NEWS FROM THE BENCH by Frank J. Vatterott, Esq.
Missouri Sheriffs' Retirement Fund Surcharge Found Unconstitutional Missouri’s municipal courts will no longer be required to collect a $3 surcharge to provide retirement funds for the elected sheriffs in Missouri. The surcharge on each case was mandated by the Missouri Supreme Court in 2013, after it changed its interpretation on whether municipal courts were “civil” in nature. “Civil” cases require the collection of the surcharge. The statute requiring the surcharge has been on the books of Missouri since 1983, but until 2013, had never been interpreted to include the municipal divisions as a “civil” court in which the Sheriffs’ Retirement Fund surcharge should be collected. After the Supreme Court unexpectedly changed its interpretation in 2013 and determined that the municipal courts should collect the surcharge, municipal judges, including myself, researched and opined that a $3 surcharge, if collected by our courts, was unconstitutional as a violation of Missouri’s “Sale of Justice” clause. On June 1, 2021, the Missouri Supreme Court unanimously ruled that our position was correct, in the case of Daven Fowler, et al. v. Missouri Sheriffs’ Retirement System. The case, that began in Jackson County Circuit Court, was brought by two plaintiffs who were defendants in Kansas City municipal court, who paid the surcharge and then sued that the surcharge was unconstitutional and that the Sheriffs’ Retirement Fund was being unjustly enriched. The Jackson County Circuit Court dismissed the petition first on a technical ground that the plaintiffs had failed to
join the municipal clerks as defendants. The circuit court also ruled that the Missouri statute requiring the fee in all civil cases did not violate the “Sale of Justice” clause of the Missouri Constitution. Article I, Section 14 of the Missouri Constitution, called the “Open Courts” or “Sale of Justice” clause, was included in the first Missouri Constitution, in 1820. At that time, most of the “Sale of Justice” language contained in the Missouri Constitution was already 600 years old, because it originated as Article 40 of Magna Carta in 1215. The Missouri Constitution says that: “[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.” Article 40 of Magna Carta was included in demands made by the English barons to King John. Among other grievances, the barons objected to the way the King’s courts were operating in the 13th century. There were frequent bribes to magistrates and delays in court proceedings for favored litigants, who paid for those favors. But my research revealed that there was another, and relevant, connection of today’s Missouri courts to the barons’ complaint. King John, and his predecessor, King Richard the Lionheart, had enacted additional
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