State ex inf. Peach v. Goins

• Citation: 575 S.W.2d 175
• Decision Date: 09 November 1978
• Docket Number: No. 60873,60873
• Parties: STATE ex inf. George A. PEACH, Circuit Attorney, St. Louis City, Relator, v. Benjamin L. GOINS, Sheriff of the City of St. Louis, Respondent.
• Court: United States State Supreme Court of Missouri

Page 175

575 S.W.2d 175

STATE ex inf. George A. PEACH, Circuit Attorney, St. Louis City, Relator, v. Benjamin L. GOINS, Sheriff of the City of St. Louis, Respondent.

No. 60873.

Supreme Court of Missouri, En Banc.

Nov. 9, 1978.

Rehearing Denied Dec. 18, 1978.

George A. Peach, pro se.

Terrence J. O'Toole, First Asst. Circuit Atty., St. Louis, for relator.

Burton H. Shostak, St. Louis, for respondent.

PER CURIAM.

This is an original proceeding in quo warranto filed by the relator, the circuit attorney of the City of St. Louis, to declare that the respondent, Benjamin L. Goins, the sheriff of the City of St. Louis has forfeited his office because he has been found guilty by a jury and sentenced by the United States District Court for certain felony offenses against the United States. We have original jurisdiction. Art. V, § 4, Mo.Const.

I.

The facts are not complicated or complex but the legal issues involved are not easily resolved and raise important questions relating to the holding of the public office of sheriff.

In April, 1977, the respondent, Benjamin L. Goins was elected sheriff of the City of St. Louis. He qualified and entered upon the duties of that office on June 3, 1977. Prior to entering upon his duties as sheriff, respondent was the license collector of the City.

On April 10, 1978, the Grand Jury for the Eastern District of Missouri charged respondent with several felony offenses in violation of federal laws. Count I alleged that § 558.020 ¹ prohibits a public official from accepting money or a promise of money under an agreement to perform an official duty with partiality or favor and charged him with a pattern of "racketeering activity" in violation of 18 U.S.C. sections 1962(a) and 1963. Count II charged respondent with "knowingly" making "false material declarations" before the Grand Jury in violation of 18 U.S.C. section 1623. ²

Count III charged that the respondent obstructed the due administration of justice by advising and counseling a grand jury witness to give false testimony in violation of 18 U.S.C. section 1503. ³ Counts IV, V and VI charged respondent with false income tax returns for the years 1973, 1974 and 1975, in violation of 26 U.S.C. section 7206(1).

Trial on the indictment was held in June, 1978. On June 24, 1978, after a two week trial the jury returned verdicts of guilty on all six counts. On July 14, 1978, the District Judge found in his judgment that the respondent "has been convicted as charged of the offenses of (1) engaging in a pattern of racketeering activities while he was the duly elected License Collector of the City of St. Louis, . . . in that he knowingly and unlawfully violated Section 558.020, Revised Statutes of Missouri (1969) . . . In violation of Title 18, United States Code, Sections 1962(a) and 1963, as charged in Count I of the Indictment;" (2) "knowingly while under oath before the Grand Jury, made false material declarations then knowing said declarations were false, while said Grand Jury of the United States had been duly empaneled and sworn . . . and were investigating corruption in the government of the City of St. Louis . . . In violation of Title 18, United States Code, Section 1623, as charged in Count II of the Indictment;" (3) "endeavored to influence, obstruct and impede the due administration of justice in the United States District Court . . . by urging, advising and counseling a prospective witness to give false and misleading testimony before the Grand Jury of said District, (i)n violation of Title 18, United States Code, Section 1503, as charged in Count III of the Indictment;" and (4) "willfully and knowingly made . . . United States Individual Income Tax Returns, . . . which . . . he did not believe to be true and correct . . . In violation of Title 26, United States Code, Section 7206(1), as charged in each of Counts IV, V and VII of the Indictment."

On Count I, the court sentenced the respondent to a term of five years and a fine of $3,000.00; on Count II, respondent was sentenced to a period of one year and fine of $1,000.00 to run consecutively with the term imposed under Count I; on Count III, respondent was sentenced to a term of one year and fined $1,000.00, imprisonment to run consecutively with the terms of confinement imposed under Counts I and II and on Counts IV, V and VI, respondent was sentenced to a term of one year and fined $1,000.00 on each count but placed on probation for a period of five years. Hence, respondent was sentenced to a total of seven years and fined $8,000.00.

II.

On July 17, 1978, respondent filed his notice of appeal to the United States Court of Appeals, and at the same time he declared his intention to remain in the office of sheriff pending the exhaustion of all appellate remedies.

On July 20, 1978, the relator circuit attorney filed an information in this court alleging the above facts, prayed that respondent be "declared to have forfeited his office", and that the office be declared vacant. In his suggestions relator contended that because the respondent had been "convicted" of several felonies, "he has become disqualified from holding, and has forfeited, an office in which he was initially qualified to serve."

In Respondent's response, he admitted that on July 14, 1978, a judgment of "guilty and sentence" was imposed in the United States District Court, for the above violations, but contended that he had not been "convicted" of a felony "until he has exhausted all of his appellate remedies and therefore can not and should not be removed from office upon the allegations made." To remove him prior to the exhaustion of all his appellate remedies would deny him of his liberty without due process and violate his civil rights contrary to 42 U.S.C.A. Section 1983. He admitted that the federal offenses have been appealed to the United States Court of Appeals and further contended, in effect, that since he had not been found guilty or sentenced on any offenses against the State of Missouri he has not been "convicted" of any felony in Missouri.

In addition to the response to the information, respondent filed (1) a motion to dismiss because relator failed to give a five day notice, contrary to Rule 84.24 and (2) a motion to remand to the circuit court because certain fact issues should be resolved and the proceeding more properly lies in that court.

The brief of the relator filed in this court essentially contends (1) that the respondent should be ousted because he has become disqualified from holding the office of sheriff under the provisions of either § 57.010 or § 557.490, or both, (2) that a finding of guilt and sentence in the federal court is sufficient to constitute a disqualification from office under the above statutes although the respondent has not been found guilty under specific Missouri law and (3) that respondent has forfeited his office because of the "convictions" in the federal court and such forfeiture is unaffected by the pendency of his appeal to the United States Court of Appeals.

Respondent opposes each of these basic contentions. Respondent contends that § 57.010 merely sets out the qualifications of the office of sheriff and is not a disabling or a disqualification statute and that § 557.490 disqualifying a public official who has been convicted of perjury in another sovereignty does not authorize or allow forfeiture of office since no offense has been committed under Missouri law. ⁴

The essential issues therefore which we must resolve are (1) whether § 57.010 ⁵ or § 557.490 ⁶ or both disqualify the respondent from serving in the office of sheriff, (2) whether a finding of guilt by a jury and subsequent sentence thereon in the United States District Court of several felonies is sufficient to disqualify the respondent from the office although there has been no conviction for a felony in this state, and (3) whether the pendency of an appeal of the federal offenses precludes forfeiture of the respondent's office.

III.

Before we reach the substantive issues, we deny the respondent's motion to dismiss and motion to remand the cause to the circuit court. Rule 84.24 provides that " . . . Whenever the required (five day) notice would, in the judgment of the court, defeat the purpose of the writ, it may be dispensed with. . . . " As respondent acknowledges, this provision expressly recognizes the power of the court to waive the notice requirement. The respondent was served with the petition and our order to show cause was issued. The rule is not jurisdictional. If the relator failed to comply with the strict requirements of the rule, we conclude that the interests of justice would best be served by waiving the requirements. Cf. State v. Missouri Utilities Co., 339 Mo. 385, 96 S.W.2d 607, 614 (1936).

We also deny the motion to remand. Article V, Section 4, Mo.Const. vests concurrent jurisdiction in this court. Because of the importance of the issues, we accept jurisdiction and waive the procedural requirements of Rule 84.22. ⁷ State ex inf. Roberts v. Buckley, 533 S.W.2d 551, 553 (Mo. banc 1976).

IV.

Turning to the substantive issues we must determine whether §§ 57.010 and 557.490 constitute a disqualification for the office. ⁸ Section 57.010 specifically and expressly provides that no person shall be eligible for the office of sheriff who has been convicted of a felony. Although the General Assembly in adopting this section did not specify that a conviction of a felony while in office would result in a disqualification from office, this interpretation is clearly and logically embodied therein. Not only does such an interpretation necessarily follow but public policy dictates such an interpretation. It is not logical to conclude that such a public official is disqualified from election if he commits a minor felony prior to election but is not disqualified if he commits a major one after taking the oath. Section 57.010 is a part of a larger scheme of...