������Ƶ

MISSOURI SUPREME COURT

STATE OF MISSOURI

In Re: MUNICIPAL DIVISION )

ST. LOUIS COUNTY CIRCUIT COURT )

)

on the request of the )

Missouri Supreme Court )

for public comments )

on means of reform. )

COMES NOW, the Editorial Board of the ������Ƶ and for its Suggestions to the Missouri Supreme Court in Support of Reform to and Enforcement of the Code of Judicial Conduct and attorney practice and procedure in the Municipal Division of the St. Louis County Circuit Court states:

STATEMENTS OF FACT

On Thursday, the Court from the public concerning municipal courts and any suggested practices and procedures to improve said courts.

This request came the day after Missouri Speaker of the House John Diehl to amend a Senate proposal on municipal court reform with several suggestions of his own. Included would be requiring municipal judges to meet the same ethical standards required of other judges in the state, such as circuit court, appellate court and Supreme Court judges.

Currently judges in most of the 82 municipal courts in St. Louis County do not meet such standards. As outlined in a Sunday Post-Dispatch story by reporters Jeremy Kohler, Stephen Deere and Jennifer Mann, (), there are numerous municipal judges who violate the traditional standards of ethics met by most judges in the state. They fill conflicting roles in different venues — judge in one city, prosecutor in the next, defense attorney in another. Often they sit in front of attorneys one day who will be adversaries or judges the next, cutting deals as they go.

There are examples also outlined by the Post-Dispatch reporters (we will call them ), in which some judges conspired with wealthy friends to fix tickets in exchange for goods or services. There are numerous other examples outlined by nonprofit attorneys Arch City Defenders in their white paper published last fall (). This exhibit explains how poor defendants often are jailed by these corrupt courts for not being able to pay the fines stacked upon fines that started with a simple moving violation. And there are even still other examples outlined by the various lawsuits filed by St. Louis University School of Law professors () which are making their way through the court system.

The Court has already determined that it has both the constitutional authority and responsibility to address these situations. In January, the Court guiding how municipal courts deal with indigent defendants. The rule change is intended to limit the ability of the courts to serve as de facto debtor’s prisons, where defendants who are unable to pay unconstitutional fines ultimately are jailed instead.

In March, following the release of the devastating Department of Justice report on the Ferguson police department and municipal court (), the Court replaced the municipal judge with an experienced appellate court judge. In effect, the Supreme Court took over a municipal court that had been using the legal system as not much more than a fundraising tool for a cash-strapped city.

QUESTIONS PRESENTED

These facts present the Court with two important questions:

1. Does the Court have the option to ignore its constitutional duty to urgently exercise its “supervisory authority” over the municipal courts as outlined in Article V, Section 4 of the Missouri Constitution?

2. Would the Missouri Supreme Court’s decision to outsource its responsibility over the Code of Judicial Conduct, as it affects the municipal courts, to the General Assembly represent a dereliction of the court’s constitutional duty as a co-equal branch of government, and would it undermine the independence and integrity of the judicial branch?

DISCUSSION

In September 2014, this editorial board to exercise its role in fixing longstanding municipal court problems in the St. Louis region. The problems became very public following the unrest in Ferguson following the Aug. 9 fatal shooting of Michael Brown by police officer Darren Wilson. But the Court, and the entire legal community, has known of the problems in municipal court and its negative effect on the independence and integrity of the court system at least since 1966. That’s when a University of Missouri law professor called them the “misshapen stepchildren” of the judicial system in a stinging research paper () calling for the same sort of change needed now.

With each month, and each new report, and each new lawsuit, and each new pronouncement from leaders in the legal community, such as SLU professor Brendan Roediger, or Boone County Prosecuting Attorney Daniel Knight (), that the system is an “embarrassment” to the legal community, it becomes clear that more action is necessary.

But action from whom? A Legislature which has barely been able to address its own ethics problems over the years?

To wit: The Legislature literally has inhabited an almost ethics-free zone for decades. During this time its members could take unlimited gifts from lobbyists. Since 2008, lawmakers threw out voter-approved campaign finance limits, allowing themselves to take unlimited campaign donations. They fixed it so donations could be passed among multiple committees to hide their source.

Now, only this year has the Legislature begun to take what many of its own members are calling “baby steps” to address that rotten status quo. The House and Senate of bills that would limit lobbyists gifts and limit the existing conflicts between lawmakers lining up their lobbyist jobs before they are even out of the Capitol. But the Senate’s version of the bill wouldn’t even affect current lawmakers.

This is not the body that should be fixing the blatant ethics and conflict of interest violations taking place among municipal judges, particularly in the St. Louis region.

In fact, the Court has previously opined, in the 1999 Weinstock v. Holden case (), that the Legislature cannot encroach on the Court’s power to regulate judicial conduct. Wrote the Court in that case: “The judicial branch, through its Code of Judicial Conduct, provides canons to guide judges through possible conflicts of interest, and to require judges to carry out their adjudicatory duties impartially. Rule 2, Canons 1, 2, and 3. By establishing these rules for proper judicial conduct, this Court has exercised its powers under article V, sections 4 and 5, and the separation of powers provision in our Constitution prevents the legislature from encroaching on this judicial function.”

The problem, then, as the Court previously determined in making adjustment to Rule 37, is that the Court either needs to rework its own Code of Judicial Conduct, , or it needs to do a better job of applying that rule to its municipal divisions.

Should the Court require, as it should, all municipal judges to meet the ethical and conflict of interest responsibilities of circuit and county judges, it will have serious effects on the operations of municipal courts. Many, if not all, will have to fold if they can’t afford full-time judges. Their cases would be pushed to the circuit courts, adding to already heavy caseloads.

This may give the Court pause in deciding whether to exercise its constitutional power. That should not be the Court’s concern. The Court has often made decisions which then require the Legislative branch to change statutes to respond to a constitutional crisis. School finance decisions come to mind, as well as fairly recent decisions on cases involving tax revenue or caps on lawsuit damages. So be it. That is how the proper balance of power should work.

The Court’s responsibility is twofold: to protect the civil rights of Missouri citizens, and to protect the independence and integrity of the judicial system. If the Court makes the right decision, it will be the Legislature’s job to find a proper solution. Lawmakers could choose to fold 82 municipal courts into a single countywide municipal court, with north, south and west divisions.

CONCLUSION

The state Constitution, the Court’s own precedents and its existing Code of Judicial Conduct, demand that the Court continue down its current path and ensure that all judges, including those at municipal divisions, are following the same ethical codes and avoiding conflicts of interest.

The Court should not outsource its responsibility to the Legislature. But it should appoint a special master to coordinate with various lawmaking bodies which will have to implement the new reality: The rights of citizens are more important than the profits of members of the Bar and certain municipalities.