9 minute read
News From The Bench: Missouri Sheriffs' Retirement Fund Surcharge Found Unconstitutional
by Frank J. Vatterott, Esq.
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
Innovative Code Solutions
Expert codification services
Flexible online code portal Interactive zoning map
Custom Local Building Codes
GeneralCode.com | 800.836.8834
court fees to the regular amounts, in order to supply funds for the Crusades! Since not all the barons were wealthy, some could not afford to pay these extra surcharges, that impeded their right as plaintiffs to redress in the King’s courts. If they were the defendants, the barons were fearful that if they lost, they would be saddled with higher court costs that were not related to their court case.
Over the centuries, this principle continued to be favored in England, and in the early 19th century, the “Sale of Justice” prohibition was brought from England to the United States and is contained in 38 state constitutions. The modern interpretation of the clause includes the constitutional requirement that costs imposed upon litigants, both plaintiffs and defendants, be “reasonably related to the expense of the administration of justice.”
A famous Missouri Supreme Court case, Harrison v. Monroe County, 716 S.W.2d 263, 267 (1986) confirms this ancient principle. In fact, the Harrison case was relied upon by the Fowler court in its recent ruling.
There can be no doubt that contributions to a retirement fund for an elected county official, here the sheriff, cannot be constitutionally imposed upon defendants in municipal divisions. In fact, they should not be imposed in any court, said the judges in Fowler. A retirement fund for elected sheriffs has no connection whatsoever to the administration of justice of municipal courts, or even of circuit courts. The recent 6-0 decision by our Supreme Court is a clear statement that the judges understand this iconic rule.
I will always be grateful to the Missouri Municipal League, which, at my request, filed suit to find the surcharge unconstitutional, in 2013. The statute requiring the Sheriffs’ Retirement Fund surcharge had been in effect since the early 1980’s. But it had never been interpreted to include municipal divisions. The sudden reversal of opinion by the Office of State Court Administrators (OSCA), the administrative arm of the Supreme Court, based upon two Attorney General opinions by Attorney General Koster that OSCA had previously rejected, led me and others to serious speculation that OSCA’s astonishing reversal of opinion was not based upon the Missouri Constitution or any statute, but was a political decision.
The fact is there had not been any new appellate case, nor changes to the statute, since the latest version of the Sheriffs’ Retirement Fund Statute was passed in the mid-1980s. Yet, in 2013 our Supreme Court ordered its more than 500 municipal divisions to start collecting the surcharge on every case, including parking tickets. The clerk of the Supreme Court first demanded that even the St. Louis County municipal divisions, over 80 at the time, collect the surcharge, but finally conceded, after I and others strongly objected, that those courts did not have to collect the fee, since the St. Louis County sheriff had never been a participant in the Sheriff’s Retirement Fund.
About 60 municipal courts in counties outside of St. Louis County and City, signed a template order I prepared refusing to collect the fee. Those judges’ decisions have been in place since 2013, although due to Supreme Court mandatory operating systems, some courts were forced to collect the fee although the judge had ruled that the ordinance from the city requiring payment was unconstitutional.
Unfortunately, the first lawsuit, the one that the MML sponsored, was lost in the Kansas City Court of Appeals on technical grounds – lack of standing. But the Court of Appeals decision contained curious language that suggested future litigants could challenge the Sheriffs’ Retirement Fund statute’s constitutionality as a violation of the “Sale of Justice” clause if the lawsuit was brought under a different theory.
Thereafter, the Fowler case was filed by class action lawyers in Kansas City using that different theory. I was honored to assist them with my large file of research into the constitutional and legal issues. The class action lawyers tried it in Jackson County, lost at that level, and filed an appeal. They were the winning law firms. They deserve much credit, appealing to the Supreme Court after the case was lost in the Jackson County Circuit Court.
In its landmark ruling on June 1, 2021, the Supreme Court completely reversed the Jackson County court ruling. It found that clerks were not necessary parties to the suit. But much more importantly, the Supreme Court opined the Sheriffs’ Retirement Fund statute requiring the $3 surcharge violated the “Sale of Justice” clause of the Constitution.
By utilizing time proven technologies and processes, Trane helps government agencies enhance indoor environments critical to providing public services. As experts in improving air quality, security and energy efficiency, Trane is your organization’s partner for building resiliency and sustainability.
Unleash the potential of your building
Contact Trane | 314-374-9233 | trane.com/government
Trane is a DOE qualified Energy Services Company (ESCO), GSA contract holder, and OMNIA Purchasing Program Partner
© 2020 Trane. All Rights Reserved.
Since the ruling on June 1, OSCA has been preparing to change its costs cards and computer systems to eliminate the circuit and municipal divisions’ requirement to collect the surcharge. Obviously, this is an arduous task. OSCA’s counsel told me that a number of presiding judges and municipal judges have chosen not to wait until the computer systems are updated (which courts rely upon for the collection and assessment of court costs,) and have already entered administrative orders that municipal divisions should no longer collect the fee, as of June 1.
The Fowler case has been remanded to the Circuit Court of Jackson County where there will be hearings on whether there should be certification for a class action. It remains to be seen if the defendants who paid the fee, including those in municipal courts, will have the surcharge reimbursed to them by the Missouri Sheriffs’ Retirement Fund.
The decision also raises a question on the continued viability of other court surcharges that municipal court defendants must pay, even on routine non-moving charges. These include crime victims’ compensation, peace officers state training, law enforcement training fund, and domestic violence shelters. While these funds are laudable for the assistance they provide, they remain suspect in that they do not relate to the cost of administration of the courts in which they were collected. Undoubtedly, there will be challenges to the constitutionality of these fees, that remain paid now by Missouri municipal and circuit court defendants.
This case is an affirmation that a basic tenet embodied in Magna Carta, as continued in the Constitution of our State for the last 200 years, is alive and well in 2021. People should not have to pay unrelated court fees when filing a suit or when hauled into court on routine traffic and other charges. It should serve as a warning to politicians that passing laws requiring litigants in court to pay unrelated fees to legislators’ favored beneficiaries will not withstand constitutional challenge.
Frank J. Vatterott is president of Vatterott Harris, P.C., in Maryland Heights, Missouri. He has concentrated his law practice in real estate, business and municipal law, including serving as a city attorney for several MML members. Mr. Vatterott sat as a municipal judge for more than 38 years, chiefly in St. Ann and Overland. He served as president of the Missouri Municipal and Associate Judges Association in 1993 and again in 1997. Judge Vatterott received the Missouri Supreme Court’s highest award, for "improving trust and confidence" in the Missouri judiciary, for his work in leading reforms in municipal courts during the challenges known as "Ferguson." He is the only city judge ever to receive the award. Mr. Vatterott is a graduate of the University of Notre Dame and St. Louis University Law School. Judge Vatterott and his wife Lucy will celebrate their 50th wedding anniversary in the fall of 2021. They have five children and nine grandchildren, with two more grandchildren on the way!
EXPAND YOUR HORIZON
MML’s Municipal Governance Institute rewards your commitment to learning new skills and abilities in the local government eld.
Learn how to become a
www.mocities.com
NEW!
An Advanced MGI program is now available, o ering custom-cra ed modules with increased challenges and rewards.
