State v. Kinder
| Decision Date | 26 November 2002 |
| Docket Number | No. SC 84301.,SC 84301. |
| Parties | STATE of Missouri, ex inf. Jeremiah W. (Jay) Nixon, Attorney General of Missouri, Appellant, v. Cole County Circuit Judges Byron L. KINDER and Thomas J. Brown, III, Respondents. |
| Court | Missouri Supreme Court |
Jeremiah W. (Jay) Nixon, Atty. Gen., James R. McAdams, Asst. Atty. Gen., Jefferson City, for Appellee.
Robert G. Russell, Sedalia, Dale C. Doerhoff, Jefferson City, for Respondents.
Attorney General Jeremiah W. Nixon filed the instant action in the nature of quo warranto asking the Circuit Court of Osage County to "oust" Cole County Circuit Judges Byron L. Kinder and Thomas J. Brown, III from continuing to exercise supervisory authority over four receivership funds held in the registry of the Circuit Court of Cole County, and to instead pay the money in those funds over to the state treasurer. The funds consist of unclaimed monies in four suits pending for at least five years in Cole County in which defendants were directed to make refunds or distributions to utility customers, telephone company customers, or insurance liquidation claim holders. While many of those with claims to some of the monies in these funds have been identified and paid by the defendants or receivers in the underlying cases, the underlying cases remain pending for the purpose of identifying the remaining persons to whom payment is due, so that orders may be made determining the amounts to which they are entitled and payments may be ordered by the court.1
The attorney general nonetheless contends that respondent judges no longer have authority over the remaining funds because sections 447.539 and 447.543, RSMo 2000, a part of the Uniform Disposition of Unclaimed Property Act (hereinafter UDUPA),2 require the judges to report and pay over any remaining amounts to the state treasurer once the funds had been in existence for five years. The attorney general alleged that in retaining supervisory authority over the funds for more than five years, the judges are usurping power over the funds that should be exercised by the treasurer; and therefore, a writ of quo warranto should issue to confine the judges within their statutory authority.
The trial court dismissed the suit. The attorney general appealed to the Court of Appeals, Eastern District, which has jurisdiction over the Circuit Court of Osage County, alleging that section 531.010 did give the trial court supervisory authority over Cole County circuit judges for the purpose of granting relief in quo warranto. Because other cases relating to these same funds were pending in this Court (see note 1), this Court granted transfer prior to opinion. Mo. CONST. art. V, sec. 10.
Quo warranto is available only where it is alleged that an official has exercised a power he or she does not have, not where, as here, it is alleged that the official exercised an existing power wrongly or for too long of a period. Clearly circuit judges have the authority to exercise supervisory authority over funds paid into the registry of their courts. Equally basically, even were quo warranto theoretically available, the exercise of power by the circuit court of Osage County over the circuit judges of Cole County is prohibited by article V, section 4(1) of the Missouri Constitution. To the extent that the final sentence of section 531.010 states otherwise, it is in conflict with article V, section 4(1) and, so, is invalid. The judgment is affirmed.
Quo warranto is a writ of very ancient origin, dating back to the earliest days of the common law. Its original purpose was to inquire into the legality of the claim of one who purported to have the right to enjoy and exercise a particular office granted by the Crown. See Quo Warranto in Missouri, 1972 WASH. U.L.Q. 751. Its function remains basically the same today, to oust a "usurper" from the exercise or enjoyment of an office or franchise. Sec. 531.010. The powers of a lower court to grant quo warranto are now set out in section 531.010 and Rule 98. See State ex inf., McKittrick v. Murphy, 347 Mo. 484, 148 S.W.2d 527, 530 (1941) ().
The attorney general contends that section 531.010 authorizes the filing of this quo warranto action requesting the Circuit Court of Osage County to issue its writ ousting Cole County Circuit Court Judges Kinder and Brown from exercising authority over the four receivership funds existing in the registry of Cole County. Therefore, he argues, the trial court erred in holding that it had no authority to direct Judges Kinder and Brown as to how to administer the receivership funds.
Section 531.010 on its face does appear to permit the attorney general to ask a circuit judge of one county to oust a usurper to the office of circuit judge of another, adjoining county, for it states in relevant part:
In case any person shall usurp, intrude into or unlawfully hold or execute any office or franchise, the attorney general of the state, ... shall exhibit to the circuit court, or other court having concurrent jurisdiction therewith in civil cases, an information in the nature of a quo warranto.... If such information be filed or exhibited against any person who has usurped, intruded into or is unlawfully holding or executing the office of judge of any judicial circuit, then it shall be the duty of the attorney general of the state, ... to exhibit such information to the circuit court of some county adjoining and outside of such judicial circuit, and nearest to the county in which the judge so offending shall reside.
(emphasis added).
The attorney general says section 531.010 applies here, for he alleges that the judges are exercising control over money that should be in the treasury and, therefore, they are usurping the treasurer's office. His argument is incorrect for two reasons.
First, the attorney general necessarily admits that the funds that he claims should be in the treasury are funds that were paid into court and that for at least five years were legitimately the subject of a receivership and were properly under the supervision of respondent judges. He merely claims that the judges then were required by statute to report and turn the funds over to the treasurer after five years. Whether or not his allegations of a duty to pay over the funds are correct, it is clear that he is not claiming that respondent judges have usurped, intruded into or are unlawfully holding or executing the office of judge, but rather that they are improperly continuing to exercise control over funds that were once properly under their supervision but which, the attorney general alleges, should now be under the jurisdiction of the treasurer.
This Court has long held that such allegations are not an appropriate subject for an action in quo warranto, but rather must be raised, if at all, by means of a writ of mandamus or prohibition.3 This is because:
The writ of quo warranto is not a substitute for mandamus or injunction nor for an appeal or writ of error. It is not to be used to prevent an improper exercise of power lawfully possessed. Its purpose is solely to prevent an officer or a corporation or persons purporting to act as such from usurping a power which they do not have.
McKittrick, 148 S.W.2d at 530. This Court continued:
In a case of quo warranto, if the constitution or a statute in conformity therewith intrusts an officer with the performance of a certain governmental function and he proceeds to perform that function [347 Mo. [at] 492] in a manner contrary to law, there is no usurpation and quo warranto will not lie, but where the officer steps entirely outside the scope of his authority to exercise a function which neither the constitution nor the statute has intrusted to him, the remedy by quo warranto is available.
Id. at 531. In other words, quo warranto is only available to deal with usurpation of power not possessed; prohibition or mandamus is the appropriate remedy where, as here, the basis of the allegation against respondent judges is really that they have illegally or improperly used powers granted to them. Id. at 530-531.
Second, even were an extraordinary writ available to deal with the wrongful exercise of power alleged by the attorney general, it could not be sought in a circuit court of concurrent jurisdiction, as was attempted here. While the final sentence of section 531.010 does state that one circuit court can exercise such authority over another judge of an adjoining circuit, this grant of power clearly violates article V, section 4(1) of the Missouri Constitution, which provides:
The supreme court shall have general superintending control over all courts and tribunals. Each district of the court of appeals shall have general superintending control over all courts and tribunals in its jurisdiction. The supreme court and districts of the court of appeals may...
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Missouri. Practice Text
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