I have been flushing out my bloated email account and came across the following written response to a process server in 2011 who had put the phrase “Officer of the Court” on his business card and asked for my opinion about it.
The opinion then seems to be still relevant, but I have since recently spoken to another process server who gave me another perspective about it. More to come – maybe.
I welcome your thoughts.
I have done a little research on this topic recently, and our Criminal Law Speaker at our PSI dinner in Hayward Friday evening addressed it because, coincidentally, it came up.
An “officer of the court” (according to a Wikipedia entry) is described as follows:
“The generic term officer of the court (not to be confused with court officers) applies to all those who, in some degree in function of their professional or similar qualifications, have a legal part—and hence legal and deontological obligations—in the complex functioning of the judicial system as a whole, in order to forge justice out of the application of the law and the simultaneous pursuit of the legitimate interests of all parties and the general good of society.
They can be divided into the following functional groups; in most case various synonyms and parallels exist as well as a plethora of operational variations, depending on the jurisdiction and the changes in relevant legislation …”
There is not a clear definition, having checked 2 law dictionaries, “Words and Phrases” and “Corpus Juris Secundum” in the law library.
Black’s Law Dictionary defines it as follows: “A person who is charged with upholding the law and administering justice.”
Obvious and most common examples of an “officer of the court” would be a judge, clerk, bailiff, sheriff, peace officer, and since about the early 1900s, attorneys. It could also be a court interpreter, receiver, and court stenographer, all of whom are in some manner are appointed by a court or participate in or serve to facilitate the administration of justice in the courts.
What I have concluded is that an officer of the court is one who is acting at the direction of or under the authority of the court.
Process servers in some states derive their authority from the court. Arizona process servers, for instance, are “certified” by the AZ Supreme Court, and therefore, are identified as an “officer of the court” by statute (ARS §11-445(I)). . There are others. Oklahoma licensed process servers are referred to as an “officer of the court” (ORCP § 12-158.1(C)(1)). Illinois refers to those process servers upon special appointment.
On the other hand, some states specially forbid use of the term. The New Jersey Professional Process Servers Association has promulgated a Canon of Ethics prohibiting their members from using the term, and a Fifth Circuit Court of Appeal case ruled that a Texas process server was not an officer of the court for purposes of removal (Herron v. Continental Airlines, Inc., 73 F.3d 57 (1996)) That case cited as precedent a U.S. Supreme Court decision:
“… Our decision is guided by Cammer v. United States, 350 U.S. 399, 76 S.Ct. 456, 100 L.Ed. 474 (1956), holding that an attorney was not a court “officer” within the ordinary meaning of that term:
Certainly nothing that was said in Ex Parte Garland[, 4 Wall 333, 18 L.Ed. 366 (1866) ] or in any other case decided by this court places attorneys in the same category as marshals, bailiffs, court clerks or judges. Unlike these officials a lawyer is engaged in a private profession, important though it be to our system of justice. In general he makes his own decisions, follows his own best judgment, collects his own fees and runs his own business. The word “officer” as it has always been applied to lawyers conveys quite a different meaning from the word “officer” as applied to people serving as officers within the conventional meaning of that term. We see no reason why the category of “officers” subject to summary jurisdiction of a court under Sec. 401(2) should be expanded beyond the group of persons who serve as conventional court officers and are regularly treated as such in the laws.
What is emerging for me is that the term “officer of the court” is one whose authority to act is derived from the court, as an officer thereof – similar to (but not the same as) a “Court Officer”, or a “Public Officer”. a California Registered Process Server does not derive that authority from the court by appointment or certification. Our authority is a statutory creation, setting forth a registration requirement with the county clerk, a bonding requirement, and a fingerprinting requirement. Therefore, I do not consider a California Registered Process Server an officer of the court.
We may serve process, and do so in an analogous manner as those other officers of the court (sheriffs), but that does not make us an officer of the court.
That being said, our speaker at our dinner disagrees, and based on the Black’s Law Dictionary definition I read during our discussion, he concluded that we were officers of the court when serving process as an extension of the court, and serving process, and would have no problem referring to a process server that way.