Frequently, I am asked why clerks of superior court in Georgia are elected. The simplest explanation is that having an elected clerk of superior court is for the greater good. However, understanding and appreciating why clerks of superior court are elected requires a more detailed explanation from a historical perspective.
The origin of clerks of superior court in Georgia is rooted in early British history. For centuries, the custody of court records was entrusted solely to judges but, over time, it became apparent that judges should not have to preside over arguments and simultaneously perform clerical functions of the court such as recording proceedings, issuing writs and processing other court documents.
Consequently, the office of the clerk of court was created, with “subordinate judicial officials” being from among clergy because they were generally the only literate group at the time. Those officials were titled “clerks” (the term derived from the Latin word “clericus,” meaning “clergyman”). Officers of common-pleas courts in the American Colonies were later called “county clerks,” which is a title still used today across the nation when referring to the clerk of the superior or clerk of circuit court.
James Madison, one of the framers of the U.S. Constitution, writing in the Federalist Papers, said, “The accumulation of all powers, legislative, executive and judicial in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”
Framers of Georgia’s first constitution in 1777, most of whom had come from Europe to escape tyrannical rule and tough economic conditions, believed as Madison did (and political theorists John Locke and Montesquieu before him) — that to prevent and limit corruption and to ensure that government best serves the interests of all and not just a few, there has to be separation of power in government — even within the judicial branch. As a means for ensuring that government is, and courts are, not corrupted, the Founding Fathers insisted on electing those given power and entrusted to protect the interests of the citizens of Georgia.
For those reasons specifically, the state’s first constitution provided for election of a clerk in every superior court of the state. That is what is meant when it is said that a clerk of superior court is a county “constitutional officer.”
Like Madison, they believed that if clerks of superior court were appointed, they would be put in the uncanny position of having to serve their master (i.e., the one who appointed them) and, consequently, there would be a greater likelihood that, when instructed by a judge or whomever else appoints them, the clerks of superior court would have no choice but to act wrongly or illegally for fear of adverse repercussions. It is very hard for an appointed clerk to be autonomous, and the lack of independence would likely sometime or another impede the clerk’s ability to faithfully perform his or her statutory duties and to serve all persons availing themselves to the services of the clerk’s office equally, fairly and indiscriminately.
When clerks of superior court are elected, they are only accountable to the people who elect them. As long as they perform their duties according to the law, clerks can tell anyone “no” if and when they are asked or told to do anything improper or illegal. They are empowered and protected by the full force and effect of law. Such independence provides separation of power and provides the checks and balances envisioned by framers of the Constitution and as being necessary to limit corruption within the judicial system — even with respect to land records of the county of which the clerk of superior court is the official custodian.
Citizens of this state should forever defend and fight to continue electing clerks of superior court and the three other county constitutional officers — the sheriff, probate judge and tax commissioner. As long as citizens elect these four local constitutional officers, they are protecting the interests of everyone and helping to avert corruption.
Wilkes is the Liberty County clerk of superior court and court administrator.