Loading...
HomeMy WebLinkAbout1785 Repealing City Code Section 130.260.A.11 Sheriff Retirement Fund Surcharge BILL NO: 2021-028 ORDINANCE NO: /-�"915' AN ORDINANCE REPEALING CITY CODE SECTION 130.260.A.11 PERTAINING TO THE SHERIFF RETIREMENT FUND SURCHARGE BE IT ORDAINED BY THE BOARD OF ALDERMEN FOR THE CITY OF RIVERSIDE, MISSOURI,as follows: SECTION 1 —SECTION REPEALED. City Code Section 130.260.A.11, imposing an additional court cost payable to the Missouri Sheriff Retirement Fund, is hereby repealed. SECTION 2 — EFFECTIVE DATE. This ordinance shall be in full force and effect from and after its date of passage. BE IT REMEMBERED that the above was read two times by heading only, PASSED AND APPROVED by a majority of the Board of Aldermen and APPROVED by the Mayor of the City of Riverside this IOC day of July 2021. M or Kathleen L. ose ATTEST: Robin Kincaid, City Clerk 1 CIRCUIT CLERKS: The exemption for municipal courts CIRCUIT COURT— CIRCUIT from the $3 surcharge in §57.955, COURTS: RSMo, was removed in 1996. Therefore, COURTS: municipal court clerks must collect FEES: the surcharge in municipal ordinance JUDGMENTS: violation cases. MUNICIPALITIES: ORDINANCES: SHERIFFS' RETIREMENT SYSTEM: OPINION NO. 20-2013 April 17, 2013 The Honorable Brian Munzhnger State Senator, District 18 State Capitol, Room 331-A Jefferson City, MO 65101 Dear Senator Munzlinger: You asked whether § 57.955, RSMo,1 relating to the Sheriffs' Retirement System, requires a municipality to collect a $3 surcharge for municipal ordinance violations and remit the surcharge to the System. We previously opined in Opinion No. 8-2010 in response to a request from then-Representative Kenny Jones. We are providing this opinion after taking into consideration additional matters raised, reaching the same conclusion on different grounds.2 We are withdrawing Opinion No. 8-2010. 1 All statutory citations are to RSMo Cum. Supp. 2012, unless otherwise noted. 2 We do not address the constitutionality of collecting this surcharge at all. See Harrison v. Monroe County, 716 S.W.2d 263, 267, 270 (Mo. banc 1986) (Welliver, J., concurring). OP-2013-0029 The Honorable Brian Munzhnger Page 2 Section 57.955, RSMo, provides as follows: 1. There shall be assessed and collected a surcharge of three dollars in all civil actions filed in the courts of this state and in all criminal cases including violation of any county ordinance or any violation of criminal or traffic laws of this state, including infractions, but no such surcharge shall be assessed when the costs are waived or are to be paid by the state, county or municipality or when a criminal proceeding or the defendant has been dismissed by the court. For purposes of this section, the term "county ordinance" shall not include any ordinance of the city of St. Louis. The clerk responsible for collecting court costs in civil and criminal cases, shall collect and disburse such amounts as provided by sections 488.010 to 488.020, RSMo. Such funds shall be payable to the sheriffs' retirement fund. Moneys credited to the sheriffs' retirement fund shall be used only for the purposes provided for in sections 57.949 to 57.997 and for no other purpose. 2. The board may accept gifts, donations, grants and bequests from public or private sources to the sheriffs' retirement fund. The historical development of the statute shows that the legislative intent is that the surcharge be collected in municipal cases. The original version of this statute required the collection of the surcharge in all civil cases "filed in each circuit court and the divisions thereof, except the juvenile divisions ... ." § 57.960, RSMo Cum. Supp. 1983. Because municipal courts are divisions of the circuit court, Art. V, § 27.2.d, Mo. Const., the fee was required in municipal cases under that statute. The following year this statute was amended to require the collection of the fee in all civil cases "filed in each circuit court and the divisions thereof, except the municipal and juvenile divisions ... ." § 57.955, RSMo Cum. Supp. 1984. This changed the law so that the municipal court division of the circuit court was exempted from collecting the fee. OP-2013-0029 The Honorable Brian Munzlinger Page 3 Finally, in 1996, the statute was amended to read as it does today, requiring collection of the fee "in all civil actions filed in the courts of this state ... ." § 57.955, RSMo Cum. Supp. 1996. This change eliminated the exceptions for juvenile divisions and municipal divisions of the circuit courts. For the change to have any meaning, municipal court divisions must now be required to collect the fee. S.S. v. Mitchell, 289 S.W.3d 797, 799 (Mo. App. E.D. 2009) (in interpreting statutes, courts "presume that the legislature intended an amendment to have some effect"). Therefore, the historical development of the statute demonstrates that the legislature intended that the surcharge be collected in municipal court cases. CONCLUSION The exemption for municipal courts from the $3 surcharge in §57.955, RSMo, was removed in 1996. Therefore, municipal court clerks must collect the surcharge in municipal ordinance violation cases. ct my z000f CHRIS KOSTER Attorney General OP-2013-0029 w:wwaa F•ya rw as Qom 0 9 t s V y 5 ' i J � SUPREME COURT OF MISSOURI en banc DAVEN FOWLER, ET AL., ) Opinion issued June 1, 2021 Appellants/Cross-Respondents, ) V. ) No. SC98484 MISSOURI SHERIFFS' RETIREMENT ) SYSTEM, ) Respondent/Cross-Appellant. ) APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY The Honorable Kevin D. Harrell, Judge Daven Fowler and Jerry Keller appeal the circuit court's dismissal of their lawsuit against the Missouri Sheriffs' Retirement System ("MSRS"). MSRS cross-appeals. Because the municipal court clerks are not necessary and indispensable parties, and the statute authorizing the $3 surcharge, § 57.955,1 violates article I, § 14 of the Missouri Constitution, the circuit court's judgment is vacated and remanded. 1 All statutory references are to RSMo 2016 unless otherwise provided. Factual Background and Procedural History The General Assembly enacted § 57.955 in 1983. At enactment, the statute provided in pertinent part: After the effective date of the establishment of the system, in addition to all other legal costs in each civil suit, action, case and all other proceedings of a civil nature filed in each circuit court and the divisions[21 thereof, except the juvenile divisions, in a county there shall be assessed and collected in the same manner as other civil court costs are collected a sum of three dollars and in all criminal cases a sum of two dollars, but no such costs shall be assessed when the costs are to be paid by the state for indigent defendants. The clerk, or other official responsible for collecting court costs in civil and criminal cases, shall collect such amounts and shall remit them monthly to the board for deposit in the sheriffs' retirement fund. § 57.955.1, RSMo Supp. 1983. From its enactment until 1997, the statute did not require municipal courts to collect either the $3 or the $2 surcharge.3 In 1997, the General Assembly amended the statute to its current version, which provides: There shall be assessed and collected a surcharge of three dollars in all civil actions filed in the courts of this state and in all criminal cases including violation of any county ordinance or any violation of criminal or traffic laws of this state, including infractions, but no such surcharge shall be assessed when the costs are waived or are to be paid by the state, county or municipality or when a criminal proceeding or the defendant has been dismissed by the court. For purposes of this section, the term "county ordinance" shall not include any ordinance of the city of St. Louis. The clerk responsible for collecting court costs in civil and criminal cases, shall collect and disburse such amounts as provided by sections 488.010 to 488.020. Such funds shall be payable to the sheriffs'retirement fund. Moneys credited to the sheriffs' retirement fund shall be used only for the purposes provided for in sections 57.949 to 57.997 and for no other purpose. 2 Municipal courts,as they are commonly called,are divisions of the circuit court. State v. Severe, 307 S.W.3d 640, 643 n.6(Mo. banc 2010) (citing Mo. Const. art. V, §§ 23, 27). 3 The General Assembly amended the statute in 1984 to exclude municipal courts from collecting the surcharges. See § 57.955.1, RSMo Supp. 1984. 2 § 57.955.1 (emphasis in statute). The municipal court clerks ("the clerks") assess and collect the surcharge and then remit collected surcharges to the Missouri Sheriffs' Retirement Fund("the Fund"). The Fund pays its benefits to retired elected county sheriffs and their spouses, but only if the elected sheriff served in that capacity for at least eight years. In May 2017, Daven Fowler and Jerry Keller received speeding tickets in Kansas City. Both men hired the same attorney and resolved their cases by pleading guilty and paying court costs totaling $223.50 to the Kansas City municipal court. Three dollars of the total costs was the surcharge authorized by § 57.955. Neither Fowler nor Keller knew they were paying the$3 surcharge. After discussions with their attorney,Fowler and Keller believed the surcharge was unconstitutional, and both men agreed to become class representatives for all Kansas City municipal court litigants who had paid the surcharge. Fowler and Keller, on behalf of a putative class, sued MSRS in the Jackson County circuit court. As germane to this case, the petition alleged one count of unjust enrichment and asserted the surcharge violated article I, § 14 of the Missouri Constitution. The case proceeded to a bench trial. After the close of all the evidence, the circuit court dismissed this case,4 concluding Fowler and Keller had failed to join the clerks responsible for assessing, collecting, and remitting the surcharge as necessary and indispensable parties. 4 The circuit court rejected MSRS'arguments that the plaintiffs did not have standing,waived their constitutional challenge by failing to raise it with the municipal court, waived their unjust enrichment claim under the "voluntary payment doctrine,"and that MSRS'reception of surcharge funds was nothing more than passive acquiescence. 3 Despite this conclusion, the circuit court addressed the constitutional challenge and concluded § 57.955 did not violate article I, § 14 of the Missouri Constitution. Fowler and Keller appealed, and MSRS cross-appealed. This Court has exclusive appellate jurisdiction over the appeal because Fowler and Keller challenge the constitutional validity of§ 57.955. Mo. Const. art. V, § 3; Mo. State Conf. of NAACP v. State, 601 S.W.3d 241, 244 (Mo. banc 2020). Analysis 1. MSRS' Threshold Arguments MSRS raises several arguments, which, if accepted, would prevent this Court from reaching the merits. Namely, MSRS argues: (1) Fowler and Keller do not have standing; (2) Fowler and Keller waived their constitutional claim by failing to raise it with the municipal court; (3) the "voluntary payment doctrine" bars Fowler and Keller's unjust enrichment claim; and (4) Fowler and Keller's unjust enrichment claim fails as a matter of law because MSRS'reception of funds was nothing more than "passive acquiescence." All of these arguments fail. A. Fowler and Keller Have Standing MSRS argues Fowler and Keller do not have standing because their attorney originally paid the court costs (including the surcharge) on their behalf. "This Court reviews the issue of standing de novo." Mo. Coal.for EnVt v. State, 579 S.W.3d 924, 926 (Mo. banc 2019). "Standing. . . requires a petitioner to demonstrate a personal stake in the 4 outcome of the litigation, meaning a pecuniary or personal interest directly at issue and subject to immediate or prospective consequential relief." Id. (internal quotation marks omitted). It was established that Fowler and Keller's attorney originally paid their respective court costs to the municipal court. However, both Fowler and Keller testified they reimbursed their attorney for the court costs.' It is of no consequence that the attorney originally paid the court costs. Fowler and Keller reimbursed their attorney and,therefore, have a pecuniary interest. Their petition seeks a refund or reimbursement of the surcharge. Fowler and Keller have standing. B. Fowler and Keller Did Not Waive Their Constitutional Claim MSRS argues Fowler and Keller waived their constitutional claim because they failed to raise the same with the municipal court. Fowler and Keller do not dispute they failed to present their constitutional challenge to the municipal court, but disagree they waived the claim. Because the parties do not dispute the facts related to the issue of waiver, it is a question of law this Court reviews de novo. Hay v. Bankers' Life Co., 231 S.W. 1035, 1037 (Mo. App. 1921) ("[W]aiver is generally a question of fact . . . yet where the facts and circumstances relating to the subject are admitted or clearly established, waiver becomes a question of law."); see also Malam v. State, Dept of Corr., 492 S.W.3d 926, 928 (Mo. banc 2016) ("Questions of law are reviewed de novo."). 5 Keller paid the attorney back directly while Fowler's mother originally reimbursed the attorney. Fowler testified he paid his mother back for the reimbursement. 5 Generally, to properly raise and preserve a constitutional challenge, a party must: (1) raise the constitutional question at the first available opportunity; (2) designate specifically the constitutional provision claimed to have been violated, such as by explicit reference to the article and section or by quotation of the provision itself; (3) state the facts showing the violation; and (4) preserve the constitutional question throughout for appellate review. United C.O.D. v. State, 150 S.W.3d 311, 313 (Mo. bane 2004). However, this Court has recognized an exception to the general rule as it pertains to municipal courts,that is, "failure to raise constitutional questions in municipal court is not considered a waiver of the same." State ex rel. Kansas City v. Meyers, 513 S.W.2d 414, 418 (Mo. bane 1974); City of Ferguson v. Nelson, 438 S.W.2d 249, 252 (Mo. 1969). Because Fowler and Keller were not required to present their constitutional challenge to the municipal court, and because they have otherwise sufficiently raised and preserved the issue, they did not waive their claim that § 57.955 violates article I, § 14 of the Missouri Constitution. C. MSRS' Remaining Arguments Not Preserved MSRS'remaining point relied on provides: "THE CIRCUIT COURT ERRED IN REJECTING [MSRS] VOLUNTARY PAYMENT AND PASSIVE ACQUIESCENCE DEFENSES." This point relied on fails to comply with Rule 84.04(d) in that it fails to concisely state the legal reasons for MSRS' claims of error and fails to explain how those legal reasons, in the context of the case at hand, support MSRS' stated claims of error. Rule 84.04(d)(1)(B)-(C). Furthermore, the point relied on is multifarious in violation of Rule 84.04 because it groups together multiple, independent claims. 6 Macke v. Patton, 591 S.W.3d 865, 869 (Mo. banc 2019). Because Rule 84.04's requirements are mandatory, MSRS' noncompliant point relied on fails to preserve either argument for this Court's review. Id.; see also Storey v. State, 175 S.W.3d 116, 126 (Mo. banc 2005). II. Municipal Court Clerks Are Not Necessary Parties Turning to the merits of Fowler and Keller's appeal, they first argue the circuit court erred in dismissing their petition for failing to include the clerks as necessary and indispensable parties. "This Court applies de novo review to a judgment dismissing a petition." Rolwing v. Nestle Holdings, Inc., 437 S.W.3d 180, 182 (Mo. banc 2014). Rule 52.04 governs whether a person is a necessary and indispensable party. More precisely, Rule 52.04(a) governs whether a party is "necessary." It provides: A person shall be joined in the action if. (1) in the person's absence complete relief cannot be accorded among those already parties, or (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person's absence may: (i) as a practical matter impair or impede the person's ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest. If the person has not been joined,the court shall order that the person be made a party. If the person should join as a plaintiff but refuses to do so, the person may be made a defendant. "If either prong of Rule 52.04(a) has been satisfied, courts have traditionally labeled such party 'necessary."' State ex rel. Woodco, Inc. v. Phillips, 603 S.W.3d 873, 876 (Mo. banc 2020). 7 MSRS argues, in conclusory fashion, that the clerks must be necessary and indispensable parties because they are the party responsible for assessing, collecting, and remitting the surcharge; therefore, a court could not grant complete relief without them.' The only relief sought by Fowler and Keller is restitution or repayment of the$3 surcharge. If the plaintiffs prevail on their unjust enrichment claim,they are entitled to restitution from MSRS as the party that retained the benefit of their surcharge payment. Polk Tp., Sullivan Cnty. v. Spencer, 259 S.W.2d 804, 807 (Mo. 1953); see also Restatement (Third) of Restitution and Unjust Enrichment § 1 (2011) ("A person who is unjustly enriched at the expense of another is subject to liability in restitution."). MSRS does not argue it is incapable of providing restitution directly to Fowler and Keller if their unjust enrichment claim is successful, nor does it explain how the clerks are necessary to ensuring restitution is paid. Because complete relief can be accorded among the named parties, the clerks are not necessary parties under Rule 52.04(a)(1). Nor are the clerks necessary parties under Rule 52.04(a)(2). As Rule 52.04(a)(2)'s plain language makes clear,the clerks themselves must claim an interest in the subject matter of this lawsuit to be a necessary party. Rule 52.04(a)(2); see also Aversman v. Danner, 616 S.W.2d 117, 123 (Mo. App. 1981) (holding natural 6 MSRS argued the clerks are necessary and indispensable parties because, as the state officials required to enforce § 57.955,the clerks would have an "interest that would be affected by a court's declaration." See Mo. Health Care Assn v. Att y Gen. of the State of Mo., 953 S.W.2d 617, 621 (Mo. Banc 1997) (emphasis added). Of course, this line of thinking applies only to a declaratory judgment action. Because Fowler and Keller seek restitution through an unjust enrichment theory—and at no point seek a declaration § 57.955 is unconstitutional—the clerks are not necessary and indispensable parties for that reason. 8 mother and her present husband were not required to be joined as necessary and indispensable parties because they claimed no interest in the underlying wrongful death lawsuit). At no point in this litigation have the clerks claimed an interest in this lawsuit, and none of the parties suggest they have claimed such an interest at any time. Because the clerks do not satisfy either prong of Rule 52.04(a), they are not necessary parties and this Court need not address whether they are indispensable parties. State ex rel. Twenty- Second Jud. Cir. v. Jones, 823 S.W.2d 471, 475 (Mo. banc 1992). III. Section 57.955 Violates Article 1, 14 of the Missouri Constitution Fowler and Keller argue § 57.955's $3 surcharge violates article I, § 14 of the Missouri Constitution. "This Court reviews the constitutional validity of a statute de novo." Donaldson v. Mo. State Bd, of Registration for the Healing Arts, 615 S.W.3d 57, 62 (Mo. banc 2020). "A statute is presumed constitutional and will not be found unconstitutional unless it clearly and undoubtedly violates the constitution." Priorities USA v. State, 591 S.W.3d 448, 452 (Mo. banc 2020) (internal quotation marks omitted). Article I, § 14 of the Missouri Constitution provides "[t]hat the courts of justice shall be open to every person, and certain remedy afforded for every injury to person, property or character, and that right and justice shall be administered without sale, denial or delay." This Court has recognized, "Art. I, § 14 embodies the principle found in Chapter 40 of the Magna Carta that'To no one will We sell,to no one will We deny or delay,right or justice."' Harrison v. Monroe Cnty., 716 S.W.2d 263, 267 (Mo. banc 1986). For a statute imposing 9 a court cost to withstand an article I, § 14 challenge to its validity, this Court has held the statute must be "reasonably related to the expense of the administration of justice." Id. Harrison is directly on point. In Harrison, the plaintiff alleged Senate Bill 601 violated article I, § 14. Id. at 264 & n.1. SB 601 provided for additional compensation to county officials (including county sheriffs) if those officials attended a certain training program. Id. at 264-65. To fund the additional compensation, SB 601 authorized the assessment of a$4 surcharge in criminal and civil proceedings. Id. at 265. As in this case, the clerk of court collected the $4 surcharge and paid any amount to the county treasurer, who then transmitted the funds to the state treasurer for deposit into the "County Officers Compensation Fund." Id. The circuit court dismissed the plaintiffs suit, and the plaintiff appealed to this Court. Id. In addressing SB 601's constitutional validity, this Court reasoned: S.B. 601 civil court costs bear no reasonable relationship to the expenses of the administration of justice; S.B. 601 civil court costs are collected to enhance the compensation of officials of the executive department of county government. We, therefore, hold that the fees imposed in civil cases by S.B. 601 are unreasonable impediments to access to justice in violation of art. I, § 14. Id. at 267. Harrison laid down a bright-line rule that court costs used to enhance compensation paid to executive officials are not "reasonably related to the expense of the administration of justice" and, therefore, violate article I, § 14. Like SB 601, § 57.955 requires the collection of a court cost used to enhance the compensation of executive department officials—retired county sheriffs. Applying Harrison's bright-line rule, 10 § 57.955 is not "reasonably related to the expense of the administration of justice" and therefore, violates article I, § 14 of the Missouri Constitution. Conclusion Because the circuit court erred in determining that the clerks were necessary parties and that § 57.955 did not violate article I, § 14 of the Missouri Constitution, this Court vacates the circuit court's judgment. This case is remanded for further proceedings consistent with this opinion. Zel M. Fischer, Judge Draper, C.J., Wilson, Russell, Powell and Breckenridge, JJ., concur. 11 Part I: Dispute over $3 fee pits sheriffs vs. judges • By Messenger St. Louis Post-Dispatch • Mar 26,2017 First in a five part series about how all three branches of Missouri government helped prop up the Sheriffs'Retirement Fund by charging a court fee that many judges and legal scholars find unconstitutional. Up until 2014,the Sheriffs' Retirement Fund in Missouri was like many other public pensions in America, struggling to keep pace. But then something unusual happened. After then-Attorney General Chris Koster issued a third opinion in less than two years that indicated the $3 court fee that funds the sheriffs' pensions should be applied to municipal courts in the state,the Missouri Supreme Court reversed course. The court had never applied the fund to municipal courts, and it had ignored two Koster opinions to the contrary. But in 2013,the court added the fee to charges municipal courts were to attach to traffic tickets and other cases facing Missourians, even though sheriffs played no role in the application of justice in municipal courts. The change applied to all municipal courts in the state except those in the city of St. Louis and St. Louis County. The results were immediate. Between 2012 and 2015, the Sheriffs' Retirement Fund—which currently serves 122 retired sheriffs in the state—showed an increase of more than $10 million in assets. Today, compared to most public employee pension funds, it's flush with cash. It's not a bad thing that sheriffs in the state, many of whom make relatively low wages in poor, rural counties,have a strong pension fund. But how that fund came to balance its books is a tale of intrigue that involves all three branches of Missouri government. In the months before the nation would learn of municipal court abuses in Missouri because of unrest in Ferguson,the combination of pressure from key senators and the attorney general's office would lead the state's top court to reverse course on a position that many of the state's judges still believe was the proper one. And it has created an ongoing dispute that now has dozens of municipal judges standing up against what they believe is the unconstitutional action of the Missouri Supreme Court. Of the 608 cities,towns and villages in Missouri with a municipal court, as many as 362 of them may be refusing to add the$3 sheriffs' fund surcharge to municipal court cases. And now, despite the financial strength of the pension fund, the Sheriffs' Retirement System is asking for help to get them to pay up. On March 6, C.F. Barnes, executive director of the retirement system, sent letters to circuit clerks in 102 Missouri counties, copying state Auditor Nicole Galloway on all of them, asking them to enforce the Missouri Supreme Court's August 2013 order that the $3 surcharge applies to municipal courts. If the Sheriffs' Retirement System wants a fight, it's about to get one. Most of the courts that aren't collecting the fund have judges who have filed their own orders— called"sua sponte"orders,which argue that collecting the Sheriffs' Retirement Fund surcharge is unconstitutional. One of the cities that isn't collecting the fee is Nevada, Mo., where the municipal judge, Bryan Breckenridge, signed a sua sponte order on Aug. 26,2013, ordering that the $3 fee not be charged in any municipal cases. If Breckenridge's name sounds familiar, that's because he is married to Patricia Breckenridge, who is the chief justice of the Missouri Supreme Court. Breckenridge sent me a copy of his order when I emailed to ask about the March 6 letter from Barnes. "It is still in place,"the judge wrote. "This Court finds that the imposition of the Sheriffs' Retirement Fund surcharge ... would entail a sale of justice,"Breckenridge wrote in his order. The idea that unnecessary surcharges stand as an impediment to justice is one that has its origin in a document that existed long before Missouri was a state or the United States was a nation. Rooted in Article 40 of the Magna Carta, the English document that inspired much of today's modern American law, is the concept that the courts shall be open to all,that they shall not erect financial barriers that bar access to the court for poor people. It is also an idea that is at the core of the municipal court reforms implemented by the Missouri Supreme Court last year after months of protest in Ferguson and north St. Louis County. Poor, black residents complained of being jailed because they couldn't afford increased costs in cities relying on court fees as a source of revenue. In its various responses to Ferguson, the state's high court worked to fix this problem, coming to the recognition that municipal courts were being used in some cases as revenue centers. All along,the court had its own secret. Outside of St. Louis and St. Louis County, the court was involved in helping the Sheriffs' Retirement Fund balance its books by violating the very principles inherent in its report requiring changes to municipal court rules. At the heart of the scheme was a hearing in February 2013 in which former state Sen. Mike Parson, a southwest Missouri Republican who is now the lieutenant governor, threatened the court during a budget hearing that should have had nothing to do with the Sheriffs' Retirement Fund. That former senator is also a former sheriff. He is a close friend of former Attorney General Koster, a Democrat,who issued the three opinions that ultimately led a skittish Supreme Court to flip its position in direct violation of its own case law interpreting the Missouri Constitution. Koster declined to comment for this series. The result is a status quo that few in Missouri government want to talk about,because the truth could unravel a budget knot that will threaten more than a retired sheriff s pension. It calls into question the bedrock trust in the checks and balances built into Missouri's government. Part II: A senator's budget threat precedes flip of Missouri's top court • By Messenger St. Louis Post-Dispatch • Mar 27,2017 Second in a five part series about how all three branches of Missouri government helped prop up the Sheriffs'Retirement Fund by charging a court fee that many judges and legal scholars find unconstitutional. It was a typical early-session appropriations hearing in a first-floor hearing room in the Missouri Capitol. The date was Feb. 14,2013. Greg Linhares, the head of the Office of State Courts Administrator, or OSCA, was there to outline the proposed budget for the Missouri court system. He walked through some numbers. Senators asked a few questions. One of them, though, had a different agenda. Call it the Valentine's Day Surprise. "You're familiar with the Sheriffs' Retirement Fund?"asked Sen. Mike Parson, R-Bolivar. The question had nothing to do with the matter at hand. The state's court budget doesn't affect sheriffs or their pensions. But Linhares knew where Parson was headed. Parson, a former sheriff, was one of several lawmakers backing proposals in the Legislature that year to change the state statute that established a$3 court fee"in all civil actions filed in the courts of this state ..."so that it would more clearly apply to municipal courts. The original statute to create the revenue source for the sheriffs passed in 1983 and had been amended several times, at one point specifically excluding municipal courts. The most recent version of the law,passed in 1996,had never been interpreted by the Missouri Supreme Court nor OSCA, its administrative body, to apply to municipal courts. Lawmakers wanted to change that,but their bills weren't gaining any traction. Twice in the past three years, at the urging of the Missouri Sheriffs' Retirement System, state Rep. Kenny Jones, R-California,had asked then-Attorney General Chris Koster to issue an opinion that municipal courts had to collect the fee. If all municipal courts in the state charged the$3 for each case before them, it could raise about$3 million a year. Jones is a well-respected, almost iconic former sheriff of Moniteau County,whose wife was killed along with another sheriff and two deputies in a 1991 killing spree that drew national media attention. He is currently the chairman of the Missouri Sheriffs' Retirement System and was recently appointed by Gov. Eric Greitens as chairman of the state's Board of Probation and Parole. Jones' son, Caleb, would later replace him in the Legislature. The younger Jones, now a deputy chief of staff to Greitens,was one of the sponsors of the 2013 bills seeking to apply the sheriffs' surcharge to municipal courts. Like Parson, Kenny Jones was close to Koster, a Democrat who made a political habit of backing sheriffs' issues, including advocating for higher pay for them. Koster's office issued one opinion in June 2010, and less than a year later issued a similar opinion on the same issue.Neither opinion addressed the constitutionality of charging the $3 fee on municipal courts—which have no connection to sheriffs. Both said the statute should be interpreted to apply to municipal courts, though the second opinion called the question"a very close one." Neither opinion caused OSCA, which advises the Supreme Court on issuing orders outlining court fees throughout the state,to change its position. After the second opinion was issued, Linhares wrote the attorney for the sheriffs' fund to explain why the state would not ask municipal courts to start collecting the fee. "The modification of the Attorney General's opinion has not pointed out any new case law or new statutory change,"Linhares wrote. "Therefore, we do not believe it would be proper to provide courts guidance advising them to assess this surcharge in municipal cases." It was the crux of this letter that Parson wanted to discuss with Linhares on Valentine's Day two years later. "I've supported the courts when they've wanted raises, but yet you guys will not collect from the municipalities that fee,"Parson said. "The attorney general has given two opinions on that already saying that it should be being collected. And yet we don't collect that and the courts have done nothing to help with that. It becomes a little frustrating to me as I keep supporting your agenda to a certain degree that we don't do that. That is going to be an issue to me and a burden to me if we don't change what we're doing on that. All I'm asking is to collect what should be collected,what I believe the statute says." Linhares stood his ground. "As much as I respect the attorney general," he said. "An attorney general's opinion is not law." But soon, things would change. On April 15, 2013, state Sen. Brian Munzlinger, R-Williamstown,requested an unprecedented third opinion from the attorney general on the sheriffs' retirement fund surcharge. Two days later, Koster's office issued for the third time guidance that the charge should be applied to municipal courts. "I don't remember that ever happening, where there were three opinions issued in such short order,"said former solicitor general James Layton, who wrote all three opinions and is now a lawyer in private practice in St. Louis. Parson's threat to withhold support for the court's budget unless it made a change on the sheriffs' retirement surcharge had its desired effect. Bill Thompson had been the attorney for the Supreme Court during the time the previous attorney general's opinions had been issued on the retirement fund.Now he was the court's clerk, having replaced Tom Simon,who had died. Thompson said Parson's question spurred action. "In light of the discussion, I felt an obligation to determine what the statute required,"said Thompson,who retired from the court earlier this year. "It was clear from the legislative history that at one time the municipalities were not required to collect the fee,but under the current statute the law did require them to collect the fee." Thompson said he felt"no pressure" from Parson or any other lawmaker. Parson declined comment for this series. In August 2013,the Missouri Supreme Court issued its order that outlines fees each court in the state must collect. The$3 surcharge for the Sheriffs' Retirement Fund was included for municipal courts. The real battle was just beginning. Part III: Sheriffs' Retirement Fund had its day in court; it didn't show up • By Tony Messenger St. Louis Post-Dispatch • Mar 27,2017 Third in a five part series about how all three branches of Missouri government helped prop up the Sheriffs'Retirement Fund by charging a court fee that many judges and legal scholars find unconstitutional. Cities all around the St. Louis region are facing a legal threat from their county sheriffs. On March 6, the executive director of the Missouri Sheriffs' Retirement System sent letters to 102 circuit clerks in Missouri. The letters listed municipal courts that are allegedly not in compliance with state law by refusing to collect and remit to the Sheriffs' Retirement Fund a$3 charge. The sheriffs want that charge attached to every traffic ticket in Missouri, every noise violation, every civil or criminal case, no matter how small. The threatened cities include Arnold and De Soto in Jefferson County; Wentzville in St. Charles County, Troy in Lincoln County, and Washington and Pacific in Franklin County. They are not alone. Missouri cities from Lexington to Liberal, Birch Tree to Buffalo, Gower to Gainesville, are being threatened with some sort of action. What the Sheriffs' Retirement Fund plans to do isn't clear. The letters from C.F. Barnes tell the circuit clerks only that the sheriffs will "consider our options," if the allegedly scofflaw cities don't pay up. There is a delicious irony in the threat. In 2013, when one Missouri city refused to collect the fee, officials from the Sheriffs' Retirement Fund had a chance to plead their case. They didn't show up. In July 2013, reversing its previous position, the Office of State Courts Administrator sent notice on behalf of the Missouri Supreme Court to municipal courts throughout Missouri telling them they had to start charging the $3 fee. In Columbia,home of the University of Missouri and its flagship campus, Judge Robert Aulgur posted a notice that on Aug. 28 the new $3 fee would go into effect. Before it could,however, Columbia public defender Mick Wilson filed a lawsuit on behalf of Lavon D. Freeman, and other indigent defendants like him,alleging the fee was unconstitutional and that both Attorney General Chris Koster and the state courts administrator had misinterpreted the statute in applying it to municipal courts. Key to Wilson's argument was the Missouri Supreme Court's unanimous 1986 decision in Harrison v. Monroe County, in which the court ruled that a Senate bill that would create new court fees to supplement county government salaries—including sheriffs—could not be implemented in the state's circuit courts. "The proper test is whether the court costs required are reasonably related to the expense of the administration of justice,"the court wrote. "Examined under this test, S.B. 601 civil court costs bear no reasonable relationship to the expenses of the administration of justice; S.B. 601 civil court costs are collected to enhance the compensation of officials of the executive department of county government. We, therefore,hold that the fees imposed in civil cases by S.B. 601 are unreasonable impediments to access to justice, in violation"of the Missouri Constitution. Aulgur put the fee on hold and set a hearing for Nov. 12. He served notice to the Missouri Sheriffs' Retirement System so it could defend the fee. The retirement system didn't file any briefs or show up at the hearing. Wilson made his argument. On Dec. 17, 2013, Aulgur issued an order that the city of Columbia would not be charging the $3 fee to prop up the sheriffs' pensions. "A clear statement that the surcharge ... applies to municipal ordinance violation cases does not exist at this time,"Aulgur wrote. Ironically,as other municipal judges in the state were unilaterally declaring the sheriffs' pension fee unconstitutional based on the court's Harrison ruling, Aulgur ruled that he didn't have the authority to come to that conclusion. But he stopped the fee anyway. "As far as I know, I'm the only judge who has ever held an evidentiary hearing on the issue," Aulgur said in an interview. He retired from the bench last year. "I'm the lowest court. I shouldn't be the final answer." In his order halting collection of the fee, which is still in effect, Aulgur referred to comments made by Municipal Judge Bob McDonald, who testified against the fee to a committee the Missouri Supreme Court had set up around the same time to examine court costs in the state. McDonald,the judge in Lake Tapawingo, a suburb east of Kansas City, had issued his own "sua sponte"order refusing to collect the fee because he found it unconstitutional. Dozens of other judges signed similar orders, and that's why the Sheriffs' Retirement Fund is now threatening legal action against cities that aren't collecting. "The Supreme Court wants us to collect money from people who don't have it to pay for the retirement fund of sheriffs who have nothing to do with our courts,"McDonald said in an interview last week. "It's even more ludicrous that this is going on in the wake of all the things the court has done in the past year(since Ferguson)to try to protect people from unfair charges in the court." McDonald says he welcomes the fight that appears to be coming. "They're going to have to sue somebody to win this,"McDonald said, "and it appears to me that the court doesn't want to touch it." Part IV: Under fire during Ferguson, judge waged battle behind the scenes • By Tony Messenger St. Louis Post-Dispatch • Mar 28,2017 Walk into Frank Vatterott's law office and two images hit you right away. The first is the crucifix,prominently placed to make it clear that Vatterott's Catholic faith informs his vision of justice. Next to it is a framed certificate,an award Vatterott received in October 2015 from the chief justice of the Missouri Supreme Court, Patricia Breckenridge. The award honored Vatterott's work for improving trust and confidence in Missouri courts. At the time he received it,the lawyer and municipal judge was waging a quiet battle against the very court that was praising him. It started in earnest at a May meeting of the Missouri Municipal and Associate Circuit Judges Association in 2013. The judges were worried that the Missouri Supreme Court was going to ask the courts to add a$3 surcharge to every municipal court case to fund the Sheriffs' Retirement Fund. Vatterott was convinced undue political pressure was causing the 180-degree turn. He and other judges believed the charge to be clearly unconstitutional. Until 2013, it would seem, so did the Missouri Supreme Court. Vatterott wrote a model order for other judges to consider adopting. He filed one in Overland, to make sure the charge wouldn't be applied there. Dozens of judges all across the state followed his lead. Vatterott pestered the clerk of the Missouri Supreme Court, Bill Thompson. He wrote a four-page letter to the court's chief justice at the time, Mary Russell, to plead with the court not to apply the fee to municipal courts. "We municipal judges are faced with a decision that is serious in content, and involves a lot of money,"Vatterott wrote to Russell. "I'm sure your Honor recognizes that many of our municipal court defendants are poor. This surcharge affects them the most. Some of our defendants have up to four cases in our courts arising out of the same incident. Twelve dollars is a lot of money for a person who makes eight dollars an hour. ... The issue here concerns a fundamental tenet of our State Constitution,which was shaped in part by six hundred years of constitutional history. There must be no sale of justice in our Missouri courts." Russell,and the court, ignored his plea. They issued an order outlining court charges to take effect on Aug. 28,2013, and the $3 surcharge was applied for the first time to municipal courts throughout the state. The charge was at one point going to apply to the 90 municipalities in St. Louis County, even though the county's sheriff isn't a part of the retirement system, but Vatterott convinced Thompson that would have been a misapplication of the law. On Aug. 28, Vatterott filed a lawsuit in Cole County Circuit Court seeking to stop the surcharge from being applied to municipal courts. The Missouri Sheriffs' Retirement System was represented by attorney Rich AuBuchon. At the time, AuBuchon's wife, Betsy AuBuchon, was the attorney for the Missouri Supreme Court. She had previously been the lobbyist for the Missouri Sheriffs' Association.Now, she is the court's clerk, having replaced Thompson when he retired. What happened next says a lot about how hard the courts are running from this issue. For nearly three years, Vatterott's lawsuit—it was later refiled with the city of Slater as the lead plaintiff —bounced between the circuit court and the Court of Appeals. In May of 2016, the Court of Appeals for the Western District of Missouri tossed the lawsuit,without addressing the statutory or constitutional questions raised by it. Instead,the court said none of the plaintiffs had standing to sue. In August, the Missouri Supreme Court refused to take up the case on appeal. Vatterott, frustrated at the court's inaction, and prodded by me, agreed to press his case in another court—the court of public opinion. "I tried to go through the system,"Vatterott said. "I thought for sure they'd take the case because of Ferguson." One year after Vatterott filed the lawsuit, his life—and those of countless others—would forever change. On Aug. 9, 2014, after Michael Brown was shot and killed by Ferguson police Officer Darren Wilson, thousands of protesters took to the streets of various north St. Louis County municipalities, protesting decades of oppression at the hands of the law enforcement and court systems. At the core of the protests was a system in which cities saw their municipal courts as revenue centers,with law enforcement agencies being used to shake down poor people by stacking traffic tickets and other municipal offenses on top of each other, and jailing those who missed court dates or couldn't afford to pay. Vatterott, already a leader among municipal court judges in the region,became, fairly or not, the face of a broken system, working to reform it from within,while taking intense criticism from outside reformers who wanted more drastic action. As various advocates were challenging the Missouri Supreme Court to rein in municipal court abuses, Vatterott was fighting with the court behind the scenes over the same underlying issue,on behalf of Missourians across the state. "One of the fundamental things we learned (from Ferguson)was that the courts were charging too much money,"Vatterott says. When Russell addressed the Missouri Legislature just four months after the initial Ferguson unrest, she told them that the court would make sure that municipal courts—which handle two- thirds of all Missouri court cases—would not be used as"revenue generators." Since that time the court has issued new standards for municipal courts which put protections into place so the abuses that were rampant in some St. Louis County courts won't be repeated. One abuse, however,remains unresolved in municipal courts in nearly every county in the state except for St. Louis. The courts are being asked to do something that Vatterott believes all the key players know is unconstitutional. It's one thing, he says, for the Legislature, or even the attorney general, to be involved in ignoring the constitution for a political purpose. But the Supreme Court? "That's frightening,"Vatterott says. Nothing less than the faith and confidence in the courts is at stake. That's what his award was about. He appreciated receiving it,but it would have deeper meaning if he wins this battle. It's time, he says, for the court to recognize its error and do something to fix it. "They can take the damn award away from me,"Vatterott says. "I don't care." Part V: Missouri's top court executes scheme to fleece the poor; it must end • By Tony Messenger St. Louis Post-Dispatch • Mar 29, 2017 The Missouri sheriffs badge comes in different shapes and sizes. Some have five points, some six, even seven. They are gold and silver. All of them reflect the polished power of the office. As long as they've been elected, county sheriffs, particularly in rural America, have wielded the sort of influence that has other elected officials often currying their favor. More than anything else, this explains how a$3 fee to pad sheriffs' pensions in Missouri was applied to courts that have nothing to do with county law enforcement. The scheme got its start six years ago: In 2011,the sheriffs realized their pension fund needed an influx of cash. They tried and failed to get the Legislature to change the law so that instead of just charging the fee in circuit courts, where they perform bailiff and service functions, it also would apply in municipal courts,where sheriffs perform no role at all related to the dispensation of justice. So the sheriffs and their allies in the Legislature turned to another friend, Attorney General Chris Koster,and between 2011 and 2013, Koster issued three opinions saying that the fee should apply to municipal courts. At first, the Missouri Supreme Court was resistant to the push. But in the summer of 2013, the judges of the Supreme Court turned their backs on a fundamental tenet of American justice,the concept that barriers cannot exist that keep access to the courts out of reach from those who lack resources. In doing so,the court failed to do that which one of its former members wrote in a dissenting opinion on another matter in 2011 is its primary duty,to be guided by the law. That judge, St. Louis University law professor emeritus Mike Wolff, served for 13 years on Missouri's high court. Known for often being the conscience of the court, sometimes in fiery dissenting opinions, Wolff was at his best in one of the last opinions he wrote, a dissent in an adoption case that, in then end,took a child from his immigrant mother. "At least Solomon had the option to decree that the child be cut in half,"Wolff wrote in that case. "All we lesser judges have is the law, and it is our duty to make sure that the law is obeyed. Not in 90 more days or 900 more days, but now." In the case of the $3 pension fee for sheriffs,justice delayed is justice denied, suggests Wolff. The former dean of the SLU Law School agreed to examine the three advisory opinions issued by Attorney General Chris Koster on the issue and offer his perspective. What Koster got right, Wolff says, is determining that municipal courts are "courts of the state," or divisions of the circuit courts. Indeed, for months after the Ferguson unrest, that was exactly the argument various legal reform advocates were making to the Missouri Supreme Court, that the court,and the circuits under it,had a direct responsibility to rein in the abuses taking place in municipal courts,particularly those in St. Louis County. Wolff,however, finds it curious that while not weighing in on the constitutionality of the law that creates the $3 surcharge, Koster referenced in a footnote the very Missouri Supreme Court case that clearly makes the application of the fee to municipal courts an unconstitutional overreach. In that 1986 case,Harrison vs. Monroe County, a unanimous court ruled that a bill that would have created court fees to supplement county officials' salaries—including those of sheriffs— was a burdensome "sale of justice,"a toll that might keep poor people from having access to the courts. Wolff says the Harrison case is directly applicable to the current controversy over the$3 fee for sheriffs pensions. "It couldn't be closer to being on point," Wolff says. "This is a fee that should not be collected." Wolff is just one former judge offering his opinion. But it is one shared by dozens of municipal judges who, starting in 2013, took the unusual action of issuing"sua sponte"orders to stop the collection of the fee. The Latin term translates to "of their own accord,"which in this issue creates quite the image. Of their own accord, the least of the"lesser judges" in the state, led by Overland municipal Judge Frank Vatterott, stood up to the most powerful judges in Missouri, so convinced they were that the state's high court had taken an action based on political pressure and not the law. The dilemma for the Supreme Court,though, is bigger than the dispute over whether one fee applies to municipal courts. Wolff suggests the court's 1986 opinion casts doubt on whether the $3 charge can even exist. "The Harrison decision says the fee is unconstitutional in its entirety,"Wolff says. "it says you can't charge it at all." Indeed, in a concurring opinion in that decision, former Missouri Supreme Court Judge Warren Welliver cast doubt on the increasing reliance by the Legislature on court fees to fund various pet projects,be they worthy or not. "The now approaching$100 court cost deposit in a circuit court civil case effectively bars many lower income Missourians from asserting meritorious claims in the court system,"Welliver said. This is not just a Missouri problem but a national one. A white paper published in 2012 by a committee of court administrators titled"Courts Are Not Revenue Centers" lays out a series of principles that would address rising court costs around the country, where legislatures and cities, hesitant to raise taxes, instead turn to the courts for cash. This is why one $3 fee matters so much. Its very existence adds to the perception that the courts in Missouri exist only for those with money. In choosing to apply the fee to municipal courts,the Missouri Supreme Court ignored its fundamental duty to uphold our constitutional rights by joining in a conspiracy to fleece the poor. Today,that court may well still be worried about the political consequences of a proper ruling on the $3 court fee. That, Wolff told his colleagues in 2011, should not be their concern. The law is. If the politically powerful sheriffs lose their pension revenue source, they will need to get in line at the Legislature. Just like everybody else.