Drilling Down on the Clerk’s Civil Contempt Authority

Published for On the Civil Side on September 28, 2016.

Earlier this month, I had the pleasure of attending the elected clerk of superior court summer educational conference in Nags Head, NC.  The elected clerks gather annually this time of year to install new conference officers, attend educational sessions, and generally catch up on matters concerning the court system throughout the State.  I was invited by the clerk’s program committee to teach a session on civil contempt.  As part of my session, we identified the statutes that authorize the clerk to use civil contempt.  As noted in my previous post on the clerk’s contempt authority, the clerk only has the authority to use civil contempt where a statute expressly provides for it.  G.S. 5A-23(b).  Below is a list of statutes that authorize the clerk to use civil contempt.

Statutes that Authorize Civil Contempt by the Clerk*


Subject Statute Action Triggering Contempt
Judicial Sales of Real Property
G.S. 1-339.12 Failure of the person conducting the sale to file a report or account or failure to file a correct or complete report or account in a Chapter 1, Article 29A judicial sale of real property.
Special Proceeding: Commissioner Appointed to Sell Real or Personal Property G.S. 1-406 Failure, omission, or refusal of the commissioner appointed to sell real or personal property to file a final account or render a sufficient and satisfactory account.
Compel Production of a Will
G.S. 28A-2A-4 Refusal to produce a will, inform the court where the will is, or the manner in which the will was disposed.
Action to recover property of the decedent (i.e. Proceeding to discover assets of an estate).
G.S 28A-15-12 Failure to comply with an order of the clerk to deliver property of the estate to the personal representative.
G.S. 28A-20-2 Failure of personal representative or collector to file an inventory within three months of qualification.
G.S. 28A-21-4 Failure of personal representative or collector to file an annual or final account or account upon revocation of letters.
Collector by Affidavit
G.S. 28A-25-4 Failure of affiant to make distribution or file an affidavit of disbursement and distribution.
Inventory or Account
G.S. 35A-1262 Failure of guardian of the estate or general guardian to file inventory or account within three months of appointment
Annual accounting
G.S. 35A-1265 Failure of guardian of the estate or general guardian to file an annual account.
Inventory and accounting under testamentary trust
G.S. 36C-2-209 Failure of trustee to file accounting {Although the statute does not specifically reference contempt, it states that the clerk’s powers to enforce the filing is the same as the clerk’s powers with respect to the inventories and accounts of executors and administrators. This may include the clerk’s authority to use contempt.}
Any report or account (i.e. preliminary or final report of sale)
G.S. 45-21.14 Failure by a person holding a sale of real property pursuant to a power of sale to file any report or account or failure to file a correct and complete account.
Real Property/Estates:
Subpoena to maker and subscribing witness
G.S. 47-11 Failure by maker or subscribing witness to any instrument required by law to be registered to respond to a subpoena and appear before the clerk to give evidence concerning the execution of the instrument.


There are some notable exceptions to the clerk’s civil contempt authority.  A few are included in the list below.

The Clerk’s Civil Contempt Authority Likely Absent*


Subject Statute Action Triggering Contempt
Supplemental Proceeding, Debtor Leaving the State
G.S. 1-355 Failure to comply with a court order to enter into an undertaking with a surety to appear before the court and not dispose of property not exempt from execution. {This statute provides that the court or the judge may commit the person as for contempt. Pursuant to G.S. 1-7, court means clerk for purposes of G.S. Chapter 1.  However, for all other supplemental proceedings under G.S. 1-368, a civil contempt hearing is before a judge.  It may be prudent to allow the judge to preside over any such civil contempt hearing rather than the clerk.}
Rules of Civil Procedure:
G.S. 1A-1, Rule 45 Failure to obey a subpoena. {No specific contempt authority granted to the clerk by this statute.}
Elective Share
G.S. 30-3.5(b) Violation of standstill order entered by the clerk not to dispose of all or a portion of decedent’s assets after filing of elective share petition. {No specific contempt authority granted to the clerk by this statute.}
Status Reports
G.S. 35A-1244 Failure to file a status report. {Clerk has the authority to enter show cause for civil or criminal contempt for failure to file but statute does not specifically state clerk has authority to hold a person in civil or criminal contempt.}



Compelling Compliance with a Clerk’s Order Where the Clerk Lacks Specific Civil Contempt Authority

As I noted in my earlier contempt post, just because the clerk does not have civil contempt authority does not mean the clerk’s order is unenforceable via civil contempt.  The clerk may initiate a civil contempt proceeding and a judge may hear the matter.  The clerk does this by entering a show cause order or notice, if there is probable cause to believe there is civil contempt.  G.S. 5A-23(a).  The clerk typically uses AOC form CR-219 to initiate the civil contempt proceeding (it can also be used to initiate a criminal contempt proceeding, which is also within the authority of the clerk to initiate).  Section III on the form provides a space for the clerk to describe the action ordered and the facts constituting contempt.

When the clerk initiates the proceeding and lacks specific civil contempt authority, the substantive hearing on the civil contempt must be before a judge.  G.S. 5A-23(b).  The statute provides that proceedings for civil contempt are before “a district court judge, unless a court superior to the district court issued the order in which case proceedings are before that court.”  G.S. 5A-23(b).   My reading of this statute is that any hearing on civil contempt arising out of an order of the clerk would go to district court because district court is superior to the clerk of superior court.  However, there is an argument that whether a superior or district court judge presides over the proceeding depends on the underlying nature of the proceeding.  For example, if the contempt arises out of a clerk’s order in an estate proceeding, the civil contempt hearing would be before a superior court judge as appeals of estate matters are to superior court.   If it arises out of an adoption, it would go to district court on that same analysis.  If it arises out of a civil matter, such as in a supplemental proceeding, it would go to the court with jurisdiction of the underlying matter.

What do you think?  Where would you calendar the civil contempt hearing arising from an order of the clerk where the clerk lacks specific contempt authority?   Feel free to leave a comment below and let me know.


* This list is based, in part, on a previous outline prepared by Joan Brannon, a former colleague at the School of Government, and co-author of the Clerk of Superior Court Procedures Manual.

Topics - Courts and Judicial Administration