Rules of Circuit Court for Twenty-First Judicial Circuit, In re, TWENTY-FIRST

• Decision Date: 11 October 1985
• Docket Number: TWENTY-FIRST,No. 67397,67397
• Citation: 702 S.W.2d 457
• Parties: In re: RULES OF the CIRCUIT COURT FOR theJUDICIAL CIRCUIT.
• Court: Missouri Supreme Court

Page 457

702 S.W.2d 457

In re: RULES OF the CIRCUIT COURT FOR the TWENTY-FIRST

JUDICIAL CIRCUIT.

No. 67397.

Supreme Court of Missouri,

En Banc.

Oct. 11, 1985.

Post-Opinion Motions Overruled

Nov. 1, 1985.

PETITION TO ACCEPT AND FILE AS CERTIFIED THE LOCAL RULES OF THE TWENTY-FIRST JUDICIAL CIRCUIT

PER CURIAM.

This matter comes to us in the posture of a Petition to Accept and File as Certified The Local Rules of the Twenty-First Judicial Circuit. Relevant litigation history preceding this petition includes an investigation of the matter by the Court of Appeals of the Eastern District, an opinion by this Court in Gregory v. Corrigan, 685 S.W.2d 840 (Mo. banc 1985) and another opinion of this Court in Nolan v. Stussie, 695 S.W.2d 869 (Mo. banc 1985). Gregory and Nolan reflect the fact that the Court has to date exercised a high degree of judicial restraint by deciding these matters on the narrowest possible ground in the hope that the Twenty-First circuit could, independent of superior court action, arrive at an amicable resolution to its problems.

The restraint exercised by this Court has not produced the anticipated independent solution of the problem by the Twenty-First circuit. The right of the citizens of St. Louis County and the practicing bar of St. Louis County to have an orderly administration of justice makes it imperative that there now be a prompt and final resolution of this matter. The responsibility for such resolution now resides in this Court. Mo.Const. art. V, § 5.

The unified system of Missouri courts created by Mo. Const. art. V, 1945, as amended in 1976, contemplates that the three levels of courts be administered by the Chief Justice of this Court, Chief Judges in the Courts of Appeals, and Presiding Judges in the circuit courts, each having general supervision of that part of the judiciary which they oversee. The most cursory examination of Article V, our Rules of Court, our Administrative Rules, the legislative enactments pertaining to the The present difficulties in the Twenty-First circuit are all traceable to Mo. Const. art. V, § 15.3, which was a part of the comprehensive revision of the judicial article in 1976. This section provides that the presiding judge of circuit courts shall be elected by the circuit and associate circuit judges. This has made possible in the Twenty-First circuit an election of the presiding judge by the associate circuit judges acting in concert with a minority of the circuit judges. Section 15.3 constituted an open invitation to form the factions which have so effectively brought to a standstill the orderly administration of justice in the Twenty-First circuit. The associate-dominated faction places heavy reliance on interpreting certain statutes together with § 15.3 to claim independent powers inimical to the efficient and unified operation of the circuit. Nothing is to be gained by debating whether the form of § 15.3 was the product of skilled lobbying on the part of the former magistrates for the purpose of staking out certain areas of political influence and patronage, or whether it was the unintended product of a well-intentioned but misunderstanding Bar and electorate. We can no longer avoid the inevitable conclusion that the amendment as passed is diametrically opposed to and in direct contradiction of the general purpose and spirit of the remainder of the judicial article. Based upon the repeated filings in this Court, there appears to be no prospect of the associates retreating from their claimed right to retain the sacred areas of influence and patronage and to control the election of the presiding judge pursuant to art. V, § 15.3.

                judiciary and our Handbook for Presiding Judges, (Dec. 28, 1984), leaves no doubt that all contemplate that these administrative officers shall have the power to exercise strong leadership in a fair and just manner.  The thirteen guidelines for Presiding Judges set forth in the Handbook are attached as Appendix A to this opinion. 1  The power of the chief administrative officer to administer and run the court or courts within such officer's jurisdiction is subject only to the power of the majority of the Court or of a superior court to overrule such decision or order of the chief judge.  These are powers rarely, if ever, required to be exercised in the orderly administration of justice.  It has always been accepted that these chief administrative officers are to be elected by a majority of the court on which they sit.  It is against this background that we must identify and define the cause or causes of the trouble in the Twenty-First Judicial Circuit
                

Both factions have resorted to the rule-making power as a vehicle for establishing their alleged right to control the election of the presiding judge and administration of the circuit. The first effort was made by the majority of the circuit judges adopting proposed Rule 100.1.1(4) which restricted to the circuit judges the power to nominate the candidates for presiding judge. This rule was declared unconstitutional by this Court in Gregory. The next effort was by the majority of the circuit judges adopting proposed Rule 100.1.5, which would strip the presiding judge (elected by a majority of the circuit and associate judges) of the usual and customary powers and duties of his office, and in lieu thereof place such powers in a "Planning Committee" elected and controlled by the majority of the circuit judges. In Nolan, we declared the local court rules of the Twenty-First circuit invalid and ordered the circuit to promulgate new rules as soon as possible in accordance with guidelines suggested therein.

The presiding judge, elected by a majority of the circuit and associate judges, refused to call a meeting of the circuit judges for the purpose of adopting court rules, but did appoint a Rules Committee to draft and

propose new rules. The majority of the circuit judges then met and adopted rules. The presiding judge refused to certify the rules adopted by the majority of circuit judges who in turn filed their petition in this Court praying that we accept and file the rules as certified, or in the alternative, that we order the presiding judge to do the ministerial act of certifying and filing the rules. The presiding judge called a conference of the court en banc for September 28, 1985, indicating that at such conference some of such rules would be declared to have been adopted by the majority of the circuit judges pursuant to § 478.245.1, RSMo 1985, but that others would be determined to be orders requiring approval of a majority of the associate and circuit judges pursuant to § 478.245.4, RSMo 1985. This Court stayed such action on petition of the majority of the circuit judges pending this Court's action on the rules proposed for filing.

I

Nothing in Mo. Const. art. V, except § 15.3 thereof, contemplates participation in the election of the presiding judge of the court by the associate circuit judges. Reduced to the simplest of terms, nothing in art. V contemplates running the judiciary from the bottom up as opposed to from the top down.

We are not sure that any other court has ever faced the same situation that we now face, that of having a single section of the Constitution in such direct contravention to all of the other provisions of its Constitution. We know of no other case where a supervising court has been faced with such a total breakdown in the orderly administration of an arm of its judicial system. We know of no other court which has a record of more sacredly guarding the right of the people to speak through their Constitution. Weighing this right against the right of the people to have an orderly administration of justice, we now conclude that we cannot and will not enforce that part of art. V, § 15.3 which purports to grant to associate circuit judges the right to participate in the election of the presiding judge pending further resolution of the contradictory provision by the people.

We make this determination pursuant to what we believe to be our constitutional power and pursuant to what we know is our duty and obligation to the people who suffer from the breakdown of this arm of the judiciary.

II

Mo. Const. art. V, § 15.1 unequivocally provides that "The circuit judges of the circuits may make rules for the circuit not inconsistent with the rules of the Supreme Court." Nothing in the Constitution authorizes any judge or court to make "orders" in derogation of this rule-making power.

While we are cognizant of the power the legislature is granted by Mo. Const. art. V, § 5 to "annul or amend in whole or in part" our rules of practice and procedure, this does not include the power to interfere with this Court's "superintending control of all courts and tribunals" as is provided in Mo. Const. art. V, § 4.1 and our rules made pursuant thereto. We view § 478.245.4, RSMo 1985, to be in derogation of the rule-making power granted by Mo. Const. art. V, § 15.1. and thereby unconstitutional. While we have made no effort herein to review the multitude of statutes relating to circuit courts, we will have no choice when presented with the same other than to hold all parts of such statutes not consistent with this opinion to be unconstitutional and unenforceable.

III

Both factions have asserted that the Twenty-First Judicial Circuit is operating without rules. Pursuant to our general supervisory authority, Mo. Const. art. V, § 5, the Rules of Court Twenty-First Judicial Circuit, filed in connection with this petition, are ordered and now deemed to be filed in this Court with the exception that all references to any right of the associate

circuit judges to vote on the election of the presiding judge shall be deleted therefrom consistent with this opinion. The stay order is dissolved and the motions for appointment of attorney and the appointment of a commissioner are overruled.

IV

In the event that there be any further evidence of inability of the...