payments) or the responsible county, city, or town under § 19.2-163.

Q: Who decides whether the time accounting is "detailed" enough?
A: The presiding judge, under § 19.2-163. The judge has the discretion to waive fee caps up to the statutory limits and, with chief-judge approval, for additional waivers.

Q: What if the clerk thinks the documentation is obviously inadequate?
A: The clerk's view, however well-founded, has no statutory authority behind it. The proper course is to forward the request to the judge with the documentation as received and let the judge evaluate sufficiency.

Q: Does the clerk's certification on the DC-40 form mean the clerk has reviewed the merits?
A: No. The AG read the certification as confirming only ministerial completeness and non-duplication of payment.

Citations and references

Statutes and constitutional provisions:

• Va. Const. art. VII, § 4 (office of circuit court clerk)
• Va. Code Ann. § 19.2-163 (compensation of court-appointed counsel)
• Va. Code Ann. § 16.1-266 (child representation)
• Va. Code Ann. § 2.2-505 (AG advisory opinion authority)

Cases:

• City of Richmond v. Confrere Club of Richmond, Virginia, Inc., 239 Va. 77 (1990)
• Commonwealth v. Appalachian Electric Power Co., 193 Va. 37 (1951)
• Harvey v. Chesapeake & Potomac Tel. Co., 198 Va. 213 (1956)

Attorney General opinions:

• 2009 Op. Va. Att'y Gen. 38
• 2009 Op. Va. Att'y Gen. 56
• 2003 Op. Va. Att'y Gen. 60
• 2014 Op. Va. Att'y Gen. 73

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2016/15-084-Kennedy.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Mark R. Herring
Attorney General

July 22, 2016

The Honorable J. Jack Kennedy, Jr.
Clerk, Circuit Court for Wise County / City of Norton
206 East Main Street
Post Office Box 1248
Wise, Virginia 24293-1248

Dear Mr. Kennedy:

I am responding to your request for an official advisory Opinion in accordance with § 2.2-505 of the Code of Virginia.

Issues Presented

You ask several questions related to the powers and responsibilities of a clerk of circuit court with respect to reviewing requests for payment from court-appointed counsel to determine whether they have provided a "detailed accounting" of the time expended for representation, as required by § 19.2-163 of the Code of Virginia.

Applicable Law and Discussion

Article VII, § 4 of the Constitution of Virginia creates the office of circuit court clerk and provides that a clerk's duties "shall be prescribed by general law or special act." [1] "As a general rule, clerks have no inherent powers, and the scope of their powers must be determined by reference to applicable statutes." [2] As constitutional officers, clerks are subject to the Dillon Rule of strict construction, which limits their powers to those that are "expressly granted by the General Assembly, those necessarily or fairly implied therefrom, and those that are essential and indispensable." [3]

The Code of Virginia provides that court-appointed counsel shall be compensated for their services on an hourly basis, subject to certain fee caps and waivers provided for in statute. [4] Section 19.2-163 sets forth the procedures whereby court-appointed counsel may request payment for their services. Among other things, the statute requires that court-appointed counsel submit "a detailed accounting of the time expended for [the] representation" along with each request for payment. [5] The statute makes clear that the power to approve or disapprove any such request for payment lies with the presiding judge, or, in certain circumstances where an additional waiver is requested, the chief judge of the circuit. [6] It makes no reference to the clerk approving, disapproving, or rejecting a request for payment.

For amounts that are to be paid from the State Treasury, the Supreme Court of Virginia has provided forms, primarily the DC-40 or "List of Allowances," for counsel to use to record their time expended and to make a request for payment. In addition to a space for the judge's signature, the DC-40 form contains a block for the clerk to sign certifying that "[s]aid account has been duly examined . . . and appears to be correct and unpaid." Since the applicable statute gives the presiding (or the chief judge) authority to approve payment, with no co-equal power in the clerk, the clerk's certification on the form must necessarily mean that the clerk is approving the form only as to it being fully and correctly completed as a request for payment not already made, not approval by the clerk that the amount requested is supported by adequate or sufficiently "detailed" documentation. A form promulgated by a government agency may not modify in any way powers and limitations set out by statute. [7] Once the judge has authorized payment and the clerk has certified the form, the clerk must forward the request to the Supreme Court of Virginia for payment. [8]

Previously, this Office responded to a request for an opinion on whether a clerk was authorized to refuse to record certain survey plats that had not been approved by local planning officials. After citing the above principles, the Opinion stated:

As a general rule, a clerk is not responsible for determining if an instrument to be recorded is sufficient to meet the requirements of any particular provision of law. . . . I find no statutory provision authorizing a circuit court clerk to refuse to record boundary survey plats and physical survey plats until after the review and approval of such plats by local planning officials. [9]

The conclusion I reach herein is consistent with the principle that the duties of a clerk related to filing and lodging of court papers are ministerial. [10] As in the above-referenced Opinion, there is here no statutory authority for the clerk to refuse any applications deemed deficient in the required accounting or to refuse to submit applications for payment to the court. The circuit court, rather than the clerk, is tasked with determining whether court-appointed counsel has provided "a detailed accounting of time expended for representation."

Conclusion

Accordingly, it is my opinion that a circuit court clerk's role in the process by which court-appointed counsel may request payment for their services is limited to determining whether the form is correctly and completely filled out. The clerk must forward the applications to the Supreme Court of Virginia after they have been approved by the circuit court judge.

With kindest regards, I am

Very truly yours,

Mark R. Herring
Attorney General

[1] VA. CONST. art. VII, § 4.

[2] 2009 Op. Va. Att'y Gen. 38, 40; 2003 Op. Va. Att'y Gen. 60, 60; see also 2014 Op. Va. Att'y Gen. 73, 74.

[3] See City of Richmond v. Confrere Club of Richmond, Virginia, Inc., 239 Va. 77, 79 (1990); 2009 Op. Va. Att'y Gen. 38, 39; 2009 Op. Va. Att'y Gen. 56, 57.

[4] VA. CODE ANN. § 19.2-163 (2015).

[5] Id.

[6] "The [circuit] court in its discretion, and subject to the guidelines issued by the Executive Secretary of the Supreme Court, may waive the limitation of fees [up to certain limits] ...." Id., subsection 2. For additional waivers, approval of the chief judge is required. Id. In addition, the circuit court is authorized to "direct the payment of such reasonable expenses incurred by such court-appointed counsel as it deems appropriate under the circumstances of the case." Id.

[7] See Commonwealth v. Appalachian Electric Power Co., 193 Va. 37, 45 (1951) (the doctrine of administrative interpretation, while broad, may not override the plain meaning of a statute).

[8] "Any statement submitted by an attorney for payments due him for indigent representation or for representation of a child pursuant to § 16.1-266 shall, after the submission of the statement, be forwarded forthwith by the clerk to the Commonwealth, county, city or town, as the case may be, responsible for payment." VA. CODE ANN. § 19.2-163.

[9] 2009 Op. Va. Att'y Gen. 38, 40.

[10] Harvey v. Chesapeake & Potomac Tel. Co., 198 Va. 213, 218 (1956).