Does a Virginia circuit court clerk have to prepare sketch orders for civil cases and personally attend every docket call, or are those tasks discretionary?

Plain-English summary

Chesterfield County's Circuit Court Clerk, Judy Worthington, wanted to know whether two often-routine practices were actually mandatory. First, did her office have to prepare "sketch orders" (rough draft orders prepared by the clerk for the judge's signature) in civil cases? Second, did she or her deputies have to attend every civil and criminal docket call?

Acting Attorney General William Mims answered no to both. Circuit court clerks are constitutional officers, with duties "prescribed by general law or special act" under Article VII, § 4 of the Virginia Constitution. The General Assembly has not imposed a duty on circuit court clerks to prepare sketch orders or to attend docket call proceedings. Some clerks do these things as accommodations to the judge or the bar, but they are not statutory obligations.

Notably, the AG pointed out that the General Assembly knows how to require duties when it wants to. Section 16.1-69.40, governing personnel of the general district and juvenile and domestic relations courts, provides that those clerks must perform "other duties as may be prescribed by the judge." No equivalent open-ended duty applies to circuit court clerks. The omission is meaningful.

The AG attached one practical caveat: a clerk who does not attend docket call must still exercise significant care to maintain accurate records of those proceedings, because the clerk has statutory duties to record orders, keep order books, and preserve papers (§§ 17.1-123, 17.1-124, 17.1-209). Skipping docket call may make it harder to discharge those duties, so the clerk should plan accordingly.

Currency note

This opinion was issued in 2009. 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.

Background and statutory framework

Article VII, § 4 of the Virginia Constitution establishes the office of clerk of the court. The clerk's duties "shall be prescribed by general law or special act." The General Assembly has filled in those duties in Title 17.1, Chapters 1, 2, and 5 (§§ 17.1-100 to 17.1-524). Among the core duties:

• § 17.1-123(A): Record orders from each day's proceedings in the order book.
• § 17.1-124: Keep order books recording all proceedings, orders, and judgments of the court.
• § 17.1-208: Provide public access to court records.
• § 17.1-209: Preserve all papers lawfully returned to or filed in the clerk's office.
• § 17.1-213: Retain certain records permanently; authorize destruction of others under specified rules.

Docket calls are governed by separate statutes. Section 17.1-517 authorizes the chief judge to fix days for dockets. Section 8.01-332 lets the court call the current docket on days or at intervals directed by court order, to fix cases for trial. Section 19.2-241 authorizes circuit court judges to fix days for the commencement of criminal trials. Supreme Court Rule 1:20 supplements those statutes for civil dockets.

None of the clerk's-duty statutes nor the docket-call statutes affirmatively requires the clerk to prepare sketch orders or to attend the docket call. Clerks routinely perform both functions as a service to the court, but those are voluntary practices, not statutory mandates.

By contrast, the district court personnel statute, § 16.1-69.40, expressly gives district court clerks an open-ended duty to "perform such other duties as may be prescribed by the judge." That phrase appears only in the district court statute. The General Assembly chose not to include it for circuit court clerks. Under the maxim expressio unius est exclusio alterius, the omission signals legislative intent: circuit court clerks have only the duties expressly assigned by statute, not an open-ended "do what the judge asks" duty.

What the AG concluded

Sketch orders are not a statutory duty. No Code provision requires circuit court clerks to draft orders in civil cases. The clerk may do so as an accommodation, but cannot be compelled to.

Docket call attendance is not a statutory duty. The docket-call statutes empower the court to set the schedule but do not require the clerk to be present.

The lack of an "other duties" clause for circuit court clerks is significant. The General Assembly's inclusion of that language for district court clerks (§ 16.1-69.40) and omission for circuit court clerks tells the reader that circuit court clerks are not subject to the same open-ended duty.

Recordkeeping duties still apply. Sections 17.1-123 and 17.1-124 require the clerk to keep accurate order books, and § 17.1-209 requires preservation of papers. A clerk who chooses not to attend docket call must ensure that the proceedings of those days are nevertheless accurately captured in the records.

Common questions

Why would a clerk skip docket call?
Resource and staffing reasons. A clerk's office has limited personnel; spending hours at docket call may pull staff away from other statutory duties (recording, indexing, processing filings). Some clerks deploy deputies to docket call; others arrange for transcripts or judge's notes to capture the proceedings.

Does this mean clerks can just refuse to draft orders the judge asks for?
The opinion says clerks have no statutory duty to do so. It does not directly address the judge-clerk working relationship. As a practical matter, clerks often draft orders to support the court's functioning, but they cannot be compelled.

What is a "sketch order"?
A draft of an order, prepared in skeleton form, that captures the court's ruling (case style, parties, brief description of the action taken) for the judge to review and sign. It is a courtroom convenience, especially in busy civil courts where many quick rulings are entered each day.

Did the AG say anything about the clerk's broader workload concerns?
The opinion's only practical advice was the caveat about accurate records. The AG did not address how a clerk should balance discretionary tasks against required ones.

Could a judge require a clerk to attend docket call by court order?
The opinion doesn't directly address this. As a general matter, judges have inherent authority to manage proceedings, but cannot impose statutory duties beyond what the General Assembly has prescribed. A judge's order requiring the clerk to attend would likely be a request the clerk would honor as a courtesy, but the opinion's framing suggests the clerk has discretion.

Does the same answer apply to general district court clerks?
No. As the opinion noted, § 16.1-69.40 expressly gives general district court clerks an open-ended "other duties" assignment. Those clerks must do what the judge prescribes, within reason. The opinion's answer is specific to circuit court clerks.

Citations

• Va. Const. Art. VII, § 4 (office of circuit court clerk)
• Va. Code Ann. §§ 17.1-100 to 17.1-524 (circuit court clerks and courts of record)
• Va. Code Ann. §§ 17.1-123, 17.1-124, 17.1-208, 17.1-209, 17.1-213 (recordkeeping duties)
• Va. Code Ann. § 16.1-69.40 (district court personnel; "other duties" clause)
• Va. Code Ann. §§ 17.1-517, 8.01-332, 19.2-241 (docket setting)
• Va. Sup. Ct. R. 1:20

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2009/09-007-Worthington.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
William C. Mims

900 East Main Street
Richmond, Virginia 23219
804-786-2071
FAX 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

Attorney General

February 27, 2009

The Honorable Judy L. Worthington
Chesterfield County Circuit Court Clerk
P.O. Box 125
Chesterfield, Virginia 23832-0125

Dear Ms. Worthington:

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 whether a circuit court clerk has a statutory obligation to prepare sketch orders in civil cases for the court. Additionally, you ask whether a circuit court clerk has a statutory obligation to attend civil and criminal docket call proceedings.

Response

It is my opinion that the statutory duties of a circuit court clerk do not require the preparation of sketch orders in civil cases. It further is my opinion that such duties do not require attendance at civil or criminal docket call proceedings. However, I would caution that when a clerk does not attend a docket call, significant care must be exercised by the clerk to ensure that accurate records of such proceedings are maintained.

Applicable Law and Discussion

Article VII, § 4 of the Constitution of Virginia establishes the office of clerk of the court and provides that the clerk's duties are "prescribed by general law or special act."[1] Among the duties the General Assembly requires clerks' offices to perform are keeping records of the proceedings in circuit court,[2] providing access to such records,[3] and maintaining and purging the records.[4]

Prior opinions of the Attorney General note that the clerk's office is an integral part of the administrative operations of the circuit court and provides numerous services to judicial and other public officials, as well as to the public.[5] While circuit court clerks may, in their discretion, assist the court by preparing orders in civil cases, I find no statute that compels this practice. Circuit courts may set cases for trial at a docket call on such days or at such intervals as directed by order of the court.[6] While clerks may assist circuit courts at docket calls to set civil and criminal cases for trial, I find no statute that compels this practice. Notwithstanding the lack of a statutory provision, a clerk who does not attend a docket call must exercise significant care to ensure that accurate records of such proceedings are maintained. The decision not to attend a docket call may make fulfillment of this responsibility more difficult.

The comprehensive list of statutory duties placed upon circuit court clerks demonstrates that when the General Assembly intends to require a clerk to perform a task, it knows how to express its intention.[7] Furthermore, unlike the clerks of the general district and juvenile and domestic relations district courts, the General Assembly has not required circuit court clerks to perform "other duties as may be prescribed by the judge."[8]

Conclusion

Accordingly, it is my opinion that the statutory duties of a circuit court clerk do not require the preparation of sketch orders in civil cases. It further is my opinion that such duties do not require attendance at civil or criminal docket call proceedings. However, I would caution that when a clerk does not attend a docket call, significant care must be exercised by the clerk to ensure that accurate records of such proceedings are maintained.

Thank you for letting me be of service to you.

Sincerely,

William C. Mims
2:1353; 1:941/09-007

1. The General Assembly has established the duties of clerks of the court. See VA. CODE ANN. tit. 17.1, ch. 2, §§ 17.1-200 to 17.1-295 (2003 & Supp. 2008). The General Assembly also has established provisions governing courts of record, which include certain duties for circuit court clerks. See generally tit. 17.1, ch. 1, §§ 17.1-100 to 17.1-132 (2003 & Supp. 2008); ch. 5, §§ 17.1-500 to 17.1-524 (2003 & Supp. 2008).
2. See § 17.1-123(A) (2003) (requiring clerk to record orders from each day's proceedings in order book); § 17.1-124 (Supp. 2008) (requiring clerk to keep order books recording all proceedings, orders, and judgments of court).
3. See § 17.1-208 (Supp. 2008).
4. See § 17.1-209 (Supp. 2008) (requiring clerk to preserve all papers lawfully returned to or filed in clerk's office); § 17.1-213 (Supp. 2008) (requiring clerk to keep certain records permanently; authorizing clerk to destroy certain records).
5. See 2003 Op. Va. Att'y Gen. 60, 60 and opinions cited therein.
6. See VA. SUP. CT. R. 1:20; see also § 17.1-517 (2003) (authorizing chief judge to fix days for dockets); VA. CODE ANN. § 8.01-332 (2007) (providing that current docket may be called to fix cases for trial on days or at intervals as directed by court order); VA. CODE ANN. § 19.2-241 (2008) (authorizing circuit court judges to fix days for commencement of criminal trials).
7. See 2005 Op. Va. Att'y Gen. 78, 78 and opinions cited therein.
8. VA. CODE ANN. § 16.1-69.40 (2003) (governing personnel of district courts).